Miller v Visser
[1988] TASSC 41
•10 August 1988
Serial No 32/1988
List "A"
CITATION: Miller v Visser [1988] TASSC 41; A32/1988
PARTIES: MILLER
v
VISSER
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 15/1988
DELIVERED ON: 10 August 1988
JUDGMENT OF: Cox J
Judgment Number: A32/1988
Number of paragraphs: 18
Serial No 32/1988
List "A"
File No LCA 15/1988
MILLER v VISSER
REASONS FOR JUDGMENT
Notice to review a sentence of 4 weeks' imprisonment for driving while disqualified and a further 2 weeks' imprisonment for a third offence of driving a motor vehicle with alcohol present in the blood in a greater concentration than that prescribed, contrary to sections 19A(1) and 6(1) respectively of the Road Safety (Alcohol & Drugs) Act 1970 ("the Act") .
The applicant is a 26 year old woman separated from her husband for 2 years prior to the offences and having the custody of a 3 year old child. On 30 July 1986 (shortly after the separation commenced) she was convicted of her first offence against section 6(1) of the Act. The driving had occurred on 18 July 1986, the reading was .15% and she was fined $150 and disqualified for driving for 9 months. Her second such conviction was recorded on 23 March 1988, the driving having occurred on 11 March 1988 and the reading being .11%. She was fined $300, $200 thereof was suspended on conditions and she was disqualified for driving for 18 months.
The offences leading to the sentences appealed against occurred on 14 April 1988 when she was stopped for a random breath test in the city of Launceston at or about 2.20 a.m. Her reading was again .11% and the act of driving constituted a contravention of the order of disqualification made less than 3 weeks before. In addition the car she was driving was not registered and the required insurance premium had not been paid. These two offences were punished by way of fines and have no relevance to the issues before me.
On 6 June 1988 she pleaded guilty to all four charges and was represented by counsel who made the following plea in mitigation:–
"The defendant is 26 years of age, she is separated and she has one child 3 years of age who is in her care and control. The defendant separated some 2 years ago and at the time she owned a business in Launceston that being a hairdressing and beautician business. Her child was ill. She had to take the child to work in order to continue with the business and there was a lot of pressure on her, and this pressure eventually led to the separation between her husband and herself. The business was sold and the defendant's husband who has not accepted the separation continues to place pressure on the defendant for a reconciliation. During this period the defendant accepts that her behaviour has been totally irresponsible and she has in fact tried to ignore the pressures upon her and the responsibilities which she now faces by running away from them and it is her appearance in court or rather the fact that she was charged on this occasion that has bought her to the realisation that her behaviour has been totally irresponsible and an effort to run away from things which simply are not going to go away and unless she faces the pressures and faces the situation her child and she have little future. The child does in fact see the father and he has custody of the child or access to the child every second weekend. That is the only time available for this defendant to go out socially and she has taken advantage of that time. It's not a situation where the defendant has been irresponsible in her duties as a mother she is not leaving the child alone to socialise. However, on the opportunities that she has to go out she has certainly taken full advantage of them and has conducted herself in a manner which she is now not very proud of. She has no explanation to put before the court for her reason for driving on this particular evening given that she had been disqualified some three weeks prior. She herself sees it as a totally irresponsible act and can only put to the court that she has now given the very stark realisation that she may well as a result of her actions face gaol on this occasion and she has come to the realisation that the effect that that would have on her life and the fact that it is now time to take stock of the way she has conducted herself. She has made enquiries in relation to social work and that is a course which she has some interest in undertaking at the beginning of next year when the child is of school age. She has prior to her separation when she went on the Supporting Parents Benefit, she had up until that time worked continuously and had got to the point as I said earlier where she was able to purchase her own business. She has completed a course as a beautician and that was a 3 year diploma course and she has done two years of her hairdressing apprenticeship although she did not continue with that so she has been put in somewhat unusual circumstances during the last two years because, being a person who has continually undertaken further education and continually wanted to advance herself, her life has done a complete turnaround. She is now aware that that is not the way in which she wants to conduct herself and she to that effect wants to go back and as I say has made enquiries about going back to college as soon as she is able to do so. I have nothing further to put before the court. As I say the defendant does not wish to put any explanation to you apart from the fact that she now realises the stupidity of her ways. I would ask your Worship to note however that this defendant did not in anyway attempt to cover the fact when asked by the police as to her licence. She was frank and open as to the situation with them."
