TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Driving offences - Circumstances of offender - Whether sentence manifestly excessive.

Everett v R [1994] HCA 49; (1994) 181 CLR 295; R v Clarke [1996] VICSC 30; [1996] 2 VR 520; Attorney-General (Tas) v McDonald [2002] TASSC 120; (2002) 11 Tas R 221, considered.

Judgment Number: [2008] TASSC 47

1 I have had the advantage of reading, in draft form, the reasons for judgment of Tennent J. I agree with both her reasoning and conclusion. I would dismiss the appeal.

2 On 12 June 2007, the respondent pleaded guilty to three charges before a magistrate in Launceston. These charges were, driving a motor vehicle while exceeding the prescribed alcohol limit, contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1), driving under the influence of intoxicating liquor, contrary to the Act, s4, and contravening a condition of a notice contrary to the Bail Act 1994, s5(4).

3 The offences were alleged to have occurred the day before. The respondent was intercepted travelling north on the Midland Highway about 3 kilometres south of Campbell Town. Police saw the respondent's vehicle veer from the left shoulder of the roadway, across the centre line, and into the southbound lane. The vehicle was then seen to veer back and forth across the roadway. The police activated the lights on their vehicle and intercepted the respondent about 1 kilometre south of Campbell Town. When spoken to by police, the respondent smelt strongly of alcohol, was unsteady on his feet, and had slurred speech. His eyes were bloodshot and glassy. At the time the respondent was intercepted, the road was dry, the weather was fine, and the traffic was heavy. At the time of his interception, the respondent was subject to a police bail notice which required him to appear before the magistrates court in Hobart at 9:45am on 12 June 2007.

4 The respondent was taken to the Launceston police station and breathalysed, returning a reading of .20. The respondent told police he intended to drive to Devonport to board the Spirit of Tasmania. He was on his way to Queensland and had no return booking. At the time of the offending, the respondent had one relevant prior conviction. On 8 December 2006, he was convicted of an offence under the Act. On that occasion, the respondent had a blood alcohol level of .119.

5 The respondent's counsel made a plea in mitigation. The respondent was 41 years old and unemployed. Until recently he had held down employment for a number of years. He left that employment with the intention of travelling to Queensland to see his mother who had major heart problems and whom he had not seen for 6½ years. During the course of the plea, the learned magistrate interrupted counsel with a query about whether it was mere coincidence that the respondent was leaving the State the day before he was due to appear in court. Counsel provided an explanation to the effect that the accused had mistaken his court date. She then went on to describe the respondent as having had a very difficult 12 months as a result of a break-up with his partner, his having been declared bankrupt, and his having been assaulted by two sons of his former partner which resulted in his being hospitalised. She went on to describe what happened after he left hospital. This involved his having a friend move in with him to share the rent and that friend then stealing personal documents which allowed him to open a bank account and get a driver's licence in the respondent's name. Counsel pointed out to the learned magistrate that, prior to the 2006 drink-driving incident, the respondent had driven for approximately 28 years without incident. She also referred to the fact that the respondent had pleaded guilty one day after the offending, indicating his remorse.

6 The learned magistrate queried with the prosecutor whether, notwithstanding the plea of guilty to the Bail Act matter, there were sufficient facts to support the charge. The matter was adjourned to enable the prosecutor to take further instructions about that matter. The respondent was remanded in custody thereafter for a period of six days until the matter returned to court. As a result of discussions on that next date, and notwithstanding that the plea of guilty remained, the learned magistrate dismissed the charge. He then proceeded to sentence the respondent. In doing so, he said the following:

"You appear charged with driving under the influence of liquor on the Midlands Highway. That, of course, is a matter of concern. The Midlands Highway is the major arterial road in Tasmania connecting the two largest population centres of Hobart and Launceston. In many areas it is a roadway which is single lane in both directions, typically it possess only overtaking lanes along various stages of the road, but, well virtually nowhere on the road except when one is entering either Launceston or Hobart is there any division between the two opposing lanes. So that it makes it, to that degree, somewhat easier for vehicles to come into collision with each other, travelling in opposing directions. If that's no bad enough, perhaps somebody driving on that road under the influence of liquor should be something that would terrify any driver on that road.

You have one previous conviction imposed only recently, that was in December 2006. You then presented with a blood alcohol content of .119 and were disqualified from driving for 6 months. Now that disqualification ended something like a mere three days or so before your driving on this occasion. Not only that but you were driving, it's a worse case than the previous one of .119, in that here you were actually driving under the influence of intoxicating liquor, so as not to be able to have proper control of it. I don't think it can be again said that this is a serious case.

