Jeffrey v Rigby
[2019] NTSC 2
•9 January 2019
CITATION:Jeffrey v Rigby [2019] NTSC 2
PARTIES:JEFFREY, Julian
v
RIGBY, Kerry Leanne
TITLE OF COURT: FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 50 of 2018 (21825081)
DELIVERED: 9 January 2019
HEARING DATE: 5 December 2018
JUDGMENT OF: Southwood, Kelly & Blokland JJ
CATCHWORDS:
CRIMINAL LAW – STATUTORY INTERPRETATION – TRAFFIC OFFENCES
Appeal against sentence – driving with a medium range breath alcohol content – whether offence was second or subsequent offence where previous offence was against now repealed Northern Territory legislation – statutory interpretation principles discussed – legislature’s intention readily inferable from words used – ratio of Burnham v Westphal(2012) 31 NTLR 1 and Keil v Westphal [2012] NTSC 11 relevant and followed – s 22(2) of the Traffic Act to be construed narrowly – narrow construction would still promote Traffic Act purposes – repealed offence materially different from current offence – general provision in s 123 of the Sentencing Act overridden by contrary intention in the Traffic Act – lower Court bound by Supreme Court authorities – appeal allowed – matter remitted for re-sentence
Interpretation Act (NT), s 62A
Local Court (Criminal Procedure) Act (NT), s 162
Misuse of Drugs Act (NT)
Road Traffic Act (WA), s 63(1)
Sentencing Act (NT), ss 21(1), 22(1), 123, 123(3)
Traffic Act (NT), ss 19, 19(1), 19(2), 21, 21(1), 21(2), 21(3)(a), 21(3)(b), 21(4), 21(4)(a), 21(4)(b), 21(4)(c), 21(5), 22(1), 22(2), 22(2)(a)(i), 22(2)(a)(ii), 22(2)(b), 22(2)(c), 22(2)(d), 22(2)(e), 22(3), 22(3)(b), 23, 23(1), 23(2), 29AAA, 29AAE, 29AAH
Traffic Act (1978) (NT), s 8(2), 19(2), 20, 39, 39(1)(e), 49, 49(1), 49(2)Australian Road Rules, rr 11(2), 12, 13
Explanatory Statement, Transport Legislation (Drug Driving) Amendment Bill 2007
Traffic Ordinance (No 3) (1973) (NT), s 8(2), 8(3)(a), 8(3)(b)Burnham v Westphal(2012) 31 NTLR 1; Keil v Westphal[2012] NTSC 11, followed
Alcan (NT) v Territory Revenue (2009) 239 CLR 27; Coulthard v Steer [1981] 12 NTR 13; Court v Feng (2013) 279 FLR 143; Police v Russell [2017] NTLC 30; Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355; R v Gronert (1976) 13 SASR 189; Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193, referred to
REPRESENTATION:
Counsel:
Appellant:M Aust and J Razi
Respondent: D Morters SC and H Riley
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Director of Public Prosecutions
Judgment category classification: A
Number of pages: 25
IN THE FULL COURT
OF THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINJeffrey v Rigby [2019] NTSC 2
No. LCA 50 of 2018 (21825081)
BETWEEN:
JULIAN JEFFREY
Appellant
AND:
KERRY LEANNE RIGBY
Respondent
CORAM: SOUTHWOOD, KELLY & BLOKLAND JJ
REASONS FOR JUDGMENT
(Delivered 9 January 2019)
THE COURT:
On 22 August 2018 the appellant pleaded guilty to a single count of driving with a medium range breath alcohol content, contrary to s 22(1) of the Traffic Act (“the Act”).
Following legal argument, Chief Judge Lowndes determined that the offence to which the appellant had pleaded guilty was a second or subsequent offence within the meaning of s 22(2) of the Act and disqualified the appellant from holding a driver’s licence for 12 months. Under s 22(3), the mandatory minimum period of disqualification from holding a licence is 12 months in the case of a second or subsequent offence as opposed to six months for a first offence.
Section 22(2) provides:
(2) An offence against subsection (1) (a relevant offence) is a second or subsequent offence if the person has previously been found guilty of any of the following offences:
(a)driving with:
(i)a high range breath or blood alcohol content; or
(ii)a medium range breath or blood alcohol content;
(b)driving under the influence of alcohol or a drug;
(c)failing to provide a sufficient sample of breath for a breath analysis;
(d)failing to give a sample of blood for analysis;
(e)driving with alcohol in the breath or blood (if the person, at the time of the previous offence, was of a class mentioned in section 24(1)).
