Davies v Wylie
[1992] TASSC 74
•15 April 1992
Serial No 20/1992
List “A”
CITATION: Davies v Wylie [1992] TASSC 74; A20/1992
PARTIES: DAVIES, Clive
v
WYLIE, David Thomas
FILE NO/S: LCA 10/1992
LCA 11/1992
COURT: SUPREME COURT OF TASMANIA
DELIVERED ON: 15 April 1992
JUDGMENT OF: Zeeman J
Judgment Number: A20/1992
Number of paragraphs: 14
List "A"
File No LCA 10/1992
LCA 11/1992
CLIVE DAVIES v DAVID THOMAS WYLIE
and
CLIVE DAVIES v PATRICK WILLIAM GEASON
REASONS FOR JUDGMENT ZEEMAN J
15 April 1992[i]
Vehicles and traffic – Offences – Tasmania – Driving with more than prescribed concentration of alcohol in blood – What is a subsequent offence.
By complaint made by the applicant on 10 January 1992 the respondent Wylie was charged with a breach of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1). The particulars contained in the complaint alleged that on 5 January 1992 the respondent drove a motor vehicle on a public street at Brighton whilst alcohol was present in his blood in a concentration greater than the prescribed concentration, namely 0.255 grams of alcohol in 100 millilitres of blood. On 12 February 1992 the respondent appeared before a magistrate at Hobart and pleaded guilty. On 20 March 1992 the learned magistrate proceeded with the sentencing of the respondent when a police prosecutor stated the facts and counsel for the respondent put matters in mitigation. The facts, as stated, referred to a breathalyser reading of .255. Counsel for the respondent did not dispute that reading. To the contrary, she referred to that reading and put matters by way of explanation for what, on any view, was a very high reading. In those circumstances, considerations such as those which were discussed in Ferguson v Smith [1975] Tas SR 147 (NC 6) do not arise. The respondent is to be taken as having admitted not only the bare elements of the offence charged, but also the actual blood alcohol content alleged. The learned magistrate was provided with an undisputed list of the respondent's prior convictions. It appeared from that list that the respondent had twice previously been convicted of breaches of the Act, s6(1), those offences having been committed on 22 April 1972 and 23 May 1988.
By complaint made by the applicant on 16 January 1992 the respondent Geason was charged with a breach of the Act, s6(1). The particulars contained in the complaint alleged that on 31 December 1991 the respondent drove a motor vehicle on a public street at Glenorchy whilst alcohol was present in his blood in a concentration greater than the prescribed concentration, namely 0.192 grams of alcohol in 100 millilitres of blood. The respondent appeared before the same learned magistrate on 12 February 1992 when he pleaded guilty. On 20 March 1992 the learned magistrate proceeded with the sentencing of the respondent when a police prosecutor stated the facts and counsel put matters in mitigation. The facts, as stated, referred to the respondent having undergone a breath analysis resulting in a reading of .192. Again, counsel did not put the reading in issue, but, in the course of her plea in mitigation, put matters by way of explanation for the level of the reading. The learned magistrate was provided with an undisputed list of the respondent's prior convictions from which it appeared that the respondent had previously been convicted of breaches of the Act, s6(1), on four occasions in respect of offences committed on 17 December 1981, 28 February 1985, 24 September 1985 and 16 October 1985.
The Road Safety (Alcohol and Drugs) Amendment Act 1991 ("the 1991 Act") effected a number of amendments to the Act. In particular, it inserted a new s17 providing for penalties for breaches of various sections of the Act. As a result of the amending Act, which commenced on 12 December 1991, s17 is now in the following terms:
"17 – (1) For the purposes of this section –
(a) 'the Table' means the Table at the end of this section; and
(b)a person is guilty of a subsequent offence if that person has previously been convicted of an offence under section 4, 6 or 14 (5) or an offence in respect of a failure to comply with a requirement made under section 10 (4) or 10A (1).
(2)The application of this section does not extend to an offence committed before the commencement of the Road Safety (Alcohol and Drugs) Amendment Act 1991.
