Storay v Watkins

[2014] ACTSC 298

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Storay v Watkins

Citation:

[2014] ACTSC 298

Hearing Date:

14 October 2014

DecisionDate:

14 October 2014

Before:

Penfold J

Decision:

1.   Appeal dismissed.

2.   Matter listed for mention at 9.30 am on 14 November 2014.

3.   The appellant is to be notified of the listing at his last address known to the Court.

Category:

Principal Judgment

Catchwords:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – appellant sentenced in Magistrates Court to 120 hours community service for offence of being unlicensed rider of motor cycle – appeal against sentence as manifestly excessive – unrepresented appellant did not appear at listed hearing – no explanation provided to Court for failure to appear – no obvious basis for finding that sentence manifestly excessive – appeal dismissed.

Legislation Cited:

Court Procedures Rules 2006 (ACT), rr 5140, 5140(1)(c), 5140(1)(e)

Road Transport (Driver Licensing) Act 1999 (ACT), s 31(1)
Road Transport (Third Party Insurance) Act 2008 (ACT),  s 17(1)

Road Transport (Vehicle Registration) Act 1999 (ACT), ss 18(1), 22(1)(a)

Parties:

Justen Storay (Appellant)

Nicole Jane Watkins (Respondent)

Representation:

Counsel

No appearance (Appellant)

Ms S Saikal (Respondent)

Solicitors

Self-represented (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 41 of 2014

Decision under appeal: 

Court:  ACT Magistrates Court

Before:  Magistrate Boss

Date of Decision:         9 May 2014

Case Title:  Nicole Jane Watkins v Justen Storay

Court File Numbers:      MC168 097 

1. On 9 May 2014, Justen Storay was convicted and sentenced for four traffic offences involving:

(a)being an unlicensed rider of a motor cycle, contrary to s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT);

(b)using an unregistered registrable motor vehicle on a road, contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT);

(c)using an uninsured motor vehicle on a road, contrary to s 17(1) of the Road Transport (Third Party Insurance) Act 2008 (ACT); and

(d)using a motor vehicle with a number plate displayed that had not been properly issued, contrary to s 22(1)(a) of the Road Transport (Vehicle Registration) Act. 

1. For the second, third and fourth offences he was convicted and fined.  For the firstmentioned offence, that of being an unlicensed rider, Mr Storay was convicted and a good behaviour order for 24 months was made, a condition of which required him to perform 120 hours of community service.

1. Mr Storay has appealed against the sentence imposed for the offence of being an unlicensed rider. 

1. The ground of appeal was specified in the Notice of Appeal as follows: 

Her Honour erred in imposing a sentence that is manifestly excessive in that, on the facts presented to her Honour, sentence imposed is unreasonable or plainly unjust. 

1. In determining the sentence, the Magistrate took account of various matters.  First, she noted Mr Storay's explanation for his conduct in general, being relevantly that he had needed to ride the motorbike in order to get to work, but noting that he was well aware that he should not have been riding the motorbike.

1. Mr Storay's claim that he had chosen to ride the motorbike because his car had mechanical problems was challenged by the prosecutor by reference to an assertion that the number plate that had been attached to the motorbike had not been attached in response to the immediate emergency but at some earlier point.  Her Honour apparently accepted the prosecutor's submission, saying that, in her view:

It was a planned activity.  You had gone to the trouble of obtaining what essentially is a false plate in relation to the vehicle; and that, in and of itself, is an [act of] dishonesty.  You then drove, knowing full well that you were not licensed to drive that particular vehicle.

1. Her Honour noted Mr Storay's guilty plea, his age, and his personal circumstances as described in the Pre-Sentence Report and by his solicitor.  She considered Mr Storay's prior criminal history, which consisted of, apparently, a reasonably substantial number of traffic offences (mainly speeding offences) and several other minor offences committed in the ACT, New South Wales and Victoria since about 2001; her Honour specified that these did not aggravate the immediate offences but reduced the scope for Mr Storay to be treated leniently.

1. Her Honour also noted the apparent need to focus on deterring Mr Storay from repeated traffic offending, with particular reference to the risk to the community from Mr Storay's riding of an uninsured motorbike. 

1. The Notice of Appeal had been lodged on behalf of the appellant on 15 May 2014 by a solicitor, who also lodged a transcript of the sentencing hearing on behalf of the appellant on 28 May 2014, but on 18 August 2014 the solicitor lodged a notice indicating that she was no longer acting for Mr Storay. 

10. No written submissions were received from either the appellant or the respondent before the date set down for hearing, being today, 14 October 2014. The matter came on for hearing at 2.15 pm. Mr Storay was called at 2.25 pm but did not appear. The respondent applied under r 5140 of the Court Procedures Rules 2006 (ACT) for the appeal to be dismissed, specifically under r 5140(1)(c).

11.  Having read the transcript from the Magistrate's Court proceedings, I can see no obvious support for the claim made in the Notice of Appeal that the sentence was manifestly excessive in that it was unreasonable or plainly unjust.  Accordingly, I see no basis for adjourning the appeal in the absence of both Mr Storay and any explanation for his failure to appear. 

12.  Accordingly I dismiss the appeal and confirm the Magistrate's Court sentence for the unlicensed riding offence, which is CC 2014/1221.

13. I note the respondent's advice that Mr Storay does not appear to be on bail and so there is no basis for taking any action under r 5140(1)(e). However, the dismissal of the appeal does re-instate Mr Storay's liability to complete whatever portion of the 120 hours of community service remains outstanding, and presumably requires him to sign a new good behaviour undertaking for the outstanding period of the good behaviour order made in the Magistrates Court. The matter is accordingly listed for mention in this Court at 9.30 am on Friday, 14 November 2014.

14.  I order that Mr Storay be notified of that listing at the last known address held for him by the Court.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.

Associate:

Date: