Kenway v Lusted

[2007] TASSC 71

[2007] TASSC 71

CITATION:            Kenway v Lusted [2007] TASSC 71

PARTIES:  KENWAY, Phillip Douglas
  v

LUSTED, Sergeant Gary

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 289/2007
DELIVERED ON:  10 September 2007
DELIVERED AT:  Launceston
HEARING DATE:  3 September 2007
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Sentence of imprisonment, fine and licence disqualification for driving under influence – Whether sentence manifestly excessive.

Briant v Bessell (1974) 74 A Crim R 204, approved.

Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  E G Hughes
           Respondent:  J P Ransom
Solicitors:
           Applicant:  Legal Aid Commission of Tasmania
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2007] TASSC 71
Number of paragraphs:  13

Serial No 71/2007

File No LCA 289/2007

PHILLIP DOUGLAS KENWAY v SERGEANT GARY LUSTED

REASONS FOR JUDGMENT  CRAWFORD J
  10 September 2007

1. The applicant moved the Court to review a sentence of a magistrate, Mr P H Wilson, imposed at Launceston on 18 June 2007.  The sole ground of the motion was that the sentence was manifestly excessive. 

1. He pleaded guilty to driving a motor vehicle while alcohol was present in his breath in a concentration greater than the prescribed concentration of .05 grams in 210 litres of breath, contrary to the Road Safety (Alcohol and Drugs) Act 1970, s6(1). His concentration at the time was .2 grams. He also pleaded guilty to driving under the influence of intoxicating liquor, contrary to s4. As the charges arose out of the same circumstances, the first charge was dismissed but the learned magistrate had regard to the concentration of alcohol when sentencing the applicant on the second charge. He was sentenced to imprisonment for three months, fined $3000 and disqualified from driving for two years six months.

1. The facts are that at about 4pm on 11 June 2007 police received a report of a vehicle travelling in a dangerous manner in a northerly direction on the Midland Highway south of Campbell Town.  A short time later police found the vehicle about three kilometres south of Campbell Town and followed it.  It was seen to veer from the left shoulder of the roadway, across the centreline and into the southbound lane.  It then swerved back and forth across the roadway.  It was intercepted by the police vehicle approximately one kilometre south of Campbell Town.  The applicant smelt strongly of alcohol.  He was unsteady on his feet, his eyes were bloodshot and glassy and his speech was slurred.  The police officers formed the opinion that he was drunk.  He was taken to the police station at Launceston and a reading of .20 was obtained.  He had intended to drive a distance well in excess of 200 kilometres from the south of the State, where he had been living, to embark on the Spirit of Tasmania at Devonport.  At the time of the offence the road was dry, the weather was fine and the traffic flow was heavy. 

1. He was 41 years old.  The only relevant offence on his record arose out of an occasion on 13 August 2006 when he drove a vehicle with an alcohol concentration of .119.  At that time he was not licensed to drive and s6(2) and (3) made it an offence for him to be driving with any alcohol in his body.  On 8 December 2006 he was convicted, fined $400 and disqualified from driving for six months from 8 December 2006.  It is to be observed that the present offence was committed by him only three days after the end of the period of disqualification, but he then held a driver's licence. 

1. His counsel informed the learned magistrate that he was unemployed and single, with no children.  He had worked for about 10 years as a car detailer and had given up that employment to travel to Queensland to visit his ailing mother.  Counsel related a number of misfortunes suffered by the applicant over the previous 12 months, as an explanation for problems with alcohol.  His counsel said that he had driven for 28 years without incident, except for the offence in 2006.  Having regard to his age, he could not have been licensed for as long as 28 years, but the point made was that he had been licensed for many years and had only one relevant prior offence on his record.  He pleaded guilty to the present offence on his first appearance, which his counsel submitted was indicative of remorse. 

1. The learned magistrate made the following comments when passing sentence:

"You appear charged with driving under the influence of liquor on the Midlands Highway.  That, of course, is a matter of concern.  The Midlands Highway is the major arterial road in Tasmania connecting the two largest population centres of Hobart and Launceston.  In many areas it is a roadway which is single lane in both directions, typically it possess only overtaking lanes along various stages of the road, but, well virtually nowhere on the road except when one is entering either Launceston or Hobart is there any division between the two opposing lanes.  So that it makes it, to that degree, somewhat easier for vehicles to come into collision with each other, travelling in opposing directions.  If that's no bad enough, perhaps somebody driving on that road under the influence of liquor should be something that would terrify any driver on that road. 

