Millington v Lane
[2014] TASSC 7
•26 February 2014
[2014] TASSC 7
COURT: SUPREME COURT OF TASMANIA
CITATION: Millington v Lane [2014] TASSC 7
PARTIES: MILLINGTON, Adrian Doran
v
LANE, Richard
FILE NO: 935/2013
DELIVERED ON: 26 February 2014
DELIVERED AT: Hobart
HEARING DATE/S: 24 February 2014
JUDGMENT OF: Wood J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentence – Whether 15 month period of disqualification imposed manifestly excessive.
REPRESENTATION:
Counsel:
Applicant: S Chopping
Respondent: S Nicholson
Solicitors:
Applicant: Steven Chopping
Respondent: Director of Public Prosecutions
Judgment Number: [2014] TASSC 7
Number of paragraphs: 25
Serial No 7/2014
File No 935/2013
ADRIAN DORAN MILLINGTON v RICHARD LANE
REASONS FOR JUDGMENT WOOD J
26 February 2014
Adrian Millington pleaded guilty to an offence of driving whilst disqualified, contrary to s19A of the Road Safety (Alcohol and Drugs) Act 1970. He was sentenced by Magistrate S Cooper on 22 August 2013 to 70 hours of community service and a period of licence disqualification of 15 months. He applies to this Court to review his sentence on the ground that it is manifestly excessive. In arguing this ground the applicant gives particular attention to the length of the period of driving disqualification.
On 29 August 2012 at about midday the applicant was observed by police officers getting into the driver's seat of his motor vehicle. It was parked in Derwent Park Road across the road from Cravings Takeaway store. He was a real estate salesman and had driven to meet a potential purchaser to inspect a property. He was returning to his workplace when he stopped at the shop. There was nothing adverse about his driving which drew the attention of the police. He was not intercepted at that time. He was later spoken to by police officers and was co-operative. The applicant was disqualified from driving. The incident of driving was towards the end of a disqualification period of 18 months.
Some other facts of the offence were revealed during the plea in mitigation, although the details remained scant. The distance of driving was "not a long trip". Because of the nature of his work commitments he had employed a person, his cousin, to drive him for work purposes, but on the day of the offence that person was not available. The applicant was subject to financial pressure; it was said for the applicant in mitigation that his marriage had failed, and "he was having problems coping with financial matters and was suffering a great deal of stress in his employment." The applicant made an out of character decision on the spur of the moment caused by the stressors he was facing at the time. The applicant made the decision to drive, hoping he might sell the property.
It is noted that, as submitted for the applicant, there was an absence of aggravating aspects; no suggestion he was intoxicated while driving or that his manner of driving posed a danger to others. However, on the other hand, there were limited matters mitigating the offence. There was no necessity or compelling reason for the applicant to drive.
The 18 month period of disqualification which the applicant disobeyed had been imposed by the Magistrates Court by reason of an offence of drive a motor vehicle while exceeding the prescribed alcohol limit. The disqualification order was made on 23 June 2011 backdated to commence on the day of the offence, 19 March 2011. Evidently, the applicant had been served with an excessive drink-driving notice issued under s18B of the Road Safety (Alcohol and Drugs) Act and so he was subject to an immediate period of disqualification. When he was later sentenced the order was backdated to take account of that disqualification (s18B(6)). Thus, the offender had been disqualified from driving by force of a statutory notice from 19 March 2011, and by force of a court order from 23 June 2011. On the same court date the applicant was also sentenced with respect to an offence of drive whilst disqualified committed on 28 May 2011, during the same period of disqualification, albeit the statutory notice period before his court appearance. The penalty imposed for that prior offence was a fine of $300 and one month's disqualification to be served concurrently with the 18 months' disqualification period.
Hence, the offence under review was his second offence of drive whilst disqualified, committed just 15 months after the first.
