Davis v Howley
[2003] NTSC 6
•25 February 2003
Davis v Howley [2003] NTSC 6
PARTIES:STUART AXTELL DAVIS
v
RACHEL JANE HOWLEY
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA 4/2002 (20119189)
DELIVERED: 25 February 2003
HEARING DATES: 20 January 2003
JUDGMENT OF: THOMAS J
CATCHWORDS:
APPEAL - JUSTICES -Appeal against sentence - drive exceed 0.08% - interpretation of s 39(1)(e) of the Traffic Act 1999 (NT) - whether the offence against s 19(2) was a ‘subsequent offence’ for the purposes of s 39(1)(e) - whether sentence manifestly inadequate - Justices Act 1928 (NT)
Traffic Act 1999 (NT), s 19(2), s 32(1)(a)(i), s 39, s 49
Traffic Regulations 1999 (NT), s 9
Sentencing Act 2002 (NT), s 78AJonathan Patterson v Robert Materna [1996] NTSC 64, Schluter v Trenerry (1997) 117 NTR 6, Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25, Collman v Territory Insurance Office [2002] NTSC 8, Rivera v Maher (1992) 17 MVR 370, applied.
Ragett, Douglas & Miller (1990) 50 A Crim R 41, R v Nagas (1995) 5 NTLR 45, R v Tait (1978) 46 FLR 386, Everett v R and Phillips v R (1994) 124 ALR 529, referred to.REPRESENTATION:
Counsel:
Appellant:A. Elliott
Respondent: S. Cox
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent: Northern Territory Legal Aid Commission
Judgment category classification: C
Judgment ID Number: tho200302
Number of pages: 20
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINDavis v Howley [2003] NTSC 6
No. JA4/02 (20119189)
BETWEEN:
STUART AXTELL DAVIS
Appellant
AND:
RACHEL JANE HOWLEY
Respondent
CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 25 February 2003)
This is a Crown appeal from a decision of a stipendiary magistrate with respect to the interpretation of s 39(1)(e) of the Traffic Act and subsequent orders made by the learned stipendiary magistrate on 10 December 2001.
The charges faced by the respondent in the Court of Summary Jurisdiction, a chronology of the respondent’s history of offences under the Traffic Act and the sentence imposed by the learned stipendiary magistrate have all been very usefully summarised by Mr Elliott counsel for the appellant in his written Outline of Submissions:
“1. The Respondent faced two sets of charges, both of which were dealt with by His Worship Mr. McGregor SM on 10 December, 2001:
Charges for Case No. 9900031
1.On the 1st day of January 1999 at Palmerston in the Northern Territory of Australia drove a motor vehicle, namely Toyota sedan NT 472-302, on a public street, namely Stuart Highway, while having a concentration of alcohol in your blood equal to 80 milligrams or more of alcohol per 100 millilitres of blood, namely, 90 milligrams of alcohol.
Contrary to Section 19(2) of the Traffic Act.
Charges for Case No. 20119189
1.On the 8th day of December 2001 at Humpty Doo in the Northern Territory of Australia drove a motor vehicle, namely Toyota Hilux NT 598-253, on a public street, namely Girraween Road, while having a concentration of alcohol in your blood equal to 80 milligrams or more of alcohol per 100 millilitres of blood, namely, 167 milligrams of alcohol.
Contrary to Section 19(2) of the Traffic Act
2.On the 8th day of December 2001 at Humpty Doo in the Northern Territory of Australia drove a motor vehicle, namely Toyota Hilux NT 598-253, on a public street, namely Girraween Road, whilst not being the holder of a licence to do so.
Contrary to Section 32(1)(a)(i) of the Traffic Act.
3.On the 8th day of December 2001 at Humpty Doo in the Northern Territory of Australia being the driver of a motor vehicle, namely Toyota Hilux NT 598-253, on a road, namely Girraween Road, when requested by a member of the Police Force to provide your personal particulars, did give false information.
Contrary to Regulation 9(4) of the Traffic Regulations.
