Hazell v Brown and Smith

[1999] TASSC 46

[1999] TASSC 46

CITATION:                 Hazell v Brown & Smith [1999] TASSC 46

PARTIES:  HAZELL, Christopher Donald

v
BROWN, Graeme Maxwell

HAZELL, Christopher Donald
v
SMITH, Sandy Lee

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 21/1999

LCA 22/1999

DELIVERED ON:  26 April 1999
DELIVERED AT:  Hobart
HEARING DATE:  19 April 1999
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Edited edition of Reasons for Judgment given orally.

REPRESENTATION:

Counsel:
             Appellant:  K B Proctor
             Respondent:  K Brown
Solicitors:
             Appellant:  Murdoch Clarke
             Respondent:  Director of Public Prosecutions

Judgment  Number:  [1999] TASSC
Number of paragraphs:  15

Serial No 46/1999
File No LCA 21/1999

LCA 22/1999

CHRISTOPHER DONALD HAZELL v GRAEME MAXWELL BROWN
CHRISTOPHER DONALD HAZELL v SANDY LEE SMITH

REASONS FOR JUDGMENT  COX CJ
DELIVERED ORALLY  26 April 1999

1. Notice to Review a substituted sentence of seven days' imprisonment for breach of suspended sentence in respect of a conviction for driving while disqualified eights days thereafter and Notice to Review sentence of three months' imprisonment (wholly suspended), fine of $500 and disqualification for driving for nine months in respect of the substantive charge.

1. The applicant has worked in the transport industry for most, if not all, of his working life.  He is now in his mid-40's.  He has a very bad record for speeding and other traffic offences extending over the last twenty years. 

1. In 1991, he was disqualified by the Court of Petty Sessions for driving for a total of three months, and on 28 July 1997 he lost his licence for twelve months by reason of his accumulation of demerit points.  On 17 July 1998 he was convicted of driving while disqualified the previous December and a sentence of one month's imprisonment was imposed, but the execution of that sentence was suspended on condition that he be of good behaviour for two years.  He was disqualified for a further six months.  At the time of imposing that sentence, the learned magistrate explained to him what was very likely to happen to him if he disobeyed the order of disqualification.  Notwithstanding that admonition, eight days later (and, I note, still within the original period of twelve months' disqualification imposed in July 1997, to say nothing of the further six months' imposed on 17 July 1998) he again drove on a public street.  He was charged with driving while disqualified on that day, 25 July 1998, and called on by complaint to show cause why the suspended sentence of one month's imprisonment should not be activated.  At a hearing before the same magistrate who imposed sentence on 17 July 1998, the applicant pleaded guilty to driving while disqualified and did not seek to show cause in respect of the alleged breach of condition.  By his counsel, however, he asserted facts which he claimed were extenuating. 

1. The driving in question had occurred on the East Derwent Highway about 10.20 on a Saturday morning.  The applicant, in the course of his road haulage business, had the task of moving a very large tank a distance of about two kilometres along the highway through the Old Beach area.  He had obtained a permit from the Transport Department to move the oversized load and two vehicles, manned by departmental officers, were in attendance.  One such vehicle was to be stationed at the northern end of the highway at the tank's ultimate destination, while the second was to take up a position immediately to the south of the point where the tank would move on to the highway.  Their purpose was to block any public use of the road and to keep it clear for the applicant's equipment and staff.  As the tank was ten metres wide and the distance along that stretch of roadway only twelve metres from guidepost to guidepost, it took up almost the entire width of the road, rendering it impossible for any other vehicle to pass or overtake.  One of the applicant's employees drove him to the site in a Land Rover.  After consultation with the Transport Department officers, it was decided that two of the applicant's vehicles would be despatched to two junctions on the section of highway to be traversed in order to block off traffic potentially moving on to the highway from a side road called Jetty Road which ran between these two junctions and serviced a built-up area to the west of the highway.  The employee who had driven the applicant to the site was a rigger needed to ensure the safe passage of the tank under overhanging wires along the route and all other staff were engaged in the exercise, leaving the applicant as the only immediately available potential driver of the second vehicle needed to block off the southern-most junction of Jetty Road.

1. The applicant, despite being disqualified, decided to drive that vehicle himself.  He did not tell the Transport Department officers of the fact of his disqualification or enquire of them the status of the highway once the exercise got under way with the northern and southern extremities of the route blocked to traffic.  There was, of course, no formal road closure which can, it seems, only be effected by public notice in the newspaper from either the local council or the Commissioner of Police.  The amount of traffic permitted on to the highway was restricted by the road blocks once they were in place and a time of day had been chosen which was deemed likely to be the least busy.