The appellant had not previously been convicted of driving with a high range breath or blood alcohol content (an offence defined in s 21(1) of the Act), or with a medium range breath or blood alcohol content (an offence defined in s 22(1) of the Act) – or any of the other offences referred to in s 22(2). He had, however, one prior conviction in 1976 for “Exceed .08” under s 8(2) of the Traffic Ordinance (No 3) (1973) and one in 1979 for “Exceed .08” under s 8(2) of the Traffic Act (1978).
The appellant contends that the sentencing judge was in error in finding that the offence to which he pleaded guilty in August 2018 was a second or subsequent offence. The appellant contends that s 22(2) should be given a narrow construction such that “driving with a high range breath or blood alcohol content” refers only to an offence against s 21(1) of the Act, and “driving with a medium range breath or blood alcohol content” refers only to an offence against s 22(1) of the Act, and so on.
The respondent contends that the sentencing judge in the Local Court was correct to interpret s 22(2) broadly to include convictions for offences under now repealed Northern Territory legislation.
Single judge Supreme Court decisions:
The aggravated penalty provisions in the Act have been considered in two single judge decisions in this Court, one by Southwood J (Burnham v Westphal)[1] and one by Kelly J (Keil v Westphal).[2]
Burnham v Westphal (“Burnham”)
The equivalent provision to s 22(2) in relation to the offence of driving with a high breath or blood alcohol content is contained in s 21(2). The wording is identical to s 22(2). In addition, s 21(4) provides:
However, if a court finds a person guilty of a relevant offence and the person has previously been found guilty of any of the following offences, committed within 3 years before committing the relevant offence:
(a)driving with a high range breath or blood alcohol content;
(b)failing to provide a sufficient sample of breath for a breath analysis;
(c)failing to provide a sample of blood for analysis;
the person’s licence to drive is automatically cancelled and the person is disqualified from obtaining a licence for a minimum period of 5 years.
Section 21(4) was considered by Southwood J in Burnham. That was an appeal against a finding by a magistrate that the aggravated penalty provisions in s 21(4) were enlivened by a conviction in Western Australia, within the relevant time frame, for the offence of “driving under the influence of alcohol”. (At the time of the Western Australian offence the appellant had a blood alcohol content of 0.153 percent which falls within the range of “high range breath or blood alcohol content” as defined in s 19 of the NT Traffic Act.) Southwood J allowed the appeal, holding that that conviction was not a conviction for the offence of driving with a high range breath or blood alcohol content within the meaning of s 21(4). His Honour’s reasoning was as follows:
[25] … The offence created by s 63(1) of the Road Traffic Act (WA) is not the same class of offence as that created by s 21(1) of the Traffic Act (NT). Subsection 21(2) of the Act determines when an offence against s 21(1) of the Act is a second or subsequent offence. The text of s 21(2) and s 21(4)(a) of the Traffic Act (NT) make it clear that the offence referred to in s 21(4)(a)[3] is the specific offence created by s 21(1) of the Act. The text of s 21(4)(a) of the Act, properly construed, limits the application of s 21(4) to prior offences against s 21(1) of the Act. An offence of “driving with a high range alcohol content” is an offence committed contrary to s 21(1) of the Act. Likewise, the text of s 21(4)(b) of the Act limits the application of s 21(4) of the Act to offences against s 29AAE of the Act and the text of s 21(4)(c) of the Act limits the application of s 21(4) of the Act to s 29AAH of the Act.
…
[28] Subsections 21(2), (3)(b) and (5) of the Traffic Act (NT) are to be interpreted in the same manner as s 21(4) of the Act. The appellant should have been sentenced in accordance with s 21(3)(a) of the Act. That is, for a first offence.
That reasoning supports the narrow interpretation of s 22(2) contended for by the appellant. In fact the underlined portion sets out that “narrow” interpretation precisely.
Keil v Westphal (“Keil”)
In Keil v Westphal, Kelly J considered s 22(2), the section at issue in the present appeal. That was an appeal against a period of disqualification of 12 months imposed by a magistrate after a conviction for driving with a medium range breath or blood alcohol content contrary to s 22(1) of the Act. That period of disqualification was imposed because the magistrate found that the appellant’s offence was a second or subsequent offence within the meaning of s 22(2), based on a conviction for an offence under South Australian legislation of driving with excess blood alcohol. Kelly J allowed the appeal, following Burnham. Her Honour quoted those parts of the judgment of Southwood J set out above and applied them as follows.
