Parker v Bessell
[2012] TASSC 78
•3 December 2012
[2012] TASSC 78
COURT: SUPREME COURT OF TASMANIA
CITATION: Parker v Bessell [2012] TASSC 78
PARTIES: PARKER, Senior Sergeant John
v
BESSELL, Stacey Amanda
FILE NO/S: 338/2012
DELIVERED ON: 3 December 2012
DELIVERED AT: Launceston
HEARING DATE: 9 November 2012
JUDGMENT OF: Crawford CJ
CATCHWORDS:
Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Suspended sentence of imprisonment – Breach of conditions of suspension and sentence following breach – Statutory requirement to activate sentence of imprisonment unless unjust – Failure to find it would be unjust – Failure to give reasons.
Sentencing Act 1997 (Tas), s27(4B), (4C), (4D).
Trueman v Tasmania (2009) 18 Tas R 435, [2009] TASSC 29; Tanner v Brown [2011] TASSC 59, referred to.
Aust Dig Criminal Law [338]
Traffic Law – Licensing of drivers – Tasmania – Offences – Driving when disqualified from holding licence – Whether sentence manifestly inadequate – Whether sentence of imprisonment required.
Maher v Banks [1992] TASSC 67; Davies v Petersen 50/1991; Green v Bessell B57/1993; Bessell v Riley [1995] TASSC 15; Peck v Visser [1999] TASSC 38, applied.
Aust Dig Traffic Law [28]
REPRESENTATION:
Counsel:
Appellant: S Nicholson
Respondent: A Hall
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Grant Tucker
Judgment Number: [2012] TASSC 78
Number of paragraphs: 40
Serial No 78/2012
File No 338/2012
SENIOR SERGEANT JOHN PARKER v STACEY AMANDA BESSELL
REASONS FOR JUDGMENT CRAWFORD CJ
3 December 2012
On 16 April last, on three complaints charging the respondent with three counts of driving while disqualified and other offences, a magistrate, Mr R Marron, sentenced her to "a total period of three months' imprisonment wholly suspended for two years" and "63 hours' community work".
At the same time, the magistrate dealt with the respondent for breaching a condition of a sentence of suspended imprisonment imposed by a magistrate, Mr T Hill, on 16 September 2011 for 11 offences. The sentence in question was one of three months' imprisonment wholly suspended on condition she commit no offence punishable by imprisonment for a period of 12 months. For the breach, the learned magistrate said that he would "cancel it ... and impose 100 hours of community work".
After telling the respondent that if she got behind the wheel of a car again she would go to gaol, he also disqualified her from driving without stating whether it was part of the sentence on the three complaints or part of the order consequent upon the breach of the condition of the suspended sentence. What his Honour said was: "There's a six month period of disqualification cumulative on any period you've got". However the record of proceedings attached to the three complaints recorded "6 months' disqualification cumulative to any period currently serving (driving matters)" and no disqualification order was recorded for the breach of the condition of the suspended sentence.
The motion to review attacks all of the sentence and the breach order. The first ground of review concerns the sentence on the three complaints and asserts that it was manifestly inadequate in all the circumstances of the case. The second ground asserts that the order consequent upon the breach of the condition of the suspended sentence was also manifestly inadequate in all the circumstances and the third ground asserts that the learned magistrate erred in law by failing to give sufficient reasons why it would be unjust to activate the suspended imprisonment.
The proceedings before the magistrate
The offences on the complaints were as follows:
·On complaint 35496/11, on 20 October 2011 driving while disqualified contrary to the Vehicle and Traffic Act 1999, s13(1), failing to return her driver's licence within 21 days after being disqualified from driving contrary to the Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations 2000, reg42(3), and dishonestly providing misleading information to obtain a benefit or advantage contrary to the Vehicle and Traffic Act, s64(1)(c).
·On complaint 36313/11, on 8 November 2011 driving while disqualified contrary to the Road Safety (Alcohol and Drugs) Act 1970, s19A(1).
