Hunter v White

[2002] TASSC 72

[2002] TASSC 72

CITATION:           Hunter v White [2002] TASSC 72

PARTIES:  HUNTER, Neil Peter
  v
  WHITE, Graeme Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 15/2002
DELIVERED ON:  25 September 2002
DELIVERED AT:  Launceston
HEARING DATE/S:  12 September 2002
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Magistrates - Appeal from and control of magistrates - Tasmania - Motion to Review - The hearing - Review of sentence - Principles applicable - Totality and proportionality principles - Sentences of imprisonment and licence disqualification - Whether sentences manifestly excessive - Driver with bad record - Consideration of aggregate sentences.

Road Safety (Alcohol and Drugs) Act1970 (Tas)

Wise v R [1965] Tas SR 196; Peck v Visser [1999] TASSC 38; Jarvis v Brown 120/1998, followed.

Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  W G Tucker
             Respondent:  J P Ransom
Solicitors:
             Appellant:  Grant Tucker
             Respondent:  Director of Public Prosecutions

Judgment ID Number:  [2002] TASSC 72
Number of paragraphs:  15

Serial No 72/2002

File No LCA 15/2002

NEIL PETER HUNTER v GRAEME ROSS WHITE

REASONS FOR JUDGMENT  COX CJ
  25 September 2002

1. The applicant was sentenced on his plea of guilty to no less than 24 summary offences contained in eight complaints to a total period of imprisonment for three years, he was disqualified from holding or obtaining a licence to drive a motor vehicle for nine years and two months with effect from his release from prison, and was fined a total of $1,560.  In addition he was ordered to pay court costs in excess of $200 and levies under the Victims of Crime Compensation Act 1994, also in excess of $200. The penalties imposed in respect of each offence are set out in the following table in the column headed "Penalty".

Date of Offence	Charge	Breach of	Penalty
12/12/01	Exceed speed limit of 110kph in higher speed zone (126kph)	reg7(2)(b) Traffic (General and Local) Regulations 1956	3 demerit points $110 fine
Drive whilst disqualified	s13(1) Vehicle and Traffic Act 1999	4 months' imprisonment 8 months' disqualification
14/01/02	Drive whilst disqualified	s19A(1) Road Safety (Alcohol and Drugs) Act 1970	4 months' imprisonment (cumulative) 8 months' disqualification (cumulative)
Negligent driving	s(2) Traffic Act 1925	12 months' disqualification (cumulative) $400 fine
Fail to comply with duties of a driver involved in a crash	reg287(1) and (2) Traffic (Road Rules) Regulations 1999	6 months' disqualification (cumulative) $250 fine
15/01/02	Destroy or injure property	s37(1) Police Offences Act 1935	6 months' imprisonment (cumulative) Global sentence imposed for offences committed on 15/01/02
Loiter in or near a public place with intent to commit a crime	s7(1)(b) Police Offences Act 1935	Global sentence
State false name and address	s55A(1) Police Offences Act 1935	Global sentence
Burglary	s244 Criminal Code 1924	Global sentence
Burglary	s244 Criminal Code 1924	Global sentence
Burglary	s244 Criminal Code 1924	Global sentence
30/01/02	Fail to comply with conditions of Probation Order	ss37(1)(d) and 42(1)(a) Sentencing Act 1997	2 months' imprisonment (concurrent) Probation Orders revoked

Between 03/01/02 and 27/01/02	Fail to comply with conditions of Probation Order	ss37(1)(g) and 42(1)(a) Sentencing Act 1997	Global sentence - see above
20/02/02	Fail to appear	s5(4) Bail Act 1994	1 month's imprisonment (concurrent)
09/03/02	Exceed 0.05% (0.151%)	s6(1) Road Safety (Alcohol and Drugs) Act 1970	8 months' imprisonment (cumulative) 48 months' disqualification (cumulative)
Drive whilst disqualified	s19A(1) Road Safety (Alcohol and Drugs Act 1970	4 months' imprisonment (cumulative) 8 months' disqualification (cumulative)
Drive while alcohol in body no authority (0.151%)	s6(2) Road Safety (Alcohol and Drugs Act 1970	Dismissed
27/03/02	Drive whilst disqualified	s19A(1) Road Safety (Alcohol and Drugs) Act 1970	4 months' imprisonment (cumulative) 8 months' disqualification (cumulative)
Give particulars likely to mislead	s41(1)(a) Traffic Act 1925	$250
Exceed 0.05% (0.096%)	s6(1) Road Safety (Alcohol and Drugs) Act 1970	Dismissed
Drive while alcohol in body no authority (0.096%)	s6(2) Road Safety (Alcohol and Drugs Act 1970	4 months' imprisonment (cumulative) 12 months' disqualification (cumulative)
Use unregistered motor vehicle on public street	s27(1) Vehicle and Traffic Act 1999	$150 fine
Using a motor vehicle with no premium cover	s29(1) Motor Accident (Liabilities and Compensation) Act 1973	$150 fine
Dishonestly use a number plate to create false impression that vehicle was registered	s64(3)(c) Vehicle and Traffic Act 1999	$250 fine
01/04/02	Breach of bail requirements	s9 Bail Act 1994	2 months' imprisonment (cumulative)
Destroy or injure property	s37(1) Police Offences Act 1935	Global sentence

