Warran v Faulds [2007] ACTSC 68 (17 August 2007)

Last Updated: 19 September 2008

JOSHUA RICHARD WARRAN v IAN EDWARD FAULDS
[2007] ACTSC 68 (17 August 2007)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 47 of 2007

Judge: Higgins CJ
Supreme Court of the ACT
Date: 17 August 2007

IN THE SUPREME COURT OF THE )
) No. SCA 47 of 2007
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: JOSHUA RICHARD WARRAN

Appellant

AND: IAN EDWARD FAULDS

Respondent

ORDER

Judge: Higgins CJ
Date: 17 August 2007
Place: Canberra

THE COURT ORDERS THAT:

1. There be leave to appeal.
2. The conviction and sentence imposed by the Magistrates Court be set aside.
3. The matter be adjourned with liberty to approach the list clerk for a further hearing date for the purpose of determining consequential orders.

1. It is common ground that her Honour misapplied the Crimes (Sentencing) Act 2005 (ACT). Her Honour was required, if convicting and sentencing the appellant to a period of imprisonment, to have considered whether there ought to be a non-parole period and to have specified a non-parole period unless there was good reason to the contrary. No reason appears from her Honour’s reasons, nor from the facts of the case. The question is what then should follow from that.
2. Plainly, the conviction and sentence imposed must be set aside. The issue of the sentence to be imposed therefore becomes either one for me now to determine or, as has been submitted by Mr Lawton, to order that the matter be referred back to the sentencing court for reconsideration according to law.
3. It is a difficult matter because, absent any question of intoxication, the matter would undoubtedly fall within the lower range of sentences for such matters. Although this would still involve a serious penalty, it would be less than a full-time period of imprisonment.
4. If indeed Mr Warren had been intoxicated and was, or should have been, aware of that fact, it would put it at the higher range of negligence at the very least. The difficulty I have with that is the fact that it was expressly a matter not relied upon by the prosecution in the sense that the only report on it was clearly insufficient to establish to the requisite degree of certainty that there was some intoxication. There might have been, but the report does not say there was.
5. If I was to approach the matter on the basis of such facts as had been proved before her Honour to the requisite degree of certainty, it would come down to this; the defendant appeared otherwise to be driving normally and to be capable of doing so, and then veered onto the incorrect side of the roadway. He says, and there is nothing to the contrary, that this was caused by some jolt that effectively propelled his vehicle to the incorrect side of the roadway.
6. So far there is no negligence although a dangerous situation was created. Whether that was the dangerous situation that confronted the first motorcycle rider is not known, but that issue does not call for a decision because that driver was not, as I understand it, injured or otherwise caused to fall from his vehicle.
7. It was the second motorcycle that was struck and it was the rider of that motorcycle who was regrettably killed. Anybody who causes the death of another person by negligent driving - there must be some degree of fault obviously; a mere accident is insufficient - must be made accountable and given appropriate punishment.
8. The question is what then is appropriate punishment if the true case of negligence is simply failing to regain control of the motor vehicle in sufficient time to avoid that collision.
9. I think, consistently with the other authorities and without placing any great weight on the subjective factors which are relevant to this appellant, save that he is a person in good employment and there is not much in the way of prior record, an appropriate sentence on these facts is 12 months imprisonment to be served by way of periodic detention. I can indicate now that if I am to proceed on the facts as they are now presented, absent any others, that is the sentence I would substitute.
10. I would like to hear counsel on whether that would be an appropriate course in the circumstances or whether there is other evidence to be called which might militate against such a substitution.
11. It does seem to me that it would be reasonable to give Mr Lawton an opportunity to consider the position of the prosecution in relation to this matter, the first result having followed in the appellant’s favour in that the appeal is upheld to the extent that the conviction and sentence is set aside. The question of the consequential order is all that remains and I am prepared to give Mr Lawton the opportunity to make submissions about that consequential order. You have leave to approach the listing clerk to obtain a further date.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 17 August 2007

Counsel for the appellant: Mr I Bradfield
Solicitor for the appellant: Porters Lawyers
Counsel for the respondent: Mr J Lawton
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 17 August 2007
Date of judgment: 17 August 2007