You are convicted upon the complaint and you are disqualified from driving, that will be for 2 years and 6 months. Further you are sentenced to a term of 3 months' imprisonment and further you are fined $3,000."

7 The court record shows that the charge of exceed .05 was "subsumed" in the charge of driving under the influence of intoxicating liquor and was dismissed.

8 The respondent sought to review the sentence imposed. That review was successful, and on 10 September 2007 a judge of this Court quashed the sentence of the learned magistrate and re sentenced the respondent (Kenway v Lusted [2007] TASSC 71). The only change to the sentence was by way of an order that the term of imprisonment be wholly suspended. The State has appealed that decision.

"1 The learned Judge erred in law in holding the sentence imposed by the learned Magistrate was manifestly excessive.

2 The learned Judge erred in law in setting aside a sentence which was, in all the circumstances, within the proper range available to the learned Magistrate.

3 The learned Judge erred in law in holding that the imposition of a fine on top of actual imprisonment made the sentence excessively harsh but then removed the actual imprisonment from the sentence rather than the fine."

10 There can be no doubt that this was a serious example of offending under the Act. There can also be no doubt, having regard to the penalties which were available to the learned magistrate under the Act, that the sentence he imposed on the respondent was within the range available to him. Against that background, counsel for the State submitted that the learned magistrate was well entitled to impose the sentence which he did, and that the learned judge on review considered the matter illogically. His Honour rejected the submission that the fine itself was excessive. He then went on to say at par12:

"Judges of this Court, and no doubt magistrates, on a great many of occasions, have referred to the driving of motor vehicles by persons affected by the consumption of alcohol as a grave social evil requiring severe penalties as a general deterrent and a personal deterrent to the offender, and to the imposition of imprisonment not being reserved for extraordinary cases. See for example, Briant v Bessell (1994) 74 A Crim R 204 at 208. The penalties prescribed by Parliament make that clear. Nevertheless, the sentence imposed in this case was manifestly excessive because of the combination of three months actual imprisonment and a fine of $3000. If the imprisonment had been suspended the sentence would have been an appropriate one, for the applicant would have had facing him, as a deterrent, virtually certain imprisonment for future transgressions under the Act and he would have suffered immediate punishment by way of the fine and disqualification. The imposition of the fine on top of actual imprisonment, for an offender who was bankrupt and not employed, made the sentence excessively harsh. Aggravating was the fact that he had a recent conviction under the Act but mitigating was the fact that he had committed no other offence of significance notwithstanding that he had been licensed for many years. A conclusion that the sentence was manifestly excessive is in keeping with decisions of other judges on motions to review."

11 Counsel for the State conceded that this appeal would fail if his Honour's result were correct, even if the reasons were wrong. The real question he conceded was therefore, was the sentence imposed by the learned magistrate manifestly excessive? Was it so far outside the proper exercise of the sentencing discretion entrusted to the magistrate as to constitute error? Counsel for the State said rhetorically, having noted that the respondent conceded this was a bad case of drink-driving, how bad does it have to be?

12 There is no doubt, as I have already indicated, that this was a bad case of drink-driving. A general and personal deterrent was required. However it is obvious from the comments on passing sentence of the learned magistrate that he emphasised these factors and did not balance against them the mitigating factors which were clearly present. Had those factors not been present, I would have no hesitation in concluding that there was no error as far as the sentence was concerned. However, in apparently failing to balance those mitigating factors against the objective factors of the offence, the learned magistrate in my view did impose a sentence which was manifestly excessive. In those circumstances his Honour, upon review, did not make an error.

14 I have had the advantage of reading the draft reasons for judgment of Tennent J.

15 The facts and circumstances of the offences alleged to have been committed by the respondent, the history of the proceedings, and the grounds of appeal are set out in her Honour's judgment. I respectfully adopt her Honour's recitation, but I wish to note some further aspects of the proceedings before the magistrate.

16 In the plea in mitigation to the learned magistrate, it was put that the respondent had held a driver's licence for 28 years. The fact that he was only recently "presenting himself to the courts for drink driving" was expressly put down to alcohol problems which it was said, in turn, resulted from the "extremely difficult 12 months" endured by the respondent. The nature of the difficulties encountered during that period was then explained to the magistrate.

17 It was also put to the magistrate that the respondent had been employed for the preceding 10 years as a car detailer/washer, with the last such employment having been held for three years.

18 That employment was terminated by him so, as it was put to the magistrate, "he could see his mother [in Queensland] and perhaps take care of her".

19 Something more needs to be said about the circumstances of the respondent leaving the State. When apprehended by police, the respondent told police that he was travelling to Devonport to board the Spirit of Tasmania with a view to travelling to Queensland, and that he did not have a return booking.

