1. In my view, on the pleading and the stated facts, the conclusion that there was no evidence to support the aggravating element of reckless driving, is not open. In Pearce at [42], the plurality said the identification of a single act as common to two offences may not always be straightforward, and it "should be emphasised the inquiry is not attended by excessive subtleties and refinements, but should be approached as a matter of common sense, not as a matter of semantics".
2. It is inherent in the allegation of failing to pull over that the applicant did not do so, but continued to drive. On the facts, there is no suggestion he drove recklessly to the point to which he had been directed. It can only be that the allegation of reckless driving related to the time at which he drove away.
3. That leads to consideration of the alternative argument. Ultimately, its resolution involves consideration of questions of degree. The aggravated elements set out in s 11A(2A) of the Act have to exist "at the time the driver takes the action [to avoid apprehension etc]". The nature and extent of the action are questions of fact. A relevant action may be a continuing one. In this case, I think it would be artificial to confine the act of driving relevant to the charge of aggravated evading police, to the precise point in time and to the very short distance which must have been involved in clearing the breath testing site. The factual basis on which it might be said the applicant's relevant act of driving was so confined was not stated to the magistrate.
4. In broad conceptual terms, what amounts to an "action to avoid apprehension or interception" should not be artificially confined. Section 11A of the Act was inserted in 2009, with subs (2A) inserted in 2017. The object of s 11A(2A) is plain. In the second reading speech on 24 May 2017, the Minister said that the Bill would "mitigate the incidences and inherent dangers posed by motorists driving recklessly or dangerously to avoid the police."
5. In this case, it can be reasonably said that the action of evading police by driving away from the breath testing site continued up until the point of the collision, despite the fact that the applicant was not being pursued. Neither counsel disagreed with the estimate that the entire journey must have been about 300 metres. Given that the estimated speed just before the collision was a little over 70 km/h, the act of driving must have taken an extremely short period of time. There was a sufficient proximity in time and distance to the initial departure from the breath test site so that all of the driving is included in the "action to avoid apprehension or interception".
6. As to the magistrate's treatment of charges 2, 3 and 4, I may be missing something but, with respect, I am not sure why his Honour took that view. The conduct alleged in those three charges was repeated as particulars of the reckless driving. There was one addition particular of the reckless driving, but in terms of double punishment, punishment for the reckless driving would include punishment for the three separate charges. His Honour's orders in respect of those three charges were not the subject of the motion to review, and I do not see that his Honour's approach to those charges affects consideration of the present issue.
7. It follows that in my view the facts as stated, which detail the manner of driving from the point the applicant drove away to the point of the collision, constitute the facts both of the reckless driving charge and of the aggravating element of charge 1. If I am wrong about that, it does not mean the applicant succeeds. If I were to have a doubt about the correctness of that view, I would unhesitatingly amend charge 1 on the complaint so as to particularise the reckless driving in the same manner as the reckless driving charge.[2] Section 110(2)(f) of the Justices Act 1959 allows the Court to amend any defect or error in the proceedings below, and by virtue of s 110(2)(i), to exercise any power that might have been exercised by the magistrate.

1. Section 31(3) of the Justices Act[3] would have permitted the magistrate to amend the complaint, had the matter issue then been raised. The applicant would not have been prejudiced, and the applicant conceded that had the question arisen, the magistrate could not reasonably have refused to make the amendment, with counsel putting the concession in terms that in the ordinary course, there would have been a duty to amend the complaint consistent with the facts stated.
2. Ground 2 fails.

1. The applicant submitted that a sentence involving an actual period of imprisonment was manifestly excessive. Both before the magistrate and in this Court, the applicant accepted that imprisonment - in one form or another - was open, but submitted that in respect of imprisonment in the ordinary sense, any term could be properly suspended. The immediate imprisonment of the applicant was the key issue.
2. I will come back to the full range of mitigatory factors said to operate in the applicant's favour. One factor will need to be addressed separately. The applicant submitted he was entitled to mitigation because of the total effect of the sentences imposed on a number of complaints he faced on the same day, "which included community service, disqualifications, fines and imprisonment." I have already mentioned some of those orders, and I will detail the other charges and orders in due course. In the meantime, I will set out further facts and material that were before the magistrate in respect of the incident on 22 November 2020.