CHRONOLOGY
30 December 1992
Respondent was convicted of an offence contrary to section 19(2) of the Traffic Act, arising from the fact that she had previously driven a motor vehicle on a public street with a concentration of alcohol in her blood of 0.173%
1 January 1999
Respondent committed a further offence contrary to section 19(2) of the Traffic Act. She drove a motor vehicle on a public street with a concentration of alcohol in her blood of 0.09%.
No ‘immediate suspension notice’, pursuant to section 20A of the Traffic Act was given to the respondent in respect of the offence committed by her on 1 January 1999.
8 December 2001
Respondent committed a further offence contrary to section 19(2) of the Traffic Act. She drove a motor vehicle on a public street with a concentration of alcohol in her blood of 0.167%.
9 December 2001
An ‘immediate suspension notice’, pursuant to section 20A of the Traffic Act, was given to the respondent in respect of the offence committed on 8 December 2001
10 December 2001
Respondent appeared in the Court of Summary Jurisdiction sitting in Darwin and pleaded guilty to the offences committed on 1 January 1999 and 8 December 2001
10 December 2001
In respect of the offence committed on 1 January 1999, the presiding Magistrate disqualified the respondent from holding a license for 12 months, commencing on 10 December 2001.
10 December 2001
In respect of the offence committed on 8 December 2001, the respondent was disqualified from holding a license for 2 years and 6 months, commencing on 10 December 2001.
At the conclusion of the evidence, his Worship imposed the following sentences:
Charges for Case No. 9900931
1. On the 1st day of January 1999 at Palmerston in the Northern Territory of Australia drove a motor vehicle, namely Toyota sedan NT 473-302, on a public street, namely Stuart Highway, while having a concentration of alcohol in your blood equal to 80 milligrams or more of alcohol per 100 millilitres of blood, namely, 90 milligrams of alcohol
Contrary to Section 19(2) of the Traffic Act.
Penalty Imposed
$400 fine
$20 victims levy
In default, 8 days imprisonment
12 months disqualification of motor driver’s licence
Charges for Case No. 20119189
1. On the 8th day of December 2001 at Humpty Doo in the Northern Territory of Australia drove a motor vehicle, namely Toyota Hilux NT 598-253, on a public street, namely Girraween Road, while having a concentration of alcohol in your blood equal to 80 milligrams or more of alcohol per 100 millilitres of blood, namely, 167 milligrams of alcohol
Contrary to Section 19(2) of the Traffic Act.
Penalty Imposed
$700 fine
$20 victims levy
In default, 14 days imprisonment
2 years and 6 months disqualification of motor driver’s licence starting from 10 December, 2001.
2. On the 8th day of December 2001 at Humpty Doo in the Northern Territory of Australia drove a motor vehicle, namely Toyota Hilux NT 598-253, on a public street, namely Girraween Road, whilst not being the holder of a licence to do so
Contrary to Section 32(1)(a)(i) of the Traffic Act.
$250 fine
$20 victims levy
In default, 5 days imprisonment
3. On the 8th day of December 2001 at Humpty Doo in the Northern Territory of Australia being the driver of a motor vehicle, namely Toyota Hilux NT 598-253, on a road, namely Girraween Road, when requested by a member of the Police Force to provide your personal particulars, did give false information
Contrary to Regulation 9(4) of the Traffic Regulations
$300 fine
$20 victims levy
In default, 6 days imprisonment.
The appellant now appeals against the length of the period of disqualification imposed by the learned stipendiary magistrate on the following grounds:
“1.His Worship erred in law in disqualifying the respondent from holding a license for a period of 2 years and 6 months in respect of the offence committed by her (contrary to section 19(2) of the Traffic Act) on 8 December 2001.
2.His Worship erred in law in failing to disqualify the respondent from holding a license for a period of not less than 5 years and 364 days, commencing on 10 December 2001, in respect of the offences committed by the respondent (contrary to section 19(2) of the Traffic Act) on 1 January 1999 and 8 December 2001.
3.His Worship erred in law in failing to disqualify the respondent from holding a licence for a period, being not less than 4 years and 364 days commencing on 10 December 2001, in respect of the offence committed by her (contrary to section 19(2) of the Traffic Act) on 8 December 2001.