Other relevant prior convictions included an offence of drive a motor vehicle while exceeding the prescribed alcohol limit and drive without due care and attention committed on 12 December 2008. He was sentenced on 21 April 2009 to eight months' disqualification. He has other prior convictions as follows: an offence for negligent driving and bald tyres in 1998, when his licence was disqualified for 15 months; an offence of drive without due care and attention in 2002; exceed speed limit in 2002, 2006, 2007 and 2010, and other regulatory offences such as failing to affix registration label, bald tyres, and an offence of failing to wear a seat belt in 2001. He was disqualified for three months in 2002 as a result of an accrual of demerit points.
He was 33 years of age at the time he was sentenced. During the plea in mitigation the court was informed that before his present position as a real estate salesman, he had held a position as a sales manager at Performance Automobiles, where he had worked for four years on a high income. He lost that position as a result of a period of disqualification, presumably the period commencing in March 2011.
By the time he was being sentenced for the offence under review, almost 12 months had lapsed since the offence had been committed. He had not reoffended. The period of licence disqualification had concluded, he had obtained his licence and resumed driving. He had obtained a new position as field manager with Visionstream, supervising the installation of the National Broadband Network in Hobart. It was a well-paid position. He had held that position for some six months. He was paying off debts that had accumulated.
It was submitted in mitigation that he was making a "very big effort" to rebuild his life. While he had had a number of "rough years" following the break-up of a long term relationship in 2009 and a period of financial difficulties, his situation had improved markedly. His relationship with his former partner was amicable and he continued to have shared care arrangements with his 4½ year-old daughter.
The learned magistrate ordered a pre-sentence report which was before him at the time of sentencing. The applicant was recommended as a suitable candidate for the imposition of a community service order. He was assessed for a supervised probation order but was considered to require only a low level of intervention and such a period was not recommended. He was described as having the necessary insight and personal resources to "appropriately manage his situation and circumstances into the future."
His new position with Visionstream involved a great deal of time on the road. The pre-sentence report noted that his work was "field based, requiring frequent daily travel between numbers of installation sites and prompt response times for inspections as determined by contracts between his employer and the Federal Government".
When the matter was relisted, the court was urged by the applicant's counsel to consider a penalty "which fell short of a disqualification of his licence or which is the shortest possible period of disqualification the court sees appropriate in the circumstances particularly disqualification will have a huge impact on the defendant's ability to continue with his Vision Stream [sic] employment." While the plea in mitigation did not go so far as to assert that he would certainly lose his employment if he was disqualified, the court was informed that it would be "jeopardised by a lengthy period of disqualification".
Before adjourning the proceedings for a pre-sentence report, the magistrate remarked that it was a serious matter; it was the second occasion in a short period of time he had driven whilst disqualified and he had done so without any reasonable excuse. Then, before imposing sentence, the magistrate remarked as follows:
"The circumstances surrounding the commission of that offence are relatively unremarkable. You were detected by police and you were driving in the course of your employment. You were well through a period of disqualification that had been imposed by the Court.
There's nothing aggravating about the manner in which you drove, however you need to understand that driving in defiance of a Court order is a serious matter indeed and routinely and regularly attracts sentences of actual imprisonment. Your record is, relatively speaking, an unimpressive one. I note that you are 34 years of age, I have regard to your personal circumstances. You do have a good work record and I note what has been said on your behalf by Mr Chopping."
The offence was contrary to the Road Safety (Alcohol and Drugs) Act, s19A. The penalty provision in subs(1) sets out applicable penalties for a first and subsequent offender as follows:
"(a) a first offence – a fine not exceeding 40 penalty units or imprisonment for a term not exceeding 6 months (or both) and a further period of disqualification (not exceeding 3 years) fixed by the court; and
(b)a second or subsequent offence – a fine not exceeding 80 penalty units or imprisonment for a term not exceeding 12 months (or both) and a further period of disqualification (not exceeding 5 years) fixed by the court."
The maximum penalties are substantial and reveal that the legislature considers that such offences should viewed as potentially grave: Parker v Whiteman [2012] TASSC 17 at [12] and [16].
The learned magistrate characterised the offence as serious. He was correct in his approach. As Porter J stated in Chatwin v Godfrey [2013] TASSC 70 at [16]: "the seriousness of driving whilst disqualified by virtue of a court order, particularly with a history of similar offending is well established". Generally speaking it is important that the penalties imposed for breaching a driving disqualification order serve the needs of both personal and general deterrence: Evans J in Parker v Whiteman at [14].
