Harper v Cullen
[2002] TASSC 111
•6 December 2002
[2002] TASSC 111
CITATION: Harper v Cullen [2002] TASSC 111
PARTIES: HARPER, Robyn Edna
v
CULLEN, Annette Maree
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 91/2002
DELIVERED ON: 6 December 2002
DELIVERED AT: Hobart
HEARING DATE: 27 November 2002
JUDGMENT OF: Cox CJ
CATCHWORDS:
Traffic Law - Offences - Alcohol and drug related offences - Tasmania - Other offences - Driving with excessive concentration of blood alcohol - Minimum penalty - Special circumstances - Whether permitted to impose no fine and no disqualification.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s17(5).
Strickland v Whitehead B60/1995; Mazengarb v White B38/1993; Turner v Visser 93/1998; Snoxall v Visser [2002] TASSC 89; Davies v Deverell (1992) 1 Tas R 214, referred to.
Aust Dig Traffic Law [80]
REPRESENTATION:
Counsel:
Applicant: L A Mason
Respondent: A Mignot
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Legal Aid Commission of Tasmania
Judgment Number: [2002] TASSC 111
Number of paragraphs: 17
Serial No 111/2002
File No LCA 91/2002
ROBYN EDNA HARPER v ANNETTE MAREE CULLEN
REASONS FOR JUDGMENT COX CJ
6 December 2002
The respondent pleaded guilty to a breach of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1), in that she had driven a motor vehicle on 1 March 2002 on Bass Street, Warrane with a blood alcohol concentration of 0.184 per cent. By virtue of the Act, s17(3), the court was obliged to impose a fine of not less than $500 or a term of imprisonment not exceeding three months, or both, and in addition to disqualify her from holding or obtaining a driver's licence for a period of not less than 12 months. By reason of the Act, s19(1A)(b), no order for a restricted licence under the Traffic Act 1925, s36, could be made.
The Act, s17(5) provides:
"(5) Notwithstanding subsection (3), if a person who is convicted of an offence referred to in column 1 of the Table, satisfies the court which convicted the person that there are special circumstances why the minimum fine specified in the Table or the minimum period of disqualification specified in the Table should not be imposed, the court may impose a lesser fine or a lesser period of disqualification."
Counsel for the respondent submitted to the learned magistrate that special circumstances existed why the minimum period of disqualification should not be imposed, but did not submit that such circumstances existed why the minimum fine should not be imposed. Evidence was taken on 28 June 2002 and 20 September 2002, and on 27 September 2002 the learned magistrate found that special circumstances existed why neither the minimum fine nor minimum disqualification period should be imposed and made an order under the Sentencing Act 1997, s7(f), recording a conviction on the complaint and adjourning the proceedings for 12 months on the respondent giving an undertaking containing the conditions specified in the Act, s59, and further conditions imposed by the court to the effect that she not drive a motor vehicle during that period, save for the following purposes and on the following terms:
"1 to drive her daughter Shannon from her home at 9 Boyd Street, Lewisham to the Lauderdale Primary School each weekday morning during school term and to collect her from the school to take her home each afternoon the same days in 2002;
2 to collect her daughter Sarah from her group home once each fortnight and drive her to her home at Lewisham and to return her to her group home at the end of each visit;
3 during the course of the trip to collect or return the child Sarah to her group home attend to such shopping or banking or attendance at medical appointments for herself, her father or daughters Shannon and Sarah as may be required provided however that any interruption to such trip for those purposes shall be for no longer than a period of one hour in any trip.
4 to drive to her daughter Tamara's home and return not more than twice each month to attend to her daughters needs;
5 to drive in the event that any person living with her requires urgent medical attention not able to be otherwise obtained using an ambulance or by calling a doctor;
6 that the defendant not drive with any alcohol in her body;
7 that when driving for the purposes permitted by this undertaking she at all times drive by the most direct route and otherwise not stop save in the event of an accident or breakdown or to fill her car with petrol;
8 that she maintain a log book containing details of all driving done by her in compliance with this undertaking and enter into it before she undertakes any trip details of the proposed trip.
9 that she carry a copy of the Memorandum of Sentence that she will receive with her drivers licence at all times during any period of driving during this period of 12 months
10 that if at any time during an act of driving she is required to produce her drivers licence to any Police or authorised officer then she must also produce the Memorandum of Sentence of the sentence handed down today."
