28 days' imprisonment wholly suspended upon condition he commit no offence under the Act for 2 years.

Unlicensed driver, unregistered vehicle, uninsured vehicle.

The matters for which the applicant was before the Court on 4 May 1998, and the penalties imposed were as follows.

Licence disqualification 5 years - cumulative with any current disqualification.

S6(2) driving with alcohol in his body without authority - .303.

S6(2) driving with alcohol in his body without authority - .165.

Breach of bail, condition of 29/3/98 that not drive.

In brief, the circumstances of the offences which were before the learned magistrate were:

7 December 1997 - at about 12.45am, the applicant's vehicle ran off the Huon Highway near Dover into some trees. The police attended the accident. The applicant submitted to a blood test. His blood alcohol content was .303.

24 March 1998 - at about 1.05am, a police mobile patrol observed the applicant driving a motor vehicle at Glenorchy. No particular incident or occurrence was referred to as having attracted the attention of the police. The applicant submitted to a breath analysis. The blood alcohol reading was .165.

16 April 1998 - at about 3.45am, a mobile police patrol observed the applicant driving a vehicle at Kingston. No particular incident or occurrence was referred to as having attracted the attention of the police. The applicant submitted to a breath analysis. The blood alcohol reading was .192.

The information put before the learned magistrate by the applicant's counsel was that the applicant had permanent employment which would be available to him after he served any penalty which was imposed. The applicant had been employed on a farm at Grove for ten to fifteen years. He resided in a picker's hut on the property. He lived alone and drank for companionship. He recognised that he had a drink problem and was endeavouring to deal with it. He had the support of his mother and siblings who resided in the vicinity.

The learned magistrate was confronted with an offender who had shown persistent disregard for the law and who had flouted a disqualification order. Although the applicant had not previously served a term of imprisonment, the learned magistrate, quite properly imposed terms of imprisonment totalling thirteen and a half months.

The applicant has not pursued his appeal against the sentences of imprisonment and has confined his appeal to his disqualification from holding or obtaining a driver's licence for a total of fourteen years cumulative on his disqualification for two and a half years, from 15 January 1998.

Pursuant to the Road Safety (Alcohol and Drugs) Act, s17, the learned magistrate was bound to disqualify the applicant from holding or obtaining a licence. Minimum periods of disqualification are mandatory in relation to some of the applicant's offences. The learned magistrate had a discretion as to whether the disqualifications were cumulative or concurrent, the Traffic Act 1925, s35(1). The power to make an order of disqualification until further order of the Court, conferred by the Justices Act, s92B (now the Sentencing Act, s55), does not extend to disqualification orders made pursuant to the Road Safety (Alcohol and Drugs) Act.

Counsel for the applicant submits that an effective disqualification of sixteen and a half years was manifestly excessive and in conflict with the totality principle of sentencing. In her text, Sentencing in Tasmania (1991) at 191 - 193, Professor Warner sets out a convenient distillation of the applicable law. The portion of the text which I adopt follows:

"9.314 It has long been recognised in Tasmania that when sentences are being imposed for multiple offences the sentencer is required to have regard to the overall or total effect of the sentence. The dangers of an excessive aggregate term of imprisonment from the imposition of cumulative sentences have been emphasised. This principle has come to be known as the totality principle and Thomas' statement of it has often been repeated. In Thomas' words:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'.

Applying this principle sentences, which are proper and not excessive when considered alone, have when considered in total been held to be manifestly excessive. A penalty which is 'too crushing' is to be avoided. The totality principle has been recognised by the High Court. In Mill the above passage from Thomas was cited and in Griffiths Gaudron and McHugh JJ said:

It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender: Smith (1983) 32 SASR 219, at pp 220, 221, 222; Boyle and Allen, Sentencing Law and Practice, (1985), p 282; Hall_, Sentencing in New Zealand_, (1987), p 195. This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently.

9.315 The principle applies not merely to an offender being sentenced to more than one offence on the same indictment or complaint or on different indictments or complaints, but also to the situation where an offender is being sentenced following the breach of the terms of conditional release. It follows that if an offender commits an offence while on parole, any sentence for that offence must take into account the unexpired balance of the parole period which the offender is required to serve. In Burke it was held that remissions from the unexpired balance of the parole period could be taken into account in calculating the total. The totality principle also applies where the offender is serving a term of imprisonment imposed on a previous occasion. A pre-trial period of custody too is relevant to the aggregate."

The decision of Everett J in Nation v Carrick & Ors A7/1983 is an illustration of the application of the totality principle to cumulative licence disqualifications. In that case, the offender pleaded guilty to three separate charges under the Road Safety (Alcohol and Drugs) Act and received cumulative licence disqualifications of four years on each charge, a total of twelve years. Everett J said at 8:

"The correct approach by a sentencing authority is to pay regard to the maximum penalty which Parliament has prescribed for an offence under s 6(1) - in this case, disqualification for a period not exceeding six years - and determine a fair penalty in the light of all the circumstances, not disregarding any mitigating factors reasonably open. On this test, I consider that disqualification for a total period of 12 years was manifestly excessive.

