Harper v Gauden

[2003] TASSC 66

[2003] TASSC 66

CITATION:              Harper v Gauden [2003] TASSC 66

PARTIES:  HARPER, Robyn Edna
  v
  GAUDEN, Tadeusz John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 47/2003
DELIVERED ON:  1 August 2003
DELIVERED AT:  Hobart
HEARING DATE:  25 July 2003
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Traffic Law – Licensing of drivers – Tasmania – Disqualification and cancellation and suspension of licenses - Multiple breathalyser offences – Separate concurrent sentences of imprisonment  - Whether manifestly inadequate - Single period of disqualification – Whether technically incorrect.

Tunks v Taws [2003] TASSC 58; Dinsdale v The Queen (2000) 202 CLR 321, referred to.

Sentencing Act 1997(Tas), s3.

Road Safety (Alcohol and Drugs) Act 1970 (Tas), s17.

Aust Dig Vehicles and Traffic [26]

REPRESENTATION:

Counsel:
             Appellant:  F Neasey
             Respondent:  S Chopping
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  S Chopping

Judgment  Number:  [2003] TASSC 66
Number of paragraphs:  12

Serial No 66/2003
File No LCA 47/2003

ROBYN EDNA HARPER v TADEUSZ JOHN GAUDEN

REASONS FOR JUDGMENT  COX CJ
  1 August 2003

1. The respondent was convicted of one count of driving under the influence of intoxicating liquor contrary to the Road Safety (Alcohol and Drugs) Act 1970, s4(a) ("the Act") and of one count of refusing a breath analysis contrary to the Act, s14(2). Both offences occurred on 26 February 2003, the first on Peltrow Street, Glenorchy, at about 1.00 pm on a weekday and the second at the Hobart Breath Analysis Section at about 2.00 pm. He pleaded guilty on 1 May 2003 to both charges and, on 30 May 2003, the learned magistrate imposed on the first charge a sentence of eight months' imprisonment, wholly suspended upon condition that he commit no offence against the Act for a period of three years. On the second charge she imposed a sentence of eight months' imprisonment, to be served concurrently with that on the first charge and its execution was wholly suspended on the same condition. The learned magistrate further ordered that upon the whole complaint the respondent be disqualified for holding or obtaining a licence to drive a motor vehicle for a period of six years. The prosecutor moves to review the penalties imposed upon the following grounds:

"1The learned magistrate erred in fact and/or in law in exercising a discretion to suspend the said sentences of imprisonment.

2The learned magistrate erred in fact and/or in law in failing to order that the said sentences of imprisonment be served cumulatively.

3The learned magistrate erred in law in imposing a single period of disqualification from holding or obtaining a driver's licence upon the respondent upon the whole of the said complaint, rather than imposing individual periods with respect to each of the said charges, as required by s17(3)(b) of the Road Safety (Alcohol and Drugs) Act 1970.

4The learned magistrate erred in fact and/or in law in that the said sentences were manifestly inadequate in all the circumstances of the case."

1. The facts were that police received a call from an unknown person alleging that a drunken male was driving a station sedan and had collided with a parked car in Terry Street, Glenorchy.  The police attended a few minutes later and intercepted the respondent driving that vehicle from Terry Street into Peltrow Street.  An officer spoke to the respondent as he alighted from the vehicle and it was observed that his breath smelt very strongly of intoxicating liquor, his speech was slurred and he swayed and staggered as he walked.  In addition, his eyes were bloodshot and the police officer formed the opinion that the respondent was drunk.  He arrested him for the offence of driving under the influence of intoxicating liquor.  No visible damage was observed to the respondent's vehicle and it does not appear as though any damage was caused to the parked car in Terry Street which the respondent admitted he had hit.  The officer required the respondent to submit to a screening breath test which returned a reading of 0.398 per cent.  The respondent was taken to the Hobart Breath Analysis Section and there directed to provide a sample of his breath, but the respondent repeatedly refused to undergo a breath analysis.  He was then taken back to the Hobart Charge Room where it was decided that he was too drunk to be released and was kept in custody until the evening when he appeared in an evening Court.

1. His prior convictions included:

·     In December 1978 he was convicted of exceeding the prescribed permissible concentration of alcohol in his blood, the reading being 0.18 per cent, for which he was fined $100 and a licence disqualification for 18 months was imposed.