4.The total period of time for which His Worship disqualified the respondent from holding a license in respect of the offences committed by her (contrary to section 19(2) of the Traffic Act) on 1 January 1999 and 8 December 2001, was manifestly inadequate.”
It is the submission of Mr Elliott, counsel on behalf of the appellant, that the scheme imposed by the Traffic Act required:
(a)The imposition of a minimum 12 month period of disqualification for the offence committed on 1 January 1999.
(b)The imposition of a minimum period of disqualification of five years for the offence committed on 8 December 2001.
It is the contention on behalf of the appellant that a minimum 12 month disqualification was required for the offence committed on 1 January 1999 because that offence was a “subsequent offence” for the purposes of s 39(1)(b) of the Traffic Act.
(a)There was an offence committed against s 19(2) in 1992.
(b)The respondent had previously been found guilty of that offence, viz on 20 December 1992.
(c)This offence did not fall within s 39(1)(e).
As there had been no “immediate suspension notice” given to the respondent in respect of that offence, it was necessary for that disqualification period to commence on 10 December 2001.
In Johnathan Patterson v Robert Materna [1996] NTSC 64, Mildren J stated at par 6:
“It seems clear that it is the conviction which brings about the cancellation and that consequently, in the absence of any specific statutory power to order otherwise, the period of cancellation commences from the time of the conviction.”
Mr Elliott on behalf of the appellant argues that a minimum period of five years was required for the offence of Drive Exceed .08 committed on 8 December 2001 because there was an offence against s 19(2) “committed within 3 years” which took the matter within the scope of s 39(1)(e) of the Traffic Act.
It is relevant to set out the provision of s 39 of the Traffic Act:
“ (1) Where a court finds a person is guilty of an offence against a section specified in Column 1 of Schedule 1, the person's licence is, by force of the finding of guilt, cancelled and the person is disqualified from holding a licence –
(a)for the first offence, for the period specified in column 3; or
(b)for the second or subsequent offence, for the period specified in column 4,
of that Schedule opposite the relevant section in Column 1, or such longer period as the court thinks fit, but if the finding relates to –
(c) – (d) [Omitted]
(e)an offence against section 20, or an offence in which the concentration of alcohol in the person's blood is equal to or more than 150 mg of alcohol per 100 ml of blood, committed within 3 years after committing an offence against section 19(2) for which the penalty was that specified in section 19(3)(a)(ii) or (b) or against section 20, the person's licence is, by force of the finding, cancelled for such period, being not less than 5 years, as is fixed by the court and the person is disqualified from holding a licence for that period; or
(f)an offence against section 19(1) or (2) or 20 committed by a person referred to in section 19(9)(b)(i) or (iii), the person's licence is, by force of the finding, cancelled for such period as is prescribed in Schedule 1 in relation to an offence of that kind or such longer period as the court thinks fit, and the person is by force of this section disqualified from obtaining a licence to drive a vehicle referred to in section 19(9)(b)(i) or (iii) for a period of 5 years.
(2) For the purposes of this section –
(a)[Omitted]
(b)a reference to a second or subsequent offence includes, in addition to an offence which under section 49(2) is to be read as a second or subsequent offence, a finding of guilt (whether or not resulting in an order to dismiss a charge) made under section 4(1)(b) of the Criminal Law (Conditional Release of Offenders) Act in respect of a person charged with an offence against any section referred to in section 49(2); and
(c)the period during which a person is disqualified from holding a licence in respect of an offence against section 19(2) shall be ascertained by reference to the concentration of alcohol in the blood of the offender as specified in Column 2 of Schedule 1.
(3) A court by which a person is found guilty shall, at the time of making the finding, specifically find that the offence to which the finding of guilt relates is the first, second or subsequent relevant offence for the purposes of subsection (1)(a) or (b).
(3A) Where a person, who was disqualified from driving a motor vehicle under section 20A(4), is in respect of the same offence disqualified from holding a licence under this section, the court must make an order that the period of disqualification from holding a licence under this section is the period that equals the period of disqualification imposed under this section less the actual period for which the person was disqualified from driving under section 20A.
(4) The court shall cause notice of a being found guilty referred to in subsection (1) and its finding under subsection (3) to be forwarded to the Registrar.
