Elliott v Crawford
[1989] TASSC 127
•30 November 1989
Serial No B49/1989
List “B”
COURT: SUPREME COURT OF TASMANIA
CITATION: Elliott v Crawford [1989] TASSC 127; B49/1989
PARTIES: ELLIOTT, Stuart Arnold
v
CRAWFORD, Mark Anthony
FILE NO: LCA 22/1989
DELIVERED ON: 30 November 1989
JUDGMENT OF: Underwood J
Judgment Number: B49/1989
Number of paragraphs: 15
Serial No B49/1989
File No LCA 22/1989
STUART ARNOLD ELLIOTT v MARK ANTHONY CRAWFORD
REASONS FOR JUDGMENT UNDERWOOD J
30 November 1989
This is an application to review a sentence of fine, $250, and disqualification from holding or obtaining a drive's licence for fifteen months. It was imposed for a breach of the Road Safety (Alcohol and Drug) Act 1970 s6(1). The circumstances leading up the imposition of sentence were unusual. On 11 September 1989, the applicant appeared before a magistrate in a Court of Petty Sessions held at Launceston. He appeared in answer to a complaint alleging a breach of s6(1) of the Act. The particulars alleged a concentration of alcohol in the blood of .107% grams per 100 millilitres of blood. The defendant pleaded guilty. The facts were then stated by the police prosecutor. It is unnecessary to set them out here. The defendant was stopped and tested. There was no suggestion that his manner of driving had attracted adverse attention from the police. The prosecution concluded by saying, "he gave an explanation. 'I didn't think it was over the limit'".
Counsel who appeared for the applicant in the Court below began his plea in mitigation with the words:
"Sir, this is a rather unusual case here before you because on my instructions the defendant's breach of the Act was quite inadvertent …".
He then recounted that the applicant was a taxi driver and in need of continued income from his occupation. The applicant had contracted influenza but elected to continue driving. To alleviate his symptoms he bought some "Vicks Niquil". He used this cough mixture while driving his taxi not having read the label on the bottle. The applicant's then counsel put the following:—
"On my instructions the only alcohol the defendant had knowingly consumed on the day in question was approximately 8 to 10 hours prior to him being intercepted, and that was two glasses of wine with his meal. Unfortunately, the Vicks Niquil having the content of alcohol in it, put his reading to the limit that he eventually read ... its simply a result of his inadvertence of his omission (sic) to read the instructions on the side of the medicine bottle. Obviously with the benefit of hindsight he realized be should have."
The learned magistrate raised with counsel the availability of the "defence" of honest and reasonable mistake of fact. Counsel stated his belief that the offence was one of strict liability and that the defence was not open. It is clear from the context that counsel's belief was that the offence was one of absolute liability.
The learned magistrate stood the matter down until later in the day and on the resumption of the hearing counsel submitted, correctly, that the defence did apply to an alleged breach of s6 (1). (See L v F 44/1985; He Kaw Teh v The Queen (1985) 157 CLR 523.)
The learned magistrate permitted the applicant to change his plea to not guilty and the matter was stood over until 5 October 1989 at the request of counsel to "do some research into this cough mixture".
When the hearing resumed the applicant appeared in person. He explained that his solicitor could not act for him. He said that he wished to "go through with it [himself] and plead guilty with an explanation". The prosecutor restated the facts. The learned magistrate asked the applicant how much he earned and referred to a prior conviction of the applicant for an identical offence. He then commenced to impose sentence but, before he had finished, the applicant asked if he could say something. The applicant said that he was on medication and that, "I got an analysis report about it. It would have made me about 2 points higher but not that much more".
The learned magistrate said "could we have a look at that then" and apologised for omitting to ask the applicant if he had anything to say. The applicant admitted that he would have exceeded .05% but, had it not been for the cough mixture, his concentration of alcohol would not have been as high as .107% The prosecutor intervened at this stage to say that, at the time of his apprehension, the applicant had told the police be had been taking cough mixture, "about a quarter of a small bottle in the last twelve hours". This was a fact which the prosecutor did not disclose to the learned magistrate when the matter first came on for hearing. The prosecutor said in effect that he was prepared to accept that .02% of the analysis of .107% was attributable to the alcohol in the cough mixture. The following exchange then occurred between the applicant and the learned magistrate:—
"Elliott:[applicant]; I still would have been just over the limit Sir.
