2. The respondent, aged 50 years, is married with two children. He is a chemical engineer. He has continuously held a licence for 33 years and, apart from a minor breach of the Traffic Regulations in 1966, he is without prior conviction. On the evening of the offence he had been at home with his family. He and his wife drank some alcohol with the evening meal. He did not intend to leave home that evening but at 10.30, he and his wife decided that a "night cap" would be appropriate and the respondent drove his car the short distance from his home to the Globe Hotel bottle shop. According to counsel's submission to the learned magistrate, the respondent felt unaffected by the alcohol he had consumed and did not consider that he might have exceeded the prescribed concentration. On returning from the bottle shop he saw, and then in panic, unsuccessfully tried to avoid a random breath test unit. It was put to the learned magistrate that the respondent was very ashamed. The learned magistrate imposed a fine of $250 and ordered payment of costs. No period of licence disqualification was ordered. In his comments on passing sentence he said:

"Yes, well the defence is quite unremarkable, I know

particular circumstances which either aggravate it or, so

far as the defence is concerned, those particular

circumstances which stand out with particular strength

and mitigation. Nevertheless, to drive for some 34 years,

I think, 33 years, without, apart from a minor blemish,

attracting any record of traffic offences at all, is a

most creditable achievement which few of us can boast.

That being so, I think you're entitled to acknowledgment

for that in the penalty I impose. You'll be fined two

hundred and fifty dollars and pay the costs."

3. The appellant moved the Supreme Court to review that penalty upon the single ground that, in all the circumstances of the case, it was manifestly inadequate. During the hearing before a single judge it was submitted that there was a difference of opinion between the judges of this court with respect to the effect of some recent amendments of the Traffic Act upon the penalty provisions in the Act. Exercising the power contained in s.114(4)(c) of the Justices Act 1959, the judge hearing the motion reserved the case to the Full Court for its determination.

1. By enacting the Traffic (Amendment) Act 1987 (No. 34/87) Parliament intended that some period of licence disqualification should, in the absence of exceptional circumstances, be imposed in every case of a conviction for an offence contrary to s.6(1)) of the Act, and

2. That in the circumstances of the present case, the penalty was manifestly inadequate having regard to "the tariff" in Courts of Petty Sessions for similar offences, and

3. That in any event, the penalty was manifestly inadequate.

5. Apart from an amendment by the Penalty Units and Other Penalties Act 1987, which has no significance for present purposes, s.17(1) of the Act has remained unaltered since the 1 March 1976. It provides:

"A person who is guilty of an offence under this Act is

liable on summary conviction to a penalty not exceeding

ten penalty units or to imprisonment for a term not

exceeding 6 months or both, and, on conviction of such an

offence, the court may order him to be disqualified from

holding or obtaining a drivers licence for a period not

exceeding three years."

6. The language of the subsection is plain, unambiguous and clearly expresses the intention of the Legislature. That intention is stated by the words of s.37(2) of the Acts Interpretation Act which governs the construction of s.17(1) of the Act. It provides:

"Where in an Act a penalty is specified in respect of an

offence against that Act, or a provision of that Act,

then, unless the contrary is expressly provided, that

specification indicates that the offence is punishable

by a penalty not exceeding that so specified."

7. Parliament used no words which indicate an intention to impose a restriction upon the exercise of the discretion vested in a judicial officer by the provisions of s.17(1). That subsection does not exhaustively express the liability of a person who is guilty of an offence under the Act. Such liability includes a liability to be sentenced in accordance with the various relevant provisions of the Probation of Offenders Act 1973 and, until the 1 June 1987 when the material section in the Traffic (Amendment) Act 1987 came into force, a liability to being "awarded" up to 4 demerit points. The exercise of the discretion contained in s.17(1) to order licence disqualification is restricted only by an upper limit of three years. The words of the subsection make it quite clear that Parliament did not intend that in every case of an offence against the Act the offender must be disqualified from holding a licence.

8. This has not always been the Legislature's intention. By the Traffic Act No. 43/1969 (enacted three years after the introduction of "breathalyser legislation") Parliament directed that the magistrate "shall in addition to any other penalty ... order that person to be disqualified ... for the prescribed period". The following subsection provided for certain maximum prescribed periods. When the Act was first enacted in 1970, Parliament repeated its express direction to judicial officers to disqualify persons convicted of an offence against the Act for a period, up to the prescribed maximum, from holding or obtaining a driver's licence. By the same Act the "restricted licence" concept was introduced. The statutory directive to disqualify was wholly repealed by the Road Safety (Alcohol and Drugs) Act (No. 2), 1975 which Act introduced s.17(1), expressed (apart from a reference to penalty units) in its present terms. Thus, for five years the Legislature required disqualification but simultaneously gave a restricted discretion to grant a restricted licence. To our mind, the abolition of mandatory disqualification after such period does not indicate a legislative direction to order licence disqualification for an offence against the Act in all except exceptional cases. In this respect, we find that we are unable to agree with the following statement in Lowe v. Plaister, Wright J 36/86 at p 5:

"In relation to the present appeal, it seems to me that

the most important aspect of these mattes is to note the

clear legislative assumption and purpose underlying the

restricted licence concept, a concept which, so far as I am

aware, is unique to Tasmania, viz, that a conviction for a

driving offence under the Road Safety (Alcohol and Drugs)

Act will normally carry with it a licence disqualification

even if the offender depends upon a licence for essential

travel or to earn his livelihood. I think that such

legislative purpose could well be described as being

'notorious' in the same way that amendments to the

Criminal Code which were similarly described by Sir

Stanley Burbury CJ in Regina v. Rau (1972) Tas SR 59 at

p 61."

