Pugh v White

[2003] TASSC 135

[2003] TASSC 135

CITATION:         Pugh v White [2003] TASSC 135

PARTIES:  PUGH, Bruce Allan
  v
  WHITE, Sergeant Graham Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 33/2003
DELIVERED ON:  11 December 2003
DELIVERED AT:  Launceston
HEARING DATE/S:  5 December 2003
JUDGMENT OF:  Crawford J

CATCHWORDS:

Traffic Law – Licensing of drivers – Tasmania – Disqualification, and cancellation and suspension of licences – Disqualification – Driving while disqualified and under influence of alcohol – Eight months imprisonment – Whether manifestly excessive.

Aust Dig Traffic Law [26]

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving under influence of alcohol and while disqualified – Eight months imprisonment – Whether manifestly excessive.

Aust Dig Traffic Law [80]

REPRESENTATION:

Counsel:
           Applicant:  S J N Brown
           Respondent:  J P Ransom
Solicitors:
           Appellant:  Legal Aid Commission of Tasmania
           Respondent:  Director of Public Prosecutions

Judgment ID Number:  [2003] TASSC 135
Number of paragraphs:  15

Serial No 135/2003

File No LCA 33/2003

BRUCE ALLAN PUGH v SERGEANT GRAHAM ROSS WHITE

REASONS FOR JUDGMENT  CRAWFORD J
  11 December 2003

1. The applicant was convicted in the Magistrates Court on his pleas of guilty to driving while disqualified under the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), contrary to s19A(1), and of driving under the influence of intoxicating liquor, contrary to s4(a). He was sentenced to eight months' imprisonment, the last four months of which were suspended upon condition that for two years following his release from prison he commit no offence under the Act as the driver of a vehicle. It was also ordered that he is disqualified from driving for three years six months, to commence immediately upon the expiration of his then current period of disqualification (that is, on 24 January 2004).

1. He has applied to review the sentence on two grounds, that the learned magistrate erred by concluding that an immediate actual sentence of imprisonment was unavoidable, and by imposing a manifestly excessive sentence.  The grounds may be considered as one. 

1. At about 3.35pm on Thursday, 8 May 2003, the applicant was driving a motor vehicle on Birralee Road.  He had no passengers.  Police stopped him for the purpose of a random breath test.  He was known to be a disqualified driver.  His breath smelled strongly of intoxicating liquor, his eyes appeared sleepy and his speech was slurred.  A subsequent breath analysis resulted in a reading of 0.238 grams of alcohol per 100 millilitres of blood. 

1. At the time the applicant was 43 years old and he had a record of some significance.  In 1983 he was fined and disqualified from driving for 15 months for exceeding .05, the reading being 0.29.  On 24 July 2001, he was convicted of being a driver without a licence with alcohol in his body on 13 March 2001.  The reading at that time was 0.166.  He was fined $1,000 and disqualified from driving for two years six months.  The offences the subject of the motion to review were committed a little over one year nine months later. 

1. Apart from those offences, his record was not a bad one.  On three occasions between 1993 and 2000 he had been an unlicensed driver and on the last two of those occasions, in 1995 and 2000, he had driven an unregistered and uninsured vehicle.  His punishment in 2000 was a total of $500 in fines and disqualification for eight months. 

1. His counsel explained to the learned magistrate that the applicant was a single man receiving a disability support pension of $400 per fortnight.  He resided with his elderly mother at Frankford and provided her with support and assistance as far as he could given his own illness.  He suffered from liver disease and other associated problems resulting from alcohol abuse over many years.  He was introduced to alcohol at the age of 10 years by his parents.  Counsel tendered a report from a doctor advising that he was severely addicted to alcohol and as a result, his state of health was very poor and he was unlikely to survive more than 12 months unless he ceased drinking alcohol.  Because he was so addicted to alcohol, the doctor did not think that he would be able to cease drinking unless he entered a secure residential program.

1. Counsel provided the following explanation for the offences.  At the time the applicant was employed on fencing work.  He ordinarily relied on a co-worker to drive him to the various work sites, but on the day in question he was unable to organise anyone to collect materials needed for the job and "he ended up driving".  He had consumed alcohol at his mother's 81^st birthday the evening before and he consumed more alcohol prior to driving.  There was nothing mitigatory in any of that explanation.

1. Concerning the two particularly relevant prior convictions, counsel drew the attention of the learned magistrate to the fact that there was an 18 year gap between them.  With regard to the applicant's addiction to alcohol, counsel stated the obvious that it was much harder for him not to use it than for an average person.  It was stated that for the first time in his life, he realised that he needed to address his drinking, otherwise he would spend the remaining months of his life in custody.  It was submitted that any term of imprisonment would be extremely difficult for him in his circumstances. 

