Solicitors for respondent: Director of Public Prosecutions

UNDERWOOD J The applicant was convicted on his own plea of:

1 Driving a motor vehicle with a blood alcohol concentration

in excess of the prescribed maximum, namely 0.146 grams of

alcohol in 100 millilitres of blood contrary to the Road

Safety (Alcohol and Drugs) Act 1970, s6(1).

2 Driving without a licence.

3 Disobeying road markings.

2. With respect to the first matter of complaint the learned magistrate ordered that the applicant be sentenced to a term of seven days' imprisonment but suspended the execution of the whole of that sentence upon condition the applicant not commit any offence contrary to the Road Safety (Alcohol and Drugs) Act 1970 for twelve months. In addition, the learned magistrate ordered the appellant disqualified from obtaining or holding a driver's licence for a period of twelve months to commence on the expiration of the applicant's current period of disqualification. With respect to the other matters of complaint the learned magistrate said, "I simply record a conviction and remit any costs. I impose no disqualifications in respect of those matters." Although recording a conviction is an order commonly made in courts of petty sessions its legal efficacy is far from clear. The House of Lords discussed the meaning of "conviction" in S (An Infant) v Recorder of Manchester (1971) AC 481 and observed that the word might be used in two senses; primarily, a judicial determination of a case encompassing a finding of guilt and the imposition of some penalty and secondarily, a verdict of guilty or an acceptance of a plea of guilty. See Griffiths v The Queen [1977] HCA 44; (1977) 51 ALJR 749. However, this question is only of passing interest on the determination of this motion to review for it seeks to review only the order of the sentence of imprisonment and the order of disqualification upon the following grounds:

"(a) The Learned Magistrate erred in law in that he regarded

the offence as a 'subsequent offence' for the purpose of

Section 17(1)(b) of the Road Safety (Alcohol and Drugs) Act

(b) The Learned Magistrate erred in fact and in law by

imposing a sentence which was manifestly excessive in all the

circumstances."

3. With respect to the first ground of appeal the relevant facts are that:

1 On 7 September 1991 the appellant drove a motor vehicle

with a blood alcohol concentration of 0.228 grams of alcohol

per 100 millilitres of blood.

2 On 31 January 1992 he committed the offence which is the

subject matter of this motion to review.

3 On 11 June 1992 he was convicted of the first offence, a

conviction was recorded and he was ordered disqualified from

obtaining a licence for twelve months.

4 On 26 August 1992 he was convicted of the second offence.

4. It was submitted to the learned magistrate that the conviction on 11 June 1992 was not a prior conviction for the purpose of imposing sentence on 26 August 1992 because at the time he committed the second offence he had not then been convicted of committing the first offence. The learned magistrate accepted that submission but went on to say:

"Of course there can be no doubt because the obligation to

sentence arises on conviction by virtue of the new amendments

to the Act, that this is a subsequent offence for the purpose

of the Act - you don't submit to the contrary?"

5. Counsel did not submit to the contrary and the learned magistrate proceeded to sentence upon the basis that, although not a prior conviction in the ordinary sense of the word, it was a "subsequent offence" for the purposes of the Act, s17. Counsel did submit to the contrary on the hearing of the motion to review.

6. The Act, s17(1) refers to the Table set out at the end of s17 and, with respect to that Table, defines subsequent offence as follows:

"(b) a person is guilty of a subsequent offence if that

person has previously been convicted of an offence under

section 4, 6 or 14(5) or an offence in respect of a failure

to comply with a requirement made under section 10(4) or

10A(1)."

7. The general rule is that where a statute provides increased penalties in the case of a second or subsequent offence, an offence is not ordinarily considered to be a "second offence" unless, at the time it was actually committed, the offender had been convicted by a court. See Christie v Britnell [1895] VicLawRp 9; (1895) 21 VLR 71; O'Connor v Bini [1908] VicLawRp 79; (1908) VLR 567; R v Licensing Justices for the County Borough of South Shields (1911) 2 KB 1; Farrington v Thomson and Bridgland [1959] VicRp 49; (1959) VR 286.

8. That is not to say that an error will occur in the exercise of the sentencing discretion if regard is had to prior criminal conduct not the subject of a conviction until after the commission of the crime in respect of which sentence is being passed. See R v McInerney (1986) 42 SASR 111; O'Shanassy v Taylor (1978) 21 ACTR 9 at 14-15; R v Wilson [1956] VicLawRp 31; (1956) VLR 199; R v Hutchins (1957) 75 WN (NSW) 75; Woods v Wood, Green CJ 79/1991.

