2 By her counsel she pleaded guilty to each matter of complaint. On the 28th of November 1984 penalties imposed were respectively:-

1 Seven days imprisonment to date from the 27th of November 1984 and disqualified from holding or obtaining a licence for six months.

2 Conviction recorded and disqualified from holding or obtaining a licence for three months concurrent with the said period of six months.

3 Seven days imprisonment to be served cumulatively to the period on charge one above.

3 The notice to review (as amended) sought to review

(i) the conviction upon the third matter of complaint upon the ground that "count three of the complaint discloses no offence known to law"; and

(ii) the term of seven days imprisonment imposed with respect to the first matter of complaint, upon grounds referred to later in these reasons for judgment.

4 Notwithstanding the plea of guilty to the charge alleging a breach of s41(1)(a) of the Traffic Act 1925 counsel for the Crown conceded that the applicant should not have been convicted upon that matter of complaint.

5 Section 41(1)(a) of the Traffic Act provides:-

"A person who, when required by a police officer or an authorised officer in the execution of his duty under this Act-

(a) to give that person's name, age or the address of his place of residence;

fails or refuses to do so, or gives particulars which he knows are likely to mislead the police officer or authorised officer is guilty of an offence against this Act."

6 The complaint did not allege that the applicant had given particulars which she knew were likely to mislead the police officer. It alleged that she gave a false name, age and place of abode. There is no such offence known to the law. Such an offence used to be known to the law. Section 41(1)(a) used to provide:-

"A person who, when required by a police officer ... in the execution of his duty ...

(a) to state that person's name, place of abode, or age;

refuses to do so or states a false name, place of abode, is guilty of an offence against this Act."

7 However, Traffic Amendment Act (No. 2) of 1981 repealed that provision and replaced it with the present section 41. It would seem that the complainant relied upon the provisions of a repealed section.

8 It is well established that if the charge as laid discloses no offence known to law there can be no conviction upon that charge. See Ex Parte Stanton (1928) SRNSW 516. This is so even if there is a plea of guilty. See O'Donnell v Gardener, 27 VR 718 and R v Inglis [1917] VR 672.

9 The conviction on the third matter of complaint will therefore be set aside.

10 The applicant seeks to review the order of seven days imprisonment imposed with respect to the charge of driving with a blood alcohol content of .10 grams of alcohol in 100 millilitres of blood upon grounds which can be summarised as follows:-

"1 The sentence was manifestly excessive.

2 The learned magistrate erred in failing to give adequate weight to the applicant's age, the likely effect of a sentence of imprisonment upon her employment and that she had not previously 'had the benefit of a suspended sentence'.

3 The learned magistrate erred in failing to suspend the operation of the sentence of imprisonment because

(a) the learned magistrate considered himself bound not to suspend the sentence unless the applicant showed some element or determination to reform.

(b) The learned magistrate looked only to the circumstances of the offence for an indication that the applicant would reform; and

(c) the learned magistrate considered that suspension of the whole or part of the penalty would nullify the effect of the penalty."

11 The facts relating to the commission of the offence were that on Saturday the 22nd of January 1984 the applicant drove in her flatmate's vehicle to the Downtowner Hotel. After consuming some alcohol there she left and went to the Duke of Wellington Hotel where she remained drinking alcohol until approximately 3.00 am She left the hotel and commenced the drive to her home. She was intercepted in Davey Street in the course of a random breathalyser check. Analysis determined a reading of .10 per cent.

12 The facts relating to the applicant and related to the magistrate were that she was 21 years of age, unmarried and without dependants. She earned $140.00 per week after tax as an apprentice hairdresser employed in the third year of her apprenticeship. She had debts and was apparently in some financial difficulty. The applicant has a number of previous convictions. In addition to four other matters the applicant has five previous convictions for offences against the Road Safety (Alcohol and Drugs) Act.

13 It was put to the learned magistrate that if the defendant were to serve a custodial sentence she would lose her employment as an apprentice hairdresser and thereby lose her apprenticeship.

14 On the 17th of October 1982, fifteen months before this offence was committed, she was convicted of driving a motor vehicle with a blood alcohol concentration of .10 per cent. She was fined $120.00 plus costs and disqualified from holding a licence for six months. At the same time she was convicted of being a first year driver and driving with alcohol in her body. Upon this charge a conviction was recorded and she was ordered to attend the first year driver's course.

