PRYCE v FOSTER

Supreme Court of the Northern Territory of Australia

RICE J.

3 and 13 March·l986 at Darwin.

Appeal - Jus ices Act - Appeal against inadequacy of sentence - Driving with blood alcohol level .15 - Driving whilst disqualified - Previous conviction .22 - Whether sentence inadequate having regard to previous offence - Review of magistrate's discretion - Magistrate wrongly exercised discretion - Fine on first count increased - Term of imprisonment substituted for fine on second count.

Criminal Law - Appeal against inadequacy of sentence - Review of magistrate's discretion - Magistrate wrongly exercised discretion.

Sentencing - Appeal against inadequcy of sentence - Driving with blood alcohol level of .15 - Previous conviction (.22)
- Statutory formula laid down by legislature.

Traffic Act (N.T.) Sections 8(2), 8(3), 55(5A) and 55(8) Criminal Law (Conditional Release of Offenders) Act
Section 6(2A), (3), (5) and (6) Cases referred to:
Corbiac v Liddy (1968) 119 C.L.R. 257
Georgeff v Samuels (1976) 14 S.A.S.R. 384

Cases followed:
Conwell v Kelly (1951-1976) N.T.J. 407
Cranssen v The King (1936) 55 C.L.R. 509
Daniels v Nichol (unreported) Forster J. - 13 August 1976 Harris v The Queen (1954) 90 C.L.R. 652
Matan v Ruehland (unreported) O'Leary J. - 15 October 1984 McLeod v O'Brien (unreported) Kearney J. - 8 November 1985 R v Tait and Bartley 24 A.L.R. 473
Smith v Torney (unreported) Muirhead J. - 12 August 1984 Yunupingu v Holland (unreported) Nader J. - 27 November 1984

Cases distinguished:
Queen v Locke and Peterson (1973) 6 S.A.S.R. 298

Counsel for the appellant: Solicitor for the appellant: Counsel for the respondent: Solicitor for the respondent:

Mr. J. Karczewski
N.T. Crown Mr. M. Jones A.L.A.O.

ric860014

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
No. 81 of 1986

BETWEEN:
LEONARD DAVID PRYCE
Appellant

AND:
ALLAN WAYNE FOSTER
Respondent

Coram: RICE J.

REASONS FOR JUDGMENT
(delivered 13 March, 1986)

This is an appeal by the prosecution against the inadequacy of two sentences.	On 22 January 1986 the respondent was convicted by a Court of Summary Jurisdiction constituted by a stipendiary magistrate sitting at Darwin on charges, first, that on 21 January 1986 at Darwin he drove a motor vehicle on a public street whilst having a concentration of alcohol in his blood equal to 80 milligrams or more of alcohol per 100 millilitres of blood, namely, 150 milligrams of alcohol contrary to s.8(2)(a) of the

Traffic Act, for which he was fined $200 and disqualified from holding or obtaining a driver's licence for 2 years; secondly, of driving a motor vehicle whilst disqualified from holding a driving licence, contrary to s.55(8) of the Traffic Act,/for which he was fined $300 and disqualified for the same period;	and, thirdly, of driving an unregistered motor vehicle, contrary to s.107 of the
Motor Vehicles Act for which he was simply fined $100.	The respondent pleaded guilty to all three counts.

In his Notice of Appeal, the appellant, who was the complainant, gives two grounds of appeal, namely:-

"l)		That the fine of $200.00 imposed for the offence of Exceed .08% is manifestly inadequate punishment having regard to the previous convictions of the defendant.

2)	That the learned Stipendiary Magistrate erred in not imposing a sentence of imprisonment on the defendant for the offence of Driving Whilst Disqualified."

The facts admitted at the hearing were that at about 2.45 p.m. on Tuesday, 21 January 1986, the defendant was pulled over by police, not because of any bad driving on his part but simply because it was noticed that the vehicle he was driving was not displaying a registration label.
When he was spoken to by police, it was observed that his breath smelled of liquor.	He was subjected to a roadside

breath test and later to a breath analysis which returned a reading of 150 milligrams.		A check of the records with th, Registrar of Motor Vehicles revealed that the respondent had been disqualified from driving for a period of 12 months from 5 July 1-985.	This fact was stated to the Court of Summary Jurisdiction by the prosecutor but from the transcript in the lower court it does not appear to contain any reference to the particular offence to which the disqualification related.	I was told, however, that it is customary in the lower court simply to hand up a list of prior convictions if they are not contested.	In any event, the respondent, through his counsel, admitted that the disqualification related to a conviction for a breach of s.8(2)(a) of the Traffic Act where the breath analysis reading was 220 milligrams and for which the respondent was then fined $450 and was disqualified from driving for a period of 12 months.

