Van Dam Hoang v Michael William Garrett

VAN DAM HOANG v MICHAEL WILLIAM GARRETT
[2011] ACTSC 169 (7 October 2011)

Crimes (Sentencing) Act 2005 (ACT), s 17
Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 19 (1)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 10 of 2011

Judge:             Burns J
Supreme Court of the ACT

Date:              7 October 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCA 10 of 2011
AUSTRALIAN CAPITAL TERRITORY )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:VAN DAM HOANG

Appellant

AND:             MICHAEL WILLIAM GARRETT
  Respondent

ORDER

Judge:  Burns J
Date:  7 October 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is allowed.

1. The conviction and penalty imposed by the learned Magistrate is set aside.

1. The finding of guilt is confirmed and in lieu of the penalty imposed by the learned Magistrate, there will be a non‑conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT).

1. The disqualification is also set aside.

1. On 17 February 2011 the appellant appeared before Magistrate Lalor in the ACT Magistrates Court and entered a plea of guilty to one charge contrary to s 19 (1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT), alleging that as a first offender in the Australian Capital Territory on 12 November 2010 he drove a motor vehicle on a public street with level 3 alcohol in his blood.

1. The statement of facts put before the learned Magistrate reveals that at about 10.35 pm on 12 November 2010 Police were performing mobile patrols on Gungahlin Drive in the Australian Capital Territory.  At that time they saw a motor vehicle travelling on Gungahlin Drive.  Police stopped the vehicle and ascertained that the driver was the appellant now before the court.  He was subjected to a screening test which proved positive and he was then taken into custody for the purposes of undergoing a breath analysis.  The breath analysis revealed a reading of 0.088 grams of alcohol per 100 millilitres of blood, which is a level 3 reading.  However, I note that it is towards the very bottom of the level 3 range.  The appellant was subject to a blood alcohol limit of 0.05 grams of alcohol per 100 millilitres of blood.

1. The statement of facts indicated that Police were of the opinion that the appellant was heavily affected by alcohol.  His demeanour was described as being cooperative.  It is difficult to determine what weight should have been given to the opinion expressed by arresting Police that the appellant was heavily affected by alcohol.  There are no facts set out in the statement of facts which was put before the learned Magistrate which support the opinion expressed in that regard.  The reading itself, as I have already indicated, was 0.088 grams of alcohol per 100 millilitres of blood, towards the bottom end of the level 3 range.

1. Counsel then appearing on behalf of the appellant made submissions in mitigation of penalty to…