Barrett v White
[2004] TASSC 47
•25 May 2004
[2004] TASSC 47
CITATION: Barrett v White [2004] TASSC 47
PARTIES: BARRETT, Martin Walter
v
WHITE, Sergeant Graham Ross
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 16/2004
DELIVERED ON: 25 May 2004
DELIVERED AT: Hobart
HEARING DATE/S: 19 May 2004
JUDGMENT OF: Crawford J
CATCHWORDS:
Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Other offences – Unlicensed driver with alcohol in body – Whether 12 months' imprisonment without parole manifestly excessive.
Aust Dig Traffic Law [80]
REPRESENTATION:
Counsel:
Applicant: D G Grey
Respondent: J P Ransom
Solicitors:
Applicant: Zeeman Kable & Page
Respondent: Director of Public Prosecutions
Judgment ID Number: [2004] TASSC 47
Number of paragraphs: 17
Serial No 47/2004
File No LCA 16/2004
MARTIN WALTER BARRETT v SERGEANT GRAHAM ROSS WHITE
REASONS FOR JUDGMENT CRAWFORD J
25 May 2004
The applicant pleaded guilty before a magistrate to being an unlicensed driver with alcohol in his body contrary to the Road Safety (Alcohol and Drugs) Act 1970, s6(2), in that he drove a motor vehicle on 16 April 2003, on William Street, Launceston, with alcohol present in his body, namely 0.197 grams of alcohol in 100 millilitres of blood. He also pleaded guilty to having driven at that time while not the holder of a driver licence, contrary to the Vehicle and Traffic Act 1999, s8(1).
The facts of the matter are simply stated. On a Wednesday night at 9.30pm the applicant was driving a Holden Commodore sedan along William Street when he was intercepted by police. A subsequent breath analysis revealed a reading of 0.197 grams of alcohol in 100 millilitres of blood. He had not held a driver licence since 1983.
He was convicted of both charges, sentenced to imprisonment for 12 months and disqualified from driving for four years following his release from prison. No mention of parole was made in the course of submissions to the learned magistrate prior to the making of the sentencing orders. No mention of parole was made by the learned magistrate in his comments on passing sentence and no order was made with respect to parole. However, upon the making of the sentencing orders, counsel for the applicant raised with the learned magistrate whether he was obliged to fix a non-parole period. His Worship curtly replied "I do not set a non-parole period", without explaining why he did not do so.
The amended grounds of the motion to review are directed only at the imprisonment. They are:
"1THAT the sentence imposed was manifestly excessive in all the circumstances.
2THAT the refusal to set a non-parole period in relation to the sentence of imprisonment was either a wrongful exercise or [sic] discretion or contributed to the error that the sentence was excessive."
The applicant was 41 years old. He had lived in a de facto relationship for eight years and had four children. The family income consisted of benefits. His record was a bad one. Since 1978 he had on eight occasions been convicted for drink driving offences in breach of the Road Safety (Alcohol and Drugs) Act. Since 1978 he had 14 convictions for unlicensed driving, the most recent being in 1998 and 2002. Since 1979 he had five convictions for driving while disqualified, the most recent being in 1990. He had a bad record in other regards. It included many offences of dishonesty and on a number of occasions he was sent to prison for them. He had also been imprisoned in 1991 and 1998 for assault.
His prior drink driving offences and the sentences he received for them were:
1978
First year driver with alcohol in body
Supervision order and 12 months' disqualification
1979
Exceed .08 (.11)
Five work orders and 18 months' disqualification
1982
Refuse breath analysis
Three months' imprisonment and disqualification for three years from release
1983
Exceed .05 (.17) and first year driver with alcohol in body
Three months' imprisonment and disqualification for three years
1990
Exceed .05 (.13)
Three months' imprisonment all suspended and disqualification for 18 months
1994
Driving with alcohol in body without authority (.02 according to counsel)
Fined $800 and disqualification for 12 months
1998
Refuse breath analysis
Fined $2,000 and disqualification for two years
2000
Driving with alcohol in body without authority (.055)
Fined $800 and disqualification for 12 months
It appears likely that on four of those occasions (the last being in 1998 when he was fined $150) he was also sentenced for being an unlicensed driver at the time of the drink driving offence and on three of those occasions (the last being in 1990) for being a disqualified driver at that time.
In a plea in mitigation to the learned magistrate, the applicant's counsel said that the 1998 offence was committed in circumstances where, following an accident in which he was not driving, the applicant merely moved a car to the side of the road. Counsel explained, with medical verification, that at the time of the present offence the applicant was taking aspirin as a medication and it may have had the effect of speeding up entry into his bloodstream of any alcohol he had consumed, of causing more alcohol to reach his blood and of causing the level of alcohol in his blood to remain elevated longer. Counsel explained that his instructions were that in recent times excessive consumption of alcohol by the applicant had slowed as a consequence of heart disease and surgery, but over the period of two weeks before the offence he had excessively consumed alcohol as a result of grieving over the death of his father.
