Butcher v Lyons
[2018] TASSC 39
•17 August 2018
[2018] TASSC 39
COURT: SUPREME COURT OF TASMANIA
CITATION: Butcher v Lyons [2018] TASSC 39
PARTIES: BUTCHER, Nicholas Michael
v
LYONS, Jason
KOEHLER, Renee
FILE NO: LCA 309/2018
DELIVERED ON: 17 August 2018
DELIVERED AT: Hobart
HEARING DATE/S: 4 July 2018
JUDGMENT OF: Geason J
CATCHWORDS:
Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving under influence of intoxicating liquor or drug – Sentence and penalty – Whether sentence manifestly excessive.
Aust Dig Traffic Law [1156]
Criminal Law – Sentence – Sentencing orders – Custodial orders – Other matters – Applications that offender be ordered to serve suspended sentences of imprisonment – Whether "unjust" to activate suspended sentences.
Sentencing Act 1997 (Tas), s 27.
Aust Dig Criminal Law [3352]
REPRESENTATION:
Counsel:
Appellant: In Person
Respondent: Sam Thompson
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASSC 39
Number of paragraphs: 45
Serial No 39/2018
File No LCA 309/2018
NICHOLAS MICHAEL BUTCHER v JASON LYONS and RENEE KOEHLER
REASONS FOR JUDGMENT GEASON J
17 August 2018
On 31 January 2018 the applicant was sentenced to two months imprisonment on his plea of guilty to driving a motor vehicle whilst a prescribed illicit drug was present in his blood and driving whilst disqualified. He was disqualified from driving for 18 months.
As a result of these offences he was in breach of a suspended sentence of six weeks' imprisonment, which had been imposed on 24 November 2016. That sentence was imposed for breaches of a family violence order.
On an application made pursuant s 27 of the Sentencing Act 1997 for activation of the suspended sentence, the applicant did not show cause. He contended that activation of the suspended sentence would be unjust. When a court determines that it would be unjust to activate a suspended sentence, options are available to it, including leaving the sentence undisturbed.
The learned magistrate, Mr D R Fairley, determined that activation of the suspended sentence would not be unjust, and ordered that it be activated. He ordered that it be served cumulatively to the two months' imprisonment he imposed for the driving offences.
By his notice to review, the applicant recites the driving offences, and that cause was not shown in relation to the application to activate the suspended sentence. The notice refers to the penalty imposed for the driving offences, and to the direction that the applicant serve the suspended sentence. It then contends that the "learned magistrate erred in fact and law in imposing a sentence that was manifestly excessive in all the circumstances of the case".
On its face the notice to review did not explicitly challenge the order activating the suspended sentence. When the matter came on for hearing the applicant explained the notice was intended to raise these matters: that the sentence for the driving offences was manifestly excessive; that the activation of the suspended sentence was unjust; and that the overall period of imprisonment constituted by the sentence for the driving offences and the activated suspended sentence was manifestly excessive. This submission invoked the totality principle.
Mr Thompson, presented the respondent's case on that basis. The applicant was not represented on the appeal. Mr Thompson assisted the Court comprehensively, fairly presenting arguments directed at assisting the Court to resolve the various issues. I am grateful for his assistance.
The applicant was admitted to bail by Estcourt J, having served 28 days of his sentence.
The proceedings
The facts of the driving were presented to the court:
"Thank you your Honour. In relation to Indice 11, 52290/201 7, on the 6th of April 2017 around 2:30pm the police intercepted a vehicle travelling on Watkinson Street Devonport.
The defendant was the driver of the vehicle and he submitted to an oral fluid test which was positive. He was conveyed to the hospital where the test returned methylamphetamine and amphetamine. At the time of the offence there was an adult passenger and two children in the vehicle.
In relation to Indice 13, which is 54051/2017. On Friday the 18th of August 2017 around 7:00pm police were on a mobile patrol when they observed a vehicle which brought their attention to it on Rooke Street and Steele Street. They intercepted the vehicle travelling on Steele Street and upon intercept police conducted checks which confirmed the driver to be the defendant. Police spoke to the defendant regarding his driving and then allowed him to leave.
Further checks conducted later revealed that the defendant attended the Devonport Court of Petty Sessions on the 16th of August 2017 and as a result was caught disqualified effective from the 16th of the Eighth 2017 until the 15th of February 2018. Police attended the defendant's address and spoke to him regarding his disqualification and further advised him he would receive a summons.
In relation to the application to activate the suspended sentence the following was put:
HIS HONOUR: And then there's the final matter there. All right, thank you.
MR LYONS: Thank you, your Honour. For the facts in relation to 52910/2016 in relation to the application, that on the 20th of January 2016 in the Magistrate's Court held at Devonport, the court ordered that an interim family violence order be put in place with the following relevant condition: that Nicholas Michael Butcher, who did appear in Court, must not be within 100 metres or contact directly or indirectly AJB including by telephone, email, facsimile, letter, SMS text message or any form of electronic communication except for the purpose of contact with TJB as agreed or ordered by court of competent jurisdiction.
