Harrison v Taws [2009] TASSC 33

Trueman v Tasmania [2009] TASSC 29, followed.

Judgment Number: [2009] TASSC 33

1 The applicant seeks to review a sentencing order of a magistrate made on 8 January 2009. The learned magistrate imposed one sentence for a number of matters, the sentence being a fine of $2,400 and disqualification from driving for 12 months.

2 The grounds of review are threefold: that the period of disqualification was manifestly excessive; that the learned magistrate erred by failing to take into consideration that the applicant had already suffered a period of disqualification from driving in respect of one of the matters for which he was sentenced; and that the learned magistrate erred in failing to provide sufficient reasons for the sentence.

The earlier imposition of community service orders

3 The applicant was charged with seven offences, three of which were failures to comply with the conditions of community service orders, contrary to the Sentencing Act 1997, s36(1). It is necessary to consider the circumstances in which the community service orders were made, because the learned magistrate re-sentenced the applicant for the offences in respect of which they were made.

4 I note that there appears to be a conflict between his record and a memorandum of sentence insofar as concerns the date upon which a sentence was imposed for a charge of driving while disqualified. In the following paragraph I state that the sentence was imposed on 19 May 1999 in accordance with the memorandum of sentence. If the memorandum is erroneous, it is immaterial to the outcome of this motion.

5 On 19 May 1999, a magistrate made community service orders that required the applicant to perform in total 49 hours of community service. For driving while disqualified, 28 hours were ordered, for a breach of bail, seven hours were ordered, for another breach of bail, seven hours were ordered, and for a failure to appear, seven hours were ordered, each cumulative to the others. In addition, on the charge of driving while disqualified, it was ordered that he be disqualified from driving for three months.

The offences for which the sentence under review was imposed

6 The seven offences were charged on three complaints. They were:

(1) On 1 May 2004 in Archer Street, Launceston, the applicant drove a motor vehicle while alcohol was present in his blood in a concentration greater than the prescribed concentration of 0.05 grams of alcohol in 100 millilitres of blood (namely 0.089 grams), contrary to the Road Safety (Alcohol and Drugs) Act 1970, s6(1).

(2) In the same circumstances as (1), while being a person who was not the holder of an Australian driver licence, foreign driver licence or international driving permit, he drove the motor vehicle on Archer Street while alcohol was present in his body, contrary to the Road Safety (Alcohol and Drugs) Act, s6(2).

(3) In the same circumstances as (1), he drove the motor vehicle when he was not the holder of a driver licence authorising him to do so, contrary to the Vehicle and Traffic Act 1999, s8(1).

(4) On 4 June 2004, he failed to comply with the conditions of the community service orders made on 19 May 1999 by failing to comply with the reasonable directions of a probation officer to attend, contrary to the Sentencing Act, s36(1).

(5) On 18 June 2004, he failed to comply with the conditions of those community service orders by failing to comply with the reasonable directions of a probation officer to attend for interview, contrary to s36(1).

(6) On 25 June 2004, he failed to comply with the conditions of those community service orders by failing to comply with the reasonable directions of a probation officer to attend for interview, contrary to s36(1).

(7) On 23 June 2004, without reasonable cause, he failed to appear in a Launceston court of petty sessions in contravention of the requirements of police bail granted to him on 1 May 2004, contrary to the Bail Act 1994, s5(4).

1">7 The learned magistrate dismissed charge (1), saying that it was an alternative. It is to be inferred that his Honour intended to do so in accordance with the principle stated in Wood v Major [1992] TASSC 28; (1992) 3 Tas R 249 about multiple charges concerning effectively the same conduct.

8 I presume that the applicant pleaded guilty to all charges. I have not been told otherwise.

9 What was explained to the learned magistrate did not adequately deal with many things concerning the offences. For example, it did not explain why it had taken five years from 1999 to 2004 for efforts to be made to require the applicant to comply with the community service orders, nor did it explain any of the circumstances of the offences for which the community service orders were made, the reason being that the files had been lost.

