Peck v Visser and Turner

[1999] TASSC 90

[1999] TASSC 90

CITATION:              Peck v Visser & Turner [1999] TASSC 90

PARTIES:  PECK, Michael Wayne
  v
  VISSER, Claas
  TURNER, Paul John

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 32/1999
DELIVERED ON:  20 August 1999
DELIVERED AT:  Hobart
HEARING DATE:  20 August 1999
JUDGMENT OF:  Cox CJ, Crawford J, Evans J

CATCHWORDS:

[Edited reasons given orally]

REPRESENTATION:

Counsel:
           Appellant:  C J Gunson
           Respondent:  F Neasey
Solicitors:
           Appellant:  Abetz Curtis & Worsley
           Respondent:  Director of Public Prosecutions

Judgment  Number:  [1999] TASSC 90
Number of paragraphs:  7

Serial No 90/1999
File No FCA 32/1999

MICHEL WAYNE PECK v CLAAS VISSER and PAUL JOHN TURNER

REASONS FOR JUDGMENT  FULL COURT
(DELIVERED ORALLY)  COX CJ
  CRAWFORD J
  EVANS J
  20 August 1999

Orders of the Court:

Appeal dismissed.

Serial No 90/1999

File No FCA 32/1999

MICHAEL WAYNE PECK v CLAAS VISSER and PAUL JOHN TURNER

REASONS FOR JUDGMENT  FULL COURT
(DELIVERED ORALLY)  COX CJ
  CRAWFORD J
  EVANS J
  20 August 1999

1. The applicant pleaded guilty to three discrete episodes of driving in the course of which he committed a number of offences against the Road Safety (Alcohol and Drugs) Act, s6(1) or s6(2), as well as other offences it is unnecessary to detail as they drew no sentence of imprisonment. He received sentences of imprisonment, however, in respect of each episode, those sentences being concurrent in respect of offences committed on the same occasion but cumulative upon those in respect of the other two occasions. Each episode accordingly attracted an aggregate sentence of incarceration for one year and the entirety attracted a total sentence amounting to three years' imprisonment.

1. It is conceded that each individual sentence was not inappropriate or excessive, and likewise that the aggregate in respect of each incident was not excessive, but complaint is made that the cumulative effect resulted in a manifestly excessive sentence, and that the learned sentencing magistrate erred in not discounting it having regard to the totality principle.

1. The totality principle requires that at the end of the day, where multiple sentences are pronounced, the offender is not left subject to an aggregate sentence which is disproportionate to the totality of his criminal conduct.  It does not necessarily require that the sum of appropriate sentences imposed in respect of each offence be discounted, merely because it amounts to a high penalty.  The focus is on the proportionality the total sentence bears to the totality of the conduct.  Society's need to protect itself from a repetition of it must also be borne in mind.

1. Three years' imprisonment in all, for a number of driving offences in which no-one suffered injury may seem a heavy penalty, but the offences were serious, not only in respect of their potential to cause harm to other road users by driving with high levels of alcohol in the blood, but also in respect of their disregard for court orders which had previously been made prohibiting driving at all.  Even so, the learned magistrate imposed concurrent sentences for the drink driving offence, and the drive whilst disqualified offence, in each episode. 

1. The total period of imprisonment, even on the drink driving charges, were still substantially less, namely 50 per cent, of the maximum penalty provided for by Parliament.  While the individual episodes may have been short of a worst case hypothesis they were nevertheless serious and they were instances of oft repeated conduct.  The principles are clearly enunciated in Veen v R [No 2] (1987 - 1988) 164 CLR 465 in the passage cited by Wright J in the judgment appealed from and we will not repeat it.

1. In this case there was every justification for the imposition of a sentence which paid due regard to the factors of retribution, deterrence and the protection of society.  The appellant has continued to offend notwithstanding the imposition of a variety of penalties ranging from leniency, in the form of fines, probation orders, suspended sentences of imprisonment and community service orders, to actual sentences of imprisonment of increasing severity.  The pattern of his offending has been consistent throughout 18 years.

1. In our opinion the imposition of a total period of three years' imprisonment is not disproportionate to the gravity of the appellant's conduct taken as a whole and accordingly the appeal must be dismissed.