·     On 16 March 1983 he was again convicted of exceeding the prescribed permissible concentration of alcohol in his blood, this time with a reading of 0.17 per cent.  He was fined $200 and disqualified from holding a driver's licence for nine months.

·     On 2 August 1984 a third conviction for the same offence was entered against him.  This time the reading was 0.17 per cent and he was fined $300, the payment of the fine being suspended on condition he be of good behaviour for two years.  He was disqualified from driving for 24 months.

·     On 4 July 1988 he was convicted of driving under the influence of intoxicating liquor, fined $100 and sentenced to one month's imprisonment, the execution of which was wholly suspended on condition he be of good behaviour for two years and under the supervision of a welfare officer.  He was disqualified from driving for three years and six months.

·     On 4 July 1988 he was convicted of refusing a breath analysis and was fined $75 and disqualified from driving for six months, cumulative upon the last mentioned conviction.

· On 20 August 1997 he was convicted of an offence against the Act, s6(2), namely driving a motor vehicle while alcohol was present in his blood without having authority to drive a motor vehicle. For this offence he was sentenced to three months' imprisonment, the execution of which was wholly suspended on condition that he commit no offence under the Act for a period of three years. In addition, he was fined $1,500 and he was disqualified from holding a driver's licence for four years. The reading was 0.314 per cent.

1. By way of mitigation it was submitted that he was 51 years of age, his father had died some four months prior to the offence, that he resided with his aged mother and had been her sole supporter and carer and that he received a disability pension, having been diagnosed with a depressive condition.  The Court was told that the respondent had gone to the post office to buy a money order to assist his mother, but while in the vicinity of the post office he had parked his vehicle, gone to a nearby hotel and consumed alcohol.  When he returned to his vehicle he had difficulty getting the car into gear, it jumped forward and made slight contact with the parked vehicle in front of him.  He had stopped, had discussions with the driver of the other vehicle and claimed that no damage had been done to either vehicle.  He was then on his way home to Sinclair Avenue in Moonah when he was intercepted.  Being told the result of the screening test he claimed disbelief of the result and "out of stubbornness" had refused to undergo the breath analysis test when he was at the police station.  He did not dispute that he was well aware that he had a high blood alcohol content, but did not think that it was as high as 0.39 per cent.  It seems to be common ground that the screening test is no more than an indication of the consumption of alcohol and may be explained by recency of consuming alcohol.  However, in the present circumstances, the acceptance by him of the fact that he was under the influence of intoxicating liquor to such an extent as to be incapable of having proper control of his vehicle, allied with the information placed before the Court by the prosecutor as to his general condition, clearly shows that he was significantly under the influence of alcohol at the relevant time.

1. It was put to the learned magistrate that he had been diagnosed as an alcoholic and that shortly after the incident he had gone to St Helen's Hospital where he enrolled in a drug and alcohol relapse prevention program, partly on an in patient basis and partly as an out patient.  The course had extended for some eight weeks.  He completed the course and a certificate was produced from a clinical psychologist engaged in the program confirming that on completion he was abstinent from the use of alcohol.  The learned magistrate then enquired as to what ongoing management of his condition was then in contemplation after the completion of the eight week program and was told that he had been referred to a psychiatrist, Dr David Weidmann, and had been consulting him on a weekly basis with the intention at the end of June, that is two months after the plea was taken, of undertaking a further eight week course, the object of which was to achieve total abstinence.  At this stage the learned magistrate said:

"The test suggests that there would have been an horrific reading obtained if one had been provided, even if it hadn't been as high as 0.39 (sic).  We've got these prior convictions, there's not a major gap of, say ten, twenty years or anything of that nature, there would have to have been quite extraordinary efforts made to avoid an actual period in custody and there would also have to be a case where I can be satisfied of good prospects."

In the result the learned magistrate determined to adjourn the matter for a further four weeks to enable a further assessment of the respondent's progress to be put before her.  On 30 May she was provided with a report from Dr Weidmann which said:

"Mr Gauden has been seeing me sporadically for over 12 months.  Over the past 3 months he has been attending regularly.  Over this period of time there is clear evidence that his (sic) has abstained from alcohol (liver function tests full blood count both normal, improving mental state).  He has diligently attended

^ in patient treatment
^ out patient treatment
^ day patient treatment

as suggested – all with the aim of achieving abstinence and looking at relapse prevention.

