McShane v Ashwood
[2016] TASSC 50
•28 September 2016
[2016] TASSC 50
COURT: SUPREME COURT OF TASMANIA
CITATION: McShane v Ashwood [2016] TASSC 50
PARTIES: McSHANE, Aaron Charles
v
ASHWOOD, Michael (Sergeant)
FILE NO: 2075/2016
DELIVERED ON: 28 September 2016
DELIVERED AT: Hobart
HEARING DATE: 22 September 2016
JUDGMENT OF: Tennent J
CATCHWORDS:
Criminal Law – Sentence – Sentencing orders – Custodial orders – Other matters – Application relating to breach of an order suspending a sentence of imprisonment - Whether "unjust" to activate suspended sentence.
Sentencing Act 1997 (Tas), s 27(4B) and (4C).
Aust Dig Criminal Law [3352]
REPRESENTATION:
Counsel:
Applicant: A Slicer
Respondent: E Bill
Solicitors:
Applicant:
Respondent: Director of Public Prosecutions
Judgment Number: [2016] TASSC 50
Number of paragraphs: 25
Serial No 50/2016
File No 2075/2016
AARON CHARLES McSHANE v SERGEANT MICHAEL ASHWOOD
REASONS FOR JUDGMENT TENNENT J
28 September 2016
In 2012 and 2013, the applicant was charged with a number of offences on complaints numbered 6952/12, 7189/12 and 2322/13. After considerable delays, the applicant's matters were considered in a contest mention court before a magistrate, and the applicant was offered and accepted a sentence indication. On 10 July 2014, the applicant pleaded guilty to, and was sentenced globally in respect of, the charges on the three complaints. The global sentence was one of nine months' imprisonment which was wholly suspended for a period of three years. The offences on the complaints were as follows:
6952/12 (offending May, June and July 2012)
Possess controlled plant or its products, namely cannabis
Possess controlled plant or its products, namely poppy capsules
Cultivating controlled plant, namely cannabis
Possess a controlled drug, namely methylamphetamine
Possess a controlled drug, namely psilocybine
Selling a controlled plant, namely cannabis
Attempt to unlawfully import a controlled substance, namely methadone
7189/12 (offending July 2012)
Unlawfully import a controlled substance, namely methadone
2322/13 (offending February 2013)
Possess a firearm when not the holder of a licence
Possess an unregistered firearm
Possess loaded firearm in a vehicle in a public place
Possess shortened firearm
In 2015, the applicant committed three offences which were punishable by imprisonment. He was charged on three separate complaints, namely 8835/15, 91011/15 and 8458/15. These related to the following offences (the breaching offences):
8835/15 (date of offending 25 July 2015)
Drive a motor vehicle while a prescribed illicit drug was present in blood, namely methylamphetamine contrary to the Road Safety (Alcohol and Drugs) Act 1970 (the RSAD Act), s 6A(1)
91011/15 (date of offending 8 July 2015)
Drive a motor vehicle while a prescribed illicit drug was present in blood, namely methylamphetamine
8458/15 (date of offending 5 August 2015)
Drive a motor vehicle while a prescribed illicit drug was present in blood, namely methylamphetamine
On 26 May 2016, the applicant pleaded guilty to all three breaching offences, and was sentenced on 30 June 2016. At the same time, the sentencing magistrate dealt with an application pursuant to the Sentencing Act 1997 (the Act), s 27, for the applicant to be dealt with for a breach of the suspended sentence imposed on 10 July 2014. His Honour activated the suspended sentence, and ordered the applicant to serve the unserved portion of the sentence, namely nine months. His Honour then sentenced the applicant globally on complaints numbered 8835/15, 91011/15 and 8458/15, sentencing the applicant to four months' imprisonment. What the magistrate said at the time of sentence was that two months of that sentence were to be served concurrently with the activated suspended sentence, and the other two months were to be suspended. His Honour also made a probation order, and ordered the applicant to perform 70 hours of community service. While nothing turns on it for the purpose of this review, the record of proceeding sheets on the relevant complaints and the memoranda of sentence suggest that the whole of the four-month sentence of imprisonment, both the unsuspended and suspended portions, was to be served concurrently.
