1 On 11 June 1991, in a court of petty sessions held at Hobart, the respondent pleaded guilty to two charges of driving a motor vehicle in a manner dangerous to the public contrary to the Traffic Act 1925, s.32(1). On 12 July 1991 the learned magistrate made the following orders on each complaint (not correctly recorded by the formal record of the court):

1 Five months' imprisonment.

2 The execution of the whole of the sentence to be suspended upon condition that the defendant be of good behaviour for 18 months.

3 A probation order for the same period of 18 months.

4 The probation order to contain a provision:

(a) that the defendant submit to the supervision of a probation officer during the period of the order, and

(b) that during this period, the defendant submit to such medical or psychiatric treatment as might reasonably be directed by a probation officer.

5 That the defendant be disqualified from holding or obtaining a driver's licence for eight months.

2 The learned magistrate ordered that the sentences of imprisonment be served cumulatively and, although the transcript does not record that he made a similar order with respect to the periods of licence suspension, the court record indicates that he did so and, on the hearing of the motion to review, counsel were agreed that he did so order.

3 The applicant has moved this Court to review those orders. It was agreed that both motions to review should be heard together. The grounds relied upon were as follows:

"1 The learned magistrate erred in fact and/or in law in wholly suspending the said prison sentence.

2 The learned magistrate erred in fact and/or in law in that the disqualification imposed was manifestly inadequate in all circumstances [sic].

3 The learned magistrate erred in fact in finding that the respondent was less responsible for his actions than the ordinary person.

4 The learned magistrate erred in fact and/or in law in placing too much weight on the comments on passing sentence of the Chief Justice in The Queen v Wall."

4 In the court below there was no dispute over the facts put to the learned magistrate by the prosecutor. The first offence was committed on 2 April 1991. At about 10.40 that evening the police were called to the Brooker Hotel in Hobart. There they observed the respondent dressed only in jeans. When he saw the police the respondent ran out of the hotel and disappeared. Police officers kept watch nearby. About half an hour later the respondent got into his vehicle, a Toyota Corona sedan parked in the hotel car park, and drove off. The police followed. The respondent first drove north on the Brooker Highway at high speed. The following police vehicle switched on its flashing blue lights and checked the respondent's speed at 110 km/h being 40 km/h in excess of the speed limit. Traffic on the Brooker Highway was described as "medium". The respondent weaved in and out of the traffic as he overtook vehicles and, on reaching the junction with Lampton Avenue, turned left crossing onto the incorrect side of the road to do so. The respondent then turned left again into Arundel Place, his speed being such that he again crossed onto the incorrect side of the road. He turned left again but found himself in a cul-de-sac. The respondent skidded in an attempt to turn and mounted the footpath. The police vehicle tried to block him but the respondent managed to get away by driving off with spinning wheels back along Arundel Place, right into Lampton Avenue and left onto the Brooker Highway. He failed to slow down or stop at any of those junctions. Another _v_ehicle travelling north on the Brooker Highway had to brake to avoid a collision.

5 Driving north, the respondent swerved between lanes to overtake vehicles and the pursuing police car checked his speed at 140 km/h. At the junction with Goodwood Road the respondent went through a green traffic light at 120 km/h and increased speed as he travelled towards the junction with Elwick Road. At this junction there was another police vehicle also with its blue lights activated. The respondent went through a red light at this junction and proceeded north along the Brooker Highway reaching a speed as high as 160 km/h. On his journey from there to the junction with the Lyell Highway the respondent maintained a very high rate of speed, overtook quite a number of vehicles and swerved from lane to lane using up the entire road and giving the appearance that his vehicle was on the point of losing control. On more than one occasion the respondent overtook vehicles when his visibility of the road ahead was restricted and on one such occasion he forced two oncoming vehicles to brake to avoid a collision. There was another police vehicle with its blue lights flashing near Black Snake Lane just short of the junction with the Lyell Highway. The respondent overtook this police vehicle crossing double white lines onto his incorrect side of the highway to do so.

6 The respondent turned up the Lyell Highway and continued to drive in the same manner as he had been on the Brooker Highway. Pursuing police, in the knowledge that other _v_ehicles were waiting for the respondent further up the highway, abandoned the chase. However, the respondent apparently turned off before he reached those other _v_ehicles and was not seen again that evening.

