Clarke v McKenna and Weston

[2023] TASSC 39

[2023] TASSC 39

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Clarke v McKenna and Weston [2023] TASSC 39
PARTIES:	CLARKE, Daniel Reginald v MCKENNA, Peter and WESTON, Adam
FILE NO:	1419/2023
DELIVERED ON:	30 October 2023
DELIVERED AT:	Hobart
HEARING DATE:	24 October 2023
JUDGMENT OF:	Pearce J
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentencing orders

– Driving with illicit drug in blood, driving while disqualified, and other driving offences – Sentence of

imprisonment not manifestly excessive.

Road Safety (Alcohol and Drugs) Act 1970, s 6A, s 19A.
Aust Dig Magistrates [1349]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Applicant:	D Allen
Respondent:	A Hogan

Solicitors:

Applicant:	Tasmania Legal Aid
Respondent:	Director of Public Prosecutions

Judgment Number:	[2023] TASSC 39
Number of paragraphs:	19

Serial No 2023/39 File No 1419/2023

DANIEL REGINALD CLARKE v PETER McKENNA and ADAM WESTON

REASONS FOR JUDGMENT PEARCE J

30 October 2023

1            The applicant moves to review sentencing orders made by a magistrate, Mr S Brown, on 26 May 2023. The respondents are the police officers who made the relevant complaints. The applicant was found guilty of, or pleaded guilty to, a number of offences, mostly driving offences, some of which were committed in breach of a ten week suspended sentence. The learned magistrate activated the suspended sentence to commence from 26 February 2023. He imposed fines totalling $1,250 and disqualified the applicant from driving for a total period of 21 months. The magistrate also imposed a term of imprisonment of four months to be served cumulatively to the activated suspended sentence. The motion to review was filed in June 2023 but by the time it came to be listed before me, the applicant had completed the sentence and been released. No application for bail was made.

2            The applicant contends that imposition of the four month term, to be served cumulatively to the activated suspended term, resulted in a total term of imprisonment which was manifestly excessive. For the following reasons the sentence was not manifestly excessive and the motion to review must be dismissed.

The offences and the circumstances of offending

3            The term of imprisonment ordered by the magistrate was for driving offences committed by the applicant on 24 June 2021 and for a further driving offence and a bail breach committed in March 2023. I will outline the circumstances of the offending in chronological order.

4            Following a hearing conducted before the learned magistrate on 26 May 2023, the applicant was found guilty of the offences committed on 24 June 2021: driving with prescribed illicit drug in blood contrary to the Road Safety (Alcohol and Drugs) Act 1970, s 6A, driving while disqualified contrary to the Road Safety (Alcohol and Drugs) Act 1970, s 19A, using a motor vehicle which was not registered contrary to the Vehicle and Traffic Act 1999, s 27(1) and using a motor vehicle in respect of which no premium had been paid contrary to the Motor Accidents (Liabilities and Compensation) Act 1973, s 29(1). The learned magistrate found that, on that day, the applicant rode a motor cycle which was unregistered and uninsured, when he was disqualified from driving and when illicit drugs, methylamphetamine and amphetamine, were present in his oral fluid.

5            When it came to sentence, the applicant pleaded guilty to offences committed in March 2023: a further count of driving while disqualified, one count of possessing a controlled plant contrary to the Misuse of Drugs Act 2001, s 25, one count of possessing a thing used for administration of a controlled drug contrary to the Misuse of Drugs Act, s 23, one count of contravening the conditions of a notice contrary to the Bail Act, s 5(4), one count of failing to appear in contravention of the Bail Act, s 9, and one count of possessing a dangerous article contrary to the Police Offences Act 1935, s 15C. The circumstances of those offences were as follows. At 1.30 pm on 5 March 2023 the applicant, when he was disqualified from driving, drove a motor vehicle at Shearwater. He was seen to drive a black Ford Territory into the service station, purchase fuel and drive away. He failed to appear in court as required by his bail on 7 March 2023. Overnight on 7 March 2023 the police conducted a check to ascertain whether the applicant was present at his home in compliance with his bail curfew, but he did not present himself as required. On the following day, 8 March 2023, his house was searched and the police found cannabis seeds and scales which the applicant admitted were used in connection with smoking a

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controlled drug. A set of knuckle dusters was also found. He claimed that his failure to attend court on 7 March 2023 was because of confusion about the dates, and that his possession of the knuckle dusters was for "ornamental" reasons. For possession of the knuckle dusters the applicant was fined $1,000. For possession of the scales the applicant was fined $250. The applicant was disqualified from driving for a total period of 21 months cumulative to any period of disqualification to which he was already subject.

