DPP v Norman - [2003] VSC 369

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4681 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of Warren Keith Birthisel)	Appellant
v
GREGORY NORMAN	Respondent

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JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 August 2003
DATE OF JUDGMENT:	3 October 2003
CASE MAY BE CITED AS:	DPP v Norman
MEDIUM NEUTRAL CITATION:	[2003] VSC 369

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MOTOR VEHICLES – Criminal Law – Road Safety – Breath test and blood alcohol – Blood alcohol content exceeding .05% - Whether “subsequent offence” – Whether period of licence cancellation to be minimum for “first offence” or minimum for “subsequent offence” – Road Safety Act 1986 ss.48(2), 49(1)(f), 50(1A), 50AA.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Trapnell	Solicitor to the Office of Public Prosecutions
For the Defendant	Mr W. Walsh-Buckley	Graham Sharkey

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

The Magistrate’s Order...................................................................................................................... 2

The Question of Law......................................................................................................................... 3

The Relevant Legislation.................................................................................................................. 3

The Submissions of the Respondent............................................................................................. 4

The Submissions of the Director..................................................................................................... 5

Conclusion........................................................................................................................................... 5

HIS HONOUR:

Introduction

On 29 January 2003, at Portland Magistrates' Court, the respondent, Gregory Norman, pleaded guilty to a charge brought against him under s.49(1)(f) of the Road Safety Act 1996 (“the Act”). The charge to which Mr Norman pleaded guilty was that on 24 February 2002 he had a blood alcohol concentration in excess of .05% within three hours of driving contrary to s.49(1)(f) of the Act. The level of blood alcohol concentration was alleged to be .095%.

On a previous occasion, on 14 May 1992, Mr Norman had been convicted of an offence under the same section of the Act in relation to a blood alcohol concentration of 0.135%. On this previous occasion Mr Norman was convicted and fined $500. His licence was cancelled and he was disqualified from driving for a period of 13 months.

The Magistrate’s Order

Having heard the plea and submission made on behalf of Mr Norman the Magistrate ordered, without conviction, that Mr Norman be fined $1,000. The Magistrate further ordered that Mr Norman’s driving licence be cancelled and that he be disqualified from driving for a period of six months.

It is apparent that the Magistrate considered it appropriate to record no conviction against Mr Norman in order to circumvent the consequences which flow from a conviction for a second or subsequent offence under s.49(1)(f) of the Act. The minimum relevant licence disqualification period for such a subsequent offence is 18 months for a blood alcohol reading of .95%. The minimum relevant disqualification period for a first offence, where the blood alcohol concentration is less than .1% is six months. It is clear that the Magistrate concluded (as submitted by Mr Walsh‑Buckley of counsel who appeared for Mr Norman both before the Magistrate and upon this appeal) that by not recording a conviction, he was not required to treat the offence to which the defendant had pleaded guilty before him as a “subsequent offence”. The effect of this was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Norman

Details

AGLC: Director of Public Prosecutions v Norman [2003] VSC 369
Case: [2003] VSC 369
Decision Date: 3 October 2003

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions v Norman, the defendant was charged with driving a motor vehicle with a blood alcohol content exceeding the legal limit of.05%, a violation under the Road Safety Act 1986. The primary dispute centred on the classification of the offence and the appropriate penalty to be imposed on the defendant. The case was heard in the relevant Australian court, which was tasked with determining whether the offence should be classified as a "first offence" or a "subsequent offence" for the purposes of determining the period of licence cancellation.

The court had to decide whether the defendant's previous convictions for similar offences should be considered in determining the classification of the current offence. Specifically, the legal issues involved interpreting sections 48(2), 49(1)(f), 50(1A), and 50AA of the Road Safety Act 1986 to ascertain the correct period of licence cancellation. The court needed to assess whether the offence should attract the minimum penalty for a "first offence" or the minimum penalty for a "subsequent offence."

The court reasoned that the defendant's previous convictions for similar offences did not automatically classify the current offence as a "subsequent offence" under the Act. It found that the distinction between a "first offence" and a "subsequent offence" was not solely based on the number of prior convictions but also on the specific circumstances of each case. In this instance, the court determined that the offence should be classified as a "first offence" for the purposes of determining the penalty. Consequently, the defendant was subject to the minimum period of licence cancellation applicable to a "first offence" under the Act.

The court ordered that the defendant's driver's licence be cancelled for the minimum period prescribed for a "first offence" under the Road Safety Act 1986, reflecting its determination on the classification of the offence.

Orders