Holloway v Thurgar

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Penfold J
• Judgment Date: 23 May 2014
• Date: 23 May 2014
• Docket Number: File Number: SCA 102 of 2013

[2016] ACTSC 32

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Penfold J

File Number: SCA 102 of 2013

William Holloway

(Appellant)

and

Jason Duncan Thurgar

(Respondent)

Representation:

Counsel

Mr J Lawton (Appellant)

Mr D SahuKhan (Respondent)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

CM v TM & Anor [2011] ACTSC 53

House v The King (1936) 55 CLR 499

Keen v Tither [2010] ACTSC 130

Mapham v Bannerman [2013] ACTSC 157

Massey v The Queen [2001] FCA 1558

Peverill v Crampton [2010] ACTSC 79

R v Olbrich (1999) 199 CLR 270

R v Rao [2008] ACTSC 17

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), s 17

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 14(1)(a), 33

Road Transport (General) Act 1999 (ACT), s 63

Road Transport (Safety and Traffic Management Act) 1999 (ACT), s 8(2)

APPEAL AND NEW TRIAL — APPEAL — GENERAL PRINCIPLES — Interference with Magistrate's Findings of Fact — Appeal from finding of guilt in Magistrates Court — whether findings of fact not available on the evidence — whether verdict unsafe and unsatisfactory — whether Magistrate applied incorrect standard and burden of proof.

APPEAL AND NEW TRIAL — APPEAL — GENERAL PRINCIPLES — Interference with Discretion of Court Below — appeal from sentence imposed in Magistrates Court — guilty plea for drink driving offence — whether sentence manifestly excessive — whether error in Magistrate's remark that non-conviction order not available — whether another sentence is appropriate.

Decision:

• 1. The appeal against conviction is dismissed.

• 2. The appeals against sentence are dismissed.

• 3. The parties will be heard about consequential orders.

Introduction

1 William Holloway was convicted and sentenced in the Magistrates Court for an offence of menacing driving and a drink-driving offence involving a Level 3 concentration of alcohol in his system (the PCA offence). Mr Holloway defended the menacing driving charge, but pleaded guilty to the PCA offence. He has appealed against all aspects of the Magistrate's dealings with the menacing driving offence, and against the recording of a conviction and the sentence imposed for the PCA offence.

2 The police statement of facts that was before the Magistrate provides a useful summary of the background to the charges, although of course Mr Holloway, in disputing the Magistrate's findings on the menacing driving charge, disputes some of the contents of that statement of facts.

Police statement of facts

About 5.07pm on Sunday 17 February 2013, police were advised by ACT Operations that a collision had occurred between the female driver of a Silver Honda CRV … and a male driving a Green coloured Ford Futura [with a specified ACT registration number].

About 5.14pm police attended Isabella Drive, Isabella Plains, near the intersection with Ashley Drive, in the ACT. Whilst at that location police spoke to Ms Kaylee Michelle McDONALD who stated that she was the driver of the Honda CRV, which was parked fifty meters on the Eastbound side of Isabella and Ashley Drive, Isabella Plains. Ms McDONALD told police that about 5.05pm, she had been involved in a collision, during which the car ahead of her had put on the brakes whilst they were in a merge one lane, whilst leaving the roundabout along Isabella Drive, heading East. As a result the vehicle Ms McDONALD was driving collided with the rear of the vehicle in front.

Ms McDONALD stated that the driver of the other vehicle was in … a dark coloured Ford [with specified ACT registration]. Ms McDONALD stated that the male driver had left the scene prior to police arrival. Ms McDONALD was submitted to a roadside breath test which returned a negative result.

Police spoke with the passenger in Ms McDONALD's vehicle, Ms Bethany LAI, who told police the same version of events.

Police observed minor damage to the Honda CRV's front passenger side bumper and headlights. Ms McDONALD stated that the male driver pulled over and the male became angry and an argument commenced. A statement was taken from Ms McDONALD regarding the incident.

The driver was described by Ms McDONALD as being short and stocky with a Summernat's T-shirt on and short greying hair. Police obtained a number of photographs of Ms McDONALD's vehicle.

About 6pm, police conducted a number of checks and as a result spoke to the driver of the Green Ford Futura, who advised police that he had returned home and was now waiting at Tuggeranong Police Station for police. Upon arrival, police were introduced to Mr William HOLLOWAY …, hereafter known as the defendant.

