Magistrates - Appeals and review - Tasmania - Motion to review - The hearing - Review of sentence - Disqualified from driving for 14 days and fined $300 for driving while disqualified - Whether sentence manifestly inadequate.

Visser v Smart [1998] TASSC 151, Maher v Banks A7/1992 ([1992] TASSC 67 AustLII); Jarvis v Brown and McDonald [1998] TASSC 120, applied.

Judgment Number: [2012] TASSC 17

SENIOR SERGEANT JOHN PARKER v KRISTIAN VINCENT WHITEMAN

1 The applicant has filed a notice to review the sentence Magistrate Marron imposed on the respondent on 15 December 2011, following the respondent's plea of guilty to a charge of driving whilst disqualified in breach of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s19A(1). His Honour fined the respondent $300 and disqualified him from driving for 14 days.

2 The sole ground of review is that the sentence is manifestly inadequate. In arguing this ground counsel for the applicant has focused on the inadequacy of the driving disqualification of 14 days.

3 In my consideration of this matter I have kept in mind the following passage from the decision of Crawford J (as he then was) in Visser v Smart [1998] TASSC 151:

"An appellate court must not interfere with the exercise of the sentencing discretion except in a clear case of error. A magistrate is vested with a very wide discretion. Whittle v McIntyre [1967] Tas SR 263 (NC6). It is not sufficient to set aside a sentencing order just because a more severe sentence would have been imposed by the appellate court. In the circumstances of this case, the motion must fail unless the Court is satisfied that the sentence was manifestly wrong in its inadequacy, as to amount to a clear error in the sentencing process. Such principles have been stated by courts of this State on a great many occasions and come from the High Court in cases such as House v R [1936] HCA 40; (1936) 55 CLR 499, Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 and Harris v R [1954] HCA 51; (1954) 90 CLR 652. Notwithstanding the wide sentencing discretion in the court below, it is the duty of the appellate court to interfere where it is necessary to do so to avoid such manifest inadequacy in sentence or inconsistency in sentencing standards that the error is of such gravity that it is essential in the administration of justice that the error be corrected. It is not necessary to identify any particular error of law made. The error can be implicit in the excessive leniency in the sentence imposed."

4 The background to this matter is that on 14 April 2011, the respondent was sentenced on his plea of guilty to a charge of driving a motor vehicle on 22 September 2010 whilst a prescribed illicit drug was present in his blood in breach of the Act, s6A. He was fined $260 and disqualified from driving for three months from 14 April 2011.

5 His conviction for driving whilst disqualified, which is the basis of the sentence subject to appeal, was for an offence committed on 25 May 2011. As to the facts of this offence, all that his Honour was told is that at 3.25pm on that day the police intercepted the respondent driving a motor vehicle on the main road at Exeter. The respondent identified himself to the police and admitted that he was disqualified from driving. His Honour was told that the respondent had no relevant prior convictions. Further information that his Honour could glean from the Complaint before him is that the respondent was 32 and his address was 129 Weld Street, Beaconsfield.

6 The respondent told his Honour that the reason for his driving was that the person he was with had decided to start drinking. Whilst he, the respondent, realised it was against the rules to drive, he said that he was not going to let someone who was drinking, drive. In response to questions from the magistrate he said that he was not working and was a disability pensioner; and said that there was nothing else he would like to say. Thereupon his Honour said:

"Well, I'm required to disqualify you for a further period. I'm going to do that on this occasion for 14 days. ... There's also a fine in relation to that of $300 ...".

7 When the respondent expressed concern that he had to get his vehicle home, his Honour said that he would start the disqualification the next day.

8 On the face of it, the respondent's excuse for driving was extremely flimsy. His Honour did not make enquiries of the respondent about it. It is not known whether or not the respondent was driving his own vehicle, what alternatives were open to him, where the respondent was when the person he was with decided to start drinking, or how much that person had drunk. If the other person's decision to start drinking was made at Beaconsfield, the respondent's home town, it is difficult to understand why the respondent was driving a vehicle through Exeter. In the absence of sufficient information to evaluate the respondent's excuse for driving, it is difficult to see how any weight could be placed on it.

9 For an explanation for driving in breach of a disqualification to be a significant mitigating factor, there must be a real emergency, otherwise little weight will be given to it. In Maher v Banks A7/1992 ([1992] TASSC 67 AustLII), Cox J (as he then was) considered an offender's explanation that he had driven because the driver of the car had become intoxicated. The offender had given sworn evidence before the sentencing magistrate in support of his explanation. Cox J said, at par[10], that no proper explanation had been advanced for the offender's decision to drive whilst disqualified, and:

"While I concede the possibility that circumstances might arise where, there being a real risk that an intoxicated person in charge of a vehicle would drive it and thereby endanger himself and/or members of the public unless a disqualified but competent driver took the wheel, the latter's action in altruistically doing so for that reason might significantly reduce his culpability, the evidence placed before the learned magistrate fell far short of demonstrating that such an emergency existed."

