Wilkie v Taylor
[2015] TASFC 7
•19 June 2015
[2015] TASFC 7
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Wilkie v Taylor [2015] TASFC 7
PARTIES: WILKIE, Scott
v
TAYLOR, Margaret Dawn
FILE NO: 67/2015
DELIVERED ON: 19 June 2015
DELIVERED AT: Hobart
HEARING DATE: 1 June 2015
JUDGMENT OF: Blow CJ, Estcourt and Pearce JJ
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Driving with more than prescribed concentration of alcohol in breath or blood – Sentence and penalty – Community service order – Whether may be ordered without fine or imprisonment.
Road Safety (Alcohol and Drugs) Act1970 (Tas), s 17(3)(a).
Sentencing Act 1997 (Tas), s 7(c).
Aust Dig Magistrates [1349]
Traffic Law – Offences – Particular Offences – Alcohol and drug related offences – Tasmania – Driving with more than prescribed concentration of alcohol in breath or blood – Sentence and penalty – Community service order – Whether may be ordered without fine or imprisonment.
Road Safety (Alcohol and Drugs) Act1970 (Tas), s 17(3)(a).
Sentencing Act 1997 (Tas), s 7(c).
Aust Dig Traffic Law [1158]
REPRESENTATION:
Counsel:
Applicant: D G Coates SC, S Nicholson
Respondent: F Brimfield
Solicitors:
Applicant: Acting Director of Public Prosecutions
Respondent: Ogilvie Jennings
Judgment Number: [2015] TASFC 7
Number of paragraphs: 53
Serial No 7/2015
File No 67/2015
SCOTT WILKIE v MARGARET DAWN TAYLOR
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
ESTCOURT J (Dissenting)
PEARCE J
19 June 2015
Orders of the Court
Motion to review allowed.
Community service order quashed.
Matter remitted to Magistrates Court.
Serial No 7/2015
File No 67/2015
SCOTT WILKIE v MARGARET DAWN TAYLOR
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
19 June 2015
This is a motion for the review of sentencing orders made by the Chief Magistrate, Mr M Hill, in relation to a drink-driving offence committed by the respondent, Margaret Taylor. The applicant is a police officer. On 16 August 2013 the respondent drove a motor vehicle whilst alcohol was present in her blood at a concentration of 0.059 grams per 100 millilitres of blood. She thereby contravened s 6(1) of the Road Safety (Alcohol and Drugs) Act 1970. She was prosecuted and pleaded guilty. The learned magistrate ordered her to perform 70 hours' community service and disqualified her from driving for nine months. He did not impose a fine or a sentence of imprisonment. The applicant contends that, as a matter of law, it was not open to the learned magistrate to impose a community service order without also imposing either a fine or a sentence of imprisonment. Because this motion raised an important point, an order was made referring it to the Full Court.
The applicant relies on s 17(3)(a) of the Road Safety (Alcohol and Drugs) Act, which provides that a court that convicts a person of such an offence "must" impose a fine, or a term of imprisonment, or both. That provision was introduced in 1991: Road Safety (Alcohol and Drugs) Amendment Act 1991. The respondent relies on s 7(c) of the Sentencing Act 1997, which provides that a sentencing court may "record a conviction and, if the offender has attained the age of 18 years and if the offence is punishable by imprisonment, make a community service order in respect of the offender". The respondent contends that the enactment of s 7(c) has resulted in the imposition of a community service order being an alternative form of penalty available in cases to which s 17(3)(a) applies. That is to say, the respondent contends that a magistrate has the power to impose a community service order without either a fine or a sentence of imprisonment, as the learned magistrate did in this case, because of s 7(c). The applicant contends that s 7(c) does not have that effect.
As a result of the amendments made in 1991, very detailed provisions as to penalties for drink-driving offences are made by s 17 of the Road Safety (Alcohol and Drugs) Act. A table of penalties is set out at the end of that section. Section 17(3) governs the application of that table. It reads as follows:
"(3) Subject to subsection (5), a court that convicts a person of an offence specified in column 1 of the Table —
(a)must —
(i) impose a fine of an amount not less than the minimum amount shown in the Table and not more than the maximum amount shown in the Table; or
(ii) impose a term of imprisonment for a term not exceeding the term shown in the Table; or
(iii) impose both that fine and that term of imprisonment; and
(b)must, in addition, disqualify the person from driving for a period not less than the minimum period shown in the Table and not more than the maximum period shown in the Table."
