Lusted v Palmer; Hibble v Warrener; Hibble v Pepper; Parker v Barron

[2010] TASSC 5

[2010] TASSC 5

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Lusted v Palmer; Hibble v Warrener; Hibble v Pepper;
  Parker v Barron [2010] TASSC 5

PARTIES:  LUSTED, Gary (Sergeant)
  v

PALMER, Kevin Vincent

HIBBLE, Kim (Acting Sergeant)
  v
  WARRENER, David Allen

HIBBLE, Kim (Acting Sergeant)
  v
  PEPPER, Carrie Eve

PARKER, John Martin (Sergeant)
  v

BARRON, Christopher James

FILE NO/S:  LCA 1032/2009
  LCA 1033/2009
  LCA 1034/2009
  LCA 1035/2009

DELIVERED ON:  4 March 2010
DELIVERED AT:  Hobart
HEARING DATE:  11 February 2010
JUDGMENT OF:  Tennent J

CATCHWORDS:

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Other offences – Drive whilst qualified – Interpretation of penalty provisions – Requirement to fine, imprison or both and disqualify.

Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss17, 17A and 19A.

Acts Interpretation Act1931 (Tas), ss8A and 37.

Aust Dig Traffic Law [80]

REPRESENTATION:

Counsel:
             Applicant:  J P Ransom
             Respondents (Barron, Pepper& Warrener):     D Grey
             Respondent Palmer:  In person
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondents (Barron, Pepper & Warrener):    Zeeman Kable & Page

Judgment Number:  [2010] TASSC 5
Number of paragraphs:  34

Serial No 5/2010
File Nos 1032/2009

1033/2009
1034/2009
1035/2009

SERGEANT GARY LUSTED v  KEVIN VINCENT PALMER
ACTING SERGEANT KIM HIBBLE v DAVID ALLEN WARRENER
ACTING SERGEANT KIM HIBBLE v CARRIE EVE PEPPER
SERGEANT JOHN MARTIN PARKER v CHRISTOPHER JAMES BARRON

REASONS FOR JUDGMENT  TENNENT J

4 March 2010

1. In October and November 2009, four people appeared before the same magistrate charged with, amongst other things, drive whilst disqualified contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s19A(1). Each pleaded guilty. Three were convicted and fined. One was not convicted, but placed on an undertaking to be of good behaviour. None of the four offenders was further disqualified from driving. The prosecuting authority in each matter ("the applicants") has sought to review the decisions of the learned magistrate.

1. There are two grounds of review in each matter.  In respect of the matters where a fine only was imposed, the first ground of review is that the learned magistrate erred in law by failing to proceed to further disqualify the offender in each case.  The second ground is in the alternative, and asserts that the learned magistrate imposed a sentence that was manifestly inadequate in all the circumstances of the case.  In respect of the fourth matter, where no conviction or fine was imposed, the first ground of review is that the learned magistrate erred in law by failing to fine or imprison the offender or both, and by failing to disqualify him.  The second ground was expressed to be the same as that in the other three reviews.

1. The primary issue to be determined in all four of the reviews is the interpretation of the Act, s19A(1). There are two aspects to the issue. The first is whether the section requires a magistrate to, at the very least, fine or imprison an offender. The second is whether a magistrate is required, as opposed to has a discretion, to, in addition, impose a period of disqualification on the offender.

1. The respondents who were convicted and fined were represented by one counsel.  The fourth respondent was unrepresented.  That respondent made no submissions as to the law on this hearing.

Summary of facts in each case

Palmer

1. Mr Palmer was charged with one count of drive whilst disqualified contrary to the Act, s19A(1). On 24 August 2009, he was intercepted by police. There were no aggravating circumstances, and Mr Palmer admitted he was a disqualified driver. He subsequently appeared before the learned magistrate on 25 November 2009 and pleaded guilty. He told the learned magistrate that he was driving because he needed bread and milk, and the shop was three kilometres away. When asked if he was working, Mr Palmer's response was to say that he was losing his memory. He knew that he was disqualified. He said he had diabetes and memory loss, but did not know why.

1. Mr Palmer had prior relevant convictions.  On 22 June 1993, he was convicted of a drink driving offence and disqualified from driving.  He was convicted of a drink driving offence again on 14 November 2007 and disqualified from driving.  Shortly thereafter, he obtained a restricted licence.  On 29 July 2009, Mr Palmer was again convicted of a drink driving offence.  On this occasion, he was disqualified from driving for three years.  He was intercepted driving less than a month later.

