Miller v Tighe - [2017] ACTSC 185

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Miller v Tighe
Citation:	[2017] ACTSC 185
Hearing Date:	24 July 2017
DecisionDate:	24 July 2017
Before:	Mossop J
Decision:	In each case the order of the Court is: 1. Appeal allowed. 2. The order purported to have been made on 20 February 2017 under s 18 of the Crimes (Sentencing) Act 2005 is quashed.
Catchwords:	CRIMINAL LAW – APPEAL – Powers of Courts and Judges – jurisdiction to impose driver-licence conditions – whether a Magistrate has the power to make an order partially suspending an offender's licence for a conviction under s 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) – whether s 18(5) of the Crimes(Sentencing) Act 2005 (ACT) allows for the making of ancillary orders imposing driver licence conditions
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 13(3)(g), 17(2)(b), 18, 103 Magistrates Court Act 1930 (ACT), s 219F(2)(c) Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 20(1), 34 Road Transport (General) Act 1999 (ACT), ss 66A, 67, 67A(2), 67B, 67C, 88(4) Road Transport (Driver Licensing) Regulation 2000 (ACT), ss 45, 48(4), 48(5)(b), 48(5)(c)
Parties:	Daniel Graham Miller (Appellant) Maddison Tighe (Respondent in SCA 15 of 2017) Damian Rubino-Fuchs (Respondent in SCA 16 of 2017)
Representation:	Counsel J R White SC (Appellant) No appearance (Respondent in SCA 15 of 2017) Self-represented (Respondent in SCA 16 of 2017)
Solicitors ACT Director of Public Prosecutions (Appellant) No appearance (Respondent in SCA 15 of 2017) Self-represented (Respondent in SCA 16 of 2017)
File Numbers:	SCA 15 of 2017 SCA 16 of 2017
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 20 February 2017 Case Title: Daniel Graham Miller v Maddison Tighe Daniel Graham Miller v Damian Rubino-Fuchs Court File Numbers: CC2017/334 CC2017/327

MOSSOP J:

Introduction

In these two appeals, which are brought pursuant to s 219B of the Magistrates Court Act 1930 (ACT), the appellant has submitted that a magistrate has made an order which she had no power to make. Both appeals relate to orders made on 20 February 2017. In each case the magistrate was dealing with a drug driving offence (s 20(1) Road Transport (Alcohol and Drugs) Act 1977 (ACT)) (‘RTAD Act’). In each case the magistrate found the offence proved but considered it appropriate not to record a conviction. Instead, under the provisions of s 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT) (‘Sentencing Act’), she imposed a good behaviour order. However her Honour also purported to impose, under s 18 of the Sentencing Act, a restriction on the respondent’s licence, qualifying the circumstances in which each respondent could drive. The appellant in each matter contends that the order made was not authorised by the terms of s 18 of the Sentencing Act. The appellant submits that this part of her Honour’s order should be quashed. For the reasons that follow, I agree that the order was not authorised by s 18 and that the order should…

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 Miller v Tighe

Details

AGLC: Miller v Tighe [2017] ACTSC 185
Case: [2017] ACTSC 185
Decision Date: 24 July 2017

CaseChat Overview and Summary

Miller v Tighe is an appeal against a decision made by a magistrate to impose conditions on the appellant's driver's licence following a conviction under section 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). The appeal raises questions about the jurisdiction of a magistrate to impose driver-licence conditions and whether section 18(5) of the Crimes (Sentencing) Act 2005 (ACT) allows for the making of ancillary orders imposing driver licence conditions.

The legal issues before the court were whether a magistrate has the power to make an order partially suspending an offender's licence under section 18 of the Crimes (Sentencing) Act 2005 and whether section 18(5) of that Act allows for the making of ancillary orders imposing driver licence conditions. The appellant argued that the magistrate did not have the jurisdiction to make the order and that the order was outside the scope of section 18(5) of the Crimes (Sentencing) Act 2005.

The court held that the magistrate did not have the jurisdiction to make the order as it was outside the scope of section 18(5) of the Crimes (Sentencing) Act 2005. The court found that the power to impose driver licence conditions is a separate and distinct power, which cannot be exercised by a magistrate under section 18 of the Crimes (Sentencing) Act 2005. The court also held that section 18(5) of the Crimes (Sentencing) Act 2005 does not allow for the making of ancillary orders imposing driver licence conditions. The appeal was allowed, and the order purported to have been made on 20 February 2017 under section 18 of the Crimes (Sentencing) Act 2005 was quashed.

Orders

Orders of the court

In each case the order of the Court is:

1. Appeal allowed.

2. The order purported to have been made on 20 February 2017 under s 18 of the Crimes (Sentencing) Act 2005 is quashed.

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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