Coram:Well you knew that you (sic) cough mixture contained alcohol?
Elliott:No. I didn't realise it was that much, Sir, until I saw my solicitor and he told me to get it analysed. That's why it was adjourned for twenty–eight days last time.
Coram:Yes but you knew it contained alcohol?
Elliott:Yes Sir.
Coram:And that in itself should have put you on notice, as well. Do you understand that? The simple fact that you were taking
medicine that happened to have alcohol in it, which known to you had alcohol––––it means you have to be that much more cautious.
Elliott:But see at the time, Sir, I was only driving in taxis full time."
The learned magistrate then imposed penalty. He made no findings of fact but did observe in relation to the statutory prohibition against driving with a blood alcohol concentration in excess of the prescribed maximum, "whether it comes from knowing – to you – cough mixtures or whether it comes from other things like that, you see. But I take that into account." It is unclear from that passage what the learned magistrate had in his mind and what role that comment played in the sentencing process.
There is nothing in the transcript of the proceedings on the resumed hearing to indicate whether the learned magistrate then had to the forefront of his mind the matters that had been put to him on behalf of the applicant when the matter first came on for hearing. In the absence of any indication to the contrary it is appropriate to assume that he was fully cognizant of those matters when he imposed penalty. The account given at the first hearing of the applicant's consumption of alcohol is totally inconsistent with the prosecution case and partially inconsistent with his subsequent admission that the cough mixture was responsible for only 0.2% of the breath analysis obtained. Presumably, the learned magistrate rejected the account given him on the first occasion although he did not say so. This account was not challenged by the prosecution. It is clear that when there arises a conflict between the facts stated by the prosecution and those stated by or on behalf of the defendant and those facts are material to the appropriate sentence to be imposed, the sentencing officer should receive evidence to resolve the conflict. At the least, the applicant should have been told that the facts put on his behalf were not accepted and he given an opportunity to adduce evidence. See Nash v Haas [1972] Tas SR 1 at pp2–3 and the South Australian cases there referred to. The failure to take this course constituted an error which vitiated the exercise of the sentencing discretion.
Having regard to the material put before the learned magistrate on both hearings, I am forced to conclude that it was insufficient to determine the appropriate penalty. I have already referred to the fundamental inconsistency between the account of alcohol consumption and the prosecution case and the later concession that the cough mixture accounted for only a small percentage of the blood alcohol concentration. Although the learned magistrate said that he would look at the analyst's report, he did not do so. On the issue of culpability, a significant matter in an offence such as this, the exchange between the learned magistrate and the applicant set out earlier leaves it unclear whether the applicant knew that the mixture contained alcohol at the time he consumed it. With respect to the circumstances surrounding the commission of the offence then, the learned magistrate had inconsistent accounts of the applicant's consumption of alcohol; not all the available information about the quantity of alcohol in the cough mixture; no information about how long before the breath analysis the cough mixture had been taken and a confusing account as to whether the applicant knew at the relevant time that by taking the mixture he was introducing alcohol into his blood.
The applicable principle was expressed by Neasey J in Hrvojevic v the Queen CCA 24/1979, when he said:—
"It was for the applicant to show that the trial judge in imposing sentence acted on insufficient materials in the sense that he could and reasonably should have had more adequate information before him. The judge was not of course bound to acquire information relevant to sentence in any particular form, and in the present case he had the benefit of submissions from experienced counsel for the applicant. Whether exercise of a sentencing discretion has been vitiated by reason of the tribunal having acted on insufficient materials in the above sense is a question depending upon the circumstances of the particular case".
See also Bird v Groves, Everett J, 10/1982. This is a case in which the applicant has shown that, in the circumstances, the learned magistrate could and reasonably should have had more adequate information before him before fixing sentence and the failure to enquire further of the unrepresented applicant to clarify the conflicts and confusion I have referred to constituted an error which vitiated the exercise of the sentencing discretion.
For these reasons the motion succeeds. The sentence of a fine of $250 and costs of $16.10 and the order that the applicant be disqualified for holding or obtaining a driver's licence for a period of fifteen months is quashed.
I will hear counsel with respect to the ultimate disposition of this appeal.
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