Cassidy v Gooch [2015] QDC 275

DISTRICT COURT OF QUEENSLAND CITATION: Cassidy v Gooch [2015] QDC 275 PARTIES: JAMES WILLIAM THOMAS CASSIDY (Appellant) v CHRISTOPHER GOOCH (Respondent) FILE NO/S: 2849/15 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court of Queensland at Brisbane DELIVERED ON: 6 November 2015 DELIVERED AT: Brisbane HEARING DATE: 30 October 2015 JUDGE: Searles DCJ ORDER: The appeal is dismissed. CATCHWORDS: Drugs Misuse Act 1986 (Qld) Justices Act 1886 (Qld) Transport Operations (Road Use Management) Act 1995 (Qld) Allesch v Maunz (2000) 203 CLR 172 House v R (1936) 55 CLR 499 Kumar v Garvey [2010] QDC 249 COUNSEL: C Reid for the Appellant R Marks (Sol) for the Respondent SOLICITORS: Patrick Murphy Lawyers for the Appellant The Office of the Director of Public Prosecutions for the Respondent [1] By notice of appeal, filed on 9 July 2015 and made pursuant to s 222(2)(c) of the Justices Act 1886 (Qld), the Appellant appeals part of a sentence imposed in the Magistrates Court on 2 July 2015. -- 1 of 11 -- 2 [2] On that day he pleaded guilty to two offences:- (a) possessing dangerous drugs (oxycodone) on 9 October 2014, pursuant to s 9(1)(d) of the Drugs Misuse Act 1986 (Qld); and (b) driving a motor vehicle while relevant drug present in his blood or saliva, pursuant to s 79(2AA) of the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM). The “relevant drug” in the second charge was methamphetamine and Methylenedioxymethyl-amphetamine. [3] Upon his plea, he was placed on probation for a period of 12 months for the first charge, and disqualified from holding or obtaining a driver’s license for 5 months for the second charge. It is this latter disqualification period which is the subject of the appeal. Does the Appeal have the effect of Suspending Operation of the Disqualification Order Pending the Outcome of the Appeal? [4] At the hearing, the issue also arose as to whether, by operation of TORUM s 131(3A), the period of disqualification has been running since the filing of the notice of appeal on 9 July 2015. That sections provides:- “(3A) Where a person has, following upon a conviction, been disqualified from holding or obtaining a Queensland driver license and has commenced an appeal against that conviction, that disqualification shall, upon the commencement of that appeal, and without further order in that appeal, be suspended pending the determination of that appeal.” -- 2 of 11 -- 3 I am satisfied that that provision relates only to appeal against conviction and not against a sentence, as is the present case.1 So, I precede on the basis that the disqualification is extant and will expire on 1 December 2015. Appeal [5] To be successful, the Appellant must demonstrate error on the part of the sentencing magistrate. In House v R,2 it was said:- “It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant mattes to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the material for doing so.” Evidence Before the Magistrates Court in Report of Dr Home 5 December 2014 [6] Dr Ian Andrew Home, Clinical Forensic Officer with Queensland Health, provided a report3 dated 5 December 2014 based on documents received by him from the Police, namely:- (a) a report from Constable Gooch; (b) a Certificate of Analysis by the State Analyst, Mr Randall Nelson, dated 19 November 2014; and (c) 3 photographs. 1 Kumar v Garvey [2010] QDC 249 at [16]. 2 (1936) 55 CLR 499 at 505. see also Allesch v Maunz (2000) 203 CLR 172 at 180. 3 Although the report was not formally marked as an Exhibit, it was before the Court (10-T1.4.35), and both prosecution and defence relied upon it both at sentence and on appeal. -- 3 of 11 -- 4 [7] The information informed him that at about 2.40am on 9 October 2014 the Police learnt that the Appellant had driven a vehicle and that he exhibited the following indicia:- (a) slow speech; (b) bad breath; (c) an unco-ordinated gait; (d) red glassy eyes; (e) he looked like “death warmed up”; (f) dark circles around his eyes; (g) appeared not to have slept for a considerable time; and (h) was gaunt and malnourished. Certificate of Analysis 19 November 2014 [8] The Certificate of Analysis of the Appellant’s blood, taken at Royal Brisbane and Women’s Hospital at 3.45am on 9 October 2014, revealed evidence of the following drugs in his system:- Date Drug Quantity 20/10/2014 Blood alcohol not detected 30/10/2014 Amphetamine 0.03mg/kg 30/10/2014 Methylamphetamine 0.21mg/kg 30/10/2014 Methylenedioxymethylamphetamine (MDMA) 0.05mg/kg 30/10/2014 Aminoclonazepam 0.01mg/kg 30/10/2014 Clonazepam 0.02mg/kg 30/10/2014 Morphine >0.02mg/kg 13/11/2014 Total Morphine 0.12mg/kg 13/11/2014 Total Codeine 0.04mg/kg -- 4 of 11 -- 5 30/10/2014 Desmethylvenlafaxine 0.02mg/kg 30/10/2014 Noroxycodone 0.06mg/kg 30/10/2014 Oxycodone 0.09mg/kg Comments and Conclusions of Dr Home [9] Dr Home’s report is extensive. Reference is made to the following