[16] Section 22(2) of the Act must be interpreted consistently with that reasoning. [ie the reasoning in Burnham] Hence:
(a) the offence referred to in s 22(2)(a)(i) of driving with a high range breath or blood alcohol content, is limited to an offence against s 21(1);
(b) the offence referred to in s 22(2)(a)(ii) of driving with a medium range breath or blood alcohol content, is limited to an offence against s 22(1);
(c) the offence referred to in s 22(2)(c) of failing to provide a sufficient sample of breath for a breath analysis is limited to an offence against s 29AAE;
(d) the offence referred to in s 22(2)(d) of failing to give a sample of blood for analysis is limited to an offence against s 29AAH.
Although not specifically referred to in Burnham, by the same reasoning:
(e) the offence referred to in s 22(2)(e) is limited to an offence against s 24; and
(f) the offence referred to in s 22(2)(b) of driving under the influence of alcohol or a drug, must be limited to an offence against s 29AAA of the Act.
[17] It follows that, as the appellant was not alleged to have had a conviction for an offence against any of these provisions of the Act, the offence to which she pleaded guilty was not a second or subsequent offence as defined in s 22(2); the provisions of s 22(3)(b) did not apply; and the learned magistrate was in error in holding that 12 months disqualification and 12 months disqualification from driving without an Alcohol Ignition Lock were the minimum prescribed by the Act. The first ground of appeal is therefore made out. I should add that the respondent conceded that this ground of appeal had been made out in light of the decision in Burnham.
The underlined portion of that judgment also sets out the “narrow” interpretation precisely and indeed spells it out unambiguously.
Both Burnham and Keil concerned whether the aggravated penalty provisions in the Act were enlivened by interstate convictions, not convictions under repealed Northern Territory legislation, and so are not directly on point. However, the reasoning in Burnham, adopted and followed in Keil, specifically supports and articulates the narrow interpretation contended for by the appellant as part of the ratio of each case.
The respondent, however, relies on an obiter remark by Southwood J in Burnham which provides some support for the interpretation adopted by the sentencing judge in this case. At paragraph [6] of Burnham, Southwood J said:
The principal issue in the appeal is – were the aggravated penalty provisions of s 21(4)(a) of the Traffic Act (NT) enlivened by the appellant’s conviction in Western Australia on 18 September 2008 of driving under the influence of alcohol? In other words, was the Western Australian offence an offence of “driving a motor vehicle with a high range blood alcohol content” within the meaning of s 21(4) of the Traffic Act (NT)? In my opinion, it was not. The sentencing Magistrate erred in law in applying s 21(4) of the Traffic Act (NT) in the appellant’s case. An offence of “driving a motor vehicle with a high range blood alcohol content” is an offence which is committed in the Northern Territory contrary to the provisions of s 21(1) of the Traffic Act (NT) or the equivalent repealed provisions of the Act.
The respondent relies on the underlined remark.
The construction of s 22(2)
The respondent relies on the following general principles of statutory interpretation.
(a)The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[4]
(b)The text and structure of the provision should be considered “in the context of the Act as a whole, the general purpose and policy of the provision, and its consistency and fairness”.[5]
(c)The relevant context includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[6]
(d)A construction that promotes the purpose or object underlying the Act (whether the purpose or object is expressly stated in the Act or not) is to be preferred to a construction that does not promote the purpose or object.[7]
The respondent contends that the sentencing judge was correct to find that the purposes of the Act include:
(a)ensuring road safety by encouraging observance of road rules and regulations;
(b)deterring drivers from consuming alcohol and taking drugs and then driving; and
(c)preventing recidivism (by imposing substantial penalties for repeat offenders).[8]
The respondent further submits that the narrow interpretation advanced by the appellant would not promote these underlying purposes or objects of the Act and so the broader interpretation contended for by the respondent should be preferred.
It is not at all clear how the narrow interpretation contended for by the appellant would not promote the underlying purposes of the Act. Perhaps having a greater range of past offences rendering a person liable to aggravated penalties might have a greater deterrent effect, but that is not the same as saying the narrower interpretation does not promote the objects and purpose of the Act at all: it plainly does. Further, the intention of the legislature is primarily to be inferred from the words used and, as explained in Burnham,[9] the words used in s 22(2) (and the aggravated penalty provisions in ss 21 and 23) are apt to refer only to the offences created in ss 21(1), 22(1) and 23(1).[10] The reasons expressed in Burnham (and applied in Keil) as to why the aggravated penalty provisions do not pick up differently defined offences in interstate legislation are equally applicable to differently defined offences in repealed Northern Territory legislation. The respondent, however, contends that the offences in the now repealed s 19 and, before that, s 8, are not materially different from those created in ss 21(1), 22(1) and 23(1).
