Damian Watson v Jeremy Stiles
[2021] ACTMC 2
•18 March 2021
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Damian Watson v Jeremy Stiles |
Citation: | [2021] ACTMC 2 |
Hearing Date: | 11 January 2021 |
DecisionDate: | 18 March 2021 |
Before: | Chief Magistrate Walker |
Decision: | 1. The application for the making of a s17 non-conviction order is declined. 2. The defendant is convicted of one count of exceeding the speed limit by greater than 30 kilometres per hour but less than 45 kilometres per hour above the posted speed limit and a fine of $800 is imposed. 3. The defendant is convicted of one count of driving with a prescribed drug in his oral fluid as a repeat offender and sentenced to good behaviour order for 12 months. The minimum disqualification period of 12 months is imposed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Driving offences – Drug offences – Non-conviction orders – Judicial discretion |
Legislation Cited: | Crimes (Sentencing) Act2005 (ACT) Crimes (Sentencing Procedure) Act 1999 (NSW) |
Cases Cited: | Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) (2004) 61 NSWLR 305 Babineau v The Queen [2016] NSWDC 354 Bancroft v Carpenter [2018] ACTSC 304 Beattie v Potts [2015] ACTSC 350 Burrow v Hoyer [2015] ACTSC 21 Cobiac v Liddy (1969) 119 CLR 257 Magaming v The Queen [2013] HCA 40; 252 CLR 381 Mearns v Neill [2016] ACTSC 36 Miller v Tighe [2017] ACTSC 185 Naoumidis v Robens [2018] ACTSC 365 Palling v Corfield (1970) 123 CLR 52 Proud v Sladic [2014] ACTCA 26 The Queen v Ang [2014] ACTCA 17 Roseby v Harman [2014] ACTSC 125 Veen v The Queen (No 2) (1988) 164 CLR 465 |
Parties: | Damian Watson (Informant) Jeremy Stiles (Defendant) |
Representation: | Counsel L Crocker (Crown) J Maher (Defendant) |
| Solicitors Director of Public Prosecutions (ACT) (Crown) Kamy Saeedi Lawyers (Defendant) | |
File Numbers: | MC 7122-23 of 2020 |
CHIEF MAGISTRATE WALKER:
Background
Harm to the community caused by the illicit drug trade has many permutations and governments for years have sought to tackle this. The drug driving laws introduced into the ACT in 2010 aim to reduce the risk to road users of injury or death caused by other drivers affected by illicit drug use.
Alcohol poses a similar risk. However, unlike alcohol there is little evidence available as to the correlation between the level at which various drugs impact on driving capacity. Therefore, the drug driving offences, have as the core element of the offence, the mere presence of the prescribed drug in the offender’s oral fluid or blood. That presence is established in the ACT by testing performed by the ACT Government Analytical Laboratory which reports confirmation of the presence of a drug or drugs. The result is that the offence captures a very wide range of offending behaviour. However, because the evidence available to a court is so non-specific, the level of prescribed drug is generally treated as de minimis.[1] This is unlike the more nuanced four level approach applicable for drink driving offences.
[1] Beattie v Potts [2015] ACTSC 350 [48].
The penalties which apply to drug driving offences also bear little correlation to those applied for drink driving offences. Both types of offences carry default and mandatory minimum disqualification periods on conviction. For drug driving, the periods are a default of three years and a minimum of six months for a first offender and a default of five years and a minimum of 12 months for a repeat offender. These align with the disqualification periods applicable to a level four PCA offender. Almost invariably, those offenders in drink driving matters are markedly intoxicated.
The courts are regularly faced then with the dilemma of sentencing individuals who may be largely, if not completely, unaffected by the presence of a prescribed drug in their oral fluid. Whilst there is significant scope for lenience in the penalty which may be imposed in such cases, the disqualification periods are a penalty which flow automatically upon conviction. The disqualification from driving is often perceived as a greater penalty than the court imposed sentence. The impacts are wide ranging and commonly result in reduction of income or loss of employment and an impact on the wider family. It is against this background that this sentence is to be decided.
