Bailey v Harriss - [2016] TASSC 48

[2016] TASSC 48

COURT: SUPREME COURT OF TASMANIA

CITATION: Bailey v Harriss [2016] TASSC 48

PARTIES:  BAILEY, Melissa Jane
  v
  HARRISS, Debra (Constable)

FILE NO:  2009/2016
DELIVERED ON:  22 September 2016
DELIVERED AT:  Hobart
HEARING DATE:  22 September 2016
JUDGMENT OF:  Tennent J

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Magistrate imposed penalty higher than minimum for a first offence under the Road Safety (Alcohol and Drugs) Act 1970.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Applicant:  N/A
             Respondent:  S Thompson
Solicitors:
             Applicant:  In Person
             Respondent:  Director of Public Prosecutions

Judgment Number: [2016] TASSC 48
Number of paragraphs: 24

Serial No 48/2016
File No 2009/2016

MELISSA JANE BAILEY v CONSTABLE DEBRA HARRISS

REASONS FOR JUDGMENT TENNENT J

22 September 2016

On 23 June 2016, the applicant was found guilty by a magistrate of driving a motor vehicle with a concentration of alcohol in her breath greater than .05 of a gram of alcohol per 210 litres of breath contrary to the Road Safety (Alcohol and Drugs) Act 1970 (the Act), s 6(1). When breathalysed, the applicant returned a reading of .079. The applicant was convicted and fined $750. She was ordered to pay costs and levies totalling $157, and disqualified from driving for six months. At the time of sentence, the applicant's counsel foreshadowed a restricted licence application. In the circumstances, the learned magistrate postponed the commencement of the disqualification until 6pm on 8 August 2016. The applicant did not make any application for a restricted licence and the period of disqualification commenced to run on 8 August.
On 13 July 2016, the applicant filed a notice to review the sentence imposed. The notice came before the Court for directions on 29 August 2016. In her notice to review, and at the directions hearing, the applicant raised two matters. Firstly, she believed the sentence imposed was too high because she had no relevant prior matters. Secondly, while she had a lawyer for the purpose of the proceedings in the Magistrates Court, she complained she was not given an opportunity to speak and defend herself. She was clearly unhappy with what she perceived was the manner in which she had been represented.
In support of her notice to review, the applicant filed a number of statutory declarations in which she, in effect, sought to put material before the Court which had not been put before the magistrate. She was told that, were her notice to review confined to penalty, that material would not be considered because it sought to challenge the factual basis of her sentencing which had not been challenged during the hearing, and to expand upon matters put in mitigation, which further matters were also not put before the magistrate.
The applicant confirmed the review related to penalty. The hearing of it proceeded in effect on the basis of an assertion that, in all the circumstances of the case, the sentence imposed was manifestly excessive. The review was dismissed on the date it was heard with some brief oral reasons. I indicated to the parties that I would publish more detailed reasons, and these are those reasons.
The applicant did not give evidence at the hearing before the learned magistrate, and the circumstances leading up to her interception by police were outlined in evidence given by police officers and a staff member at a bar where the applicant had been drinking. As to the latter, that witness, Sam Edwards, arrived at court to give evidence. However, by agreement between the applicant's counsel and the prosecutor, his statutory declaration was tendered instead, and he was allowed to leave. The effect of that was, of course, that he was not cross-examined, and the contents of his statutory declaration were unchallenged.
The evidence set out that the applicant was intercepted sleeping in her car in Strahan Street, North Hobart. At the time police found her, the engine of the car was turned off, and the keys were in the glove box. There was evidence the applicant had vomited beside the car and she had traces of vomit on her clothes. There was ultimately no dispute that the applicant had, shortly before she was found, driven her car from where it had been parked in Elizabeth Street to Strahan Street, a distance of about 100 metres.
Prior to her driving her car, the applicant had been drinking alcohol for several hours at a bar known as Willing Brothers in Elizabeth Street. In his statutory declaration, Mr Edwards from Willing Brothers set out his observations of the applicant on the night in the following terms:
"On Saturday 6 February 2016 I was at work in my usual capacity. I would have started work at 1400hrs and finished at 0200hrs.
During the shift, a female person was in the premises. She was with two other females and was the last one of this particular group to leave. She paid the bill at about 2230hrs but didn't leave straight away.
This female person would have been in the bar from late afternoon, say 1600hrs to late in the evening. During this period this female person would have been drinking sparkling wine. At some point during the evening I would have served the group some alcohol and I definitely observed the female drinking alcohol.
As this female person was leaving I observed her getting into her car, which was a dark blue sedan, which was parked directly outside the premises. I approached this female person and had a conversation with her, and I told her that she shouldn't be driving as she's had a lot to drink.
This female person told me that she was ill and I observed her vomit in her car. I also told her if I saw her drive I would call the police. I was with this female person for about 10 minutes in total as I went back and forth a couple of times getting her some water and some tissues for her face. It was about 2230hrs when she got into her car at first but drove off at about 2330hrs.
This female person stayed in her car for a period of time then I stood and watched this female drive away. I asked some people who were outside where the car went and they pointed to Strahan Street. I walked to Strahan Street and observed the same car parked up. The female person was still sitting inside her car and she was still vomiting.
I then went back to the bar and called police. When police arrived I made myself known to them and explained to them what I had observed."
Also tendered on the hearing was a recording of the telephone call Mr Edwards made to police on the night, and a second call when police rang him after speaking to the applicant. Transcripts of those calls were also before the court.
The applicant was taken from Strahan Street to Hobart Police Station where she was breathalysed. The learned magistrate was provided with what were loosely described as the breathalyser documents. Those documents showed the applicant had been breath tested and the reading returned. They also included the questionnaire the breathalyser operator completed with the applicant. In that, the applicant said she moved her car because a male told her to, and she did it to keep everyone happy. She admitted she had been drinking at Willing Brothers.
Police officers involved with the applicant on the night said that the applicant had told them she used to be a police officer and had been a breathalyser operator during that time.
The applicant did not dispute she had driven the car, that she was intercepted and subsequently breathalysed. The only defence raised was what I might describe as a technical one relating to the breathalyser paperwork. The learned magistrate heard submissions about this, made a ruling adverse to the applicant and then found the charge proved. No issue was raised on this review about the correctness of that ruling or the consequent finding of guilt. Counsel for the applicant then made a plea in mitigation.
Counsel for the applicant told the court his client was 46 years old and employed as a flight attendant. She had held a licence since she was 17 years old. She had no relevant prior matters. She had been a police officer for nine years during which she had been a breath analysis operator herself. She resigned from her employment as a police officer and became a flight attendant, work she had been doing for approximately 20 years. Counsel said his client had instructed him that earlier on the day of the offending, she had very nearly been involved in a serious motor vehicle accident and had been very shaken by that experience. She went to have a drink because she was shaken by that experience and drank far more alcohol than she intended. Counsel then raised the issue of a restricted licence application.

