Barrett v Wilson

[2015] TASSC 3

[2015] TASSC 3

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Barrett v Wilson [2015] TASSC 3

PARTIES:  BARRETT, Nacilla Ann
  v
  WILSON, Annette Helen (Constable)

FILE NO:  935/2014
DELIVERED ON:  17 February 2015
DELIVERED AT:  Hobart
HEARING DATE:  16 February 2015
JUDGMENT OF:  Pearce J

CATCHWORDS:

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving with more than prescribed concentration of alcohol in breath or blood – Sentence and penalty – Persistent offender – Whether sentence manifestly excessive.

Road Safety (Alcohol and Drugs) Act 1970 (Tas), s 6.
McDonald v Nilsson (2009) 54 MVR 32, referred to.

Aust Dig Traffic Law [1158]

Traffic Law – Licensing of drivers – Tasmania – Offences – Driving when disqualified from holding licence – Whether sentence manifestly excessive.

Road Safety (Alcohol and Drugs) Act 1970 (Tas), s 19A(1).
Parker v Bessell [2012] TASSC 78, applied.
Aust Dig Traffic Law [1062]

Criminal Law – Sentence – Relevant factors – Totality – General principles – Relevance of parole.

Mill v The Queen (1988) 166 CLR 59, applied.
Devine v The Queen [2003] TASSC 52, approved.
Aust Dig Criminal Law [3284]

REPRESENTATION:

Counsel:
             Applicant:  C Scott
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Cameron Scott
             Respondent:  Acting Director of Public Prosecutions

Judgment Number:  [2015] TASSC 3
Number of paragraphs:  23

Serial No 3/2015

File No 935/2014

NACILLA ANN BARRETT
v CONSTABLE ANNETTE HELEN WILSON

REASONS FOR JUDGMENT  PEARCE J

17 February 2015

1. On 16 September 2014, the applicant pleaded guilty in the Magistrates Court to:

   ·     evading police (Police Powers (Vehicle Interception) Act 2000, s 11A(1));

   ·     driving while disqualified (Road Safety (Alcohol and Drugs) Act 1970, s 19A(1));

   ·     driving a motor vehicle while alcohol was present in her breath in a concentration greater than the prescribed concentration, namely 0.134 grams of alcohol per 200 litres of breath (Road Safety (Alcohol and Drugs) Act, s 6(1));

   ·     driving while alcohol was present in her body when she did not hold an Australian driver licence (Road Safety (Alcohol and Drugs) Act, s 6(2) and (3)(a));

   ·     driving a motor vehicle while alcohol was present in her body, being a person convicted of more than three offences under the Act within an applicable 10 year period (Road Safety (Alcohol and Drugs) Act, s 6(2) and (4)).

2. On 14 October 2014 Magistrate Brett sentenced the applicant to imprisonment for 18 months, cumulative to the sentence of imprisonment she was then serving. His Honour ordered that the applicant not be eligible for parole until she had served 10 months of the sentence he imposed. He made a probation order for 24 months from her release, and disqualified her from driving for 4 years, cumulative to the last order of disqualification to which she was subject. Because her car had been clamped, his Honour ordered that the applicant pay the special penalty of $600 required by the Police Offences Act 1935, s 37MA.

3. The applicant moves this Court to review the sentence on the sole ground that it is manifestly excessive. No challenge is made to the imposition of a probation order or to the period of disqualification from driving. What is in issue is the sentence of imprisonment his Honour imposed.

Circumstances of the offence

1. On 6 September 2014 the applicant drove a car from Ulverstone to Turner's Beach, where she was seen by the police at about 9.40pm. They tried to intercept her but she drove away at "high speed". They followed in a police vehicle but she stopped her car and ran off. The police found her hiding under a bush in the backyard of a nearby house. A breath analysis later disclosed a breath alcohol concentration of 0.134. After she was apprehended by the police she denied that she had been driving.

2. Mindful that the applicant was likely to be sentenced to imprisonment, the learned magistrate obtained a pre-sentence report from an officer of Community Corrections. The applicant told the author of the report that she had been driven by another person from Burnie to Ulverstone, but after an argument with a family member she became upset and drove herself to Turners Beach looking for drugs to buy. She also told the author that she knew she should not have driven and evaded the police because she was "thinking about going to gaol at that point".

