Davies v Vincent

[1991] TASSC 57

Serial No 32/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Davies v Vincent [1991] TASSC 57; A32/1991

PARTIES:  DAVIES
  v
  VINCENT

FILE NO/S:  LCA 11/1991
DELIVERED ON:  13 May 1991
JUDGMENT OF:  Underwood J

Judgment Number:  A32/1991
Number of paragraphs:  12

Serial No 32/1991
List "A"
File No LCA 11/1991

DRIVER v VINCENT

REASONS FOR JUDGMENT  UNDERWOOD J

13 May 1991

1. On 23 January 1991, in a Court of Petty Sessions, the respondent pleaded guilty to a breach of the Road Safety (Alcohol & Drugs) Act, 1970, s6(1). The order of the court was one month's imprisonment. It was further ordered that the whole of the sentence be suspended upon condition that the respondent be of good behaviour for a period of three years and during that time not commit any offence against the Road Safety (Alcohol & Drugs) Act and "not to drive outside the terms of any driver's licence issued by the Registrar, Transport Tasmania." The applicant moves this Court for a review of this order on the grounds that:

1The learned magistrate erred in fact and in law in that in all the circumstances of the case the sentence imposed was manifestly inadequate.

2The learned magistrate erred in fact and in law in failing to disqualify the respondent from obtaining or holding a driver's licence.

1. The facts, briefly stated, were that at about 1.40am on Saturday 24 February 1990 patrolling police observed a truck leave the car park of the Bridgewater Hotel. The police stopped it. The respondent was the driver and a subsequent analysis of his breath reported the presence of .210 grams of alcohol per 100 millilitres of blood. Then counsel for the respondent told the learned magistrate that the respondent was a married man residing with his wife and children at Bridgewater. He was a self employed driller and blaster. On the day the offence was committed the respondent was drinking at the Bridgewater Hotel from about 8.45pm until 11pm. He left the hotel and got in his truck to "sleep it off". Counsel told the learned magistrate that the respondent slept until about 2am and on waking, drove approximately 30 metres when he was intercepted by the police.

1. This was the respondent's fourth conviction for driving with a concentration of alcohol in his blood in excess of the prescribed maximum. On 5 October 1981 he was fined and disqualified for three months. On 23 October 1985 he was fined and disqualified for twelve months. On 2 July 1986 he was sentenced to 14 days' imprisonment on one charge of driving with a blood alcohol concentration in excess of the prescribed maximum and a further 14 days' imprisonment, cumulative, for driving whilst disqualified. Both sentences were wholly suspended upon condition the respondent be of good behaviour for two years and not commit any offence against the Road Safety (Alcohol & Drugs) Act. He was also disqualified from holding or obtaining a driver's licence for 24 months.

1. Counsel for the respondent in the court below addressed the learned magistrate at some length about the circumstances surrounding the commission of the previous offences, the somewhat stormy matrimonial relationship between the respondent and his wife and the hardship the respondent would suffer if he was sent to prison. There is no need to traverse these matters as counsel for the applicant expressly conceded that if a substantial period of licence disqualification had been ordered, it could not be said that a sentence of one month's imprisonment, wholly suspended, reflected any error in the exercise of the sentencing discretion.

His submission was that there was no order of licence disqualification and, by reason of this omission, the penalty was manifestly inadequate. However, in the absence of any statutory requirement to impose a period of licence disqualification, the motion can only succeed if it is established that the order made resulted from error in the exercise of the sentencing discretion.

