Bessell v Deverell

[1998] TASSC 3

3/1998

PARTIES:  KERRY LLOYD BESSELL

v

JUSTIN BRIAN CLARE DEVERELL

JURISDICTION:  Appellate

FILE NO/S:  LCA 98/1997

DELIVERED:  3 February 1998

HEARING DATE/S:  3 February 1998

JUDGMENT OF:  Underwood J

CATCHWORDS:

Criminal law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Purpose of sentence - Deterrence - Persistent offender.
Traffic Act 1925 (Tas), s37.
Brown v Stone B15/1995; Bessell v Riley B12/1995, referred to.

Aust Dig Criminal Law [827]

REPRESENTATION:

Counsel:
Applicant:  F C Neasey
Respondent:  In Person

Judgment category classification:
Court Computer Code:
Judgment ID No.:   3/1998
Number of pages:   4

Solicitors:
Applicant:  DPP (Tas)

Respondent:              In Person


Order: motion to review allowed.


UNDERWOOD J

On 24 September 1997 the following orders were made in a court of petty sessions upon the respondent's pleas of guilty:

Offence	Order
Driving at a speed exceeding 60 kilometres per hour namely 80 kilometres per hour, contrary, to Traffic (General & Local) Regulations 1956, reg7(2)(a).	Fine $65. Two demerit points.
Driving whilst disqualified from holding or obtaining a drivers licence, contrary to the Traffic Act 1925, s37(1).	140 hours' community service.

The facts surrounding the commission of the two offences are unremarkable.  On 30 October 1996, police officers were conducting speed checks in a sixty kilometre per hour zone on the Brooker Avenue, Hobart.  The respondent was driving a station wagon towards the city at a speed of eighty kilometres per hour.  The respondent was stopped and told the speed at which he had been travelling.  When asked to produce his licence, the respondent said he did not have it with him.  A subsequent licence check revealed that the respondent was disqualified from holding a driver's licence until 15 November 1996.  The respondent told the learned magistrate that he and his fiancÈe were living at Murdunna and the latter was working at the Kingston RSL Club.  He said that he knew that he was going to get his licence back shortly and as his fiancÈe had no way of getting back to Murdunna he "just took that chance".

The motion to review only seeks a review of the order of 140 hours' community service imposed with respect to the offence of driving whilst disqualified from holding or obtaining a driver's licence.  The single ground of appeal is that the order of penalty is manifestly inadequate.  The genesis of that ground lies in the respondent's record of prior convictions.  This is the respondent's thirteenth conviction for driving a motor vehicle whilst disqualified from holding or obtaining a driver's licence.  The respondent's first traffic offence, driving without a licence, was committed on 5 April 1988 when he was sixteen years old. At the same time as he was convicted for that offence he was convicted on another count of being an unlicensed driver and on one count of motor vehicle stealing.  He was disqualified from holding or obtaining a driver's licence until 3 November 1989.  However, on 7 January 1989, the respondent drove a motor vehicle in breach of that order, and consequently on 7 March that year was convicted for the first time of driving whilst disqualified from obtaining a licence.  On 16 October of the same year the respondent was convicted for the fifth and sixth times for driving whilst disqualified and sentenced to one month imprisonment upon each conviction.  This was the first time that the respondent had been ordered to serve a sentence of imprisonment.  It appears that the order of imprisonment did not have the desired deterrent effect, for the respondent was convicted of driving whilst disqualified on 11 May 1990, 27 July 1990, 21 December 1990 (two offences), 15 July 1991 and 9 October 1992.  The imposition of penalties has been somewhat erratic in that although orders of imprisonment were made on each occasion after the fifth and sixth convictions, on some occasions the immediate execution of the sentence was conditionally suspended.  On the last occasion, the respondent was sentenced to five months' imprisonment, the execution of the whole of which sentence was conditionally suspended.

The learned magistrate correctly referred to the respondent's record of driving a motor vehicle whilst disqualified as "frightful".  He noted, however, that there had been no convictions for that offence since 1992.  Whilst that is correct, it must also be noted that since 1992 the respondent has appeared in a court of petty sessions on no less than ten occasions and there convicted of eighteen offences including offences involving dishonesty and prohibited substances, miscellaneous relatively minor traffic matters and, on 15 August 1996, of negligent driving and being an unlicensed driver.  Before he made the order of community service, the learned magistrate said:

"You previously performed community service hours, if I give you enough, that will be sufficient penalty for driving whilst disqualified, because you shouldn't have done, because it is the obligation of everyone not to, and more so in your case, having had eleven previous convictions, many of which you have had your sentence to imprisonment [sic].  Anyway, perhaps you've turned the corner.  It is a chance worth taking.  I need to get a probation officer to see you as to whether you are suitable to perform community service [sic]".

After making all the orders, the learned magistrate observed:

"That is all I will order on that complaint.  I think, without a doubt, you have been lucky, but notwithstanding I think that I'm right in saying that, I don't think it is inadequate or a wrong exercise of the discretion to sentence you in that fashion rather than to imprison you, for the reasons I have already mentioned by you [sic], twice."

The learned magistrate's discretion plainly miscarried. At the time the order was made, the respondent was a persistent offender who deliberately defied court orders.  There was absolutely no doubt that the only appropriate course to take was to order a sentence of actual imprisonment.  No basis existed for the imposition of any lesser penalty.  In this respect, the learned magistrate was in error when he described the respondent as being "lucky".  The result of unwarranted leniency has been a successful appeal against sentence which has been hanging over the respondent's head for just over four months. With respect to the proper exercise of the discretion in a case such as this, Zeeman J observed in Brown v Stone B14/1995 at 4:

"Parliament has provided for a maximum sentence of 6 months' imprisonment for the offence of driving whilst disqualified. The respondent might not have had reason to complain had that maximum sentence been imposed on him. An offender who persistently drives whilst disqualified and who does so without there being any mitigating circumstances must expect to receive the maximum sentence because the offence represents one of the worst examples of the proscribed conduct likely to be encountered in ordinary practice (see R v Mallinder (1986) 23A Crim R 179; R v Tait (1979) 46 FLR 386). In dealing with persons who are convicted of the offence of driving whilst disqualified, magistrates must steadfastly keep in mind what Parliament has determined to be the maximum penalty."

I am in complete agreement with his Honour's observations.  Wright J made observations to a similar effect in Bessell v Riley B12/1995.  In the light of his record of prior convictions the respondent knew when he "took the chance" and deliberately flouted the law by driving his motor vehicle whilst not licensed to do so, that if he was caught, he was certain to be sentenced to a term of immediate imprisonment.

The maximum penalty provided by Parliament for this offence is six months' imprisonment.  As there are no mitigating circumstances surrounding the commission of the offence and as this is the thirteenth time in nine years that the respondent has been convicted of the offence, I am in no doubt that this is a case for the application of the maximum penalty.  The motion to review is allowed.  The order of 140 hours' community service is quashed and in lieu thereof, the respondent is sentenced to six months' imprisonment to date from today.  There will be a further order that he be disqualified from holding or obtaining a driver's licence for a period of eighteen months after his discharge from prison.

$$A