Harris v Leaman [2022] TASSC 28

1 The applicant is a police officer. This a prosecution appeal against sentencing orders made by a magistrate, Mr C Webster, on 12 November 2021. The respondent pleaded guilty to two offences under the Road Safety (Alcohol and Drugs) Act 1970. On 17 October 2020, in breach of s 6(1) of the Act, he drove a motor vehicle while alcohol was present in his breath in a concentration greater than the prescribed concentration of 0.05 grams. As will be further explained, it was an offence under s 6(2) for the respondent to have driven with any alcohol in his body.

2 The learned magistrate convicted the respondent on both counts and imposed one sentence. He imposed a fine of $692 and disqualified the respondent from driving for nine months. The first and principal ground of the motion is that the sentence is manifestly inadequate. There is a second ground that the magistrate erred by convicting the respondent on both counts.

3 It is convenient to first address the second ground. The learned magistrate should not have convicted the respondent of offences under both s 6(1) and s 6(2). They arose from the same conduct, and sentencing for the offence under s 6(2) required consideration of all the matters which were relevant to a determination on sentencing on the offence under s 6(1). In accordance with the principles stated in Wood v Major [1992] TASSC 28; (1992) 3 Tas R 249 and Dellar v Crawford (1992) 62 A Crim R 171 the learned magistrate was required to dismiss the charge under s 6(1).

4 However, the error does not justify appellate intervention. If that were the only ground of appeal it would be a proper case to exercise the residual discretion to dismiss the motion. Moreover, the Justices Act 1959, s 110(2)(ab), provides that a motion may be dismissed if the court considers that no substantial miscarriage of justice has occurred even though the matter raised by the motion might be decided in favour of the applicant. Here there is no miscarriage of justice. It is a matter raised by the applicant, and not the respondent. The error made no difference to the sentence which was imposed by the learned magistrate for the respondent's overall criminal conduct. The ground can be adequately resolved by noting the error but by not otherwise interfering.

5 However, for the following reasons, the applicant's contention that the sentence is manifestly inadequate is to be accepted and the motion should be upheld on that basis.

6 Prior to imposition of sentence, the material put before the magistrate was very limited. He was informed by the prosecutor that the respondent had been pulled over at around 6.20 pm on Saturday 17 October after having driven from the Midway Point Tavern. He was subjected to a road side breath test and later a breath analysis which disclosed the presence of alcohol in a concentration of 0.096 grams of alcohol in 210 litres of breath. He told the police that he was driving home, that he had gone to the hotel to "check his Keno" and was invited to have a beer with a friend. He claimed to have consumed three stubbies before driving and didn't think he would be over the limit. There were no passengers in his car. The magistrate was given a copy of the respondent's prior convictions.

7 In mitigation his counsel accepted that the respondent "had a significant number of offences" but pointed out that the most recent was committed in 2009. She explained that the respondent had health problems. He had undergone surgery to fuse "bones in his foot" and had been a past sufferer of bowel cancer. He had been injured in an industrial accident which put him off work for a significant time but he had recently returned on restricted duties. He claimed to have forgotten about the law which prohibited him from driving with any alcohol in his body and said that he thought it would "go after 10 years".

8 I infer that the magistrate knew more about the respondent's driving record and personal circumstances than was said by his counsel in mitigation because, in advance of the sentencing hearing, an application for a restricted licence had been filed. In the application the respondent expanded on his personal circumstances. He lived with his mother and assisted her in her day to day activities. Throughout his life he had worked as a leading hand or foreman on building sites. His ankle was badly injured in an industrial accident in 2009 and surgery was required to fuse the joint. He had returned to work on restricted duties but lost his job as a result of the pandemic in March 2020. He returned for 30 hours per week at the end of 2020, after committing this offence, but needed his licence for work. He claimed to have been very careful not to drive after having been to prison in 2010.

9 The magistrate proceeded immediately to sentence. His Honour did not give reasons for deciding on the sentence he imposed and made no reference to the respondent's prior convictions. Then his Honour heard the restricted licence application but properly refused it on the basis that grant of a restricted licence would be contrary to the public interest.

