Road Safety (Alcohol and Drugs) Act 1970, s 6A(1)

Judgment Number: [2025] TASSC 26

CHRISTINA VERNESSA WATSON v SERGEANT HAMISH WOODGATE

1. This is an appeal against a sentence imposed by a magistrate, Mr S Brown. The applicant pleaded guilty to driving a motor vehicle whilst a prescribed illicit drug was present in her oral fluid contrary to the Road Safety (Alcohol and Drugs) Act 1970, s 6A(1), and driving whilst not the holder of a driver licence contrary to the Vehicle and Traffic Act 1999, s 8. She was sentenced on 11 December 2024. A single sentence was imposed for both counts, a term of imprisonment of eight weeks and disqualification from driving for nine months. The respondent is a police officer who made the relevant complaint.
2. The sole ground of the motion to review is that the sentence was manifestly excessive. No complaint is made about the order for disqualification. The motion is directed at the learned magistrate's decision to impose a term of imprisonment which was to be immediately served. On 12 December 2024, the day after the sentence was imposed, the applicant was granted a stay of the sentence of imprisonment and admitted to bail until the determination of the motion.
3. To succeed on a ground that a sentence is manifestly excessive it is not enough to establish that the sentence may be regarded by some as too harsh. An appeal court may not substitute its own opinion for that of the magistrate merely because it may have exercised the sentencing discretion differently: Lowndes v The Queen [1999] HCA 29, 195 CLR 665 at [15]. This Court must be persuaded of error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing court is, on the facts, unreasonable or plainly unjust, such that the appellate court may infer that in some way there has been a failure to properly exercise the sentencing discretion. Manifest excess or inadequacy must be plainly apparent. An applicant must show that the sentence is so obviously excessive that it is outside the proper limits of the broad sentencing discretion of a magistrate: Allen v Kerr [2009] TASSC 10, 19 Tas R 132, TGW v Tasmania [2017] TASCCA 10, 26 Tas R 106 at [33].
4. For the following reasons, if the principles just stated are applied, this Court is unable to interfere with the sentence imposed by the learned magistrate. The sentence was not manifestly excessive and the appeal must be dismissed.
5. The offences were committed on Monday, 26 February 2024. At about 6.00 pm the applicant was driving on the Tasman Highway at Nunamara when she was pulled over by the police for a random check. Her driver licence had not been renewed since 9 December 2020. A breath test for alcohol was negative but an oral fluid test was positive for illicit drugs. As a result, an oral fluid sample was obtained and sent to Forensic Science Service Tasmania for analysis. The analysis disclosed the presence of methamphetamine and amphetamine.
6. At the time of the offences the applicant was 31. When sentenced she was 32. She lived with her long term partner but had no dependants. She had secure and responsible employment in a "corner store type establishment" and worked long hours. The most significant matter in sentencing was the applicant's record of offending which, the magistrate was informed, was associated with a long term drug addiction. This was her ninth conviction for this offence under the Road Safety (Alcohol and Drugs) Act.
7. The applicant committed some offences as a youth, but the matters of relevance commenced in 2014 when she was 21. She possessed and used illicit drugs and was found in possession of firearms and ammunition without a licence. More significantly, in February and March 2014 she committed the crimes of dealing with the proceeds of crime and trafficking in illicit drugs. She had attempted to hide her boyfriend's car containing a large amount of money and drugs. About a month later, she was apprehended at the airport having flown from Melbourne to Launceston with a significant quantity of crystal methylamphetamine concealed in her clothing knowing it was to be sold. She was sentenced on 1 July 2015 to a term of imprisonment of 20 months, six months of which was suspended, with eligibility for parole after having served seven months.
8. The applicant's first conviction under the Road Safety (Alcohol and Drugs) Act was on 3 February 2016 when she was fined and disqualified for having driven with an illicit drug present in her blood on 14 June 2015, just before she went to prison. Later in 2016 she was sentenced to a wholly suspended term of seven months for possession of drugs and ammunition, offences also committed in mid-2014, before she went to prison. However, in September 2016 the applicant was also fined and disqualified for two counts of driving while disqualified and one count of driving without a licence committed following her release. Then, on 18 November 2016, the applicant committed the offences of evading police, reckless driving and driving while disqualified. She was sentenced at the end of 2017 to a wholly suspended term of four months. That suspended sentence was breached by further offences which included driving with an illicit drug in her blood on five separate occasions during the 10 month period between 23 November 2018 and 13 September 2019 and, on 16 December 2019, she was made subject to a drug treatment order. The aim of such an order was to give priority to her rehabilitation. However, the drug treatment order did not succeed and was cancelled for non-compliance just under a year later on 20 October 2020. The applicant was resentenced to imprisonment for 10 months. About a month earlier, on 14 September 2020, the applicant committed the offences of driving while disqualified, negligent driving and another count of driving with an illicit drug in her blood. She was sentenced on 23 December 2020, while serving the term imposed in October 2020, to a term of imprisonment of two months but to be served concurrently. Next, on 17 March 2022, the applicant was given a two month wholly suspended term for driving while disqualified in an unregistered vehicle on 9 December 2021. Finally, on 24 December 2022 she drove with an illicit drug in her oral fluid while disqualified from driving. She was fined and disqualified on 28 June 2023.
