Solicitors for respondent: Director of Public Prosecutions

ZEEMAN J By complaint made 13 April 1992 the respondent charged the applicant with two breaches of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"). The first offence charged was a breach of s6(1) in that it was alleged that on 31 March 1992 on a public street at Launceston the applicant drove a motor vehicle whilst alcohol was present in his blood in a concentration of 0.062 grams of alcohol in 100 millilitres of blood. The second offence charged arose out of the same act of driving. It alleged a breach of s6(2) in that being a person to whom s6(3) of the Act applied, the applicant drove the motor vehicle whilst alcohol was present in his body. The applicant pleaded guilty to each of the two charges. The learned magistrate, before whom the applicant appeared, convicted of him of each offence. In respect of each offence the applicant was fined $200 and disqualified from holding or obtaining a driver's licence for a period of three months. Whether the periods of disqualification were to run concurrently or whether one period was to commence at the expiration of the other period is somewhat uncertain and I will refer to that matter further in due course. The applicant had not previously been convicted of any offence so that the penalties imposed by the learned magistrate were the minimum penalties required to be imposed by virtue of the Act, s17. It was submitted to the learned magistrate that there were special circumstances which would enable the learned magistrate to exercise the powers conferred by s17(5) to impose lesser penalties than those provided for by the table appearing at the end of s17. The learned magistrate concluded that the material before him did not constitute such special circumstances.

2. As amended, the notice to review contained five grounds. Some of those grounds were not formulated in terms which precisely raised the issues which were argued. As argued the grounds may be reformulated as follows:

1 That the learned magistrate erred in law in convicting the

applicant of the breach of the Act, s6(1), in addition to

convicting him of the breach of s6(2), when the latter

conviction was for an offence which arose out of the same or

substantially the same set of facts as that out of which the

former offence arose.

2 That the learned magistrate erred in law in that he failed

to proceed as required by the Act, s20, by treating the two

convictions as one single conviction and in respect thereof

imposing one penalty.

3 That the learned magistrate erred in law in ordering that

one period of disqualification commence at the expiration of

the other period of disqualification imposed.

4 That the learned magistrate erred in law in that he

excluded from his consideration of the question whether

there were special circumstances for the purposes of the

Act, s17(5), circumstances personal to the applicant.

5 That the learned magistrate erred in law in excluding from

his consideration of the question whether there were special

circumstances for the purposes of the Act, s17(5), the fact

that the applicant's employer had suspended the applicant's

employment as a taxi driver from the time of the commission

of the offence.

3. The facts as stated to the learned magistrate by the prosecutor were to the following effect. On 31 March 1992 at about 9.30 am police officers intercepted a taxi being driven by the applicant on Invermay Road Launceston. At the time, the applicant was carrying two fare paying passengers in his taxi. The applicant submitted to a breath test which proved to be positive. He was taken to the Launceston breath analysis section where a breath analysis was carried out. The result of that analysis was that it revealed a reading of 0.062 grams of alcohol in 100 millilitres of blood. By way of explanation the applicant told police that by reason of having taken some meals and having slept for a period of time he did not believe that there would have been any alcohol present in his blood at the time that he was intercepted. Whilst the learned magistrate was not told this, it is clear that the only basis upon which the Act, s6(2), applied to the applicant was that at the time he was driving a public vehicle (see the Act, ss2(2A), 6(3)(b)). I should add that the matters put to the learned magistrate in mitigation included an assertion that the passengers in the applicant's taxi were not fare paying passengers. The learned magistrate did not advert to this although it must be made clear that the mere fact that the applicant was driving a taxi would not have brought him within s6(3)(b). On the facts of this case, the taxi could only have been a public vehicle if it was a vehicle that was required to be licensed under Part III of the Traffic Act 1925. A vehicle is required to be licensed under that Part if, and only if, the driving or use thereof at the relevant time would contravene the Traffic Act, s24(1) unless it was then so licensed. Section 2(2A) requires the driving or use to be "as a public vehicle". Whether a vehicle is being used as a public vehicle is to be determined by reference to the Traffic Act, s14AB(2). It may be that the material before the magistrate was such that it suggested that the applicant was not a person to whom the Act, s6(3), applied so that the facts before him indicated that the applicant had not committed a breach of s6(2). Be that as it may, by consent certain further facts were put before me upon the hearing of the notice to review. Those facts, which explain what was put to the learned magistrate on behalf of the applicant, establish that at the relevant time the applicant was driving a public vehicle.

