JL v CLARK [2025] TASSC 58

1. At around 6.38 am on 19 December 2023, four cyclists were riding south on the West Tamar Highway at Riverside. The roadway was dual lane and the cyclists were riding in single file in the left lane, very close to the left side of the road. The applicant was driving a small sedan in the same direction at an estimated speed of about 70 kilometres per hour. He was on his way to work and a work colleague was in the front passenger seat. As the applicant passed the cyclists he drove extremely close to them, within about 30 centimetres, and then swerved across, close in front of the lead rider. The passenger had his arm out of the window and yelled at the cyclists to "get off the road." The cyclists were frightened by what happened and complained to the police. One of the cyclists captured the last moment of the incident on a front mounted video camera.
2. An almost identical incident occurred about a month later at around 6.30 am on 25 January 2024. Four different cyclists were riding in single file on the same stretch of road, on or very close to the continuous white line marking the left edge of the road. The applicant was driving the same vehicle in the same direction, with the same passenger. Again, the applicant drove so close to the cyclists that he almost struck all of them, forcing them on to the sealed verge, and then swerved in front of them, crossing the line marking the edge of the road. Again, his passenger abused the cyclists as the car passed. The cyclists were so concerned about what had happened that they stopped riding and were very shaken. Once again, the last moment of the incident was captured by one of the cyclists on a video camera and the police were notified. On neither occasion was there any other traffic on the dual carriageway near the applicant's vehicle which could possibly have affected the way in which he had driven past the cyclists. His actions were deliberate.
3. The applicant was interviewed at his workplace by police officers later in the morning of the second incident. He admitted that he was the driver. He falsely claimed that on the first occasion he did not have room to manoeuvre around the cyclists, but ultimately admitted that his driving was deliberate and reckless. He told the police that he had a "problem with cyclists."

1. The applicant pleaded guilty and had no prior convictions. His counsel told the magistrate that the applicant now realised the seriousness of what he had done and was sorry for it. He had been the holder of a P1 provisional licence. He had a supportive family and a good upbringing. He was employed full time as a welder. He lived in a relatively remote rural area more than 30 kilometres from Launceston, so the loss of his driver licence was a significant punishment. He was able to obtain lifts to work, and so would not lose his employment, but his inability to drive had a real personal impact and greatly restricted his freedom of movement.