On the 14th of February 2016 at 5:27pm the complainant received a text message from the defendant. On the 16th of February 2016 the complainant received another text message from the defendant. (The contents of the messages is reproduced later in these reasons)
Both messages were sent from the same mobile phone number and that mobile phone number used by the defendant.
Police attended Risdon Prison on the 14th of April 2016 and provided the defendant with an opportunity to be interviewed regarding these matters and he declined at that time and no explanation was given ...".
Plea in Mitigation
The plea in mitigation traversed the driving offences and the Sentencing Act application.
"Your Honour, Mr Butcher is 33 years of age, he resides in Devonport in a unit provided through Housing Tasmania, he has been at that address now for approximately five years. He has three children to two previous relationships. The most recent relationship with which Mr Butcher has been involved and has resulted in two daughters, aged two and four. Mr Butcher instructs he has an amicable relationship with their mother and has done so since their separation. The situation at present is that his former partner and the two girls are actually living with him while they search for their own accommodation here. The situation unfortunately in relation to Mr Butcher's nine year old son is very much a different one, that is to a different ex-partner. She is the complainant in respect of the various breaches of family violence orders that you Honour sees reflected in Mr Butcher's record, including matters currently before your Honour by way of a beach application.
The situation there has been that the relationship deteriorated quite significantly following separation of the parties. Mr Butcher's former partner retains of their child, that has been the situation since the separation. The current arrangement is that Mr Butcher is - or has contact with that child for six hours a fortnight, and that is a restriction placed on him by his former partner. There have been various attempts at mediating the situation. Those have been unsuccessful. It's Mr Butcher's feeling that his former partner is deliberately resisting his attempts to have a more significant relationship with his son.
There have been claims by her of risk to the child, those claims have been fairly and squarely debunked by Child Safety Services who have been involved with the family, who have undertaken enquiries and who have confirmed that for their part they do not hold any safety concerns in that Mr Butcher having the care of his child.
His former partner has insisted Mr Butcher undertake an anger management course, that is something he has attempted to address. He instructs that he did commence such a course through Relationships Australia earlier this year. It was originally with another service provider but then transferred to Relationships Australia. He instructs it took something in the order of a year even to get into that course. Initially he attended a total of five individual sessions and a number of group sessions. That process was proving a positive one for him. Unfortunately the session times were changed from being in the evening to the daytime, that then clashed with Mr Butcher's work commitments and he was no longer able to continue attending at that program.
It would seem, given his former partner's history in the Family Law proceedings in any event, that even had he completed that program it would not necessarily have had the desired result from Mr Butcher's perspective.
The breaches of the family violence order both occurred in the context of Mr Butcher being denied significant contact with his son. Your Honour, I suspect, will have gathered as much from the conciliatory tone of the first text message in time, expressing Mr Butcher's love and affection for his son and his desire to spend more time with the child. It's conceded the second message was not of such a nature. On my instructions, however, it was one that was prompted by Mr Butcher holding welfare concerns for his son, given the care situation that he was aware of with his former partner at the time.
The record of prior convictions does need some further explanation in respect of this Complaint. These breaches occurred while Mr Butcher was awaiting sentence in relation to the offences for which he was dealt with on the 9th of March 2016. He instructs he was under considerable strain at the time, fearing that there would be sentence of imprisonment as a result. That was indeed the outcome. He served a total sentence of eight weeks imprisonment.
The text messages had been reported by the Complainant to police prior to that sentencing exercise being undertaken by the Court. They had not, it would seem, gotten any further in the investigative process. It was not until Mr Butcher was in the final weeks of his sentence that police made efforts to interview him. The complaint itself then was not filed with the Court until subsequent to his release from custody, and it was for that reason that he was before the Court in November of last year, being sentenced for breaches that occurred prior to the sentence of imprisonment he had been required to serve.
It's my submission that the suspended sentence has had the desired effect of moderating Mr Butcher's behaviour in his dealings with his former partner. It's not a situation where I can say to your Honour that the arrangements have improved to any great extent. Mr Butcher remains frustrated by the lack of movement in that respect.
In my submission, however, that only adds to the submission that the sentence of actual imprisonment and latterly the suspended sentence of imprisonment have had the desired effect, because despite the same frustrations existing Mr Butcher has not responded in any way that has resulted in further criminal charges involving the Complainant. In my submission that is a significant factor for your Honour to consider in assessing whether it would be unjust to activate that sentence of imprisonment.
Turning to the driving offences, my instructions in respect of the charge of driving with a prescribed illicit drug in the system. That Mr Butcher had taken the drug some days prior. Your Honour will see that there is a similar offence on his record from the end of July 2016. My instructions are that Mr Butcher, on that occasion, had waited one or two days, on this occasion he had waited a longer period, having taken something away from the fact that he'd been dealt with by police previously for driving with those drugs in his system. It's not suggested in that particular incident that there was anything aggravating regarding his manner of driving.
