Peck v Visser

[1999] TASSC 38

[1999] TASSC 38

PARTIES:  PECK, Michael Wayne
  v
  VISSER, Claas

TURNER, Paul John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 43/1998
DELIVERED:  1 April 1999
HEARING DATE/S:  23 March 1999
JUDGMENT OF:  Wright J

CATCHWORDS:

Magistrates - Appeal from and control of magistrates - Motion to review - The hearing - Review of sentence - Principles applicable - Totality and proportionality principles - Sentences of imprisonment and licence disqualification - Whether sentences manifestly excessive - Driver with bad record -Consideration of aggregate sentences.

Road Safety (Alcohol & Drugs) Act 1970 (Tas).
Veen v R (No 2) (1987 - 1988) 164 CLR 465, applied.
Harris v Walker (1996) 89 A Crim R 257; Brown v Stone B14/1995; Bessell v Riley B12/1995; R v O'Brien 43/1987; Jarvis v Brown and McDonald 120/1998, followed.
Grabovac (1997) 92 A Crim R 258; Hyland v R A82/1996; R v Faulkner (1972) 56 Cr App R 594, considered.
Devine v R (1992) 2 Tas R 167, distinguished.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  C J Gunson
             Respondent:  H Virs
Solicitors:
             Applicant:  Abetz Curtis & Worsley
             Respondent:  Director of Public Prosecutions

Judgment category classification:
Judgment ID Number:  [1999] TASSC 38
Number of pages:  6

Serial No 38/1999
File No LCA 43/1998

MICHAEL WAYNE PECK v CLASS VISSER, PAUL JOHN TURNER

REASONS FOR JUDGMENT  WRIGHT J

1 April 1999

1. On 6 October 1998 at the Court of Petty Sessions in Launceston, the applicant was convicted upon five complaints, the details of which are set out in the table hereunder.  The penalties imposed in respect of each offence are set out in the column headed "Penalty" and the maximum available penalty provided for in the Road Safety (Alcohol & Drugs) Act 1970 is set out in the column headed "Max Penalty".

"Comp No	Charge	Breach of	Penalty	Max Penalty
22604/97	Exceed 0.05% (0.166%)	Sec 6(1), Road Safety (Alcohol & Drugs) Act 1970	12 mths imp 2 years disq	24 mths imp 24 mths disq (min) 72 mths disq (max)
Drive whilst disqualified	Sec 19A(1), Road Safety (Alcohol & Drugs) Act 1970	6 mths imp (conc) 12 mths disq (conc)	6 mths imp 3 years disq
22674/98	Exceed 0.05% (0.20%)	Sec 6(1), Road Safety (Alcohol & Drugs) Act 1970	Dismissed
Drive while alcohol in body no authority (0.20%)	Sec 6(2), Road Safety (Alcohol & Drugs) Act 1970	12 mths imp 3 years disq	24 mths imp 24 mths disq (min) 72 mths disq (max)
Drive whilst disqualified	Sec 19A(1), Road Safety (Alcohol & Drugs) Act 1970	6 mths imp (conc) 12 mths disq (conc)	6 mths imp 3 years disq
23891/97	Fail to appear	Sec 5(4), Bail Act 1994	Convicted & disch
22694/98	Fail to wear seat belt	Reg 8(1A)(a), Traffic (General & Local) Regs 1956	Convicted & disch
Drive whilst disqualified	Sec 19A(1), Road Safety (Alcohol & Drugs) Act 1970	6 mths imp 12 mths disq	6 mths imp 3 years disq
Drive while alcohol in body no authority (0.219%)	Sec 6(2), Road Safety (Alcohol & Drugs) Act 1970	12 mths imp 3 years disq (conc)	24 mths imp 24 mths disq (min) 72 mths disq (max)
Exceed 0.05% (0.219%)	Sec 6(1), Road Safety (Alcohol & Drugs) Act 1970	Dismissed
Assault police officer	Sec 34B(1)(a)(i), Police Offences Act 1935	Convicted & disch
Use abusive language to police officer	Sec 34B(1)(b), Police Offences Act 1935	Convicted & disch
22727/98	Contravene conditions of bail	Sec 5(4), Bail Act 1994	Convicted & disch"

The applicant now seeks to review the penalties imposed in respect of complaints 22604/97, 22674/98 and 22694/98.  The offences comprised in those complaints were committed on 1 November 1997, 17 September 1998 and 13 September 1998 respectively.

1. Counsel for the applicant conceded that individually the sentences of imprisonment and the disqualifications imposed could not be successfully challenged but, he submitted, the learned sentencing magistrate should have considered the suspension of some part of the gaol sentences to encourage the applicant's rehabilitation and the disqualifications should not have been made cumulative upon disqualifications which had previously been imposed upon the applicant and which had six years to run as at 6 October 1998.  Furthermore, it was submitted, the sentences of imprisonment and the disqualifications offended the totality principle, lacked proportionality and were crushing.

1. As a consequence of the orders for imprisonment imposed by the learned magistrate, the applicant was required to serve a total continuous period of imprisonment of three years.  His Worship also ordered that the total period of disqualification for holding or obtaining a driving licence, amounting to eight years, was to commence at the expiration of any period of disqualification to which the applicant was then subject. 

