McSweeney v Strickland

[1987] TASSC 109

Serial No B39/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              McSweeney v Strickland [1987] TASSC 109; B39/1987

PARTIES:  McSWEENEY, Dennis Patrick
  v
  STRICKLAND, Robert Rae

FILE NO/S:  LCA 28/1987
DELIVERED ON:  2 October 1987
JUDGMENT OF:  Underwood J

Judgment Number:  B39/1987
Number of paragraphs:  13

Serial No B39/1987
List "B"
File No LCA 28/1987

DENNIS PATRICK McSWEENEY v ROBERT RAE STRICKLAND

REASONS FOR JUDGMENT  UNDERWOOD J

2 October 1987

1. In the Court of Petty Sessions Launceston, the applicant pleaded guilty to driving under the influence of liquor and driving with a blood alcohol concentration in excess of 0.05%, namely, 0.25%, contrary to ss4(a) and 6(1) respectively, of the Road Safety (Alcohol and Drugs) Act 1970.

1. Upon the first charge, the learned Magistrate imposed a fine of $1000, ordered payment of Court costs and disqualified the applicant from holding or obtaining a drivers licence for a period of two and a half years. Both charges arose out of the same facts. The Justices Act 1959 contains no provision enabling justices to impose a single penalty upon conviction on more than one matter of complaint even though all convictions arise out of the same facts. Why this is so and why it remains so is not clear to me. However, no doubt because there is no power to impose a single penalty with respect to both matters of complaint, the learned Magistrate recorded a conviction for the breach of s6(1) of the Act and imposed a two and a half year period of licence suspension and disqualification to be served concurrently with the two and a half year period imposed with respect to the first matter of complaint.

1. The maximum penalty for each matter of complaint prescribed by s17 of the Act is ten penalty units ($1000) or six months imprisonment or both and a period of disqualification not exceeding three years. Section 17(2) makes provision for increased maximum penalties in the case of second or subsequent offences.

1. The motion to review contains four grounds which can be subsumed under the single ground that the penalties were manifestly excessive.

The circumstances of the offence

1. The applicant was drinking at the Wynyard Golf Club. Two events were being celebrated; the birthday of one of the group with whom he had earlier played golf and the achievement that afternoon, of a "hole in one". The applicant left the club at 8.30pm to drive to his home which was one and a half kilometres away. Most of this journey was along a narrow country lane which leads directly to the club. The applicant drove at a very slow speed and thereby attracted the attention of police who were patrolling the area. After travelling for about a kilometre the vehicle failed to negotiate a bend and hit a fence. The applicant got out of his car. He was unable to stand without support and taken into custody. When tested by breath analysis he showed a reading of 0.25%. He was unable to take part in sobriety tests. Apart from the police vehicle and perhaps one other, no traffic was encountered on the journey.

The circumstances of the offender

1. The applicant was aged 48 years. He was employed as the production assistant for Savage River Mines. He had held a drivers licence for 30 years and not previously been convicted of any offence nor involved in any accident. He travels about 30,000 kilometres per annum. As a matter of practice, the applicant telephoned his wife to collect him after drinking at the golf club but on the evening in question she was unwell and he decided to drive himself home.

The sentence

1. In imposing sentence the learned Magistrate correctly stated as a matter of general principle:

"The Parliament of this State has made it abundantly clear that persons who drink and drive are a prime cause of death and injury on our roads and it is an acknowledgement of that, that the Courts have been given extremely wide powers to exercise in appropriate cases, to punish persons who place the public safety at risk by drinking and driving."

1. The learned Magistrate then referred to the circumstances in which the offences were committed and the personal circumstances of the offender. He then said:–

"Giving full weight to all the mitigating factors which have been put on your behalf by your counsel, it nevertheless remains a serious episode of driving and I can indicate now that, but for your excellent driving record, that is to say, some 30 years of extensive driving experience without mishap or conviction of any kind, then this is precisely the kind of case that I would have thought a term of imprisonment was appropriate, notwithstanding your position in the community and notwithstanding the obviously responsible work that you do and the high regard in which you are held by your employer. However, when I give weight to those factors and balance all the matters before me I do not think that a term of imprisonment is the only appropriate penalty, nevertheless, it is clear that the Court must demonstrate to you and to others, that persons who behave in an irresponsible fashion like this are deserving of penalty."

The motion to review

1. The principles upon which this Court will interfere with a sentence imposed by a Magistrate are well settled and need no repetition. See House v The King (1936) 55 CLR 499; Cranssen v The King (1936) 55 CLR 509; Whittle v McIntyre [1967] Tas SR 263 (NC 6).

1. The pecuniary penalty imposed by the Magistrate was the maximum permitted by the statute and the period of licence disqualification just six months short of the maximum prescribed. Notwithstanding the provision of a separate subsection fixing higher maximum penalties in the case of second and subsequent offences, the maximum penalty for a first offence should be reserved for the worst cases. In Mallinder v The Queen (1987) 23 A Crim R 179 Vincent J said at p187:

"It has been stated on a number of occasions that the course of imposing the maximum available penalty should be adopted only in respect of what are appropriately regarded as the worst examples of the proscribed behaviour. That does not mean that it is necessary for the offence to be committed in the worst imaginable circumstances, but rather that the matter represents one of the worst examples of that conduct likely to be encountered in ordinary practice."

1. In the present case, the quantity of alcohol in the applicant's blood was of a very high order and consequently the potential for harm to other users of the road was great. However, the circumstances of the applicant, in particular his very long and totally unblemished driving history mitigate against the otherwise very serious nature of his offences. Although the learned Magistrate correctly articulated the balancing process inherent in the proper exercise of the judicial discretion, I have reached the conclusion that the imposition of a pecuniary penalty and period of licence disqualification very close to the permissible maximum demonstrates an error by failing to place proper emphasis upon the absence of any prior conviction or even accident over a very substantial period of time, the isolated nature of the offence, and the short distance the applicant was intending to travel.

1. An examination of affidavit material showing extensive examples of sentences imposed for breaches of the Road Safety (Alcohol and Drugs) Act clearly shows that this sentence is outside the range of sentences imposed for similar offences. In Breed v Pryce (1985) 80 FLR 209 Nader J referred to the legitimacy of examining sentences imposed in comparative cases. He said a p218:

"It is one thing to consider the disparity between the sentence imposed on two persons involved in the same or similar conduct; quite another to consider the disparity between the sentence imposed on one person and those imposed upon most, if not all, others for commission of the same kind of conduct. The sense of grievance engendered by the knowledge that one other person has been treated with excessive leniency is of a different and lessor order than the grievance produced by the knowledge that, in general, all other offenders are treated much more leniently."

1. Accordingly, the appeal is allowed and the sentences are quashed. In lieu thereof, upon the charge of driving under the influence the applicant will be fined $500 and disqualified from holding or obtaining a drivers licence for a period of twelve months. As the charge of driving with a blood alcohol content in excess of the prescribed minimum arises out of precisely the same facts, a conviction will be recorded upon that matter of complaint.