6             The offences committed by the applicant on 24 June 2021 constituted a breach of condition of a suspended sentence imposed on 31 May 2021. The suspended sentence was imposed for three counts of driving with prescribed illicit drug in blood committed in 2019 and 2020. On 19 November 2019 the applicant was driving at Miandetta when he was pulled over by the police. Analysis of his oral fluid disclosed the presence of THC, amphetamine, methylamphetamine and cocaine. On 29 September 2020 a vehicle being driven by the applicant at Miandetta was randomly intercepted. Analysis of his oral fluid disclosed the presence of methylamphetamine and amphetamine. On 21 November 2020 the applicant was again the subject of a random interception when driving in Devonport. Analysis of his oral fluid disclosed the presence of methylamphetamine, amphetamine and THC.

7             The circumstances of the offences committed on 24 June 2021 were relevant to sentence. The vehicle involved was an off-road motor cycle. It was unregistered and uninsured. Analysis of the applicant's oral fluid undertaken following his arrest disclosed the presence of methylamphetamine and amphetamine. It was the applicant's case at the hearing that he was not "driving" the motor cycle. He gave evidence that he was bringing it back to his house in East Devonport after having been riding on the beach nearby, not on a public street. His evidence was that when he was seen by the police he was holding the handle bars but sitting side saddle, and coasting down the footpath by force of gravity without the engine running. The magistrate was satisfied that the actions described by the applicant amounted to driving the motor cycle even on his own account. However the magistrate did not accept his evidence. His Honour accepted the evidence of the police witness. She was on patrol, driving with another officer in the street in which the applicant lived. She described first hearing the noise of a motor cycle engine and then seeing the applicant riding the motor cycle in the normal manner for about 50 to 60 metres down the footpath at between 20 and 30 kilometres per hour. Her evidence was that when she approached the applicant he removed his helmet and said to her that he had "only drove 100 metres down the road (sic)". Her evidence of the admission was supported by an audio and visual recording taken from her body worn camera at the time.

The applicant's personal circumstances

8             At the time of sentence the applicant was aged 34 years. He had four children from two relationships and had shared care for them. He was a qualified butcher and had been employed in that capacity until 2019. He had been in custody for a period of time prior to sentence, I infer for other matters as well, but before then had been working as a part time mechanic.

9            The applicant's criminal record was an important factor in sentencing. At the time of the 2021 offences he was aged 32. He had a long record of offending commencing when he was a youth for traffic regulation offences, violence and dishonesty, escape, conspiracy, firearm offences, breaching bail and court orders, threatening police and other anti-social offending. He had served terms of imprisonment. Of direct relevance, he had two prior convictions for driving while disqualified, respectively on 1 December 2008 and 28 November 2010. He had two prior convictions for driving while his licence was suspended, respectively on 7 November 2008 and 28 August 2008. He had six prior convictions for offences under the Road Safety (Alcohol and Drugs) Act 1970, for driving with either alcohol in excess of the prescribed concentration or illicit drugs in his body, respectively on 25 April 2008, 9 January 2008, 7 November 2008, 19 November 2019, 29 September 2020 and 21 November 2020. The suspended sentence and two year disqualification from driving for the 2019 and 2020 offences were imposed on 31 May 2021, less than a month before the offence on 24 June 2021 when he again drove with illicit drugs in his body and in breach of the disqualification order.

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10           The applicant contends that the material before the learned magistrate indicated that by the time it came for him to be sentenced his circumstances were positive, that he had a sound work history which had been disrupted only by circumstances "outside his control", he had family support within the community and regular contact with his children which was "something that had been a positive change" in his circumstances since imposition of the suspended sentence. He submits that the instance of driving on 24 June 2021 involved only a "short journey", that it was "not alleged that there were other road users that were otherwise affected by the applicant's driving", that the applicant was "not speeding or driving recklessly" and he was co-operative with the police when apprehended.

Was the sentence manifestly excessive?

11           The Road Safety (Alcohol and Drugs) Act is an Act to "protect the public against the risks inherent in the driving of vehicles after consumption of intoxicating liquor or drugs". The risk posed by those who drive after consuming alcohol and illicit drugs is well known and understood, and is a matter of considerable social concern.

1. The applicant did not seek to show cause as to why the suspended sentence should not be

   activated. That is hardly surprising. The combined effect of s 27(4B) and (4C) of the Sentencing Act 1997 was that the magistrate was required to activate the sentence held in suspense unless of the opinion that it would be unjust. His Honour was not considering the original sentence afresh but determining only whether activation of the sentence was unjust: State of Tasmania v Thorpe [2011] TASSC 18; Tanner v Brown [2011] TASSC 59; Cannell v Hughes [2014] TASSC 41. There was no basis on which the magistrate could properly have found imposition of the suspended sentence unjust. As has already been pointed out, the breaches were committed less than a month after the suspended sentence was imposed for precisely the same type of offending.