The sentencing remarks of the magistrate were as follows:
"Mr McShane, you've pleaded guilty to these three charges of driving while a proscribed illicit drug was present in your blood. The first one, it was committed on the 11th of May last year, at Margate. You'd used the drug the previous evening. You were intercepted on the day, fluid tested positive, blood was taken, you were charged – sorry, you were, I think, bailed then. On the 8th of July 2015, you were again intercepted, tested – the test was positive and we know from the – well, I know from the pre-sentence report that you were – you said that you had used that morning. On the 25th of July 2015, you used on the 24th but drove on the 25th at noon. You pleaded guilty to these charges and I note the matters raised in the pre-sentence report – you indicated you were using methylamphetamine on each of the occasions at the times that I've just outlined. You were familiar, it's said, police requests for drug tests – I infer – relevant to driving. I accept that you say that you had not felt the effects of the drug when you've driven, but I'm unable to see that that's really something that makes driving with the drug in your body much less serious. You stated that you knew that you'd done the wrong thing and that is reflected in your prior convictions, but you were regretful. I note that you acknowledge that it's a path you chose for yourself.
I note there's some green shoots of change in your life in your new relationship, and that since, at least the last of these offences, you've chosen not to drive in an attempt or an effort to avoid committing further offences. Now I assume, because you're not charged with any driving offences, that you're still potentially having a struggle to stay clean of the drugs that have obviously been a problem for you for some time. You are on the methadone program still; you're engaged with Alcohol and Drugs Services. It looks like you're attending every four to six weeks; doesn't say how long it's been going for and you've indicated that your screening tests are usually clear. That's a good thing, not a bad thing, I should make it perfectly clear, and the worker has made it clear that he was of the opinion that you would continue your engagement.
At least the drug and alcohol worker says that going to gaol will increase your level of stress and destabilise your current regime, and I acknowledge that, of course. You're eligible for some community-based orders. Mr Slicer's submissions focus reasonably heavily on the process of reform that is commenced, and I accept that's a reasonably strong submission.
In relation to the offending itself, I note that the driving isn't aggravated by any other offending such as speeding or driving without due care or any other traffic-related offending. It's simply driving with the drug in your body, which is prohibited by law. It's not your first offence – the 11th of May rather was your second offence. The first offence being relatively recently – August 2011, sentenced in February 2012. The – there's probably not much more to say about the offences other than the second of the three – sorry, the second and third of the three are more serious because at least on the 11th of May, you ought to have known to take much more care driving after consuming amphetamines. The second one was – the gap between use and driving on your own admission seems to have been shorter than on the first. The gap on the third – 24 hours earlier – I don't know that it really mitigates greatly that you've used the day before.
The – by that stage, one could have assumed that you had been absolutely assiduous in ensuring that you didn't drive unless you were certain there were illicit drugs in your blood.
The issue for today is that these three drug driving offences put you in breach of a suspended sentence which was imposed in February – sorry, July 2014. The July 2014 suspended sentence was for – yes – nine months, and that period of imprisonment was suspended for three years. That is, until July 2017. These offences were committed nearly on the anniversary of that, or just after, well, 10th of May, 11th of May, 8th of July – or around the anniversary, over a period of about six weeks – eight weeks – 10 weeks –
MR SLICER: Your Honour, just before you go on – the dates of the charges are 8 July, 25 July and 5 August 2015 – you've –
HIS HONOUR: I've got that 11th of May wrong, have I?
MS WALSH: Yes, that's –
MR SLICER: Yes, you've just been mentioning May –
HIS HONOUR: I have.
MR SLICER: It was a little bit later, but I just thought I'd –
HIS HONOUR: I know – I've been – I've looked at his birthday instead of the offence date. Thank you. So the 5th of August, so, but look, I'm grateful for the correction, but nothing turns on that. It just means it's a shorter period of offending, but none of the other observations or comments I've made are affected by that. It still is the case that these offences happened on, around the anniversary of that previous nine-month sentence. The nine-month – the imposition of that sentence and the circumstances of it are important because that was a suspended sentence that was given to you on an occasion where a previously suspended sentence was activated. So you've been given a chance earlier; you've breached that sentence that was activated, but the Court obviously took the view that your situation warranted a further chance to be extended for you to rehabilitate yourself and to avoid an immediate custodial sentence. You were therefore given that chance that the law provides, that if you avoid committing another offence punishable by imprisonment during the period of the order – three years – then you wouldn't actually have to serve it. But you did, and the three offences that you committed were drug-related; they were drug-driving offences – you had methylamphetamine in your body on each of the occasions. The situation then, in relation to suspended sentence is – I start with those observations, then go through as Mr Slicer did, quite correctly, each of the relevant factors. I'll go through them as well.