The learned magistrate adjourned sentence until the following day when prior to dealing with these matters he accepted a plea of guilty by the applicant to a charge of being drunk and disorderly on Friday 25 March 1988 at 3.35am outside the Hotel Tasmania in Launceston. The applicant was not represented by counsel in respect of that plea. She said that she had been celebrating a girlfriend's birthday. It appears she had little memory of the incident. The learned magistrate imposed a fine of $40.00. He then proceeded to deal with the charges arising out of her driving on 15 April 1988. This is what he said:–
"Now Mrs Miller in relation to the other matters that's the driving matte. Driving whilst disqualified is a serious offence as it consists of defiance of the law and the fact that it nullifies the effect of an order of disqualification which in your case was part of the penalty imposed for a breathalyser offence. The effectiveness of orders of disqualification from holding or obtaining a driver's licence depends upon observance by them of the persons disqualified. You were disqualified on 23rd March 1988 for 18 months for your second breathalyser offence. Your first breathalyser offence was committed in July 1986 so you have now committed three breathalyser offences in 2 years. To combine a breathalyser offence with driving whilst disqualified is very serious. It is a flouting of the law. I have considered the matter carefully but Mrs Miller in view of your repeated offences on the breathalyser and your driving whilst disqualified without any reason or excuse I consider I have no option but to impose a sentence of imprisonment. You are sentenced to six weeks' imprisonment, that is 4 weeks' on the charge of driving whilst disqualified and two weeks' for exceeding .05, a total of 6 weeks' imprisonment and you are disqualified on the breathalyser charge for a period of 12 months for holding or obtaining a drivers licence cumulative to your present disqualification. The matters of the unregistered and the uninsured vehicle – the unregistered vehicle: I impose a fine of $25, costs of $14.10 and a fine of $45 on the charge of uninsured. In relation to all the fines I allow 3 months for payment from the date of your release from prison."
The applicant's grounds of appeal are as follows:
"1 The learned magistrate erred in law in imposing a sentence that was in all the circumstances manifestly excessive.
2 That the learned magistrate erred in law in failing to call for and receive before sentence a pre–sentence report and/or a report under the Alcohol and Drug Dependency Act .
3 That the learned magistrate erred in law in holding that, or proceeding to sentence on the basis that, the offence of driving while disqualified was aggravated by concurrently driving with a blood alcohol reading in excess of .05, and that the driving with a blood alcohol reading in excess of .05 was aggravated by being committed concurrently with driving whilst disqualified."
I shall deal with the second ground of appeal first.
It is clearly established by authority that the failure of a judge or magistrate to obtain a pre–sentence report is capable of vitiating the exercise of his sentencing discretion if as a result the materials before him are insufficient to enable him to properly consider all the factors which he is required to consider before passing a sentence. Hrvojevic v The Queen, CCA 24/79; Conlan v Arnol, 56/69; Every v McGrave, 48/71; Suckling v Ling, [1973] Tas.S. R. (NC) 12; Murray v Harris, 33/74 and Hardy v The Queen, CCA 8/80. Whether or not in any given case it does vitiate the exercise of that discretion is a question depending on the circumstances of the particular case. It suffices to say in the present case that not inconsiderable background information was provided to the learned magistrate by counsel for the defendant at the Court of Petty Sessions and counsel who appeared to argue the motion was unable to point to any other factual material which such a report might have revealed. In my view, there is no substance in the ground so far as it relates to the failure of the learned magistrate to procure a pre–sentence report.
The failure of a sentencer to procure a report under the Alcohol and Drugs Dependency Act has likewise on occasions been held to result in his sentencing discretion miscarrying. In Bird v Groves (Everett J 10/82) the learned magistrate had material before him which demonstrated that there was a real question whether the defendant might have suffered psychological andor brain damage due to alcohol. His counsel had specifically requested that such a report be procured before sentence was passed for driving under the influence (section 4(a) of the Act), driving with a concentration of alcohol in the blood exceeding the prescribed concentration namely .20 (section 6(1) of the Act and driving whilst disqualified (section 19A(I) of the Act). Everett J upheld a similar ground of appeal based on the learned magistrate's failure to obtain such a report because had it been such that the magistrate was satisfied that the applicant was suffering from alcohol dependency then his Honour considered that it was the duty of the magistrate at least to consider whether or not the provisions of section 30 of the Alcohol and Drugs Dependency Act should have been applied. (These allow for treatment orders and the suspension of sentences conditional upon the defendant applying for admission to a treatment centre).