9. For driving without a licence, the applicant, as a subsequent offender, was liable to imposition of a fine not exceeding 40 penalty units or imprisonment for a term not exceeding three months: Vehicle and Traffic Act, s 8(1). On the applicant's behalf it was put to the learned magistrate that her licence had been suspended for non-payment of fines. She had been dealing with the Monetary Penalties Enforcement Service (MPES) about how to get her licence back. Only a few days earlier she had paid a lump sum to MPES and entered into a repayment arrangement with respect to the balance. However, unaware that her licence had expired in the meantime, she did not reapply to the Registrar of Motor Vehicles for reissue of her licence. She claimed that she "thought she was licenced". No issue was taken by the prosecution with those submissions. The magistrate accepted that the applicant experienced "some confusion" about her licence, although he explained that it was "a little hard to see how [she] misunderstood the situation with MPES". In my respectful view, in light of the applicant's history of driving while disqualified and without a licence, and knowing her licence had been suspended, it was not an explanation for driving which carried much weight.
10. In any event, the magistrate, in his sentencing remarks, made clear that the sentence imposed was primarily directed at the charge under the Road Safety (Alcohol and Drugs) Act. His Honour said: "at the end of the day it's not that charge [driving without a licence] that is concerning, it's your returning to driving with drugs in your system for the ninth time." The applicant's counsel submitted to the magistrate that since the applicant's release from the term of imprisonment imposed after cancellation of the drug treatment order in October 2020, she had "for the most part, been free of illicit substances." It was acknowledged that there had been "some relapses" including a further instance of driving with an illicit drug in her oral fluid while disqualified from driving on 24 December 2022. As to the offence on 26 February 2024, it was asserted by the applicant that she had been "clean of illicit drug use", but her sister had moved in with her unexpectedly after her sister's house had burnt down in circumstances of family violence and a chaotic lifestyle. The applicant was finding it a "lot...to deal with", and "one weekend she consumed some illicit substances". She was apprehended on the Monday following that weekend. It was submitted that "she perhaps ought to have waited longer and obviously ought not have used illicit substances at all", but there had been "at least 48 hours prior to the act of driving" since she had used drugs and there was "no assertion that there was any impact...on her driving at the time." It was asserted that, at the time of sentence, she was "completely clean of illicit substances" and, despite her poor record, there had been a "significant deceleration in her offending" and the applicant had "worked hard on her rehabilitation." She had pleaded guilty. It was submitted that a wholly suspended term of imprisonment was an appropriate sentence supplemented by community service hours, and that an actual term of imprisonment would undermine the good progress she had made in her rehabilitation by abstaining from illicit substance use, maintaining stable employment and separating from anti-social associates.
11. It may be accepted that the applicant's guilty plea, the "deceleration in her offending" and her reform and rehabilitation were relevant to sentence. However, those factors do not, either individually or collectively, justify the conclusion that the sentence then imposed was outside the proper limits of the magistrate's broad sentencing discretion. On this appeal the applicant submitted that the magistrate failed to give "appropriate weight" to the mitigating factors, the applicant's rehabilitation and the prospect that a wholly suspended sentence would achieve the sentencing aims of general and specific deterrence. The submission must be rejected. There is no ground of appeal asserting that the magistrate made a specific error by failing to take into account a relevant matter. In an appeal against sentence asserting manifest excess it cannot be said that a sentencing court failed to give sufficient weight to any relevant factor or factors unless the sentence is manifestly excessive taking into account all matters relevant to sentence: TAP v Tasmania [2014] TASCCA 5 at [30]; Mulholland v Tasmania [2017] TASCCA 2 at [17]; Butt v Tasmania [2018] TASCCA 3 at [53]. The identified factors are to be considered with other relevant sentencing considerations, some of which are conflicting and contradictory, but all of which must be weighed by the sentencing court in determining the proper sentence to be imposed: Pavlic v The Queen [1995] TASSC 96, 5 Tas R 186; Markarian v The Queen [2005] HCA 25, 228 CLR 357.
12. The magistrate took a firm view of the applicant's offending. His Honour's sentencing remarks included the following passage:

"It's abundantly clear to me that I need to impose a sentence which makes it clear to you, and also to an extent to others, that you simply can't risk taking drugs and driving as you have so very often done in the past.

It's put to me that I could consider a wholly suspended sentence but frankly your record is littered with those and I think that the point has been reached where a term of imprisonment is the only reasonable option open, this, as I say, being your ninth offence in a relatively brief period."

1. In my respectful view, it was a position which the magistrate was entitled to take. According to the short title, the Road Safety (Alcohol and Drugs) Act is an Act to "protect the public against the risks inherent in the driving of vehicles after consumption of intoxicating liquor or drugs". The risk posed by those who drive after consuming alcohol and illicit drugs is well known and understood. It was necessary to impose a sentence which sufficiently addressed the need for punishment and condemnation and to act as a general and personal deterrent. As I explained in Clarke v McKenna and Weston [2023] TASSC 39, the authority for the proposition just stated may be found in the reasons of Crawford J in McDonald v Nilsson [2009] TASSC 83, 54 MVR 32 at [14]- [15] which concerned an alcohol related driving offence but which have equal application to illicit drugs. Because the applicant was a subsequent offender, the Act, s 17, absent special circumstances, provided for the imposition of a maximum period of imprisonment of six months or a fine up to 20 penalty units, or both, and disqualification for a period up to two years.
2. The magistrate correctly pointed out that this was, in addition to the other driving and drug related offences I have described, the ninth time in about nine years that the applicant was to be sentenced for driving with an illicit drug present in her blood or oral fluid. Her record disentitled her to lenience. This was not an uncharacteristic aberration. The applicant had served actual terms of imprisonment, been made subject to a drug treatment order, and, more than once, wholly suspended terms. These custodial and non-custodial options had not deterred further offending. She must, or at least should, have been aware of the risk she ran by driving after having used illicit drugs but once again she displayed a continuing attitude of disobedience of the law. The result was that the need for general and specific deterrence and protection of society all indicated that a more severe penalty was warranted.
3. In the circumstances, the claim that there had been 48 hours between the use of illicit drugs and the act of driving, although she should "perhaps" have waited longer, carried little mitigation. Something must also be said about the submission made to the magistrate that there was "no assertion that there was any impact... on her driving at the time". It is correct that it was not suggested that there were any overt signs of the presence of the drug. That indicated the absence of a possible aggravating factor, although the applicant was not charged under s 4 of the Act with driving under the influence of a drug to the extent that he or she was incapable of having proper control of the vehicle. However, there had been nothing more than a relatively vague assertion about when the drugs had been used, and no evidence of, or information about, the quantity used and the level of drug in her body at the time of driving. In the absence of evidence, it ought not be accepted or assumed that the applicant's reaction time, proneness to error and capacity to meet unexpected or emergency situations were not impaired by the presence of the drugs in her body. Evidence of the effect on humans of the presence of an illicit drug while driving lies behind the statutory prohibition. This legislation is not directed at the use of illicit drugs per se, but at the inherent risk posed by those who choose to drive a motor vehicle after having used illicit drugs.
4. In the course of her oral submissions, counsel for the applicant suggested that it was unfair for the magistrate to have not exposed his intention to impose an immediately effective sentence of imprisonment. It was submitted that the submissions made to the magistrate were primarily aimed at persuading his Honour to wholly suspend a term his Honour may impose, and if had been made clear that the submission was not to be accepted then further submissions, for example about home detention as a possible sentencing alternative, could have been made. No such submission had been made for reasons of efficiency in a busy Magistrates Court. The principle relied on is one of procedural fairness. Although it was not a ground of the motion, and no application for leave to add it as a ground was made, notice of the argument was given to counsel for the respondent prior to the commencement of the hearing. However, in this case, it is not a contention which has any merit. I considered a similar contention in Mrgic v Judges [2021] TASSC 14 where I adopted the principles applied by Porter J (as he then was) in Allen v Kerr [2009] TASSC 10, 19 Tas R 132. As to whether it might be procedurally unfair to not indicate that an actual term of imprisonment is being considered, his Honour stated at [22]-[23]:

"Plainly the principle is not rigid. Its application will be flexible depending on the case. Rather self evidently, there must be something in the case which makes it unfair if the relevant matter is not raised. Although no attempt should be made at delineating the circumstances in which the obligation will arise, it will most likely do so where, in general terms, the outcome may not reasonably have been anticipated; examples being the appeal scenario highlighted in Parker and Ho, and the case of a defendant (not always unrepresented) who appears not at all to understand the seriousness of the predicament; see Szewczuk v Police [2001] SASC 223. It is also likely to arise where there has been some expectation created as to a particular outcome or basis on which the court is to proceed; the type of case of which O'Neill and Baroudi are instances.

I have no doubt that in a particular type of case, it might be procedurally unfair not to indicate that an actual term of imprisonment is being considered. That is more likely, but not exclusively, to arise where the defendant is unrepresented. Such a failure may also lead to, or be associated with, a failure to make inquiries to ensure that there is sufficient information to make a reasoned decision as to whether imprisonment is the only appropriate penalty. That latter failure, as recognised in James v Turner, may of itself be an error vitiating the exercise of the discretion; see also Murray v Harris 33/1974. However, as I have attempted to demonstrate, all of this depends on the circumstances of the case. In my view, any contention that there is an invariable rule of universal application that a sentencer who is considering imposing a term of actual imprisonment, ought to expressly raise that issue and to invite submissions, should be rejected. I do not see Parker v Director of Public Prosecutions as establishing such a rule, nor do I see that Evans J, in the two cases referred to, embraced the existence of such a rule."

1. There was no procedural unfairness here. The applicant was represented by experienced counsel. The applicant was to be sentenced for her ninth offence under the Road Safety (Alcohol and Drugs) Act, s 6A. Her record for drug related and driving offences was poor in other respects. The possibility of an actual term of imprisonment was, or should have been, obvious. No-one raised the possibility of home detention as a sentencing option. In every other respect the magistrate was provided with all of the information relevant to whether actual imprisonment was the appropriate sentence, and it has not been suggested that there was information which should have been given to the magistrate but was not.
2. For those reasons, the motion to review is dismissed.