Plumstead, John Frederick v Brown, Graeme Maxwell and McDonald, Scott Raymond
[1998] TASSC 161
•22 December 1998
161/1998
PARTIES: PLUMSTEAD, John Frederick
v
BROWN, Graeme Maxwell and
McDONALD, Scott Raymond
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 84/1998
DELIVERED: 22 December 1998
HEARING DATE/S: 23 November 1998
JUDGMENT OF: Slicer J
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Miscellaneous matters - Remission, parole and prisoner classification - Remissions - Impact of statutory rule concerning remissions upon defendant already subject to sentence.
Hoare v R (1989) 167 CLR 348, applied.
Hyland v R A82/1996; Burke v R [1983] Tas R 85, followed.
Corrections Act 1997 (Tas), s90 2(d).
Corrections Regulations 1998 (Tas), reg23.
Aust Dig Criminal Law [848]
REPRESENTATION:
Counsel:
Applicant: W M Hodgman QC
Respondent: H Virs
Solicitors:
Applicant: Wallace Wilkinson and Webster
Respondent: Director of Public Prosecutions
Judgment category classification:
Court Computer Code:
Judgment ID Number: 161/1998
Number of pages: 7
Serial No 161/1998
File No LCA 84/1998
JOHN FREDERICK PLUMSTEAD v GRAEME MAXWELL BROWN and SCOTT RAYMOND McDONALD
REASONS FOR JUDGMENT SLICER J
22 December 1998
The applicant seeks review of a sentence of eight months' imprisonment following his conviction for numerous traffic offences, including driving whilst disqualified, speeding, driving an unregistered vehicle and driving whilst unlicensed. The sole ground of appeal is that:
" … the sentence imposed by the learned magistrate was manifestly excessive in all the circumstances."
The offences for which the applicant was convicted, their date of occurrence and the maximum statutory penalty were:
| Complaint | Charge | Maximum Penalty |
| 2904/98 | Disobey "No Standing" sign | $500 |
| 13830/97 8 November 1997 | Unlicensed driver Possess number plate calculated to deceive | $1,000/3 months' imprisonment $500 |
| 3573/98 | Cause undue noise | $500 |
| 80053/1998 6 December 1997 | Drive unregistered motor vehicle Drive uninsured vehicle | $1,000/3 months' imprisonment $2,000/12 months' imprisonment |
| 2313/1998 29 January 1998 | Unlicensed driver Possess number plates calculated to deceive Drive unregistered vehicle Drive uninsured motor vehicle | $1,000/3 months' imprisonment $500 $1,000/3 months' imprisonment $2,000/12 months' imprisonment |
| 8404/1998 30 January 1998 | Drive whilst disqualified Drive unregistered motor vehicle Drive uninsured motor vehicle | $1,000/6 months' imprisonment $1,000/3 months' imprisonment $2,000/12 months' imprisonment |
| 3150/1998 18 February 1998 | Drive whilst disqualified Speeding | $1,000/6 months' imprisonment $500 |
In relation to the two charges of driving whilst disqualified, the applicant put as a mitigating matter that, at the relevant time, he had reason to believe that he retained one point and was not disqualified. This was despite the fact that he had received the notice from the Department of Transport that he was disqualified from driving from 16 December 1997, and that whilst he disputed its accuracy, he had taken no steps to challenge it. The learned magistrate dealt with this matter in the following way:
"Assuming that for some odd reason you thought that you were not disqualified, this was, without question, the most unreasonable belief that I can imagine ever being held by anybody. You were armed with a document which told you that you were disqualified. What you were actually disputing was whether or not you ought to have been disqualified, two entirely different things, and you don't strike me as being a person so stupid as to be unable to grasp the difference. Even if you couldn't, it was, I repeat, the most unreasonable belief that it is possible to imagine and it attracts no leniency, that is to say the distinctions not such that I impose a lighter sentence because of that claimed belief that I would if it were not claimed at all. Your record of driving while disqualified and other offences is such that you simply must have known how serious a position it was for a person who had been told in writing that they were disqualified, to continue to drive."
