Jamieson v State of Tasmania

[2015] TASSC 50

[2015] TASSC 50

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Jamieson v State of Tasmania [2015] TASSC 50

PARTIES:  JAMIESON, Zane Michael
  v
  STATE OF TASMANIA

FILE NO:  LCA 242/2015
DELIVERED ON:  30 October 2015
DELIVERED AT:  Hobart
HEARING DATE:  26 October 2015
JUDGMENT OF:  Pearce J

CATCHWORDS:

Traffic Law – Offences – Particular offences – Driving in a manner dangerous to public – Penalty – Persistent offender – Sentence not manifestly excessive.

Traffic Act 1925 (Tas), s 32(1).
Aust Dig Traffic Law [1114]

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentencing orders – Dangerous driving, driving while disqualified and dishonesty – Sentence not manifestly excessive – Totality.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  P Monk
             Respondent:  H Denton
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions (Acting)

Judgment Number:  [2015] TASSC 50
Number of paragraphs:  24

Serial No 50/2015

File No LCA 242/2015

ZANE MICHAEL JAMIESON v STATE OF TASMANIA

REASONS FOR JUDGMENT  PEARCE J

30 October 2015

1. The applicant, Zane Jamieson, moves this Court to review sentences imposed by a magistrate, Mr S Mollard, on 19 March 2015, on the ground that the sentences are manifestly excessive. The applicant pleaded guilty to offences committed on six different days between 7 January 2015 and 31 January 2015:

   ·     six counts of driving while disqualified (Vehicle and Traffic Act 1999, s 13(1));

   ·     one count of driving a motor vehicle while a prescribed illicit drug, methylamphetamine, was present in his blood (Road Safety (Alcohol and Drugs) Act 1970, s 6A(1));

   ·     three counts of driving a motor vehicle which was unregistered (Vehicle and Traffic Act, s 27(1));

   ·     three counts of driving a motor vehicle which was uninsured (Motor Accidents (Liabilities and Compensation) Act 1973, s 29(1));

   ·     one count of dangerous driving (Traffic Act 1925, s 32(1));

   ·     one count of evading police (Police Powers (Vehicle Interception) Act 2000, s 11A(1));

   ·     one count of motor vehicle stealing (Police Offences Act 1935, s 37B(1));

   ·     five counts of burglary (Criminal Code, s 244);

   ·     one count of attempted burglary; and

   ·     three counts of stealing (Criminal Code, s 234).

2. The magistrate divided the offences into categories and imposed three sentences, the total effect of which was imprisonment for three years from 30 January 2015, six months of which were suspended for two years from the date of release. His Honour ordered that the applicant not be eligible for parole until he had served 16 months of the term of imprisonment. In addition the magistrate disqualified the applicant from driving for four years from his release.

The circumstances of the offending

1. Throughout the relevant period the applicant was disqualified from driving by operation of court orders. On 7 January 2015 he drove in Glenorchy. He drove again only four days later, on 11 January 2015, in Salamanca Place. The car he was driving was unregistered and uninsured. He told the police that he had smoked Ice before driving. Analysis disclosed the presence of methylamphetamine in his blood. On 17 January 2015 he drove again, this time at 9pm at Bridgewater. The car he was driving was unregistered and uninsured. On 29 January 2015 he drove in Glenorchy at about 1am, in an unregistered and uninsured car.

2. At about 1.30am on 30 January 2015 the applicant drove along the Lower Domain Highway to the wall of the Botanical Gardens. He was with a female. They climbed the wall and entered the gardens. After switching off the power at the main switchboard they scaled a ladder to an open window at the rear of the restaurant and went inside. After searching around they found and removed a small safe containing $2,500. He was identified some days later as the offender from fingerprints found at the scene. When interviewed he admitted what he had done and told the police he had prised open the safe and removed the money.

3. At 6.30am on 31 January 2015 the applicant and one other person went to an industrial property at 39 Chapel Street in Glenorchy. They searched a shed and then entered the office through an unlocked door. They ransacked the office and stole a computer, a drill, a pick axe and a toolbox containing tools worth $1,120. After leaving the building they entered and searched through three unlocked trucks parked nearby but found nothing to steal. They unsuccessfully attempted to break into a utility also parked nearby, in the course of which they damaged the locks they tried to force. They then broke into a commercial van parked in the same car park. The applicant's associate used scissors to start the van, and the applicant drove off with his associate as a passenger. He drove to a petrol station in Moonah from where he left without paying for the $30 worth of petrol he put in the van. By this course of conduct the applicant committed four burglaries, one attempted burglary, one motor vehicle stealing and two counts of stealing.