1. During the course of the plea in mitigation, the learned magistrate was told, in effect, that shortly after the commission of the offence, the Registrar of Motor Vehicles had cancelled the respondent's licence and issued a new licence "to drive for work purposes only. No alcohol allowed". In his comments on passing sentence the learned magistrate firstly expressed reasons for imposing a sentence of imprisonment but conditionally suspending its execution and then turned to the question of licence suspension. He said:

"Insofar as your licence is concerned, having regard to the fact that it's been cancelled now for some time by the Registrar of Motor Vehicles and a licence issued limited to allow you to drive only for work purposes and with no alcohol in your body, what I propose to do is to make this order ... you'll be sentenced to a period of one months imprisonment, which period of imprisonment will be wholly suspended on condition that you be of good behaviour for a period of three years and that you commit no offence against the Road Safety (Alcohol And Drugs) Act during that period. It will be a further condition of the suspension of the period of imprisonment that you not drive during that period outside the terms of any driver's licence granted to you by the Registrar of Motor Vehicles. And I do not propose, in those circumstances and in view of that order, to proceed to disqualify you from holding the very limited licence that you now hold after your original licence was cancelled by the Registrar."

1. After the making of that order the respondent did not proceed with an application that had been filed seeking an order authorising the grant of a restricted licence.

1. By the Road Safety (Alcohol & Drugs) Act 1970, s17(1) Parliament prescribed a maximum penalty of 10 penalty units or imprisonment for six months or both for a breach of s6(1). By subs.(2), those maximum penalties are doubled in the case of a breach of s6(1) committed after a prior conviction for the same offence. Additionally, s17(1) provides that upon conviction the court may order a defendant to be disqualified from holding or obtaining a driver's licence for a period not exceeding three years. By subs.(2) that period increases to six years in the case of a second or subsequent conviction. As this was the respondent's fourth conviction in just over nine years, a failure to order licence disqualification in conjunction with a sentence of one month's imprisonment, wholly suspended, would clearly be an erroneous exercise of the sentencing discretion. The relevant principles to be applied upon a consideration of licence disqualification under the Road Safety (Alcohol & Drugs) Act 1970, s17 were stated by the Full Court in Boyd v Peters 15/88 at p7 ([1988] Tas R 66) as follows:

"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."

1. There were no mitigating circumstances or circumstances justifying an individualised approach to negate the plain requirement to impose a substantial period of licence disqualification to act as a deterrent to the respondent and as a general deterrent to those minded to repeatedly drive a motor vehicle with a blood alcohol concentration in excess of the prescribed maximum.

1. The administrative action of the Registrar was a relevant matter to take into account on a consideration of the appropriate period for which the respondent ought to be disqualified from obtaining or holding a driver's licence. His act affected the extent to which the respondent had been able to drive a motor vehicle from shortly after the commission of the offence until the date of sentence. As Cox J observed in Driver v Pennicott 24/91, the action of the Registrar of Motor Vehicles, although relevant in the sense I have mentioned, did not impede the learned magistrate in the exercise of his judicial discretion. The only order that the learned magistrate could have made pursuant to s17(2) was that the respondent "be disqualified for holding or obtaining a driver's licence". The proper exercise of the learned magistrate's judicial discretion required him to consider whether or not in the circumstances of the case he should make such an order and if so for what period of time. As I have said, it is clear in the circumstances of this case that he should have made such an order and he failed to do so.

1. The order suspending execution of sentence upon condition (inter alia) that the respondent comply with the terms of any driver's licence issued by the Registrar is not to the same effect as making an order of disqualification in exercise of the power contained in s17. During the three years for which execution of the sentence may be suspended, the Registrar of Motor Vehicles is not prohibited by judicial order from acting administratively as provided in the Traffic (Miscellaneous) Regulations 1968, regs33(6) and 41(1). The Registrar's powers to cancel and issue, conditionally or otherwise, a driver's licence remained unaffected by any order made by the learned magistrate.

1. For completeness, it should be noted that the making of an order pursuant to the provisions of the Traffic Act, s36(1) was not an issue before the learned magistrate. The application for a restricted licence was not embarked upon and in any event, before an order authorising the issue of a restricted licence could be made the conditions precedent specified by subs.(4) would have to be satisfied.

1. Accordingly, the motion to review succeeds and the order of the learned magistrate is set aside. I will hear counsel as to whether I should impose sentence myself or whether the matter should be remitted back to another magistrate for the imposition of sentence.