Cashman v Jordan

[2009] TASSC 112

[2009] TASSC 112

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Cashman v Jordan [2009] TASSC 112

PARTIES:  CASHMAN, Simon James
  v

JORDAN, Steve

FILE NO/S:  924/2009
DELIVERED ON:  16 December 2009
DELIVERED AT:  Launceston
HEARING DATE:  10 December 2009
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Traffic Law – Offences – Particular offences – Other offences – Driving whilst disqualified – Meaning of "second or subsequent offence" – Whether sentence manifestly excessive.

Aust Dig Traffic Law [112]

REPRESENTATION:

Counsel:
             Applicant:  L Bartlett
             Respondent:  A G Hensley
Solicitors:
             Applicant:  Rae & Partners
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2009] TASSC 112
Number of paragraphs:  17

Serial No 112/2009
File No 924/2009

SIMON JAMES CASHMAN v STEVE JORDAN

REASONS FOR JUDGMENT  CRAWFORD CJ
  16 December 2009

1. A magistrate sentenced the applicant to imprisonment for eight months, the operation of four months being suspended on condition that for a period of two years following his release from prison he commit no offences under the Road Safety (Alcohol & Drugs) Act 1970, drive while disqualified or drive without a licence.  In addition, he was disqualified from driving for 18 months commencing on his release from prison.  He has applied to review the sentence on two grounds, that the sentence was manifestly excessive and that the magistrate gave insufficient weight to his prospects of rehabilitation.  The second ground should be regarded as subsumed within the first ground, for unless the Court is satisfied that the sentence was manifestly excessive there is no possibility that the second ground can succeed. 

1. The sentence was a global one, imposed for 10 offences committed between 22 November 2008 and 11 March 2009.  Relevant to a number of the offences were his convictions and sentence on 29 October 2008, less than a month before the first of the present offences, for having alcohol in his body (0.081) on 21 September 2008 and for failing to comply with a direction to stop on 10 August 2008.  For those offences, he was fined and disqualified from driving for 12 months commencing on 29 October 2008. 

1. The offences for which the sentence under review was imposed were the following. 

1On 22 November 2008 he drove while disqualified contrary to the Road Safety (Alcohol & Drugs) Act, s19A(1). At 9pm, police intercepted a van being driven by him on High Street, Launceston, for a random breath test. His explanation to the police was that he had to get to his night job and the only way of doing so was to drive. He had no passengers at the time. His counsel informed the magistrate that usually he was able to obtain a lift to and from work but on that occasion, it was not available. He therefore decided to get to work. It was not suggested that he lived far from where he worked and could not walk, ride a bike or travel by some other means.

2On 23 December 2008 he again drove while disqualified contrary to s19A(1) and he used an unregistered vehicle and one upon which no insurance premium cover had been paid under the Motor Accidents (Liabilities and Compensation) Act 1973. He was stopped by police when conducting random breath tests on the East Tamar Highway at Launceston. To the magistrate, his counsel stated that he found it extremely difficult to operate his business without being able to drive, that he had made arrangements for another contractor to work with him so that he did not need to drive but the other was unable to attend on the particular occasion. However, it is significant that he had a male passenger who had a full licence to drive. The applicant's explanation to the police for driving an unregistered vehicle was that he had just kept putting off renewing the registration which had fallen due on 23 August 2008. To the magistrate the explanation was that he had "kept forgetting" and had not received a reminder in the mail.

3On 1 February 2009, he again drove while disqualified contrary to s19A(1), this time on the Esk Highway. He committed a second offence by speeding at 116 kph in a 100 kph area and a third offence by giving particulars likely to mislead, contrary to the Traffic Act 1925, s41(1)(a). A police officer stopped him. He had a female passenger. He gave another person's name and address instead of his own. Significant facts were that he was driving his girlfriend's vehicle, she was in the vehicle and she was licensed to drive. Explanations from the applicant included that he and his girlfriend had been to a party at Swansea, they stayed overnight, they commenced heading home with his girlfriend driving until she said she was too tired to drive and asked him to do so and he did, and he gave a false name and address because he was a disqualified driver. Detection of him as the offender only came about as a result of the person whose identity he had assumed claiming that he was not involved. Police then interviewed his girlfriend, as the owner of the vehicle, and she revealed that the applicant was the driver.

4On 11 February 2009 he failed to appear at court as required by the Bail Act 1994, s5(4). He had been admitted to bail on 23 December 2008 to appear at that time.

