Barwick v Taws

[2003] TASSC 83

[2003] TASSC 83

CITATION:              Barwick v Taws [2003] TASSC 83

PARTIES:  BARWICK, Simon Thomas
  v
  ACTING SERGEANT JAYSON TAWS

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 23/2003
DELIVERED ON:  3 September 2003
DELIVERED AT:  Hobart
HEARING DATES:  1 August 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Traffic Law - Offences - Procedure - Sentence – Subsequent grant of restricted licence not relevant to review of penalty.

Road Safety (Alcohol & Drugs) Act 1970, (Tas), s18.

Aust Dig Traffic Law [120]

REPRESENTATION:

Counsel:
           Applicant:  A J Dillon
           Respondent:  J P Ransom
Solicitors:
           Applicant:  Archer Bushby
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2003] TASSC 83
Number of Paragraphs:  12

Serial No 83/2003
File No LCA 23/2003

SIMON THOMAS BARWICK v ACTING SERGEANT JAYSON TAWS

REASONS FOR JUDGMENT  SLICER J

3 September 2003

1. The motion to review raises two substantive issues.  The first is whether a licence disqualification of 12 months, in addition to a fine of $1,000 for an offence of dishonesty, is manifestly excessive.  The second is whether a court reviewing the penalty is entitled to take into account the grant of a restricted licence in its assessment of whether the penalty was manifestly excessive.

Imposition of penalty

1. The applicant pleaded guilty to the crime of stealing "by finding", contrary to the Criminal Code, ss234 and 226(2)(a)(iv). On 5 July 2002, a motor vehicle was stolen in Launceston and driven to a secluded bush area near Scottsdale. Although much of the vehicle had been "stripped", word had got around and on a later date the applicant had driven to the area and removed the vehicle's engine which he later installed in his own vehicle, exchanging, in turn, his own engine for another. The value of the engine was approximately $1,000. When interviewed, the offender admitted responsibility and pleaded guilty to the crime. Mr Barwick, aged 23, was in employment earning a good income, and had no relevant prior convictions. The learned magistrate recorded a conviction, imposed a fine of $1,000 and disqualified the offender from driving for a period of 12 months on 22 May 2003. Following the imposition of penalty, counsel for the applicant sought a "postponement of the disqualification". Following the application, the following exchange occurred between counsel and the learned magistrate:

"coram:  Whether he'll get a restricted licence is very debatable but the matter can be heard before me and ---

mr dillon:  Well, Your Worship, I make an application that you disqualify yourself.

coram:  Absolutely not Mr Dillon.  Absolutely not.  The matter will be heard before me.  It is very debatable, as I said, whether he'll get one.  There's a strong public issue interest, the public interest issue involved in this.  I say no more than that.  Its [sic] certainly not anything that requires me to disqualify myself at all.  $1,200.  How long to pay?

mr dillon:  Well I will take instructions, Your Worship. If he doesn't get a restricted licence he will be without income. He seeks 21 days to pay, Your Worship.

coram:  21 days to pay.  Now you're asking me to postpone that disqualification I take it, are you?

mr dillon:  Yes."

1. An application for the grant of a restricted licence made on 10 June was granted on 16 June.

Restricted licence

1. It is first necessary to consider whether this Court is either entitled or required to take into account the grant of a restricted licence subsequent to the imposition of penalty.  Counsel for the respondent contended that the provisions of the Justices Act 1959, s110(2)(ab), permit its reception since it is relevant to whether there had been "a substantial miscarriage of justice". Counsel for the applicant contended that the Court could not take notice of the grant of the restricted licence, since the Justices Rules, r58A, limits the material which can be provided by a court of petty sessions to the Supreme Court and does not extend to an order made pursuant to the Vehicle and Traffic Act 1999, s18, and the Sentencing Act 1997 ("the Act"), s57. The respective arguments on this point are academic, since the clerk of petty sessions is required to forward a copy of the complaint and the attached record of proceedings which, in this case, include a record of the grant and terms of the restricted licence. The material is properly before the Court. The Justices Act, s110(2) relevantly provides:

(2)   On the hearing of a motion to review, the court shall, upon consideration of the evidence and materials adduced and brought before the justices and such further evidence (if any) as it thinks fit, review the order so far as relates to the ground set forth in the notice to review, and thereupon may do all or any of the following things."

