1. The respondent was born on 25 July 1971. She is now aged 43. She has a poor record for drink driving offences and for driving while disqualified. She first offended in 1990 when she was 17, with a reading of .105. She was disqualified from driving and given some community service. She offended again in March 1991 with a reading of 0.127. She was fined and disqualified. She next offended in 2002 with a reading of 0.222. She was sentenced to a wholly suspended term of imprisonment of one month and disqualified from driving for two years. On 19 May 2008 she was sentenced for two further offences committed on 16 February 2008 and 18 May 2008, with readings of 0.228 and 0.115 respectively. When she drove the second time she was disqualified from driving, I infer, by virtue of having been served, at the time of the first offence, with an excessive drink driving notice under s18B(1) of the Road Safety (Alcohol and Drugs) Act 1970. When apprehended on that occasion, she gave the police a false name. She was sentenced to six months' imprisonment and disqualified from driving for five years.
2. On 7 May 2009, the respondent was sentenced by this Court for offences committed on 6 December 2008. She pleaded guilty to perverting justice, driving while disqualified, driving under the influence of intoxicating liquor and driving without a licence with alcohol in her body. She gave the police a false name when they apprehended her driving in Launceston with a blood alcohol reading of 0.157. She was sentenced by Crawford CJ to imprisonment for nine months from 24 March 2009 and disqualified from driving for five years from 7 May 2009.
3. The offence which resulted in the suspended sentence, which was the subject of the application, was committed on 12 February 2011. The respondent was apprehended on a random breath test while driving in Launceston at 6.20am with a reading of 0.123. There were two passengers in the car. She told the police that she was driving because she "didn't want anyone else to drive". She was not sentenced until 30 July 2013, more than two years later. She pleaded guilty to driving with a breath alcohol concentration exceeding the prescribed limit, driving while disqualified, and breaching bail. She was sentenced by the same magistrate to four months' imprisonment, wholly suspended for three years, and disqualified from driving for three years from 30 July 2013.

The breach offence and the application under s27

1. The respondent drove while disqualified on 30 November 2013. Her offence was committed under s19A(1) of the Road Safety (Alcohol and Drugs) Act and was punishable by imprisonment. By s24(1) of the Sentencing Act, the order suspending the sentence imposed on 30 July 2013 was subject to the condition that, during the three year period the order was in force, the respondent not commit another offence punishable by imprisonment. Thus, the respondent breached a condition of her suspended sentence.
2. The combined effect of subss(4B) and (4C) of the Sentencing Act is that, if the offence which constitutes the breach is itself an offence punishable by imprisonment, the court to which the application is made must activate the sentence held in suspense unless of the opinion that it would be unjust: State of Tasmania v Thorpe [2011] TASSC 18; Tanner v Brown [2011] TASSC 59. If the court is so satisfied then the court may instead:

"(a) activate part of the sentence that is held in suspense and order the offender to serve it; or

(b) order that a sentence (in this section called the 'substituted sentence') take effect in place of the suspended sentence; or

(c) by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or

(d) make no order in respect of the suspended sentence."

1. The sentencing hearing commenced before the learned magistrate on 10 April 2014. On that day he was told that the police intercepted the respondent driving on the Bass Highway at Camdale. In mitigation her counsel submitted that the respondent was a disability support pensioner with limited financial circumstances. Her health was affected by chronic obstructive lung disease for which she required medication. Her education ceased at age 15 when she left school to care for her ailing father. She had a dysfunctional family background. She has four surviving children, none of whom remain in her care. Throughout her life she battled alcohol addiction. However, from about a year before the sentencing hearing, she had abstained from alcohol. This was attributed to her commitment to the relationship with her partner. Although she told the police when pulled over that she had no reason to drive, her counsel told the court that she had driven to obtain medication for her partner who could not drive himself. Her counsel drew a distinction between the offence for which she was to be sentenced and which constituted the breach, which did not involve consumption of alcohol, and her prior convictions which did. The learned magistrate enquired about whether information about the respondent might be obtained from a psychiatrist or psychologist. The hearing was adjourned for that purpose. On resumption on 14 May 2014 the learned magistrate was presented with a report dated 30 April 2014 from a clinical and forensic psychologist, Michael Marriott. Mr Marriott interviewed the respondent and obtained other information from her in the form of a questionnaire. She told him that she had not consumed alcohol for two and a half years. He reported that, in his opinion, she was not suffering from any psychological disorder. He concluded that she did not, in his opinion, pose a significant risk of re-offending, based it seems on his observation that she had been able to follow through with her decision to change her drinking behaviour.
2. In the course of his reasons his Honour noted that he was well aware of the respondent's personal circumstances. He referred to the reasons she drove and said "at least there is a reason, not a good reason, but a reason for driving". He referred to her long-standing problem with alcohol and placed some weight on the lapse of time without re-offending between the offence in February 2011 and the sentence on 30 July 2013. He also took into account that the offence, unlike others in the past, did not involve alcohol. He sentenced the respondent to 12 weeks' imprisonment but, as to the suspended sentence, the learned magistrate formed the opinion that to activate the suspended sentence would be unjust. He said:

"Looking then at the suspended sentence, as I have indicated and my main purpose there was to make sure you did not have any drink driving and put other persons at risk. It is my view at this stage it would be unjust to effect that term of imprisonment in those circumstances noting that you will be serving three months' imprisonment now or 12 weeks' imprisonment now. That the suspended sentence that was imposed previously should continue to hang over your head is a clear deterrence in the future. The imposing of the actual term of imprisonment now for the driving whilst disqualified reinforces the fact that the Court will not accept where a person drives while disqualified. In my view it would be unjust to put into effect that extra term of imprisonment, I believe that would be too crushing in the circumstances, taking into account the overall circumstances occurring at the time you drove."

1. His Honour made no order in respect to the suspended sentence. The effect was that the sentence remained in effect according to its terms. This motion is brought under the Justices Act 1959, s107, which enables the review of "an order". Division 5 of PtXI headed "general provisions", s116 provides:

"In this Part, unless the contrary intention appears, 'order' includes conviction, dismissal of a complaint, determination, and adjudication."

1. Sections 107 and 110 are in PtXI. The course adopted by the learned magistrate in this case was plainly a "determination" and thus an "order" within the meaning of that provision, even though, according to the terms of s27(4C) of the Sentencing Act, he made no order.

Section 27 of the Sentencing Act

1. The operation of s27 was considered by Wood J in Tanner v Brown (above). I would respectfully adopt her Honour's analysis. There is no need to repeat all of it, although I will refer to some parts of it. Her Honour's decision was followed by Crawford CJ in Jones v Clarke [2012] TASSC 21, and has been considered in other cases including by Porter J in Chatwin v Godfrey [2013] TASSC 70. Introduction of s27 on 1 January 2011 was intended to result in a hardening of the approach to suspended sentences. It has long been the case that, generally speaking, if an offender wastes an opportunity offered by the court by re-offending, then a suspended sentence should be activated. Ordinarily, suspended sentences are meant to be a last chance. Any unjustified departure from that principle undermines the integrity of the system of suspended sentences and the extent to which they may deter future offenders. As Wood J pointed out in Tanner v Brown at [91], s27 now enshrines that policy in a legislative form and creates a presumption that the suspended sentence will be activated unless the court is of the opinion that it is unjust. The clear starting point is that the sentence should be activated. The court is not considering the original sentence afresh but determining whether activation of the sentence is unjust. In the words used by Wood J in Tanner v Brown (above) at [103], "the exercise of the sentencing function is not at large, and is limited to an evaluation of whether it would be unjust to activate the sentence". In considering an application under s27 there may be sentencing considerations which properly incline a sentencing court against activation of a suspended sentence, but which fall short of justifying a conclusion that it would be unjust to do so. The meaning of "unjust" is not prescribed by the Sentencing Act. Its ordinary meaning, according to the Macquarie Dictionary online, is "not in accordance with justice or fairness". It is for the sentencing court to consider and weigh the circumstances of each case. In the circumstances of this case, the most important factors seem to me to be:
   • the nature and circumstances of the offences for which the sentence was originally imposed;
   • the nature and gravity of the breach in comparison to the original offences and whether activation of the suspended sentence may represent a disproportionate response;
   • the lapse of time between the imposition of the suspended sentence and the breach;
   • whether there is any, and if so what, indication of reform and rehabilitation. That is, whether the suspended sentence may be having its desired effect.

