Gibbins v White
[2004] TASSC 8
•25 February 2004
[2004] TASSC 8
CITATION: Gibbins v White [2004] TASSC 8
PARTIES: GIBBINS, Melissa Jane
v
WHITE, Sergeant Graham
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 40/2003
DELIVERED ON: 25 February 2004
DELIVERED AT: Launceston
HEARING DATE/S: 11 February 2004
JUDGMENT OF: Crawford J
CATCHWORDS:
Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving under influence of intoxicating liquor or a drug – Penalty – "First offence" – Serious case – Whether three months' imprisonment manifestly excessive.
Aust Dig Traffic Law [79]
REPRESENTATION:
Counsel:
Applicant: A Slicer
Respondent: J P Ransom
Solicitors:
Applicant: Beeton & Mansell
Respondent: Director of Public Prosecutions
Judgment ID Number: [2004] TASSC 8
Number of paragraphs: 24
Serial No 8/2004
File No LCA 40/2003
MELISSA JAYNE GIBBINS v SERGEANT GRAHAM WHITE
REASONS FOR JUDGMENT CRAWFORD J
25 February 2004
The applicant pleading guilty before a magistrate to four offences committed on 5 April 2003, namely:
1driving a vehicle under the influence of intoxicating liquor, contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s4(a);
2driving a motor vehicle while alcohol was present in her blood in a concentration (0.267 grams of alcohol in 100 millilitres of blood) that was greater than the prescribed concentration of 0.05 grams per 100 millilitres, contrary to the Act, s6(1);
3exceeding the speed limit of 110 kph by driving at 135 kph, contrary to the Traffic (Road Rules) Regulations 1999, reg20 and 21(1);
4overtaking when it was unsafe to do so, contrary to reg140(a) and (b).
Because of the principles referred to in Wood v Major (1992) 3 Tas R 249, the learned magistrate dismissed the second count but took into account the blood alcohol concentration that was the subject of that charge.
The applicant was convicted of the three remaining counts and sentenced to three months' imprisonment, fined $1,000, ordered to pay costs of $94.10 and disqualified from driving for two years cumulative to an existing period of disqualification to which she was subject. She applied to review the sentence on the ground that it was manifestly excessive.
The facts surrounding the offences were as follows. At about 2.15pm she was driving a Toyota sedan in an easterly direction along the Bass Highway between Ashley Detention Centre and Exton. She had two passengers. The speed limit was 110 kph, but she was travelling at 135kph. She proceeded to overtake a number of vehicles travelling in the same direction, crossing into the lane reserved for traffic coming in the opposite direction. Upon seeing an oncoming vehicle approaching, she slammed on the brakes and caused the vehicle to skid for 40 metres until it left the road, slammed into a ditch and rolled a number of times, coming to rest on its side 88 metres from where it had left the road. Rescue workers and police attended the scene. Her passengers managed to get out but she was trapped inside the vehicle and had to be released. The three occupants of the car were taken to the Launceston General Hospital but none of them sustained substantial injuries. She indicated to the police that she was not the driver. A breath analysis revealed .267 grams of alcohol in 100 millilitres of blood, over five times the maximum allowed.
The prosecutor informed the learned magistrate that she had been drinking alcohol prior to leaving Devonport, which suggested that she had driven for over 50 kilometres.
At the time of the offences she was 24 years of age. Of particular significance to the case was that on the previous day she was detected and charged with driving a motor vehicle with alcohol in her blood greater than the prescribed concentration, her reading being 0.182 grams of alcohol per 100 millilitres of blood, well over three times the prescribed maximum. She was not sentenced for it until 7 October, but nevertheless the fact that she reoffended within a day called for a substantial punishment by way of a personal and general deterrence.
Apart from that matter, her record was not a bad one, although she had committed some offences. In the children's court up until 1994, when she was 16, she was dealt with for a number of street offences, including nine counts of assaulting a police officer, two counts of assaulting a public officer and one count of assault. She was subject to probation and supervision orders, fines and detention for a month. After 1994 and particularly after 1996, her court record reveals that her conduct improved. In 1996, when she was 18 years old, community service orders were made for six counts of breaching a restraint order. In 2002 she was fined $500 for burglary and stealing and in February 2003 she was fined $100 for trespass.
Her counsel informed the learned magistrate that she had no memory of the day of the offence, possibly because in addition to alcohol, she had taken a drug prescribed for depression. She claimed to have been told that she had been drinking at Wynyard, that it was arranged that another person would drive to Launceston, that the driver felt fatigued in the course of the journey and that the applicant took over. Counsel vaguely stated that her driving had not been of long distance, which did not amount to a challenge to the suggestion from the prosecutor's statement that she had driven from Devonport. It may be inferred that it was her intention to drive to Launceston, close to another 50 kilometres past the scene of the accident.