5On 24 February 2009 he breached bail contrary to the Bail Act, s9, by failing to appear at court. He had been admitted to bail on the complaint charging him with driving while disqualified on 22 November 2008 but failed to appear.

6On 11 March 2009 he once again breached the Bail Act, s5(4), by failing to appear in court, having been admitted to bail only five days earlier. His explanations to the magistrate for the three failures to appear at court in answer to bail were spurious. They included that he forgot the specific dates, that he was extremely busy running a business, that he had a lot of stress as a result of his licence disqualification and that he was residing in Hobart during the period for work purposes.

1. At the time of the offences he was 20 years of age.  He did not have a significant record although, effective from 10 September 2008, he was disqualified for three months because of an excessive number of demerit points.  That is significant, for the first two offences of driving while disqualified were committed not only in breach of a court's order of disqualification but also in breach of that disqualification notice.  It emphasises the contempt he demonstrated for the law and authority.

1. The applicant's counsel informed the learned magistrate that he lived with his brother in South Launceston and worked as a concreting subcontractor.  He had also worked at a hotel at night.  It was submitted that he was a youthful offender and had excellent prospects for rehabilitation.  It was said that he had sold his vehicle to ensure that he would not be tempted to drive in the future.  He was working for a company that had agreed to assist him getting to and from work.  It was stated that he had been "pro-active in securing employment" and that he had excellent prospects for rehabilitation.  His income was said to be $1,700 per week gross as a subcontractor. 

1. In the course of sentencing the applicant, the learned magistrate said:

"Whilst you are to be sentenced for each offence as a first offender, your conduct is aggravated by the fact that the driving in December 2008 and February 2009 occurred not only in breach of the Court Order disqualification but while you were on bail for the same offence, in the latter case for two such offences.  Your disregard for the force of the Court Orders is demonstrated by your breaches of bail on the 11^th of February 2009, the 24^th of February 2009 and the 11^th of March 2009.  On each occasion you did not appear because you forgot or it didn’t suit you to do so.  Driving whilst disqualified is a serious offence because it involves disregard of a positive order of the court that you not drive.  You have deliberately disobeyed the Order three times.  By doing so, you have brought the law into disrepute.  The Order was made only a short time before you breached it the first time, then each breach occurred a short time thereafter.  In no case did you have an explanation for driving which carried any weight.  I can only think that because of your age or immaturity or lack of experience or judgment about such matters and despite everything that had happened you did not appreciate the gravity of what you were doing.  It is difficult to think of a circumstance which would constitute a more serious first offence than the third of these offences.

The maximum penalty provided by Parliament for a first offence is six months imprisonment. That penalty applies to each of these offences, even leaving aside the other offences you’ve committed. The only mitigating factors I have concerning you are your age and the fact that you seem to be doing well with your business. No doubt a sentence of imprisonment will have a significant impact on you. That is inevitably the case for those who go to prison, especially for the first time. I intend to impose one sentence for all the offences under Section 11 of the Sentencing Act, taking into account the totality of your offending. I order you are convicted on all counts. You are sentenced to a term of imprisonment of eight months. Having regard to your age and prospects of rehabilitation, I suspend the operation of four months of that sentence on condition that you commit no further offences under the Road Safety Alcohol and Drugs Act, driving while disqualified or without a licence for a period of two years from your release. You are disqualified from driving for eighteen months to commence on your release from prison and you will pay the costs."

1. Counsel for the applicant submitted that the sentence was manifestly excessive and particularly a crushing sentence for a young offender.  She relied on Lahey v Sanderson [1959] TASSC 17 where at 21, Burbury CJ said that because the public interest is best served if an offender is induced to turn from criminal ways, "a court rarely sends a youth to gaol except in the case of a crime of considerable gravity (such as a crime of violence), or in the case of a persistent offender who has shown himself not amenable to disciplinary methods short of gaol". His Honour referred to the likelihood of exposing a youth to corrupting influences and confirming him in criminal ways, if sent to prison. He emphasised that in the case of a youthful offender, his or her reformation is always an important consideration "and in the ordinary run of crime the dominant consideration".

