Parker v Tasmania Police

[2005] TASSC 121

[2005] TASSC 121

CITATION:              Parker v Tasmania Police [2005] TASSC 121

PARTIES:  PARKER, Garry Anthony
  v
  TASMANIA POLICE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 67/2005
DELIVERED ON:  5 December 2005
DELIVERED AT:  Hobart
HEARING DATE:  28 November 2005
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The Hearing - Generally - Review of sentence – Whether manifestly excessive.

Graeme Maxwell Brown v Peta Cynthia Kelly, 26 February 2001; Livesey v The New South Wales Bar Association (1983) 151 CLR 288, referred to.

Justice Act 1959 (Tas), ss107(4), 110.
Corrections Act 1997 (Tas), s68.
Sentencing Act 1997 (Tas), s17.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  Applicant in person
             Respondent:  S J Bender
Solicitors:
             Applicant:  Applicant in person
             Respondent:  Director of Public Prosecutions

Judgment  Number:  [2005] TASSC 121
Number of paragraphs:  27

Serial No 121/2005
File No

GARRY ANTHONY PARKER v TASMANIA POLICE

REASONS FOR JUDGMENT  TENNENT J

5 December 2005

1. The applicant filed a notice to review with the Court on 25 October 2005 in respect of a sentence imposed on him in the court of petty sessions on 19 September 2005.  On the face of it, the notice was out of time.  An application to extend time was made and not opposed.  That was an entirely appropriate course of action for counsel for the State to take.  Time was accordingly extended.

Sentence appealed from

1. On 19 September 2005 the applicant was convicted of driving a vehicle while under the influence of intoxicating liquor ("DUI") and driving while disqualified ("DWD") and sentenced globally to serve a period of 21 months' imprisonment backdated to 20 August 2005.  A non-parole period of 15 months was fixed.

Grounds of review

1. The applicant's grounds are as follows:

"1    Conflict of Interest between Magistrate and I

2     Verbal abuse over 3 years & walking out of his Court.

3     Severity of sentence

4Forced to plea against my wishes by Duty Solicitor No Plea No Representation

5     Parole Sentence – Cannot get Parole in Tasmania."

Applicant's arguments

1. The applicant made oral submissions but also relied on an affidavit sworn 25 October 2005.  That affidavit appears to have been filed in support of the application to extend time.  However, no objection was taken by counsel for the respondent to my having regard to it.

1. In summary, the applicant said that he and the magistrate had locked horns before 19 September 2005.  He said that he had verbally abused the magistrate and walked out of his court on previous occasions.  He argued that by reason of this, the magistrate's views of him would have been affected such that he would have been harsher in sentencing than another magistrate.  That argument effectively related to grounds 1 and 2.

1. As to ground 3, the applicant argued that the sentence imposed was too much and that he knew of other prisoners who had appeared on the same charges and been sentenced to only one month's imprisonment.  He was not able to expand on that ground, save to say that the sentence was just too long.

1. As to ground 4, during the hearing the applicant said that what he meant by this was that his counsel had not put matters to the court as he had instructed her to.  That was clearly not what the applicant said in ground 4 and, in fact, ground 4 was explained in the affidavit the applicant filed.  There he set out that he had been told by his Legal Aid solicitor that he had to plead that day and that if he did not, she would be unable to represent him.  There was nothing in the affidavit to suggest that the solicitor did not put to the court any matter about which the applicant had given her instructions which was relevant to sentencing.

1. As to ground 5, the applicant told the court that the Parole Board in Tasmania would not release him on parole and the magistrate, had he been aware of that, should have taken that into account.  It is apparent from the transcript of the plea in mitigation that there was no mention by the applicant's solicitor of anything about parole.  The applicant said he told the solicitor about it.  The applicant was not able to identify just how this might have affected the proceedings, nor did he explain in any detail why it was the Parole Board would not consider any application he might make for parole.

The law

1. The Justices Act 1959 ("the Act"), s107(4), provides that a notice to review shall allege an error or mistake on the part of the magistrate on a question of fact alone, a question of law alone, or a question of both law and fact. The Act, s110, sets out the powers of the Court on the hearing of a notice to review. It provides, in particular, that where the Court considers that no substantial miscarriage of justice has occurred, even though the cause or matter raised by the notice might be decided in favour of the applicant, it may dismiss the notice.