Neasey J in Fisher v Strong, 5482 which raised the same–ground of appeal said at p3:–
"… it is for the applicant in such a case as this to show that the court acted on insufficient materials in imposing sentence, in the sense that it could and reasonably should have obtained more adequate information. See also per Everett J in Bird v Groves, unreported, Serial No 10/82. It is in general a discretionary matter for a sentencing tribunal, to be exercised in accordance with all the circumstances of the case, whether or not it decides to obtain further information in the shape of a report from an appropriate officer or authority, such as a pre–sentence report by a probation officer, a psychiatrist's report, or the like. The discretion miscarries only when it can be said that the sentencing function of the court below was not properly or adequately performed because it did not avail itself of the opportunity of obtaining such a report."
He declined to uphold the appeal because on the evidence it was plain that the learned magistrate had no sufficient reason to contemplate seriously the making of an order under section 30 of the last mentioned Act and therefore his discretion did not miscarry because he failed to obtain such a report.
I think the same can be said of the present case. The evidence indicated periodic abuse of alcohol by the applicant but as her counsel pointed out it was on the limited occasions she had to socialise that she chose to take full advantage of them and to behave in an irresponsible manner. Any suggestion that alcohol had interfered with her ability to perform her maternal duties was repudiated and the whole tone of the plea was that she had in the past chosen on selected occasions to act irresponsibly, had now seen the error of her ways and was ready willing and able to behave in a responsible way of her own accord. The additional incident outside the Hotel Tasmania in respect of which counsel had no instructions had likewise been a social occasion and appeared to fit the same pattern. In all the circumstances, the learned magistrate had no occasion to apprehend that any order under the Alcohol and Drugs Dependency Act was reasonably likely to be called for. I add, for what it is worth, that no attempt was made on the hearing of the motion to introduce any further material such as medical reports or other evidence as to the effect of alcohol upon the applicant which had any tendency to confirm the existence of alcohol dependency on the part of the applicant. This ground of appeal is not made out.
The third ground of appeal is based on some obiter dictum of Green CJ in Dobson v Clark, 65/83. There the applicant was dealt with by the Court of Petty Sessions for an incident of driving while he wars disqualified under the Act and while his blood alcohol concentration exceeded that prescribed. In the course of sentencing the applicant for both offences, the learned magistrate said words which indicated that he regarded the fact that the applicant drove a motor vehicle whilst the amount of alcohol in his blood exceeded the prescribed concentration as a significantly aggravating circumstance of his offence against section 19A of the Act. In respect of the breathalyser offence (which was the applicant's third such conviction) the learned magistrate imposed a fine and disqualification and in respect of the offence of driving while disqualified, he imposed a short term of imprisonment. The learned Chief Justice said of the view apparently taken by the magistrate:–
"... with great respect, although that was a relevant consideration, the learned magistrate fell into error if, as a result, he imposed a heavier sentence than he would have imposed had that circumstance not been present. It was not an ingredient of the charge and the applicant had already been punished for driving whilst the concentration of alcohol in his blood exceeded the prescribed concentration."
His Honour declined however to intervene because if the learned magistrate had placed more emphasis on the presence of alcohol in the blood in that quantity it did not result in the imposition of an inappropriately high sentence.
In the present case I see no warrant for saying that the learned magistrate regarded one offence as aggravating the other. He did not use any such expression when addressing the applicant and the imposition of separate cumulative sentences of the kind imposed indicates prima facie that he kept the elements of each of fence distinct in his mind. The fact that her act of driving did involve two separate offences in respect of which she was sentenced did undoubtedly bring about a serious situation and was relevant to a determination of the kind of punishment for each which was appropriate. When he said that in view of her repeated offences on the breathalyser and her driving whilst disqualified without any reason or excuse he considered he had no option but to impose a sentence of imprisonment, he was saying no more than that he considered in the exercise of his discretion that of all the punishments available to him that of actual imprisonment was the appropriate one and it was his duty therefore to act accordingly. This ground of appeal fails.
