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: | |
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…
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- Notaras v Earle [2016] ACTSC 146
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- [2016] ACTSC 146
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CaseChat Overview and Summary
The legal issues before the court included whether the sentencing magistrate had erred in not reducing the automatic disqualification period, and if the court had the jurisdiction to hear the appeal. The appellant's primary argument was that the sentencing magistrate had failed to properly consider the circumstances of the case, particularly the appellant's personal circumstances and the potential impact of the disqualification period on his livelihood. The court had to assess the correctness of the magistrate's decision and determine if the appeal was within the court's jurisdiction, particularly in light of the decision in Burow v The Queen [2015] ACTCA 61.
The court examined the jurisdictional aspects of the appeal, referencing the decision in Burow v The Queen, which established that the court could only hear appeals where an "order" was imposed. The court determined that in this case, no "order" was imposed by the magistrate that could be appealed against. Consequently, the court held that it did not have jurisdiction to hear the appeal. The appeal was dismissed as the court found no basis to overturn the magistrate's decision based on the jurisdictional constraints.
The court dismissed the appeal, affirming that no order was imposed by the magistrate that could be the subject of an appeal. The appeal was thus found to be outside the court's jurisdiction, and the original decision of the magistrate stood.
Orders
Orders of the court
The appeal 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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