Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Other matters - Appeal against activation of suspended term of imprisonment - Sentence imposed for offences of dishonesty - Applicant in breach by committing driving offences punishable by imprisonment - Whether magistrate erred in ordering activation.

Tanner v Brown [2011] TASSC 59, considered.

Judgment Number: [2013] TASSC 70

1 On 25 September 2013 the applicant was sentenced by Magistrate Brett to four months' imprisonment on a global basis, the execution of three months of which was suspended on condition the applicant commit no offence punishable by imprisonment for 18 months. The sentence was made cumulative to an activated term of two months' imprisonment which had been imposed by a different magistrate on 28 February 2011. That sentence was imposed for what is described as unlawful possession of property. In addition, the magistrate ordered that the applicant be disqualified from driving for a period of 12 months which was backdated to 7 May 2013, in order to take into account a bail condition.

2 The sentence of four months' imprisonment was imposed in relation to the following charges:

• Driving whilst an illicit drug was present in his blood, contrary to s6A(1) of the Road Safety (Alcohol and Drugs) Act 1970, committed on 17 August 2011.
• Driving whilst disqualified (for unlicensed driving), using an unregistered vehicle, and using a vehicle in respect of which no premium had been paid, all committed by one act of driving on 18 December 2012.
• Failing to appear on 24 January 2013.
• Using a motor vehicle with no number plate affixed or displayed, committed on 25 April 2013.

3 The applicant has moved to review the orders both of sentence and the activation of the suspended sentence. The order of disqualification is not in issue. The amended notice to review contains three grounds. The first ground alleges error of law in that it was unjust to impose the outstanding period of the suspended sentence in full, whilst the second asserts the sentence of imprisonment was manifestly excessive. The third ground complains that there was an error of law in imposing imprisonment on complaint 51831/13. That rather enigmatic ground, when explained, is one which is conceded by the respondent. The ground relates to the last matter of complaint, that of driving a motor vehicle on a public street with no number plate. The Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations 2010 do not provide for imprisonment for such a charge.

4 Accordingly, the sentence must be set aside and I am to resentence the applicant. Before dealing with ground 2 and the resentencing exercise, I will deal with ground 1.

5 The offences relied on to establish the breach of the condition of the suspended sentence are the four driving offences described in the first two points of par[2] above. As to the activation of the suspended sentence, the magistrate said:

"By committing ... the offence of disqualified driving ... together with using an unregistered and uninsured motor vehicle, and the offence of driving with an illicit drug present in your blood, you have committed a breach of the most fundamental condition of the suspended sentence. The sentence imposed on 28 February 2011 was for a different type of matter but it was a sentence of imprisonment and the only reason that you are not to serve that sentence was because of your ongoing compliance with the conditions of suspension, and the most important condition of suspension was that you were to obey the law. On those two occasions at the very least you breached the law in a very serious way. It seems to me that as a result of [the law] I have to activate that sentence unless I can be persuaded it would be unjust to do so, and I simply can't be persuaded on that."

6 Subsections (4B) and (4C) of s27 of the Sentencing Act 1997 are in clear enough terms. A court must activate a suspended sentence unless it is of the opinion that activation would be unjust. In Tanner v Brown [2011] TASSC 59, 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. Accordingly, on appeal the question was whether there was error in that evaluation, and the well known principles of appellate review on the exercise of a discretion as set out in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505, applied.

7 That point was not the subject of any argument in this case. Indeed the ground itself alleges an error of law. Clear error needs to be demonstrated. No specific error is alleged, and as a result, the error can only be inferred if the outcome is manifestly unreasonable or plainly wrong. The applicant has not satisfied me that the outcome can be so described. For the following reasons, I am not satisfied that the magistrate made an error.

8 The proper approach to the activation of suspended sentences under s27 of the Sentencing Act, and the relevant factors are discussed in Tanner v Brown at [90] - [96]; in particular [94]. The broad question is whether the suspended sentence is having its desired effect in terms of rehabilitation. Relevant factors may include those that indicate the progress made by an offender in relation to rehabilitation. Some of the principal factors are:

• disproportion between the original offence and the breach offence or offences;
• whether the nature of the offence suggests that the offender has lapsed into a non-law abiding way of life;
• whether the offender has reverted to criminal conduct comparable to the offence for which the suspended sentence was imposed;
• the time between the imposition of the suspended sentence and the commission of the breaching offence or offences.

9 The applicant has a bad record for offences of dishonesty and for traffic offences, including driving whilst disqualified. The original offence for which the suspended sentence was imposed was being in possession of six "danger" signs which had recently been stolen. Although sentenced on 28 February 2011, the offence was committed in September 2009. The breaching offences relied on were the Road Safety (Alcohol and Drugs) Act offence committed on 17 August 2011, and the three offences committed on 18 December 2012 which included driving whilst disqualified. Accordingly, the first of the breaching offences was committed within six months of the suspended sentence being imposed. The period for which the condition operated was 18 months.