Magistrate's reasons

The magistrate said very little before he proceeded to sentence. He firstly dealt with the issue of the possible restricted licence application and said he would postpone the commencement of any period of disqualification to allow for that. His Honour then said:
"The defendant has, on the evidence, no prior convictions against the Road Safety Alcohol and Drugs Act Tasmania nor the – nor any of the interstate equivalents and although this represents something of a paradox on the facts of this case, the reading is not a particularly high one and all of that is consistent with my decision to postpone the commencement of the disqualification.
… Ms Baily, if you'd stand up at this point? Your example of drink driving is a pretty serious one in my opinion. It reflects that you so lacked the ability to make a sound judgment, that despite the fact that you were begged over a lengthy period not to drive, you chose to do so anyway. You were in a condition of intoxication and you were sick as a result and you knew that any act of driving that you participated in would result in your, if caught, being charged with exceeding .05.
Not only that, as a former police officer you had every reason to know better and therefore the minimum penalty which would be consistent with being imposed on readings of the level that you obtained, is not appropriate to be imposed upon you in all the circumstances of the case. It's appropriate to go further and describe this matter as premeditated, I suppose, to the extent that a drunk person can be concluded to have premeditated their commission of this offence. You are disqualified from holding or obtaining a driver's licence, your entitlement being cancelled for a period of six months. That disqualification is postponed until the 8^th of August at 6 pm, and you are fined seven hundred and fifty dollars. Victims of Crime Levy, twenty. Costs a hundred and thirty seven. Twenty eight days to pay. That completes your matter and you're free to go now."

Review of a sentence on the basis it is manifestly excessive

While the applicant's notice to review did not use these terms, clearly her complaint about the sentence imposed on her was that it was manifestly excessive. The role of the Court in dealing with such a complaint has been referred to many times. Pearce J outlined the relevant principles in Hall v Tasmania [2015] TASCCA 6 at [51] and [52] where he said:
"51 To succeed in an appeal on the ground that a sentence is manifestly excessive the appellant must show that the sentencing discretion must have miscarried and the sentence is definitely outside the appropriate range of sentences for the crime: Everett v The Queen (1994) 181 CLR 295, per McHugh J at 306. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen (1992) 1 Tas R 234 at [13]. Manifest excess must be plainly apparent: Dinsdale v The Queen (2000) 202 CLR 321, per Gleeson CJ and Hayne J at [6]. The sentence must be 'unreasonable or plainly unjust': House v The King (1936) 55 CLR 499 at 505.
52 The appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different way: Lowndes v The Queen (1999) 195 CLR 665 at [15]. A wide measure of latitude should be accorded sentencing judges: Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336. There is no single correct sentence and a sentencing judge 'should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected': Johnson v The Queen(2004) 78 ALJR 616 at [26], cited with approval in Markarian v The Queen (2005) 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [58]."