The remaining ground of appeal asserts that the sentence was manifestly excessive. I take this to mean that the sentences whether taken in the aggregate or individually were manifestly excessive. The imposition of any sentence of actual imprisonment is a course not lightly taken. That is so especially in the case of youthful and first offenders. Nevertheless, the intrinsic seriousness of the offence itself or the repetitious nature of the offender's infractions may, in the public interest, require such a sentence to be imposed. The applicant had never previously suffered such a penalty and having regard to her circumstances it could not be anything but a very unpalatable one to her. Nevertheless, her conduct on 14 April was a serious infraction of the obligations imposed upon her under the Act. She drove in defiance of an order of disqualification imposed less than 3 weeks earlier and while, for the third time in less than 2 years, the concentration of alcohol in her blood exceeded the prescribed amount. On each such occasion the reading indicated a substantial excess over that amount even if the last two readings might be said to be in the light to medium range of those commonly encountered by the courts.
On a number of occasions, judges of this Court have stressed the importance of deterrence in the case where a person convicted before a court of an offence under the Act of driving with a blood alcohol concentration exceeding the prescribed concentration has been convicted previously of similar offences. See Booth v Breen, Everett J 10/80; Spaulding v Lowe, Underwood J 4/85: Dobson v Clark, Green C.J. 65/83; Barrett v Pearce, Neasey J 6/1986 ; Ling v Wakefield, Wright J 41/86. In Lowe v Burridge, 31/86, Neasey J said:
"Where such offences are repeated the question whether it is necessary to impose a deterrent penalty becomes of particular importance and it is incumbent upon courts which are considering the imposition of penalty in such a case to consider that matter carefully".
His Honour's comment was made on a prosecutor's appeal against the inadequacy of a sentence which fell short of imprisonment. I respectfully agree with his remark.
The gravity of a deliberate infringement of an order of disqualification has also been stressed in the past especially if the order has been made only shortly before the offence (Kube v Barrett 20/86) . The learned magistrate was quite right to observe that the effectiveness of orders of disqualification depends upon observance by them of the persons disqualified. The present offence involved a blatant disregard of an order recently made and conduct demonstrative of the lack of effectiveness of the previous penalty as a deterrent to the applicant from conduct prohibited by the Act.
In my respectful opinion the imposition of short terms of imprisonment cumulative upon each other was within the discretion of the learned magistrate. The words of Burbury CJ in Whittle v McIntyre, [1967] Tas SR (NC) 263 are no less valid today:
"It is necessary to say emphatically that a police magistrate in deciding what the appropriate penalty is for an offence, is entrusted by the law with a very wide discretion. An appellant is not entitled to ask the Supreme Court to substitute its opinion for that of the police magistrate. The appeal against sentence is a limited appeal. The Supreme Court can only properly allow an appeal against sentence if it plainly appears that the police magistrate made some error in the exercise of his discretion or that a sentence imposed is so manifestly excessive that it is only explicable upon the view that the police magistrate did err in some way."
While a shorter period of imprisonment might also have been within the learned magistrate's discretion or a suspension of it on terms or even an alternative such as community service orders, it cannot be said that the sentences he did impose were manifestly excessive or otherwise the product of error. To acknowledge that such alternatives may still fall within the proper exercise of his discretion does not conflict with the sentencing policy referred to by Nettlefold J in Bell v Lowe B5/1988, citing R v O'Connor [1987] VR 496 and Duncan v The Queen (1983) 47 ALR 746, namely, that the imposition of a prison sentence should be avoided wherever a reasonable alternative is open, particularly, in the case of young offenders. If the sentencing tribunal properly directing itself, views such alternatives as not being reasonable and appropriate in the circumstances, then that discretion should not be interfered with. An appeal court may not intervene merely because it considers a non–custodial sentence would not have been manifestly inadequate and might have been a reasonable alternative.
In the present case the unexplained and deliberate act of driving in contravention of an order of disqualification imposed only a few weeks earlier and the repetition of the offence against section 6(1) of the Act after such a recent conviction, apparently convinced the learned magistrate that an actual sentence of imprisonment was the appropriate penalty in the circumstances. It has not been shown that he was in error in concluding that any lesser penalty was not a reasonable alternative. The appeal should be dismissed.
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