1. In addition to the stated facts I set out in relation to ground 2, the prosecution further told the magistrate the following:

"The defendant was assessed by Tasmanian Ambulance [at the scene] before he was arrested and conveyed to Launceston police station. At the police station he was cautioned and participated in a breath analysis. Under caution he made the statements: he had consumed alcohol prior to driving the vehicle. He had his first drink at about 8 pm that night. He had his last drink about 11 pm. He had consumed about eight to 10 Great Northern beers. Breath analysis result provided a reading of 0.087 grams of alcohol. The defendant was charged. He was served with a road safety disqualification notice disqualifying him from driving for a period of six months.

The driver and passenger of the black Lancer were initially assessed by paramedics and cleared of injury. However, later that morning both the driver and passenger attended Launceston General Hospital with moderate neck pain. The driver of the vehicle complained of the fact that he was concerned of the seriousness of the accident, that he did not sleep that night and that he is no longer confident about driving. Similarly, with the driver of the vehicle that was overtaken at the intersection of Wellington and Paterson Streets he has made the comment that he is not confident about driving and continues to think about the accidents, especially through intersections.

... As a result of the crash the Mitsubishi Lancer received significant damage and has been written off. The traffic intersection is in the middle of the CBD which is subject to heavy vehicle and pedestrian traffic. At the time of the crash there were numerous pedestrians about the street and around the hotel areas due to it being in an early Sunday morning. There were two male passengers in the defendant's vehicle at the time of the crash. The defendant and all his passengers were injured in the crash."

1. The prosecutor referred to the applicant's list of prior convictions. In September 2015, the applicant was fined and disqualified from driving for being an unaccompanied learner driver. In March 2016 he was convicted of two charges of driving whilst disqualified - one committed on 27 November 2015, the other on 1 January 2016. He was fined and disqualified from driving for four months. Nearly 12 months later he was again convicted of driving whilst disqualified, and fined $900 and disqualified from driving for 8 months.
2. On 16 October 2017, he was again convicted of driving whilst disqualified and made the subject of a community correction order requiring performance of 49 hours community service. He was also fined the sum of $500 and disqualified for 12 months. Arising out of the same incident were two "drink driving" offences; exceeding 0.05 and driving while alcohol is present in his body being a person to whom s 6(3) of the Road Safety Alcohol and Drugs Act applied.
3. The magistrate had a report from Community Corrections. That indicated that breach action had to be taken in relation to the earlier order for community service; the applicant appeared in court several times before completing his hours, and only completed the remaining few hours just before court. It was noted that all offences for which he appeared before the magistrate were committed while subject to that community correction order. He was said to be suitable for community service but not for community based supervision.
4. The applicant's counsel put to the magistrate the following matters of relevance.
   • The applicant acknowledges that he is lucky to be alive, and that he has not caused death by his actions for which he has no reasonable excuse.
   • He pleaded guilty, fully co-operated with the police in respect of all matters and is "cognizant of the serious nature of his offending behaviour".
   • He has been able to maintain employment as a deckhand, working two weeks away and two weeks back at a time, and has been able to organise lifts to and from the boat.
   • The applicant has never had the benefit of a suspended period of imprisonment, and is ready, willing and able to do community service as part of any penalty.
   • As to the incident, he accepts that he has no excuse; he panicked and did the wrong thing, and is fortunate that it was not more serious than it was.
   • He made full admissions in his interview including to speeding, and did not challenge any of the facts stated.
   • The applicant accepted the magistrate may well be considering imprisonment but home detention is an option, although there may be a concern with his work arrangements which would need to be assessed.
   • The primary submission was that a wholly suspended period of imprisonment with community service, completion of a sober driver program and various fines and a very considerable period of disqualification would adequately mark the serious nature of the behaviour.
   • The applicant has realised that his life would be significantly impeded if he does not do the right thing in relation to driving. He had in his younger years a very immature attitude which is reflected in his record, but he looks forward to being able to prove that he has new maturity.

1. In passing sentence for the incident on 22 November 2020 (the charges on complaint 35819/20) the magistrate said:

"You pleaded guilty to a charge of evading police on the 12th September 2020 and on that occasion you drove without a licence and you did 80 kilometres per hour in a 50 zone and you also while you were evading police drove on the wrong side of the road at night with the lights off.

On the 22nd November 2020 you evaded police in aggravated circumstances, the circumstances of aggravation were that you were driving with alcohol in your body and driving recklessly. The reckless driving was constituted by disobeying two red lights and, on the second occasion driving through the intersection which, if the light had been green, would have had a speed limit of 60 kilometres per hour subject to the obligation to enter the intersection at a safe speed and you entered the intersection at 73 kilometres per hour in that 60 zone which resulted in a collision ending up with the vehicle that you collided with turning through about 180 degrees and your vehicle ending up on its side.

