Quinn v Crawford
[1988] TASSC 105
•31 October 1988
Serial No: B37/1988
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Quinn v Crawford [1988] TASSC 105; B37/1988
PARTIES: QUINN, David John
v
CRAWFORD, Mark Anthony
FILE NO/S: 20/1988, 23/1988
DELIVERED ON: 31 October 1988
JUDGMENT OF: Crawford J
Judgment Number: B37/1988
Number of paragraphs: 24
Serial No: B37/1988
List "B"
File No: LCA–20/1988
LCA–23/1988
DAVID JOHN QUINN v MARK ANTHONY CRAWFORD.
REASONS FOR JUDGMENT CRAWFORD J
31 October 1988
Two motions to review sentence imposed in the Court of Petty Sessions at Launceston on 5 September 1988 are involved. David John Quinn (who I will refer to as the applicant notwithstanding that he is the respondent to one of the motions) pleaded guilty to two charges in complaint 885387 in the following terms–
"1 That on the 19 May 1988 on the West Tamar Highway, a public street at Launceston in Tasmania, did drive a motor vehicle whilst alcohol was present in your blood in a concentration greater than the prescribed concentration of 0.05 of a gram of alcohol in 100 millilitres of blood, namely 0.12 grams of alcohol in 100 millilitres of blood. Contrary to Section 6 (1) Road Safety (Alcohol & Drugs) Act, 1970.
2 That being disqualified from obtaining or holding a drivers licence under the Road Safety (Alcohol & Drugs) Act, 1970 did on the 19 May 1988 drive a motor vehicle upon the West Tamar Highway, a public street at Launceston in Tasmania, whilst he was so disqualified.
Contrary to Section 19A(1) Road Safety (Alcohol & Drugs) Act, 1970 ".
He also pleaded guilty to a charge in complaint 885386 expressed as follows:
"That on the 19 May 1988 did drive a vehicle on West Tamar Highway, a public street at Launceston in Tasmania, negligently having regard to all the circumstances of the case including the nature, condition and use of the public street and the amount of traffic that actually was at the time or that might reasonably have been expected to be on the public street.
PARTICULARS
(i)Whilst travelling on West Tamar Highway, change from one lane to another when that move could not be made with safety.
(ii)Exceed speed limit of 70 kilometres per hour (imposed by a road sign 15) namely 110 kilometres per hour whilst travelling on West Tamar Highway.
(iii)Exceed speed limit of 40 kilometres per hour (imposed by a road sign 2) namely 140 kilometres per hour on West Tamar Highway.
(iv)Exceed speed limit of 40 kilometres per hour (imposed by a road sign 2) namely 150 kilometres per hour on West Tamar Highway.
(v)Pass an intersecting street of Cormiston Road on West Tamar Highway at a speed in excess of 160 kilometres Per hour.
(vi)Exceed speed limit of 80 kilometres per hour (imposed by a road sign 15) namely 160 kilometres per hour."
The orders made by the learned Magistrate were as follows:
Charge 1 – convicted, sentenced to three weeks imprisonment back–dated to take effect from 2 September 1988 (on which day the applicant was remanded in custody) and disqualified for holding or obtaining a driver‘s licence for a period of two years cumulative upon a period of disqualification imposed upon him on 27 July 1987.
Charge 2 – convicted, sentenced to three weeks imprisonment concurrent with the term of imprisonment imposed on charge 1 and disqualified for holding or obtaining a driver's licence for a period of twelve months concurrent with the period imposed on charge 1.
Negligent driving charge – convicted and disqualified for holding or obtaining a driver‘s licence for a period of two years concurrent with the period of disqualification imposed on charge 1.
On 27 July 1987, the applicant had appeared in the Court of Petty Sessions at Launceston, on a charge of having on 10 July 1987 driven a motor vehicle whilst alcohol was present in his blood in a concentration greater than the prescribed concentration of .05, namely .16, contrary to S6(1) of the Road Safety (Alcohol & Drugs) Act 1970 and he was fined $250 and disqualified from holding or obtaining a driver's licence for a period of eighteen months.
