Attard v Moore
[2017] TASSC 16
•16 March 2017
[2017] TASSC 16
COURT: SUPREME COURT OF TASMANIA
CITATION: Attard v Moore [2017] TASSC 16
PARTIES: ATTARD, Carlos Edward
v
MOORE, Luke
FILE NO: LCA 3026/2016
DELIVERED ON: 16 March 2017
DELIVERED AT: Launceston
HEARING DATE: 14 March 2017
JUDGMENT OF: Pearce J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Refusing oral fluid test – Sentence and penalty – Mandatory minimum penalty not applicable.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss 17(3)(a), 17A.
Aust Dig Magistrates [1349]
Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Refusing oral fluid test – Sentence and penalty – Mandatory minimum penalty not applicable.
Road Safety (Alcohol and Drugs) Act1970 (Tas), ss 17(3)(a), 17A.
Aust Dig Traffic Law [1158]
REPRESENTATION:
Counsel:
Applicant: G W Tucker
Respondent: S Thompson
Solicitors:
Applicant: Grant Tucker Solicitors
Respondent: Director of Public Prosecutions
Judgment Number: [2016] TASSC 16
Number of paragraphs: 30
Serial No 16/2017
File No LCA 3026/2016
CARLOS EDWARD ATTARD v SENIOR SERGEANT LUKE MOORE
REASONS FOR JUDGMENT PEARCE J
16 March 2017
This is a motion to review a sentence imposed by a magistrate, Mrs S Cure, under the Road Safety (Alcohol and Drugs) Act 1970 (the Act). The applicant pleaded guilty to one count of refusing an oral fluid test contrary to s 14(1)(b). On 5 October 2016 the learned magistrate convicted the applicant, disqualified him from driving for 12 months from that day and fined him $785. There are two grounds of appeal. The first is that the sentence is manifestly excessive. The second asserts that the magistrate erred in her application of the penalty provisions in the Act.
The motion was heard on 14 March 2017. At the conclusion of the hearing I allowed the motion. I ordered that the sentence imposed by the sentencing magistrate on complaint 34197/16 be quashed, that the complaint be remitted to the Court of Petty Sessions, and that the applicant be re-sentenced by a different magistrate. These are my reasons for those orders.
The offence and the applicant
At about 9pm on Tuesday, 26 July 2016 the applicant was driving on the Tasman Highway, St Helens. He had four adult passengers. He was pulled over by the police and asked to undergo an oral fluid test. He refused. He told the police, "I've already had one in the last couple of weeks; I don't think it's necessary."
At the time the applicant was 17 years old. He was in grade 11 at school and held a provisional driver licence. He worked part-time in a local bakery. He had no prior convictions and pleaded guilty on his first appearance. The magistrate was told that the applicant had recently moved out of home to live independently for the first time. His housemates used cannabis and he was "swept away" and became an occasional user of the drug. After being apprehended, he quickly learned his lesson and moved back home with his parents. He had ceased using the drug and was generally a sensible and personable young man. The magistrate was also told that loss of his driver licence would make it difficult for him to "get work" although he had his parents' support.
The legislation
Consideration of the motion requires analysis of the terms of the Act. The Act is, by its long title, an Act "to protect the public against the risks inherent in the driving of vehicles after consumption of intoxicating liquor or drugs; and for related purposes". It includes provisions giving power to test drivers for alcohol and drugs, to facilitate the enforcement of such powers, and for the prosecution and punishment of offenders. Some of the provisions apply to alcohol. In 2005 the Act was amended to extend its operation to prescribed illicit drugs. A person who drives a motor vehicle while a prescribed illicit drug is present in his or her blood is guilty of an offence: s 6A. A police officer may require a person who is driving a motor vehicle on a public street to undergo, at or near the place where the requirement is made, an oral fluid test: s 7B(1). An oral fluid test is a test, by means of a device of an approved type, for the purpose of indicating whether a prescribed illicit drug is present in a person's blood: s 2. Where, after requiring a person to undergo an oral fluid test, a police officer reasonably believes that a prescribed illicit drug may be present in that person's blood, whether as a result of such a test or not, the officer may require that person to submit to the taking of a sample of blood for analysis: s 7C. A person who, without reasonable excuse, fails or refuses to comply with a direction made by a police officer under s 7B to undergo an oral fluid test or a requirement to provide a blood sample under s 7C, commits an offence: respectively s 14(1)(b) and (a).