On 10 December 2001 the respondent had entered a plea of guilty to the charge of Drive Exceed 0.8 per cent on 1 January 1999.
The agreed facts on this charge are set out on p 4 of the transcript of proceedings before the learned stipendiary magistrate as follows:
“… at 10.30 in the evening of Friday 1 January, 1999 the defendant drove her motor vehicle, a Toyota sedan inbound along the Stuart Highway at Palmerston, when she was apprehended by police near the intersection of Temple Terrace.
While speaking to the defendant, police noted the smell of liquor on her breath. She stated she’d had some ‘rums’ at home that night and was taking her car to Palmerston to catch a taxi.
She was arrested for the purpose of a breath analysis and the subsequent breath analysis returned a reading of 0.090%”
On these agreed facts his Worship proceeded to find the offence proved.
On the same date i.e. 10 December 2001, the respondent entered a plea of guilty to the charge of Drive Exceed .08 per cent on 8 December 2001.
The agreed facts on this charge are set at pp 4 - 5 of the proceedings before the learned stipendiary magistrate as follows:
“… And in relation to the other matter Your Worship, at about 5 past 9 in the evening of Saturday 8 December this year, the defendant was driving a Toyota Hilux on Girraween Road at Humpty Doo when she was directed to enter a random breath testing station.
The defendant was observed to have an open VB can in a stubby holder in the car. She stated that she’s been - or indicated that she’d been consuming beer in the last 15 minutes and she was directed to wait for some time.
She was required to supply her name to police, but she gave her name as Joanne Binder (?) with the date of birth in 1969 and address at Currawong Drive in Howard Springs.
When asked if she’d been drinking tonight, she replied just beer, Melbourne and two VB and she stated she was driving to a friend’s place on Power Road and her friend’s bogged.
The defendant was unable to produce a driver’s licence with the name provided. A check indicated that the birth date provided was indicated. She was later subjected to a roadside breath test and arrested for the purpose of breath analysis.
It was noted by police that her breath smelt of liquor and she appeared unsteady on her feet when she got out of the car. Subsequent breath analysis form was prepared and when asked her full name, she replied Joanne Binder and again gave the address at Currawong Drive, Howard Springs.
The breath analysis took place and provided a reading of 0.167% and whilst being processed, a driver’s licence in her own name was obtained from the bag carried by the defendant. She initially denied being Rachel Howley until identifying tattoos were checked and then she said, ‘I might as well admit it’.
When asked the reason for supplying a false name, she stated an obvious reason and subsequently a check indicated a warrant of apprehension in failing to appear in respect of the other matter.
The defendant’s driver’s licence had expired on 1 November 2001 and when asked if she had reason for driving on an expired licence, she replied, ‘Is it, I didn’t realise it was’. The defendant was then processed and charged.
At the time of the offence, Girraween Road was a public street and was open to and used by the public. The traffic was moderate and driving conditions good. There were no passengers in the vehicle and those are the facts sir.”
On the basis of these agreed facts the learned stipendiary magistrate found the second offence of Drive Exceed .08 proved together with the other two charges arising from the same incident to which the respondent had entered a plea of guilty.
The prosecutor in the Court of Summary Jurisdiction had submitted the learned stipendiary magistrate should apply the five year period of disqualification with respect to the offence of Exceed .08 committed on 8 December 2001 on the basis that it was within three years of the offence of Exceed .08 committed on 1 January 1999. Effectively this would mean the respondent should have been disqualified for at least six years with respect to the two offences.
The learned stipendiary magistrate did not accept this submission but rather considered that a proper interpretation of the Traffic Act was that he impose at least 12 months disqualification for the offence committed on 1 January 1999 and at least 18 months for the offence committed on 8 December 2001.