The applicant contends that s 17(3)(a) is mandatory.
Section 17(5) does not apply in this case. It enables a court to impose fines and disqualification periods below the ordinary minimums when there are "special circumstances".
The table at the end of s 17 is as follows:
"TABLE
| PART 1 – FIRST OFFENCE | ||||
| Column 1 | Column 2 | Column 3 | Column 4 | Column 5 |
| Section of Act or offence | Concentration of alcohol in breath in grams per 210 litres of breath or in blood in grams per 100 millilitres of blood | Fine | Period of disqualification | Term of imprisonment |
| Section 6 (2) | less than 0·05 | Minimum 2 penalty units Maximum 10 penalty units | Minimum 3 months Maximum 12 months | 3 months |
| Section 6 | 0·05 or more but less than 0·1 | Minimum 2 penalty units Maximum 10 penalty units | Minimum 3 months Maximum 12 months | 3 months |
| 0·1 or more but less than 0·15 | Minimum 4 penalty units Maximum 20 penalty units | Minimum 6 months Maximum 18 months | 6 months | |
| 0·15 or more | Minimum 5 penalty units Maximum 30 penalty units | Minimum 12 months Maximum 36 months | 12 months | |
| Section 4 or 14 (5) or failure to comply with a requirement made under section 10 (4) or 10A (1) | Minimum 5 penalty units Maximum 30 penalty units | Minimum 12 months Maximum 36 months | 12 months | |
| Section 6A(1) | Not applicable | Minimum 2 penalty units Maximum 10 penalty units | Minimum 3 months Maximum 12 months | 3 months |
TABLE
| PART 2 - SUBSEQUENT OFFENCE | ||||
| Column 1 | Column 2 | Column 3 | Column 4 | Column 5 |
| Section of Act or offence | Concentration of alcohol in breath in grams per 210 litres of breath or in blood in grams per 100 millilitres of blood | Fine | Period of disqualification | Term of imprisonment |
| Section 6 (2) | less than 0·05 | Minimum 4 penalty units Maximum 20 penalty units | Minimum 6 months Maximum 24 months | 6 months |
| Section 6 | 0·05 or more but less than 0·1 | Minimum 4 penalty units Maximum 20 penalty units | Minimum 6 months Maximum 24 months | 6 months |
| 0·1 or more but less than 0·15 | Minimum 8 penalty units Maximum 40 penalty units | Minimum 12 months Maximum 36 months | 12 months | |
| 0·15 or more | Minimum 10 penalty units Maximum 60 penalty units | Minimum 24 months Maximum 72 months | 24 months | |
| Section 4 or 14 (5) or failure to comply with a requirement made under section 10 (4) or 10A (1) | Minimum 10 penalty units Maximum 60 penalty units | Minimum 24 months Maximum 72 months | 24 months | |
| Section 6A(1) | Not applicable | Minimum 4 penalty units Maximum 20 penalty units | Minimum 6 months Maximum 24 months | 6 months" |
Section 7 of the Sentencing Act lists the various penalties that may be imposed by courts in sentencing offenders. It lists those penalties in descending order of seriousness. It commences as follows:
"A court that finds a person guilty of an offence may, in accordance with this Act and subject to any enactment relating specifically to the offence —
(a)record a conviction and order that the offender serve a term of imprisonment; or
(ab)if the court is constituted by a magistrate, record a conviction and make a drug treatment order under Part 3A in respect of the offender; or
(b)record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended; or
(c)record a conviction and, if the offender has attained the age of 18 years and the offence is punishable by imprisonment, make a community service order in respect of the offender; or
(d)with or without recording a conviction, make a probation order in respect of the offender if the offender has attained the age of 18 years; or
(e)record a conviction and order the offender to pay a fine; or
…".
The respondent was over the age of 18 years when she committed the offence in question. The offence was punishable by imprisonment under s 17(3)(a) of the Road Safety (Alcohol and Drugs) Act. It was therefore open to the learned magistrate to convict her and make a community service order pursuant to s 7(c). The issue is whether it was open to him to do so without imposing either a fine or a term of imprisonment.