Procedural Background
This offender, Mr Stiles, is charged with one count of exceeding the speed limit by greater than 30 kilometres per hour but less than 45 kilometres per hour above the posted speed limit (‘the speeding charge’), an offence for which the maximum penalty is $3200, and driving with a prescribed drug in his oral fluid as a repeat offender (‘the drug driving charge’), an offence for which the maximum penalty is three months imprisonment, a fine of up to $4000 or a combination of both. On conviction there is also a default disqualification from driving for five years reducible to a minimum of 12 months.
The offender entered pleas of guilty to both offences on his second appearance before the Court on 9 October 2020. At the request of the defence the matter was adjourned to 11 January 2021 for sentence. When the matter came on before me on that date the offender invited the Court to exercise a discretion pursuant to s17 of the Crimes (Sentencing) Act 2005 (ACT) (‘the Sentencing Act’) not to record a conviction in respect of the drug driving charge alone. The main thrust of the submission in support of this was the likely impact of the consequent disqualification.
Given the concern oft expressed by Magistrates of this Court as to the apparent disparity in penalty between those convicted of low level drug driving offences and those convicted of comparably low level drinking offences with objectively similar levels of criminal culpability, submissions were sought as to the appropriate course in this case.
The Facts
The offender was stopped by police in the afternoon of 14 May 2020 just before the Commonwealth Avenue overpass on Parkes Way in Acton, having been observed driving on William Hovell Drive at an estimated speed in excess of 130 kilometres per hour whilst following another motor vehicle travelling at a similar speed. He underwent an alcohol screening test which was negative. He then underwent a drug screening test which showed a positive indication to a prescribed drug. Subsequent testing by the ACT Government Analytical Laboratory of a sample provided at the police station established the presence of methylamphetamine, a prescribed drug, in the offender's oral fluid.
The offender is charged as a repeat offender because of two previous convictions for driving with a prescribed concentration of alcohol in his breath. This is his first drug driving offence.
Objective Seriousness
Offences of “drug driving” vary from low level, commonly with features such as a single drug, no passengers, good road conditions, nothing about the manner of the offender's driving causing police to perform the drug test and no observable intoxication, to more serious examples with features such as multiple passengers, more than one prescribed drug detected, dangerous conditions, poor driving with or without consequences and observable intoxication.
This offence involved a single drug, no observable effect on the offender's driving skill, daytime on a large arterial road, no passengers and no obvious intoxication. The offence occurred in the context of excessive speeding and thus I infer there was some potential for heightened risk of accident and injury.
Subjective Circumstances
Mr Maher appeared for the offender. He submitted that the 31 year old man had not used drugs that day and that he felt unaffected. He had not turned his mind to whether the drug would still be in his system from earlier use. Police noted no signs of impairment. Since commission of the offence, the offender has undertaken the Traffic Offender Intervention Program, which consisted of 10 modules including one each on speeding and drinks, drugs and driving.
The offender has been driving since the offence date as he was lawfully licensed to do and claims to have refrained from drug use during that period. There have been no further prosecutions. His prior criminal history consisted of two low level PCA offences, one in 2010 and one in 2018.
Prior to the October 2020 mention the offender wrote to the court expressing his remorse for his offending and outlining the benefit he had received from engaging in the traffic offender intervention program.
At the sentencing proceedings in January 2021 he relied upon a further letter to the court in which he noted that in November 2020 his grandfather had died leaving his grandmother living alone. He noted that his grandmother had become extremely fragile and was showing signs of dementia and depression. He noted that he and his mother had become carers for his grandmother, transporting her to and from medical appointments, shopping, leisure activities and helping her at home. In particular, he noted that his grandmother was falling frequently, usually in the middle of the night, at which time she required assistance to get back up. He noted that his mother was not strong enough to pick his grandmother up and that he was often called upon to assist.
