Davis v Conroy [2005] ACTSC 8

2. The incident giving rise to the charge took place on 28 November 2003. Evidence led by the appellant in these proceedings establishes the context in which the incident occurred. The respondent came to the attention of the police because of the manner in which he was driving. He was travelling in a southerly direction on Eyre Street in Kingston. Police saw the respondent's vehicle veer to the left and strike the gutter. The police activated warning lights and followed the respondent's vehicle which parked near the Eastlakes Football Club. The respondent did not appear to notice the police until they approached him. The police saw the respondent's face was flushed and his eyes were bloodshot. He emitted a strong smell of intoxicating liquor and his speech was slurred. His walk was stumbling and he was swaying. His ability to understand instructions was poor.

3. On 8 April 2004 the respondent pleaded not guilty to the charge. The Magistrate heard the matter on 25 June 2004 and found the offence proved. On 30 July 2004, her Worship dismissed the charge pursuant to s 402 of the Crimes Act 1900 (ACT) ("the Crimes Act"). On both occasions, her Worship gave her reasons ex tempore and the reasons are set out in the transcript.

4. The evidence and submissions on the question of guilt are not in the appeal book. However, it is relatively clear, having regard to the reasons of the Magistrate, how the matter proceeded. The Magistrate summarised in her reasons the evidence of a police constable involved in the incident which was not challenged. It was to the effect that the respondent failed to provide a sufficient sample on two occasions because he did not use his mouth to form a seal around the tubing of the breath testing machine. As the Magistrate noted in her reasons, the respondent agreed that he had not provided a sufficient seal over the mouthpiece. The constable gave evidence that he detached the plastic tube from the machine after he tried twice to obtain a sample from the respondent and the respondent failed twice to form a seal. The constable gave the detached tube to the respondent to practise forming a seal on the tube and blowing. The respondent was able to form a seal when the tube was not connected to the test machine. The constable gave evidence that when the respondent was asked why he would not provide a sample of breath he continually said words to the effect "I am trying, let's do it again". The constable's evidence was also to the effect that after the tube was reattached to the test machine, the respondent was warned he would be committing the offence of failing to provide a sample of breath, but the respondent still failed to supply a sufficient sample of breath.

5. In evidence before the Magistrate was a form completed by the constable setting out the events of the evening. In her reasons the Magistrate set out an extract from a conversation between the constable and the respondent recorded on the form. Her Worship then indicated that she was satisfied that the respondent had raised with the constable that he wanted a blood test. Her Worship then referred to other entries on the form in the following passage from her reasons:

On page 3 of Exhibit B the officer has completed that form which is required to be completed by an approved operator when there has been a failure to supply a sufficient sample and it sets out the additional questions which were, "I said what is your reason for failing to supply a sufficient sample of breath for analysis." The defendant said, "I am trying."

I said "Do you realise it is an offence to fail to supply a sufficient sample of breath for analysis?" The defendant said, "Okay, let's try again". Then the officer said, "Do you have medical reasons for failing to supply a sufficient sample of breath for analysing - for analysis, sorry." The defendant said, "No, let's try again," and then, "Will you now provide a sample of your breath sufficient for analysis?"

And the subject said, "Yes," and then the officer said, "The fact of this matter will be reported. You may receive a summons to appear in court at a later date, do you understand?" And the defendant said, "Yes, but can we try again?"

Two things emerge from this evidence though they were not referred to by the Magistrate when discussing it. The first is that the respondent wanted to continue to try to provide a sample. The second is that, at the time, he answered in the negative when asked whether he had medical reasons for failing to supply a sufficient sample.

6. After the Magistrate set out the evidence of the police, she summarised the evidentiary case of the respondent. Her Worship noted:

The defendant said in his evidence that he did not refuse to provide a sample. Indeed, that is not the charge that's before the court today. He says that he failed to provide it because of a medical illness or a medical condition, the name of which he then, that is on 28 November 2003, did not know.

He says he was unable to blow without experiencing severe chest pain in an area which he identified as just below his right breast. He said he had seen Dr Peachey after the date of this offence. Dr Peachey did not give evidence. I do not know on what date the defendant consulted him other than that the defendant says that Dr Peachey arranged for him to undergo an X-ray and I'm satisfied from the matters before me and the evidence that that X-ray was carried out on 4 December 2003, and that the defendant had therefore seen Dr Peachey at the latest on 4 December 2003.

There was no evidence of any other steps that the defendant took to get medical treatment or to see a medical practitioner until April 2004, shortly before the first return date of this summons in court, which was 8 April.