1. The applicant seeks review of the orders whereby a learned magistrate sentenced him to a total period of imprisonment of three years and a period of nine years' [sic] disqualification on the following ground:

"The magistrate erred in fact and in law in that the cumulative period of imprisonment of three years and disqualification of nine years [sic] was manifestly excessive in all the circumstances."

1. It will be seen from the dates set out in the above table that in a period of approximately four months the applicant committed a series of serious offences, not only against the laws of this State which are aimed at protecting road users against irresponsible or unsafe drivers and those designed to protect their property against dishonest persons, but also in contravention of orders of the courts of this State such as bail and probation orders, and orders of disqualification having the effect of prohibiting him from driving a motor vehicle on a public street under any circumstances.  On each occasion when he drove in contravention of the order of disqualification his manner of driving itself constituted a further offence. 

1. On 12 December 2001 he drove while disqualified near Ulverstone at a speed of 126 kph which exceeded by 16 kph the maximum speed permitted on that section of the road.  A month later on 14 January 2002 he again drove while disqualified, this time at a speed of 135 kph in a 60 kph zone, more than double the maximum speed permitted.  In addition, though he collided with another vehicle travelling in the same direction causing substantial damage to both vehicles and minor injury to the other driver, he failed to report the accident or to supply any personal particulars to any person who was present.  On 9 March 2002 he drove while disqualified a third time, with a blood alcohol reading of .15 per cent, and on 27 March 2002 he drove while disqualified for a fourth time, with a blood alcohol reading of .096 per cent.  The car was unregistered and uninsured.  It had a false number plate and he gave misleading particulars to a police officer on his apprehension.

1. In addition to the driving offences he failed to report a change of address to his probation officer during the month of January 2002 and failed to report to that officer on 30 January 2002 in breach of a probation order then in force.  On 20 February 2002 he failed to appear in court in accordance with a condition of bail and on 1 April 2002 he broke a condition of his bail which imposed a curfew upon him.  On the same occasion he was arrested and placed in a cell at Burnie where he ripped up a blanket and endeavoured to choke himself.  He had to be subdued with capsicum spray.  The only relevant charge was however destroying property. 

1. On 15 January 2002, at about 1.30 in the morning, police received a call to attend at Deloraine in relation to a person breaking into a telephone box.  On attending they discovered that damage had been caused and that there was some blood in the area of the phone box.  About half an hour later they located the applicant who was observed to have blood on his hands and was in possession of a wheel brace.  He admitted that he was responsible for the damage to the telephone box and, when three vehicles were found in the area with their windows broken, he admitted to having burgled the vehicles although he did not steal anything from them.  In addition he provided a false name to the police. 

1. Apart from his plea there was little said, or which could be said, in mitigation of his behaviour.  His counsel only put to the learned magistrate that the applicant had about a month before his apprehension on l April 2002 separated from his partner.  As he had "put a lot of effort and hope into that relationship" and it had not come to fruition, he had, "in his own words", gone "off the rails and proceeded to drink alcohol fairly heavily."  Counsel said that "his attitude at that time was that he didn't really care about anything".  He asked the learned magistrate to take into account his plea, the period of over two months he had been in custody, and his general cooperation with the authorities in as much as he had admitted his involvement in the burglaries and the fact that he was a disqualified driver.  To the extent that the fact that his emotional turmoil induced an attitude of indifference can be said to be a mitigating factor, it only operated on the offences committed after the end of February and was irrelevant to the numerous earlier offences.  The learned magistrate did take into account his time in custody by backdating the sentences of imprisonment to the date he was taken into custody.  His admissions were, on occasion, preceded by assertions of a false identity.