The offender also noted that the business he started a year prior to the offending, Electro Secure Pty Ltd, was flourishing. He noted that he worked all over Canberra and occasionally outside Canberra in Yass and Braidwood. He observed that if he were to lose his licence his business would suffer significantly.
The offender's mother, Mrs Lisa Santi, wrote to the court commenting on her son's remorse and lack of any further incidents. She supported her son's claim that he had been helping to care for her mother as he had detailed. She noted that she worked full-time and the offender had the flexibility to step in to assist when she was unable to.
Further written references for the offender were provided to the court prior to the October 2020 mention date and were also relied upon at sentencing.
Mr Colin Lyons has known the offender since childhood. He attested to his personal qualities and remorse. He touched upon some personal difficulties the offender had experienced including having his electrical apprenticeship cut short, the breakdown of a long-term relationship, and the consequent personal struggle which saw the offender get in with what Mr Lyons described as the “wrong crowd”. Mr Lyons noted that the offender had commenced a fresh and supportive relationship and his own business venture.
Mr John Hinds wrote in support of the offender, whom he knows as a subcontractor for his business. He noted that his business may be unable to fulfil its commitments to a major customer without the offender's services. Mr Hinds opined that the offender had shown responsibility in his work since setting up his own business.
Ms Amy Lowry, a friend of the offender, wrote in support of him. She noted a series of personal challenges with which the offender had contended including the death of a close family member, the breakdown of a long-term relationship, the loss of a job and the declining health of another close family member. She noted that this had impacted upon the offender's physical and mental health. She noted that he had re-partnered and that he and his partner had commenced a new business venture. She spoke of the offender's shame as to his actions.
Ms Christine McInulty provided a reference for the offender, she being the mother of his current partner. She was aware of the offender's criminal history and this offence and noted his remorse. She also commented on his personal qualities. Mr Maher noted that the offender's current partner has two children, eight and 10 years old, who regard the offender as their stepfather.
Defence Submissions
Mr Maher submitted that the consequence of recording a conviction, being the imposition of at least the minimum 12 month disqualification from driving, would have an impact upon the offender disproportionate to the level of the offender's criminal culpability. He noted that this minimum period of disqualification was the same as for a repeat offender with a level four drink driving offence but without the offset of recourse to an interlock licence.
Mr Maher submitted that the offender's ability to keep his business afloat and fulfil his obligations would be “severely restricted” without a licence. As he and his partner live in a rental property, the loss of his income, albeit not the sole income to the household given that his partner is employed, would have a significant impact upon their ability to pay rent and meet general living expenses. Mr Maher submitted that the disqualification would be “disproportionately harsh”. He submitted that “this is [a case] where someone essentially stands to lose their ability to work and therefore provide an income and thereby potentially have to fall back on the social sector to support themselves, which can't be the object of a sentencing process”.
In submitting that a non-conviction order was appropriate, Mr Maher nonetheless invited the court to impose a good behaviour order with a condition that the offender drive only for the purpose of his employment or to fulfil his obligations as a carer for his grandmother. Mr Maher indicated that this course was open to the court and referred to the comments of Mossop J in Miller v Tighe [2017] ACTSC 185 at [10]. In Mr Maher’s submission, this course dealt with the sentencing objects of punishment and deterrence without imposing a consequence on the offender disproportionate to the level of offending which is submitted would flow from a conviction on the drug driving offence. It would avoid him losing his business and his ability to earn an income.
When asked by the Court how such an order could be policed, Mr Maher responded that it would operate on “an honesty system” as the offender could not ordinarily provide validation that he was driving for work purposes. Mr Maher accepted that would make enforcement of such a good behaviour order condition difficult. That was particularly so as the offender could be required to drive for his employment at any time of the day. It was noted that the condition could be framed so as to limit when the offender could work but that this would not meet the requirement of allowing him to fulfil his employment obligations.