He very much seems to have 'turned the corner' and is making a big effort to achieve and maintain abstinence from alcohol.

He will continue to see me regularly and complete his day patient course at St Helens Hospital."

She also received a report from the clinical psychologist at the course which, like Dr Weidmann's report, was dated 27 May 2003 and which said:

"I write to confirm that Mr Gauden continues to have contact with myself as part of his attendance at the Day Patient Program at St Helens Private Hospital.  He remains abstinent from the use of alcohol and compliant with all aspects of treatment.  Mr Gauden is keen to attend the follow-up session to his recently completed Outpatient Drug and Alcohol Relapse Prevention Program and has expressed an interest in continued attendance at our next Drug and Alcohol Program scheduled to begin 10^th July 2003."

1. In sentencing the learned magistrate said:

"I note that I've heard that you collided with a parked car and when you got out of the car were staggering drunk.  The results of the breath test indicate that your blood alcohol concentration was excessively high.  You have prior convictions which are very troubling, five prior incidents of drink driving, all for high readings, the last involved a reading of 0.314, an horrific reading.  One of those prior incidents involved convictions for driving under the influence and refusing breath analysis, which are the most serious offences of drink driving, and they're of course the offences before the Court today.  I note that on the last two occasions in '88 and 1997 the Court gave you an opportunity of a suspended gaol sentence.

I'm informed, and it's clear from the information, that you have a very serious alcohol problem.  I note that since committing this offence in February you have completed an eight week outpatient alcohol program at St Helens, an inpatient program and you're soon to undertake a day patient program and not only that, you're consulting Dr Weidmann regularly and have been doing so for the past three months and all the information before me demonstrates that you are someone who is very motivated to deal with your alcohol problem and, as Dr Weidmann has said, you have remained abstinent.

Of course, as I said to you last time, this is a shocking record of prior matters, these are very serious crimes before the Court and it's just terribly fortunate, as I said, that there wasn't a tragedy arising out of this incident of driving and of course I have to give very careful thought to the risk to the community and the potential consequences of this sort of conduct, and by the time it's somebody's sixth offence for drink driving then they're really – fifth or sixth offence then there really has to be almost an inevitability about an actual gaol sentence.  However, I have concluded that this is an exceptional case and you have made real and significant efforts to address your alcohol problem and I'm particularly persuaded by the opinion of Dr Weidmann when he says you very much seem to have turned the corner, and that is ultimately very persuasive in my mind.  So, unusually, I am going to grant a suspended sentence subject to very strict conditions, very serious consequences if you breach it, if you don't continue with the efforts that you're making."

She then proceeded to pass the sentences that I have already referred to.

1. I will deal first with ground 3 as grounds 1 and 2 are effectively subsumed by ground 4. The Act, s17, relevantly provides:

"(1)     For the purposes of this section –

(a)  'the Table' means the Table at the end of this section; and

(b)a person is guilty of a subsequent offence if that person has previously been convicted of an offence under section 4 , 6 or 14(5) or an offence in respect of a failure to comply with a requirement made under section 10(4) or 10A(1)."

...

(3)... a court that convicts a person of an offence specified in column 1 of the Table –

(a)  must –

(i)impose a fine of an amount not less than the minimum amount shown in the Table and not more than the maximum amount shown in the Table; or

(ii)impose a term of imprisonment for a term not exceeding the term shown in the Table; or

(iii)      impose both that fine and that term of imprisonment; and

(b)must, in addition, disqualify the person from driving for a period not less than the minimum period shown in the Table and not more than the maximum period shown in the Table."

The Table provides, in respect of a subsequent offence (and it is common ground that the respondent had a previous conviction in respect of each of the two charges of which he was convicted) that the minimum period of disqualification for an offence against s4, or for having failed to comply with a requirement made under s10(4) (which is made an offence by s14(2)), is 24 months and the maximum period is 72 months. It is argued by the respondent that the learned magistrate was obliged to impose a period of disqualification of between two years and six years on the conviction of the respondent of each offence and that, notwithstanding an aggregate period of disqualification of six years having been imposed in globo, the learned magistrate was in error in not attaching the disqualification to each conviction. The Sentencing Act 1997, s11, provides:

"(1)     A court may impose on an offender who has been convicted of more than one offence specified in one or more complaints or indictments –

(a)  one sentence for all of those offences; or

(b)            a separate sentence for each of those offences; or

(c)  ...

