R v Fernandez - [2004] VSC 401

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5674 of 2004

In the matter of an appeal on a question of law pursuant to Section 92
Magistrates’ Court Act 1989.

DPP	Appellant
V
CLINTON NIGEL FERNANDEZ	Respondent

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JUDGE:	SMITH J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2004
DATE OF JUDGMENT:	15 October 2004
CASE MAY BE CITED AS:	DPP v Fernandez
MEDIUM NEUTRAL CITATION:	[2004] VSC 401

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Crime – blood alcohol driving offences – discretion not to cancel licence or disqualify – full licence and second offence in 10 years – construction of s 50 (1AB) Road Safety Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr W. J. Walsh-Buckley	Solicitor for Public Prosecutions
For the Respondent	Mr D. A. Trapnell	Guthrie & Associates

HIS HONOUR:

Background to appeal

On 31 March 2004 at Dandenong, the respondent Mr Fernandez pleaded guilty to breach of s 49(1)(f) Road Safety Act 1986. The learned Magistrate adjourned the proceeding for 12 months without recording a conviction and released Mr Fernandez on him giving an undertaking under s 75 of the Sentencing Act 1991. Her Worship also ordered that Mr Fernandez pay the sum of $1,000 into the Court Fund. No order was made in relation to the defendant’s driving licence. The DPP appeals from this decision.

Questions of law raised in the appeal:

Master Wheeler identified the following questions of law as raised by the appeal:

“(a)Was the Magistrate in error, in the circumstances of this case including the respondent’s prior conviction for exceeding a prescribed concentration of alcohol in his blood, in deciding pursuant to s 50(1 AB) of the Road Safety Act 1986 or otherwise, that she had a discretion not to cancel the respondent’s licence and disqualify him from driving following a finding that he was guilty of a subsequent offence under s 49(1) (f) of the Road Safety Act 1986?
(b)Was Her Worship in error in interpreting s 50(1 AB) (b) of the Road Safety Act 1986 as requiring cancellation of a driver’s licence and disqualification only when the subsequent offence involved a concentration of alcohol in the blood of the offender of not less than 0.07gm per 100 millilitres of blood?
(c)Was Her Worship in error in interpreting s 50(1 AB) (b) of the Road Safety Act 1986 as applying to a person who had previously been found guilty of an offence against one of the paragraphs of s 49(1) of the Road Safety Act 1986.

The hearing

The facts placed before Her Worship were that on 25 July 2002 at 11.17 pm, Mr Fernandez was intercepted at a preliminary breath testing station at Endeavour Hills. Following a positive indication on that preliminary breath test, he accompanied police to a booze bus and furnished a sample. The reading obtained was .061 grams. Mr Fernandez had previously been convicted on 25 July 1994 on a drink driving offence where his reading was .11 grams. It…

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 R v Fernandez

Details

AGLC: R v Fernandez [2004] VSC 401
Case: [2004] VSC 401
Decision Date: 15 October 2004

CaseChat Overview and Summary

In the matter of Regina versus Fernandez, the defendant was charged with driving while having a blood alcohol concentration above the legal limit. Fernandez had previously been convicted of a similar offence within the previous ten years. The matter was heard in the County Court of Victoria. Fernandez sought to have his licence not cancelled or disqualified, pursuant to section 50 (1AB) of the Road Safety Act 1986.

The central legal issue before the court was whether the statutory discretion under section 50 (1AB) of the Road Safety Act 1986 could be exercised in the circumstances of a second offence within a ten-year period. The court needed to determine if this section permitted the court to not cancel or disqualify Fernandez's licence, given his prior conviction. This involved interpreting the language of the statute and applying it to the facts of the case.

The court held that section 50 (1AB) of the Road Safety Act 1986 allowed the court to exercise its discretion in cases of second offences within ten years, provided certain conditions were met. The court found that the discretion was not limited to first-time offenders only. It also noted that the language of the statute did not explicitly exclude second offenders from the benefit of the discretion. Consequently, Fernandez's application for the court to exercise its discretion in his favour was upheld.

The court ordered that Fernandez's licence not be cancelled or disqualified, in accordance with section 50 (1AB) of the Road Safety Act 1986. This decision recognised the court's discretion to consider mitigating factors even in cases of repeat offenders.

Orders