Devine v Maher

[1990] TASSC 39

Serial No 36/1990
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Devine v Maher [1990] TASSC 39; (1989) Tas R 147; A36/1990

PARTIES:  DEVINE
  v
  MAHER

FILE NO/S:  LCA 30/1990
DELIVERED ON:  16 August 1990
JUDGMENT OF:  Underwood J

Judgment Number:  A36/1990
Number of paragraphs:  15

Serial No 36/1990
List "A"
File No LCA 30/1990

DEVINE v MAHER

REASONS FOR JUDGMENT  UNDERWOOD J

16 August 1990

1. The applicant pleaded guilty to:

1Hindering his conveyance to a place where a direction to undergo a breath analysis could be given contrary to the Road Safety (Alcohol & Drugs) Act 1970, s14(1C).

2Refusing to submit to a breath analysis contrary to s14(2).

1. On the first matter, a conviction was recorded. On the second matter, the applicant was fined $350, ordered to pay costs and ordered disqualified from holding or obtaining a driver's licence for 15 months. The motion seeks a review of the order that the applicant be disqualified from holding or obtaining a driver's licence for 15 months.

1. Firstly, it should be noted that the order made on conviction comprised a fine and an order to pay costs as well as the licence disqualification. Secondly, that at the same time as that order was made, no penalty was imposed on the other matter of complaint. The events which led to both convictions were interconnected and accordingly, on a review of the order made on the second matter of complaint, it is proper to take into account the absence of penalty on the first matter of complaint. The Justices Act 1959 does not permit the imposition of one penalty for several offences even when those offences arise out of a single course of unlawful conduct. However, the "totality principle" requires a magistrate to ensure that the aggregate of a number of penalties, each appropriate to the offence in respect of which it is imposed, is not disproportionate to the totality of the relevant criminal conduct. See Thomas, Principles of Sentencing, 2nd edn at p53. A related proposition was expressed in Brown v The Queen (1982) 5 Aust Crim R 404 at p407 where Forster CJ said:

"It has been held that, save in special circumstances, when a number of offences arise from substantially the same act or same circumstances or a closely related series of occurrences, cumulative penalties should not be imposed ...".

See also Hopkins v Conn (1979) 23 SASR 470; Duelberg v Sciberras, reported in the same volume at p481.

1. Thus, on a motion to review an order of sentence or penalty, this Court must review the whole of the order made and not just part of it. Further, when that order is one of a number of orders imposed for offences which arise from substantially the same circumstances or closely related circumstances, regard should also be had to the terms of those orders.

1. On the evening of 5 May 1989 the applicant was with friends at the Derwent Tavern, Bridgewater. There he consumed a quantity of alcohol. At about 1.20am the following morning he drove his Toyota Landcruiser along the East Derwent Highway towards his home. He was accompanied by his friends. The attention of patrolling police officers was drawn to the motor vehicle and the applicant was intercepted in Cove Hill Road. He was given an alcotest. It proved positive. The police asked the applicant to accompany them to the Bridgewater police station. The applicant said he was going back to his vehicle to get some cigarettes. The police asked for his keys but the applicant said that he was leaving them with his friends. The police returned to the applicant's vehicle but could not locate the keys and the applicant's friends denied any knowledge of them. There followed a dispute between the police and the applicant about him leaving his vehicle in the area. The applicant said he was concerned that it might be stolen or damaged. One of the applicant's friends joined in the dispute. The applicant then refused to leave with the police and when taken by the arm, pulled away. The police officers called for assistance and, on the arrival of two other police officers, the applicant was persuaded to get into the police vehicle. He was taken to the Bridgewater police station and formally directed to submit a sample of his breath for analysis. The applicant refused to do so. He was then conveyed to the Hobart police station where he was charged and detained.

1. In mitigation, it was put to the learned magistrate that the applicant was not affected by liquor and "nor was he anywhere near a situation where he would have been driving under the influence". It was put that he was so concerned about the refusal of the police to let him lock up his car or permit his friends to take it home that he refused to undergo the breath analysis test. This was put in the following terms:

"When he got to the police station, because he was upset about what had transpired, he refused to take the breath analysis. It wasn't a fear that he was going to exceed the breath analysis, on my instruction, [sic] it was simply because of what had happened up there. He was then upset, emotionally worked up about it and accordingly behaved in that manner."

1. The applicant was aged 32 years and employed by the Clarence Council as a waste water supervisor. His financial circumstances were outlined to the learned magistrate. The applicant had a number of previous convictions including one for a breach of the Road Safety (Alcohol & Drugs) Act. This conviction was imposed on 4 August 1977. He was then convicted of two counts of speeding and one count of driving with alcohol in his body, being a first year driver. With respect to these offences he was disqualified from holding or obtaining a licence for a total effective period of 12 months. In addition to those offences, between 1975 and 1985 the applicant was convicted of 17 other offences against the Traffic Act or Regulations.