The progress made by you in your – in relation to your rehabilitation, I note. They're not insignificant. I don't actually have any enormous detail around that, but I accept what's in the pre-sentence report without reservation. I note the disproportion between the original offence – that serious – importation of firearms offences, but I note that these second, third and fourth driving offences are also drug offences and are regarded as serious by parliament. The – it couldn't be said that you reverted to criminal conduct comparable to the conduct that you got the nine months' suspended for. However, there is that element of the presence of methylamphetamine in your blood. That sort of drug-related offending at least has a resonance when comparing the two offences.
You are attempting to make – or you are making an attempt at rehabilitation – I'll accept that. The issue I suppose that I pause to have to consider is whether there's been an observance of the conditions of the suspended sentence for the period of suspension and there hasn't – this is not an isolation lapses as submitted – this is a lapse on the 8th of July, a further lapse on the 25th of July and a third lapse on the 5th of August, if one's using the language of lapses was submitted on your behalf. I think you could forgive one such lapse – it's really difficult to forgive a second and the third is really making it impossible, in my view.
I think the suspended sentence was supposed to have an effect of you staying out of trouble – serious trouble – for the period of the suspended sentence. My assessment of things is that the three drug-driving offences together mean that it's just too difficult for me to conclude that it would be unjust not to activate that sentence. The approach by the Court on the last occasion was to activate a suspended sentence and to provide you with some further incentive to rehabilitate yourself, and looking at it, it probably hasn't worked – well, it hasn't worked at least insofar as this offending was concerned. So it's just too difficult I think to ask the Court to take exactly the same approach again.
What I propose to do is this: you're convicted of the three charges. That puts you in breach of the suspended sentence, which I activate. I backdate that for the 17 days, backdate that for 17 days – if you could calculate that date while I finish providing these reasons. The – turning to the sentence for the new offending, as I said, it's second, third and fourth offences – each of them is punishable by a period of six months disqualification, and given what I've just been told about you voluntarily staying off the road, which is also in the pre-sentence report, I'm going to limit it to that. There are no aggravating circumstances. The big problem here for you is committing a drug-related offence which was aggravated by the fact that you're on a suspended sentence for, among other things, drug-related offences.
A repetition of the offending while aggravating, I don't think I need to punish you by further than what I regard as the minimum six months' times three – that is, an 18-month period of disqualification from today. The – anybody who committed three of these on the trot, I think would expect to get at least a suspended sentence without a record like yours. With a record like yours, I think that most certainly needs to be an actual term, but given the submissions that have been made this morning, I don't want to actually see you serve a period of imprisonment beyond that of the nine months that will be served on the breach. So I'm going to run the sentence of imprisonment I'm going to impose here concurrently with that, because I think there are, as I say, some positive hopes that you can put this period of serious offending behind you. You've got a supportive relationship – I think that's probably the incentive to continue rehabilitation that you may not have had previously. But you need to understand that if you commit any further offences, the same thing will happen – you'll go back to gaol; you'll go back to gaol.
There's a four-month sentence of imprisonment. I'm going to run two of those months concurrently with the current sentence of imprisonment. To go back to the commencement date of that will be the 13th of June, so the – it just occurs to me that I'm not going to know what your release date is, and I'm concerned about the commencement date of the suspended part of this sentence ought to be. Well, I'll tell you how I can do it. I'm going to order that you serve two months concurrently with the sentence I've just activated, and the following two months is suspended for a period of 18 months from today.
That's suspended on the same condition – that if you commit any offence which is punishable by imprisonment, you've got a further two months' imprisonment to serve. In addition to that, in addition to that, there'll be the condition that you perform 70 hours community service and submit to the supervision of a probation officer for a period of 12 months. The reason I'm not imposing a longer actual or suspended prison term on the fresh offending is the availability of these two community-based orders. The probation part of that order will carry the usual condition relating to either period of probation, you must submit the testing for alcohol and drug use as directed by the probation officer; you must undergo assessment for the treatment for alcohol and drug dependency, as directed by a probation officer, which is really aimed at supporting your engagement with Alcohol and Drug Service upon your release.