It is appropriate to recall the remarks of judges of the Court of Criminal Appeal of this State in Wise v The Queen (1965) Tas SR 196, in which the appellant had been convicted upon an indictment containing six counts of driving both at a speed and in a manner dangerous to the public contrary to s32(1) of the Traffic Act 1925 in respect of three separate occasions. He was sentenced to imprisonment for a total of 21 months. The President of the Court, Crisp J, said at p 204:-

'... there remains the question of the additional penalty of fifteen years' suspension under s36 of the Traffic Act. ... As the argument as to excessive punishment tended to concentrate on the question of imprisonment, this matter tended to be lost sight of. For myself I think a period of fifteen years is in the circumstances too long. I agree that the circumstances of these offences called for a punishment strongly deterrent in its effect. That element is present in the aggregate sentence of twenty-one months' imprisonment. To add to that a penalty of fifteen years deprivation of a licence to drive, savours to me excessively of retribution and is likely I think to be unduly restrictive of the offender's future rehabilitation and possible reception into society. While it is right that licences should be taken away, it can in working men be a severe penalty, particularly in those cases where a man's livelihood may depend on it. This should not deter the court from imposing an adequate penalty, and I have no doubt that the learned Chief Justice was impressed as I have been by the evidence of the obvious immaturity of outlook by the appellant in relation to his social responsibilities as a driver of motor vehicles but five years added to his present age should be sufficient to induce a different outlook. If it doesn't he will only have himself to blame the next time he comes before a court. The deterrent aspect being taken care of by the sentence of imprisonment, I think the element of possible rehabilitation should be considered and in the circumstances I would reduce the period of deprivation of a licence from fifteen years to five.'

'However when the appellant will have served these sentences there will remain over thirteen years of suspension of his driver's licence. In my view, this, together with the imprisonment, is more than necessary as a deterrent. A lengthy suspension of a driver's licence is in itself a grave punishment. But it closes to the appellant all occupations where driving whether whole time or part time, is necessary. The suspension ordered would prevent him from lawfully driving until he was thirty-five years of age. When he leaves prison, he should not be unnecessarily limited in attempts to rehabilitate himself and I feel that a suspension of fifteen years is unnecessary. I agree that this period should be reduced to five years.'

And Mr Justice Neasey, the other member of the Court, said at p 210:-

'... a suspension of licence of fifteen years was excessive, when considered together with the gaol sentences imposed, to the point that this court is justified in interfering with it. Like my brother Crisp I am impressed by the brake upon rehabilitation which deprivation of licence for that period, following upon completion of these cumulative prison sentences would impose.'

On a long-range view of the rehabilitative prospects of the appellant as a useful member of society, despite the fact that he has been a persistent offender since reaching a reasonably high level of secondary education, a degree of similarity between the case of Wise and the instant case can be discerned. There is also some glimmer of a changed attitude for the better, in that the appellant had not been convicted of any offence, other than a complaint for not wearing a seat belt, for a period of nearly two years prior to the date on which the orders under appeal were made.

The established principles relating to punishment generally and deterrence, directed both to an individual and the community at large, must always be full recognised and applied by courts, but not to the exclusion of other factors which, by settled practice, also should be taken into account. The orders of a court can become unnecessarily punitive, and, if so, can be calculated to be counter-productive. To view the total period of deprivation of a driver's licence for 12 years as manifestly excessive in this case, as I do, is not to show undeserved mercy; rather it is to reconcile the interests of the public, the intention of Parliament and the possibility of rehabilitation so far as the appellant is concerned. I therefore quash the sentences in respect of disqualification imposed by the magistrate and substitute in each case a period of 18 months for the period of four years, each such period to be cumulative on the other. In the result, the appellant is disqualified for holding or obtaining a driver's licence for a total period of 4½ years from the 2nd December 1982."

Whilst the primary consideration which militates against long periods of disqualification is that they discourage rehabilitation, concern has also been expressed that they increase the prospect of non-compliance by offenders, R v O'Brien A43/1987, Wright J at 8.

The Court's power to disqualify drivers is an important road safety tool. The threat of a licence disqualification is a major deterrent to the great majority of drivers and actual disqualifications frequently prompt drivers to desist from unsafe driving. Licence disqualifications can protect the community by keeping potentially dangerous drivers off the road. Some protection is also obtained in relation to those who drive regardless of their disqualification in that police officers and others who are aware of the situation can take steps to bring about compliance and the imposition of further penalties. In a sense, it does not make a lot of difference whether recidivists who receive disqualification are disqualified for six years or sixteen years. They are likely to re-offend early in the period of their disqualification and be saddled with the consequences of their behaviour. As to others, it is important that the length of their disqualification should not be so great as to offer little or no hope. Where an offender has not exhausted the Court's hopes for his or her reform, where possible, the period of disqualification should encourage reform.

Whilst the applicant is undoubtedly a bad offender, it cannot be said of him that there is no prospect of him reforming. He has been sentenced to thirteen and a half months' imprisonment for his offences. Imprisonment can have a most salutary effect. He has not previously served any time in prison for drink driving offences. The shock of imprisonment may prompt him to revise his lifestyle and abstain from drink driving. That possibility should be encouraged. The hope of regaining a driver's licence in sixteen years' time offers little inducement for reform. Against this background, I consider that a total period of disqualification of sixteen and a half years from 15 January 1998 is manifestly excessive, and that the appropriate period of disqualification is a total of six years from 4 May 1998. I will hear counsel on the terms of the order I should make to give effect to this decision.