1. Before the vehicle carrying the tank moved off but after the two main road blocks were in place, the applicant drove to the southern intermediate junction to prevent access by others from Jetty Road on to the highway.  Until he got into place, there was nothing preventing other vehicles encountering him on the highway, but there is no suggestion that any did.  He stopped at the junction until the tank and escort vehicles went past and fell into line behind it with the rear most Transport Department vehicle immediately behind him.  He then drove the Land Rover at low speed to the ultimate destination, a total distance of about two kilometres.  The Transport Department officers were not aware that he was disqualified, but on later learning of that fact, they approached him and he was asked for an explanation.  He said he had driven "because I didn't believe it was on a public highway when the road was blocked".  This claim was repeated in a plea in mitigation when his counsel submitted that there was a mistaken belief on his part that the road was closed and as a consequence the disqualification did not apply.  He did not regard himself as committing any offence.  The learned magistrate queried the claim, pointing out that the permit itself contained a condition that he should permit the vehicle to stop at regular intervals to let banked-up traffic pass.  Counsel pointed out that there was no possibility of this because the width of the tank prevented any other vehicle passing or overtaking.  The prosecutor did not challenge any of the facts alleged by the applicant.

1. After a few days' adjournment, the matter came before the learned magistrate again and counsel for the applicant said that he was instructed by the applicant that prior to his quoting for the job, it was specified by the Transport Department that the road would be closed to the public between the start and the finish of the journey along that section of the highway.  He submitted that the applicant made an honest mistake that the road was closed, but that it was not a reasonable mistake which might have entitled him to an acquittal; hence the plea of guilty.

1. In passing sentence, the learned magistrate made a statement, which the applicant submits is a factual error, by saying that any driver of a vehicle in the area either following or coming in the other direction would have had to pull over well off the road to allow the convoy through and/or wait until the truck had passed to negotiate the road.  His Worship does not appear to have appreciated that with the road blocks in place at the northern and southern extremities, no such vehicles were anticipated.  However, until the road blocks were in place at both junctions of Jetty Road, some vehicles would have been able to enter on to the highway and would have had to pull over and wait.  If there is an error, it is not of significance.  In any event, the applicant's action in driving to the first junction was conducted while there was still access on to the highway from Jetty Road and that access remained until he himself got into a position to constitute a road block. 

1. The learned magistrate acknowledged that the transport authorities had, on that day or previously or both, referred to the closure of the road, but observed that the road was "manifestly not closed as such".  Counsel on the appeal queried what his Worship meant by that remark, but I think it is clear that he meant that until the applicant himself closed the Jetty Road junction, the highway was still open to the public, as indeed it was.  The learned magistrate appears to have accepted the genuineness of the applicant's belief.  He said:

"You submit that you didn't think that the road was a public highway given the description that I have just given of its situation.  Whilst this is, I think, an unreasonable view as has been conceded, your state of mind is relevant and you could have actually thought that, although it would be surprising for someone to think it."

He then went on to refer to the applicant's bad record and the fact that the offence and breach occurred only eight days after he had received a one month's suspended prison sentence for driving while disqualified in December and community service orders for driving while disqualified in September the previous year.  He said:

"I took very special care to explain to you the delicacy of your situation, thinking that perhaps some arrogance due to your position in the corporate world may have ¾ and I think may still ¾ influence you in this regard.  Your record of failing to appear, I must say, on these various matters, was and is somewhat relevant to that state of mind of mine." 

This appears to have been a reference to the fact that on an earlier occasion the applicant had failed to appear on a drive while disqualified charge and a warrant had been issued for his arrest.  His counsel had arranged for his surrender before the warrant was executed.  In explanation of the failure to appear, counsel had said that he was going to be interstate at the time the applicant was due to appear in court and had told him he had no doubt the matter would be adjourned, but there had apparently been a misunderstanding between them.

1. The learned magistrate said he now thought a severe penalty was in order.  A little later he said:

"I accept the mitigating factors but I think your state of mind concerning the state of the road and your position relevant to it was so unreasonable that this factor deserves only moderate weight at best, and similarly the actual state of the road.  This is not directly a safety issue, although safety is relevant, it is a question of you failing to accept your punishment."