7 About 7pm, two days later, the respondent was driving another car east along the Bass Highway at Exton. He came up behind an ambulance. Both vehicles were then travelling in a 70 km/h speed limit zone. On the last right hand sweeping bend prior to the derestriction sign at the eastern end of Exton the respondent overtook the ambulance at a point where it was impossible for him to see whether there was any oncoming traffic. It appears from the facts stated that there was some such traffic and, for a distance, the ambulance, the respondent and oncoming cars were travelling three abreast. At the next sweeping bend the respondent overtook three vehicles by crossing over double white lines. Probably as a result of radio information from the driver of the ambulance, a police vehicle was sent from the Westbury police station to catch up with the respondent. The police car took up a position to the rear of the respondent on a straight stretch of road in the township of Hagley. On becoming aware of the presence of the police car, the respondent again overtook vehicles on a bend where it was impossible for him to see whether there were any oncoming vehicles. The vehicles that he overtook pulled off the side of the road. The police vehicle, with its blue lights activated, headlights flashing and horn sounding pulled alongside the respondent's car, a Datsun. The respondent looked towards the police vehicle and immediately increased speed and overtook two vehicles in the face of oncoming traffic which was forced to take evasive action.

8 The respondent then drove his vehicle at a high speed straddled across the centre line to prevent the police vehicle coming alongside. He reached 160 km/h and maintained that speed overtaking four _v_ehicles. He went through a township in this manner. At the junction of the Bass Highway and Illawarra Road he slowed and then cut across double white lines just prior to the junction and in front of a log truck. This caused the driver of the oncoming truck to take evasive action and move off the sealed surface of the road. After entering Illawarra Road the respondent travelled along a straight section of the road weaving from side to side in an obvious attempt to put off the pursuing police vehicle. As the respondent drove along he periodically switched off his lights for short periods of time. He overtook vehicles both oncoming and travelling in the same direction as him. At one stage the driver of the police vehicle put the headlights on full beam and the respondent put up his two fingers in those lights in a gesture to the driver of the police vehicle.

9 Driving in this manner the respondent went along the main street of Longford. He overtook vehicles at high speed while pedestrians were walking along the footpath. His speed reached 160 km/h. On the other side of Longford a police vehicle was waiting to try and intercept him but the respondent overtook this vehicle at 160 km/h on a blind corner sweeping to the right. The respondent continued to drive in this fashion through the township of Cressy travelling at speeds between 130 and 160 km/h. He switched his lights on and off several times for three to four seconds each time. Approximately 200 metres from the Blackwood Creek turnoff, the respondent dropped a full bottle of spirits out of his car which smashed, some of the glass from which hit the pursuing police car.

10 The respondent continued to drive at high speed turning his lights on and off and driving onto the wrong side of the road as he went along Poatina Road and other roads in the area, the surface of some of which were unsealed. Other traffic using the roads was forced to take evasive action. Near the junction of the Poatina Highway and the Arthurs Lake turnoff the respondent, travelling at 150 km/h, turned his headlights off for a distance in the order of 300 metres. The respondent continued along the Osterley Road where a police four wheel drive unit with blue lights flashing was driven towards him in the centre of the road. The respondent drove up and over a rocky bank around the driver's side of the police vehicle and continued on without stopping. Pursuit of the vehicle continued on the Broadriver and Thunderbolt Roads over which the respondent travelled, often on the incorrect side, and "broadsiding" around bends. Thunderbolt Road is a narrow, one way forestry road. Police personnel and vehicles moved back to the junction of Thunderbolt and Broadriver Roads and waited for the respondent. A short time later he drove around the bend on Thunderbolt Road towards this junction with his headlights turned off. He drove towards police officers who were both on foot and in vehicles, narrowly missing one officer who was forced to jump out of the way. After almost hitting a police vehicle the respondent reversed at high speed back up Thunderbolt Road and the police abandoned the pursuit.

11 The next day the respondent was approached by police officers, taken to Hobart, interviewed and subsequently charged with the offences to which he pleaded guilty.