1. The applicant, now aged 34 years, has a very bad record for prior offences.  Between July 1981 and September 1996, he was convicted at fairly regular intervals of either driving under the influence of liquor, exceeding 0.05%, being a first year driver with alcohol in his body, refusing a breathalyser test or similar offences on no less than ten separate occasions.  On many of these occasions, he was driving whilst under disqualification and consequently had six convictions for this offence as well.  Not all blood alcohol readings are recorded on the applicant's conviction sheets, but those which are (three), all show a level in excess of 0.20%.

1. In imposing sentence on the present occasion, the learned magistrate made the following comments:

"Mr Peck I have taken into account what your counsel has said on your behalf and your personal circumstances, and the circumstances in which these offences took place.  Nothing arises from what has been put to me and indeed from your prior history which in any way mitigate from the appropriate penalty that I need to impose upon you to deter you and others from committing these kind of offences. 

You are a persistent offender under the Road Safety (Alcohol & Drugs) Act and all kinds of sentences have been tried upon you to dissuade, encourage and indeed deter you, none of which appear to have worked.  And this last lot of offending which took place over a period of less than twelve months took place a short time after your release from prison for similar offences."

1. The High Court had occasion to discuss the extent to which an offender's prior record could be taken into account in Veen v R (No 2) (1987 - 1988) 164 CLR 465. At 477, the majority of the Court (Mason CJ, Brennan, Dawson and Toohey JJ) said:

"… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.  To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

1. In Harris v Walker (1996) 89 A Crim R 257 at 260, Cox J (as he then was) was discussing the question of sentencing under the Road Safety (Alcohol & Drugs) Act, and said:

"An offence against the Act, s6 is a matter of considerable seriousness, especially where the concentration in question significantly exceeds the prescribed concentration. Where the offence is repeated, even though on an earlier occasion the Court has not proceeded to conviction and for the purposes of any statutory Table the subsequent offence leads to a first rather than a subsequent conviction therefor, the question whether it is necessary to impose a deterrent penalty becomes of particular importance. This view was taken by the court several years before mandatory penalties were introduced in 1991 (Booth v Breen, Everett J, 10/1980, Spaulding v Lowe, Underwood J, 4/1985, Dobson v Clark, Green CJ, 65/1983, Barrett v Pearce, Neasey J, 6/1986, Lowe v Burridge, Neasey J, 31/1986, Ling v Wakefield, Wright J, 41/1986, Miller v Visser, Cox J, 32/1988). Since the introduction of mandatory penalties, Zeeman J has observed in Briant v Bessell A62/1994 at 4:

'... the clear legislative intent evinced by the Act 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, 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. Certainly an offender such as the present applicant, who has been convicted on three occasions of breaches of s6(1) involving quite high readings, cannot complain where a short period of imprisonment is imposed'."

1. It is obvious that this Court has consistently taken the view over many years that persistent offenders against the Road Safety (Alcohol & Drugs) Act provisions dealing with drink driving merit severe punishment. 

1. A similar approach has been taken in respect of the offence of driving whilst disqualified.

1. Zeeman J made the following comments in Brown v Stone B14/1995 at 4:

"Parliament has provided for a maximum sentence of 6 months' imprisonment for the offence of driving whilst disqualified. The respondent might not have had reason to complain had that maximum sentence been imposed on him. 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 (see R v Mallinder (1986) 23A Crim R 179; R v Tait (1979) 46 FLR 386). In dealing with persons who are convicted of the offence of driving whilst disqualified, magistrates must steadfastly keep in mind what Parliament has determined to be the maximum penalty."

1. In dealing with a similar question on the same day as Zeeman J, I said this in Bessell v Riley B12/1995:

"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. In addition it may be said that to suspend an otherwise appropriate sentence will frequently rob it of any personal or general deterrent effect."

1. In view of the applicant's pattern of persistent offending, his failure to respond to a range of penalties, including fines, probation, community service and a suspended gaol term, I am quite unable to agree with his counsel's submission that a partially suspended sentence or a treatment order may have been appropriate in this case.  There was nothing in the plea in mitigation presented to the learned magistrate which would have justified or required leniency to the applicant in the expectation that by so doing he would reform his indulgence in alcohol or his pattern of offending behaviour.

1. Little, if any, material was placed before me to suggest that there is a particular "tariff" of punishment to be imposed in respect of offences such as those now before the Court.  Counsel referred me to the observations of the Court of Criminal Appeal in Devine v R (1992) 2 Tas R 167 at 185 - 187, but I do not find those opinions of particular assistance in the present circumstances. Taken individually, the sentences and disqualifications imposed on the applicant are unexceptionable and if they are to be overturned this can only be achieved on the basis that they offend the totality or proportionality principle. These principles have been authoritatively stated in several cases.

1. In Mill v R (1998) 166 CLR 59 at 62 - 63, the High Court, in a unanimous judgment, said:

The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences.  It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56-57 as follows (omitting references):

'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".'

