Davies v Mooy

[1991] TASSC 53

Serial No 27/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Davies v Mooy [1991] TASSC 53; A27/1991

PARTIES:  DAVIES
  v
  MOOY

FILE NO/S:  LCA 10/1991
DELIVERED ON:  10 May 1991
JUDGMENT OF:  Cox J

Judgment Number:  A27/1991
Number of paragraphs:  9

Serial No 27/1991
List "A"
File No LCA 10/1991

DAVIES v MOOY

REASONS FOR JUDGMENT  COX J

10 May 1991

1. Notice to Review a penalty of a fine of $150.00 with court costs of $21.00 for a breach of s6(1) of the Road Safety (Alcohol and Drugs) Act 1970. No disqualification for holding or obtaining a licence to drive a motor vehicle was imposed. The appellant claims that the sentence is manifestly inadequate.

1. The circumstances were that the respondent attended an office Christmas party at a Hobart hotel. She lived at Blackmans Bay and drove her car to the function which commenced at about 7.30pm. It concluded at about 12.30am, and believing herself not to have exceeded the prescribed concentration of alcohol in her blood, she decided to drive home. The learned magistrate was told that she had been very careful as to her intake of alcohol over the whole evening, and offered to drive some of her companions home before returning to Blackmans Bay. While delivering one of them home in Lindisfarne, she was subjected to a random breath test and subsequently recorded a concentration of .119%.

1. She was a single woman aged 29 years, had been driving for eleven years, and had no previous convictions of any kind. She was a legal secretary, had a net income of $356.00 per week, and regular commitments thereout of $210.00. She had a debt of $900.00, and at the time of sentence was living at Howrah. Counsel submitted to the learned magistrate that his client and other employees who saw her at the function were very surprised at the extent of the reading. It was put to his Worship that this was a classic case of miscalculation of how much she had consumed and/or its effect upon her. The learned magistrate made the following comments on passing sentence:

"Well all this shows doesn't it that it's easy to commit this offence. It doesn't take much alcohol at all to put you over the limit and you and apparently everyone else didn't think you were. Well if you've learned the lesson how easy it is perhaps that's enough on this occasion. I won't disqualify you. You had better pay a fine though I think. I fine you $150.00. ... You may have fourteen days in which to pay that amount. Default in doing so will make you liable to serve seven days' imprisonment. You might like to pass the hat round in the office when you get back."

1. It is clear from the Full Court decision of Boyd v Peters [1988] Tas SR 66 that the sentencer has an unfettered discretion in determining whether or not to impose a period of disqualification. The discretion must be exercised in accordance with judicial principles which include:

"... an obligation to take into account the notorious fact that 'drink driving' is a grave social evil carrying with it a substantial risk of causing death, serious injury and loss, that the offence is prevalent and that the imposition of penalty must take into account the need to deter not only the offender from repeating the offence, but others who might be tempted to act in the same way. It follows from the foregoing and from the fact that the prospect of licence disqualification is generally accepted to be an effective deterrent that a case of conviction for driving a motor vehicle with a blood alcohol content in excess of the prescribed minimum will usually, in the absence of mitigating circumstances, or circumstances justifying an individualised approach, call for the imposition of a period of disqualification." (At p72).

1. I think in the circumstances of this case the learned magistrate had material before him which could easily have led him to the view that the aspect of personal deterrence of the respondent did not require punishment greater than the fact of conviction and the imposition of a fine. She was, but for this incident, clearly a law–abiding and responsible citizen and driver who had not deliberately flaunted the law, but who had not realised that the quantity of alcohol she had consumed would produce a concentration of alcohol in her blood in excess of the prescribed amount.

1. However, the learned magistrate had an obligation to take into account the need to deter others in similar circumstances who might be minded to act in a similar way. Though it may be argued that the risk of punishment is not likely to deter a person who genuinely does not realise he has exceeded the prescribed concentration and who believes he is not committing an offence at all, the public perception that those who take the risk of offending under s6(1) of the Act by driving after having consumed what they may believe to be a modest amount of alcohol may expect punishment with the added sting of disqualification is, in my view, likely to deter many members of the public from doing so.

1. The emphasis placed by the learned magistrate upon the ease with which the offence can be unwittingly committed may well have obscured the requirement to give consideration to the aspect of general deterrence, although the latter is but one factor, albeit an important one, to weigh in the balance. As Cranssen v The King (1936) 55 CLR 509 makes clear, before an appeal court can interfere:

"There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may be given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound." (At pp519–520).

1. The circumstances of this case were not uncommon. Miscalculations of the kind in question often happen; the reading was not minimal; the length of conviction–free driving, though commendable, was not of such duration as to raise a strong claim for leniency, and no hardship was foreshadowed as a consequence of disqualification. It was a "run of the mill" case calling for a modest penalty which had regard to the factors I have cited from Boyd v Peters (supra). I do not think it could be said that there were circumstances justifying an individualised approach. I think the court is entitled to, and ought, infer from the nature of the sentence that the discretion did miscarry.

1. The sentence is quashed. I reimpose the same fine and court costs and order that in addition the respondent be disqualified for holding or obtaining a licence to drive a motor vehicle for six weeks.