In respect of the charge of driving disqualified, I acknowledge that that has occurred very shortly after the period of disqualification was imposed by this Court. The circumstances there are that Mr Butcher was travelling from his address in Devonport to his mother's address in East Devonport. He was doing so to collect medication. He takes anti-depressants - he's prescribed anti-depressants and required to take those each day. He's also prescribed sleeping tablets which he's required to take on a nightly basis. On this occasion he had run out of the sleeping tablets. He was concerned not to interrupt the course of medication, particularly given he was on two separate medications at the time. He had a reserve supply of the medication at his mother's address, so he has made the decision to drive that short distance for the purpose of collecting that medication and ensuring that his treatment was not interrupted.
I'm instructed that the situation regarding his son is significantly affecting Mr Butcher's mental health. He suffers from depression. That condition is made worse by the fact he cannot see his son as regularly as he would like. That is why on occasion he has resorted to the use of methylamphetamine. I'm instructed that's a social – or a drug that he has used socially. He's since taken steps to distance himself from persons with whom he was associating in that world and to abstain from using that drug.
He is currently reliant upon Centrelink benefits. He does have - he does often work but the nature of the employment is both casual and seasonal, that he works as a farm hand. He's indicated that he expects to have employment available to him again in the New Year.
He did have the offer of fulltime employer as a courier driver but obviously not having a licence that was not a job he was able to take up.
It's my submission that Mr Butcher has made considerable inroads to his rehabilitation since being the subject of the suspended sentence of imprisonment. The offending, I accept, has some similarity in that it represents a breach of Court Order, but in my submission it is otherwise of a different nature. A suspended sentence was imposed against a clear and concerning background of Mr Butcher breaching those (indistinct words) orders. It's not suggested there have been any further breaches of such orders or further criminal incidents involving the Complainant in that matter.
It would be my suggestion that Mr Butcher might potentially benefit from further support offered to him in the community, either through probation or through the imposition of community service. I note he's had such an order in the past, most recently in 2015.
He has instructed that he was not referred for the family violence offender intervention program at that time, and it may be notwithstanding the fact your Honour is dealing with a breach of suspended sentence that that is still an appropriate course for him to undertake. I'm aware also as your Honour no doubt it, that there are additional programs now available through the EQUIPS program range and I'd suggest that a number of those programs may well be suitable for Mr Butcher and assist him with his ongoing rehabilitation.
Your Honour those are the matters I wish to put forward. Unless your Honour has any specific queries arising."
Comments on sentencing
The learned magistrate adjourned sentencing for a pre-sentence report. In imposing sentence his Honour said:
"The defendant appears for sentence on one count of driving with an illicit drug in his blood and one of driving whilst disqualified. The offences arise from the defendant's conduct on the 6th of April and 13th of August last year. There is also an application before me which seeks to activate a six week wholly suspended sentence of imprisonment arising from the defendants breaches of a family violence order, that sentence being imposed by the Court on the 24th of November 2016.
I note that Mr Butcher does not seek to show cause in relation to the application but argues that it would be unjust to activate the sentence of imprisonment. I have had due regard to the facts in relation to both driving related matters. While there was nothing about the manner of the defendant's driving on either occasion which brought him to the attention of police, I note that he was driving with methylamphetamine and amphetamine in his blood and that there were a number of passengers in the vehicle including two young children. I was told, however, that the defendant consumed the methylamphetamine a number of days prior to the act of driving and was not feeling any significant effects of the drug when he was apprehended.
In relation to the offence of driving whilst disqualified the defendant says he was motivated by the need to retrieve some antidepressant medication from his mother's house. While the defendant was no doubt eager to ensure there was no interruption in his medication regime, such does not provide an excuse for driving two days after being disqualified by Court.
The seriousness of driving while disqualified by virtue of a Court order, particularly with a history of similar offending is addressed in the matter of Barratt and Wilson, a decision of Pearce, J from 2015. One reason why those who breach an order of disqualification must expect harsh punishment is that otherwise the force and effect of such an order is undermined and the law is brought into disrepute. As his Honour observes Parliament has legislated for harsher and harsher penalties for subsequent offenders.
Mr Butcher is today liable to a fine not exceeding 80 penalty units, imprisonment for a term not exceeding 12 months or both and disqualification from driving for a period not exceeding five years. The intention of the legislature was that where punishment imposed for a first offence has not operated as a sufficient warning or deterrent, a higher penalty is then to be imposed for any subsequent offence.
In light of his record of similar offending Mr Butcher having two prior convictions for driving whilst disqualified, both of which attracted head sentences of imprisonment, if anyone ought to have been aware of the seriousness with which the offence of driving whilst disqualified is viewed by the courts it was this defendant.
