Crawford v Atkins

[1987] TASSC 118

Serial No B48/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Crawford v Atkins [1987] TASSC 118; B48/1987

PARTIES:  CRAWFORD
  v
  ATKINS

FILE NO/S:  LCA 32/1987
DELIVERED ON:  5 November 1987
JUDGMENT OF:  Nettlefold J

Judgment Number:  B48/1987
Number of paragraphs:  9

Serial No B48/1987
List "B"
File No LCA 32/1987

CRAWFORD v ATKINS

REASONS FOR JUDGMENT  NETTLEFOLD J

5 November 1987

1. Notice to review the order of a magistrate made in the Court of Petty Sessions at Launceston on the 9th day of September 1987 whereby the magistrate upon the respondent's plea of guilty to a complaint alleging an offence contrary to s6(1) of the Road Safety (Alcohol and Drugs) Act 1970 ordered that the respondent be fined the sum of $150 with costs of $14.10 upon the ground that the learned magistrate erred in fact and in law in that in all the circumstances of the case the sentence imposed by him was manifestly inadequate.

1. The facts stated by the prosecutor were that on Saturday 22 August at 12.50am the police intercepted the respondent driving his vehicle. He was intercepted for the purpose of a random breath test. He submitted to a breath analysis and he then requested a blood test which was done and produced a reading of 0.103. The prosecutor also informed the learned magistrate that the respondent resided in Launceston, was a cleaner by occupation and earned $250 nett per week. The respondent was said to be a married man. He had no prior convictions.

1. The respondent appeared in person before the learned magistrate. He said that he agreed with what the prosecutor had said. Asked "What do you wish to say?" he replied "Not much at all, I was guilty, that's it". He added that he was 28 years of age and had been driving as a licensed driver since he was 17 years of age.

1. The learned magistrate said "I note that you have no previous convictions. That you present with a reading of .10 on blood and that you have 11 years of driving experience and considering that good record I don't feel it necessary to proceed with disqualification. You are fined $150 and you will pay the costs of $14.10. Fourteen days to pay, if not paid in that time seven days gaol."

1. The obvious starting point when deciding this appeal is the decision of the learned Chief Justice in Smith v Jessup, No 78/1986. With respect, I accept that the relevant principles are stated in that decision. It is also true that the facts of this case are similar in a number of ways to the facts of that case. If the relevant legislation had remained as it was at the time of that decision, I would have been content to dispose of the appeal on the basis that it should suffer the same fate as the appeal in that case and, in substance, for the same reasons.

1. But the applicant relies on certain amendments which have occurred since the date of the decision in Smith v Jessup, namely, 5 December 1986. It was said that the Penalty Units Act, Act No 13/87, has the effect of increasing the relevant monetary penalty from $500 to $1,000. And the Traffic Act 1925 has been amended, the relevant change for present purposes being that the power to award demerit points for this offence has been taken away.

1. Counsel for the applicant argued that the removal of the power to award demerit points for this offence indicated that Parliament considered the award of demerit points an inappropriate penalty and suspension of licence was to be "considered" instead of the award of demerit points. He also argued that the penalty imposed was substantially less than the tariff which prevailed before these recent amendments. The penalty was disproportionate to the nature of the offence and manifestly inadequate. There should always be a suspension of licence in these cases except in rare and exceptional circumstances which were not shown to exist in this case. It was submitted that insufficient weight was given to the gravity of the offence and the principle of general deterrence. And insufficient weight was given to "the intention of Parliament when it removed the power to award demerit points and increased the monetary penalty".

1. These arguments do not persuade me that the conclusion in this case should be different to the conclusion in Smith v Jessup. Having regard to the respondent's circumstances and the nature of the offence the monetary penalty imposed in this case was appropriate. The increase in the maximum fine does not persuade me that the learned magistrate was wrong in the view he expressed about suspension of licence. The removal of the power to award demerit points does not have that effect either. A sentencing option has been removed but that circumstance does not justify the conclusion that, save in rare and exceptional circumstances, there must be an order for suspension of licence. If Parliament wishes to provide that in all cases of this offence there shall be a suspension of licence for a minimum period or, save in rare and exceptional circumstances, there shall be such a suspension, nothing would be simple than for it to say so. Until it does say so, the same result cannot be reached by an unjustified interference with the decisions of magistrates. In the circumstances of this case the learned magistrate was entitled to say that no greater penalty was required by way of particular deterrent than that which he imposed. In the circumstances of this case, he was also entitled to say that no greater penalty was required by way of general deterrence. He was entitled to say that this penalty was sufficient to deter other persons whose offence and personal circumstances were similar to what was proved in this case. More particularly, he was entitled to say that he was not satisfied that a suspension of licence was necessary to deter the respondent or those other persons. On appeal, I am not entitled to say that the learned magistrate's views are unreasonable or plainly unjust.

1. For these reasons the appeal is dismissed.