·On complaint 30103/12, on 19 December 2011 driving while disqualified contrary to the Vehicle and Traffic Act, s13(1), and exceeding the speed limit contrary to the Road Rules 2009, rr20 and 21(1).
The facts for sentence were as follows. At 9.55am on 20 October 2011, police stopped a car driven by the respondent on Hobart Road, Kings Meadows, because her front seat passenger was not wearing a seat belt. The respondent produced her driver's licence which purported to expire on 18 January 2013. However, a check revealed that only a month earlier, on 16 September 2011, the magistrate, Mr Hill, had imposed two orders of disqualification for driving for a cumulative period of 12 months from that date. The respondent stated that she had submitted the necessary forms for an application for a restricted driver's licence and thought that she was allowed to drive. She said that she had a court hearing scheduled for 24 October 2011. She was arrested, charged, processed and bailed.
At 10pm on 8 November 2011, the respondent was stopped when driving on Franmaree Road, Newnham, for the purpose of a random breath test. She claimed that she held a restricted licence but did not have it on her. As before, a check revealed that she was a disqualified driver. She said that she was aware that she was disqualified but thought she had been granted a restricted licence. She said she had collected her vehicle from the Black Stallion Hotel where a friend, who had borrowed it, had left it. She did not want to leave it in the car park overnight, she said. Once again, she was arrested, charged and bailed.
At 6.10pm on 19 December 2011, police stopped the respondent when driving a vehicle on the Ridgley Highway between Burnie and Waratah because she was speeding, driving at 127 kph where a 100 kph limit applied. She immediately informed the police that she was disqualified from driving. There were two children in the vehicle at the time.
In his plea in mitigation, the respondent's counsel made no mention of her claims on 20 October and 8 November that she believed she was allowed to drive. It is difficult to accept that she had those beliefs. Certainly they would not have been reasonably held. In a pre-sentence report, a probation officer reported that she maintained that she did have those beliefs although, with respect to the offence on 8 November 2011, she admitted that she was driving at a time of the day that was outside the hours she had sought in her application. It is not surprising that the learned magistrate made no mention of her claimed beliefs in his comments on passing sentence. They did not demand consideration in her favour.
She was 32 years old at the time of the offences. On my count, her record, disregarding children's court matters, contained 242 offences as follows:
Driving while disqualified
4
Driving while licence suspended
11
Unlicensed driving
26
Using an unregistered motor vehicle
53
Using an uninsured motor vehicle
27
Driving whilst a prescribed drug was present in blood
1
Dishonestly using a document to create a false impression of being licensed
1
Failing to lodge form of transfer
1
Failing to carry a driver licence
1
Fail to wear a seat belt
12
Using a handheld mobile telephone
1
Stopping in a parking area for people with disabilities
1
Stopping a vehicle in a loading zone
1
Disobeying a "no-entry" sign
1
Speeding
21
Parking
5
Destruction of property
1
Injuring property
2
Forgery
1
Uttering
1
Dishonesty acquiring a financial advantage
1
Making off without payment
2
Stealing
15
Attempted stealing
1
Unlawful possession of property
3
Burglary
3
Aggravated burglary
2
Assault
2
Assault a police officer
1
Abusive language to a police officer
2
Threaten a police officer
1
Resist a police officer
1
Obstruct a police officer
3
Trespass
3
Breach a restraint order
3
Breach of bail
1
Breach of bail requirements
9
Fail to appear
3
Fail to comply with a notice or direction
1
Fail to comply with a direction of a police officer
1
Possess a controlled plant or its products
3
Supply a controlled drug
1
Using a controlled plant or its products
4
Possess a thing used for the administration of a controlled drug
4
Over half of her record came from court appearances over the previous six years and included 22 unlicensed driving, eleven driving while licence suspended, 48 using an unregistered motor vehicle, 23 using an uninsured vehicle, 10 speeding and one driving whilst a prescribed drug was present in her blood.
