Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss4, 14(1C) and 17.

Harriss v Walker (1996) 89 A Crim R 257; R v O'Brien 43/1987; Jarvis v Brown and McDonald 20/1998; Davies v Wylie [1992] 1 Tas R 73; Briant v Bessell (1994) 74 A Crim R 204; R v Causby [1984] Tas R 54; Shepherd v Visser and Turner [1999] TASSC 81; Peck v Visser and Turner [1999] TASSC 38, followed.

Judgment Number: [2000] TASSC 29

1 The applicant seeks a review of penalties of three months' imprisonment and disqualification from holding or obtaining a driver's licence for four years imposed upon his plea of guilty to the following charges:

"CHARGE: Drive under the influence of intoxicating liquor.

BREACH OF: Section 4 Road Safety (Alcohol and Drugs) Act, 1970.

PARTICULARS: You are charged with driving a motor vehicle on the 26th August, 1999 on Amy Street and Undara Crescent, public streets at Ulverstone in Tasmania, while you were under the influence of intoxicating liquor to the extent you were incapable of having proper control of the vehicle.

BREACH OF: Section 14(1C) of Road Safety (Alcohol and Drugs) Act, 1970.

PARTICULARS: You are charged with on the 26th August, 1999 at Ulverstone in Tasmania, being a person having been taken into custody by a Police Officer under the provisions of Subsection (2) of Section 10 of the Road Safety (Alcohol and Drugs) Act, 1970 you did hinder your conveyance to a place to enable a direction to be given under Subsection 4 of Section 10 of the Road Safety (Alcohol and Drugs) Act, 1970."

2 The review is sought on the ground that the penalties are manifestly excessive. The prosecutor stated the facts to the learned magistrate in the following terms:

"... It was around 8.30 pm on Thursday the 26th August [1999], police were alerted by radio to keep a lookout for a blue Holden ute with the possibility of a person driving under the influence of alcohol in the Amy Street area of West Ulverstone. Police were advised that the radio room had received several calls from distressed residents in the Amy Street and Undara Crescent areas of West Ulverstone in relation to a blue utility driving dangerously.

Police attended Amy Street to search for the vehicle and were approached by an upset witness. He expressed concerns over the dangerous driving of a ute near his residence. He informed police that the vehicle had hit something in the units at 47 Amy Street and that he had seen the driver stumbling around outside the ute, then get in it again and took off along Amy Street and turned into Penguin Road. He stated that the vehicle hit the kerb in front of his house when it took off along Amy Street.

Police continued a short distance along Amy Street when a young woman rang (sic) out onto the road crying, stating that a mad person was driving around the area and that she was too scared to drive her car home from her friends place at the units at 47 Amy Street.

Police continued driving along Amy Street and turned into Undara Crescent. A blue Holden utility was parked in the driveway of 7 Undara Crescent, the lights were on and the keys were in the ignition. They observed the defendant talking to a female person on the front steps of that address.

The female person witnessed the defendant's driving and she told police she observed him doing donuts in Warruga Court and then speed across the road fishtailing and almost hit the kerb on Undara Crescent and then speed up towards Amy Street and turned left. Not long after that she heard a vehicle stall in her driveway then restart and crunch and grind the gears and drive up her driveway and stop.

She did not know who he was, he thumped on her door and she answered it. She stated that the defendant was obviously drunk, he was swaying in the doorway, his eyes were red.

She told police she spoke to the defendant for 3 to 4 minutes and then police arrived. She stated that the defendant said to her, 'They're here for me, I'm pissed, I'm getting out of here.'

Police spoke to the defendant in the driveway of 7 Undara Crescent, he was staggering and holding on to the tray of the ute for support. He smelt heavily of intoxicating liquor and was slurring his words. Police informed him that he was not permitted to drive and he then sat in the drivers side of the vehicle and attempted to start it.

The engine screeched as he was turning the key to the start position whilst it was running, he was grinding the gears to try and find reverse. Police took the keys from the ignition, the defendant then got out of the vehicle, he staggered to the side fence near the footpath and vomited.

He was informed he was under arrest for driving under the influence, he refused to get into the police vehicle, yelling and struggling with police. Four police officers attempted to get him into the vehicle, he resisted their efforts and was forced onto the ground so the handcuffs could be applied. He placed his hands under his body and was thrashing about in an effort to avoid being handcuffed.