The learned magistrate noted in her decision that there was minimal evidence relating to the offence itself. She noted that the respondent went out drinking with a friend to a hotel in the city, got into her car and drove towards her male friend's home at Warrane and was intercepted quite near that home while driving erratically. She said there could not be any suggestion, given the reading that was returned, that the respondent had given sober and rational thought to the issue of driving and probably should have known that she should not have driven. She said the alcohol level reading was high and there was never any suggestion that the respondent thought that when she drove she might not be over the limit. The offence had occurred at about 9.20pm and the respondent had admitted to driving from a city hotel to Warrane. The respondent had no previous convictions under the Act, but did have a number of previous traffic infringement notices for speeding and other traffic offences after 1996.
The respondent was aged 47 and was the mother of four children ¾ Tamara aged 30, Sarah aged 22, Shannon aged 11 and Benjamin aged 23. Only Shannon, the youngest, lived with her. She had separated from the father of those children in 1994. Shannon stayed with him every second week-end and there was a possibility of the child staying with her father for some period in the event that the respondent lost her licence. While there was an implication that the former husband was not very co-operative, there was no evidence that he had been asked to assist her in her current circumstances and had refused. She lived at Lewisham, having moved there from Seven Mile Beach shortly before the offence as the result of a relationship break-down and she said that she could only afford to purchase property at Lewisham. In February 2002, her father had moved in to live with her following surgery for a brain tumour. He was unable to drive and suffered short term memory loss and had other disabilities. It also appears that he had a drinking problem. She received the equivalent of $80 per fortnight from him for board. Her total income per fortnight was $728, including a $30 allowance for Austudy, but it appeared unlikely she would be able to pursue certain studies and that sum would probably not have been available to her for any length of time. Her outgoings amounted to $646 per fortnight.
The daughter Tamara was injured in a car accident in 1986 and has an acquired brain injury. She lives at Lower Longley with her partner and their one year old daughter. Her affairs are managed by the Public Trustee. She receives a Disability Support Pension. According to the respondent, although she lived in apparent independence, she had no social skills. Her partner had a driver's licence, but no vehicle. The respondent claimed that Tamara suffered periodic grand mal seizures. She conceded that in the event of an emergency, there would be people to call an ambulance. On the second hearing date she gave different and further evidence concerning Tamara in which she said that she came to stay with her a couple of nights a month and the learned magistrate inferred that these visits resulted from fallings out with her partner and calls for her mother to come and collect her. The learned magistrate concluded that there was no doubt that the respondent felt a sense of obligation to this daughter, but that the latter was nonetheless living an independent life and could get by without assistance from her mother. The evidence failed to satisfy the learned magistrate that there was a necessity for her to visit her daughter, nor that she could not do so on an irregular basis with assistance from her partner or another person. She noted that the respondent did not live with her partner, although she spent some nights per week staying at his home in Warrane. She noted that the partner had a car and that there was no evidence that he might not be prepared to assist the respondent on an irregular basis.
As to the child Sarah, she lives in a Disability Services Group Home in the northern suburbs where there is 24 hour supervision. She cannot bathe, dress or feed herself and also suffers grand mal seizures about twice a year. When this occurs, she is hospitalised. Although the respondent said she was required to attend the hospital when these seizures occurred, there was no explanation as to why the respondent had to go and why the hospital was unable to provide any necessary care. According to the respondent, Sarah stayed with her two to three days per fortnight and relied on her mother to manage her money and purchase substantial items. The respondent said that she was required to attend meetings with case managers on a regular basis to discuss Sarah's care. There was no evidence as to why this could not have been attended to by telephone. The learned magistrate found that even with discounted taxi fares due to Sarah's disability status, the cost of taxis between the northern suburbs and Lewisham would be prohibitive.