Mr. Jones, who appeared for the respondent both in the lower court and before me, made a plea in mitigation of penalty before the learned stipendiary magistrate.	On behalf of the respondent he admitted the prior conviction and outlined facts personal to the respondent.	He said that the respondent had been in the Territory since 1977 and has been with his de facto spouse for 9 years but had no other dependants.	He had been in more or less full time employment as a labourer.	On the day of the offence the

respondent had been driven to the Dolphin Hotel with some work mates and met his spouse there at about noon.		While admitting consumption of alcohol to the extent of the breath analysis reading, it was submitted that he had not had a great deal t9. drink on that occasion but had been drinking a considerable amount of liquor the night before.	It was further submitted that on leaving the hotel his spouse was to drive him home but she had had an accident outside the front of the hotel which led the respondent to think that she was unable to drive any further.	It was submitted that he stupidly then took over the wheel.		He had been frank with the police and had co-operated with them, and he had pleaded guilty at the first opportunity.		It was also submitted that the respondent knew it was the wrong thing to do because he was aware that his licence had been suspended about six months be.fore.	It was urged that his spouse does not work and to that extent was dependent upon him.
Mr. Jones submitted that a suspended sentence was appropriate and in support cited the case of The Queen v Locke and The Queen v Peterson (1973) 6 S.A.S.R. 298, and especially the remarks of Bray C.J. in support of his urgings.	Mr. Jones further contended that it was not the respondent's actions that resulted in the car being driven to the Dolphin Hotel but rather it was by arrangement that his spouse would drive there.	The respondent had not driven the vehicle before, while under suspension, but had stupidly got behind the wheel when his spouse had the

accident outside the front of the hotel.	Mr. Jones distinguished the circumstances from the case of a person simply jumping into the car outside the hotel and declaring "I will drive home."

The prosecutor in a brief reply to these
submissions opposed the suspension of any sentence of imprisonment especially since the offence was committed some six months only after the disqualification had been imposed.

In passing sentence, the learned stipendiary magistrate said:-

"I take into account the fact that your spouse had an accident.and you were not intending to drive and you did drive, of course, but it wasn't one of those		· occasions where you initially decided to flout the law, you were wanting to assist her.	I'll take those set of facts that are unchallenged;	I'll take that and hold that in your favour.	So that prevents you from going to gaol.	I won't send you to gaol but monetary penalties will be imposed and also a period of suspension."

The learned stipendiary magistrate then proceeded to impose the various sentences.

The maximum penalties for an offence against s.8(2) are prescribed by s.8(3) of the Act and are graded according to the concentration of alcohol in the blood. A

concentration between 80 milligrams and 150 milligrams attracts a maximum penalty of a fine of $500 or imprisonment for 6 months, or both.	A concentration of 150 milligrams or more attracts a maximum fine of $1,000 or imprisonment for 12 months, or both.		The respondent falls into this latter category.

Under s.55(5A) of the Act the driving licence of a person convicted of an offence under s.8(2) must be suspended.	The period of suspension is graded according to whether it is a first or subsequent conviction under s.8(2); and also, according to the level of blood alcohol involved. In the present case the respondent, having had a previous conviction where the breath analysis reading was 220 milligrams, fell to be dealt with under s.55(5A)(d), by virtue of the operation ·of paragraph (c) thereof.
Accordingly, his licence had to be suspended for at least 12 months.	As will be noted from s.55(5A)(d), a minimum of 12 months' suspension must be ordered where the second offence involves a level of at least 80 milligrams.	In the present case the respondent's level was 150 milligrams.

In McLeod v O'Brien, an unreported decision of Kearney J., dated 8 November 1985, His Honour dismissed an appeal where the appellant had been fined the maximum of
$1,000 and disqualified for 18 months for an offence involving a reading of 170 milligrams.	In that case the

appellant's previous conviction for a breach of s.8(2)(a) related to a level of at least 175 milligrams and the previous offence was committed more than 5 years before his latest conviction.	His Honour at page 6 of his reasons for judgment ventured to say:-

"The fine is at the maximum level of
$1,000, but the maximum punishment for this offence is a fine of $1,000 plus imprisonment for 12 months.	Where a level of 0.17 is involved and there was a previous offence of the same magnitude within a reasonable period, a term of imprisonment may be expected.		The effective suspension of the licence is for some 7 months more than the minimum period."