Dr Griffith gave evidence for the defendant. He had had to rely on the defendant's history as narrated to him by the defendant and the X-rays as he had not seen the defendant between the period 28 November 2003 and April 2004.

He said from reading his notes that the defendant had not informed him when he sustained the injury to his ribs. He said that it was, from looking at the X-rays, very difficult for him as a doctor to tell how old the injury was and that he could not say it was a recent injury, but that his evidence was relying on what the defendant had reported to him, namely the intense and severe pain, that that could have, in the doctor's opinion, caused the defendant to experience pain on the inhalation and exhalation of air.

However, compellingly, this doctor conceded in cross examination that the injury as observed by him from the X-rays did not, in his opinion, affect the defendant's ability to form a seal around the mouthpiece or tube of the Draygar machine.

After setting out this evidence, the Magistrate dealt with the submissions.

7. Her Worship began by referring to a submission by the prosecution concerning the respondent's failure to form a seal. Her Worship noted:

The prosecution alleged that this [the respondent's failure to provide a sample] was because he did not form a seal around the tube, and without forming such a seal, he in accordance with Senior Constable Guy's evidence would be failing to provide that breath sample, that it was not possible for a sample to be provided without the tube being sealed by the defendant's mouth.

There was some argument over whether I should have to find that the issue of pain experienced by the defendant when attempting to inhale and exhale and whether that - I should take this into account in determining whether or not this offence is proved beyond reasonable doubt.

In my view that is not correct. The question for me to determine is whether the defendant could provide the sample in accordance with the officer's directions without obstruction. The evidence before me enables me to be satisfied beyond reasonable doubt that the defendant failed to provide the sample because he did not seal the tube.

8. The Magistrate then addressed the question of whether there was an explanation for the respondent's failure to form a seal. Her Worship said:

There was no evidence that would enable me to find that he was not medically able to seal the tube or that he was from any physical disability, obstructed from sealing the tube with his mouth. Notwithstanding whatever pain the defendant alleges that he was experiencing on 28 November 2003 and of which he failed to tell the officers at the police station, notwithstanding the number of opportunities he had, it is my finding, having considered all of the matters before me, for the reasons that I've just given that the defendant has failed to provide the sample to the requisite degree.

It is clear the Magistrate concluded that there was no medical explanation or justification for the respondent being unable to form a seal which was the reason the sample was not provided. Her Worship was rejecting any suggestion that the failure to provide the sample, being the offence charged, flowed from any medical disability the respondent might have been suffering at the time of the incident.

9. The Magistrate appears to have rejected the submission made on behalf of the respondent that his failure to provide a sample was because he had been experiencing pain. That is, the respondent was suffering from a medical condition or physical injury that caused him so much pain when he endeavoured to provide a sample that he was unable to provide one. While her Worship does not, in terms, refer to the specific evidence which led to this conclusion, it was a conclusion which was plainly available having regard both to the medical evidence led on behalf of the respondent as well as his disavowal at the time of the incident of being unable to supply the sample because of medical reasons.

10. The hearing on sentence took place on 30 July 2004. The submissions on behalf of the defendant were:

MR COLQUHOUN: Your Worship, Mr Conroy was born in 1945. He'll be 59 in October of this year on the 3rd. His family came to Canberra in 1956 and he's been a resident of Canberra since that time. He was educated at St Edmunds and St Josephs Colleges and at the ANU and the Uni of NSW.

He holds a degree in Arts and graduate diploma in Professional Communication. His major employers have been News Limited for seven years, Fairfax for two years and he's currently employed by Pirion(?), a local company, and he's been there for one year. The other periods of his life he has been self employed.

I put him before your Worship as a good citizen. He's engaged in charitable works as your Worship can see from the Open Family letter. He's also done charitable works in St Vincent's and the Red Cross. Now, in relation to his record, my submissions are that the last offence date was almost 16 years ago, which is ---

HER WORSHIP: '88.

MR COLQUHOUN: --- 16 December 1988. He also had another drink driving offence in that year and the previous one was in '86. Now - so under the current law he's first offender (sic), your Worship, and I'd ask in view of the circumstances in fact that he was only - he was convicted of failing to provide a sufficient sample of breath and he was - and your Worship heard him give evidence in relation to the pain he was suffering on that evening and your Worship also heard the medical practitioners' evidence that - and the x-ray that showed he had three broken bones in his back or crushed bones in his back at that time.

