Nichols v McCullough
[2017] TASSC 75
•14 December 2017
[2017] TASSC 75
COURT: SUPREME COURT OF TASMANIA
CITATION: Nichols v McCullough [2017] TASSC 75
PARTIES: NICHOLS, Benjamin Ray
v
McCULLOUGH, Julie
FILE NO: LCA 2773/2017
DELIVERED ON: 14 December 2017
DELIVERED AT: Hobart
HEARING DATE: 5 December 2017
JUDGMENT OF: Geason J
CATCHWORDS:
Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving with more than prescribed concentration of alcohol in breath or blood – Sentence and penalty – Whether sentence manifestly excessive.
Aust Dig Traffic Law [1158]
REPRESENTATION:
Counsel:
Applicant: D Marcenko
Respondent: S Thompson
Solicitors:
Applicant: Ogilvie Jennings
Respondent: Director of Public Prosecutions
Judgment Number: [2017] TASSC 75
Number of paragraphs: 42
Serial No 75/2017
File No LCA 2773/2017
BENJAMIN RAY NICHOLS v CONSTABLE JULIE McCULLOUGH
REASONS FOR JUDGMENT GEASON J
14 December 2017
The applicant moves the Court to review an order of Magistrate S Cooper made on 25 September 2017 on a complaint for an offence contrary to s 6(1) of the Road Safety (Alcohol and Drugs) Act 1970 (the Act). The amended notice to review raises two grounds. The first ground is that the sentence is manifestly excessive in all the circumstances. The second ground is that the learned magistrate erred in that he failed to invite the applicant to make submissions as to how the sentencing discretion ought to have been exercised in determining the period of disqualification.
The applicant returned a reading of 0.067 grams of alcohol in 100 millilitres of blood. Upon his plea of guilty to the charge of exceeding .05, the applicant was sentenced to two months' imprisonment. He was disqualified from holding or obtaining a driver's licence for a period of 15 months, to commence upon his release from prison. He was ordered to pay the costs of the complaint and the relevant victims of crime levy. The applicant was taken into custody, where he spent four days prior to a grant of bail pending the determination of this appeal.
The applicant had filed and served an application for a restricted licence under s 18 of the Vehicle and Traffic Act 1999. After sentencing the applicant, the learned magistrate described that application as "entirely deficient", advised him that he had no chance of receiving a restricted licence in view of his history, and "the law required to be applied", and dismissed it.
The applicant was unrepresented in the proceedings in the Magistrates Court.
The applicant does not challenge the learned magistrate's decision to impose a custodial sentence, nor the duration of the suspension of his licence. The focus of ground 1 of the appeal is on the failure to suspend the custodial component of the sentence.
The offence
At 6.27pm on Sunday, 18 December 2016, random breath tests were being conducted by police on the East Derwent Highway near the Bowen Bridge overpass. The applicant submitted to a breath test and returned a positive result. He then submitted to a breath analysis and returned a reading of 0.58 grams of alcohol per 210 litres of breath. He was arrested and charged. He requested a blood test and was transported to the Royal Hobart Hospital for that purpose. The blood test returned the reading 0.067 grams of alcohol per 100 millilitres of blood, and the complaint was amended to record that result and the applicant was sentenced on that basis.
After the facts were read to the court by the prosecutor, the learned magistrate adjourned the matter to enable preparation of a pre-sentence report. According to the transcript, his Honour had in mind assessment of the applicant for community service orders, noting that this was the applicant's fourth drink driving offence since 2003. The learned magistrate said:
"I'm going to have you assessed for Community Service orders, this is your fourth drink/driving offence, as I see it, since 2003. I have you in March of 2003, April of 2003, and August of 2010, not to mention some driving whilst disqualifieds [sic]. So you're looking actually at a sentence of imprisonment in relation to this offending, notwithstanding the fact that it was a low level, the question for me is whether there should be some other order or some order that should suspended [sic]."
When the matter came back on, the learned magistrate asked the applicant if he wished to say anything about the pre-sentence report. The learned magistrate added, "… is there anything in addition to what's in the report you think I should I [sic] know about so far as it relates to your offending?"