20 When the magistrate interrupted the respondent's counsel with a query about whether it was a mere coincidence that the respondent was leaving the State before he was due to appear in court, the explanation of the mistake as to dates was provided, but counsel in fact went on to say that the respondent "... was going to go and look after his mother and then come back".

21 The adjournment of proceedings so that the alleged offence under the Bail Act 1994 could be further investigated, came about after the magistrate queried whether there were sufficient facts to support the charge. His Honour properly observed that although the respondent's intention may have been to leave the State on the day before his required attendance, that day had not yet come. The prosecutor suggested that the respondent had made admissions to police that he had no intention of meeting his court date, and the adjournment was granted so that the police officer who intercepted the respondent could be spoken to further to determine "the exact nature of the admissions made".

22 Upon the resumption of proceedings, the magistrate was told that in fact no admissions had been made, but that the respondent's vehicle "was full of his possessions, including his cat, which certainly led to the inference from police in relation to the matter".

23 Irrespective of what the respondent's state of mind was in relation to his bail obligations; that is, whether he was mistaken as to the date and intended to return from Queensland to appear, or whether he intended to leave the State and not return, there was factual material from which a strong inference could be drawn that the respondent was permanently leaving the State. That material was the termination by him of the respondent's employment and the contents of his vehicle when intercepted by the police. It was open to conclude that the respondent was leaving a life in Tasmania which had caused him much stress and anxiety in the preceding 12 months.

24 Perhaps understandably in the circumstances, the point was not pursued, but there was a real possibility that the respondent was attempting to make a fresh start away from the difficulties which he had encountered, and that accordingly there were palpable prospects of his rehabilitation in terms of his alcohol abuse and consequent drink driving offences. In this context, it is noteworthy that the respondent pleaded guilty to the three charges on the morning after he was apprehended.

25 The next factual matter about which I wish to make comment is the extent of the respondent's driving in the manner observed by the intercepting police, and in the state they detected the respondent to be.

26 Nothing was put to the magistrate other than the bare facts that police received a report of a motor vehicle travelling in a dangerous manner, that a short time later this vehicle was located three kilometres south of Campbell Town, and that it was followed by police for approximately two kilometres.

27 In his reasons, the magistrate made no reference at all to the time or distance of the relevant act of driving. On the motion to review, the primary judge remarked that the respondent had intended to drive a distance well in excess of 200 kilometres from the south of the State, where he had been living, to embark on the Spirit of Tasmania at Devonport: [2007] TASSC 71 at par[3].

28 In written submissions, counsel for the appellant said that there was nothing to displace the inference that the respondent had that day driven from Hobart, or even perhaps New Norfolk. The basis for the suggested inference as to Hobart is unclear. The only reference to New Norfolk is the address of the respondent set out on the complaint dated 11 June 2007.

29 However, in argument, it was accepted that it would not be appropriate, in light of the evidence, to proceed on the basis that the respondent had driven with a blood alcohol level at or about that ultimately detected, or in the manner observed, for the whole of the journey from the south. Counsel was content to rest the case on the basis of the driving as observed shortly before police interception, and then until the police stopped the vehicle. Additionally, this Court was urged to note the respondent's "audacious intention" to continue driving until he arrived at Devonport or something prevented him from continuing.

30 It is not possible to discern from the magistrate's reasons the extent of the driving relied upon as a factual basis for the sentence. It may be that it was assumed the respondent had in fact driven from the south of the State nearly to Campbell Town, in the same manner and in the same state as ultimately observed. It may not have been so assumed, but if it was, as a matter adverse to the interests of the respondent, that fact had to be established beyond reasonable doubt; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

31 The last factual matter I wish to note is that by the time the respondent was sentenced, he had spent about a week in custody. This was reflected in the back-dating of the term of imprisonment.

32 The appeal to this Court is not governed by the Supreme Court Civil Procedure Act 1932, and is therefore not an appeal by way of rehearing under s46 of that Act. The appeal is brought pursuant to the Justices Act 1959, s123, which permits an appeal by a party dissatisfied with an "order in point of law". The primary judge had before him a motion to review the sentence of the magistrate on the ground that it was manifestly excessive, the respondent thus being required at first instance to establish error in the exercise of the sentencing discretion.

33 The primary judge quashed the sentence. Errors of law are alleged in the making of that order, but the question for this Court is effectively, as accepted by counsel for the appellant at the outset, whether the sentence of the magistrate was manifestly excessive.