Prosecution Submissions
The prosecution opposed the making of a non-conviction order noting that the drug driving was in combination with a speeding offence, that the offender had two prior entries for driving over the prescribed concentration of alcohol limit and that he had, as a relatively young man, only a limited history of good driving to fall back on.
The prosecutor also emphasised the difficulty of enforcing a conditional good behaviour order and further submitted that any limitation of the condition allowing the offender to drive to business hours would not assist in respect to his care obligations rendering such an outcome of less utility.
The parties made further written submissions as to the appropriateness of a non-conviction order.
Legislation
The following sections of the Sentencing Act are applicable:
17 Non-conviction orders—general
(1) This section applies if an offender is found guilty of an offence.
(2) Without convicting the offender of the offence the court may make either of the following orders (each of which is a non-conviction order);
(a) an order directing that the charge be dismissed if the court is satisfied that it is not appropriate to impose any punishment other than a nominal punishment on the offender;
(b) a good behaviour order under section 13.
(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a) the offender's character, antecedents, age, health and mental condition;
(b) the seriousness of the offence;
(c) any extenuating circumstances in which the offence was committed.
(4) The court may also consider anything else the court considers relevant.
13 Good behaviour orders
(1) This section applies if an offender is convicted or found guilty of an offence.
(2) The court may make an order (a good behaviour order) requiring the offender to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a stated period.
…
(3) A good behaviour order may include 1 or more of the following conditions:
…
(g) any other condition not inconsistent with the Act or the Crimes (Sentence Administration) Act 2005 that the court considers appropriate.
Examples of conditions for par (g)
…
4 that the offender not drive a motor vehicle or consume alcohol or non-prescription drugs or medications.
18 Non-conviction orders – ancillary orders
(1) This section applies if the court makes a non-conviction order for an offender for an offence.
(2) The court may make any ancillary order that it could have made if it had convicted the offender of the offence.
…
(5) In this section: ancillary order means any order or direction in relation to any of the following:
…
(f) disqualification or loss or suspension of a licence or privilege.
33 Sentencing – relevant considerations
(1) In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court:
(a) the nature and circumstances of the offence;
…
(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—the course of conduct;
…
(j) a plea of guilty by the offender;
…
(m) the cultural background, character, antecedents, age and physical or mental condition of the offender;
(n) the financial circumstances of the offender;
(o) the probable effect that any sentence or order under consideration would have on any of the offender’s family or dependants;
(p) whether the offender was affected by alcohol or a controlled drug when the offence was committed and the circumstances in which the offender became affected;
…
(r) whether the recording of a conviction or the imposition of a particular penalty would be likely to cause particular hardship to the offender;
…
(w) whether the offender has demonstrated remorse;
…
(za) current sentencing practice.
Sentencing Considerations
With respect to s17, I identify a number of principles which apply in considering the discretion it provides for:
(a)Firstly, this disposition may apply to any type of offence.[2]
(b)For the purposes of argument, it may be accepted that in order to constitute extenuating circumstances pursuant to s 17(3)(c), the relevant circumstance must bear a direct relationship to the offence that was committed.[3]
(c)Whilst this section does not require the court to be satisfied that there are exceptional or special circumstances which are demonstrated before the court can exercise a s17 discretion, it is the case that the disposition of a matter without the recording of a conviction must be considered itself exceptional because the expectation on the proof of criminal offending should ordinarily be the recording of a conviction.[4]
(d)In an appropriate case, the court may consider whether there is likely to be a disproportionate effect upon an offender by the imposition of a conviction. This is something which the court may consider relevant pursuant to s17(4) so that if the imposition of a conviction is likely to have a particular impact upon an individual offender, the court may take that into account in determining whether to exercise its discretion not to impose a conviction.[5]
(e)Section 17 confers a discretion. It does not exclude the making of a non-conviction in any particular circumstances but equally it does not provide an entitlement to such an order in any particular circumstances.[6]
(f)It is appropriate to take into account the effect of consequent legislatively mandated penalties, but a sentence crafted solely to avoid such a consequence becomes an exercise of discretion which may be characterised as “mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration”.[7]
(g)When considering the effect of a conviction and in this case consequent disqualification on the offender, in applying the principle of proportionality the court is to assess proportionality having regard to the objective seriousness of the offence.