13           For the new offences it was necessary to impose a sentence which sufficiently addressed the need for punishment and condemnation and to act as a general deterrent and personal deterrent to the applicant. If authority for that proposition is required it may be found in the reasons of Crawford J in McDonald v Nilsson [2009] TASSC 83, 54 MVR 32 at [14]-[15] which concerned an alcohol related driving offence but which have equal application to illicit drugs. Because the applicant was a subsequent offender, the Act, s 17, provided for the imposition of a maximum period of imprisonment of six months or a fine up to 20 penalty units, or both, and disqualification for a period up to two years.

14           For the 2021 offences the applicant was not entitled to the mitigation a plea of guilty would have attracted and there was little sign of remorse for any of the offending. I would accept the applicant's submission that there was no evidence that offences committed on 24 June 2021 were accompanied by any aggravating circumstances arising from the nature and length of the journey, the manner of the applicant's driving and the type of motor vehicle involved. However the applicant was not to be sentenced on the basis that his driving was confined to the short journey observed by the police witness, and the absence of an aggravating circumstance is not mitigating. Nor is it mitigating that the applicant did not commit an additional offence. Driving by persons who have consumed illicit drugs or excessive alcohol is inherently accompanied by risk, even if it is on a motor cycle. The applicant was a repeat offender. Leaving aside the three offences he committed in 2008, this was the fourth occasion within two years on which he had driven a motor vehicle with illicit drugs present in his body. He displayed a consistent disregard for the law.

15           The disqualified driving on 5 March 2023 was not accompanied by any aggravating circumstances, except that he was on bail at the time. There was a gap since his last conviction for driving while disqualified or suspended in 2010. However, persons who drive while in breach of a court imposed disqualification, particularly with a history of similar offending, must expect punishment because otherwise, the force and effect of such an order is undermined and the law is brought into disrepute: Davies v Petersen 50/1991; Maher v Banks [1992] TASSC 67; Green v

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Bessell B57/1993; Bessell v Riley [1995] TASSC 15; Brown v Stone [1995] TASSC 23; Peck v Visser [1999] TASSC 38 and in the Full Court at [1999] TASSC 90; Parker v Bessell [2012] TASSC 78; Barrett v Wilson [2015] TASSC 3; 69 MVR 33. Parliament has legislated for harsher penalties for subsequent offenders. Because it was not the applicant's first offence it was punishable by 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: Road Safety (Alcohol and Drugs) Act, s 19A(1).

16           As has been stated in a great many cases, an appellate court must not interfere with the exercise of the sentencing discretion except in a clear case of error: Visser v Smart [1998] TASSC 151. The applicant must show that the sentence is so obviously excessive or inadequate that the sentencing discretion must have miscarried; or, put another way, the sentence is plainly outside the proper limits of the wide discretion vested in the magistrate: Allen v Kerr (2009) 19 Tas R 132; 193 A Crim R 262. The appeal court must not substitute its own opinion for that of the magistrate even if it would have exercised the sentencing discretion in a different manner.

17           Given the applicant's repeat offending and the failure of court orders in the form of a suspended sentence and orders of disqualification from driving to effectively deter him, there was a distinct need for a sentence which served to protect the public, punish the applicant and to deter him and others from similar offending. Imprisonment for four months was not a manifestly excessive response to that offending and was within the proper limits of the magistrate's discretion.

18           The applicant's principal contention is that the sentencing magistrate's decision to order that the new sentence be served cumulatively to the activated suspended term resulted in a total sentence which was manifestly excessive. Imposition of a four month term to be served cumulatively to the activated suspended sentence resulted in a total term of imprisonment of more than six months. Whether the sentence was to be concurrent or cumulative, or partly concurrent and partly cumulative, was a matter for the magistrate's discretion: Sentencing Act, s 15(1). However the Sentencing Act also provides that when a court orders an offender to serve a term of imprisonment that had been held in suspense, the term of imprisonment must, unless the court otherwise orders, be served immediately and cumulatively with any other term of imprisonment previously imposed on the offender by that court or any other court: s 27(6). Cases in this State which review the issue of totality include Hall v Tasmania [2015] TASCCA 6, Director of Public Prosecutions v Bradford [2016] TASCCA 14, Director of Public Prosecutions v Fletcher-Jones [2019] TASCCA 18 and Director of Public Prosecutions v WLNH [2017] TASCCA 15. What is to be assessed is whether the total effective sentence bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety, and does not result in a sentence which is "crushing" in the relevant sense. Taken in combination with all other relevant sentencing considerations, the combined effect of the two sentencing orders did not, to my mind, make the sentence manifestly excessive. The total effect of both sentences did not represent a crushing or disproportionate response to the gravity of the whole of the applicant's criminal conduct.

Result and order

19           When all matters relevant to sentence are taken into account I am not satisfied that the sentencing orders made by the learned magistrate went beyond the proper exercise of his Honour's wide sentencing discretion. The sentencing orders did not result in a sentence which was manifestly excessive. The motion to review is dismissed.