Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE ATKINS
File Number : MH 3281 of 2021
Catchwords:
Criminal law - Appellant convicted of driving with a prescribed illicit drug present in his oral fluid contrary to s 64AC(1) of the Road Traffic Act 1974 (WA) - Whether magistrate made an error in sentencing the appellant on the basis that the penalty for a first offence against s 64AC(1) included a mandatory minimum fine of $600 - Whether magistrate imposed a manifestly excessive sentence by disqualifying the appellant's driver's license - Whether the magistrate's failure to make a spent conviction order occasioned a miscarriage of justice
[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
AGLC
JAD v McRae [2022] WASC 220
Case
[2022] WASC 220
Decision Date
CaseChat Overview and Summary
In the Supreme Court of Western Australia, the appellant, JAD, appealed against the sentence imposed on him by a magistrate for driving a motor vehicle with a prescribed illicit drug present in his oral fluid, a violation of s 64AC(1) of the Road Traffic Act 1974 (WA). The appellant's appeal alleged three grounds: first, that a miscarriage of justice was occasioned by the Magistrate not making a spent conviction order; second, that the magistrate erred by sentencing him based on the incorrect section of the Road Traffic Act 1974; and third, that the decision to disqualify his driver's license for three months was manifestly excessive. Derrick J allowed the appellant's application for an extension of time within which to appeal and for leave to appeal. Derrick J found all three grounds of appeal to be made out. The alleged error of law by the magistrate in imposing a mandatory minimum fine of $600, which did not exist under the statute for a first offence, established ground 2. Ground 3 was made out because the disqualification of the appellant's driver's license for three months was deemed manifestly excessive given the statutory penalty, absence of aggravating factors, and the appellant's absence of a criminal history. Ground 1 was upheld as a miscarriage of justice due to the magistrate's failure to make a spent conviction order, considering the appellant's good character and the significant adverse consequences of not making such an order. The appellant was resentenced to a fine of $500 and his conviction was declared a spent conviction under the Spent Convictions Act 1988 (WA).