paragraphs:- “[10] Methylamphetamine causes impairment in the ability of a driver to safely control a motor vehicle. The observed driving behaviours seen in a group of drivers who tested positive for methylamphetamine included leaving the lane of travel, speeding, pulling out into oncoming traffic, failing to stop and erratic driving. [11] The use of methylamphetamine may be associated with prolonged wakefulness. In these circumstances, cessation of methylamphetamine use may be associated with a ‘crash’ period characterised by profound fatigue. The degree to which withdrawal fatigue develops will depend on the dosage and length of time over which the drug was used. This rebound effect is particularly dangerous in persons driving motor vehicles. [12] Therefore depending on the pattern and doses used, methylamphetamine users may exhibit a wide spectrum of signs on physical examination ranging from the classical hyper-aroused or paranoid state to a fatigued condition which is quite opposite to that which is normally associated with stimulant use. … -- 5 of 11 -- 6 [16] Methylenedioxymethylamphetamine is a designer amphetamine drug that is taken for its stimulant and hallucinogenic properties. [17] It has no medical uses and is manufactured only in 10 laboratories. It shares general stimulant properties with the other members of the amphetamine group of drugs. [18] The desired physical effects of MDMA use are increased wakefulness, a sense of energy, sexual arousal and postponement of fatigue. The accompanying psychological effects are described as a sense of euphoria, wellbeing, sharpened sensory perception, greater sociability, extraversion, heightened sense of closeness to other people and greater tolerance of their views and feelings. [19] Other physiological effects of MDMA noted in most subjects include muscle twitching, body tremors, profuse sweating, elevated pulse and blood pressure, diluted pupils, slow pupillary reaction to light, lack of balance and poor coordination. … [23] In his review on the effects of MDMA on driving, Logan noted that drivers with MDMA levels in the range of >0.05mg/L to 0.58mg/L performed poorly on field sobriety tests. The most commonly observed abnormal driving behaviour was erratic driving (especially weaving within the lane) and speeding. MDMA impairs tasks requiring information processing, concentration and coordination. [24] Clonazepam belongs to the family of drugs known as benzodiazepines. -- 6 of 11 -- 7 [25] As a class of drugs benzodiazepines exhibit anti-anxiety, hypnotic, muscle relaxant and anti-convulsent properties. They cause sedation and reduce anxiety with drowsiness, slurring of speech and muscle incoordination occurring at higher blood level. Opinion [49] The skills required to safely control a motor vehicle include adequate perception of the external environment, well-coordinated physical movements, attention, concentration, judgement, information processing and rapid and appropriate responses to external stimuli. [50] Amphetamine, methylamphetamine and Methylenedioxymethyl- amphetamine are stimulant drugs. … [52] The 0.21mg/kg of methylamphetamine and 0.05mg/kg of MDMA detected in this case have been associated with driving impairment. [53] The effect seen with stimulants depends on the pattern of use and the tolerance of the user to these drugs. Symptoms range from excessive stimulation and agitation with acute use to excessive tiredness if one is coming down off these drugs. … [56] Benzodiazephines and narcotics are CNS depressants and taken in combination the effect may be additive and have a greater influence on the ability to safely control a motor vehicle than would be the case if they were taken alone. [57] CNS depressants can interfere with the driving task by: a. reducing alertness b. reducing the powers of attention and concentration -- 7 of 11 -- 8 c. slowing thought processes d. impairing judgment e. slowing reaction times and reflexes f. reducing muscle coordination … [60] Both CNS stimulants and depressants have been detected in this case. Although Mr Cassidy is likely impaired, insufficient indicia of any substantial nature have been reported that would correlate with the effects of the drugs detected. The indicia provided may be explained by these drugs or they may simply be reflective of profound fatigue and poor self-care.” (my emphasis) No objection was taken to any aspect of Dr Home’s report and, as I have said, it was relied upon by both parties. Matters to be Considered on Disqualification [10] Section 86(2A) of the TORUM, dealing with disqualification from holding or obtaining a driver’s license, as here, provides:- “(2A) The period of disqualification must be decided by the court which, in making its decision, must have regard to… the presence of a relevant drug in the defendant’s blood or saliva, and the danger, real or potential, to the public in the circumstances of the