Lavell v McKenna - [2017] TASSC 10

[2017] TASSC 10

COURT: SUPREME COURT OF TASMANIA

CITATION: Lavell v McKenna [2017] TASSC 10

PARTIES:  LAVELL, Jai Noel
  v
  McKENNA, Peter Raymond

FREEMAN, Andrew
  BIDDLE, Shane Alan
  DUNHAM, Taneka
  MINEHAN, Christopher Robin
  ROLLS, Matthew Shaun
  LONG, Melanie Rose
  ELMER, Michelle

FILE NO:  3081/2016
DELIVERED ON:  17 February 2017
DELIVERED AT:  Burnie
HEARING DATE:  17 February 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Non-parole period or minimum term – Tasmania – Single non-parole period in relation to multiple cumulative sentences.

Acts Interpretation Act 1931 (Tas), s 24(d).
Sentencing Act 1997 (Tas), s 17(2)(b).
Aust Dig Criminal Law [3379]

REPRESENTATION:

Counsel:
           Applicant:  A Mihal
           Respondent:  S Nicholson
Solicitors:
           Applicant:  Walsh Day James Mihal
           Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 10
Number of paragraphs: 14

Serial No 10/2017
File No 3081/2016

JAI NOEL LAVELL v PETER RAYMOND McKENNA,
ANDREW FREEMAN, SHANE ALAN BIDDLE, TENAKA DUNHAM,
CHRISTOPHER ROBIN MINEHAN, MATTHEW SHAUN ROLLS,
MELANIE ROSE LONG and MICHELLE ELMER