1. As Blow J said in reasons delivered orally in Graeme Maxwell Brown v Peta Cynthia Kelly delivered on 26 February 2001:

   "The principles upon which the court will intervene on a review of a decision as to penalty are well known.  A magistrate has a very wide discretion.  This Court, as an appellate court, must not interfere with the exercise of that discretion except in a case of clear error.  The error can be implicit in the excessive leniency of the sentence imposed or order made.  It is not sufficient to show that a more severe sentence or less lenient course might have been the outcome if the matter had come before the appellate court as a court at first instance.  The Court needs to be satisfied that the sentence or order was manifestly wrong in its inadequacy so as to amount to or show a clear error in the sentencing process.  It is a duty of the appellate court to interfere where necessary to do so to avoid manifest inadequacy or inconsistency in sentencing standards when the error is of such gravity that it is essential for the administration of justice that the error be corrected.  The authorities as to all this are well known: House v R (1936) 55 CLR 499, Cranssen v R (1936) 55 CLR 509, Harris v R (1954) 90 CLR 652."

2. The applicant, in substance, argued that the sentence was manifestly excessive in all the circumstances, the individual matters raised being the circumstances which gave rise to what he argued was the harshness of the sentence.

The circumstances surrounding sentencing

1. The applicant asserted, in effect, that the learned magistrate was biased against him and hence imposed a harsh sentence.  The applicant did not refer to any comments made by the learned magistrate which might have indicated any bias and there was no application to disqualify.  The applicant argued he instructed his solicitor to have the matter moved to another magistrate, but she did not do so.

1. The transcript of proceedings, however, shows the following exchange:

"MS KERR:     Your Worship, I have spoken to Mr Parker, he has raised some issues but I basically told him unfortunately there's not a great deal we can do.

HIS WORSHIP:  What are the issues?

MS KERR:      Your Worship, Mr Parker has been sentenced by you in the past and he feels that this will impact upon your decision today.  I have told him that obviously this happens, quite regularly, and there is nothing that I can do.  I have explained that and if he – I have indicated I am assisting him today on a duty solicitor basis as he's not eligible for a grant of actual aid.  I can assist him with a plea in mitigation today – anything else I would have to withdraw from the matter.  So – and I did speak to Mr Parker in the Remand Centre just previously and he indicated that that is what would happen, but I'm not sure now.  So I apologise.

HIS WORSHIP:  Let me make this observation.  Mr Parker is undoubtedly correct – I have sentenced him before.  That is no basis on its own for any judicial figure to disqualify him or herself from dealing with the same defendant again.  If there was no more to such an application, if the application was made, then that, then I would refuse to disqualify myself from dealing with this matter.  But having said that, would you please Ms Parker – sorry Ms Kerr, confirm with your client Mr Parker that he is, in the light of that observation, ready, willing and able to plead today.  If he wants a further adjournment I'll consider it.  Well, I heard his response.  I gather that sums it up.  All right, well we'll start again."

1. It is clear that the learned magistrate was alert to the applicant's concerns and considered them.  He gave the applicant an opportunity to seek an adjournment.  It can be inferred the applicant declined that offer and the matter proceeded.

1. There is nothing in the transcript of the proceedings before the learned magistrate that would indicate he had any preconceived views about the applicant or had prejudged him in any way.  It is common for magistrates to deal with the same defendant a number of times and the applicant's behaviour, to the extent he outlined it, is not all that uncommon before magistrates.  The applicant did not expand upon his argument to say, for example, that the learned magistrate had on this occasion, or any previous one, indicated that he was angered by the applicant's behaviour.

1. Counsel for the State referred to the decision of the High Court in Livesey v The New South Wales Bar Association (1983) 151 CLR 288 and the comments of Mason, Murphy, Brennan, Deane and Dawson JJ at 293 - 294 under the heading "The law".  He submitted that in the context of the present case, that is, a busy magistrates court where the same defendants appear regularly, it would not be unusual for a magistrate to deal with the same defendant often and the administration of justice would grind to a halt were defendants able to object to their cases being dealt with by a magistrate who had previously sentenced them.

1. As to the argument that the applicant was forced to plead, the transcript discloses he was told he could plead guilty or not guilty, and that he was given an opportunity to seek an adjournment.  It also discloses that the solicitor told the court that the applicant had been told that he was not entitled to a grant of legal aid and that she would represent him that day as the duty solicitor for the purpose of a plea in mitigation.  She would be unable to represent him for anything else and would withdraw in that event.  The applicant conceded that there was really no question of his pleading not guilty.

1. As to the issue of severity of sentence, the applicant said that he knew of other prisoners who had received much lesser sentences than he had for the same offences.  That was the extent of his submission about this point.