(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 holding or obtaining a driver's licence for a period of not less than the minimum period shown in the Table and not more than the maximum period shown in the Table.
(4) For the purposes of subsection (3) –
(a)the relevant fine, period of disqualification and term of imprisonment for a first offence specified in column 1 of the Table is, in the case of an offence under section 6, to be ascertained by reference to the concentration of alcohol in the blood of the offender as specified in column 2 of Part 1 of the Table; and
(b)the relevant fine, period of disqualification and term of imprisonment for a subsequent offence is to be ascertained by reference to the concentration of alcohol in the blood of the offender as specified in column 2 of Part 2 of the Table.
(5)Notwithstanding subsection (3), if a person who is convicted of an offence referred to in column 1 of the Table satisfies the court which convicted the person that there are special circumstances why the minimum fine specified in the Table or the minimum period of disqualification specified in the Table should not be imposed, the court may impose a lesser fine or a lesser period of disqualification.
TABLE
PART 1
FIRST OFFENCE
COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4 COLUMN 5
Section of Act Concentration Fine Period of Term of
or offence of alcohol in disqualification imprisonment
blood in grams
per millilitres of
blood
Section 6 (2) less than 0.05 Minimum 2 Minimum 3 3 months
penalty units months
Maximum 10 Maximum 12
penalty units months
Section 6 0.05 or more Minimum 2 Minimum 3 3 months
but less than penalty units months
0.1 Maximum 10 Maximum 12
penalty units months
0.1 or more but Minimum 4 Minimum 6 6 months
less than 0.15 penalty units months
Maximum 20 Maximum 18
penalty units months
0.15 or more Minimum 5 Minimum 12 12 months
penalty units months
Maximum 30 Maximum 36
penalty units months
Section 4 or Minimum 5 Minimum 12 12 months
14 (5) or failure penalty units months
to comply with Maximum 30 Maximum 36
a requirement penalty units months
made under
section 10 (4)
or 10A (1)
TABLE
PART 2
SUBSEQUENT OFFENCE
COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4 COLUMN 5
Section of Act Concentration Fine Period of Term of
or offence of alcohol in disqualification imprisonment
blood in grams
per millilitres of
blood
Section 6 (2) less than 0.05 Minimum 4 Minimum 6 6 months
penalty units months
Maximum 20 Maximum 24
penalty units months
Section 6 0.05 or more Minimum 4 Minimum 6 6 months
but less than penalty units months
0.1 Maximum 20 Maximum 24
penalty units months
0.1 or more but Minimum 8 Minimum 12 12 months
less than 0.15 penalty units months
Maximum 40 Maximum 36
penalty units months
0.15 or more Minimum 10 Minimum 24 24 months
penalty units months
Maximum 60 Maximum 72
penalty units months
Section 4 or Minimum 10 Minimum 24 24 months
14 (5) or failure penalty units months
to comply with Maximum 60 Maximum 72
a requirement penalty units months
made under
section 10 (4)
or 10A (1)
The scheme of s17 is such as to provide quite separate provisions for penalties for breaches of the Act, ss4, 6, 10(4), 10A(1) and 14(5), depending upon whether the offence is to be categorised as a "first offence" (which expression, although not defined, is to be taken as an offence which is not a subsequent offence as defined in the section), and for a person who is guilty of a subsequent offence within the meaning of s17(1)(b). In addition, the section introduces the concept of minimum penalties for each category of offence, subject to the ameliorating provisions of s17(5).
The question which falls for determination in the present appeals is whether or not the offences of which the respondents were convicted by the learned magistrate were such that each of the respondents was guilty of a subsequent offence within the meaning of s17(1)(b). The learned magistrate held that neither was guilty of a subsequent offence. The applicant seeks to challenge that conclusion by the first ground appearing in each of the notices to review. That ground is in the following terms:
"The Learned Magistrate erred in law in that in applying Section 17 of the Road Safety (Alcohol and Drugs) Act 1970 (as substituted by Act No 44/1991, Section 11) he directed himself that the Respondent was a first offender and not a subsequent offender."