12 Counsel for the respondent told the learned magistrate in mitigation, that the respondent was 21, employed with the Hydro-Electric Commission and resided with his girlfriend. Counsel detailed a number of misfortunes which had befallen the respondent's family including the suicide of his father in April 1989, the death of his elder brother in October 1989 and the severe injuring of his younger brother in a motor _v_ehicle accident in 1990. She told the learned magistrate that the respondent was of above average intelligence and had performed well at school both academically and socially. On leaving school he commenced an apprenticeship with the Hydro-Electric Commission and had been in continuous employment ever since. She submitted that the offences were committed whilst the respondent was very distressed and affected by the misfortunes which had befallen his family. She told the learned magistrate that on the day the first offence was committed the respondent had had an argument with his girlfriend and, whilst upset, went to the hotel.

13 After the commission of the first offence on 2 April, the respondent went to Devonport. There his vehicle became unusable. On the day the second offence was committed the respondent bought another car by way of a finance agreement. Counsel told the learned magistrate the respondent was at that time feeling depressed and suicidal. The magistrate was handed a report from Dr Ian Sale, psychiatrist, dated 4 June 1991.

14 The thrust of the plea in mitigation was that the respondent should be treated as a person having diminished responsibility by reason of a psychiatric illness referred to by Dr Sale in the report tendered. The learned magistrate was informed that the respondent spent 18 days in custody and some period of time in the psychiatric department of the Royal Hobart Hospital but had now returned to work, to live with his girlfriend and was in receipt of medical treatment. The tendered report was extremely brief comprising no more than a single A4 page of writing. It contained no history of the respondent prior to the commission of the offences and made but brief reference to where he had been since the commission of the offences. However it did contain the opinion that at the time he was seen in remand at the Risdon Prison the respondent had "at that stage" developed a manic episode. In the report Dr Sale said:

"In summary, this young man developed an episode of mental illness, specifically a manic episode. This had been present for approximately three months prior to the incidents which led him into conflict with the law. During a manic episode an individual has an abnormally and pathologically elevated and excited mood causing them to be restless and irritable. Judgment is severely impaired during such a state, and it is very uncommon for individuals to realise that they are behaving abnormally. As this was his first episode of illness, there is no way that Mr. Gleeson could have appreciated that his behaviour at the time was a product of mental illness."

15 The report concluded with an optimistic prognosis for "remaining on the right side of the law and for maintaining employment" provided the respondent submitted to medical management.

16 The learned magistrate indicated that he would like to watch the video taped interview between the police and the respondent. As this was not readily available the proceedings were adjourned. Before adjourning, the learned magistrate suggested to counsel for the respondent that she might like to get a further report from the respondent's medical adviser. The hearing resumed on 12 July. In the meantime, the learned magistrate saw the video taped record of interview. On the resumed hearing counsel for the respondent tendered a further report from Dr Sale dated 18 June. It was even briefer than the previous report and again contained no history or basis for the opinion expressed. The report said in part:

"Your client suffered an episode of Mania, a manifestation of Bipolar Affective Disorder also known as Manic Depressive Illness. This illness characteristically causes episodes of disturbed behaviour - manic episodes, when a person is unusually elated, excited and irritable, and depressive episodes where an individual is lethargic, apathetic and feels depressed. ... During the course of this episode your client would of had [sic] very much reduced control over his behaviour, and very impaired judgment."

17 At the same time as tendering the further medical report counsel for the respondent tendered some comments made by the learned Chief Justice on passing sentence on 7 November 1985 upon a conviction for dangerous driving. The document tendered read as follows:

"R v John Raymond WALL

GREEN, CJ

7th November, 1985.

COMMENTS ON PASSING SENTENCE

The accused's manner of driving was very dangerous and I think a sentence of imprisonment is clearly called for. However, the circumstances of this case are special. I am particularly influenced by these considerations:

1. The accused is suffering from bipolar affective disorder and he cannot be regarded as having the same degree of responsibility for his actions on the night of the crime as an ordinary person would have had.

2. it appears that his condition is capable of being controlled by appropriate medication.

3. In my view, ensuring that the accused continues with his medication would be at least as effective and would probably be more effective as a means of preventing a repetition of this sort of crime as would the imposition of a sentence designed to operate as a deterrent.