9. The unfettered nature of the judicial discretion granted by s.17(1) was correctly expressed in Smith v. Jessup, Green CJ 78/1986 at p 3:

"I am also of the view that when imposing penalty

magistrates ought to have regard to statements of

sentencing policy made by this court and should strive

for consistency in the penalties they impose by having

regard to the range of the penalties which are usually

imposed in respect of different classes of offences.

But considerations of that kind cannot be elevated to

the status of rules of law and must be applied subject

to the well established principle of law that it is not

competent for this, or any other, court to impose rigid

limitations upon the exercise of a discretionary power

which an Act of Parliament has conferred in unqualified

terms."

10. It was submitted by counsel for the appellant that, by the Traffic (Amendment) Act 1987, Parliament expressed an intention or purpose articulated in the passage cited from Lowe v. Plaister (supra). That Act operated to remove from the Traffic Act the list of offences in respect of which demerit points were to be awarded and provided the Executive with a power to prescribe, by regulation, such offences and the demerit points applicable to each. That power was exercised by Statutory Rule No. 107 of 1987. It did not include offences against the Act. It also did not include a number of other offences in respect of which the Traffic Act had previously provided that demerit points were to be awarded. In short, it removed one of the sentencing options available to the court upon conviction for an offence against the Act. The effect of this Statutory amendment and the Penalty Units Act 1987 which operated to increase the maximum fine from $500 to $1,000 was considered in Crawford J Atkins, Nettlefold J B48/1987. At p 3 of his reasons for judgment his Honour said, correctly in our view:

"These arguments do not persuade me that the conclusion in

this case should be different to the conclusion in Smith

v. Jessup. Having regard to the respondent's

circumstances and the nature of the offence the monetary

penalty imposed in this case was appropriate. The

increase in the maximum fine does not persuade me that the

learned magistrate was wrong in the view he expressed

about suspension of licence. The removal of the power to

award demerit points does not have that effect either.

A sentencing option has been removed but that

circumstance does not justify the conclusion that, save in

rare and exceptional circumstances, there must be an order

for suspension of licence. If Parliament wishes to

provide that in all cases of this offence there shall be

a suspension of licence for a minimum period or, save in

rare and exceptional circumstances, there shall be such a

suspension, nothing would be simpler than for it to say

so. Until it does say so, the same result cannot be

reached by an unjustified interference with the decisions

of magistrates."

11. The clear intention, manifested by the unambiguous words of s.17(1), is to leave it to the discretion of the sentencer whether or not an order for licence disqualification for a period up to a maximum of three years should be made in any given case. Such a discretion must, of course, be exercised in accordance with judicial principles. Those principles include an obligation to take into account the notorious fact that "drink driving" is a grave social evil carrying with it a substantial risk of causing death, serious injury and loss, that the offence is prevalent and that the imposition of penalty must take into account the need to deter not only the offender from repeating the offence, but others who might be tempted to act in the same way. It follows from the foregoing and from the fact that the prospect of licence disqualification is generally accepted to be an effective deterrent that a case of conviction for driving a motor vehicle with a blood alcohol content in excess of the prescribed minimum will usually, in the absence of mitigating circumstances, or circumstances justifying an individualised approach, call for the imposition of a period of disqualification. However, it is not appropriate to prescribe with any particularity what those circumstances are. Such a prescription, as opposed to the articulation of relevant principles, would involve a failure to recognise that each case falls for determination upon its own facts and would constitute an unjustified restraint upon a discretion expressed by the legislature to be without restraint.

12. On the hearing of this motion, the court was told, without objection, that between 1st July 1987 and 23rd November 1987, in the Court of Petty Sessions at Hobart, 484 persons were convicted of having a "breath analysis reading" of or above .10% and the respondent was the only person in respect of whom licence disqualification was not ordered. Obviously, the value of such information is practically nil for it discloses nothing concerning all the other matters relevant to the imposition of penalty and is limited with respect to time and area. However, even if it were more extensive and informative it would disclose no more than what orders are usually made in Courts of Petty Sessions. It does not indicate a "tariff" against which any particular sentence can be compared to see if it is within the range of sentences imposed for the same or similar offences as is the practice in this court. See for example, Sheldrick v. The Queen CCA 41/60; Wise v. The Queen (1965) Tas SR 196; R. v. Milner, Chambers J 31/74.

13. Whether a sentence imposed in a Court of Petty Sessions is manifestly adequate or inadequate falls to be determined by this court applying the well known principles expressed in House v. The King [1936] HCA 40; (1936) 55 CLR 499, and Cranssen v. The King [1936] HCA 42; (1936) 55 CLR 509. Whether a sentence under review by this court falls within the range of sentences usually imposed in Courts of Petty Sessions is a factor which may be considered but only as one matter amongst many which have to be taken into account in determining whether in the end result, the sentence is manifestly inadequate or excessive as the case may be.

14. With respect to the sentence under review, the learned magistrate took the view that the personal circumstances of the offender, in particular the fact that he had been driving for 33 years without previous conviction (apart from one minor matter) was of sufficient mitigatory weight to enable him to impose a fine of $250 and not order licence disqualification. Although this court may not have taken the same course had it been exercising the sentencing discretion, it cannot be said that the penalty imposed was manifestly inadequate. The learned magistrate was entitled to take the view that in the circumstances of this case and this offender, a fine without more was sufficient to deter not only him but others in similar circumstances who might be minded to act in a similar manner.