Burke v Goodwin
[2013] TASSC 72
•6 December 2013
[2013] TASSC 72
COURT: SUPREME COURT OF TASMANIA
CITATION: Burke v Goodwin [2013] TASSC 72
PARTIES: BURKE, Kenneth John
v
GOODWIN, Kellie
FILE NO: 897/2013
DELIVERED ON: 6 December 2013
DELIVERED AT: Hobart
HEARING DATE: 6 December 2013
JUDGMENT OF: Estcourt J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentence – Whether applicant sentenced for an offence of which he had not been convicted - Disqualified from driving for 10 months for driving without a licence – Whether sentence manifestly excessive – Poor driving record – Prior conviction for driving whilst disqualified.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: J Crotty
Respondent: S Nicholson
Solicitors:
Applicant: James Crotty Barristers & Solicitors
Respondent: Director of Public Prosecutions
Judgment Number: [2013] TASSC 72
Number of paragraphs: 25
Serial No 72/2013
File No 897/2013
KENNETH JOHN BURKE v KELLIE GOODWIN
REASONS FOR JUDGMENT ESTCOURT J
6 December 2013
The appeal
On 23 August 2013, the applicant pleaded guilty to complaint number 3952/13 charging him with driving without a licence contrary to the Vehicle and Traffic Act 1999 (the Act), s8(1). Magistrate Mollard convicted him and disqualified him from holding or obtaining a driver licence for a period of 10 months, and ordered him to pay court costs of $77.
The applicant, who has a very bad driving record, has numerous prior convictions for driving whilst disqualified contrary to s13 of the Act. However, the offence of driving without a licence for which he was convicted by the learned magistrate was a first offence.
The magistrate's sentencing remarks
In sentencing the applicant the learned magistrate said:
"A technicality comes to your rescue in terms of the outcome of this matter, and the technicality is that although you've been convicted of driving while disqualified more times than I care to try to count, it appears to be correct that you've never – at least not in an adult court – and therefore not ever been convicted – been convicted of unlicensed driving. Now I haven't scoured the record with a fine tooth comb to make absolutely triple sure that that's right, but that's what it looks like and that's what the submission is and the conviction of 19th April is not a prior conviction because you committed this act of unlicensed driving first. Now what that means I can't send you to prison – I think you richly deserve to go there but I can't because I can only sentence someone to imprisonment for unlicensed driving if they've got a prior conviction for unlicensed driving and you don't. So you should think yourself – no I'll rephrase that because that wouldn't have been the right way to put it. I'll put it this way – so it's just as well that that technicality has – as I put it before – come to your rescue.
But I am putting it to you like that Mr Burke so that you know just what a serious view I'm taking of your behaviour. The circumstances included the fact that you knew – you must have known – that you would not be granted a licence until and unless you produced the evidence that the licensing authority required and you hadn't done that. And so it's not a mere case of unlicensed driving in my view.
Now, what should I do. I've just told you what I can't do – it certainly is relevant that you have now succeeded in persuading the licensing authority that you can be granted and have been granted a restricted type – or conditional type of licence and I take that into account. Mr Crotty's submission is that that fact is linked to other aspects of your life – for instance your plan to sell your midway point home and perhaps even now you hope to be able to move to Dunalley where you intended to move before the unfortunate event that's been described to me. I accept completely that that will be difficult during any period of licence disqualification and I certainly don't want a situation to arise where the disqualification that in my view I undoubtedly must impose, should be so long as to be counter-productive and by that I'm talking about two things – I'm talking about encouraging you to drive anyway – because it seems you need little encouragement to drive anyway and the other thing is to punish you too greatly by imposing a penalty that will, to too great an extent, put your life on hold until the disqualification finishes and you succeed again – and I assume ultimately you will succeed again – in persuading the licenser – licensing authority to grant you another licence.
Now it is a difficult balancing act – but for those particular factors you would be looking at a disqualification of at least 12 and probably many more months than that, but I think that the mitigating factors carry sufficient weight to allow me to let me say – shrink from the notional 12 month period of disqualification to a period of ten months.
You will be disqualified from holding or obtaining a driver's licence for ten months and your licence is cancelled. I don't intend to fine you."