No criticism can be made of this approach.
At the time of sentence, the applicant possessed the following record of traffic related convictions:
Unlicensed driver 5 Unaccompanied learner 5 Driving whilst disqualified 5 Dangerous driving 1 Speeding 6 Exceed .05 1 First year driver with alcohol 2 Unregistered vehicle 6 Uninsured vehicle 5 Fail to remain at scene of accident 1
The learned magistrate stated, in imposing penalty:
"Your record is, I think it fair to say, as bad as I have seen in relation to one which so clearly gives the impression of a defendant treating traffic laws with contempt over a very substantial period. It is not as bad as it is possible to imagine when one examines particular offences in isolation. You only have five previous convictions for driving while disqualified and I have seen worse. You have several under the Road Safety Act and I have seen worse than that and in almost every individual category of offending that you have done there are worse records. But looking at it globally, it is hard to imagine a record that more convincingly conveys the attitude of contempt long held for your obligations as a road user. I don't think it's possible to read your record in such a way as to imagine that you have ever held a driver's licence, I may be wrong about that, it doesn't matter for present purposes, but that's the impression one gets, and certainly if you were entitled to be licensed now it would be a learner's licence for which you would be asking to be issued. It is simply an appalling record."
He declined to impose fines for the unregistered and uninsured vehicle charges because, "I will be sentencing you to a substantial term of imprisonment [and] I conclude that that would be unjust, unrealistic and inappropriate." In addition, a relatively short period of disqualification of eighteen months was imposed because he "temper[ed] the length of disqualification to reflect the need to allow some light at the end of the tunnel."
There is nothing manifestly excessive in the sentence imposed. Counsel for the applicant refined the ground of appeal during the course of argument. In essence, it is contended that the sentence was excessive in that it neither accurately reflected the intention of the sentencing officer, nor the effect which the sentence would have on remission. Following the sentence imposed on 19 August 1998, the applicant appeared before the same magistrate on 8 October in relation to unpaid fines. During a discussion concerning the ability of the applicant to pay fines, his expected date of release and the possibility of transforming the requirement to pay fines into additional time in custody, the following exchange occurred:
"Your [sic] due to get out when, about five months or something?
A:No, because of the sentence that I was serving and because of the sentence you give me and because both them sentences were joined together, now not only do I have to do eight months, I have to do eleven because of me remission, I'm not sure if you were aware of that, because that's a mighty long time, and it's really frustrating me.
M: But you still get remissions on all that?
A:Yeh, but see I was on good behaviour more than six months, I had nine months, I was on best behaviour for six months so that I was able to have three months off, well now because both sentences been joined together I only lose that one lot of, I only get one lot of remission, so that is taken off the eight, so I still got to do the other three, now, so it works out really that I'm doing eleven months, because of the way of the remission and everything and the sentences joined together, so it's a long sentence that I've got.
M:You were doing how long originally?
A:Nine, and nine originally.
M:which would have been six?
A:Yep.
M:And then I gave you eight?
A:That's right, which then took it back up to nine, because I only get one lot of remission for three months.
M:So you don't get remission on the eight?
A:No. Oh, no, I get one lot of remission, all told, I done, I have to do 17 months, take of [sic] 3, works out to be what 14 months, but that is a long time compared to what I would have had to done if I had been sentenced the day after I had been released, because now, because they have been joined together, it's an extra three months I have to do and that's a long long time I believe personally for the charges that I had been on.
M:I assumed you'd get two and a half, or whatever it is, on the eight?
A:No, not by a long shot.
M:So that you would do, what would that be, eleven?
A:All told?
M:Yes?
A:No, no, it's not the case, it's 14 all told, and that's with remission, whereas if it had been a day after I have been released, say if I had been released and sentenced, well then I would only have had to do 11, all told, so yeh.