The applicant's record and personal circumstances

1. The applicant has a very bad record. She has many prior convictions for anti-social offending, violence, including violence towards the police, dishonesty and regulatory driving offences. Most relevantly to this appeal however she had, when sentenced, 10 prior convictions for driving with alcohol in her body in excess of the prescribed limit, mostly with high readings, and 12 prior convictions for driving while disqualified. Her first alcohol related driving offence was committed in 1996 when she was 20. She re-offended in 1997, 2002, 2004, 2005, 2007 and 2009 (three times). Over that period she was subject to progressively harsher sentences, including sentences of suspended and actual imprisonment and lengthy periods of disqualification from driving. She was made subject to five probation orders, each of 12 months' duration, between 1993 (the first concerned other offending) and 2011. In 2010 and 2012 she was made subject to two Magistrates Court drug diversion bail orders. She demonstrated some compliance with services provided to her but did not abstain from drugs. Then, on 27 March 2013, she was sentenced by a magistrate to two years' imprisonment for more offending including three drink-driving offences and six counts of driving while disqualified committed between May 2012 and January 2013. For part of that period she was subject to a probation order made on 16 August 2011, imposed when she was sentenced by a magistrate to a wholly suspended period of imprisonment of three months for resisting and assaulting police, destroying property and dishonesty. By re-offending she breached that suspended sentence. It was activated on 27 March 2013, resulting in imprisonment for a total of two years and three months. I infer that an order was made facilitating her eligibility for parole because she was released on parole on 28 April 2014 after having served 13 months.

2. The offences committed on 6 September 2014 were during that period of parole.

3. The applicant is now aged 38. She had a difficult childhood. She had no relationship with her biological father. She experienced long periods of separation from her mother, who suffered from mental illness. She was educated to grade 10. During her adult life she has held employment from time to time, but since 2009 has been in receipt of disability benefits. She is not in a stable relationship. She has a young adult son. As her record suggests, she has for many years been a heavy abuser of drugs and alcohol. She is an alcoholic. She has used amphetamine, methamphetamine and cannabis, and been addicted to prescribed medication. She has no positive role models in her life. Most of her friends and associates also use drugs and alcohol. Because of her imprisonment she cannot maintain stable accommodation. In her own relationships she has been the subject of violence and abuse. According to the pre-sentence report she resorts to drugs and alcohol as "a way of managing distress about family relationships and chronic feelings of emptiness, anger and self-esteem". She reported to the author of the pre-sentence report that she has been diagnosed with Attention Deficit Hyperactivity Disorder, Bipolar Mood Disorder and Post Traumatic Stress Disorder, but is not medicated for those conditions. The sentencing magistrate was not given any medical evidence about her mental health or its connection with her offending. Her attempts over the years to engage with rehabilitation services have proved unsuccessful, although she continues to express a desire for treatment, therapy and counselling.

Manifestly excessive

1. A court determining a motion to review a sentence imposed by a magistrate on the grounds of manifest excess or inadequacy must not interfere unless a clear case of error is shown. The appellate court may not substitute its own opinion for that of the sentencing magistrate merely because it would have exercised the sentencing discretion in a different way: Whittle v McIntyre [1967] Tas SR (NC 6) 263; Lowndes v The Queen (1999) 195 CLR 665 at [15]. A ground contending that the sentence was manifestly excessive can only succeed if it is 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]; Visser v Smart [1998] TASSC 151; Lusted v Kenway (2008) 50 MVR 533 at [38]. This Court must be persuaded of error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is "unreasonable or plainly unjust". The applicant must show that the sentence is so obviously excessive that the sentencing discretion must have miscarried; or to put it another way, the sentence is plainly outside the proper limits of the wide discretion vested in the magistrate: Allen v Kerr (2009) 19 Tas R 132; (2009) 193 A Crim R 262. A sentencing court has a wide measure of latitude that is to be viewed with respect and restraint by appeal courts: Postiglioni v The Queen (1997) 189 CLR 295 per Kirby J at 336–337. In Visser v Smart (above) Crawford J (as he then was) summarised the function of an appeal court in dealing with an appeal on the grounds of manifest inadequacy of sentence. The comments apply equally to an appeal on the ground of manifest excess:

   "An appellate court must not interfere with the exercise of the sentencing discretion except in a clear case of error. A magistrate is vested with a very wide discretion. Whittle v McIntyre [1967] Tas SR 263 (NC6). It is not sufficient to set aside a sentencing order just because a more severe sentence would have been imposed by the appellate court. In the circumstances of this case, the motion must fail unless the Court is satisfied that the sentence was manifestly wrong in its inadequacy, as to amount to a clear error in the sentencing process. Such principles have been stated by courts of this State on a great many occasions and come from the High Court in cases such as House v R (1936) 55 CLR 499, Cranssen v R (1936) 55 CLR 509 and Harris v R (1954) 90 CLR 652. Notwithstanding the wide sentencing discretion in the court below, it is the duty of the appellate court to interfere where it is necessary to do so to avoid such manifest inadequacy in sentence or inconsistency in sentencing standards that the error is of such gravity that it is essential in the administration of justice that the error be corrected. It is not necessary to identify any particular error of law made. The error can be implicit in the excessive leniency in the sentence imposed."

2. The expression of manifest excess or manifest inadequacy is a conclusion formed by giving regard to all the matters that are relevant to determining the sentence: Hili v The Queen (2010) 242 CLR 520 at 539.

Was the sentence manifestly excessive?

1. The seriousness of driving while disqualified by virtue of a court order, particularly with a history of similar offending, is well established: Davies v Petersen 50/1991; Maher v Banks A7/1992 [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. 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. 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: Road Safety (Alcohol and Drugs) Act, s 19A(1). The intention of penalty provisions whereby subsequent offenders are liable to increased punishment was referred to by Crawford CJ in Cashman v Jordan [2009] TASSC 112. Such provisions are based on the assumption that in enacting a provision of that kind, the intention of the legislature was 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 applicant was convicted of three breaches of the Road Safety (Alcohol and Drugs) Act, s 6, each arising from driving with alcohol in her body. Because she was a subsequent offender, the Act, s 17, provided for the imposition of a maximum period of imprisonment of 12 months for each count. The sentencing magistrate convicted her of all three counts. I have some doubt about whether he was correct to do so having regard to the principle stated in Wood v Major (1992) 3 Tas R 249 about multiple charges concerning effectively the same conduct. See also Dellar v Crawford [1992] TASSC 34 at [7]. However no challenge is made to that order. This appeal concerns the sentence, which I should consider on the basis that, to the extent the offences of which the applicant was convicted contain common elements, it would be wrong to punish her more than once for the elements that are common: Pearce v The Queen (1998) 194 CLR 610 at [40]. In this case, it follows that she should be punished only once for driving with alcohol in her body at that level.

3. The Road Safety (Alcohol and Drugs)Act is an Act to "protect the public against the risks inherent in the driving of vehicles after consumption of intoxicating liquor or drugs". The risk posed by those who drive after consuming alcohol is well known and understood, and is a matter of considerable social concern. Those who persistently breach the law show contempt for the law and pose a continuing threat to the safety of other members of the community. They, accordingly, must expect harsh punishment. It is worth repeating the remarks of Crawford CJ in McDonald v NilssonMcDonald v Nilsson (2009) 54 MVR 32 at [14]:

   "For many years, judges of this Court have emphasised their condemnation of persistent offending against the Act. In Barrett v Pearce A6/1986 at 4, Neasey J referred to the need for adequate consideration to the seriousness of the repetition factor, and the necessity of giving due weight to the principle of deterrence. In Briant v Bessell (1994) 74 A Crim R 204 at 208, Zeeman J referred to the clear legislative intent evinced by the Act to treat the driving of motor vehicles by persons affected by the consumption of intoxicating liquor as a grave social evil that was to be visited with penalties severe enough to act as a general deterrent and as a personal deterrent to the particular offender. His Honour expressed the view that the imposition of terms of imprisonment ought not be reserved for extraordinary cases. Likewise in Peck v Visser [1999] TASSC 38 at par8, Wright J confirmed the view of this Court over many years that persistent offenders under the Act merit severe punishment. At par17, his Honour referred, in the particular circumstances of the case with which he was dealing, to the apparent fact that the offender had not been deterred by increasingly severe penalties and described him as a persistent danger on the State's roads.