Whilst on the ground he again vomited in the gutter and he was eventually placed in the official van that attended. He was taken to the Ulverstone Police Station and left in a van whilst a call was made to advise Devonport station that he would be taken there.

Your Worship, he ... could not get out of the van unassisted and nor could he walk. He actually had to be carried to the breath analysis office there sir, and he could not sit in a chair unsupported and was held in the chair by police.

In the charge room sir, he again vomited into a bin and due to the state of that vomit sir, an ambulance was called and they attended. He was taken to the Mersey Community Hospital by the ambulance officers sir. ...".

3 In mitigation counsel for the applicant told the court the applicant was 36 years of age. He was in receipt of a pension and child endowment for his 11 year old daughter of whom he was the sole parent. His daughter had no contact with her mother. The explanation proffered for the applicant's behaviour was that it "followed the break up of a relationship that the [applicant] had and unfortunately he looked to alcohol to help him cope with that and that got out of control". As to penalty, it was put to the learned magistrate that "the prime consideration is that he is the sole parent of an 11 year old girl who has not had contact with [her] mother for some years. Her mother lives in Hobart and were [the applicant] to go to gaol, then the care of the child would be extremely problematical".

4 The court was informed that the applicant had a brother and sister who lived in Ulverstone. The sister had a child who she cared for. The brother was not in a position to provide care for an 11 year old girl. It was also told that "the daughter suffers from ADD and that would also present problems for anybody else who [was] to look after her. She is in contact with a specialist paediatrician at the Burnie Hospital."

5 The applicant's prior record includes numerous convictions for traffic offences and some convictions for offences of dishonesty. He was imprisoned in 1992 for offences of dishonesty. His record also includes the following convictions for breaches of the Road Safety (Alcohol and Drugs) Act 1970 :

FINED $60 COSTS $10.10 DRIVERS LICENCE DISQUALIFIED 6 MONTHS

FINED $100 COSTS $16.10 DRIVER'S LICENCE DISQUALIFIED 7 MONTHS

FINED $500 COSTS $22. DRIVER'S LICENCE DISQUALIFIED 18 MONTHS

6 Section 17 of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), was repealed and re-enacted by the Road Safety (Alcohol and Drugs) Amendment Act 1991, with effect from 12 December 1991. As re-enacted, s17, sets out two Tables of minimum and maximum penalties, one for "first offences" and one for "subsequent offences", declaring that "a person is guilty of a subsequent offence if that person has previously been convicted of an offence" under certain sections of the Act. Each of the applicant's prior convictions relates to a designated section. Notwithstanding that those prior convictions were for offences committed before the amendment of s17, they are prior convictions for the purposes of that section; Davies v Wylie [1992] 1 Tas R 73. Counsel for the applicant submitted that I should not follow Davies v Wylie. That decision having been made after consideration on the construction of a statutory provision, consistent with the opinion of Gibson J in Peck v The Attorney-General [1956] Tas SR 88, I should follow it without comment. However, in view of the observations of Wright J in Swetnam Brothers Pty Ltd v Grundy, 17/1997, it seems appropriate that I say that having reviewed the decision with the submissions of counsel for the applicant in mind, I am quite unpersuaded that the decision is clearly wrong, and I will follow it. As the applicant's conviction was a subsequent conviction, the learned magistrate was empowered to imprison him for up to 24 months and subject to s17(5), the learned magistrate was obliged to disqualify him from holding or obtaining a driver's licence for a period of not less than 24 months.

7 When sentencing the applicant, the learned magistrate said:

"Well Mr Williams, you've pleaded guilty to one charge of driving under the influence and one of hindering conveyance. The facts that were put to me by the prosecutor indicate to me that you were in such an advanced state of intoxication at the time of these offences that you posed a very significant risk to other road users. Really, you shouldn't have been anywhere near a car.

Your counsel has told me that you'd consumed alcohol following the break up of your relationship. I wasn't told how recent that was in so far as it related to the date of the offences, but I'll assume that it was recent and you'd been looking to alcohol to help you cope are Mr Roe's words.

