Robertson v Police

[1988] TASSC 98

Serial No B30/1988

List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Robertson v Police [1988] TASSC 98; B30/1988

PARTIES:  ROBERTSON, Daniel Alan
  v
  POLICE

FILE NO/S:  LCA 98/1988
DELIVERED ON:  4 October 1988
JUDGMENT OF:  Wright J

Judgment Number:  B30/1988
Number of paragraphs:  11

Serial No B30/1988

List "B"

File No LCA 98/1988

DANIEL ALLAN ROBERTSON v THE POLICE

REASONS FOR JUDGMENT  WRIGHT J

4 October 1988

1. The appellant, aged 21 years and unemployed, appeared in the Court of Petty Sessions at Hobart on the 29 August 1988 and pleaded guilty to a number of traffic offences, including a charge of driving whilst disqualified under the provisions of s37(1) of the Traffic Act 1925. This offence occurred at approximately 1.55am on Wednesday 6 July 1988 when police, who were conducting a traffic check on the East Derwent Highway near the Bowen Bridge, observed a white Toyota station sedan travelling north on the highway, driven by the appellant. He was recognised by the police officers to be a disqualified driver and his vehicle was followed. The speed of the vehicle was checked at a constant 110 kmh in an 80 kmh restricted zone and shortly thereafter, it was intercepted.

1. The appellant had been disqualified from holding a driving licence on the 22 September 1987 in the Hobart Court of Petty Sessions when he appeared for sentence in respect of an earlier offence of driving whilst disqualified which had occurred on the 7 September 1987. On that appearance the appellant was sentenced to 14 days' imprisonment wholly suspended, on condition that he be of good behaviour for two years and, in addition, he was disqualified from holding a driving licence for a period of 12 months. This disqualification had therefore been in existence for a period of some ten months before the appellant committed the present offence in July of this year. When he appeared in the Court of Petty Sessions on the 29 August 1988 the appellant was fined for speeding and driving a vehicle with bald tyres, and, on the charge of driving whilst disqualified, he was sentence to 14 days' imprisonment. It is against this sentence of imprisonment that the present appeal is brought by way of motion to review.

1. The appellant contends that the sentence of imprisonment imposed upon him was manifestly excessive having regard to all the circumstances of the case and the age, character and antecedents of the appellant. As already mentioned, the appellant is aged 21 years. Although he has never held a driving licence, he has been convicted on many occasions for driving offences.

1. On 2 September 1983, he was convicted of being an unlicenced driver and failing to wear a crash helmet on the 25 July 1983. On that occasion he was fined $20 on each charge. On the 21 October 1985, he appeared in the Court of Petty Sessions charged with being an unlicenced driver, driving an unregistered vehicle, driving an uninsured vehicle, and failing to wear a crash helmet on the 16 July 1985. On the three latter charges, fines were imposed totalling $85, and on the charge of being an unlicenced driver, he was fined $40 and costs and he was disqualified from holding a licence for a period of three months. On the 21 August 1987 he was convicted of being an unlicenced driver on the 19 June 1987, a fine was imposed and he was  disqualified from holding a licence for a period of three months. I have already mentioned the circumstances of his disqualification on the 22 September 1987.

1. During the course of proceedings before the learned magistrate on the 29 August 1988, the appellant was represented by counsel who informed the court in some detail of the appellant's background and general circumstances. Particular reliance was placed upon the fact that the appellant's original attempt to get a licence when he was 17 years of age had been defeated as he was unable to complete the written tests. This inability, in turn, was attributed to special learning difficulties that the appellant experienced. Because of these continuing problems, he had been unable to obtain a licence at any time during his life. These matters were re–emphasised as being matters of considerable significance during the course of the hearing of the motion to review and it was submitted that the learned magistrate had failed to take into account these features of the case as providing both an extenuation and explanation for the applicant's history of driving offences. It was submitted further that the learned magistrate erred in failing to obtain a pre–sentence report or psychological assessment of the appellant before imposing a custodial sentence.

1. There is no gainsaying the proposition that this was a case of a youthful offender faced with the prospect of a gaol sentence. On the other hand, there is no rigid requirement that a sentencer must require the provision of pre–sentence or psychiatric reports in such a situation. (Suckling v Ling 271973). It very much depends upon the circumstances which confront him. In the present case, the learned magistrate was provided with a very detailed plea in mitigation by counsel for the appellant. She traversed all of the areas which could properly be regarded as areas of concern in relation to the court's sentencing task. She dealt with the circumstances of the actual offence and the appellant's family and personal history. She pointed out that the appellant had previously responded well to probation orders and that he was now being offered assistance to pass his licence test. Despite the appellant's learning difficulties it was not suggested that he was unable to comprehend the fact or duration of his disqualification, nor was it contended that he was unaware that he must not drive during the period of disqualification. In addition the learned magistrate had the appellant's record before him.

1. During the course of making comment in passing sentence, the learned magistrate referred inter alia to the fact that "this defendant had no third party insurance whatsoever while he was driving a motor vehicle and that is an important factor,". It is plain that this comment incorporates a factual error in light of the provisions of the Motor Accidents (Liabilities and Compensation) Act 1973 which provide for insurance cover in respect of motor vehicles even if being driven by an unlicenced or disqualified driver. If the learned magistrate meant to convey (and I think he did) that a third party would not be entitled to compensation if injured by the negligence of the appellant he was clearly wrong.

1. This matter apart however, there are no other substantial complaints about the comments made by the learned sentencing magistrate, and having examined his comments and taken the quoted comment in context, I do not feel able to say that the learned magistrate gave pre–eminence to the fact which he erroneously stated. Nor do I think that it can be seen to have vitiated the exercise of his sentencing discretion. It was not contended that a sentence of 14 days' imprisonment was outside the parameters open to the magistrate in respect of driving whilst disqualified.

1. The function of this court is not to exercise afresh, a sentencing discretion reposed in a magistrate. It is a court of review, the function of which is to correct any manifest error which has occurred in the sentence imposed, whether that error is inherent or patent. (McGinniss v Turfrey 81/1982).

1. In my view, notwithstanding the unfortunate circumstances which have apparently prevented the appellant from taking a driving test, he has committed a number of offences of unlicenced driving over a period of years, and has one previous conviction for driving whilst disqualified. His convictions for these offences, taken in conjunction with the penalties imposed in respect thereof, must have made him aware that serious penalties awaited him if further offences were committed. At this stage in his life I do not think that he can legitimately rely upon a deficiency in his learning skills as an extenuating circumstance for repeated offences of this kind. But even if it may be fairly argued that the learned magistrate could reasonably have imposed a non–custodial sentence, it does not follow that the sentence he actually imposed was manifestly excessive. In my opinion, the sentence which he imposed was well within the range reasonably open to him in all of the circumstances and should not be disturbed.

1. Accordingly, the motion fails and will be dismissed.