   15 Statements of those kind have been made or repeated in many cases. See, for example, Boyd v Peters [1988] TASSC 3; [1988] Tas R 66 at 72; Devine v Maher [1990] Tas R 147 at 149 – 150; Harriss v Walker (1996) 89 A Crim R 257 at 260."

4. For the offence of evading police, the Police Powers (Vehicle Interception) Act, s 11A(1), provided for imposition of a fine of 50 penalty units or imprisonment for a period not exceeding 12 months, or both. Again, those who attempt to avoid the consequences of their actions by evading police must expect punishment. Sentences must uphold the authority of the police. This breach was not a particularly serious example of that offence. Apart from the assertion that she drove off at "high speed", whatever that means, it was not contended that her conduct in evading the police was aggravated by any actual danger to them or to others. She did not leave Turners Beach and so could not have driven far. She was found and apprehended relatively quickly.

5. The learned magistrate imposed one sentence for all of the offences to which the applicant pleaded guilty: the Sentencing Act 1997, s 11(1)(a). In imposing a single sentence for more than one offence a court must not impose a penalty exceeding the sum of the maximum penalties that could otherwise have been imposed for the offences: s 11(2). Taking account of my comments about double punishment, the applicant was to be sentenced on the basis that the maximum term of imprisonment which could have been imposed was three years. Thus, the sentence imposed was effectively half of the maximum term.

6. The applicant is a persistent offender. Once again, as she has consistently done over a period of about 18 years, she displayed contempt for a court order that she not drive. She drove again only five months or so after her release from a prison sentence imposed for the same type of conduct. She drove with a level of alcohol in her body substantially above the prescribed limit when the law required that she not drive with any alcohol in her body. The explanation she gave for driving provided no mitigation: Parker v Whiteman [2012] TASSC 17. Sentences of increasing severity have not deterred her. When suspended sentences were imposed, she breached them. This time, she was not deterred by the prospect that driving would breach her parole. She is to be pitied for her addiction, but she has not taken the opportunity for reform allowed her by probation orders and parole. Her offending required a sentence which reflected a high level of punishment, denunciation and retribution, protected the public and marked, in a responsible way, the feelings of outrage that the commission of her offences would raise in the minds of informed members of the community. She was not to be sentenced for her past offending, but it indicated a particular need for specific deterrence and protection of the public.

7. The prospect of the applicant's rehabilitation did not outweigh the other factors to which I have referred as the primary sentencing considerations and was, in any event, properly provided for by the parole order and the probation order. Little mitigation arose from her plea of guilty because, although it had some utilitarian value, it arose from recognition of the inevitable.

8. Leaving aside for a moment the issue of totality to which I will return, I am quite unpersuaded that the sentence of imprisonment for 18 months, with a non-parole period of 10 months, was manifestly excessive. It is a harsh sentence but a harsh sentence was demanded. Manifest excess is not readily apparent. The sentence is not outside the proper limits of the magistrate's sentencing discretion.

Totality

1. The principal contention of the applicant is that the sentence imposed is manifestly excessive when considered in combination with the sentence she was already serving. As a result of the offences on 6 September 2014, the applicant breached the parole she was granted on 28 April 2014 in respect to the sentence imposed on 27 March 2013. On 19 September 2014 her parole was revoked and she is required to serve that sentence. With remissions, her earliest release date is 5 May 2015. Without remissions, it may be as late as August 2015. Because the applicant was sentenced for offences committed while on parole, the learned sentencing magistrate correctly ordered that the sentence he imposed be served cumulatively on the remainder of the sentence in respect of which the applicant was released on parole: Corrections Act 1997, s 76. The result is that the sentence his Honour imposed will not commence until 5 May 2015 at the earliest. The revocation of the applicant's parole is not mitigating. She brought that on herself. However the revocation of her parole is relevant in considering the totality and proportionality of the aggregation of the sentences. As Wood J explained in Wright v Tasmania [2010] TASCCA 7 at [60]:

   "The cumulative operation of a sentence, and that an offender is serving part of a previous sentence having breached his parole, is to be taken into account in assessing whether the aggregate of sentences imposed is a just and appropriate measure of the total criminality involved: Postiglione v R (1997) 189 CLR 295 per McHugh J at 307 – 308; Mill v R (1988) 166 CLR 59; R v Piacentino (2007) 169 A Crim R 348 at 356 - 357."

