Van Der Ende v Tyler
[2000] WASCA 251
•7 SEPTEMBER 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: VAN DER ENDE -v- TYLER [2000] WASCA 251
CORAM: MILLER J
HEARD: 1 SEPTEMBER 2000
DELIVERED : 7 SEPTEMBER 2000
FILE NO/S: SJA 1127 of 2000
BETWEEN: JASON PAUL VAN DER ENDE
Applicant
AND
DANNI ANNE TYLER
Respondent
Catchwords:
Criminal law - Sentence - Irreducible minimum penalty - Lesser penalty imposed - Principles - Turns on own facts
Legislation:
Justices Act 1902, s 190
Road Traffic Act 1974, s 5, s 64(1), s 64(2), s 106(2)
Sentencing Act 1995, s 47, s 62
Young Offenders Act 1994
Result:
Application for leave to appeal granted
Appeal allowed
Fine of $400 imposed by Magistrate set aside and in lieu thereof a fine of $600 substituted
Respondent to pay appellant's costs
Representation:
Counsel:
Applicant: Ms M J Garnett
Respondent: No appearance
Solicitors:
Applicant: State Crown Solicitor
Respondent: No appearance
Case(s) referred to in judgment(s):
Prosser v Baddeley [1990] WAR 197
Case(s) also cited:
Baker v Bushell (1998) 7 MVR 142
Brooks v Taylor & Stewart, unreported; SCt of WA; Library No 960410; 31 July 1996
Herps v Douglas, unreported; SCt of WA; Library No 8926; 17 June 1991
Klahn v Talbot (1995) 83 A Crim R 535
McGregor v Strahan, unreported; SCt of WA; Library No 990212; 8 April 1999
Murdoch v Seton, unreported; SCt of WA; Library No 980091; 24 February 1998
R v Tait (1979) 46 FLR 386
Taylor v Samuels (1997) 16 SASR 266
Walley v Miles, unreported; SCt of WA; Library No 950179; 21 April 1995
MILLER J: The respondent was charge in the Court of Petty Sessions, Perth with the offence of driving a motor vehicle on a road with a percentage of alcohol in her blood equal to or exceeding 0.08 per centum, namely 0.124 per centum, contrary to the provisions of s 64(1) of the Road Traffic Act 1974. The offence was alleged to have occurred on 23 June 2000.
On 12 July 2000 the respondent appeared before a Magistrate in the Court of Petty Sessions and pleaded guilty to the offence. The facts revealed that at about 6.05am on 23 June the respondent was driving a vehicle in Wellington Street, Perth when she was stopped for a random breath test. Her breath was analysed at Central Police Station and a blood alcohol level of .124 per cent was calculated at the time of her driving. The offence was her first offence of that type, there being previous convictions for driving an unlicensed vehicle, driving without a motor driver's licence and driving whilst under suspension. There were convictions for false pretences and fraud and on 23 April 1997 the respondent was put on a 12 month conditional release order: Sentencing Act 1995, s 47. Counsel who appeared for the respondent before the learned Magistrate requested that consideration be given to the imposition of a community service order (a community‑based order: Sentencing Act, s 62) but the learned Magistrate indicated that such a disposition of the matter would be inappropriate, pointed out that the respondent "had the money to drink and drive a potentially lethal weapon without any thought". In imposing penalty the learned Magistrate said:
"HER WORSHIP: In the circumstances, stand up Mrs Tyler, I will give you the very minimum penalty which I can give you, but that's $400 instead of $600. And you're disqualified from holding or obtaining a driver's licence for a period of 5 months. Do not drive under suspension, you can go to prison, children or no children, and you'll pay the costs of $38. Yes, thank you."
Later in the day the police prosecutor brought the matter on again before the learned Magistrate advising that the range of penalty was a minimum of $600 to a maximum of $1500. The learned Magistrate responded by saying:
"HER WORSHIP: Well, I realise that and I said it at the time sergeant. I said in view of the circumstances of Mrs Tyler where I was not prepared to consider a community based order that I would give a penalty of $400.
PROSECUTOR: The reason I bring it up, your Worship, is the statutory minimum is ---
HER WORSHIP: I realise the statutory minimum but there have also been decisions by the Supreme Court where matters have been given the fines which are appropriate to those percentages and where they have said, 'No, the minimum penalty should apply in some circumstances.'
