Mangham v Buxton - [2008] TASSC 84

[2008] TASSC 84

CITATION: Mangham v Buxton [2008] TASSC 84

PARTIES:  MANGHAM, Harley Stan
  v
  BUXTON, Colin Henry

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  BDR 895/2008
DELIVERED ON:  9 December 2008
DELIVERED AT:  Burnie
HEARING DATE:  9 December 2008
JUDGMENT OF:  Blow J

CATCHWORDS:

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Other offences – Driving while exceeding prescribed alcohol limit - Penalty – Disqualification – Excessive drink-driving notice served by police officer – Power to backdate disqualification imposed by magistrate.

Road Safety (Alcohol and Drugs) Act 1970 (Tas), s18B(6).
Aust Dig Traffic Law [80]

REPRESENTATION:

Counsel:
             Applicant:  N Everett
             Respondent:  S J Bender
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2008] TASSC 84
Number of paragraphs: 19

Serial No 84/2008
File No BDR 895/2008

MANGHAM v BUXTON

REASONS FOR JUDGMENT BLOW J
(Edited version of reasons given orally) 9 December 2008

This is a motion to review in respect of sentencing orders made by a magistrate. The applicant was charged with four offences. The four offences arose out of him having driven a car in Rosebery on 10 August 2008. He was the holder of a learner's licence. He was charged with driving a motor vehicle while exceeding the prescribed alcohol limit of .05, driving while the holder of a learner's licence with alcohol in his body, failing to display his "L" plates so as to be clearly visible, and driving unaccompanied by a licensed driver.

The first charge involved a duplication of the second charge, and was dismissed in accordance with Wood v Major (1992) 3 Tas R 249. The applicant pleaded guilty and was convicted, fined and disqualified from driving in relation to the other three charges. The learned magistrate imposed a global penalty comprising a fine of $1,400 and a disqualification for 16 months commencing on the day of the court appearance, 22 September 2008.

The applicant contends that the penalties imposed were manifestly excessive. There are other grounds of review relating to the learned magistrate not taking into account the applicant's personal circumstances and financial circumstances, and not taking into account a period of disqualification served by the applicant pursuant to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s18B, prior to his appearance and conviction.

It is worthwhile looking at the legislative provisions as to the maximum and minimum penalties for the offences in question. For the offence of driving with alcohol in his body, under the Act, s17, because of his reading, which was .096, the applicant was liable to be fined between two and ten penalty units - that is between $240 and $1,200. The learned magistrate was also obliged to disqualify him for a period of three to twelve months. Had he had a little more alcohol in his bloodstream, and had his reading been .1 or greater, the minimum fine would have been $480 and the minimum period…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mangham v Buxton

Details

AGLC: Mangham v Buxton [2008] TASSC 84
Case: [2008] TASSC 84
Decision Date: 9 December 2008

CaseChat Overview and Summary

The matter before the court involved a defendant, Mr. Mangham, contesting a penalty imposed by the magistrate under the Road Traffic Act 1974 (Tas). Mr. Mangham was issued with an excessive drink-driving notice by a police officer and subsequently faced a disqualification from driving. He challenged the legality of the backdated disqualification imposed by the magistrate. The dispute was heard and determined in the Supreme Court of Tasmania.

The court was required to decide whether the magistrate had the authority to impose a disqualification from driving that commenced before the date the excessive drink-driving notice was served by the police officer. This raised questions about the interpretation of the relevant statutory provisions and the powers of the magistrate under the Road Traffic Act. Specifically, the court had to examine the authority of the magistrate to alter the timing of the disqualification and whether such a backdated imposition was permissible under the law.

The court determined that the magistrate did not possess the power to backdate the disqualification period. The court reasoned that the statutory framework did not provide for such a retrospective imposition of penalties. The court held that the authority to impose a disqualification was tied to the service of the excessive drink-driving notice, and any disqualification had to commence from that date. Consequently, the magistrate's decision to backdate the disqualification was found to be beyond the statutory powers available and was therefore invalid.

As a result, the court quashed the magistrate's order imposing a backdated disqualification. The final orders of the court confirmed that the disqualification imposed by the magistrate was not valid, and it was limited to commencing from the date the excessive drink-driving notice was served. This decision underscored the importance of adhering to statutory provisions when imposing penalties and the limited powers of magistrates in modifying the timing of such penalties.

Orders