15 On the 4th of May 1983, about nine months before the commission of this offence, she was convicted of driving a motor vehicle whilst disqualified, driving it with a blood alcohol content of .11 per cent and being a first year driver driving with alcohol in her body. On this occasion the total penalties imposed amounted to eight work orders and nine months disqualification.

16 Having reserved his decision until the following day the learned magistrate after referring to the applicant's previous convictions said this:-

"Now you must appreciate that having received a fine on the first occasion and having the graver penalty of work orders on the second occasion the next step up is imprisonment. In matters of this kind one has to have regard not only to the need to deter you from conduct of this nature but also to deter others and if the integrity of the Road Safety (Alcohol and Drugs) Act which you offended against three times in three years is to be maintained and not simply ignored then it must be seen not only by you but by others that conduct of this kind will not be tolerated."

17 Counsel for the applicant made no attack upon this statement and it is obviously apposite. The learned magistrate referred to the possible effect of imprisonment upon her apprenticeship and went on to say:-

"... you create the situation where you give me no opportunity to do other than to maintain, as I say, the integrity of the Act."

18 It is quite clear that the learned magistrate exercised his discretion after mature and careful consideration. The circumstances of the offence and the offender in this case forcefully illustrate the complex nature of the sentencing process which requires a balancing between principles such as deterrence, prevention, rehabilitation and retribution as each struggle for paramountcy. It is perhaps therefore appropriate to briefly re-state the basis upon which this court reviews the exercise of that discretion. It falls to the applicant to establish that the magistrate made some error in the exercise of his discretion; an error such as the application of some wrong principle or the taking into account of some matters which ought not to have been taken into account. If the sentence is plainly unfair or manifestly excessive the existence of that state of affairs will demonstrate error. This court cannot exercise its own discretionary sentencing process until an error on the part of the magistrate has first been established. See for example, House v The King [1936] HCA 40; (1936) 55 CLR 499; Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509; Harris v The Queen [1954] HCA 51; (1954) 90 CLR 652, and Hardy v The Queen, Tas unreported, Serial No 8/1980.

19 It was not strenuously argued by counsel for the applicant that a sentence of imprisonment should not have been imposed at all. However, it was contended that the operation of that sentence should have been suspended. A sentence of seven days imprisonment in this case could not be described as manifestly excessive. The applicant, whilst a first year driver and therefore not permitted to drive with any alcohol in her body, was convicted on no less than three occasions over a period as short as two years and one month of driving with a blood alcohol content in excess of the prescribed quantity for persons holding an ordinary licence. During that period of time she was also convicted of driving whilst disqualified; for more than half of that period her licence was suspended. There were no unusual circumstances surrounding the act of driving which might have mitigated the consequences of the offence such as were before the court in Dobson v Clark, Tas unreported, Serial No 65/1983. I would, with respect, adopt the remarks of Everett J in Booth v Breen, Tas unreported, Serial No 10/1980 at p.7 where he said of the Road Safety (Alcohol and Drugs) Act:-

"For about a decade the Parliament of Tasmania by enacting the Act and amending its provisions from time to time in order to impart to them greater strength and make them in practice more effective, has shown a clear intention that breaches of the Act should attract, in appropriate cases, penalties which will be seen to be deterrent, and, hopefully, will in fact be so. It is the duty of the courts to recognise this intention and to punish persistent and serious transgressors to a degree which, depending on the facts of each case, will recognise the maximum penalty determined by Parliament. Any failure to do so is a frustration of the will of Parliament. The facts that no person was injured and that there was not any damage to property in the instant case are irrelevant."

20 The applicant in this appeal can properly be described as a persistent and serious transgressor of the provisions of the Road Safety (Alcohol and Drugs) Act 1970.

21 At 21 years the applicant could be described as a young offender. That fact does not of itself provide an immunity from custodial sentences. Whilst it is true that such a fact takes a prominent place during the sentencing process as there exists a high public interest that young offenders be rehabilitated it does not necessarily dominate all other relevant matters. See Gray v Strickland, Tas. unreported, Serial No. 441978; R v Weaver (1973) 6 SASR, 265; Gould v McKenna, Tas. unreported, Serial No. 41980.

