Gandini v Judges
[2023] TASSC 13
•22 May 2023
[2023] TASSC 13
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Gandini v Judges [2023] TASSC 13 |
| PARTIES: | GANDINI, Daniel Victor |
| v | |
| JUDGES, Russell | |
| FILE NO: | 2884/2022 |
| DELIVERED ON: | 22 May 2023 |
| DELIVERED AT: | Launceston |
| HEARING DATE: | 12 May 2023 |
| JUDGMENT OF: | Pearce J |
| CATCHWORDS: |
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Refusing oral fluid test – Sentence and penalty – Mandatory minimum penalty not applicable.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss 17(3), 17A.
Aust Dig Magistrates [1349]
Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving with prescribed illicit drug in blood and other offences – Refusing oral fluid test and refusing direction to submit to sample of blood – Sentence and penalty – Mandatory minimum penalty not applicable.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss 17(3), 17A.
Aust Dig Traffic Law [1159]
REPRESENTATION:
Counsel:
Applicant: In person Respondent: L Fox
Solicitor:
Respondent: Director of Public Prosecution
| Judgment Number: | [2023] TASSC 13 |
| Number of paragraphs: | 16 |
Serial No 13/2023 File No 2884/2022
DANIEL VICTOR GANDINI v RUSSELL JUDGES
| REASONS FOR JUDGMENT | PEARCE J 22 May 2023 |
1 By this motion to review the applicant challenged a sentencing order made by a magistrate, Ms L Topfer, on 2 August 2022. The part of the order under challenge is that which disqualified the applicant from driving. The applicant is unrepresented. He sought to place a great deal of material before this Court in support of the motion but much of it is irrelevant or incomprehensible or both. A brief summary of the relevant circumstances is sufficient.
2 On 8 March 2020 a vehicle being driven by the applicant on a public street in Latrobe was intercepted by the police. He was directed, in accordance with the Road Safety (Alcohol and Drugs) Act 1970, s 7B(1), to undergo an oral fluid test. He claimed to have been illegally stopped and refused. He then abused the police and resisted being placed in the divisional van. The applicant was then taken to the Mersey Community Hospital where he refused a direction given under s 7C to submit to the taking of a sample of his blood. He was charged on complaint 51929/20 with:
by count 1, refusing to comply with a direction made to him by a police officer under s 7B (the
oral fluid test) contrary to the Road Safety (Alcohol and Drugs) Act, s 14(1)(b); by count 2, refusing without reasonable excuse to submit to the taking of a sample of his blood
for analysis, contrary to the Road Safety (Alcohol and Drugs) Act, s 14(4); by counts 3 and 4, two counts of using abusive language to a police officer contrary to the
Police Offences Act 1935, s 34B(1)(b); by count 5, hindering his conveyance to a place where a provision of a blood sample was to
take place contrary to the Road Safety (Alcohol and Drugs) Act, s 14 (1B)(b).3 Because the offences with which he was charged included failing or refusing to submit to an oral fluid analysis and blood test, a police officer gave the applicant, on 8 March 2020, a road safety disqualification notice under the Road Safety (Alcohol and Drugs) Act, s 18B. The effect of the notice was that the applicant was immediately disqualified from driving until the charge was determined by a court, or expiration of the period of the notice, whichever occurred sooner: s 18B(5). The period of disqualification specified in the notice was 12 months from 8 March 2020.
4 On 14 April 2022 the applicant pleaded guilty to each of those five charges. Two weeks earlier, on 1 April 2022, the magistrate had published written reasons for finding the applicant guilty of three other offences charged on a different complaint, complaint 53888/20:
by count 1, trespass (of a motor vehicle) contrary to the Police Offences Act, s 14B(1); by count 2, unlawfully tampering or interfering with a motor vehicle contrary to the Police
Offences Act, s 37I; by count 3, intimidating a public officer contrary to the Police Offences Act, s 34B(2)(a). 5 On 2 August 2022 the learned magistrate sentenced the applicant for all of the charges to which he had pleaded guilty or of which he had been found guilty. On complaint 53888/20 he was fined. On complaint 51929/20 the applicant was sentenced to imprisonment for one month from 2 July 2022 and,
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on the charges of refusing an oral fluid test, refusing to submit to the taking of a sample of his blood and hinder conveyance (counts 1, 2 and 5 on that complaint), he was disqualified from driving for two years. The result was that the applicant, when sentenced, had already served the term of imprisonment her Honour imposed but, because he was in custody on other unrelated charges, it was ordered that the period of disqualification commence on his release from prison.
