Anthony v Hibble

[2004] TASSC 67

[2004] TASSC 67

CITATION:         Anthony v Hibble [2004] TASSC 67

PARTIES:  ANTHONY, Richard Dare Ellis
  v
  HIBBLE, Constable Kim
  VISSER, Sergeant Claas
  LUSTED, Constable Trudie Margaret
  RYAN, Constable Patrick Lawrence
  BONDE, Sergeant Michael Andrew
  FISHER, Stephen Leigh

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 9/2004
DELIVERED ON:  2 July 2004
DELIVERED AT:  Launceston
HEARING DATE/S:  25 June 2004
JUDGMENT OF:  Blow J

CATCHWORDS:

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Multiple breathalyser, false name, failure to appear, and other offences – Totality principle – Ineligibility for parole – Whether manifestly excessive.

Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  D G Grey
           Respondents:  J P Ransom
Solicitors:
           Applicant:  Zeeman Kable & Page
           Respondents:  Director of Public Prosecutions

Judgment ID Number:  [2004] TASSC 67
Number of paragraphs:  9

Serial No 67/2004
File No LCA 9/2004

RICHARD DARE ELLIS ANTHONY v CONSTABLE KIM HIBBLE, SERGEANT CLAAS VISSER, CONSTABLE TRUDIE MARGARET LUSTED, CONSTABLE PATRICK LAWRENCE RYAN, SERGEANT MICHAEL ANDREW BONDE and STEPHEN LEIGH FISHER

REASONS FOR JUDGMENT  BLOW J
  2 July 2004

1. The applicant was sentenced by a magistrate to 15 months' imprisonment, with 5 months thereof suspended and no eligibility for parole, in relation to a series of charges under the Road Safety (Alcohol and Drugs) Act 1970, the Bail Act 1994, the Traffic Act 1925, the Motor Accidents (Liabilities and Compensation) Act 1973, the Vehicle and Traffic Act 1999, and the Traffic (Road Rules) Regulations 1999. This is a motion to review in respect of the sentencing orders made by the learned magistrate. The applicant contends that the sentence was manifestly excessive, and that the learned magistrate erred in refusing to set a non-parole period.

1. Details of the charges, and the maximum penalty under the relevant legislation for each of them, appear in the following table:

Complaint No	Charge	Date	Section	Prison – Months
23673/96	Exceed .05 – .19	19.07.1996	s6(1) RSAD	24
23674/96	False name	19.07.1996	15(2)(b) RSAD Act	6
Fail to appear	28.08.1996	s5(4) Bail Act	3
23676/96	Exceed .05 – 0.117	02.08.1996	s6(1) RSAD	12
False information	21.08.1996	s15(2)(b) RSAD	6
Fail to appear	02.10.1996	s5(4) Bail Act	3
17825/97	Breach of Bail	09.05.1997	s9 Bail Act	6
80259/97	False name	08.12.1996	s41(1)(a) Traffic s52	11st offence – fine only
Unregistered motor vehicle	08.12.1996	s14(i)(c)(ii) Traffic	1st offence – fine only
Uninsured motor vehicle	08.12.1996	s29(1) MA (L & C) Act	12
80258/97	False name	24.03.1997	s41(1)(a) Traffic	3
Unregistered	24.03.1997	s14(1)(c)(ii) Traffic	3
Uninsured	24.03.1997	s29(1) MA (L & C) Act	12
33639/03	Unlicensed	02.11.2002	s8(1) Vehicle & Traffic Act	1st offence – fine only
Unregistered motor vehicle	07.11.2002	s27(1) Vehicle & Traffic Act	1st offence – fine only
Use mobile	07.11.2002	Reg300(1) Traffic Road Rules	Fine only $500
Unlicensed	23.11.2002	s8(1) Vehicle & Traffic Act	3
Unlicensed	27.11.2002	s8(1) Vehicle & Traffic Act	3
Use mobile	27.11.2002	Reg300(1) Traffic Road Rules	Fine only $500
40651/03	Unlicensed	21.03. 2003	s8(1) Vehicle & Traffic	3
Use mobile	21.03.2003	Reg300(1)Rules	Fine only
Total 105