Similar observations might be made concerning driving in breach of the protective provisions of the Road Safety Alcohol and Drugs Act. The object of the legislation is to protect the public against the risks inherent in the driving of motor vehicles after the consumption of alcohol and illicit drugs. Those who persistently offend show contempt for the law and pose a continuing threat to the safety of other members of the community. Thus I'm required by law to impose penalties which will act as both a personal and general deterrent for this type of offending.
I give weight to the defendant's pleas of guilty. I also have regard to the defendant's personal circumstances as outlined by Ms Ker and addressed in the pre-sentence report provided by Ms Winter. The defendant is a 33 year old man who is unemployed. I understand that he is looking for work and has some prospects of employment in the short term. I note that he has family support and has accessed medical and related services to try and deal with his depressive condition.
I now turn to the defendant's record of prior convictions. He has a poor record of offending, contrary to the Road Safety Alcohol and Drugs Act, and family violence legislation in particular. I note that the defendant has been given of a suspended sentence of imprisonment on no less than five previous occasions. The fourth of those suspended sentences was breached and subsequently activated. I'm now asked to consider activating the fifth. As an aside I note that his second driving whilst disqualified offence appears to have been committed in breach of the one month wholly suspended term of imprisonment imposed in relation to the first. The record does not indicate why no action was taken in relation to that. Thus during the last 13 or 14 years the defendant has been given multiple opportunities to reform and has been offered assistance via the Community Corrections service. Rather than take up those opportunities and commit himself to long term rehabilitation the defendant has instead continued to offend in a variety of serious fashions.
I accept that a sentence of imprisonment should be a sentence of last resort and should only be imposed where alternative punishment is inappropriate. In light of the circumstances before me today I've reached the view that all other sentencing options have been exhausted and a sentence of imprisonment will be imposed.
In relation to the application brought pursuant to s27 of the Sentencing Act, I have considered the issues discussed by the Supreme Court in cases such as Hanna v Brown, Cannell v Hughes and McShane v Ashwood. I note the Court's discussion in the latter case of the policy behind the sentencing regime and such was concisely stated in R v Buckman as follows:
There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non law abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance. Parliament has recognised however that in some cases the rigorous application of the ordinary consequences of a breach can be oppressive and even unjust.
I'm of the view that it is important the courts adhere to the general principle set out in s27(4)(B) of the Act as departure from it by the non-activation of suspended sentences risks undermining the integrity of the system of suspended sentences and their effectiveness as a means of deterrents both general and personal. Nevertheless I'm required to consider whether there are proper factors here which agitate here the presumption created by the Act, such factors include: the nature and circumstances of the offences for which the suspended sentence was originally imposed, the nature and gravity of the breach in comparison to the original offences where the activation of the suspended sentence may represent a disproportionate response, the lapse of time between the imposition of the suspended sentence and the breach, indications of reform and rehabilitation and whether the new offences indicate that the defendant has reverted to a pattern of offending behaviour.
While I accept the charges before me for sentence today are somewhat different to those which were before the court on the 24th of November 2016, there is a clear thread running through the defendant's behaviour. It seems that the defendant has little, if any, respect for the law or in particular court orders. Both the offending dealt with on the 24th of November 2016 and the matters before the court today are serious offences and I note that the matter from the 18th of August 2017 also relates to the breach of a court order. The most recent offences were committed only four months and nine months respectively into a two year period of suspension.
Perhaps most troubling is that I'm unable to identify any genuine lasting reform on the part of the defendant. As I've already observed the defendant has been offered multiple opportunities to reform over an extended period of time and provided with significant assistance via probation orders, all to no avail. I have concluded that there are no factors, whether taken separately or in a combination, which are of sufficient weight to warrant a finding that activation of the suspended sentence would be unjust. In my opinion to do anything other than to activate the suspended sentence would undermine the purpose of the sentencing policy to such a degree as to be untenable. I'm mindful that the principle of totality applies when a person is sentenced at a time when he is liable to serve other sentences of imprisonment. That principle will be reflected in the sentencing formulation on the new matters before the court today.
The defendant is convicted on Complaints 52290/2017 and 54051/2017 upon his pleas of guilty. In relation to those matters I intend to proceed by way of a global sentence. The defendant is sentenced to two months imprisonment. In addition I order that the defendant is disqualified from holding or obtaining a driver's license for a period of 18 months, such to commence upon his release from prison.
In relation to the application to breach the suspended sentence of the 24th of November 2016 I am satisfied of all matters required and pursuant to s27(4)(B) of the Sentencing Act I order that the defendant serve the term of imprisonment. I further order that such term of imprisonment to be cumulative to that just enclosed on Complaints 52290/2017 and 54051/2017.
Finally I order that the defendant pay court costs and levies in the total sum of two hundred and fifty two dollars and seventy eight cents and I order that such be paid within 28 days of his release."