Submissions of the applicant

The applicant provided some written submissions. She submitted that the magistrate made an error of fact in characterising her offending as premeditated because, had it been so, she would not have parked outside the bar where she did in the first place. Further she would not just have driven round the corner but would have driven home. As to this submission, it seems to me the applicant has misunderstood the magistrate's comment about premeditation. There was no suggestion the offending was premeditated to the extent that the applicant had planned to drive while affected by alcohol when she first parked her car in Elizabeth Street. His Honour's comments were directed at the decision of the applicant to drive from Elizabeth Street to Strahan Street.
The applicant also submitted that the magistrate did not take into consideration that she was incredibly upset and was not thinking straight from nearly being hit head on by a vehicle being chased by police when she was driving to meet friends that night. She further submitted the magistrate did not take into account that the staff at Willing Brothers and Sam Edwards were hassling her all night and told her to move her vehicle when she was trying to sleep to feel well enough to catch a taxi home. As to the second part of that submission there was no evidence before the magistrate about any alleged hassling. The only evidence was that the applicant was told by Mr Edwards not to drive. As to the first part of the submission, the facts the magistrate had were that, following whatever happened to the applicant earlier, she met friends at a bar and proceeded to drink alcohol over several hours. The magistrate was in no position to assess how upset the applicant might or might not have been or what impact that may or may not have had.
The applicant also submitted that the magistrate did not take into account her excellent police record.

Discussion about the sentence in this case

The applicant was sentenced in respect of one count of exceed with a reading of .079. She had no relevant convictions under the Act. The Act provides for mandatory ranges of penalties for drink driving offences, which vary according to whether the offence is a first or subsequent offence and the level of the alcohol reading. In this particular case, the Act, s 17, provided that for a first offence with a reading such as that of the applicant, the minimum penalty was a fine of not less than two penalty units and not more than 10, and/or a term of imprisonment not exceeding three months. The Act also provided that the offender must serve a period of disqualification of between three and 12 months. As at the date upon which the applicant was sentenced, a penalty unit had a value of $140. Therefore, any fine for the applicant, if imposed, had to be between a minimum of $280 and $1,400.
The penalty imposed on the applicant was a fine of $750 and disqualification for six months. Quite clearly neither was a minimum penalty under the Act, s 17. Neither were the penalties anywhere near the maximum. In the case of the fine, the penalty was slightly over the middle of the relevant range, and in the case of the disqualification, it was in the middle of the relevant range.
I accept it was open to the learned magistrate to impose a penalty which involved a fine of $280 and a period of disqualification of three months. However, the Act does not provide that a judicial officer must impose the minimum penalty for a first offence where a reading is in a certain range. The Act provides for a range within which a penalty should fall, allowing for a consideration by a judicial officer of the facts of the case being dealt with, and the exercise of a sentencing discretion by that judicial officer.
His Honour was aware that the applicant had no relevant prior matters. He was told the applicant had employment. He was clearly prepared to offer the applicant an opportunity to make an application for a restricted licence. His Honour was aware of the applicant's background as a police officer and breath analysis operator. He also knew that she had, prior to the offending, spent several hours drinking alcohol at a bar, with friends for the most part. His Honour took the view, open, it would seem to me, on the evidence and materials presented, that the applicant deliberately chose to drive, even though for a short distance, knowing she was likely over the limit given what she had consumed. That was against a background of being warned by Mr Edwards that, in effect, he considered she was unfit to drive and that he would report her to police if she chose to do so. His Honour took the view that, having regard to the facts of this case, it was not appropriate to impose minimum penalties.
It should be noted that there was no suggestion that the applicant had to drive for some considered reason. There was no emergency and there was no need to drive to assist someone else.
While I accept the penalties imposed by the learned magistrate were above the minimum penalties which could be imposed, they were within the legislative range. The learned magistrate gave reasons for not imposing minimum penalties, and the factual basis for those reasons was, in my view, clearly established by the evidence.
To succeed on this review, the applicant has to establish error on the part of the magistrate. She must establish the sentence is plainly wrong or so far outside what might be an accepted sentence that error is plain. The applicant has not, in my view, established such an error. For the above reasons, the notice to review was dismissed. As a procedural matter, I also ordered that the title to the proceedings be amended to reflect that the respondent should have been identified as Constable Debra Harriss.