She had wholly suspended imprisonment imposed in 2001 for offences against police officers, breach of bail, dishonesties and assault; imprisonment to be served in 2002 largely for offences of dishonesty; wholly suspended imprisonment in 2003 for aggravated burglary and assault; 12 months' imprisonment with nine months suspended in 2003 for four driving while disqualified, three driving while licence suspended, one trespass, one abusive language to police, three breach of bail requirements and one of failing to appear; five months' imprisonment with four months suspended in 2004 for breach of a bail requirement; 14 weeks' imprisonment in 2005 for two failing to appear, two breach of bail requirements, one unlawful possession of property, one possession of a controlled plant or its products and one wilfully obstructing a police officer; 12 months and six weeks' imprisonment with six months suspended in 2005 mainly for numerous offences of dishonesty; a drug treatment custodial order for 10 months wholly suspended in 2009 for drug offences and offences of dishonesty; and two drug treatment custodial orders for one month wholly suspended in 2010 for drug offences.
On 21 October 2010 she was sentenced to five months' imprisonment wholly suspended on a condition of good behaviour for 12 months. It was imposed mainly for drug offences and also for an offence of stealing, all of which were re-heard following breaches of previous orders. She subsequently breached the condition of good behaviour but no steps were taken to activate the sentence.
Finally so far as her record is concerned, I deal with her court appearance before Magistrate Hill on 16 September 2011. For driving a motor vehicle on 2 December 2010 whilst a prescribed illicit drug was present in her blood she was fined and disqualified from driving for three months. For three unlicensed driving, two using an unregistered motor vehicle, two using an uninsured motor vehicle, one stealing, two breaches of a restraint order and one wilfully obstructing a police officer, all of which were committed between 3 September 2010 and 25 March 2011, she was sentenced to three months' imprisonment wholly suspended on condition that for the next 12 months she not commit an offence punishable by imprisonment and that she be of good behaviour. In addition she was disqualified from driving for nine months cumulative upon the three month period of disqualification ordered that day. She was also fined for failing to comply with the direction of a police officer. Within about three months she breached the condition of the suspended sentence and the orders of disqualification by driving while disqualified on three different occasions, and the learned magistrate had before him the application to deal with her for those breaches.
Conscious that he was considering the imposition of a sentence of imprisonment, the learned magistrate called for a pre-sentence report from a probation officer. The report revealed a deprived childhood. The respondent stated that she was sexually molested, her behaviour deteriorated and home life became difficult. She was made a ward of the State at age 13 as a neglected child. Her parents had complained that they were unable to control her behaviour of violence, verbal abuse and running away. She was placed in numerous foster homes, many of which were ill-equipped to deal with her behaviour. She suffered physical and sexual abuse in some placements. At the age of 14 her mother told her she wanted nothing more to do with her and she had had little contact with her family since and said she had no-one and belonged nowhere. Her schooling ended in Year 7 and her literacy was poor. She was expelled and suspended from schools due to violence to other students and other poor behaviour.
She had two children and was two months' pregnant at the time of the report on 27 March 2012. Her 10-year-old son lived at Wynyard with his father and paternal grandmother and she had limited access to him. However, her 14-year-old daughter lived with her in Launceston. The father had no involvement. The respondent was pregnant to her current boyfriend. Her daughter said that she liked living with her mother and that things had been getting "way better" over the last eight years. She said her mother always helped her and was there for her.
Although she had had periods of homelessness due to violence against her, she was living in a rented property with her daughter, a 19-year-old male she had befriended (she claimed she supported and helped him) and sometimes her boyfriend. A worker from the Anglicare Accommodation Support program visited her weekly and focused on her managing her rental money, arranging that her daughter continue at school and generally listening to her. His aim was to establish stability in her life and to gain some positive outlet for her. He had found no excessive alcohol consumption and suspected her illegal drug use was confined to marijuana. (The respondent had reported abuse of alcohol and amphetamine in earlier years and to have been a dealer in drugs.) The Anglicare worker commended her housekeeping and influence on her daughter, who he found well behaved.