REASONS FOR JUDGMENT BLOW CJ

(Edited version of reasons for judgment delivered orally) 17 February 2017

This is a motion for the review of some sentencing orders made by a magistrate, Mr D Fairley, in relation to a series of driving charges. Before the learned magistrate, the applicant pleaded guilty to charges relating to eight occasions on which he committed driving offences within a period of about 14 weeks, commencing on 3 December 2015 and ending on 8 March 2016. He did not hold a driver's licence.
In relation to each of the eight occasions, he pleaded guilty to driving while unlicensed. In relation to some of those eight occasions, he pleaded guilty to other offences. In relation to the first one, he pleaded guilty to speeding. He had been travelling at 108km/h where the limit was 90km/h. On that charge, the learned magistrate fined him $300. In relation to the second act of driving, he pleaded guilty to driving with an illicit drug in his body. He pleaded guilty to a similar charge in relation to the third act of driving. In relation to the fourth, he pleaded guilty to refusing an oral fluid test. In relation to the sixth, he pleaded guilty to refusing an oral fluid test and refusing a blood test. In relation to all those matters, other than the speeding matter, the learned magistrate sentenced the applicant to nine months' imprisonment. He also activated two suspended sentences, one of three months, and one of two months. The learned magistrate ordered that the three sentences be served cumulatively with one another, and he made an order permitting parole. According to the transcript, the learned magistrate ordered that the applicant would be eligible for parole "after the expiration of nine months of this sentence". Perhaps he said "sentences". The transcript says "sentence".
My view is that when a magistrate activates one or more sentence of imprisonment and imposes a cumulative sentence of imprisonment, then the magistrate has the power to make a single order permitting parole in relation to the totality of the sentences. Section 17(2)(b) of the Sentencing Act 1997, which provides for orders permitting parole, uses the singular. It refers to a court that imposes "a sentence of imprisonment", and refers to "that sentence". But s 24(d) of the Acts Interpretation Act 1931, provides that "words in the singular shall include the plural". That is a general rule. There is no reason why it should be departed from in relation to s 17(2) of the Sentencing Act. Taking a literal interpretation, contrary to the Acts Interpretation Act provision, would be inconvenient for sentencing courts, and would involve interpreting the legislation in a way unfavourable to the subject.
Section 27(6)(a) of the Sentencing Act makes it clear that that the parole provisions of s 17 apply to any activated suspended sentence. Obviously, what the learned magistrate did was to activate the three-month sentence and the two-month sentence, and add another nine-month sentence, so that the head sentences totalled 14 months. But he then made an order permitting parole after the applicant had served nine months of the sentences.
The three-month suspended sentence was imposed on 1 September 2014. It was in force for 18 months thereafter. The first seven of the eight relevant acts of driving occurred during that 18-month period. That suspended sentence was imposed in relation to four acts of driving between 24 January 2014 and 18 February 2014. That suspended sentence covered four charges of driving while unlicensed, three of driving an unregistered vehicle, three of driving a vehicle with no premium cover, and three that had something to do with dishonesty in relation to a number plate.
The two-month suspended sentence was imposed on 17 February 2015. It was in force for 12 months after that date. Again, seven of the eight relevant acts of driving occurred during the period that that suspended sentence was in force. It was imposed in relation to a series of offences committed between 4 December 2013 and 23 December 2014. Significantly, that period included driving offences in the months of December 2013 and January 2014. That suspended sentence was for two counts of failing to appear, three of unlicensed driving, three of driving an unregistered vehicle, three of driving a vehicle with no premium cover, two that had something to do with dishonesty in relation to a document, one for speeding, and one for driving with an illicit drug in the applicant's body.
The applicant had a very bad record of prior convictions, beginning in 2009. Prior to the eight relevant acts of driving, amongst other things, he had 15 convictions for driving without a licence, one for driving while disqualified, and one for driving with an illicit drug in his body. However, he had never been to prison before.
The learned magistrate was provided with a pre-sentence report that informed him that the applicant was considered unsuitable for either a community service order or a probation order. A sentence of imprisonment was obviously called for, given the attitude of the defendant and the course of conduct that he embarked upon. It needed to be a deterrent sentence – one designed to deter him from re-offending, and to deter others from similarly offending.
There were a number of mitigating factors. The applicant had pleaded guilty. However the chances of him being found not guilty on any charge were probably non-existent. I regard it as significant that there was no suggestion that he was driving badly as a result of incompetence or drugs, or anything else. He might have been driving fast on one occasion, but there was no suggestion that he was driving badly or dangerously.
The applicant was only 25 years old. He had health problems. He was on a disability support pension as a result of osteoarthritis in one hand. He suffered from attention deficit hyperactivity disorder. Although he had failed to complete community service hours in the past, he had been voluntarily working for a not-for-profit organisation. He was unemployed but he was actively looking for work. He had taken some positive steps to avoid re-offending. He had sold the vehicle in which the offences had been committed. He had stopped driving. His partner had got her licence and she was able to drive him when he needed to go somewhere.
Probably the most significant factor in relation to mitigation of penalty was the totality principle, as discussed by the High Court in Mill v The Queen (1988) 166 CLR 59. The principles relevant to sentencing in this case are well known. They were acknowledged by the learned magistrate, and there is no need for me to go into any discussion about them. The effect of the orders that the learned magistrate made was that the applicant was required to serve head sentences totalling 14 months, with no eligibility for parole until he had been in prison for nine months. These were serious offences, particularly the two offences of driving with an illicit drug in his body, and the refusal offences on two later occasions. It was terrible that the applicant committed so many offences in so short a period, with an obvious disregard of the law. The only appropriate penalty was a cumulative sentence of imprisonment, but I think it is very clear that head sentences totalling 14 months, with a non-parole period of nine months, were, in the aggregate, too harsh and out of proportion to the seriousness of the applicant's offending, serious though it was.
In my view, the orders made by the learned magistrate in relation to the eight episodes of offending that I have referred to were manifestly excessive. I think the most appropriate course is for me to vary the orders that he made by reducing the periods that he specified. I was thinking of making a probation order but, having remembered the pre-sentence report suggested that would not be appropriate, I have decided not to do so.
The orders that I make are as follows:
1The motion to review is allowed.
2The sentence of nine months' imprisonment imposed by the learned magistrate is varied by reducing that sentence to four months' imprisonment, cumulatively with the three-month and two-month sentences activated by the learned magistrate.
3The order made by the learned magistrate as to parole is varied by reducing the parole ineligibility period from nine months to six months.
The result therefore is that the three sentences are cumulative with one another, but the applicant will be eligible for parole once he has served six months in prison in respect of those sentences.