On that occasion you were driving while your licence was suspended. You had alcohol in your body and exceeded the prescribed limit with a reading of .087 and you've been charged with the going through the red lights and the speeding as well.

I need to impose a penalty or penalties to reflect the objective seriousness of that offending. The most serious charges are the charges of evade and particularly the aggravated evade. The purpose of the legislation creating those offences is to protect the public against the risk involved in a police pursuit and to facilitate the enforcement of the law. On each occasion your conduct undermined those purposes although of course in the end you were dealt with for your offending.

The evade that occurred on 12th September 2020 was, it would seem, to avoid detection for driving without a licence involved you driving at 80 kilometres an hour in a 50 zone on the wrong side of the road as I said with the lights off at night. In my view it's a serious example of evade. It's not an evade in aggravated circumstances, you're not charged with those accompanying circumstances being reckless but they certainly are circumstances that go against the public interest protected by the offence; that is, the risk that's involved when you're attempting to get away from the police.

The charge of aggravated evade in November of 2020 involved you driving with alcohol in your body and recklessness as I - and driving recklessly as I have indicated. The other elements that that add to its seriousness are that you overtook a stationary vehicle that was obeying a red light. It was in the CBD and, as I said, a crash resulted and the occupants of the other vehicle suffered minor physical injury relatively and some distress.

The penalties that I impose for [the driving] offending need to stop you and others from doing similar things. It's particularly important to stop you from doing those similar things. You shouldn't have been driving at all on either occasion because your licence was suspended on one occasion, you didn't have a licence on another occasion and you had alcohol in your body that meant that you shouldn't have been driving either.

In those ways, although the lack of authorisation is for slightly different reasons this offending has similarities to the four occasions of driving whilst disqualified that you were dealt with for previously in the last four years and on one of those occasions you also committed an alcohol-related driving offence. It is also important that I make clear that your offending is wrong and that I punish you for that offending.

I take into account all of the matters that have been put to me by Mr Doyle. You are 24 years old. You're old enough to know better but it's important still to provide you with some support to change your behaviour so that you don't commit these sort of offences again. I have regard to your plea of guilty, or your pleas of guilty. It's submitted and I accept that that indicates remorse. You understand the risk that you created. Perhaps the accident was something that brought that home to you very clearly and you have organised your life now around not driving.

You've also experienced a natural consequence of the financial burden of the damage to your vehicle and the other vehicle and I take that into account. You're employed. You're productively employed doing important work. I take into account your prior convictions. I have referred to them as indicating a pattern of driving when you don't have authorisation to drive and, as I say, although you weren't authorised to drive for different reasons that's a similarity with your offending on these occasions but of course you're not to be sentenced for those prior offences. You are to be sentenced for this offending and the seriousness of this offending although the prior offences have relevance in the way that I have identified, that being the importance of stopping you from doing this sort of thing again.

In light of all those factors I consider the following orders are appropriate and all of those factors, in particular the seriousness of the charge of evade police in aggravated circumstances mean that I think a penalty needs to be imposed immediately rather than having you waiting and not sending the message to the community immediately about the consequences of this sort of offending".

1. [His Honour then dealt with charges 2 to 8 inclusive as I earlier outlined and continued]:

"That leaves me to sentence you on count 1 of the complaint which I must do separately. In my view that is a serious example of aggravated evade where there is recklessness involved. As you recognise it's fortunate that the consequences weren't much more serious than they were but given the risk involved in that conduct I think that a sentence of imprisonment is the only course that I can take. I therefore sentence you to imprisonment for a period of four months and on that count on the complaint I disqualify you from driving for two years. That is also cumulative to count 1 on 34587 of 20 and therefore concurrent with the disqualification on count 7.

That's therefore a total of three years' disqualification. I have sentenced you to imprisonment for a period of four months on the charge of evade. I need to consider whether or not I ought suspend all or part of that period of imprisonment. I have formed the view that I ought suspend part of that period of imprisonment but that the seriousness of the charge requires that you serve a period of actual imprisonment.