I'd ask your Worship to take his 16 years of good character into account and the references into account, and in view of the hardship that not having a licence would cause him, I ask your Worship to also consider whether you can deal with this matter in terms of section 402? If your Worship is not prepared to take that course, I'd ask your Worship only to impose a bond - a good behaviour bond.

11. The Magistrate then invited submissions from the prosecutor. The submissions were:

MS TAYLOR: Simply your Worship my view - my submissions in relation to what my friend has put is that based on the sentence history, although I do concede it's relatively old, that your Worship should not exercise her discretion pursuant to section 402. My view in relation to the licence disqualification, my understanding of the legislation is that your Worship doesn't have any discretion in relation to that.

This is an offence that carries a mandatory disqualification period of between six months and three years. I wouldn't submit, your Worship, that any more than the minimum period would be appropriate but it's my understanding of the legislation that your Worship doesn't have any discretion in relation to that for an offence of this nature.

HER WORSHIP: That's my understanding.

MS TAYLOR: The offence itself carries a penalty of 30 penalty units.

HER WORSHIP: Yes.

MS TAYLOR: But the legislation then directs that anyone convicted on an offence of this nature shall be subject to a disqualification period of between six months and three years.

HER WORSHIP: Yes. Certainly that's my understanding but I am happy to look at it. Is it 22D?

MS TAYLOR: That's right, and the specific section escapes me, but ---

MR COLQUHOUN: ...(indistinct)... section 34, your Worship.

HER WORSHIP: 34? Thank you, Mr Colquhoun.

MR COLQUHOUN: I just point out that that involves a conviction.

MS TAYLOR: It would be my submission that your Worship would convict in this matter.

12. There was then a passing exchange about s 34 of the Act. The Magistrate then proceeded to her decision on the question of penalty. Her Worship's reasons were:

I've acceded, Mr Colquhoun, to your submission. I hesitated as to whether or not in dealing with your client under section 402 I should or should not place him on a recognizance for a short period. I have chosen not to.

The view I've taken is that there is a history, but as both Ms Taylor and Mr Colquhoun point out, it's an old history, and one that hopefully this is an aberration and won't see this Mr Conroy back before the court again. I also take into account the fact that there is, thank goodness, still people in our community who are happy to help out charities.

And that's something that I take favourably. To have taken away your licence put you in, I guess, some position of jeopardy with your newest employer, and in the circumstances my finding is that in view of section 402 of the Crimes Act I find the charge proved. Having done so on 25 June, having regard to the circumstances surrounding the offence and the reference before the court, it is inexpedient to inflict any punishment. Without proceeding to a conviction, the information is dismissed. (Emphasis added)

It can be seen that the Magistrate took into account "the circumstances surrounding the offence" in exercising the discretionary power conferred by s 402 of the Crimes Act though did not identify what these circumstances were.

13. Section 22 of the Act provides:

A person who--

(a) has been the driver of a motor vehicle on a public street or in a public place; and

(b) has, in accordance with the provisions specified in this Act, been required to provide a sample of breath for breath analysis;

commits an offence punishable, on conviction, by a maximum fine of 30 penalty units if--

(c) he or she refuses to provide a sample of breath for analysis; or

(d) he or she fails or refuses to provide a sample of breath in accordance with the reasonable directions of the police officer who made the requirement.

If a court convicts a first offender of a disqualifying offence, other than an offence against section 19 (1), the person is automatically disqualified from holding or obtaining a driver licence for--

(a) 3 years; or

(b) if the court orders a shorter period of disqualification that is at least 6 months--the shorter period.

The dictionary stipulates that s 22 is a disqualifying offence.

15. The Act creates a number of offences which concern or relate to the driving of vehicles under the influence of drugs or alcohol. The purpose of such legislation is obvious: see the observations of Miles CJ in Morris v East (1988) 83 ACTR 1. The efficacy of the legislation is promoted by authorising police to require a driver to undergo a screening test, defined to mean a test of a breath sample using an approved screening device. The effectiveness of that procedure is, in turn, underpinned by creating an offence of refusing or failing to provide a sample. Refusal or failure of a driver to provide a sample potentially frustrates the operation of the Act, which is intended to expose a person who is driving under the influence to potentially severe criminal sanctions. As an integral and important part of the legislative scheme, the offence of refusing or failing must itself be viewed as serious. To do otherwise creates an obvious means for those who drive under the influence of avoiding the consequences of their criminal conduct. Indeed, the respondent accepted in written submissions filed in these proceedings, that the offence was a serious one.