The introductory words of s 7 make its provisions "subject to any enactment relating specifically to the offence". It is therefore not appropriate to apply the principle that later Acts impliedly repeal earlier inconsistent Acts. It also follows that the power to make a community service order in a drink-driving case is subject to the provisions of s 17(3)(a) of the Road Safety (Alcohol and Drugs) Act. That provision does not prohibit the making of a community service order, but it does require the imposition of a fine and/or a term of imprisonment.
Section 6 of the Sentencing Act provides that that Act is not a codification of the State's sentencing law. That is another indication that s 7 of that Act should not be regarded as having some sort of priority over s 17(3)(a) of the Road Safety (Alcohol and Drugs) Act. The full wording of s 6 is as follows:
"This Act is a consolidation, not a codification, of the State's sentencing law and it does not derogate from the powers that a court may exercise, or the rights that a person may have, under any other enactment or law for or in relation to the sentencing of offenders."
In my view it is only the first limb of that section that is significant for present purposes. Section 17(3)(a) is not concerned with the powers that a court "may exercise", but with powers which, in certain circumstances, a court must exercise, whatever the justice of the situation may be. Similarly, s 17(3)(a) is not concerned with any "rights that a person may have", but with obligations that a magistrate sometimes has.
I agree with counsel for the applicant that s 17(3) was intended to be mandatory. Although a system of mandatory minimum penalties can create injustice, it is clear that Parliament decided in 1991 to put its policies of general deterrence ahead of the inevitability of occasional injustice, subject to the "special circumstances" provision in s 17(5). But for s 17(3), the common law would have required sentencing magistrates never to impose any fine that was beyond the reasonable capacity of an offender to pay: Kaye v Vagg (No 2) (1984) 11 A Crim R 127; Davies v Deverell (1992) 1 Tas R 214; Venn v White [2003] TASSC 115. However the effect of s 17 is to abrogate that principle so that, when the minimum fine is one beyond the reasonable capacity of an offender to pay, the sentencing magistrate must nevertheless impose that minimum fine, unless a sentence of imprisonment is warranted: Maynard v White [1994] TASSC 169, A108/1994 (Zeeman J).
Section 17(3) does not prohibit a magistrate from imposing a community service order. It is therefore open to a magistrate, in an appropriate case, to impose both the minimum fine specified in the table at the end of s 17, or a larger fine, and a community service order. The amount of the fine would have to be taken into account in deciding upon the number of hours of community service to be ordered.
There is nothing in s 17 that prohibits a magistrate from wholly or partly suspending a sentence of imprisonment that is imposed in a drink-driving case. A wholly or partly suspended sentence of imprisonment must still be taken to be a sentence of imprisonment for the purposes of the Road Safety (Alcohol and Drugs) Act because of s 25(1) and (2) of the Sentencing Act. Those subsections read as follows:
"(1) A partly suspended sentence of imprisonment is taken for all purposes to be a sentence of imprisonment for the whole term stated by the court.
(2) A wholly suspended sentence of imprisonment is taken to be a sentence of imprisonment for the purposes of all enactments other than enactments providing for disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits."
It follows that it is open to a magistrate sentencing a drink-driving offender, in an appropriate case, to impose both a suspended term of imprisonment and a community service order. A requirement that the offender is to perform community service can be imposed as a condition of the order suspending the prison sentence: Sentencing Act, s 24(2)(a).
Sentences of imprisonment can be very short. The table at the end of s 17 of the Road Safety (Alcohol and Drugs) Act specifies maximum terms of imprisonment, but not minimum terms. If a magistrate were to consider that the most appropriate penalty for an impecunious drink-driving offender was a community service order, it would not be appropriate to impose an unduly short sentence of imprisonment, suspended or otherwise, instead of the minimum fine, in conjunction with a community service order that was intended to be the offender's real penalty. An extremely short sentence of imprisonment would be contrary to the intention of the legislation, and should not be imposed. In Harriss v Walker (1996) 89 A Crim R 257, a magistrate sentenced a drink-driving offender to imprisonment until the rising of the court, without imposing any fine. Cox J (as he then was) said, at 262:
"… a nominal sentence such as the one imposed completely failed to reflect the gravity of the respondent's conduct and failed to acknowledge the need for a penalty of general and personal deterrence. Such sentences, if used inappropriately and as a means of circumventing Parliament's clearly expressed intention of deterring offenders … bring the law into disrepute."