4. I am required to have regard to general deterrence when I impose sentence but I do not think that the deterrent effect of this Court's sentences generally would be significantly reduced by an individualised sentence in this case, and further in my view, it is less appropriate to make an accused person who is suffering from a mental disorder, the subject of a sentence of general deterrence.

In my view, in all the circumstances, this is a case in which it would be appropriate to suspend the execution of the sentence which I propose imposing.

The accused is sentenced to six months imprisonment. I order that the execution of the whole of that sentence be suspended upon condition that he be of good behaviour for the next 18 months. I make a probation order against the accused requiring him to be of good behaviour for the next 18 months, and to submit to the supervision of a probation officer during that period. A further condition of the probation order is that the accused shall submit to such medical or psychiatric treatment that a probation officer might reasonably direct during that period. I order that the accused be disqualified for holding or obtaining a driver's licence for the next 18 months."

"Thank you. Well, if your research found that, Mrs Betts, you're to be congratulated because it fits the circumstances of your client Elvin Gleeson like a glove, doesn't it." [My emphasis]

19 Before setting out the learned magistrate's comments on passing sentence it is appropriate to note that amongst the material put before the learned magistrate was a list of the respondent's previous convictions which, apart from a conviction of driving without due care and attention on 9 February 1990, were unremarkable in the exercise of the sentencing discretion. Also tendered were two character references.

"Thank you. Yes, all right, would you stand up, please, Elvin Gleeson. On the 11th of June this year you pleaded guilty to two complaints of dangerous driving committed on the 2nd of April and the 4th of April this year, the first in Goodwood and Hobart's northern suburbs and the second throughout the Lakes area of central and northern Tasmania, and on the 11th of June I was in no doubt at all that each incident involved a very long distance of very, very, very dangerous driving and if that was the only information I had in considering proper penalty for you I would without doubt have sentenced you to long terms of imprisonment on each count because as far as I'm aware, in my experience in practice and as a magistrate, I've not heard on any occasion incidents of driving of such distant [sic] or of such danger involved as to you and any other people who may have been on the road. I'm very glad that I didn't proceed on that occasion immediately to sentence because since then I've had the benefit this morning of seeing the video recording of your interview by CIB officers on the 5th of April and the mere watching of that was most informative because it was my opinion from time to time that your behaviour during the course of that interview was bizarre and strange in many respects, several of which I noted in relation to the times appearing on the video tape - I don't think I need to specify those in any detail for the purpose of this transcript because anyone watching that video will identify them as I did, no doubt - and that lends real support to the proposition which Mrs Betts put to me on the 11th of June with the aid of Dr Sayer's [sic] report, and it's as well that it did give it that support because, without any disrespect to Dr Sayer [sic] at all, it might have been thought that that short report handed up on the 11th of June, in view of the enormity of the driving that you were concerned with, was rather short and bland - words which I say is not intended to reflect any criticism of the author. And I am glad, too, that I didn't proceed to sentence on the 11th of June because the industry of Mrs Betts has found the most helpful comments of His Honour the Chief Justice involving a man who had driven dangerously when afflicted by the same condition that affected you on the 2nd and 4th of April, and I adopt His Honour the Chief Justice's comments in that case with respect and gratitude as my own in this. As I've already said, the manner of your driving on both occasions was very dangerous indeed and if that had been the only relevant matter to determine sentence, a sentence of imprisonment would clearly be called for. However, the circumstances of this case are special and I, as His Honour the Chief Justice, was particularly influenced by the following considerations: you were suffering from bipolar (?) effective disorder and you can't be regarded as having the same degree of responsibility for your actions in driving on the 2nd and 4th of April as an ordinary person would have. Secondly, it seems that that condition is capable of being controlled by appropriate medication. In my view also ensuring that you continue with your medication to prevent repetition of driving such as this would be at least as effective to do so and probably more effective as than sentencing you to an actual term of imprisonment. I am required to have regard to general deterrence in fixing a proper sentence but I do not think that the deterrent effect of the Court's sentence would be significantly reduced by an individualised sentence in your case, it being less appropriate to make an accused person who's suffering from mental disorder to the subject of a sentence for the purpose of achieving general deterrence ..." [His worship proceeded to make the orders referred to at the beginning of these reasons].

