Mangham v Buxton
[2008] TASSC 84
•9 December 2008
[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 of disqualification would have been six months. For not displaying his "L" plates, he was liable to a fine and disqualification. The maximum fine was 5 penalty units or $600. For being an unaccompanied learner, the maximum fine was $2,400, and he was also liable to disqualification. By virtue of the Vehicle and Traffic Act 1999, s19E, for driving as an unaccompanied learner, he was liable to minimum penalties of three months' disqualification and a $150 fine.
Notwithstanding the maximum penalties that are available under these pieces of legislation, I am satisfied that the global penalties imposed by the learned magistrate were manifestly excessive. The applicant had no prior convictions. He was 29 years old. He was unemployed. He was driving only a short distance from one part of Rosebery to another. There was no suggestion that he had been involved in any accident, nor that there was anything wrong with his manner of driving. He was apparently stopped at random by the police. He pleaded guilty on his first appearance.
It is, of course, a significant factor that he was not the holder of an ordinary licence and was an unaccompanied learner, but even taking into account those aggravating factors in relation to the drink-driving charge, I think that the fine and the period of disqualification were each out of all proportion to the seriousness of his offending.
So far as the second ground of review is concerned, it is significant that the learned magistrate was told almost nothing about the applicant's ability to pay a fine, and asked nothing about the applicant's ability to pay a fine. This is not the first time that I have had to deal with a motion to review from this magistrate in similar circumstances. Five years ago in Venn v White [2003] TASSC 115, I dealt with a motion to review when he had fined a man $2,500 without making any enquiry as to the man's capacity to pay and without being told anything about the man's capacity to pay. On that occasion I reviewed a number of authorities that stand for the proposition that a sentence must not be imposed on insufficient materials. In this case, the learned magistrate did have information that the applicant was unemployed, but he had no other information as to his financial position. Not all people can pay fines as large as $1,400. In that sort of situation the practical effect of the obligation not to sentence on insufficient materials is that a magistrate needs to make further enquiry. I made that clear in Venn v White. It would have been preferable if the learned magistrate had applied the principles that were made clear in that case. In my view he erred in imposing so large a fine without sufficient information as to whether or not the applicant had the ability ever to pay it.
Ground 2 also asserts that the learned magistrate erred in failing to take into account the effect that any disqualification would have upon the applicant. It was clear that he lived in Rosebery, and he told the learned magistrate that the disqualification would inconvenience his father and "mother-in-law", who would act as his drivers. I do not think the learned magistrate made any error in not enquiring further as to the consequences of a disqualification.
Ground 3 of the notice to review asserts that the learned magistrate erred by not taking into account a period of disqualification that the applicant had served pursuant to the Act, s18B. Pursuant to that section, he had been served with an excessive drink-driving notice on 10 August 2008. As a result, he had been disqualified from driving as from that date. Neither the prosecutor nor the applicant, who had no legal representation, told the learned magistrate that such a notice had been served. The learned magistrate made no enquiry as to whether such a notice had been served. This case illustrates the importance of a prosecutor informing a magistrate when such a notice has been served. In a situation where a motorist appears before a magistrate unrepresented, great injustice can result if a prosecutor does not inform the magistrate of the service of the notice and the early commencement of a period of disqualification. It would have been desirable for the learned magistrate to have enquired about that point, since the applicant's reading was high enough for such a notice to have been served.
One of the questions that can arise in a case like this is whether a magistrate is entitled to backdate a period of disqualification so as to commence at the time of the service of the notice under s18B. There is no legislative provision that expressly states that a magistrate has power to backdate a period of disqualification in such circumstances. Section 18B(6) reads as follows:
"(6) If, on the subsequent hearing of the charge, the accused is disqualified from driving, the court must take into account in fixing the period of disqualification the period of disqualification served under this section."
