Notaras v Earle
[2016] ACTSC 146
•5 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Notaras v Earle |
Citation: | [2016] ACTSC 146 |
Hearing Date: | 26 May 2016 |
DecisionDate: | 5 July 2016 |
Before: | Burns J |
Decision: | The appeal is dismissed. |
Catchwords: | CRIMINAL LAW – Particular Offences – driving with a prescribed drug in oral fluid – where sentencing magistrate declined to reduce the automatic disqualification period. PRACTICE AND PROCEDURE – Appeal – jurisdiction – consideration of decision in Burow v The Queen [2015] ACTCA 61 – no jurisdiction to hear the appeal – no “order” imposed – appeal dismissed. |
Legislation Cited: | Magistrates Court Act 1930 (ACT) ss 207, 208 Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 19, 20(1), 34, 111, 112 Supreme Court Act 1933 (ACT) s 20 |
Cases Cited: | Burow v The Queen [2015] ACTCA 61 Kelly v Apps (2000) 98 FCR 101 |
Parties: | Pascal Theo Notaras (Appellant) Phillip James Earle (Respondent) |
Representation: | Counsel Mr J Sabharwal (Appellant) Mr D Sahu Khan (Respondent) |
| Solicitors Rachel Bird & Co (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 105 of 2014 |
Decision under appeal: | Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 26 November 2014 Case Title: Earle v Notaras Court File Number: CC 9953 of 2014 |
BURNS J:
On 26 November 2014, the Chief Magistrate convicted the appellant of the charge that he, being a first offender, on 31 August 2014, having been the driver of a motor vehicle on a road, did have, within the relevant period, a prescribed drug in his oral fluid contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act). The Chief Magistrate then imposed a Good Behaviour Order on the appellant and he was also disqualified from holding a licence for three years. The appellant appeals from the penalty imposed.
On 26 May 2016, the hearing of the appeal came on before me. During that hearing, the appellant made it clear that the only real point of contention on the appeal was the length of the disqualification period imposed at first instance.
I note, for the sake of completeness, that this matter had originally come before Penfold J on 2 April 2015 and was adjourned on that occasion as her Honour considered it appropriate to await the outcome of the Court of Appeal decision in Burow v The Queen [2015] ACTCA 61 (Burow). The matter was adjourned on subsequent occasions for the same reason. I will return to the Court’s decision in Burow later in this judgment.
It is appropriate, before I consider the issue raised on the appeal, to set out the factual background and the proceedings before the Magistrates Court.
The Facts
At about 3.20 pm on Sunday, 31 August 2014, police were conducting a mobile patrol in the suburb of Barton in the Australian Capital Territory. Police observed the appellant travelling north in a Lexus sedan on Telopea Park at 75 kph in a designated 60 kph zone. The police, in an unmarked car, stopped the appellant. He then underwent an alcohol screening test, the result of which was negative. He also underwent a drug screening test which returned a positive indication to a prescribed drug.
The appellant was taken into custody and conveyed to the City Police station. The appellant then provided an oral fluid sample at 4.06 pm on that same day. The preliminary oral fluid analysis was positive for a prescribed drug. When questioned by police, the appellant admitted to taking “two or three cones” of marijuana at approximately 8.00 pm or 9.00 pm the night before. The appellant was issued with a police direction not to drive a motor vehicle, which was for a period of twelve hours. Laboratory analysis later confirmed the presence of two prescribed drugs, being methylamphetamine and delta-9-tetrahydrocannabinol, in the appellant’s oral fluid sample. On 15 September 2014, an approved analyst issued a certificate stating that result.
The proceedings in the Magistrates Court
On 26 November 2014, the appellant was summonsed to attend court in relation to two charges:
(a)having a prescribed drug in his oral fluid; and
(b)exceeding speed by 15 or less kilometres.
The appellant pleaded guilty to both of those charges on that date. The appellant was unrepresented.
The Magistrate asked the appellant to address her Honour on any personal circumstances the appellant would like to be taken into consideration, including the need for the appellant’s driver licence. The appellant told the Magistrate he was a “very” recreational drug user and was called into work on Sunday, 31 August 2014, when he was not rostered to be working.
The appellant was then questioned by the Magistrate as to the appellant’s knowledge about how long it takes for cannabis and methylamphetamine to be “out of your system”. The appellant initially said 12 hours. The appellant then applied for a restricted licence, although the Magistrate informed him that this option was not available to him due to the nature of the offence.
