Archer v Morgan and Davies
[1990] TASSC 53
•2 October 1990
Serial No 51/1990
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Archer v Morgan and Davies [1990] TASSC 53; A51/1990
PARTIES: ARCHER
v
MORGAN
DAVIES
FILE NO/S: LCA 46/1990
DELIVERED ON: 2 October 1990
JUDGMENT OF: Cox J
Judgment Number: A51/1990
Number of paragraphs: 11
Serial No
List "A"
File No LCA 46/1990
ARCHER v MORGAN and DAVIES
REASONS FOR JUDGMENT COX J
2 October 1990
Notice to Review sentences imposed in respect of seven separate offences. I tabulate the offences and the sentences as follows:
DATE OFFENCE SENTENCE 7.3.1990 Driving under the influence of intoxicating liquor (s4 Road Safety(Alcohol and Drugs)Act 1970) Twelve months' imprisonment. Disqualified from holding a licence for three years 7.3.1990 Driving with concentration of alcohol in the blood exceeding the prescribed concentration (s6 Road Safety (Alcohol and Drugs) Act 1970) Conviction recorded 7.3.1990 Driving in a manner dangerous to the public (s32 Traffic Act 1925) Conviction recorded 7.3.1990 Driving without licence (s.14(4)(a) Traffic Act 1925) Conviction recorded 17.4.1990 Drunk and incapable (s4(1)(a) Police Offences Act 1935) Seven days' imprisonment concurrent 2.5.1990 Drunk and disorderly (s4(1)(4) Police Offences Act 1935) Seven days' imprisonment concurrent 2.5.1990
Threatening a Police Officer (s34B(1)(b) Police Offences Act 1935)
Conviction recorded
The circumstances surrounding the offences committed on 7 March 1990 were that the applicant, having lost his licence by an accumulation of demerit points for speeding infringements, drove his car, accompanied by a passenger, from the Russell Hotel on the Brooker Highway, where he had been drinking Tequila for some hours, along Derwent Park Road to the Main Road Moonah. It was a Wednesday afternoon shortly before 5.00pm. In Derwent Park Road he was observed to swerve violently around a stationary truck in the centre of the road with its indicators signalling a turn to the right. At the traffic lights at that road's junction with Main Road, he halted behind two cars which moved to the right into Main Road when the lights changed to green. The applicant sat there for some time without moving and then accelerated rapidly following the same path, his wheels spinning, tyres squealing and emitting smoke. The vehicle was seen fish–tailing during this manoeuvre. The driver of a vehicle travelling towards the applicant's vehicle saw it fish–tailing, swerved and narrowly missed it. The applicant's vehicle travelled on and struck the back of another stationary truck in the centre of the road also indicating an intention to turn right, travelled on to the incorrect side of the road and struck an oncoming vehicle travelling in the opposite direction on its correct side of the road causing that vehicle to be pushed back some 19½ metres. The prosecutor alleged that the applicant's speed at the time of the near collision and actual collision was 80 kilometres per hour. The applicant sustained minor injuries, but the other driver was seriously injured, and both vehicles were "almost write– offs". The applicant was subjected to a breath analysis and a reading of .173% was obtained.
On 17 April at 6.00pm the applicant was seen asleep on a bench in the Elizabeth Street Mall. Police awoke him and he was found to be exhibiting the usual signs of being drunk and incapable of taking care of himself. He was detained in the watchhouse for a short time.
On 2 May at about 1.00am police observed the applicant again in the Mall. He was stumbling and shouting at a group of people walking past. He kicked a beer bottle against a brick wall causing it to smash. Police approached him and asked him to quieten down. They observed the signs of intoxication. He kept shouting out, "Fuck off" and "Mind your own business". He was arrested for being drunk and disorderly and on the way to the police station several times said to the arresting police, "I am going to kill you as soon as I am let out. You'll see." He was charged and detained for a period.
The applicant attained the age of 20 years on 22 May 1990. He is a New Zealander by birth but his family now lives in Hobart. He was a professional fisherman, but a work injury deprived him of his employment. His record of prior convictions included one for dangerous driving in New Zealand when he was 16 years old, another for driving while disqualified in New Zealand at the age of 17, and on the same occasion one described as "exceed .05%", which I take to be the equivalent under New Zealand legislation of an offence against s6 of the Road Safety (Alcohol and Drugs) Act 1970. It seems the learned magistrate treated it as such. He was also convicted in New Zealand of disorderly behaviour when nearly 18 years old. Since his arrival in Tasmania he was convicted on 17 May 1989 of being drunk and incapable and fined $25.00, on 29 May 1989 of an offence against s6 of the Road Safety (Alcohol and Drugs) Act 1970 (reading .103%) and between 1 November 1989 and 18 January 1990 he committed four speeding offences which were dealt with by infringement notices. At the time of the 7 March offences he was awaiting trial for a further offence against s6 (reading .159%) which had occurred on 14 February 1990 but in respect of which a conviction was not entered until 28 March 1990. The learned magistrate said he took no account of it for sentencing purposes, but while it was not a prior conviction, it was not irrelevant that the applicant should have been awaiting trial for such an offence at the time he committed the offences now the subject of this appeal. He pleaded guilty on 15 May and was remanded in custody until sentenced on 6 June. The term of imprisonment was back–dated to 15 May. He has been sentenced to an actual term of imprisonment before. A report under the Alcohol and Drug Dependency Act 1968 indicated that he had been an alcohol abuser since the age of 14. He was assessed as alcohol dependent with anti–social traits and as lacking insight and motivation to do anything about his dependency notwithstanding having spent a period of 2½ months in a treatment centre in New Zealand.
