Riley v Tilyard

[1990] TASSC 86

Serial No B9/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Riley v Tilyard [1990] TASSC 86; B9/1990

PARTIES:  RILEY
  v
  TILYARD

FILE NO/S:  LCA 27/1989
DELIVERED ON:  9 April 1990
JUDGMENT OF:  Crawford J

Judgment Number:  B9/1990
Number of paragraphs:  14

Serial No B9/1990
List "B"
File No LCA 27/1989

RILEY v TILYARD

REASONS FOR JUDGMENT  CRAWFORD J

9 April 1990

1. In a Court of Petty Sessions on 30 November 1989 the applicant pleaded guilty to driving under the influence of intoxicating liquor and to refusing to submit to a breath analysis, contrary to sections 4(a) and 14(2) respectively of the Road Safety (Alcohol and Drugs) Act 1970. On the first count he was sentenced to four months' imprisonment and disqualified from holding or obtaining a driver's licence for a period of four years from his release from prison. On the second count he was sentenced to two months' imprisonment cumulative to the other term. He has applied to review the sentences of imprisonment on the following grounds:–

1The learned magistrate erred in law in that he imposed a sentence which was manifestly excessive in the circumstances.

2The learned magistrate erred in law in that he failed to give any or sufficient weight to the fact that the applicant had not committed an offence, contrary to the provisions of the Road Safety (Alcohol and Drugs) Act 1970 since 1983.

3The learned magistrate failed to attach any or sufficient weight to the exceptional and unusual domestic circumstances of the applicant and the likely effect of imprisonment upon his family in those circumstances.

4The learned magistrate erred in law in that he exercised his sentencing discretion upon an erroneous factual basis – i.e. that the time between the applicant's last offence and the offences for which he was being sentenced did not constitute a gap and/or that the learned magistrate was in error in describing the applicant's record as disclosing "a pattern of consistency and persistence in offending".

5The learned magistrate erred in law when sentencing the applicant in respect of the breach of section 14(2) of the Road Safety (Alcohol and Drugs) Act 1970 in failing to have regard to the applicant's explanation for failing to provide a sample of his breath for analysis and/or rejecting the applicant's stated reason for failing to provide a sample of his breath for analysis.

1. The facts stated to the magistrate by the prosecutor were as follows. At 2.05am on Saturday 22 April 1989, police observed the applicant driving a car in a street in Queenstown with two back–seat passengers. He was seen to accelerate heavily at an intersection and was followed. The car continually weaved to the incorrect side of the road and back again and was travelling at about 70 kilometres per hour. At an intersection, it cut a corner and travelled on the incorrect side of the road. When it reached a residence, the police spoke to the applicant about his driving, and he offered no explanation. There was a strong smell of liquor on his breath. His eyes were bloodshot and his speech was slurred and somewhat confused. His behaviour was somewhat quarrelsome, he swayed when walking and he was somewhat unsteady. He was taken to the police station where he was instructed to submit a sample of his breath for analysis. He said that he would not do so until his Hobart lawyer was present. The police explained that it was impossible for them to get the lawyer to Queenstown from Hobart and he replied:– "I don't care. Anyway that's your white man's law, not black man's law". He is of Aboriginal descent. He was informed that he would be charged with refusal if he failed to comply with the direction of the officers and declined, repeating that he was not refusing but it was just that he was not going to do anything without his lawyer present.

1. A record of the applicant's convictions, a substantial number of which were relevant, was tendered to the learned magistrate. Reference will be made to its detail later.

1. The applicant was aged 40 years. His solicitor informed the magistrate that the facts were not disputed. He said that the applicant had attended a function at the Queenstown Football Club, held in honour of a member of his family who was going to be married. He had consumed beer. The "journey was not of excessively long duration" and the magistrate was asked to take into account that the amount of traffic on the road would be less in Queenstown than it would be in Launceston, with a correspondingly lower risk to the public. Concerning the refusal to submit to a breath analysis, the solicitor said that the applicant had read some articles in a popular magazine which stated that at common law a person was entitled to obtain legal advice "prior to engaging in activities and speaking to the police" (sic). The magistrate interposed with the comment that the applicant had twice before been convicted of refusing a breath analysis. The solicitor responded by saying that obviously the applicant did not want to be breathalysed again and having read the magazine article, he took the view that he could use the advice provided by it. The solicitor went on and said that the applicant "certainly did have that misguided knowledge of common law and that was certainly the one he stated to the police and certainly the one he stated to me. He appreciates now that there was no doubt about it at all in Tasmania that when you are asked to submit to a breath analysis, that is the direction and albeit you can obtain legal advice after the event, you must submit or alternatively choose the blood test".

