Shea v Lane
[2013] TASSC 62
•23 October 2013
[2013] TASSC 62
COURT: SUPREME COURT OF TASMANIA
CITATION: Shea v Lane [2013] TASSC 62
PARTIES: SHEA, Michael Neil
v
LANE, Sergeant Richard
FILE NO: 1017/2013
DELIVERED ON: 23 October 2013
DELIVERED AT: Hobart
HEARING DATE: 14 October 2013
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Appeal against sentence – Manifestly excessive.
Parker v Whiteman [2012] TASSC 17, referred to.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: J McCarthy
Respondent: S Nicholson
Solicitors:
Applicant: Mackie Crompton
Respondent: Director of Public Prosecutions
Judgment Number: [2013] TASSC 62
Number of paragraphs: 24
Serial No 62/2013
File No 1017/2013
MICHAEL NEIL SHEA v SERGEANT RICHARD LANE
REASONS FOR JUDGMENT TENNENT J
23 October 2013
On 26 September 2013, the applicant pleaded guilty before a magistrate to offences on two complaints numbered 5427/13 and 5206/13. He was subsequently convicted of certain offences and sentenced. He now seeks to review the penalties imposed by the learned magistrate. The penalties imposed were as follows:
5427/13
Charge Penalty
Drive a motor vehicle while exceeding the prescribed 2 months' imprisonment wholly
alcohol limit contrary to the Road Safety (Alcohol and suspended and 18 months'
Drugs) Act 1970 ("the Act"), s6(1) – reading .116 disqualification
5206/13
Charge Penalty
Count 1- same as above but with a reading of .097 Globally 4 months' imprisonment
Count 2- drive whilst disqualified cumulative to the above with
2 months' suspended and 2
years' disqualification
All the offences occurred on the same day, namely 2 July 2013. The applicant was initially intercepted by police at 10.41am that day. He was breathalysed, and returned a reading of .116. He was issued with an excessive drink-driving notice pursuant to the Act, s18B. By that notice, he was immediately disqualified from driving. He was charged and bailed. He intended to get a taxi to go home. However, he became concerned about his car which had been left on the side of the road. He got a taxi to where his car had been left. He found it unlocked with the keys in it. An iPad and phone had been stolen. He became concerned about the safety of the car, and made the decision to drive it to his home. Police intercepted him again. He was breathalysed a second time, and returned a lower reading. He was charged with a second drink driving offence, and also with driving while disqualified. There was no information provided as to the delay between the first and second set of offences.
At the time of the offending, the applicant had prior relevant convictions. These were as follows:
Date of court
appearance Charge Penalty
7/4/93 Drive with alcohol in body without authority $200 fine plus 3 months'
disqualification
Drive whilst disqualified "
6/9/04 Exceed (reading .194) $1,000 fine plus 2 years'
disqualification
22/8/08 Exceed (reading .137) 4 weeks' imprisonment wholly
suspended plus 12 months'
disqualification
Drive without due care and attention $250 fine plus 3 months'
disqualification cumulative
24/9/08 " 15 months' disqualification
Driver involved in a crash and failing
to stop Conviction recorded
There were a number of speeding offences also appearing on the applicant's record. In addition to court imposed penalties, the applicant's licence had been suspended as a consequence of an accumulation of demerit points. On 5 July 2013 he was convicted of driving on 25 April 2013 in breach of that suspension. The matters for which the applicant was sentenced on 26 September 2013 represented his fourth and fifth drink-driving offences and his third in relation to driving while disqualified or while his licence was suspended.
After the facts were read by the prosecutor and the admitted prior matters were tendered, the following plea in mitigation was put by counsel for the applicant, which included exchanges between counsel and the learned magistrate:
"MR McCARTHY: As to the record of prior convictions, your Honour, you'll notice there is a prior for drive whilst disqualified in 1993. I submit that that particular prior conviction is reasonably old.
HIS HONOUR: There's a drive while suspended this year.
