Moore v Bryce

[2018] TASSC 52

[2018] TASSC 52

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Moore v Bryce [2018] TASSC 52

PARTIES:  MOORE, Luke
  v
  BRYCE, Susan

FILE NO:  2066/2018
DELIVERED ON:  18 October 2018
DELIVERED AT:  Launceston
HEARING DATE:  15 October 2018
JUDGMENT OF:  Pearce J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – Other matters – Review of sentence – Driving while not the holder of a licence – Persistent offender – Fine of $400 without disqualification manifestly inadequate.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  E Bill
             Respondent:  In person
Solicitors:
             Applicant:  Director of Public Prosecutions

Judgment Number:  [2018] TASSC 52
Number of paragraphs:  10

Serial No 52/2018

File No 2066/2018

SENIOR SERGEANT LUKE MOORE v SUSAN BRYCE

REASONS FOR JUDGMENT  PEARCE J

18 October 2018

1. This a prosecution appeal against sentence. The applicant is a police officer. On 9 July 2018 the respondent pleaded guilty to driving without a driver licence contrary to the Vehicle and Traffic Act 1999, s 8. She was sentenced by a magistrate, Ms S Cure, who convicted the respondent and fined her $400. The sole ground of appeal is that the sentence is manifestly inadequate. The notice to review was filed within the time limited for appeal under the Justices Act 1959, s 107(3), but was served three days after expiry of the 21 day time limit. The delay occurred because the police officers asked to serve the notice on the respondent were not sufficiently aware of the time limit. There could be no prejudice arising from the short delay. Whether the balance of justice favours grant of the extension depends on whether there is merit in the appeal.

2. The offence was committed on 13 February 2018. Police officers saw the respondent driving a red Hyundai on Tamar Street in Launceston. It was not asserted to the magistrate that there was any problem with the manner of her driving, but checks disclosed that although the car was registered in the respondent's name, she did not have a driver licence. The dominant factor in sentencing was the respondent's record which included:

   ·     twenty prior convictions for driving without a licence committed between 26 February 2003 and 11 November 2016;

   ·     two prior convictions for driving while disqualified committed on 6 October 2011 and 9 December 2011.

3. For those offences she had variously been convicted and fined and, on occasions, disqualified from driving. Both counts of driving while disqualified were dealt with on 2 October 2012, and one sentence was imposed. The respondent was fined $200, disqualified from driving for 12 months, and made subject to a probation order for 12 months. On 3 April 2017 she was sentenced for two counts of driving without a licence, fined $100, disqualified for a total of six months and her driver licence cancelled. That period of disqualification would have expired on 3 October 2017. The prosecutor told the magistrate that when the police apprehended the respondent, a search of the motor registry disclosed that she had held a novice L2 driver licence which expired on 3 October 2017. However, as the terms of the sentence imposed on 3 April 2017 suggest, that was not correct. The respondent had never held a licence of any sort. It is relevant to the assessment of the respondent's record that 15 of her prior convictions for driving without a licence were accumulated between 2003 and 2009. Three further instances of driving without a licence, and the two instances of driving while disqualified, all occurred in 2011. There was then a break of about five years before she offended again by driving without a licence on two further occasions at the end of 2016.

4. Before the learned magistrate the respondent was unrepresented. She pleaded guilty on her first appearance. At the time of the offence she was aged 40, and had 10 children aged between 2 and almost 20. She described to the magistrate some difficult personal circumstances: her father had died recently, she was having a hard time looking after her children, her eldest son was causing problems, and she had just moved from Hobart to get away from "drugs and stuff". She said that "after being caught last time I went and obtained a drivers' licence, got me Ls". She sought assistance from a community service to help her write a letter to support her application for a learner licence "because I'd been caught driving so many times". She claimed to have been given driving supervision by a cousin and a neighbour and hoped to not lose her licence because "I've done all the right things" and had never before "had a licence to lose". She told the magistrate that "I've got a licence now", presumably referring to the learner licence she had just told the magistrate about. She said that she had done a lot of the 50 hours driving she was required to do, and that she thought she could apply for her licence again "around December". She said:

   "You know … to take me licence off me today would set me back in a big way, you know what I mean."

5. The magistrate decided to take a lenient approach, with emphasis on the respondent's personal circumstances, and directed primarily at her reform. When sentencing her Honour said:

   "All right, well, from what you told me I think whilst most people would say I ought suspend or disqualify your licence, I'm going to require you to pay a fine and I'm going to encourage you to keep working on getting your licence so that you can be doing the right thing. It doesn't help if I keep disqualifying it, even though … you've got a terrible history ...

   I'm going to impose a four hundred dollar fine which I imagine you will have to pay off over time, and whilst this would call out for a suspension or a disqualification, I'm going to permit you to retain your licence so that you can get it, and it's very merciful, I'm sure you'd agree. Anyone watching this would think that I've stepped out of the usual imposition of penalties, given the number of times you've lost your licence, but I think there's something to be said about having you get a licence and comply with it."

