Lusted v Jordan
[2011] TASSC 47
•1 September 2011
[2011] TASSC 47
COURT: SUPREME COURT OF TASMANIA
CITATION: Lusted v Jordan [2011] TASSC 47
PARTIES: LUSTED, Garry
v
JORDAN, Leslie Paul
FILE NO/S: 388/2011
DELIVERED ON: 1 September 2011
DELIVERED AT: Launceston
HEARING DATE: 26 August 2011
JUDGMENT OF: Blow J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – The hearing – Generally – Whether fine manifestly inadequate – Unlicensed driver using unregistered uninsured vehicle – Persistent offender.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: P R Sherriff
Respondent: In person
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: In person
Judgment Number: [2011] TASSC 47
Number of paragraphs: 10
Serial No 47/2011
File No 388/2011
GARRY LUSTED v LESLIE PAUL JORDAN
REASONS FOR JUDGMENT BLOW J
1 September 2011
This is a motion for the review of a sentencing order made by a magistrate, Mr R Marron, fining the respondent $250. That was a global penalty that related to three charges – driving without a licence, using an unregistered motor vehicle, and using an uninsured motor vehicle. The applicant contends that the penalty was manifestly inadequate.
The learned magistrate was told that the respondent was intercepted riding a motorcycle at Ravenswood at 11.55am on 13 January 2011; that he had only ever held a car licence that had been "disqualified and not renewed"; that the registration and insurance on the motorcycle had both expired on 21 September 2010; and that there were no aggravating circumstances. He was provided with a list of the respondent's prior convictions. He had twelve prior convictions for driving without a licence, one for driving while disqualified, six for using an unregistered vehicle, and five for using an uninsured vehicle. They covered a period of nearly 30 years. His first conviction for driving without a licence related to an offence committed in 1982. However there were several such convictions in recent years. The respondent was caught driving without a licence and speeding in October 2005. He was fined. He was caught driving without a licence in October 2006. He was fined $250. He was caught using an unregistered vehicle in December 2007. He was fined $150. He was caught driving while unlicensed and speeding in October 2009. He was fined $400 and disqualified from driving for four months. He was caught driving an unregistered and uninsured vehicle, without a licence, in November 2009. He was fined a total of $600. It seems that fines did not deter him from re-offending.
In a plea in mitigation, the respondent told the learned magistrate that he was "riding home to [sic] work at lunchtime"; that he was normally driven to work by his wife, but that she was busy that day taking a sick child to the dentist; that he worked nine kilometres from home; that he owed about $3000 in unpaid fines; that he had gross earnings of about $880 per week; and that he had five children. The learned magistrate fined him $250, decided not to disqualify him, suggested that he get a licence, asked rhetorically how he could help his family without one, and told him not to drive again without one.
As none of the offences in question were first offences, they were each punishable by a fine or by imprisonment: Vehicle and Traffic Act 1999, ss8(1), 27(1); Motor Accidents (Liabilities and Compensation) Act 1973, s29(1). The offences of driving without a licence and using an unregistered vehicle were also punishable by disqualification from driving: Vehicle and Traffic Act, s17(1).
Counsel for the applicant referred me to the decision of Crawford CJ in Bonde v Newton [2011] TASSC 21. The respondent in that case was fined $200 in respect of nine charges relating to three incidents. On each occasion she drove an unregistered and uninsured vehicle without a licence. She had a worse record than the present respondent, and was in a weaker position so far as mitigating circumstances were concerned. She had given no explanation for driving on one occasion. On another occasion her explanation was that her cats had fleas, and that she had decided to drive to purchase something appropriate for them. Not surprisingly, the fine was held to be manifestly inadequate. The motion to review was allowed and she was fined a total of $700 and disqualified from driving for six months.
There was no suggestion that the respondent was a danger on the roads, or that he was unlicensed because he was too incompetent a driver or motorcyclist to be able to get a licence. However he was a persistent offender who was obviously undeterred by fines. He neither ceased offending nor paid the fines, although his failure to pay them may well have been a consequence of his large family and modest income. There was a strong need for the imposition of a penalty that would, or should, deter him from re-offending. I think it must follow that a fine of $250, without any other penalty, was manifestly inadequate in the circumstances.
However, having regard to the respondent's financial position, I do not think it was or is appropriate for a larger fine to be imposed. It is well established that, subject to any statutory requirements as to minimum or mandatory fines, an offender must not be fined an amount that is beyond his or her reasonable capacity to pay: Broughton v Lowe [1979] Tas R 309 (NC 7), 20/1979; Devlyn v Lowe 31/1980; Kaye v Vagg(No 2) (1984) 11 A Crim R 127; Maynard v White A108/1994; McNamara (1978) 2 Crim LJ 170; Young v Geddie (1978) 45 FLR 400; Reeves v Ranson [1999] TASSC 52 at par[18]; Venn v White [2003] TASSC 115 at par[4].
In my view the learned magistrate had good reason not to make an order disqualifying the respondent from driving. If the source of the problem was the fact that he had not gone out and got a driving licence, it would do no good to impose an order prohibiting him from doing so, although a disqualification for a few months would have been an unimpeachable exercise of the learned magistrate's decision.
There was another sentencing option that the learned magistrate evidently did not consider. If a person who has attained the age of 18 years commits an offence punishable by imprisonment, as the respondent did, a court may make a community service order: Sentencing Act 1997, s7(c). In my view, because of the respondent's persistent offending, this case was serious enough for a community service order to be an appropriate penalty. At my request, a probation officer has spoken to the respondent and provided a report as to his suitability for a community service order. He is considered suitable. In all the circumstances I think the most appropriate course is to set aside the $250 fine and the accompanying order to pay costs, substitute a community service order, and not disqualify the respondent from driving.
For these reasons, the motion to review is allowed, the orders that the respondent pay a fine and costs are set aside, and the respondent is ordered to perform 42 hours' community service.
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