1. The learned magistrate made the following comments on passing sentence:

"Well I take all those factors into account.  Your two previous convictions have been referred to by your counsel, one 20 years ago, with an inordinately high reading at .29, that is absolutely wickedly high and is of a gross order.  And then two years ago another high reading, more modest than the first I have just referred to, but nonetheless a high one at .166.  And it was in defiance of that latter conviction that you drove whilst having been disqualified for offending in that way.  Not only that but you presented with another, again a wickedly high reading of .238, and I take that into account in determining that in relation to the charge of driving whilst under the influence of intoxicating liquor that you were so affected.  The other things I've heard indicate that too, in that your breath stank of liquor, your eyes appeared sleepy and your speech was slurred. 

Taking all matters into account and I note your doctor's opinion as well, of course, it could not be again said that a gaol term is avoidable.  It simply isn't.  You are convicted upon the complaint and upon the complaint as a whole you are sentenced to a term of 8 months' imprisonment, the execution of 4 months of that term being suspended upon the condition that you commit no offence as the driver of a motor vehicle under the provisions of the Road Safety (Alcohol and Drugs) Act 1970, that to be for 2 years following upon your release.

Further and upon the complaint as a whole you are disqualified from driving and that to be for 3 years and 6 months, and that disqualification will commence immediately upon the expiration of your current period of disqualification. 

1. By s19A(1), the prescribed penalties for driving while disqualified under the Act were for a first offence (this was one), a fine not exceeding $4,000 and/or imprisonment for a term not exceeding six months, and a further period of disqualification not exceeding three years. By s17, the prescribed penalties for driving under the influence of intoxicating liquor were for a subsequent offence (this was one), a minimum of $1,000 and a maximum fine of $6,000 and/or imprisonment for a term not exceeding two years, and disqualification for a minimum of 24 months and a maximum of 72 months.

1. With respect, I consider the head sentence of eight months' imprisonment was manifestly excessive. It may have been appropriate if the applicant's record had been significantly worse, but not when regard is had to what it was. Notwithstanding that he has been an alcoholic for many years, at the age of 43 his record is not an overly bad one. Apart from an offence of dishonesty 17 years ago, it contains a relatively small number of offences relating to the use of motor vehicles, with only two of them being of particular relevance. His conviction in 1983 for exceeding .05, while plainly relevant, was a long time ago, when he was 24 years old. Because of its age and the lack of other offences under the Act until 2001, it ought to have been accorded only slight weight when fixing the sentence. The only other prior offence of particular relevance, and it was significant, was the one in 2001.

1. The applicant's conviction on 24 July 2001 was committed only 21 months before these offences and particularly for that reason, his offence of driving under the influence of intoxicating liquor demanded a sentence markedly more severe than the prescribed minimum.  By driving while disqualified he demonstrated a blatant disregard for the court's earlier order, for which appropriate punishment was demanded, but it cannot be overlooked that he had not similarly offended before. 

1. It is unnecessary on this occasion to refer extensively to authorities, but I have had regard to many for their statements of principle, such as Briant v Bessell (1994) 74 A Crim R 204, Nunn v Stocks [2001] TASSC 52, Harper v Gauden [2003] TASSC 66, Tunks v Taws [2003] TASSC 58 and Brown v Stone B14/1995.  They speak with condemnation for those who endanger the lives and safety of others by driving while affected by alcohol and particularly those who persistently do so.  They similarly speak with condemnation for those who deliberately fail to comply with court orders disqualifying them from driving and particularly those who persistently do so.  But as I said earlier, the sentence of imprisonment that was imposed in this case was more appropriate for a persistent offender than it was for one with the applicant's record. 

1. For these reasons the motion will be upheld and the sentence imposed by the learned magistrate will be set aside. 

1. I understand that the parties are content that I impose a fresh sentence.  An appropriate sentence is one that combines suspended imprisonment as both a substantial punishment and an encouragement to him not to offend similarly in the future, together with a fine and orders of disqualification.  For driving under the influence of intoxicating liquor he will be sentenced to three months' imprisonment all of which will be suspended upon condition that he commit no offence as the driver of a motor vehicle against the provisions of the Road Safety(Alcohol and Drugs) Act 1970 for two years. He will also be disqualified from driving for three years six months from today. For the offence of driving while disqualified he is fined $500 and sentenced to imprisonment for one month all of which imprisonment will be suspended on the same condition and he will be disqualified from driving for a period of two years from today.