Thereupon the applicant said:
"The majority of my offending, your Honour, was done back in time prior to meeting my current wife and I was not in a good state of mind. Since meeting my wife I've changed total direction and my life on track. I barely drink, I don't take drugs anymore at all, I've quit smoking. I'm more family orientated than what I previously was eight years ago."
Immediately after that short submission, the court turned its attention to another matter, standing this matter down. Upon its resumption, the learned magistrate again invited the applicant to advise if there were any other matters he wanted the court to take into account before sentence was imposed. The applicant indicated that he had nothing else to add. A short exchange followed between the magistrate and the prosecutor, during which the prosecutor reminded the court that there was a restricted licence application filed, and commented that if a disqualification was to be imposed then, and given certain deficiencies in the restricted licence application, the applicant would be required to start the disqualification immediately. The magistrate indicated that that issue was the least of the applicant's concerns, and noted that the restricted licence application would not be dealt with until after sentence had been imposed in any event. The court then proceeded to impose penalty:
"You've pleaded guilty to one count of drink/driving, when you returned a reading of zero point zero six grams of alcohol in a hundred millilitres of blood and one count of breaching bail by failing to appear in court when you were ordered so to do.
The facts in both cases were relatively unremarkable. The random breath test was just that, you were pulled over for the purpose of a random breath test. Surprised, you said, at the reading you returned, you elected to have a blood test and it returned the reading you did. It appears from the pre-sentence report and also other material you filed that what occurred was you'd been at your mother's place. You'd had some sort of disagreement with your mother. On your way home you stopped to allow one of your children to use the toilet, it was a toilet in a pub. You went into the pub and for reasons that are not clear you decided to drink three whiskeys. You then got back in the car. Your wife was in the car, who could have driven, you chose to drive with her next to her and the kids in the back and you are where you are today because of that. You failed to appear in court because of mix up in your dates.
I have before me your history of prior offending. You have been convicted of offences against the Road Safety Alcohol and Drugs Act in March of 2003, April of 2003, August of 2010. In addition, you've been convicted of driving whilst disqualified in August of 2010, March 2000, June 2002, November 2003. In addition, you have several other breaches of court orders. You have driven unlicensed as well as on three occasions failed to appear in court and you've been dealt with for all of those things.
You have received the full range of all the sentencing options available to the Court, including undertakings, which you breached, fines, periods of disqualification, which you breached probation orders, Community Service orders, partially suspended and wholly suspended sentences, and you have continued to offend.
Whilst there is nothing particularly aggravating about either of the offences and, I accept that you pleaded guilty, it was a low reading and there was a measure of cooperation on your behalf, your record is such, it so bad that no leniency that would – might otherwise be available should be afforded to you.
The sentence that I'm about to impose must serve to deter you and to deter other persons from offending in this way in the future. On the charge of contrary to the Road Safety Alcohol and Drugs Act, noting it's the fourth occasion you've offended against that legislation, I convict you. You are sentenced to two months' imprisonment. You are disqualified from holding or obtaining a driver's licence for a period of fifteen months which will commence upon your release from prison. You will pay the costs of the complaint and the applicable Victims of Crime Levy. On your applic – in respect to the charge of failing to appear I record a conviction and order you to pay the costs of the complaint and the applicable Victims of Crime Levy.
Your application for a restricted licence is entirely deficient and in the circumstances, if you wish to persist with it, I'm happy to deal with it now but I tell you, you've got no chance of receiving a restricted licence in view of your history and in view of the law must be applied.
Now do you want me to determine it? I dismiss the application, you go into custody please?"
In Barrett v Wilson [2015] TASSC 3, Pearce J said at [9]:
"A court determining a motion to review a sentence imposed by a magistrate on the grounds of manifest excess or inadequacy must not interfere unless a clear case of error is shown. The appellate court may not substitute its own opinion for that of the sentencing magistrate merely because it would have exercised the sentencing discretion in a different way: Whittle v McIntyre [1967] Tas SR (NC 6) 263; Lowndes v The Queen (1999) 195 CLR 665 at [15]. A ground contending that the sentence was manifestly excessive can only succeed if it is established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen (1992) 1 Tas R 234 at [13]; Visser v Smart [1998] TASSC 151; Lusted v Kenway (2008) 50 MVR 533 at [38]. This Court must be persuaded of error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. The applicant must show that the sentence is so obviously excessive that the sentencing discretion must have miscarried; or to put it another way, the sentence is plainly outside the proper limits of the wide discretion vested in the magistrate: Allen v Kerr (2009) 19 Tas R 132; (2009) 193 A Crim R 262. A sentencing court has a wide measure of latitude that is to be viewed with respect and restraint by appeal courts: Postiglioni v The Queen (1997) 189 CLR 295 per Kirby J at 336–337."