The respondent relies on the fact that s 22(2) is worded in terms that describe the conduct that is relevant, for example, driving with a high/medium range alcohol content, as opposed to specifying provisions of the Act, for example s 21(1) or 22(1).
The respondent also points to the definitions (for the purposes of Part V of the Traffic Act) of “drive”, “medium range breath or blood alcohol content” and “high range breath or blood alcohol content”:
(a)“Drive” means the act of driving a motor vehicle. It includes starting the engine of a motor vehicle; putting a vehicle in motion; and attempting to do any of those things on a road, road-related area or public place.[11]
(b)“Medium range breath or blood alcohol content” is defined as:
· a BrAC of 0.08 grams or more, but less than 0.15 grams, of alcohol per 210 litres of exhaled breath; or
· a BAC of 0.08 grams or more, but less than 0.15 grams, of alcohol per 100 millilitres of blood.[12]
(c)“High range breath or blood alcohol content” is defined as:
· a BrAC of 0.15 grams or more of alcohol per 210 litres of exhaled breath; or
· a BAC of 0.15 grams or more of alcohol per 100 millilitres of blood.[13]
The respondent contends that by reference to these definitions, one can state with precision which prior convictions of an offender will enliven the aggravated penalty provision in s 22(2) by reference to the conduct proscribed in those past offences. For example, one can state with precision that both of the appellant’s prior convictions fall within the conduct described in s 22(2)(a)(ii). Both involved “driving” within the definition of the Act, and “exceed .08” puts both within the definition of “medium range breath or blood alcohol content”.
In fact that submission is true only in a broad sense. In the legislation as it was when the appellant was convicted of the 1976 and 1978 offences, there were no such offences as driving with a “high range breath or blood alcohol content” or driving with a “medium range breath or blood alcohol content”. There was a single offence provision. Section 8(2) of the repealed legislation (both Ordinance and Act) provided:
A person shall not, on a public street or public place –
(a)drive a motor vehicle;
(b)start the engine of a motor vehicle; or
(c)put a motor vehicle in motion,
if he has a concentration of alcohol in his blood equal to 80 milligrams or more of alcohol per 100 millilitres of blood.[14]
One would not be able to tell whether the previous conviction was for the equivalent of driving with a medium range breath or blood alcohol content or driving with a high range breath or blood alcohol content without knowing what the actual reading was.
The driving part of the conduct proscribed in the repealed s 8(2) also does not mesh precisely with the definition of “drive” in the current act. That would not necessarily matter as the proscribed conduct in the repealed section is more limited than the definition in the current act. (It did not include attempts.)[15]
The respondent also submits that the sentencing judge was correct to draw the inferences he did from the repeal of ss 39 and 49 of the Act. These were repealed as part of the amendments creating Part V of the Act which contains ss 21 and 22. Section 39 previously governed the mandatory licence disqualifications for repeat offenders and s 49 defined the meaning of a “second or subsequent offence” for the purpose of imposing increased penalties.
In Burnham, Southwood J said (at [26]-[27]):
As was submitted by counsel for the appellant, s 21(4) of the Traffic Act (NT) does the work that was previously done by s 39(1)(e) of the pre-existing Traffic Act (NT) prior to its repeal by s 6 of the Transport Legislation (Drug Driving) Amendment Act 2008 (NT). Prior to its repeal s 39(1)(e) was in the following terms:
Where a court finds a person guilty of an offence [the relevant offence]
(a)against s 20 [refusing to submit to breath analysis or provide a sample of blood], or
(b)in which the concentration of alcohol is equal to or more than 150 mg per 100 mL of blood [a high range blood alcohol content offence]
committed within three years after committing an offence against
(a)s 19(2) for which the penalty was that specified s 19(3)(a)(ii) [a high range blood alcohol offence], or
(b)s 20
the person’s licence is by force of that finding, cancelled for such period, being not less than five years, as is fixed by the court and the person is disqualified from holding a licence for that period.
