Walker v Treloar

[2012] ACTSC 175

BARRY WALKER v MARK TRELOAR
[2012] ACTSC 175 (9 November 2012)

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 19(1), 35(2).
Road Transport (General) Act 1999 (ACT), s 61B.

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 54 of 2012

Judge:             Burns J
Supreme Court of the ACT

Date:              9 November 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 54 of 2012
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:BARRY WALKER

Appellant

AND:             MARK TRELOAR
   Respondent

ORDERS

Judge:  Burns J
Date:  9 November 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is upheld and the order of disqualification imposed by the magistrate will be set aside. 

1. The appropriate disqualification order is one of two years or 24 months. 

1. I deduct from that one month in order to allow, or give, the appellant credit for the period of time that he was subject to the disqualification order made by the magistrate from the date of its imposition to the date that he filed a notice of appeal in this matter, leaving a disqualification of 23 months. 

1. The provisions of section 35(2) of the Road Transport (Alcohol and Drugs) Act (ACT) further reduce the disqualification period by the period that the appellant’s licence was suspended under section 61B of the Road Transport (General) Act 1999, being a period of 90 days. 

1. The disqualification will, accordingly, be commenced 9 November 2012 and will expire on 10 July 2014.

1. On 22 June this year, the appellant was convicted of an offence contrary to section 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 and released on a good behaviour order for a period of 18 months.  In addition, he was disqualified from holding or obtaining a licence for a period of three years and six months.  I note that the automatic period of disqualification with respect to the offence, of which the appellant was convicted on 22 June this year, was one of five years’ disqualification. 

1. The appellant has appealed from the order of disqualification on the basis that the magistrate failed to give sufficient reasons in relation to the disqualification order.

1. Mr Lee, who appears on behalf of the respondent, has conceded error on behalf of the magistrate in that regard.  In addition, he has conceded that the disqualification imposed by the magistrate was greater than that which would be given in the proper exercise of a sentencing discretion in circumstances where the magistrate had determined to depart from the automatic disqualification. 

1. On the basis of the concession made by Mr Lee, the appeal will be upheld and the order of disqualification imposed by the magistrate will be set aside.  I have had the opportunity of reading all of the material put before the magistrate and I am satisfied that an appropriate disqualification order, having taken into account the submissions that have been put before me today, would have been one of two years or 24 months. 

1. I propose to deduct from that one month in order to allow, or give the appellant credit, for the period of time that he was subject to the disqualification order made by the magistrate from the date of its imposition to the date that he filed a notice of appeal in this matter.  This leaves a disqualification of 23 months.  That disqualification will be commenced today, 9 November 2012, and will expire on 8 October 2014, subject to what I say now. 

1. The provisions of section 35(2) of the Road Transport (Alcohol and Drugs) Act (ACT) require the period of any pre-disqualification suspension be taken into account and further, that the period of disqualification which this court imposes is to be reduced by the period of pre-disqualification suspension. Accordingly, I note that the period which I have just noted of disqualification commencing on 9 November 2012 to 8 October 2014 is to be reduced by the period that the appellant’s licence was suspended under section 61B of the Road Transport (General) Act 1999, being a period of 90 days. 

1. The consequence of this is that the period of disqualification will expire on 10 July 2014. 

   I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

   Associate:       James Middleton

   Date:              26 November 2012

Counsel for the appellant:  Mr T. Sharman
Counsel for the respondent:  Mr K. Lee
Solicitor for the respondent:  Office of ACT Director of Public Prosecutions
Date of hearing:  9 November 2012
Date of judgment:  9 November 2012