Gibson v Jones - [2020] NTSC 68

CITATION:Gibson v Jones [2020] NTSC 68
PARTIES:GIBSON, Erica Ann

v
JONES, Brett Campbell

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 21 of 2020 (22004791)
DELIVERED:  25 September 2020
HEARING DATE:  25 September 2020
JUDGMENT OF:  Mildren AJ

CATCHWORDS:
SENTENCING – Appeal against sentence – sentence contrary to law – mandatory minimum term of license disqualification – disqualification runs from the date of the finding of guilt – mandatory minimum term is reduced by the period of time license suspended under s 29AAN – no suspension under
s 29AAN but not permitted to drive as a condition of bail – no power to backdate license disqualification to date bail granted – whether the offence was a second or subsequent offence – whether court erred in imposing an aggregate sentence of imprisonment where one of the offences carried only a fine

Traffic Act s 27A, s 28, s 29AAF, s 29AAG, s 29AAN, s 29AAS, s 34
Sentencing Act s 52, s 57
Traffic Regulations, reg 88

Murphy v Malony [1997] NTSC 51; (1997) 113 NTR 10, Rigby v James [2004] NTSC 6, Dixon v Pryce (unreported Mildren J, 26 September 1996), Tomlins v The Queen [2013] NTCCA 18, referred to
REPRESENTATION:
Counsel:
Appellant:D Castor
Respondent:  I Read SC
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:  Mil20564
Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Gibson v Jones [2020] NTSC 68

No. LCA 21 of 2020 (22004791)

BETWEEN:

ERICA ANN GIBSON

Appellant

AND:

BRETT CAMPBELL JONES

Respondent

CORAM: MILDREN AJ
EX TEMPORE REASONS FOR JUDGMENT[1]
(Delivered 25 September 2020)

On 28 April 2020 the respondent pleaded guilty in the Local Court at Katherine to the following offences, all committed at Katherine on 3 February 2020:
(a)     Count 1: driving a motor vehicle with prohibited drugs in his body (namely opiates, cannabis, amphetamine and methamphetamine), contrary to s 28(1)(a) of the Traffic Act 1987;
(b)     Count 2: driving a motor vehicle on a road at a speed over the speed limit (namely 72 kilometres per hour where a speed limit sign of 60 kilometres per hour applied), contrary to Rule 20 of the Australian Road Rules;
(c) Count 3: driving an unregistered motor vehicle on a public street contrary to s 33(1)(a) of the Traffic Act 1987;
(d) Count 4: driving a motor vehicle that did not have a current compensation contribution on a public street contrary to s 34(1) of the Traffic Act 1987;
(e)     Count 5: engaging in conduct that resulted in a breach of condition of his grant of bail contrary to s 37B of the Bail Act 1952;
(f)   Count 6: driving a motor vehicle which was in such a condition as to be unsafe to drive on a road contrary to regulation 17(b) of the Traffic…

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.

Continue reading Gibson v Jones

Details

AGLC: Gibson v Jones [2020] NTSC 68
Case: [2020] NTSC 68
Decision Date: 25 September 2020

CaseChat Overview and Summary

Gibson v Jones was a case heard in the Supreme Court of Victoria, where the respondent, Jones, appealed against his sentence. The appeal focused on the application of a mandatory minimum term of license disqualification, which was to run from the date of the finding of guilt. Jones argued that the mandatory minimum term should be reduced by the period of time his license was suspended under section 29AAN of the relevant Act. However, as there was no suspension under section 29AAN, Jones was not permitted to drive as a condition of his bail. The court considered whether it had the power to backdate the license disqualification to the date bail was granted, and whether the offence was a second or subsequent offence. Additionally, the court examined whether it had erred in imposing an aggregate sentence of imprisonment where one of the offences carried only a fine.