As to the child Shannon, bus arrangements were not particularly adequate. Shannon was continuing to attend the Lauderdale school for the remaining months of the current year, as the respondent did not wish to move her from her friends. The learned magistrate accepted that although there was some possibility the child could live with her father, this was not a reasonable option to expect the respondent to pursue. She noted that the evidence concerning the respondent's father was not seriously challenged and accepted that he is elderly, in very poor health and is dependent upon the respondent to a degree for any form of mobility. Her Worship accepted that although individually the various family difficulties the respondent faced might not amount to special circumstances, when viewed together and taking into account the other difficulties the respondent had faced in her life in recent years, her circumstances were somewhat extraordinary and beyond what Parliament may have envisaged when it provided for automatic disqualification. She accepted that the respondent's lack of a licence would have a wide-ranging implication for her and for several members of her family. The learned magistrate noted while making that general finding of the existence of special circumstances, that she retained a discretion as to whether or not she should impose a penalty less than the minimum. She noted that this was the respondent's first drink-driving offence, but that the reading was very high and that she had been driving erratically in circumstances where there was clearly a potential danger to other road users when she was intercepted. She said that there must be a deterrent and in her view it would not be appropriate to give recognition to the need for that deterrent by simply imposing a very short period of disqualification. She said the special circumstances were not such that the respondent needed to be able to drive on an unrestricted basis or that a shortened total period of disqualification would address the respondent's circumstances. She then proceeded to make a finding that there were special circumstances why the minimum fine and disqualification should not be imposed.
The appellant does not dispute that special circumstances existed why the minimum period of disqualification should not be imposed, but the grounds of appeal as amended are as follows:
"1The learned magistrate erred in fact and/or in law in being satisfied that there were special circumstances why the minimum fine should not be imposed.
2The learned magistrate erred in fact and/or in law in exercising a discretion, having found that there were special circumstances, to impose a penalty less than the minimum penalty(ies) prescribed by Section 17(3) of the said Act.
3The learned magistrate erred in law in that, having found that there were special circumstances and having exercised her discretion to impose a penalty less than the minimum penalty(ies) prescribed by Section 17(3) of the said Act, she failed to impose a fine and a period of disqualification upon the respondent.
4The learned magistrate erred in fact and/or in law in imposing a penalty that was manifestly inadequate in all the circumstances of the case."
Not only was there no application for a finding that there were special circumstances why a lesser fine should have been imposed, but the circumstances of the respondent in this respect were clearly not shown to have been special. Her income exceeded her outgoings, she was purchasing a house, had only one child living with her and dependent upon her, and it was not shown that her father could not make a more generous contribution to the expenses and effort involved in looking after him. Her circumstances could not be said to be "out of the general run of cases that Parliament had in mind when it enacted s17(5)" (per Zeeman J in Strickland v Whitehead B60/1995 at 5). In my view, there was no basis upon which the learned magistrate could properly fail to impose the minimum fine and she erred in not doing so.
As to ground 2, the learned magistrate accepted that where special circumstances are shown to exist (and the applicant does not dispute that they did exist in respect of the disqualification period) nevertheless she had a discretion whether or not to impose a lesser period of disqualification. The applicant submits that in view of the high reading, the fact that the respondent was observed to drive erratically and the distance travelled through built-up areas at 9.30 at night, the learned magistrate ought not to have exercised her discretion to exercise the powers she had under s17(5). With respect, as I will explain when I come to ground 4, I think the learned magistrate gave inadequate weight to these factors, but I do not accept that the factors I have referred to should have precluded the learned magistrate from exercising her discretion to impose a lesser period of disqualification.
Ground 3 raises an interesting point. Section 17(3) clearly requires the court to impose certain minimum penalties. The option of a period of imprisonment instead of the minimum fine can be put to one side, as this was clearly not a case for imprisonment. Where special circumstances exist why one or both of those minimum penalties should not be imposed, subs(5) authorises the court to impose "a lesser fine or a lesser period of disqualification". It does not say that the fine or disqualification may be waived, or that some other penalty can be imposed.
In Strickland v Whitehead (supra) at 1, Zeeman J said:
" Section 17(5) provides that in such circumstances the court may impose 'a lesser period of disqualification'. Whether that provision authorises a magistrate to impose no period of disqualification at all may be open to doubt. Although that question appears to be raised by one of the grounds of appeal, it was not argued and it is unnecessary to express any concluded view concerning it."