6. Because the respondent's offence against the Vehicle and Traffic Act, s 8(1), was not a first offence, it was punishable by a fine not exceeding 40 penalty units or imprisonment for a term not exceeding three months. The offence falls within the category of offences for which Parliament has legislated for higher penalties for subsequent offenders. In addition, the magistrate had power under s 17 to disqualify the respondent from driving for any period. As was explained by Crawford CJ in Lusted v Saunders [2012] TASSC 6 at [11], the purpose of s 8 is to protect the safety of the public:

   "The law regarding licensing of drivers requires demonstration that the person is fit to hold a licence. That requires in turn demonstrated knowledge of the traffic laws, nine months' experience as a licensed learner driver, 50 hours' experience as an accompanied learner driver, and demonstrated competence as a driver. The requirement that those who wish to drive must first obtain a licence that authorises them to do so, is not a mere matter of revenue raising. Its purpose is the safety of the public."

7. Allowance is to be made for the broad sentencing discretion of a magistrate: Allen v Kerr (2009) 19 Tas R 132, 193 A Crim R 262. The applicant accepts that there should be room for mercy in a particular case but submits that, given the respondent's repeated offending over many years and the failure of sentences imposed in the past to deter her, the sentence imposed was lenient to the point of error. I accept that submission. The gravity of driving without a licence may vary according to the circumstances of a particular offence. An offence committed by a person who has no record of disregard for the driving rules, has held a licence for a long period, is eligible to hold a licence but, by oversight, has allowed it to expire, involves a low level of criminal culpability. At the other end of the spectrum, the offence may be committed by a repeat offender, intentionally disregarding the requirement to hold a licence, perhaps having never obtained one, and believing, because of repeated offending or a demonstrated incapacity or incompetence, it may be difficult or impossible to obtain one. For serious cases the penalty provisions in the legislation permit imposition of a sentence of imprisonment.

8. The offence committed by the respondent was serious because she had never had a licence, and, despite the frequency of her offending having reduced in recent years, she again demonstrated a disregard for the law. No explanation was offered for why she drove on this occasion. The offence demanded a sentence which marked her repeated offending, and a fine, without more, fell erroneously short of what was required. The respondent was not to be punished for her record, but it pointed to a strong need for specific deterrence, denunciation and protection of the public. The sentence on this occasion was more lenient than the sentence which was imposed on the previous occasion she was sentenced. I see no reason in this case to exercise the residual discretion to dismiss the appeal, despite being satisfied of error: see Cannell v Hughes [2014] TASSC 41; Lyons v Bakes [2015] TASSC 37; Parker v Hall [2015] TASSC 60; Wilkie v Cohen [2016] TASSC 14, 24 Tas R 227, and Merrigan v Oakley [2016] TASSC 58.

9. For those reasons I am satisfied that the motion to review should succeed and that I should re-sentence the respondent. The magistrate correctly recognised that, for a person with the respondent's record, disqualification from driving was ordinarily demanded. However I share the learned magistrate's obvious concern that imposition of a period of disqualification will result in a continuation of the cycle of offending which led to the present situation. The respondent does not have a bad record in any other respect. By the Justices Act, s 110(2AA), I may take into account any matter, relevant to sentencing, that has occurred between the relevant sentencing order and the hearing of this motion. The respondent is the holder of a current L2 learner driver licence which expires on 15 March 2021, and is marked "earliest test 16 Dec 2018". The respondent informed me that since being sentenced she has paid the fine imposed by the magistrate and, with the assistance of the friends and community services who have recently provided her with support, completed the required number of hours of driving experience. She will shortly be eligible, after expiration of the required time, to attempt to demonstrate her competence as a driver and apply for a provisional licence. It is not to be assumed that she will be granted a licence, but I think that it would benefit the community to impose a sentence which attempts to achieve the need for deterrence and punishment while allowing the opportunity for reform and rehabilitation. For that reason I had the respondent's suitability for community service assessed. Because of her family commitments performance of community service will be difficult for her, but I have concluded that a community service order is required to mark the seriousness of her offending. If the respondent fails to comply with the order, or re-offends, she can be brought back and re-sentenced. In that event, disqualification from driving would remain a sentencing option. Having been extended lenience on this occasion, if she were to drive without a licence again, she risks not only a long period of disqualification but also a sentence of imprisonment.

10. I order that the time for service of the motion to review be extended to 2 August 2018. The motion to review is allowed. I set aside the sentence imposed by the magistrate on 9 July 2018. I substitute a sentence in the same terms, noting that the fine has already been paid, but adding a community service order, and ordering that the respondent perform 35 hours of community service.