She was unemployed but had some work experience, I suspect only a little. She was living on Centrelink benefits of $900 per fortnight and owed $21,648 in unpaid fines, for which $50 per fortnight was deducted from her benefits.
Three periods of probation in 1995, 2002 and 2003 had been unsuccessful due to her reluctance to be supervised. However, she claimed that now older, she was trying to change for the better and would cooperate with probation. The probation officer said she required a high level of intervention and a supervised probation order was recommended. She was considered unsuitable for a community service order because her seven week pregnancy was regarded as high risk. Her counsel explained she had miscarriages in the past. However, a subsequent pre-sentence report dated 13 April advised that a doctor's certificate stated that she was capable of light duties until 8 June 2012 and she was regarded as suitable for community service on that basis until that date. She was 12 weeks' pregnant at the time.
The respondent instructed her counsel to say that her children had never been in welfare and that she was a good mum and had a close family. Counsel said that although she was still paying for her car, she had made arrangements for it to be taken back to where she had bought it and, as he understood it, she did not have access to it. She had been at pains to say that her rented home, into which she had moved, was near a bus stop. He said she was mindful of losing everything if she went to prison; her furniture, home and children. Counsel submitted that notwithstanding her appalling driving history, if rehabilitation and specific deterrence could be achieved by a sentence less severe than actual imprisonment the community "would be better served having (her) deal with her matters on a long-term basis rather than sending her to prison in a situation where she simply couldn't address them". It was argued that an actual period of imprisonment would be "very deleterious ... given her current circumstances".
The learned magistrate spoke to the Anglicare worker who was in court. It is obvious that his Honour was influenced by the possibility of positive changes in the respondent's life and was concerned about bringing them to an end with a sentence of actual imprisonment. It is worth setting out verbatim what the Anglicare worker said. After agreeing with the learned magistrate's statement that what was rather chaotic was becoming a little more organised, he said:
"I mean I'm sure there are bad things to say, but my perspective is that there is a good story there. And that really, primarily, from my perspective is about accommodation and general stability, and that has been from where I picked up around about 12 months ago, perhaps not quite, Stacey was quite homeless. She was staying in a hotel and so forth and through her efforts she has managed to find a private rental which is no, not always particularly easy. And since then, recently off her own bat, moved to that private rental, with the same landlord – which is a good thing – a cheaper, more manageable place, a better place for [her daughter] in terms of that school bus I think.
...
So in terms of that I think that is a good story. In terms of engaging with accommodation support, I've always found Stacey, and [her daughter], to be easy to work with. Stacey and I have developed, I think a very good working relationship and I'm able to provide that ongoing support. Pretty much I visit Stacey on a weekly basis in her home and I'm just, I'm able to confirm Stacey has engaged very well on every occasion. That would be, they would be the main things. I am aware that – well Stacey has explained that she has approached the Gateway services, I think this was, you know something had been mentioned earlier, for, to try and find some extra support. So that would be particularly around [her daughter]. That's a, you know, a support agency that works with children. So, pretty much, I would say that's about the size of it for me. I don't know if there's been any mention of drug use, this is the first time I've turned up to court but, certainly in my almost 12 months of visiting Stacey I've seen no indication at all of any drug use, by Stacey or anyone else at the house."
