Field v Reardon
[2006] TASSC 20
•10 April 2006
[2006] TASSC 20
CITATION: Field v Reardon [2006] TASSC 20
PARTIES: FIELD, David Maxwell
v
REARDON, Penelope Lynn (Constable)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 85/2005
DELIVERED ON: 10 April 2006
DELIVERED AT: Hobart
HEARING DATE: 2 March 2006
JUDGMENT OF: Slicer J
CATCHWORDS:
Traffic Law - Licensing of drivers – Tasmania - Offences – Driving whilst disqualified – Sentence – Persistent offender – Dishonest production of cancelled licence.
Jarvis v Brown 120/1998; Shepherd v Visser [1999] TASSC 81; Peck v Visser [1999] TASSC 38, followed.
Aust Dig Traffic Law [28]
REPRESENTATION:
Counsel:
Applicant: B B Prasad
Respondent: S J Bender
Solicitors:
Applicant: Avery Partners
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 20
Number of paragraphs: 17
Serial No 20/2006
File No LCA 85/2005
DAVID MAXWELL FIELD
v CONSTABLE PENELOPE LYNN REARDON
REASONS FOR JUDGMENT SLICER J
10 April 2006
The applicant seeks review of a penalty of one month's suspended sentence of imprisonment, a cumulative licence disqualification and cancellation for 16 months, and a fine of $1,000 following his conviction for the traffic offences of driving whilst disqualified and dishonestly using a document. The claim of error is confined to the components of disqualification and cancellation.
On 2 November 2005, a motor vehicle driven by the applicant was intercepted by police due to excessive exhaust emission. The offender produced a "current" driver's licence, but subsequent check showed the licence to have been cancelled in the previous July.
The applicant, aged 31, had worked in the meat industry for over 14 years. As at November 2005, he lived at Brighton and travelled each working day to his place of employment in Moonah. He was intercepted during that journey. The Court was told that, having no other means of travelling to work, he had made:
"… arrangements for a friend who worked in a business at Moonah to collect him and take him to work each day. He paid him petrol money for that purpose because … he and his wife separated and he had no one at home to carry out that chore."
The unchallenged explanation for the act of driving and the production of the cancelled licence was advanced in the following terms:
"What happened on this morning was that the friend, Mr Damian Browning, who lives at Old Beach and who is the nominated driver, phoned him at about eight o'clock and said, 'Look, I can't make it this morning, I'm ill and I'm not going to work'. The defendant was then in the dilemma, well what did he do, foolishly got in his vehicle to drive to work and the fact that the vehicle hadn't been used for some months it was blowing smoke, he was seen, stopped, foolishly handed them the licence that he'd had sitting in his car. He thought he'd lost it actually but, because he hadn't been using the car, when he saw the police, panicked, opened the glove box and there the licence was, handed it to them but it was short-lived, they checked and found he was disqualified so that the charade as it were, the attempt was fairly short-lived."
Counsel for the applicant referred to documentation evidencing the sale of the applicant's home, designed to enable him to purchase a home near to his employment, and thus lessen any risk of transgression.
The applicant had been the holder of a driver's licence since 1991. He had relevant convictions for drink driving offences imposed in October 1992 and August 1995. On 27 July 2005 he was further convicted of driving while exceeding the prescribed alcohol limit (.151) for which he was fined $800 and disqualified from driving for a period of 16 months. The licence was cancelled, rather than suspended, in accordance with the provisions of the Vehicle and Traffic Act 1999 ("the Act"), s19.
The penalty, which is the subject of this appeal, was imposed on 28 November 2005 and the date of the offences, having occurred four weeks previous, entitled the offender to the benefit of an early plea.
The ground of appeal claiming error states:
"The term of disqualification imposed by the learned Magistrate being a period of sixteen (16) months cumulative to any disqualification currently being served by the applicant was manifestly excessive having regard to all the circumstances of the case and in particular:
1 That the applicant had no prior convictions for driving whilst disqualified.
2 That the said driving was solely for the purposes of enabling the applicant to attend at his place of employment for his employment.
3 That the learned Magistrate failed to take account of or sufficiently to take account of the matters in mitigation put on behalf of the applicant.
4 That the period of disqualification imposed by the learned Magistrate fell outside an otherwise appropriate range of periods of disqualification for like crimes committed within the State of Tasmania."
