Bonde v White
[2017] TASSC 30
•8 May 2017
[2017] TASSC 30
COURT: SUPREME COURT OF TASMANIA
CITATION: Bonde v White [2017] TASSC 30
PARTIES: BONDE, Michael
MOORE, Luke
COLLINS, Bradley
LUSTED, Gary
HORAN, Melinda
v
WHITE, Brodie Aaron
FILE NO: 469/2017
DELIVERED ON: 8 May 2017
DELIVERED AT: Launceston
HEARING DATE: 1 May 2017
JUDGMENT OF: Pearce J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentence and penalty –Four counts of drive with illicit drugs – Total sentence of disqualification from driving for six months and $1,200 fine manifestly inadequate.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss 6A(1), 17.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicants: E Judd
Respondent: J Oxley
Solicitors:
Applicants: Director of Public Prosecutions
Respondent: Legal Aid Commission of Tasmania
Judgment Number: [2017] TASSC 30
Number of paragraphs: 17
Serial No 30/2017
File No 469/2017
MICHAEL BONDE, LUKE MOORE, BRADLEY COLLINS,
GARY LUSTED and MELINDA HORAN v BRODIE AARON WHITE
REASONS FOR JUDGMENT PEARCE J
8 May 2017
The applicants, who are police officers, move to review sentencing orders made by a magistrate, Mr R Marron, concerning the respondent, Brodie White. The respondent was charged with 14 offences across eight complaints. He pleaded guilty to:
· four counts of driving a motor vehicle while an illicit drug, "THC", was present in his blood contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the RSAD Act"), s 6A(1), on 29 September 2014, 17 October 2014, 22 October 2014 and 6 May 2016;
· two counts of breaching bail contrary to the Bail Act 1994, s 9, by failing to appear in court on 3 March 2015 and 16 March 2016;
· using and possessing a controlled plant, cannabis, on 9 September 2015, contrary to the Misuse of Drugs Act 2001, s 25; and
· unlawfully possessing a dangerous article, a kitchen knife, in a public place on 23 November 2015 contrary to the Police Offences Act 1935, s 15C(1).
On the complaints charging the offences under the RSAD Act committed on 29 September 2014, 17 October 2014 and 22 October 2014 the respondent was also charged with, on each occasion, driving whilst his driver licence was suspended contrary to the Vehicle and Traffic Act 1999, s 9(1). On 19 January 2017 the police prosecutor tendered no evidence on each of those charges.
The sentencing hearing was protracted. It commenced on 30 June 2016 when the respondent appeared in person and pleaded guilty to some of the charges. Facts were stated and the respondent gave the magistrate some information about himself. The magistrate ordered a pre-sentence report. There was then a delay. The sentencing hearing resumed on 19 January 2017. On that day the respondent was represented. After the facts for the remaining charges were stated and a plea in mitigation was made on behalf of the respondent, the magistrate started to proceed to sentence. In the course of his Honour's remarks a question arose about the application of the mandatory minimum penalties provided for by s 17 of the RSAD Act. The magistrate adjourned the proceedings to allow him to consider the issue. The sentencing hearing resumed on 3 February 2017. The combined effect of the orders partly made on 19 January 2017 and completed on 3 February 2017 is as follows:
· for the charges of using and possessing cannabis, one sentence for those two offences made under the Sentencing Act 1997, s 7(f), adjourning the proceedings for 12 months without recording a conviction on the offender giving an undertaking to be of good behaviour for that period;
· for the charges of breaching bail and possessing a dangerous article, one sentence for those three offences, namely convictions on each count and a fine of $250. His Honour ordered that the knife be forfeited;
· for the charges under the RSAD Act, on each count in chronological order the magistrate ordered that the respondent be disqualified from driving for three months from 3 February 2017, 3 March 2017, 3 April 2017 and 3 May 2017;
· for each of the four charges under the RSAD Act, as well as the three counts of driving while suspended, an "aggregate fine of $1200";
· a probation order "across all matters".
There are three grounds of appeal. The ground of appeal asserts that the "sentence" is manifestly inadequate. The second asserts that the magistrate erred by imposing a mix of "cumulative, concurrent and global sentences". The third is that the magistrate erred by sentencing the respondent for the three counts of driving while suspended when the prosecution tendered no evidence on each of those charges.
Counsel for the respondent concedes the error alleged by the third ground. It is plainly apparent and, for that reason, the sentences imposed on the driving charges cannot stand. The learned magistrate must have inadvertently overlooked that, on 19 January 2017, he was informed that the prosecutor tendered no evidence on those counts. Neither the prosecutor nor counsel corrected his Honour. The only proper order was that those counts be dismissed. Instead, his Honour expressed the fine he imposed to be for offences including those counts. Accordingly, the sentence must be set aside. I cannot be satisfied that the amount of the fine was not influenced by including those charges in the penalty.