Manifestly excessive
The principles applicable in appeals alleging manifest excess are settled. An appellate court sits to correct material error: Dinsdale v The Queen [2000] HCA 54, 202 CLR 321, per Kirby J at [57]–[60]. A conclusion that a sentence is manifestly excessive does not depend upon the identification of specific error: Dinsdale v The Queen at [6]. But where specific error is not alleged, the appellate court must be persuaded of error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is, that the sentence imposed is "unreasonable or plainly unjust". The High Court said in Hili v The Queen [2010] HCA 45, 242 CLR 520, at [60], "... what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence".
As I have recorded, there are two elements to the challenge to the sentence. The first relates to the sentence imposed for the driving offences, the second to the aggregate effect of the sentences for the driving offences and the breach of suspended sentence. I will deal with that aspect first.
Totality
The applicant's contention is that the combined effect of the sentences imposed for the driving matters and the activated sentence offends the totality principle, with the result that the aggregate sentence is excessive. The combined effect of those sentences was a term of imprisonment of two months and 6 weeks. The respondent concedes that totality is a relevant sentencing consideration and concedes that the learned magistrate was obliged not to impose a sentence that was crushing or disproportionate to the applicant's overall criminality. Accordingly, it is accepted that he was required to consider the effect of the combined sentences.
The effect of the totality principle is to require a court when it is imposing a series of sentences to review the aggregate sentence and determine whether the aggregate is just and appropriate. It is the court's duty to ensure that the totality of the sentences is "just and appropriate": Mill v The Queen (1988) 166 CLR 59 at 63; and to reflect the need for a sentence that does not crush an offender's hope for rehabilitation, and to recognise the compounding effect that an aggregate sentence has on the severity of the total sentence: Director of Public Prosecutions v Harington [2017] TASCCA 4.
In sentencing the applicant the learned magistrate noted that he was required to observe the totality principle and that it would be reflected in the sentencing formulation on the "new matters" before the court. I take the reference to "new matters" to be a reference to the driving offences. Totality was not limited to the effect of the aggregate sentences for the driving offences alone. I infer from those comments that in framing a global sentence for the driving offences the learned magistrate did so, mindful of his intention to activate the suspended sentence, and took account of the aggregate effect of those periods of imprisonment. That was the correct approach.
The sentence for the driving offences
The applicant's record of relevant prior convictions for offences against the Road Safety (Alcohol & Drugs) Act 1970, at the time these offences were committed in April and August 2017 were:
"(i) Exceed prescribed alcohol limit 31.12.2003- convicted 22.1 2004. – 2 years' disqualification and a fine
(ii) Drive whilst disqualified 3.3.2004 – convicted 7.4.2004 – 1-month gaol suspended for 2 years, disqualification, fine
(iii) Drive whilst disqualified 18.10.2005- convicted 15.11.2005 – 28 days gaol suspended for 12 months, disqualification, fine
(iv) Exceed prescribed alcohol limit 8.12.12. –convicted 29.1.13 - 6 months' disqualification, fine."
These offences were committed in April and August 2017. The first offence, in April, was committed some five years after the last offence for driving contrary to the Road Safety (Alcohol and Drugs) Act. That prior matter involved a blood alcohol reading of .075; there is a period of nine years between that offence and the previous prior matter. This offence involved an illicit drug, but otherwise the offences are of a similar character. The second offence in August, of driving whilst disqualified was committed some 12 years after the last conviction for that offence. Aggravating, however, was the fact that the driving whilst disqualified offence occurred within a day of the applicant's disqualification for driving with an illicit drug in his blood, committed in July 2017. (That matter was a relevant prior conviction at the time of sentencing in January 2018.) The act of driving whilst disqualified was a flagrant breach of the law.
At the time of sentencing the court had a presentence report. It identified the applicant as suitable for participation in a community service order, suggested a probation order, and "potential inclusion in a Community Corrections program". It was positive in its assessment of the applicant's prospects. It disclosed that he had developed insights into his offending. It recorded that he had taken positive steps directed towards his rehabilitation, and he had the real prospect of work. That information is significant because it goes directly to the assessment required to be made when determining a penalty. If it is decided that imprisonment is the only penalty reasonably open, that information assists in resolving the question of suspending that term.
In sentencing, the court referred to the fact that the applicant had family support, had accessed medical and related services, and had prospects for employment. The court referred to its sentencing options, in a general way, reciting some of the options available. Thereupon the learned magistrate concluded that all other sentencing options for the applicant had been "exhausted" and that a term of imprisonment "will be imposed". The reasons for the conclusion that all other sentencing options had been "exhausted" were not articulated. There was material before the court which suggested a pathway to rehabilitation that could avoid reliance on the penalty of "last resort". The court did not expose its consideration of it. In my view that was a wrong approach. I would not have reached the same conclusion. Nevertheless, I am satisfied that approaching the matter correctly it was open to the learned magistrate to reach the conclusion he did.
