Rose v Tilyard

[1989] TASSC 131

Serial No B53/1989
List “B”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Rose v Tilyard [1989] TASSC 131; B53/1989

PARTIES:  ROSE, Charmaine
  v
  TILYARD, Scott Anthony

FILE NO:  LCA 19/1989
DELIVERED ON:  4 December 1989
JUDGMENT OF:  Underwood J

Judgment Number:  B53/1989
Number of paragraphs:  10

Serial No B53/1989
File No LCA 19/1989

CHARMAINE ROSE v SCOTT ANTHONY TILYARD

REASONS FOR JUDGMENT  UNDERWOOD J

4 December 1989

1. This motion to review raises a narrow point. The applicant was a first year driver within the meaning of the Road Safety (Alcohol and Drugs) Act 1970, s6(3)(b). On 21 September 1989, in a Court of Petty Sessions, she pleaded guilty to and was convicted of a breach of s6(1) and a breach of s6(2) breach of the Road Safety (Alcohol and Drugs) Act. The particulars in the complaint alleged that the applicant's concentration of alcohol was .10 grams of alcohol per 100 millilitres of blood. In addition to imposing fines, the learned magistrate disqualified the applicant from holding or obtaining a driver's licence for three months on the conviction for driving with a blood alcohol concentration in excess of the prescribed maximum and for four months cumulative, on the conviction for being a first year driver and driving with alcohol in her body.

1. It was put to the learned magistrate that the applicant is a single woman aged 20 years and employed as a secretary. On the evening of the offence she had been to a hotel with friends and consumed some wine. She returned to her flat and there drank three glasses of Port. She stopped drinking for almost an hour before she drove her motor vehicle. Her belief was that "she could drive safely without infringing the legislation". She was intercepted by the police for a random breath test. She had no prior convictions. There was no evidence of the length of time she had held her licence other than that to be inferred from her plea of guilty to a breach of s6(2).

1. The motion seeks a review of all the penalties imposed but the grounds are confined to the disqualification of four months imposed for the offence against s6(2). In substance, those grounds are that the learned magistrate erred by ordering that the period of four months be cumulative upon the disqualification for three months for the breach of s6(1) and in result, the disqualification for the further period of four months was manifestly excessive.

1. In Brown v Lynch (1982) 5 A Crim R 404, Forster CJ said at p407:–

" ... it has been held that, save in special circumstances, when a number of offences arise from substantially the same act or circumstances or a closely related series of occurrences, cumulative penalties should not be imposed ..."

1. This principle was adopted in Hopkins v Conn (1980) SASR 470; Duelberg v Sciberras, reported in the same volume at p481; R v Hally [1955] Qd R 582 at p584. It is described by Thomas, Principles of Sentencing, 2nd Edn at p53 as the "one transaction rule". The learned author says:—

"The one transaction rule can be stated simply: where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive."

1. It is referred to in Fox and Freiberg on Sentencing, State and Federal Law in Victoria at p368 as the "continuing episode rule".

1. The circumstances of the present case called for the application of this principle, for both convictions arose out of the same acts. A circumstance of aggravation properly to be taken into account in assessing penalty for the breach of s6(1) is the fact that the applicant had held a driver's licence for less than twelve months. However, the mere failure to order concurrent periods of disqualification is not sufficient to dispose of this motion. A closely related principle to the "one transaction rule" is the totality principle expressed by Thomas (supra) at p56:–

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the of fence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'".

See Smith v The Queen [1972] Crim LR 124; Brakey v The Queen, CCA 2/87; Abbott v Lowe, Cox J 27/86."

1. The overall effect of both principles requires an appeal court to consider all the penalties imposed and the totality of the unlawful conduct involved to see whether, in the end result, the sentence or series of sentences is manifestly excessive. Thomas at p53 says:—

"The court sometimes upholds consecutive sentences which appear to offend the [one transaction rule] on the ground that the totality of the sentence is correct and that no purpose would be served in making a formal variation which would leave the effective sentence unchanged, and from time to time varies a sentence with reference to the single transaction principle when that principle does not appear to have been infringed and the real ground of the reduction is that the totality of the sentence is excessive.

1. In the circumstances of this case it could not be said that disqualification from holding or obtaining a driver's licence for seven months would have been a manifestly excessive penalty for each offence provided that both periods of disqualification were ordered to be served concurrently. Learned counsel for the applicant did not submit to the contrary. For a first year driver, the blood alcohol concentration was relatively high and, it would appear, that the applicant's breach of the law was not due to inadvertence. In the circumstances, even though the order that the periods of disqualification be served consecutively offends against the "one transaction rule", it is not appropriate to review the penalty as any variation would result in an order that the applicant be disqualified for a total period of seven months.

1. The motion is dismissed.