16. Section 402 of the Crimes Act provides for the conditional release of offenders without proceeding to conviction. Relevantly, it states:

(1) If--

(a) a person is charged before a court of the Territory with an offence against a Territory law; and

(b) the court is satisfied that the charge is proved but is of opinion, having regard to--

(i) the character, antecedents, age, health or mental condition of the person; or

(ii) the extent (if any) to which the offence is of a trivial nature; or

(iii) the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the person on probation;

the court may dismiss the charge or, ...

Consideration

17. The ground upon which the order to review is sought is that the penalty imposed was manifestly inadequate though the matter was also argued on the basis that the Magistrate erred in law. The starting point in considering whether the Magistrate erred is to recognise that the power conferred by s 402 to conclude that it is inexpedient to inflict any punishment, is a discretionary power. Accordingly, in review proceedings such as the present, principles analogous to those discussed in House v The King [1936] HCA 40; (1936) 55 CLR 499 are applicable: see Knight v Birch (1992) 106 ACTR 27 at 31-32 and, in particular, the passage from R v Tait and Bartley (1979) 24 ALR 473 cited by Miles CJ, and see also Marsden v R [2002] FCAFC 229 at [20]. However, the discretion is not entirely unconstrained. It can be exercised having regard to the three general matters specified in s 402(1)(b). Binding and highly persuasive authority establishes that notwithstanding that s 402 identifies the matters in a way which suggests they are exhaustive of the matters which can be taken into account, other matters may be relevant. So much emerges from the decision of the High Court in Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 which has recently been considered in Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 192 ALR 92. In that latter case, Spigelman CJ said (at [21]-[26]):

[21] The joint judgment in Cobiac v Liddy establishes that the list of relevant considerations for determining the issue of "expediency" is broader than the list of matters specifically listed as factors to which the court must have regard.

[22] The breadth of the discretion is confirmed in the judgment of Windeyer J where his Honour said (at CLR 276; ALR 648):

... the magistrate must be of opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the State statute permits. The Act speaks of the court exercising the power it confers "having regard to" the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence.

[23] This last reference to the "whole of the circumstances of the offender and the offence" opens up a wide range of factors as relevant to the exercise of the statutory discretion. It appears that his Honour, like the judges who signed the joint judgment, did not take a narrow view of the scope of relevant considerations, notwithstanding his Honour's reference to the need for one or other of the specified factors to themselves be of sufficient significance to justify the finding of the expediency.

[24] There may be a difference in approach between the joint judgment and that of Windeyer J. (See Paterson v Fenwick [1994] ACTSC 25; (1994) 115 FLR 462 at 468-9.) Windeyer J appears to apply a test that one of the specified matters must of itself justify the finding of inexpediency, but that in determining that question the full range of relevant considerations may be taken into account. The joint judgment proceeds on the basis that any matter relevant to the issue of expediency can be taken into account in the ultimate exercise of the discretion, whether or not that factor itself falls within one of the facts and matters specified in the respective subparagraphs of 19B(1)(b).

[25] As a practical matter, there may be little difference between the two approaches because of the reference Windeyer J made to the "whole of the circumstances of the offender and the offence", together with the broad approach his Honour took to the scope of "antecedents".

[26] Windeyer J's reference to the relevance of "the whole of the circumstances of the offender and the offence" has been reflected in a number of subsequent decisions. (See for example Aikman v Bourne (1992) 63 A Crim R 467 at 470 per Cox J; McQuestin v Australian Securities Commission [1993] TASSC 118; (1993) 2 Tas R 30 at 36-7; 12 ASCR 279 at 283 per Underwood J.)

18. Plainly enough the Magistrate took into account the character, antecedents and age of the defendant being specific matters referred to in s 402(1)(b)(i). So much is apparent from her Worship's remarks about people in the community who are happy to help out charities as well as the later remark concerning the references before the Court. These were matters raised by Mr Colquhoun in his submissions and, in particular, in the third paragraph of his submissions set out at [10] above.

19. More problematic are the remarks of the Magistrate about the "circumstances surrounding the offence". None are identified by the Magistrate in her reasons. Unduly lengthy or detailed reasons cannot be expected in a judgment given by a judicial officer in a busy court: see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 250 per Kirby P. Nonetheless the immediate difficulty is to determine what her Worship was referring to when making these remarks. It is not clear whether her Worship was addressing the question of whether the offence was committed under extenuating circumstances as a matter raised by s 402(1)(b), or looking at the circumstances of the offence from some other perspective. The only circumstances surrounding the offence referred to in the submissions of Mr Colquhoun were the pain the defendant had been suffering on the evening of the offence and that he had three broken or crushed bones in his back at the time. It is likely that her Worship had those circumstances in mind when she exercised the power conferred by s 402.