Those principles are well understood.
Manifest excess
In Pearce v The Queen (1998) 194 CLR 610 at 624 [46], McHugh, Hayne and Callinan JJ said, "Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision." That is because, as was noted by Heydon J in Hilli v The Queen [2010] HCA 45, 242 CLR 520, the circumstances of crimes, and the characteristics and prior convictions of offenders are so various and any number of combinations and permutations of facts can emerge making inevitable "a range of legitimate outcomes". The High Court said in Hilli v The Queen (above), at [60], "… what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence".
The oft repeated principles articulated in House v The King (1936) 55 CLR 499 afford sentencing judges a wide measure of latitude which will be respected by appellate courts: Postiglioni v The Queen (above) at 336 per Kirby J. Summarised, the effect of the authorities is to establish that sentencing courts are conferred with broad discretions which are to be respected by appellate courts.
Consistency in the application of principle is the legal obligation which attaches to the sentencing process. The search for numerical equivalency in sentences is liable to mislead if it is relied upon to establish legal error. A departure from a sentencing range may expose a misapplication of principle, but differences in sentencing outcomes, simpliciter, will not establish error. The Act imposes a fetter on the "wide measure of latitude" by imposing a requirement that at least the minimum penalty is to be imposed, and imposing a higher minimum in respect of those offenders who have breached the Act previously. "Such provisions are based on the assumption that in enacting a provision of that kind, the intention of the legislature was that where the punishment imposed for a first offence has not operated as a sufficient warning or deterrent to an offender, a higher penalty is then to be imposed for a further offence": Barrett v Wilson (above) per Pearce J.
Considerations
The applicant presented very little information to the court about his personal circumstances, nor any detailed account about the circumstances of his offending. He was not asked questions about these matters in a way which directed his attention to them as relevant considerations in reaching a conclusion about an appropriate penalty. Nor was he invited to speak to the prior matters shown in his record of prior convictions, including anything about the circumstances of that earlier offending he thought might be relevant to explain them, put them in context, or disclose his response to the penalties imposed, and insights derived from those experiences. That sort of information can be useful to a court in sentencing, and typically would be addressed by a legally represented party, especially when the appearance is for a fourth offence against the Act.
To some extent the contents of the pre-sentence report overcame the deficiencies in the applicant's submissions. The circumstances of the offence were disclosed, and were as set out in the magistrate's comments on sentencing.
The pre–sentence report informed the magistrate that the applicant was 35 years old and had been married to his current partner since 2012. He has two children from the relationship. It also noted that he has two children from a previous relationship, to whom he has regular access. The report indicated that work commitments and a young family consumed most of his time, and recorded that he had completed his apprenticeship in building and has been self-employed as a residential builder for the past 10 years. The report stated that the applicant had an income of about $3,000 gross per fortnight, and mortgage repayments of $800 per fortnight. It noted that his business has a large unpaid bad debt of $124,000 as a result of a client who did not pay. It is recorded that he has other debts of about $40,000, $20,000 of which is owed to the Tax Office. The report recorded that the applicant had endured a difficult financial period and was continuing to carry on his business.
In relation to other sentencing options, the pre-sentence report indicated that the applicant was willing to undertake community service orders and recorded successful completion of previous orders. However, the probation officer stated that the applicant was not suitable due to his current work and family situation. This proposition is not elaborated upon in the report. It was not the subject of any further inquiry at the time that he was sentenced, nor was it referred to in the comments on passing sentence as a reason for not imposing community service type orders. The magistrate was not bound by the probation officer's conclusions in that regard.
In relation to the imposition of a probation order, the report indicated that the applicant was not recommended for such order due to his having limited criminogenic factors which he needed to address.
