Nunn v Stocks

[2001] TASSC 52

[2001] TASSC 52

CITATION:              Nunn v Stocks; McDonald v Stocks [2001] TASSC 52

PARTIES:  NUNN, Adrian
  v

STOCKS, Anthony John

McDONALD, Scott Raymond
v
STOCKS, Anthony John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 2/2001

LCA 3/2001

DELIVERED ON:  1 May 2001
DELIVERED AT:  Hobart
HEARING DATES:  1 May 2001
JUDGMENT OF:  Blow J

Edited edition of reasons for judgment delivered orally

CATCHWORDS:

Traffic Law - Offences - Particular offences - Alcohol and drug related offences - Tasmania - Other offences - Driving with alcohol present in body - Driving whilst disqualified - Sentencing.

Aust Dig Traffic Law [80]

REPRESENTATION:

Counsel:
           Applicants:  F C Neasey
           Respondent:  R J Blissenden
Solicitors:
           Applicants:  Director of Public Prosecutions
           Respondent:  Avery Keal

Judgment Number:  [2001] TASSC 52
Number of Paragraphs:  14

Serial No 52/2001
File Nos LCA 2/2001

LCA 3/2001

ADRIAN NUNN v ANTHONY JOHN STOCKS
SCOTT RAYMOND McDONALD v ANTHONY JOHN STOCKS

REASONS FOR JUDGMENT  BLOW J

(DELIVERED ORALLY)  1 May 2001

1. There are two motions to review before the Court relating to the same respondent.  They concern two complaints which were filed in the Magistrates Court at Hobart.  Each complaint contained a number of charges, including one charge of driving with alcohol in the respondent's body contrary to the Road Safety (Alcohol & Drugs) Act 1970 ("the Act"), s6(2), and a charge of driving while disqualified contrary to the Act, s19A.  Both complaints were dealt with by the same magistrate on the same day.  The respondent was sentenced to imprisonment in relation to each of those charges.  By the motions to review, the applicants are contending that the sentences of imprisonment imposed upon him were manifestly inadequate.

1. The first complaint relates to an incident on 1 January 2000 when the respondent was driving and was stopped for a random breath test.  A blood alcohol reading of 0.158 per cent was obtained.  In respect of that complaint, the learned magistrate sentenced him to five months' imprisonment on the s6(2) charge, and a cumulative term of one month's imprisonment on the charge of driving while disqualified.  The second incident concerned driving by the respondent at New Norfolk on 6 November 2000.  On that occasion, a blood alcohol reading of 0.222 per cent was obtained.  In respect of that incident, the learned magistrate sentenced the respondent to seven months' imprisonment, three months of which were suspended, on the s6(2) charge.  That was cumulative with the other sentences.  He also sentenced him to one month's imprisonment, cumulatively, on the charge of driving while disqualified.  The result, therefore, was that in total the respondent was sentenced to 14 months' imprisonment, of which three months were suspended. 

1. The respondent has one of the worst records of drink driving offences and offences of driving while disqualified that I have ever seen.  From 1974 onwards, he has had a multiplicity of drink driving convictions, and a great many of those convictions have involved high readings, though I think none as high as the reading of .222 on 6 November 2000.  He has also been convicted on eight previous occasions of driving while disqualified.  Every drink driving conviction that he has had since 1978 has resulted in imprisonment.  Seven of his eight convictions for driving while disqualified have resulted in imprisonment, and yet he continues to drink and drive.  At the times of these offences, he had been disqualified from driving until the year 2019. 

1. There was very little put to the learned magistrate by way of mitigation.  It was pointed out that the respondent had pleaded guilty to the charges, but it seems that it was inevitable that he would have been convicted.  It was put that he had not originally been the driver, and that his de facto wife had originally driven on each of the two occasions, but that he had swapped over with her.  There is a suggestion, on at least one occasion, that that was because she herself was affected by alcohol.  At best it can be said that there was an assertion in a psychiatric report that the respondent was intelligent and insightful enough to reform himself.  That capacity for reform was probably borne out by the gaps in his record.  Between 1978 and 1984, he had no drink driving convictions.  The same applies to the period between 1984 and 1995, though he did have two drink driving convictions in the year 1984. 

1. In a case like this it is appropriate to have regard to the maximum penalties provided for in the legislation.  The maximum penalty for driving with alcohol in the body, contrary to s6(2), when there is a prior conviction for such an offence and when the reading is over 0.15, is 24 months' imprisonment.  The maximum penalty for driving while disqualified is fixed by s17A(1), and that maximum penalty is six months' imprisonment. 

1. There are a great many reported cases that contain judicial comment as to the seriousness of the sorts of offences that this respondent has committed.  I think it is appropriate that I refer to some of those cases that were relied upon by the applicants.  In Booth v Breen 10/1980 ([1980] Tas R 277 (NC 4)), Everett J said at 7:

"For about a decade the Parliament of Tasmania by enacting the Act [the Road Safety (Alcohol & Drugs) Act 1970] and amending its provisions from time to time in order to import to them greater strength and make them in practice more effective, has shown a clear intention that breaches of the Act should attract, in appropriate cases, penalties which will be seen to be deterrent, and, hopefully, will in fact be so.  It is the duty of the courts to recognize this intention and punish persistent and serious transgressors to a degree which, depending on the facts of each case, will recognise the maximum penalties determined by Parliament.  Any failure to do so is a frustration of the will of Parliament.  The facts that no person was injured and there was not any damage to property in the instant case are irrelevant."