I'm aware that part of the period of disqualification will be served while you're in custody but I don't propose to do anything in relation to that, acknowledging, I think, that for some time, you've essentially been off the road, which in the public interest I think irrelevant when I determine the starting point for that period of disqualification. The costs are payable at –
CLERK: Costs of a hundred and eighty-six, forty-eight and a victims of crime levy of sixty dollars are payable.
HIS HONOUR: Look, I'll just impose the victims of crime levy in the circumstances, sixty dollars, 28 days from your release to pay that. Thanks, Mr McShane."
On 20 July 2016, the applicant filed a notice to review the orders made by the magistrate on 30 June 2016. The grounds of the review were in the following terms:
"1The activation of the suspended sentence is unjust/unfair in all the circumstances.
2 The said sentence is manifestly excessive, in all the circumstances."
During the course of the hearing, I clarified with counsel for the applicant just what he meant by his grounds of review. He agreed that ground 1 was an assertion that the magistrate erred in law in failing to determine, by reference to the Act, s 27(4C), that it would be unjust to activate the suspended sentence imposed on 10 July 2014, and thereafter acting in accordance with that section. As to ground 2, that was an assertion that a combination of the activated sentence and the new sentence was manifestly excessive. Counsel ultimately abandoned ground 2.
Applicant's offending history
There is other offending of relevance to this review. On 22 June 2011, the applicant was convicted in this Court of one count of manufacture of a controlled drug for sale, one count of cultivating a controlled drug for sale, and trafficking in a controlled substance. He was sentenced to 11 months' imprisonment which was wholly suspended on condition that he commit no offence punishable by imprisonment for a period of two years. He was also ordered to perform 210 hours of community service. The pre-sentence report obtained by the magistrate for the offending, the subject of this review, outlined that while the applicant ultimately completed those hours he initially did not, and breach proceedings were contemplated.
When the applicant was dealt with on complaints numbered 2322/13, 6952/12 and 7189/12 on 10 July 2014, there was an oral application that the applicant be dealt with for a breach of the suspended sentence imposed on 22 June 2011. While it does not appear on the applicant's prior matters, I infer from the outcome that the magistrate who dealt with that application determined that it would be unjust to activate the whole of the suspended sentence, and instead imposed a substituted sentence by reference to the Act, s 27(4C). The magistrate ordered that the applicant serve four months' imprisonment. I raise that simply because it shows that the applicant has on a previous occasion had the benefit of a finding that it would be unjust to activate the entirety of a suspended sentence, and yet proceeded to breach yet another suspended sentence.
Ground 1 – was it unjust to activate the suspended sentence?
The Act, s 27(4B) and (4C), provides:
"(4B) If, on the hearing of an application under this section, the court is satisfied that the offender has been found guilty of a new offence, the court must activate the sentence of imprisonment that is held in suspense and order the offender to serve it.
(4C) If the court is of the opinion that an order under subsection (4B) would be unjust, the court may instead –
(a)activate part of the sentence that is held in suspense and order the offender to serve it; or
(b)order that a sentence (in this section called the 'substituted sentence') take effect in place of the suspended sentence; or
(c)by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or
(d) make no order in respect of the suspended sentence."
The starting point in dealing with applications for breaches of suspended sentences is that, if an offender commits a new offence during the period of suspension, the Court must activate the whole of the sentence. It is only if the Court is satisfied that it would be unjust to activate the sentence, that the options outlined in s 27(4C) are available. In the present case, the learned magistrate determined that it would not be unjust to activate the suspended sentence and did so. It is that decision which underpins ground 1.
As counsel for the applicant noted, the question of what might amount to a finding of it being unjust to activate a suspended sentence was dealt with by Wood J in Tanner v Brown [2011] TASSC 59. Her Honour said the following about s 27(4C):
"86 This provision was inserted by amendment (number 76 of 2009) commencing on 1 January 2011. Other amendments facilitated breach proceedings, allowed for the inclusion of community service and supervision as conditions of suspended sentences, and introduced a mandatory set of conditions for all suspended sentences. The overall effect of the amendments was to make suspended sentences a heavier sanction than they had been before the changes were introduced.
87 The new provisions mean that there is a presumption that the suspended sentence will be activated. Moreover, if the court is not of the opinion that an order would be unjust then there is no discretion to be exercised and the sentence must be imposed.
