Wendy McLeod v Lucy Claire Evans - [2013] ACTSC 277

ACT SUPREME COURT

Case Title:	Wendy McLeod v Lucy Claire Evans
Medium Neutral Citation:	[2013] ACTSC 277
Hearing Date(s):	18 December 2013
DecisionDate:	18 December 2013
Before:	Murrell CJ
Decision:	Appeal dismissed.
Catchwords:	CRIMINAL LAW – Appeal and new trial – Appeal against sentence – whether excessive weight placed on general deterrence – whether insufficient weight placed on subjective circumstances and objective matters relevant to offence
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 17, 33 Magistrates Court Act 1930 (ACT) Pt 3.10
Cases Cited:	Carpenter v Purcell [2008] ACTSC 34 House v The King (1936) 55 CLR 499
Category:	PRINCIPAL JUDGMENT
Decision Under Appeal:	On Appeal from the Magistrates Court of the Australian Capital Territory
Parties:	Wendy McLeod
Lucy Claire Evans
Representation:	Counsel Mr J Sabharwal (Appellant) Ms M Moss (Respondent)
Solicitors Tim Sharman Solicitor (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number(s):	SCA 66/2013

JUDGMENT

The appellant appeals against a sentence imposed by the Magistrates Court on 5 September 2013 in relation to an offence of driving a motor vehicle with a level 3 blood alcohol reading on 21 June 2013. The Magistrate convicted and fined the appellant the sum of $250, with court costs of $71. She ordered that the appellant pay levies. She disqualified the appellant from driving for a period of three months.

The maximum available penalty was six months’ imprisonment or 10 penalty units. The maximum disqualification default period was 12 months, with a minimum period of three months.

On the anniversary of the tragic death of the appellant's son, she went out to dinner with friends. She was driving a friend home, when she was stopped for a random breath test at 11.00 pm. The friend, who was the passenger, was in the front seat. The appellant was tested and found to have a blood alcohol reading of 0.107. Police noted that she was moderately affected. As she held a full licence, she was required to refrain from driving if her blood alcohol reading exceeded 0.05.

The appellant tendered strong subjective material. At 52 years of age, she has no prior convictions. She has been licensed for 35 years and has an excellent driving history. There was evidence that the incident was associated with a tragedy in the appellant's life. The appellant works shift work, often at night, in a variety of locations, and it would be extremely difficult, if not impossible, for her to find appropriate transport to work should her licence be removed from her. Other material before the Magistrate demonstrated that the appellant is a woman of excellent character.

The appeal against sentence states the ground of appeal to be, "[h]er Honour erred in principle in declining to proceed under section 17 of the Crimes (Sentencing) Act 2005 (ACT)." In submissions, counsel for the appellant relied upon the terms of s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). He submitted that the Magistrate erred in concluding that the appellant's character and antecedents…

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.

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Details

Case: [2013] ACTSC 277
Decision Date: 18 December 2013

CaseChat Overview and Summary

The appellant, Wendy McLeod, sought an appeal against the sentence imposed on her by the trial judge, Lucy Claire Evans, after being convicted of a serious criminal offence. The nature of the dispute centred around the severity of the sentence, with McLeod contending that the trial judge had placed too much emphasis on general deterrence and not enough on the subjective circumstances of the case and the objective matters relevant to the offence. The appeal was heard in the relevant appellate court, which had to determine whether the sentence was excessive and if the trial judge had failed to appropriately weigh the relevant factors in sentencing.

The legal issues before the court were whether the trial judge had erred by placing excessive weight on the principle of general deterrence in determining the sentence and whether there had been insufficient consideration of the appellant’s subjective circumstances and objective matters relevant to the offence. The court was required to assess the balance struck by the trial judge between these competing considerations and determine if the sentence imposed was appropriate and just.

In dismissing the appeal, the court found that the trial judge had appropriately balanced the principles of general deterrence, specific deterrence, and the subjective circumstances of the appellant and the objective matters relevant to the offence. The court held that the sentence imposed was not excessive and that the trial judge had correctly weighed the relevant factors in determining the appropriate punishment. The appeal was dismissed as the court found no basis to interfere with the trial judge's sentencing decision.

Orders

Orders of the court

Appeal dismissed.

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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