M:Well that's extraordinary?
A:Yeh.
M:It's the first time I ever heard anybody suggest that it [sic] how it works?
A:It's unfortunately, it is exactly how it works, I've talked to a lot of them over there, and I had the impression I was actually full time now until January, and they said, no, it's not the case at all, so I mean, yeh, it's a ripper of a stinker, I've got.
M:Well, that is most unfortunate, I will have some inquiries made about that because it seems so obviously wrong that it should happen, that something ought to be done about it.
A:I mean, are you talking about that there, or are you talking about the three months.
M:Well, the fact that you are not going to get remissions on the eight?
A:yeh, oh, I get one lot of remissions, but it means I lose the other lot that I had in the first place, so really I'm losing, I've got to do eleven months all told, so for just those driving whilst disqualifieds, it would have been even nice to have three of the months disqualified so I still would have been equal with what I, what you give me, without the other three months.
M:All right, well look, there is not much I can do about that, but I think this current matter should be just adjourned sine die, it should have never been listed and as I said I am going to make some enquiries about it, the only other thing I can do would be to order you to serve the time, but that probably isn't very appealing, is it, it's two days?"
It would appear that the learned magistrate had intended the eight months' sentence to amount to an effective five. However, his comments made on 8 October might have been an afterthought, since he had already extended leniency to the applicant and taken into consideration the existing sentence when, during the hearing of 19 August, he said:
"I give considerable weight to the sentence you have already completed, that is to say that you will complete tomorrow. That, I think, makes you deserving of some lower sentence that I would otherwise impose. I would otherwise be imposing a sentence of between nine and twelve months globally on all the offences, which is how I propose to sentence you. Even without adding anything for the unlicensed driving charges or any others, this is a case where it would be strongly arguable that the maximum sentence should be imposed. I don't propose to approach the maximum. You will be sentenced on all complaints, globally as I say, to eight months imprisonment."
Given that, in the opinion of the Court, the sentence imposed by the learned magistrate was not excessive, there remains the question of whether he was in error in taking into account the remission potentially applicable to the term of imprisonment and whether this area vitiates the sentence. It is established that a court may not impose a long sentence in order to offset the remission period (Hoare v R (1989) 167 CLR 348). However, the converse is not necessarily the case. The court stated in a joint judgment at 355:
"That is not to say that, in the absence of some statutory provision such … a sentencing judge could take no account at all of the availability (or unavailability) of remissions in determining the appropriate sentence in all the circumstances of the particular case. … There may, indeed, be exceptional circumstances in which a sentencing judge may, consistently with both principle and the policy of the remissions system, be influenced by the likelihood of remissions to reduce a head sentence by reason of some special factor by a lesser period than would have been appropriate if there were no applicable remissions system. … In that regard, it should be stressed that the general rule referred to in the preceding paragraph is not that a judge must pay no regard whatsoever in the sentencing process to the availability of remissions for good behaviour while a prisoner is in custody. The general rule is that it is not permissible for a sentencing judge to treat the likelihood of remissions for good behaviour as itself constituting a ground for increasing what would otherwise be the appropriate head sentence."
In this case, the learned magistrate made no such error of principle. He did not determine a higher penalty because he believed that a remission would reduce his determined sentence. He was not required to make provision for the absence of a system of remissions. Indeed, he took into account that, with good behaviour, the applicant might have lessened the time spent in custody. His error, if such be the case with hindsight, was that he believed that the remission could be earned in relation to the sentence which he initially imposed and would not be determined upon the totality of an aggregate sentence. But the intention of Parliament stated in the Corrections Regulations 1998, statutory rule 104, made pursuant to the Corrections Act 1997 is to the contrary. The Corrections Act, s86, provides:
"The Director may grant to a prisoner a remission of the whole or any part of the prisoner’s sentence pursuant to regulations made under section 90(2)(d)."
