Lusted v Saunders
[2012] TASSC 6
•22 March 2012
[2012] TASSC 6
COURT: SUPREME COURT OF TASMANIA
CITATION: Lusted v Saunders [2012] TASSC 6
PARTIES: LUSTED, Sergeant Gary
BONDE, A/Sergeant Michael
V
SAUNDERS, David Anthony
FILE NO/S: 1000/2011
DELIVERED ON: 22 March 2012
DELIVERED AT: Launceston
HEARING DATE: 13 March 2012
JUDGMENT OF: Crawford CJ
CATCHWORDS:
Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Disqualified from driving for two months and a $200 fine for thrice driving while not the holder of a driver licence – Respondent never licensed – Persistent offender – Whether sentence manifestly inadequate.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicants: A G Hensley
Respondent: F Cangelosi
Solicitors:
Applicants: Director of Public Prosecutions
Respondent: Rae & Partners
Judgment Number: [2012] TASSC 6
Number of paragraphs: 17
Serial No 6/2012
File No 1000/2011
SERGEANT GARY LUSTED and A/SERGEANT MICHAEL BONDE
v DAVID ANTHONY SAUNDERS
REASONS FOR JUDGMENT CRAWFORD CJ
22 March 2012
The respondent was charged with three counts of driving while not the holder of a driver licence, contrary to the Vehicle and Traffic Act 1999, s8(1). The first applicant was the complainant with respect to the offence earliest in time and the second applicant was the complainant with respect to the other two offences. On 31 October 2011, for the three offences, a magistrate, Mr Marron, fined the respondent $200, ordered him to pay $116.20 costs and disqualified him from driving for two months.
The applicants moved this Court to review the sentence on the ground that it was manifestly inadequate.
The circumstances of the offences, as explained at the hearing were as follows. The respondent was 24 years old. At 6.15pm on 15 August 2011, police were conducting standard random breath tests on Mulgrave Street, Launceston and intercepted a Toyota Corolla driven by the respondent. He was travelling alone. Asked to produce his licence, he responded he was not licensed. In fact he had never held a driver's licence, not even a learner's licence. He declined to offer an explanation for the offence.
At 11am on Monday, 17 October 2011, police intercepted him driving a Toyota Corolla on St John Street, Launceston. He had two passengers in the vehicle. Once again he was asked to produce his licence and confessed that he did not have one. When asked for an explanation, he stated he was in the process of obtaining a birth certificate so that he would be able to obtain a licence.
Two days later, on Wednesday, 19 October 2011, at 3.10pm, police observed him driving a Toyota Corolla on Tamar Street, Launceston, but they were unable to intercept him due to heavy traffic conditions. He had one passenger in the vehicle. When contacted he stated that he was returning from Service Tasmania after applying for his birth certificate.
He was 24 years old. He had prior convictions for aggravated burglary, stealing and attempting to dishonestly acquire a financial advantage; selling and using a controlled plant or its products and unlawfully possessing a dangerous article in a public place; failing to appear (two counts); failing to comply with the conditions of a community service order; trespass; disorderly conduct; unlawful possession of property; failing to wear a bicycle helmet (five counts); possessing an open or unsealed container of liquor in a public street (two counts); failing to wear a seat belt; and littering.
In addition, and significantly, he had three convictions for driving while not the holder of a licence. On 15 September 2010 he was convicted of committing that offence on 26 March 2010 and the proceedings were adjourned for six months upon him giving an undertaking that he would not commit a similar offence in that period. On 18 January 2011 he was convicted of committing such an offence on 12 September 2010 and again on 27 September 2010, and for both offences he was fined $250, ordered to pay costs of $80.20 and disqualified from driving for four months from the date of conviction. It can be seen that he had breached his undertaking to the court within 12 days of giving it on 15 September 2010.
The respondent was unrepresented before the magistrate. When asked what he had done with regard to a driver licence, he said he was still waiting for his birth certificate to be delivered in the mail, having ordered it a fortnight before. Asked why he had not done that before, he confessed to being lazy. He claimed there was no other reason why he should not hold a licence. He had nothing else to say.
The magistrate gave no reasons for making the orders constituting the sentence, but added that the respondent had "two months now to get it all sorted out".
I accept the submission by the applicants' counsel that the respondent's claim (with respect to the last two offences), that he was in the course of obtaining a birth certificate so that he could apply for a licence, had no effect in mitigation of penalty. He had never held a driver licence and should not have countenanced driving without one.
I reject the submission by the respondent's counsel that the offences should be categorised as a "revenue type" offence. Such a description might be attached to the offence if an offender drove at a time when his or her licence had expired. See Hayes v Strickland B37/1986 at 16. This is not a case of that kind. The law regarding licensing of drivers requires demonstration that the person is fit to hold a licence. That requires in turn demonstrated knowledge of the traffic laws, nine months' experience as a licensed learner driver, 50 hours' experience as an accompanied learner driver, and demonstrated competence as a driver. The requirement that those who wish to drive must first obtain a licence that authorises them to do so, is not a mere matter of revenue raising. Its purpose is the safety of the public.
Each of the three offences constituted a second or subsequent offence for the purposes of s8(1). Therefore, the prescribed penalty for each was a fine not exceeding 40 penalty units ($5200) or imprisonment for a term not exceeding three months. In addition, the magistrate had power, under s17, to disqualify the respondent for any period.
I reject the submission of the respondent's counsel that the circumstances did not warrant "a sentence reflective of any contempt or habitual disregard on the part of the respondent for traffic laws". His six offences of unlicensed driving within the space of 19 months, three of them within nine months of being convicted for two earlier ones, demonstrated such a disregard for the law, as did the breach of his undertaking to the court given on 15 September 2010. There were no mitigating factors other than his pleas of guilty, and they should be regarded as merely bowing to the inevitability of conviction.
I reject as well the submission of the respondent's counsel that a deterrent punishment designed for the protection of the public was not warranted. In view of the respondent's demonstrated contempt for the law, a deterrent sentence was demanded.
I also reject the submission of the respondent's counsel that the magistrate could have regard to there being no reason why the respondent would not be granted a licence (if and when he applied for one). There is no reason for presuming that he will be able to obtain a licence. The onus will be on him to demonstrate an entitlement to a licence, if and when he applies for one.
The sentence for the three offences was an extremely lenient one having regard to the circumstances and the prescribed penalties. It was more lenient for three offences than the one imposed earlier that year for two offences. I am satisfied that it was manifestly inadequate and must be set aside.
Before making an order to that effect, I will hear counsel concerning what sentence should be imposed in substitution.