4. The principles relevant to a determination of ground 1 were very recently discussed by Green CJ in Wood v Major, 49/1992. With respect, I consider it appropriate to apply the test which was applied by the learned Chief Justice in that case.

5. The elements of the offence charged in count 1 were that:

1 the respondent

2 drove a motor vehicle

3 whilst alcohol was present in his blood in a concentration

which exceeded the prescribed concentration.

6. The elements of the offence charged in count 2 were that:

1 the respondent

2 drove a motor vehicle

3 whilst alcohol was present in his body

4 when the motor vehicle being driven by him was a public

vehicle.

7. The first two elements of each of the two offences were identical. The third element of each offence coincided with one another to the extent that each of them involved the ingestion of alcohol. However, the learned magistrate was required to have regard to the actual concentration of alcohol in the blood of the applicant for the purposes of determining what was an appropriate penalty on count 2. That much is made clear by the table appearing at the end of the Act, s17, whereby the minimum and maximum penalties to be imposed for breaches of s6(2) are fixed by reference to the actual concentration of alcohol present in the blood of the person convicted. It follows that, in sentencing the applicant on count 2, the learned magistrate was required to have regard to all the matters which were relevant to a determination of what was the proper sentence for the other offence together with a further element not relevant to that other offence. It follows that an application of the principles referred to in Wood v Major (supra) leads to the conclusion that the learned magistrate erred in convicting the applicant of both offences. The proper course would have been to dismiss the first charge. I express that view subject to a consideration of ground 2. If the legal proposition advanced in support of that ground is correct, then the basis for requiring a dismissal of count 1, did not exist. However, I have concluded that ground 2 ought not to succeed. I proceed to state my reasons for that conclusion.

8. The argument in support of this ground turns upon a consideration of the proper construction and application of the Act, s20. That section is in the following terms:

"20-Where arising from his driving a vehicle on any

particular occasion a person is convicted of 2 or more

offences, being offences under section 4 or section 6 or

under section 41 or section 41B of the Traffic Act 1925 (as

that Act had effect before the commencement of this Act),

those convictions shall for the purposes of this Division be

treated as one single conviction."

9. Save and except that the words in brackets were inserted by the Traffic Act (No 2) 1976, s20 has been in its present form since it was substituted for the original form of that section by the Road Safety (Alcohol and Drugs) (No 2) Act 1975. Section 20 is contained in Div 3 of Part II of the Act. Also contained within that division is s17 which contains the table of penalties for breaches of ss4, 6, 10(4), 10A(1) and 14(5). Counsel submitted that the direction contained in s17(3), whereby a court convicting a person of such an offence is required to impose penalties in accordance with the table appearing at the end of that section, is to be construed by reference to s20 so that where a person is convicted of two or more offences in circumstances where s20 requires the convictions to be treated as one single conviction, then sentence is to be imposed as if there had been one conviction only.

10. In order to consider that submission it is appropriate to consider the history of the Act. When the Act was first enacted it contained s20 in the following terms:

"20-(1) References in this Division to a previous conviction

within the meaning of this section shall be construed as

references to -

(a) any previous conviction for an offence under section

four, section six, or section fourteen (not being an offence

under subsection (1) of section fourteen); and

(b) any previous conviction for an offence under section

forty-one, section forty-one B, or section forty-one C of

the Traffic Act 1925 as that Act had effect before the

commencement of this Act.

(2) Where arising from his driving a vehicle on any

particular occasion a person is convicted of two or more of

such offences as are referred to in subsection (1) of this

section his convictions for those offences shall be treated

for the purposes of this Division as one single conviction."