The learned magistrate decided to adjourn the hearing so that he could obtain the second pre-sentence report and ascertain whether the respondent was capable of performing community service involving only light work. Because, as will be seen, his subsequent comments on passing sentence were so brief, it is appropriate to set out some of what his Honour said before adjourning, for it does throw some light on his reasons for the orders that were subsequently made. His Honour said, firstly to the Anglicare worker and then to the respondent:
"I think you could probably pretty safely say that these matters are all about driving. And repeat driving and driving in circumstances where there's a suspended sentence for guess what, driving while not the holder of a licence. So, but, what you'd probably say to me is that where there's order in one part of her life, that I should extrapolate that to saying that, perhaps that should also apply in the rest of her dealings and perhaps that means also that she's taking a view that she's not going to drive when she shouldn't. I'll take that as an extension of your, of the work you do which is really of course limited to those areas, other logistical areas of welfare and accommodation. But, I'd like to thank you for taking the time to come today. Now will Stacey just stand up. Stacey, I'm, the Prosecution haven't lodged an application for the breach of that suspended sentence, but they're going to, and I will hear that but also I'm going to ask for a clarification from Corrections in relation to the community work. Now, I think this will be the way it will probably work. You go and see Corrections and so, just get this quite clear, you see Corrections and ask them to give you details of the nature of the work that you would be asked to do. You see your doctor. You put that to him, hopefully in writing, or at least allow Corrections to phone him so that they can talk to him and say well look you know if we've got her sitting at a desk, you know, cutting up rags or whatever or doing something or other or putting things in boxes or whatever, how's that. And if that's the case well they can review that aspect. And then that's another thing that I can consider when I'm dealing with the matter."
The respondent was sentenced 17 days later on 16 April. At the same time, the learned magistrate dealt with the prosecution's application to activate the suspended sentence imposed on 16 September 2011. What his Honour said to the respondent was the following:
"It's hard to think of a month that hasn't gone by in the time that I've been sitting on this bench that I haven't heard your name. And it just seems that there's just a procession of history which should come to a stop today with you being immediately imprisoned. However, I've got before me a report in relation to yourself that does tend to suggest that maybe, just maybe things are changing. Not just because you're pregnant, I'd have absolutely no hesitation sending you to gaol, I wouldn't care less if you were pregnant or not that's not a get out of gaol card free. Pregnancy is not an illness. It's an occurrence. But I do think that there have been some factors that have been raised in that report and also from what I heard on the previous occasion, the real point of adjourning this was to see whether you would be able to do community work and I'm satisfied that you can do this.
In relation to the matters at 30103/2012, and on 35496/2011, and 36313, in each of those cases where there's a charge of driving while disqualified, there's a cumulative period – ah a total period of three months' imprisonment wholly suspended for two years. And in relation to all of those matters there's, on all of those matters there's 63 hours' community work.
Now in relation to the breach of suspended sentences, for the reasons I've said before, I don't believe it's appropriate to impose that sentence. What I'm going to do is cancel it, that sentence, and impose 100 hours of community work. Now I imagine there will be a period of time when you will not be able to, and that will be a suspension of that period. But if you think they go away, they won't. If you were to get behind the wheel of a car again, you and your baby whether it's inside or out, will just be going to gaol. Do you understand?
DEFENDANT: Yes.
HIS HONOUR: Most likely if it was out it would just be in care. I just want to emphasise that rather than threaten you, that one of these days you will learn that you just don't do what you want to do when you feel like it. They're victimless crimes insofar as the driving while disqualified, effectively if you're driving a car in itself, the fact is there's a really good reason why you were told not to drive a car. Now there's a six month period of disqualification cumulative on any period you've got."
The submissions on the hearing of the motion to review
Counsel for the applicant submitted that in the light of her record, the respondent was entitled to little leniency when being sentenced for the new offences. She had demonstrated a continuing lack of respect for the law. She had been given the benefit of wholly or partly suspended sentences many times in the past and had failed to reform. The new offences amounted to breaches on three occasions of the conditions of the suspended sentence imposed on 16 September 2011. The breaches spanned a period of only about one to three months from imposition. That was an aggravating factor and demonstrated a flagrant disregard for the law and the integrity of the orders of disqualification. The new offences committed on 20 October 2011 of driving while disqualified and dishonestly providing misleading information to obtain a benefit or advantage also breached the conditions of an earlier suspended sentence of five months' imprisonment that was imposed on 21 October 2010 (although if they had been committed one day later they would not have breached it). Driving contrary to court ordered disqualification should be viewed seriously by courts and the only appropriate sentence in this case, having regard to the circumstances, was one of immediate imprisonment, it was submitted.