1. When Mr Palmer pleaded guilty, the learned magistrate did not proceed to conviction but simply placed Mr Palmer on what he described as an undertaking to be of good behaviour for 12 months.  There was no other penalty or further period of disqualification imposed.

Warrener

1. Mr Warrener was charged with one count of drive whilst disqualified contrary to the Act, s19A(1), one count of driving an unregistered vehicle and one count of driving an uninsured vehicle. On 5 October 2009, Mr Warrener was intercepted by police in Paterson Street. His vehicle was pulled up because of an expired registration label. When he was intercepted, Mr Warrener admitted he was a disqualified driver.

1. Mr Warrener had prior relevant convictions.  He had been convicted of a drink driving offence in August 1984.  The court disqualified him from driving.  On 29 March 1988, he was disqualified from driving again, but as a result of an accumulation of demerit points.  Less than two months later, he drove with alcohol in his body.  On 20 June 1988, he was convicted of a drink driving offence and the offence of drive whilst disqualified.  He was, in addition to other penalties, further disqualified.  He did not breach that order.

1. On 19 February 2009, Mr Warrener was again convicted of a drink driving offence.  He was disqualified from driving for eight months from that date.  Police intercepted him driving on 5 October in the same year, a matter of a few weeks before his period of disqualification was due to end.  There was no acceptable reason for Mr Warrener to drive on that occasion.  He was at the time employed by Relationships Australia, and was required as part of his employment to drive.  During the period of his disqualification, a student counsellor had been driving him.  Mr Warrener would not be dismissed from his position if he lost his licence, but his position would be reviewed.  It was submitted at the time of his sentencing that, if he lost his job, he would suffer financial hardship.

1. On 25 November 2009, the learned magistrate before whom Mr Warrener appeared, convicted and fined him, but did not impose any further period of disqualification.

Pepper

1. Ms Pepper was charged with one count of drive whilst disqualified contrary to the Act, s19A(1), and one count of failing to wear a seatbelt. She was intercepted by police on 30 September 2009 because of the failure to wear a seatbelt. When intercepted, she admitted that she was a disqualified driver. She had been disqualified by a court on 17 September 2009, that is less than a fortnight before the interception. She had no adequate reason for driving and told police that she had taken a chance. Ms Pepper appeared before the learned magistrate on 25 November 2009 and pleaded guilty. She told the court that she had a school-aged child, and that her parents were able to drive her around. She was asked if she was prepared to do community service, and she said that she would. Her sentencing was adjourned to enable her to be assessed as to her suitability to perform community service.

1. When the matter came back before the learned magistrate, an officer from Community Corrections reported orally that Ms Pepper was unsuitable.  The officer told the court that she understood Ms Pepper was receiving psychiatric treatment for post-traumatic stress disorder and was a disability pensioner.  The learned magistrate proceeded to convict Ms Pepper and fine her, but did not impose any further period of disqualification.

Barron

1. Mr Barron was charged with one count of drive whilst disqualified contrary to the Act, s19A(1), one count of driving an unregistered vehicle and one count of driving an uninsured vehicle. On 20 June 2005, Mr Barron was intercepted by transport inspectors. He was found to be driving an unregistered and uninsured vehicle and to be a disqualified driver. His registration had in fact run out a matter of days earlier. It was not until 22 October 2009 that Mr Barron appeared before the magistrate and pleaded guilty to the offences arising from the June 2005 interception. The delay arose from Mr Barron's failure to appear when required earlier.

1. Mr Barron had prior relevant convictions.  On 29 March 1995, he was convicted of a drink driving offence.  He was fined and disqualified from driving for 12 months.  On 18 December 2000, he was convicted of a second drink driving offence.  He was fined and disqualified from driving for ten months.  On 20 March 2001, he was intercepted driving and subsequently charged with drive whilst disqualified.  On 9 January 2002, he was convicted, fined and disqualified from driving for four months.  On 19 March 2002, Mr Barron was convicted of four counts of drive whilst disqualified and three drink driving offences.  He was jailed, and further disqualified in respect of the drive whilst disqualified matters.

1. At the time of his plea of guilty in respect of the 2005 matter, Mr Barron was aged 33, and was a sales representative.  He drove significant distances as part of his work and he had a current driver's licence.  He had a partner and three children and expended most of his income on day to day living expenses.  The learned magistrate convicted Mr Barron of the offences with which he was charged and fined him, but did not impose any further period of disqualification.

The Act, s19A(1)

1. The section provides as follows:

"(1)A person who, except in so far as he is authorized to do so by a licence issued pursuant to an order made under section 18 of the Vehicle and Traffic Act 1999, drives a motor vehicle while he is disqualified from driving under this Act is guilty of an offence.