The repealed s 39(1)(e) [of] the pre-existing Traffic Act (NT) expressly provided that the offences which aggravated the relevant offence so as to make a person liable to be disqualified from driving for five years or more were offences against specific sections of the pre-existing Traffic Act. While s 21(4) of the Traffic Act (NT) is not drafted with such express specificity as the repealed s 39(1)(e) of the Act, the intention of the legislature in repealing s 39(1)(e) and enacting s 21(4) of the Act was not to include a prior conviction for a similar interstate offence as an aggravating circumstance which enlivened the greater mandatory minimum period of disqualification from obtaining a drivers licence, of five years, for a relevant offence. Rather, the intention of the legislature was simply to incorporate the provisions of s 39(1)(e) into Part V of the current Act. If Parliament had intended to broaden the aggravating circumstances of an offence against s 21(1) of the Traffic Act (NT) it would have done so by clear and express words.[16]
The Local Court judge deciding the case of Police v Russell[17] purported to apply the same reasoning by saying that “it was not the intention of Parliament to narrow the definition of ‘second or subsequent offence’ by removing the prior offending under the repealed s 19 as a trigger for the mandatory disqualification provisions”.[18] The sentencing judge in this case adopted that reasoning.
The old s 49 provided:
49 Second or subsequent offence
(1) For the purposes of this Act, a reference to a second or subsequent offence against a provision of this Act (other than section 19(1), (2) or (4) or 20), shall be read as a reference to an offence committed against that provision by a person who has previously been found guilty of –
(a)that offence; or
(b)a similar offence against the Traffic Act as in force immediately before the commencement of this Act.
(2) For the purposes of this Act, a reference to a second or subsequent offence against section 19(1), (2) or (4) or 20 shall be read as a reference to an offence committed against that provision by a person who has previously been found guilty of –
(a)that offence;
(b)an offence against any of those subsections or section 20; or
(c)any offence against section 8(1), (2) or (4) or section 8A of the Traffic Act as in force immediately before the commencement of this Act.
(3) In this section, a reference to an offence being committed against a provision includes a finding of guilt in relation to the offence.
The underlined words in ss 49(1) and (2) suggest that where the legislature wanted to include as aggravating circumstances for the purpose of penalty, offences under repealed legislation, or to include “similar offences”, it said so clearly. An inference may be drawn that by not specifically including “similar offences under repealed Territory legislation” in s 22(2) [or ss 21(2) and (4)] the legislature did not mean to include them.
Further, at no stage has the legislation provided for an “open ended” approach to including convictions under prior iterations of the Traffic Act in the provisions triggering aggravated penalties. The expression used in s 49: “any offence against s 8(1), (2) or (4) or s 8A of the Traffic Act as in force immediately before the commencement of this Act”, is apt to confine the operation of the aggravated penalty provisions in the repealed Act to narrowly defined offences – namely those sections as they existed immediately before the commencement of the Act – and not past offences that were similar or somehow thought to be in some sense equivalent. No such specific inclusions have been made in s 22(2) or the equivalent provisions in s 21 and 23.
On the other hand, instead of nominating the specific sections of the amended act that would trigger the aggravated penalty provisions, the legislature inserted descriptions of those offences which allow the specific provisions of the existing act to be identified with precision, and (with somewhat less precision) could also be used to identify relevant provisions in past iterations of the Act. An inference might be drawn that this difference in drafting between s 39 and s 22(2) is an indication that the legislature intended the aggravated penalty provisions to pick up all prior NT convictions that fit those descriptions.
The respondent relies on the statement in the second reading speech: “This clause repeals sections 49 and 50 as they have been incorporated into Part V of the Act.” On this basis, the respondent contends that the Legislature’s intention in repealing s 49 and enacting ss 22(2), 21(2) and 23(2) was to neither narrow nor broaden the scope of what enlivens an increased penalty for a second or subsequent offence, but simply to incorporate the provisions of s 49, including the application of repealed equivalent offences, into the current act. We disagree. While resort may be had to second reading speeches and explanatory memoranda as an aid to ascertaining the legislative intention, that intention is primarily to be ascertained by reference to the words used in the enactment. We consider that Southwood J was correct in saying in Burnham:[19]
The text of s 21(2) and s 21(4)(a) of the Traffic Act (NT) make it clear that the offence referred to in s 21(4)(a) is the specific offence created by s 21(1) of the Act. The text of s 21(4)(a) of the Act, properly construed, limits the application of s 21(4) to prior offences against s 21(1) of the Act. An offence of “driving with a high range alcohol content” is an offence committed contrary to s 21(1) of the Act.
