Solicitors for the respondent: Wallace Wilkinson and Webster

ZEEMAN J On 7 December 1994 the respondent pleaded guilty before a magistrate at Hobart to a charge of driving a motor vehicle in a public street whilst disqualified for holding or obtaining a driver's licence, contrary to the Traffic Act 1925, s37(1). The learned magistrate made a community service order requiring the respondent to work for 126 hours. The learned magistrate further ordered that the respondent be disqualified for holding or obtaining a driver's licence for a period of three months, commencing at the expiration of periods of disqualification to which the respondent already was subject.

2. The applicant, who was the complainant in the court below, seeks to have the community service order reviewed on the single ground that it was a manifestly inadequate sentence. The applicant does not seek to challenge the order of disqualification. It was appropriate that the respondent be disqualified for holding or obtaining a driver's licence in addition to any other penalty and that appears to be accepted by the respondent. As neither party complains about the length of the period of disqualification, it is unnecessary to consider it.

3. The applicant has submitted that in all the circumstances the making of a community service order was a completely inadequate response to the offence committed by the respondent. In order to consider that submission regard must be had to the material which was placed before the learned magistrate.

4. The unchallenged facts placed before the learned magistrate by the applicant were brief. At about 6.20pm on 30 March 1994 police officers observed the respondent driving a motor vehicle in Plymouth Road, Gagebrook. The officers unsuccessfully attempted to intercept the vehicle. They lost sight of it. On 3 April 1994 the respondent was arrested in respect of the offence of driving whilst disqualified on 30 March. Upon being questioned, the respondent admitted that he was disqualified from driving but declined to answer any further questions.

5. The applicant placed before the learned magistrate a record of the respondent's prior convictions. That record disclosed that the respondent had accumulated numerous convictions for offences of various types. In particular it demonstrated that the respondent had displayed complete contempt for the traffic laws. Of particular relevance were the previous convictions for offences of driving whilst disqualified, the first of which occurred after the respondent had already accumulated numerous convictions for other traffic offences. The dates upon which the respondent previously had been convicted of driving whilst disqualified and the sentences imposed in respect thereof were disclosed by the record as follows:

8 December 1992 21 days imprisonment, wholly suspended.

26 April 1993 Community service order requiring 35 hours work.

26 April 1993 14 days imprisonment.

29 April 1993 14 days imprisonment.

10 May 1993 Community service order requiring 21 hours work.

29 June 1993 Community service order requiring 14 hours work.

21 January 1994 2 months imprisonment, wholly suspended.

6. On 29 April 1994 the respondent was sentenced to various terms of imprisonment. Before his release, a suspended sentence of imprisonment was ordered to take effect. The result was that the respondent was required to serve a total of 27 weeks' imprisonment, which included sentences imposed for two offences of driving whilst disqualified, one of which was committed on 18 February 1994 and the other on 19 March 1994.

7. In order to highlight the terrible record of the respondent, who was aged just 18 years when he appeared before the learned magistrate, I note that the record disclosed that during a period of less than 2 years immediately preceding the commission of the present offence the respondent had committed, and had been convicted of, the following offences in addition to the offences of driving whilst disqualified: burglary (7), stealing (13), attempted stealing (1), motor vehicle stealing (4), driving an unregistered vehicle (3), driving an uninsured vehicle (3), unlicensed driving (15), breaches of the traffic regulations (8), using abusive language (1), breaching bail orders (6), negligent driving (1) and trespass (1). No doubt because of his age, the courts had extended considerable leniency to the respondent. Some might say that some of the earlier sentences were unduly lenient. Certainly the respondent was given every chance. On many occasions sentences falling short of immediate imprisonment were imposed when it might be said that the respondent thoroughly deserved to go to prison. At the time he committed the present offence the respondent had had the benefit of supervised probation continuously since 14 September 1992.

8. The respondent was released from prison on 29 August 1994. In the course of his plea in mitigation, counsel for the respondent told the learned magistrate that on his instructions the respondent had not fallen foul of the law since his release and submitted that that showed that the prison sentence had had a salutary effect upon him. I observe that counsel did not state that he had instructions that the prison sentence had had such an effect, but merely submitted that the fact that the respondent had not offended since his release from prison a little over 2 months earlier was indicative of the prison sentence having had that effect. Why that should be so was not further explained. Earlier, although shorter, terms of imprisonment do not appear to have had the effect of modifying the respondent's behaviour. Beyond mentioning that the respondent had "a problem with driving, likes cars too much" nothing was put to the learned magistrate by way of material which went in mitigation of the particular offence. Nothing was said as to why the respondent had been driving on the particular occasion.

9. Having heard the submissions in mitigation, the learned magistrate made the following observation:

"HIS WORSHIP: Well I don't want to send him back to

imprisonment unless I have to. I don't think I have to

if I give him enough gardening."