In his comments on passing sentence the learned magistrate said that he took into account all matters put to him by the applicant's counsel. His Worship then continued:
"Your last few convictions, the last four have been explained to this Court in some detail and I note the convictions generally on your conviction sheet, you have a very poor record of offending under the provisions of the Road Safety (Alcohol and Drugs) Act 1970 and here on this occasion you present with a reading of .197, approaching four times the limit for a fully endorsed driver. You have not in fact been a licence holder since 1983, 20 years, and as your counsel said you should not therefore have even been on the road but you were and you were on the road with that wickedly high reading.
I note what is said about the more rapid ingestion of alcohol into the system and the other matters mentioned regarding the effect of alcohol and the effect of aspirin on the blood alcohol reading. But nonetheless the reading itself, whether produced more rapidly or not, was one of .197, and this from a man who's got a bad record under the provisions of the Act.
Taking all matters into account I make the following orders. You are convicted upon the complaint. Upon the complaint as a whole you are sentenced to a term of 12 months' imprisonment. You are disqualified from driving, that to be for four years following upon your release."
The question of parole was then raised by counsel and rejected by the learned magistrate.
The two grounds for review may conveniently be dealt with at the same time. In essence they complain that the sentence of 12 months' imprisonment was manifestly excessive, and it was particularly so in light of the fact that the applicant was given no entitlement to parole consideration.
The determination of the motion to review does not depend on the matter, but I comment that it is puzzling why Parliament, by the Sentencing Act, s17(7), required judges and magistrates to give reasons for ordering, pursuant to s17(2)(a), that an offender is not to be eligible for parole in respect of a sentence of imprisonment, but did not require the giving of reasons for not making an order with respect to parole eligibility. In both situations the effect of the sentencing order is the same, for by s17(3A) it is provided that if no order is made under subs(2), an offender who is sentenced to imprisonment is not eligible for parole in respect of the sentence.
The penalties prescribed by the Road Safety (Alcohol and Drugs) Act, s17, for the drink driving offence were a minimum fine of $1,000 and a maximum fine of $6,000, a minimum two years and a maximum six years' disqualification and imprisonment for up to two years. For the unlicensed driving charge the penalties prescribed by the Vehicle and Traffic Act, s8(1), were a fine not exceeding $4,000 or imprisonment for a term not exceeding three months. In addition disqualification could be ordered under s17(1).
It appears that imprisonment for as long as 12 months is unusually high for a single offence against the Road Safety (Alcohol and Drugs) Act, s6(2). Professor Warner in Sentencing in Tasmania, 2 ed at 410 states that out of 712 such cases in 1999 and 2000, imprisonment was ordered in 133 of them and the longest sentence was one of nine months' imprisonment, with the median being two months. For offences of exceeding .05, amounting to breaches of s6(1), out of 1,699 cases, imprisonment was ordered in 187 of them. The longest term was 12 months and the median was two months. Out of 1,710 unlicensed driving cases, imprisonment was ordered in only four, the longest being a sentence of three months' imprisonment. Of course, in this case the applicant was sentenced both for an offence against s6(2) and for unlicensed driving.
Close consideration of the applicant's record for offences under the Road Safety (Alcohol and Drugs) Act reveals a record that is not as bad as a cursory examination suggests. There were four such offences over the previous 20 years. His blood alcohol content with respect to two of them were relatively low, .02 and .055, and the highest reading was unremarkable at .13. The fourth of those offences, refusing a breath analysis, was committed after an extremely brief act of driving. His last three offences under the Act, in 1994, 1998 and 2000, had not been punished with imprisonment at all, revealing that on those occasions the respective magistrates did not regard the offences as sufficiently serious to warrant imprisonment.
With respect to the learned magistrate, it is my opinion that 12 months' imprisonment without parole eligibility was manifestly excessive having regard to the circumstances of the case, including the aspects of the applicant's record to which I have just referred, and upon a consideration of sentences that have been imposed against other offenders in the past. I do not disregard that on this occasion the applicant's blood alcohol reading was 0.197, a high one, and plainly a sentence of imprisonment was demanded having regard to his record. But imprisonment without parole eligibility for as long as that imposed was not required, nor with respect, was it justified.
There will be an order setting aside the sentence of 12 months' imprisonment imposed by the learned magistrate on 7 November 2003. In its place, on count 3 of complaint 35571/03, charging the drink driving offence against the Road Safety (Alcohol and Drugs) Act, s6(2), the applicant is sentenced to six months' imprisonment from 7 November 2003. On count 3, charging the unlicensed driver offence against the Vehicle and Traffic Act, s8(1), he is sentenced to one month's imprisonment cumulative on the other sentence. There is no need to make an order concerning parole eligibility because it will have no effect. The disqualification and other orders imposed by the learned magistrate will remain.
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