…
Subsections 21(2), (3)(b) and (5) of the Traffic Act (NT) are to be interpreted in the same manner as s 21(4) of the Act.
Similarly, the text of s 22(2), which is worded in identical terms to s 21(2), makes it clear that the offence referred to in s 22(2)(a)(i) is the specific offence created by s 21(1) of driving with a high range breath or blood alcohol content and the offence referred to in s 22(2)(a)(ii) is the specific offence created by s 22(1) of driving with a medium range breath or blood alcohol content.
It might at first seem anomalous that the day before the commencement of s 22(2), a person who had previously been convicted of an offence against (say) s 19(1) and was on that day convicted of another offence against s 19(1) would automatically be subject to the higher prescribed penalty, whereas the next day, if convicted of an offence against s 22(1) for driving with the same percentage alcohol in his blood, he would not. However, it seems to us that that is the effect of the repeal of s 49 and its replacement by ss 21(2) and 22(2). It must also be kept in mind that all s 22(2) does is trigger the application of higher mandatory minimum penalties: a sentencing judge still has a discretion to impose a penalty equal to or higher than the minimum according to the circumstances of the offending and the offender including any relevant prior convictions.[20]
Respondent’s contentions re s 123 of the Sentencing Act
In addition to contending that the construction adopted by the sentencing judge is correct, the respondent relies on s 123 of the Sentencing Act which provides:
(1) A finding of guilt or conviction of an old offence counts as a finding of guilt or conviction of a new offence for the purpose of determining whether or not a person has previously been found guilty or convicted of the new offence.
(2) For this section:
(a)an old offence is an offence under a repealed statutory provision which is constituted by the same acts, omissions, matters, circumstances or things as an offence (the new offence) under an Act or an instrument of a legislative or administrative character which substantially re-enacts (whether in the same language or not) the repealed statutory provision; and
(b)a repealed statutory provision is an Act or a provision of an Act that has been repealed or an instrument of a legislative or administrative character or a provision of such an instrument that has been repealed or revoked.
(3) This section applies even where the new offence differs from the old offence in:
(a)its penalty; or
(b)the procedure applicable to its prosecution; or
(c)its classification; or
(d)its name;
unless a contrary intention appears in the Act or the instrument of a legislative or administrative character that creates the new offence.
The respondent contends that the effect of s 123 is that if s 8(2) (which was the basis of the appellant’s prior convictions from 1976 and 1979) was substantially re-enacted (whether in the same language or not) in ss 21(1) and 22(1) of the Act, then those prior convictions against s 8(2) count as findings of guilt against ss 21(1) or 22(1) as the case may be. Specifically, that means that the appellant has been found guilty of either driving with a high range breath or blood alcohol content within the meaning of s 21(2)(a)(i) or driving with a medium range breath or blood alcohol content within the meaning of s 22(2)(a)(ii) depending on the percentage of alcohol in his blood at the time of the earlier offence.
That submission, logically, is in the alternative to the respondent’s submission that s 22(2) should be given a “broad” construction. If the broad construction is adopted, resort to s 123 is not necessary and, arguably, not appropriate. The process of reasoning is as follows:
(a)The offence referred to in s 22(2)(a)(ii) of driving with a medium range breath or blood alcohol content refers to an offence against s 22(1) (the new offence). [Burnham at [25]; Keil at [16](b)]
(b)Each offence the subject of the appellant’s prior convictions under s 8(2) was “an offence under a repealed statutory provision which was constituted by the same acts, matters and circumstances” as the new offence, and the new offence is an offence under an Act “which substantially re-enacts the old offence in the form of the new offence”.
(c)Accordingly, by virtue of s 123, if a person has been convicted of an offence against s 8(2), he is deemed to have been convicted of an offence against s 22(1).[21] That being the case, if he is later convicted or found guilty of an offence against s 22(1), s 22(2)(a)(ii) would apply to render that later offence a second or subsequent offence.
There is considerable doubt whether s 123 could apply on its own terms. Even if one accepts that ss 21(1) and 22(1) together substantially re-enact s 8(2), it is highly arguable that the new offences in ss 21(1) and 22(1) are not “constituted by the same acts and circumstances” as the offence defined by s 8(2). The relevant act under all provisions is “driving a motor vehicle” but what constitutes “driving” in ss 21(1) and 22(1) has been broadened to include attempts to do the things encompassed by the definition of driving in s 8(2).