4. Not long afterwards, at about 9am, the applicant was seen by police driving the stolen van in Elizabeth Street, North Hobart. They followed him into the shopping precinct area. They activated their lights and sirens but he drove off, thereby evading them. He drove in a southerly direction down Elizabeth Street, driving onto the incorrect side of the road to avoid the police. After continuing down Elizabeth Street he turned left onto Melville Street and then left again into Campbell Street. Campbell Street is a one-way street for south-bound traffic, and so the applicant drove in the wrong direction against the oncoming one-way traffic. After driving for a block against the traffic in that manner, the applicant turned right onto Brisbane Street and then onto the Brooker Highway. He drove on the highway to the intersection with Risdon Road where the police successfully deployed road spikes. Despite this he continued to drive north along the highway for a kilometre or so, including by driving onto the incorrect side of the Brooker Highway into oncoming traffic where other cars had to take evasive action to avoid a collision. His vehicle then collided with an oncoming vehicle. The van he was driving then left the road and crashed into a wire mesh fence surrounding a children's playground. He attempted to run off but was quickly arrested. By his conduct he committed the offences of driving while disqualified, evading police and dangerous driving.

The applicant's record and personal circumstances

1. At the time of the offending the applicant was 23. For a young man he has a very poor record of offending. On 22 April 2010 he was sentenced to a wholly suspended period of detention for serious driving offences committed as a youth, including two counts of driving while disqualified, four counts of driving with an alcohol concentration in excess of the prescribed limit, and two counts of driving with a prescribed illicit drug in his blood. In November 2011 he was sentenced to a partly suspended term of imprisonment for burglary and stealing and unlawfully setting fire to property. Following his release he continued to offend although he was subject to a probation order. On 11 December 2012 he was given sentences totalling nine months' imprisonment, four months of which were suspended, for numerous dishonesty and driving offences, including one count of dangerous driving and two counts of evading police. The earlier suspended detention order and suspended sentences were, either then or soon afterwards, activated.  He was again subject to probation following his release but his offending quickly resumed. On 19 November 2013 he was sentenced for offences including three counts of driving while disqualified (on three separate occasions), one count of evading police and one count of dangerous driving. He was sentenced to 12 months' imprisonment, and ordered to serve the four-month suspended sentence imposed in December 2012. He was released from prison on 29 August 2014 subject to a probation order for six months.

2. The magistrate was told that the applicant was educated to grade 9. He left school at 15 and worked in a kitchen in a hotel while undertaking technical qualifications in hospitality. He lost his position when he was 18 because of his criminal behaviour. Before being remanded in custody on 30 January 2015, he had been living with his mother and two sisters. Both his sisters suffer from ill health. From his early teens the applicant abused cannabis and alcohol. While in prison in 2014 he was introduced to methylamphetamine. For the period during which these offences were committed, he was affected by the drug, which he had been using heavily. For that reason he says that his recollection is "hazy". While in custody he has been prescribed suboxone and has ceased illicit drug use. He hopes on his release to undertake a professional rehabilitation program and has the support of his grandparents.

The sentences

1. The learned magistrate divided the offences into three categories and imposed a sentence for each category:

   ·     The first sentence imposed by his Honour was for the offences of driving while disqualified on 7, 11, 17, 29 and 30 January 2015, that is, five out of the six counts of that offence faced by the applicant, as well as the offence of driving with an illicit drug in his blood on 11 January 2015. The remaining count of driving while disqualified, on 31 January 2015, was included in another sentence. For these offences the magistrate imposed one sentence, a term of imprisonment for 12 months and disqualification from driving for two years from release.

   ·     The second sentence was imposed for driving while disqualified, evading police and dangerous driving on 31 January 2015. For those offences the magistrate imposed a term of imprisonment of 12 months and disqualification from driving for 18 months.