In three other Lower Court Appeals, judges have, in respect of the special circumstances there relied upon and held to justify the imposition of a lesser period of disqualification, declined or failed to impose any period of disqualification at all. In Mazengarb v White B38/1993, Crawford J quashed a fine of $500 and disqualification for 15 months imposed where the applicant had been faced with an unavoidable medical emergency, in which his Honour said, "The public interest demanded that he ride the motorcycle to go for help" (at 5). He took the view that "no punishment whatever was warranted in the most unusual and special circumstances of this case" (ibid). Turner v Visser 93/1998 was another medical emergency case where the magistrate rejected the proposition that there were special circumstances why the minimum fine and disqualification should not be imposed and imposed a fine of $200 and a period of disqualification for three months. Evans J allowed the appeal and invited submissions as to consequential orders. The Minute Book for 6 August 1998 records that no consequential orders were sought and his Honour thereupon ordered that the sentence be quashed without imposing any alternate sentence. In Snoxall v Visser [2002] TASSC 89, Evans J allowed an appeal against the magistrate's ruling that the applicant's voluntary surrender of his licence for three months in the mistaken belief that service of an infringement notice under the Act, s18A operated as a cancellation of the licence, was not a special circumstance for the purposes of s17(5). The magistrate had imposed a three month disqualification and a fine of $200 notwithstanding that the applicant had already voluntarily abstained from driving for three months and by the time a stay of proceedings was ordered, he had been kept off the road for a further month by court order. Evans J set aside the disqualification and concluded, at 3:
"In respect of this offence, the applicant has mistakenly served a period of three months' licence disqualification and he has suffered a disqualification of about one month in respect of the penalty I have set aside. In these circumstances, I consider it would be unreasonable to take a course which would involve reagitating the appropriateness of the imposition of a period of licence disqualification upon the applicant."
There may well be cases where justice demands that no effective punishment be inflicted, even though a law has been broken. Where some form of penalty is mandated, justice can sometimes be done by imposing a nominal penalty so as to satisfy the letter of the law without flouting its intent. Instances where nominal penalties were imposed, although upset for other reasons, are Hatcher v O'Sullivan [1949] SASR 240 and Morris v Roufos (1975) 11 SASR 3 where nominal penalties of a few hours' disqualification were set aside in the absence of special circumstances in relation to the offence and Harriss v Walker, a decision of mine, A56/1996 where imprisonment to the rising of the court as an alternative to a minimum fine under s17(5) was set aside as manifestly inadequate in the circumstances of the case. I have no doubt that nominal penalties would not have been inappropriate in the circumstances of the three cases I have mentioned where no lesser fine or lesser period of disqualification was imposed, but rather no fine or a disqualification at all was imposed. If the failure to impose a nominal penalty in circumstances such as these offends the Act, s17(5), it is hard to imagine that an appellate court exercising the powers of review given by the Justices Act 1959, s110(2)(ab) or s123(3) would not consider that no substantial miscarriage of justice had occurred even though the matter raised by the motion might be decided in favour of the applicant thereto.
In Davies v Deverell (1992) 1 Tas R 214, Zeeman J set aside an order suspending, on the basis of hardship, the payment of the minimum fine required to be paid under s17(3), there being no application under s17(5). At 220 he said:
"Parliament has provided for minimum penalties and provided for the circumstances where penalties of lesser severity than the minimum penalties may be imposed. The suspension of payment of part of the minimum fine merely because to require payment is seen as being unduly harsh is an impermissible way of circumventing the plainly expressed intention of the legislature."
With respect, in my view, s17(5) still requires the court, even in the very special circumstances alluded to above, to impose some fine and some disqualification albeit only nominal. The device of adjourning the proceedings on conditions pursuant to the Sentencing Act, s7(5), was not within the authority given by the Act, s17(5), and was an impermissible way of circumventing the plainly expressed intention of Parliament.
Ground 4 claims that the sentence was manifestly inadequate in all the circumstances of the case. I have already found it inadequate by reason of the failure to impose the minimum fine, but in any event I am of the view that for an offence of this gravity in respect of which no mitigating circumstances were advanced, the adjournment of the proceedings for 12 months on conditions equivalent to the grant of a restricted licence which the learned magistrate was prohibited from granting, was manifestly inadequate. She recognised in the course of her reasons for decision that a deterrent sentence was necessary and that the imposition of a very short period of disqualification would not achieve that objective. This was not a case like the medical emergency cases where a nominal or even short period of total disqualification was appropriate. Though special circumstances had properly been found to exist for alleviating the full consequences of a conviction under the Act, s6, the restrictions placed upon the respondent's ability to drive are not particularly onerous and would have very little general deterrent effect. No doubt it was the intention of Parliament to give weight to the aspect of deterrence when it denied certain offenders, including the respondent, the opportunity to procure a restricted licence.
The appeal succeeds and the orders of the learned magistrate are quashed.
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