He then went ahead to indicate that the applicant's conduct deserved a sentence of imprisonment, but that most of it could properly be suspended because he did not think a man in the applicant's position would need more than a few days of actual imprisonment to realise the consequences of offences of this kind.  He said similar considerations applied to the suspended sentence breach.  He then imposed a substituted sentence of one week's actual imprisonment in respect of that breach and a wholly suspended sentence of three months' imprisonment on condition of good behaviour for two years and imposed a fine of $500 and disqualification for nine months on the drive while disqualified charge.

1. The applicant appealed the substituted sentence of seven days' imprisonment for breach of the suspended sentence on four grounds, the first of which was not pursued.  The second is that the sentence was manifestly excessive in all the circumstances and two further grounds of appeal were added at the start of the hearing, to the following effect:

"3The learned magistrate erred in law and in fact in failing to accept and/or act upon the undisputed information before him that the applicant honestly believed that the road over which he drove when committing the act of driving while disqualified which constituted the breach of the suspended sentence was closed to the public and that he was, therefore, entitled to drive upon it.

4The learned magistrate erred in fact in finding that the said road was not blocked at the relevant time."

1. Having regard to the possibility of ingress from the unblocked junction of Jetty Road prior to the applicant driving thereto, the fourth ground cannot be sustained.  The third ground would succeed if in fact the learned magistrate failed to accept and act upon the undisputed contention that the applicant believed that the road was closed to the public.  The question is, did he do so?  He said that he accepted it, but some of his observations, it is submitted, suggest that by driving, the applicant was in deliberate breach of the terms of the suspended sentence imposed eight days earlier.  In my view, that is not the proper interpretation to be placed on his Worship's comments.  He made it clear, and it was not contended otherwise, that he took the fact to be that the applicant's belief, no matter how genuine, was not based on reasonable grounds.  Eight days previously he had stressed the importance of observing the court's order not to drive while he was disqualified.  The applicant should be taken to know that this did not prevent him from driving on a place which was not a public street, but in view of the learned magistrate's admonition, there was a clear need for the applicant to ensure that he either did not drive at all, or that if he did, he should ensure that the place where he drove was not a public street.  The failure of the applicant to make any such enquiry but to go ahead and drive on a street to which, until he placed his vehicle in a certain position, the public clearly did have the ability to gain access, was a deliberate act which, it could fairly be said, was indicative of a failure to accept the penalty imposed upon him.  The learned magistrate seems to have taken the view that there was a necessity to reinforce the court's order that the applicant not drive on a public street while disqualified by condign punishment unless there was some reasonable excuse for doing so.  A belief which had no reasonable basis for its formation could not be said to be a reasonable excuse.  Had there been neither a belief nor a reasonable basis for it, the learned magistrate would have been fully justified in activating the whole of the suspended sentence.  He refrained from doing so, but he imposed a very modest sentence of seven days' imprisonment by way of substituted sentence.  In my opinion, this was well within the limits of his discretion.  It was not manifestly excessive and was not imposed on any basis which was inconsistent with the undisputed fact that the applicant did believe the road was sufficiently closed for it no longer to constitute a public street.  In my view, the appeal in LCA No 21/1999 should be dismissed.

1. With respect to the second appeal, I do not consider a suspended sentence of three months' imprisonment was manifestly excessive; nor do I consider that the applicant has made out the last two grounds of appeal, which are in the same form as grounds 3 and 4 of LCA 21/1999.  However, not only was a suspended sentence of imprisonment imposed, but a fine of $500 and disqualification for nine months were added.  The infliction of all three types of penalty was, in my view, however, excessive to the point of error, having regard to all the circumstances.  I set that order aside.

1. A clear deterrent penalty in the form of a suspended sentence of three months' imprisonment is appropriate for the offence of driving while disqualified, notwithstanding the applicant's belief.  The serving of the sentence of seven days' imprisonment imposed on the breach of suspended sentence complaint should make it unlikely that the applicant will risk the imposition of any further period in custody; but a financial penalty on top of that is uncalled for, especially as actual incarceration, even for a short period, will impose some financial hardship on the applicant by the disruption it would cause to his business activities.

1. In the exercise of my own sentencing discretion invoked by reason of the applicant's success on the second appeal, I will reduce the period of disqualification to one of two months.  Some further disqualification is justified as part of a deterrent penalty, but I think one of that duration is sufficient.  In all other respects, I confirm both sentences and orders.