   ·     The third sentence was for the offences of dishonesty committed on 30 and 31 January 2015. They comprised five counts of burglary, one count of attempted burglary, three counts of stealing and one count of motor vehicle stealing. His Honour ordered a term of imprisonment of 12 months, six months of which were suspended for two years, and disqualification from driving for six months.

2. The three sentences were ordered to be served cumulatively, both as to the terms of imprisonment and the periods of disqualification from driving. For the minor offences not made subject to one of the principal sentences, a conviction was recorded without further penalty. His Honour did not make a parole order for each sentence. Rather, he expressed a non-parole period by reference to the total effect of the sentences he imposed. I think that the learned magistrate, having properly decided to impose separate cumulative sentences, should have ordered separate non-parole periods. However, there is no challenge to the manner in which his Honour dealt with that aspect of the sentence, and it makes no material difference because the non-parole periods would also have been cumulative: Corrections Act 1997, s 71(2).

3. The learned magistrate's sentencing remarks were relatively brief. He referred in general terms to the applicant's record and the nature of the offences for which he was to be sentenced, and continued:

   "It is really very clear that a lengthy sentence of imprisonment must be imposed in the interests, hopefully, finally deterring the defendant. Certainly in the interests of making the public safe with the defendant in prison that he would be out of it – it would be out of it – and hopefully, in the interests of rehabilitation. I am fully aware of the fact that this is a harsh one, but nothing else will do."

4. His Honour noted his expectation that the parole order he made would mean a "regime that's akin to probation" on the applicant's release.

Manifestly excessive

1. I recently summarised the principles to be applied in determining a motion to review on the ground of manifest excess or inadequacy in Barrett v Wilson [2015] TASSC 3. This Court sits to correct clear error. It must not substitute its own opinion for that of the sentencing magistrate, who has a wide discretion. The appeal cannot succeed unless the sentence imposed is unreasonable or plainly unjust; so obviously excessive that some error in the exercise of the sentencing discretion can be implied: Bresnehan v The Queen (1992) 1 Tas R 234 at 246 [13]; Visser v Smart [1998] TASSC 151; Lusted v Kenway (2008) 50 MVR 533 at 539 [38]. The expression of manifest excess or manifest inadequacy is a conclusion formed by giving regard to all the matters that are relevant to determining the sentence: Hili v The Queen (2010) 242 CLR 520 at 539.

Are the sentences manifestly excessive?

1. I would first make some general comments which apply across each of the sentences. The magistrate was correct to conclude, as he obviously did, that punishment, specific deterrence and protection of the public were very important sentencing considerations. The magistrate said that the applicant "has one of the most extraordinarily bad records which I have ever seen for a man of his age". With respect to him, that comment is something of a rhetorical flourish. I have seen much worse records for much more serious offences, and I suspect that the learned magistrate has as well, but he was correct to point out that the applicant had a poor record for this type of offending. The applicant was not to be punished for his record but it indicated a need for a sentence of personal deterrence and protection of the public. The applicant is still a relatively young man, but he is no longer so young as to be entitled to the sort of mitigation a youthful offender, especially one with a better record, may have attracted. He had repeatedly spurned the opportunities for reform offered to him in the past through probation and suspended sentences. His drug addiction was not a mitigating factor. There were, however, some mitigating factors. Mitigation arose from his plea of guilty and his admissions to the police. Although there was little prospect of acquittal for the most serious driving offences, some charges were based principally on his admissions, which led to a substantial reduction in the amount of investigative and court resources required. All hope of rehabilitation is not lost. He did, for a period, demonstrate an ability to hold down employment. He has the support of his grandfather in the community. He had shown some capacity to abstain from illicit drug use from time to time but had relapsed.

2. Considered individually, I am not persuaded that any of the sentences his Honour imposed are manifestly excessive. They do not demonstrate clear error. None is unreasonable or plainly unjust, and thus demonstrative of error, when all matters relevant to sentence are to be taken into account. Each is within the wide latitude to be allowed to the magistrate when exercising his or her sentencing discretion.