The relevant “circumstances” constituting the offence are the place in which the motor vehicle is driven and the applicable percentage alcohol content. Neither of these is “the same” for the purposes of ss 21(1) and 22(1) as they were for the old s 8(2).
(a)Place: The place in which the relevant act had to be done to fall within s 8(2) was “on a public street or public place”. The place in which the relevant act has to be done to fall within ss 21(1) or 22(1) is “on a road, road-related area or public place”. All of these terms are defined[22] and while common sense would lead one to suppose that they must refer to at least roughly similar places, the complexity of the definitions (especially in the more recent legislation) makes it well nigh impossible to ascertain the degree of overlap: suffice to say they are not “the same”.
(b)Concentration of alcohol: Under s 8(2) doing the act specified in the places specified constituted an offence against that section if the person had a concentration of alcohol in his blood equal to 80 milligrams or more of alcohol per 100 millilitres of blood. Under s 22(1) doing the act specified in the place(s) specified constitutes an offence against that section if the person has a concentration of alcohol in his blood of between 0.08 grams and 0.15 grams of alcohol per 100 millilitres of blood or a concentration of alcohol in his breath of between 0.08 gms and 0.15 gms of alcohol per 210 litres of exhaled breath. (Under s 21(1) the percentages specified are a concentration of alcohol in the blood of 0.15 grams or more per 100 millilitres of blood alcohol or a concentration of alcohol in the breath of 0.15 grams per 210 litres of exhaled breath.) Sections 22(1) and 21(1) together cover the same range of blood alcohol content as s 8(2). However, ss 21(1) and 22(1) introduce the concept of “breath alcohol content” for the first time. Although no doubt the values for breath alcohol content were chosen because they correspond at least roughly to the specified blood alcohol concentrations, this is not just a matter of using different words[23] to describe the same circumstance: for the purpose of s 8(2), the level of alcohol in a person’s exhaled breath was irrelevant.
The other reason why s 123 is not applicable is that it is expressed to apply “unless a contrary intention appears in the Act”.[24] In our view, the provisions of s 22(2) [and 21(2)] evince such a contrary intention by specifying what past offences will render a fresh offence against s 22(1) [or 21(1)] a second or subsequent offence. Put another way, s 22(2) is a specific provision which would over-rule the more general provision in s 123 of the Sentencing Act if that section were otherwise applicable. If the draftsman had had s 123 in mind when drafting s 22(2), one would not have expected s 22(2) to spell out in detail what prior convictions or findings of guilt would enliven the aggravated penalty provisions; it would have been sufficient to simply provide that the aggravated penalties applied for “a second or subsequent offence” and let s 123 do the work.
The appellant should have been sentenced on the basis that the mandatory minimum period of disqualification from holding a licence was six months. Accordingly, the appeal will be allowed and the sentence imposed by the sentencing judge set aside. Because it remains to exercise the sentencing discretion in light of all of the circumstances of the offence and of the offender, including any relevant prior convictions (ie relevant on ordinary sentencing principles), the age of those prior convictions, and any other relevant circumstances, we consider it preferable to remit the matter to the Local Court for re-sentencing where those matters can be properly ventilated and considered.
It is necessary to add some remarks about the approach taken by the sentencing judge to decisions of this Court which were of direct application and which were binding on his Honour. Both Burnham and Keil concerned the question of whether interstate convictions enlivened the aggravated penalty provisions in the Act, and not the question at issue in this case – whether those provisions applied to prior convictions under repealed Northern Territory legislation. However, the reasoning process in each of those cases was directly applicable to the issues in the present case.
In Burnham, Southwood J said:[25]
The text of s 21(2) and s 21(4)(a) of the Traffic Act (NT) make it clear that the offence referred to in s 21(4)(a) is the specific offence created by s 21(1) of the Act. The text of s 21(4)(a) of the Act, properly construed, limits the application of s 21(4) to prior offences against s 21(1) of the Act. An offence of “driving with a high range alcohol content” is an offence committed contrary to s 21(1) of the Act.
In Keil, Kelly J said:[26]
Section 22(2) of the Act must be interpreted consistently with that reasoning. [ie the reasoning in Burnham] Hence:
(a) the offence referred to in s 22(2)(a)(i) of driving with a high range breath or blood alcohol content, is limited to an offence against s 21(1);
(b) the offence referred to in s 22(2)(a)(ii) of driving with a medium range breath or blood alcohol content, is limited to an offence against s 22(1).