MR McCARTHY: Yes, your Honour. That's, I would say, it is a like prior conviction, I can indicate it's a monetary penalties enforcement service suspension which has since been lifted. You'll notice on the record, your Honour, there are some reasonably lengthy periods of disqualification that were imposed over the years where there haven't been any recordings of convictions for driving whilst disqualified. I'm also instructed that Mr Shea did complete the community service hours that were imposed in 2012. I submit that that's an indication that, notwithstanding this offending, Mr Shea has on occasion complied with court orders.
The last charge of exceeding .05 on my reading of the record is in 2008. I submit that that's a small gap in offending for drink driving of just over five years and it appears that the wholly suspended sentence at least during that period of five years that was imposed had some deterrent effect on him. As to the offending itself, your Honour, firstly to the first offence in time, complaint number 5427 of 13, I'm instructed that at the time of the offence there were some general stresses in Mr Shea's life, specifically he instructs his father has cancer and that the prognosis is poor.
He had relationship problems at the time. He also had significant financial problems. In relation to his finances I'm instructed that Mr She appears to have significant assets, but he also has very significant debt. He instructs me that his debt is almost $1 million and that he's required to make significant repayments in relation to that which he simply has a lot of difficulty doing on his current income.
As to the offence itself, I'm instructed that he was drinking with one of his tenants on the date of the offence, that is – sorry, the night, the early morning hours leading up to the 10 o'clock period. He instructs that he was drinking. He stopped at about 4 am in the morning. He went to bed. He woke up after a period of sleep and he instructs that the tenant that he was consuming alcohol with had left the unit unexplained. He instructs that at that point in time he did fear for his safety as there had been a home invasion at that particular unit relatively recently, so what he decided to do was get into his car and drive home.
So on my calculations, your Honour, if he'd stopped drinking at 4 am and he was intercepted at 10.41, there's about six hours where the defendant didn't consume alcohol, and the defendant instructs that when he was driving the vehicle, notwithstanding that reading, he didn't feel that he was affected by alcohol at the time.
As to the second offences in time, your Honour, the complaint number 5206 of 13, I'm instructed that after he was dealt with by the police Mr Shea did plan to take a taxi home, but he returned to check on his vehicle that was left by the side of the road. He instructs that he got to the vehicle and his car was – was it unlocked?
MR SHEA: Yes.
MR McCARTHY: It was unlocked, and that his iPad and a phone had been stolen. At that point in time he feared that the whole car would be stolen if he left it there. So he made the decision he now regrets, which was to drive home. I understand he intended to drive a relatively short distance. He instructs it was about a five-minute drive from where the car was left to his home. In relation to the offending in general, I submit there is an absence of some aggravating factors in the sense that there was nothing aggravating about the driving that attracted the attention of police and no-one was harmed, no property was damaged.
Since the date of the offences there's no allegation before the court that Mr Shea has continued to offend. He instructs that he hasn't consumed alcohol since the offence and that the three cars he owns have been sold, and that a property in Molesworth is about to go on the market to be sold because he now has an inability to commute to the city. He instructs that the excessive drink driving notice understandably has interfered with the care of his father as he's no longer able to drive, and I submit that it will be very difficult for Mr Shea to get back into employment given the lengthy period of disqualification that is likely to be imposed.
Furthermore I'm instructed that since the offending Mr Shea is remorseful. I submit that that can be inferred from the early plea of guilty, however, I will quote from some written instructions that I was given. To use Mr Shea's own words, he says, "I wholly regret my actions and looking back cannot believe how ridiculous I behaved."
As to his personal antecedence, he just turned 40. He is in a long-term relationship and has stable accommodation. He is an educated man, in my submission. He's a fully qualified automotive electrician, and is also a qualified chef. He has had a reasonable work history. In essence, I'm instructed he's worked in those industries for most of his adult life, however, he's had difficulty returning to employment in recent time, however, I don't believe – I'll just clarify this. You're not in receipt of a Centrelink pension are you?
MR SHEA: No.
MR McCARTHY: He's not in receipt of any Centrelink payments, rather he manages a block of units in Sandy Bay and that's from which he derives his income. So I submit that Mr Shea does have a significant prospect of rehabilitation. I tender a report of a Dr Roger Cox. It's been provided to the prosecution, and I'll allow your Honour a moment to read it.