I simply cite that case as an example of this Court's attitude to this type of offence.	Other facts and circumstances might well render it distinguishable from the case under review but the decision serves to indicate that even where the maximum fine has been imposed for a second offence occurring 5 years after the first offence, this Court was averse to reducing the penalty either by way of substituting a lesser fine or reducing the period of qualification.

In relation to the first count, counsel for the appellant submitted that the penalty was "simply so low that it had to show that there was an error on the part of the sentencing magistrate."

Looked at in the light of the fact that a little over six months earlier the respondent had been fined $450, it is, in my opinion, irreconcilable.both with logic and good reason for a Court of Summary Jurisdiction to impose a fine of $200 for a second offence occurring so soon after a prior conviction for the very same offence.	Admittedly the blood alcohol reading was lower and the period of disqualification twice the period ordered for the first offence;	but the legislature has clearly laid down a grading of the range of penalties, both in respect of fines and or imprisonment and periods of disqualification depending upon the blood alcohol level on the one hand and for first and subsequent offences on the other.

For these reasons I consider that the learned stipendiary magistrate wrongly exercised his discretion having regard to the statutory formula laid down by the legislature in respect of a second offence where the blood alcohol level was equal to 150 milligrams by imposing a fine of less than half that imposed in respect of the prior conviction when there were no exceptional circumstances

justifying such a course. later in my judgment.

I shall deal with those matters

Dealing with the second ground of appeal, counsel for the appellant referred me to three authorities.	The first is Daniels v Nichol, a decision of Forster J., as he

then was, in proceedings No. 321 of 1976, delivered
13 August 1976.	The appellant there was convicted by a Court of Summary Jurisdiction of driving a motor vehicle whilst having a blood alcohol concentration of 255 milligrams and, secondly, of driving a motor vehicle whilst disqualified from holding a driver's licence.	For the first offence he was sentenced to imprisonment for 1 month and for the second for 3 months to be served concurrently with the first offence.	His appeal against sentence was dismissed.	His Honour at page 6 of his reasons made the following observations:-

"In January this year the appellant was convicted of having driven while he had
250 milligrams of alcohol per 100 millilitres of blood ·and fined $400.
His driving licence was also disqualified for 18 months.	The maximum term of imprisonment which might have been imposed on the first count is twelve months.	In view of the fact that this was the second conviction within a little over six months I find it impossible to say that the sentence was manifestly excessive, indeed it was possibly inadequate."

The second is Smith v Torney, a decision of Muirhead J., as he then was, delivered on 12 August 1984 in proceedings No. 250 of 1984.	The appellant in.that case pleaded guilty to a charge of driving a motor vehicle whilst disqualified from so doing and was sentenced to imprisonment for six weeks, and was disqualified for a further period of twelve months.	Despite the fact that His Honour found on

fresh evidence which was admitted before him on appeal that the appellant's previous conduct and character were exemplary, he said at page 10 of his reasons for judgment:­ "But then it is necessary to pay regard to the nature of this offence,,,.which has traditionally been regarded as a serious offence", and then proceeded to cite the further remarks of Forster J. in Daniels v Nichol (supra) when dealing with the offence of driving under disqualification, viz:-	"for the offence of driving while disqualified from holding a driving licence imprisonment is the appropriate penalty save in exceptional circumstances	Such driving is a serious contempt of the court and I am quite unable to say that a sentence of three months is manifestly excessive."

His Honour then went on to lay down what might be termed a cautious approach to sentencing principles in a case of this sort, and I set them out hereunder reminding myself that I must bear them steadily in mind when dealing with the present appeal:-

"Of course any deliberate breach of an order of the court is serious and it has traditionally been regarded as such, but I consider care must be taken (as recent decisions on contempt illustrate) to ensure infringements are treated on their merits.	There is a danger of injustice if an individual is treated as one of a class of offenders, it is necessary that each person be sentenced as an individual.	Every sentence must be determined on its own facts.	I prefer

to classify the seriousness of driving whilst under disqualification on broader grounds.