The maximum penalty prescribed for the offence of driving whilst disqualified is one of 40 penalty units, a term of imprisonment for six months and a disqualification period of three years. The concurrent charge involving the production of the cancelled licence was one provided by the Act, s64, which relevantly provides:
"(3) A person must not ¾
(a)dishonestly use an Australian driver licence belonging to another, or some other document, to create the false impression that the person is the holder of a licence, or a licence of a particular kind or class, or is exempt from the requirement to hold a driver licence under this Act."
This appeal does not require the Court to consider the import of the term "driving licence belonging to another, or some other document, to create the false impression …". The penalty for a first offence is:
"(ii) for an individual – a fine not exceeding 40 penalty units or imprisonment for a term not exceeding 6 months, or both."
The sanction imposed was composite, reflecting the separate statutory offences. The learned magistrate regarded the dishonest production of the cancelled licence as an aggravating factor, stating:
"In this particular instance you appear to be making efforts to make sure you don't have to drive at least in terms of getting to work, nevertheless the position is exacerbated to some extent by handing the false licence to the police, and very foolish because they have so many quick ways of checking these sorts of things, but it's the dishonesty aspect that aggravates the position in relation to this particular instance apart from driving whilst disqualified, which I regard as a very serious offence."
The memorandum of sentence wrongly records the order as one of "cancellation" of licence, otiose since it had been cancelled some months earlier.
The composite penalty included disqualification which in some circumstances would have permitted recourse to the provisions of the Act, s17, which relevantly provides:
"(1) Subject to section 19B, a court that convicts a person of a traffic offence may disqualify the person from driving for a period specified by the court.
(2) Subject to subsection (3), if a disqualification is imposed under this or any other Act against the holder of an Australian driver licence, the court must either suspend or cancel the licence as follows:
(a)if the disqualification is for 4 months or less, the licence is to be suspended;
(b)if the disqualification is for more than 4 months, the licence is to be cancelled.
(3) The court may, instead of cancelling a licence that is liable to cancellation under subsection (2), suspend the licence if the court thinks there is good reason to do so.
(4) A disqualification imposed by a court under this or any other Act, and a related licence suspension or cancellation imposed by the court, takes effect as follows:
(a)if the convicted person is not subject to a current period of disqualification, licence suspension or ineligibility to hold a driver licence as a result of the accumulation of demerit points – at the time of the order or a later time fixed by the court;
(b)if the convicted person is subject to a current period of disqualification, licence suspension or ineligibility to hold a driver licence as a result of the accumulation of demerit points – at the end of that period unless the court fixes an earlier or later time."
Section 19B provides for "speeding offences" and has no application here. An offence against the Act, s64(3)(a), might not attract the requirement imposed by subs(3), since it is not conduct "involving the driving or use of a motor vehicle" as defined in s3. Counsel for the respondent conceded such to be the position, but it is not necessary to determine that matter for the purpose of the determination of this appeal.
The penalty here imposed was in the medium range of the statutory scheme. Although there was no emergency strictly construed (Cathro v Davies B35/1995; Maher v Banks A7/1992; Davies v Peterson 50/1991), on the material provided to the Court there had been an unanticipated and sudden event which had led to the act of driving. This was the first offence for an act of driving whilst disqualified and the offender was entitled to the benefit of an early plea (Brown v Stone B14/1995). The penalty, of itself, does not manifest error as evidenced by excessiveness. The one matter requiring consideration is its effect in the light of the existing period of 16 months' disqualification and cancellation imposed in July 2005. The cumulative effect of the disqualification of 16 months imposed in November was that of 32 months' prohibition as of 27 July 2005. The totality was that of one month's imprisonment, albeit suspended (Dinsdale v R (2000) 74 ALJR 1538) a pecuniary penalty of $1,000 and prohibition of driving or licence entitlement until March 2008. That extended prohibition, given the other penalties, (Jarvis v Brown 120/1998; Shepherd v Visser [1999] TASSC 81; Peck v Visser [1999] TASSC 38) persuades me that, absent the record of the offender, the sanction was excessive. However, the applicant had accumulated 10 convictions for traffic related offences, including three for drink driving, two of which involved a blood alcohol concentration of .15 or more. Given the record it could not be said that the period of disqualification:
"… fell outside an otherwise appropriate range of periods of disqualification for like crimes committed within the State of Tasmania"
as claimed in the notice of review, particular 4.
The learned magistrate paid regard to the mitigating matters advanced at the sentencing hearing and the penalties imposed, although high, do not themselves constitute an error of law.
The notice to review ought be dismissed.
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