See also Ruby, Sentencing, 3rd ed (1987), pp 38 - 41.  Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed.  Where practicable, the former is to be preferred. 

The totality principle has been recognized in Australia. In Reg v Knight (1981) 26 SASR 573 the Full Court of the Supreme Court of South Australia (Walters, Zelling and Williams JJ) said, in a joint judgment, at p 576:

'it seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts.  To use the language of Lord Parker LCJ in Reg v Faulkner (1972) 56 Cr App R 594, at p 596, "at the end of the day, as one always must, one looks at the totality and asks whether it was too much".'

See also Reg v Smith (1983) 32 SASR 219; Ryan v The Queen (1982) 149 CLR 1, at pp 21, 22 - 23."

1. The desirability of making sentences concurrent to achieve a just result, rather than reducing individual penalties to produce a similar outcome, was discussed recently by Ormiston J in Grabovac (1997) 92 A Crim R 258 at 270 et seq.  There is also a useful discussion of the preferable methodology in Hyland v R A82/1996 per Cox CJ at 5 - 7.  No matter which approach is adopted "at the end of the day … one looks at the totality and asks whether it was too much" (see Parker LCJ in R v Faulkner (1972) 56 Cr App R 594 at 596).

1. It is noteworthy that the learned magistrate in the present case did not simply impose separate sentences in respect of all offences committed during the three relevant unlawful episodes and then aggregate them.  In each instance the sentence imposed in respect of driving whilst disqualified, although the maximum provided by statute for that offence, was made concurrent with the other sentence imposed in respect of drink driving which occurred on the same day.  The only accumulation occurred in respect of the three separate unlawful occasions.  Even so, on the basis of principle, it was necessary for the learned magistrate to consider whether or not, in total, the overall result was "just and appropriate" or whether it was "too much".

1. So far as the sentences of imprisonment are concerned, I am unable to conclude that the learned magistrate fell into error.  There is little point in comparing the aggregate sentence with single offences of serious violence as counsel for the applicant did.  The simple fact is that the applicant, in flagrant disregard for the law, has continued over many years to drive motor vehicles upon public highways whilst affected by liquor.  He has not been deterred by increasingly severe penalties and he has proffered no excuse whatsoever for his conduct on the three occasions now in question.  His only mitigating conduct has been in pleading guilty.  I would regard his protestations of a desire to reform and overcome his weakness for alcohol as virtually valueless.  When not in prison he appears to be a persistent danger on the State's roads.

1. Somewhat different considerations may be entertained in respect of the licence disqualifications.  As at October 1998, there were existing disqualification orders which applied to the applicant until 2004.  If the eight year disqualification now in question is allowed to stand, he will be unable to apply for a licence until 2012.  Some may legitimately consider this to be a very good thing, but it must be borne in mind that such a licence is not granted automatically.  Something of the tension which was discussed by the High Court in Veen v R (No 2) (supra) at 473 becomes evident in considering this question.

1. In R v O'Brien 43/1987, I expressed concern that excessively long periods of disqualification have a tendency to increase the prospects of non-compliance with the Court's orders.  I still adhere to these views and I note that they were adverted to by Evans J in Jarvis v Brown and McDonald 120/1998 at 5 where he said:

"The Court's power to disqualify drivers is an important road safety tool. The threat of a licence disqualification is a major deterrent to the great majority of drivers and actual disqualifications frequently prompt drivers to desist from unsafe driving. Licence disqualifications can protect the community by keeping potentially dangerous drivers off the road. Some protection is also obtained in relation to those who drive regardless of their disqualification in that police officers and others who are aware of the situation can take steps to bring about compliance and the imposition of further penalties. In a sense, it does not make a lot of difference whether recidivists who receive disqualification are disqualified for six years or sixteen years. They are likely to re-offend early in the period of their disqualification and be saddled with the consequences of their behaviour. As to others, it is important that the length of their disqualification should not be so great as to offer little or no hope. Where an offender has not exhausted the Court's hopes for his or her reform, where possible, the period of disqualification should encourage reform."

1. Counsel for the respondent submitted that in the present circumstances it could fairly be said that the applicant had already "exhausted the Court's hopes for his … reform".  Up to a point, this is true.  He is a confirmed recidivist and an habitual offender but, as they say, "hope springs eternal" and it is just possible that confirmation of the applicant's three year gaol sentence will jolt him into forswearing his deviant and anti-social conduct.  I have not left out of account the fact that the six year disqualification previously imposed upon the applicant will be of little, if any, deterrent value whilst he is actually serving a sentence of imprisonment and it would therefore be inappropriate to regard him as an individual who is realistically deprived of the opportunity to drive lawfully for the whole of the  period of fourteen years.

1. Nonetheless, I think an eight year disqualification on top of the six already in operation is too much, and is thus manifestly excessive.  In my opinion, the eight year disqualification should be confirmed but it should run from the date upon which the applicant is released from gaol in respect of the present offences.  Thus, in part at least, it will run concurrently with the pre-existing six year term.

1. To this extent, the notice to review will be granted and the sentence appealed against will be varied accordingly.