Mundy v Crawford
[1987] TASSC 116
•5 November 1987
Serial No B46/1987
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Mundy v Crawford [1987] TASSC 116; B46/1987
PARTIES: MUNDY
v
CRAWFORD
FILE NO/S: LCA 34/1987
DELIVERED ON: 5 November 1987
JUDGMENT OF: Nettlefold J
Judgment Number: B46/1987
Number of paragraphs: 30
Serial No B46/1987
List "B"
File No LCA 34/1987
MUNDY v CRAWFORD
REASONS FOR JUDGMENT NETTLEFOLD J
8 November 1987
Notice to review orders made in the Court of Petty Sessions at Launceston on 9 September last whereby upon the applicant pleading guilty to charges 1, 2, 3 and 5 in a complaint which contained the following particulars:–
"1That on the 23rd day of August, 1987 on Vermont Road, a public street at Launceston in Tasmania, did drive a vehicle whilst alcohol was present in your blood in a concentration greater than the prescribed concentration of 0.05 of a gram of alcohol in 100 millilitres of blood, namely 0.20 grams of alcohol in 100 millilitres of blood. Contrary to Section 6(1) Road Safety (Alcohol & Drugs) Act, 1970
2That on the 23rd day of August, 1987 did on Vermont Road, a public street at Launceston in Tasmania, drive a vehicle which was required to be registered but was not then registered. Contrary to Section 14(1)(c)(ii) Traffic Act, 1925
3That on the 23rd day of August, 1987 on Vermont Road, a public street at Launceston in Tasmania, did use a vehicle in respect of which a premium had not been paid for the use of that vehicle at the time and in the circumstances and under the conditions in which it was so used. Contrary to Section 29(1) Motor Accidents (Liabilities & Compensation) Act, 1970
4That on the 23rd day of August, 1987 on Vermont Road, a public street at Launceston in Tasmania, when required by one Damien Owen a Police Officer then and there in the execution of his duty under the Traffic Act 1925 to state his name, address and date of birth he did state a false name, address and date of birth, namely Geoffrey Keith Smith, 52 Herbert St, Invermay, date of birth 9.12.52. Contrary to Section 41(1)(b) Traffic Act, 1925
5That being disqualified from obtaining or holding a drivers licence under the Road Safety (Alcohol & Drugs) Act, 1970 did on the 23rd day of August, 1987 drive a vehicle upon Vermont Road, a public street at Launceston in Tasmania, whilst he was so disqualified. Contrary to Section 19A(1) Road Safety (Alcohol & Drugs) Act, 1970."
The learned magistrate ordered as follows:
Charge one – convicted, sentenced to six months' imprisonment and disqualified for obtaining or holding a driver's licence for a period of four years cumulative to the existing period of disqualification.
Charge two – conviction recorded.
Charge three – conviction recorded.
Charge five – convicted and sentenced to six months' imprisonment cumulative with the sentence of imprisonment imposed on charge one.
The facts submitted by the Prosecutor were as follows:
At 7.55pm on Sunday 23 August police were conducting random breath tests on Vermont Road when they intercepted a Holden Kingswood being driven by the applicant. In due course the applicant returned a reading of .20 on a breath analysis.
The applicant was found to be driving a vehicle which was unregistered and uninsured and it was later ascertained that the applicant was in fact disqualified from holding or obtaining a licence to drive. The "vehicle had expired" on the 20 December 1986 and the applicant gave no explanation at the time. The traffic flow was medium and the weather was fine. The Prosecutor submitted a long list of prior convictions.
In a plea in mitigation counsel for the applicant said that the applicant was residing at 11 Box Street, Mayfield, and was aged 29 years. Counsel said that the applicant had been playing darts at the Park Hotel and had been drinking alcohol between matches. He "didn't realise that he'd gone so high with alcohol" and he went home at about 4pm. His wife was not home when he got there. He had only been married since the 1 August 1987. His wife is expecting his child in December. He has also taken responsibility for two of his wife's children.
His wife had not left him any note. There had been no disagreement with him that day. He had not realised that she was going to go out. He rang everywhere he thought his wife might be but could not find her. He was very concerned because his wife was suffering from cysts in the womb and was having trouble.
He could not raise his wife. He wondered whether she might be at a cousin's place at Ravenswood. He had been repairing a vehicle for a friend in the back yard and foolishly he drove that vehicle to Gardenia Place in Ravenswood. He found his wife was not there and on his way back to his home he was stopped at a random breath test location.