On the hearing in the Court of Petty Sessions of the charges, the subject to the motion to review, the facts submitted by the prosecutor were as follows. At 2.30 p.m. on Thursday 19 May 1988, police officers were travelling north on the West Tamar Highway at Riverside approaching an hotel when a Ford Sedan, owned by the applicant, pulled away from the kerb outside a video shop, moved into the right hand lane and caused the driver of the police vehicle to brake sharply. The Ford then moved back into the left lane and accelerated away in a northerly direction. The police vehicle pursued it. Its speed was checked at 110 kilometres per hour as it passed a 70 kilometre road sign near 441 West Tamar Highway. At that stage the officers illuminated the headlights of the police vehicle and began flashing the lights and sounding the horn in an attempt to have the applicant stop his vehicle. However, he continued on and his speed was checked at 140 kilometres per hour as it passed a 40 kilometre school zone sign, just south of Orana Street. It appears that nothing was said concerning the likelihood of children being in the vicinity at that particular time however. The vehicle passed St. Anthony‘s School at a speed of 150 kilometres per hour and commenced to pull away from the police. As it passed the junction of Cormiston Road, it was travelling in excess of 160 kilometres per hour. The highway had a dual carriageway for northbound traffic, which converted into a single carriageway and thereafter the speed limited was one of 80 kilometres per hour by virtue of a road sign. The applicant slowed down because he was held up by traffic. He then overtook a vehicle and accelerated away with the police in pursuit. They followed his vehicle for about a kilometre when he began to slow again because of vehicles in front. After about a kilometre near a property described as the Huntley property, the police attempted to overtake the Ford, moved alongside it and displayed the police sign in the direction of the driver. The police were in an unmarked vehicle.
The police had to move back behind the applicant's vehicle because of approaching traffic. A short time later, the applicant looked at the police vehicle and then began to slow down. He pulled over onto the gravel verge. There was some uncertainty about the total distance travelled by the applicant but it appears to have been about 4 kilometres and I understand that for an initial distance of over 1 kilometre, the highway had a dual carriageway with houses along its left side. After the highway became a single carriageway, the journey was carried out with only a few houses in the vicinity.
The police approached the applicant and noticed a strong smell of liquor. He submitted to a breath analysis which revealed 0.12 grams of alcohol per 100 millilitres of blood. He was, of course, driving at a time when he was disqualified from holding a driver‘s licence by virtue of his eighteen month disqualification imposed on 27 July 1987 for exceeding the prescribed limit. The applicant informed the police that his reason for driving was that he went to the video shop. In mitigation, counsel for the applicant maintained that his client was not participating in a police chase in the sense that he did not know he was being pursued. When he realized that the police were trying to stop him, he immediately pulled over. I do not understand that the prosecution seriously disputed this.
The applicant's counsel explained that his client was aged 20 years and had been employed by the Brewery for some time and was well regarded at the Brewery as a punctual employee and a hard and conscientious worker. A reference from a fellow employee, tending to support that, was tendered. His income was $262 nett per week and his obligations were $80 per week in respect of a mortgage, $50 per week to his father for a loan and about $70 – $80 per week for food. He also had some other commitments for telephone, Hydro electricity and another loan repayment. He resided in a de facto relationship and had recently became engaged. His counsel said that he was prepared to undergo community service.
As to the circumstances of the driving, and the fact that he was driving on the day in question, his counsel said that he had been to an hotel with his father in the vehicle which was driven by his father. He had no intention of driving himself. At the hotel he consumed a number of drinks and at about 2 p.m. he left there because he had arranged to meet some people to watch a video film. His father said he was staying at the hotel and the applicant decided to drive the vehicle, which he owned. He drove to the video shop, collected the film and then drove to meet his friends. His counsel conceded that the speed of driving was high but submitted that, notwithstanding that there was traffic on the road and he overtook one vehicle, there was no necessity for any vehicle to take any emergency action and no suggestion that there was any actual danger caused to any other member of the public, notwithstanding that the driver of the police vehicle had to brake when the applicant pulled out in front of him.