1. I recently restated the principles to be applied on an appeal against sentence on this ground in Watson v Woodgate [2025] TASSC 26 and I state them again now. To succeed on a ground that a sentence is manifestly excessive it is not enough to establish that the sentence may be regarded by some as too harsh. An appeal court may not substitute its own opinion for that of the magistrate merely because it may have exercised the sentencing discretion differently: Lowndes v The Queen [1999] HCA 29, 195 CLR 665 at [15]. This Court must be persuaded of error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing court is, on the facts, unreasonable or plainly unjust, such that the appellate court may infer that in some way there has been a failure to properly exercise the sentencing discretion. Manifest excess or inadequacy must be plainly apparent. An applicant must show that the sentence is so obviously excessive that it is outside the proper limits of the broad sentencing discretion of a magistrate: Allen v Kerr [2009] TASSC 10, 19 Tas R 132, TGW v Tasmania [2017] TASCCA 10, 26 Tas R 106 at [33].
2. The applicant's submission is that a wholly suspended detention order and disqualification from driving for two years was so harsh as to be outside the proper limits of the learned magistrate's sentencing discretion. I do not agree. If the principles just stated are applied, this Court is unable to interfere with the sentence imposed by the learned magistrate. The sentence was not manifestly excessive.
3. For the last 25 years or so the Court of Criminal Appeal in this State has recognised a general increase in the severity of sentences for serious driving offences: refer to the analysis by Porter AJ, with whom Brett and Geason JJ agreed, in Banks v Tasmania [2019] TASCCA 1; 31 Tas R 342. Many of the cases concern dangerous driving causing death or serious injury, but severe punishment for dangerous driving or reckless driving does not necessarily depend on the existence of actual consequences: Wise v The Queen [1965] TASStRp 14; [1965] Tas SR 196 per Crisp J at 201, cited with approval in Banks at [37]. General deterrence, denunciation and protection of the public are powerful sentencing factors. Driving unsafely is inherently dangerous. Death and serious injury resulting from unsafe driving has terrible physical and emotional effects on those directly involved, and causes trauma to family and friends, witnesses, emergency services personnel and hospital staff.
4. Until the commencement of the Criminal Code Amendment (Dangerous Driving) Act 2017 on 19 September 2017, dangerous driving was a summary offence, also contained in the Traffic Act 1925, s 32(1) along with reckless driving. The result of the amendment Act was that dangerous driving became an indictable offence under the Criminal Code, to be dealt with in the Supreme Court. Reckless driving remained in the Traffic Act, s 32, as a summary offence. According to the Minister's second reading speech, the change was intended to reflect the seriousness of dangerous driving, and the risk that it presents to the community, while at the same time preserving a summary offence.
5. In the course of an exchange between the magistrate and counsel for the applicant it was asserted that the applicant was charged with reckless driving, not dangerous driving. The suggested implication from that submission was that reckless driving was a less serious offence. In argument before me, counsel for the respondent indicated that the policy of the prosecution authorities is to charge more serious cases as dangerous driving rather than the summary offence. However, it is a mistake to regard reckless driving as necessarily less serious than dangerous driving. If the facts are otherwise the same, reckless driving is a more serious offence than dangerous driving. That is so because reckless driving, unlike dangerous driving which involves no mental element, imports a reckless state of mind: Wise at 201. As to dangerous driving, see King v The Queen [2012] HCA 24; (2012) 245 CLR 588 per French CJ, Crennan and Kiefel JJ at [32]-[38]. Reckless driving involves a "wanton disregard of the safety of others which may be characterised as reckless": per Crisp J in Wise at 201. Each case depends very much on its own circumstances. As Crawford J pointed out in Wise, at 207, "there may be cases of driving recklessly where there has been little danger and there may be cases of driving dangerously where there has been extreme danger".
6. The sentence imposed by the learned magistrate may be assessed against the statutory penalty provisions. The Traffic Act, s 32(1), provides that a person who drives a motor vehicle on a public street recklessly, having regard to all the circumstances of the case, including the nature, condition, and use of the public street and the amount of traffic that actually is at the time, or that might reasonably be expected to be on the public street, is guilty of reckless driving. Even as a first offender for both offences, the applicant was liable on each count to a penalty not exceeding 20 penalty units, or to imprisonment for a term not exceeding two years. For a youth, the reference to imprisonment is taken to be a reference to detention: Youth Justice Act, s 46(1). A court which convicts a person of that offence may also order that the offender be disqualified from driving for a specified period or until further order: Sentencing Act, s 55(2)(a).
7. The magistrate was correct to regard these as serious cases of reckless driving. Both involved great potential danger to members of the public. The risk of death or serious injury to one or more of the eight cyclists involved was obvious. Indeed, the applicant drove intending to use his vehicle to frighten or intimidate so as to give effect to his apparent displeasure that they were on the road. The applicant, having driven in such a manner once on 19 December 2023, and despite having more than a month to reflect on whether it was something he should do, drove in the same way again on 25 January 2024.
8. In his sentencing remarks the magistrate, after describing the applicant's driving, said:

"That gave rise to a very serious risk. A slight deviation by you from your intended path or a slight deviation by a rider from the path anticipated by you could have been disastrous. Cyclists are entitled to use roads without being put at risk in the way that you put them at risk on these occasions. Cyclists are vulnerable road users. They do not have vehicle structure to protect them. There is a very large weight differential between them and vehicles and a very large speed differential, which means that a risk of collisions carried with it a risk of serious injury or death.

... Indeed the risk in this case, in my view, is so obvious that it must be concluded you averted to the risk and decided to take it anyway.

The degree of recklessness on your part is high. In these circumstances general deterrence is important. Specific deterrence, that is personal deterrence for you, is also important."

1. I respectfully agree with his Honour's remarks. His Honour then continued:

"... Your youth, you're still 17 years old, your otherwise good character including no prior convictions, your employment, your personal circumstances generally, your plea of guilty which indicates remorse and a willingness to cooperate with the administration of justice are all mitigating.

But in my view, the law treats all of them as subordinate in these circumstances, to the need to discourage other people from doing this, and to discourage you from doing it. In my view, a custodial sentence is the only sentence that can adequately achieve the required level of deterrence from such conduct."

