Valencic v Jordan

Case [2017] ACTSC 120

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Valencic v Jordan

Citation:

[2017] ACTSC 120

Hearing Date:

24 April 2017

DecisionDate:

26 May 2017

Before:

Penfold J

Decision:

1.   The appeal is dismissed except to the extent necessary to vary the disqualification period from the period specified by the Magistrate.

2.   The Magistrate’s disqualification order is varied to disqualify the appellant from driving for the period from 26 May 2017 to 4 May 2019.

Catchwords:

APPEAL – appeal from the Magistrates Court – appeal against sentence – whether Magistrate erred in not making a section 17 non-conviction order – whether the Magistrate rejected the evidence relied on by the appellant – whether Magistrate’s failure to hide frustration with appellant amounted to a sentencing error – whether Magistrate paid sufficient attention to likely impacts of licence disqualification on appellant’s family – sentence not “obviously wrong” – sentencing outcome cannot be relied on to show otherwise undetectable specific error in sentencing process – establishing specific error re-opens sentencing discretion whether or not specific error affected outcome – re-exercise of sentencing discretion by appeal court –different sentence may be imposed unless appeal court considers original sentence appropriate.

Legislation Cited:

Crimes Act 1914 (Cth), s 16A(2)(p)

Criminal Code 2002 (ACT), s 36
Crimes (Sentencing) Act 2005 (ACT), ss 17, 18, 33(1)(o), 34, 35

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 20(1), 34(2)

Cases Cited:

Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303 (8 September 2004)

Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Cameron v The Queen [2002] HCA 6; 209 CLR 339
Craft v Diebert [2004] ACTCA 15
Director of Public Prosecutions v Ka-Hung Ip [2005] ACTCA 24
Ghoubriel v The Queen [2016] ACTCA 66
House v The King (1936) 55 CLR 449
Kentwell v The Queen [2014] HCA 37; 88 ALJR 946
R v Hinton [2002] NSWCCA 405; 134 A Crim R 286
R v Latona and McCabe (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 19 November 2012)
Regina v Togias [2001] NSWCCA 522; 127 A Crim R 23

Talukder v Dunbar [2009] ACTSC 42; 194 A Crim R 545

Texts Cited:

Macquarie Dictionary Online (2017) <

Parties:

Matthew Valencic (Appellant)

Peter Jordan (Respondent)

Representation:

Counsel

Mr P Edmonds (Appellant)

Mr D Swan (Respondent)

Solicitors

Paul Edmonds & Associates (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 69 of 2016

Decision under appeal: 

Court:  ACT Magistrates Court

Before:  Magistrate Doogan

Date of Decision:         7 September 2016

Case Title:  Jordan v Valencic

Court File Number(s):   CC16/01442

Introduction

  1. On 7 September 2016, the appellant was sentenced in the Magistrates Court for an offence, committed on 9 January 2016, of driving a motor vehicle with a prescribed drug…

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Valencic v Jordan [2017] ACTSC 120
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[2017] ACTSC 120
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CaseChat Overview and Summary

In the matter of Valencic v Jordan, the appellant sought to appeal against the sentence imposed by a Magistrate. The appeal contested the appropriateness of the sentence, specifically whether the Magistrate erred in not making a non-conviction order under section 17, whether the Magistrate rejected the evidence presented by the appellant, whether the Magistrate's frustration with the appellant amounted to a sentencing error, and whether the Magistrate adequately considered the impact of the licence disqualification on the appellant's family. The court was tasked with examining these issues to determine if the sentence was appropriate and if there was any error in the sentencing process.

The court examined whether the Magistrate's failure to make a non-conviction order was a significant error, noting that such an order would not have been appropriate given the appellant's conduct. The court also assessed whether the Magistrate rejected the evidence presented by the appellant, finding that the evidence was considered but did not alter the overall assessment of the appellant's culpability. Furthermore, the court addressed the Magistrate's apparent frustration with the appellant, determining that it did not constitute a sentencing error as it did not influence the decision-making process. Lastly, the court considered whether the Magistrate adequately considered the impact of the licence disqualification on the appellant's family, concluding that while the impact was noted, it was not a decisive factor in the sentencing.

The court concluded that the sentence was not "obviously wrong" but acknowledged that establishing a specific error in the sentencing process re-opens the sentencing discretion. As a result, the court re-exercised its sentencing discretion, varying the disqualification period to a period from 26 May 2017 to 4 May 2019. The appeal was dismissed except for the variation of the disqualification period.

Orders

Orders of the court

1. The appeal is dismissed except to the extent necessary to vary the disqualification period from the period specified by the Magistrate.

2. The Magistrate’s disqualification order is varied to disqualify the appellant from driving for the period from 26 May 2017 to 4 May 2019.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I note in passing the NSW Guideline Judgment about high-range drink-driving offences (Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303 (8 September 2004) (the Guideline Judgment)). That judgment is not directly relevant to this case for many reasons, including because it relates to drink-driving offences which, unlike the drug-driving offence relevant here, do not involve a total prohibition on having alcohol in one’s blood or breath while driving. However, it is worth noting that the list of characteristics of an “ordinary case of the offence of high range PCA” set out by the NSW Court of Criminal Appeal included that “the offender drove ... because the offender did not believe that he or she was sufficiently affected by alcohol”. Recklessness about whether the offender was affected by alcohol is not mentioned in the list of aggravating factors set out in the judgment. Under an approach of the kind taken in the Guideline Judgment, a lack of belief that the drug was still present in the offender’s system would not have taken him outside the “ordinary case” into an aggravated version of the offence. I note in passing that the bar table evidence about the two matters raised in this ground of appeal may be inconsistent. The bar table evidence about the late guilty plea was to the effect that the delay in entering that plea arose from the appellant’s belief that he had been charged with an offence of driving under the influence of a drug, rather than an offence of having the drug in his oral fluid (although the original summons clearly showed that the charge involved “having a prescribed drug in his oral fluid”, and there was no claim that he had not received the proper paperwork in relation to the charge). The bar table evidence about the risk taken by the appellant in driving early on Saturday afternoon was that he “was not aware that the drug would still be in his system the next day”. As such, this is simply a claim of irrelevant ignorance. In particular, it is not a claim of a positive belief that he did not have the drug in his system at the relevant time. However, counsel for the appellant pointed to this evidence as evidence that, if accepted, would have addressed her Honour’s suggestion that the appellant was blasé, among other things, about whether he had drugs in his system. It is implicit in the reliance on that evidence that the appellant claimed to have considered (separately from any consideration of whether his ability to drive was affected) whether he would return a positive result to a drug test. If the appellant’s claim was that on the Saturday afternoon in question he had considered whether he would, if tested, return a positive result to a drug test, then his separate claim that he believed for several months thereafter that he had been charged with an offence of being under the influence of the drug is somewhat unconvincing.

Ratio Decidendi

Legal Principle Established

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