Geard v Fletcher

[1987] TASSC 113

Serial No B43/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Geard v Fletcher [1987] TASSC 113; B43/1987

PARTIES:  GEARD
  v
  FLETCHER

FILE NO/S:  LCA 24/1987
DELIVERED ON:  15 October 1987
JUDGMENT OF:  Underwood J

Judgment Number:  B43/1987
Number of paragraphs:  15

Serial No B43/1987
List "B"
File No LCA 24/1987

GEARD v FLETCHER

REASONS FOR JUDGMENT  UNDERWOOD J

15 October 1987

1. The applicant was convicted of two offences of exceeding the speed limit, contrary to reg25(3) of the Traffic (General & Local) Regulations 1956. Upon the first matter of complaint he was fined $150, ordered to pay Court costs and disqualified from holding or obtaining a driver's licence for twelve months. Upon the second matter of complaint, he was fined $100 and disqualified from holding or obtaining a driver's licence for a period of six months, to take effect at the expiration of the period of twelve months disqualification previously imposed.

1. The Notice of Motion seeks a review of those penalties upon the grounds that:–

(1)The learned Magistrate imposed a sentence which was excessive in all the circumstances.

(2)The learned Magistrate failed to take any or sufficient account of the "totality" principle when imposing the periods of disqualification.

1. Both offences were committed on the same evening, one immediately after the other, and involved driving along Goderich Street Launceston (the northern outlet road) firstly past road sign 15 which prescribed a maximum speed of 60 klms per hour and secondly, past road sign 15 which prescribed a maximum speed of 90 klms per hour.

1. The learned Magistrate accepted the evidence of two police officers. They said that they observed the applicant's car, a Cortina, travelling at high speed along Bathurst Street into Goderich Street. The police gave chase in a police vehicle. First Class Constable Brewer whose evidence was corroborated by Constable Bennett said:–

"As I passed Dry Street, the speedometer on the police vehicle was registering 150 klms per hour. At this time I was approximately 150 metres behind the Cortina Sedan which was travelling in the centre–lane of Goderich Street. As the Cortina crossed the railway line, it passed three vehicles and continued north across the intersection of Foster Street and the speedometer on the police vehicle was still registering 150 klms per hour and the green traffic light was showing for the Cortina Sedan. After crossing the intersection, the Cortina moved from the centre lane to the western lane and passed two vehicles and increased speed. As the Cortina moved from one lane to the other, the vehicle bottomed and sparks came from underneath the Cortina. The Cortina remained at 160 klms per hour (sic) after it passed two road signs, 90 klms per hour signs erected at the southern side of the Main Street overpass. The vehicle was intercepted as it came in behind slow traffic at the Mowbray connector. The driver was asked to alight from his vehicle and that person is the defendant now seated in Court. Stated his name as Lee Maxwell Geard. He had a conversation with First Class Constable Bennett. He was informed of our observations as to his driving and he stated that it was a silly thing to do. At the time of the offence the road surface was dry and the weather fine, visibility was clear and there were three male passengers in the Cortina."

1. After the learned Magistrate found both matters of complaint proved, the applicant, who was unrepresented by counsel, repeated that "it was a silly thing to do" and said that he needed his licence for his job. Before imposing penalty the learned Magistrate said:–

"Well I am certainly going to take your licence away from you – that sort of driving behaviour is appalling. Absolutely atrocious. Whether that results in a loss of job or not is another matter; but a person who drives in that sort of fashion just does not deserve to have a licence."

1. The applicant who was 20 at the time he committed he offences had a number of prior convictions for traffic matters including driving with a blood alcohol content of .08% and speeding. Learned counsel for the applicant conceded that there were no circumstances surrounding either the offender or the commission of the offences to mitigate the imposition of a substantial penalty appropriate to the offences committed.

1. However, he submitted that the penalties, perhaps appropriate upon convictions for negligent driving, were manifestly excessive upon convictions for speeding.