1. The applicant is 31 years of age.  He has an atrocious record.  He has 20 prior convictions for stealing, seven for burglary, five for attempted motor vehicle stealing and one for robbery.  He has seven prior convictions for injury to property and 11 prior convictions for breach of bail or failing to appear.  He has been convicted of eight previous offences of exceeding the permitted blood alcohol level in his body while driving, contrary to either s6(1) or s6(2) of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), and of driving while disqualified in contravention of that Act or of the Traffic Act 1925, 13 times. In addition he has one conviction for refusing to undergo a breath test contrary to the Act, s14. He has one previous conviction for negligent driving and three for dangerous driving. He has been a persistent chronic offender since 1988 who has shown no indication of any reform in his conduct or attitude. He represents a significant danger to other road users and a threat to the property of others. He exhibits total indifference to, if not deliberate defiance of, the orders made by courts in an endeavour to control his dangerous and anti-social behaviour. It is little wonder that the learned magistrate felt compelled to impose so severe a sentence of incarceration and so long a period of disqualification.

1. Was the sentence in these respects manifestly excessive as claimed?  It is not suggested by counsel for the applicant that the individual sentences imposed were inappropriate in themselves.  The contention is that having regard to the "totality principle" the aggregate sentence imposed was disproportionate to the totality of his offending.  That principle is well understood and has been expounded upon and applied many times (Mill v R (1988) 166 CLR 59; Hyland v R an unreported decision of my own A82/1996; Peck v Visser, Wright J, [1999] TASSC 38). The last mentioned case has many similarities to the present. There the applicant aged 34 was a persistent offender against the Act having accumulated 10 prior convictions for exceeding the permissible blood alcohol content, on three occasions with levels in excess of 0.20 per cent, and six prior convictions for driving while disqualified. He received an aggregate sentence of three years' imprisonment and was disqualified for eight years to commence at the expiration of a then current disqualification order of six years, which had some 2½ years to run for three incidents occurring on 1 November 1997 and 13 and 17 September 1998. In those incidents the applicant had driven while disqualified with blood alcohol readings of .166 per cent, .20 per cent and .219 per cent. Wright J dismissed the appeal in respect of the period of incarceration, but varied the disqualification order so as to permit the eight year to run from the date of conviction concurrently with the unexpired portion of the previous disqualification order. His decision was affirmed on appeal to the Full Court (Peck v Visser [1999] TASSC 90). In dismissing Peck's appeal the Court said:

   "Three years' imprisonment in all, for a number of driving offences in which no-one suffered injury may seem a heavy penalty, but the offences were serious, not only in respect of their potential to cause harm to other road users by driving with high levels of alcohol in the blood, but also in respect of their disregard for court orders which had previously been made prohibiting driving at all. 

   ...

   In this case there was every justification for the imposition of a sentence which paid due regard to the factors of retribution, deterrence and the protection of society.  The appellant has continued to offend notwithstanding the imposition of a variety of penalties ranging from leniency, in the form of fines, probation orders, suspended sentences of imprisonment and community service orders, to actual sentences of imprisonment of increasing severity.  The pattern of his offending has been consistent throughout 18 years.

   In our opinion the imposition of a total period of three years' imprisonment is not disproportionate to the gravity of the appellant's conduct taken as a whole and accordingly the appeal must be dismissed."  (At pars4, 6 and 7)

2. In my opinion the same can be said with equal, if not more force, in the present case. 

1. There remains the question of the length of the applicant's disqualification for holding or obtaining a licence to drive a motor vehicle.  The learned magistrate in summarising his orders referred to a period of disqualification of nine years to commence from the release of the applicant from prison.  In fact the individual periods of disqualification imposed by him and recorded on the complaints amounted to nine years and two months from the same point of time.  Subject to the possibility of earlier release on parole or by virtue of remission of his sentences, the applicant was effectively prohibited from driving for 12 years and two months from the date of his incarceration on 1 April 2002.  However, having said that, as the period of disqualification which is concurrent with actual imprisonment is neither protective of the public nor a deterrent in itself to the offender, it is more realistic to focus upon the period of time after release into the community that an offender is disqualified from driving, for that is the time during which obedience of the disqualification order gives the public protection from a person who has shown himself to be an irresponsible driver; it is the time when such obedience will hurt the offender most; and it is the time when disqualification will impact most on his chances of rehabilitation. 