In this case, counsel for the respondent advanced an argument based on s 12 of the Sentencing Act. I believe, with respect, that that argument was misconceived. Section 12 reads as follows:
"(1) In this section,
custodial offence means an offence that is created under an enactment and has imprisonment as its only penalty.
(2) If a court that sentences an offender for a custodial offence considers that the justice of the case will be better met by a non-custodial sentence than by imprisonment, the court may, notwithstanding the penalty provided for the offence, make any other sentencing order that it could have made in respect of the offender had the offence not been a custodial offence."
It was argued, on behalf of the respondent, that if a drink-driving offence was serious enough to warrant imprisonment, then it would amount to a "custodial offence" for the purposes of s 12, with the result that, pursuant to s 12(2), the sentencing court would have the power to make any sentencing order other than imprisonment. However none of the drink-driving offences to which s 17(3) applies "has imprisonment as its only penalty". The section provides that all are punishable by fine and/or imprisonment, together with disqualification from driving. It follows that none of those offences is a "custodial offence" as defined in s 12(1), and that s 12 does not apply.
There are offences that are created under statutes that provide only for imprisonment as a penalty. For example, s 6 of the Police Offences Act 1935 makes it an offence to "habitually consort with reputed thieves". By virtue of s 6(1A) of that Act, a person who commits that offence "is liable on summary conviction to imprisonment for a term not exceeding 6 months". No provision is made for any penalty other than imprisonment. Section 12 of the Sentencing Act is concerned with that sort of provision, and no other. A somewhat similar provision was first enacted in Tasmania in 1919: Justices Procedure Act 1919, s 128. More recently, there was a similar provision in the Justices Act 1959, s 76. That section was replaced by s 12 of the Sentencing Act. Statutory provisions specifying only imprisonment as a penalty are much less common today than they were in 1919 or 1959, but some still exist.
Counsel for the respondent also relied on the second reading speech that preceded the enactment of the Sentencing Act. In that speech the then Attorney-General, Mr Groom, said (House of Assembly, 13 August 1997):
"Throughout the Bill there are a number of sentencing options which are designed to assist in the rehabilitation of offenders, and we all now how important that is. So often, as those who have been involved in the practice of criminal law know, they are the battlers in our community who get into trouble in this area, and we do need to give them some support and encouragement as appropriate, but also always have in mind protecting the community. Sentences of imprisonment can be suspended on condition of good behaviour and may involve supervision by a probation officer. Community service orders can be performed by attending educational or other personal development programs. … The Bill therefore provides a number of incentives for offenders to change their ways and act in a socially responsible manner."
However there is nothing ambiguous or obscure about the relevant provisions of the Sentencing Act. And there is nothing in those provisions or the second reading speech to suggest that s 7(c) should be regarded as modifying or otherwise having any impact upon s 17(3)(a) of the Road Safety (Alcohol and Drugs) Act.
Magistrates in Tasmania sometimes make orders that require drink-driving offenders to attend "sober driving programs". Under s 28(g) of the Sentencing Act, every community service order is subject to a condition that "the offender must attend educational and other programs as directed by a probation officer". Counsel for the respondent argued to the effect that, if this Court accepts the contentions of the applicant, magistrates will not be able to make orders requiring offenders to attend sober driving programs as readily as they otherwise could. I disagree. Under s 37(2)(a) of the Sentencing Act, a probation order may include a special condition that "the offender must attend educational and other programs as directed by the Court or a probation officer". It follows that, whatever the result of this case, a magistrate always has the power to make a probation order requiring a drink-driving offender to attend a sober driving program.
Counsel for the respondent relied on the proposition that, where ambiguity exists in a penal provision in a statute, that ambiguity should be resolved in favour of the defendant. He relied on R v Adams (1935) 53 CLR 563 at 567-568. However, in my view, there is no ambiguity in any of the relevant statutory provisions.
It seems remarkable that Parliament made no provision as to community service orders when s 17 was enacted in 1991. It also seems remarkable that, in the 24 years since then, there does not seem to have been a single motion to review that raised the question of the impact of s 17(3)(a) on a magistrate's power to impose a community service order. "Work orders", as they were originally known, were introduced by the Probation of Offenders Act 1971. By the time of the 1991 amendments to the Road Safety (Alcohol and Drugs) Act, they were known as community service orders. A community service order has always been regarded as a more lenient penalty than a sentence of imprisonment, even a wholly suspended one, but as a heavier penalty than a fine. It may be that Parliament can reasonably be regarded as having taken a backward step in 1991 by making no provision in s 17(3)(a) for a community service order to be an alternative alongside a fine and a sentence of imprisonment. However, Parliament did take that step.