1. The applicant's prior history of convictions was before the court.  That disclosed that the applicant had the following prior convictions relating to drink driving incidents:

31/5/2005	Refuse Breath Analysis (13/4/05) Drive while disqualified Drive under the Influence of Intoxicating Liquor (13/4/05) Driver involved in a crash and failing to stop Refuse to state name and address Use abusive language to police (x 2) Fail to obey direction of a police officer (x 2)
Global sentence 10 months' imprisonment with 4 months suspended effective 13 April 2005 on condition he be of good behaviour for 2 years 5 year disqualification
15/5/2003	Drive unlicensed  ) Drive while exceeding the prescribed alcohol limit (.143)  ) Drive under the influence   ) Fail to appear  ) Drive while disqualified  )	April 2002
Drive while disqualified  ) Drive under the influence  ) Refuse breath analysis   ) Drive without authority with alcohol in body                ) Speeding  )	May 2003
Global sentence of 18 months' imprisonment effective 8/5/2003 with 6 year disqualification effective on release
22/8/2001	Refuse breath analysis $1,000 fine
17/3/1972	Exceed .08% (.11%)

1. The offences which gave rise to the penalty under review occurred on 19 August 2005, that is, almost immediately after the applicant was released from custody after the conviction on 31 May 2005.   The facts read by the prosecutor which were not disputed indicated the applicant drove through inner city streets at about 7pm one night, swaying backwards and forwards between lanes, accelerating in traffic and stopping in such a way as to block intersections.  Other drivers were obliged to take evasive action to avoid collisions.  The applicant eventually stopped outside the Customs House Hotel where he was found sitting in the driver's seat of the car with the engine still running.  He staggered and stumbled when he got out of the car.  The blood alcohol level of the applicant was determined to be .170 grams of alcohol in 100 millilitres of blood.

1. The learned magistrate was therefore dealing with an offender who -

·re-offended almost immediately upon release from custody after a jail term for the same type of matters;

·re-offended while the subject of a partially suspended jail sentence;

·re-offended in a manner which had the potential to cause significant risk to the lives of other road users and damage to property;

·was before the court for his fifth set of drink driving offences in less than five years;

·had served lengthy custodial sentences twice in the three years preceding the current offences for the same type of offences; and

·was unable to provide any explanation as to why he was driving a motor vehicle.

1. In mitigation, the solicitor for the applicant told the magistrate the applicant was 51 years old, married and a disability pensioner.  He was taken from his mother as a child and spent years in State care.  He suffered abuse during this period and was recognised in the Ombudsman's report into abuse of children in care.  He was referred to a psychologist and a letter from that psychologist, tendered at an earlier sentencing hearing, was supplied.  The solicitor told the learned magistrate the applicant recognised he was an alcoholic and that as a consequence his general health had suffered.  He had blackouts and memory blanks.  He had been given a drug to deal with alcohol cravings whilst in gaol and given a script to continue with that on release.  It could not be filled without Health Department approval.  There was delay, and the applicant returned to an older medication which did not work.  He recommenced drinking spirits.

1. The learned magistrate recognised the circumstances of the DUI as a serious example of such a charge.  He took into account the applicant's plea of guilty and the contents of the letter from the psychologist, recognising the applicant suffered serious psychological conditions which had plagued him through his life.  He noted the previous history, and that the applicant had offended while the subject of a suspended sentence.  He noted that the maximum sentence which he could impose for the DUI charge alone was two years, without even considering the DWD.  He expressed the view that this was a case where the protection of the public was a significant issue and that a lengthy period of imprisonment was warranted.  He considered that there was no basis for suspending any part of the sentence.

1. The learned magistrate imposed a non-parole period.  The Corrections Act 1997, s68, provides for a statutory non-parole period of one-half of the operative sentence in the case of a prisoner such as the applicant. However, the Sentencing Act 1997, s17, empowers a magistrate to determine a non-parole period which is greater than one-half and sets out the matters the magistrate must consider if he or she makes an order under this section. The learned magistrate determined that the circumstances of the applicant's case warranted that he should serve at least 15 months, as opposed to the statutory period of 10½ months.

1. The applicant has said the Parole Board will not give him parole.  The only possible relevance that could have had to sentencing is that, were the learned magistrate persuaded that was a fact, he might have shortened the sentence.  There is no basis upon which he could have been so satisfied, even had the applicant's solicitor stated the fact.  This is because eligibility for parole is within the discretion of the Parole Board having regard to the circumstances of the applicant at the time of application.  It is extremely unlikely the Parole Board would have confirmed in absolute terms to the court that the applicant would not be eligible for parole at some date in the future.

Conclusion

1. The onus rests on the applicant to demonstrate error on the part of the learned magistrate.  I am of the view, having regard to the matters canvassed above, that he has not done so.  The applicant is a repeat offender, the gaps between offending are narrowing and he is a potential danger to other road users.  The sentence, while significant, is within the range open to the learned magistrate in the circumstances.

1. The notice to review will be dismissed.