Concerning the order for the breach of the suspended sentence of 16 September 2011, counsel for the applicant submitted that the learned magistrate breached his obligation under the Sentencing Act 1997, s27(4D), to state reasons for deciding not to activate the sentence. It was also submitted that there was no reasonable basis upon which the learned magistrate could have formed an opinion that it would be unjust to activate the sentence, if in fact that was what his Honour concluded. It was a requirement of s27(4C) that he form that opinion before considering an order that did not activate the sentence.
Counsel for the respondent accepted that the sentence for the new offences, and the order consequent upon the breach of the suspended sentence, were light having regard to her extensive record and her recent record. But, he submitted, being light did not make the orders manifestly inadequate or erroneous. The sentencing discretion was a very wide one and its exercise should not easily be overturned. In this case, the orders fell within the ambit of a proper exercise of the discretion.
It was also submitted for the respondent that although the learned magistrate's reasons for not activating the suspended sentence were brief and poorly and clumsily enunciated, and no mention was made of the question whether activation would be unjust, his Honour carefully considered whether it was appropriate to activate it and paid proper regard to the achievement of stability in the respondent's life and a cessation of her offending behaviour in future. In summary, it was submitted that the orders were not manifestly inadequate.
Discussion
I will deal with the grounds of review in reverse order.
Prior to amendments effected on 1 January 2011, the Sentencing Act, s27, gave sentencing officers an unfettered discretion whether to activate a suspended sentence of imprisonment if it had been breached by the commission of another offence punishable by imprisonment. That is no longer the case and it was not the case when the learned magistrate dealt with the respondent. The Sentencing Act, s27(4B) was mandatory in its terms by its use of the imperative "must" (see Acts Interpretation Act 1931, s10A) and the learned magistrate was required to activate the sentence, unless his Honour was of the opinion under subs(4C) that it would be unjust to do so. If he formed that opinion and decided not to activate the sentence, subs(4D) mandated once again that he ("must") state his reasons for deciding not to activate the sentence.
The learned magistrate did give reasons for deciding not to activate it. He said that he did not believe it was "appropriate" to activate it "for the reasons I've said before". I infer that was a reference to what his Honour had vaguely stated shortly before about the pre-sentence report, suggesting that "just maybe things are changing" and that "there have been some factors that have been raised in that report and also from what I heard on the previous occasion".
However, it is clear that the reasons were not sufficient. See Trueman v Tasmania (2009) 18 Tas R 435, [2009] TASSC 29, at pars[29] – [32]. A conclusion that it was not "appropriate" to activate the sentence did not justify not doing so. The use of that word by the learned magistrate suggested the application of an unfettered discretion and that was not what his Honour had. A decision not to activate was only justified if the opinion was formed that it would be unjust to activate it. There is no indication in what the learned magistrate said that he formed that opinion, nor that he even addressed the question. I note that it was not an issue directly raised by defence counsel or the prosecutor either.
As was said by the Minister for Justice on 4 November 2009 in her Second Reading Speech in support of the bill to amend the Sentencing Act, if there has been a breach of a condition of a suspended sentence by reason of the commission of an offence punishable by imprisonment there is a presumption that the suspended sentence is to be activated, unless the court is persuaded that it would be unjust to do so. Wood J in Tanner v Brown [2011] TASSC 59 at par[87] noted that was the effect of the amendments, and added that if the court is not of the opinion that an order would be unjust then there is no discretion to be exercised and the sentence must be activated.
In this case, there was no reasonable basis for concluding that it would be unjust to activate the sentence. The learned magistrate had to proceed on the basis that when the suspended sentence was imposed by Magistrate Hill, only seven months earlier on 16 September 2011, it was a reasonable and appropriate order to make having regard to the offences for which it was imposed and the circumstances that were before Mr Hill. The respondent had been imprisoned before for driving while disqualified. On the facts before the learned magistrate, she committed that offence three times within three months or so of the imposition of the suspended sentence. She had an appalling record for offending. She had had many sentences of imprisonment before, suspended and unsuspended, and had been to prison a number of times. In no sense was it unjust to activate the sentence, notwithstanding the claims of reformation and stability in her life in the four months that had elapsed since the most recent of her offences was committed. Many of the offences for which the suspended sentence of imprisonment was imposed arose out of her use of a motor vehicle in unlawful circumstances. It was a clear case for the activation of the sentence. The order made was manifestly inadequate.
