O'Toole v White
[2004] TASSC 26
•25 March 2004
[2004] TASSC 26
CITATION: O'Toole v White [2004] TASSC 26
PARTIES: O'TOOLE, Jamie Nathan
v
WHITE, Sergeant Graham Ross
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 34/2003
DELIVERED ON: 25 March 2004
DELIVERED AT: Launceston
HEARING DATE/S: 18 March 2004
JUDGMENT OF: Slicer J
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant: E Hughes
Respondent: J P Ransom
Solicitors:
Appellant: Director of Legal Aid
Respondent: Director of Public Prosecution
Judgment ID Number: [2004] TASSC 26
Number of paragraphs: 12
Serial No 26/2004
File No LCA 34/2003
JAMIE NATHAN O'TOOLE v SERGEANT GRAHAM ROSS WHITE
REASONS FOR JUDGMENT SLICER J
25 March 2004
The appellant seeks review of a sentence of imprisonment of 18 months following his conviction for a number of driving offences. The grounds of appeal claim error on the grounds that:
(1)The sentence imposed was manifestly excessive in all the circumstances. A component of this ground is the effect of the concurrent imposition of 68 days' imprisonment for the non-payment of fines.
(2)The refusal to set a non-parole period in relation to the sentence of imprisonment was either a wrongful exercise of discretion or contributed to the error that the sentence was excessive.
The offences
The appellant was sentenced to a single term of imprisonment in respect of his conviction upon seven complaints encompassing conduct between 19 May 2002 and 6 May 2003. Those offences comprise:
(i) Complaints 29664/02 and 34646/02
On 19 May 2002 the appellant was intercepted by police following their observation of his manner of driving. When intercepted he attempted to avoid continued detention or identification. The significance of this, is not that he was punished for a separate and uncharged offence (De Simoni (1998) 147 CLR 383) but that his conduct showed that he was aware of the seriousness of his conduct and that his act of driving was not temporary inadvertence. Mr O'Toole was convicted of driving with a blood alcohol concentration of .07, contrary to the Road Safety (Alcohol and Drugs) Act 1970, s6(1), an unregistered motor vehicle contrary to the Vehicle and Traffic Act 1999, s27 and, under a separate complaint (No 34646/02, laid for technical reasons) of driving while disqualified contrary to the Vehicle and Traffic Act, s13(1). The permitted combined maximum sentencing penalty was that of 15 months' imprisonment (Road Safety (Alcohol and Drugs) Act, s17, Pt 1, Vehicle and Traffic Act, s13(1)(b)(b)(i)).
(ii) Complaint 63287/02
Following his detention on 19 May 2002 the appellant was admitted to bail requiring him to appear in the Scottsdale Court of Petty Sessions on 15 October 2002. He was further bailed to re-appear on 26 November and failed to so do. The complaint was made pursuant to the Bail Act 1994, s9, contravention of which attracts a maximum custodial term of six months.
(iii) Complaint 45415/02
On 19 June 2002 the appellant was apprehended driving a motor vehicle at Rocherlea some considerable distance from his given residential address in Launceston. He was charged with driving whilst disqualified contrary to the Vehicle and Traffic Act, s13.
(iv) Complaint 32405/02
This complaint followed his detection on 25 July 2002 of a traffic offence (failing to obey a traffic signal Traffic (Road Rules) Regulations 1999, reg60) and included a further charge of driving whilst disqualified.
(v) Complaint 30878/03
The complaint related to the act of driving at Scottsdale on 1 January 2003, and resulted in convictions for driving whilst disqualified and with an excessive blood alcohol concentration, namely .106 grams of alcohol in 100 millilitres of blood, (Road Safety (Alcohol and Drugs) Act, s6(2)). Although the driving disqualification charge had been made under the Road Safety (Alcohol and Drugs) Act, s19A, the learned magistrate, without requiring formal amendment, treated it, for procedural reasons, as one made under the Vehicle and Traffic Act, s13. Given the equivalence of penalty no point is taken on this appeal with the effect of the course adopted by the learned magistrate. The maximum combined penalty permitted was 18 months' imprisonment.
