Halper v R

[2015] NSWDC 346

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Bugden; Halper v R [2015] NSWDC 346
Hearing dates:	19 August 2015
Date of orders:	19 August 2015
Decision date:	21 August 2015
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Appeals allowed. In each case, without proceeding to conviction, the offender is found guilty and directed to enter into a good behaviour bond for 6 months under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Catchwords:	CRIMINAL LAW – appeals against sentence – particular offence – drive with illicit drug present in system – cannabis – passage of time between engaging in drug use and driving – clear intention of Parliament – warning to community
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(b) Road Transport Act 2013 (NSW), s 111(1)(a)
Texts Cited:	New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 September 2006, 1854
Category:	Principal judgment
Parties:	Regina (Respondent) Beau Bugden (Appellant) Klaus Halper (Appellant)
Representation:	Solicitors: B Page, Office of the Director of Public Prosecutions (NSW) (Respondent) I Chiumento, Eden Legal and Conveyancing (Appellants)
File Number(s):	2015/153383; 2015/146561
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 14 July 2015 Before: Dick LCM File Number(s): 2015/153383; 2015/146561

Judgment

1. I am sitting on circuit in Bega. On Wednesday I heard two appeals from sentences imposed by a Local Court magistrate. They were both sentence appeals. In each case I made an order under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That order had the effect that both of the appellants would leave court without a conviction on their record. I said that I would deliver my reasons today and these are my reasons for making that decision in both cases.

2. The offence each man was charged with was the same. It was driving a car with an illicit drug present in his blood. The drug was cannabis.

3. Klaus Halper committed the offence on 26 March this year. He was driving into town from where he lives - a distance of nearly 100 kilometres - to do his weekly shopping. It was a Thursday. He had smoked some cannabis the previous weekend. Police tested him and the test was positive. He pleaded guilty before his Honour Magistrate Dick who fined him $400 and reduced the automatic disqualification of six months to the permissible minimum of three months.

4. The second case was Beau Bugden, a young 20 year old man finishing his apprenticeship as a chef. As it happens he committed the same offence on the same day as Mr Halper. Again he was pulled over by police for a random drug test and returned a positive reading for cannabis. In his case he admitted smoking some cannabis about three days beforehand. He too pleaded guilty and his Honour fined him the same amount and reduced the disqualification from six months to three months.

5. The offence which both of them committed is created by s 111(1)(a) of the Road Transport Act 2013 (NSW). It is an offence of driving while there is an illicit drug present in the driver’s system.

6. I should say a little more about each case and why I sent them away without a conviction.

7. In Mr Halper’s case he was called to give evidence by his lawyer, Ms I Chiumento. He had had a very serious car accident many years ago and was put on a regime of strong prescription painkillers for many years. He told me that he was “dealing with a whole bunch of side effects that had nothing to do with the accident, that had everything to do with the medications that I was on”. He said that he was not functioning and that instead of the strong medication he smoked cannabis and it helps him. As I said, the last time he smoked before that Thursday was the Sunday evening.

8. I accept his evidence that he does not drink and drive. As he said, he looks after his licence: “It’s vital for my existence.” He lives some kilometres from his nearest neighbour and, as I said, drives nearly 100 kilometres to do his weekly shopping. This includes visiting and obtaining products from a naturopath. To my mind the circumstances in which the offence was committed were extenuating and for those reasons I regarded an order under s 10 of the Crimes (Sentencing Procedure) Act as appropriate in his case. He is also a local musician and needs his car for that reason as well. His account was supported by references.

9. Beau Bugden has nearly finished his apprenticeship as a chef. He has no criminal record whatsoever, although he has attracted a couple of tickets for low level speeding and not displaying a P‑plate. He also took his eyes off the road some years ago. The police saw him weaving across the road and he was booked for negligent driving. He has good references by people who have known him almost all his life and who attest to his good character and the lesson he has learned. He told me in evidence that he had smoked his first joint about three days beforehand. His good character and lack of criminal record was the basis of my decision to send him away without a conviction.

10. Ms Chiumento, who appeared for both men, developed some submissions after I heard Mr Halper’s case about the rigorous nature of the offence. What I mean by that is, the offence itself is one of having the illicit drug simply present in one’s bodily system. It is not an offence of driving under its influence. She pointed out that in other jurisdictions the test is more finely tuned and is aimed at detecting a level of the drug which would affect driving. I myself have not looked into this but I accept what she says. Her client, Mr Halper, also gave evidence about his researches. Again, I say I have not undertaken these researches myself nor sought any submissions about the topic.

11. What also became apparent from Mr Halper’s evidence, and indeed from Mr Bugden’s evidence, is that cannabis remains present in one’s system for quite some time after it is taken. It occurred to me during argument that Parliament may not have realised that in enacting the legislation. However, a reading of the second reading speech given by Mr Matt Brown on behalf of Mr David Campbell on 19 September 2006 makes it clear that there “will be no need for police to prove that a person’s driving was impaired; it need only be proved that the drug was present in the person’s sample. This sends a clear message to motorists that driving with any amount of these illegal drugs in the body is not tolerated in New South Wales”. The other two drugs that Mr Brown was referring to were amphetamines and ecstasy. I am not using their chemical names.

12. It occurred to me that I should draw to Parliament’s attention the effect of the legislation, given the long lasting property of cannabis. However, I realise that I do not need to do that because clearly Parliament’s intention was to prohibit driving with any traces of the illegal drug present in a person’s system. This makes some sense given that the drug itself is illegal and people should not have it in their systems.

13. But there was another reason I had in mind for reserving my reasons for the decision. That is that some users of the drug may not be aware of how long it stays in the system and that days later they can be charged with this offence and put their licences at risk. The drug itself is prohibited but the experience of the courts is that usage is not uncommon. Like alcohol it can mark the commencement of years of addiction when taken by vulnerable people. But on the other hand its use therapeutically is being investigated. Indeed in Mr Halper’s case the use was evidently beneficial. He made it clear that he used it discreetly in the privacy of his own home. Mr Bugden’s case was one of a young man trying it for the first time.

14. I will direct that these reasons be published. This is not for the purpose of drawing the attention of Parliament to the effect of the legislation because Parliament intended the legislation to have just that effect. However, people who use the drug illicitly but privately need to be aware that if they are driving some days or more afterwards the drug may well be detected in their system and their licence will be at risk. This is particularly significant for people who, like Mr Halper, live in the country and need their car for normal purposes such as shopping or work.

15. I am not encouraging people to use the drug. As I said, the experience of the courts is that it can mark the commencement of dangerous addictions like alcohol. But those who do use it need to do some research and know that they are not only exposing themselves to prosecution for possession or use of the drug but also putting their driver licence at risk.

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Amendments

03 February 2016 - [13] - spelling error corrected

03 February 2016 - "Text cited" field updated on coversheet

Decision last updated: 03 February 2016