1. The comments of Burbury CJ have had further explanation in later cases.  See for example, R v Mather [1962]TASSC 25 and Everett (1994) 72 A Crim R 422. I observe that they were made in the context of a youthful offender who had committed a number of offences of dishonesty, and I do not think they deserve as much force in regard to the applicant and his offences. He might reasonably be regarded as unlikely to be influenced to turn to crime by a relatively short experience of prison, having regard to the fact that he has a sound industrial record and that there is no suggestion that he is at risk of offending in other ways.

1. Nevertheless, the principle has been accepted in cases of driving while disqualified.  One such case was Rigby v Dillon 56/1984, in which Cox J at 5 referred to the Court's reluctance to send youthful offenders to prison and cited Van Zelm v Guinan 41/1978.  Cox J concluded that a sentence of one month's imprisonment for a first offence of driving while disqualified contrary to the Road Safety Alcohol and Drugs) Act, s19A, was manifestly excessive. 

1. It was suggested by counsel for the applicant that he should have been given an "opportunity" to reform before sending him to prison for the first time and that a sentence less severe than actual imprisonment should have been imposed.  The implication in counsel's submissions seemed to be that a youthful offender should not be sent to prison until he or she has first been subjected to less severe forms of punishment in an ascending order of severity, such as community service first, then suspended imprisonment and finally actual imprisonment.  However, there is no principle that binds a sentencing court to conform with that regime.  If that was the case, youthful offenders would soon learn that they can commit offences without concern for severe punishment.

1. The prescribed penalty for a first offence for driving while disqualified contrary to the Road Safety (Alcohol & Drugs) Act, 19A(1), is a fine not exceeding 40 penalty units or imprisonment for a term not exceeding six months, or both, and disqualification not exceeding three years. For a second or subsequent offence, the maximum fine is 80 penalty units, the maximum imprisonment is 12 months and the maximum period of disqualification is five years. In this case it was accepted by the learned magistrate that as the applicant had not previously been convicted for the offence, each of the three offences of driving while disqualified were to be treated as first offences and none of them as second or subsequent offences. There is a long line of authority in support of an interpretation of s19A(1) in that way. It is based on the assumption that in enacting a provision of that kind, the intention of the legislature was that where the punishment imposed for a first offence has not operated as a sufficient warning or deterrent to an offender, a higher penalty is then to be imposed for a further offence. O'Connor v Bini [1908] VLR 567 at 572; Joyce v Smith unreported 55/1962 at 2 – 3; O'Hara v Harrington [1962] Tas SR 165 at 167 – 168; Hall v Mann unreported 5/1968 at 4; Rivera v Maher (1992) 1 Tas R 228.

1. Because it was a first offence of its kind, the penalty prescribed by the Traffic Act, s52(2)(a), for giving particulars likely to mislead, was a fine not exceeding 20 penalty units. Imprisonment was not an option for a first offence.

1. The prescribed penalty for each of the two breaches of the Bail Act, s5(4), was a fine not exceeding 10 penalty units or imprisonment not exceeding six months, or both. The prescribed penalty for the breach of s9 was a fine not exceeding 20 penalty units or imprisonment not exceeding 12 months, or both. The reason for the prescribed penalties being more severe for an offence against s9, than an offence against s5(4), is that the latter concerns bail granted by a police officer whereas the former concerns bail ordered by a judicial officer.

1. The prescribed penalty for a first offence of using an unregistered vehicle was a fine not exceeding 20 penalty units.  The prescribed penalty for using a vehicle which had no insurance premium cover was a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months, or both.  The prescribed penalty for speeding was a fine not exceeding 20 penalty units and disqualification.

1. My first response to the applicant's sentence was that eight months' imprisonment was manifestly excessive, as was the requirement that he serve four months of unsuspended imprisonment.  A perusal of many appellate decisions by judges of this Court has confirmed that view.  His contemptuous attitude particularly displayed by failure to comply with court orders, deserved a punishment that will teach him a lesson, but nevertheless that could have been achieved with a young offender with a far less severe sentence than the one imposed, and one that did not require immediate incarceration.  The length of the term of imprisonment was commensurate with sentences imposed  in other cases for far worse offending or in the light of a far worse record for similar offences. 

1. My comments should not be regarded as denigrating from the long line of authorities emphasising that driving while disqualified is a serious offence.  My decision is simply that the punishment imposed in this case was far more severe than was warranted. 

1. For these reasons, all of the sentence will be set aside and I will resentence him.  I am thinking of a suspended sentence of imprisonment together with a community service order and disqualification.  I will obtain a report as to his suitability for community service before making final orders.