McDonald v Nilsson

[2009] TASSC 83

[2009] TASSC 83

COURT:  SUPREME COURT OF TASMANIA

CITATION:              McDonald v Nilsson [2009] TASSC 83

PARTIES:  McDONALD, Scott (Sergeant)
  v
  NILSSON, Scott James

FILE NO/S:  659/2009
DELIVERED ON:  21 September 2009
DELIVERED AT:  Hobart
HEARING DATE:  2 September 2009
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Magistrates – Jurisdiction and procedure generally – Procedure – The hearing – Matters relating to decision – Duty to state reasons for sentence – Whether breach of duty and an error of law.

Trueman v Tasmania [2009] TASSC 29; Harrison v Taws [2009] TASSC 33, discussed.
Aust Dig Magistrates [128]

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Other offences – Driving with more than prescribed concentration of alcohol – Sentence – Persistent offender – Whether sentence manifestly inadequate.

Barrett v Pearce A6/1986; Briant v Bessell (1994) 74 A Crim R 204; Peck v Visser [1999] TASSC 38; Boyd v Peters [1988] Tas R 66; Devine v Maher [1990] Tas R 147; Harriss v Walker (1996) 89 A Crim R257, applied.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s17.
Aust Dig Traffic Law [80]
REPRESENTATION:

Counsel:
             Applicant:  S Nicholson
             Respondent:  S C Chopping
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Steven Chopping

Judgment Number:  [2009] TASSC 83
Number of paragraphs:  25

Serial No 83/2009
File No 659/2009

SERGEANT SCOTT McDONALD v SCOTT JAMES NILSSON

REASONS FOR JUDGMENT  CRAWFORD CJ

21 September 2009

1. The respondent was charged with driving a motor vehicle whilst alcohol was present in his breath in a concentration greater than the prescribed concentration, contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1). He returned a breath analysis of 0.128, which was in excess of the limit of 0.05 grams of alcohol per 210 litres of breath.

1. A magistrate fined him $960 and ordered that he be disqualified from driving for 16 months. 

1. The applicant has moved the Court to review the sentence.  There are two grounds.  The first is manifest inadequacy in the sentence, and the second is an error of law by failing to give sufficient reasons for the sentence.

Circumstances of the offence

1. The learned magistrate was informed that on Saturday, 28 March 2009, at 1.45am, police intercepted the respondent driving a motor vehicle on Charles Street, Moonah for the purposes of undergoing a random breath test.  As a result of that, he was required to submit to a breath analysis and a reading of 0.128 was obtained.  When questioned about the offence, the respondent told the police that he had driven from the bottom of Hopkins Street, intending to drive to his home in Gargano Court.  He said that he had his first drink at 4pm, his last drink at 1am, and in all drank about eight beers at a place called the Mustard Pot. 

1. Counsel for the respondent told the magistrate that the respondent had been with friends and had foolishly decided to drive home, rather than travel home by alternative means.  It was pointed out that there was nothing about his manner of driving that had drawn the attention of the police to him.  He was fully co-operative with the police.

Circumstances of the offender

1. The respondent was 45 years old. For many years he worked as a mechanic in his father's business, but more recently he had been employed for some years as a driver of a concrete agitator truck. On the day of the offence, a police officer served upon him an excessive drink-driving notice under the Act, s18B, and as a consequence, he was immediately disqualified from driving. He was successful in having the notice set aside on 18 May. By that time he had been disqualified by the notice for seven weeks and had lost seven weeks of employment. He then recommenced his employment. His counsel said that his employer regarded him as a valuable employee and a safe driver of its concrete truck.

1. The respondent had a bad driving record.  It included the following:

1On 20 April 1982 he was convicted of being a first year driver with alcohol in his body, exceeding .08 (.17), and driving while disqualified, and for the first of those offences was fined $140 and disqualified for 12 months.

2On 16 October 1984 he was convicted of exceeding .05 (.16) and was fined $150 and disqualified for 18 months.