Well, I suppose a lot of people use alcohol as a crutch Mr Williams, but they don't all then get into their motor vehicles and drive around on our public streets putting the lives and safety of innocent members of the public at significant risk. This is not something that is new to you, you have 3 convictions under the Road Safety (A&D) Act in 1984 and 1989 and again in 1993. On the last occasion that was a refused breath analysis charge.

On this particular occasion I am not assisted by a breathalyser reading to determine or to give me some idea of what your blood alcohol level was, but I make an assumption from the facts presented to me that it was very high.

The clear policy of the Road Safety (A&D) Act Mr Williams, is to provide protection for members of the public from people who consume alcohol to excess and then drive their motor vehicles on public streets. People who persistently offend against that legislation can expect to go to gaol. As I indicated this is your 4th conviction.

I take into account your personal circumstances, I take into fact that you are responsible for an 11 year old child and she I suspect is going to be the one that will suffer because of the penalty that I'm about to impose in relation to you. In my view a deterrent penalty is appropriate and a sentence of imprisonment is clearly appropriate.

You are convicted on the complaint. On the complaint you are sentenced to 3 months imprisonment. On the complaint you are disqualified from holding or obtaining a drivers licence for a period of 4 years from the date of your release. You will pay the Victims of Crime Levy on the complaint which is $40.00, and I will order that that be paid within 2 months of the date of your release.

I had been considering a longer sentence than that Mr Williams, but given the fact that you've pleaded guilty to these charges, I gave you some credit for that and have reduced it somewhat."

8 On behalf of the applicant, it is submitted that the pattern of his prior convictions shows that he is a reformed person. He has not been convicted of an offence of any description since his release from prison in mid-1992. During the course of the previous 10 years, he committed about 70 offences; mainly traffic offences, but also crimes of dishonesty and breaches of the Act as detailed in par5. It is submitted that the applicant's behaviour on 26 August 1999 should have been seen as a lapse, precipitated by a domestic crisis, by a person who has made an effort to rehabilitate himself and live a stable law-abiding life. Viewed from this stand point, it is submitted that the applicant's offence did not warrant the imposition of a sentence of imprisonment in order to deter him from further breaches. It is contended that he would have responded satisfactorily to a suspended sentence or some other more merciful penalty. It was also submitted that the disparity between the immediate custodial sentence imposed on the applicant and the last penalty he received for breaching a provision of the Act, a fine of $500, was too great. Finally, it was submitted that a custodial sentence should not have been imposed because of the likely consequences of it on the well-being of the applicant's daughter.

9 As a general principle, the court should have no regard to the impact which a sentence of imprisonment will have on the members of an accused's family. However, this is not an absolute principle, and it may be departed from in extreme cases; Boyle (1987) 34 A Crim R 202. When sentencing the applicant, the learned magistrate observed that the applicant's daughter would suffer because of the penalty he was about to impose. This did not dissuade him from imposing a sentence of imprisonment, and in my respectful view, it should not have. Whilst the potential impact of the applicant's imprisonment on his daughter was serious, on the information before the learned magistrate, the impact was not so extreme as to justify failing to impose an immediate custodial sentence if that course was required.

10 In Briant v Bessell (1994) 74 A Crim R 204, Zeeman J said at 208:

"I previously have had occasion to express the view that the clear legislative intent evinced by the Act is to treat the driving of motor vehicles by persons affected by the consumption of intoxicating liquor as a grave social evil which is to be visited with penalties severe enough to act as a general deterrent and a personal deterrent to the particular offender. The very substantial increases in penalties and the prescription of minimum penalties, both effected by the Road Safety (Alcohol and Drugs) Amendment Act 1991 (Tas), make that legislative intent very clear. Whilst Parliament has stopped short of providing for the mandatory imposition of terms of imprisonment, even in the case of persistent offenders, the imposition of terms of imprisonment ought not to be reserved for extraordinary cases. Certainly an offender such as the present applicant, who has been convicted on three occasions of breaches of s6(1) involving quite high readings, cannot complain where a short period of imprisonment is imposed."