Upon his conviction the learned magistrate fined the respondent Wylie the sum of $600.00 and disqualified him from holding or obtaining a driver's licence for a period of twenty months. In the case of the respondent Geason the learned magistrate fined him $750.00, disqualified him from holding or obtaining a driver's licence for a period of two years and sentenced him to a term of 28 days' imprisonment, the operation of which sentence of imprisonment was suspended on certain conditions. If each of the respondents was guilty of a first offence, then the sentences imposed were lawful, being in accordance with the provisions of Part 1 of the Table contained in s17. If a respondent was guilty of a subsequent offence, then the sentence imposed upon him was unlawful, as the provisions of Part 2 of the Table required that if a fine was imposed, it was to be of an amount not less than $1,000.00 and required the imposition of a period of disqualification of not less than twenty–four months. I observe that neither respondent suggested the existence of special circumstances for the purposes of s17(5).
The learned magistrate posed the question to be determined in these cases as being:
"... whether a person with a prior conviction for a relevant offence against the [Act] occurring before the commencement of the [1991 Act] on 12 December 1991 is to be treated when offending again after that date as being guilty of a 'subsequent' offence for the purposes of s17 of the [Act] ...".
The learned magistrate's reasons for concluding that such a person ought not to be treated as being guilty of a subsequent offence for the purposes of s17 may be summarised as follows:
(a)that the clear words of s17(2) provided that a conviction for a relevant offence which occurred prior to 12 December 1991 could not be taken into account in determining whether or not a person was guilty of a subsequent offence by operation of s17(1)(b); and
(b)that the provisions of s17 are not expressed in terms indicative of them having a necessarily retrospective effect, and therefore, according to the applicable rules of construction, should be construed as having prospective effect only.
The learned magistrate appears to have proceeded upon the basis that the reference to "an offence" in s17(2) is a reference not only to an offence for which an offender is to be sentenced in accordance with the provisions of s17, but also to a previous offence which is made relevant by s17(1)(b). I do not consider that such a construction is reasonably open. The reference to "an offence" in s17(2) must be construed as a reference to an offence, constituted by a breach of one of the sections of the Act referred to in the Table, for which an offender stands to be sentenced. If that offence was committed before the commencement of the 1991 Act, then the new s17 has no application. If it was committed on or after the commencement of the 1991 Act, then the sentencing discretion is to be exercised in accordance with the provisions of s17. Section 17 has no application to anything other than the sentencing of offenders for certain breaches of the Act. Its application in that sense is limited in that it does not apply to offences committed before the commencement of the 1991 Act. Section 17 does not, in any relevant sense, apply to offences of which an offender previously has been convicted. Taking into account for the purposes of s17(1)(b) convictions for offences committed prior to the commencement of the 1991 Act does not transgress the limitation expressed in s17(2).
The learned magistrate expressed the opinion that prima facie statutes should be construed as having a prospective operation only and that such a prima facie presumption is particularly strong in the case of penal legislation. In this context, the learned magistrate referred to the dicta of Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at p267 and of Fullager J in Fisher v Hebburn (1960) 105 CLR 188 at p194. The learned magistrate acknowledged the distinction between a statute having retrospective effect and a statute which requires that there be taken into account antecedent facts and circumstances as a basis for what it prescribes for the future. Such legislation is not of retrospective effect (see Robertson v City of Nunawading [1973] VR 819 at p824 and Geschke v Del Monte Home Furnishers Pty Ltd [1981] VR 856 at p860). Having acknowledged the distinction, the learned magistrate then expressed himself as follows:
"In my view, s17(1)(b), s17(3) and s17(4) of the [Act] as amended by the Amending Act are not concerned with past history as an indication of present fitness but rather with the consequences of a past act."
In expressing himself in that way, the learned magistrate appears to have adopted the words of Lush J in Bakker v Stewart [1980] VR 17 at p22. What his Worship attempted to convey is perhaps clarified when later in his reasons, speaking of the 1991 Act, he said that it "cannot necessarily be said to be concerned with a primary penalty for an act or to aggravate the punishment for an offence but it does, in my view, concern itself with the consequences of a past offence and it does 'affect for the worse the position in which a man already finds himself at the time when the law is actually passed'. (See Raison; Ex parte Raison (1891) 63 LTR 709 at page 710.) As such it ought, in my opinion, be construed prospectively only."