The Act also contains provisions for the detection and prosecution of alcohol-related driving offences. A person who drives while alcohol is present in his or her breath or blood in a concentration greater than the prescribed concentration, or in some circumstances while alcohol is present in any concentration, commits an offence: s 6. The Act empowers the police to require breath tests: ss 7A and 8. The Act also empowers the police to require a person to provide a blood sample or submit to breath analysis or medical examination: s 10. The offence provision for failing to comply with directions and requirements is, again, s 14.
The Act contains penalty provisions. In 1991, the Act was amended to include, in s 17, detailed provisions for penalties for certain specified offences, including driving under the influence of alcohol or a drug, s 4, or with an excessive concentration of breath or blood alcohol, s 6. A Table of Penalties is set out at the end of s 17. Section 17(3) governs the application of the Table. It reads as follows:
"(3) Subject to subsection (5), a court that convicts a person of an offence specified in column 1 of the Table —
(a) must —
(i)impose a fine of an amount not less than the minimum amount shown in the Table and not more than the maximum amount shown in the Table; or
(ii)impose a term of imprisonment for a term not exceeding the term shown in the Table; or
(iii)impose both that fine and that term of imprisonment; and
(b) must, in addition, disqualify the person from driving for a period not less than the minimum period shown in the Table and not more than the maximum period shown in the Table."
In 2005, s 6A was inserted into the Act. It created the offence of driving with a prescribed illicit drug in blood. It its original form, s 6A provided:
"(1) Subject to subsection (2), a person who drives a motor vehicle while a prescribed illicit drug is present in his or her blood is guilty of an offence.
Penalty:
Fine not exceeding 2 penalty units.
(2) A person does not commit an offence against subsection (1) if the prescribed illicit drug was obtained and administered in accordance with the Poisons Act 1971.
(3) A court that convicts a person of an offence against subsection (1) must, in addition to imposing a fine, disqualify the person from driving for a period not exceeding 3 months.
(4) When a court imposes a disqualification from driving under this section, it must suspend or cancel any Australian driver licence held by the person against whom the disqualification is imposed, as required by section 17 of the Vehicle and Traffic Act 1999."
On 1 January 2010, s 6A was amended. Subsection (1) was amended by deleting the reference to a fine as the penalty, and subss (3) and (4) were omitted. Instead, s 6A was included as an offence specified in Column 1 of the Table contained in s 17. Thus, in its present form, which applied at the time of the applicant's offence, the s 17 Table is as follows:
"TABLE
PART 1 - FIRST OFFENCE Column 1 Column 2 Column 3 Column 4 Column 5 Section of Act or offence Concentration of alcohol in breath in grams per 210 litres of breath or in blood in grams per 100 millilitres of blood Fine Period of disqualification Term of imprisonment Section 6 (2) less than 0·05 Minimum 2 penalty units Maximum 10 penalty units Minimum 3 months Maximum 12 months 3 months Section 6 0·05 or more but less than 0·1 Minimum 2 penalty units Maximum 10 penalty units Minimum 3 months Maximum 12 months 3 months 0·1 or more but less than 0·15 Minimum 4 penalty units Maximum 20 penalty units Minimum 6 months Maximum 18 months 6 months 0·15 or more Minimum 5 penalty units Maximum 30 penalty units Minimum 12 months Maximum 36 months 12 months Section 4 or 14 (5) or failure to comply with a requirement made under section 10 (4) or 10A (1) Minimum 5 penalty units Maximum 30 penalty units Minimum 12 months Maximum 36 months 12 months Section 6A(1) Not applicable Minimum 2 penalty units Maximum 10 penalty units Minimum 3 months Maximum 12 months 3 months TABLE
PART 2 - SUBSEQUENT OFFENCE Column 1 Column 2 Column 3 Column 4 Column 5 Section of Act or offence Concentration of alcohol in breath in grams per 210 litres of breath or in blood in grams per 100 millilitres of blood Fine Period of disqualification Term of imprisonment Section 6 (2) less than 0·05 Minimum 4 penalty units Maximum 20 penalty units Minimum 6 months Maximum 24 months 6 months Section 6 0·05 or more but less than 0·1 Minimum 4 penalty units Maximum 20 penalty units Minimum 6 months Maximum 24 months 6 months 0·1 or more but less than 0·15 Minimum 8 penalty units Maximum 40 penalty units Minimum 12 months Maximum 36 months 12 months 0·15 or more Minimum 10 penalty units Maximum 60 penalty units Minimum 24 months Maximum 72 months 24 months Section 4 or 14 (5) or failure to comply with a requirement made under section 10 (4) or 10A (1) Minimum 10 penalty units Maximum 60 penalty units Minimum 24 months Maximum 72 months 24 months Section 6A(1) Not applicable Minimum 4 penalty units Maximum 20 penalty units Minimum 6 months Maximum 24 months 6 months"
Section 17(3) of the Act is mandatory: Wilkie v Taylor [2015] TASFC 7, 71 MVR 239. Thus, the combined effect of s 17(3) and the Table is that a court which convicts a person of a first or subsequent offence under one of the sections listed in the Table, must impose a fine of at least the minimum amount shown in the Table, or a term of imprisonment, or both the fine and imprisonment, as well as a period of disqualification of at least the minimum specified term. In the case of a first offence against s 6A, the court must impose a fine of at least two penalty units, or a term of imprisonment, or both the fine and imprisonment, and also disqualify the person from driving for at least three months. Section 17(5) permits a court which convicts a person of an offence specified in the Table to impose a lesser fine or period of disqualification than the specified minimum, but only if satisfied that there are special circumstances.