He did not realise at the time that the vehicle was not registered and was uninsured.
Counsel said that the applicant has had great difficulty in obtaining employment but in August 1984 he was able to get a job with the Port of Launceston Authority. He started in that job on the 16 August 1984. Counsel said "at the present time his employment classification is that of a leading hand brush hand. He is considered to be a hard working reliable employee".
Counsel accepted that the applicant's record was bad. But it was put that, if he did go to gaol, he would be back on "the scrap heap" as far as getting employment is concerned, back on social services "with all the worries that the community has to assume". He borrowed $5,000 from the ANZ Bank, Mowbray, on a personal loan not long ago to pay off $2,300 to Social Security and also to pay off a car which he had. He still owed money to GMAC and he sold the car and got $5,000 for that and used that money, plus the money he got from the bank loan, less the Social Security money, to make up the $7,000 to pay off GMAC Finance and clear the car off.
Counsel said that the applicant was working as a leading hand and assisting the dock master. It was submitted that the applicant was not alcohol dependent. It was said that he was living in a Housing Department house. His wages after deduction of superannuation and tax were $260 per week. His rent was $65 and he was paying $50 per week off the bank loan.
It was submitted that when he had previously been before the courts he had not had any permanent job but this time he did have permanent employment. Also, he had responsibility for his wife, the two children and the child which was expected.
Counsel made the following submission:–
If the court was able to exercise any leniency to enable him to keep his employment and also to discharge his family obligations it would assist the applicant "not to be pushed back on to the scrap heap of unemployment and social services and the break up of his home because of not being able to maintain the family and not being able to meet his commitments for the loan".
Counsel agreed that the applicant's record was a bad one but pointed out that the applicant had not been before the courts from January 1984 to February 1987 when he was convicted of taking partly protected wild life.
The following is a copy of the letter which was placed before the learned magistrate:–
"8–9–87
To whom it may concern,
Dear Sir Madam,
Tony Mundy has worked as my leading hand since I commenced employment as Dockmaster with the Port Of Launceston on October 6th, 1986.
I have found Tony to be a very hard and reliable worker capable of any task that confronts him, and he always gives his best effort to any jobs allocated to him. He is very popular with his workmates, and would be greatly missed from our work force should through any reason he be forced to leave.
In normal every day conversation Tony talks with great respect towards his wife and family, and I feel sure it would have to be through extreme circumstances that would give him the occasion to not put their thoughts first.
Yours faithfully,
GW Hiscock,
Dockmaster"
After an adjournment the learned magistrate made the following comments when sentencing the applicant:–
"I take into account all that's been said on your behalf. You were a recently married man before the commission of these offences I'm told, your wife is expecting a baby, you'd been out during the day at a hotel, you got home and she wasn't there and you became concerned and went looking for her. Whatever the reasons were that she wasn't there I don't really take any particular note of, but you were very unwise in the extreme to go looking for her by driving a motor vehicle when you'd already appeared in court on five separate occasions over recent times, over the last 10 years or so, and on those occasions were convicted of at least 11 separate offences under the provisions of the Road Safety Alcohol and Drugs Act. There is no view that one can properly take apart from the fact that you are a persistent offender under the provisions of the Road Safety Alcohol and Drugs Act. I take note of the particular circumstances applying at the time that relate to the commission of the offence, but quite clearly your claim for any individualised treatment has now subordinated to the public interest in demanding a deterrent sentence in a case of which you exemplify.
You are convicted on the complaint. Upon the charge of exceed .05, your reading I note is a high one of .20, you are sentenced to a term of six months imprisonment. Further upon that charge you are disqualified from driving, that to be for four years and that disqualification is cumulative to your existing period of disqualification. I record convictions upon the charges of unregistered use and uninsured use of a motor vehicle. Upon the charge of disqualified driving you are sentenced to a term of 6 months imprisonment, again that will be cumulative to the term just imposed, that means a total term of imprisonment of 12 months."