(vi) Complaint 32681/03
This arose from an act of driving whilst disqualified at Scottsdale on 11 January 2003. The learned magistrate treated, as he had done so in relation to complaint 30878/03, the offence as equivalent to the Vehicle and Traffic Act, s13.
(vii) Complaint 36670/03
This complaint followed the failure on 30 May 2003 of the appellant to abide by the terms of a curfew condition by a Court of Petty Sessions on 6 May 2003. The maximum permitted sentence was one of three months. (Bail Act, s5(4)).
The course of conduct included five acts of driving whilst disqualified, two of drink driving and one involving risk to others. It showed disregard of bail conditions and indifference to court orders already imposed. The acts of driving were at differing times and places distantly apart. The penalties permitted by Parliament were far greater than that imposed by the learned magistrate. The imposition of a fine was, given their previous non-payment, a meaningless exercise. The magistrate imposed a period of licence disqualification of 2½ years which was, given that the previous disqualification was not to expire until January 2004, reasonably lenient.
Record of the Offender
The appellant had, as of the date of sentence an appalling record of criminal, anti-social, violent and driving conduct commencing in 1988. His convictions included:
Dishonesty 23 Driving unlicensed, disqualified and contrary
to licence restrictions
15
Violence to person, property and trespass 9 Escape from custody 1 Breach suspended sentence 2 Unregistered and uninsured vehicle 11 Drugs 4 Traffic offences
16
He had been subject to supervision, order of community service, fines, suspended sentences, periods of licence disqualification and actual terms of imprisonment. His record showed an unremitting course of conduct with no suggestion of either maturation or attempted change to either attitude or conduct. The pre-sentence report tendered at the sentencing hearing showed a hint of insight and possibility that the offender might develop an understanding of consequence. But the tentative assessment made in the report did little to counter the conclusion warranted by the record of past conduct that the offender, then aged 30 years, was likely to reform.
Effect of Sentence for Non-Payment of Fines
On 25 September the appellant appeared in the Court of Petty Sessions in relation to three discrete matters, namely:
(1) complaints concerning crimes or offences of dishonesty.
(2) the complaints which are the subject of this appeal.
(3) unpaid fines.
The appellant, through counsel, and doubtless for good reason, asked the court to deal with the disposition of unpaid fines which amounted to $6,800, imposed in relation to some 20 complaints. The method chosen for the disposition was for the court to require the fines to be paid forthwith, a sentence of imprisonment imposed but suspended on condition that the fines be immediately paid. The appellant was unable to comply and the sentence came into operation. The method had advantage for the appellant. He was likely to serve a sentence of imprisonment for the driving offences and was able to serve the one cumulative sentence rather than face a series of warrants which might require a separate and broken sentence. Here the court imposed a sentence of imprisonment, for the traffic offences backdated to 15 July 2003, the date on which the appellant was taken into custody. After the imposition of the sentence the court ordered that the appellant "serve the additional 68 days, if you fail to pay the fines forthwith, which obviously you can't and you've asked that you serve time for that rather than be liable for the fines". The method adopted by the court was unassailable. The Sentencing Act 1997, s15(2), provides:
"(2) An offender who is sentenced to a term of imprisonment for an escape offence or for non-payment of a fine must serve the sentence cumulatively on any uncompleted sentence of imprisonment, other than a sentence of life imprisonment, that the offender is then serving or liable to serve."
Parliament has required such sentence to be cumulative to one already imposed or for which the offender is liable to serve. Here the primary sentence had been determined unaffected by the mandatory term required by Parliament. Here the court was not required to take it into account in the determination of the primary sentence and the additional 68 days did not require consideration as a factor relevant to the principle of totality (Wise v R [1965] Tas SR 196, Bruce and Curtis v R [1971] Tas SR 22). Whilst the principle applies to all kinds of penalty (Strachan v Graves 68/1998, Peck v Visser [1999] TASSC 38) it ordinary governs the assessment of penalty for multiple offences. However, it is relevant to a person serving an existing sentence (Harland-White v R 1/1998, Postiglionev R (1997) 189 CLR 295), and despite anomaly (Mill v R (1988) 166 CLR 59, Griffiths v R (1989) 167 CLR 372) could probably impact on the effect of a concurrent but unrelated mandatory penalty. However, here its duration is of little significance and is disregarded as warranting its consideration in the determination of the primary sentence.