For any offence under the Act to which s 17 does not apply, s 17A is the penalty provision. It is entitled "Penalties for other offences" and provides:
"17A — (1) A person who is convicted of an offence under this Act, other than an offence referred to in section 6A or section 17, is liable to a fine not exceeding 10 penalty units or imprisonment for a term not exceeding 6 months.
(2) A court that convicts a person of an offence referred to in subsection (1) may, in addition to any penalty imposed under that subsection, order the person to be disqualified from driving for a period not exceeding 3 years."
On the face of it, the reference in s 17A(1) to an offence referred to in s 6A is otiose. The Table to s 17 already specifies an offence under s 6A as one to which s 17 applies. The application of s 17 is confined to offences specified in Column 1 of the Table:
· s 6(2) – driving a motor vehicle while alcohol is present in the body when the person falls within a specified class;
· s 6 – driving while alcohol is present in the body in excess of the prescribed concentration;
· s 4 – driving under the influence of alcohol;
· s 14(5) – objecting without reasonable excuse to the analysis of a sample of blood or urine;
· failure to comply with a requirement made under s 10(4) (although s 10(4) refers to a direction rather than a requirement) to submit to the taking of blood for analysis or submit to a breath analysis or a medical examination;
· failure to comply with a requirement made under s 10A(1), after an accident, to submit to the taking of a blood sample for analysis (an offence under s 14(1A)); and
· s 6A – driving a motor vehicle while a prescribed illicit drug is present in the blood.
The applicant's obligation to undergo an oral fluid test arose under s 7B(1). By refusing he committed an offence by operation of s 14(1)(b). That offence is not one of the offences specified in the Table to s 17, and is not subject to the mandatory minimum penalties for which that section provides. As a result, the sentencing magistrate was not subject to any mandatory legislative requirement to impose a minimum fine and minimum period of disqualification. The penalty provision which applied to the applicant gave the sentencing court the power to impose either a fine not exceeding 10 penalty units or imprisonment for a term not exceeding six months, or both, and, in addition, disqualification from driving for a period not exceeding three years. Because s 17A applied, her Honour had power to impose, subject to the assumption that imprisonment was not appropriate for the applicant, a fine of any amount up to the maximum and a period of disqualification for any period up to the maximum, or to not impose any fine or any period of disqualification. At the relevant time a penalty unit was $157, and so the maximum fine was $1,570.
Had the applicant been sentenced for driving with a prescribed illicit drug in his blood contrary to s 6A, s 17 required, for a first offence, a minimum fine of two penalty units and a maximum fine of ten penalty units, and disqualification for a minimum of three months and a maximum of 12 months.
In sentencing a person for objecting, without reasonable excuse, to the analysis of a sample of blood or urine contrary to s 14(5), or for failing to comply with a direction to submit to the taking of a blood sample under s 10(4), s 17 requires a court, for a first offence, to impose a minimum fine of five penalty units and a maximum fine of 30 penalty units, and disqualification for a minimum of three months and a maximum of 12 months. The terms of the table applying to offences under s 14(5) and failure to comply with a requirement under s 10(4) are the heaviest mandatory penalties in the Table, the same as those provided for driving under the influence of alcohol contrary s 4 and driving with a breath or blood alcohol concentration contrary to s 6 with a reading of 0.15 or higher. A court may impose a period of disqualification and fines less than the minimum if special circumstances are established. For the reasons I have explained, none of those provisions applied to the applicant.
Ground 2
It is convenient to deal with this ground first because I am satisfied that the error it asserts is established. The ground reads:
"That the magistrate erred in fact and in law in determining that the penalty provisions pursuant to Section 17 of the Road Safety (Alcohol and Drugs) Act applied to the Applicant's offending."