Mandatory Considerations
[2] R v Ang [2014] ACTCA 17; Mearns v Neill [2016] ACTSC 36.
[3] Proud v Sladic [2014] ACTCA 26, 38.
[4] Naoumidis v Robens [2018] ACTSC 365 (Burns J) (‘Naoumidis v Robens’); see also Proud v Sladic [2014] ACTCA 26.
[5] Naoumidis v Robens [2018] ACTSC 365.
[6] Bancroft v Carpenter [2018] ACTSC 304.
[7] Cobiac v Liddy (1969) 119 CLR 257, [27].
I turn now to the mandatory considerations for a s17 non-conviction order pursuant to sub-section (3).
(a)The offender is neither particularly young nor particularly old. There is nothing exceptional about his character. His physical and mental health are unremarkable. His antecedents are relevant both in rendering this offence one in which he is treated as a repeat offender and because they record that he has offended three times in like manner, although only once in this particular way.
(b)Having regard to the maximum penalty, the offence has not been marked as inherently serious by the legislature. However the offence is serious in the sense that its gravamen is protection of the public from the very real risk of harm, the level of which is often disproportionate to the level of criminal culpability. This case is a less serious example of the offence.
(c)There are no extenuating circumstances in which the offence was committed. It is not an element of the offence that the offender is affected by a prescribed drug. This offence is one of strict liability as to the presence of the drug in either blood or, as in this case, oral fluid. The fact that the offender failed to avert to the risk of offending in this way does not reduce his moral culpability nor does it aggravate it; it is not extenuating.
Other Relevant Factors
Section 17(4) requires the court to consider anything else that the court considers relevant.
The offender points to the likely significant impact of a driving disqualification upon him and his family. These matters may also be considered pursuant to s33 but that of itself does not preclude their consideration under s17(4).
However, as was observed by Henderson DCJ in Babineau v R [2016] NSWDC 354 at [43] “loss of income in the context of loss of licence is one of the ordinary consequences of conviction for an offence that carries a statutory period of disqualification”.
The prosecution submitted that it is not appropriate for the court to make a non-conviction order to avoid an automatic disqualification period simply because it considers the penalties imposed by the legislature to be inappropriate. The prosecution submitted that the views of the magistracy as to the harshness or otherwise of mandatory penalties created by the legislature are irrelevant. In support of that submission, I was directed to the decision of the High Court in Magaming v R [2013] HCA 40 applying the decision of Barwick CJ in Palling v Corfield (1970) 123 CLR 52, in which his Honour stated (at 58):
If Parliament chooses to deny the court such a discretion, and to impose ... a duty [to impose specific punishment] ... the court must obey the statute in this respect assuming its validity in other respects.
More specifically in the context of the non-conviction order the prosecution point to the decision in Application Number 3 to the Attorney General.[8] In considering the NSW equivalent of s17, s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), Howie J, with whom other members of the New South Wales Court of Criminal Appeal concurred, stated:
Just as the discretion inherent in the section, in section 10, cannot be limited by the application of some overarching general principle neither can it be broadened simply because the court does not agree with Parliament's view of the seriousness of a particular offence or believes that in general the penalties imposed under the scheme of the legislation are unduly harsh or unpalatable.
[8] Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) (2004) 61 NSWLR 305.