HIS HONOUR: Yes.
MR McCARTHY: I submit that particular document as relevant in the sense that there's no evidence before the court that Mr Shea is alcohol dependent, notwithstanding his record of prior convictions, and that lowers his risk of reoffending to a degree. Furthermore, I tender a second and final report. It's a report from a Dr Janet Haines who works at Salamanca Psychology. That again has been provided to the prosecution.
HIS HONOUR: Have you otherwise completed your submissions, Mr McCarthy?
MR McCARTHY: I have some brief submissions in relation to the reports, your Honour.
HIS HONOUR: You'll understand that when you hand up a report in the middle of a plea in mitigation, I need to take the opportunity of adjourning a matter to read it. So finish your submissions and then I'll consider what it says over the morning adjournment.
MR McCARTHY: Thank you, your Honour. I submit that the report from Dr Haines is relevant firstly to the kind of sentence to be imposed on Mr Shea. Specifically there appears to be a psychological condition within the meaning of Startup's case. The report is evidence, in my submission, that that condition contributed to Mr Shea's offending and that the public interest could be served by the court at least considering a probation order with a condition that Mr Shea attend counselling at the direction of a probation officer, and that the public interest would be served because if that was complied with there's a chance that it will reduce his risk of reoffending.
HIS HONOUR: I can't give a probation order without a report, can I?
MR McCARTHY: No, your Honour. I thought it was appropriate I make the submissions first to see whether your Honour was minded to make that order for an assessment.
HIS HONOUR: Yes, go on.
MR McCARTHY: My final submission, your Honour, is I submit that Dr Haines' report is also relevant to the issue of general deterrence. Specifically I submit that because Mr Shea has a psychological condition, that reduces the importance of that part – of that issue in the sentencing process, presuming the opinion is accepted. Those are the matters I'm instructed to raised.
HIS HONOUR: I'll stand the matter down until after the morning adjournment and I'll sentence in something like 20, 25 minutes' time.
PROSECUTOR: Sorry, your Honour. Just before you step down, I'd just like to raise in relation to the defence's submissions, the report on my reading says that he doesn't, 'I doubt if Mr Shea could be diagnosed with a psychiatric condition, however, there are psychological factors,' and that’s on the basis I understand the report is tendered.
MR McCARTHY: Would your Honour hear a submission about that?
HIS HONOUR: Yes, certainly.
MR McCARTHY: There's no issue with the wording of the report, you Honour, and I think that's really the issue about what weight the report would be given in this case, because although there's no diagnosis of a condition that you might see under the DSM-5, there are certainly psychological factors that are referred to and, in my submission, that falls within the definition of a condition within Startup's case. Those are my submissions.
HIS HONOUR: Look, I remember Ms Startup because she was such a spectacular offender, but she had quite profound psychiatric conditions, as I recall it. I don't remember what they were, but a variety of factors produced in her a degree of inability to appreciate even where she was at times. She used to invade homes thinking apparently for some reason that she was entitled to be in that place. So she's totally in a different field I would have said from Mr Shea.
MR McCARTHY: Absolutely, your Honour. I make no submission that Mr Shea is in the same category, but I submit that the general principles in Startup's case still apply, he's just on the lower end of the scale in terms of reducing his offending.
HIS HONOUR: When it comes to drink drive sentencing too it's often a two-edged sword because it makes someone look as though a protective order might be even more strongly indicated than otherwise it might be. Anyway, I'll come back to this matter in about 20 minutes, and you can wait at the back, please, Mr Shea."
After hearing the plea, the learned magistrate took an adjournment to read the two reports tendered to him by counsel for the applicant. These were those from the applicant's general practitioner relating to a liver function test, and a second by a psychologist, Dr Janet Haines. His Honour then resumed and sentenced the applicant. His remarks were as follows:
"HIS HONOUR: I have found it difficult to extract from the report much which favours you. On the one hand you undoubtedly had some stressors in your life and so found it hard to make logical decisions, and all of us who have suffered a bereavement understand how that can work, but the extent to which that is a mitigating factor, and it's very unclear based on Dr Haines' report just what that extent is, that extent is offset by apparent propensity and that reality tends to increase the need for a sentence designed specifically to deter you from further offending of this kind.