6 When sentencing the applicant the learned magistrate referred to the applicant's personal circumstances and continued:
"…I note in relation to the Road Safety (Alcohol and Drugs) Act matters you were a
subsequent offender … because you did – over 20 years ago you were driving with a
reading of .096. And in relation to this matter you received an excessive drink driving
notice for 12 months on 8th March 2020.While there were three charges under the Act they all occurred at the same time. So taking into account that you had a notice of 12 months disqualification from the 8th March and I'll disqualify you from driving in relation to those charges on 51927/2020 for a further period of two years upon your release from prison. So that's a two year period of disqualification. Obviously there are mandatory provisions of disqualification under the Road Safety (Alcohol and Drugs) Act and I'm imposing that period of disqualification."
7 This motion challenges only the order of disqualification. It does so on the following ground:
"That there was a conditional plea of guilty on the condition that there was taken into consideration the 1 year loss of licence was the mantory (sic) penalty. I require a licence as I need to have the ability to move the caravan I will be living in."
8 One aspect of the applicant's ground of appeal is his claim that his plea of guilty was "conditional" on the proposition that the period of disqualification to which he had already been made subject, pursuant to the notice given to him by the police under s 18B, was "taken into consideration." The Road Safety (Alcohol and Drugs) Act, by s 18B(6), provides:
"If, on the subsequent hearing of the charge, the accused is disqualified from driving, the court must take into account in fixing the period of disqualification the period of disqualification served under this section."
9 By the time the applicant was sentenced the 12 month period of disqualification which resulted from the notice had been completed. The terms of the motion to review infer that the period of disqualification was not taken into account by the learned magistrate. However, it may immediately be observed from the learned magistrate's sentencing remarks that the contention that she failed to take that period of disqualification into account is utterly without merit. She expressly did take it into account. Whether it was sufficiently taken into account could only be relevant to a contention that the sentence was manifestly excessive. That is an entirely different question which, for the following reasons, need not be addressed.
10 The ground, albeit somewhat inelegantly, also raises the issues of the mandatory penalty provisions under the Act and the effect upon the applicant of a lengthy period of disqualification. In advance of the hearing of the motion I advised counsel for the respondent that I would be assisted by submissions about whether the learned magistrate erred by sentencing the applicant on the basis that the mandatory penalty provisions in s 17 of the Act applied to him. Section 17(3)(b) provides that a court which convicts a person of an offence specified in column 1 of the Table to that section, in addition to imposing either a fine or a sentence of imprisonment or both, must, in addition, disqualify the person from driving for a period not less than the minimum period shown in the Table and not more than the maximum period shown in the Table. Section 17(3) of the Act is mandatory: Wilkie v Taylor [2015] TASFC 7, 71 MVR 239. The offences specified in column 1 of the Schedule to that section are s 6(2),
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s 6, s 4, s 14(5), failure to comply with a requirement made under s 10(4) or 10A(1) and s 6A(1). Because the applicant was a subsequent offender, s 17, if it applied, required for a failure to comply with a requirement made under s 10(4) or s 10A(1) imposition of a minimum period of disqualification of two years.
11 There is no room for any doubt that the learned magistrate proceeded to sentence the applicant on the basis that the mandatory penalty provisions in s 17 applied. In her Honour's sentencing remarks she separately stated that "there are mandatory provisions of disqualification under the Road Safety (Alcohol and Drugs) Act and I'm imposing that period of disqualification" and "there's mandatory minimum periods of disqualification under the Act." With great respect, by so concluding her Honour fell into error. The applicant was not convicted of an offence under any of the provisions specified in the Table to s 17. The offences specified in s 17 can be summarised as follows:
an offence under s 6(2) is committed when a person falling within a specified category or
description drives while any alcohol is present in his or her body; an offence under s 6 is committed when a person drives a motor vehicle while alcohol is present
in his or her breath or blood in a concentration greater than the prescribed concentration; an offence under s 4 is committed if a person drives a motor vehicle while under the influence of intoxicating liquor or a drug to the extent that he or she is incapable of having proper control of the vehicle; an offence is committed under s 14(5) by a person who, on being notified under s 13 (6) that a sample of his or her blood has been taken for analysis, objects, without reasonable excuse, to that sample being analysed is guilty of an offence. Section 13(6) empowers analysis of a sample of blood taken by a medical practitioner from a person incapable of consenting; under s 10(4), where a person who is liable to submit to the taking of a sample of blood for analysis, or the taking of a sample of oral fluid for oral fluid analysis, or submit to a breath analysis or a medical examination is at a place where, or in a vehicle in which, that sample can forthwith be taken or that analysis or medical examination can forthwith be carried out, a police officer may direct him or her there to submit to the taking of the sample or to the analysis or examination; under s 10A(1) a police officer may require a person to submit to the taking of a sample of blood for analysis but that provision applies when the police officer reasonably believes that the person was the driver of a vehicle involved in a crash; an offence is committed under s 6A(1) if a person drives a motor vehicle while a prescribed
