Kelly v Johnston

[2012] ACTSC 178

DYLAN PATRICK KELLY v DYLAN ROBERT JOHNSTON
 [2012] ACTSC 178 (14 December 2012)

APPEAL – Appeal from the ACT Magistrates Court – Appeal of sentence – Current sentencing practice of the court – Current sentencing practice followed – Appeal dismissed

APPEAL – Appeal from the ACT Magistrates Court – Appeal of sentence – Appellant’s subjective circumstances - Obligation to assist the court - Failure to demonstrate a particular hardship – Appeal dismissed

APPEAL – Appeal from the ACT Magistrates Court – Appeal of sentence – Manifestly excessive - Discretion under s 17 to impose a non-conviction order – Discretion not exercised – Not manifestly excessive – Appeal dismissed

Drugs of Dependence Act1989
Crimes (Sentencing) Act2005 (ACT), ss 17, 33 (1)

House v The King (1936) 55 CLR 499

Lowndes v R (1999) 195 CLR 665

Dinsdale v The Queen (2000) 202 CLR 321

Petreski v Cargill (1988) 31 A CRIM R 277

R v Popovski [2009] ACTSC 131

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 29 of 2012

Judge: Burns J             
Supreme Court of the ACT

Date: 14 December 2012       

IN THE SUPREME COURT OF THE     )
  )          No. SCA 29 of 2012
AUSTRALIAN CAPITAL TERRITORY )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:  DYLAN PATRICK KELLY

Plaintiff        

AND:DYLAN ROBERT JOHNSTON

Defendant

ORDER

Judge:  Burns J
Date:  14 December 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed. 

1. The orders of the Magistrate are confirmed, with the appellant having three months from today to pay the fine, costs and levy imposed.

1. On 17 July 2011 the appellant was located in a nightclub in Civic.  Police conducted a search of the appellant and found inside his wallet three clip seal bags containing a white powder.  The three clip seal bags were contained inside a larger clip seal bag.  The appellant told police that the white powder was “speed”.  By this, I understand the appellant to have meant amphetamines.  Police dealing with the appellant noted that his pupils were dilated, he was constantly fidgeting and did not smell of intoxicating liquor.  Police formed the opinion that he was moderately affected by an intoxicating substance.  Police seized the white powder and sent it to the ACT Government Analytical Laboratory for analysis.

1. On 31 August 2011 a summons was issued in the Magistrates Court alleging an offence against the appellant contrary to s 169 (1) of the Drugs of Dependence Act1989 (ACT), in that on 17 July 2011 he possessed a drug of dependence namely amphetamine. It appears that this summons was issued prior to the analysis of the white powder which was located on the appellant on 17 July 2011. The subsequent analysis of the white powder revealed that it was not amphetamine, but was in fact cocaine. On 13 October 2011, the accused pleaded not guilty to the charge of possession of amphetamine and the matter was listed for case management hearing in the Magistrates…