PROSECUTOR: Okay, your Worship, thank you.
HER WORSHIP: If you wish to take issue with it then of course you will, but in my view these particular circumstances warrant the minimum penalty which is available to me."
It would appear from the learned Magistrate's comments that she thought the minimum penalty which could be imposed was truly $400 whereas in fact it is the case that the minimum was $600. As the outline of submissions for the applicant reveals, the penalty for contravention of s 64 of the Road Traffic Act is set out in a table in s 64(2). In the case of a reading of the percentage of alcohol in blood which is greater than or equal to 0.12 per cent or less than 0.13 per cent, the table provides that 12 PU is the minimum penalty and 30 PU is the maximum penalty with respect to the fine which must be imposed. By a process of calculation the minimum fine for a blood alcohol reading between 0.12 and 0.13 per cent is $600: Road Traffic Act, s 5. Further, s 106(2) of the Road Traffic Act provides that a minimum penalty in the Act is irreducable in mitigation, despite the Sentencing Act 1995 and the Young Offender's Act 1994. The effect of this section is that the court is required to impose at least (my emphasis) the minimum penalty and the court has no discretion in that regard. This was authoritatively determined in Prosser v Baddeley [1990] WAR 197. Wallace J (at 201) said:
"Thus, as I see the position, it is that, where offences against the Act are involved, it is for the tribunal of fact to determine in all the circumstances whether a fine or imprisonment should be imposed. If it is decided to impose a fine then the minimum fine prescribed by the relevant section, under which the prosecution is brought, shall be irreducible. If, on the other hand, the offence is so serious as to justify the imposition of a term of imprisonment, then it is open to the magistrate of the Children's Court to have regard to the provisions of s 34 of the Child Welfare Act."
The applicant came before me seeking leave to appeal the decision of the learned Magistrate on the ground that the learned Magistrate erred in imposing a fine less than the minimum penalty prescribed by s 64(2) of the Road Traffic Act. By letter dated 9 August 2000 the applicant's solicitor wrote to the respondent advising that on the hearing of the application for leave to appeal the court would be asked to grant leave and also decide the appeal pursuant to the provisions of s 190 of the Justices Act 1902 which is in the following terms:
"190. Application for leave and appeal may be heard together
(1)Where an application for leave to appeal is granted, the appeal may be determined at the same time as the application if -
(a)it is in the interests of justice to do so; and
(b)sufficient notice that the appeal may be so determined has been given to such persons as, in the opinion of the Judge or Court, ought to have such notice."
The respondent did not answer the letter sent by the applicant's solicitor but I am quite satisfied that sufficient notice has been given to the respondent of the application to have leave to appeal granted and the appeal determined at the same time as that application. It follows from what I have previously said that the learned Magistrate was clearly in error in imposing a fine of only $400 on the respondent. The fine should have been a minimum of $600. Whether the learned Magistrate genuinely thought that the minimum was $400 is not clear. She seems to have appreciated that there have been decisions of this Court to the effect that where a section in an Act provides a minimum penalty which is irreducable in mitigation, the Court must impose at least that minimum penalty and has no discretion to do otherwise. Whatever the reason, the learned Magistrate's imposition of a fine of only $400 was erroneous and that fine should be set aside and in lieu thereof there should be substituted a fine of $600. The orders of the Court therefore are:
(1)The applicant have leave to appeal against the decision of the learned Magistrate on the ground that she erred in imposing a fine less than the minimum penalty as prescribed by s 64(2) of the Road Traffic Act 1974.
(2)The appeal and the application for leave to appeal be heard at the same time.
(3)The appeal be heard by a single Judge.
(4)The appeal be allowed.
(5)The order that the respondent pay a fine of $400 be set aside.
(6)In lieu of the fine imposing by the learned Magistrate there be a fine of $600.
(7)The respondent pay the appellant's costs fixed at the sum of $500.
Whether the appellant will see fit to enforce payment of the costs ordered is a matter which will no doubt be considered. The evidence before the learned Magistrate revealed that the respondent was on social security and separated from her partner, and responsible for three young children. Her capacity to pay an order for costs would appear to be questionable.
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