The court addressed the legal issues by first considering the construction of section 28(2)(b) of the Act, which defines when an offence is considered a second or subsequent offence. The court concluded that an offence under section 28(1)(a) is only a second or subsequent offence if the presence of the prohibited drug in the person’s body was confirmed by a blood test. In this case, the court assumed that the two previous convictions on 30 September 2019 were offences against section 28(1)(a) in which the presence of the prohibited drug in Jones’ body was confirmed by a blood test. Therefore, count 1 was considered a "subsequent offence" within the meaning of section 28(4). The court also addressed the issue of backdating the license disqualification and concluded that it did not have the power to do so.

The court found that the mandatory minimum term of license disqualification should not be reduced by the period of time Jones' license was suspended under section 29AAN. Since there was no suspension under section 29AAN, the court could not backdate the license disqualification to the date bail was granted. The court also determined that it had not erred in imposing an aggregate sentence of imprisonment where one of the offences carried only a fine. The court considered the overall circumstances of the case and found that the sentence imposed was appropriate.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence was upheld. The court clarified that the mandatory minimum term of license disqualification should not be reduced and could not be backdated, and that the imposition of an aggregate sentence of imprisonment where one of the offences carried only a fine was appropriate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There is no offence in the Act defined as driving with a prohibited drug in the person’s blood. However, s 27A of the Act provides: Evidence of drug in bodyIt is evidence that a drug is in a person's body if the drug is detected by analysis of a sample of the person's saliva or blood. A question arises as to the construction of s 28(2)(b). One possibility is that the offence under s 28(1)(a) is only a second or subsequent offence within the meaning of s 28(2)(b), if any previous offence against s 28(1)(a) of which the person was found guilty, were offences in which the presence of the prohibited drug in the person’s body was confirmed by a blood test. (This, then, would be an evidentiary issue. Was the presence of a prohibited drug or drugs confirmed by a blood test for the purpose of the two prior offences of which the respondent was found guilty on 30 September 2019?) Section 29AAF(1) of the Act provides that in specified circumstances, a police officer may require a person to submit to a saliva test (or tests) for the purpose of determining whether there is a prohibited drug in the person's body. Section 29AAG(2) provides that in the circumstances set out in s 29AAG(1), a police officer may require the person to give a sample of blood for the purpose (inter alia) of determining if the person's body contains a prohibited drug [s 29AAG(2)(b)]. The circumstances in which the police officer may require a person to give a blood sample include that the officer has reasonable cause (whether or not as a result of a positive indication from a saliva test) to suspect the person's body contains a prohibited drug [s 29AAG(1)(b)]. I do not know what the general custom is in relation to requiring people who have had a positive saliva test to undergo a blood test, but there is nothing in the Act to prevent a person from being charged with an offence of driving with the presence of a prohibited drug in the person’s body under s 28(1)(a) on the basis of a saliva test alone. In fact s 27A would appear to contemplate a person being charged on the basis of either a saliva or a blood test. A possible alternative explanation is that s 28(2)(b) has been mistakenly drafted and that what was intended was that the words “driving with a prohibited drug in the blood” in s 28(2)(b) were intended to read “driving with a prohibited drug in the body”.[2] This is not a conclusion one would readily come to if there is an alternative construction of the provision that makes sense. In any event, the explanation seems unlikely as, if that had been the intention, the easiest way of effecting that intention would have been to define that particular relevant offence simply as “an offence contrary to s 28(1)(a)”. In my view, therefore, on a proper construction of s 28(2)(b), an offence against s 28(1)(a) of driving with a prohibited drug in the person’s body, is only a second or subsequent offence as defined by s 28(2)(b) if the person has previously been found guilty of the offence of driving with a prohibited drug in the person’s body and the presence of the prohibited drug in the person’s body was confirmed by a blood test. However, it is not necessary to reach any final conclusion because I will proceed on the assumption that the two previous convictions on 30 September 2019 were offences against s 28(1)(a) in which the presence of the prohibited drug in the respondent’s body was confirmed by a blood test and that, as there were two such previous findings of guilt, count 1 is a “subsequent offence” within the meaning of s 28(4).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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