1. In R v De Simoni (1981) 35 ALR 265 Gibbs, CJ said at p268:–

".... a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."

In Lovegrove v The Queen [1961] Tas SR 106, Burbury CJ said at p107:–

".... the Court must ever be on its guard to make sure, when it is considering for itself the circumstances relating to the commission of the crime, that it only sentences the convicted man in respect to the actual crime of which he is convicted."

1. In R v Causby, CCA Serial No 30/84 ([1984] Tas R 54), the Court of Criminal Appeal again considered this question of what circumstances of aggravation may be taken into account when passing sentence. The principle expressed by Gibbs CJ in R v De Simoni (supra) was referred to with approval by two members of the Court. All three members of the Court were of the view that the circumstance of aggravation in issue in that case could be taken into account upon a consideration of what was an appropriate sentence, but were not united in their conceptual approach to that common view.

1. A useful statement with respect to the principles applicable upon the exercise of the sentencing discretion is to be found in R. v Boyd [1975] VR 168 at p172:

   "(1) In assessing the severity of the sentence in any particular case, the judge is not entitled to take into account the possibility that in fact the prisoner may have been guilty of a graver offence than that of which he is convicted. (For authority for that proposition I refer to R v King (1925), 25 SR(NSW)218.)

   (2)       But the judge is not only entitled but bound to take into consideration all the circumstances surrounding the offences of which the prisoner has been found guilty. (Reference may be made to the same case for authority for that proposition.)

   (3)       The judge has to form his own view of the facts provided that the view that he does form is not inconsistent with the verdict of the jury, and he is not necessarily bound to adopt the most lenient view of the facts. (The authority for that proposition is R v Harris, [1961] VR 236.)

   (4)       Among the surrounding circumstances of criminal acts to be regarded are the consequences of those acts; these are relevant to any sentence which ought to be imposed. (I refer to an article by Professor Goodhart, 80 LQR, pp18–20, the views in which were adopted by the Court of Criminal Appeal in Tasmania in Wise v R, [1965] Tas SR 196, per Crisp, J, at pp201–2, and per Neasey, J, at p209; and to R v Webb, [1971] VR 147, at p151.)

   (5)       .......

   (6)       .......".

2. The maximum pecuniary penalty provided for a breach of reg25(3) is $200. This penalty is a general penalty prescribed for breaches of the Traffic (General & Local) Regulations. In addition, the Traffic Act, s34(1), provides that a person who is convicted of an offence against the Act (which includes the Regulations), as a driver or person in charge of a motor vehicle, may be disqualified from obtaining or holding a driver's licence "for such period as the Court may specify".

1. The applicant drove at a speed which was, in the case of the first matter of complaint, more than twice the permitted maximum and in the second matter of complaint nearly twice the permitted maximum. The offences were committed partly in a built–up area. Other vehicles were using the road at the time. These are circumstances of aggravation relevant to the sentencing process. An inference that the manner of driving was negligent or dangerous is not relevant to the sentencing process. Taking into account such an inference when determining penalty would amount to taking into account matters which would warrant convictions for graver offences and which are not necessary elements in the offences charged.

1. Having regard to the penalties imposed with respect to a single act of driving over a relatively short distance, I have reached the conclusion that the learned Magistrate fell into error by imposing penalties which together, are manifestly excessive. That error becomes apparent when those penalties are considered in accordance with the principles I have set out. I suspect that the learned Magistrate imposed the penalties upon the basis that the offences amounted to a bad case of negligent driving. If he did so, it is entirely understandable as there is no doubt that driving at such speeds in the circumstance was negligent. But the applicant was not convicted of negligent driving and it would be wrong to impose sentence as if he had been.

1. He fell to be sentenced upon the basis that his offences contained no element of aggravation which would warrant him being charged with more serious offences.

1. Accordingly, I am of the view that the appeal should be allowed and the sentences set aside. At the hearing of this appeal counsel were agreed that if the motion to review was allowed, I should proceed to impose sentence myself but before doing so, hear counsel for the applicant.