1. The applicant submits that the sentencing magistrate gave insufficient weight to "the totality principle". Care must be taken in considering such a submission. No specific error is alleged. The error alleged is that the sentencing order was manifestly excessive, that is, that the sentence imposed is, having regard to all the matters that are relevant to determining the sentence, too heavy and thus lies outside the permissible range of dispositions. If it was not manifestly excessive, it cannot be said that the magistrate placed insufficient weight on totality. However, as I have already said, it is a relevant sentencing consideration. In considering whether his Honour's sentence was manifestly excessive, one of the matters I must have regard to is the remaining sentence the applicant is to serve after revocation of her parole. Where an offender is being sentenced at a time when he or she is serving a sentence of imprisonment, the Court must take into account the so-called totality principle: ; R v Gordon (1994) 71 A Crim R 459; Postiglione v The Queen (above) at 308; Harland-White v The Queen [1998] TASSC 1; Draper v Tasmania Police [2004] TASSC 120; Director of Public Prosecutions v Farmer (2005) 13 Tas R 418 per Evans J at [24]; LWR v Lusted (2009) 19 Tas R 233, and Rae v State of Tasmania [2010] TASCCA 8 per Crawford CJ at [18]. As Hunt CJ at CL in R v Gordon (1994) 71 A Crim R 459 pointed out at 466:

   "When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable."

2. In Director of Public Prosecutions v Farmer (supra) Slicer J, with whom Evans J agreed, said at [5]:

   "Totality is a reflection not of an artificial exercise, but of an attempt to evaluate overall criminal responsibility, achieve relativity and avoid the imposition of a 'crushing sentence', leaving the offender bereft of future change (Postiglione v R (1997) 189 CLR 295; Mill v R (1988) 166 CLR 59, Wise v R [1965] Tas SR 196)."

3. In this case the applicant was entitled to little consideration arising from totality. Taken in combination with all other relevant sentencing considerations, the combined effect of the two sentencing orders did not, to my mind, make the sentence under appeal manifestly excessive. The sentence she was serving was for criminal conduct quite separate in time to the offending for which she was sentenced. Moreover, in my view, the total effect of both sentences did not represent a crushing or disproportionate response to the gravity of the whole of her criminal conduct.  The applicant submitted that, in considering the total effect of the sentence, her eligibility for parole is to be ignored because her entitlement to parole is a matter for the Parole Board and not the sentencing court. I do not accept that submission. It was made unburdened by authority and is contrary to authority and principle. The prospect of parole should not be taken into account in determining the length of a head sentence. A court should pass an appropriate sentence for a crime: R v Paivenen (1985) 158 CLR 495 at 494. However, whether a sentence imposed is crushing depends, at least in part, on whether it may discourage any hope of reform. An order for parole is one means of allowing for that prospect, while imposing a head sentence which properly reflects the level of the applicant's criminality. In Mill v The Queen (1988) 166 CLR 59, at 66, the High Court dealt with an appeal concerning a man sentenced after having already served a sentence for similar offending at about the same time in another State. The Court found that the principle of totality applied to the head sentence and "is not confined in its operation to the fixing of a non-parole period". Mill was applied by Evans J, sitting as a member of the Court of Criminal Appeal in Devine v The Queen [2003] TASSC 52. I respectfully agree with his Honour's remarks at [30]:

   "The totality principle applies to both the head sentence and a non-parole period, Mill v R (1988) 166 CLR 59. Subject to the need to preserve a sentence's capacity to achieve all its intended objectives, in my view, a court should, in its approach to fixing a parole eligibility date, if any, be optimistic about a prisoner's rehabilitation prospects. If that optimism proves to be misplaced, it is reasonable to expect that the prisoner will not be paroled as the Parole Board is only empowered to grant a prisoner parole after considering the matters detailed in the Corrections Act, s72(4), which include the rehabilitation of the prisoner, the likelihood of the prisoner re-offending, and the protection of the public."

Result and order

1. The single ground of appeal is not made out. The motion to review is dismissed.