R v Fernandez [2004] VSC 401

6. Master Wheeler identified the following questions of law as raised by the appeal:

"(a) Was the Magistrate in error, in the circumstances of this case including the respondent's prior conviction for exceeding a prescribed concentration of alcohol in his blood, in deciding pursuant to s 50(1 AB) of the Road Safety Act 1986 or otherwise, that she had a discretion not to cancel the respondent's licence and disqualify him from driving following a finding that he was guilty of a subsequent offence under s 49(1) (f) of the Road Safety Act 1986? (b) Was Her Worship in error in interpreting s 50(1 AB) (b) of the Road Safety Act 1986 as requiring cancellation of a driver's licence and disqualification only when the subsequent offence involved a concentration of alcohol in the blood of the offender of not less than 0.07gm per 100 millilitres of blood? (c) Was Her Worship in error in interpreting s 50(1 AB) (b) of the Road Safety Act 1986 as applying to a person who had previously been found guilty of an offence against one of the paragraphs of s 49(1) of the Road Safety Act 1986.

11. The facts placed before Her Worship were that on 25 July 2002 at 11.17 pm, Mr Fernandez was intercepted at a preliminary breath testing station at Endeavour Hills. Following a positive indication on that preliminary breath test, he accompanied police to a booze bus and furnished a sample. The reading obtained was .061 grams. Mr Fernandez had previously been convicted on 25 July 1994 on a drink driving offence where his reading was .11 grams. It was common ground that this had the effect that for the purpose of the application of the relevant statutory provisions the charge to which he had pleaded guilty was a second offence, it having occurred within 10 years of the first offence.[1] Counsel for Mr Fernandez had put written submissions to Her Worship supporting the argument that s 50(1AB) of the Road Safety Act 1986 conferred upon her, in the circumstances of the case, a discretion not to cancel the driving licence of Mr Fernandez. Her Worship indicated that she accepted those submissions and decided to exercise that discretion in favour of Mr Fernandez.

The following are the relevant provisions of the Road Safety Act 1986.

"Provisions about cancellation and disqualification 50. Provisions about cancellation and disqualification (1) On convicting a person to whom section 52 applies, or finding such a person guilty, of an offence under section 49(1)(b), (f) or (g) the court may where-