1. The applicant has five prior breathalyser convictions – in 1980 (with a reading of 0.11), 1982 (0.11 again), 1983 (0.17), 1988 (0.16), and 1995 (0.19).  The last of those related to an offence committed in January 1994.  He was convicted by a magistrate on 15 November 1995, and disqualified from driving for 3 years.  The first of the present offences was committed some eight months later on 19 July 1996.  As a result of a random breath test, it was found that the applicant had been driving with a blood alcohol content of 0.19.  He was of course a disqualified driver.  He gave a false name, and did not answer his bail.  The same things happened again on 2 August 1996:  he was caught driving with a blood alcohol content of 0.117, gave a false name, and did not answer his bail.  A warrant was issued for his arrest.  He apparently did not renew his motor vehicle registration or insurance.  He was apprehended driving an unregistered and uninsured vehicle on 8 November 1996, but gave a false name.  Again, in March 1997, he was apprehended driving an unregistered and uninsured vehicle, and gave a false name.  After his licence disqualification expired, he apparently did not obtain a driver's licence.  He was stopped by police officers three times in November 2002 – once for driving an unregistered vehicle and twice for using a mobile phone while driving.  He was stopped by police again in March 2003 because he was using a mobile phone whilst driving.  In respect of each of the offences in 2002 and 2003, he was charged with driving while unlicensed.  In respect of one of them he was charged with driving an unregistered vehicle.  In respect of three of those acts of driving, he supplied false information to the police, and was charged under the Criminal Code with attempting to pervert the course of justice.  On those three charges, he pleaded guilty and was sentenced by Crawford J to 5 months' imprisonment with effect from 3 December 2003. 

1. The applicant was still serving that sentence when sentenced by the learned magistrate on 23 January 2004.  The learned magistrate was therefore obliged to take into account the "totality principle" as discussed by the High Court in Mill v R (1988) 166 CLR 59. The cumulative effect of the sentences imposed by Crawford J and the learned magistrate was that the applicant was required to go to prison for periods totalling 15 months, with no eligibility for parole, and with a further 5 months' imprisonment suspended on condition that he be of good behaviour for 2 years following his release from prison. He was also disqualified from driving for 4 years, commencing upon his release from prison.

1. I have no doubt that the only proper course was for the learned magistrate to impose a sentence of imprisonment that would require the applicant to remain incarcerated for months after the sentence imposed by Crawford J expired.  Had separate penalties been imposed by the learned magistrate for each offence, it would clearly have been appropriate for sentences of imprisonment to be imposed for both breathalyser offences, each offence involving the giving of a false name (except for the first such offence under the Traffic Act), each failure to appear, and the breach of bail.  Although sentences of imprisonment for driving while unlicensed (as distinct from driving whilst disqualified) are rare, I do not think it would have been beyond the bounds of the learned magistrate's discretion to have sentenced the applicant to imprisonment on the last three counts of unlicensed driving in this case, since his failure to obtain a licence facilitated his avoidance of responsibility for earlier offences that warranted his imprisonment. 

1. However, there were some matters that the learned magistrate was obliged to take into account in the applicant's favour.  He had not been to prison before December 2003, although he had received a 3-month suspended sentence for his third breathalyser offence.  He had pleaded guilty to all charges.  He was in stable employment, and likely to be re-employed by the same employer on his release.  He was in a stable domestic relationship.  There was no suggestion that he had been driving badly on any occasion when he was apprehended. 

1. As I have said, the cumulative effect of the two sentences was that the applicant was required to serve 15 months' imprisonment without parole.  A non-parole period can be as little as one half of the sentence:  Sentencing Act 1997, s17(3). If part of the sentence is suspended, the non-parole period can be as little as one half of that part which is not suspended: s17(8). In the absence of exceptional circumstances, a prisoner is not eligible for release on parole before the completion of the non-parole period or a continuous period of imprisonment of 6 months, whichever is the greater: Corrections Act 1997, s70.

1. A non-parole period of 15 months is thus the shortest non-parole period that could be imposed for a sentence of 2 years 6 months' imprisonment.  Although the applicant's offending was serious, there were various circumstances that required the imposition of a short non-parole period, if not the shortest possible, particularly the fact that he had not previously been to prison, his stable domestic situation and employment arrangements, and the fact that he was well regarded by his employer.  In my view the offences committed by the applicant were not so serious as to warrant his incarceration for a total of 15 months without eligibility for parole, especially when one considers that a further 5 months' imprisonment were suspended, and that he might have to serve the suspended part of the sentence at some time in the future.  I think it was appropriate to suspend part of the sentence in order to encourage compliance with the law after the applicant's release from prison.  However, I think that both the head sentence of 15 months and the operative part of it – 10 months – were manifestly excessive, having regard to the earlier sentence of 5 months and the totality principle.  The appropriate course is to allow the appeal and impose a more lenient partly suspended sentence, with a short non-parole period, to be cumulative upon the sentence imposed by Crawford J. 

1. I therefore allow the appeal, set aside the sentencing orders of the learned magistrate, and sentence the applicant to 12 months' imprisonment, with effect from the day after he ceased serving the sentence of imprisonment imposed on 4 December 2003.  I suspend 3 months of the 12-month sentence on condition that the applicant be of good behaviour for 2 years after his release from prison.  I order that he not be eligible for parole until he has served 4½ months of the sentence imposed today.  I order that he be disqualified from driving for 4 years, commencing upon his release from prison.