Clarkson v Earle
[2016] ACTSC 331
•26 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Clarkson v Earle |
Citation: | [2016] ACTSC 331 |
Hearing Date: | 26 October 2016 |
DecisionDate: | 26 October 2016 |
Before: | Murrell CJ |
Decision: | Appeal against disqualification period allowed. Disqualified from holding or obtaining a driver license for nine months. |
Catchwords: | CRIMINAL LAW – PARTICULAR OFFENCES – Driving matters – Drug-driving – appeal against disqualification period –– error of law in approach to determination of disqualification period – sentencing purposes not considered – appeal allowed STATUTES – INTERPRETATION – Words and Phrases – “automatically disqualified” and “default disqualification” – whether difference in meaning – question not answered |
Legislation Cited: | Magistrates Court Act 1930 (ACT) s 208, 214, 218 Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 20, 32, 33, 34 |
Cases Cited: | Burow v Hoyer [2015] ACTSC 21; 292 FLR 325 Stoehr v Meyer [2016] ACTSC 144 Tindall v Spalding [2014] ACTSC 253; 10 ACTLR 198 |
Parties: | Simon Jon Clarkson (Appellant) Phillip James Earle (Respondent) |
Representation: | Counsel Mr J O’Keefe (Appellant) Mr S McLaughlin (Respondent) |
| Solicitors John O’Keefe Solicitor (Appellant) Director of Public Prosecutions ACT (Respondent) | |
File Number: | SCA 19 of 2016 |
Decision under appeal: | Court: Magistrates Court of the ACT Before: Magistrate Boss Date of Decision: 7 March 2016 Case Title: Earle v Clarkson Court File Number: CC 3372 of 2015 |
MURRELL CJ:
On 7 March 2016, the Magistrate convicted the appellant of trafficking in cannabis and driving with a prescribed oral drug in his oral fluid (inferentially, cannabis) as a first offender.
In relation to the offence of trafficking in cannabis, her Honour imposed a two-year good behaviour order with conditions requiring supervision for 12 months, engagement in programs as directed and the provision of drug samples as required. There is no appeal against that sentence.
The appellant appealed against the disqualification period imposed for the offence of drive with prescribed drug in oral fluid as a first offender. The Magistrate sentenced the appellant to a two-year good behaviour order which was concurrent with the good behaviour order imposed on the drug offence and carried the same conditions. Her Honour allowed the automatic three year licence disqualification period to apply.
The offence is created by s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (RTAD Act). It carries a maximum penalty of 10 penalty units ($1,500). The minimum disqualification period is six months and the default disqualification period is three years.
Facts and Decision
At 10:05 am on Tuesday, 31 March 2015, police stopped the appellant’s vehicle in Oaks Estate. The appellant was the sole occupant of the vehicle. He submitted to alcohol and drug screening tests. The drug screening test was positive (inferentially, to cannabis). The appellant was conveyed to the City Police Station, where breath analysis confirmed that the appellant had a prescribed drug in his oral fluid.
In relation to the offence of drug driving, the Magistrate noted that the appellant was on conditional liberty at the material time, but that the offence was detected as a result of a random check (rather than police attention having been attracted by the manner of driving). She observed that drug driving created a threat to other road users and that there was a direct correlation between road deaths and the use of cannabis. The Magistrate said:
In the circumstances in relation to driving, I convict you of that offence. You are to enter into a good behaviour order for a period of two years. I don’t find there is sufficient or appropriate circumstances to reduce the default period of disqualification. You are therefore disqualified from holding or obtaining a driver’s licence for the default period of three years.
Grounds of Appeal
The grounds of appeal were:
(a)Given the plea of guilty, the Magistrate should have reduced the licence disqualification from the automatic period.
(b)The three year disqualification order was manifestly excessive for a first offence of its kind.
(c)The Magistrate erred in failing to take into account the appellant’s need for a licence to attend medical appointments when considering the disqualification period.
Nature of Appeal
Section 208(1)(g) of the Magistrates Court Act 1930 (ACT) (MCA), provides that a person may appeal from the imposition of a driver disqualification under the Road Transport (General) Act 1999 (ACT). A s 208 appeal is an appeal by way of rehearing, in which the Court must conduct a real review of the hearing and the Magistrate’s reasons. The Court must have regard to the evidence given in the hearing and has the power to draw inferences of fact.
Section 34(3) of the RTAD Act provides that, for the purposes of s 208(1)(g) of the MCA, an automatic licence disqualification is “taken to be an order of the court to disqualify a person from holding or obtaining a driver licence.” Consequently, the Court has jurisdiction to entertain the appeal.
Approach to disqualification period
On the appeal there was considerable argument about the proper interpretation of the expression "automatically disqualified" in s 34 of the RTAD Act and the inter-relationship between that expression (which is also used in the parallel drink-driving provisions, ss 32 and 33) and the expression "default disqualification" which is used in the tables to ss 32 and 33, which were introduced to take account of the differences between alcohol concentrations at levels 1, 2, 3 and 4.
There is no easy and possibly no completely satisfactory way of resolving and determining the meaning of "automatically disqualified" where it appears in these provisions. Similarly, it is difficult to completely understand the meaning of "default disqualification" as used in the tables to ss 32 and 33. It is hard to know whether there is any meaningful distinction between the expression "automatically disqualified" and the expression "default disqualification". If there is no distinction, then one wonders why two expressions have been employed.
