Kamara v Stone - [2010] ACTSC 92

MOHAMMED KAMARA v BENJAMIN RICHARD STONE
[2010] ACTSC 92 (2 September 2010)

CRIMINAL LAW – appeal from ACT Magistrates Court - conviction for failing to provide breath sample – numerous attempts made to obtain breath sample.

CRIMINAL LAW AND PROCEDURE – questions concerning whether breathalyser machine was malfunctioning – unlikely to be a reasonable possibility.
CRIMINAL LAW – sentence imposed by Magistrate manifestly excessive – repeat offender - mitigating circumstances not made out by the appellant – appeal against conviction and sentence dismissed.

Road Transport (Alcohol and Drugs) Act1977 (ACT), s 22(a), 27, 34, 41(1)(b)
Crimes (Sentencing) Act 2005 (ACT), s 13
Magistrates Court Act 1930 (ACT), ss 207, 208(1)(b), (e), 216
Supreme Court Act 1933 (ACT)

Court Procedures Rules 2006 (ACT)

Foreword to the report of the Australian Law Reform Commission; Alcohol, Drugs and Driving (AGPS: Canberra, 1976) Report No 4

Peverill v Crampton [2010] ACTSC 79
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Lukatela v Birch (2008) 223 FLR 1
Charnock v Coady & Ors [2010] ACTSC 26
Hausmann v Shute (2007) 227 FLR 368
Browne v Dunn (1893) 6 R 67
MWJ v The Queen (2005) 80 ALJR 329
R v Lirestis (2004) 146 A Crim R 547
Perkins v Pohla-Murray (1983) 51 ACTR 3
R v Thompson (2008) 21 VR 135
Veen v The Queen [No 2] (1988) 164 CLR 465
Scott v Wynants [2009] 4 ACTLR 13
Application by the Attorney-General under Section 37 of the Crime’s (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
Davis v Conroy [2005] ACTSC 8
Morris v East (1988) 83 ACTR 1
Taylor v Samuels (1977) 16 SASR 266

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 55 of 2009

Judge: Refshauge J
Supreme Court of the ACT

Date: 2 September 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 55 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MOHAMMED KAMARA

Appellant

AND:BENJAMIN RICHARD STONE
Respondent

ORDER

Judge:  Refshauge J
Date:  2 September 2010
Place:  Canberra

THE COURT ORDERS THAT:

The appeal against conviction is dismissed.

The conviction entered in the Magistrates Court on 20 October 2009 is confirmed.

The appeal against sentence is dismissed save for such orders as may be necessary to address the stay of sentence effected by s 216 of the Magistrates Court Act 1930 (ACT).

The parties be heard as to appropriate or other orders.

Introduction

Driving whilst having more than the prescribed concentration of alcohol in the driver’s blood is an offence as the legislature sees the need to prohibit such conduct because of its contribution to Australia’s unacceptably high road toll.

In doing so, however, problems have arisen about how to detect what cannot be easily ascertained directly, namely the amount of alcohol…

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 Kamara v Stone

Details

AGLC: Kamara v Stone [2010] ACTSC 92
Case: [2010] ACTSC 92
Decision Date: 2 September 2010

CaseChat Overview and Summary

In the case of Kamara v Stone, the appellant, Kamara, sought to appeal both his conviction and the sentence imposed by the ACT Magistrates Court. Kamara was convicted of failing to provide a breath sample following an arrest for suspected drink driving. The dispute arose from numerous attempts to obtain a breath sample, with Kamara asserting that the breathalyser machine was malfunctioning. The appeal raised questions about the reliability of the breathalyser machine and whether the sentence imposed by the Magistrate was manifestly excessive, particularly given Kamara's status as a repeat offender.

The legal issues before the court included whether the breathalyser machine was indeed malfunctioning and if such a malfunction was a reasonable possibility that could excuse Kamara's failure to provide a breath sample. Additionally, the court had to consider if the sentence imposed was manifestly excessive, taking into account the mitigating circumstances presented by Kamara.

In its reasoning, the court found that the evidence did not support the claim that the breathalyser machine was malfunctioning in a way that could reasonably excuse Kamara's failure to provide a breath sample. The court also determined that the sentence imposed was not manifestly excessive, as the mitigating circumstances presented by Kamara were not compelling enough to warrant a different outcome. Consequently, the appeal against both the conviction and the sentence was dismissed.

The orders of the court were that the appeal against the conviction and the sentence was dismissed, thereby affirming the decision of the ACT Magistrates Court.

Orders

Orders of the court

The appeal against conviction is dismissed.

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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