The result is that a magistrate now may not impose a community service order upon a drink-driving offender unless he or she also imposes a fine and/or a sentence of imprisonment, which may be suspended. Unless s 17(5) applies, any such fine might have to be one that is far beyond the offender's reasonable capacity to pay. That state of affairs may well be considered unsatisfactory, but that is the effect of the legislation that Parliament has chosen to pass.
For these reasons I would allow the motion to review, quash the community service order, and remit the matter to the Magistrates Court for completion of the sentencing process. In my view there is no reason to disturb the driving disqualification order made by the learned magistrate. There is no reason why the completion of the sentencing process should not be undertaken by the same magistrate.
File No 67/2015
SCOTT WILKIE v MARGARET DAWN TAYLOR
REASONS FOR JUDGMENT FULL COURT
ESTCOURT J
19 June 2015
The motion to review
On 14 January 2015 the respondent, Margaret Dawn Taylor, pleaded guilty in the Magistrates Court before Chief Magistrate Hill to a charge of driving a motor vehicle whilst exceeding the prescribed alcohol limit, contrary to s 6(1) of the Road Safety (Alcohol and Drugs) Act 1970 (the Act).
The learned Chief Magistrate convicted and sentenced the respondent on that same day, ordering that she be disqualified from driving or holding a driver's licence for a period of nine months and ordering her to perform 70 hours of community service.
The applicant filed a notice to review the learned magistrate's order that the respondent perform community service, on the sole ground that his Honour erred in law "in failing to impose a sentence consistent with provisions contained in section 17 of the Road Safety (Alcohol and Drugs) Act 1970". The motion to review has been referred to this Court for determination pursuant to s 110(1) of the Justices Act 1959.
The argument of counsel for the applicant, Mr Coates SC, is that the language of s 17 of the Act displaces s 7(c) of the Sentencing Act 1997, that being the section that enables the imposition of a community service order.
Section 17 of the Act provides as follows:
"17 Penalties for drink-driving offences, &c
(1) For the purposes of this section –
(a) the Table means the Table at the end of this section; and
(b)a person is guilty of a subsequent offence if that person has previously been convicted of an offence under section 4, section 6, section 6A(1) or section 14(5) or an offence in respect of a failure to comply with a requirement made under section 10(4) or section 10A(1) or (1A).
(2) The application of this section does not extend to an offence committed before the commencement of the Road Safety (Alcohol and Drugs) Amendment Act 1991.
(3) Subject to subsection (5), a court that convicts a person of an offence specified in column 1 of the Table –
(a) must –
(i)impose a fine of an amount not less than the minimum amount shown in the Table and not more than the maximum amount shown in the Table; or
(ii)impose a term of imprisonment for a term not exceeding the term shown in the Table; or
(iii) impose both that fine and that term of imprisonment; and
(b)must, in addition, disqualify the person from driving for a period not less than the minimum period shown in the Table and not more than the maximum period shown in the Table.
(3A) When a court imposes a disqualification from driving under this section, it must suspend or cancel any Australian driver licence held by the person against whom the disqualification is imposed as required by section 17 of the Vehicle and Traffic Act 1999.
(4) For the purposes of subsection (3) –
(a)the relevant fine, period of disqualification and term of imprisonment for a first offence specified in column 1 of the Table is, in the case of an offence under section 6, to be ascertained by reference to the concentration of alcohol in the breath or blood of the offender as specified in column 2 of Part 1 of the Table; and
(b)the relevant fine, period of disqualification and term of imprisonment for a subsequent offence is to be ascertained by reference to the concentration of alcohol in the breath or blood of the offender as specified in column 2 of Part 2 of the Table.
(5) Notwithstanding subsection (3), if a person who is convicted of an offence referred to in column 1 of the Table satisfies the court which convicted the person that there are special circumstances why the minimum fine specified in the Table or the minimum period of disqualification specified in the Table should not be imposed, the court may impose a lesser fine or a lesser period of disqualification.