I therefore suspend two months of the period of imprisonment for 18 months on condition that you commit no further offence punishable by imprisonment and on condition that you comply with the terms of the community correction order that I have made in relation to the previous charge of evade ...". [Emphasis added]

1. The applicant argues that the application of the totality principle made the need for an actual term of imprisonment unnecessary, that actual imprisonment was not a last resort that was warranted in the circumstances, and in that sense the sentence is manifestly excessive. The argument includes the other penalties imposed on complaint 35819/20, and extends to other penalties imposed on the same day. I turn to the other orders that were made.
2. The applicant pleaded guilty on 19 April 2021 to a total of 18 charges across four complaints (including 35819/20); the date range of offending was 19 June 2018 to 22 November 2020. He was sentenced on all matters the next day. Essentially because of the outcome in respect of two complaints which dealt with older offending,[4] I need only address one other complaint.
3. That complaint, 34587/20, contained charges of evading police, driving while not the holder of a driver licence and exceeding the speed limit. One act of driving was involved. The magistrate was told that on 12 September 2020 at approximately 2.30am, police on patrol in the Launceston CBD noticed a vehicle which they then attempted to intercept. However, the vehicle drove off at speed and turned on to another street. Officers continued to follow it, saw it turn left again before losing sight of it. They continued to drive in the area and saw the same vehicle.
4. Essentially the same scenario played out. Police pursued, the vehicle was accelerated away, and it turned onto a different street. The driver then turned the lights off, drove on the wrong side of the road and exceeded the speed limit when driving away from the officers. Later that morning, police were making enquiries about the matter and saw the same vehicle parked in an address in Mowbray. No one was at home so the vehicle was seized and transported to the police compound, where forensic examinations took place.
5. On 17 September 2020 the applicant attended the Launceston Police Station together with the owner of the vehicle. The applicant was interviewed and admitted that he was the driver, he was aware police officers were trying to intercept him but he did not pull over and drove away because he did not have a current driver's licence. He agreed that he was travelling at about 80 km/h in a 60 km/h zone, and that his manner of driving could have put other road users and pedestrians at risk. He said that he did not know why he had turned his lights off but it was probably to help him get away. He said that he was aware that his licence had expired on 16 October 2018.
6. On the evading police, the magistrate fined the applicant the sum of $1,720 with a special penalty of $600 - the vehicle was impounded[5] - and made a community correction order for a period of two years, a condition of which was that he perform 70 hours of community service. He was also disqualified from driving for 12 months. On the other two charges he was convicted and discharged.
7. These penalties on complaint 34587/20 were weighty in themselves but were not directly the subject of this motion to review. There was no ground alleging any of them were manifestly excessive. These orders need to be considered along with the impugned order of imprisonment, the fines and disqualification imposed and the convictions recorded on complaint 35819/20. Overall, in addition to the partially suspended term of imprisonment and the community correction order with community service, the total financial impost was $3,020 with a total of three years' disqualific ation.
8. The totality principle requires a sentencer who is sentencing an offender for a number of offences to ensure that the aggregation of the offences appropriate for each offence is a just and appropriate measure of the total criminality involved. The sentencer is required to have regard to the overall or the total effect of the sentence. Remediation of sentences disproportionate in their totality is usually achieved by way of orders wholly or partly concurrent in their operation, or by moderating individual sentences while taking care to avoid artificially low penalties.
9. The application of principle may arise in a number of circumstances, the simplest and most common, when an offender is sentenced for a number of similar offences committed within a relatively short period of time. The effect of the application of the principle may be greater where the offences can be seen as "one transaction" or "continuing episode" or "single course of conduct". However, there is no clear or precise definition of this aspect.
10. The principle is not confined to sentences of imprisonment; it applies to all kinds of penalty and to the cumulative effect of different kinds: see for example Arnold v Barnsley [1997] TASSC 151 (multiple fines), Jarvis v Brown [1998] TASSC 120 (cumulative periods of disqualification), Strachan v Graves [1998] TASSC 68 (fines and imprisonment) and Peck v Visser [1999] TASSC 38 (imprisonment and disqualification periods).
11. In this case, the fine was imposed and the community correction order made in respect of the offence of evading police committed on 12 September 2020, about which the applicant had been interviewed shortly after their commission. It would be very difficult to describe the charges of evading police and aggravated evading police as anything other than two separate offences of similar type, although the principle of totality was still to be observed.
12. The question is whether the magistrate sufficiently took into account the total effect of the sentences imposed. Along with grounds of appeal that assert sentencers failed to give sufficient weight to a particular factor, whether or not that is so can only be assessed by looking at the end result.

