Vehicle and Traffic Act 1999, s 13

Visser v Smart [1998] TASSC 151 applied

Criminal law - Appeal and new trial - Appeal against sentence - Appeals by Crown - Principles applied by appellate court to Crown appeals - Residual discretion to dismiss appeal not exercised.

Parker v Hall [2015] TASSC 60 applied

Traffic Law - Licensing of drivers -Tasmania - Offences - Drive while disqualified.

Vehicle and Traffic Act 1999, s 13

Judgment Number: [2025] TASSC 57

1. This is a prosecution appeal against a sentence imposed by a magistrate, Ms S Cure. On 12 March 2025 the respondent pleaded guilty to one count of driving while disqualified. He was sentenced to a term of imprisonment of one month, wholly suspended for nine months from the date of sentence, and disqualified from driving for one month cumulative to the period of disqualification he was already serving. The applicant is a police officer. The sole ground of the motion is that the sentence is manifestly inadequate.
2. Prosecution appeals against sentence are less readily allowed than defence appeals[1]. However in this case, the motion should be allowed. The sentence imposed by the learned magistrate disclosed clear error[2]. The sentence was so obviously inadequate that the sentencing discretion must have miscarried. It was plainly outside the proper limits of the wide discretion vested in the magistrate[3]. I am satisfied that I should not exercise the residual discretion to dismiss a prosecution appeal and I will re-sentence the respondent.

The circumstances of the offending and the personal circumstances of the respondent

1. The circumstances of the offence were that the respondent, on 9 March 2024, drove on Friend Street in Georgetown when he was disqualified from driving. He was subject to court orders which disqualified him from driving until, on my calculations, 9 May 2027, although the magistrate was told that the period of disqualification was between 27 October 2023 and 8 May 2026. He had been released from prison only four months earlier after having served a four month term for the same offence. No other details of the offence were given to the magistrate by the police prosecutor. The respondent was unrepresented. He told the magistrate that he and his partner had a one year old child. He said his partner was "going through a bit of post-natal depression" and he "needed to get out of the house". He said "we needed stuff for bub so I just went for a drive to clear my head."
2. At the time of the offence the respondent was aged 24. When sentenced he was 25. The magistrate had some, albeit limited, details of his personal circumstances. Apart from the child he had referred to, the respondent had one other child with his current partner, and they were expecting another child. The respondent had two children, a daughter and a son, from previous relationships. He said that "I've got my eldest daughter back from WA from my sister and my son he's with kinship from my auntie". He was employed by a shoe repairer, but it was a job he had obtained only two weeks earlier.
3. The respondent's record was an important matter in sentencing. He had a very bad record for driving offences. He was first disqualified from driving when he was 17 for two counts of driving without a licence and two counts of driving with an illicit drug in his blood. Since then:
   • on 6 August 2018 he pleaded guilty to six counts of driving with an illicit drug, two counts of driving while disqualified and four counts of driving without a licence. He was made subject to a probation order for 12 months and disqualified from driving;
   • on 24 January 2019 he pleaded guilty to driving while disqualified and driving with an illicit drug in his blood. He was sentenced to a wholly suspended term of imprisonment of two months and disqualified from driving;
   • on 24 April 2020 he pleaded guilty to driving offences including three counts of driving while disqualified, two counts of driving with an illicit drug in his blood and evading police. He was sentenced to imprisonment for seven months;
   • on 11 January 2021 he pleaded guilty to driving while disqualified in an unregistered and uninsured vehicle. He was disqualified from driving and ordered to perform 49 hours of community service;
   • on 9 November 2021 he pleaded guilty and was sentenced for four counts of driving while disqualified, driving with an illicit drug in his blood and two counts of evading police, committed in breach of an earlier suspended sentence. He was sentenced to a total term of imprisonment of 13 months. Three separate cumulative orders of disqualification were made which, according to the record of prior convictions, total four and a half years from 9 November 2021, which would have expired on 9 May 2026;
   • on 12 September 2022 he was re-sentenced on the community service order made on 11 January 2021 to a different community correction order with supervision for nine months; and
   • on 28 June 2023 he pleaded guilty to driving while disqualified on 2 December 2022 in an unregistered motor vehicle and was sentenced to imprisonment for four months from 28 June 2023 and disqualified from driving for 12 months commencing at the end of any current period of disqualification. That order took the period of disqualification through to 9 May 2027.
4. The respondent would have been released from the term imposed on 28 June 2023 on 23 October 2023. The driving for which he was then sentenced occurred on 9 March 2024. He was sentenced a year later in March 2025. He told the magistrate that since his release from prison he had been "really trying to pull my head in and get my stuff right", that there had been "no charges since this incident" and he had "gone a whole year without driving". It was readily apparent from his record that he had, for a long time, been using illicit drugs to which he attributed the breakdown of his earlier relationship. The record of prior convictions expressly mentioned methylamphetamine and amphetamine as having been, on two occasions, the drug involved in the drug driving charges. The magistrate asked the respondent whether he was "clean" and he told her Honour that since his release he had "not touched meth like that or nothing" and that he only used cannabis every now and again to help him get to sleep. The magistrate told the respondent when imposing sentence that "you seem to actually have the prospect of reforming yourself."
5. Counsel for the respondent correctly pointed out that the respondent, as a person unrepresented before the magistrate, faced difficulties in conveying to the magistrate all that might be said on his behalf. This is not a case in which the failure to put relevant matters which were in the respondent's favour resulted in a sentence which was too harsh. The question in this motion is the opposite, whether the sentence was erroneously lenient. In deciding that question for a person who was not legally represented before the sentencing court, the interest of justice may require some enquiry about whether there were facts which might have been put in his favour, but which were not. However, in this case, counsel for the respondent did not point to any fact or matter material to sentence which the respondent did not sufficiently convey to the magistrate at the sentencing hearing.
6. The respondent was, at the same sentencing hearing, also sentenced for unrelated summary offences, including escaping from the police, committed two months later on 14 May 2024, for which the magistrate imposed fines totalling $800.