9. However, the issue on this motion is one of statutory interpretation. The question is whether a person is guilty of a subsequent offence if that person has:

(a) previous to the hearing in respect of which sentence is

about to be passed; or

(b) previous to the commission of the offence in respect of

which sentence is about to be passed;

been convicted of a relevant offence. As the Road Safety (Alcohol and Drugs) Act is a penal statute a person against whom it is sought to enforce a penalty is, generally speaking, entitled to the benefit of any doubt which might arise on its construction. This is well settled law. See London County Council v Aylesbury Dairy Co (1898) 1 QB 106; R v Chapman (1931) 2 KB 606; London and Country Commercial Properties Investments v Attorney-General (1953) 1 WLR 312. In O'Hara v Harrington (1962) Tas SR 165, Burbury CJ considered the meaning of the expression "on his second conviction for such an offence" (drunken driving etc, in the Traffic Act 1925, s41(2)). His Honour referred to a passage from the judgment of Hodges J in O'Connor v Bini (supra) and concluded his reasons for judgment:

"It may be thought to be anomalous that if a man commits the

offence of drunken driving and then repeats the offence

before being convicted of the first offence he escapes the

increased minimum statutory penalty in respect of his second

offence. But Lord Coke, that great 17th Century judicial

defender of the rights of the individual, said over three

centuries ago that a man may not lawfully be subjected to an

increased statutory penalty as for a second offence unless he

had deliberately broken the law again after being convicted

and receiving punishment for a first breach of it. (2 Inst

468). The law has been taken to be so settled ever since.

This three century old canon of construction of penal

provisions of this kind is broadly based on principle and

does not depend upon the precise language used in a statute.

It ought not to be excluded unless the legislature has

plainly said so. The variations in the statutory expressions

in the Traffic Act 1925 to which I have referred are I think

entirely insufficient to exclude the application of the rule

to any of the sections I have quoted."

10. A month earlier, Burbury CJ considered the same question in relation to the statutory expression "second or subsequent offence" in the Traffic Act, s37(4), (unlawful use of a motor vehicle). His Honour applied the principle later set out more fully in O'Hara v Harrington (supra) observing (at 2) that Lord Coke's view "has never been departed from". See also Carter v Denham (1984) WAR 123.

11. In Strickland v Hassing 3/1988, Neasey J construed the statutory expression in s17(2) as it appeared in 1988 namely, "where a person is convicted of an offence under s4 or s6 having previously been convicted of an offence under either of those sections". His Honour distinguished Joyce v Smith (not expressly referring to O'Hara v Harrington) because of the opening words of s17(4). His Honour held that those words meant "at the time of conviction" and thus that was the appropriate time to ascertain if a previous conviction was in existence.

12. The statutory form of words construed by Neasy J was enacted to replace the expression "previously convicted of ... an offence" which appeared in s17(1) when the Act was first enacted. It was amended by the Road Safety (Alcohol and Drugs) (No 2) Act 94/75, s14. The 1975 enactment remained unamended until the passage of the Road Safety (Alcohol and Drugs) Act 44/91 being the enactment that introduced the provision presently under consideration.

13. This legislative history indicates that Parliament did not intend a previous conviction to mean a conviction extant at the time of sentencing but intended to adopt the long established meaning of previous or prior conviction. Had it intended previous conviction to mean a conviction previous to the hearing in respect of which sentence is about to be passed, it could have used the form of words that had been in the Act for over fifteen years and the subject of judicial interpretation. Instead, Parliament expressly repealed those words and reverted to the substance of an earlier form of words clearly indicating that a subsequent offence meant an offence committed after conviction for an earlier relevant offence.

14. I hold that a subsequent offence means an offence in respect of which a person has been convicted previous to the commission of the offence in respect of which he or she appears for sentence. Accordingly, the learned magistrate fell into error and ground 1 of the motion to review is made out.

15. There were no mitigating circumstances surrounding the commission of the offence. At about 8.55 pm on Friday 31 January the applicant was noticed by police in Brisbane Street Launceston. He disobeyed a road marking directing all traffic to turn right and proceeded straight ahead. When intercepted by the police a breath test gave a positive reading and a subsequent breath analysis detected a blood alcohol content of 0.146. The applicant is aged thirty-six and married. He lives with his wife and her four children. He is an illegal immigrant from Chile, having arrived in Australia approximately four years ago. The Department of Immigration and Ethnic Affairs has ordered him to leave the country. An appeal against this decision is pending in the Administrative Appeals Tribunal. The applicant has neither work nor income and his wife subsists on a social security benefit. The learned magistrate was told by counsel for the applicant that neither he nor his wife were in a position to pay any fine. Section 17 required the sentencing magistrate to impose either a fine or a term of imprisonment. The minimum term in the case of a first offence is six months. In addition, the learned magistrate was obliged to disqualify the applicant from holding or obtaining a driver's licence for not less than six months nor more than eighteen months. In all those circumstances it is quite clear that the order of imprisonment, the conditional suspension of the execution of that order and the order of disqualification were entirely appropriate orders to make on the basis this was not a subsequent offence within the meaning of s17(1)(b). They are orders I would make and accordingly this motion to review will be dismissed.