Salagic v Coles [2009] ACTSC 116 (27 August 2009)

Last Updated: 22 September 2009

KASIM SALAGIC v STEPHEN PHILLIP COLES
[2009] ACTSC 116 (27 August 2009)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 4 of 2009

Judge: Higgins CJ
Supreme Court of the ACT
Date: 27 August 2009

IN THE SUPREME COURT OF THE )
) No. SCA 4 of 2009
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: KASIM SALAGIC

Appellant

AND: STEPHEN PHILLIP COLES

Respondent

ORDER

Judge: Higgins CJ
Date: 27 August 2009
Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is upheld.
2. The four year period of licence disqualification is set aside and a three year period of disqualification is imposed.

1. The facts of the matter are straightforward. The ground of appeal relied upon in substance, seems to me to be twofold. The first is that his Honour did not take the question of rehabilitation into account. I am satisfied that his Honour did take that into account, and clearly that was in large measure the reason why his Honour chose to reduce the period of disqualification.
2. There is some uncertainty as to what his Honour meant in the preceding paragraph, where he dealt with submission regarding the plea of guilty not being at the earliest opportunity. It is difficult to know what that means because his Honour does not ascribe any particular weight to it.
3. The prosecutor, in effect, submitted that virtually no account should be taken of it, but it had to be taken into account at some level in any event, and whether or not sufficient weight was given to it is not clear from his Honour’s reasons.
4. As to the question of the manner of driving, there are two aspects to that, one is the question of speeding or not speeding and his Honour’s remarks in that regard were unfortunately ambiguous. His Honour is right to say of course that speeding or not speeding is not relevant to the charge, but it is relevant, of course, to the penalty to be imposed in due course, and as I mentioned earlier, although one could certainly charge a series of offences arising out of an event of this kind, it would be inappropriate to do so.
5. The way in which that is then taken into account is that the manner of driving, which includes, of course, the intoxication of the driver, is to be assessed in determining the appropriate penalty. In this case it does seem to me that his Honour’s comment is ambiguous as far as the speeding is concerned. There is certainly no reference to any finding, which his Honour would have otherwise have been entitled to make, not about the level of intoxication per se, but, of course, the intoxication as a matter of substance, that is, the extent to which the offender appeared to be intoxicated so as to present a danger to the road-using public.
6. Obviously again that is not a matter that is an element of the offence, but it is a matter that is relevant to the determination of the appropriate penalty. Whether that would lead to a further discount of the default period of intoxication is the question. It seems to me that it may have, and perhaps should have, had it been pointed out. Though I do in defence of his Honour point out that the submissions made to him did not very directly address that question, though Mr Kasim Salagic did say, and did point to the fact that he said to the probation officer “I was not intoxicated”, meaning I suppose that he was not overly affected by intoxicating liquor.
7. Whether that be a true statement or not was of course another matter, but it was not a question which his Honour addressed and it does not seem to have been taken into account because the reduction itself can be explained by both the rehabilitation and the plea of guilty, without going any further. So to that extent I uphold the appeal.
8. In relation to the matters which do not appear to have been taken into account, that is to say the question of intoxication and the manner of driving, it seems to me that had his Honour taken those matters into account as opposed to simply the refusal, then it may have been that his Honour would have been justified in reducing to some extent further the period of disqualification, but not by a great deal.
9. I would set aside the four years’ disqualification, and impose instead three years. That will, accepting the circumstances outlined in the affidavit, date from 19 January 2009.

I certify that the preceding twenty (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 27 August 2009

Counsel for the Appellant: Mr S Gill
Solicitor for the Appellant: Marando Solicitors
Counsel for the Respondent: Ms K Mackenzie
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 27 August 2009
Date of judgment: 27 August 2009