illicit drug is present in his or her blood or oral fluid.12 The applicant was convicted of three different charges which were brought under s 14. On my count, s 14, by its various sub-sections, creates nine separate offences. The ones with which the applicant was charged were these:
under s 14(1)(b) which, as it applied to the applicant, provided that he committed an offence by, without reasonable excuse, failing or refusing to comply with the direction made to him by a police officer under s 7B. Under 7B(1), a police officer may require any person who is driving a motor vehicle on a public street to undergo, at or near the place where the requirement is made, an oral fluid test;
under s 14(4) which, as it applied to the applicant, provided that he committed an offence by, having been required under s 7C to submit to the taking of a sample of his blood for analysis,
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failing or refusing without reasonable excuse to submit to the taking of a sample of his blood in accordance with the direction. Under s 7C, a police officer may require a person who has refused to undergo an oral fluid test to submit to the taking, by a qualified person, of a sample of blood for analysis; and
under s 14(1B)(b) which, as it applied to the applicant, provided that he committed an offence, as a person who was liable to submit to a blood test and who had been taken into custody, by obstructing and hindering his conveyance to a place where the test was to take place. 13 Counsel for the respondent points out that, perhaps, the applicant could have been charged for failing to comply with a requirement made to him by a police officer under s 10(4) to submit to the taking of a sample of blood for analysis or the taking of a sample of oral fluid. Even if that contention is correct it does not assist the respondent. Section 17 applies only to a person convicted of an offence specified in the Table. The offences of failure with a requirement made under s 10(4) or s 10A(1) to which s 17 applied are expressly created by s 14(2) and s 14(1A). The applicant was charged and convicted with different offences under s 14(1)(a) and s 14(1)(b) which are not specified in s 17. The position is even clearer for his offence under s 14(1B)(b). The mandatory minimum and maximum penalties stated in s 17 had no application to any of the offences of which the applicant was convicted. The relevant penalty provision in each case was s 17A which provided:
"17A. Penalties for other offences
(1) A person who is convicted of an offence under this Act, other than an offence referred to in section 6A or section 17, is liable to a fine not exceeding 10 penalty units or imprisonment for a term not exceeding 6 months.
(2) A court that convicts a person of an offence referred to in subsection (1) may, in addition to any penalty imposed under that subsection, order the person to be disqualified from driving for a period not exceeding 3 years."
14 Counsel for the respondent properly concedes that an error was made. The period of disqualification imposed by the learned magistrate was not outside the range available to her under the legislation. For each of the three offences under the Road Safety (Alcohol and Drugs) Act, the applicant was liable to a maximum period of disqualification of three years. Because s 17A applied, her Honour had power to impose, for each offence, a term of imprisonment of up to six months, a fine of any amount up to the maximum and a period of disqualification for any period up to the maximum, or to not impose any term of imprisonment or any fine or any period of disqualification. However, that is not to the point. The learned magistrate wrongly formed the view that her sentencing discretion was constrained by the applicability of s 17. I reviewed and explained these legislative provisions in Attard v Moore [2017] TASSC 16. It is idle to speculate about what period of disqualification her Honour might have imposed had she not felt constrained by s 17. I repeat what was said in Attard v Moore at [25]:
"…Of course, the proper exercise of the sentencing discretion involved taking account
of the purpose of the legislation and the particular provision [the magistrate] was dealing with, the scheme of the Act, and the penalties for other offences in the legislation. Generally, the offence of refusing to undertake an oral fluid test without reasonable excuse is at least as serious, if not more serious, than the completed offence under s 6A of driving with an illicit drug in the body: Devine v Maher [1990] TASRp 13; [1990] Tas R 147 per Underwood J (as he then was) at 150. Offences involving refusal of a direction or requirement properly given under the Act attract general deterrence as an especially important sentencing consideration."
15 Because I do not have sufficient information about all of the factors which might be relevant to sentence I refrain from any further expression of view about whether the period imposed was excessive or inadequate. It is obvious from the learned magistrate's sentencing remarks and the history of the various proceedings that she had a lot of material available to her about the applicant and his
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circumstances. In re-sentence the learned magistrate will take into account the period of disqualification served by the applicant as a result of the notice as well as any period of disqualification already served as a result of the orders made on 2 August 2022.
16 For the foregoing reasons I order that the sentencing order made by the learned magistrate on 2 August 2022 disqualifying the applicant from driving for two years from his release from prison is set aside. The respondent first asked that I re-sentence the applicant but then accepted that the appropriate course is, pursuant to the Justices Act 1959, s 110(2)(c), to remit the matter to the learned magistrate for re-sentence in accordance with the terms of these reasons. I so order.
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