(2)       In imposing a single sentence on an offender for more than one offence, a court must not impose a penalty exceeding the sum of the maximum penalties that could otherwise have been imposed for those offences."

It is perhaps curious that subs2 does not go on to provide that in imposing a single sentence on an offender for more than one offence a Court must not impose a penalty less than the sum of the minimum penalties that are required to be imposed for those offences. Be that as it may, however, the power to impose an in globo sentence conferred by s11(1) is a power to impose a single sentence for those offences to which it relates. It does not permit the imposition of a single sentence of fine or imprisonment on two or more offences and a separate additional penalty by way of disqualification on each of them. Likewise, it does not permit the imposition of separate sentences of fine or imprisonment (whether of the same amount or duration or not) on each offence and a single additional part of the sentence by way of disqualification. To do so would not constitute the imposition either of "one sentence for all of the offences" or a "separate sentence for each of the offences". In the present case the learned magistrate imposed separate sentences of imprisonment on each of the charges, but a single period of disqualification purportedly on both. In my view this was technically incorrect. The Act and the Sentencing Act in combination required the imposition of cumulative sentences of not less than two years' disqualification on each offence.  Were that the applicant's only complaint, the matter could be resolved by the substitution of two cumulative periods of disqualification of three years' duration, as it is not suggested that any greater aggregate period of disqualification was warranted by the circumstances.  Alternatively, as no substantial miscarriage of justice appears to have occurred, this might well have been a case for the dismissal of the motion pursuant to the Justices Act 1959, s110(2)(ab).

1. As to ground 2, it is not submitted that the learned magistrate was in error in failing to impose cumulative sentences of imprisonment for any other reason than that this resulted in a sentence which, in all the circumstances, was manifestly inadequate.  This concept, likewise, underpins ground 1.  It is submitted that, having regard to the seriousness of the charges, the previous convictions of the respondent for similar offences over a period of 25 years, the need to denounce, and to protect the public from, such recidivist behaviour and the absence of any significant mitigating circumstances, this was a totally inappropriate use of the power to suspend the execution of the sentences of imprisonment and resulted in an inadequate penalty.

1. The evils of driving after having consumed excessive amounts of alcohol, and the need to deter such conduct, need little elaboration.  They are encapsulated in a statement by Crawford J in the recent decision of Tunks v Taws [2003] TASSC 58 at par16 where his Honour said:

"Much has been said by judges and magistrates about the evil of drinking and driving and the need for condign punishment. A number of judicial statements were collected by Blow J in Nunn v Stocks[2001] TASSC 52. It is the duty of the courts to recognise Parliament's intention and punish persistent and serious transgressions to a degree which, depending on the facts of the case, will recognise the maximum penalties determined by Parliament. Booth v Breen [1980] TasSR 277 (NC4), unreported 10/1980. 'The clear legislative intent ... is to treat the driving of motor vehicles by persons affected by the consumption of intoxicating liquor as a grave social evil which is to be visited with penalties severe enough to act as a general deterrent and a personal deterrent to the particular offender. ... Whilst Parliament has stopped short of providing for the mandatory imposition of terms of imprisonment, even in the case of persistent offenders, the imposition of terms of imprisonment ought not to be reserved for extraordinary cases'. Briant v Bessell(1994) 74 ACrimR 204 at 208."

