Davies v Reeve
[1991] TASSC 39
•7 March 1991
Serial No 8/1991
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Davies v Reeve [1991] TASSC 39; A8/1991
PARTIES: DAVIES
v
REEVE
FILE NO/S: LCA 109/1990
DELIVERED ON: 7 March 1991
JUDGMENT OF: Wright J
Judgment Number: A8/1991
Number of paragraphs: 17
Serial No 8/1991
List "A"
File No LCA 109/1990
DAVIES v REEVE
REASONS FOR JUDGMENT WRIGHT J
7 March 1991
This is a motion to review the sentence imposed on the respondent in the Court of Petty Sessions at Hobart on 7 November 1990. The respondent entered a plea of guilty to a charge of driving a motor vehicle on 20 May 1990 whilst alcohol was present in his blood in a concentration greater than .05%, namely .075%. The learned magistrate dealing with the case conditionally discharged the respondent and made a probation order requiring him to be of good behaviour for a period of six months and to come up for conviction and sentence if called upon during that time.
The respondent is a 26 year old pharmacist living in Hobart and working at Kingston. He receives a nett income of approximately $450 per week from this employment. His major expense is $100 for rent. It was not suggested that he is married or has any dependents. His counsel claimed however that he would be greatly inconvenienced in his profession and in travelling to and from his place of employment if he was disqualified from holding a licence. The respondent has held a driver's licence for nine years and has committed two prior speeding offences in respect of which infringement notices were issued and paid without the necessity for a court appearance.
On the day of the current offence, the respondent had attended a barbecue at National Park for a period of about 6½ hours. He was intercepted by the police on his way home and subjected to a random breath test. The respondent had consumed wine and a small quantity of port at the barbecue. He considered himself to be unaffected by liquor and said so to the apprehending police officer. The prosecutor did not claim that he was showing symptoms of intoxication. Counsel for the respondent informed the court that her client had attended at the court on some five occasions altogether and had found it necessary to engage a locum to look after his business on these occasions at a total cost of about $300.
In imposing penalty the learned magistrate said:
"Mr Reeve, in the circumstances, given your previous good character, your record as a driver which includes driving for some nine years with only two relatively minor prior convictions, given the very low reading and given the fact that you have been penalised significantly financially as a result of this offence, I propose to make a probation order against you that you be of good behaviour for a period of six months and that you appear for conviction and sentence in respect of this charge if called upon at any time during that period. In other words, there will be no conviction for this offence, but that if you were to offend again then you could be dealt with for this offence as well as for any subsequent offence."
The applicant submits:
"(1) That such penalty was manifestly inadequate.
(2) That the Learned Magistrate erred in fact and in law in that he did not have regard or sufficient regard to current sentencing practice in respect of offences under Section 6(1) of the Road Safety (Alcohol and Drugs) Act 1970.
(3) That the Learned Magistrate erred in fact and in law in that he gave insufficient weight to questions of personal and general deterrence.
(4) That the Learned Magistrate erred in fact and in law in that in all the circumstances he erred in deciding that it was expedient to release the Respondent on probation rather than to proceed to conviction and sentence."
The largely unfettered discretion enjoyed by a magistrate in sentencing an offender under the Road Safety (Alcohol & Drugs) Act 1970, has been recognized by a number of recent decisions of this Court. The principles which apply where an attempt is made to overturn such a discretion on appeal were dealt with by the Full Court in Boyd v Peters 15/1988 at 7 where, in the joint judgment of Green CJ, Cosgrove and Underwood JJ, it was said, in referring to s17(1) of the Road Safety (Alcohol & Drugs) Act 1970:
"The clear intention, manifested by the unambiguous words of s17(1), is to leave it to the discretion of the sentencer whether or not an order for licence disqualification for a period up to a maximum of three years should be made in any given case. Such a discretion must, of course, be exercised in accordance with judicial principles. Those principles 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. However, it is not appropriate to prescribe with any particularity what those circumstances are. Such a prescription, as opposed to the articulation of relevant principles, would involve a failure to recognise that each case falls for determination upon its own facts and would constitute an unjustified restraint upon a discretion expressed by the legislature to be without restraint."
Counsel for the applicant submits that in the present case the learned sentencing magistrate failed to take any, or any sufficient, account of the factors of personal and general deterrence referred to in the above passage. For example, he pointed out that if the respondent was to offend again within three years and, upon being disqualified, applied for a special hardship licence he could not properly be regarded as disentitled to such a licence as he had not been "convicted" of the offence now in question. It was submitted that accordingly the aspect of personal deterrence would be of little effect after the expiration of the probation order.
It was also submitted that the learned magistrate was not entitled to regard the offence committed by the respondent as a "trivial" offence within the meaning of s7(1)(b) of the Probation of Offenders Act 1973. Reliance was placed upon the judgment of Olsson J of the Supreme Court of South Australia in Hills v Warner (1990) 10 MVR 479 where he said (at 482 – 483):
"The expression 'trifling' is, of course, by no means unique to s 47b of the Act. There is a series of cases considering such a word appearing in a variety of contexts. It is unnecessary to dilate upon these in extenso.
In Mancini v Vallelonga (1981) 28 SASR 236, Mitchell J, in construing s 147 of the Act, expressed the views that:
. an offence is not trifling if it is a typical offence of the class prescribed;
. where the breach is deliberate it can rarely be characterised as trifling;
.an offence is trifling where it is merely technical, casual or inadvertent and there was no deliberate intention to commit a breach of the statute;
.an offence may be held trifling where there were compelling humanitarian or safety reasons for doing what was in fact done.
