14 On 13 February 2011, the applicant was caught driving at a speed of 95 kilometres per hour in a 60 kilometres per hour zone. On that occasion he admitted he had been drinking and said he was taking his 16 year old brother home. He was found to have a blood alcohol level of .157 at the time. On this occasion, the applicant was issued with an excessive drink driving notice.

15 It is clear the applicant, at the time he was sentenced by Magistrate Mollard, had demonstrated repeatedly a complete disregard for the requirements of drink driving and vehicle and traffic legislation, and that penalties designed to act as a deterrent had had no effect whatsoever. The learned magistrate made it clear that he realised he may have imposed a very lengthy period of disqualification, but had done so quite deliberately. Given the applicant's record and continuing bad driving behaviour, I can well understand why his Honour did what he did.

16 The applicant was living with his mother and pregnant girlfriend. He was unemployed and in receipt of Centrelink benefits. His parents had separated when he was about seven years old. He moved back and forth between them and was homeless at times. As an adult he had moved between the homes of various relatives for short periods at a time. Despite this, he was able to complete schooling to year 11 at Kingston and Huonville High Schools. On leaving school, he did various jobs with the Tasmanian Aboriginal Centre. He did six months training with Green Corps and completed a certificate in land management and first aid at TAFE. He was exposed to drug use at a young age and cannabis use became a feature of his life. He has significantly reduced his consumption. He also went through a stage of binge drinking and suffered from depression.

17 The learned magistrate noted, before counsel for the applicant even completed his plea in mitigation, that the applicant was looking depressed. His Honour brought the proceedings to a halt, and organised for a mental health liaison officer to see the applicant. As a consequence, the proceedings were adjourned and a forensic mental health report was obtained. The author of the report interviewed the applicant and determined he was suffering from a mild form of depression. Dr Jordan said the applicant's description of his circumstances indicated a pattern of this for at least two years, and said there was evidence of poor concentration, low esteem and transient feelings of hopelessness. He noted however that the significance of the applicant's misuse of both alcohol and cannabis needed to be considered because they could contribute to a lowering of mood.

18 The learned magistrate determined there was a very strong need to impose a sentence designed to deter the applicant, notwithstanding the contents of the forensic mental health report. He also noted however that he had to balance that against the contents of the report. His Honour emphasised the use of the word "safety" in the legislation pursuant to which the applicant was to be sentenced, and said that the applicant's behaviour had been so bad and so persistent that the public was entitled to see a sentence imposed which would guarantee it would be safe for a significant period of time. He also noted he hoped any sentence would be something the applicant would learn from.

19 The submissions by counsel for the applicant commenced with the proposition that a period of six years disqualification in itself was manifestly excessive, but that the sentence of disqualification was even more so having regard to the disqualification already being served at the time of sentence. Counsel referred to a portion of the text, Warner, K, Sentencing in Tasmania, 2nd ed, The Federation Press, Sydney, 2002, at 170, where the learned author, under the heading "Length of disqualification", summarised the impact of a number of cases in which arguments about the excessive length of periods of disqualification had been dealt with. She said, starting at par6.318,:

"Courts have warned against very long periods of disqualification on the grounds that they discourage rehabilitation. In Wise, the Court of Criminal appeal reduced a 15-year disqualification period to five years in a case of dangerous driving when a 21-month period of imprisonment was also imposed. Crisp J stated:

To add to that a penalty of fifteen years deprivation of a licence to drive, savours to me excessively of retribution and is likely I think to be unduly restrictive of the offender's future rehabilitation and possible reception into society.

Wise was applied in Nation v Carrick where Everett J set aside three periods of disqualification of four years, to be served cumulatively, and substituted three 18-month periods. In O'Brien, a case of 'motor manslaughter', the Court of Criminal Appeal confirmed an order for disqualification from holding a driver's licence for three years while substituting a sentence of 12 months imprisonment for one of four months. Wright J stated the disqualification period was entirely appropriate and added:

It was recognised in Wise v The Queen (supra) that an excessively long suspension smacks of retribution and may hinder rehabilitation. I would also add that an unreasonably long suspension tends to encourage the commission by the offender of the further serious offence of driving whilst disqualified.