11 The above comments and the following comments of Cox CJ apply with equal, if not greater, force to the offence of driving under the influence of intoxicating liquor in breach of the Act, s4. In Harriss v Walker (1996) 89 A Crim R 257, Cox CJ said at 260:

"An offence against the Act, s6 is a matter of considerable seriousness, especially where the concentration in question significantly exceeds the prescribed concentration. Where the offence is repeated, even though on an earlier occasion the court has not proceeded to conviction and for the purposes of any statutory table the subsequent offence leads to a first rather than a subsequent conviction therefor, the question whether it is necessary to impose a deterrent penalty becomes of particular importance. This view was taken by the court several years before mandatory penalties were introduced in 1991: Booth v Breen (unreported, Everett J, 10/1980); Spaulding v Lowe (unreported, Underwood J, 4/1985); Dobson v Clark (unreported, Green CJ, 65/1983); Barrett v Pearce (unreported, Neasey J, 6/1986); Lowe v Burridge (unreported, Neasey J, 31/1986); Ling v Wakefield (unreported, Wright J, 41/19086); Miller v Visser (unreported, Cox J, 32/1988)."

See also the observations of Underwood J in McLeod v Middleton A25/1989 at 5 and 6.

12 No material was put before me to suggest that the penalty of imprisonment imposed on the applicant was out of line with other penalties imposed in similar cases. His behaviour constituted a real and grave risk to other road users. Whilst an explanation was offered for the applicant's extreme inebriation - the break up of a relationship - no explanation was put forward for him driving a motor vehicle in that state. That he was observed "doing donuts" indicates that he was not driving because of any pressing need to do so. His vehicle was seen to hit something in the units at 47 Amy Street, as well as the kerb in front of the home of a witness. Notwithstanding these clear indications that the applicant was unfit to drive, he persisted to do so and indeed endeavoured to re-enter his vehicle and drive away after he had been approached by the police. This was a grave offence. Whilst it may be that the applicant would have responded favourably to a suspended sentence of imprisonment, that course was not appropriate. In R v Causby [1984] Tas R 54 at 67, Cox J (as he then was) said:

"It is trite to say that a defendant does not qualify for a suspended sentence merely by persuading the court that the likelihood of repetition is slight or non-existent. A perusal of the decisions on cases of serious dangerous driving referred to for example in R v Percy [1975] Tas SR 62 or on cases of rape referred to in Austin v The Queen [1971] Tas SR 227, is sufficient to establish that point. But even where the seriousness of the crime does not require that the reformatory aspect of the punishment should be subordinate to the deterrent aspect, optimism or even certainty about future good behaviour does not entitle the offender to that treatment."

13 In view of the seriousness of the applicant's offence, including the risk his behaviour constituted to other road users, and his prior convictions, I am not persuaded that the imposition of an immediate custodial sentence of three months' was manifestly excessive.

14 I turn to the disqualification of the applicant from holding or obtaining a driver's licence. In the course of imposing sentence, the learned magistrate did not go into his reasons for concluding that the duration of the applicant's disqualification should be four years. This Court has previously expressed concern that excessively long periods of disqualification may be counter-productive and have a tendency to increase the prospects of non-compliance with the court's order. See R v O'Brien, Wright J, 43/1987, Shepherd v Visser and Turner, Cox CJ, [1999] TASSC 81, and Peck v Visser and Turner, Wright J, [1999] TASSC 38.

15 In Jarvis v Brown and McDonald, 120/1998 I said at 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 a 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."

16 The applicant had not previously been imprisoned for a drink driving offence. There was reason to hope that the penalty of three months' imprisonment would have a salutary effect on him and deter him from offending again in the future. It cannot be said that he had exhausted the court's hopes for his reform. The duration of the licence disqualification imposed on him should have been fixed with the objective of reform in mind.

17 The minimum period of disqualification the learned magistrate could have imposed was 24 months. A longer period of disqualification was not necessary for the purposes of deterrence, that objective having been served by the penalty of three months' imprisonment. In the circumstances, notwithstanding the wide discretion which the learned magistrate had in relation to sentencing, I consider that a licence disqualification of four years, on top of three months' imprisonment, was unnecessarily harsh and manifestly excessive. In my view, the minimum period of disqualification, 24 months, was sufficient. I quash the order disqualifying the applicant from holding or obtaining a driver's licence for four years and, in lieu, order that he be disqualified from holding or obtaining a driver's licence for 24 months from the date of his release from prison. The orders of the Court of Petty Sessions are otherwise confirmed.