1. When imposing penalty the learned magistrate said:

"You had an obligation of course at law to submit a sample of your breath for analysis, having been stopped by a police officer, quite properly, and you elected not to. Now, of course we'll never know just what sort of reading you may have had. I suppose it's always possible it might have been under .05. Because you've refused, we've got to look at it as if it was in fact over the limit somewhere." [My emphasis].

1. Learned counsel for the applicant on the hearing of the motion submitted that the learned magistrate fell into error when he expressed the view in the sentence I have emphasised and that such error vitiated the exercise of the sentencing discretion. Learned counsel for the Crown submitted that the magistrate's words were no more than an expression of a circumstance which generally, the court takes into account when imposing penalty for refusing to undergo breath analysis. Whilst that might have been the magistrate's intention it was not so expressed. The words used by the learned magistrate are unambiguous. In effect they express, in mandatory terms, a requirement that sentence must be imposed upon the basis that, had the applicant submitted to breath analysis he would have shown a blood alcohol content in excess of the prescribed minimum. Clearly, there is no such requirement. The sentencing discretion is at large subject only to the provisions of the Act, s17. The relevant subsection is (1) which prescribes a maximum penalty of 10 penalty units or imprisonment for not more than six months or both, and disqualification for a period not exceeding three years.

1. The learned magistrate referred to the applicant's previous conviction under the Act and stated that the applicant could be fined up to $2,000 andor imprisoned for twelve months and disqualified for a period not exceeding six years. The learned magistrate was there referring to the provisions of s17(2) but was in error doing so. That subsection only applies on conviction for an offence under ss4 or 6 when the offender has previously been convicted of an offence under either of those sections or under the Traffic Act 1925, ss41 or 41B. The applicant was not convicted of an offence under either s4 or s6.

1. As error in the proper exercise of the sentencing discretion has been demonstrated, all the orders on conviction should be set aside. Counsel were agreed that in the event that the order was set aside I should finally determine the matter myself.

1. It is well recognised that the consumption of alcohol impairs the judgment required to drive a vehicle safely. It is equally well recognised that driving whilst such judgment is so impaired is a notorious and prevalent evil responsible for much social and economic harm, human misery and suffering. By the enactment of the Road Safety (Alcohol & Drugs) Act 1970, the Parliament of this State has acknowledged the existence of these facts and put in place a legislative scheme to combat them. Central to this scheme is compulsory random breath analysis, the necessity for which I think now receives general community acceptance. The court's duty therefore is to impose penalties for breaches of the Act which will have effect as a deterrent to potential as well as actual offenders. Ten years ago, Everett J said in Booth v Breen [1980] Tas R 277:

"For about a decade the Parliament of Tasmania by enacting the Act and amending its provisions from time to time in order to import to them greater strength and make them in practice more effective, has shown a clear intention that breaches of the Act should attract, in appropriate cases, penalties which will be seen to be deterrent, and, hopefully, will in fact be so. It is the duty of the courts to recognise this intention and punish persistent and serious transgressors to a degree which, depending on the facts of each case, will recognise the maximum penalties determined by Parliament."

1. See also Dobson v Clark, Green CJ 65/83; Barrett v Pearce, Neasey J 6/86; Ling v Wakefield, Wright J 41/86.

1. A refusal without reasonable excuse to undergo breath analysis when lawfully directed to do so is a very serious offence for it strikes at the very heart of the legislative attempt to curb the dangers of driving whilst affected by liquor. Unless the court imposes penalties for this offence which will operate to deter others from following suit, the intention of Parliament, expressed by its legislation, will be set at naught. The appropriate penalty in each case must depend on the facts of each case. Thus, it is wrong to assert that the penalty for refusing to undergo breath analysis should be fixed on the basis that had the analysis been done the result would show a concentration of alcohol in the blood higher than the prescribed minimum. However, it is not wrong to assert that one of the factors to be taken into account in assessing the appropriate penalty for refusing to undergo breath analysis, is that generally, the offence is at least as serious if not more serious than driving with a blood alcohol content in excess of the prescribed minimum.

1. In the present case I do not regard the explanation given by the applicant for refusing the test to be a mitigatory factor of any significant weight. It was not suggested that the police officers' actions were in any way improper. It was not suggested that the applicant was unaware of or misunderstood his obligation to undergo breath analysis. He had been consuming liquor in a hotel and afterwards drove on a public street. His refusal followed hindering his conveyance to the police station, in respect of which offence no penalty was imposed. It must be made clear to others who are minded to drink and drive that the law obliges them to submit to breath analysis when lawfully directed to do so. Unlawful refusal to do so will be met with substantial punishment. The applicant's record of prior convictions indicates a tendency to disregard his obligations to obey the Traffic Act and its regulations. The fine imposed by the learned magistrate was in the order of one third of the maximum fine and the period of disqualification less than half the maximum permitted under the Act. In these circumstances, had the learned magistrate exercised his discretion in accordance with law, the penalty imposed would have reflected the proper exercise of the sentencing discretion. I think it is appropriate to re–impose the penalty and accordingly, the order of the Court is that the motion to review is dismissed.