10 At the time of sentence the respondent was aged 63. His record of offending was central to the determination of sentence. This was the 11th time he had breached the laws which govern driving after the consumption of alcohol. It is illuminating to describe each occasion and the sentence imposed:

• on 5 September 1977, when he was 18, he drove with a reading of 0.08%. He was fined and disqualified;
• on 29 December 1978, when he was 20, he drove with a reading of 0.13%. He was fined and disqualified for two years;
• on 9 September 1984, when he was 25, he drove with a reading of 0.12%. He was given work orders and disqualified for 15 months;
• on 12 November 1989, when he was 31, he drove with a reading of 0.104%. He was ordered to perform 70 hours of community service and disqualified for 15 months;
• on 15 June 1992, when he was 33, he drove with a reading of 0.194%. He was sentenced to imprisonment for six weeks and disqualified for two years;
• on 28 October 1995, when he was 37, he drove with a reading of 0.192%. He was sentenced to imprisonment for three months and disqualified for four years;
• on 16 March 1996, when he was 37, he drove with a reading of 0.96% when he was disqualified from driving. He was sentenced to imprisonment for four months, two months of which was suspended, and disqualified for two years;
• on 5 September 2001, when he was 42, he drove with a reading of 0.187%. He was sentenced to imprisonment for three months and disqualified for three years;
• on 7 August 2009 and again on 23 August 2009 he drove with readings of 0.126% and 0.092% respectively. He was 50. On 4 April 2010 he was sentenced to a total term of imprisonment of four months, and disqualified for a total of two years and three months. He was made subject to a probation order for 12 months from his release with a condition that he "attend educational and other programs as directed by the court or a probation officer".

11 The principles to be applied in a motion to review a sentence imposed by a magistrate on the ground of manifest inadequacy were stated by Crawford J (as he then was) in Visser v Smart [1998] TASSC 151 and in a great many cases before then and since.

"An appellate court must not interfere with the exercise of the sentencing discretion except in a clear case of error. A magistrate is vested with a very wide discretion. Whittle v McIntyre [1967] Tas SR 263 (NC6). It is not sufficient to set aside a sentencing order just because a more severe sentence would have been imposed by the appellate court. In the circumstances of this case, the motion must fail unless the Court is satisfied that the sentence was manifestly wrong in its inadequacy, as to amount to a clear error in the sentencing process. Such principles have been stated by courts of this State on a great many occasions and come from the High Court in cases such as House v R (1936) 55 CLR 499, Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 and Harris v R [1954] HCA 51; (1954) 90 CLR 652. Notwithstanding the wide sentencing discretion in the court below, it is the duty of the appellate court to interfere where it is necessary to do so to avoid such manifest inadequacy in sentence or inconsistency in sentencing standards that the error is of such gravity that it is essential in the administration of justice that the error be corrected. It is not necessary to identify any particular error of law made. The error can be implicit in the excessive leniency in the sentence imposed."

12 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 is well known and understood, and is a matter of considerable social concern. Those who persistently breach the law show contempt for the law and pose a continuing threat to the safety of other members of the community. They, accordingly, must expect harsh punishment. It is worth repeating the remarks of Crawford CJ in McDonald v Nilsson [2009] TASSC 83, 54 MVR 32 at [14]- [15]:

"For many years, judges of this Court have emphasised their condemnation of persistent offending against the Act. In Barrett v Pearce A6/1986 at 4, Neasey J referred to the need for adequate consideration to the seriousness of the repetition factor, and the necessity of giving due weight to the principle of deterrence. In Briant v Bessell (1994) 74 A Crim R 204 at 208, Zeeman J referred to the clear legislative intent evinced by the Act to treat the driving of motor vehicles by persons affected by the consumption of intoxicating liquor as a grave social evil that was to be visited with penalties severe enough to act as a general deterrent and as a personal deterrent to the particular offender. His Honour expressed the view that the imposition of terms of imprisonment ought not be reserved for extraordinary cases. Likewise in Peck v Visser [1999] TASSC 38 at par8, Wright J confirmed the view of this Court over many years that persistent offenders under the Act merit severe punishment. At par17, his Honour referred, in the particular circumstances of the case with which he was dealing, to the apparent fact that the offender had not been deterred by increasingly severe penalties and described him as a persistent danger on the State's roads.

Statements of those kind have been made or repeated in many cases. See, for example, Boyd v Peters [1988] TASSC 3; [1988] Tas R 66 at 72; Devine v Maher [1990] TASRp 13; [1990] Tas R 147 at 149 - 150; Harriss v Walker (1996) 89 A Crim R 257 at 260."

13 With great respect to the learned magistrate the sentence imposed was erroneously lenient. The respondent is a persistent offender. Past sentences did not deter yet another breach of the law. By driving with any alcohol in his body he committed an offence under s 6(2) of the Act. The requirement that he not drive with any alcohol in his body arose by operation of s 6(4), because he had been convicted within a ten year period of three or more offences under the Act arising from at least three separate incidents, and at least one of those offences was committed on or after 12 December 1991. Even though more than ten years had passed since the last of those convictions was recorded, he had not provided to the Registrar of Motor Vehicles the certificate of a medical practitioner or a prescribed person certifying that he was not alcohol-dependent.

14 The explanation the respondent gave for forgetting about the no alcohol restriction carried no weight because the level of alcohol in his body was almost twice the prescribed concentration under s 6(1) in any event. He was not to be sentenced again for his past offending, but it indicated a particular need for punishment, specific deterrence and protection of the public. Once again, as he had done throughout his life, he displayed a disregard for the law.