1. Many of the submissions made by counsel for the applicant focussed on whether the learned magistrate correctly applied the principles to be applied when sentencing youthful offenders. Detailed reference was made to the objectives of the Youth Justice Act stated in s 4 and the principles of youth justice stated in s 5. The submission goes so far as to assert that the magistrate "determined that the law made all mitigating factors and all sentencing objectives subordinate to general and personal deterrence" and that the statement was "incorrect at law." It was also submitted that because there are restrictions on reporting proceedings under the Youth Justice Act that general deterrence is "not a factor which is relevant". There was a further submission that the magistrate failed to consider all other available sentencing options before imposing a sentence of detention.
2. None of the claimed errors are reflected in a ground of appeal that the learned magistrate made a specific error when sentencing. A ground that a sentence is manifestly excessive is an assertion that the result of the exercise of the sentencing discretion is so obviously excessive that error is implicit. The focus is on the sentence, not the reasons for it. In Dinsdale v The Queen [2000] HCA 54; 202 CLR 321, Gleeson CJ and Hayne J said at [6]:

"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case."

1. See also Hili v The Queen [2010] HCA 45; 242 CLR 520 at [59].
2. An applicant is to be held to the grounds in the notice to review unless an amendment is allowed: Justices Act 1959, s 108. No amendment was applied for but counsel for the respondent made written and oral submissions in response to the applicant's various contentions. In fairness I will address the arguments put by the applicant. In my respectful view, the magistrate did not make any of the errors claimed by the applicant.
3. The magistrate was sitting in the Court of Petty Sessions, not in the Youth Justice Division. Strictly speaking, the objectives of the Youth Justice Act and the principles of youth justice stated in that Act did not apply. However, there is nothing to suggest that the magistrate did not apply them. The objective and principles are largely restatements of the long established common law to be applied when sentencing young offenders: TAP v Tasmania [2014] TASCCA 5 per Porter J, with whom Blow CJ and Wood J agreed, at [23]-[29]. Young offenders, being immature, are more prone to ill-considered or rash decisions: R v McGaffin [2010] SASCFC 22, 206 A Crim R 188 at 210, [69]. They may lack the degree of insight, judgment and self-control that is possessed by an adult and may not fully appreciate the nature, seriousness and consequences of their criminal conduct: Director of Public Prosecutions v TY (No 3) [2007] VSC 489, 18 VR 241 at 242, [43]. There is greater potential for young offenders to be redeemed and rehabilitated, and so the rehabilitation and reform of young offenders is one of the principal objectives of the criminal law. Protection of the community ultimately is best served by the rehabilitation of an offender: DPP v Milson [2019] VSCA 55.
4. As the seriousness of the offending increases, the significance of youth and the potential rehabilitation of the offender may diminish: DPP v SJK; DPP v GAS [2002] VSCA 131 per Phillips, CJ, Chernov and Vincent, JJA at [66]. Thus, where deterrence, denunciation, protection of the community and appropriate punishment require more prominence, the weight to be attached to youth will correspondingly reduce: Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 per Redlich JA at [44]. That is particularly so when the youth has behaved as an adult. Reckless driving, as with all offences under the Road Safety (Alcohol and Drugs) Act 1970, the Traffic Act 1925 and the Vehicle and Traffic Act 1999, is a prescribed offence, and thus removed from the jurisdiction of the Youth Justice Division for a youth aged 17. That is because a young driver assumes the responsibility, like every other driver, of driving safely. Moreover, to the extent that young persons may be more prone to ill-considered or rash decisions when driving, the need for general deterrence directed at others in the same cohort is emphasised rather than reduced. The learned magistrate said nothing to indicate that he misunderstood or did not apply these principles. He correctly recognised the strong need for general deterrence and protection of the public. He indicated his view that other sentencing factors were, for this offence and this offender, subordinate. He did not say that other factors were irrelevant.
5. The Youth Justice Act, s 31, restricts publication of any information about proceedings in the Court if the information identifies, or may lead to the identification, of a youth who is the subject of the proceedings. That restriction also applies to other courts by operation of s 108. The submission that this restriction removes general deterrence as a sentencing factor is misconceived. The only restriction is on identification of the offender, not the proceedings themselves. There is no restriction on publication of the circumstances of the offence, the age of the offender and the sentence which was imposed. There are many ways for others to find out what may happen to them if they offend in this way.
6. The applicant complained that the magistrate did not comply with the Youth Justice Act, s 80. That section provides that "the Court" may only make a detention order if it has considered all other available sentences and is satisfied that no other sentence is appropriate in the circumstances. It should again be pointed out that the reference to "the Court" in s 80, and elsewhere in the Youth Justice Act, means the Magistrates Court (Youth Justice Division). His Honour was not sitting in that court. Again, however, s 80 is a restatement of the law which should be applied when sentencing youthful offenders. The applicant referred to my statements in Garcie v Lusted [2014] TASSC 27 at [13] that, for a young person, a sentence of actual imprisonment should be a sentence of last resort and only be imposed where alternative punishment is inappropriate. The magistrate's sentencing comments make clear that his Honour did consider alternative sentencing options. He had a report which indicated that the applicant was not suitable for community service. His Honour concluded that "a custodial sentence is the only sentence that can adequately achieve the required level of deterrence for such conduct". His Honour did not order actual detention. He allowed for the applicant's rehabilitation by wholly suspending the term. As his Honour explained when sentencing, the order would be subject to all of the conditions imposed by the Youth Justice Act, s 90(3), including that while the order is in force the applicant will be subject to the supervision of an assigned youth justice worker who may direct attendance at educational, personal, health and other programs.
7. As was explained earlier, disqualification from driving for two years was, for the applicant, a significant punishment because of where he lived. It could not be said, however, that it was beyond the proper exercise of the magistrate's discretion.
8. The first ground of the motion is not made out.