In each case, the quoted remarks formed part of the ratio of the case. It was not open to the learned sentencing judge to compare the reasoning in these two Supreme Court cases with the reasoning in a case decided in the Local Court and to prefer the latter. His Honour was bound to follow the Supreme Court authorities. As Muirhead J said in Coulthard v Steer:[27]
The concept of precedent is vital to the administration of justice in this country and its principles are in fact the foundation of the common law …
Muirhead J also referred to the decision of the Court of Criminal Appeal in South Australia in R v Gronert:[28]
It is not usual for lower courts to declare that higher courts have fallen into error. It might seem timely to repeat the remarks of Lord Hailsham of St. Marylebone in Broome v. Cassell & Co. (4) in dealing with a decision of the Court of Appeal that a previous opinion of the House of Lords had been decided per incuriam and was ultra vires.
The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers.
If the sentencing judge formed the view that it would be preferable for a different result from that required by the application of the reasoning in binding Supreme Court authorities, the appropriate course would have been to reserve that question of law for the consideration of the Supreme Court, stating a special case for the opinion of the Court under s 162 of the Local Court (Criminal Procedure) Act, perhaps with a request that the case stated be referred to the Full Court in the circumstances.
ORDERS:
(a)The appeal is allowed.
(b)The sentence imposed by the sentencing judge is set aside.
(c)The matter is remitted to the Local Court for sentencing according to law.
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[1] [2012] NTSC 2; (2012) 31 NTLR 1
[2] [2012] NTSC 11
[3] This is mistakenly given as s 24(4)(a) in the reported decision.
[4] Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381, [69]
[5] Court v Feng [2013] WASC 320; (2013) 279 FLR 143 at 145 [14], citing Project Blue Sky and Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193 at 206 [30]
[6]Alcan (NT) v Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]
[7]Interpretation Act, s 62A
[8]Reasons for Decision: Police v Julian Jeffrey, 22 August 2018, Chief Judge Lowndes, 12
[9] at [25]
[10] Sections 21(2) and 22(2) refer only to convictions for driving with a high range breath or blood alcohol content; or a medium range breath or blood alcohol content. Section 23(2) also refers to convictions for driving with a low range breath or blood alcohol content [the offence created by s 23(1)] but “only if the previous offence was committed after 1 July 2007 and only if the previous offence was committed within 3 years before committing the relevant offence”.
[11]Traffic Act, s 19(2)
[12]Traffic Act, s 19(1). “BrAC” means breath alcohol content and “BAC” means blood alcohol content.
[13]Traffic Act, s 19(1)
[14]Sections 8(3)(a) and (b) provided different penalties for higher or lower concentrations of alcohol.
[15] It would be more problematic if something could count as a second or subsequent offence on the basis of a past conviction for an offence which would no longer be an offence under the current act – for example if the repealed act included an attempt to drive and the current act did not.
[16] His Honour cited the Explanatory Statement by the Minister for Infrastructure and Transport of the Northern Territory about the Transport Legislation (Drug Driving) Amendment Bill 2007, Serial No. 132 at cl 6 for the underlined proposition.
[17][2017] NTLC 30
[18]at [20]
[19] at [25]
[20]Indeed that was the result in Burnham. Southwood J found that the penalty that had been imposed, while not mandated by s 21(4), was warranted on discretionary grounds.
[21] or s 21(1)
[22] “Public place” and “public street” are both defined in s 3(1) of the 1987 Act. The definition of “public place” is the same in the present act. However, “road is defined in s 19 of the current act by reference to the “Australian Road Rules – dictionary”. The definition in the Australian Road Rules dictionary is: “road” see rules 11(2) and 12. Rule 11 simply provides that the Australian Road Rules apply to vehicles and road users on roads and road-related areas. Rule 12 provides a long, complicated definition of road punctuated with exclusions and exceptions. Rule 13 defines “road related area” in terms which bring back in some of the exclusions in the definition of “road”, add other places, and provide yet other exclusions and exceptions to the exclusions. Some of the exclusions and exceptions refer to other legislation.
[23] For the purposes of s 123, it does not matter if the “acts, circumstances” etc constituting the old offence are described using different words from the new offence, provided those acts, circumstances etc are the same. [s 123(2)]
[24] Sentencing Act, s 123(3)
[25]at [25]
[26] at [16]
[27](1981) 12 NTR 13 at 15
[28] (1976) 13 SASR 189 at 191
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