10 Concerning the charges in (1), (2) and (3) above, the learned magistrate was told by the prosecutor that at 9.15pm on Saturday, 1 May 2004, the applicant was pulled over in Archer Street by police who were conducting random breath tests. His breath test was positive and it was established that his driver's licence had expired. He was taken to Launceston Police Headquarters and a blood alcohol concentration of 0.089 was ascertained.

11 Concerning the charges in (4), (5) and (6) above, the prosecutor stated that the applicant had been subject to two earlier community service orders and he had breached both of them as well, with the result that they were both revoked. The second of them was revoked by a court on 25 May 2004. After his court appearance that day, he was instructed to contact a probation officer at 11.30am on 4 June 2004 to discuss the commencement of the community service under the orders made on 19 May 1999. The appointment time was written down for him and both and he his partner agreed that he would report as instructed. However, he failed to do so. At no time did he make contact with the probation officer with regard to his failure to do so. As a result, a formal letter was sent to him, requiring him to report at 9.30am on 18 June 2004. He failed to do so and made no contact with the probation officer. On 21 June 2004, a formal written document was hand delivered to his address. It required him to report for interview on 25 June 2004. The document was given to his partner. She said that he was in bed asleep at the time. Once again, he failed to attend on the probation officer and made no contact. As a result he was charged with the three offences of breaching a community service order. At the time of the hearing, almost 10 years after the making of the community service orders, he had performed none of the community service. The prosecutor referred to it as a blatant disregard for orders and said that the probation service had no confidence that the community service would ever be completed. The prosecutor submitted that the learned magistrate should revoke the orders and re-sentence the applicant for the offences for which they were imposed.

12 Concerning the charge in (7) above, the prosecutor said that the applicant was bailed by the police following being charged with the offences in (1), (2) and (3) above and it was a requirement of the bail that he appear in a Launceston court of petty sessions on 23 June 2004, which he failed to do.

13 The applicant was born on 30 September 1975 and was 33 years old at the time of the hearing. He had three pages of offences on his record, most of which were traffic matters. They included some cannabis offences in 1996, for which he was fined. His record did not include the offences for which, according to the prosecutor, two previous community service orders were made.

14 His counsel gave an explanation to the learned magistrate for the delay between the commission of all of the offences in 2004 and the hearing in January 2009. It was said that the offence in (7) occurred when through oversight, the applicant failed to appear as required by his bail. He then made arrangements with a police officer to hand himself in and was issued with a new hearing date in September 2004. He was bailed to the new date. He attended at the court that day but his case was not listed for hearing. He inquired at the registry and it was indicated to him that there was nothing for him to appear on that day and the matter would be left to the police to pursue "in the usual way". He heard nothing further until 2008, when he became aware that there was a warrant for his arrest in relation to the present matters. He spoke to the police, handed himself in and attended at court as required so that the matters could be resolved.

15 His counsel said that he was a changed man since 1999 and 2004. He had a steady relationship and three children. He was the sole financial provider for the family. Two other significant things had occurred in his life since the commission of the offences. He had obtained fulltime work as a subcontracted builder and was clearing about $400 each week. Up until 2004 he had not done anything productive with his life and in fact was using and abusing drugs, but he no longer used them. His counsel asserted that he had grown up and become a more responsible member of the community. It was claimed that he was ashamed of his previous actions and failures to comply. It was said that he was in a position to pay fines.

16 All that was said by the learned magistrate when sentencing the applicant was as follows:

"Well firstly it's perfectly clear that the orders of community service should be revoked and they are. And he will be re-sentenced on those original matters and I am grateful for those files, thank you Mrs Paul.

And I am going to apply an en globo penalty concerning those matters and the fresh matters before this Court today, and that is he is fined $2,400. He will pay the victim compensation levy of $20 together with any costs of $170.20. He has 28 days in which to pay. And he is disqualified from driving for 12 months effective immediately."

17 I think that the reference to "those files" was to a printout of court records and copies of the complaint or complaints that had charged the applicant with the offences in respect of which the 1999 community service orders were made. They are not part of the papers that are before me.