21 With respect to serious offences of dangerous driving, this Court has consistently taken the view that general deterrence weighs heavily in the proper exercise of the sentencing discretion. See Sheldrick v The Queen [1960] Tas SR (NC) 3; Paynter v The Queen CCA 95/1964; Wise v The Queen [1965] Tas SR 196. In cases involving deliberate assumption of risk to the public, the weight of this factor is increased (R v O'Brien CCA 43/1987), notwithstanding youth or mental and physical disability. See R v Percy [1975] Tas SR 62. In the latter case Chambers J said at p82:

"In my opinion the aspect of deterrence, both to the offender himself and generally, was the most important aspect of the case. I agree with what Gibson J said in Paynter v The Queen (Unreported Serial No. 951964), that imprisonment as a deterrent is easily comprehended by the ordinary man, but a suspended sentence is unlikely to produce the same effect. An effective sentence of imprisonment cannot be shrugged off but, certainly in the case of a person who has consistently been in trouble with the law on previous occasions (as had the respondent here), a suspended sentence might be regarded as something in the nature of a 'paper tiger'."

Notwithstanding the importance of deterrence, both general and personal, in the sentencing process each case must depend upon its own facts and an individualised approach to sentencing must never be excluded. See R v Koeppen CCA 101/1982 in which case it was said that reduced mental capacity was a mitigating factor and good prospects for rehabilitation relevant to the execution of a prison sentence. See also Cirkel v White [1980] Tas R 91.

22 In Sentencing in Tasmania Mrs Warner points out at p313 that less than 25% of prison sentences imposed from 1980-1989 were wholly suspended. She observes, correctly in my view:

"Comments on passing sentence indicate that courts generally adhere to the guidance provided by the Court of Criminal Appeal in Percy that consideration of general deterrence in serious cases of dangerous driving requires an immediate custodial sentence and a suspended sentence is properly indicated by a compelling case for rehabilitation rather than by mitigating factors. Thus, where an offender's behaviour is attributable to alcoholism, drug addiction or mental disorder, general deterrence may be outweighed by the desirability of orders that might restore the offender to the community."

23 Ground 3 of the motion to review attacks the learned magistrate's finding that the respondent was less responsible for his actions than the ordinary person. This ground is not made out. The Justices Rules, r36(3) empowered the magistrate, before imposing penalty, to receive "such evidence or statements as [he thought] fit in order to inform [himself] as to the circumstances of the case or the penalty to be imposed or the order to be made." Pursuant to that authority he received the two medical reports from Dr Sale. Counsel for the applicant on this motion criticised these reports for they contained no patient history, reasoning or basis for the opinions they expressed. Whilst there may be some substance in the criticism, no objection to the receipt of the expressed opinions was put to the learned magistrate. That was the time and place for the prosecuting authorities to object to the receipt of the material or to submit it had no weight. The learned magistrate was entitled to make the finding that he did. See Richardson v Shipp [1970] Tas R 105. This finding entitled the learned magistrate to take the view that the sentence should be less than that which he would have imposed upon a person not suffering from the mental condition described by Dr Sale. Similarly, the learned magistrate was entitled to take into account, as mitigatory factors the respondent's antecedents and, apart from the prior convictions, good character.

24 The offences were very serious. The risk of death or injury to other users of the road was extremely high and sustained over long distances. In both cases the respondent deliberately assumed these grave risks in an attempt to evade pursuing police. The circumstances of the second offence were worse than the first and although at the time it was committed there was no prior conviction for dangerous driving, an aggravating feature was that, only two days previously, the respondent had driven dangerously to evade pursuing police. Without mitigating factors a total sentence of 10 months for both offences could be regarded as manifestly inadequate.

25 As well as the very serious nature of the two offences, it was appropriate for the learned magistrate to take into account by way of mitigation the fact that the respondent was suffering from a mental illness which reduced self control and impaired judgment. See R v Koeppen (supra). He correctly observed that the respondent could not be regarded as having the same degree of responsibility for his actions as would have had an ordinary person not afflicted by that illness. With respect to personal deterrence, the total sentence of ten months' imprisonment was well within the proper exercise of the sentencing discretion given that reduced self control and impaired judgment by reason of illness was found to be causally related to the commission of the offences. In such circumstances the aspect of general deterrence has to give some ground. In the end it is a question of balance. By the imposition of a total sentence of ten months it cannot be said that the learned magistrate so misjudged the weight of the relevant facts that in some unspecified way the exercise of his sentencing discretion miscarried.