11. That section was replaced by a new s20 by the Road Safety (Alcohol and Drugs) (No 2) Act 1975 which in turn was amended by the Traffic Act (No 2) 1976. It will be seen that s20 has always been in terms of broadly similar effect. The purpose of s20 in its original form is evident from a consideration the Act in its original form. Sections 17 and 18 then provided for penalties and periods of disqualification for driving in terms of maximum penalties graduated according to whether the offender had no relevant prior conviction, had only one such prior conviction or had more than one such prior conviction. Section 20 was no doubt intended to overcome possible injustice which could flow from treating two convictions for offences arising out of the same act of driving as two separate previous convictions for the purposes of determining the maximum penalty. When s20 was replaced, ss17 and 18 were also repealed and a new s17 substituted providing for penalties and disqualification dependent upon whether the offender had previously been convicted of a relevant offence or not. Section 20 was still required to prevent injustice because it might be argued that if a court convicted a person of breaches of ss4 and 6 committed in the course of one act of driving then the moment the first conviction was imposed there was a previous conviction resulting in the application of a higher maximum penalty to the second offence. There was another reason for inserting the new s20 and that arose out of the new s19 dealing with special hardship orders which was inserted at the same time. On one construction of that section it would never have been possible for a person convicted of breaches of both s4 and s6 as the result of one act of driving ever to obtain a special hardship order unless there was a provision such as s20.

12. Substantial amendments were made to the Act by the Road Safety (Alcohol and Drugs) Act 1991. Leaving aside the use contended for by counsel for the applicant, there remains room for operation of s20. It is relevant for the purposes of determining whether or not a particular offence is to be classified as a first offence or a subsequent offence for the purposes of the table appearing at the end of s17.

13. If s20 is to have the further effect contended for by the applicant then s17 may not always be capable of appropriate application. If convictions for two or more offences are to be treated as a single conviction for the purposes of sentencing, difficulties would arise if different minimum and maximum penalties are prescribed in respect of various of the offences the convictions of which are to be treated as a single conviction. Counsel for the applicant submitted that the appropriate course would be to select as the appropriate range of penalties that which was most severe. Nevertheless, had Parliament intended that s17 was to be governed by s20 in this way, one might have expected it to have made some express provision as to how minimum and maximum penalties were then to be determined. In essence, counsel submitted that the operation of s17 ought to be significantly effected by a section which was in the Act long before the present s17 was inserted and which, at least prior to the insertion of s17 in its present form, served obvious but different purposes which, at least in part, continue to be relevant purposes.

14. In my view the submission made ought to be rejected for the following reasons:

1 Section 20 is concerned with ameliorating particular legal

consequences which otherwise would flow from the fact of

there having been two or more convictions and is not

concerned with the power to punish persons who have been

convicted of a particular offence.

2 The treatment of convictions for several offences as one

conviction permitting of one sentence only would effect a

fundamental change in the general law and Parliament is not

to be taken as having so provided unless it has employed

clear words to that effect. As Devlin J (as he then was)

said in National Assistance Board v Wilkinson (1952) 2 QB

648 at 661: "It is a well-established principle of

construction that a statute is not to be taken as effecting

a fundamental alteration in the general law unless it uses

words that point unmistakably to that conclusion."

15. Having regard to the conclusions which I have reached in relations to grounds 1 and 2 it is unnecessary to consider ground 3 although it is appropriate to say that it is far from clear that the learned magistrate imposed periods of disqualification which were cumulative in effect. In sentencing the applicant the learned magistrate said:

"Upon each charge you are disqualified from holding or

obtaining a licence to drive a motor vehicle, that to be for

three months. That means a total disqualification period of

six months".