Counsel said that she had problems with alcohol from the age of 14, including binge drinking with older persons. She was expelled from school when in Grade 8. She had short stays in a clinic as a 14 year old because of attempts to take her own life. Counsel did not explain what he meant when he added that she had "been in rehabilitation a couple of times". He said that she had been "in detoxication [sic] a number of times as well".
It was explained that she was a single mother and the sole carer of her five year old son. Counsel said that there was no-one else available to look after him. The learned magistrate must have been left wondering about the quality of care she was providing to her son on the day of the offence and the previous day, when she also offended. It was stated in a report from an indigenous higher education officer at the University's Centre for Aboriginal Education, upon whom the applicant had been attending for regular counselling sessions, that the accident produced "devastating emotional effects". The officer said that since then the applicant had endeavoured to make radical lifestyle changes that would ensure a better future for her and her son. She had been sober and rational on every occasion upon which she attended her regular counselling sessions, the officer reported.
It was submitted by counsel that the applicant's pleas of guilty were indicative of remorse and contrition. Although the learned magistrate was entitled to apply her pleas in her favour, that they demonstrated anything other than acceptance of the inevitable is doubtful.
Strangely, the learned magistrate was told that in 1993, when she was aged 14 or 15, a psychiatrist had assessed the applicant intellectually as being in the lowest 5 per cent of the general population and of having borderline intellectual disability. Counsel submitted that the learned magistrate "would be aware of the sentencing principles in that instance" and that the assessment "moved the ambit of the relevant sentencing principles applicable in such matters". He did not explain what he meant, nor did he rationalise what he said in light of his client's then current university course. Counsel said that she was in her second year of university as a bachelor of science student "with mixed results to date", without indicating success or otherwise. The report of the indigenous higher education officer also left that aspect up in the air, expressing simply that "she has the potential to become and [sic] excellant [sic] student".
The learned magistrate was informed that prior to the offence the applicant had suffered from an inappropriate lesbian relationship with a counsellor and that since the offence she had returned to counselling, apparently with the indigenous higher education officer.
The learned magistrate's comments on passing sentence were as follows:
"On the 4th April of this year you drove with a blood alcohol concentration of .182. You were convicted of that offence on the 7th October of this year. A day after committing that offence on the 5th April these events unfolded where you drove with a blood alcohol concentration of .267. And certainly that concentration supports the proposition that you would have been unable to exercise proper control of the motor vehicle due to being under the influence of intoxicating liquor.
You were driving whilst under the influence of intoxicating liquor as supported by that very high blood alcohol concentration of .267, and when driving you chose to overtake, I am told, some vehicles proceeding in the same direction against the restriction that – against the solid white line in the roadway which meant that you shouldn't have crossed the road. And when you realised a vehicle was coming towards you, you slammed on the brakes at high speed and you've pleaded guilty to travelling at 135 kph, drunk, with passengers in your car while overtaking other vehicles and in the face of – what turned out to be in the face of a vehicle approaching, you slammed on the brakes, skidded for a distance of some 40 metres, losing control in the process and went off the road travelling out of control for a further 88 metres before that vehicle came to rest. People were injured but apparently not significantly or seriously. That is entirely fortuitous and is hardly a matter of credit to be taken into account in your favour. As I say it's entirely fortuitous.
Your driving was appalling. You drove while drunk. You drove on a major arterial road. You overtook other vehicles as I say. Another vehicle appeared in the face of you and you had to dive onto the brakes and then lost control. If ever a case was deserving of imprisonment this is certainly one.
I take into account what has been said by your counsel, but I must also have regard to the public interest and the public have an interest in seeing to it that drivers such as you were on that night are kept off the road and that an adequate penalty is imposed to deter others who might be minded to drive when drunk.
You are convicted and sentenced to a term of 3 months' imprisonment. Further you are fined $1,000. I apply the victim compensation levy of $20 together with costs of $94.10 and you are disqualified from driving, that to be for 2 years cumulative to the existing period of disqualification."
At that time, the applicant was already subject to disqualification for 20 months from 7 October 2003 as part of the penalty imposed for driving with more than the prescribed amount of alcohol in her blood on the day prior to the present offences.
The only attack on the sentence was directed by the applicant's counsel at the three months' imprisonment. It is obvious that it was imposed by the learned magistrate for the offence of driving under the influence of intoxicating liquor. The Act, s17, prescribed that for a "first offence", an offender had to be fined not less than $500 and no more than $3,000 or sentenced to a term of imprisonment not exceeding 12 months or both. Such an offender also had to be disqualified for at least 12 months but no more than 36 months. For a "subsequent offence", an offender had to be fined no less than $1,000 and no more than $6,000 or sentenced to a term of imprisonment not exceeding 24 months or both. Such an offender also had to be disqualified for at least 24 months but no more than 72 months. By virtue of s17(1)(b), the applicant's offence was a "first offence". If at the time she committed it, she had already been convicted of the offence committed by her the previous day, it would have amounted to a subsequent offence. Rivera v Maher (1992) 1 Tas R 228. I observe that the imposition of three months' imprisonment was well within the permitted maximum of 12 months' imprisonment for a first offence.