Police obtained a number of photographs of a Green Ford Futura [bearing the specified ACT registration number]. Police observed the defendant and recorded that he was wearing a 25th Anniversary Summernats T-Shirt and shorts, which was similar to the description of the driver given by Ms McDONALD. Police spoke to the defendant;

Senior Constable THURGAR said, ‘Were you the driver of [specified registration number], this [F]ord?’

He said, ‘Yes’.

Senior Constable THURGAR said, ‘Why didn't you stay there?’

He said, ‘I showed her my licence and it started to get heated, so I thought I would report it later’.

The defendant provided a version of events, in which he stated that whilst travelling along Isabella Drive, through the Ashley Drive roundabout, Ms McDONALD's vehicle drove so close behind him that when he applied his brakes, her vehicle collided with his vehicle. After the incident, he pulled over and attempted to exchange his details with Ms McDONALD. The defendant stated he got into a heated argument and as a result decided to leave the scene in order to report the matter to police. The defendant returned home and consumed between two to three Melbourne Bitter Stubbies before attending Tuggeranong Police Station.

The defendant produced a current ACT Heavy Vehicle (MC class) driver's licence, …, with an expiry date of 21/09/2017. Police were satisfied the photographic image on the drivers licence matched that of the defendant.

The defendant was advised that he would be required to undergo a screening test with an approved alcohol screening device being a Alcolizer Technology Alcolizer LE. This screening test indicated that the defendant's alcohol concentration was the prescribed concentration.

The defendant was advised that he was currently in police custody and would be required to submit to breath analysis. At 6.21 pm Sunday 17 February 2013, the defendant commenced a period of observation.

The defendant was observed for a period longer than twenty minutes and during that period of observation the defendant did not take any inhalant medication, did not vomit or burp.

At 6.53 pm, the defendant underwent breath analysis at Tuggeranong Police Station on a Drager Alcotest 7110 Breath Analysis Instrument MRAJ-A001. The result as shown and recorded by the Breath Analysing Instrument used in the analysis of a sample of the defendant's breath was 0.111 grams of alcohol per 210 litres of breath.

Leading Senior Constable THURGAR was the operator of the Drager Alcotest 7110 Breath Analysis Instrument MRAJ-A001 and is an authorised breath analysis operator.

The defendant was given a signed written statement in accordance with Section 12(5) of the Road Transport (Alcohol and Drugs) Act 1977, produced by the breath analysing instrument.

The defendant's face was flushed in appearance, his eyes were watery, his speech was fast, he smelt slightly of intoxicating liquor, his ability to understand instructions was good, he was polite and cooperative with police throughout the process. His balance and walk were fair. The Informant formed the opinion that the defendant was moderately under the influence of alcohol. The weather at the time of the offence was dry, and the road was bitumen and traffic was moderate.

About 6.59 pm, the defendant was issued with an Immediate Suspension Notice, number 17022013/3095 and his ACT drivers licence seized. The defendant was advised that his right to drive within the Australian Capital Territory was suspended.

Isabella Drive, Isabella Plains is a road in the ACT as defined by the Road Transport Legislation.

[The original statement was subsequently amended to add the following material]

Ms McDONALD told police that she and her passenger, Ms Bethany LAI were driving West along Isabella Drive approaching the Goldstein Crescent roundabout. Ms McDONALD saw a dark coloured vehicle attempt to overtake them on the left hand side by driving very fast. The driver of the dark coloured vehicle was unable to merge in front of Ms McDONALD's vehicle and was forced to take up a position behind Ms McDONALD's vehicle. Upon leaving the roundabout, the vehicles were traveling along an undivided single lane roadway. The dark coloured vehicle was seen to overtake Ms McDONALD's vehicle and drive alongside her vehicle. At this point, the driver of the dark coloured vehicle was reported as attempting to take photos of Ms McDONALD and was matching her speed.

Ms McDONALD states that she could see oncoming traffic heading towards the dark coloured vehicle. The dark coloured vehicle narrowly avoided colliding head on with approaching traffic by quickly driving in front of Ms McDONALD's vehicle. Ms McDONALD was travelling in the right hand lane South West along Isabella Drive, approaching the Ashley Drive roundabout, and she saw the dark coloured vehicle in the right hand lane.

Whilst in the roundabout, the dark coloured sedan crossed over into the right lane, forcing Ms McDONALD's vehicle onto the roundabout gutter in order to avoid a collision. Upon leaving the roundabout, the dark coloured vehicle slowed down, and Ms McDONALD saw the dark...