The learned magistrate on passing sentence referred to a passage in the reasons for judgment of Burbury CJ in Robertson v Bounds No 2 [1969] Tas SR 194 (NC 8) where his Honour said:
"Where the legislature imposes a maximum punishment it is the duty of the court to look at the circumstances of the particular offence and the personal circumstances of the offender committing it and to determine how far, if at all, the just penalty should recede from the maximum penalty. Generally, the statutory maximum should be reserved for bad cases, or for those where the offender has been previously convicted of similar offences ... that principle must be followed even though a magistrate or judge may think that the maximum penalty prescribed by the legislature is inadequate."
The learned magistrate said he could not see anything in the applicant's favour except for his youth which would justify his receding from the maximum custodial penalty for the offence of driving under the influence of intoxicating liquor which, as the applicant had one prior conviction for the purposes of s17(2) of the Road Safety (Alcohol and Drugs) Act 1970, was twelve months' imprisonment. He went on to say:
"I think I should and properly in determining the penalty for driving under the influence I can in assessing that penalty make it a head sentence, that is to say, I can have regard to the fact that not only were you driving under the influence and obviously you were very much under the influence but you drove that vehicle in a most dangerous manner."
He then proceeded to impose the sentence of twelve months' imprisonment on the driving under the influence charge and said:
"On the charge of dangerous driving I will record a conviction. That might at first sight seem inadequate but as I have already pointed out I have had regard to the manner in which you drove when fixing the penalty for driving under the influence."
There is no power in the Court of Petty Sessions to impose global penalties for a number of simple offences whether in one or (as in this case) several complaints (Lowe v Visser [1988] Tas R 17). The learned magistrate's decision to use one particular charge as a head sentence cannot justify the imposition of a penalty appropriate to some or all charges in the aggregate. If it is an excessive penalty for the subject matter of the charge selected, having regard to all circumstances of aggravation proper to be taken into account on that charge, it cannot be allowed to stand notwithstanding that other aggravating or reprehensible conduct which should only be taken into account on another charge is not the subject of punishment on that charge.
In the present case, there is a substantial overlap between the charges of driving under the influence and dangerous driving. The former involves driving in such condition brought about by the consumption of intoxicating liquor as to be incapable of having proper control of a vehicle. Of its precursor (s41 of the Traffic Act 1925), Burbury CJ said in Triffett v Nelan [1970] Tas SR 207 at p211:
"The very mischief against which s41 of the Traffic Act 1925 is directed is the risk of injury or death to other road users and in considering the appropriate penalty a Court has a duty to take into account the degree of risk to other road users resulting from a driver's intoxication."
The potential risk of injury in all the circumstances to other road users caused by the manner of driving is at the heart of the offence of dangerous driving. At the same time one of the particulars of dangerous driving asserted in the complaint against the applicant was of driving while his body was seriously impaired by alcohol. I think, therefore, it was appropriate for the learned magistrate to take into account in passing sentence in respect of the charge of driving under the influence the conduct of the applicant which constituted the actus of the dangerous driving charge.
A magistrate in deciding what the appropriate penalty is for an offence is entrusted with a very wide discretion (Whittle v McIntyre [1967] Tas SR 265). The circumstances of the charge of driving under the influence were serious. There was a deliberate decision to drive notwithstanding that the applicant had been drinking spirits for some hours, there was no mitigating excuse for his driving, the distance travelled was a significant one through arterial roads in an industrial suburb on a week day at a time when heavy traffic might be expected, there was a significant amount of traffic including heavy vehicles, there was a near miss with a completely innocent road user and a forceful collision with another innocent driver, injury was caused to that person and damage to his property. Furthermore, while the applicant had only one "prior conviction" for the purposes of attracting a higher maximum penalty authorised by s17(2) of the Road Safety (Alcohol and Drugs) Act 1970, he had in New Zealand already been convicted of a similar offence and he was awaiting trial for another such offence committed only two or three weeks earlier. Generally his prior record showed him to be indifferent to the law's constraints and his obligations to other road users. Clearly a sentence of imprisonment was called for and a substantial one at that despite the applicant's relative youth. After anxious consideration, I am not persuaded that the imposition of the maximum custodial sentence can be said to be beyond the proper exercise of the learned magistrate's discretion.
Complaint was made in respect of the two sentences of seven days' imprisonment ordered to be served concurrently with the sentence of twelve months' imprisonment. Taken in isolation, such offences would not normally attract such a sentence, but a fine or community service order or some other penalty short of imprisonment is in this case inappropriate when the offender is facing a lengthy sentence of incarceration already. In my view the imposition of short sentences of concurrent imprisonment adequately and appropriately disposed of those matters. The learned magistrate was moved to simply record a conviction on some of the charges basically subsumed under the "head sentence" and the offence on which it was imposed. These other unrelated acts of social misbehaviour might have been similarly marked but the learned magistrate was not wrong to treat them as discreet and to mark them with more than a conviction being recorded. The maximum custodial sentence allowed by the Police Offences Act 1935 in respect of those matters is one month's imprisonment and as already noted, they were not the first such convictions sustained by the applicant.
The appeal must be dismissed.
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