Bonde v Newton

[2011] TASSC 21

[2011] TASSC 21

COURT:                   SUPREME COURT OF TASMANIA

CITATION:            Bonde v Newton [2011] TASSC 21

PARTIES:  BONDE, Acting Sergeant Michael
  HIBBLE, Senior Const Kim

BONDE, A/Sgt Michael
  V
  NEWTON, Carla Jane

FILE NO/S:  158/2011
DELIVERED ON:  11 May 2011
DELIVERED AT:  Launceston
HEARING DATE:  20 April 2011
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Review of sentence – $200 fine for thrice driving while licence was suspended and using an unregistered vehicle and a vehicle with no premium cover – Poor driving record – Whether sentence manifestly inadequate.

Dunford v R A10/1995, applied.

Aust Dig Magistrates 272

REPRESENTATION:

Counsel:
           Appellant:  J P Ransom
           Respondent:  No appearance
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  In person

Judgment Number:  [2011] TASSC 21
Number of paragraphs:  19

Serial No 21/2011
File No 158/2011

ACTING SERGEANT MICHAEL BONDE, SENIOR CONST KIM HIBBLE AND A/SGT MICHAEL A BONDE v CARLA JANE NEWTON

REASONS FOR JUDGMENT  CRAWFORD CJ
  11 May 2011

1. The prosecution sought to review a sentence imposed by a magistrate, Mr Marron, on 18 February 2011 on the ground that it was manifestly inadequate.  I agree that it was for the reasons I will give. 

1. I note that the respondent did not appear at the hearing of the motion to review despite notice being given to her. 

1. The sentence was a fine of $200.  When it was imposed, the respondent uttered:  "Is that all?"  It is apparent that she was surprised at the leniency of the sentence.  No doubt the reason for that surprise was based on her knowledge of her poor driving record.  Despite her reaction, I must reach my own conclusions concerning whether the sentence was manifestly inadequate.

1. She appeared on three complaints and pleaded guilty to all charges.  At all material times, her driver's licence was suspended due to an accumulation of demerit points.  The period of suspension was 27 October to 26 January.  On 4 November 2010 she drove a vehicle while her licence was suspended, used it when it was not registered and used it when it was not insured under the Motor Accidents (Liabilities and Compensation) Act 1973. Her vehicle had become unregistered from 8 October. On 8 December 2010 she again drove a vehicle while her licence was under suspension. On 4 January 2011 she committed the same offence once again.

1. On 4 November the offences were committed on Elphin Road, Launceston.  She gave no explanation for them. 

1. On 8 December the offence was committed on the Kings Meadows Connector.  Her explanation for driving under suspension was that she had to pick up a child.  She claimed she had no other way of doing so.

1. On 4 January the offence was committed on Barclay Street, Evandale.  Her explanation for driving under suspension was that she had noticed her four cats had fleas.  Unable to purchase the right treatment at Evandale, where she lived, she decided to drive to Coles to purchase some.  I note that the nearest Coles store was at Kings Meadows in Launceston.

1. She told the magistrate she was on a pension and found it quite hard living at Evandale because her child went to school at Glen Dhu in Launceston and all her friends lived in Launceston.  She complained that although she was the main carer of her 7-year-old son, the Family Law Court allowed the boy's father to insist that he attend the Glen Dhu school and she had the responsibility for taking him there.  She said she had been under immense stress.

1. At the time of the hearing before the magistrate she owned a car which was registered and compulsorily insured.  The period of suspension of her driver's licence had ended.  She said she owed $6000 in fines.  She asked the magistrate not to disqualify her from driving because living out of town, having to take her son to the Glen Dhu school and having to attend the Family Law Court were putting a lot of pressure and stress on her.  She said she was on anti-depressants and suffered from anxiety.  Her submissions should be considered with other statements she made to the magistrate.  They were that she had not been driving, she had given her keys to a friend to save her from making any more bad decisions and she intended to sell her car.

1. I observe that the most direct routes from Evandale to the Glen Dhu school and the Family Law Court were not via Elphin Road or the Kings Meadows Connector.

1. The respondent was 38 years old.  She had a poor driving record over a period of 14 years.  It consisted of 61 offences, including 33 for speeding, four for using an unregistered vehicle, three for using an uninsured vehicle and three for unlicensed driving.  Over the previous six years she had committed 35 offences arising out of her use of motor vehicles.  Throughout her driving history she had suffered several periods of suspension for excessive demerit points together with six months' disqualification for drink driving.  Her unpaid fines were for driving offences. 

1. The magistrate gave no reasons for the sentence. 

1. For the purposes of deciding the matter, I will accept that each of the offences of driving while suspended should be treated as a first offence for the purposes of the Vehicle and Traffic Act 1999, s9. On that basis the maximum penalty for that offence was a fine not exceeding $3900 or imprisonment not exceeding six months. For using the vehicle when unregistered, which was not a first offence for her, the maximum penalty was a fine not exceeding $5200 or imprisonment for a term not exceeding three months. Vehicle and Traffic Act, s27(1). For using the vehicle when it was unregistered, the maximum penalty was $2600 or imprisonment for a term not exceeding 12 months or both.

1. In addition, for each of the offences of driving while suspended and the offence of using the vehicle when it was not registered the magistrate had power to disqualify her from driving for a period specified by the magistrate.  Vehicle and Traffic Act, s17(1).

1. I have no hesitation concluding that the penalty imposed by the magistrate was manifestly inadequate.  It had virtually no deterrent value.  The respondent was a persistent offender against the traffic laws.  Her blatant disregard on three occasions within two months of the effect of the suspension of her licence demanded a substantial punishment, notwithstanding the hardships she claimed to suffer.  The circumstances required that she be forced to learn that traffic laws must be obeyed and not treated with the contempt she demonstrated. 

1. I respectfully adopt the following statement of Cox CJ in the Court of Criminal Appeal in Dunford v R A10/1995 at 2 and 3:

"While he is not to be punished for his past offences and his sentence must not be disproportionate to the gravity of the offence, the fact that he has such an array of previous convictions is indicative of a lack of respect for the law and disentitles him to the leniency which could properly be extended to an offender with no or substantially fewer convictions. In circumstances such as these, where the offence is not an uncharacteristic aberration, the Court is entitled to place greater emphasis on the aspect of deterrence (Veen v R (No 2) [1988] HCA 14; (1987 – 1988) 164 CLR 465."

1. Her past failure to pay fines and her statement that she was on a pension suggested an inability to pay those fines.  Nevertheless, the imposition of a very small fine with nothing else for her offences was plainly inadequate.  Each of her offences was deliberate and not an oversight or error of judgment. 

1. The following orders will be made.  The fine of $200 will be quashed.  In its place it will be ordered:

1On complaint 36330/2010 for driving while her licence was suspended, using an unregistered vehicle and using a vehicle with no premium cover, all on 4 November 2010, she will be fined $300, disqualified from driving for three months and the disqualification will be postponed to commence on 4 June 2011. 

2On complaint 36942/2010 for driving while her licence was suspended on 8 December 2010, she will be fined $200, disqualified from driving for four months and the disqualification will be postponed to commence on 4 June 2011 also.

3On complaint 30568/2011 for driving while her licence was suspended on 4 January 2011, she will be fined $200, disqualified from driving for six months and the disqualification will be postponed to commence on 4 June 2011 as well.

1. I advise her not to drive in breach of the Court's order.  If she does so she will be risking imprisonment.