Appellate review of an application under s27

1. In Tanner v Brown (above), Wood J at [104], said that the role of deciding whether it would be unjust to activate a suspended sentence was a sentencing exercise upon which minds can differ, involving judgment and evaluation: see also Kirby J in Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 339. Thus, as was pointed out by Porter J in Chatwin v Godfrey (above) at [6], the well-known principles of appellate review as set out in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505, apply and the appeal court must be satisfied of "clear error". A distinction is to be drawn between a review of the exercise of a sentencing discretion at first instance and review of the determination of an application under s27. In the former case the function of the sentencing court is at large and, in the absence of specific error, an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. To succeed in such an appeal it must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Lowndes v R [1992] TASSC 55; (1992) 1 Tas R 234 at [13]; Lusted v Kenway [2008] TASSC 47 at [38]; Visser v Smart [1998] TASSC 151. When reviewing the determination of an application under s27 the appeal court again must not substitute its own opinion and must be satisfied of "clear error". However the task of the appeal court is qualified by the terms of the sentencing function imposed by the legislation, that is whether clear error occurred in the determination of whether activation of the suspended sentence is unjust.
2. In Tanner v Brown Wood J also made reference at [49] - [53] and at [103] - [109] to principles applying to Crown appeals. Absent legislative intervention, Crown appeals against sentence were less readily allowed than defence appeals against sentence. There was a higher threshold for error. The concept of what has been referred to as double jeopardy was central to this approach: Director of Public Prosecutions v Chatters (2011) 21 Tas R 26; (2011) 218 A Crim R 156; [2011] TASCCA 8 at [11]. It was seen as unfair to put the liberty of a defendant in jeopardy before a sentencing court and again, for a second time, before an appellate court. In addition, this exposed a defendant to additional anxiety and stress: R v Hayes (1987) 29 A Crim R 452 at 469, Kirby J. There are two aspects to the notion of double jeopardy. The first arises when considering whether to allow or reject an appeal. The second arises, if an appeal succeeds, in re-sentencing. I see no reason, in principle, that these principles would not apply to appeals against determinations under s27 of the Sentencing Act.
3. In this case the respondent was released after having served the sentence imposed by the magistrate on the day before the motion to review was heard on 6 August 2014. She appeared in court and was given bail until this decision was due to be published on 14 August 2014. Although there is no evidence on the question, I would infer from those circumstances that she has been subject to uncertainty and some anxiety and stress as a result of the Crown appeal.
4. On 1 September 2013, the Justices Act was amended to insert s110(2AA) and (2AB) in the following terms:

"(2AA) The court, on hearing a motion to review in relation to an order imposing a sentence on a person in relation to a matter, may, whether the person who filed the notice of review in respect of the order was the person or the prosecutor, take into account any matter, relevant to sentencing, that has occurred between when the justices who made the order dealt with the person in relation to the matter and when the court hears the motion to review.

(2AB) Despite subsection (2AA), the court, in exercising in relation to an order a power under subsection (2), the effect of the exercise of which is that the person to whom the order relates is being sentenced again for an offence, must not take into account any element of double jeopardy involved in the person being sentenced again so as to impose a less severe sentence than the court would otherwise consider appropriate."

1. Those provisions are of a similar character, but are not the same as s402 of the Criminal Code in the form considered by the Court of Criminal Appeal in Director of Public Prosecutions v Chatters (above). At the same time that the recent amendments to the Justices Act were made, the Code was also amended. Again, the provisions in the Justices Act and the amended Code provisions are similar but not the same. Section 110(2AA) permits proof and recognition of double jeopardy type considerations in a decision whether to allow or reject an appeal. Moreover, the terms of the restriction in s110(2AB) on taking into account "any element of double jeopardy" appear to me to have no application other than where a person is being "sentenced again", and thus have no application in this case. Counsel for the applicant did not submit to the contrary. In light of the conclusion I have reached, it is unnecessary for me to decide. Even taking into account a higher threshold for Crown appeals and the unfortunate circumstance whereby the respondent's liberty is in jeopardy for a second time after a short period of release, this is a very clear case where establishment and maintenance of adequate standards of punishment for crime and maintenance of the integrity of the system of suspended sentences, compel the conclusion that the motion be allowed.

