Rawson v Brown

[1988] TASSC 113

Serial No: B45/1988

List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Rawson v Brown [1988] TASSC 113; B44/1988

PARTIES:  RAWSON
  v
  BROWN

FILE NO/S:  LCA 26/1988
DELIVERED ON:  7 December 1988
JUDGMENT OF:  Crawford J

Judgment Number:  B45/1988
Number of paragraphs:  22

Serial No: B45/1988

List "B"

File No: LCA 26/1988

RAWSON v BROWN

REASONS FOR JUDGMENT  CRAWFORD J

7 December 1988

1. This is a motion to review sentences of imprisonment imposed on the applicant in the Court of Petty Sessions at Devonport on 12 October 1988. He was charged as follows:

"1 On the 3rd day of September 1988 on Devonport Main Road, Bass Highway Link Road, Bass Highway and Formby Road, public streets at Devonport in Tasmania, did drive a motor vehicle, namely, a motor cycle in a manner dangerous to the public having regard to all circumstances of the case, including the nature, condition and use of the public streets and the amount of traffic that actually was at the time or that might reasonably have been expected to be on the public streets. Contrary to Section 32(1) of the Traffic Act 1925.

2         On the 3rd day of September 1988 on Devonport Main Road, Bass Highway Link Road, Bass Highway and Formby Road, public streets at Devonport in Tasmania, being a person who was disqualified from holding or obtaining a driver's licence under the Road Safety (Alcohol and Drugs) Act 1970, did drive a motor cycle whilst he was so disqualified.

Contrary to Section 19A(1) of Road Safety (Alcohol and Drugs) Act 1970.

3 On the 3rd day of September 1988 on Devonport Main Road, Bass Highway Link Road, Bass Highway and Formby Road public streets at Devonport in Tasmania, did drive a motor vehicle whilst alcohol was present in his blood in a concentration greater than the prescribed concentration of 0.05 of a gram of alcohol in 100 millilitres of blood namely .13 of a gram of alcohol in 100 millilitres of blood. Contrary to Section 6(1) of the Road Safety (Alcohol and Drugs) Act 1970.

4 On the 3rd day of September 1988, at Devonport Main Road, a public street at Devonport in the State of Tasmania, without reasonable excuse, did fail to comply with the requirement made to him by Scott Ernest James Flude, a Police Officer acting then and there under Section 7A(1) of the Road Safety (Alcohol and Drugs) Act 1970, in that he did fail to stop his vehicle. Contrary to Section 14(1)(b) of the Road Safety (Alcohol and Drugs) Act 1970".

1. He was also charged with driving the motor cycle when it was unregistered and with using it when it was uninsured contrary to Section 14(1)(c)(ii) of the Traffic Act 1925 and Section 29(1) of the Motor Accidents (Liabilities and Compensation) Act 1973 respectively.

1. He pleaded guilty and the penalties imposed were respectively:

1Four months' imprisonment and disqualification from holding or obtaining a driver's licence for two years.

2         One month's cumulative imprisonment.

3         Six months' cumulative imprisonment and concurrent disqualification for three years.

4         One month's cumulative imprisonment.

1. Convictions were recorded on the other two charges.

1. In other words the cumulative period of imprisonment totalled twelve months.

1. The notice to review sought to review the penalties on the following grounds:

"1The respective sentences of imprisonment are manifestly excessive in all the circumstances.

2That the totality of the sentences is manifestly excessive in all the circumstances.

3That the learned Magistrate erred, in failing to make each of the sentences of the imprisonment concurrent, rather than cumulative.

4Alternatively that the learned Magistrate erred, in failing to make any of the sentences of imprisonment concurrent, rather than cumulative.

5That the learned Magistrate erred in failing to give any or any proper consideration to the imposition of any penalty, other than imprisonment and disqualification, either in lieu of or in addition to any imprisonment."

1. I adopt and propose to apply what was said by Burbury CJ in Whittle v McIntyre [1967] Tas SR 263 (NC6):

"It is necessary to say emphatically that a police magistrate in deciding what the appropriate penalty is for an offence, is entrusted by the law with a very wide discretion. An appellant is not entitled to ask the Supreme Court to substitute its opinion for that of the police magistrate. The appeal against sentence is a limited appeal. The Supreme Court can only properly allow an appeal against sentence if it plainly appears that the police magistrate made some error in the exercise of his discretion or that a sentence imposed is so manifestly excessive that it is only explicable upon the view that the police magistrate did err in some way. Indeed, it is of great importance that a police magistrate should have a wide discretion in the delicate and anxious task of sentencing – so long as he takes into account all proper factors it is for him to determine what weight should be attached to each. It is not a good ground of appeal to say, 'The magistrate ought to have given more weight than he did to a certain factor'."