22 When this applicant appeared before the learned magistrate although young she had already been previously convicted of four breaches of the law in addition to those relating to the Road Safety (Alcohol and Drugs) Act. She had not previously been sentenced to a period of imprisonment. Counsel for the applicant stressed this fact. He argued that as she had received eight work orders in respect of her last convictions for breaches of the Road Safety (Alcohol and Drugs) Act the magistrate erred in failing to suspend the operation of the sentence of imprisonment imposed on this occasion. As I understood the submission it embraced not only the proposition that the circumstances of this case called for a suspension but that a suspended sentence should be generally regarded as a step to be taken, in the absence of adverse circumstances, after the imposition of work orders and before a custodial sentence. I reject any suggestion that the suspension of the operation of a sentence of imprisonment is to be regarded in any way as a "halfway house" between work orders and custody. A suspended sentence is still a sentence of imprisonment. See R v O'Keefe [1969] 2 QB, 29 and Kennedy v Spratt [1972] AC 833. Whether or not a sentence of imprisonment is appropriate will depend upon the nature of the offence and the circumstances of the offender. As to whether a sentence should be suspended I respectfully adopt the remarks of Neasey J in R v Percy [1975] Tas SR, 62 at p.73:-

"However, it is almost self-evident that a sentence of imprisonment should not be suspended unless there is some reasonable prospect, from the circumstances of the case or of the offender, that remission from actual imprisonment combined with the expectation that a sentence will have to be served if the conditions of suspension are breached will have sufficient deterrent effect; or will sufficiently move the offender towards reform of his conduct as to achieve that reformation."

See also Wood v Samuels (1974) SASR, 466.

23 With respect to the question of suspension of sentence in this case the learned magistrate said this:-

"I have considered earnestly the question of suspending the whole or part of the sentence, but I do not think I am justified in doing so. You see, I am only justified in suspending a sentence if I can feel or be of the opinion that you show some element or determination to reform from this unlawful conduct that you have pursued regularly now over a period of three years once a year, but the fact that you are prepared to offend and endeavour to avoid detection by the manner in which you did attempt to avoid it suggests to me a disregard for the law that I can't read anything into your conduct which suggests to me that you would respond should I nullify or in part nullify the effect of the penalty which I have imposed."

24 When making those remarks the learned magistrate was also referring to the sentence of seven days imprisonment he imposed upon the conviction for a breach of s41(1)(a) of the Police Offences Act 1935 which conviction is set aside. In my opinion the learned magistrate applied correct principles to the sentencing process. In the first place he considered the offence and then took into account the circumstances of the applicant's previous convictions for offences against the same Act. He applied to the balancing process the proposition that a sentence may well result in the loss of employment and apprenticeship but considered that a term of seven days imprisonment was called for. He thereafter applied his mind to the question of whether or not the whole of any part of the sentence should be suspended. In so doing he applied the criteria set out in R v Percy and Woods v Samuels (supra).

25 The magistrate said he was only justified in suspending the sentence if the applicant showed some element or determination to reform. That restricted expression was clearly linked to his remarks concerning the circumstances of this case and there was no material before him which would lead him to hold an expectation that there existed prospects of reformation, or that suspension of the penalty would deter the applicant from offending again.

26 Although he did express the view that suspension would nullify or in part nullify the effect of the penalty and the use of such words does not correctly describe the effect of suspension of the operation of a term of imprisonment, it is clear upon a consideration of all his remarks that he was directing his attention to the mitigating effect suspension would have upon the applicant. It does not show that the magistrate misapplied some principle.

27 After careful deliberation I have therefore come to the conclusion that the magistrate did not err in the exercise of his discretion by the imposition of a sentence of seven days imprisonment which he back-dated one day.

(a) the motion to review the conviction upon the charge of a breach of s41(1)(a) of the Police Offences Act 1935 is allowed and that conviction is quashed; and

(b) the motion to review the penalty imposed upon the conviction for a breach of ss6(1) and 6(2) of the Road Safety (Alcohol and Drugs) Act 1970 is dismissed.