1. As has been made clear, the Sentencing Act, s27(4B) and (4C), required the activation of the sentence unless it would be unjust to activate it. I have concluded that, in this case, it is beyond doubt that it was not unjust to activate the sentence. With respect to the magistrate, there was no proper basis for his conclusion that it was unjust and his Honour made a very clear error in so finding. The suspended sentence imposed on the respondent on 30 July 2013 was for her seventh offence under the Road Safety (Alcohol and Drugs) Act. It was for her third offence since 2008 of driving while disqualified contrary to the provisions of that Act. She had served sentences of actual imprisonment in 2008 and 2009. In those circumstances she was fortunate, when sentenced, to avoid actual imprisonment. In that regard I would refer to the remarks of Crawford CJ in McDonald v Nilsson [2009] TASSC 83 at [14].
2. When considering the breach application the learned magistrate commented that, when ordering that the sentence of imprisonment he imposed on 30 July 2013 be suspended, he regarded the absence of offending between 12 February 2011, when the offence was committed, and the date he imposed the sentence as an important indication of rehabilitation, and that he had the drink driving offence at the front of his mind. It was not to be overlooked that the sentence his Honour imposed was also for driving while disqualified and included a further period of disqualification from driving. Any breach of that order would thus undermine the force of the sentence for all of the offences, including but not limited to the drink driving offence. It was also not to be overlooked that she had already been given the benefit of the relatively short period of non-offending to which his Honour referred. It must have been clear to the respondent that any breach of the disqualification order, whether or not it involved driving with alcohol in her body, would likely result in her imprisonment. Despite the chance offered to her, she drove again only four months after the imposition of that sentence. It was her fourth such offence in about four years. She did so in breach of an important aspect of the punishment ordered by the court. The explanation she gave for driving fell well short of being a mitigating factor deserving of any weight: Parker v Whiteman [2012] TASSC 17. By driving she demonstrated contempt for the force of the court's order.
3. The seriousness of driving while disqualified by virtue of a court order, particularly with a history of similar offending, is well established: see Porter J in Chatwin v Godfrey (above) at [16] and the cases there referred to. The power to order disqualification from driving is an important road safety tool: Jarvis v Brown and McDonald [1998] TASSC 120; Parker v Whiteman (above) at [14]. The penalties prescribed by the Parliament make it clear that offenders, even first offenders, are liable to grave penalties. A first offence under that provision is punishable by a fine not exceeding 40 penalty units, imprisonment for a term up to six months (or both), and disqualification for a period not exceeding three years. Parliament has legislated for harsher penalties for subsequent offenders. Because it was not the respondent's first offence under that provision it was punishable by a fine not exceeding 80 penalty units, imprisonment for a term not exceeding 12 months (or both), and disqualification from driving for a period not exceeding five years: Road Safety (Alcohol and Drugs) Act, s19A(1). The intention of penalty provisions whereby subsequent offenders are liable to increased punishment was referred to by Crawford CJ in Cashman v Jordan [2009] TASSC 112. As his Honour pointed out, such provisions are based on the assumption that in enacting a provision of that kind, the intention of the legislature was that where the punishment imposed for a first offence has not operated as a sufficient warning or deterrent to an offender, a higher penalty is then to be imposed for a further offence.
4. The learned magistrate was correct to observe that allowing the suspended sentence to remain in place would mean that there was a continuing disincentive to re-offending. However the question before the learned magistrate was whether activation of the suspended sentence was unjust. His Honour's observation that the sentence would continue to hang over her head did not justify the conclusion that taking the contrary course, activating the sentence, was unjust. Nor was there any reason to conclude that activation of the sentence would constitute such an impediment to her reform and rehabilitation as to constitute an injustice.
5. The magistrate was entitled, as he did, to take into account the total effect of the orders he was to make. He imposed a sentence of three months' imprisonment for the offence which constituted the breach. As Hunt CJ at CL in R v Gordon (1994) 71 A Crim R 459 pointed out at 466:

"When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable."

In Director of Public Prosecutions v Farmer (2005) 13 Tas R 418; (2005) 157 A Crim R 150; [2005] TASSC 15, Slicer J, with whom Evans J agreed, said at [5]:

"Totality is a reflection not of an artificial exercise, but of an attempt to evaluate overall criminal responsibility, achieve relativity and avoid the imposition of a 'crushing sentence', leaving the offender bereft of future change (Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; Mill v R [1988] HCA 70; (1988) 166 CLR 59, Wise v R [1965] TASStRp 14; [1965] Tas SR 196)."

1. In this case, in light of the respondent's overall criminal responsibility, the magistrate was not justified in concluding that the activation of a four months suspended sentence, even when taken in combination with the sentence his Honour imposed, was "too crushing in the circumstances" so as to be unjust.
2. In my view, the learned magistrate was in error to conclude that any of the factors he took into account, whether taken separately or in combination, justified a conclusion that activation of the sentence was unjust, and there was no other proper basis before the learned magistrate or this Court for so deciding.

1. The motion was filed within time but served on the respondent seven days late. An application for an extension of time is made. The only basis for the respondent's opposition to the extension is that the motion has no merit. In light of the conclusion I have reached on the motion, the application for an extension of time should be granted.
2. I order:

(a) the time for service of the motion to review is extended to 11 June 2014;

(b) the motion to review is allowed. The determination made by Magistrate Jones on 14 May 2014 to make no order on the application under s27 of the Sentencing Act is set aside. The application is allowed. The sentence of four months' imprisonment imposed 30 July 2013, but held in suspense, is activated and is to be served.

1. I will hear counsel before ordering the date from which the sentence is to commence.