Counsel for the respondent referred to the decision of Martin CJ in Schluter v Trenerry (1997) 117 NTR 6. In that matter Martin CJ was dealing with an appeal from a magistrate who had sentenced the appellant to periods of imprisonment for property offences to which he entered a plea of guilty on the same day but which had been committed on different dates. A cumulative sentence was imposed under s 78A of the Sentencing Amendment Act (No. 2) 1996 (NT). Martin CJ allowed the appeal on the ground that his Worship erred in law in his interpretation of s 78A(2) in that a finding of guilt on the same day as a separate and later finding of guilt does not count for the purposes of a ruling that the offender had once before been found guilty of a property offence. Martin CJ stated at p 8:
“The theory is that the appropriate lesson will have been learnt on the first or subsequent occasion upon which the offender is dealt with by the court, and he or she, having suffered the punishment, will then be deterred from offending in like manner again. The objective of deterrence, based upon escalating periods of actual imprisonment, would be open to grave doubt, if, when before a court for the first time, an offender would be liable to incarceration for a period in excess of that applicable for a first finding of guilt, simply because he or she then stood charged with more than one property offence which happened to be joined on separate informations. The justification for increasing the term of imprisonment on the second finding of guilt would be missing as the offender would not have been previously subjected to punishment aimed at deterrence. There would be no opportunity for the multiple offender, not previously charged, to become aware of the certainty of the severity of punishment for the proscribed criminal behaviour.
If it be right that imprisonment is a deterrent for offending, then it could not have been the intention of the parliament that an offender should feel the full weight of a mandatory term of compulsory imprisonment, unless the offender had first passed through the previous stage of punishment.”
In the matter before this Court, Mr Elliott seeks to distinguish the matter of Schluter v Trenerry (supra) on the basis that that case dealt with different legislation and a different formulation of words.
I accept that there is a difference in the wording of the two pieces of legislation. Nevertheless, I consider the principle stated by Martin CJ and quoted above applies equally to the provisions of s 39(1)(e) of the Traffic Act.
Counsel for the appellant argues:
“20. Section 49 applies only in respect of subsections like subsection 39(1)(b) which employs completely different words to subsection 39(1)(e).
21.Whereas subsection 39(1)(b) and section 49 both refer to ‘second or subsequent offence’, subsection 39(1)(e) refers to ‘an offence … committed within 3 years after committing an offence against section 19(2)’.
22.As a consequence, this court should conclude that parliament intended subsection 39(1)(e) to fall outside section 49 and intended it to operate in a completely different way to subsections like subsection 39(1)(b).
23.The focus in subsection 39(1)(e) is on the offence, not the conviction. Subsection 39(1)(e) is intended to apply where there is a prior offence, not a prior conviction.
24.If it was intended that the conviction also be prior, then the same words as employed in subsection 39(1)(b), which would draw in section 49, would have been utilised.
Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25
Collman v Territory Insurance Office [2002] NTSC 8 per Riley J at paragraph 13”
I set out hereunder s 49 of the Traffic Act:
“ (1) For the purposes of this Act, a reference to a second or subsequent offence against a provision of this Act (other than section 19(1), (2) or (4) or 20), shall be read as a reference to an offence committed against that provision by a person who has previously been found guilty of –
(a)that offence; or
(b)a similar offence against the Traffic Act as in force immediately before the commencement of this Act.
(2) For the purposes of this Act, a reference to a second or subsequent offence against section 19(1), (2) or (4) or 20 shall be read as a reference to an offence committed against that provision by a person who has previously been found guilty of –
(a)that offence;
(b)an offence against any of those subsections or section 20; or
(c)any offence against section 8(1), (2) or (4) or section 8A of the Traffic Act as in force immediately before the commencement of this Act.
(3) In this section, a reference to an offence being committed against a provision includes a finding of guilt in relation to the offence.”
I do not consider that this Court should conclude that parliament intended s 39(1)(e) fall outside s 49 and intended it to operate in a completely different way to s 39(1)(b).
Ms Cox, counsel for the respondent, submits that although the relevant statutory provisions in Schluter v Trenerry referred to “once before been found guilty” rather than “after committing an offence” the decision is based on a purposive approach to statutory construction; and applies well established principles.