3. I first deal with the sentence imposed for the five counts of driving while disqualified and one count of driving with methylamphetamine in his blood. It was, as the magistrate recognised when referring generally to his sentencing orders, a harsh sentence. Counsel for the applicant submitted it was manifestly excessive. However, I do not think it so harsh as to disclose error. At the time of sentence, the applicant had six prior convictions for driving while disqualified, four as an adult and two as a youth. Three of those prior convictions were committed in mid-2013 and formed part of the sentence of imprisonment imposed on 9 November 2013 from which he was released on 28 August 2014, only a few months before these offences. In Barrett v Wilson I explained why driving while disqualified is a serious offence, particularly for repeat offenders. Because it was not the applicant's first offence of driving while disqualified, each count for that offence was punishable by a fine not exceeding 80 penalty units, imprisonment for a term not exceeding 12 months (or both), and disqualification from driving for a period not exceeding five years: Vehicle and Traffic Act, s 13(1). Higher penalties for repeat offenders disclose a legislative intention that harsher sentences should be imposed on those who are not sufficiently warned or deterred by earlier sentences: Cashman v Jordan [2009] TASSC 112. The record of this applicant distinguishes him from the successful applicant in Cashman. The applicant continued to drive despite his record and despite being repeatedly caught by the police over a period of only a few weeks. He had no explanation for driving which provided any mitigation: Parker v Whiteman [2012] TASSC 17. The applicant's repeated driving showed contempt for the court order that he not drive, and disregard for the law. Sentences should uphold the force and effect of orders of disqualification. On one occasion of his driving the applicant had methylamphetamine in his blood because he had smoked Ice before driving. By doing so he posed a risk to the public. He had six prior convictions under the Road Safety (Alcohol and Drugs) Act, either s 6 or s 6A(1), although there had been a gap of about six years since those offences, which were committed over a relatively short period in 2009 when he was a youth.

4. I next deal with the sentence imposed for driving while disqualified, evading police and dangerous driving on 31 January 2015. The applicant concedes that this sentence is not, taken on its own, manifestly excessive. In my view, with respect, the concession is properly made. The sentence imposed was clearly not beyond the limits of the magistrate's sentencing discretion. A higher sentence would not have disclosed error. The applicant had three prior convictions for evading police and two for dangerous driving, the most recent of which was committed on 30 July 2013. Because it was not the applicant's first offence for dangerous driving, that offence was punishable by a fine not exceeding 40 penalty units, or to imprisonment for a term not exceeding four years, or both. The level of danger posed by the manner of his driving on 31 January 2015 was very high. The driving continued for a considerable period and involved many separate incidents of danger. He flouted the authority of the police and their attempts to stop him. The driving was in busy locations and at a time when vehicular and pedestrian traffic would be heavy. His driving put at risk police officers as well as other members of the public. He drove through intersections, onto the incorrect side of roads and the wrong way up a busy one-way street. Other road users were required to take evasive action because of his driving. He collided with another vehicle. The magistrate was not told whether there was any injury or property damage resulting from that collision, and so I infer that there was not. However the risk of catastrophe is obvious. He continued even after tyres had been spiked and deflated, and ceased only when the van he was driving crashed into a fence surrounding a children's playground. He had ample opportunity to stop before then but did not do so. He was more concerned about his own efforts to escape apprehension than the safety of others. Because this offence is commonly committed by young persons, his age provides no mitigation. A strong sentence of general and specific deterrence was called for: Sheldrick v The Queen 41/1960; Wise v The Queen [1965] Tas SR 196; R v O'Brien [1987] TASSC 47; Hunter v White B38/1994 at 9.

5. The final sentence was for the offences of dishonesty committed on 30 and 31 January 2015. His Honour ordered a term of imprisonment of 12 months, six months of which were suspended for two years, and disqualification from driving for six months. As an adult he had six prior convictions for stealing, one for aggravated burglary and seven for burglary, all committed in 2011 and 2012. Counsel for the applicant submitted that this sentence was manifestly excessive. She argued that the value of the goods stolen was not large and that the applicant's conduct was not atypical of the types of offences of dishonesty committed by persons affected by illicit drugs which mostly attract lesser sentences. That may be so. It is a harsh sentence but, on its own, it does not disclose error. It is not to be overlooked that the offences included the count of motor vehicle stealing for stealing the van. The offence of "motor vehicle stealing" involves the unlawful use of a motor vehicle, and is subject to a maximum penalty of three years' imprisonment and/or a fine of 50 penalty units: Police Offences Act, ss 37B and 37E. The vehicle was damaged, although the magistrate was not informed of the extent of the loss. With the applicant's bad record for dishonesty, even if not for motor vehicle stealing, a significant sentence of imprisonment would have been appropriate for just that offence. The applicant was to be sentenced for two separate incidents of criminality. In both cases the applicant displayed a callous disregard for the personal and property rights of others, having not been deterred by sentences imposed in the past for similar offending.