Prior matters
The applicant had three previous convictions under the Act. In March 2003 he was convicted for exceeding the prescribed alcohol limit in November 2002, presenting with a reading of 0.94; in April 2003 he appeared on a charge of exceeding the prescribed alcohol limit with a reading of 0.106, that offence having been committed on 19 October 2002. That is a little less than a month prior to the other matter. His third offence under the Act was committed in June 2009, and he was sentenced on 17 August 2010. The reading was 0.145. For that offence the applicant was sentenced to 14 days' imprisonment, wholly suspended for 12 months on a condition he be of good behaviour, and he was disqualified for one month. He had been convicted also, for driving whilst disqualified in March 2000, June 2002 and November 2003.
The respondent put to the court that ordinarily a substantial lapse since the last conviction may persuade a court to treat an offender not as a persistent offender but as a person who has made a genuine attempt to reform, and whose offence was an aberration: McCoy and Johnson v Fenton [1960] Tas SR 149 at 154. The respondent submits, however, that the fact that the applicant continued to commit driving offences even after the last conviction against the Act, militates against such inference. The Court rejects that submission. After the offence against the Act for which sentence was imposed in 2010, the only matters in respect of which the applicant has convictions are matters which have been dealt with on traffic infringement notice. They were, in the main, relatively minor infringements and not attended with the salutary effect of a court attendance. The learned magistrate did not refer to them in determining sentence.
Whilst this is not a case that challenges the adequacy of the learned magistrate's reasons for sentence, it is appropriate to recognise that a pleading to the effect that a sentence is manifestly inadequate or manifestly excessive, is a statement of a conclusion, and it is necessary to identify matters which sustain or defeat that contention, in order to reach a conclusion about it. They are the matters which will inform the answer to the question of whether the sentence is unreasonable or plainly unjust: Dinsdale v The Queen [2000] HCA 54, 202 CLR 321, per Gleeson CJ and Hayne J at 325, [5]-[6].
The question for this Court is whether the sentence which was imposed was unreasonable or plainly unjust: House v The King (above); Dinsdale (above). In this case the learned magistrate placed considerable emphasis on the applicant's prior convictions. Whilst he was required to do that, less attention was given to the applicant's progress or signs of rehabilitation since he was last before the court in 2010. His response to the penalties which were imposed in respect of those previous offences against the Act was largely ignored. In sentencing the magistrate said:
"You have received the full range of all the sentencing options available to the Court, including undertakings, which you breached, fines, periods of disqualification, which you breached probation orders, Community Service orders, partially suspended and wholly suspended sentences, and you have continued to offend."
Whilst the Court acknowledges that in a busy summary court the time for careful analysis of a defendant's antecedents will not always exist, an analysis of this applicant's prior offending discloses not just the significant passage of time since the last breach of the Act, but also that the two previous sentences, the operation of which was suspended, had been followed by substantial periods during which no offence was committed. There were some six years between the offence in April 2003 and that in 2009 (for which the applicant was sentenced in 2010), and another seven years until this offence was committed. This offence was acknowledged to have been in the low range, and not attended by any aggravating circumstances. Nevertheless, the learned magistrate concluded that "your record is … so bad that no leniency that would – might otherwise be available should be afforded to you".
Relevantly, there was no consideration of whether the sentence of imprisonment which was about to be imposed should be suspended, a course permitted by s 7 (b) of the Sentencing Act 1997. The possibility of a sentence other than imprisonment or the suspension of such a sentence, had been acknowledged by the learned magistrate on a previous occasion, at which time the matter was adjourned for a pre-sentence report. The circumstances which called for consideration of suspension included the low reading, the lack of aggravating features, and the apparent stability in the applicant's personal circumstances. Considered with the evidence of his financial obligations, there was a context within which the court ought to have turned its mind to the question of whether the sentencing objectives it had described could be met without requiring the applicant to serve the term of imprisonment immediately. The deterrent effect of such approach had been shown to have had some effect on the applicant in the past, and since those sentences had been served, the Act had been amended such that a breach of a suspended sentence carried the near certainty that the sentence would have to be served. Section 27(4B) of the Sentencing Act is expressed in mandatory terms that the court "must" activate the sentence of imprisonment that is held in suspense and order the offender to serve it. The only exception to that requirement is if subs (4C) applies and the order would be "unjust".