As the published authorities amply indicate it is quite impossible to adopt any fully definitive test of what will amount to a trifling offence, which encompasses all circumstances. However, as the above cases reveal, the general concept is clear enough.
With respect, it seems to me that the decision in Gebhardt v Dunsmore must evidence a situation close to the extreme limit to which the concept may be taken. However, in the case at bar the offence was committed on a main city street early in the evening and, on his own evidence, the respondent had not really taken any steps to check or control his intake of alcohol.
Even given that the reading was at the very minimum of the offence scale and there was no apparent impairment of driving skill, it is difficult (if not impossible) to escape the conclusion that this was very much a 'run–of–the–mill' case of the type proscribed by s47b. Moreover, to the extent that the learned magistrate took into account the effect of licence disqualification on the respondent's employment, that would appear to me to be a consideration irrelevant to the issue of whether or not the offence was trifling."
Whilst the South Australian legislation differs markedly from that in Tasmania, I think that his Honour's remarks provide a useful guide to the meaning of "trivial" in s7(1)(b) of the Probation of Offenders Act and as a consequence I cannot accept the submissions of counsel for the respondent that "trivial" means something akin to "at the lower end of the scale for offences of the kind in question". It must be borne in mind that the learned magistrate did not say that he considered the respondent's offence trivial or trifling but I think that it may be inferred from his mentioning the "very low reading" that he tended to this opinion. However I cannot conclude that in adopting this attitude his Worship demonstrated an identifiable error in his approach. In my view it cannot be said that as a matter of law he was unable to consider applying the Probation of Offenders Act, (Suckling v Cook [1969] Tas SR 152 and Cobiac v Liddy (1969) 119 CLR 257) nor can it be said that the respondent was unable to meet any of the alternative criteria embodied in s7(1)(a), (b) and (c) of the Probation of Offenders Act. Indeed counsel for the applicant did not submit to the contrary.
It is plain of course that the "rare and exceptional" test for the valid imposition of a below average penalty which I tended to suggest as appropriate in Lowe v Plaister, 36/1986, and which has been adopted in South Australia on the basis of special statutory provisions in that State (see for example, Fuss v Pocius (1957) 5 MVR 448 and Dunsmore v Trembalk (1987) 6 MVR 146) is not applicable in Tasmania. This was clearly established by the decision of the Full Court in Boyd v Peters (supra) at 5.
On the other hand, many of the cases referred to by counsel as allegedly illustrative of the proper principles to be applied when reviewing a magistrate's sentencing discretion under the Road Safety (Alcohol & Drugs) Act were concerned with a failure to impose a period of disqualification or a substantial fine and not with a situation such as the present where neither conviction, nor fine nor disqualification were imposed. It is therefore not just a question of weighing the alternatives or combinations provided for in the Road Safety (Alcohol & Drugs) Act itself, but rather a question of passing over all of the penalties specifically provided for in that Act and choosing instead the general alternatives provided for in the Probation of Offenders Act.
In Liddy v Cobiac, Bray CJ was the judge at first instance and his views were eventually endorsed by the High Court. In his judgment ((1969) SASR 6 at 10) he made the following very relevant observation:
"Section 4 of the Offenders Probation Act is a merciful provision which, in my view, has prominently in view among its objects, though not of course exclusively, the reformation of the offender. Its application, it seems to me, generally speaking, should be less ready when the charge relates to a breach of social legislation, where the preventive and deterrent aspects of punishment assume greater prominence, though I am far from denying that there are cases of this kind to which the section can properly be applied. I think, however, that it is only in rare and exceptional cases that its provisions can properly be invoked in favour of a defendant found guilty of driving under the influence. Cf per Lord Goddard LCJ in Whittall v Kirby [1946] 2 All ER 552, at 557. Though I have held that as a matter of law s. 47 of the Road Traffic Act does not take away the power to dismiss without convicting, it nevertheless contains a declaration of legislative policy which the courts should heed.
Whilst his Honour was dealing there with the more serious offence of driving under the influence of liquor, it is of interest to note that he suggests the "rare and exceptional" test as the appropriate method of gauging whether or not the lenient provisions of offenders' probation legislation should be extended to an offender in any given circumstances.
It may be thought that, because the Full Court was not dealing with the applicability of the Probation of Offenders Act, but only with the penalty provisions of the Road Safety (Alcohol & Drugs) Act itself in Boyd v Peters (supra) that decision is distinguishable in the present circumstances; but the point was not specifically argued by counsel and because of the views I have formed on the matter, I find it unnecessary to decide it.
In my opinion, this was very much a "run-of-the-mill" case (to adopt the words of Olsson J in Hills v Warner). The respondent was a young man who attended a barbecue and drank too much. He has well paid employment. It was not suggested he would lose this employment. Neither was it suggested that he would be ineligible for a special hardship licence, provided of course he can satisfy the statutory requirements. His inconvenience in travelling to and from work without a car would be no greater than the inconvenience suffered by most employed persons who lose their licences. In my opinion there was nothing whatsoever which would justify his placement in a special category of offender deserving or entitled to lenient treatment of the kind meted out.
The learned magistrate did not specifically advert to the deterrent factors mentioned in Boyd v Peters (supra) and whilst this of itself does not prove that he failed to take them into account, I am compelled to the conclusion that this is the probable reason for his imposing the penalty now under challenge. However whether or not he omitted to consider these factors I am fully persuaded that even considering the respondent's position from the most favourable perspective possible, the learned magistrate fell into error in imposing the sentence he did and that the penalty was manifestly inadequate and should be set aside.
Subject to any further submissions which counsel wish to make, I am of the view that the respondent should be convicted of the offence with which he was charged and in addition he should be fined the sum of $150 and disqualified from holding a driving licence for a period of two months.
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