1. The seriousness of driving while disqualified by virtue of a court order, particularly with a history of similar offending, is well established[4]. One reason that those who breach an order of disqualification must expect punishment is that, otherwise, the force and effect of such an order is undermined and the law is brought into disrepute. Orders of disqualification are made not just to punish offenders but also for protection of the public and for general and specific deterrence. All of the sentencing aims are undermined if the order is disobeyed. Parliament has legislated for harsher penalties for subsequent offenders. Because it was not the applicant's first offence it was punishable by a fine not exceeding 80 penalty units, imprisonment for a term not exceeding 12 months, or both, and disqualification from driving for a period not exceeding five years: Vehicle and Traffic Act 1999, s 13(1)(b). The penalty provisions disclose an intention that subsequent offenders are liable to increased punishment[5]. By enacting a provision of that kind, legislature indicated an intention that where the punishment imposed for a first offence has not operated as a sufficient warning or deterrent to an offender, a higher penalty is then to be imposed for a further offence.
2. The respondent was not to be punished again for his past offences, but the offence for which he was to be sentenced was yet another instance of his continuing attitude of disobedience to the law. Retribution, deterrence and protection of society all indicated that a more severe sentence was required[6]. Progressively harsher sentences imposed almost annually between 2017 and 2023 had not deterred the respondent from yet again flouting the force and effect of the orders of disqualification to which he was subject. Although there were no factors which aggravated the objective seriousness of the driving, the reason the respondent advanced for driving, to "clear his head", was flippant and indicative of a lack of insight into the seriousness of his conduct. Previous sentences had not deterred him from again, only a few months after his release from prison, demonstrating disdain for the force of the court orders that he not drive.
3. With the greatest respect to the learned magistrate, the imposition of a wholly suspended term of imprisonment of one month accompanied by a period of disqualification of only one month was, in the respondents' circumstances, erroneously lenient and plainly outside the proper limits of her Honour's sentencing discretion.

1. To succeed in the motion, the applicant must also persuade the Court to not exercise the residual discretion to dismiss a prosecution appeal in accordance with the principles outlined in R v Hernando [2002] NSWCCA 489, 136 A Crim R 451, Green v The Queen [2011] HCA 49, 244 CLR 462 and CMB v Attorney General for New South Wales (2015) 256 CLR 346[7]. Those principles apply to motions to review the decision of a magistrate in this State.[8]
2. One factor which remains relevant to the exercise of the residual discretion to dismiss the motion is the element of double jeopardy which arises when the respondent faces, for a second time, the prospect of going to prison[9]. I would infer that the respondent was anxious about the prospect of returning to custody and, having been served with the motion to review, having his life put on hold again while the motion was pending[10]. Delay in the appeal process which disrupts an offender's progress towards rehabilitation is also a factor relevant to the exercise of the residual discretion[11]. This motion was filed on 26 March 2025. However, delay in service meant that it was a few months before the respondent appeared in answer to it, and the motion was not heard until almost seven months from filing. The respondent has also, so far, complied with the conditions of the suspended term her Honour imposed.
3. Notwithstanding these matters, I have concluded that the residual discretion should not be exercised. Intervention is necessary for the guidance of sentencing courts and to maintain public confidence in the administration of justice by correcting an unjustly lenient sentence[12]. The sentence did not reflect the requirement for denunciation, protection of the public and general deterrence in sentencing persons who repeatedly offend against court orders which prohibit them from driving. I would allow the motion, quash the sentencing orders made by the magistrate and re-sentence the respondent.