It was correctly submitted to this Court by the applicant's counsel that her prior record, apart from the offence the day before, contained noting in the form of offences as a driver that was significant. In his comments on passing sentence the learned magistrate made no mention of her record, other than to refer to the previous day's offence, and it may be inferred that his Worship did not regard the earlier record to be of much significance for sentencing purposes.
It was further submitted by the applicant's counsel that the applicant should not have been sentenced to three months' imprisonment because she was the sole carer of her five year old son and the learned magistrate was informed that there was no-one else available to look after him. The learned magistrate made no mention of the matter in his comments, except to say that he took into account what had been said by the applicant's counsel.
Generally speaking hardship to dependants is not a significant mitigatory factor. Sullivan v R 9/1975; R v Georgiadis (No 5) [2001] TASSC 88; Boyle (1987) 34 A Crim R 202; Wayne (1992) 62 A Crim R 1. If the contrary was the case, courts would regularly be considering not the necessary punishment for the offender but the extent to which his or her family might be prejudiced by it. Part of the price to pay when committing a serious offence is that imprisonment may well cause hardship to others, and in most cases it should not be one of the factors which can affect what would otherwise be the right sentence. See Principles of Sentencing 2 ed (1979) by D A Thomas at 211 – 212. If courts allow the factor to be mitigatory, it can lead to the injustice of offenders without families receiving more severe punishment than those with families.
There have been cases where exceptional hardship to family has been taken into account. An example is R v Georgiadis (supra), but the special circumstances of that case, a long delay in prosecuting and the intervening birth of a child, bear no comparison with this case. Here it appears that the applicant was the sole carer of her child on the day she offended and on the previous day when she also offended. I am not satisfied that responsibility for her child ought to have persuaded the learned magistrate not to impose the sentence in fact imposed.
It was submitted by the applicant's counsel that the learned magistrate failed to adequately take into account the prospects of rehabilitation and should have imposed a sentence that encouraged it. It should not be forgotten that commonly one of the purposes of a sentence of imprisonment is to encourage rehabilitation and three months' imprisonment may well prove to be a real incentive for the applicant to reform, whereas leniency may not achieve that purpose. Further, there is no reason to think that the learned magistrate did not have regard to evidence that the applicant appeared to have made a greater effort at controlling herself since the offences. That evidence was primarily to be found in the report of the indigenous higher education officer. What was expressed by his Worship was that he felt obliged to have regard to the public interest in seeing to it that persons who drove like the applicant were kept off the road and that an adequate penalty was imposed to deter others who might be minded to drive when drunk. They were legitimate considerations and they had to be balanced with all other relevant factors.
On the hearing of a motion to review a sentence imposed a magistrate, this Court must not interfere unless persuaded that the sentence was manifestly excessive to the extent that it demonstrated patent error. There are many authorities establishing that a sentencing officer has a very wide discretion to exercise. An applicant is not entitled to ask this Court to substitute its opinion for that of the magistrate and the Court will only do so if it plainly appears that the sentence was so manifestly excessive that it is only explicable upon the view that the learned magistrate erred in some way. Whittle v McIntyre [1967] Tas SR (NC 6).
It may well be that some magistrates would not have imposed an immediate custodial sentence and that I would not have done so either. But the Court must not intervene merely because some other sentence, such as a suspended sentence of imprisonment or perhaps even a non-custodial sentence would not have been manifestly inadequate. Miller v Visser 32/1998 at 11. I have concluded that I am not satisfied that this Court should intervene in this case. In other words, I am not persuaded that the sentence was manifestly excessive. Although she had no prior conviction of a similar kind, the learned magistrate was entitled to take into account that the applicant had breached the Act only the day before with a breathalyser reading over three times the prescribed maximum limit. That was particularly relevant. He was also entitled to have regard, as he did, to the fact that on the day of these offences her blood alcohol concentration was over five times the limit. She was incapable of properly controlling a motor vehicle and constituted a great danger to the public. It is obvious that as a direct result of her drunken driving she was unable to keep proper control of her vehicle and a major accident resulted. As the learned magistrate remarked, it was entirely fortuitous that serious injuries were not suffered by the applicant and others. She was a danger not merely to her passengers but to other road users. As noted in Sentencing in Tasmania 2 ed (2002) by Professor Warner at 415, "statements of judicial policy abound asserting that drink driving is a grave social evil carrying a substantial risk of causing death and serious injury and that accordingly there is a need for penalties which will deter the public as well as the individual offender from drinking and driving". Although possibly on the high side, I am satisfied that three months' imprisonment in this case was not so manifestly excessive to the point of error.
Accordingly the motion to review will be dismissed.
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