Sentencing for breaches of community service orders

18 It is provided by the Sentencing Act, s36(1)(a), that it is an offence to breach a condition of a community service order without reasonable excuse. The sentencing powers of the magistrate when dealing with the three breaches in this case were contained in subss(5) and (6). Under subs(5), there was a power to impose a fine, not exceeding 10 penalty units, or to impose a term of imprisonment, not exceeding three months, or to both fine and imprison within those respective constraints. Under subs(6), there was a power to do one of four other things in addition to, or instead of, exercising the powers under subs(5). They were to confirm the orders as originally made (subs(6)(a)), or to increase the number of hours of community service that the applicant was required to perform under the orders (subs(6)(b)), or to cancel the orders and deal with him for the 1999 offences in any manner in which the court could deal with him, had it just found him guilty of those offences (subs(6)(c)), or to cancel the orders and, if it considered appropriate, the order for 3 months' disqualification made in respect of the driving while disqualified charge, and deal with him for all of the 1999 offences in any manner in which the court could deal with him had it just found him guilty of them (subs(6)(d)).

19 If an original sentence was only a community service order, then upon breach, it will always be a sentencing option to proceed in accordance with s36(6)(c). However, if some other sentencing order was made originally and the offender has suffered its consequences, such as a period of disqualification from driving or a fine that has been paid, it may be inappropriate to proceed in accordance with s36(6)(c) or (d), for the impact of any sentence imposed, when added to any part of the original sentence that has been suffered, might be an excessive punishment for the offence in question. Alternatively, the court might lessen the severity of the sentence to take account of the punishment already suffered, in which case the sentence as recorded might have the appearance of being too lenient.

20 In this case, the learned magistrate acted under subs(6)(c) by cancelling the community service orders and by re-sentencing the applicant for the original offences in respect of which the community service orders were made, that is to say for driving while disqualified, two counts of breach of bail, and a failure to appear. The learned magistrate had power to order disqualification in respect of not only the 1999 offence of driving while disqualified, but also in respect of two of the offences committed on 1 May 2004, those against the Road Safety (Alcohol and Drugs) Act, s6(2), and the Vehicle and Traffic Act, s8(1), respectively. His Honour also had power to fine the applicant with respect to all of the offences for which he was being sentenced. How much of the disqualification from driving for 12 months was for the 1999 driving while disqualified and how much of the fine of $2,400 was for the four 1999 offences cannot be determined, for the learned magistrate gave no explanation.

21 Nevertheless, it was incumbent on the learned magistrate when effectively re-sentencing the applicant for the original offences to take into account that he had already suffered three months' disqualification for the 1999 offence of driving while disqualified. Justice required it to be taken into account by not disqualifying the applicant again for that offence, by deducting three months from what the learned magistrate considered would otherwise have been an appropriate period of disqualification, or by reducing the severity of the order in some other way.

22 It is not the applicant's case that the sentence was in any way manifestly excessive because of the fine of $2,400. What is his case is that the 12 month period of disqualification from driving was manifestly excessive.

23 In my view the question should be answered upon the basis that as the court determined in 1999 that three months was the appropriate period of disqualification for the offence of driving while disqualified, no additional period of disqualification should have been imposed in respect of that offence. I am particularly of that opinion because the prosecutor was unable to provide the learned magistrate with any information about the circumstances in which that offence was committed, the relevant file having been lost. However, counsel before me agreed that he was a disqualified driver at the time through the accumulation of demerit points.

24 The material question then becomes, was 12 months' disqualification a manifestly excessive period of disqualification for the drink-driving offence and the unlicensed driving offence that were committed in 2004?

25 The applicant had no record for offending under the Road Safety (Alcohol and Drugs) Act and for that reason, he was to be sentenced as a first offender under the Act. The range of penalties available for his offence under that Act were a minimum fine of $240 and a maximum fine of $1,200, and a minimum period of disqualification of three months and a maximum period of disqualification of 12 months. (I have disregarded the option of imprisonment for up to three months. It was not suggested otherwise.) Those penalties were prescribed by s17 for blood alcohol readings between 0.05 and less than 0.1.

26 There were no aggravating or mitigating factors. Based on the limited information provided to the learned magistrate, it was an unremarkable example of the offence involving a blood alcohol reading of .089.

