Green v White
[2006] TASSC 15
•23 March 2006
[2006] TASSC 15
CITATION: Green v White [2006] TASSC 15
PARTIES: GREEN, Suellen
v
WHITE, Graham Ross
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 18/2005
DELIVERED ON: 23 March 2006
DELIVERED AT: Launceston
HEARING DATE: 23 March 2006
JUDGMENT OF: Underwood CJ
[Edited edition of reasons for judgment delivered orally]
CATCHWORDS:
Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – The hearing – Review of sentence – Sentences of imprisonment, licence disqualification and fine – Whether sentences manifestly excessive – Offender with previous convictions committed on the same day – Imposition of a fine beyond the capacity of the offender to pay
Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss6(1) and 17.
Briant v Bessell (1994) 94 A Crim R 204; Davies v Deverall (1992) 1 Tas R 214; Maynard v White A108/1994; Harris v Walker (1996) 89 A Crim R 257; Williams v McLauglin [2000] TASSC 29, followed.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Appellant: A Woodgate
Respondent: J P Ransom
Solicitors:
Appellant: Rae & Partners
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 15
Number of paragraphs: 14
Serial No 15/2006
File No LCA 18/2005
SUELLEN GREEN v GRAHAM ROSS WHITE
REASONS FOR JUDGMENT UNDERWOOD CJ
(DELIVERED ORALLY) 23 March 2006
At 4.55pm on the afternoon of Monday, 25 July 2005, the applicant was driving her car in Ingamells Street, Prospect. She was apprehended by police officers as she turned into number 3 Ingamells Street. A subsequent blood test showed that she had 0.23 grams of alcohol in every 100 millilitres of her blood. She pleaded guilty to a charge of breaching the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1).
The only matter put before the learned magistrate with respect to the circumstances of the offence was that the drinking was in the course of unplanned birthday celebrations and that the applicant otherwise rarely drank alcohol. Remorse was expressed and the plea of guilty was entered at the earliest opportunity.
The learned magistrate was told by counsel that the applicant was a single mother, aged 46, that she has two children and was currently not working because of a debilitating back condition and other illnesses. Her income consisted of $560 per fortnight social security benefit, or $280 per week.
The applicant has convictions for minor cannabis offences imposed in 2001 and 2003. She also has two prior convictions for driving with a blood alcohol concentration in excess of a prescribed minimum. According to the record tendered to the learned magistrate, the concentrations were .138 and .108. Convictions were imposed on 29 May 1996 and on 29 June 1996 but, curiously, as I raised with counsel during the hearing, the record states that both offences were committed on the same day. As a result of instructions obtained, Mr Woodgate informed me that the applicant offended on 29 May 1996, was tested and released, and then drove her car home and thus reoffended. Consistent with that it may be noted that upon the second conviction the period of disqualification of six months was made culmative to the first period of disqualification imposed exactly a month earlier.
The learned magistrate referred to the prior convictions and noted that they were imposed nine years ago. He then correctly observed that this was a bad case as the concentration of alcohol in the blood was approaching five times the prescribed minimum. He ordered a conviction, disqualification from driving for four years, a fine of $2,000 with 12 months to pay and four months' imprisonment, the execution of which was suspended upon condition the applicant commit no offence contrary to the Act that was punishable by imprisonment for three years, I observe, a condition she was unlikely to breach, as she was forbidden to drive for the next four years.
The motion seeks a review of that sentence upon the grounds that the learned magistrate erred in law by imposing a fine that was beyond the applicant's capacity to pay and that the orders were manifestly excessive.
As I have said, the offence the applicant committed was a breach of the Act, s6(1), and for the purposes of that Act, s17, the offence was a subsequent offence. The table in that section shows that in the case of the applicant, the minimum penalties were $1,000, two years' disqualification and/or two years' imprisonment. The maximum penalties were $6,000 and six years' disqualification from driving and/or two years' imprisonment.
It is, as Mr Woodgate, counsel for the applicant, submitted, a well established sentencing principle that the imposition of a fine beyond the capacity of the offender to pay is an error of law unless there is a statutory obligation to impose a minimum fine. There are a number of Tasmanian authorities for that proposition. They include Briant v Bessell (1994) 94 A Crim R 204 and Davies v Deverall (1992) 1 Tas R 214, to which Mr Woodgate referred me.
In the present case, the learned magistrate had to impose a fine of not less than $1,000 but fined the applicant twice that sum. As I observed to Mr Ransom, counsel for the respondent, that fine, paid over 12 months as was ordered, is equal to a weekly payment of $38.50 and would operate to reduce her weekly income by between 14 and 15 per cent. This would have a devastating effect on the applicant and her two children and would, in my view, almost inevitably lead her into a default situation. This applicant, in my view, is in much the same position as was the applicant in Maynard v White A108/1994, a case in which it was held that the fine was beyond the reasonable capacity of the applicant to pay.
Accordingly, I find that error occurred in the imposition of that fine in the circumstances of this case. Further, in my view, the imposition of a fine of $2,000, together with an order for imprisonment for four months constitutes a penalty that can properly be categorised as manifestly excessive when coupled with it was a period of four years' disqualification from driving. I acknowledge in reaching that view that the applicant has prior convictions but, as the learned magistrate said, they are now nine years old.
The motion to review should succeed. It is necessary for me to impose penalty myself and I do agree with Mr Ransom's submission that this is a bad case because the concentration of alcohol in the blood was very high. In that respect I adopt what my predecessor, Cox CJ, said in Harris v Walker (1996) 89 A Crim R 257 at 260:
"An offence against the Act, s6 is a matter of considerable seriousness, especially where the concentration in question significantly exceeds the prescribed concentration. Where the offence is repeated, even though on an earlier occasion the court has not proceeded to conviction and for the purpose of any statutory table the subsequent offence leads to a first rather than a subsequent conviction therefor, the question whether it is necessary to impose a deterrent penalty becomes of particular importance."
I accept Mr Ransom's submission that an aggravating circumstance is the fact that the driving was on a suburban street on a day and at a time when it was likely there would be other users in the vicinity who would be exposed to the risk of injury or even death from the commission of this offence.
With respect to the period of disqualification, I adopt the principles expressed in Williams v McLaughlin [2000] TASSC 29 to which Mr Woodgate referred me. With respect to the applicant's previous convictions, I observe that this offence constitutes the third conviction but the two prior offences were committed on the same day. This puts them in a different category. Whilst it can be said to commit two offences on the same day constitutes a blatant disregard for the law, it could also be categorised as a foolish error of judgment. It should not be overlooked that the second conviction was not a subsequent offence within the meaning of the Act at the time it was imposed. Having regard to the fact that both offences were committed on the same day, and having regard to the fact that those offences were committed nine years ago, I do not think that the applicant presents as a person calling for the imposition of a sentence of imprisonment by way of personal deterrent.
Accordingly, in my view the appropriate orders to dispose of the motion to review are to allow the motion. The orders of the learned magistrate made on 31 August 2005, except those with respect to costs and the victims of crime levy, are quashed and in lieu thereof there will be a fine of $1,000 and the applicant is ordered disqualified from driving for a period of two years from 31 August 2005. I will make an order pursuant to the Vehicle and Traffic Act 1999, s17, cancelling the applicant's Australian licence. The applicant is granted a period of 18 months to pay the fine, costs and victims of crime compensation levies.
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