1. In the present case, as the learned magistrate acknowledged, there had not been a major gap within the 25 year period from his first drink driving conviction before he offended again.  Such convictions had been recorded in 1978, 1983, 1984, 1988, 1997 and 2003.  On his own admission he was at the time of the offence a confirmed alcoholic.  His efforts at overcoming his drinking problem, after having been arrested and charged for the present offences, was laudable and no doubt constituted some evidence of remorse for his conduct and it was proper to take them into account.  But, in the circumstances, they plainly did not justify the amelioration of the penalty his conduct deserved by way of suspension of the execution of the sentences.  While it is desirable that his rehabilitation be encouraged, a suspended sentence was not essential to achieve it.  On the last two occasions he appeared before the Court for sentence he was given suspended sentences of imprisonment.  True, he committed no offence during the period of suspension and hence was not guilty of a breach.  But that was demonstrably not a sufficient deterrent to prevent the commission of the present offences.  While little or no damage was done as the result of his driving while affected by alcohol on the occasion in question, the potential for harm existed once he commenced to drive.  Furthermore, there was no compelling reason for him to have driven.  There was not even a circumstance which might excite any sympathetic understanding of his reason for driving in his then condition.

1. It was put to me by counsel for the appellant that the learned magistrate erred in imposing a suspended sentence by reason only of his prospects of rehabilitation.  He relied on a dictum of Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 348, where his Honour said:

"In my view, to limit the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender would constitute an error. There is nothing in the grant of the power, as expressed in the applicable legislation, to justify confining its availability in such a way. Had the legislature intended to limit the discretion to suspend by reference to such a consideration, it could have done so. This consideration is particularly relevant to the Western Australian legislation, which amounts to a recent endeavour to collect all the main principles of sentencing in a statute of general application.

Moreover, the scheme of the legislation, and the two steps which s76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term, Thomas, Principles of Sentencing, 2nd ed (1979), pp244-245; R v P (1992) 39 FCR 276 at 285. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy, cf R v Shueard [1972] 4 SASR 36 at 43; R v Prindable (1979) 23 ALR 665 at 669; R v Davey [1980] 2 ACrimR 254 at 259-260. On the contrary, the structure and language of s76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the circumstances'. This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment, R v Liddington (1997) 18 WAR 394 at 402, per Ipp J.

Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Australia of the 'complete discretion', R v Davey [1980] 2 ACrimR 254 at 262, which, subject to the statute, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss, cf R v Wacyk (1996) 66 SASR 530 at 534; Police v Cadd (1997) 69 SASR 150 at 169."

The High Court was there dealing with a West Australian statute which specifically required a court not to impose a sentence of imprisonment unless satisfied that it is not appropriate to use any of the other sentencing options given by that statute, including the suspension of the execution of a sentence of imprisonment.  The intermediate court had concluded that Dinsdale's offences were rightly found to be of sufficient seriousness to require actual imprisonment, but had further concluded that because there was no rehabilitative process going on which merited the support of a suspended sentence, there was no reason shown which dictated a merciful disposition of the case.  This, Gleeson CJ and Hayne J, in a joint judgment, said "inverts the order in which the statute requires a sentencing judge to consider matters" (at 327).  No such mandatory order of consideration of penalty is laid down in the Sentencing Act, but that Act does state in s3 that its purpose is to (among other things):

"(e)     help prevent crime and promote respect for the law by allowing courts to –

(i)impose sentences aimed at deterring offenders and other persons from committing offences; and

(ii)impose sentences aimed at the rehabilitation of offenders; and

(iii)      impose sentences that denounce the conduct of offenders;"

It would be an error, therefore, to suspend the sentence of imprisonment solely to achieve the aim of rehabilitating an offender without having regard to the need to deter others and to denounce the conduct in question.  In the circumstances of the present case, although I do not conclude that the learned magistrate paid no regard to those considerations, other than rehabilitation, the end result was one which failed to achieve a proper balance of those factors which did require consideration and in result the sentence was an unreasonable one.  It is one of those cases where the Court "may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance" (House v The King (1936) 55 CLR 499 at 505).

1. In view of the fact that each offence was "a subsequent offence", the respondent was exposed to a maximum penalty on each charge of two years' imprisonment, cumulative upon each other.  The charges were intrinsically serious and his numerous previous convictions showed him to be a persistent offender who represented a danger to the public.  An aggregate sentence greater than each concurrent sentence in fact imposed, but which was not suspended, was well justified.  But, as the discretion has miscarried and it is accepted that the matter should now be remitted to another magistrate for the purposes of re-sentence after hearing further submissions, I refrain from expressing a view as to the appropriate penalty.  The appeal is allowed and the matter remitted to another magistrate for re-sentence.