Non-Parole
The appellant contends that the failure of the learned magistrate to fix or permit a parole period shows the sentence to be manifestly excessive. The Sentencing Act, s17, relevantly provides:
"17 ¾ (1) ...
(2) A court that imposes a sentence of imprisonment on an offender, either on the conviction of the offender or on the determination of an appeal, or, on appeal, confirms the imposition of such a sentence, may order –
(a)that the offender is not eligible for parole in respect of that sentence; or
(b)that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order.
(3) ...
(3A) Where a court imposes a sentence of imprisonment and does not make an order under subsection (2), the offender is not eligible for parole in respect of that sentence.
(4) In exercising its discretion under subsection (2), a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have regard to all or any of the following:
(a) the nature and circumstances of the offence;
(b) the offender's antecedents or character;
(c) any other sentence to which the offender is subject.
(5) ...
(6) ...
(7) A court must give reasons for making an order under subsection (2).
(8) ...
(9) ..."
The history and impact of the legislative provisions have been considered by the Court of Criminal Appeal in Devine v R [2003] TASSC 51. The question of parole is relevant to the assessment of any sentence (Shipton v R [2003] TASSC 23). It is not necessary, here, to consider whether the effect of the approach taken by the learned magistrate was an exercise in accordance with the provisions of either s17(2)(b) or 3A since the result is identical. No point arises as to whether he was required to give reasons (s17(7)) since this Court is satisfied that sufficient reason can be discerned through the course of exchanges between the learned magistrate and counsel and his comments made in the pronouncement of sentence. The learned magistrate stated:
"You have a bad record for offending in relation to breaching court orders. There are eight previous convictions for driving whilst disqualified and in relation to those sorts of matters, you have been sentenced to terms of imprisonment before. You are well aware, of course, of the fact that you can expect a term of imprisonment in relation to these matters before the court today, as you would have been aware that you were risking imprisonment on those occasions you drive whilst you are disqualified that have resulted in your appearance here today. You know what I'm talking about, don't you? My concern has been to moderate, as much as I feel able to, the term of imprisonment that I am about to impose and in doing so I cannot retreat from the position that, in my view, the driving matters before this court, and I will deal with them – I will deal with those driving matters and the charge of contravening the condition of a notice and breach of bail – yes, one charge of breaching bail and one of contravening the conditions of a notice by breaching an order – by breaching a curfew condition – I'll deal with those, together with the various driving matters and I impose an in globo sentence of a term of eighteen months' imprisonment to commence on and from the date you were first remanded in custody, namely the 15th of July of this year. I specifically refrain and choose not to set a non-parole period in relation to that term."
He has previously dealt with the impact of the pre-sentence report of the alcohol counsellor in stating:
"I take into account that he's being willing to undergo this course and it's yielded a result that shows that there maybe a reluctance on his part to change his behaviour but that he's aware that he's at a crossroads and has to make a choice. I can deal with it on that basis."
The learned magistrate did take into account the effect of a non-parole period on the amount of sentence when he referred to his "concern ... to moderate ... the term". He was required to have regard to the nature and circumstances of the offences and the record of the offender (Sentencing Act 1997, s17(4)) in his consideration of any grant of a parole period. The (frequency) repetition of the offences, the disdain shown for orders of the court and their similarity with many of the previous convictions entitled him to have regard to the public interest in requiring the appellant to serve all of the sentence. He was permitted to afford little weight to the prospects of reform or the provision of the incentive a prospect for early release.
The non-provision of opportunity for parole does not show the sentence to be manifestly excessive.
Conclusion
The sentence of 18 months, does not, of itself demonstrate error nor is it manifestly excessive in its own right. The refusal of the learned magistrate to permit an application for parole was within his permitted discretion, and does not warrant appellate intervention.
The motion to review is dismissed.
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