The legislation
Section 8 of the Act provides as follows:
"8 Requirement to hold driver licence
(1) A person must not drive a motor vehicle on a public street unless the person –
(a) holds a driver licence under this Act authorising the person to drive a motor vehicle of the relevant class; or
Penalty:
In the case of –
(a) a first offence – a fine not exceeding 20 penalty units; and
(b) a second or subsequent offence – a fine not exceeding 40 penalty units or imprisonment for a term not exceeding 3 months."
Section 9 of the Act provides, relevantly, as follows:
"9 Driving while subject to licence suspension
(1) A person must not drive a motor vehicle on a public street while the person's Australian driver licence or foreign driver licence is under suspension.
Penalty:
In the case of –
(a) a first offence – a fine not exceeding 30 penalty units or imprisonment for a term not exceeding 3 months; and
(b) a second or subsequent offence – a fine not exceeding 60 penalty units or imprisonment for a term not exceeding 6 months.
(2) A person must not employ, cause or permit another to drive a motor vehicle on a public street if the other person's Australian driver licence or foreign driver licence is under suspension.
Penalty:
In the case of –
(a) a first offence –
(i) for a body corporate – a fine not exceeding 150 penalty units; and
(ii)for an individual – a fine not exceeding 30 penalty units or imprisonment for a term not exceeding 3 months, or both; and
(b) a second or subsequent offence –
(i) for a body corporate – a fine not exceeding 300 penalty units; and
(ii)for an individual – a fine not exceeding 60 penalty units or imprisonment for a term not exceeding 6 months."
Section 13 of the Act provides, relevantly, as follows:
"13 Driving while disqualified
(1) A person must not drive a motor vehicle on a public street in Tasmania if the person is disqualified from driving by –
(a) an Australian court under an Act of this or any other State or a Territory; or
(b) an automatic statutory penalty.
Penalty:
In the case of –
(a) a first offence –
(i)a fine not exceeding 40 penalty units or imprisonment for a term not exceeding 6 months, or both; and
(ii)a further period of disqualification, not exceeding 3 years, fixed by the court; and
(b) a second or subsequent offence –
(i)a fine not exceeding 80 penalty units or imprisonment for a term not exceeding 12 months, or both; and
(ii)a further period of disqualification, not exceeding 5 years, fixed by the court."
Section 17 of the Act provides as follows:
"17 Power of court to order disqualification
Subject to sections 19B and 19E, a court that convicts a person of a traffic offence may disqualify the person from driving for a period specified by the court."
The grounds of review
The applicant has moved to review the learned magistrate's sentence. His notice to review sets out three grounds. They are as follows:
"1 The learned magistrate erred in law in that he approached the sentencing task and sentenced the applicant on the basis of an offence by the applicant against the provisions of s9(1) of the Vehicle & Traffic Act 1999, driving while subject to licence suspension, rather than the offence under s8(1) of the Vehicle & Traffic Act 1999, requirement to hold driver licence, with which the applicant had been charged and to which he had pleaded guilty.
2 That the learned magistrate erred in law in that the disqualification of 10 months imposed is manifestly excessive given the offence, the circumstances of the offending and the offender.
3 That the learned magistrate erred in law in failing to give any or any sufficient weight to matters pleaded in mitigation."
Ground 1
As to the first ground of review, counsel for the applicant, Mr Crotty, submits, in reliance on the principle derived from R v De Simoni (1981) 147 CLR 383, that the applicant was sentenced for an offence of which he had not been convicted. He submits that the learned magistrate, in the context of the case, by reference to the applicant's knowledge of his inability to obtain a driver licence unless he provided the Registrar of Motor Vehicles with the required evidence, sentenced him on the basis of his disregard for a prohibition upon holding or obtaining a driver licence, such as driving whilst a licence is suspended, or driving whilst disqualified.
Counsel for the applicant contended that, in making preliminary remarks, the learned magistrate dealt with the charge of unlicensed driving as if it were another of the more serious offences comprising the applicant's record of prior convictions for driving whilst disqualified.
I do not accept that submission. I accept the submission of counsel for the respondent, Mr Nicholson, that a fair reading of the learned magistrate's comments overall does not disclose that he impermissibly took account of the elements of a different offence.