10 It is true that the breaching offences are of a different nature from that which led to the suspended sentence. The applicant was, however, specifically warned by the magistrate who imposed the suspended sentence that any offence punishable by imprisonment would put him in breach of the condition. A breathalyser offence was given as an example. Further, the applicant well knew the consequences of driving whilst disqualified. He had been sentenced to youth detention and imprisonment on three occasions, having had the advantage of community service and suspended terms on other occasions.

11 The disparity in nature between original offending and breaching offending is a factor, but I do not regard it as one of great significance in general terms. The condition that no offence punishable by imprisonment be committed during a specified period is a statutory condition of suspending the execution of the term of imprisonment. Parliament's intention was plain enough. The object is to punish, as well as to rehabilitate, and the rehabilitative aspect is directed towards people becoming law abiding citizens, not selective offenders.

12 In my view, it is also relevant that the applicant was a regular offender in relation to the type of offending which made up the breach. At the time activation was being considered, the applicant had:

• 11 prior convictions for driving whilst disqualified between 1994 and 2002;
• convictions for 13 instances of using a vehicle with no registration and no premium cover, the last occasion being committed before the suspended sentence was imposed, but dealt with afterwards;
• four separate convictions for using an unregistered motor vehicle, the last one of which was dealt with by a traffic infringement notice on 19 June 2012;
• 13 convictions for driving without a licence, the last one giving rise to the relevant period of disqualification which was ordered on 19 September 2012.

13 The applicant's record since the suspended sentence might show that he has not committed any offences of dishonesty as such. However, driving whilst disqualified, and driving a motor vehicle with no registration and no premium cover, are dishonest offences in a sense. In any event, the applicant's record does not show a person who has developed a sense that the law should be obeyed. Ground 1 fails.

14 In strict terms, because of the concede outcome of ground 3, there is no need for me to consider whether the sentence imposed was manifestly excessive. However, as the relevant considerations also arise in relation to the resentencing exercise, I will say something about it. I will approach it on the basis that the charge of using a vehicle with no number plate is excluded when considering the penalty. It is highly unlikely that it played any significant part in the magistrate's thinking. I think it was more a matter of administrative convenience that the charge was included in the global penalty.

15 I have already outlined the applicant's offending history. Of the offences for which he was sentenced, for the purposes of sentencing on the charge of driving a motor vehicle with an illicit drug present in the blood, the applicant was a subsequent offender for the purposes of the Road Safety (Alcohol and Drugs) Act. He has two convictions for driving with alcohol present in the body, they being in December 1994 and February 1997. Under s17 of that Act, he was liable to a fine of between 4 and 20 penalty units, and a maximum of six months' imprisonment.

16 The seriousness of driving whilst disqualified by virtue of a court order, particularly with a history of similar offending, is well established: see for instance, Brown v Stone B14/1995, [1995] TASSC 23; Peck v Visser [1999] TASSC 38, [1999] TASSC 90 (Full Court). Under s13 of the Vehicle and Traffic Act 1999, as a subsequent offender, the applicant was liable to a fine not exceeding 80 penalty units and imprisonment for a term not exceeding 12 months.

17 The penalty range for the offence of using an unregistered vehicle under s27 of the Vehicle and Traffic Act is a fine not exceeding 40 penalty units and imprisonment for a term not exceeding three months for a second or subsequent offence. The range for an offence of using a motor vehicle without a premium cover under s29 of the Motor Accidents (Liabilities and Compensation) Act 1973, whether it be for a first or subsequent offence, is a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months.

18 The last two offences are regulatory in nature, but Parliament's intention as to the light in which they should be viewed, particularly the offence under the Motor Accidents (Liabilities and Compensation) Act is self-evident. It follows from this analysis that in relation to the driving offences alone, the applicant faced a potential of a longer period of imprisonment than that which was imposed. However, the offending in general must be put against the particular circumstances of the offences and the personal circumstances of the offender.