It is interesting to note that those comments as to increasing penalties were made as long ago as 1980, and prior to the introduction of statutory minimum penalties in 1991.

1. In Briant v Bessell (1994) 74 A Crim R 204, Zeeman J said, at 208:

"I previously have had occasion to express the view that the clear legislative intent evinced by the Act [the Road Safety (Alcohol & Drugs) Act 1970] is to treat the driving of motor vehicles by persons affected by the consumption of intoxicating 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. The very substantial increases in penalties and the prescription of minimum penalties, both effected by the Road Safety (Alcohol and Drugs) Amendment Act 1991 (Tas), make that legislative intent very clear. 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."

1. In Brown v Stone B14/1995, Zeeman J said, at 4:

"An offender who persistently drives whilst disqualified and who does so without there being any mitigating circumstances must expect to receive the maximum sentence because the offence represents one of the worst examples of the proscribed conduct likely to be encountered in ordinary practice …".

1. In Bessell v Riley B12/1995, Wright J said, at 2:

"A persistent disregard for the law and court orders is always regarded as a factor calling for stern measures to operate by way of personal and general deterrence. Flouting of orders of disqualification and the like brings the law into disrepute. Whilst no man may be sentenced on his record in such a way as to impose a fresh penalty for past offences, a prior record can manifest a continuing disobedience to the law which may indicate the need for a severe penalty by way of retribution, deterrence and the protection of society."

1. All of those comments are significant in the circumstances of this case.  However, the learned magistrate was also required to take into account in sentencing the principle which has been referred to as the totality principle.  That principle was discussed by the High Court in Mill v R (1998) 166 CLR 59, particularly at 62 and 63. There the High Court approved a passage from Thomas, Principles of Sentencing, 2nd ed, (1979), which read as follows:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong('); 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

I think that this was not an appropriate case for the learned magistrate to look at each offence in isolation and simply to impose a sentence appropriate to that offence.  I think that the totality principle should have been applied in such a way as to reduce the sentences that would have been appropriate had that principle not been a part of our law.

1. There is, of course, ample authority to the effect that a sentencing judge or magistrate has a wide discretion.  Recently the Court of Criminal Appeal in the case of Attorney-General v Blackler [2001] TASSC 27 at par10 cited with approval the comment in Wise v R [1965] Tas SR 196 at 200 that "Sentencing is an art, and not a science", as well as a passage from the judgment of Burbury CJ in Lahey v Edwards 46/1967 at 4, ([1967] Tas SR (NC 13)), where his Honour said:

"But the principle of individualisation of punishment is now firmly established ¾ even if we do not completely accept the aphorism that a modern Court punishes the criminal and not the crime … It is for the sentencing tribunal to weigh all the varying factors relating to the circumstances of the particular offence and the individual who commits it and to exercise a judicial discretion.  It all comes down to the simple proposition that the choice of the appropriate punishment is not a matter of rule ¾ it is a matter of a wide judicial discretion."

1. It is very significant, in my view, that this appeal is a prosecution appeal.  In Griffiths v R (1977) 137 CLR 293, at 310, Barwick CJ said:

"… an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons."

That comment was cited with approval by Brennan, Deane, Dawson and Gaudron JJ in Everett v R (1994) 181 CLR 295 at 300. In the context of that case, their Honours said:

"The reference to 'matter of principle' in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting 'error in point of principle'."

Those comments, although made in the context of a statutory regime where the Crown was not entitled to appeal as of right, have been recognised as applicable in the present context where the Crown can appeal as of right in R v Harland-White 23/1997.  They have also been recognised as applicable to prosecution appeals against sentences imposed in courts of summary jurisdiction, both in South Australia in Police v Cadd (1997) 69 SASR 150, and by Underwood J in Hrasky v Boyd [2000] TASSC 39 at par27.

1. On that basis, I think that the Court must be reluctant to interfere in the exercise of a sentencing discretion by a magistrate, and more reluctant to do so in the case of prosecution appeals than in the case of defence appeals.  I think that the learned magistrate imposed sentences that were light.  I think that the respondent would not have been entitled to complain if each of the four sentences under review here had been double what was imposed.  But looking at the sentences in the aggregate, and having regard to the totality principle, I do not think that it can be said that sentences which in the aggregate amounted to 14 months' imprisonment with three months suspended can be said to have been so low that this Court ought to interfere on the basis that they were manifestly inadequate.  I think they were within the bounds of the learned magistrate's discretion in the circumstances.  But, having said that, I think that they were so low that the respondent can count himself lucky that he was not sent to prison for a much longer period.  I do not think that he should expect to be treated as kindly in the future.

1. For these reasons, the motions to review are dismissed.