The appellant then attempted to identify the impact that the loss of his licence would have on him. He identified that it would be difficult to go to and from work in Manuka and to visit, and pick up from school, his 15 year old daughter, who lived in Belconnen. The appellant lived in Campbell, and accepted that he would be able to access public transport. He also accepted that his daughter was old enough to catch a bus home from school. The Magistrate considered that the impact of the appellant’s loss of license would merely be one of inconvenience, and although inviting him to identify any other impact, he was unable to do so.
The Magistrate also considered some other subjective features of the appellant. Her Honour considered that the appellant had to declare himself bankrupt recently, however, despite this the appellant was in a reasonable financial position and that he owned his own home outright.
The appeal hearing
There were two issues that arose at the appeal hearing. The first was whether the Magistrate exercised her Honour’s discretion to vary the automatic period of disqualification under s 34 of the Alcohol and Drugs Act. If her Honour did not exercise her discretion then I have no jurisdiction to entertain the present appeal: Burow. I will return to this issue in more detail.
The other issue that was raised was whether s 34(3) of the Alcohol and Drugs Act applied retrospectively to the appellant’s offence. Section 34 is as follows:
34Automatic driver disqualification–offences other than s 19
(1)If a court convicts a first offender, other than a driver trainer, of a disqualifying offence, other than an offence against section 19 (1), the person is automatically disqualified from holding or obtaining a driver licence for–
(a)3 years; or
(b)if the court orders a shorter period of disqualification that is at least 6 months–the shorter period.
(2)If a court convicts a repeat offender, other than a driver trainer, of a disqualifying offence, other than an offence against section 19 (1), the person is automatically disqualified from holding or obtaining a driver licence for–
(a)5 years; or
(b)if the court orders a shorter period of disqualification that is at least 12 months–the shorter period.
NoteThe effect of the disqualification is set out in the Road Transport (General) Act 1999, s 66
(3)For the Magistrates Court Act 1930, section 208 (1) (g), an automatic disqualification from holding or obtaining a driver licence under this section is taken to be an order of the court to disqualify a person from holding or obtaining a driver licence.
The provision came into effect on 25 February 2016, after the appellant’s offence on 31 August 2014, and after he was convicted on 26 November 2016.
Consideration
I will first consider whether s 34 of the Alcohol and Drugs Act applies retrospectively. Part 22 of the Alcohol and Drugs Act makes it clear that the amendment is prospective only:
Part 22Transitional–Road Transport Legislation Amendment Act 2016
111Meaning of commencement day–pt 22
In this part:
commencement day means the day the Road Transport Legislation Amendment Act 2016, section 3 commences.
112Existing automatic driver licence disqualification
(1)This section applies if, before the commencement day, a person is automatically disqualified from holding or obtaining a driver licence under section 32 (Automatic driver licence disqualification–first offenders, s 19), section 33 (Automatic driver licence disqualification–repeat offenders, s 19) or section 34 (Automatic driver licence disqualification–offences other than s 19).
(2)Section 32, section 33 and section 34, as in force immediately before the commencement day, continue to apply to the automatic disqualification.
...
I am satisfied that s 34(3) applies only prospectively and is not relevant to the present proceedings.
The appellate jurisdiction of the Supreme Court
I will now consider whether I have jurisdiction to hear the present appeal. This was recently considered by the Court of Appeal in Burow. In that case, the offender was convicted for an offence pursuant to s 19 of the Alcohol and Drugs Act in the Magistrates Court. The Magistrate declined to reduce the automatic disqualification period and said: “I make no order in respect to the period of disqualification, being satisfied that the case falls within what can be properly described as the usual case”. The offender then appealed to this Court, where Refshauge J found he lacked jurisdiction to hear an appeal from a refusal to vary the disqualification period. The offender then appealed to the Court of Appeal on the ground that Refshauge J had been wrong in finding that he lacked jurisdiction. The appeal was dismissed by the Court of Appeal.
