Mansell v Chokljat

[2006] TASSC 67

[2006] TASSC 67

CITATION:            Mansell v Chokljat [2006] TASSC 67

PARTIES:  MANSELL, Ricky Brendan
  v
  CHOKLJAT, Katrina

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 20/2006
DELIVERED ON:  2 October 2006
DELIVERED AT:  Launceston
HEARING DATE:  19 September 2006
JUDGMENT OF:  Slicer J

CATCHWORDS:

Magistrates – Appeal from and control over magistrates – Tasmania – Motion to Review – Review of Sentence – Principles applicable – The hearing - Generally – Licence disqualification – Whether sentence manifestly excessive – Offender with previous convictions.

Vehicles and Traffic Act 1999 (Tas).
Shepherd v Visser [1999] TASSC 81; Davies v Hewitt A53/1990; Hunter v White [2002] TASSC 72; Williams v McLaughlin [2000] TASSC 29, considered.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  C J Gibson
           Respondent:  J Ransom
Solicitors:
           Applicant:  Zeeman Kable and Page
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2006] TASSC 67
Number of paragraphs:  11

Serial No 67/2006
File No LCA 20/2006

RICKY BRENDAN MANSELL v KATRINA CHOKLJAT

REASONS FOR JUDGMENT  SLICER J

2 October 2006

1. The applicant seeks review of a penalty imposed by a court of petty sessions following his conviction for an offence of driving a motor vehicle while exceeding the prescribed alcohol limit, contrary to the Road Safety (Alcohol & Drugs) Act 1970 ("the Act"), s6.  The penalty imposed was a fine of $2,500 and disqualification from holding or obtaining a driver's licence for a period of two years and six months.

1. The grounds of appeal are:

"1The Learned Magistrate erred in imposing a sentence that was manifestly excessive in all the circumstances.

2The Learned Magistrate erred in that he failed to give due weight to the circumstances of the Applicant, including the effect on the Applicant's employment of a lengthy period of disqualification."

1. The Act, s17, provides a range of penalties for offences of driving with an excessive blood alcohol concentration.  In this case the concentration was .132 grams of alcohol per 210 litres of breath.  Section 17(5), Pt2, relevantly provides for:

"column 2	column 3	column 4	column 5
Concentration of alcohol in blood in grams per 100 millilitres of blood	Fine	Period of disqualification	Term of imprisonment
0·1 or more but less than 0·15	Minimum 8 penalty units Maximum 40 penalty units	Minimum 12 months Maximum 36 months	12 months"

1. The Vehicles and Traffic Act 1999, s18, applies to convictions of a person for an offence under the Act.  The Act, s19(1A), precludes the grant of a restricted licence in cases where the offence was committed during any period of disqualification or within three years after the end of any period of disqualification imposed under the Act.  Here the applicant had such a conviction and was not entitled to apply for the grant of a restricted licence.  There might be circumstances where a court is permitted before sentence to grant a restricted licence but increase the period of disqualification.  However, such was not the case here.

1. The argument as defined by counsel is that:

(1)The period of disqualification of two years and six months is close to the maximum permitted, and in the circumstances of the offence, and the offender, it did not warrant a period of disqualification at the higher end of the scale.

(2)The employment of the applicant and the statutory prohibition on the grant of a restricted licence required the imposition of a lesser period of disqualification.

1. On 18 March the applicant was subjected to a random breath test whilst driving on Westbury Road.  A reading of .132 was obtained.  There was a passenger in his vehicle.  The applicant told police that he had consumed a six pack of Boags before the interception.  He was aged 44, single and employed as a labourer in a vineyard in the general area where the offence occurred.  The court was told that he was employed for some ten months of the year on seasonal work at the vineyard.  He had held the job for some considerable time and his counsel told the court:

"It's one of his first jobs he's ever had in his life.  It's steadied him down tremendously, he's very proud of his work, his employers think the world of him, and he remains fully employed in that job during the 10 months …".

1. The court was further told that:

"He has to get from Summerhill to White Hills which is a considerable distance, he's going to feel the full effect of disqualification.  He will somehow get himself to work because he doesn't want to give us [up] this and it's [sic] something that's kept him on the straight and narrow."

1. A sentencing court is entitled to have regard to the inability of a convicted person to obtain the grant of a restricted licence and is entitled to take into account the effect of disqualification on the employment prospects of the offender (Shepherd v Visser [1999] TASSC 81; Davies v Hewitt A53/1990; Hunter v White [2002] TASSC 72; Williams v McLaughlin [2000] TASSC 29).

1. The subjective circumstances of the applicant included his past record of offending.  Consideration of that record was not to be confined to traffic matters but here, of particular relevance, were the five previous convictions for drink driving.  Details of those convictions were:

23/11/1982	Drive under the Influence Refuse breath analysis Drive whilst disqualified	1 month imprisonment cumulative 1 month imprisonment concurrent 1 month imprisonment concurrent
9/7/1986	Exceed 0.5% (.13%) First year driver alcohol in body	49 hours community service order Conviction recorded
6/9/1988	First year driver alcohol in body Exceed .05% (.19%)	Conviction recorded 4 weeks' imprisonment from 05/09/88, driver's licence disqualified 2 years
7/2/1996	Drive with alcohol in body without authority (.252%)	16 weeks' imprisonment, 8 weeks suspended on condition to commit no offence of drive whilst disqualified for 3 years. Driver's licence disqualified 4 years
20/3/2002	Driver not holding Australian driver's licence, foreign driver's licence, international driving permit with alcohol in body (.096%)	Fined $1,250 costs $25.10. Driver's licence disqualified 18 months.

1. In addition, the applicant had committed many crimes of dishonesty, violence and general antisocial conduct.  It was open for the learned magistrate to consider the imposition of a term of imprisonment.  Whilst there had been a lengthy period during which the applicant had maintained a good driving record, it was nevertheless his fifth conviction for drink driving.  It would have been open for the magistrate to consider the imposition of a gaol sentence, either suspended or immediate.  He did not do so.  Whilst the period of disqualification was at the upper end of the statutory range, that alone did not make the penalty manifestly excessive.  Nor were the subjective characteristics of the offender such that they warranted consideration of the lower end of the range.  Imprisonment for a fifth drink driving related offence would not have been inconsistent with the sentencing regime imposed by Parliament.  This is an appeal, not a general review of the penalty.  No particular error has been shown and the sentence itself does not show or manifest error.

1. The appeal ought be dismissed.