88 The question for the sentencing magistrate was whether an order requiring the sentence to be served would be 'unjust'. As to what is unjust and what factors might give rise to such an opinion is left to the court to determine. Parliament has not sought to constrain the court's consideration of this question by reference to a list of criteria or by confining, in any way, the category of cases that may qualify as unjust. There are no words of limitation upon the exception of unjust (cf Sentencing Act 1991 (Vic), s31(5A), which has the same exception of unjust but with the qualification of 'exceptional circumstances'). The question is to be answered by reference to the circumstances of each case and the court's assessment of the weight to be given to those circumstances.
89 The Second Reading Speech supports what is clear from the ordinary meaning of the provision (Acts Interpretation Ac 1931, s8B) that the use of the word 'unjust' is deliberately non-prescriptive. Parliament has eschewed any words that would have the effect of requiring the courts to impose suspended sentences when it was unjust to do so.
90 Before the amendment to the Sentencing Act, s27 came into effect, the section provided simply that the court 'may' impose one of the following orders: that the sentence take effect; a substituted sentence; or a variation of the conditions of the suspended sentence. The approach of the Tasmanian courts before the recent amendment was that offenders faced the prospect of serving their sentences in the event that they re-offended during the period of suspension: Attorney-General (Tas) v Blackler (2001) 121 A Crim R 465 at 470 par[15] per Crawford J (as he then was) and Slicer J. This has been the situation for a long time: see Greaves v Smith [1986] Tas R 120 regarding an earlier provision relating to breach proceedings. The approach has been that generally speaking if an offender has been given a chance in the form of a suspended sentence and he or she re-offends and wastes that opportunity, then the suspended sentence should be activated. No doubt there always has been a consciousness that if the court's response is not reasonably predictable the sanction of suspended sentences is undermined. The magistrate in this case, commenting upon a presumption in favour of serving the sentence, was alert to this mind-set.
91 By the amendment to the Sentencing Act, s27, Parliament has sought to harden the court's approach by enshrining in statute a policy that generally, suspended sentences are to be served in the event of a breach by an offender. The only exception is if it would be unjust to activate the sentence. The reasons driving the amendment are undoubtedly those imperatives that have been recognised by courts in Tasmania and other jurisdictions. In R v Buckman (1988) 47 SASR 303, King CJ spoke about the legislative policy in the South Australian legislation. Even though the legislation in South Australia was in different terms the discussion about the legislative policy identifies the considerations underpinning our new provisions:
'There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.
Parliament has recognised, however, that in some cases the rigorous application of the ordinary consequences of breach can be oppressive and even unjust.'
92 In R v Marston (1993) 60 SASR 320, King CJ referred to what he had said in Buckman, quoted above, and went on to note:
'It is of great importance that the courts adhere to that principle. Departure from it by the non-revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders.
Nevertheless, as Buckman's case (supra) clearly recognises, and as, indeed, the section recognises, there are circumstances in which it is proper to refrain from revoking the suspension of the sentence.'
See also R v Moylan [1970] 1 QB 143 at 146 - 147.
93 In considering whether an order would be unjust, and whether an individual case should be regarded as an exception to the general approach, it is helpful to bear in mind remarks made by Neasey J in Greaves v Smith (supra) at 7, when considering an earlier provision regarding breaches of suspended sentences under the Justices Act 1959, s74C. These general remarks about the approach to be taken still hold true under the new regime:
'The powers which thereupon arise in the court relate to the subject of punishment for the original offence. The scheme set up under s74C requires the court when the breach has been proved to consider the question of penalty for the original offence, in the light of the circumstances of that offence and of the offender, of the sentence then imposed, and in the light of all relevant matters which have occurred since. Such relevant matters usually include the nature of the breach and the gravity of it, but only as matters incidental to the overall question of penalty for the original offence. The objective of the suspended sentence option is reformative as well as penal, and the matters which need to be weighed when breach of suspended sentence has been proved require a careful exercise of judgment.'