Character references supported the applicant‘s claim to be a good worker and generally of good character, a young man with a house and a mortgage and engaged to be married.
After an amendment and the abandonment of one ground, the grounds upon which the applicant has moved to review the orders on charges 1 and 2, were as follows:
"2The Learned Magistrate erred in law in that he failed to attribute any or any proper weight to the age and previous carriage and circumstances of the Applicant.
3The Learned Magistrate erred in law in that he failed to properly consider that imprisonment would probably result in the Applicant losing his employment.
4The Learned Magistrate erred in law by taking the view that the Applicant's consumption of liquor which formed the basis of a separate offence amounted to an aggravation of the charge of driving whiles disqualified.
4AThe Learned Magistrate erred in law by taking the view that the Applicant‘s act of driving while disqualified which formed the basis of a separate offence, amounted to an aggravation of the charge of exceeding the prescribed limit.
5The Learned Magistrate erred in law in that it was implicit in his sentencing that he took into account that the Applicant's manner of driving, which formed the basis of a separate offence, namely negligent driving, amounted to an aggravation of the charge of driving while disqualified and/or alternatively the charge of driving while exceeding the prescribed alcohol limit."
Notwithstanding that it was not an express ground in the notice to review, counsel for the respondent conceded that if I find that any of the sentences were manifestly excessive, I may uphold the application on that ground.
The complainant has applied to review the penalty imposed by the learned Magistrate on the negligent driving charge, arguing that a disqualification for holding or obtaining a driver‘s licence for a period of two years, to run concurrently with the same period imposed in respect of the first charge, was manifestly inadequate having regard to all the circumstances of the case.
I will deal firstly with the applicant's grounds 4, 4A and 5. Ground 5 is obviously not made out. The learned Magistrate stated that when sentencing in respect of the other two charges it would have been quite wrong of him to take into account the circumstances of the driving particularized on the negligent driving charge.
Grounds 4 and 4A however appear to be made out. It appears that the learned Magistrate, when considering the appropriate penalty on the charge of driving while disqualified took into account the fact that the applicant had committed another drink/driving offence as an aggravating circumstance, and when considering penalty for the drink/driving charge the learned Magistrate took into account the fact that at the relevant time the applicant was driving contrary to his disqualification for the earlier drink/driving charge. These matters are clear from the following passage in the reasons for sentence:
"I have given very careful consideration over the weekend to the appropriate penalties in respect of these matters and I have reluctantly come to the conclusion that a short term of imprisonment is the only appropriate penalty. The point needs to be made to you and to others that to those who drive while disqualified and particularly if the driving involves a further drink/driving charge thereby constituting a very serious act of driving then such people must realize that a term of imprisonment is certainly a possibility if not a likelihood."
What I find the learned Magistrate did is also supported by the fact that he expressly stated that he would not take into account the particulars of the negligent driving charge in considering penalty on the other two charges because he said to do so would be tantamount to imposing a term of imprisonment for a charge of negligent driving which he could not do if it stood alone. He said that it "would have been otherwise if the charge had been dangerous driving but that matter is not being pursued." In other words, he appears to have separated the circumstances of the negligent driving charge from his consideration of the other two charges only because he could not impose a sentence of imprisonment on a negligent driving charge but could do so on the other two charges.
I propose to adopt the obiter dicta of Green CJ in Dobson v Clark, 6583. When dealing with similar circumstances the learned Chief Justice said at 3:
"It appears that the learned Magistrate regarded the fact that the applicant drove a motor vehicle whilst the amount of alcohol in his blood exceeded the prescribed concentration as a significantly aggravating circumstance. With great respect, although that was a relevant consideration, the learned Magistrate fell into error if, as a result, he imposed a heavier sentence than he would have imposed had that circumstance not been present. It was not an ingredient of the charge and the applicant had already been punished for driving whilst the concentration of alcohol in his blood exceeded the prescribed concentration."