The learned magistrate was told that it was accepted that the applicant was eligible at the time of his offending to hold a driver licence, but only after production of the evidence that was required by the Registrar of Motor Vehicles in the form of a liver function test. I have little doubt that this fact, taken together with the applicant's previous record of prior convictions, prompted the learned magistrate's rather strong remarks. However, I am quite satisfied, in part because of those very remarks, that his Honour was well aware that he was only sentencing the applicant for a first offence against s8(1) of the Act.
The learned magistrate said:
"But I am putting it to you like that Mr Burke so that you know just what a serious view I'm taking of your behaviour. The circumstances included the fact that you knew – you must have known – that you would not be granted a licence until and unless you produced the evidence that the licensing authority required and you hadn't done that. And so it's not a mere case of unlicensed driving in my view." (My emphasis.)
The learned magistrate was, in my opinion, entitled to take a serious view of the circumstances of the applicant's offending, given the nature of the requirement of the Registrar of Motor Vehicles that had not been complied with, and given the applicant's prior convictions for driving whilst disqualified. I do not apprehend however, that in saying "[and] so it's not a mere case of unlicensed driving in my view", his Honour was conveying anything other than that there were aggravating features attending the case. I do not take him, by those words, or by his earlier remarks, to be evincing a disposition towards sentencing the applicant for a more serious offence than that of which he was convicted. As pointed out by counsel for the respondent, the learned magistrate's comments were made ex tempore and should not be over zealously scrutinised.
Ground 1 of the notice to review is not made out.
Grounds 2 and 3
Ground 2 of the notice to review involves a contention that although the nature of the error leading to manifest excess may not be discoverable, the exercise of the learned magistrate's sentencing discretion should be reviewed on the ground that a substantial wrong has nonetheless occurred. It should therefore be considered together with ground 3 of the notice. That ground alleges a failure by his Honour to give sufficient weight to matters put on behalf of the applicant in mitigation.
The plea in mitigation put by counsel for the applicant to the learned magistrate is sufficiently brief to allow it to be set out in its entirety. It was as follows:
"MR CROTTY: Yes, I suppose the good news your Honour is that Mr Burke has as of this morning, successfully completed an application for a driver's licence, and if I could seek to hand up to you some documentation in relation to that - firstly a copy of the licence which has been obtained by Mr Burke, and secondly documentation which was provided to the Registrar of Motor Vehicles earlier in this year, but following the last conviction, which is his only other conviction for driving with a licence suspended, which has enabled him to make the application for a driver's licence.
HIS HONOUR: So what you're telling me really is, that he's not just applied, he's been granted a licence.
MR CROTTY; Indeed – as of today. It did take three goes to get it because one of the problems that Mr Burke has is that he has some literacy problems and he's had some difficulty actually applying for the test and was assisted by the staff at Service Tasmania in undertaking the test, and then got it this morning. I understand that the prosecution will take no issue with the fact he was at the relevant time, eligible to have his licence returned to him should he have been able to satisfy the conditions of the Registrar of Motor Vehicles which he has now done – that he was co-operative with police and that there was nothing untoward in his manner of driving.
You can see from his prior convictions, your Honour, and the other matters there which you have before you which are not priors, is that he's had a troubled copy of years but his actual offending in relation to this matter occurred a few days – sorry – about a month prior to this offence and indeed this offence took place on the day before he was due to come before the Court on the only other similar matter which he has for driving whilst unlicensed. Had it been able to have been organised, he would have pleaded guilty at that stage. Pleas of guilty were not entered at the first opportunity because I was unavailable to represent Mr Burke – Mr Burke is not eligible for legal aid and his financial position is such that that he has a lot of difficulty in meeting legal expenses – so it wasn't a situation where he could go off to another lawyer or I could refer it off to another lawyer except if they were prepared to do it on a pro bono basis.