(i) in the blood of that person was less than 0.05 grams per 100 millilitres of blood; or (ii) in the breath of that person was less than 0.05 grams per 210 litres of exhaled air- as the case requires; and (b) the offence is a first offence- if the offender holds a driver licence or permit, cancel that licence or permit and, whether or not the offender holds a driver licence or permit, disqualify the offender from obtaining one for such time as the court thinks fit, not being more than 6 months. (1A) Subject to sub-section (1AB), on convicting a person, or finding a person guilty, of an offence under section 49(1)(b), (f) or (g) in circumstances in which sub-section (1) does not apply, the court must, if the offender holds a driver licence or permit, cancel that licence or permit and, whether or not the offender holds a driver licence or permit, disqualify the offender from obtaining one for such time as the court thinks fit, not being less than - (a) in the case of a first offence, the period specified in Column 2 of Schedule 1 ascertained by reference to the concentration of alcohol in the blood or breath of the offender as specified in Column 1 of that Schedule; and (b) in the case of a subsequent offence, the period specified in Column 3 of Schedule 1 ascertained by reference to the concentration of alcohol in the blood or breath of the offender as specified in Column 1 of that Schedule. (1AB) If a court finds a person guilty of an offence under section 49(1)(b), (f) or (g) but does not record a conviction, the court is not required to cancel a driver licence or permit or disqualify the offender from obtaining one in accordance with sub-section (1A) if it appears to the court that at the relevant time the concentration of alcohol in the blood or breath of the offender- (a) in the case of a person previously found guilty of an offence against any one of the paragraphs of section 49(1) or any previous enactment corresponding to any of those paragraphs or any corresponding law, was less than 0.05 grams per 100 millilitres of blood or 210 litres of exhaled air (as the case requires); or (b) in any other case, was less than 0.07 grams per 100 millilitres of blood or 210 litres of exhaled air (as the case requires). . . . Zero blood or breath alcohol 52 Zero blood or breath alcohol (1) This section applies to any person who is driving or in charge of a motor vehicle without holding a full driver licence which authorises the holder to drive such a motor vehicle, but does not apply to a person who- (a) is not the holder of a full driver licence merely because he or she has failed to renew his or her licence; or (b) is- (i) the holder of a licence to drive such a motor vehicle, which is issued under- (A) an Act of another State or a Territory of the Commonwealth that corresponds with this Act; or (B) a law of another country- and which is not a provisional licence or a licence which is on probation; and (ii) exempted under the regulations from the requirement to hold a driver licence or permit. (1A) This section also applies to a person who is the holder of a full driver licence which authorises him or her to drive a large vehicle, while that person is driving or in charge of a large vehicle. (1B) This section also applies, during the period of 3 years (or any longer period during which an alcohol interlock condition as defined in section 3(1) of this Act or section 87P(1) of the Sentencing Act 1991, as the case requires, applies to the licence) from the first issue of a licence on that order, to a person who is driving or in charge of a motor vehicle while holding a full driver licence which authorises the holder to drive such a motor vehicle issued only because of the order of the Magistrates' Court made on an application under section 50(4) of this Act or section 89(2) of the Sentencing Act 19917. (1C) This section also applies to a person who is the holder of a full driver licence which authorises him or her to drive a taxi-cab, while that person is driving or in charge of a taxi-cab. (1D) This section also applies to a person who for financial gain, or in the course of any trade or business, is teaching a person, who does not hold a driver licence, to drive on a highway a motor vehicle of a kind described in section 33(3) while that person is in charge of the motor vehicle being used for teaching purposes by virtue of section 3AA(1)(c). (1E) Subject to sub-sections (1F) and (1G), this section also applies during the period of 1 year from the issue of a driver licence which authorises the holder to drive a motor cycle, while the holder is driving or in charge of a motor cycle, whether or not the holder also holds a driver licence which authorises him or her to drive another kind of motor vehicle. (1F) If the Corporation is satisfied that a person has appropriate licensed motor cycle driving experience (wherever obtained), it may- (a) waive the application to the person of sub-section (1E); or (b) specify a shorter period than 1 year for the purposes of that sub-section. (1G) If a driver licence referred to in sub-section (1E) is suspended (whether by a court or the Corporation) during the period of 1 year referred to in that sub-section (or the shorter period applying under sub-section (1F)), the period applying to the person for the purposes of sub-section (1E) is extended by a period equal to the period of the suspension. (2) The prescribed concentration of alcohol in the case of a person to whom this section applies is any concentration of alcohol present in the blood or breath of that person."

22. I was referred by counsel to the usual authorities on statutory construction, the legislative history of the provisions in question and the relevant Hansard statements. Both counsel argued that a purposive construction should be applied. Counsel for Mr Fernandez submitted that an ambiguity existed in the construction of s 50(1AB) and the provision being penal in nature such ambiguity should be resolved in favour of Mr Fernandez. A matter on which there was common ground was that in the event that there was ambiguity in the construction of the relevant provisions the ambiguity should be resolved in favour of the offender.[2]

26. Counsel for the appellant submitted that s 50(1) gives a court a discretion to cancel the licence of a person to whom s 52 applies where it is the first offence and the person's reading is less than .05 grams. The prescribed reading for persons to whom s 52 applies is .00 grams.[3] Where the Court decides to interfere with the person's licence under s 50(1) the maximum disqualification period permitted is six months disqualification. The result of these provisions is, for example, that where a person is a first offender to whom s 52 applies, and that person has a concentration of alcohol between .00 grams and .05 grams, his or her licence could be cancelled and a disqualification of one month imposed.

29. Counsel for the appellant then submitted that s 50(1A) applies to persons "in circumstances in which sub-s (1) does not apply". Counsel argued, therefore, that the persons to whom s 50(1A) applies are:

* persons to whom s 52 does not apply

* persons to whom s 52 does apply but whose offence is a second offence or whose blood alcohol concentration exceeded .05%.

Subject to sub-s(1AB), the provision on which Mr Fernandez ultimately relies, the Court must, under sub-s 50(1A) cancel the driver's licence or permit and disqualify the offender from obtaining a licence or permit for a period not less than the disqualification periods mentioned in para (a) in the case of the first offence and para (b) in the case of a subsequent offence.