The Court of Appeal considered the jurisdiction of the Supreme Court to hear an appeal from a magistrate’s refusal to shorten an automatic disqualification period under ss 207 and 208 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act), and s 20 of the Supreme Court Act 1933 (ACT) (the Supreme Court Act). The offender argued that the Magistrate had made a deliberate and considered decision that the three year disqualification period had been the appropriate one. He argued that the decision had involved the exercise of discretion, referring to a number of authorities (see [15]-[30] of Burow), so as to enliven the appellate jurisdiction of this Court. The Court of Appeal then considered whether those provisions provided jurisdiction for the appeal, specifically the following, as relied upon by the offender in that case:
(a)Section 208(1)(d) of the Magistrates Court Act;
(b)Section 208(1)(g) of the Magistrates Court Act; and
(c)Section 20 of the Supreme Court Act.
In relation to the Court’s jurisdiction under s 208(1)(d) of the Magistrates Court Act the Court of Appeal said the following at [31]:
We are not persuaded s 208(1)(d) gave the court the relevant jurisdiction. As [counsel for offender] correctly said, the issue when attempting to find jurisdiction there is whether the Magistrate imposed the disqualification period. In our view what the Magistrate did was to decline to vary the period imposed by statute. It was the statute which imposed the disqualification period, not the magistrate. The fact that the magistrate consciously decided not to reduce the period of disqualification does not detract from that reasoning.
The Court in Burow also considered that s 208(1)(g) did not provide the relevant jurisdiction. It considered that the clear meaning of the statute is to provide rights to those subjected to orders by the Magistrates Court to reduce automatic periods of disqualification. In doing so the Court had regard to the principles of statutory interpretation and the explanatory statement that accompanied the amendment to s 208(1)(g).
The Court in Burow also rejected the proposition that s 20 of the Supreme Court Act gave the offender the right to appeal. The offender relied on the case of Kelly v Apps (2000) 98 FCR 101 (Kelly v Apps) to support his argument that s 20 provided a right of appeal. However, the court agreed with Refshauge J that Kelly v Apps was decided per incuriam and went on to consider that case in detail: see [41] – [58] of Burow.
I am satisfied that in the light of this judgment, it is necessary for me to consider whether the Magistrate exercised her discretion in relation to the disqualification period.
The Sentencing Remarks of the Magistrate
The appellate was sentenced on the same date as the sentence hearing took place. In relation to the issue of the disqualification period the Magistrate said the following:
In consideration of the issue of disqualification, which is an important matter for people, I’ve invited you to put before me what the impact of your loss of licence would be. You said quite frankly it will mean that you’re going to have to catch the bus to work and that your daughter who’s living away from you may have to catch the bus to see you or you to see her. That’s unfortunate. It’s a matter of inconvenience alone. It’s not a sufficient reason, it seems to me, to vary from the default period of disqualification.
...
In respect of the drug driver charge on conviction you will be disqualified from holding or obtaining your driving licence for the default period of three years from today. That is, you’ll be eligible to be relicenced on 25 November 2017.
(Emphasis added).
The appellant on appeal submitted to me that the Magistrate, in saying that, “you will be disqualified from holding or obtaining your licence for the default period of three years from today” had turned her Honour’s mind to the automatic disqualification period. The appellant then submitted in cases prior to that of Burow, some courts accepted that if a magistrate turned his or her mind to the automatic period, then it is deemed to be an order of the court. In my opinion, in the context of what her Honour had said immediately prior, that she was not going to interfere with the automatic period of disqualification, it is clear that her Honour did not intend to exercise her discretion to reduce the automatic disqualification period. It is understandable, and perfectly proper, that the Magistrate would want to impress upon the appellant the fact of the disqualification imposed by the statute, and the period of that disqualification.
There was also a faint suggestion by the appellant that the Magistrate had made an order that was for the same period as the default period. However, I do not consider that there is any merit to that submission. As I have already noted at [25], the proper interpretation of her Honour’s orders is that she did not exercise her discretion. To adopt the words of the Court in Burow, it was the statute that imposed the disqualification period, not the Magistrate. In my opinion, the proper interpretation of the remarks of the Magistrate is that when her Honour said “It’s not a sufficient reason, it seems to me, to vary from the default period of disqualification”, she had consciously decided not to reduce the period of disqualification. As the Court noted in Burow, this does not detract from the reasoning that the statute imposed the disqualification period, not the magistrate.
I am satisfied that the Magistrate did not exercise her discretion and accordingly, I have no jurisdiction to hear the present appeal.
Orders
The appeal is dismissed.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 5 July 2016 |
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