McLeod v Middleton

[1989] TASSC 31

Serial No 25/1989
List "A"

CITATION:              McLeod v Middleton [1989] TASSC 31; A25/1989

PARTIES:  McLEOD
  v
  MIDDLETON

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 62/1989
DELIVERED ON:  10 July 1989
JUDGMENT OF:  Underwood J

Judgment Number:  A25/1989
Number of paragraphs:  15

Serial No 25/1989
List "A"
File No LCA 62/1989

McLEOD v MIDDLETON

REASONS FOR JUDGMENT  UNDERWOOD J

10 July 1989

1. This is a motion to review two sentences of 28 days' imprisonment, ordered to be served cumulatively.

1. On 9 June 1989 the applicant appeared in a Court of Petty Sessions and pleaded guilty to the following matters of complaint.

Complaint No 6287/89

Driving a motor vehicle whilst under the influence of intoxicating liquor.

Driving a motor vehicle with a blood alcohol content in excess of the prescribed concentration namely, with .239 grams of alcohol in 100 millilitres of blood.

Complaint No 6434/89

Driving a motor vehicle whilst under the influence of intoxicating liquor.

Driving a motor vehicle with a blood alcohol content in excess of the prescribed maximum namely, with .247 grams of alcohol in 100 millilitres of blood.

Complaint No 6435/89

Failing to keep to the left of the centre of a street.

1. The learned magistrate was informed by the prosecutor that at five minutes past midnight on the 6 May 1989 the applicant was driving a motor vehicle north along East Derwent Highway at Brighton. The vehicle was being driven slowly and erratically and crossed onto the incorrect side of the road on several occasions. After the vehicle stopped the applicant got out, staggered onto the roadway and dropped to his knees. Breath analysis determined that the concentration of alcohol in his blood was .239 grams of alcohol per 100 millilitres of blood. The applicant was detained in custody until 6am.

1. At about 3.25pm on the afternoon of the same day police were summoned to a two vehicle accident in Lamprill Circle, Gagebrook. The defendant was found near his vehicle which had been involved in a head on collision with another vehicle then being driven on its correct side of the road. The applicant was unable to stand properly and showed other signs of being heavily intoxicated. Subsequent breath analysis determined that the concentration of alcohol in his blood was .247 grams of alcohol per 100 millilitres of blood.

1. After hearing counsel for the defendant the learned magistrate imposed a sentence of 28 days' imprisonment upon conviction for each offence of driving a motor vehicle whilst under the influence of intoxicating liquor and ordered that those sentences be served cumulatively. Upon conviction for the other three offences the learned magistrate recorded a conviction. In addition, upon each conviction for driving a motor vehicle under the influence of intoxicating liquor, the learned magistrate ordered that the applicant be disqualified from holding or obtaining a driver's licence for a period of 18 months, the second period to commence at the expiration of the first.

1. This motion is confined to the sentences imposed upon the convictions for driving under the influence. Unlike the Criminal Code, the Justices Act 1959 gives no power to impose a single penalty upon conviction on several matters of complaint. The imposition of several sentences upon conviction for several offences requires a court to have regard to what has become known as the totality principle; that is, that the aggregate sentence must be just and appropriate to the totality of the criminal conduct involved. See DA Thomas "The Principles of Sentencing" (2nd edn) 56; Brakey v The Queen, CCA 2/1987; Lowe v Burridge, Neasey J 31/1986; Abbott v Lowe, Cox J 27/1986.

1. A corollary of this principle, particularly in cases where the sentencer is required by law to impose a separate sentence for each offence, is that some artificiality may appear when each sentence is examined in isolation from other sentences passed at the same time. In Abbott v Lowe (supra) at p8, Cox J said:

"When dealing with a course of conduct engaged in over a short period of time, but which has been made the subject matter of several different complaints, each dealing with the events of one particular night, it is difficult for a sentencer to avoid some degree of artificiality in the individual sentences the existence of separate complaints requires him to pass."