3On 6 February 1990 he was convicted of exceeding .05 (.134) and was fined $450 and disqualified for 30 months.

4On 27 October 1994 he was convicted of exceeding .05 (.228) and was sentenced to two months' imprisonment, wholly suspended for two years, and a 70 hour community service order, and was disqualified for 39 months.

5On 16 September 1998 he was convicted of driving while alcohol was present in his body (.206) and was sentenced to two months' imprisonment that was wholly suspended for two years, fined $1,000, and disqualified for 28 months.

6On 25 September 2002 he was convicted of exceeding .05 (.165) and was sentenced to four months' imprisonment, two months of which were suspended for four years, and disqualified for three years following his release from prison.

1. In addition, he had committed about 48 other offences involving the driving or use of a motor vehicle.  Nevertheless, in the light of his record, it was arguable that he had improved in recent years, because since 2003 his only driving offence was using an unregistered motor vehicle in 2007.  That may be explained in part by the fact that for three years until 25 November 2005, he was disqualified from driving. 

1. His counsel said that a great deal of his consumption of alcohol in the past was caused by worry over his wife's "terrible drug problem".  She had died and since then he had made substantial improvements in his life, with regular employment and a great reduction in his consumption of alcohol.  It was submitted that the present offence was out of character, a submission that deserved little weight, having regard to the respondent's record.  His counsel concluded by submitting that to a substantial degree he had started to live down his very bad record of the past.  Counsel urged the learned magistrate not to impose an immediate custodial sentence. 

The magistrate's reasons

1. The learned magistrate pronounced sentence at the conclusion of the submissions of counsel for the respondent.  No reasons for the sentence were given, other than the making of a comment that the period of disqualification already suffered would be taken into account. 

Was the sentence manifestly inadequate?

1. Mandatory penalties are prescribed by the Act, s17. In the circumstances of a second or subsequent offence under the Act, and one involving a blood alcohol reading of 0.1 or more, but less than 0.15, the learned magistrate had to impose a fine of not less than $960 and not more than $4,800, or a term of imprisonment not exceeding 12 months, or both that fine and that imprisonment. It was also mandated that the learned magistrate disqualify the respondent from driving for a period of not less than 12 months and not more than 36 months.

1. The sentence imposed by the learned magistrate was very much at the lower end of what was mandated. The fine of $960 was the minimum permitted by s17. Having regard to the fact that imprisonment was not part of the sentence, it was surprisingly and unjustifiably low for a seventh time offender under the Act without mitigating factors of great value.

1. The learned magistrate took into account that the respondent had already suffered seven weeks' pre-sentence disqualification, and so the order that he be disqualified for 16 months resulted in effective disqualification for the offence for almost 18 months, six months more than the prescribed minimum, and 18 months less than the prescribed maximum.  That was also low for this offender and his circumstances.

1. For many years, judges of this Court have emphasised their condemnation of persistent offending against the Act. In Barrett v Pearce A6/1986 at 4, Neasey J referred to the need for adequate consideration to the seriousness of the repetition factor, and the necessity of giving due weight to the principle of deterrence.  In Briant v Bessell (1994) 74 A Crim R 204 at 208, Zeeman J referred to the clear legislative intent evinced by the Act to treat the driving of motor vehicles by persons affected by the consumption of intoxicating liquor as a grave social evil that was to be visited with penalties severe enough to act as a general deterrent and as a personal deterrent to the particular offender. His Honour expressed the view that the imposition of terms of imprisonment ought not be reserved for extraordinary cases. Likewise in Peck v Visser [1999] TASSC 38 at par8, Wright J confirmed the view of this Court over many years that persistent offenders under the Act merit severe punishment. At par17, his Honour referred, in the particular circumstances of the case with which he was dealing, to the apparent fact that the offender had not been deterred by increasingly severe penalties and described him as a persistent danger on the State's roads.

1. Statements of those kind have been made or repeated in many cases.  See, for example, Boyd v Peters [1988] Tas R 66 at 72; Devine v Maher [1990] Tas R 147 at 149 – 150; Harriss v Walker (1996) 89 A Crim R 257 at 260.