10 In the case under review, there was also no information on how far and for how long the respondent had driven. The length of the proscribed piece of driving is relevant, and an extensive journey is an aggravating factor; Kube v Barrett 20/1986.

11 Since 14 August 2000, the Act, s19A(1), has relevantly provided:

"(1) A person who, except in so far as he is authorized to do so by a licence issued pursuant to an order made under section 18 of the Vehicle and Traffic Act 1999, drives a motor vehicle while he is disqualified from driving under this Act is guilty of an offence.

Penalty:

(a) a first offence - a fine not exceeding 40 penalty units or imprisonment for a term not exceeding 6 months (or both) and a further period of disqualification (not exceeding 3 years) fixed by the court; and

(b) a second or subsequent offence - a fine not exceeding 80 penalty units or imprisonment for a term not exceeding 12 months (or both) and a further period of disqualification (not exceeding 5 years) fixed by the court."

12 It is apparent from this provision that the legislature considers that a first conviction for driving whilst disqualified is a potentially grave offence. An upper penalty for such a conviction that includes a fine not exceeding $5,200 or imprisonment for a term not exceeding six months, or both, and a further period of disqualification not exceeding three years, is a very substantial penalty.

13 It seems that his Honour reads this provision through a different prism than I do. I note that in Lusted v Palmer; Hibble v Warrener; Hibble v Pepper; Parker v Barron [2010] TASSC 5, Tennent J dealt with four notices to review decisions of his Honour in which he failed to impose any period of disqualification on four offenders convicted of driving whilst disqualified in breach of s19A(1). Each of the notices of review succeeded because of his Honour's failure to impose any disqualification. As observed by Tennent J at par[24], the plain meaning of the words used in the provisions are that the options available are:

•

a fine; or

•

imprisonment; or

•

both a fine and imprisonment;

•

and additionally, a further period of disqualification.

14 For reasons that I explained in Jarvis v Brown and McDonald [1998] TASSC 120, the power to disqualify drivers from driving is an important road safety tool. In my view, its utility will be greatly diminished if the penalties imposed for breaching a driving disqualification order are nominal, or worse, derisory. Those minded to drive whilst disqualified are no doubt encouraged to do so by the unlikelihood of being caught. In the circumstances it is important that the penalty imposed on those who are caught serve the needs of both personal and general deterrence. In Maher v Banks (supra) at par[3] Cox J said: "It is self-evident that deliberate disobedience of a disqualification order cannot be viewed lightly or such orders would lose their force and bring the law into disrespect ...". Consistent with that which was said by Tennent J in Simon Brown v Richardson [2011] TASSC 62 at par[23], any sentence for offences of the nature of the respondent's needs to ensure that the system of minimum mandatory penalties is not undermined, and that the penalty is seen to provide adequately for the protection of the public.

15 The sufficiency of the length of the period of disqualification imposed on the respondent must be viewed in the context of the capacity of his total sentence to serve the needs of personal and general deterrence. For example, if that need had been served by the imposition of an immediately effective period of imprisonment, a more modest period of disqualification than would otherwise have been thought appropriate may have been sufficient. Plainly this was not a case for the imposition of a period of imprisonment, whether immediately effective or not, and on the minimal information that was before his Honour in relation to the respondent's assets and income, it was not a case for a substantial fine. In these circumstances, the length of the period of further disqualification to be imposed on the respondent by his Honour was of importance to both personal and general deterrence.

16 As explained by Professor Kate Warner in her text, Sentencing in Tasmania, 2nd ed, Federation Press, 2002, par14.516, there are two distinct summary offences of driving whilst disqualified. One is driving whilst disqualified under any Act other than the Road Safety (Alcohol and Drugs) Act, which is an offence contrary to the Vehicle and Traffic Act 1999, s13. The other is driving whilst disqualified in breach of the Road Safety (Alcohol and Drugs) Act, s19A. These offences attract the same maximum penalties. The penalties are much more severe than the penalties provided for under the now repealed Traffic Act 1925, s37, and the former penalty provisions in the Road Safety (Alcohol and Drugs) Act. This needs to be borne in mind when considering past sentencing data. At par14.520, Professor Warner says that in 1999 - 2000, the period of licence disqualifications for s19A offences ranged from 28 days to three years, with a median of four months. The period for breaches of the Traffic Act, s37, ranged from 28 days to two years, with a median of three months.

17 Against this background I conclude that on the limited information that was provided to his Honour about the respondent's breach, there was no basis for so modest a period of further disqualification as 14 days. The notice to review is allowed and the sentence quashed.

18 As to the final disposal of the matter, counsel for the applicant submits that I should remit the matter to be dealt with by another magistrate. As the respondent does not oppose this course I order that the matter be remitted to another magistrate for sentence according to law.