Carr v Harlovich
[2018] ACTSC 251
•12 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Carr v Harlovich |
Citation: | [2018] ACTSC 251 |
Hearing Date: | 12 February 2018 |
DecisionDate: | 12 February 2018 |
Before: | Burns J |
Decision: | Appeal dismissed. |
Catchwords: | APPEAL – Appeal from Magistrates Court – offence of driving with prescribed drug in oral fluid – repeat offender – automatic disqualification period – appeal of disqualification |
Legislation Cited: | Road Transport (General) Act 1999 (ACT) s 65 |
Parties: | Stephanie Carr (Appellant) Gregory Harlovich (Respondent) |
Representation: | Counsel Mr R Davies (Appellant) Ms E Wren (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 66 of 2017 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 9 August 2017 Case Title: R v Carr Court File Number: CC2017/940 |
BURNS J
This is an appeal from a decision of a magistrate which was made on 9 August 2017. On that date the magistrate dealt with a number of driving offences together with a small number of other offences, but not insignificantly, one of which, at least, was a charge of possession of a prohibited substance. I note that no further action was taken with respect to that matter.
With respect to the driving offences, there was an offence of driving with a prescribed drug in the appellant's oral fluid (CC17/940). The prescribed drug was methamphetamine. The offence occurred on 13 January 2017.
It is of some significance that only three days earlier the appellant had been before the Magistrates Court to be sentenced with respect to a number of separate driving offences, one of which was an offence that on 18 July 2016 she had been the driver of a motor vehicle with a prescribed drug in her oral fluid.
With respect to the offence that the magistrate dealt with on 9 August 2017, the offence which occurred on 13 January 2017, the magistrate convicted the appellant and sentenced her to one-month imprisonment commencing on 9 August 2017. Her licence was disqualified for a period of 12 months to be concurrent with other disqualifications which were imposed.
I should note, at this point, that the automatic disqualification for that offence, I am told, was one of five years' disqualification. The magistrate, after hearing submissions by counsel then appearing for the appellant, reduced the five year disqualification to one of 12 months, which she was entitled to do. However, what her Honour did thereafter is the subject of the present appeal. Her Honour then, pursuant to s 65(2) of the Road Transport (General) Act 1999 (ACT) (Road Transport (General) Act), disqualified the appellant from holding a driver's licence until further order of the court. The present appeal relates only to the order made by her Honour with respect to the disqualification under s 65(2) of the Road Transport (General) Act.
There may well be some merit in the submissions that have been made by Mr Davies on behalf of the appellant about the processes that occurred in the sentencing hearing before the magistrate and, in particular, that the magistrate did not specifically draw to the attention of the appellant's then counsel that she, that is the magistrate, was contemplating making such a disqualification order.
It is, of course, important that a magistrate who contemplates making such an extraordinary disqualification order brings that to the attention of an offender and their legal representative to enable them to make submissions or to call evidence relevant to the making of that order.
It also appears that there may have been some oversight by the magistrate in terms of ensuring that her reasons reflected the grounds for the making of an order under s 65(2) of the Road Transport (General) Act. In an appropriate case that may well have led to the appeal being upheld but in the present case, in my opinion, the appeal should be dismissed because it would not be of any utility to uphold the appeal and then to resentence the appellant because, in my opinion, the magistrate was quite correct in forming the view that a disqualification under s 65(2) of the Road Transport (General) Act should be made.
Where an offender commits an offence under a Road Transport Act, which carries with it an automatic period of disqualification, that automatic period is part of the punishment that is imposed upon the offender for the offence. The automatic period may, of course, be reduced to not below the minimum period which is set out in the legislation for that particular offence. On the other hand, in my opinion a disqualification under s 65(2) is not primarily designed to be a punishment to the offender. The primary purpose of that provision is to protect the public.
10. In the present case there was evidence before the magistrate that the appellant had a longstanding addiction to methamphetamine and was also a frequent and longstanding user of cannabis. In my opinion the magistrate was entirely correct to take the view that protection of the public required that the appellant not drive a motor vehicle or not be entitled to drive a motor vehicle until such time as she ceased using those substances and was able to demonstrate that she did not present as a danger to other road users through the use of those illicit drugs.
11. Indeed, in my opinion, any other approach simply would have been unjustifiable. It would have been unconscionable on the part of the magistrate, with the information which was before her relating to the appellant's drug use and the fact, of course, and armed with the fact that the appellant had now, I think on three occasions, driven motor vehicles with a prescribed drug in her oral fluid, to have taken a course other than that which she took.
12. There is no inconsistency, in my opinion, between the decision of the magistrate to reduce the automatic disqualification of five years to one of 12 months with respect to the offence of driving with a prescribed drug in the appellant's oral fluid and, at the same time, imposing a disqualification under s 65 of the Road Transport (General) Act. That is because, as I have said, the primary purpose of the automatic disqualification is to punish the offender. In doing so, the magistrate would take into account and, indeed, I have no doubt took into account the objective circumstances and the subjective circumstances of the offender, and the magistrate clearly came to the view that the automatic disqualification should be reduced. However, then when the magistrate turned her mind to the disqualification under s 65, the purpose of that disqualification is very different. As I have said, it is for the protection of the public.
13. In those circumstances, with the evidence and material before her, her Honour was quite correct to make the order that she did and as I have said, there is no inconsistency between the orders. For that reason the appeal will be dismissed.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 6 September 2018 |
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