Damian Watson v Jeremy Stiles - [2021] ACTMC 2

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] ACTMC 2
Decision Date: 18 March 2021

CaseChat Overview and Summary

In the case of Damian Watson v Jeremy Stiles, the defendant appealed against the sentence imposed by the lower court. The defendant had been charged with two separate offences: exceeding the speed limit by more than 30 kilometres per hour but less than 45 kilometres per hour above the posted speed limit, and driving with a prescribed drug in his oral fluid as a repeat offender. The lower court had convicted the defendant on both counts and imposed a fine and a disqualification period.

The appeal raised questions about the appropriate sentence for the defendant's offences. The defendant argued that the lower court had erred in imposing a fine rather than a non-conviction order. The court considered whether the lower court had exercised its discretion properly in imposing the sentence, and whether the sentence was appropriate in all the circumstances.

The court found that the lower court had not erred in imposing the sentence. The court noted that the defendant's offending was serious, and that the sentence imposed was appropriate in all the circumstances. The court declined the defendant's application for a non-conviction order, and upheld the sentence imposed by the lower court. The defendant was 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 was imposed. The defendant was also 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 was imposed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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