In Dinsdale v The Queen at 328, [15], Gleeson CJ and Hayne J said, in respect of ss 6(4) and 76(2) of the Sentencing Act 1995 (Cth):
"No doubt, under s 6(4), a sentencing judge must determine whether imprisonment is warranted and, under s 76(2) must fix the length of the term which would otherwise be appropriate. Neither step must be allowed, however, to obscure the need to decide whether suspended imprisonment is an appropriate disposition of the matter. Only if it is decided that it is not appropriate may a court impose a term of immediate imprisonment."
In the same case, Kirby J said at 347, [81], in respect of the suspension of sentences, after noting the differences in perception between courts and the public as to the utility of the sentencing option:
"There is a line of authority in Australian courts that suggests that the primary consideration will be the effect such an order will have on rehabilitation of the offender], which will achieve the protection of the community which the sentence of imprisonment itself is designed to attain." [Footnote omitted.]
Kirby J determined in that case at [85] that the discretion to suspend was not limited to considerations of rehabilitation, and that it was necessary to look at all the circumstances relevant to the imposition of a term of imprisonment in determining whether to suspend.
At the time of sentencing the applicant had not offended against the Act since committing an offence in July 2009, for which he was convicted in August 2010. That was a period of some seven years. Zeeman J described a similar hiatus in Briant v Bessell (1994) 74 A Crim R at [16] as a "substantial interval of time between the offence the subject of the present appeal and the prior breaches of s6(1)" of the Act [emphasis added]. In that case the applicant had appeared for sentence on his third breach of the Act, having returned a reading of .155, with prior convictions for readings of .17 and .23. He had been sentenced to a term of imprisonment of 14 days, suspended on condition that he be of good behaviour for 12 months. He was disqualified for 30 months and ordered to pay a fine of $1,250. The appeal against sentence was dismissed.
Relevantly in that case Zeeman J referred to the "clear legislative intent evinced by the Act" to treat the driving of motor vehicles whilst affected by liquor "as a grave social evil which is to be visited with penalties severe enough to act as a general deterrent and a personal deterrent to the particular offender". He added that:
"Whilst Parliament has stopped short of providing for the mandatory imposition of terms of imprisonment, even in the case of persistent offenders, the imposition of terms of imprisonment ought not to be reserved for extraordinary cases."
Notwithstanding the "substantial interval" between the offending, the subject of the appeal, and the applicant's prior breaches in that case, Zeeman J considered that the applicant drove "when he must have been fully aware that he had consumed a substantial amount of intoxicating liquor".
The applicant distinguished the factual circumstances in Briant from his own, noting that his reading of 0.67 was a low reading, inviting the court to infer that in this case he could reasonably assert that he was not "fully aware" that he was driving having consumed a substantial amount of intoxicating liquor. The pre-sentence report included that claim. The reading the applicant returned was not a reading which was inconsistent with the submission that he neither felt intoxicated nor considered himself to be at risk of being over the limit. The importance of such belief, despite the frequency with which it is no doubt made, is that when it is an objectively reasonable claim (because it is open on the facts), prosecutorial claims to a lack of insight, or indifference to the risk of offending do not carry the same force. Combined with other information such as matters put in mitigation, the response to previous sentences, and personal progress since prior court appearances, the sentencing exercise begins to take shape, and the response to prior convictions becomes more nuanced. It is more than an exercise in responding to the numerical frequency of prior matters. Consideration of the way in which the sentencing discretion should be applied, will begin to exercise the mind of the court in sentencing. Where imprisonment is considered appropriate, suspension of that term will be considered, and such consideration is required: Dinsdale (above).
Once the magistrate concluded that a term of imprisonment was appropriate, he was required to turn his mind to whether that custodial period should be suspended. Whilst there is no error manifest in the learned magistrate's statement that the sentence he was imposing must deter the applicant and others from offending in the future, a statement recognising the grave social evil which offending in this category certainly is, and the question of whether all or part of that term of imprisonment should be suspended, was not considered. That was an error. It overlooked the question of whether a suspended sentence was an appropriate disposition of the matter. Before an immediate custodial sentence could be imposed, the magistrate was required to be satisfied that he could not upon a proper application of principle suspend the sentence.