Whilst the latter provision states:
"90 (1) The Governor may make regulations for the purposes of this Act.
(2) … with respect to –
…
(d)the mitigation or remission, conditional or otherwise, of the sentence of a prisoner as an incentive to, or reward for, good conduct while the prisoner is serving his or her sentence; …"
The Regulations, reg23, state:
"(1) For the purpose of section 86 of the Act, a remission of the whole or any part of a prisoner's sentence is not to –
(a) exceed 3 months if the period of imprisonment to which the remission relates is imposed after 1 January 1994; and
(b) exceed one-third of the total period of imprisonment to which a prisoner is sentenced; and
(c) operate so as to reduce the total period of imprisonment served by a prisoner to less than 3 months."
In this case, the learned magistrate was aware that, with the remission of the existing sentence, the applicant was due for release on the day following the imposition of that sentence. Accepting his comments made on 8 October, he might well have believed that the applicant would have been entitled to earn a separate remission in relation to the fresh sentence, and in holding that belief, expressed his understanding of the apparent unfairness which the applicant claimed as a consequence of the statutory rule. But that expression of understanding, a reasonable sentiment, had not impacted on the validity of his own "head" sentence. Remission exists as a form of control of persons in custody. Interference with that form of control might well be attractive to Parliament or the Executive, whilst its effect on the capacity of custodians to ensure order within their domain and encourage modification of behaviour might be deleterious. But a value judgment has been made by Parliament through its statutory rule. In expressing his understanding of the plight of the applicant, the learned magistrate was not signifying that his sentence was erroneous. There are circumstances when a court ought pay regard to the effect of a remissions scheme in the fixing of a lengthy sentence. As Cox J stated in Burke v R [1983] Tas R 85 at 91:
" … whereas it would not be proper to take into account the possibility of remissions when determining the length of sentence appropriate to be passed for a particular crime, it is not in my view improper to consider, in determining as a factual basis upon which that sentence is to be passed, the effect of remissions upon a sentence he still has to complete. When the prisoner can reasonably be expected to complete his existing sentence is a matter of proper enquiry and to ignore the statutory discretion given to the prison authority and the established manner of its exercise is to close one's eyes to reality."
But the effect of legislative change has been held to be not such a relevant factor. Crawford J addressed this question in Hyland v R A82/1996, when he said at 4:
"If courts had regard to movements in the remission rules when fixing sentences of imprisonment but only when they became less generous than immediately before and not when they became more generous, the logical and inevitable result would be that over time the length of sentences of imprisonment would be forced down. As a matter of general principle therefore, the availability of remissions, and variations in regulations in that regard, ought to be disregarded when fixing the appropriate sentence for the crime of a particular offender."
Whilst the effect of remissions on a sentence previously imposed may be taken into account, it ought not be so regarded in the penalty intended to be imposed (Hyland (supra) Zeeman J at 9). In this case, the learned magistrate took into account the remission claimed to have been earned by the applicant in relation to the sentence being served. He was not concerned with the likelihood or otherwise of the remission which might or might not have been earned in relation to his own sentence.
In this case, the learned magistrate had regard to the remission already earned and anticipated that the applicant might earn further remission, and might have been incorrect in that belief. But such did not vitiate the sentence imposed. Had the applicant deferred his plea until after his release, he would have been entitled to the potential of future earned remission. The Court is conscious that both prosecuting authorities and defendants alike desire to have all outstanding matters determined whilst a person is serving a custodial sentence. It may well be that persons anticipating a further custodial sentence will defer plea until after release in order to avoid the loss of remission. But those consequences are ones created by the statutory rule. Courts are entitled to take into account the impact of the statutory rule in the determination of penalty on those already subject to sentence by applying the principle of totality, or in the assessment of the effects of parole. But the ultimate responsibility for the aggregation of remission calculation remains with Parliament and the Executive.
The ground of appeal alleging that the sentence was manifestly excessive has not been made out. The appeal ought be dismissed.