TABLE
PART 1 - FIRST OFFENCE Column 1 Column 2 Column 3 Column 4 Column 5 Section of Act or offence Concentration of alcohol in breath in grams per 210 litres of breath or in blood in grams per 100 millilitres of blood Fine Period of disqualification Term of imprisonment Section 6 (2) less than 0·05 Minimum 2 penalty units Maximum 10 penalty units Minimum 3 months Maximum 12 months 3 months Section 6 0·05 or more but less than 0·1 Minimum 2 penalty units Maximum 10 penalty units Minimum 3 months Maximum 12 months 3 months 0·1 or more but less than 0·15 Minimum 4 penalty units Maximum 20 penalty units Minimum 6 months Maximum 18 months 6 months 0·15 or more Minimum 5 penalty units Maximum 30 penalty units Minimum 12 months Maximum 36 months 12 months Section 4 or 14 (5) or failure to comply with a requirement made under section 10 (4) or 10A (1) Minimum 5 penalty units Maximum 30 penalty units Minimum 12 months Maximum 36 months 12 months Section 6A(1) Not applicable Minimum 2 penalty units Maximum 10 penalty units Minimum 3 months Maximum 12 months 3 months TABLE
PART 2 - SUBSEQUENT OFFENCE Column 1 Column 2 Column 3 Column 4 Column 5 Section of Act or offence Concentration of alcohol in breath in grams per 210 litres of breath or in blood in grams per 100 millilitres of blood Fine Period of disqualification Term of imprisonment Section 6 (2) less than 0·05 Minimum 4 penalty units Maximum 20 penalty units Minimum 6 months Maximum 24 months 6 months Section 6 0·05 or more but less than 0·1 Minimum 4 penalty units Maximum 20 penalty units Minimum 6 months Maximum 24 months 6 months 0·1 or more but less than 0·15 Minimum 8 penalty units Maximum 40 penalty units Minimum 12 months Maximum 36 months 12 months 0·15 or more Minimum 10 penalty units Maximum 60 penalty units Minimum 24 months Maximum 72 months 24 months Section 4 or 14 (5) or failure to comply with a requirement made under section 10 (4) or 10A (1) Minimum 10 penalty units Maximum 60 penalty units Minimum 24 months Maximum 72 months 24 months Section 6A(1) Not applicable Minimum 4 penalty units Maximum 20 penalty units Minimum 6 months Maximum 24 months 6 months"
The relevant parts of s 7 of the Sentencing Act provide as follow:
"7 Sentencing orders
A court that finds a person guilty of an offence may, in accordance with this Act and subject to any enactment relating specifically to the offence –
(a)record a conviction and order that the offender serve a term of imprisonment; or …
(b)record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended; or
(c)record a conviction and, if the offender has attained the age of 18 years and the offence is punishable by imprisonment, make a community service order in respect of the offender; or …
(i) impose any other sentence or make any order, or any combination of orders, that the court is authorised to impose or make by this Act or any other enactment."
Also of relevance to the applicant's argument are ss 6 and 12 of the Sentencing Act.
Section 6 provides as follows:
"6 Act is not a code
This Act is a consolidation, not a codification, of the State's sentencing law and it does not derogate from the powers that a court may exercise, or the rights that a person may have, under any other enactment or law for or in relation to the sentencing of offenders."
Section 12 provides as follows:
"12 Mitigation of imprisonment
(1) In this section,
custodial offence means an offence that is created under an enactment and has imprisonment as its only penalty.
(2) If a court that sentences an offender for a custodial offence considers that the justice of the case will be better met by a non-custodial sentence than by imprisonment, the court may, notwithstanding the penalty provided for the offence, make any other sentencing order that it could have made in respect of the offender had the offence not been a custodial offence."
The applicant contends that the use of the word "must" in that part of s 17(3) of the Act which states that a court:
"(a) must –
(i) impose a fine of an amount not less than the minimum amount shown in the Table and not more than the maximum amount shown in the Table; or
(ii) impose a term of imprisonment for a term not exceeding the term shown in the Table".
mandates the imposition of a fine or a term of imprisonment, or both a fine and a term of imprisonment.