Penalty:  In the case of –

(a)a first offence – a fine not exceeding 40 penalty units or imprisonment for a term not exceeding 6 months (or both) and a further period of disqualification (not exceeding 3 years) fixed by the court; and

(b)a second or subsequent offence – a fine not exceeding 80 penalty units or imprisonment for a term not exceeding 12 months (or both) and a further period of disqualification (not exceeding 5 years) fixed by the court."

1. The section was last amended with effect from 14 August 2000. Prior to that time, the section itself contained no penalty provision. The relevant penalty provision was then contained in the Act, s17A. That section was inserted in the Act in 1991, at the same time that a new s17 was inserted, which provided for mandatory penalties for drink driving offences. Section 17A, as it was originally enacted, provided as follows:

"(1)A person who is convicted of an offence under this Act, other than an offence referred to in 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 holding or obtaining a driver's licence for a period not exceeding 3 years."

While the section has been amended over the years, the substance has remained the same.  That is, subs(1) provided that an offender, upon conviction, "is liable to a fine … or imprisonment" and subs(2) provided that a court, on conviction, "may" in addition to any other penalty, order an offender to be disqualified from driving.  Disqualification under that section was in the discretion of the court.

1. The wording of the penalty provisions in s19A(1) is clearly different from that in s17A. The wording of s17, that is the mandatory penalty provision inserted in 1991, is different again. Section 17 has been amended a number of times over the years since it was first enacted. However, subs(3) has remained substantially the same, save for some minor changes in wording. It provides:

"(3)Subject to subsection (5), a court that convicts a person of an offence specified in column 1 of the Table –

(a)must –

(i)impose a fine of an amount not less than the minimum amount shown in the Table and not more than the maximum amount shown in the Table; or

(ii)impose a term of imprisonment for a term not exceeding the term shown in the Table; or

(iii)impose both that fine and that term of imprisonment; and

(b)must, in addition, disqualify the person from driving for a period not less than the minimum period shown in the Table."

It is clear that, in respect of an offence referred to in the table, a court dealing with an offender was required to fine or imprison or both, and disqualify the offender from driving.  No discretion was afforded.  The offence of drive whilst disqualified was not an offence covered by the table.

1. The effect of these legislative changes is that, as from the date upon which the 2000 amendment to s19A took effect, the penalties for driving whilst disqualified under the Act were provided for by that section as amended and not s17A.

How then should the penalty provisions in s19A(1) be interpreted?

1. The Acts Interpretation Act 1931 ("the AI Act"), s8A provides:

   "(1) In the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object.

   (2) Subsection (1) applies whether or not the purpose or object is expressly stated in the Act."

2. The Act is described as being an act "to protect the public against the risks inherent in the driving of vehicles after consumption of intoxicating liquor and drugs; and for related purposes." While no doubt the primary purpose of the Act is to protect the public from drivers who drink or take drugs, the legislature saw fit to include in this Act specific provisions relating to penalties in respect of drivers who have been disqualified as a consequence of drink driving and then breach the order of disqualification.

1. Counsel for the applicants submitted that the s19A(1) penalty provisions should be interpreted such as to require a magistrate to impose a fine, or imprison, or both, and then, in addition, disqualify an offender from driving. Counsel for the respondents initial submission was that these penalty provisions could be read as providing that a magistrate could fine, or he or she could jail and disqualify. Another way, he submitted, that the provisions could be read was that a magistrate had the power to fine, imprison, or disqualify, or order a combination of any of these. Counsel submitted that because there were different interpretations such as those he had referred to, the provisions were ambiguous. If there were such an ambiguity, the provisions should be read in the manner most favourable to the offender.

1. With respect, the first suggested interpretation ignores the wording of the provision, in particular the words "(or both)" after the words "6 months". The second interpretation requires the words "or" and "and" to be interpreted in a manner inconsistent with their normal meaning. There is nothing in the AI Act which would support such an interpretation. The plain meaning of the words is that the options available are:

·     a fine; or

·     imprisonment; or

·     both a fine and imprisonment;

and additionally a further period of disqualification.

There is in my view no ambiguity as suggested by counsel.

1. Counsel for the respondents' second submission, in the event that I should be against him as to his first submission, relied on the AI Act, s37(1). That provides:

"(1) Where in an Act a penalty is specified in respect of a contravention of, or a failure to comply with, that Act or a provision of that Act, then, unless the contrary is expressly provided, that specification indicates that the contravention or failure to comply is an offence punishable by a penalty not exceeding that so specified."