1. Whilst there may be occasions when a court reviewing penalty might have regard to circumstances occurring subsequent to penalty (Plumstead v R (1997) 7 Tas R 206; Stanley v R (1998) 7 Tas R 357), they ought be circumscribed. In this case, the applicant was not attempting to place before the Court "fresh evidence" or "subjective material" as a basis for the review of the original sentence. This is not a case where a prosecutor is seeking to show that an original sentence was flawed, since it was imposed on a "false basis" (Stanley (supra)).  The test of whether the sentence was "manifestly excessive" ought be determined on the basis of the material before the Court at the time of the determination of penalty.  A provision such as that of the Vehicle and Traffic Act, s18, which ameliorates the effect of a particular penalty, is not one which governs the penalty itself. It is simply a recognition of the effect of that penalty and the social utility of permitting a "form of driving". Whilst the Road Safety (Alcohol & Drugs) Act 1970, s19(1B) provided:

"(1b) If an order is made under section 36 of the Traffic Act 1925 in respect of a conviction for an offence under this Act, the Court may increase the period of disqualification from holding or obtaining a driver's licence remaining at the time the order is made by an amount not exceeding the period so remaining."

before the repeal of the Traffic Act 1925, s36, the intent of Parliament was to permit variation after imposition so that a comparable "end result" penalty remained as a form of general and special deterrent and it may be that in such cases the combined effect of the two orders would be relevant to an attack on the final sentence. But here there is no such statutory provision. There may be social utility in the granting of power to a court of petty sessions to make "restricted driving orders" as part of the original order, but at present entirely different considerations apply in the granting or refusing of restricted licences which play no part in the assessment of penalty. A prosecutor's appeal against a grant of a restricted licence is limited to those matters. The circumstances of the conduct giving rise to disqualification might be relevant to that appeal, but on the basis of "public interest or safety" might not be used to assail the original order as "manifestly inadequate" in the light of a subsequent grant of a restricted licence. Here, as of the date of imposition of penalty, there was no certainty that a restricted licence would be granted.

1. The evidence of the grant of a restricted licence is not relevant to the issue on appeal, namely whether the penalty imposed was, absent specific error, manifestly excessive.

Manifestly excessive

1. The Act, s55(2)(a) provides:

"(2)   A court that convicts an offender of a motor vehicle offence may, in addition to imposing any other penalty to which the offender is liable ¾  

(a)order that the offender be disqualified, either for a specified period or until further ordered by a court, from driving."

whilst a "motor vehicle offence" is defined by s55(1)(b) as:

"(b)   an indictable offence arising out of the driving, operation or use of a motor vehicle or in the commission of which a vehicle was used or the commission of which was facilitated by a motor vehicle, including any such indictable offence that is triable by a court of petty sessions."

1. The applicant had used a motor vehicle to travel to the place where the stolen vehicle had been left and for the removal of the stolen engine.

1. The conduct and the record of the offender did not warrant the imposition of a custodial sentence.  The offender worked within a family business earning "on average the sum of $500 per week".  He was paying board of $60 per week and his major expenses were payments associated with his motor vehicle and motor cycle, totalling $180 per week.  The learned magistrate was entitled to believe that a fine of $1,000 would not constitute a sufficient subjective deterrent, especially since some of the disposable income was being used in the purchase of motor vehicles which were linked to the property stolen.  He was entitled to consider the imposition of disqualification or the ordering of community service.  In Rolston v Harris (1996) 6 Tas R 156, Zeeman J had cause to consider whether the purpose of the Justices Act, s92B, the then equivalent of the Act, s55, was that of punishment or assistance in the prevention of crime, and arrived at a balance when he said, at 160 – 161:

"I would not go so far as to say that every use of a motor vehicle on a subsequent occasion to carry the stolen property could attract the power to order disqualification. The requirement that there be a sufficient temporal connection between the commission of the offence and the use of a motor vehicle was accepted in Feeney v Devine (1980) 23 SASR 274.

That case concerned an appeal by an offender, who had been convicted of having stolen a wheel nut and hub cap, against an order of disqualification which had been made pursuant to a provision in terms similar to s92b."

1. In considering whether a licence disqualification of eight months was excessive in the case of a 20 year old convicted for burglary and stealing, his Honour concluded at 164:

"By imposing a quite substantial period of disqualification the learned magistrate took a step which might well be counter-productive to the applicant becoming a law-abiding citizen. I do not overlook the possibility that the applicant might be able to obtain a hardship licence should he need to drive for the purpose of his employment, but the grant of such a licence for such purposes cannot be assured. Enforced unemployment for a substantial period by reason of an inability to drive is unlikely to have a rehabilitative effect upon the applicant. The contrary may well be the case. I consider that the period of disqualification imposed was manifestly excessive, particularly when it is remembered that the applicant also became the subject of a community service order. I would not go so far as to say that any period of disqualification could be considered to be excessive. However the length of the disqualification makes it excessive and the magistrate's order must be quashed."

1. In this case, the learned magistrate did not have material suggesting that the offender would become unemployed if his licence was disqualified.  That matter might have been relevant to and raised in support of the application for a restricted licence, but was not a matter put to him on penalty.  The length of disqualification is not sufficient to show manifest, but undefined, error.

1. The motion to review ought be dismissed.