35. Counsel for the appellant properly conceded that s 50(1AB) qualified s 50(1A). As to the operation of s 50(1AB), the directly critical provision in this appeal, counsel for the appellant submitted that it distinguishes between offenders who have been previously found guilty[4] of an offence under s 49(1) (or any previous enactment corresponding to those provisions or any corresponding law) and other persons.[5] Thus, in the case of Mr Fernandez, counsel for the appellant submitted that para (a) did not apply because he had previously been found guilty of an offence under s 49(1) and his reading exceeded .05 grams. Counsel submitted further that para (b) did not apply because Mr Fernandez did not satisfy the requirements embodied in the phrase "in any other case" because he had been previously found guilty of an offence against s 49(1). In practical terms, counsel submitted that a person previously found guilty of an offence against s 49(1) cannot avoid mandatory licence cancellation unless the reading is less than .05 grams per 100 millilitres of blood (para (a)). A person who has not previously been found guilty of an offence against s 49(1) can only avoid mandatory licence cancellation where the reading in question is less than .07 grams (para (b)).

39. Counsel submitted that the purpose of s 50(1AB) was to give a discretion back to the sentencing court. It is an ameliorating provision. He submitted that if the circumstances specified in paras (a) or (b) of s 51(1AB) exist then there is no mandatory obligation to cancel and disqualify a person's licence for at least the minimum period referred to in s 51(1A). Further, counsel submitted that on its face s 50(1AB) (a) could not have been intended to include full licence holders to whom s 52 did not apply; for s 50(1AB) (a) applies only where the reading is less than 0.5 grams and full licence holders could not breach the law if their blood alcohol reading was less than .05 grams. Counsel submitted, therefore, that the expression "in any other case" in s 50(1AB) (b) referred to persons other than those to whom s 52 applied and did not refer to first offenders. Counsel submitted that the construction sought by the DPP involved the proposition that Parliament had intended to give a discretion which could have no operation.

43. The provisions are very difficult to comprehend. I am not persuaded, however, that there is any ambiguity in the provisions of s 50(1AB). They proceed on the assumption that the sentencing court has a discretion whether to record a conviction or simply find a person guilty and, in the latter case, allow some discretionary amelioration of the prima facie rule that licences or permits be cancelled and a minimum disqualification period be imposed in respect of people to whom s 50(1A) applies.

46. Section 50 (1AB) operates as a qualification to s 50(1A) and so applies to those to whom s 50(1) does not apply - that is

* persons to whom s 52 does not apply

* persons to whom s 52 does apply but who have already offended with a blood alcohol level of less than .05 grams per 100 millilitres of blood.

51. Turning to sub-paras (a) and (b), they attempt to identify two cases, the second being cases other than the first identified. The first that is identified (para (a)) is identified clearly to the following terms:

"In the case of a person previously found guilty of an offence against any one of the paragraphs of s 49(1) or any previous enactment corresponding to any of those paragraphs or any corresponding law . . ."

In other words para (a) and para (b) are distinguishing between people with prior convictions who are caught by (a) and people without prior convictions who are caught by para (b). Counsel for Mr Fernandez seeks to include in the description of "the case" the reference to alcohol levels. In my view, it is clear, that the reference to alcohol levels does not define the categories of people to whom para (a) or para (b) will apply. The concentration of alcohol in the blood specified in para (a) and para (b) is stated to set limits on the circumstances in which the discretion extended to the persons identified in para (a) or para (b) can be invoked, a discretion not to cancel the licence or permit or disqualify the offender. It seems to me that that construction is clear and not subject to any ambiguity. It might also be said that if counsel for Mr Fernandez is correct, Parliament's intention would have been easily and clearly addressed by inserting in para (a) after the words "in the case of a person" the words "to whom s 52 applies" and deleting the word "previously".