26 I turn to the orders of suspension of the whole of the sentence. In R v Percy (supra) Neasey J said at p73:

"However, it is almost self-evident that a sentence of imprisonment should not be suspended unless there is some reasonable prospect, from the circumstances of the case or of the offender, that remission from actual imprisonment combined with the expectation that the sentence will have to be served if the conditions of suspension are breached will have sufficient deterrent effect; or will sufficiently move the offender towards reform of his conduct as to achieve that reformation."

27 The views expressed by Neasey J in the passage set out above and those immediately preceding it have been since adopted by this Court. See for example, R v Causby [1984] Tas R 54. The undisputed material before the learned magistrate included the following:

1 The respondent was aged 21.

2 He was a qualified tradesman who was and, since leaving school had been, in employment.

3 He had a supportive family environment.

4 His criminal behaviour was causally linked, at least in part, to mental illness.

5 Symptomology indicating a likely onset of a similar bout of mental illness would in future be recognised by the respondent and his family. Medication would be likely to avoid a recurrence of the illness.

6 If he submitted to the appropriate medical treatment and followed the appropriate advice, the "prognosis [is] very good both for remaining on the right side of the law and maintaining employment".

28 Together, the foregoing matters presented a formidable argument that "remission from actual imprisonment combined with the expectation that the sentence will have to be served if the conditions are breached" would be a sufficient deterrent for the respondent. Although there may be some validity in the submission put that the general deterrent effect of the sentence of imprisonment is weakened if its execution is conditionally suspended, that proposition, in the circumstances of this case, is not of sufficient weight to sustain the argument that conditional suspension was an erroneous exercise of the sentencing discretion.

29 Ground 4 of the motion to review complains that the learned magistrate erred in fact and/or in law in placing too much weight on the comments on passing sentence of the Chief Justice in The Queen v Wall. It would appear, particularly from the comparison made by the learned magistrate, "it fits the circumstances of your client Elvin Gleeson like a glove, doesn't it", that the learned magistrate did elevate the status of the comments of the learned Chief Justice to that approaching a precedent. His repetition of those comments when passing sentence reinforces the view that the learned magistrate appropriated the orders made by the Chief Justice to the matter before him on the basis that the comments were authority for the course the magistrate in fact adopted. He said that he was glad he had not proceeded to sentence without inter alia having read "the most helpful comments of the Chief Justice". The learned magistrate knew nothing of the circumstances surrounding the commission of the offence nor those surrounding the offender in the matter before the Chief Justice other than that offender suffered from the same mental illness as the respondent and had been convicted of committing the same crime. Standing alone, the remarks of the learned Chief Justice were of no relevance in the sentencing process of the learned magistrate and did not warrant the statement that the circumstances of one matter fitted the circumstances of the other "like a glove".

30 Notwithstanding the existence of specific error it is not appropriate to disturb the orders made except those relating to the period of licence disqualification. See Short v Stearnes, Cosgrove J 71/1984; Mather & Anor v Morgan [1971] Tas SR 192 at p210. The orders of imprisonment and conditional suspension of the execution of the sentences are orders which could be made upon a proper exercise of the sentencing discretion for the reasons I have advanced. In such circumstances it would not be just to permit the prosecuting authority to rely upon error incidental to the proper exercise of the sentencing discretion to have the orders set aside and thereafter, mount a challenge to evidentiary material which passed unchallenged in the first instance.

31 The orders of eight months' disqualification are a different matter. Taking into account the serious nature of the offences and the need for general and personal deterrence, the orders of licence disqualification are manifestly inadequate, notwithstanding mental illness.

32 Appropriate orders are 12 months' disqualification on the first offence and 3 years disqualification on the second offence, served cumulatively.

33 The motions to review will be allowed. In each case the orders that the respondent be disqualified from holding or obtaining a driver's licence for eight months will be set aside and in lieu thereof on complaint number 6130491 the order is that the respondent be so disqualified for a period of 12 months from 12 July 1991 and on complaint number 335491 for a period of three years commencing at the expiration of the period of disqualification imposed on complaint number 6130491.