case.” The Court is to consider two matters on the issue of disqualification. Firstly, the presence of the relevant drug in the blood or saliva. Secondly, any real or potential danger to the public presented by the circumstances of the case. -- 8 of 11 -- 9 [11] It is the Appellant’s position that the learned magistrate erred by taking into account the non-relevant drugs in the Appellant’s system, namely those I have above outlined from Dr Home’s report, other than the methylamphetamine and MDMA, the subject of the second charge. The Appellant argues that those other non-relevant drugs were irrelevant to his Honour’s decision in relation to disqualification. [12] The transcript shows that at the sentence, Mr Murphy, appearing for the Appellant, submitted that he should be punished only for the presence of the two relevant drugs, pointing to Dr Home’s report that he was unable to be clear about the impairment caused by the relevant drugs,4 a reference to paragraph 60 of that report outlined above. Further, it is now submitted that if, what the Appellant says is, the correct approach of ignoring non-relevant drugs had been adopted, the disqualification period should have been at the low end of the 1 month to 9 month range, given that the measurements of the relevant drugs was so low. [13] There is no doubt that his Honour took the non-relevant drugs into account, as is evidenced by the following statement on sentence:-5 “… In terms of disqualification, I not Mr Murphy urges a minimal disqualification. I am not prepared to accept that. I have got to take into account the other circumstances, that is, the other drug material that you had in your system in terms of your response on the night. You will be disqualified from holding or obtaining a driver’s license for five months…” [14] On the appeal, Mr Reid, for the Appellant, submitted that the second consideration for the proper exercise of the discretion under TORUM s 86(2A), namely whether 4 T1.5.34 – T1.6.1-5 5 Sentencing decision p 2, L 33. -- 9 of 11 -- 10 there was any “danger, real or potential to public in the circumstances of the case” should be confined to danger, real or potential, flowing from the presence of the relevant drug only. Discussion re: s 86(2A) [15] I am not persuaded that s 86(2A) should be so narrowly construed. Notwithstanding the absence of any specific finding against the Appellant as to the actual effect of the relevant drugs upon him, his Honour was entitled to consider the research data referred to by Dr Home, both as to the effect of relevant drugs and non-relevant drugs, when considering whether or not, and if so the extent of, any potential risk to the public from the presence in the Appellant’s body of all drugs. It seems to me that the legislature, in drafting s 86(2A), had in mind just such a case as this, where the actual real danger was not able to be determined but where all the circumstances supported a conclusion that a potential danger to the public was present. [16] The first leg of the discretion is clearly confined to the consideration of the presence of the relevant drug in the blood or saliva. However, in my view, the second leg, the assessment of danger to the public, is not so confined. Had it been so intended, it would have been a simple exercise to draft the section in the singular by referring, for instance, to “the circumstances” or “that circumstance” to confine its operation to the danger, real or potential, relating to the presence of the relevant drug only. Instead however, the plurality was used. Further, the use of the terms “real” and “potential” in describing the danger to the public reflects the intention of the legislature to differentiate between those two concepts. “Real” means:- “that is actually and truly such… actually present, not merely apparent…” As against that, “potential” mean:- -- 10 of 11 -- 11 “Possible as opposed to actual; capable of coming into being or action...”6 [17] It follows that I consider that, once the offence has been made out, in this case by a plea, the Court was entitled to take into account all evidence of the circumstances of the case in determining the appropriate penalty, in this case, disqualification. Section 86(2A) is not designed to limit such considerations on penalty to the presence of the relevant drug and any danger to the public; but, rather, ensures that those factors are part of the deliberative process when considering disqualification. The disqualification period of five months was slightly towards the higher end of the range of one to nine months, but that does not evidence any error by the learned magistrate. I consider five months was within the range in all the circumstances before his Honour. Decision [18] For the reasons outlined I am not persuaded that his Honour fell into error. The appeal is dismissed. I shall hear the parties on costs. 6 Shorter Oxford English Dictionary. -- 11 of 11 --