Totality

1. The applicant's principal submission is that, even if the individual sentences imposed by the learned magistrate are not manifestly excessive, the total effect of them is manifestly excessive. I have found this question more difficult to resolve. By ordering the sentences he imposed to be served cumulatively, the result was a total head sentence of three years' imprisonment, six months of which were suspended. The principle of totality was recently reviewed by Wood J in Young v Wilson [2015] TASSC 16 and by me in Hall v Tasmania [2015] TASCCA 6. It requires a sentencing court, as the final step in the sentencing process, to review the effect of multiple sentences to consider whether the aggregate represents a just and appropriate measure of the overall criminality involved: Contin v The Queen [2012] VSCA 247 at [38]. The effect of application of the principle of totality is to reduce the sentence which an offender would otherwise receive. In terms approved of by the High Court in Mill v The Queen (1988) 166 CLR 59 at 63, the principle was described in Thomas, Principles of Sentencing, 2^nd ed (1979), 56-57 as follows:

   "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong; when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."[references removed]

2. See also the judgment of McHugh J in Postiglione v The Queen (1997) 189 CLR 295 at 307–308.

3. It was important that the applicant be punished for the criminality involved in his conduct. The magistrate correctly identified the separate criminality involved in the categories of offences which formed the basis of his sentences. I think the learned magistrate would have been justified in ameliorating the total effective term by making one or more sentences concurrent, at least in part: Pearce v The Queen (1998) 194 CLR 610 at 623-624. Such a course may have reflected the extent to which instances of the conduct to some extent overlapped and represented different facets of the same course of criminal conduct. However the Court should not be distracted from the only issue raised by this ground of the motion, that is whether the total sentence imposed by the magistrate is so excessive as to clearly demonstrate error. In Brown v Tasmania [2011] TASCCA 6, the Court of Criminal Appeal reviewed a sentence imposed by a judge on an 18 year old appellant for multiple driving and dishonesty offences and assault. Counsel for the applicant relied on the passage of the Court's judgment at [27], where, after describing the totality principle, the Court said:

   "If it were a simple matter of arithmetic, the sentences we have suggested for the various sub-groups of offences could be totalled and a head sentence of four years' imprisonment would be seen as justified. A mechanical arithmetical calculation would produce a global sentence in the range of 43 to 49 months. However, once one makes allowance for the 'totality principle' as discussed in Mill, the result, in our view, is that a sentence in that range would be so disproportionate to the totality of his offending as to be manifestly excessive."

4. In Brown, the Court of Criminal Appeal reduced the appellant's sentence to imprisonment for three years with a non-parole period of 18 months. Beyond the passage from the judgment just quoted to illustrate the application of the totality principle, the decision does not assist the applicant. Comparison with individual cases is to be treated with caution. There were some aspects of the offending in that case which were more serious, including assaults committed by driving at police officers. On the other hand the appellant in Brown was a very young man with a record which was not as bad. In contrast with this applicant he was "not someone who had served a lengthy prison sentence and then re-offended": Brown at [28]. In general, however, the remarks of the Court about the range of sentences for dangerous driving, motor vehicle stealing, and driving while disqualified, as well as the ultimate sentence determined by the Court to be the appropriate one, do not suggest that the total sentence imposed by the magistrate in this case is unreasonable or plainly unjust so as to demonstrate error.

5. In this case the non-parole period did not make the sentence manifestly excessive. It was only one month longer than the shortest possible non-parole period permitted by the Sentencing Act 1997, s 17(3). The magistrate allowed for the applicant's youth and prospects of reform by suspending part of the sentence and permitting parole after close to the minimum period.

Result and order

1. I am not satisfied that the sentences imposed by the learned magistrate are manifestly excessive, either individually or in the aggregate. The single ground of the motion is not made out. The motion to review is dismissed.