In Rivera v Maher (1992) 17 MVR 370, Underwood J held that “subsequent offence” in s 17(1)(b) of Road Safety (Alcohol & Drugs) Act 1970 (Tasmania) means an offence in respect of which a person has been convicted previous to the commission of the offence in respect of which he appears for sentence. At p 372 Underwood J enunciated the principle as follows:
“However, the issue on this motion is one of statutory interpretation. The question is whether a person is guilty of a subsequent offence if that person has:
(a)previous to the hearing in respect of which sentence is about to be passed; or
(b)previous to the commission of the offence in respect of which sentence is about to be passed;
been convicted of a relevant offence. As the Road Safety (Alcohol and Drugs) Act is a penal statute a person against whom it is sought to enforce a penalty is, generally speaking, entitled to the benefit of any doubt which might arise on its construction. This is well settled law: see London County Council v Aylesbury Dairy Co [1898] 1 QB 106; R v Chapman [1931] 2 KB 606; London and Country Commercial Properties Investment v Attorney-General [1953] 1 WLR 312. In O’Hara v Harrington [1962] Tas SR 165, Burbury CJ considered the meaning of the expression ‘on his second conviction for such an offence” (drunken driving etc, in the Traffic Act 1925 (Tas), s 41(2)). His Honour referred to a passage from the judgment of Hodges J in O’Connor v Bini and concluded his reasons for judgment at 169:
‘It may be thought to be anomalous that if a man commits the offence of drunken driving and then repeats the offence before being convicted of the first offence he escapes the increased minimum statutory penalty in respect of his second offence. But Lord Coke, that great seventeenth century judicial defender of the rights of the individual, said over 3 centuries ago that a man may not lawfully be subjected to an increased statutory penalty as for a second offence unless he had deliberately broken the law again after being convicted and receiving punishment for a first breach of it: 2 Inst 468. The law has been taken to be so settled ever since.
‘This 3 century old canon of construction of penal provisions of this kind is broadly based on principle and does not depend upon the precise language used in a statute. It ought not to be excluded unless the legislature has plainly said so. The variations in the statutory expressions in the Traffic Act 1925 to which I have referred are I think entirely insufficient to exclude the application of the rule to any of the sections I have quoted.’
A month earlier, Burbury CJ considered the same question in relation to the statutory expression ‘second or subsequent offence’ in the Traffic Act s 37(4), (unlawful use of a motor vehicle). His Honour applied the principle later set out more fully in O’Hara v Harrington observing (at 2) that Lord Coke’s view ‘has never been departed from’: see also Carter v Denham [1984] WAR 123.”
Counsel for the appellant argues that in s 39(1)(e) of the Traffic Act NT the legislature employed different words. It is not appropriate to look for a prior conviction but the prior commission of an offence. Mr Elliott contended that these words were chosen by the legislature in preference to those subject to a long line of authorities including Rivera v Maher (supra). It is the appellant’s case that the trigger to the application of s 39(1)(e) is the commission of the offence not the conviction. The magistrate was satisfied a previous offence had been committed and accordingly s 39(1)(e) of the Traffic Act was applicable.
I do not accept these submission on behalf of the appellant.
The principle established in the authority two of which I have quoted from, is the same whether the words used be conviction or offence. In my opinion, s 39(1)(e) does not change this well established principle.
Section 39 of the Traffic Act is a penal statute. I agree with the argument advanced by Ms Cox, counsel for the appellant, that if the legislature intended the effect that the Crown contend for then this would have been stated very clearly in the provisions of the Traffic Act, in view of the long line of authorities establishing the principle referred to by Martin CJ in Schluter v Trenerry (supra) and Underwood J in Rivera v Maher (supra).
The appellant has put forward what is referred to as a second justification for applying subsection 39(1)(e).
On 7 April 1999 the respondent had entered a plea of guilty before another magistrate to the charge of Drive Exceed .08 on 1 January 1999. The facts had been read, the offence was found proved. A record of prior convictions was tendered. The respondent disputed the accuracy of this record. The magistrate on that occasion adjourned the matter part heard to 21 April and again to 30 April 1999. On 30 April 1999 there was no appearance of the respondent. A Warrant of Apprehension issued. Nothing further occurred until 10 December 2001 when the matter commenced afresh before Mr McGregor SM who proceeded to deal with the respondent with respect to all the outstanding offences.