1. Counsel for the applicant submitted that on their own the respective sentences of imprisonment imposed on the charges of driving whilst disqualified, exceeding .05 and failing to comply with the police officer's direction to stop were manifestly excessive but he made no such submission in respect of the sentence for dangerous driving. He further submitted that as a result of all four sentences of imprisonment being made cumulative, the overall term of twelve months' imprisonment was manifestly excessive.

1. The offences occurred at about 8.35 pm on a Saturday. It was dark. The applicant had been drinking at an hotel and had been driven back to a caravan park at Eugenana where he lived. His counsel said that he had arranged to meet a woman at the Formby Hotel that evening, that he attempted to telephone a taxi to take him there, that the taxi company did not answer his calls and that he became "somewhat agitated" at the prospect of missing his appointment. He then proceeded to ride his 100 cc motor cycle to the hotel in Devonport which I understand involved a distance of some 8 kilometres or so.

1. When being cross–examined during the hearing of evidence before the magistrate concerning disputed facts, the applicant agreed that when he started to ride the motor cycle he knew there was a great risk that he would exceed .05 on a breathalyser, that he knew his motor cycle was unregistered and uninsured and that he knew he was disqualified from holding a licence. He is 33 years of age and his previous convictions included:

2.5.78 Exceed .08 (.11) – fined $75 and disqualified for 6 months.

4.2.81 Exceed .08 (.10) – fined $200 and disqualified for 18 months.

18.10.83 Exceed .05 (.19) – fined $300 and disqualified for 2 years, 6 months.

17.4.86 Driving while disqualified (25.1.86)– 6 weeks imprisonment suspended on condition he be of good behaviour for 3 years and commit no offence involving the use or abuse of alcohol.

17.4.86 Exceed .05 (.17)(25.1.86) – fined $800 and disqualified for 5 years.

1. Taking into account that the applicant had had four prior convictions for exceeding .08 or .05 (the limit was reduced in 1982) over the previous ten years, that his blood contained two and a half times the allowable amount of alcohol and he knew that he would be likely to have a blood alcohol reading above the limit, the learned magistrate really had no option but to impose a term of imprisonment for a fifth similar offence. The maximum penalty prescribed by s17(2) of the Road Safety (Alcohol and Drugs) Act 1970 for a second or subsequent offence is $1000 or twelve months' imprisonment or both, together with disqualification for a period of six years. I consider that it is not an appropriate case to impose a completely suspended term of imprisonment, taking into account that only two years ago a suspended term was imposed for driving while disqualified and the applicant has failed to comply with its conditions.

1. However, in the circumstances of this case, particularly taking into account that the applicant had not been sentenced to imprisonment before for exceeding the prescribed limit, nor had he previously served any term of imprisonment, I consider that the term of six months imprisonment cumulative to the other terms imposed by the learned magistrate was manifestly excessive for the breathalyser offence. A term of three months' imprisonment is, in my view, appropriate in this case.

1. I see no merit in the argument that the sentence of one month's imprisonment for driving while disqualified was excessive. Contravention of orders of disqualification imposed by courts is a most serious matter. In the applicant's case, he committed the same offence in 1986 for which a six weeks' suspended term of imprisonment was imposed. A sentence of one month's imprisonment is not excessive in such circumstances.

1. Having commenced his journey on his motor cycle, the applicant came across the police who were conducting random breath tests on Devonport Main Road outside the Serendipity Fun Park. A police officer indicated to the applicant that he was required to stop and the latter slowed, but then he proceeded past the police and continued north at a speed of about 40 or 50 kilometres per hour. He panicked.

1. The applicant has no prior convictions for failing to comply with the direction of a police officer. But it is an offence against the Road Safety (Alcohol and Drugs) Act 1970 and it was committed by a man who had had five prior convictions under that Act over the previous ten years and in an effort to avoid another such conviction. In those circumstances I do not consider that the imposition of one month's imprisonment was excessive.