Having reached that point, the court was required to consider that option and the matters in the presentence report and the plea provided a basis for that analysis. In Dinsdale v The Queen at 328, [15], Gleeson CJ and Hayne J said, in respect of ss 6(4) and 76(2) of the Sentencing Act 1995 (Cth):
"No doubt, under s 6(4), a sentencing judge must determine whether imprisonment is warranted and, under s 76(2) must fix the length of the term which would otherwise be appropriate. Neither step must be allowed, however, to obscure the need to decide whether suspended imprisonment is an appropriate disposition of the matter. Only if it is decided that it is not appropriate may a court impose a term of immediate imprisonment."
Kirby J said at 347, [81], in respect of the suspension of sentences, after noting the differences in perception between courts and the public as to the utility of the sentencing option:
"There is a line of authority in Australian courts that suggests that the primary consideration will be the effect such an order will have on rehabilitation of the offender], which will achieve the protection of the community which the sentence of imprisonment itself is designed to attain." [Footnote omitted.]
The comments on sentencing do not disclose an explicit consideration of the question of whether suspended imprisonment was an appropriate disposition of the matter. It is made clear in the comments in Dinsdale (above) that determining whether imprisonment is appropriate, and fixing the term, must not be allowed to obscure the need to decide whether a suspended term of imprisonment is appropriate. I do not consider that the fleeting references to previous sentences amounts to the consideration required by the High Court. Nor am I prepared to accept that the reference to past "opportunities to reform" is an analysis of the question, let alone a defensible conclusion.
It is true that the applicant had the benefit of suspended sentences on many previous occasions. But in respect of the driving whilst disqualified offences in his antecedents, it seems clear that the suspended sentences imposed in 2004 and 2005 had the desired effect. This is evidenced by his not reoffending for a significant period.
In respect of the suspended sentences for family violence matters, which had been less successful overall, there was a basis for differentiating the applicant's response to those sentences, from the driving matters. That point of difference is material. It is to be found in the plea in mitigation which explains the applicant's history and issues in dealing with his personal life; and in the presentence materials which explain the circumstances and triggers involved in that family violence offending. The information that was available explained much of the family based offending, and the past failures, but it was not appreciated or considered. Looking for a "common thread" running through the applicant's record distracted the court from closer examination of the information, and undermined its conclusions.
Without any analysis being undertaken, I consider it erroneous to conclude that because a sentence imposed for a certain category of offending has not been successful, the option is foreclosed across all types of offending behaviour. This is especially so when the sentencing history demonstrates its success in reforming a particular type of behaviour, as it did here. In my view the learned magistrate failed to engage with the evidence before the court. Exercising the sentencing discretion correctly, required the court to consider a number of things: the nature and circumstances of the offending for which the applicant was being sentenced; past responses to sentencing for these types of offences; past responses to sentencing more generally; an understanding of the circumstances which led to re-offending (making defensible, or not, a conclusion that a sentencing option was not achieving its purpose); the time elapsed since prior relevant offending; and evidence of current circumstances and prospects. All of this informs the instinctive synthesis undertaken in sentencing, referred to by the High Court in Markarian v The Queen [2005] HCA 25, (2006) 228 CLR 357 and in Wong v The Queen [2001] HCA 64, 207 CLR 584.
There was enough in the material before the court, to require not just a careful consideration of suspending some or all of the term of imprisonment but to require that course to be taken. Based upon the sentencing options cited in the presentence report, for which options the applicant had been assessed as suitable; and having regard to the time elapsed since the commission of prior driving matters, which sustain confidence in the efficacy of a suspended sentence, and mindful of the direction in Dinsdale (above), I have decided that on a proper application of sentencing principles it was not open to the magistrate not to suspend at least some of the custodial portion of the sentence he imposed. That failure amounts to a material error resulting in a sentence which was "unreasonable or plainly unjust" in the sense referred to in House v The King (above).
As a global sentence was imposed for the driving offences, I will set it aside and resentence the applicant.
First, I will turn to the breach proceedings under s 27 of the Sentencing Act.
Breaching the suspended sentence: The facts leading to the suspended sentence
The offences for which the suspended sentence was imposed involved two breaches of a family violence order. They were at the lower end of seriousness for such breaches, involving two text messages. The first was as follows:
"I realise you won't answer but I love T more than anything in the world and it makes me so sad to see him upset because he doesn't get to spend much time with me. I can only imagine how sad T is and I can see from what he says to me that that isn't good for him. I know that the things that I have said to you in the past weren't very nice and I said them in anger, I had no intention in following them through and I'm really sorry for that. I love T very much and I just want more time with him as I've already missed out on so much of his life because of things I have said to you in the past. It hasn't all just been me but I do forgive you and I want to get on with my life and spend time with my son."
The second was as follows:
"Nice to know you have my son around a junkie that has just got out of jail."
The first, though a technical breach, cannot be regarded as aggressive or violent in nature and the respondent conceded as much. It exposes a good deal of maturity and concern for the child. It reveals the depth of the applicant's feelings for him, and the real and painful effect of their separation.