16. If the learned magistrate did no more than state what he understood to have been the effect of the orders of disqualification made by him, then plainly he was in error. The imposition of several periods of disqualification in respect of several offences does not by force of those orders result in the periods of disqualification having cumulative effect. Undoubtedly, the learned magistrate had the power to order that the periods of disqualification have cumulative effect, such a power being expressly conferred by the Traffic Act, s33(1). It is incumbent upon a magistrate who imposes several periods of disqualification, intending that his orders have cumulative effect, to specify with particularity the way in which the orders are to operate. In the present case, if it was the intention of the magistrate that the periods operate cumulatively (and he was not required to so order and in the absence of an order they would not have operated cumulatively) to specify a period of disqualification for one offence and then to impose a further period of disqualification in respect of the other offence at the same time ordering that that latter period of disqualification commence at the expiration of the former period of disqualification. In many cases this will not be merely a matter of academic interest. Where a magistrate is sentencing for two or more offences and disqualifies a person both under the Act and under the Traffic Act, it is material to know when each period of disqualification operates as there are separate offences of driving whilst disqualified under the Act and driving whilst disqualified otherwise than under the Act (the Act, s19A(1), the Traffic Act, s37(1)), with quite different possible consequences as to penalty (the Act, s17A, the Traffic Act, ss34 and 37).

17. Grounds 4 and 5 conveniently may be dealt with together. Without objection I received affidavit evidence as to observations made by the learned magistrate in another matter heard by him shortly before he dealt with the applicant's case. That observation was to the effect that for the purposes of s17(5) "special circumstances would relate only to circumstances of the offence and not to the circumstances of the offender." A reading of the transcript of the proceedings in the present case indicates that the learned magistrate maintained that view. He appears to have stopped counsel for the applicant when he started to refer to one matter which was being urged upon the magistrate as a special circumstance by saying that it was not circumstances surrounding the commission of the offence. In Gela v Cochrane, 26/1992, Crawford J gave some consideration as to what might constitute special circumstances for the purposes of s17(5). In fairness to the learned magistrate I should say that his Honour delivered his reasons for judgment in that case subsequent to the learned magistrate dealing with the applicant's case.

18. As I understand his Honour's reasons, he rejected the proposition that special circumstances ought somehow to be limited to circumstances special to the case or to the actual commission of the offence and not to circumstances special to the offender. Counsel for the respondent argue that his Honour's reasons ought not to be construed as going so far. I do not agree. At p4 of his reasons for judgment Crawford J said:

"But in any event I see no reason why the expression

'special circumstances' should be restricted to

circumstances of the offence and not of the offender. If

Parliament had meant to place such a restriction it could

have said so."

19. With respect I entirely agree. Crawford J adopted what was said by Bray CJ in Baskerville v Martin (1967) SASR 156 at 160. For there to be special circumstances there must, in the words of Bray CJ, "be something extraordinary, unusual or atypical." No artificial restrictions should be placed upon the types of matters which may constitute special circumstances. It is impossible and undesirable to attempt to enumerate the circumstances which may constitute special circumstances. Provided that they are extraordinary, unusual or atypical they may constitute special circumstances.

20. The learned magistrate excluded from his consideration those circumstances which were circumstances personal to the applicant as distinct from being circumstances surrounding the actual commission of the offence. He did so because he had misdirected himself that circumstances of the former category could not be taken into account under s17(5). If counsel for the applicant had been permitted to fully state before the learned magistrate the matters relied upon as constituting special circumstances and if I had concluded upon a consideration of that material that it could not be said that they constituted special circumstances, then the learned magistrate's error would have been irrelevant. However, the position is that the learned magistrate had made it clear that he had concluded that circumstances relevant to the applicant could not constitute special circumstances and he stopped counsel for the applicant when he endeavoured to put before him some of the material circumstances said to be relevant to determining whether there were special circumstances. Ground 4 must therefore succeed. It is unnecessary and inappropriate for me to express any views as to ground 5. The orders made consequent upon the conviction of the applicant on count 2 must be quashed.

21. Both counsel submitted that I ought to resentence the applicant. I have concluded that I ought not to accede to that submission. All material relevant to the existence of special circumstances has yet to be stated. It is more appropriate that the sentencing of the applicant be remitted to another magistrate.

22. In the result, I will make the following orders:

1. That the appeal be upheld.

2. That the conviction, fine and disqualification on count 1

on complaint 17543/92 be set aside.

3. That in lieu thereof count 1 be dismissed.

4. That the sentence and disqualification imposed consequent

upon the conviction on count 2 of that complaint be set

aside.

5. That the sentencing of the applicant on count 2 be

remitted to another magistrate to be dealt with according to

law.