You have one previous conviction imposed only recently, that was in December 2006.  You then presented with a blood alcohol content of .119 and were disqualified from driving for 6 months.  Now that disqualification ended something like a mere three days or so before your driving on this occasion.  Not only that but you were driving, it's a worse case than the previous one of .119, in that here you were actually driving under the influence of intoxicating liquor, so as not to be able to have proper control of it.  I don't think it can be again said that this is a serious case."

1. The penalties prescribed for the offence, being a subsequent offence for the purposes of s17, were disqualification for a minimum of two years to a maximum of six years and either or both of a fine not less than $1000 or more than $6000 and imprisonment for up to two years.  The sentence was well within the maximum prescribed penalties. 

1. It was submitted for the applicant that he was entitled to credit for a relatively long driving record with only one prior similar offence.  Also advanced as mitigatory were the misfortunes he had suffered which had led him to excessively consume alcohol in recent times.  The misfortunes included a break-up from a partner of 3½ years, bankruptcy, being assaulted by his ex-partner's sons and hospitalised for two days as a result, and misuse of his identity by a friend.  I do not regard those matters as requiring leniency.  They provided no justification whatsoever for two breaches of the Act only 10 months apart from each other and particularly not for the second, when regard is had to the circumstances. 

1. A mitigatory factor was his early plea of guilty.  He was arrested on the day of the offence, 11 June, and on the very next day, while still in custody, he pleaded guilty, leading to the sentence being imposed six days later.

1. It was also submitted for the applicant that he did not have the capacity to pay a fine of $3000.  There is little merit in the submission having regard to the fact that he wished to avoid imprisonment and if he did not have to suffer it, he was certainly facing a minimum fine of $2000 and a maximum of $6000.  Within that range, $3000 was not excessive.  The fact that he was a bankrupt counted little.  It was not suggested to the magistrate that he would be unable to pay a fine.  He had been in receipt of income from employment for many years and had only given up employment recently for the purpose of travelling to Queensland.  There was no reason to think that he would not regain employment promptly and that he would have a greater incapacity to pay a fine within the prescribed range than most offenders. 

1. For the respondent it was submitted that the plea of guilty was bowing to the inevitable.  That is probably true, but nevertheless the applicant was entitled to credit for having the case disposed of so quickly.  Relied on as aggravating was the long distance on major highways being driven by the applicant when incapable of having proper control of the vehicle.  He was plainly a danger to the public at the time.  There was a significant risk of a collision arising out of his condition and manner of driving and the volume of traffic actually on and likely to be on the highway at that time.  Finally, it was submitted by counsel for the respondent that an aggravating circumstance was that the applicant had committed the offences only three days after the expiration of the period of disqualification imposed for his previous offence under the Act committed only about 10 months previously.  A need for both personal and general deterrence was demonstrated. 

1. Judges of this Court, and no doubt magistrates, on a great many of occasions, have referred to the driving of motor vehicles by persons affected by the consumption of alcohol as a grave social evil requiring severe penalties as a general deterrent and a personal deterrent to the offender, and to the imposition of imprisonment not being reserved for extraordinary cases.  See for example, Briant v Bessell (1994) 74 A Crim R 204 at 208. The penalties prescribed by Parliament make that clear. Nevertheless, the sentence imposed in this case was manifestly excessive because of the combination of three months actual imprisonment and a fine of $3000. If the imprisonment had been suspended the sentence would have been an appropriate one, for the applicant would have had facing him, as a deterrent, virtually certain imprisonment for future transgressions under the Act and he would have suffered immediate punishment by way of the fine and disqualification. The imposition of the fine on top of actual imprisonment, for an offender who was bankrupt and not employed, made the sentence excessively harsh. Aggravating was the fact that he had a recent conviction under the Act but mitigating was the fact that he had committed no other offence of significance notwithstanding that he had been licensed for many years. A conclusion that the sentence was manifestly excessive is in keeping with decisions of other judges on motions to review.

1. For these reasons, the sentence will be quashed.  In lieu thereof, the applicant is sentenced to imprisonment for three months all of which is suspended upon condition that he commits no offence against the Road Safety (Alcohol and Drugs) Act 1970 for three years. He is also fined $3000 and he is disqualified from driving for two years six months. He is allowed 18 months in which to pay the fine.