Strickland v Hassing

[1988] TASSC 19

TASSC A3/1988

CITATION:            Strickland v Hassing [1988] TASSC 19; A3/1988

PARTIES:  STRICKLAND
  v
  HASSING

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 23/1987
DELIVERED ON:  24 February 1988
JUDGMENT OF:  Neasey J

Judgment Number:  3/1988
Number of paragraphs:  6

Serial No 3/1988
List "A"
File No LCA 23/1987

STRICKLAND v HASSING

REASONS FOR JUDGMENT  NEASEY J

24 February 1988

1. The applicant moves to review an order made by a magistrate in the Court of Petty Sessions at Currie on King Island in November 1987, whereby his Worship, following a plea of guilty to a complaint alleging an offence under s6(1) of the Road Safety (Alcohol and Drugs) Act 1970 ("the Road Safety Act"), fined the respondent a sum of $250, and disqualified him for a period of 15 months from holding or obtaining a licence to drive a motor vehicle. The grounds of the motion to review are that the sentence imposed was manifestly inadequate, and that the learned magistrate erred in fact and in law by misdirecting himself "in treating two prior convictions for an offence contrary to s.6(1) of the Road Safety (Alcohol and Drugs) Act 1970 as one prior conviction".

1. The relevant facts are that at about 12.40am on Saturday 30 May 1987 police officers saw the respondent's vehicle being "revved" and the rear wheels spun on a public road on King Island. They intercepted it. The respondent, who was the driver, was given a breath analysis test which returned a reading of 0.11. A record of previous convictions tendered at the hearing showed, inter alia, that on 25 February 1986 he had been convicted of two offences under s6(1) of the same Act. The facts of the first one occurred in October 1985, and of the second in January 1986. For the first offence, the respondent was fined $135 with costs, and disqualified for a period of four months. On the second, he was fined $160 with costs, and disqualified for a period of 10 months.

1. The learned magistrate at the hearing referred to the fact that the offence before him was the respondent's third, but that the two previous convictions had been made on the same day in respect of offences occurring on different occasions. He said, "... I don‘t treat that one [apparently meaning the second of that pair of offences] as a second offence. I am now treating this as a second offence." From the fact that his Worship then proceeded to refer to the effect of s17(2) of the Road Safety Act, which provides a heavier penalty "where a person is convicted of an offence under s.4 or s.6, having previously been convicted of an offence under either of those sections", he meant apparently that he proposed to treat the offence then before him as a "second offence" for the purpose of penalty pursuant to s17(2). Ground 2 of the motion to review raises the question whether in so doing the magistrate committed an error of law or fact.

1. It is not easy to reconcile his Worship's language in the passage quoted with the actual provisions of s17(2) of the Road Safety Act. I can only surmise that he had in mind previous enactments of a similar kind in which a heavier penalty was provided for a "second or subsequent offence", such as was in issue in Joyce v Smith [1962] Tas SR (NC) No 11, (Serial No 55/1962), a judgment of Burbury CJ In that case it was held, following English authority, that where s37 of the Traffic Act 1925 provided for different penalties "for a first offence" and "for a second or subsequent offence", the latter expression meant an offence committed after conviction for the first offence. However, subs 17(2) of the Road Safety Act has altered the effect of previously common enactments where a heavier penalty was provided for a "second or subsequent offence", because subs 17(2) provides that there shall be a heavier maximum penalty when, at the time of conviction, the defendant has been convicted before for the same offence. Thus, under subs 17(2) in its present form, the second offence may or may not have been committed after conviction for the first offence.

1. If my understanding of what the learned magistrate said is right, then he did not properly consider the true effect of subs 17(2), but nevertheless he did correctly take the view that the heavier maximum penalty applied, pursuant to subs 17(2). In that respect there was no error in law; nor was there any error in fact, because the offence was the third offence.

1. The remaining question is whether the penalty imposed was inadequate to such a degree as to warrant interference by this Court in the learned magistrate's exercise of sentencing discretion. It is to be noted that his Worship correctly appreciated that in respect of the two earlier offences the court had imposed graduated penalties, in that the second was substantially heavier than the first. In the case of the present offence he took the view that it did not warrant a gaol sentence, but that a still heavier fine and period of suspension were appropriate. I am not persuaded that his discretion miscarried in so deciding. I accept the submission made by counsel for the respondent, that the penalties imposed, though on the lenient side for a third offence, were nevertheless in themselves quite substantial and within the bounds of a properly exercised discretion. The motion will be dismissed.