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[1986] TASSC 78
Supreme Court of Tasmania
1986-12-05
Green CJ
Original judgment source is linked above.
CITATION: Smith v Jessup [1986] TASSC 78; [1986] Tas R 219; A78/1986
1 The respondent pleaded guilty before a magistrate of driving a motor vehicle on a public street whilst the concentration of alcohol in his blood exceeded .05 grams of alcohol in 100 millilitres of blood, namely .10 grams of alcohol in 100 millilitres of blood, contrary to s6(1) of the Road Safety (Alcohol and Drugs) Act 1970. The respondent was fined $125 with costs and was awarded four demerit points. No period of disqualification from driving was imposed. The applicant moves to review that order on the following grounds:
"1 That the Learned Magistrate erred in law in failing to impose a period of disqualification of the driving licence of the Respondent.
2 That the Learned Magistrate erred in law in imposing a sentence that was manifestly inadequate in all the circumstances."
2 The offence occurred at 11.20pm on a Saturday night and was detected when the respondent's vehicle was intercepted at a random vehicle check and he was directed to undergo a breath test and a breath analysis. The respondent was alone at the time. It is not suggested that there were any especially aggravating circumstances surrounding the commission of the offence. The respondent was aged 20 years, had been unemployed for a year, was in receipt of $180 per fortnight in benefits and had no prior convictions of any kind.
3 When imposing penalty the learned magistrate said:
"Well Mr Jessup I would accept it as something in the nature of a miscalculation, you have got a clean record so far, obviously you must be very careful in the future."
4 Some of the considerations which are capable of being relevant to the exercise of the sentencing discretion in respect of an offence under s6(1) of the Road Safety (Alcohol and Drugs) Act 1970 have been discussed in a number of recent judgments of this Court, including the following:
5 The observations made in those cases about repeated offenders and the relevance, if any, to the exercise of the sentencing discretion of hardship which might be caused to a defendant as a result of his being disqualified from driving are not applicable to the instant case because the respondent had no prior convictions and although there was a reference to hardship in the respondent's plea in mitigation, there is no indication in the record of proceedings and no assertion in the motion to review that the learned magistrate was influenced by it.
6 I agree, with respect, with the observations made in those cases that in the exercise of the sentencing discretion conferred by the Road Safety (Alcohol and Drugs) Act 1970, substantial weight must be given to the need to protect the public and to deter potential offenders. 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. That latter proposition applies a fortiori to the discretion to order that a person in breach of s6 of the Road Safety (Alcohol and Drugs) Act 1970 be disqualified from driving because the discretion conferred by s17 of the Act is unfettered and because s43C of the Traffic Act 1925 expressly recognises the power of a court which is imposing penalty in respect of such a breach to award demerit points, or to make no order affecting an offender's licence, instead of ordering disqualification. It is true that the provisions of s19 of the Road Safety (Alcohol and Drugs) Act 1970 relating to the granting of restricted licences to persons who have been disqualified from driving indicate a legislative expectation that some persons convicted of offences against the Act will be disqualified from driving, but they do not indicate any legislative expectation that any particular proportion of such persons will be disqualified.
7 Before this Court has jurisdiction to interfere with a sentence imposed by a magistrate it must be affirmatively satisfied that he made an identifiable and material error of fact or law, or that he erred by imposing penalties which were obviously of an inappropriate kind, or which were obviously well outside the appropriate range. I turn to consider the particular circumstances of this case.
8 Upon the materials which were before him, the magistrate would have been entitled to regard the aggregate of the fine and costs which he ordered the respondent to pay as a fairly heavy penalty for this respondent, representing as it did over 75% of his fortnightly earnings. The magistrate also took into account the fact that the commission of the offence was contributed to by a mistake or miscalculation, but there is no allegation in the motion to review that that finding was not open to the magistrate or that he ought not to have taken that fact into account. It can be inferred that upon the materials which were before him and upon his assessment of the person who was before him, the learned magistrate concluded that the public interest did not in this particular case require the imposition of an order of disqualification and I cannot say on the materials before me that I am affirmatively persuaded that that conclusion has been shown to have been wrong.
9 There is nothing in the materials before me which demonstrates that the learned magistrate fell into any specific error in the way in which he exercised his discretion. It follows from what I have already said in these reasons that I am not persuaded that the mere demonstration, without more, that the magistrate did not disqualify the respondent from driving is sufficient to justify the conclusion that he must have erred in some way in the way in which he exercised his sentencing discretion. The applicant has not discharged the burden of persuasion which he carries of showing that the penalty was manifestly inadequate.
# Smith
Jessup \[1986\] TASSC 78