While it makes no difference to the ultimate outcome in these matters, I suspect the reference should have been to subs(2) which provides:

"(2) Where in an Act a penalty is specified in respect of an offence against that Act, or a provision of that Act, then, unless the contrary is expressly provided, that specification indicates that the offence is punishable by a penalty not exceeding that so specified."

Counsel further relied on subs(4) which provides:

"(4) Where in an Act a maximum penalty and a minimum penalty are specified in respect of an offence against the Act or a provision of the Act, that specification indicates that the offence is punishable by a penalty not less than that minimum nor greater than that maximum."

1. Counsel for the respondents submitted that, because the penalty provisions in the Act, s19A(1), made no provision for a minimum penalty, then it was open to a magistrate to impose a zero fine or in fact no fine at all. He further submitted that, where there were no minimum penalty provisions, then a magistrate's sentencing discretion was at large, and regard could be had to the provisions of the Sentencing Act 1997, s7, and the sentencing options there provided for. Counsel submitted that, in those circumstances, to suggest that the penalty provisions in the Act, s19A(1) were in any way mandatory, flew in the face of the AI Act, s37(1).

1. With respect, I cannot see the relevance of either the AI Act, s37(1), (2) or (4) to the issue to be determined on these reviews. The Act, s19A(1), does not provide for a range of penalties between a minimum and a maximum (hence s37(4) does not apply), nor does it specify a fixed penalty as is often done (hence s37(2) does not apply). What s19A(1) provides for is a fine "not exceeding" a certain amount, a term of imprisonment "not exceeding" a certain length and a period of disqualification "not exceeding" a certain length. A plain reading of the s19A(1) penalty provisions, without recourse to the AI Act, s37, permits a magistrate to impose penalties, as in fines, terms of imprisonment and periods of disqualification up to the maximum amount specified. The provisions in the AI Act referred to also do not support the proposition that a proper construction of the penalty provisions is that, because there is no minimum penalty expressed, there is no obligation to impose any of those penalties at all. It would make a nonsense of the penalty provisions to interpret them in the manner suggested and would lead to the question, why have the s19A(1) penalty provisions at all?

1. As to the Sentencing Act, Part 2 of that Act, which is where s7 appears, is headed "General Sentencing Powers". Section 7 lists a number of penalty options available to a court. However, recourse to them is expressed to be "subject to any enactment relating specifically to the offence" [my emphasis]. Clearly, s19A, is an enactment relating specifically to the offence of drive whilst disqualified. Were the Act silent as to the appropriate penalty for the offence, recourse could be had to s7. Since the Act is not silent, the Act and its penalty provisions are what the Court should deal with.

1. Having regard to the purpose of the Act and the need by virtue of the AI Act, s8A, to give effect to that purpose, the changing terminology which appears throughout the Act, ss17A and 19A (in particular the absence of the discretionary "may" in s19A which appeared in s17A) and the wording of the Act, s19A(1), the only logical interpretation of s19A is that a magistrate is required, when sentencing an offender for the offence of drive whilst disqualified contrary to the Act, to fine that offender or jail that offender or do both. There remains clearly a discretion in the hands of the magistrate as to the level of fine or imprisonment provided it does not exceed the maximum penalty provided for.

1. Is a magistrate required however, in addition to any fine or imprisonment, to disqualify an offender. The Act, s19A(1) does not contain, as does s17, the word "must" in relation to the imposition of penalties. On the other hand, it also does not contain the word "may" in relation to disqualification, as s17A did. S19A(1) as it presently stands was enacted after s17A. Had Parliament intended to continue to repose in a magistrate a discretion whether to disqualify or not, it could have done so. That it did not supports the more likely interpretation, which is that a magistrate is required to disqualify.

1. In relation to the respondent Mr Palmer, the learned magistrate neither fined, imprisoned nor disqualified him.  It follows from the conclusions that I have reached that, in imposing the sentence that he did upon Mr Palmer, the learned magistrate was in error.  Even leaving aside the issue of disqualification, the review in respect of Mr Palmer's sentence must succeed.

1. As to the remaining three respondents, Mr Warrener, Ms Pepper and Mr Barron, since the conclusion I have reached is that the learned magistrate was obliged to impose a period of disqualification, and since his Honour failed to do so in respect of any of these respondents, then it follows that he was in error in failing to further disqualify each of them. The consequence of that finding is that ground one in each of the reviews of their sentences must succeed.

1. As a consequence of that conclusion, it is unnecessary to consider the second ground of review.

1. In the circumstances, the review in each case is allowed.  The consequence of that is that the sentences imposed by the learned magistrate in respect of each of the respondents should be quashed.  I will not make that formal order immediately but will hear further from counsel as to the manner in which they submit these matters should be disposed of.