Richardson v Timmins

[2003] TASSC 5

[2003] TASSC 5

CITATION:            Richardson v Timmins [2003] TASSC 5

PARTIES:  RICHARDSON, Daniel Sean
  v
  TIMMINS, Stephen Charles

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 108/2002
DELIVERED ON:  6 March 2003
DELIVERED AT:  Hobart
HEARING DATES:  20 February 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Magistrates - Appeal from and control of magistrates - Tasmania - Motion to review - The hearing - Generally - Review of sentence - Sentences of imprisonment and licence disqualification - Whether sentences manifestly excessive - Limited mitigatory material.

Road Safety (Alcohol & Drugs) Act 1970, s4(a).

Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  M I Taylor
           Respondent:  M Healey
Solicitors:
           Applicant:  Wallace Wilkinson & Webster
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2003] TASSC 5
Number of Paragraphs:  16

Serial No 5/2003
File No LCA 108/2002

DANIEL SEAN RICHARDSON v STEPHEN CHARLES TIMMINS

REASONS FOR JUDGMENT  SLICER J

6 March 2003

1. The applicant seeks review of a sentence of six months' imprisonment following his conviction for the offence of driving under the influence of intoxicating liquor contrary to the Road Safety (Alcohol & Drugs) Act 1970, s4(a), on the ground that it was manifestly excessive.  A concurrent charge of driving while exceeding the prescribed alcohol limit was dismissed.

1. The offender was intercepted by police on the Midlands Highway on Sunday, 7 September 2002 at 2.45pm, following a report from a concerned motorist.   The intercepting officer:

"… noticed that the vehicle was veering from the left edge of the highway until the driver's side tyres were over the white centre line."

The vehicle, travelling at approximately 110 km/h when the officer activated his vehicle's lights and sirens, continued on its journey without slowing.  The Court was told that:

"As the vehicle approached a right curve of the highway it drove straight and the front of the car and left rear wheels left the highway.  The officer believed at this stage the vehicle was going to crash down the side embankment.  At the last moment the vehicle swerved right and broadsided along the side of the highway before spearing back across the centre line on the wrong side of the road.  The vehicle was then brought back under control for a short distance before pulling over and stopping."

1. Following interception, the applicant was observed to "be unsteady on his feet", his eyes "watery and blood shot" and "slurring his words".  He told police that be had consumed "24 stubbies" during and since the previous evening and had driven to Hobart and back in his then state.  His explanation to police was:

"I'm an alcoholic and I can't get any help.  My GP only prescribed me valium.  I need help."

The applicant subsequently underwent a blood alcohol analysis which returned a reading of .242 grams per 100 millilitres of blood.

1. On 8 September 1999, the applicant had been convicted of a breathanlysis offence involving a blood alcohol concentration of .173.  He was fined $950 and disqualified from holding a driver's licence for a period of 18 months.  As a subsequent offender, Mr Richardson was liable to the following penalties:

fine	disqualification	term of imprisonment
Minimum 10 penalty units	24 months
Maximum 60 penalty units	72 months	24 months

1. The learned magistrate imposed a penalty of four years' licence disqualification and six months' imprisonment, two months of which were suspended.  The applicant does not challenge the period of disqualification.  Neither the court documents nor the transcript of proceedings disclose the imposition or amount of a pecuniary penalty.

1. The applicant was not legally represented and the matters put in mitigation were scant.  He was aged 24 years at the time of the offence and had two previous traffic convictions imposed in March and September 1999 respectively.  His record, compared with many offenders imprisoned for drink driving offences, is relatively slight.  The record does not indicate a tendency to other forms of antisocial conduct.

1. The learned magistrate quite properly took into account the high blood alcohol concentration, the status and likely use of the road, the speed and nature of the driving, and significantly, its duration.

1. The sentence imposed was above the median of two months for single count offences resulting in imprisonment as reported by Professor Warner, Sentencing in Tasmania, 2 ed, and is at the upper end of the range Williams v McLaughlin [2000] TASSC 29; Riley v Tilyard B9/1990; McLeod v Middleton 25/1989, although it is well within the legislative range provided by Parliament.  The sentence itself does not show manifest error (Cathro v Davies B35/1995). Nor were the circumstances surrounding the manner of driving or the delay between commission and sentence such as to provide for circumstances out of the ordinary (Ponsford v Wynwood [1999] TASSC 21). Whilst a less severe penalty might not have been inappropriate, the imposition of the head sentence of six months' imprisonment does not show appealable error (House v R (1936) 55 CLR 499; Cranssen v R (1936) 55 CLR 509).