Depending on how long it takes for a matter to be brought to court and to be disposed of in the Magistrates Court, situations can arise where a motorist served with a notice under s18B serves the whole, or a substantial part, of the period of disqualification imposed by the notice. Then when the motorist comes before the court, on its face, s17 would require the magistrate to impose a fresh minimum period of disqualification. For example, if a first year driver with a blood alcohol content of between .07 and .1 were to be served with a s18B notice, that person would be disqualified for three months from the date of service pursuant to that notice. If that person's case was not disposed of until the three months' disqualification or a substantial part of it had been served, the magistrate imposing penalty would then be faced with a situation where s17 requires the imposition of a minimum disqualification period of three months. If it were considered unjust for the offender to be disqualified for any period greater than three months, the magistrate would be in the very difficult position of applying legislation which, according to its ordinary meaning, does not confer any power to backdate. That would be an unreasonable result.
The Acts Interpretation Act 1931, s8B(1)(b), provides:
"8B (1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation –
(a) …
(b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable, to provide an interpretation that avoids such a result".
I have been provided with an extract from the second reading speech by the Minister who introduced the Bill that led to the introduction of s18B, Mr Llewellyn. He told the House of Assembly on 30 October 2007:
"Upon conviction of a driver, the current provisions of the Act provide minimum periods of disqualification which are to be imposed by a court for particular offences. This amendment ensures that an offender who is disqualified at the time of the offence as the result of an excessive drink driving notice does not serve a period of disqualification which exceeds those minimum periods. The period of disqualification will therefore continue from the time of service of an excessive drink driving notice until the offence to which the notice relates is determined by a court or the minimum period of disqualification which may be imposed by a court has been served, whichever occurs first."
In the discussion that followed when the Bill was in the committee stage, Mr Morris MHA asked the Minister a question regarding the situation where the full period of disqualification imposed by a s18B notice is served before the offender is sentenced. The question and the Minister's answer were as follows:
"It just seems to be a really strange process that you can lose your licence straightaway for three months, which is not a particularly long period, I must say, for a person who is supposedly learning to drive. Then you can get your licence back again, and if you have not actually faced the court within that three months' period and had the matter dealt with, you can then drive again until the court makes a decision that you have either had sufficient penalty or that you should have a greater penalty, and thus you could lose your licence again. That seems to be a fairly strange process. Will it not be administratively complex, in that that person might need to surrender their licence a second time?
Mr Llewellyn – I do not know how else you would deal with it. Under normal circumstances you probably would have had the matter dealt with within the three months, but there are times where a court case might not happen for eight months, or whatever. In those circumstances, I think there needs to be some discretion."
I think it is clear that Parliament did not intend the provisions of s18B to result in anyone facing the risk of serving more than the minimum period of disqualification prescribed under s17 if a magistrate thought that that was all that was appropriate. I think that s18B(6), when it gave magistrates a power to take into account the period of disqualification served under s18B, was intended by Parliament to go further, and to give them the power to take such a period of disqualification into account by backdating the periods of disqualification that they impose pursuant to s17.
In the circumstances, I think it is clear that the fine and period of disqualification imposed by the learned magistrate cannot stand. I do not think I need to decide whether ground 3 is made out in circumstances where the prosecutor did not inform the learned magistrate of the service of the s18B notice. I think it is preferable that I make orders disposing of this matter rather than remitting the matter to be dealt with by another magistrate on another day.
I have been informed that the applicant is single and has no dependants, and that at the time that he appeared before the learned magistrate he was receiving a Newstart allowance amounting to about $270 per week. In my view, a fine of $1,400 was a fine that was not reasonably within his ability to pay.
The only aggravating factors in this case as a drink driving case are that the applicant was not a licensed driver, but a learner, who was driving unaccompanied without his "L" plates. I think in the circumstances, and also bearing in mind his reading of .096, this was a case that warranted more than the minimum fine and minimum period of disqualification required under s17. I think the appropriate course is for me to vary the orders of the learned magistrate so as to impose a smaller fine and a shorter period of disqualification. I take into account the period of time that the applicant was disqualified between the service of the notice on 10 August 2008 and the conviction on 22 September 2008.
My orders are that the motion to review be allowed, and that the orders of the learned magistrate be varied by reducing the applicant's fine to $600, and by reducing his period of disqualification so that it expires on 11 [sic] May 2009.
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