15 Counsel for the respondent submitted that the sentence was "within range" when a number of particular factors personal to the respondent were taken into account. It had been more than ten years since his previous offence. The respondent was subjected to a road side breath test only because he was observed as having driven out of the hotel, not from anything apparent from the manner of his driving. The magistrate had material before him which entitled him to conclude that the distance the respondent intended to drive was very short. The magistrate also knew that the loss of the respondent's licence meant, when the grant of a restricted licence was unlikely, loss of his employment. The contention that all of those matters were relevant to sentence may be accepted but, in my view, the individual and collective weight they carried fell well short of justifying such a lenient sentence. In light of the respondent's persistent history of offending over decades, the passage of time since the previous offences was not a factor of much significance. He, more than most, would have appreciated the risk he posed by driving after having consumed alcohol and the likely consequences of breach. If the distance of driving was short he could easily have walked home. There was no circumstance which justified driving for any distance. It cannot be said that the level of alcohol in his body was low. In the absence of evidence, it ought not be accepted that the applicant's reaction time, proneness to error and capacity to meet unexpected or emergency situations were not impaired by the presence of alcohol in his body at the level disclosed by the breath analysis. Evidence of the effect on humans of the presence of alcohol at a particular level lies behind the determination of the statutory limit. The foreshadowed loss of his employment was the price to be paid for repeated offending under the legislation.

16 The relevant penalty provision in the Act is s 17. The respondent, as a subsequent offender with that concentration of alcohol in his body, was liable to a fine (at the relevant time) of a minimum of $688 and a maximum of $3440, or imprisonment for a maximum term of six months, or both a fine and imprisonment. In addition, the magistrate was required to disqualify the respondent from driving for at least six months up to a maximum of 24 months. The respondent was fined $692 and disqualified for nine months. In all the circumstances a sentence confined to a fine which was a few dollars above the minimum and disqualification not far above the minimum was an unjust and unreasonable sentencing response.

17 It is for the applicant to persuade the Court to not exercise the residual discretion to dismiss a prosecution appeal despite being satisfied of error in accordance with the principles outlined in R v Hernando [2002] NSWCCA 489, 136 A Crim R 451 and CMB v Attorney General for New South Wales (2015) 256 CLR 346. As to the application of those principles to motions to review the decision of a magistrate in this State see also Cannell v Hughes [2014] TASSC 41; Lyons v Bakes [2015] TASSC 37; Parker v Hall [2015] TASSC 60; Wilkie v Cohen [2016] TASSC 14, and Merrigan v Oakley [2016] TASSC 58; Parker v Shaw [2017] TASSC 25. Prosecution appeals serve to maintain proper sentencing standards. In my view, the maintenance of public confidence in the administration of criminal justice points strongly against exercise of the residual discretion in this case. The sentence is manifestly inadequate. It did little to reflect the requirement for denunciation, protection of the public and general deterrence in sentencing persons who repeatedly offend against the laws which control driving after consumption of alcohol.

18 The sentencing order imposed by the magistrate on 12 November 2021 will be quashed. The parties agree that I should re-sentence the respondent. I take into account all of the sentencing considerations referred to in these reasons. I may also take into account any matter which has occurred since the learned magistrate's sentence was imposed: Justices Act, s 110(2AC)(b). As events occurred the respondent did not in fact lose his employment. Because of his value as an employee special arrangements were made to have him, at his own expense, picked up each morning by a co-employee and driven to work. He catches public transport home at the end of the day. As a result his day is much longer and he is of less assistance to his elderly mother with whom he lives and who relies on him for support. I am now informed that the respondent was already home when apprehended, that the length of his journey was only about 75 metres, and did not require him to drive on anything but a suburban street. The comments I earlier made apply with similar force. It cannot be said that there was no risk, but his offence is not as serious as it might have been if he had driven for a longer distance on busier roads. Equally, he could very easily have walked.

19 In my view a sentence of imprisonment is required to mark the seriousness of this conduct, but I will wholly suspend it. To ensure adequate punishment and deterrence I will increase both the fine and the period of disqualification. I order that the sentencing orders made by the magistrate on 12 November 2021 are quashed. Count 1 on complaint 9582/2020 is dismissed. The respondent is convicted on count 2 on that complaint. On that count:

(a) the respondent is sentenced to imprisonment for three months. That term is wholly suspended for two years from today. The law imposes a condition on that order that while it is in force the respondent does not commit any offence punishable by imprisonment. If he breaches that condition, a court is required to activate that term unless it is unjust;

(b) the respondent is fined $1500. He has 28 days to pay that sum but he may enter into a repayment arrangement;

(c) he is disqualified from driving for 15 months from 12 November 2021, the date of commencement of the original period of disqualification. His driver licence is cancelled.