1. That conclusion does not dispose of this appeal.  Two months of the sentence were suspended and it is necessary to examine the total effect of the sentence (Dinsdale v R (2000) 202 CLR 321) and the circumstances giving rise to its imposition.

1. The learned magistrate, having properly identified the aggravating features of the conduct and the previous conviction, stated:

"On this occasion, and I take into account the fact that you have not been to prison before and I will tailor the penalty to a degree to which I think your personal circumstances might demand it."

1. From the information available to the Court, it is difficult to identify which personal circumstances guided the determination of sanction.  At the conclusion of the presentation of the facts and record of the offender by the prosecution, the following exchange occurred between the court and the applicant:

"his worship:  Yes.  Thank you Mr … inaudible …  You heard what has been said.  Do you agree with that?

accused:  Yes, I do.

his worship:  What do you wish to say?

accused:  Since that day I've actually seeked [sic] help and I sold the car within two weeks of being charged and I've been walking since then and what I did is no [sic] excusable and was extremely stupid and I'm obviously going to lose my licence for a very long time and hopefully I'll be able to - well I'm in the process of sorting myself out. I'd had a very big night and had nothing to eat at all for approximately 24 hours.

his worship:  You're going to do more than lose your licence.  You're gong to go to gaol.

accused:  Really?

his worship:  Is there anything else?

accused:  No, not any more."

1. The court then proceeded to pass sentence.  The statement made by the learned magistrate might, had the applicant been represented or had he been more sophisticated in his dealings with the law and its processes, produced an attempt to lessen the duration of actual imprisonment and the provision of further mitigatory material.  The response by the applicant " No, not any more" suggests that he believed such an exercise to be futile.  The pronouncement that he would go to gaol before he had been given an opportunity to provide subjective material meant that the court had insufficient material upon which it could properly "tailor the penalty to a degree … which … personal circumstances might demand …".

1. The court was aware that:

·   the offender was aged 24 and had, by comparison, a driving history not indicative of persistent disregard for the law;

·   the offender had not previously been to prison;

·   the offender had told police that he had a drinking problem and had previously, but unsuccessfully, sought assistance for that problem;

·   the offender had taken steps, by reason of the sale of his motor vehicle, to lessen the temptation to drive in contravention of his legal responsibility;

·   the offender had accepted responsibility by an early plea, statements to the court and police, and showed some insight into conduct.

1. There could have been further material such as employment, family, history of community responsibility and steps taken to address the drink problem which might have enabled the court to more adequately "tailor the penalty".  In that context the sentence itself, ie, six months' imprisonment with four to be served, can be said to suggest manifest, but non-specific error and as such to be "manifestly excessive in all the circumstances".

1. It is for that reason that the ground of appeal will be upheld.  Rather than remit the matter for further consideration, it is preferable that this Court impose penalty.  No challenge is made to the period of disqualification or the pecuniary penalty, if one was imposed.

1. The sentence of six months' imprisonment ought remain.  The applicant was sentenced to imprisonment on 18 November 2002 and granted bail on 13 December, a period of 26 days.  That period is sufficient for the purpose of an immediate custodial penalty.  The remaining portion will be suspended on the same condition required by the learned magistrate.

Orders:

(1)      That the motion to review be upheld.

(2)That the order of imprisonment be quashed and in substitution thereof an order made in the following terms:

·   that Daniel Sean Richardson be sentenced to a term of imprisonment for a period of six months, such sentence to commence as and from 18 November 2002;

·   that the operation of such sentence be suspended as and from 13 December 2002 on the condition that for a period of three years Daniel Sean Richardson commit no offence as the driver of a motor vehicle under the provisions of the Road Safety (Alcohol & Drugs) Act 1970.

(3)      That in all other respects, the orders made on 18 November 2002 remain in force.