Walters v Cooper - [2014] ACTSC 331

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Walters v Cooper
Citation:	[2014] ACTSC 331
Hearing Date:	22 October 2014
DecisionDate:	29 October 2014
Before:	Penfold J
Decision:	1. The appeal is upheld. 2. The appellant is re-sentenced. 3. The appellant is ordered to sign a good behaviour undertaking for 24 months. 4. The appellant is to perform 80 hours of community service in the next 12 months.
Category:	Principal Judgment and Sentence
Catchwords:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – application of NSW guideline judgment relating to serious driving offences to less serious ACT driving offence – failure by Magistrate to explain how guideline judgment had been applied – application of parts of guideline judgment favouring severe sentence but not relevant parts favouring more lenient sentence – sentence severe having regard to circumstances of offence and offender – error found – appellant re-sentenced. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender re-sentenced after successful appeal against sentence in Magistrates Court – offence of negligent driving occasioning grievous bodily harm – serious injury to offender’s pregnant partner causing loss of viable foetus – accident caused by momentary inattention – no other culpable behaviour by offender – devastating consequences of accident for offender and family – offender of good character apart from one previous driving offence – offender re-sentenced.
Legislation Cited:	Crimes Act 1900 (ACT), s 29 Road Transport (Safety and Traffic Management) Act 1999 (ACT), ss 6, 6(1) Crimes Act 1900 (NSW), s 52A
Cases Cited:	Dinsdale v The Queen (2000) 202 CLR 321 Kennewell v Rand [2005] ACTSC 89 Kennewell v Rand [2006] ACTCA 10 R v Whyte (2002) 55 NSWLR 252 (Guideline Judgment)
Parties:	Daniel James Walters (Appellant) Graeme Robert Cooper (Respondent)

Representation:	Counsel Mr J Sabharwal (Appellant) Mr S Drumgold (Respondent)
Solicitors Rachel Bird & Co (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 37 of 2014
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 9 May 2014 Case Title: Graeme Robert Cooper and Daniel James Walters Court File Number: MC 162 721

Introduction

Daniel Walters has appealed against a sentence imposed in the Magistrates Court on 9 May 2014. The sentence was for an offence of negligent driving occasioning grievous bodily harm. That offence arises under s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (the Safety and Traffic Management Act) and carries a maximum penalty including imprisonment for one year.

Mr Walters was sentenced to three months imprisonment, one month to be served in full‑time custody and the remainder of the sentence to be suspended subject to a two-year good behaviour order. He was also disqualified from driving for three months.

Background

The circumstances giving rise to the charge were described in the police Statement of Facts as follows:

About 10.05pm on Wednesday 16 January 2013 Daniel James Walters ... was driving his motor vehicle west…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walters v Cooper

Details

AGLC: Walters v Cooper [2014] ACTSC 331
Case: [2014] ACTSC 331
Decision Date: 29 October 2014

CaseChat Overview and Summary

Walters appealed against his sentence, which was imposed after he was found guilty of negligent driving occasioning grievous bodily harm. The accident, caused by Walters' momentary inattention while driving, resulted in serious injury to his pregnant partner, leading to the loss of their viable foetus. The case was heard in the Supreme Court of the Australian Capital Territory.

The primary legal issues in the case were whether the magistrate's application of the New South Wales guideline judgment to a less serious Australian Capital Territory driving offence was appropriate and whether the magistrate's failure to explain how the guideline judgment had been applied constituted an error. The court also had to determine whether the sentence imposed was severe having regard to the circumstances of the offence and the offender.

The Supreme Court found that the magistrate had applied parts of the guideline judgment that favoured a severe sentence but had not applied relevant parts that favoured a more lenient sentence. The court concluded that the magistrate's failure to explain how the guideline judgment had been applied was an error and that the sentence was severe having regard to the circumstances of the offence and the offender. The appeal was upheld, and Walters was re-sentenced. In addition to re-sentencing, Walters was ordered to sign a good behaviour undertaking for 24 months and to perform 80 hours of community service in the next 12 months.

Orders

Orders of the court

1. The appeal is upheld.

2. The appellant is re-sentenced.

3. The appellant is ordered to sign a good behaviour undertaking for 24 months.

4. The appellant is to perform 80 hours of community service in the next 12 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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