1. Very long periods of disqualification have been criticised by courts in the past as smacking of retribution and as counterproductive.  Thus in Wise v R [1965] Tas SR 196 a disqualification for 15 years imposed on a 20 year old offender for three bad incidents of dangerous driving within a short period of time was reduced to five years. At 204, Crisp J, said:

"For myself I think a period of fifteen years is in the circumstances too long.  I agree that the circumstances of these offences called for a punishment strongly deterrent in its effect.  That element is present in the aggregate sentence of twenty-one months' imprisonment.  To add to that a penalty of fifteen years deprivation of a licence to drive, savours to me excessively of retribution and is likely I think to be unduly restrictive of the offender's future rehabilitation and possible reception into society.  While it is right that licences should be taken away, it can in working men be a severe penalty, particularly in those cases where a man's livelihood may depend on it."

Crawford J and Neasey J expressed similar sentiments (at 208 and 210).  See also Nation v Carrick A7/1983 (Everett J); O'Brien v R A43/1987 (CCA) and Jarvis v Brown 120/1998, where Evans J said, at page 5:

"The Court's power to disqualify drivers is an important road safety tool.  The threat of a licence disqualification is a major deterrent to the great majority of drivers and actual disqualifications frequently prompt drivers to desist from unsafe driving.  Licence disqualifications can protect the community by keeping potentially dangerous drivers off the road.  Some protection is also obtained in relation to those who drive regardless of their disqualification in that police officers and others who are aware of the situation can take steps to bring about compliance and the imposition of further penalties.  In a sense, it does not make a lot of difference whether recidivists who receive disqualification are disqualified for six years or sixteen years.  They are likely to re-offend early in the period of their disqualification and be saddled with the consequences of their behaviour.  As to others, it is important that the length of their disqualification should not be so great as to offer little or no hope.  Where an offender has not exhausted the Court's hopes for his or her reform, where possible, the period of disqualification should encourage reform."

The period of 16 years' disqualification in that case was reduced to six years for three instances of drink driving with high readings by a person with four prior such convictions, but who had shown some slight signs of reform which his first sentence of actual imprisonment might be expected to encourage. 

1. The possible ineffectiveness of disqualification on a persistent offender who, like the applicant, has been undeterred by previous frequent and lengthy periods of disqualification and of imprisonment, does not seem to me with respect to require the reduction of a period of disqualification imposed for the protection of the public.  That would be a counsel of despair and might with equal logic call for short periods of disqualification in the case of persons of limited intellect who might also pay little regard to a long period of disqualification.  Nevertheless, long periods of disqualification (12 years and life) were imposed on two such offenders (R v Koeppen A101/1982 and Paynter v R 95/1964).  The former was substituted by the Court of Criminal Appeal on a Crown appeal for one of four years and in the latter case the trial judge's order in respect of disqualification does not appear to have been challenged on appeal.  Nevertheless, there no doubt comes a point when the length of disqualification is so great as to become wholly disproportionate to the gravity of the criminal behaviour and may not be justified even on the grounds of protecting the public (cf Veen v R [No 2] (1987 - 1988) 164 CLR 465).

1. In my opinion a lengthy period of disqualification was justified in this case.  Unlike the applicant in Jarvis v Brown (supra) the present applicant has shown no inclination towards reform of his conduct which has not been confined to irresponsible driving induced by addiction to alcohol, but has embraced a wide field of unlawful behaviour which shows no sign of abating.  Jarvis' disqualification was reduced to six years from the date of his conviction concurrent with a sentence of 13½ months' imprisonment.  If he received parole the period of disqualification after release could have been in the order of five years six months.  Likewise in Peck v Visser (supra) the period was eight years from conviction but would have had practical operation for five years from his release after having served a three year prison sentence or up to about 6½ years had he been given parole.  The applicant's conduct justifies a longer effective period of disqualification than either Jarvis or Peck.

1. An appellate court does not interfere with the very wide discretion entrusted by law to a magistrate save in cases of clear error.  (Whittle v McIntyre [1967] Tas SR NC6).  But a period of disqualification operating for over nine years after the applicant's release from prison is to my mind of such length as to bespeak error.  In my view the motion to review should be allowed to the extent that the period of disqualification should be reduced to seven years from the applicant's release from prison, but the motion should otherwise be dismissed.