94 Ultimately, the question of whether it would be unjust to activate a suspended sentence will depend on an evaluation of the individual circumstances of each case. In assessing this question of whether it would be unjust to activate the sentence 'the objective of the suspended sentence option as reformative as well as penal' is to be borne in mind. Thus, relevant factors may include those that indicate the progress made by an offender in relation to his rehabilitation. Some of the factors mentioned in the judgments in Buckman and Marston are indicative of this consideration: disproportion between the original offence and the breaching offence or offences; whether the nature of the offence suggested that the offender has lapsed into a non-law-abiding way of life; and the question of whether the offender had reverted to criminal conduct comparable to the offence for which the suspended sentence was imposed. Allied to this consideration were matters referred to in Buckman that the offender was making a genuine attempt at rehabilitation and that there had been an observance of the conditions of the suspended sentence for 18 months. In summary, relevant to the reformative aspect of the suspended sentence option is whether the suspended sentence is having its desired effect in terms of rehabilitation of the offender. See also Stanitzki v Higgins (1994) 63 SASR 309.
95 I have considered cases from other jurisdictions with similar legislative provisions incorporating a test of 'unjust'. There has been judicial consideration of provisions in Queensland and Victoria that used the terms 'unjust to do so in view of all the circumstances that have arisen since the suspended imprisonment was imposed'. Relevant considerations that were canvassed included the offender's attempts at rehabilitation, the seriousness of the offences giving rise to the breach, whether those offences are similar in character to that which gave rise to the suspended sentence, and the time lapse from the imposition of the suspended sentence to when the offences were committed: R v Bowen [1997] 2 Qd R 379, R v Holcroft [1997] 2 Qd R 392, R v Holley, ex parte Attorney-General [1997] 2 Qd R 407, DPP v Newman [1998] 1 VR 715.
96 It must be emphasised that the weight to be given to factors that weigh in an offender's favour such as considerations indicative of an individual's reform will vary from case to case depending upon the circumstances. As noted by Neasey J in Greaves v Smith the 'matters that need to be weighed when breach of suspended sentence has been proved require a careful exercise of judgment'. Even if a consideration is deserving of significant weight does not mean that it will be determinative. The penal nature of the suspended sentence must be given weight, ordinarily a suspended sentence is meant to operate as a last chance and there are sound reasons in principle for activating the sanction in the event the person breaches it. See R v Moylan (supra) at 146 - 147. As stated by Callaway JA in DPP v Newman, at 718, it is a case of balancing the factors to which King CJ referred (which are set out in the passages quoted above) against the circumstances of the individual offender and the court's desire, as in all cases, not to take a more severe course than is warranted by all the relevant considerations, including the public interest. It is necessary to keep foremost in mind the statutory imperative that the sentence be activated unless that consequence would be unjust.
97 The learned magistrate correctly approached the matter on the basis that the starting point was that the sentence ought to be activated. The determination that the sentences should be re-suspended was based on the view that to do otherwise would be unjust. The questions arising from this notice to review and canvassed in the submissions are not about the approach taken by the magistrate, but the outcome reached and whether it was open to the magistrate to conclude that it would be 'unjust' to activate the sentences."
In the present case, counsel for the applicant made submissions about a number of the considerations to which Wood J referred and generally. He submitted that:
· Rigorous application of the ordinary consequences of breach can be oppressive and even unjust;
· Consideration must be given to all circumstances which have arisen since the suspended sentence was imposed;
· There was a disproportion between the original offence and the breaching offences;
· There was a marked disproportion between the seriousness of the breaching offences and the length of the sentence which was activated;
· The nature of the breaching offences did not suggest a return to criminal conduct comparable to that in respect of which the suspended sentence was imposed;
· There was progress and attempts at progress which the applicant had made towards rehabilitation and reform;
· The applicant had not committed any new firearms offences or any relating to possession/importation of drugs; and
· The new offences did not suggest the suspended sentence was not having the desired effect in terms of rehabilitation.
At the time the magistrate dealt with this breach application, the applicant had, less than two years before, been dealt with for breaching a suspended sentence imposed for major drug offences in 2011.
To succeed on this ground, the applicant bears the onus of establishing that the sentencing magistrate's decision was "unreasonable or plainly wrong": DPP (Acting) v Pearce [2015] TASCCA 1, per Pearce J at [8], citing House v The King (1936) 55 CLR 499 at 505.
There is no doubt from the magistrate’s reasons that he considered all of the factors to which counsel for the applicant has referred. Counsel's submissions were in general terms that, even allowing for that, the conclusion reached by the magistrate was "unreasonable or plainly wrong".
His Honour referred to the applicant's attempts at rehabilitation. He referred to the applicant's new relationship, his cessation of contact with pro-criminal associates and continued engagement with drug and alcohol services.