I turn to the first ground of review, which is that the sentence of three months' imprisonment wholly suspended for two years, a community service order for 63 hours and disqualification for six months was a manifestly inadequate sentence for the three counts of driving while disqualified (and other offences) committed on 20 October, 8 November and 19 December 2011.
The offence of driving while disqualified on 20 October 2011 was charged under the Vehicle and Traffic Act, s13(1), for which the prescribed penalty for a second or subsequent offence, which would have been the case here but for the matter I next mention, was a fine not exceeding 80 penalty units or imprisonment for a term not exceeding 12 months, or both, and a further period of disqualification not exceeding five years. However, the offence should not have been charged under that Act but instead under the Road Safety (Alcohol and Drugs) Act, s19A(1), for she was driving only one month and four days after she was disqualified from driving for three months for an offence against s6A of that Act (driving with a prescribed illicit drug in her blood). That was the first order of disqualification made on 20 October. It was her first offence of driving while disqualified under that Act, for which the prescribed penalty was a fine not exceeding 40 penalty units or imprisonment for a term not exceeding six months, or both, and a further period of disqualification not exceeding three years. No point was taken before the magistrate or me concerning the charge being under the wrong statute and I will ignore it other than for the prescribed penalty, which I will treat as for a first offence under s19A.
The offence of driving while disqualified on 8 November 2011 was correctly charged under the Road Safety (Alcohol and Drugs) Act, s19A(1), for the period of disqualification ordered under that Act was still operating. However, even if the first driving while disqualified had been correctly charged, the second would have attracted the prescribed penalty for a first offence and not a second offence because she had not been convicted of the first when she committed the second. See Rivera v Maher (1992) 1 Tas R 228 at 230, [1992] TASSC 54 at par[7]. On that basis the prescribed penalty was as stated above.
The offence of driving while disqualified on 19 December 2011 was correctly charged under the Vehicle and Traffic Act, s13(1), for by that time the disqualification for nine months for offences not under the Road Safety (Alcohol and Drugs) Act was in operation. Treating it as a second or subsequent offence for the purposes of the Vehicle and Traffic Act, s13(1), which it was, the prescribed penalty was a fine not exceeding 80 penalty units or imprisonment for a term not exceeding 12 months, or both, and a further period of disqualification not exceeding five years.
An offence of driving while disqualified is a serious offence. There is ample authority for the proposition that deliberate disobedience of a disqualification order cannot be viewed lightly, otherwise such orders lose their force and the law is brought into disrespect. See for example Maher v Banks [1992] TASSC 67 at par[3]; Davies v Petersen unreported 50/1991 at 2; Green v Bessell unreported B57/1993 at 3 and 4. To suspend an otherwise appropriate sentence for a persistent or repeat offender tends to rob the sentence of any personal or general deterrence effect. Bessell v Riley [1995] TASSC 15 at par[9]; Peck v Visser [1999] TASSC 38 at par[8].
Although the respondent had not been convicted of driving while disqualified since 2003, she had, since 2010, eight convictions for driving while suspended and 21 convictions for unlicensed driving. The suspended sentence of three months' imprisonment imposed on 16 September 2011 for three counts of driving without a licence and other offences ought to have amounted to a clear message to her that driving when the law prohibited it would result in imprisonment. Her disregard of that message and the orders of disqualification so quickly after they were made demanded a sentence of imprisonment. To totally suspend all of the imprisonment amounted to unwarranted leniency and rendered the sentence manifestly inadequate.
For these reasons, the motion to review is upheld. The order for breach of the suspended sentence and the sentence for the new offences will be set aside and I will re-sentence her.
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