The second ground must also be allowed. A court which finds a person guilty of "an offence" may make one of the sentencing orders specified in the Sentencing Act, s 7, or a combination of them, s 8. The reference to "an offence" in s 7 is in the singular. However s 11 permits a court to impose on an offender who has been convicted of more than one offence specified in one or more complaints or indictments:
"(a) one sentence for all of those offences; or
(b)a separate sentence for each of those offences; or
(c)one sentence for a group of those offences determined by the court and —
(i) one sentence for all of the remaining offences; or
(ii) a separate sentence for each of the remaining offences; or
(iii) a separate sentence for each other group of the offences remaining as the court determines and a separate sentence for each offence remaining, if any, as is not within any such group."
The sentencing magistrate recorded convictions and imposed separate periods of disqualification for each of the four counts of driving with an illicit drug in the blood. His Honour then imposed one single fine for those offences as well as the driving while suspended offences. When imposing sentence he expressed it as an "aggregate fine". The magistrate expressed the probation order to be "across all offences". For the reasons explained by Cox CJ in Harper v Gauden [2003] TASSC 66, 12 Tas R 57 at [7], the power to impose global sentences contained in s 11 does not permit the imposition of separate sentences for more than one offence and a single additional part of the sentence by way of fine or probation order for that group of offences or a group of offences which includes those offences.
Each offence against s 6A(1) attracts the mandatory minimum penalties provided for by s 17 of the RSAD Act. A Table of Penalties is set out at the end of s 17. Section 17(3) governs the application of the Table. Section 17(3) of that Act is mandatory: Wilkie v Taylor [2015] TASFC 7, 71 MVR 239. Thus, the combined effect of s 17(3) and the Table is that a court which convicts a person of a first or subsequent offence under one of the sections listed in the Table, must impose a fine of at least the minimum amount shown in the Table, or a term of imprisonment, or both the fine and imprisonment, as well as a period of disqualification of at least the minimum specified term. In the case of a first offence against s 6A, the court must impose a fine of at least two penalty units, or a term of imprisonment, or both the fine and imprisonment, and also disqualify the person from driving for at least three months. For subsequent offences the minimum penalties are doubled, but for each of the counts faced by the respondent he was to be sentenced as a first offender. Section 17(5) permits a court which convicts a person of an offence specified in the Table to impose a lesser fine or period of disqualification than the specified minimum, but only if satisfied that there are special circumstances. It was not suggested that there were any special circumstances which applied to the respondent.
At the time the first three offences were committed by the respondent a penalty unit was $140. Thus, for each of those counts, the magistrate was obliged to impose a period of disqualification of at least three months and a fine of at least $280. At the time of the fourth count a penalty unit was $154. Thus, for that count, the magistrate was obliged to impose a period of disqualification of at least three months and a fine of at least $308.
Counsel for the respondent contends that the magistrate's reference to an "aggregate", rather than a global fine of $1,200 means that his Honour's intention was to impose four separate fines amounting to a total of $1,200. I do not see that any such meaning can sensibly be attributed to the sentence. His Honour did not say that the imposition of separate fines was intended. No indication is given of what fine attaches to which count. If each fine is $300 then the fine for the first three offences is greater than the minimum, but the fine for the final offence is less than the minimum. In any event, even if that submission is correct, it does not overcome the problem with the form in which the probation order was made, expressed as it was to apply to all offences before the magistrate, not just the RSAD Act offences which were made subject to separate orders of disqualification. Orders in those terms are not permitted by s 11 because to proceed in that way does not constitute the imposition either of "one sentence for all of the offences" or a "separate sentence for each of the offences".
If the matters to which I have referred were the applicants' only complaints, then it may be that the motion could be resolved by making simple corrective orders. However, the first ground contends that the sentence is manifestly inadequate. Counsel for the applicants makes clear that the ground relates only to the sentence imposed for the offences under the RSAD Act. No complaint is made concerning the remaining charges, and I am satisfied that the sentences imposed fell well within the proper exercise of the magistrate's broad sentencing discretion. Because the sentence is tainted by other error and must be set aside, it is not strictly necessary for me to be satisfied of manifest inadequacy before intervening. However, for the following reasons I am satisfied that the first ground is also made out.
The effect of the sentencing orders made by the sentencing magistrate for the four counts of driving with an illicit drug under the RSAD Act was disqualification from driving for a total period of six months and a fine of $1,200. That effective period of disqualification was achieved by making separate orders imposing the minimum period of disqualification for each offence, and ordering that each period of disqualification take effect on different subsequent days. Nothing in the RSAD Act mandates that each minimum period of disqualification be served cumulatively. The power to make orders which operate to make each period of disqualification wholly or partially concurrent emerges from the operation of the Vehicle and Traffic Act, s 17(4)(b) and the Sentencing Act, s 56.