1. The respondent was entitled to mitigation from his plea of guilty. As the magistrate correctly recognised, there were some signs of rehabilitation. In the period of about a year between the offence on 9 March 2024 and the sentence on 12 March 2025, the respondent had not committed any further driving offences. The offence for which he was sentenced was the only relevant driving offence he had committed since his release from prison on 23 October 2023. On the material before the magistrate it was not an offence accompanied by use of an illicit drug or alcohol or an attempt to evade police, in contrast to many of the other similar offences on his record. In re-sentencing the respondent I may also take into account any relevant matter that has occurred between when the sentence was imposed and the hearing of the motion to review[13]. The respondent maintains that he has remained abstinent from illicit drugs. He now has a different full time job, working with a forestry harvesting company. Most significantly, there has been no further offending. He still wants to resume custody of his son and his daughter, although that process has been put on hold until the result of these proceedings is known. I think that the magistrate was correct to give weight to the prospect that, for the first time in many years, the respondent was showing signs of bringing his life into order.
2. For those reasons, although the term of imprisonment imposed by the magistrate was plainly inadequate, I agree with her Honour that the term should be wholly suspended. The term of imprisonment should be long enough to mark the seriousness of the respondent's criminality and sufficiently provide for deterrence and punishment. By suspending the term the respondent is permitted an opportunity for rehabilitation and the chance of avoiding a return to prison. I will, however, also extend the period for which he will remain subject to the suspended sentence as incentive for him to continue his reform. The respondent will understand that if he re-offends during the period the order is in force, it is almost certain that he will be required to serve the term of imprisonment about to be imposed, together with whatever other sentence may be imposed for any new offences. Similarly, the period of disqualification must be increased, but the effect will be ameliorated to take account of totality by an order that part of the period be served concurrently with the lengthy total period of disqualification to which he is presently subject.

1. The orders made by the learned magistrate on 12 March 2025 included that the respondent be convicted on complaint 31778/24, count 1, and pay costs and fees. I do not intend to interfere with those orders. Otherwise, I order:

(a) the motion is allowed;

(b) the sentencing orders of imprisonment and disqualification made by the learned magistrate on 12 March 2025 are quashed;

(c) the respondent is sentenced to a term of imprisonment of six months, wholly suspended for 18 months from 5 November 2025; and

(d) the respondent is disqualified from driving for 18 months. Twelve months of that period is to be served concurrently with the total period of disqualification he is currently serving, and the balance is to be served cumulatively. Any driver licence he has is cancelled.

[1] The principles are summarised by Wood J in Parker v Hall [2015] TASSC 60 citing R v Allpass (1993) 72 A Crim R 561 at 562-563, R v Clarke [1996] VicRp 83; [1996] 2 VR 520 at 522, approved by the High Court in Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671, and Director of Public Prosecutions v Chatters [2011] TASCCA 8; 21 Tas R 26.

[2] Visser v Smart [1998] TASSC 151

[3] Allen v Kerr [2009] TASSC 10; (2009) 19 Tas R 132

[4]Davies v Petersen 50/1991; Maher v Banks [1992] TASSC 67; Green v Bessell B57/1993; Bessell v Riley B12/1995 [1995] TASSC 15; Brown v Stone B14/1995 [1995] TASSC 23; Peck v Visser [1999] TASSC 38 and in the Full Court at [1999] TASSC 90, and Parker v Bessell [2012] TASSC 78; Barrett v Wilson [2015] TASSC 3; 69 MVR 33.

[5] Cashman v Jordan [2009] TASSC 112 per Crawford J

[6] Veen (No 2) [1988] HCA 14; 164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ at 477.

[7] For discussion of the residual discretion under the Criminal Code by the Court of Criminal Appeal in this State see Director of Public Prosecutions v Swan [2016] TASCCA 9, 26 Tas R 32 at [8] and [27]; DPP v Harington [2017] TASCCA 4, 27 Tas R 128 at [96]; Director of Public Prosecutions v Harwood (No 2) [2019] TASCCA 13 at [55]; Director of Public Prosecutions v J S P [2020] TASCCA 3.

[8] Cannell v Hughes [2014] TASSC 41; Lyons v Bakes [2015] TASSC 37; Parker v Hall [2015] TASSC 60; Wilkie v Cohen [2016] TASSC 14; Merrigan v Oakley [2016] TASSC 58; Parker v Shaw [2017] TASSC 25; Harris v Leaman [2022] TASSC 28; 100 MVR 22.

[9] Lyons v Bakes [2015] TASSC 37.

[10] R v Hayes (1987) 29 A Crim R 452 at 469.

[12] Everett v The Queen [1994] HCA 49; 181 CLR 295 at 306; Green v The Queen at [1]-[2].