It is the submission on behalf of the appellant that from a factual point of view, there was a clear basis for saying that when the respondent committed the offences in December 2001 she had within three years beforehand pleaded guilty to a like offence which a magistrate found proven, even though he did not then proceed to sentence because of a dispute about prior convictions (which were later admitted).
Ms Cox, on behalf of the respondent, submits that when the matter proceeded part heard before another magistrate in April 1999, there is no evidence the respondent was told what the penalty would be or what could occur. Further, it is the submission of counsel for the respondent that the earlier proceedings in April 1999 are now void because Mr McGregor SM had commenced the matter afresh and a plea of guilty to the offence committed on 1 January 1999 was made before him. I agree that re-commencement of the matter on 10 December 2001 would effectively void the earlier proceedings which were before Mr Loadman SM and never completed because of the respondent’s failure to appear.
If I am wrong in finding the earlier proceeding in April 1999 void and of no effect, I would nevertheless consider that s 39(1)(e) does not apply because the respondent had not been convicted and received punishment for the breach of law. The principle expounded by Martin CJ in Schluter v Trenerry (supra) to which I have earlier referred, would still be applicable as the respondent had not received the punishment which would be expected to deter her from further offending.
I note that in Schluter v Trenerry Martin CJ made reference to the situation that arose in this case when he states at p 9:
“All this implies that apart from the finding of guilt, the court has also proceeded to convict and sentence the offender as required. Clearly, if a finding of guilt only has been made, and the court has not moved to the next stages of the process, perhaps waiting on a pre-sentence report or further submissions, the full effect of the compulsory imprisonment regime will not have been brought home to the offender. This case does not raise that point for consideration, but it is an aid to the interpretation of the words in question to recognise that the whole process of the finding of guilt, conviction and passing of sentence would, in the ordinary course, be done at the one time.”
The important aspect is that the respondent had not prior to 10 December 2001, been through the process of conviction and sentence for the offence that was committed on 1 January 1999.
For this reason I consider s 39(1)(e) does not apply to the period of disqualification to be imposed for the offence of Drive Exceed .08 that was committed on 8 December 2001.
Finally, it is the submission on behalf of the appellant that even if a mandatory disqualification of five years was not necessary the fact of two serious infringements of the drink driving laws within three years coupled with a previous conviction for a drink driving offence in 1992 and two other offences in 2001, called for the imposition of a period of disqualification in excess of that imposed.
The Crown appellant further submitted there were two additional features of the 2001 offences of concern:
(a)The respondent had an open can of alcohol in the car when she was stopped for driving the vehicle which renders this offence more flagrant.
(b)Knowing of the outstanding warrant for her arrest on the 1999 driving offences, she gave a false name to police which in the Crown submission reveals a less than complete willingness to acknowledge her wrongdoing.
I do not agree that the sentence has been shown to be manifestly excessive.
Neither the offence of Drive Exceed .08 on 1 January 1999 or the offence of Exceed .08 committed on 8 December 2001 involved allegations of bad driving. A period of almost three years had elapsed between the two offences as noted by the learned stipendiary magistrate.
His Worship accepted that Ms Howley’s reason for driving was because her partner had become bogged in his car. She had driven out on a country road for a distance not very far from where she lived to “rescue” (assist) him. This implies there was no evidence of a previous intention to drive. In these circumstances I do not consider the presence of an open can of beer in the car is of great significance.
With respect to the offence committed on 8 December 2001, Ms Howley did enter a plea of guilty at the first opportunity, i.e. two days after the commission of the offence. She was convicted and dealt with for an offence of giving a false name to police. On this matter his Worship said “I am treating that leniently because no one else was prosecuted and the true facts came to light early”. There were a number of matters in mitigation the learned stipendiary magistrate was entitled to take into account, being matters to which I have already referred.
The total period of disqualification of licence was two years and six months.
On the tests to be applied with respect to Crown appeals which has been canvassed in a number of authorities including Raggett Douglas & Miller (1990) 50 A Crim R 41, R v Nagas (1995) 5 NTLR 45, R v Tait (1978) 46 FLR 386, Everett v R and Phillips v R (1994) 124 ALR 529. I am not able to conclude that this period of disqualification was manifestly inadequate.
For these reasons the appeal is dismissed.
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