1. I next deal with the charge of dangerous driving. Not having stopped at the direction of the police officer, the applicant continued along Devonport Main Road at a speed of about 40 to 50 kilometres per hour. First Class Constable Flude followed him in a police car with blue lights flashing. The officer spoke through the car's loud speaker, asking the applicant to pull over, but was ignored. Approaching the Victoria Bridge in Formby Street the applicant crossed between central traffic islands and for a short distance travelled north in southbound lanes. There were no approaching vehicles however. He then turned right and rode east up the slip lane intended for the use of west bound vehicles leaving the Bass Highway immediately after crossing the bridge. The police vehicle's siren was operating by this time. Three other vehicles were travelling west down the slip lane and their drivers veered to either the left or right and stopped because of what they could see approaching them. On reaching the top of the slip lane, the applicant turned hard left onto the Bass Highway so that he was facing west in the westbound lanes. A bus was heading west, coming off the bridge, about 40 metres away and it came to a halt because its driver had seen the police car's blue lights coming up the slip lane. The bus came to a standstill on the highway at the entrance to the slip lane. Two or three vehicles behind it also stopped.

1. Once on the Bass Highway the applicant executed a virtual figure of eight with the driver of the police car trying to keep in contact with him. The applicant rode for ten or fifteen metres west on the highway and then made a U–turn, crossing double white lines in the centre. With the exception of the motor cycle and police car, all other traffic had stopped. The applicant then crossed back into the west bound lane, heading east, and passed along the southern or passenger side of the bus. He then made a U–turn round the rear of the bus and headed west again, along the northern or driver's side of the bus. The police car had stopped because it could not do what the motor cycle had done. Next the applicant turned right, across the highway, and rode down another slip lane reserved exclusively for drivers of southbound traffic on Formby Road entering the highway for the purpose of crossing Victoria Bridge in an easterly direction. No approaching traffic was encountered. The police car followed. The applicant then rode north along Formby Road in the southbound lanes for about 80 metres encountering no approaching traffic. He then passed between central traffic islands and continued north on Formby Road on the correct side for a distance. He entered a car yard and eventually came to a stop when the motor cycle stalled after a minor bump with a car parked in the yard. The applicant was then apprehended and the charges were brought against him.

1. The motor cycle was small with only 100 c.c. capacity. It would not have been capable of very high speeds and in fact there was nothing in the evidence to indicate that at any time it exceeded fifty kilometres per hour. There were no near collisions although possibly six or more vehicles stopped for the motor cycle and police car. The learned magistrate described the applicant's manner of driving as "not a gross instance of dangerous driving but a serious one". I consider it to be on the lower end of the scale of seriousness so far as dangerous driving is concerned. It involved not something as big as a car, but a small motor cycle travelling the wrong way for a distance I guess at less than 400 metres, at speeds which were not fast.

1. Apart from one speeding conviction in 1980, the applicant had no prior convictions relating to the manner of his driving. But, of course, his traffic record is poor taking into account his convictions under the Road Safety (Alcohol and Drugs) Act 1970. Taking all matters into account, I have come to the conclusion that four months' imprisonment expressed to be cumulative to the other sentences imposed, is manifestly excessive and that an appropriate sentence of imprisonment, if expressed to be served cumulatively, is one month on the dangerous driving charge.

1. The total of the four terms of imprisonment which I have decided are appropriate in this case, is six months. That total is, in my view, appropriate when looking at all of the applicant's conduct on the night in question. Therefore, I do not propose to make any of the terms concurrent. I add that I consider that the total of twelve months' imprisonment imposed by the learned magistrate for the events on the night in question was manifestly excessive.

1. Accordingly, the motion will be allowed insofar as it relates to the sentences imposed by the learned magistrate on the charges of dangerous driving and exceeding .05 are concerned. I do not propose to alter the periods of disqualification as I consider them appropriate. I will order as follows:

1    On the charge of driving in a manner dangerous to the public the order of the learned magistrate will be set aside and in lieu thereof, the applicant will be sentenced to one month's imprisonment commencing 12 October 1988 (when he was taken into custody). In addition, the applicant will be disqualified from holding or obtaining a driver's licence for a period of 2 years from the same date.

2    On the charge of driving whilst alcohol was present in his blood in a concentration greater than the prescribed limit, the order of the learned magistrate will be set aside and in lieu thereof the applicant will be sentenced to three months imprisonment, the term to be served cumulatively to the other terms of imprisonment. He will also be disqualified from holding or obtaining a driver's licence for a period of three years from the same date.

1. The motion is dismissed insofar as it relates to the other two charges.