Little v Whitney
[2023] TASSC 23
•19 July 2023
[2023] TASSC 23
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Little v Whitney [2023] TASSC 23 |
| PARTIES: | LITTLE, Cameron |
| v | |
| WHITNEY, Guy Robert | |
| FILE NO: | 2955/2022 |
| DELIVERED ON: | 19 July 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 30 January 2023 |
| JUDGMENT OF: | Brett J |
| CATCHWORDS: |
Magistrates – Appeal and Review – Tasmania – Motion to Review – Other matters – Whether sentence imposed by Magistrate disqualifying a driver for two years and wholly suspending one months' imprisonment for two years is manifestly inadequate – Held that sentence was lenient but within sentencing discretion and took into consideration impact on defendant – Sentence not manifestly inadequate – Motion dismissed.
Road Safety Alcohol and Drugs Act 1970.
Tlung v Moore [2018] TASSC 58, considered.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: L Fox Respondent: J Petersen
Solicitors:
Applicant: Director of Public Prosecutions Respondent: Petersen Legal
| Judgment Number: | [2023] TASSC 23 |
| Number of paragraphs: | 15 |
Serial No 23/2023 File No 2955/2022
SERGEANT CAMERON LITTLE v ROBERT GUY WHITNEY
| REASONS FOR JUDGMENT | BRETT J 19 July 2023 |
1 On 11 October 2022, the respondent was sentenced by Magistrate L Topfer for one count of driving a motor vehicle while exceeding the prescribed alcohol limit. The offence was committed on 19 March 2022 in upper Burnie, and the respondent's blood alcohol concentration at the relevant time was .305 grams of alcohol per 210 litres of breath. He pleaded guilty to the charge.
2 The magistrate imposed a sentence of one months' imprisonment which was wholly suspended for two years, together with a driving disqualification of two years. The disqualification was backdated to the date on which an excessive drink drive notice had been issued to the respondent. The disqualification was the minimum period available to the magistrate having regard to the provisions of s 17(3) of the Road Safety Alcohol and Drugs Act 1970.
3 The applicant now moves this Court to review the sentence imposed by the learned magistrate. The sole ground of review is that the sentence is manifestly inadequate.
4 The facts asserted in the sentencing hearing by the applicant were not disputed by the respondent. The respondent was apprehended at 3.15pm after police were called to a collision between his vehicle and another vehicle. The collision had occurred in the driveway of the BWS store in upper Burnie. He had collided with the rear of the other vehicle. It is was not alleged that any person had been injured as a result of the collision.
5 The explanation provided by the respondent was that he had consumed a large quantity of vodka the previous day and a small quantity on the morning before the accident. He claimed that he was required to drive at the time because his adult son was subject to COVID 19 restrictions and he was bringing him some food. He did not explain why he was driving his vehicle through BWS, a liquor outlet.
6 The respondent was 55 years of age at the time of commission of the offence. He had a stable work history, was in permanent employment and claimed to be under considerable stress at work. His prior convictions were solely related to traffic matters. However, they included three previous convictions for drink driving offences. On 20 November 1990, he was convicted of driving a motor vehicle while exceeding the prescribed alcohol limit with a reading of .135. He was fined and his licence was disqualified. He was convicted of a similar offence on 16 March 1993, this time with a blood alcohol reading of .153. Again he was fined $1,000 and his driver's licence was disqualified for two years. On 21 June 2005, he was convicted again of the same offence, with a reading of .138. The penalty on this occasion was a fine and 14 months' driving disqualification. There were no further convictions of any nature on his record after that sentence.
7 It was put to the magistrate that the respondent's decision to drive on the day in question was a misjudgement resulting from stress at work and the desire to spend some time with his son. Once again, the question as to why he was in the BWS bottle shop was not explained nor was it queried by the magistrate.
8 In her sentencing comments, the magistrate noted the high reading, referring to it as "dangerous". She observed that the respondent had prior drink driving convictions, but that "the last
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time was a long time ago". Her Honour contemplated community service but decided against this on the basis that it was not practical given the long hours of employment undertaken by the respondent. In relation to the disqualification, the magistrate noted that the range was between two and five years but that "two years is a long time on the North-West Coast, but that is the minimum that I can impose". It suggests that the learned magistrate would have imposed a lessor period if she was not constrained by the legislative minimum.
9 In assessing the ground of appeal, there are some considerations that I must keep in mind. Firstly, I can only uphold this ground if satisfied that the sentence manifests error because of its leniency. I cannot make that decision simply on the basis that I would have imposed a harsher sentence, if I had been dealing with the case. Further, in assessing the punitive effect of the sentence, I must take into account all of its components including both the suspended sentence and the disqualification period.
10 There is no question that this was a lenient sentence. The reading was very high, more than six times the legal limit. The danger associated with driving a motor vehicle with such a high concentration of alcohol in the body was manifested by the fact that the respondent's vehicle collided with the rear of another vehicle, undoubtedly the fault of the respondent. I agree with the applicant's counsel that the respondent's explanation for driving did not mitigate the seriousness of his conduct. In any event, his unexplained presence in the bottle shop cast significant doubt on his claims to be driving only to support his son. In the circumstances, general deterrence and denunciation were very important sentencing considerations.
11 Personal deterrence was also important. The applicant had three previous convictions with relatively high readings which extended over a period of 15 years. However, the magistrate was entitled to take in to account that the last of those convictions had occurred 17 years before and, further, that the respondent had not committed another offence of any description since that time. As I said in Tlung v Moore [2018] TASSC 58:
"A gap in offending is often put forward in drink-driving cases as a significant mitigatory consideration. In appropriate cases, it may be an indication of true reform and insight, particularly if there has been a lengthy gap and the offence occurs in circumstances which suggest an aberration of conduct. However, even in that situation, the mitigatory effect of that circumstance must be placed into proper context and balanced against the other sentencing considerations, including the objective seriousness of the offending and the need for denunciation and deterrence."
12 In this case, the absence of any further offending at all indicated that this offence may have been an aberration in conduct. The magistrate was entitled to accept that the respondent was remorseful and she took notice that the fact that he had sought counselling since committing this offence, for underlying mental health and stress issues.
13 In relation to the imposition of the minimum disqualification period, the magistrate was entitled to take into account her knowledge of local circumstances and the fact that a disqualification constituting "two years is a long time in the North-West Coast". The applicant's counsel submitted that there was no evidence put before the magistrate as to the impact of local conditions specifically on the respondent, but the magistrate was sitting as a local court dealing with a summary offence. In those circumstances, in my view, the magistrate is entitled to take into account her knowledge of general circumstances in the local community when determining the appropriate sentence. The magistrate did not assert that the disqualification would impact on the respondent in a unique or special way. Her Honour was simply making the reasonable point that anyone facing a disqualification in that locality would be subject to conditions pertaining generally in the community, including lack of public transport, the decentralised nature of the community and relatively lengthy driving distances between major population centres.
14 Having regard to all relevant circumstances and despite the fact that I would almost certainly have imposed a harsher sentence, I am unable to say that this sentence was not within the sentencing
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discretion of the learned magistrate. At the end of the day, the respondent was still subject to a lengthy disqualification and had a suspended prison term hanging over his head. The legislation permitted imposition of a fine, rather than imprisonment. The combination of suspended imprisonment and lengthy disqualification, did, in my view, satisfactorily address the relevant sentencing considerations. I am satisfied that the sentence was not manifestly inadequate.
15 The motion is dismissed.
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