Whilst this Court is not bound by that judgment and whilst there are differences in the legislative scheme that it relates to, the statement is one of broad principle. The fact that s10 differs from s17 in that it refers to a consideration being the “trivial nature of the offence”, as opposed to a consideration of the “seriousness of the offence”, does not detract from the applicability of the principle, although a higher bar may apply for the s10 disposition.
The defence disavowed the notion that “the onerous effects of the disqualification periods for drug driving offences could justify the imposition of a non-conviction order in any case”, concluding that “this is patently not the case”. They submit, however, that from the lens of the individual offender the impact of mandatory disqualification is a relevant consideration. I was referred to the decision of Burns J in Naoumidis v Robens where his Honour said at [26]:
In an appropriate case a court may consider whether there is likely to be a disproportionate effect upon an offender by the imposition of a conviction. That is a matter which will be governed by section 17(4) of the Sentencing Act as being something else or another matter which the court considers relevant, so that if the imposition of a conviction is likely to have a particular impact upon an individual offender, the court may take that into account in determining whether to exercise its discretion not to impose a conviction.
Refshauge J spoke similarly of the disproportionate consequences of a conviction as a relevant consideration in Roseby v Harman [2014] ACTSC 125 at [55].
Presumably in both cases the judges are referring to the effect of the imposition of a conviction being disproportionate to the offending as objectively assessed, this being the role for proportionality in sentencing.[9] It is not open to the court to consider the disproportionate effect as between offences when the legislature has itself created that disproportion, however unpalatable that may be.
[9] Veen v The Queen (No 2) (1988) 164 CLR 465.
Given that the effect of a disqualification is commonly to impact upon a person's ability to perform their usual employment, whether as an employee or in self-employment, that such an effect would flow in respect to this offender is not disproportionate to the effect that might be experienced by many other offenders convicted in respect of the same offence.
There is no doubt that it must have been within the legislature's contemplation that a disqualification from driving could have such an effect upon offenders. One could not assume that the legislature would have been ignorant of the issue, particularly in light of the history of case law dealing with this issue in the context of drink driving offences.
I must therefore infer that the legislature intended that offenders who have engaged in drug driving, even at low levels of criminal culpability, would be exposed to significant detriment with all the associated social consequences. If I am wrong in this respect and the somewhat draconian effects of the legislation were, in fact, unintended, then no doubt the legislature will seek to address this issue as a matter of some urgency.
That being so and there being nothing else which, either alone or in combination, indicates that a non-conviction order is an appropriate disposition, a s17 order here would be an exceptional outcome for an unexceptional case.
I decline the application to make such an order.
Whilst it is therefore not necessary that I determine the issue, I am satisfied that a limited disqualification or conditional licence order cannot be made as an ancillary order pursuant to s18 of the Sentencing Act. A s13(3)(g) good behaviour order condition not to drive except for a specified purpose or within specified times may have been open to the Court to impose, however, I am not required to determine that in light of the above.
Final Sentencing Considerations
There is some scope for lenience having regard to the low level of offending and the fact that although a repeat offender as legislatively defined, this is the first time this offender has committed this particular offence.
The impact of a disqualification from driving upon the offender's family and dependents is a proper consideration pursuant to s33(1)(o) of the Sentencing Act. The hardship that it might produce is also a proper consideration pursuant to s33(1)(r).
The plea of guilty is evidence of remorse.
Pursuant to s7 of the Sentencing Act, both general and specific deterrence are prime considerations in this case as is protection of the community. I am satisfied, however, that this can be achieved with a shorter period of disqualification than the default period. In light of the likely impact, I am satisfied that any financial penalty imposed should also be reduced to reflect the offender's circumstances.
Sentence
I now record convictions on both charges.
For the speeding offence I impose a fine of $800. For the drug driving offence I order that the offender sign a good behaviour order for 12 months and I impose a disqualification from driving for the minimum period of 12 months.
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Magistrate Walker Associate: S Corish Date: 30 March 2021 |
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