The disqualification power is a vital weapon in the armoury of courts of summary jurisdiction.	Magistrates, amongst their many responsibilities,
/judicially administer statutes such as the Traffic Act which are designed, not only to regulate traffic, but to combat the appalling toll of killed and injured on our roads.
It is only an effective weapon if it is strictly enforced, but such orders are, by circumstance, difficult to supervise and enforce.

The only practical method of obtaining maximum compliance with such orders is to ensure that those subject to such orders understand that the consequences of a breach will almost inevitably be grave and imprisonment must, in this regard, be the general sanction."

In that case the appellant had previously been convicted by the same court less than two months previously of driving whilst having a blood alcohol concentration of
170 milligrams and had been fined $250 and disqualified from driving for 9 months.

His Honour concluded his judgment at page 13 by saying:-	"Keeping the principles I have referred to well in mind I am not persuaded the sentence should be varied.	The offence must, in my view, be punished by imprisonment and the interests of justice would not be served by suspending the sentence in whole or part."

The third authority relied upon by counsel for the appellant is an unreported decision of Nader J. in Yunupingu v Holland in proceedings No. 7 of 1984, delivered on 27 November 1984.	In that case the appellant appealed against the	everity of the sentence.	He had been convicted on 13 December 1983 of driving a motor vehicle whilst having a blood alcohol concentration of 180 milligrams and also of driving whilst disqualified.	For the latter offence he had been sentenced to 6 weeks' imprisonment and disqualified for a period of 15 months.
The appellant had some three months earlier been convicted of driving while having a blood alcohol concentration of 150 milligrams.	He was then fined $350 and disqualified for a period of 12 months.	His Ho our, after dealing favourably with fresh evidence called in support of the appellant, said at page 72 of the transcript:-

"The proper approach to cases of this kind is well expressed in Smith v Torney, an unreported decision of Muirhead J. of
12 July 1984.	Despite the evidence adduced on this appeal, I see no basis for interfering with the sentence imposed by the learned magistrate.	I do not think he was in error in passing the sentence, and I am not persuaded by any evidence adduced on the appeal that the sentence should be interfered with." ·

These cases all go to show the consistent attitude adopted by this Court in relation to an offence of this nature and to indicate that unless exceptional circumstances exist, a term of imprisonment is almost inevitable.

It therefore becomes necessary to examine whether or not exceptional circumstances exist in the present case. Counsel for the appellant submitted that there was none.
He submitted that it was not necessary for the respondent to drive in the,,,,circumstances.	The offence occurred at
2.45 p.m.	There was·no reason why the respondent could not have left his vehicle outside the hotel and got other transport home.	There was no risk of his losing his vehicle or anything of that sort.	He contended that the respondent's actions constituted a blatant disregard of the law.

Mr. Jones for the respondent submitted that the learned stipendiary magistrate had not erred in law and that he had not wrongly exercised his discrtion.	He challenged the appellant's contention that there had been a blatant breach by pointing out that the learned stipendiary magistrate had in terms effectively discounted this by saying in passing sentence:-	"•••that your spouse had an accident and you were not intending to drive, and you did drive, of course, but it wasn't one of those actions when you initially decided to flout the law, you were wanting to assist her.	I'll take those set of facts that are unchallenged;		I'll take that and hold that in your favour. So that prevents you from going to gaol."

Mr. Jones cited the case of Cobiac v Liddy (1968)
119 C.L.R. 257 for the proposition "that to succeed on appeal one must demonstrate that there was either an error of law or that there was a wrong miscarriage of discretion." Mr. Jones did pot elaborate upon that case except for saying, in effect, that in the present case there had been a proper exercise of discretion based on the learned magistrate's acceptance of the respondent's reasons for driving which, in the magistrate's view, did not constitute a flagrant breach of the law.

Although Cobiac v Liddy (supra) deals with the review of a magistrate's discretion, the principles of the law relating to an appeal against sentence are laid down in the earlier case of Cranssen v The King (1936) 55 C.L.R.
509, per Dixon, Evatt and McTiernan JJ., at pp.519-520:	See also R v Tait and Bartley 24 A.L.R. 473;	Harris v The Queen (1954) 90 C.L.R. 652 and Conwell v Kelly (Kriewaldt J.) (1951-1976) N.T.J. 407, all of which are cited by O'Leary J. (as he then was) in Matan v Ruehland (unreported decision of this Court delivered on 15 October 1984, at pp.7-8).