Before the magistrate, after submissions in mitigation were made by counsel for the applicant, her Honour confirmed that the applicant had no prior convictions and proceeded:
"He is then subject to a 12-month disqualification; I see no need to increase that…And it's a much greater penalty by refusing to cooperate; it was a real mistake. And I take the view that he was warned. As always happens if you refuse you will be subject to a penalty. I'll stay with the minimums on this because they're quite high: 12 months unless prosecution urge otherwise, but there will be nothing about this that would make me depart I wouldn't have thought."
After the police prosecutor indicated she had no other submission the magistrate continued:
"No, thank you. I appreciate that. Twelve month disqualification and $785 fine. They're all the minimums."
It is apparent from these sentencing remarks that, at that stage at least, the magistrate misapprehended that the mandatory minimum penalties in s 17 applied to the offence she was dealing with. By concluding that disqualification for 12 months and a fine of $785, five penalty units, were the minimum penalties she could impose, her Honour fell into error.
However the proceedings did not end there. Counsel for the applicant made a further submission that her Honour "did have a discretion as to a disqualification in relation to an offence under this section". There followed an examination of the legislation. Her Honour referred to s 14(1)(b) and, in general terms, to the importance of the requirement to comply with a direction. She sought assistance from the prosecutor who indicated that she did not believe her Honour had "a discretion." Attempting to not take any of her Honour's comments out of context, her remarks at that stage of the proceedings included the following:
"There would be nothing about this which would make me exercise my discretion anyway … .
"… you're with your family; you have got good support so I can take the view that you are probably not going to be coming back for these types of offences. One would hope so because they double. If you do this again it will be two years off the road."
The remarks to which I have just referred show that the misapprehension earlier held by the magistrate had not been corrected. Her sentencing order was not changed. Her Honour's remark about "double" penalties for subsequent offenders makes clear that she still held the mistaken view that, absent special circumstances, the mandatory penalties to which I have referred applied to the applicant.
The proceeding then concluded. However, after a break, counsel for the applicant appeared before the learned magistrate again. She asked for the matter to be re-mentioned. She applied to the magistrate for an order under the Sentencing Act 1997, s 94, to correct the sentence, presumably on the basis that the court failed to impose a sentence that was in conformity with the law. It is unnecessary to determine whether there had been such a failure or whether the application was properly brought because no correction was made. In the course of the submissions which followed, a number of relevant exchanges occurred. Submissions were made by counsel for the applicant about the operation of the legislation. It was correctly submitted that s 17A, rather than s 17, was the applicable penalty provision. It was also submitted that the sentence her Honour had imposed was too harsh. The police prosecutor made the following submission:
"… whatever penalty is imposed to enforce the policy of the legislation it needs to be a more severe penalty that if he had produced that positive sample; so harsher penalty than a first offence for driving with drug in blood."
The sentencing magistrate then referred to her earlier remark that "this is not a matter which I would exercise my discretion on" and continued:
"You just want me to tinker with it and take it down from 12 months … .
I had already formed the view that it might have been open because I identified that s 14(5) is the one in the table, and this is not that, but this is refusing an oral fluid test, s 14(5) is where someone refuses to allow blood to be taken. I don't see the difference frankly. My view about it is if you refuse to provide an oral fluid test, a breath test, a blood test, it's all the same thing, you're refusing to comply with a direction, and I take the view that police put in front of someone the direction, they require them to do it, if the response was… 'I don't see that there's any point'…
I'm not going to amend my sentence, I am going to leave it as it is using the other provisions as a guideline as to what it should be. It can be nought to three years, I've picked up a first offence for a refuse and I am of the view that it's an appropriate penalty. As harsh as it is, his first offence had been a refusal to comply is a serious entry into this area of offending so I am not going to change it … ."
With great respect to the learned magistrate the approach revealed by this passage to the sentence imposed on the applicant manifests error. She first imposed a sentence on the erroneous application of s 17 and the part of the Table to that section which had no application to the applicant. The effects of that error were never properly overcome. On a number of occasions throughout the hearing her Honour referred to having "a discretion". I think that there is an unreasonable risk that, in the context in which her Honour made those remarks, she was referring to a discretion to reduce the penalty she thought she was required to impose. There was no such discretion. This was not a case of exercising a discretion to depart from the minimum penalties mandated by s 17, which in any event required the applicant to establish special circumstances. Her Honour's sentencing task was quite different. She had an unfettered sentencing discretion subject only to the provisions of s 17A. To resort to the mandatory minimum penalties specified in s 17 for other offences, even as a starting point, was an error.