1. Principle dictates that the applicant needs to demonstrate that the sentence is unreasonable or plainly unjust. I need to be satisfied that the sentence was outside the range of sentences that were available to the magistrate in the exercise of sound discretionary judgment: Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]- [34]; Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, 28 Tas R 1 at [8]; TGW v Tasmania [2017] TASCCA 10, 26 Tas R 106 at [33].
2. Plainly, general deterrence and denunciation are prominent factors in this case. This was a very serious instance of the offence. The applicant's action of evading police was taken to avoid being dealt with after returning a positive reading for alcohol from a breath test. He accelerated to a relatively high speed over a short distance, and disobeyed two red lights before colliding with a vehicle proceeding with a green light, having driven around a stationary vehicle stopped at the second red light.
3. There was a very heavy impact between the two vehicles. The applicant's vehicle rolled onto its side and slid 30 metres, while the other car was spun around and it engine dislodged from its mounts. That vehicle is a "write off". Police and emergency services were required to attend the scene. The area in which the collision happened is generally a busy one. There were adjacent "hotel areas", and at the time of the collision, there were numerous pedestrians about. The occupants of the other vehicle suffered some apparently mild physical injury, and the driver has suffered adverse emotional effects, as has the driver of the stationary vehicle. The applicant's two passengers were injured but to what extent was not stated; presumably it was not seriously. It is most fortunate that no one in the vehicles was more seriously injured, and that someone else was not injured. Death could have resulted.
4. The magistrate correctly identified the purpose of the law as one to protect the public against the risk involved in a police pursuit and to facilitate the enforcement of the law. When subs (2A) was inserted into s 11A of the Act, the penalties for a breach of s 11A(1) - evading police - were increased. In the second reading speech the Minister noted that evading police had emerged as a significant safety problem for Tasmania Police and the whole Tasmanian community, and referred to the need for there "to be a more significant deterrent, as drivers should not see any advantage in evading police, and repeat offenders should be discouraged from undertaking a cost-benefit analysis of not stopping".
5. The penalties prescribed by s 11A(2A) of the Police Powers (Vehicle Interception) Act are indicative of the Parliamentary view of this type offending. For a first offence the penalty is a fine of not less than 20 penalty units and not more than 100 units, or a term of imprisonment not exceeding three years or both. For a second or subsequent offence the penalty is a fine within the same range or a term of imprisonment for not more than five years, or both. Such legislative changes and the maximum penalties set for a particular offence provide "legislative guideposts" to a court, and are matters to which a court should have regard: Muldrock v The Queen [2011] HCA 39, 244 CLR 120 at [27]; Banks v Tasmania [2019] TASCCA 1, 31 Tas R 342 at [33].
6. The applicant is still a relatively young man, but difficult to characterise as a young offender; his counsel made no attempt to do so. Specific deterrence is also a factor of significant weight. The applicant does not have a good driving record for a person of his age, with the type of offending showing contempt for authority including for court orders. As to the present case, there was a period of 10 weeks between offences of similar type, with no moderation of behaviour following the police interview after the first. There is no evidence about this, but at the least - as his counsel acknowledged - the applicant must have anticipated being charged, but a short time later he committed the offence which resulted in his imprisonment.
7. There is nothing particularly mitigatory in the personal circumstances put to the magistrate. The applicant was entitled to some credit for the pleas of guilty as they had utilitarian value, although the case was a very strong one.
8. Viewed in isolation, the sentence of imprisonment is not manifestly excessive, having regard to the circumstances of the offending and the applicant's history. As to the question of totality, although the overall effect of the orders was quite a heavy one, after careful consideration, I was not satisfied that a four month term of imprisonment, with two months suspended, is made manifestly excessive when the cumulative effect of all orders is taken into account. That sentence is within the permissible range of sentences in spite of the overall impact of all orders.
9. In all the circumstances, the sentence of imprisonment is not shown to be manifestly excessive.

[1] Of course, because of s 7 of the Sentencing Act 1997, his Honour could not have recorded a conviction and dismissed the charges. Section 7(g) provides that a court can record a conviction and order the discharge of the offender. It would seem that is what his Honour intended.

[2] For a case in which the same approach to the availability of amendment was taken, see S v Johnson [2015] TASSC 20 at [23], a case involving suggested latent duplicity.

[3] 31 Irregularities and amendments

(1) An objection shall not be taken or allowed to a complaint in respect of -

(a) an alleged defect therein, in substance or in form; or

(b) a variance between it and the evidence in support thereof.

(3) If it appears to the justices that the complaint -

(a) fails to disclose an offence or matter of complaint, or is otherwise defective; and

(b) ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect -

the justices may amend the complaint upon such terms as may be just.

[4] There were seven computer-related fraud charges and one of "failing to appear" in respect of all of which the applicant was convicted and discharged.

[5] See s 37MA of the Police Offences Act 1935.