6.319 In Jarvis v Brown, Evans J agreed that long periods of disqualification may be counter-productive. He stated: 'Where an offender has not exhausted the Court's hopes for his or her reform, where possible, the period should encourage reform'. He reduced a disqualification period of 16 years to six years for three occasions of drink driving over a four-month period where the offender had four prior convictions for such offences. In the case of recidivists he suggested very long periods are not more effective than shorter period because 'they are likely to reoffend early in the period of their disqualification and be saddled with the consequences of their behaviour'. These comments were cited in Peck v Visser where Wright J reiterated the concern he had expressed in O'Brien that long periods of disqualification have a tendency to increase non-compliance with the courts orders. He reduced an eight-year period of disqualification, which was on top of six years previously ordered, by making the periods partly concurrent even though the offender was a confirmed recidivist who had committed drink-driving offences on 10 separate occasions over 15 years. The policy that periods of disqualification should not be so long as to invite the commission of further offences or hinder rehabilitation applies only to long periods of disqualification, particularly periods which extend long after the offender's release from custody."

20 Counsel then briefly referred to a number of the cases referred to by Professor Warner and added to the list, Hunter v White [2002] TASSC 72 and Williams v McLaughlin [2000] TASSC 29. In both these cases, lengthy periods of disqualification were reduced. In Hunter's case, Cox CJ referred to Jarvis v Brown 120/1998, a decision of Evans J and quoted a passage:

"See also Nation v Carrick A7/1983 (Everett J); O'Brien v R A43/1987 (CCA) and Jarvis v Brown 120/1998, where Evans J said, at page 5:

'The Court's power to disqualify drivers is an important road safety tool. The threat of a licence disqualification is a major deterrent to the great majority of drivers and actual disqualifications frequently prompt drivers to desist from unsafe driving. Licence disqualifications can protect the community by keeping potentially dangerous drivers off the road. Some protection is also obtained in relation to those who drive regardless of their disqualification in that police officers and others who are aware of the situation can take steps to bring about compliance and the imposition of further penalties. In a sense, it does not make a lot of difference whether recidivists who receive disqualification are disqualified for six years or sixteen years. They are likely to re-offend early in the period of their disqualification and be saddled with the consequences of their behaviour. As to others, it is important that the length of their disqualification should not be so great as to offer little or no hope. Where an offender has not exhausted the Court's hopes for his or her reform, where possible, the period of disqualification should encourage reform.'

The period of 16 years' disqualification in that case was reduced to six years for three instances of drink driving with high readings by a person with four prior such convictions, but who had shown some slight signs of reform which his first sentence of actual imprisonment might be expected to encourage."

21 In the present case, the court was dealing with a young man who had a bad driving record, although it must be said it was not as bad as some described in the cases referred to above. He was, at the time of sentence, clearly in need of psychological assistance and had been for about two years before. He had in the past shown little inclination to change his ways. However, his personal circumstances were such that he was to become a father for the first time, he had been in custody for some months and would stay there for another two, and on release he would be the subject of a suspended sentence. A forensic mental health report also indicated an awareness of the problems being caused by excessive alcohol and cannabis use.

22 The court was also dealing with a young man who was already disqualified through to 2016 by reason of the November 2010 sentence and the excessive drink driving notice. Because the drink driving offences on complaints 50141/10 and 1434/11 were both subsequent offences for the purpose of the imposition of penalties by reference to the table in the RSAD Act, s17, and the minimum period of disqualification applicable to each was two years, the learned magistrate was to an extent constrained as far as the lower level of the range of penalties of disqualification he could impose. It is clear from his Honour's comments in respect of complaint 1434/11 that he imposed that minimum period of disqualification, thereby confirming the disqualification imposed by virtue of the excessive drink driving notice. As to the penalty imposed on complaint 50141/10, his Honour sentenced globally and it can only be inferred that his starting point with that complaint was again another two year minimum period of disqualification.

23 There is no doubt the applicant deserved a lengthy period of disqualification for his conduct. The question is, in the context of this young man's circumstances, should a period of six years be considered to be manifestly excessive? I am of the view that it should be, having regard to the applicant's age, his personal circumstances, the time actually spent in custody, the suspended sentence, and the period of disqualification already in place. Having said that, any sentence needed to ensure the system of minimum mandatory penalties for certain offences under the RSAD Act was not undermined and that penalties be seen to provide adequately for the protection of the public. I am of the view that a period of four years disqualification in all would address those needs.

24 To achieve that end, the orders of the Court are:

1 That the notice to review dated 28 July 2011 is allowed.

2 That the order of disqualification made by the learned magistrate on complaint 50141/10 in respect of counts 1, 2 and 4 is quashed and in its place, the applicant, in respect of count 4 is ordered to be the subject of a period of two years disqualification and in respect of count 1 a period of 12 months disqualification with the latter period to be served concurrently with the former.

3 That the orders of disqualification imposed by the learned magistrate in respect of complaints 7905/10 and 1437/11 be varied so as to provide that the periods of disqualification are to operate concurrently with that imposed on complaint 50141/10.

25 There is no need in the circumstances to deal with the second ground of the notice to review as a distinct ground.