In Stoehr v Meyer [2016] ACTSC 144, I considered the correct approach to the determination of an appropriate disqualification period in the context that different approaches had been taken by Refshauge J in Burow v Hoyer [2015] ACTSC 21; 292 FLR 325 and Burns J in Tindall v Spalding [2014] ACTSC 253; 10 ACTLR 198. I concluded:
31. ... The “default” disqualification periods in the tables to ss 32 and 33 of the RTAD Act should not be treated as applying to the “usual case” and, when a court is considering disqualification, the critical question is not whether there is a sufficient reason to justify reduction of the “default” disqualification period.
...
35. ... The question is: what period of disqualification is necessary or desirable to provide adequate public protection in the circumstances of the particular case?... The sentencing court should also consider the impact of disqualification on the offender, but this consideration will generally be secondary to the primary purpose of public protection.
37.Rather than asking what was the appropriate disqualification period to achieve the relevant sentencing purposes (including the primary purpose of protection of the public), in this case the sentencing magistrate asked whether the default disqualification period should be reduced and concluded that there was “no good reason to do so”.
In this case, the same error of law is established; the Magistrate proceeded on the basis that, prima facie, the default disqualification period applied rather than asking what period of disqualification was necessary to provide adequate public protection in the circumstances of the particular case and also considering the impact of disqualification on the offender.
It is not necessary to decide the ground of appeal that contends that the Magistrate erred in failing to take the plea of guilty into account in reducing the licence disqualification period or the other grounds of appeal.
As an error has been established, the Court may remit the matter to the Magistrates Court or impose the appropriate sentence: s 218 MCA.
Further evidence
Section 214 of the MCA provides that, on an appeal, if satisfied that “there is a reasonable explanation for the failure to adduce it” before the Magistrate, the Court must receive further evidence that is apparently credible and relevant unless the Court is satisfied that the evidence “would not afford any ground for allowing the appeal.”
The further evidence that the appellant sought to adduce is relevant to an appeal ground, but not the decisive ground. However, it is necessary to enable the Court to determine whether the disqualification period imposed by the Magistrate should be varied and, if so, in what way. The evidence updates the position regarding the appellant’s need for a driver licence. It seems to me that s 214 primarily relates to adducing further evidence in support of a ground of appeal, rather than further evidence that might assist the appellate court if it proceeds to a re-sentencing exercise.
The evidence on the issue of the appropriate disqualification period was to the effect that the appellant had part-time carer responsibilities for his 75-year-old mother and the lack of a driver licence made it more difficult for him to respond to his mother’s requests for assistance.
Prior to the licence disqualification, the appellant was also providing assistance to his nephew, who does not have a driver licence and is a single parent of a four-year-old child. The appellant's lack of assistance has been "frustrating" for the appellant and his nephew. I do not consider that much weight should be attached to that problem.
In addition, the evidence concerned the appellant’s difficulty in accessing public transport (including transport to the nearest supermarket) and the need to attend medical appointments in relation to his schizophrenia. As the appellant is a disability pensioner, he cannot afford taxis. I consider that this is a significant matter. It is in everyone's interests that he is able to attend medical appointments; medical treatment will help to ensure that his condition remains well controlled.
Resetting the disqualification period
The Court has very little information that might assist it to determine the appropriate length of the disqualification period and to assess how the appellant's circumstances inform the need for public protection by the imposition of a disqualification period.
The appellant is known to be 45 years old. He suffers from schizophrenia. He is in treatment for that condition and takes medication for it. Inferentially, he is reasonably well engaged with treatment providers.
The appellant’s past and ongoing use of drugs is not known. He told the Magistrate that he had used cannabis two days before his oral fluid was tested; in other words, it was not a very recent use. If that is the case then he may or may not be a heavy user of cannabis. There is no evidence that he has used other illicit substances which might make him a more dangerous driver.
He was not stopped by police because of the manner of his driving. To that extent, there is no evidence that he was driving dangerously at the time that he was arrested. As there is no evidence about the extent to which the substance was in the appellant's oral fluid, nothing can be said about the extent to which drug taking represented a challenge to the appellant's driving capacity.
All of this makes it difficult to decide the appropriate disqualification period. However, some guidance is obtained from the view taken by the legislature that three years should be the automatic period that is applicable and six months should be the minimum period. It is also interesting to note that the offences of this type are not considered to be very serious by the legislature; the maximum penalty is a relatively low fine and there is no provision for imprisonment.
Another matter that complicates the determination of an appropriate disqualification period is that the appellant lodged an appeal several weeks after the disqualification period was imposed by the Magistrate. The lodgement of the appeal stayed the disqualification order, but, as is commonly the case, the appellant did not realise that he could drive. The Court was advised that he has not driven since the Magistrate disqualified him in March. There is no suggestion to the contrary.
I could proceed by varying the existing disqualification period, in effect backdating the disqualification to the date of sentence in the Magistrates Court, but the cleaner way of dealing with the matter is to take into account the period that he has not driven and to impose a disqualification period from today.
In my view, a disqualification period of about 18 months was appropriate. Taking into account the period for which the appellant has not driven, I will disqualify him from driving for a period of nine months from today. The appeal against the disqualification period is allowed, the disqualification imposed by the Magistrates Court is set aside and the appellant is disqualified from holding or obtaining a driver licence for nine months from today.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 16 November 2016 |
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