The respondent is now 24. At the time of the 2014 offences he was 21. He had no relevant prior convictions. The material before the magistrate suggested that the respondent had a difficult relationship with his mother and did not know his father. He lived with his grandmother to age 16 but, after she died, he assumed a transient lifestyle, often homeless. In the period leading up to the court appearance he had been living with a friend at Longford and regarded the accommodation as relatively stable. He was not working and had never held stable employment. He received social security benefits, either youth allowance or Newstart, $200 per fortnight of which went to his rent. He had used cannabis from age 13. In August 2016 he reported to the author of the pre-sentence report that he had, in the past, spent $100 per day on the substance. He had been working with agencies to attempt to reduce cannabis use but was still spending $20 per day. Various mental health conditions were reported to the magistrate, including anxiety and depression. He said that he had ceased driving after using cannabis.
The offences were accompanied by a number of aggravating factors. On each occasion of driving the respondent had at least one passenger. The first three offences were committed within a period of about a month. He continued to drive after using cannabis even though he had been subject to oral fluid tests which proved positive. The risk of offending must have been apparent to him. The final offence was committed 17 months later while he was on bail for the other charges. The pre-sentence report indicated that the respondent had a lack of insight into the offending and was not remorseful.
There was nothing about the manner of the respondent's driving which brought him to the attention of the police, but that does not mean that his ability to drive safely was not diminished. The RSAD Act is an Act to "protect the public against the risks inherent in the driving of vehicles after consumption of intoxicating liquor or drugs". Protection of the public, punishment and deterrence of offenders and deterrence of others who may be minded to risk driving after drinking alcohol or using illicit drugs, are primary sentencing factors. The mandatory minimum penalties manifest a legislative intention to advance those purposes.
The total of the mandatory minimum fines is $1,148. The RSAD Act, s 17, required the magistrate to either imprison the respondent or impose a fine or fines of at least that total amount. The applicants, properly, do not contend that a sentence of imprisonment should have been imposed. I am not persuaded that the total fine imposed by the magistrate, being just over the minimum his Honour could lawfully impose, was manifestly inadequate. There was ample material before the magistrate to show that the respondent was unable to pay a greater fine. I also consider that it was, despite the aggravating features of the offending, within the magistrate's sentencing discretion to impose the minimum period of disqualification for each offence. Given the respondent's personal circumstances and lack of prior convictions, that was not an unreasonable response. It was proper to allow for rehabilitation and reform of the respondent. The probation order is primarily aimed at rehabilitation. It also has some punitive effect. The learned magistrate was clearly minded to impose a period of disqualification from driving which would not unduly interfere with the respondent's ability to comply with the conditions of the probation order, and not set him up to fail. The pre-sentence report assessed the respondent as requiring a high level of intervention. However, I am satisfied that with a reasonable amount of resourcefulness and, if necessary, resort to public transport, compliance can and should be readily achieved. The decision to order to that each minimum period of disqualification be served partly concurrently undermined the punitive, protective and deterrent effect of the sentences to the point of error. It was not a just and appropriate measure of the total criminality involved in the respondent's offending. That is not to say that it is never appropriate to make periods of disqualification imposed under the RSAD Act wholly or partly concurrent. However I accept the applicants' contention that in the circumstances of this case the total effect of the sentence was unreasonable and plainly unjust. Error is implied in the excessive lenience of the sentence.
The motion to review is allowed. The sentences imposed on complaints 35975/2014, 30341/2015, 30052/2015 and 34110/2016 are quashed. The probation order made by the magistrate is quashed. The other sentencing orders made by his Honour will remain in place. Count 1 on complaint 35975/2014, count 2 on complaint 30341/2015 and count 3 on complaint 30052/2015, the three counts of driving while suspended, are dismissed. I will re-sentence the respondent. The Justices Act 1959, s 110(2AA), allows me to take into account matters occurring since the respondent was sentenced by the magistrate, but there is nothing which indicates any material change of circumstances. On count 2 on complaint 35975/2014, count 1 on complaint 30341/2015, count 1 on complaint 30052/2015 and on complaint 34110/2016, the four charges of driving with an illicit drug, the respondent is convicted. For that group of offences I impose one sentence. The respondent is fined $1,200 and disqualified from driving for 12 months from 3 February 2017. I make a probation order for 18 months from 3 February 2017 with the special conditions that the respondent must attend educational and other programs, undergo assessment and treatment for alcohol or drug dependency, submit to testing for alcohol or drug use and submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
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