He's a disability pensioner. He receives approximately $700 a fortnight. He is a disability pensioner at the present time because of the consequences suffered as a result of an assault when he was imprisoned on the last occasion. He pays on a mortgage $400 a fortnight. He has about a hundred thousand dollars outstanding on his mortgage and his home is worth about $200,000 at Midway Point. You will see reference in the letters before you to a loss of a family home at Dunalley. He is in the process – or was then in the process, prior to the bush fires, of putting his home at Midway point for sale and moving into a shack which is at Dunalley. That shack did not have a mortgage, it was uninsured and was totally destroyed in the bush fires. As a result of the destruction in the bush fires and the lack of insurance and the fact that it is not his principal residence, or not regarded as a principal residence because of his property at Midway Point, he hasn't received any government assistance in related to the loss of his home beyond the provision of some necessary materials around the time of the bush fire.
The motor vehicle that he was driving at the time is not his own motor vehicle, it was a friend's motor vehicle. He was assisting in the transportations of materials. He doesn't own a motor vehicle. He has outstanding – sorry – he has $2,000 worth of fines presently outstanding with MPS and is a forty dollars per fortnight arrangement with them which has been adhered to. He's had some difficulties, but he's getting his life back in order as those letters before you attest. It would be a considerable dis – it would be of considerable loss to him if he was now, being able to drive, so he can get his life in order, to lose his licence for any period of time.
HIS HONOUR: It's surely got to happen though, hasn't it? Looking at the record and the facts of the matter?
MR CROTTY; Well it would be the extent to which the disqualification is imposed, your Honour. It's not put to you that it wouldn't be an appropriate case for disqualification. It's just that it seems that Mr Burke has for a very long period of time lived in this netherworld of not complying with requirements. He's finally matured at the age of 47 sufficiently to the extent of actually satisfying those requirements. He's on the cusp I would think, of being able to change his life and the detriment to him of the lengthy loss of licence or lengthy disqualification given that he lives at Midway Point, given that he's trying to re-build his home at Dunalley, would be quite considerable.
You will notice, your Honour in the prior convictions that you have before you, a great number of the matters which are listed as for police reference only are either no evidence being tendered or he successfully resisted. It's not disputed that he's come to the attention of the police a considerable amount of time, his convictions are not great and his attitude is considerably improved."
Grounds 2 and 3 of the notice to review should succeed. In my view the period of 10 months' disqualification, even accepting that no fine was imposed, was so unreasonable or plainly unjust as to warrant intervention. I accept the submission made by counsel for the respondent that the learned magistrate was alive to the issue of ensuring that the penalty was not crushing or disproportionate, but, in my view, it was just that, and clear error is apparent.
The learned magistrate was entitled to treat the offence as a serious example of its type, given the nature of the requirement of the Registrar of Motor Vehicles that had not been met by the applicant, and given his bad record of driving whilst disqualified and also his numerous prior convictions for offences against the Road Safety (Alcohol and Drugs) Act 1970.
However, many of the applicant's prior convictions were of considerable age, and the last of them almost six years earlier, and it was clear from the unchallenged material put in mitigation that the applicant was beginning to get his life in order, and that a driving licence was an integral part of that process.
Moreover, after overcoming his literacy problems by being assisted by staff at Service Tasmania, the applicant had passed his driving test and after satisfying the requirements of the Registrar of Motor Vehicles, he had been re-issued with his licence on the day he appeared before the learned magistrate.
In all of those circumstances it would have been appropriate, in my view, to assist the applicant to continue his rehabilitation and to recognise his achieved compliance with his legal obligations by imposing a short period of licence disqualification only. The time was ripe for ending the applicant's cycle of offending and driving when not authorised by law to do so. Disqualification was called for but it should not have been so long a period as to cause the applicant to be tempted to disobey it yet again.
The applicant's offence remained at heart the least serious of the licensing of drivers offences set out under Div1 of Pt3 of the Act, and it was the applicant's first conviction for such an offence. To my mind, a period of 10 months' licence disqualification was manifestly excessive, even given that no monetary penalty was imposed. The applicant's continued reform and rehabilitation should have been encouraged by a short period of disqualification.
Disposition
Grounds 2 and 3 of the notice to review are made out and the orders of the learned magistrate appealed against are quashed.
As to re-sentencing, proceeding on the basis of the facts as stated to the learned magistrate, and the matters put to his Honour by counsel for the applicant in mitigation, I record a conviction on complaint number 3952/13 and order that the applicant pay the Magistrates Court costs of $77. I make an order pursuant to s17(1) of the Act disqualifying the applicant from driving for a period of three months from 23 August 2013.
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