In the circumstances, and having regard to the matters the Court has set out as relevant to the determination of the sentencing response, the Court finds that on a proper application of sentencing principles it was not open to the magistrate not to suspend the custodial portion of the sentence. That error caused the imposition of a penalty which the Court holds to be manifestly excessive. The Court is satisfied that the first ground of the notice to review should succeed.
Ground 2
Ground 2 is somewhat novel. In substance the applicant's contention is that an unrepresented litigant who has prepared and filed a restricted licence application, setting out matters pertinent to his or her circumstances, might reasonably expect that those matters will be considered in the exercise of the court's sentencing discretion, such that it is not necessary for them to be repeated in the context of the sentencing exercise. It is submitted that such misapprehension is not unreasonable, and that the learned magistrate had an obligation to the applicant to advise him that those matters within the restricted licence application going to hardship, were not before the court, and might not therefore be considered for the purposes of determining an appropriate sentence.
As the learned magistrate noted in an exchange with the prosecutor prior to the imposition of penalty, the restricted licence application was a discrete matter, not before the court, and not relevant at that stage. That approach accords with practice in respect of restricted licence applications, and is something that would be addressed by a lawyer acting for a party who would appreciate the need to address all of the matters relevant to penalty for the purposes of the sentencing aspect of the procedure, even though many of them will appear in the restricted licence application also.
The applicant submitted in accordance with the decision of the High Court in R v Olbrich [1999] HCA 54, 199 CLR 270, that the Court is required to take into account matters known to the court. The applicant's contention is that once the restricted licence application was filed, there was before the magistrate a detailed statement of the hardship which would accrue to the applicant upon the suspension of his licence, or any other penalty which prevented him from carrying on his business activities. It is submitted that there was an obligation to have regard to those matters, or if not, to make it known to the applicant that those matters would not be considered at the sentencing stage.
The respondent attempts to avoid the point by asking the Court to note that on four occasions the learned magistrate invited the applicant to speak to matters relevant to penalty. But this overlooks the fact that unless the applicant appreciated that the matters in the restricted licence application would not be taken into account, the need to respond to the invitations could not be fully appreciated. Whilst it is worth reiterating that care is required in the management of matters involving unrepresented litigants, to ensure that they properly comprehend the opportunities afforded to them, and that questions are understood, in this case the pre-sentence report adequately dealt with the matters which were the subject of the restricted licence application anyway, and thus, at the time of sentencing, it cannot be said that the applicant's circumstances were not properly disclosed to the court. As such even if the applicant did not appreciate that the contents of the restricted licence application were not before the court at the time of sentencing, no miscarriage of justice is demonstrated.
The applicant referred the Court to the decision in Haas v White 84/1984. That case is distinguishable. Brettingham-Moore J determined that the 17-year old applicant in that case, also unrepresented, was unlikely to know that his driver's licence might be in jeopardy on a complaint of stealing one rear window louvre. In this case, it cannot be said that the applicant was unaware that his driver's licence was in jeopardy in consequence of conviction. Ground 2 is dismissed.
The Court will resentence the applicant. I heard matters in mitigation at the time of the hearing of the appeal. I am satisfied the proper disposition of the matter requires the imposition of a term of imprisonment as a deterrent to the applicant and others who are minded to breach the Act. In fixing the duration of such sentence I am satisfied that a period of two months is appropriate having regard to the applicant’s antecedents, his circumstances and the need to deter him and others from offending under the Act. For the reasons I have given in relation to the considerations relevant to the question of whether the court should have suspended all or part of that sentence, I have determined that the whole of its operation should be suspended. I suspend the custodial part of the sentence on condition the applicant is of good behaviour, and that he commit no offence against the Road Safety (Alcohol and Drugs) Act 1970 for a period of two years. The applicant is suspended from holding or obtaining a drivers licence for a period of 15 months to commence from today. I will restore the order requiring the applicant to pay court costs of $68.10 and a victims of crime levy of $20 within 28 days of today.
There was a separate charge of breach of bail before the court. The applicant was late to court. A conviction was recorded. That was not challenged. I need say nothing about it.
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