The respondent characterises the second breach as more serious having a threatening quality. I, do not accept that characterisation. In my view it reflects the applicant's concern for the welfare of his child in circumstances where he is being denied access. It might be terse, even angry, but it is not threatening. The proposition it asserts is a fact, or it is not; but it offers no menace, or ultimatum or warning. It was a desperate act, technically a breach but not steeped in criminality.
That interpretation bears upon the proposition that the applicant has no regard for court orders. In my view these offences do not exhibit that characteristic, other than in a purely technical way. They do not bear the hallmarks of behaviour typically carried out in defiance of a court order. This Court is not re-sentencing for those matters, but their character is a relevant matter on the application to activate the suspended sentence, because that exercise will require a consideration of those offences and the breach offences, to compare them, and analyse them for elements that inform the exercise of the judgment required to be made. There is an evaluative step involved in determining whether to activate the sentence is unjust.
Activating the suspended sentence
Section 27(4B) of the Sentencing Act provides:
"(4B) If, on the hearing of an application under this section, the court is satisfied that the offender has been found guilty of a new offence, the court must activate the sentence of imprisonment that is held in suspense and order the offender to serve it."
Accordingly I start the analysis on the basis that the Act required the suspended sentence to be activated unless it was unjust to do so. In Tanner v Brown [2011] TASSC 59, Wood J considered the operation of s 27 of the Sentencing Act. Her Honour considered what is meant in that section when it directs activation of a suspended sentence if such an order would be "unjust". After a detailed analysis of the provision, Her Honour said at [94]:
"Ultimately, the question of whether it would be unjust to activate a suspended sentence will depend on an evaluation of the individual circumstances of each case. In assessing this question of whether it would be unjust to activate the sentence 'the objective of the suspended sentence option as reformative as well as penal' is to be borne in mind. Thus, relevant factors may include those that indicate the progress made by an offender in relation to his rehabilitation. Some of the factors mentioned in the judgments in Buckman (R v Buckman (1988) 47 SASR 303)and Marston ( R v Marston (1993) 60 SASR 320) are indicative of this consideration: disproportion between the original offence and the breaching offence or offences; whether the nature of the offence suggested that the offender has lapsed into a non-law-abiding way of life; and the question of whether the offender had reverted to criminal conduct comparable to the offence for which the suspended sentence was imposed. Allied to this consideration were matters referred to in Buckman that the offender was making a genuine attempt at rehabilitation and that there had been an observance of the conditions of the suspended sentence for 18 months. In summary, relevant to the reformative aspect of the suspended sentence option is whether the suspended sentence is having its desired effect in terms of rehabilitation of the offender. See also Stanitzki v Higgins [1994] SASC 4600; (1994) 63 SASR 309."
At [95]-[96] her honour said:
"[95] I have considered cases from other jurisdictions with similar legislative provisions incorporating a test of "unjust". There has been judicial consideration of provisions in Queensland and Victoria that used the terms 'unjust to do so in view of all the circumstances that have arisen since the suspended imprisonment was imposed'. Relevant considerations that were canvassed included the offender's attempts at rehabilitation, the seriousness of the offences giving rise to the breach, whether those offences are similar in character to that which gave rise to the suspended sentence, and the time lapse from the imposition of the suspended sentence to when the offences were committed: R v Bowen[1996] QCA 479; [1997] 2 Qd R 379, R v Holcroft[1996] QCA 478; [1997] 2 Qd R 392, R v Holley, ex parte Attorney-General [1996] QCA 480; [1997] 2 Qd R 407, DPP v Newman[1998] 1 VR 715.
[96] It must be emphasised that the weight to be given to factors that weigh in an offender's favour such as considerations indicative of an individual's reform will vary from case to case depending upon the circumstances. As noted by Neasey J in Greaves v Smith the 'matters that need to be weighed when breach of suspended sentence has been proved require a careful exercise of judgment'. Even if a consideration is deserving of significant weight does not mean that it will be determinative. The penal nature of the suspended sentence must be given weight, ordinarily a suspended sentence is meant to operate as a last chance and there are sound reasons in principle for activating the sanction in the event the person breaches it. See R v Moylan (supra) at 146 - 147. As stated by Callaway JA in DPP v Newman, at 718, it is a case of balancing the factors to which King CJ referred (which are set out in the passages quoted above) against the circumstances of the individual offender and the court's desire, as in all cases, not to take a more severe course than is warranted by all the relevant considerations, including the public interest. It is necessary to keep foremost in mind the statutory imperative that the sentence be activated unless that consequence would be unjust."
In Cannell v Hughes [2014] TASSC 41 Pearce J referred to this decision with approval.
Applying those principles, I observe that the offending leading to the suspended sentence related to breaches of family violence orders. Such orders are central to the system of protection of vulnerable members of the community and their terms must be respected and enforced if the regime is to have utility. That principle does not preclude a close examination of the conduct involved in order to determine the nature of the violations, matters which will inform the assessment of progress towards to rehabilitation which has been made in consequence of the suspended sentence. Courts are able to understand the importance of upholding respect for the law and court orders on the one hand, and the relevance of the particular circumstances involved in the behaviour, on the other. The Sentencing Act would have prescribed activation of the suspended sentence as an automatic consequence of a breach of its terms, if that were not so.