Reference was made in the judgment of the learned Chief Justice to comments made by Gibbs CJ in R v DeSimoni (1981) 35 ALR 265 at 268, 269. Green CJ said that the position would be different if the aggravating circumstances relied upon were an ingredient of both the offence for which a defendant was being sentenced and of some other offence.
I therefore find that the learned Magistrate was in error and I propose to allow the motion and to quash the orders imposing penalties on the charges in complaint 885387. I propose to exercise my own discretion and impose what I consider to be appropriate penalties. A second conviction for an offence against section 6 (1) of the Road Safety (Alcohol and Drugs) Act 1970 is a most serious matter as is the commission of the offence of driving whilst disqualified by court order for holding or obtaining a driver‘s licence. Imprisonment must seriously be contemplated in cases such as these.
However, I am particularly influenced by the age and circumstances of the applicant. He was aged only 20 years at the time of commission of the offences. He appears to be regarded well in his employment. He has become engaged to marry. He has a house subject to a mortgage with a risk, although I do not know how likely it is, of losing his employment if he is sent to prison. Mainly because of his age I have decided not to send him to prison. I consider however, that community service orders are appropriate in addition to fines and periods of disqualification. Accordingly, on charge 1 in complaint 885387, the breathalyser charge, I impose a fine of $200.00 and order that he be disqualified for holding or obtaining a driver's licence for a period of two years, cumulative upon the period of eighteen months imposed upon him in the Court of Petty Sessions at Launceston on 27 July 1987. In addition, I make a community service order against the applicant requiring him to work for thirty–two hours. On charge 2 in complaint 885387, the driving while disqualified charge, I impose a fine of $200.00 and order that he be disqualified for holding or obtaining a driver‘s licence for a period of two years cumulative upon the period of eighteen months imposed upon him in the Court of Petty Sessions at Launceston on 27 July 1987 but concurrent with the period of disqualification imposed by me on charge 1. I also make a community service order against the defendant on charge 2 requiring him to work for thirty–two hours which will be additional to the hours imposed on charge 1.
Finally I deal with the complainant's motion to review the penalty imposed by the learned Magistrate on the negligent driving charge. That penalty was simply one of disqualification for holding or obtaining a driver‘s licence for a period of two years to run concurrently with the periods of disqualification imposed on the other two charges. The sole ground of the motion to review is that the penalty imposed was manifestly inadequate. I agree that when viewed on its own the penalty was inadequate. The learned Magistrate said that it was the worst case of negligent driving he had encountered and yet he only imposed a period of disqualification, concurrent with other periods he had imposed, the nett result of which was that he imposed no additional penalty for negligent driving. Nor did he impose any pecuniary penalty.
For a serious case of negligent driving, it would normally be expected that a pecuniary penalty would be imposed in addition to a period of disqualification. In this case I have no doubt that the learned Magistrate took into account the penalties he had decided to impose on the other two charges and considered the totality of the penalties he was imposing on the defendant arising out of his one act of driving. He was entitled to take this course. I presume that he decided not to impose a pecuniary penalty because of the sentences of imprisonment he had decided to impose on the other two charges.
Taking into account my decision as to penalty on complaint 885387, I am satisfied that the penalty imposed by the learned Magistrate for negligent driving was manifestly inadequate in the circumstances. Although a court must take care not to impose penalties which in totality would have an unreasonably crushing effect it is desirable, if it can reasonably be done in the circumstances, that some additional penalty be imposed for each offence, particularly if it is a serious one.
I agree with the learned Magistrate that it was a serious case of negligent driving. The speeds reached by the defendant were very high, as much as 160 kilometres per hour or more. The course I propose to take is to quash the order imposing penalty on the negligent driving charge and instead to impose a fine of $150.00 and order that the defendant be disqualified for holding or obtaining a driver's licence for a period of two years three months cumulative upon the period of eighteen months imposed on him in the Court of Petty Sessions at Launceston on 27 July 1987 but concurrent with the periods of disqualification imposed by me on complaint 885387.
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