Whilst there is no mandatory minimum period of disqualification, the Court's power to disqualify drivers has been described as an important road safety tool and is an effective means of achieving the needs of general and personal deterrence: Evans J in Parker v Whiteman at [14]. The learned magistrate was correct to be mindful of the fact that this was the applicant's second offence of deliberately breaching court orders disqualifying him from driving in a relatively short period of time. That was a significant factor. There was warrant for the learned magistrate giving particular emphasis to the needs of deterring the applicant as well as others who may be inclined to disregard court orders.
In imposing penalty, magistrates are entrusted with a very wide discretion. This court is only concerned to rectify genuine error: Crawford J (as he then was) in Visser v Smart [1998] TASSC 151.
To warrant intervention on the basis of non-specific error, the sentence must be so excessive that it points to error; Burbury CJ in Whittle v McIntrye [1967] Tas SR (NC) 263, Cox J (as he then was) in Miller v Visser A32/1988, [1988] TASSC 41; the sentence must be "unreasonable or plainly unjust": House v R (1936) 55 CLR 499 at 505.
In assessing whether the sentence is manifestly excessive in this sense of unreasonable or plainly unjust, the whole of the sentence needs to be considered, including the community service order and not just the licence disqualification of 15 months. It was argued on review that a lengthy disqualification order was not required having regard to the totality of the sentence, including the community service order imposed. While the disqualification order is an effective tool in achieving deterrence, a community service order is also effective in this respect. A community service order can bring home to an offender the seriousness of an offence; in the case of driving whilst disqualified it can dispel notions of the offence being a mere regulatory breach, casting it in the light of culpable offending, noting that only an offence punishable by imprisonment may be the subject of a community service order: Sentencing Act 1997, s7(c). As the obligations under the community service order take effect, this serves as a regular reminder of wrongdoing. For a person who is employed, it will impact on their recreation time or upon them financially if their capacity to work overtime is affected. As a punishment visible to others it can underscore the seriousness of the offence and have effect in terms of general deterrence. However, in having regard to the severity or otherwise of the sentence, it is relevant to bear in mind that a community service order is a merciful alternative. The penalty provision for the offence here contemplates a gaol sentence for a first offender and up to 12 months' imprisonment for a subsequent offender. A community service order avoids the consequences of an immediate term of imprisonment on an offender such as immediate loss of employment, exposure to negative peer influences, and stigmatisation of an offender with adverse effect on future prospects.
Whether, in addition to a community service order a period of licence disqualification as long as 15 months was needed in order to achieve deterrence and to reflect the seriousness of the offence is a matter on which minds may differ. Of course, that is not to suggest error. Magistrates have a wide discretion in sentencing.
In having regard to the period of disqualification and whether it was excessive, the impact of that period on the applicant is obviously a relevant factor. The learned magistrate was informed that a lengthy period of disqualification placed his employment in jeopardy. Unless that was challenged or disputed in some way he was obliged to proceed on that basis. It is noted that the applicant was ineligible to apply for a restricted licence. In having regard to the potential impact of disqualification upon his employment, it must be remembered that while it is a relevant factor, it is the applicant who chose to put his employment at risk by committing the driving offence when his ability to drive was a core responsibility. Moreover, the previous instance of offending also placed his employment in jeopardy, and he in fact lost that employment; still he was undeterred. He has committed other driving offences in the past which have placed his employment at risk.
In conclusion, the sentence imposed of a community service order of 70 hours, combined with a period of 15 months' disqualification was, in this particular case and for this offender, a relatively heavy sentence with a clear and strong message of deterrence. The learned magistrate took the view that it was appropriate to give prominence to the needs of general and personal deterrence. I can discern no error in his Honour reaching that view and it was open to him. The sentence imposed was clearly within the very wide discretion vested in the learned magistrate.
The sentence was not manifestly excessive, and the motion to review will be dismissed.
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