Shaw v Crawford

[1987] TASSC 24

TASSC A12/1987

CITATION:             Shaw v Crawford [1987] TASSC 24; A12/1987

PARTIES:  SHAW
  v
  CRAWFORD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LDR LCA 33/1986
DELIVERED ON:  18 March 1987
DELIVERED AT:  
HEARING DATE:  
JUDGMENT OF:  Cox J

CATCHWORDS:

REPRESENTATION:

Counsel:
           Appellant:  
           Respondent:  
Solicitors:
           Appellant:  
           Respondent:  

Judgment Number:  TASSC A12/1987
Number of paragraphs:  10

Serial No A12/1987
  File No LDR LCA 33/1986

SHAW v CRAWFORD

REASONS FOR JUDGMENT  COX J
  18 March 1987

1. This is a motion to review a penalty consisting of a $300 fine, court costs of $14.10 and disqualification for holding or obtaining a licence to drive a motor vehicle for a period of 18 months imposed on the applicant for an offence against the Road Safety (Alcohol and Drugs) Act 1970, s6 ("the Act"). The particulars alleged in the complaint were that he drove a motor vehicle on the 6 December 1986 on Tamar Street, Launceston, while alcohol was present in his blood in a concentration of 0.16 grams of alcohol in 100 millilitres of blood. The applicant was unrepresented in the Court of Petty Sessions, pleaded guilty and did not challenge any of the facts stated by the prosecutor.

1. Those facts were that at 10 pm on Saturday the 6 December 1986 police had intercepted the applicant for the purpose of subjecting him to a random breath test. A breath analysis had returned the reading I have mentioned. He was 22 years of age, a boilermaker/welder by trade, his earnings were $225 per week and he was single. He had one previous conviction on the 8 October 1986 for being found drunk and incapable and two offences dealt with by infringement notice recorded against him. They were for disobeying a road sign on the 17 May 1983 and for failing to wear a seat belt on the 27 June 1986. In each case he had been fined. After being invited by the learned magistrate to say anything he wished to in mitigation, he indicated that he had no unusual financial commitments and that licence disqualification would not affect his job, but would affect him on "weekends and that when I go away all the time travelling".

1. It was submitted that the penalty in all the circumstances was manifestly excessive, but counsel made it clear that the main complaint was the imposition of as long a period of disqualification as 18 months. Certainly, considered alone, the fine was well within the applicant's capacity to pay and was not an unreasonable penalty for what clearly was a serious breach of s6 of the Act.

1. The basis upon which this Court can interfere with the exercise of the sentencing discretion by a lower court has been stated so many times as not to require the ritual incantation of such cases as House v The King and Cranssen v The King (1936) 55 CLR 499 and 509 respectively, or any of the many cases which have followed them. I content myself with citing Burbury CJ's comment in Whittle v McIntyre [1967] Tas SR 263 (NC 6):

"It is necessary to say emphatically that a police magistrate in deciding what the appropriate penalty is for an offence, is entrusted by the law with a very wide discretion. An appellant is not entitled to ask the Supreme Court to substitute its opinion for that of the police magistrate. The appeal against sentence is a limited appeal. The Supreme Court can only properly allow an appeal against sentence if it plainly appears that the police magistrate made some error in the exercise of his discretion or that a sentence imposed is so manifestly excessive that it is only explicable upon the view that the police magistrate did err in some way. Indeed, it is of great importance that a police magistrate should have a wide discretion in the delicate and anxious task of sentencing – so long as he takes into account all proper factors it is for him to determine what weight should be attached to each."

1. It can be said in this case, on the materials before the court, that there was nothing in the applicant's driving conduct which attracted the attention of the police or which in any way aggravated the offence. There is no suggestion that he manifested any signs of being affected by alcohol, but it would be idle to suggest that with such a reading he could have been, or should have been treated in the eyes of the law as being, stone cold sober and so unaffected by what he had ingested as not to constitute any danger, even potential, to the public.

1. His record of previous offences was not a very serious one, but it did show some degree of irresponsibility in respect of driving and of drinking, and in respect of the latter it showed that less than two months before this offence he had consumed enough intoxicating liquor to render himself incapable of taking care of himself – a fairly advanced state of drunkenness. While not calling for censorious comment, the antecedents of the applicant were not such as to earn any expectation of, let alone right to, the measure of leniency sometimes properly extended to offenders of previously blameless behaviour over a significant period of time.

1. The Act is entitled (in part):

"An Act to protect the public against certain persons who drive vehicles after consuming intoxicating liquor or drugs and to restrict the right of such persons to hold driver's licences."

1. There have been many expressions in this Court of the view that in the exercise of the sentencing discretion conferred by the Act, substantial weight must be given to the need to protect the public and to deter potential offenders: Gray v Scott, Everett J, 16/1981; Spaulding v Lowe, Underwood J, 4/1985; Lowe v Bromfield, Cosgrove J, B28/1985; Barrett v Pearce, Neasey J, 6/1986; Lowe v Plaister, Wright J, 36/1986; Smith v Jessup, Green CJ, 78/1986. That is not to say that draconian penalties at the top end of the available scale should be the order of the day, nor that in certain cases it could not be a proper exercise of the magistrate's sentencing discretion to impose a nominal period of disqualification or to limit the penalty to demerit points.

1. For a first offence against ss4 or 6 of the Act, the Act now provides a maximum penalty of $500 or six months' imprisonment, or both, and disqualification up to three years. For subsequent offences the maximum penalty by way of fine, imprisonment and disqualification is exactly double. In the instant case the period of disqualification was a period equal to half the maximum permissible for a first offence. The reading was on the high side of moderate, the antecedents of the offender were not such as to call for any particular leniency and the offence had occurred at a time and place where other vehicular traffic and members of the public might be reasonably expected to be about.

1. I am not persuaded that the penalty was manifestly excessive. The appeal will be dismissed.