20. It is first necessary to consider whether these might be circumstances comprehended by s 402(1)(b)(iii), which speaks of "extenuating circumstances" under which the offence was committed. The meaning of this expression has recently been considered by Pullin J in Mansfield v Evans [2003] WASCA 193. His Honour said (at [20]):

The word "extenuating" means in ordinary meaning "to serve to make the offence seem less serious": see "Macquarie Dictionary". In Lanham v Brake (1983) 74 FLR 284, it was said that "extenuating circumstances" are those "that lessen, or seem to lessen, the seeming magnitude of (guilt or offence) by partial excuses". In O'Sullivan v Wilkinson [1952] SASR 213, the phrase was said to mean circumstances which excuse, in any appreciable degree, the commission of the offence charged. See also Nitschke v Halliday (1982) 30 SASR 119. Extenuating circumstances may be many and varied, but there must be some link between the extenuating circumstances relied on and the commission of the offence. This is because the provision does not allow the court to have regard to extenuating circumstances generally. The court has to decide "the extent to which the offence was committed under extenuating circumstances". Commissioner of Taxation v Baffsky (supra) at [47].

In these proceedings, the appellant submitted that there were, relevantly, no extenuating circumstances of the type comprehended by s 402(1)(b)(iii).

21. It is necessary to examine this proposition by reference to the unchallenged evidence led by the prosecution, the findings made by the Magistrate and the submissions made on sentencing. The circumstances referred to by Mr Colquhoun (summarised at [9] above) and which the Magistrate probably had in mind when referring to the "circumstances surrounding the offence", might arguably constitute extenuating circumstances in the abstract. That might be so because the failure to provide the sample may have flowed from pain the respondent was experiencing arising, in particular, from the condition about which Dr Griffith gave evidence. However, the difficulty with this analysis in the present case is, as noted earlier, the Magistrate said in her reasons of 25 June 2004 when dealing with guilt, there had been no evidence that would have enabled her to find that the respondent was not medically able to seal the tube. Also, as noted earlier, her Worship in making those remarks, was rejecting a submission that pain experienced by the respondent prevented him from complying with the request to provide the sample based on his failure to seal the tube. In my opinion, it would follow that whatever pain the respondent was then experiencing, it could not have been an extenuating circumstance because it did not prevent him from doing that which he was directed to do which constituted "the failure". However, if her Worship was considering these circumstances identified by Mr Colquhoun more generally under the rubric of the "whole of the circumstances of the offender and the offence", to adopt the expression used by Windeyer J referred to by Spigelman CJ in his passage set out at [17] above, then I do not see how they could have been relevant. The fact that the respondent may have suffered an injury prior to the incident and may have been suffering pain at the time of the incident appears to me to be wholly irrelevant to whether it was inexpedient to inflict punishment in circumstances where the basis of the proved offence was the failure to form a seal around the tube. In my opinion, any pain experienced by the respondent was irrelevant unless in some way it contributed to the circumstances leading to the commission of the offence (a submission which was not made below or on appeal) or the pain contributed to the commission of the offence (a proposition rejected by the Magistrate).

22. In this appeal, counsel for the respondent pointed to other matters which may have been the "circumstances surrounding the offence" which the Magistrate had in mind. They were that, on the evidence, the respondent was evidently anxious to provide a sample in that he asked at least twice to be able to try again. In addition, the respondent appeared to have asked to undergo a blood test. The difficulty with this submission is that it was not a submission made at the time of sentencing. It is unlikely, in my opinion, that the Magistrate would have recalled those matters of detail and acted on them in circumstances where they had not been raised in the submissions she had heard immediately before giving judgment on sentence.

23. In my opinion the Magistrate erred for one of several possible reasons. It is not possible to be precise because of the brevity of the reasons her Worship gave. Her Worship either overlooked that s 402 raised for consideration "extenuating circumstances surrounding the offence" or her Worship did recall the words of limitation but did not appreciate the full legal impact of the limits they imposed and, probably in addition, considered irrelevant circumstances. Alternatively, her Worship may have overlooked the findings she earlier made about the respondent's medical condition.

24. The decision of the Magistrate should be set aside and the matter remitted to the Magistrates Court for sentencing.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Moore

Solicitor for the appellant: Office of the Director of Public Prosecutions (ACT)