10. His Worship then adjourned the hearing of the matter until later in the day so that he might hear from a probation officer. Upon the resumption of the hearing the probation officer informed the learned magistrate that whilst there had been some problems with the respondent's compliance with the requirements of previous community service orders, they had been complied with, that the respondent was considered to be a likeable person and "perhaps more co-operative with community service than with probation which he is currently on". The learned magistrate then imposed sentence, making the following observations:

"As an alternative to imprisonment, because your

offence of driving whilst disqualified with your

background would justify imprisonment, as an

alternative to imprisonment I'll order you to perform

126 hours community service which will occupy you

usefully for 18 days and thus deprive you at liberty

short of locking you up. You will be disqualified in

addition for a period of 3 months cumulative to your

current disqualification. And I've taken that course

as to community service because I accept from what Mr

Wilkinson's said this morning that the period of

imprisonment to which you were subject earlier last

year has persuaded you that you don't like it which

should discourage you from committing further offences

and you've got some prospects of improving your lot

without serving further time. One hundred and twenty

six (126) hours community service and three (3) months

disqualification."

11. I can understand the learned magistrate's reluctance to return the respondent to prison. His age was a factor which made the possibility of reformation without sending him to prison an important factor. The relevant considerations were canvassed by Burbury CJ in the oft quoted case of Lahey v Sanderson (1959) Tas SR 17. However, there is no inflexible rule that young offenders must not be sent to prison. Courts will avoid doing this if reasonably possible but in some cases considerations other than the youth of the offender will require that a young person be sent to prison (R v Mather (1962) Tas SR 25, Ris v Wills (1966) Tas SR 92; Goold v McKenna A4/1980).

12. The offence of driving whilst disqualified is a serious offence. Parliament has seen fit to provide that in suitable cases courts may disqualify a person for holding a driver's licence and that persons who accumulate the prescribed number of demerit points will be similarly disqualified. Substantial penalties may be imposed upon persons who drive whilst so disqualified. Driving whilst disqualified involves disregarding a positive order or legal requirement that a person shall not drive. In the respondent's case all relevant disqualifications were imposed by orders of courts. Disqualifications are imposed by way of punishment and by way of seeking to protect other road users from irresponsible drivers. A person who drives in breach of a disqualification order and does so as part of a course of conduct of persistently driving notwithstanding the disqualification must expect to go to prison. It is the ultimate sanction to maintain the integrity and effect of the disqualification. A failure to impose condign punishment on such an offender brings the law into disrepute and encourages a belief in others that orders of disqualification may be ignored without the risk of severe punishment. I share the views to similar effect very recently expressed by Wright J in Bessell v Riley B12/1995 (unreported, available on SCALE).

13. Despite the respondent's age, his previous record and the offence for which he was sentenced by the learned magistrate showed a complete disregard for the law, and in particular for the laws designed to provide some measure of protection for road users. The respondent's record lent little encouragement to the hope that the respondent had learned his lesson and had changed his ways. The fact that he had not offended for a few months since his release from prison was quite insufficient to found such a belief. The appropriateness of severe punishment for driving whilst disqualified on the part of youthful persistent offenders has been recognised by this Court in various cases of which Johnston v Dillon B24/1984 and Burridge v Gall B27/1984 are examples.

14. I have no hesitation in concluding that a community service order was entirely inappropriate in this case and that the offence called for an immediate custodial sentence. The order made by the learned magistrate was such an inadequate sentencing response that it demonstrates error. I would adopt the following observations made by Everett J in Cirkel v White (1980) Tas R 91 at 96:

"The impression seems to be abroad among some of the

younger members of the community that the traffic laws

of this State can be breached with little consequence

to the offender. The reasoning appears to be that

because an offence, viewed in isolation, could be

described as minor, then an accumulation of convictions

for such offences should be treated as not meriting any

significant punishment. Any such notions are false.

The traffic laws of this State have been developed to

protect, so far as laws can, the safety of the public;

that purpose is frustrated by the persistent breaking

of those laws by persons, such as the applicant, who

behave irresponsibly."

15. Parliament has provided for a maximum sentence of 6 months' imprisonment for the offence of driving whilst disqualified. The respondent might not have had reason to complain had that maximum sentence been imposed on him. An offender who persistently drives whilst disqualified and who does so without there being any mitigating circumstances must expect to receive the maximum sentence because the offence represents one of the worst examples of the proscribed conduct likely to be encountered in ordinary practice (see R v Mallinder (1986) 23 A Crim R 179; R v Tait (1979) 46 FLR 386). In dealing with persons who are convicted of the offence of driving whilst disqualified, magistrates must steadfastly keep in mind what Parliament has determined to be the maximum penalty.

16. Counsel were agreed that in the event that I were to allow the appeal I should impose the appropriate substitute sentence upon the respondent. I give some weight to the age of the respondent and to the fact that he has performed 7 hours' work pursuant to the community service order made by the learned magistrate. Nevertheless the other considerations which I have mentioned make it appropriate that a severe sentence be imposed. I have concluded that a sentence of three months' imprisonment is appropriate. I have been informed that the respondent is currently serving a term of two months' imprisonment imposed on 2 February 1995 on his conviction for inter alia a charge of driving whilst disqualified. Whilst I have not relied on that conviction for the conclusion which I have reached, it confirms that the learned magistrate's hopes as to the respondent's future conduct were not well founded.

17. The appeal is allowed, the community service order made by the learned magistrate is set aside and in lieu thereof the respondent is sentenced to three months' imprisonment. That sentence will commence on the expiration of any sentence of imprisonment to which the respondent is currently subject.