Wilkie v Cohen [2016] TASSC 14

McDonald v Nilsson [2009] TASSC 83, 54 MVR 32; Markovic v The Queen [2010] VSCA 105, 30 VR 589, referred to.

Judgment Number: [2016] TASSC 14

1. This is a motion for the review of some sentencing orders made by a magistrate, Mr C P Webster. His orders relate to three separate occasions when the respondent committed driving offences. The applicant, a police officer, contends that the penalties imposed by the learned magistrate were manifestly inadequate.
2. The orders were made on 30 July last, but the notice to review was not filed and served until 21 August, the day after the expiration of the 21-day limitation period imposed by s 107(3) of the Justices Act 1959. At the hearing of the motion to review, counsel for the applicant realised that the notice had been filed out of time, and applied for an extension of time, which was opposed. I reserved my decisions in relation to both the application for an extension of time and the motion to review. I infer that the notice to review was filed out of time as a result of an oversight by someone in the office of the Director of Public Prosecutions. The delay in filing and serving the application after the 21-day period expired was minimal. The respondent was represented by counsel at the hearing of the motion to review. The delay did not result in him being handicapped in any way in opposing the motion. In the circumstances, I think it is in the interests of justice for time to be extended.
3. The first group of offences was committed by the respondent on 9 February 2015. He was apprehended driving at 1.32am. He did not hold a driver licence. He had not held one since 2002. He submitted to a breath analysis which returned a reading of 0.073%. There is no suggestion that there was anything wrong with the way he was driving. A police officer served him with an "excessive drink-driving notice" pursuant to s 18B of the Road Safety (Alcohol and Drugs) Act 1970. The effect of that notice was to disqualify him from driving. He pleaded guilty to three charges relating to this first incident:
   • Driving a motor vehicle while exceeding the prescribed alcohol limit of 0.05%.
   • Driving when not the holder of a driver licence.
   • Driving with alcohol in his body when unlicensed, contrary to s 6(2) of the Road Safety (Alcohol and Drugs) Act.
4. The respondent was apprehended driving again on 8 April 2015 at 1.15pm. He was still disqualified from driving pursuant to the s 18B notice. He pleaded guilty to a charge of driving whilst disqualified.
5. Three days later, at 12.40am on 11 April 2015, police officers saw the respondent driving and attempted to apprehend him. They activated flashing lights on the police vehicle, but the respondent initially failed to stop. He subsequently came to an abrupt stop and ran away. Police officers chased him and arrested him. It was found that he had THC in his body. There was no suggestion that his driving was in any way affected by the presence of THC on the third occasion. The offence of evading police was at the less serious end of the spectrum since he commenced to evade them on foot, not by fast driving, and did not get far before he was apprehended. In relation to that incident, he pleaded guilty to the following charges:
   • Driving whilst disqualified.
   • Evading police, contrary to s 11A(1) of the Police Powers (Vehicle Interception) Act 2000.
   • Driving with a prescribed illicit drug in his blood, contrary to s 6A(1) of the Road Safety (Alcohol and Drugs) Act.
6. The learned magistrate imposed a series of global penalties. He convicted the respondent, disqualified him from driving for 18 months, fined him $560, and sentenced him to three months' imprisonment, wholly suspended on condition that he be of good behaviour for two years. Those are the penalties that the applicant contends were, in the aggregate, manifestly inadequate.
7. The drink driving and s 6A offences were subject to mandatory minimum penalties under s 17(5) of the Road Safety (Alcohol and Drugs) Act. In respect of the drink driving offences, the learned magistrate was required to impose a fine of between 4 and 20 penalty units and/or a term of imprisonment not exceeding 6 months, as well as a disqualification period of between 6 and 24 months. In respect of the s 6A offence, he was required to impose a fine of between 2 and 10 penalty units and/or a period of imprisonment not exceeding 3 months, as well as a disqualification period of between 3 and 12 months. All of the other offences were punishable by fine and/or imprisonment, without any legislative requirement as to any minimum penalty. At the time of sentencing a penalty unit amounted to $154. The fine of $560 was therefore less than the amount that the learned magistrate would have had to fine the respondent if he had not also imposed a wholly suspended sentence of imprisonment.
8. The respondent was 37 years old when he committed the offences. He has not been to prison before, but he has a number of serious convictions for driving offences. They include convictions for drink driving offences committed in 1999 (when his reading was 0.146%), in 2006 (when his reading was 0.066%), and on two consecutive days in July 2010 (when his readings were 0.108% and then 0.178%). They also include convictions for driving whilst disqualified in July 2010, January 2011, and August 2011, and driving while unlicensed in 2005 and 2007.
9. One significant mitigating factor was that the respondent spent 17 days in custody before being sentenced for these offences. That was a result of him failing to appear before the Magistrates Court, and being arrested pursuant to a warrant. He pleaded guilty to a charge of failing to appear, as to which the learned magistrate simply recorded a conviction. That charge and that conviction are not the subject of the motion to review. The learned magistrate was obliged to take into account the 17 days that the respondent spent in custody both when sentencing him on the charge of failing to appear and when sentencing him on the charges that I am concerned with. No doubt he did so.
10. Another relevant mitigating factor was that the respondent pleaded guilty to all the charges. He thereby saved the cost and inconvenience of a defended hearing, but the outcome of any defended hearing would almost inevitably have been findings that all charges were proven. The charge of driving with THC in his blood was not originally included in any of the complaints before the learned magistrate, but was added by amendment, with the respondent's consent, on the day that these matters were disposed of. His co-operation on that occasion adds a little to the weight to be given to his pleas of guilty.
11. The learned magistrate was given information about the reasons that the respondent chose to drive on the three relevant occasions. I do not regard those reasons as having much significance in relation to penalty. On the first occasion, he told the police that he had driven to a mate's place near his home, and wanted to bring the car home. On the second occasion, he received information that his daughter was being harassed at Eastlands, and was at risk of assault, and decided to drive there to assist her. On the third occasion, his stepson-in-law had been involved in a car accident which resulted in damage to the vehicle of another motorist, and the respondent decided to drive to the accident scene, after midnight, because he wanted to help resolve that matter. On each occasion, he simply should not have driven.
12. The respondent has four dependents - his long-term partner, their two young children, and a teenage stepdaughter. He has a good employment history. The learned magistrate was told that he had work available to him upon his release from custody. His partner became incapacitated as a result of a motor vehicle accident in January 2015. She had had a cleaning business, but had to give up that work and lose her income. The respondent had been diagnosed as suffering from post-traumatic stress, and had been prescribed anti-depressants.
13. Counsel for the respondent submitted to me that the respondent's family circumstances were exceptional, and could therefore properly be taken into account by the learned magistrate. He referred me to the decision of the Victorian Court of Appeal (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA) in Markovic v The Queen [2010] VSCA 105, 30 VR 589. However, as the Court said in that case at [3], "It has long been the position at common law that, unless the circumstances are shown to be exceptional, family hardship is to be disregarded as a sentencing consideration." At [77], their Honours said:

"Whether or not, in any particular case, family hardship gives rise to 'exceptional circumstances' must be a question of fact and degree. In answering that question, it is necessary to have regard to the admonition, often stated in the authorities, that such cases will be 'rare'. A sentencing judge should have regard to the many examples in the decided cases of undoubted hardship which have, none the less, been held by appellate courts to fall short of 'exceptional circumstances'."

1. At that point their Honours provided, in footnote 37, a list of cases relating to hardship. One of them was the decision of the South Australian Full Court in R v Wirth (1976) 14 SASR 291, in which Wells J said, at 296:

"... if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go."

1. However there are examples of judges being less steely-hearted. In my view this is a case where the circumstances were exceptional. The information provided to the learned magistrate was very thin, but it was clear enough that the respondent's partner was physically incapacitated, unable to work, and responsible with him for the care of three children. In the circumstances, I think the impact of a sentence of imprisonment was a relevant sentencing factor. But it does not necessarily follow that it was a critical factor or even a strong one.
2. The respondent has persistently offended against the Road Safety (Alcohol and Drugs) Act. The attitude that should be taken by judges of this Court, and by magistrates, towards such persistent offenders is as stated by Crawford CJ in McDonald v Nilsson [2009] TASSC 83, 54 MVR 32 at [14] and [15], where his Honour said:

"14 For many years, judges of this Court have emphasised their condemnation of persistent offending against the Act. In Barrett v Pearce A6/1986 at 4, Neasey J referred to the need for adequate consideration to the seriousness of the repetition factor, and the necessity of giving due weight to the principle of deterrence. In Briant v Bessell (1994) 74 A Crim R 204 at 208, Zeeman J referred to the clear legislative intent evinced by the Act to treat the driving of motor vehicles by persons affected by the consumption of intoxicating liquor as a grave social evil that was to be visited with penalties severe enough to act as a general deterrent and as a personal deterrent to the particular offender. His Honour expressed the view that the imposition of terms of imprisonment ought not be reserved for extraordinary cases. Likewise in Peck v Visser [1999] TASSC 38 at par8, Wright J confirmed the view of this Court over many years that persistent offenders under the Act merit severe punishment. At par17, his Honour referred, in the particular circumstances of the case with which he was dealing, to the apparent fact that the offender had not been deterred by increasingly severe penalties and described him as a persistent danger on the State's roads.

15 Statements of those kind have been made or repeated in many cases. See, for example, Boyd v Peters [1988] Tas R 66 at 72; Devine v Maher [1990] TASRp 13; [1990] Tas R 147 at 149 - 150; Harriss v Walker (1996) 89 A Crim R 257 at 260."

1. The respondent had offended against the Act over many years. He had received wholly suspended sentences in 2010 (6 weeks), and in 2011 (10 weeks and 12 weeks). He breached the conditions of his first suspended sentence by re-offending, but a magistrate re-suspended that sentence. The learned magistrate had to sentence him for re-offending on three occasions - first on 9 February, then about eight weeks later on 8 April, and then three days later on 11 April. It was his duty to impose a sentence designed to deter the respondent from re-offending. The history of the respondent ignoring disqualifications and even a suspended sentence indicated that he was a man who was not easily deterred. And it was necessary to impose a sentence that would deter others from similar offending.
2. As Evans J observed in Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, 20 Tas R 399, at [9], "there is a marked divergence between the views of the judiciary and the community in relation to the impact of suspended sentences". There is a tendency for members of the public to regard a suspended sentence as scarcely being any punishment at all. That view is misconceived, but it is a common perception that should be taken into account in assessing the likely effect of a package of sentencing orders by way of general deterrence.
3. In my view the respondent's offending on the three occasions in question was so serious, in all the circumstances, that the only proper course was to impose a sentence of imprisonment that was not wholly suspended, and which required him to spend more time in prison than the 17 days that he had already served on remand. That is to say, I am satisfied that the penalties imposed by the learned magistrate, in the aggregate, were manifestly inadequate.
4. However, despite that conclusion, I have a discretionary power to dismiss the motion to review: Justices Act, s 110(2)(ab); Lyons v Bakes [2015] TASSC 37. In exercising that discretion, or in re-sentencing, s 110(2AA) of that Act permits me to take into account matters relevant to sentencing that have occurred since the matter was dealt with by the learned magistrate. Section 110(2AB) of that Act precludes me from taking into account "any element of double jeopardy" when re-sentencing, but does not preclude me from taking such a matter into account when deciding whether to exercise the discretion to dismiss the motion. That means that, when deciding whether or not to dismiss the motion, I may take into account the anxiety that the respondent has no doubt felt after having been released from custody on the day of sentencing, and then having been placed at risk of returning to prison when the notice to review was served on him on 21 August, and the anxiety that has no doubt resulted from this motion having been pending ever since then.
5. Since this matter was before the learned magistrate on 30 July, the respondent has obtained full-time employment in a wood mill at Huonville. His partner has ongoing medical problems relating to her accident. I was told that the motorist who caused that accident received a suspended sentence, but I do not regard that fact as significant for present purposes.
6. In my view the respondent's offending was too serious for it to be appropriate for me to exercise the discretionary power to dismiss the motion to review. I will allow the motion to review and re-sentence him. The only appropriate penalty is one requiring him to spend further time in prison. I will take into account the fact that he might not be able to return to his present employment on his release, and the impact that the imprisonment will have on members of his household. And I will backdate his sentence by 17 days to take account of the time that he spent in custody last July. In all the circumstances, I think a sentence of 12 weeks' imprisonment, with no part of it suspended, is appropriate. I will not disturb the driving disqualification and fine imposed by the learned magistrate.
7. For these reasons, there will be orders as follows:
   • The time for filing the motion to review is extended to 21 August 2015.
   • The motion to review is allowed.
   • The wholly suspended sentence of three months' imprisonment imposed by the learned magistrate is set aside.
   • The respondent is sentenced to 12 weeks' imprisonment, with effect from 6 March 2016.