I have already characterised the offending behaviour leading to the suspended sentence. I do not repeat that. I note from the plea in mitigation that at the time of sentencing the applicant had not enjoyed any progress in terms of access to his son, the matter which led to the breaches, but relevantly had desisted from any further breaches of the family violence orders. That is a significant matter, as his counsel noted. I am satisfied that it evidences the fact that the suspended sentence was having its desired effect in terms of controlling his behaviour and assisting his rehabilitation; Tanner v Brown (above) at [94]. I do not think the court gave any weight to this matter. Apart from referring in a general way to the relevant considerations on an application such as this, I cannot discern from the court's reasons an application of this consideration. It was in error not to do so.
An extension of that point is the different character of the offending leading to the application to breach the suspended sentence. I note the circumstances of that offending. Those circumstances render fragile the learned magistrates lumping together of the offences as if they exhibited a single characteristic. The reference to a "clear thread" running through all the offences survives only the most cursory analysis, and it ignores altogether the evidence of rehabilitation achieved through the suspended sentence. That pattern of compliance with the family violence order obligations has been demonstrated over a sufficient period, and despite the continuing nature of the applicant's lack of access to his son. That progress was significant viewed against the applicant's earlier breaches of family violence orders in 2014 and 2015. (Suspended sentences were imposed for those matters, and were activated in March 2016. Those sentences were served.) The breaches in November 2016, which resulted in the activation of the suspended sentence the subject of this appeal are the last breaches of family violence orders. In my view it was not open to conclude that the applicant had not made significant progress towards his rehabilitation. That is because the same triggers which led to the offending continued to operate upon him, and he resisted repeating the behaviour. There is no better evidence of progress towards rehabilitation than that. The evidence before the court from the community corrections officer reinforced that conclusion, and from that material it could be seen that the applicant had begun a course with Relationships Australia and had begun engagement with a psychologist. That evidenced insight into his behaviour. He had employment prospects.
Having regard to those matters I hold that a magistrate acting reasonably could not have concluded that an order activating the sentence was anything but unjust.
Pursuant to s 27(4C), I must deal with the application. That section provides:
"(4C) If the court is of the opinion that an order under subsection (4B) would be unjust, the court may instead —
(a)activate part of the sentence that is held in suspense and order the offender to serve it; or
(b)order that a sentence (in this section called the 'substituted sentence' ) take effect in place of the suspended sentence; or
(c)by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or
(d)make no order in respect of the suspended sentence."
The offences for which the applicant was made subject to breach proceedings are very different to the driving offences, but it is the rehabilitative qualities, and the way the sentence operates to improve the applicant's behaviour that I focus upon in determining the response to my conclusion that it would be unjust to activate the suspended sentence. In a practical sense only, I also have regard to the sentence I will impose on the driving offences because they will include a supervisory component which extends the support available to the applicant, along with a suspended sentence with conditions. Otherwise I would have varied the conditions on which the execution of the sentence was suspended by extending the period of suspension. But that will only overlap with the order I propose. Accordingly I make no order in respect of the suspended sentence. It remains operative until November 2018.
I will resentence the applicant on the driving offences. On the charge of driving with an illicit substance in his blood I consider that a sentence which operates as a significant personal deterrent is called for. It is not the applicant's first offence and a stern punishment is more likely to affect a change in his attitude to driving. For this reason, and to deter others, I have decided that a term of imprisonment is appropriate. I sentence the applicant to 28 days' imprisonment backdated to 31 January 2018. That sentence has been served. I will not therefore spend any time, entertaining the question of suspending that sentence, as I otherwise would be required to do. I disqualify the applicant from holding or obtaining a drivers licence for a period of 12 months to commence on 31 January 2018. On the second charge of driving whilst disqualified, this is the applicant's third conviction for this offence, and whilst the last conviction was some considerable time ago, this offence occurred just a day after his driver's licence was suspended. The circumstances of this offending are noted from the plea which was repeated to me. I regard it as an offence striking at a key aspect of the system which exists to regulate driving behaviour. I have considered community service orders as an option which could operate on their own, but I am of the view that the course I propose will more effectively regulate the applicant's future behaviour and encourage his rehabilitation. For this offence the applicant is sentenced to 30 days' imprisonment. Because of his circumstances, his apparent insights into his behaviour evidenced by his engaging with professional help, and his good prospects, I have decided that his rehabilitation and the community interest can be met whilst suspending the operation of that sentence. I suspend that sentence on condition that the applicant commit no offences for which a term of imprisonment may be imposed, for two years and that he perform 70 hours of community service work. I further order that the applicant is to be subject to probation for a period of twelve months. I disqualify him from holding or obtaining a driver's licence for a period of 6 months cumulative to the period of suspension I have imposed on the other charge.
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