19 The following is a short summary of the matters put on the applicant's behalf.

• The applicant was working as a woodcutter on a casual basis, and in receipt of a Newstart allowance.
• He was in a relationship of some four to five years' standing, with one child of that relationship who was 1 year old. There are four children by a previous relationship who stay with the applicant every second weekend, and he looks after them after school.
• The responsibilities to his children were "at the forefront", with his current partner relying heavily on him.
• He has "incentive not to drive again" (presumably in breach of the law), because he appreciates the very real risk of imprisonment he faces.
• He hopes to have his licence back at a time when he is able to pursue business opportunities, an assumed reference to a scrap metal business which he was not engaged in at the time.
• As to the driving offence on 17 August 2011 (when he was he was intercepted at 8.40pm and admitted consuming cannabis in the morning), he was using cannabis on a social basis and accepts there was residual cannabis in his blood when he drove.
• As to the episode of driving on 18 December 2012, he had arranged for a friend to take him to and from his then place of work. On the day, the friend called him to say that he had left the vehicle on the side of the road because it was unregistered. The applicant had difficulty in arranging for someone to collect the vehicle, and so decided to drive.
• The failure to appear was due to a misunderstanding. The applicant went to court on a Monday thinking that was when the court day was. He was told that the magistrate was not at court that week, as a result of which the applicant understood that court was cancelled for the week and he would be given a notice.

20 As to these matters, I point out that there was no express acceptance of the obvious risks of driving when he was. As to the later driving in December 2012, I note that the vehicle seems to have been moved from the intersection of Bass Highway aand Oldina Road. The applicant was intercepted near the Doctor's Rocks Lookout area heading in the direction of Burnie, which is a few kilometres away from his starting point. There is no real or compelling explanation for driving.

"The offences themselves are serious - they're all serious, but I regard the driving whilst disqualified as particularly serious. I don't accept that you had ... a reasonable explanation for driving. ... [I]t seems to me that this conduct was just a continuation of what you've been doing all your adult life; that is ... when you don't have a licence for one reason or another, often because you have fines because you've offended in some other way, you still drive on the road, and the law doesn't permit that and the community won't tolerate that. It's not just a matter of unlicensed driving in particular it's not just a matter of regulation, disqualified driving certainly is not, it's a question of public safety and it's a question of the community being satisfied the people driving on the road are properly qualified to do so.

In relation to the question of a sentence for the balance of the matters, I have already commented on the seriousness. I'll take into account in your favour the pleas of guilty. I see little evidence of you mending your ways but hopefully you will. You do have family responsibilities and at the very least you owe it to them to start to abide by the law."

22 In this motion, the applicant's counsel said all that really could be said. This included:

• noting that the last driving whilst disqualified offence was on 30 December 2001, the court date being 22 April 2002;
• noting the age of the prior matters under the Road Safety (Alcohol and Drugs) Act;
• noting that the applicant's prior convictions for breaching bail orders were also dated, the last being committed in 2006;
• submitting that, in effect, there had been a change in pattern both of the type and frequency of offending in more recent years;
• submitting that insufficient weight was placed on the gap in offending for matters similar to those for which he was sentenced; and
• submitting that too much weight was placed on the record of offending for unlicensed driving, the distinction being drawn between unlicensed driving being "a breach of an administrative directive", contrasted with driving whilst disqualified and breach of a court order.

23 Having carefully considered the arguments, I am not persuaded that the sentence was manifestly excessive. A period of four months' imprisonment for the totality of the offending, leaving aside the number plate offence, is not so far outside of the range reasonably available to the magistrate so to demonstrate error. The driving whilst disqualified was, as the magistrate noted, of particular concern. The offence was committed three months after the court order. (The material does not show for how long the applicant had been disqualified.) Although it was some time since the last such conviction, the pattern of traffic offending and general non-law abiding behaviour before and after that act of driving was relevant. The history before that act speaks for itself. The applicant could not claim that he was relevantly well behaved afterwards.

24 It seems to me that the total period properly reflects the seriousness of the offending. Although the applicant was not, of course, to be sentenced on his record, he was not entitled to any leniency. As alluded to by the magistrate, the suspension of the execution of three months of the sentence was no doubt intended to reflect the personal circumstances of the applicant, and to provide an incentive to reform. Ground 2 is not made out.

25 As to the resentencing, I proceed on the facts as stated by the prosecutor to the magistrate. I take into account all of what was said by counsel in submissions in mitigation to the magistrate. In the end, on the basis of an independent exercise of the discretion, I take the view that there is no reason not to re-impose the same sentence for all the charges, with the exception of the number plate offence. That offence has no real significance in the appropriate overall penalty.

26 The motion to review is allowed. The further orders I make are as follows:

(a) the global sentence of imprisonment in respect of complaints 55692/11, 50436/12, 50086/13 and 51831/13 is set aside; otherwise the orders of the magistrate are confirmed;

(b) on complaints 55692/11, 50436/12, 50086/13, the applicant is sentenced to four months' imprisonment cumulative to the sentence of two months' imprisonment commencing on 25 September 2013, the execution of three months of which is suspended on condition that the applicant commit no offence punishable by imprisonment for a period of 18 months;

(c) a conviction is recorded on complaint 51831/13.