As to the nature of the breaching offences, counsel for the applicant submitted they were different from those which resulted in the suspended sentence, and did not indicate a return to the same type of criminality. They were driving offences, and there was no indication that the manner of the applicant's driving when intercepted suggested he was impaired in any way. It was also put that when the applicant was intercepted on the first occasion, that is 8 July, a swab was taken which reacted positively to drugs, and a blood sample was taken. The applicant did not know until after the third occasion, about a month later, that he was to be charged with three separate offences. I infer that that was because the confirmatory blood tests had not been finalised. It appears the applicant was charged only with the offences under the RSAD Act, and was not charged with any possession or use offences.
With respect, counsel's submission about the impact of the different type of offences on the magistrate's decision must be rejected out of hand. I accept that the breaching offences were offences under the RSAD Act, and not under the Misuse of Drugs Act 2001, as were most of the offences which were dealt with on 10 July 2014. In that sense, they were different offences. The tenor of counsel for the applicant's submissions however appeared to involve a comparison, not between the offences which resulted in the suspended sentence on 10 July 2014 and the breaching offences, but a comparison between the offences which resulted in the suspended sentence in June 2011 and the breaching offences. I accept that the offending dealt with in this Court in June 2011 was certainly more serious than the breaching offences.
On 10 July 2014, the applicant was dealt with for eight offences under the Misuse of Drugs Act and four offences under the Firearms Act 1996. The drug-related offences were committed over a three-month period in the middle of 2012, and the firearms matters were committed in February 2013. It is accepted the breaching offences did not include any firearms matters. The drug related offences involved the possession of cannabis, poppy capsules, methylamphetamine and psilocybine, the cultivation of cannabis, the sale of cannabis and the importation and attempted importation of methadone.
The breaching offences all involved the applicant in, prior to driving on three separate occasions, possessing and using methylamphetamine. I appreciate the applicant was not charged with possession and use of that drug. However, as a matter of fact, he did both three times. Counsel for the applicant submitted that somehow the fact that the applicant did not know after his first interception on 8 July 2015 that he would be charged with an offence under the RSAD Act rendered his offending less serious. That submission is also rejected. The applicant, on three separate occasions over a period of a month possessed and used methylamphetamine and then drove. He knew he had used the drug and then driven. His position seemed to be that he had allowed what he thought to be sufficient time between taking the drug and driving, and his manner of driving was not obviously impaired, therefore the offending was not particularly serious.
Parliament has provided that it is illegal to drive with certain drugs in your system. Like alcohol, some drugs have the potential to impair driving skills and that is the reason Parliament has sought to proscribe this sort of activity. Parliament did not provide that driving with certain drugs in your system is not illegal if you do not think at the time you are affected by the drugs, and there were no obvious signs of impairment. The applicant clearly considered on three separate occasions that he was not bound by what Parliament has directed. He was clearly still involved in what I might describe as the "drug scene". The fact that the actual offences were different, in my view, in this case provides no assistance at all to the applicant.
Counsel for the applicant also submitted that the applicant, at the time of the 2015 offending, was well established on the path to rehabilitation. He was in a new relationship and was continuing with engagement with drug and alcohol services. He submitted that any offender on a path of rehabilitation was going to hit an occasional bump, and that that was what happened to the applicant. He relapsed into drugs in the middle of 2015. However, it is characterised, the applicant was still using drugs in the middle of 2015. It may well have been a "relapse" but it was not a momentary one. The use of drugs and driving occurred on three discrete dates over about a month. There was little before the magistrate which might have provided comfort that such a relapse would not occur again, and that the suspended sentence was achieving its goal.
There are, in my view, other relevant factors. The offences which constituted the breach of the order made 10 July 2014 occurred about 12 months into a three-year period of suspension. Further, this was not the first time the applicant had been dealt with by the courts for breaching a suspended sentence imposed for drug-related offending by committing other drug related offending. While the whole of the suspended sentence was not activated on the earlier occasion, part was. The applicant had to have been aware in July/August 2015 that he was running a significant risk in driving with drugs in his system at a time when he was the subject of a suspended sentence.
In my view the applicant has not established any error on the part of the magistrate and this ground must fail.
Outcome
Given ground 1 failed and ground 2 was abandoned, the notice to review is dismissed.
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