1. His solicitor explained that the applicant was married, with a wife and six children aged from 5 to 11 years. The wife was "substantially ill" and a copy of a letter from one doctor to another, written over 3 years previously, was tendered to the magistrate. The letter revealed a number of complaints. What Mrs Riley's condition was at the time of the magisterial hearing was not stated except to say that she was "substantially ill". She was in receipt of an invalid pension, and the applicant also received a pension, their total being $718 per fortnight. They paid rent of $143 per fortnight and spent some $300 per fortnight on food. They had no substantial debts. It was submitted to the learned magistrate that although the applicant's record was "horrendous" up until 1983, he had not breached the Road Safety (Alcohol and Drugs) Act 1970 since then until these offences were committed. It was submitted that community service orders could be imposed as an alternative to imprisonment, the basis for the submission being that there had been a gap of almost 6 years since the most recent similar offences. Further, he would be able to remain in his domestic situation and care for his wife and children.

1. Between 1968 and 1973 (that is, between the ages of about 19 and 24) the applicant had a number of convictions for offences of dishonesty, defilement, assault and minor offences and he had suffered a number of terms of imprisonment. However, since 1973 his record almost entirely consisted of traffic matters. The most serious traffic offences committed by him were as follows:–

Date of Court:	Date of Offence (Applicant's age at time)	Offence:	Sentence:
16.9.68	14.9.68 (19)	Driving Under the Influence Exceed .08	Fined $5 Disqualified 18 months Conviction recorded
9.12.71	20.2.71 (21)	Exceed .08 1st year driver alcohol in body	Fined $75 Disqualified 18 months Conviction recorded
26.2.73	Not known (aged About 23)	Dangerous Driving Unlicensed driver	3 months' imprisonment 14 days' imprisonment Disqualified 12 months
2.12.74	5.3.74 (24)	Exceed .08 Unlicensed driver	Fined $100 Disqualified 30 months Conviction recorded Disqualified 6 months
5.5.74 (24)	Exceed .08 Unlicensed driver	Fined $100 Disqualified 30 months Conviction recorded Disqualified 6 months
9.9.77	10.5.77 (27)	Driving whilst disqualified	2 months' imprisonment suspended
8.2.78	9.11.77 (28)	Exceed .08	3 months' imprisonment Disqualified 3 years
23.2.82	1.5.81 (31)	Refuse breath test	6 months' imprisonment suspended Disqualified 12 months
12.1.84	3.6.83 (33)	Driving under influence Refuse breath test	2 months' imprisonment suspended Disqualified 12 months Fined $100 Disqualified 12 months conc
22.6.83 (34)	Exceed .05	1 month's imprisonment cumulative, suspended Disqualified 3 months cumulative

1. When sentencing, the learned magistrate made the following comments:–

"You've pleaded guilty to charges of driving under the influence and of refusing a breath analysis. Your counsel, himself, could say no less of your record than that you have a most unenviable record for these types of offences, although he sought to illustrate what he termed a gap in your record. I would not describe the time between your last offence and these as constituting a gap – given your record. You have consistently and persistently offended over a period of about twenty one years, resulting in 13 convictions under the Road Safety (Alcohol and Drugs) Act 1970 which include two for driving under the influence, six for exceed 0.05 or 0.08, two for refusing a breath test – as recorded – one for driving as a first year driver with alcohol in your body, one for hindering your conveyance, and one for driving while disqualified. A pattern of consistency and persistence in offending emerges. Anything less than imprisonment would amount to nothing more than a merely weekly merciful response. I take all matters into account subject to my observations about the claimed gap in your record. You are convicted upon the complaint. As to the charge of driving whilst under the influence of liquor you are sentenced to a term of four months imprisonment. Further, you are disqualified from driving, that to be for four years and that disqualification will commence upon your release from prison. For refusing a breath analysis I note what your counsel has said but your previous convictions were similar matters and that means that you should very well have known and, in fact, by your plea of guilty to the matter you acknowledge that you had no reasonable excuse to refuse to submit. You are convicted and sentenced to two months imprisonment cumulative to the term just imposed for that offence".