1. The single ground upon which the notice to review relies is that "the sentence of 28 days' imprisonment in respect of each count was manifestly excessive having regard to the all the circumstances of the case, particularly the antecedents of the applicant". Having regard to the close temporal link between the commission of all offences in this case it is appropriate for this court to take into account all the sentences that were passed at the same time and all the circumstances surrounding the commission of all offences to ascertain whether error occurred in the exercise of the sentencing discretion in any one case.

1. Counsel for the defendant told the learned magistrate that the defendant was aged 30 at the time the offences were committed. He was unemployed and had been out of work for about 6 years. The first act of driving occurred following an argument with his wife. As a result of that argument the applicant decided he would leave home for the night and go to his mother's house nearby. On his release from custody later that morning he returned to collect his car and found that his wife was not home. The applicant then went to his sister's house where he consumed more alcohol. Whilst there he learned that someone was interested in buying his car and, as it was registered in his wife's name, he decided to drive home to discuss the prospective sale with his wife. The accident occurred before he reached his home.

1. The offences were serious ones. On two occasions, within the space of 15 hours, the applicant drove a motor vehicle with a blood alcohol content nearly five times in excess of the permitted maximum. On both occasions the manner of his driving was such that the applicant exposed other users of the road to the risk of serious injury. On the second occasion the applicant was involved in an accident with another vehicle. On both occasions the applicant was so badly affected by liquor that he was unable to stand properly when he got out of his car. Both offences can properly be categorised as bad cases of driving whilst under the influence of liquor.

1. On 15 January 1982 the applicant was convicted of two offences of driving with a blood alcohol content in excess of the permitted maximum. The first offence was committed on 11 November 1978 and the second on the 21 November 1981. At the time he committed those offences the applicant was not the holder of a driver's licence. It was submitted that these offences were committed so long ago that they should have little weight in the exercise of the sentencing discretion. The learned magistrate said with respect to the prior convictions, "I note the two previous convictions you do have are as far away as 1982 and you've had no similar convictions since then. That is something in your favour." In my view that comment was generous to the applicant. By the Road Safety (Alcohol & Drugs) Act 1970, s17, Parliament has provided that in the case of a first offence an offender is liable to a pecuniary penalty and/or imprisonment for a period of six months. In the case of a second or subsequent offence contrary to s4 or s6 of the Act the maximum period of imprisonment is twelve months.

1. On several occasions, this court has made it clear that deterrence is an important factor in the proper exercise of the sentencing discretion upon convictions for offences against the Road Safety (Alcohol & Drugs) Act especially in cases where an offender has previously been convicted of similar offences. See for example Booth v Breen, Everett J 10/1980; Dobson v Clark, Green CJ 65/1983; Barrett v Pearce, Neasey J 6/1986 and a judgment of mine, Spaulding v Lowe 4/1985.

1. At the time the applicant committed these offences he had held a licence to drive a motor vehicle for only three years. Both offences involved the consumption of a very large quantity of alcohol before driving. Being a person with two previous convictions for offences against s6 of the Act, the commission of the second offence so soon after apprehension for the first offence entitled the learned magistrate to impose penalties which contained elements of both personal and general deterrence. Sentences of imprisonment and orders for disqualification from holding or obtaining a driver's licence were orders which the magistrate was entitled to make in the proper exercise of the discretion given him by Parliament. Considered individually and together it cannot be said that a sentence of 28 days' imprisonment on each conviction for driving under the influence ordered to be served cumulatively reflected error in the sentencing process.

1. There was nothing in the material put before the learned magistrate to indicate that error occurred in the omission to suspend the execution of the whole or any part of those sentences. With respect to the suspension of sentences I respectfully adopt the following remarks of Neasey J in R v Percy [1975] Tas SR 62 at p73:

"However, it is almost self evident that a sentence of imprisonment should not be suspended unless there is some reasonable prospect, from the circumstances of the case or the offender, that remission from actual imprisonment combined with the expectation that the sentence will have to be served if the conditions of suspension are breached will have sufficient deterrent effect; or will sufficiently move the offender towards reform of his conduct as to achieve that reformation."

1. The motion is dismissed.