The learned magistrate erred in reaching that conclusion. At the time that the 1991 Act commenced, persons who had previously committed breaches of relevant sections of the Act either had been convicted and dealt with for their offences, or still fell to be dealt with for their offences. Where they had previously been dealt with, the 1991 Act made no provision for the imposition of any further punishment or the imposition of any further liability. In so far as they had not yet been dealt with, then s17(2) operated so as to require the disposition of any charges under relevant provisions of the Act without regard to the provisions of the new s17. Had s17(2) not been enacted, it might have been arguable that persons in the latter category would fall to be dealt with under the new s17 (see Lewis v French [1962] Tas SR 138) as s11 of the 1991 Act might be said to effect an amendment notwithstanding that it purported to repeal the former s17. The mere fact that a person had committed a relevant offence prior to the commencement of the 1991 Act had no consequences for the offender beyond making him liable to greater punishment in the event that thereafter he should commit a relevant offence. Page v Winkler (1975) 12 SASR 126 is a case which ought to be considered. In that case the respondent had been convicted of an offence of driving a motor vehicle whilst under the influence of intoxicating liquor. The relevant legislative provisions provided for differing penalties, depending upon whether an offence was a first, second, third or subsequent offence. For the purposes of determining whether an offence fell into a particular category, it was provided that "only such offences as occurred within the period of five years immediately preceding the commission of [the offence for which sentence was to be imposed] shall be taken into consideration." The respondent had a previous conviction for a relevant offence committed within the relevant period, but that offence had been committed shortly before the Act had been amended to provide for differing penalties dependent upon whether or not previous offences had been committed. As the learned magistrate correctly observed, that case may be distinguished from the present upon the basis that the statutory reference to a period of five years indicated an intent that there be taken into account any relevant offences committed during the preceding period of five years regardless of whether the amendment had been made at the time of the commission of a prior offence. Nevertheless, Hogarth J expressed himself in the following terms, at p129:
"Furthermore, the section in its amended form does not seek to impose criminal liability retroactively. It is not retroactive in that it penalises events which occurred before its enactment. It provides that such events may be taken into account in determining what is the appropriate penalty for offences committed after the re–enactment of the sub–section."
With respect, I entirely agree. That dictum is applicable to the present case. It correctly categorises the effect of s17. That section does not seek to penalise any event which occurred before it was enacted, but merely requires a court to take into account events which occurred prior to its enactment for the purpose of determining the appropriate penalty for an offence committed after the commencement of the 1991 Act. A statute does not have retrospective effect merely because it operates so that future conduct will be visited with punishment which has regard to other conduct which occurred prior to the commencement of that statute. Taking such conduct into account does not in any way affect liabilities which the law had defined by reference to those past occurrences. It does no more than define the consequences of future conduct by persons who answer to the description of having previously offended in terms different from those for persons not answering to that description.
For these reasons, I have concluded that the learned magistrate was in error in not concluding that the respondents were guilty of a subsequent offence within the meaning of s17(1)(b). I do not find it necessary to consider the other grounds of appeal. It follows that the learned magistrate's sentencing discretion miscarried and that the whole of the sentences imposed should be set aside, even though parts of them do not offend the provisions of s17. In each case there will be orders that the appeal be upheld and that the sentencing orders made by the learned magistrate be quashed. In each case there will be a consequential order that the relevant complaint be remitted to the learned magistrate to be determined in accordance with the law with a direction in law that for the purpose of determining whether an offence is a subsequent offence for the purposes of the Road Safety (Alcohol and Drugs) Act 1970, s17, regard is to be had to convictions of the type referred to in s17(1)(b) for offences committed before the commencement of the Road Safety (Alcohol and Drugs) Amendment Act 1991.
Note that the reported judgment states that the judgment was delivered on 5 August 1992: (1992) 1 Tas R 73.
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