1. They have equal application to this case. Accepting that the respondent would have suffered through loss of his employment as a result of the sentence, his seventh offence under the Act demanded a sentence of imprisonment. In the past he had sentences that generally increased in severity, but he was not deterred sufficiently, not even by two months in prison for his sixth conviction. In my mind, it is beyond doubt that the sentence was manifestly inadequate, and for that reason, it will be set aside and he will be re-sentenced. As a matter of principle, such a lenient sentence cannot be allowed to stand. That seven years had elapsed since his previous conviction does not persuade me to take a different course.

Was there an error of law by failing to give sufficient reasons?

1. Apart from explaining that seven weeks of pre-sentence disqualification would be taken into account, no reasons were given for the sentence.

1. Sentencing judges and magistrates have a general obligation to give reasons for their sentences, and a failure to give sufficient reasons may amount to an appealable error.  Trueman v Tasmania [2009] TASSC 29. At pars32 and 33 of my judgment in that case, I accepted that there are limits to what is required, and I pointed out that often the determination of the appropriate sentence is made by way of an instinctive or intuitive assessment after a consideration of the relevant facts and factors. I also likened it to the assessment of general damages for pain and suffering because typically, once it has been made clear just what the pain and suffering has been and will be suffered, a judge will merely announce the amount assessed for general damages without explaining how the amount is arrived at. There will often be nothing to say about the matter, although prior to making the assessment, the judge may well have given consideration to assessments in other cases.

1. Similarly when sentencing, the factual basis for the sentence should be clear, or made clear, and relevant matters known or made known, but subject to those issues, the sentencing officer may be able to say little more than state the sentence that he or she thinks appropriate for the case.  At par33 in Trueman, I made an observation to that effect.  A failure to say more will not amount to an error necessarily.  As I said, each case will depend on its own circumstances. 

1. In Harrison v Taws [2009] TASSC 33 at par33, I added that if there is no issue concerning what are the relevant factors, it may not be an error to omit to state all or any of them. That observation brings me back to the circumstances of this case. The transcript of what was said to the learned magistrate by the prosecutor and the respondent's counsel is less than 1½ pages long. None of the circumstances of the offence was in issue. The prosecutor briefly stated them and the respondent's counsel very briefly added to them. None of the circumstances of the offender was in issue either. The respondent's counsel briefly stated them and the prosecutor produced the respondent's record.

1. Once the submissions had been made, the learned magistrate immediately proceeded to sentence.  There was no need for his Honour to restate any of the circumstances, either of the offence or the offender, before announcing the sentence itself.  Nothing of what had been submitted was in issue.  The only submission concerning the sentence itself was one from the respondent's counsel when he concluded, by saying that he respectfully urged his Honour to impose a penalty other than an immediate custodial one.  The prosecutor did not take issue with that.  (He was not under any obligation to do so.)

1. However, if the prosecutor had taken issue with that last statement of the respondent's counsel and had argued that immediate imprisonment was required, there would have fallen on the learned magistrate an obligation to explain why he had decided not to imprison the respondent.  Significant matters that have been put in issue should normally be resolved and explained by the sentencing officer. 

1. In this case, I am not persuaded that the learned magistrate made an error of law by failing to give sufficient reasons.  The only issue he was required to determine was what the sentence should be, having regard to the undisputed facts and circumstances.  He made that determination.

Orders

1. Because of the respondent's prior convictions, particularly the six under the Act, and the sentences that had been imposed for each, this was a case that demanded a sentence of actual imprisonment and a substantial period of disqualification. The sentence that was imposed failed badly as a deterrent, both general and personal, and was unjustifiably merciful.

1. It will be ordered that the sentence imposed by the learned magistrate be set aside and in its place, the respondent will be sentenced to imprisonment for three months and after taking into account the seven weeks of pre-sentence disqualification, he will be disqualified from driving for one year ten months from 3 July 2009, the date upon which he was sentenced by the magistrate.