Counsel for the respondent submits that the foregoing passages from her Honour's comments demonstrate that she eventually reached and adopted the correct approach to the sentence. Whilst I agree that her Honour came around to the position that the offence to which the applicant pleaded guilty was not specified in the Table to s 17, I do not agree that the effects of her original error were fully overcome such that her Honour adopted the correct approach to sentence. Of course, the proper exercise of the sentencing discretion involved taking account of the purpose of the legislation and the particular provision she was dealing with, the scheme of the Act, and the penalties for other offences in the legislation. Generally, the offence of refusing to undertake an oral fluid test without reasonable excuse is at least as serious, if not more serious, than the completed offence under s 6A of driving with an illicit drug in the body: Devine v Maher [1990] Tas R 147 per Underwood J (as he then was) at 150. Offences involving refusal of a direction or requirement properly given under the Act attract general deterrence as an especially important sentencing consideration. However her Honour's comparison with the other offences involving refusal to comply with a requirement or direction demonstrates that the effects of her original error continued. She remarked that she saw no difference between the various offences to which she referred: "… if you refuse to provide an oral fluid test, a breath test, a blood test, it's all the same thing". In fact, there was very good reason to distinguish carefully between them. Parliament saw fit to make some of the offences subject to the mandatory minimum penalties and to exclude others from the operation of s 17. The magistrate specifically mentioned a refusal to allow a sample of blood to be taken. She incorrectly referred to s 14(5) as being the relevant provision. The correct provision is s 10(4), non-compliance with which is made an offence by other parts of s 14, along with failure to comply with a direction to submit to a breath analysis or medical examination. The legislative scheme shows that such a refusal involves different considerations, which serve to explain why it is included amongst those offences attracting the harshest mandatory penalties. It is easy to understand why. Those provisions apply to persons who have become liable to submit by the operation of other provisions in the Act, and only if the person is at a place where the sample, analysis or examination can be undertaken. A refusal in such circumstances involves greater culpability. Consideration of s 14(5), which deals with the objection to analysis of blood already taken, involves similar considerations sufficient to distinguish it from offences such as the one to which the applicant pleaded guilty. For some reason not explained, the police officer who directed the applicant to submit to the oral fluid test, which the applicant refused, did not then require the applicant to submit to the taking of a sample of his blood for analysis. That is so even though the applicant's refusal to undertake an oral fluid test would have been reasonable grounds for a belief that a prescribed illicit drug may have been present in his blood and thus grounds for the requirement to submit to the taking of a sample: s 7C. The obligation to submit to the taking of a sample may then have been enforced by the making of a direction under s 10(4). As I have attempted to explain, had the applicant refused to comply with such a direction he would have committed a different offence involving greater culpability and attracting the harshest mandatory penalties in s 17.
Her Honour also referred, by way of comparison, to the refusal to comply with a requirement by a police officer to undertake a breath test. Section s 7A is the applicable provision. It is an offence to so refuse: s 14(1)(a). It is a proper comparison. A person who so refuses is likely to become subject to submit to a breath analysis, the taking of a blood sample or a medical examination. However, again, Parliament has not included that offence in the offences specified in s 17, and thus it is to be distinguished from the offences which are so specified.
In summary, I am satisfied that the sentencing magistrate eventually became aware that the sentence she originally imposed upon the applicant was imposed on the erroneous assumption that the mandatory penalties in s 17 applied to him. However, I am also satisfied that the effects of the error were never sufficiently overcome so as to ensure that the applicant was justly sentenced in accordance with the law. I concluded that her Honour's sentencing discretion, fettered only by s 17A of the Act, was never properly exercised. This ground is made out.
Counsel for the respondent submitted that, if I were to be satisfied of error, that I should nevertheless dismiss the appeal under the Justices Act 1959, s 110(2)(ab). It is submitted that there has been no miscarriage of justice because the sentence is "not manifestly excessive". The submission misapprehends the function of this Court when satisfied of the type of specific error which has been identified. I think that, in light of the manner in which the original sentencing hearing unfolded, the proper course is to set aside the sentence imposed and remit the matter for sentence before another magistrate.
Ground 1
This ground asserts that the sentence is manifestly excessive. Because of my conclusion that ground 2 is established, I do not intend to deal with ground 1. Because the applicant will be re-sentenced by a different magistrate, I do not think that it is necessary or desirable to say anything further about sentence beyond what I have already said in the course of these reasons.
Conclusion and orders
For those reasons I allowed the motion, quashed the original sentence and ordered that the applicant be re-sentenced by another magistrate.