34 At the same time, the appellant's counsel accepted the point that as this appeal was a Crown appeal, this Court would possess a residual discretion to dismiss the appeal despite established error; see, for instance, R v Dowie [1989] TASSC 44; [1989] Tas R 167 per Underwood J (as he then was) at 180. It was however, submitted that the concept of double jeopardy did not arise and that there would be no restrictions on the circumstances in which this Court might intervene. The principles relating to Crown appeals against sentence were discussed in, for example, Everett v R [1994] HCA 49; (1994) 181 CLR 295, R v Clarke [1996] VICSC 30; [1996] 2 VR 520 per Charles JA at 522, and Attorney-General (Tas) v McDonald [2002] TASSC 120; (2002) 11 Tas R 221 per Slicer J at 226 - 229, per Evans J at 230 - 231. The submission was based on the essential point that it was the respondent who had initiated appellate review of the magistrate's sentence.

35 I think it can be properly accepted that the residual discretion would exist in this type of appeal to the Full Court; that is to say, where this Court, on appeal by the Crown, is rehearing a motion to review determined by a single judge, and one which was brought by a defendant to a complaint, asserting that a sentence was manifestly excessive.

36 As to the second part of the submission, I have doubts as to whether the other principles generally applicable to Crown appeals against sentence would apply in an appeal of this type. However, having regard to the view I have taken of this appeal, I do not need to make any final determination of that issue. I am prepared to assume for the moment, in favour of the Crown, that the principles do not apply, but this really has no effect on the outcome.

37 This was clearly a serious example of offending under the Road Safety (Alcohol & Drugs) Act 1970, s4. Counsel for the respondent did not suggest otherwise, but made the point that it could not be regarded as the worst example of the offence which might come before a court. Section 17 of that Act provided that the applicable range of penalties was a fine of between $1,000 and $6,000, together with imprisonment of up to two years. The sentence was thus within the range actually made available to the magistrate by Parliament, a point strongly made by the appellant's counsel.

38 The real question though, trite as it may seem, is whether, in all of the circumstances of the case, the sentence is unreasonable or plainly unjust_._

39 In R v Engert (1995) 84 A Crim R 67 at 68, when speaking of the principles to be applied in sentencing, Gleeson CJ (as a member of the New South Wales Court of Criminal Appeal), said:

"A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. ... Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender. ...

In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise."

40 The degree of intoxication and other factors relevant to the risk to other road users are factors which warrant primary consideration in cases such as these, but that is not to be taken as excluding consideration of all of the circumstances of the offence and of the offender.

41 The primary judge noted at par[11] of his reasons, there have been many occasions on which courts "have referred to the driving of motor vehicles by persons affected by the consumption of alcohol as a grave social evil, such conduct requiring severe penalties as a general deterrent and a personal deterrent to the offender, and to the imposition of imprisonment not being reserved for extraordinary cases".

42 Briant v Bessell (1994) 74 A Crim R 204 at 208 was given as an example. The judgment of Cox J in Harris v Walker (1996) 89 A Crim R 257 at 260 is another oft cited example. As statements of general principle applicable to these types of offence, they are unexceptionable, but (indeed as the facts of those cases attest), they do not alter the essential propositions relating to the sentencing process, which I have outlined.

43 In my view, the comments of the magistrate indicate a failure to take into account significant mitigatory factors relating to the personal circumstances of the respondent, which included his potential for rehabilitation. These factors meant that the aspect of personal deterrence did not assume any great significance. In this case there was no warrant for these factors to have been completely subjugated to, it seems, the aspect of general deterrence. If the relevant factors were in fact taken into account by the magistrate, the sentence does not properly reflect it. Given the extent of the term of immediate imprisonment, I agree that the magistrate imposed a sentence which was, taken as a whole, manifestly excessive. Upon the motion to review that sentence, the primary judge did not err.

44 In conclusion, I should mention the particular error as raised by ground 3 of this appeal. That ground is as follows:

"3 The learned Judge erred in law in holding that the imposition of a fine on top of actual imprisonment made the sentence excessively harsh but then removed the actual imprisonment from the sentence rather than the fine."

45 It is correct to say that taken literally, his Honour appears to have approached the matter in the way complained of. His Honour said:

"The imposition of the fine on top of actual imprisonment, for an offender who was bankrupt and not employed, made the sentence excessively harsh."

46 This statement is ambiguous though. It may well be that his Honour simply intended to refer to the combination of the fine and imprisonment, rather than to use the words "on top of", to convey the notion that it was the fine which made the sentence excessive.

47 In any event, counsel for the appellant properly conceded that "... this appeal will not succeed if his Honour's result was right, even if the reasons were wrong; if the sentence was manifestly excessive and had to be set aside accordingly".