1. The second ground of appeal asserts that the magistrate erred by imposing a suspended detention order without first ordering and considering a pre-sentence report directed to that question. The magistrate made no such error.
2. The Youth Justice Act, s 48(2), provides that "the Court" must not make a probation order, order community service or make a detention order unless it has first obtained a pre-sentence report. Under s 33, the Court may order the Secretary to provide to it a pre-sentence report concerning the youth, and may request that the report contain specified information, assessments and reports relating to the youth or the youth's family or other matters. The Secretary means the Secretary of the Department of Justice.
3. The fact that the magistrate was sitting as the Court of Petty Sessions and not the Magistrates Court (Youth Justice Division) is sufficient to dispose of this ground. The "Court" referred to in s 48(2) was the Youth Justice Division. His Honour was not sitting as that court and was not bound by s 48(2). In any event, a failure to comply with a procedural requirement of the Youth Justice Act did not invalidate the order or any sentence imposed: s 108A(1)(b). Moreover, his Honour could have, in the exercise of discretion, imposed sentence under the Sentencing Act. It was within his Honour's power to impose a sentence of actual imprisonment without the need for any report. Instead, his Honour decided, as he was empowered to do by the Youth Justice Act, s 107(1), to exercise a sentencing power of the Youth Justice Division.
4. There is no definition of pre-sentence report in the Youth Justice Act. Both counsel recognised the distinction in practice between a full pre-sentence report and what is known as an assessment report. The latter is a shorter report, usually focussed on the suitability of a person for community service or supervision by a youth justice worker or a probation officer. However, the distinction is not one which is recognised in any legislation. The magistrate did in fact order a pre-sentence report, but from Community Corrections and not the Youth Justice Service. Both fall within the operation of the Department of Justice. The sentencing proceedings commenced on 27 June 2024. After hearing the prosecution facts and a plea in mitigation the magistrate indicated that he wanted to take time for reflection, and that he was "going to have [the applicant] assessed for a community correction order as well". A community correction order was a sentencing option open to his Honour under the Sentencing Act, not the Youth Justice Act. The report his Honour received prior to sentence was not a full pre-sentence report, but a shorter assessment report. It indicated that the applicant was not suitable for community service because where he lived and his employment obligations made the performance of community service too difficult. However, the report also made clear that the applicant was not suitable for a "community based supervision condition" due to an "absence of criminogenic risks/needs able to be targeted by Community Corrections". The applicant now complains that the report was not directed to the making of a suspended detention order. He submits that a more detailed report might have been helpful and provided more expansive information about the applicant. However, in my view, there was not likely to have been any information not otherwise available to the magistrate which was relevant to sentence which might have been included in such a report. The applicant was represented by experienced counsel. His Honour knew, from the matters put in mitigation and from the assessment report, the applicant's age, that he had no prior convictions, that he held stable employment and had good family support, and was remorseful. Without wishing to understate the importance of recommendations made by those authorities, particularly for a youth, it was for the magistrate, not Community Corrections or the Youth Justice Service, to decide on the appropriate sentence.
5. This ground of appeal is not made out.

1. The sentence was imposed on 8 August 2024. The Justices Act, s 107 requires that a notice to review must be filed and served within 21 days. This notice was not filed until 25 September 2024, well outside the time limit. I have no evidence of when it was served but no issue is taken with that by the respondent. The delay in filing has been explained. It was not contributed to by the applicant. It arose because the legal practitioner then advising the applicant had a busy workload. There was no prejudice to the respondent.

1. The extension of time sought by the applicant should be allowed, but neither ground of the notice to review has been made out. I order:

(a) the time limited for filing the notice to review is extended until 25 September 2024;

(b) the notice to review is dismissed.