Mr. Jones further submitted that it was not open to the Crown to dispute the fact that the respondent's spouse had met with an accident unless evidence was called to discount that fact and he cited in support
Georgeff v Samuels (1976) 14 S.A.S.R, 384.

As I understood the submissions of counsel for the appellant, there was indeed no challenge to this fact but, on the contrary, even accepting it, it did not alter the fact that there had been a flagrant breach of the respondent's/duty to comply with the order of disqualification.

With respect to the learned stipendiary magistrate,­ I am of the opinion that he allowed sympathy to outrun discretion by regarding the accident, which befell the respondent's de facto wife, to provide the reason for deciding against imprisonment.	On the view of the facts most favourable to the respondent, he was bound to accept the fact that this lady had had an accident of some sort in front of the hotel, in the absence of evidenc to the contrary.	But, after all, it had happened at arr hotel where there was undoubtedly ample opportunity to phone for a taxi or to resort to other public transport.	There was no suggestion that the respondent was reacting to a state of emergency such as might have been the case had the lady needed urgent medical attention and needed to be rushed to hospital and there was simply no-one else to get her there.
The respondent clearly and deliberately took the chance of not being detected.	Accordingly, he must have realised that he was breaking the law and defying the order of disqualification made only a little over six months previously.	On this basis I am of the opinion that the

learned stipendiary magistrate erred in considering that this was not a deliberate breach of the order.	In my opinion it clearly was.		By his very act of deliberately driving the vehicle, the respondent showed contempt for the order of disg,_ualification and that, in my view, is enough to amount to flouting the law according to the ordinary usage of the English language.			In this way, I am of the opinion that the exercise of the learned stipendiary magistrate's discretion miscarried.	At best, the fact of the de facto spouse's accident might, in the proper exercise of discretion, go in aid of a reduction of the period of imprisonment which might otherwise be imposed in order to distinguish the case from one where the conduct was devoid of any explanation at all.

I do not consider that this is a proper case for the application of the Criminal Law (Conditional Release of Offenders) Act both in the light of the pronouncement of this Court in the cases which I have cited and of the facts and circumstances of the present case.

Mr. Jones, in his submissions before the learned stipendiary magistrate, and repeated before me, alluded to the observations of Bray C.J. in Locke's Case (supra) at page 301 which I quote:-

"It is sufficient for the present purposes to say that, in the case of an

ordinary bond under the Offenders Probation Act the offender, if he breaks the bond, is liable to be sentenced for the original offence but the nature and duration of that sentence is not known in advance and the court in imposing it can legitimately take into account any mitigating circumstances relating to the breach of bond.	The bond breaker will not necessarily be sent to gaol for his original offence.		In contrast, in the case of a suspended sentence the operation of that sentence is automatic on the defendant being brought before the court and proved to have broken the bond, either by committing some other offence or by failing in any of its other conditions.		The court in such a case has no discretion.			It must decree the automatic operation of the suspended sentence.	Anyone released under a suspended sentence therefore knows, or ought to know, that the sword of Damocles hangs over his head and that only his continued good behaviour and observance of the bond can prevent his automatic incarceration under t_he suspended sentence."

It should be noted, however, that the Offenders Probation Act of South Australia is materially different from its Northern Territory counterpart especially in relation to the consequences of a breach of a so-called suspended sentence.	I draw particular attention to
sub-sections (5) and (6) of s.6 of the Northern Territory Act, which, by reference back to sub-sections (2A) and (3) of s.6 empower the Court (inter alia) to exercise the very same powers of conditional release of the offender under s.5(1) as was made by the Court originally.	(Compare my extempore remarks on sentencing in R v Galley on 13 December 1986.)	Hence, the operation of the so-called suspended

sentence in the Northern Territory, in contra-distinction tc the position obtaining in South Australia, is not automatic.

In respect of the first count, I allow the appeal
and order th t a fine of $600 be substituted for the fine of
$200 imposed.	In default of payment of the fine, I order that the respondent serve 24 days' imprisonment.	In all other respects the conviction and order is affirmed.

Consonant with the authorities which I have cited, I am of the opinion that a term of imprisonment should have been imposed in respect of the second count.	In all the circumstances, therefore, the appeal will be allowed and I substitute a term of 1 month' imprisonment in lieu of the fine imposed in relation to the second count, but in all other respects the conviction and order of the Court of Summary Jurisdiction is affirmed.