The applicant accepts that the term of imprisonment could be suspended on condition, including, I infer, a condition that the offender perform community service, but the applicant argues that s 17(3) of the Act, by mandating the imposition of a fine or a term of imprisonment, displaces s 7(c) of the Sentencing Act, so that an offender cannot be ordered to perform community service as an alternative to imprisonment.
Relying on Rosevear v Bonde (2005) Tas R 153 at [6], Mr Coates' argument that s 17(3) of the Act displaces s 7(c) of the Sentencing Act, calls in aid the opening words of s 7 of the Sentencing Act which provide that a court that finds a person guilty of an offence may make various sentencing orders, including community service orders, but also provide that that is "subject to any enactment relating specifically to the offence … ". So that, the applicant would have it, in the present case the power to impose a community service order pursuant to s 7(c) of the Sentencing Act is subject to s 17(3) of the Act which mandates the imposition of a term of imprisonment where imprisonment and not merely a fine is the appropriate penalty.
In my view, the short answer to the applicant's argument is that if s 17(3) of the Act mandates a term of imprisonment, when a fine alone is not appropriate and thus displaces s 7(c) of the Sentencing Act so that s 17(3) has, at that point, imprisonment as its only penalty, then, at that point, the offence becomes a "custodial offence" within the meaning of s 12 of the Sentencing Act. That is so because the offence is then one which can be properly described in the terms of s 12 as an offence that is created under an enactment and has imprisonment as its only penalty. As such, a court is empowered by s 12, if it is of the view that the justice of the case will be better met by a non-custodial sentence than by imprisonment, to make any other sentencing order that it could have made in respect of the offender had the offence not been a custodial offence. Section 12 provides that is so "notwithstanding the penalty provided for the offence" in the other Act. I accept the submission of counsel for the respondent, Mr Brimfield, on this point.
It would make a mockery of the egregiously clear objective of mitigation of imprisonment promoted by s 12 of the Sentencing Act, and indeed by s 7(c) of that Act as well, if an offence such as that which is the subject of this motion to review, could not be characterised as a "custodial offence" merely because some other less serious example of the offence, but not the offence under consideration, might attract the lesser penalty of a fine. It is important to note that s 12 defines a "custodial offence" as one that has imprisonment as its only penalty. It does not state that the enactment must be one that specifies or provides for imprisonment as the only penalty in any instance of the offence. The word has is ambulatory.
It is unnecessary and would be unduly restrictive of the explicit objective in s 12 and s 7(c) of the Sentencing Act to mitigate imprisonment, to construe the word "offence" in the definition of "custodial offence" in s 12 as meaning every example of the offence created by the enactment concerned, and not just those cases under s 17(3) of the Act meriting imprisonment and not a fine.
To construe s 12 of the Sentencing Act in the manner I have done promotes the object of that section and of s 7(c) of that Act, namely, subject to the prefatory words to s 7, to allow no situation to exist where a court has no proper sentencing option but imprisonment. The interpretation I favour is, by virtue of s 8A of the Acts Interpretation Act 1931, to be preferred to an interpretation that does not promote the object of mitigation of imprisonment.
The conclusion I have reached is actually the product of the applicant's insistence that s 17(3) of the Act is to be construed so as to create a species of an offence that has imprisonment as its only penalty. If, however, I am wrong in my conclusion I have come to, the use of the word "must" in s 17(3) does not, in my view, have the effect contended for by the applicant. Section 17(3) of the Act does not mandate imprisonment, it provides that a court must impose a fine or imprisonment or both. Thus, when a court is contemplating imprisonment s 7(c) of the Sentencing Act is engaged because the "offence is punishable by imprisonment". All that s 17(3) of the Act does is to satisfy a pre-condition to the engagement of s 7(c).
What s 7(c) of the Sentencing Act provides is that that if an offender is over 18 and, on a correct grammatical construction, if the offence is punishable by imprisonment, then a community service order may be made. Section 17(3) of the Act certainly provides that a relevant offence is punishable by imprisonment, but it does not oust s 7(c) because although that latter section is subject to "any enactment specifically relating to the offence", nowhere does 17(3) mandate imprisonment in any given case. It merely provides that imprisonment is a sentencing option. So that when a magistrate is considering his or her sentencing options and the offender is over 18 and the offence is punishable by imprisonment then a community service order may be imposed.
I acknowledge some circularity in this harmonisation of s 17(3) of the Act and s 7(c) of the Sentencing Act but such a construction accords with common sense and promotes the clear objects of the Sentencing Act.