27 He was an unlicensed driver in 2004 because his licence had expired. Relevant to the unlicensed driving charge were his three prior convictions for the offence, two in 1996 and one in 1997, for which fines were imposed, and his two prior convictions for driving while disqualified in 1998 and 1999. Of general relevance were a fair number of traffic offences, including several for speeding, since 1992.

28 It is my determination that for those two offences it may have been appropriate to order disqualification for six to nine months, but 12 months would have been manifestly excessive. Because there were no particularly aggravating features about the drink-driving charge, disqualification for that length of time was not warranted.

29 Because I consider that no additional period of disqualification should have been imposed for breach of the community service orders, I conclude that the disqualification for 12 months was in fact manifestly excessive and it should be quashed.

Was there was a failure to take into consideration the earlier period of disqualification?

30 Because of the lack of reasons, it is impossible to determine confidently whether the learned magistrate erred by failing to take into consideration that the applicant had already suffered a period of disqualification from driving in respect of one of the matters for which a community service order was imposed in 1999. However, because 12 months' disqualification was manifestly excessive, I conclude that it is likely that his Honour did err in that way.

Was there an error of law in failing to provide sufficient reasons?

31 The learned magistrate provided no reasons for the sentence, making it impossible to understand how he determined that there should be a period of disqualification for 12 months and a fine of $2,400. The applicant's counsel submitted that the failure to state reasons for 12 months' disqualification was an error of law. No authority in support of the submission was advanced.

32 By coincidence, at the time of the hearing the Court of Criminal Appeal was considering an argument that concerned the need for sentencing reasons, and it has since published its judgment in Trueman v Tasmania [2009] TASSC 29 in which all members of the Court were of the view that sentencing judges or magistrates are under a general obligation to give reasons for their sentences and that a failure to give reasons may amount to an appealable error. At par33 of my judgment, I made the point that nevertheless, sentencing comments should not treated as if they are reasons for judgment and I mentioned that often they are justifiably brief, particularly in the case of magistrates who sentence a great number of offenders, often for offences that are committed in such a common way that many are effectively indistinguishable from others. By that I meant that if it is a common and indistinguishable case there is no need to explain at length why what might be regarded as a typical sentence is being imposed. In Cross v Police [2001] SASC 47 at par33, Olsson J referred to a case of that kind as involving "the imposition of a routine penalty for a routine offence".

33 I also made the point in Trueman that merely stating the sentence without explaining how it has been determined may not amount to an error, particularly because sentences are often determined by way of instinctive or intuitive assessment after consideration of the relevant facts and factors. I add to that a comment that if there is no issue concerning what are the relevant facts and factors, it may not be an error to omit to state all or any of them.

34 I agree with the principle expressed in the following statement of Malcolm CJ in Nevermann (1989) 43 A Crim R 347 at 350:

"It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a court of petty sessions. The imposition of such a requirement in every case would cause delays in the administration of justice. The reasons may be stated shortly, without being developed in any detail."

35 Once the learned magistrate decided to cancel the community service orders and to deal with the applicant for the 1999 offences in the manner in which he could deal with him had he just found him guilty of those offences, it was incumbent upon the learned magistrate to have regard to the fact that three months' disqualification imposed originally had been suffered by the applicant. It needed to be taken into account, as I have explained, when re-sentencing him for those offences. It was an issue that needed to be addressed by the learned magistrate and when his Honour announced that it was perfectly clear that the community service orders should be revoked and the applicant would be re-sentenced for the original matters, he should have mentioned the earlier disqualification and explained how it affected the sentence he was imposing.

36 In all the circumstances of this case I have come to the conclusion that there was an error in law by failing to give sufficient reasons. A principal purpose of the requirement for adequate reasons is to enable an appellate court to perform its function. The absence of reasons in this case has made that task very difficult.

37 The motion will be upheld. There will be an order quashing the order that the applicant be disqualified from driving for 12 months from 8 January 2009, and in its place it will be ordered that the applicant is disqualified from driving for a period of eight months from 8 January 2009, the disqualification resulting from the drink-driving and the unlicensed driving charges.