1. Ground 3 of the application has not been made out. The learned magistrate said that he took all matters into account. There is nothing apparent from what he said which supports this ground. Whether the sentences were manifestly excessive in the light of the applicant's domestic circumstances, falls to be decided under ground 1.

1. Ground 5 has similarly not been made out. The learned magistrate did not reject what the applicant's solicitor had said to him, nor did he say anything which leads me to the conclusion that he failed to have regard to it. He referred to the applicant's previous convictions (which included two for refusing a breath test) and commented that the applicant should have known (not that he did know) that he had no reasonable excuse for refusing a breath analysis. I agree. Accordingly, what is raised by this ground is one of the matters which needs to be considered when deciding whether the penalties were manifestly excessive, that is when considering ground 1.

1. I will deal with grounds 2 and 4 together. Clearly, the learned magistrate's refusal to call the period of five years ten months since the last similar offence as a gap must be interpreted as meaning that although it was a gap, it could not be treated as having any significance from a mitigatory aspect having regard to the fact that since his first similar offence in 1968 he had regularly re–offended. The gaps between the commission of offences contrary to the Road Safety (Alcohol and Drugs) Act 1970 (ignoring a conviction for driving while disqualified) were two years five months, three years, two months, three years six months, three years six months, two years one month, one month and now five years ten months. I am unable to conclude that the learned magistrate was in error in describing the applicant as having consistently and persistently offended over a period of twenty one years. In that time, he breached the Road Safety (Alcohol and Drugs) Act 1970 (ignoring the conviction for driving while disqualified) on nine separate occasions and in addition drove while disqualified on one occasion and committed the offence of dangerous driving on another. It is a very bad record spread over a period of twenty one years. Admittedly, over half of the offences were committed in the first half of that period but notwithstanding this, the last four occasions of breaches of the Act occurred over a period of eight years.

1. By section 17 of the Act it is provided that for an offence under the Act, the penalty may be $500 or six months imprisonment or both, together with disqualification for three years. In the case of conviction of an offence under section 4 (Driving under the Influence) or section 6 (Exceeding .05), the offender having previously been convicted of an offence under either of those sections, the liability is to a penalty of $1000 or twelve months imprisonment or both, together with disqualification for six years. In the circumstances of this case, I respectfully adopt what was said by Neasey J in Lowe v Burridge, 31/1986, at p3:–

"The argument put by learned counsel for the applicant laid stress upon earlier decisions of this court in which it has been observed on several occasions that the legislative intent evinced by the relevant statutory provisions is to treat repetition of offences under the drink driving laws with utmost gravity, and that such repetition may need to be met by a sentence of imprisonment. I referred to several of these judgments in a case earlier this year, Barrett v Pearce, 61/986, and I need not repeat them. It is sufficient to say that where such offences are repeated, the question whether it is necessary to impose a deterrent penalty becomes of particular importance, and it is incumbent upon courts which are considering the imposition of penalty in such a case to consider that matter carefully."

1. Regardless of whether the learned magistrate was in error when making his comment that he would not describe as a gap the time between the last offences, it is my opinion that the sentences imposed by him were appropriate, that is to say even if I was to be satisfied that grounds 2 and 4 of the motion had been made out, I would re–impose the sentences chosen by the magistrate. No doubt there have been worse ones, but the applicant's record is numerically the worst I have seen for these types of offences and it would be unjustified weakness and mercy to impose a sentence which did not contain a substantial period of imprisonment. The gap of five years ten months before these offences is not sufficient to warrant more lenient penalties.

1. It was urged upon the learned magistrate that community service orders could be imposed thereby allowing the applicant to remain in his domestic situation and care for his wife and children, she being substantially ill. There might have been something in that argument warranting serious consideration if she had become ill since the commission of the offence being considered by the court, but that is not the case and the aspect of deterrence outweighs such considerations when dealing with a person whose record is as bad as that of the applicant. I adopt the words of Chambers J in Sullivan v The Queen, 9/1975, at pp1 and 2 as follows:–

"However, where the public interest requires a prison sentence, substantial or otherwise, that sentence must be imposed despite the regrettable hardship which innocent members of the family will suffer".

(See also Green CJ at pp3 and 4 of his judgment in that case.)

1. It is plain therefore that I am not satisfied that ground 1 has been made out. The motion will be dismissed.