On this appeal, counsel for the applicant said that the applicant was released from prison on 15 May 1984 following a sentence on 17 January 1984. He had been in employment with the Port of Launceston Authority since August 1984. Counsel submitted that from 1975 to 1981 the applicant had been guilty of persistent serious breaches of the traffic laws and punished accordingly. I note in passing that in that period also he suffered the following convictions:
14 March 1975 Vagrancy
15 April 1976 In bar under age
16 July 1976 Drunk and disorderly Resist arrest
27 October 1977 Attempted burglary
8 February 1979 Robbery with violence
6 May 1980 Damage to property.
Since that period there are the following Traffic Act convictions:
17 January 1984 Exceed .05% – .19%
Drive whilst disqualified
First Year Driver
Alcohol in blood
Since that period there are the following convictions under laws other than the Traffic Act:
4 November 1982 Common Assault
23 March 1983 Indecent Language
17 February 1987 Take partly protected wildlife
Possess partly protected wildlife
Counsel submitted that having regard to that record, the court could properly conclude that there had been a change of heart on the part of the applicant "broken by a piece of aberrant behaviour born out of concern for his wife".
Counsel further submitted that there were a number of other factors which distinguished the applicant's situation from his situation when he was a persistent offender. They were:
(a)he had married recently and that union was soon to produce a child;
(b)the driving in question on this occasion "did not fit the joyride tag". The genesis of it was in care and concern for his wife who was pregnant and had the other health problem previously mentioned;
(c)his employment record had improved considerably;
(d)his financial circumstances suggested he was setting out to make a life for himself and his family.
In these circumstances counsel submitted that there was no need for a crushing sentence. Counsel further submitted that the learned magistrate's conclusion that the applicant's claim for any individualised treatment "has now subordinated to the public interest in demanding a deterrent sentence in a case which you exemplify" clashed with sound sentencing practice.
Counsel submitted that there was a case for the suspension or partial suspension of any sentence as the applicant "had himself embarked on a course of conduct consistent with being law abiding". Counsel also submitted that, in the light of all the circumstances, 12 months' immediate imprisonment was too much. The decision failed to take account of the endeavour of the applicant to get out of his "treadmill situation". Relying on a passage in Thomas: Principles of Sentencing, 2nd edn, p201, counsel submitted that even a relatively short gap in a criminal record should lead to some credit, if there is evidence of an attempt to adopt a stable pattern of life on release from the last sentence. Counsel submitted that the applicant really had made a genuine attempt "to get back on the rails".
Counsel for the respondent cited the cases which emphasise the importance of deterrence in this field. Counsel emphasised that the applicant's record was serious and that he is a mature man. Counsel for the respondent accepted that the courts do allow credit for a gap and that there were clear indications that the applicant had sought to rehabilitate himself. However, he submitted that there was a clear sentencing option open to the learned magistrate to refuse to extend to the applicant the benefit of an individualised approach. Learned counsel further submitted that the record showed that the learned magistrate had considered the relevant principles and applied them in taking a course which he was entitled to take. A consideration of the proceedings below do not supply clear evidence of error and, consequently, this court cannot interfere.
The careful and helpful arguments of counsel on both sides on this appeal have put me in a better position than the learned magistrate was in. With respect, I am satisfied that the learned magistrate did fall into error. The total sentence was too long having regard to the circumstances in which the offences were committed and the personal circumstances of the offender. The applicant is at an age now at which many offenders turn away from breaking the law and settle down to a law abiding pattern of living. His personal circumstances are such that he has several positive influences tending to direct him along that path. I have in mind principally that at the time of the hearing in the Court of Petty Sessions he had employment where he was proving to be useful and was valued, he had recently married, his wife was expecting his child and he had responsibility for his wife's other two children. The total sentence fails to give the applicant credit in respect of the gap in his record and the several positive factors mentioned above.
I now proceed to sentence the applicant on charges 1 and 5 in the complaint. On charge 1 he is sentenced to imprisonment for three months, that sentence to date from 9 September last. On charge 5 he is sentenced to four months' imprisonment cumulative with the sentence on charge 1. However, the execution of the whole of the sentence on charge 5 is suspended on the following conditions:–
(1)that he commit no offence against the provisions of the Road Safety (Alcohol and Drugs) Act 1970 for a period of two years from the date of his release from prison;
(2)that he commit no serious traffic offence during that period of two years.
I make the following orders:–
1Appeal allowed.
2Sentences of imprisonment on charges 1 and 5 in the complaint set aside and in lieu thereof the above sentences are substituted.
3The orders of the Court of Petty Sessions on charges 2 and 3 are confirmed.
4The further hearing of the notice to review is adjourned sine die.
I have made order 4 above because I wish to give both counsel an opportunity to consider whether the disqualification order is appropriate having regard to the emphasis on rehabilitation. I refer to Wise's case [1965] Tas SR 196 at 204.
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