My view is fortified by that fact that the Sentencing Act post-dates the Act by some 27 years. Parliament can hardly have failed in 1997 to have been conscious that s 7(c) of the Sentencing Act might result in a community service order being imposed as an alternative to imprisonment in eligible and appropriate cases under the Act. Section 17(3) of the Act was introduced in its present form in 1991, some 6 years before the Sentencing Act.
Moreover, prior to the enactment of s 7(c) of the Sentencing Act, the Probation of Offenders Act 1973, s 11(1), provided that whenever the Supreme Court or a court of summary jurisdiction convicted a person of an offence, whether punishable by imprisonment or not, the court could "adjudge that for his offence" he undertake what was, by then, described as "community service". Originally the relevant orders were known as "work orders" and they were imposed only "instead of sentencing a person to undergo a term of imprisonment". There can therefore be no question that prior to the commencement of s 7(c) of the Sentencing Act a community service order could be made in respect of an offence to be dealt with under s 17(3) of the Act as an alternative to imprisonment.
Had Parliament desired, because of the social evil of driving with more than the prescribed concentration of alcohol in a driver's blood, to bring about sudden change in 1997 with the introduction of the Sentencing Act and the repeal of the Probation of Offenders Act by the Corrections Act 1997, so that imprisonment and not community service was thenceforth to be the only sentencing order available in a case warranting imprisonment, one would have expected that s 7 of the Sentencing Act would have been prefaced in far more explicit terms than "subject to any enactment relating specifically to the offence". It might be expected that s 7(c) of the Sentencing Act would have been expressed as not being applicable to the penalties of imprisonment specified in s 17(3) of the Act and the Tables set out thereunder.
I also observe that there is another aspect of the Tables set out under s 17(3) of the Act that, in my view, undermines the applicant's submission that s 7(c) of the Sentencing Act is displaced by s 17(3).
The Tables set out both a minimum and a maximum fine for specified ranges of blood alcohol concentrations, and also set out both a minimum and a maximum period of disqualification from driving for those specified ranges of concentrations. The Tables, however, set out what are only maximum periods of imprisonment in respect of those ranges, as the periods set out in the Tables are subject to s 17(3)(a)(ii) of the Act which provides for the imposition of imprisonment "for a term not exceeding the term shown in the Table".
The argument that s 17(3) of the Act displaces s 7(c) of the Sentencing Act because the former section, by the use of the word "must", mandates a sentence of imprisonment and imprisonment only, would be far more persuasive if s 17(3) specified a minimum sentence. As it does not, the words in s 7 of the Sentencing Act prefacing the range of available sentencing orders, namely "subject to any enactment relating specifically to the offence", are in their operation no different in the case of s 17(3) of the Act than in the case of any provision in any Act that specifies imprisonment as an available penalty and sets a maximum period of years for such imprisonment but does not specifically exclude community service as a sentencing option.
I would dismiss the motion.
File No 67/2015
SCOTT WILKIE v MARGARET DAWN TAYLOR
REASONS FOR JUDGMENT FULL COURT
PEARCE J
19 June 2015
I agree with the Chief Justice. For the reasons given by him, the motion to review must be allowed. I also agree with the other orders his Honour proposes.
Section 17(3)(a) of the Road Safety (Alcohol and Drugs) Act 1970 does not mean that a court may not make a community service order when sentencing for an offence specified in column 1 of the Table to the section. A community service order can be made because each such offence is punishable by imprisonment: Sentencing Act 1997, s 7(c). Section 17(3)(a) does mean, however, that a court making a community service order must also impose either a fine of at least the minimum amount or a sentence of imprisonment. In addition, s 17(3)(b) requires disqualification from driving for at least the minimum period. If the offence is not serious enough to require a sentence of imprisonment a fine must be imposed. If the offence is serious enough to warrant a sentence of imprisonment then any such sentence may be wholly or partly suspended. If a fine is insufficient to reflect the seriousness of the offence, but the court does not wish to impose a sentence of imprisonment, the sentencing order may include community service. Whether a convicted person is fined or sentenced to imprisonment, a probation order may also be made: Sentencing Act, s 8. It is only when special circumstances are established that less than the minimum fine or period of disqualification may be imposed: s 17(5).
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