56. The issue raised by counsel for Mr Fernandez is whether Parliament would have intended, despite the width and clarity of the language in s 50(1AB) (a), that that provision would not apply to any driver to whom s 52 did not apply. It appears to me, however, that what the drafter was attempting to do was to emphasise that there were to be only two limited categories of offender who could invoke the discretion and was spelling out the blood alcohol levels under which each category had to come if it was to have the right to seek the exercise of the discretion. It so happens that the practical result is that para 50(1AB)(a) will apply only to s 52 offenders. That does not mean it must be construed as confined to those offenders. It may have been drafted that way out of an abundance of caution. I think the more likely explanation is that advanced for the DPP, namely that the drafter was simply following a dichotomy that had been used for many years in the corresponding enactments to distinguish two situations - the person with the prior conviction and the person without. Further there is good reason why Parliament would not have wanted to extend a discretion not to cancel or disqualify a second offender who was outside s 52 while wanting to do so for those caught by s 52. Section 52 offenders who are required to have a zero blood alcohol concentration include people whose livelihood it is to drive. Further a .00 grams level can be easily breached without causing any danger to the community - eg a reading of .01 grams. Thus, the Parliament was probably prepared to extend a discretion to such persons so long as their blood alcohol level on the second or subsequent occasion was less than .05 grams per 100 millilitres, a level below which it is generally accepted driving performance is not likely to be materially impaired. On the other hand a person to whom the .05 grams limit applies who has previously breached that limit is someone to whom one could well understand Parliament wanting a mandatory cancellation to apply when they offend again. At the same time one could well understand Parliament enacting s 50(1AB) (b) to cover persons with full licences to whom the .05 limit applied but who had only just breached it in their first offence and to extend that leniency to persons to whom s 52 applied who on their first breach of the law had a reading of less than .07 grams.

The practical result would be that in the case of someone to whom s 52 applied who committed a first offence with a reading between .05 grams and .07 grams, s 50(1) would not apply but s 50(1A) and s 50(1AB) (b) would apply so that a discretion would be available under those provisions. Where a person to whom s 52 applied committed a second offence, s 50(1) would not apply but a discretion would be available if the reading on the second offence was less than .05% (s 50(1AB) (a)). For those on full licences, only s 50(1AB)(b) would provide a discretion and then only if the offence was a first offence and the reading was less than .07%.

60. The legislation would appear to create at least two arguable anomalies. One is that s 51(AB) (a) purports to apply to persons who cannot use it (non s 52 drivers) and under s 50(1AB) (b) extends a discretion to persons excluded from the s 50(1) discretion because their reading is between .05% and .07%. That is difficult to understand. It is true that those anomalies would be removed if Mr Fernandez's construction were adopted. The language, however, is clear.

63. The relevant Hansard statements[6] do not directly assist. They refer to the need for amendments to deal with what was seen as a device used by magistrates of not recording a conviction and so avoiding the mandatory cancellation requirements. The Bill dealt with the issue by adding the words "or finding a person guilty". I can, however, find no explanation for s 50 (1AB) in the second reading speeches. It is reasonable to infer that it was included to provide a limited discretion in place of the broad discretionary device that had been removed by the amendments. Consistently with that scenario, one would not expect the sort of dichotomy put forward by counsel for Mr Fernandez.

66. Judges have commented before on the extreme difficulty of interpreting the provisions of the Act. I suggest that one of the reasons for that difficulty is that the original provisions were very technical and detailed. This in turn has led to technical arguments[7] and periodic amendments designed to address arguments of construction that have been successful but are viewed as unsatisfactory. Thus, as here, qualification has been placed on qualification. The legislation is now so complicated that to simplify it would be a very difficult task.

69. I have found the task of understanding the above provisions to be the most difficult yet. Thus it is in fact with considerable hesitation that I have come to the above conclusions about the construction of s 50(1AB). In my view, Her Worship erred in her construction of s 50(1AB) in concluding that the provision of para (b) could apply to a second offender such as Mr Fernandez. I am persuaded that there was no discretion and accordingly the appeal should be allowed.

[1] See s 50 AA Road Safety Act 1986.

[2] Beckwith v R [1976] HCA 55; [1976] 135 CLR 569 at 576; DPP v Greelish [2002] VSCA 49, para 18.

[3] S 52(2) above.

[6] Road Safety (Licence Cancellation) Bill, Legislation Council, 19 May 1992, Hansard 791; Legislative Assembly 9 June 1992, 2053.

[7] Day v County Court of Victoria & Hanson [2002] VSC 426.