Your record overall I would characterise as being very poor, generally and specifically in relation to your obligations under the Road Safety Alcohol and Drugs Act, and I include the drive while suspended that occurred earlier this year. You've got prior matters for drink drive, for drive while disqualified, drive while suspended, and I note a particularly high speeding matter in 2004. You've had a suspended sentence in the past.
In relation to the issue concerning the gap between the sentencing of 22 August 2008 and the commission of these offences, I observe that you were disqualified on that date and then again for a drive without due care and attention, I think, resulting in the fact that you were disqualified until midnight on 21 November 2010. So the gap is, in reality, much shorter than submissions suggested that it was. There are quite a lot of other relevant although different offences that I've seen fit not to mention.
I do accept the basic underlying proposition that there are sufficiently reasonable prospects for your reform as to justify the partial suspension of the sentences that I'm now going to impose. Now, on complaint 5427 which is the earlier of these matters, two months' imprisonment which is wholly suspended on condition that you're of good behaviour and on condition that you do not commit any offence under the Road Safety Alcohol Drugs Act as a driver for a period of three years from the date of your release form custody, and on that complaint you're disqualified from holding or obtaining a driver's licence, licence cancelled for 18 months from 2 July.
On the other complaint a global sentence of four months' imprisonment of which two months are suspended on the same conditions, and you're disqualified from holding or obtaining a driver's licence, licence cancelled for a two year cumulative period. There are victims of crime levies of $60. The costs will be remitted and you will need to go with the security officer, please."
The grounds of review of his Honour's sentence were in the following terms:
"1 The sentence was manifestly excessive in all the circumstances of the case.
2The learned Magistrate erred in fact or in law in finding that the requirement of specific deterrence outweighed the mitigating factors in the Applicant's case.
Particulars
a The learned Magistrate failed to give any or sufficient weight to the following comments in the report of Dr Janet Haines dated the 23rd of September 2013:
iThere are psychological factors in his presentation that are worthy of note … Mr Shea demonstrates a tendency to become overwhelmed by stressful life events. At these times, his thinking tends to constrict so that he is more likely to think in inflexible ways … This constriction in thinking is a recognised problem that is linked to lowered mood and distress. At times when he is thinking in such a way, he is much more likely to make poor choices as he is unable to see alternative solutions to even the simplest of problem situations.
iiIt is my view that Mr Shea's offending behaviour is an example of the problems that arise as a consequence of the problematic thinking styles outlined above.
iiiIt is evidence that further intervention is warranted. However, I do consider that Mr Shea can learn to challenge these distortions in thinking and control his mood.
ivIf Mr Shea learns to challenge his distorted thinking his chances of re-offending are likely to significantly reduce.
b The learned Magistrate failed to give any or adequate weight to the Appellant's impaired mental functioning when considering the kind of sentence to be imposed and the conditions in which the sentence should be served.
c The learned Magistrate did not exercise his discretion/s provided under section 82(1)(b), 37(2)(a) – (d) and section 7(d) of the Sentencing Act 1997."
Discussion
Ground 1 of the notice to review is an assertion that the sentence imposed by the learned magistrate was manifestly excessive in all the circumstances of the case. Evans J in Parker v Whiteman [2012] TASSC 17 at par[3] quoted a passage often referred to by judges when dealing with reviews which assert manifest inadequacy or excessiveness in a sentence. He said:
"3 In my consideration of this matter I have kept in mind the following passage from the decision of Crawford J (as he then was) in Visser v Smart [1998] TASSC 151:
'An appellate court must not interfere with the exercise of the sentencing discretion except in a clear case of error. A magistrate is vested with a very wide discretion. Whittle v McIntyre[1967] Tas SR 263 (NC6). It is not sufficient to set aside a sentencing order just because a more severe sentence would have been imposed by the appellate court. In the circumstances of this case, the motion must fail unless the Court is satisfied that the sentence was manifestly wrong in its inadequacy, as to amount to a clear error in the sentencing process. Such principles have been stated by courts of this State on a great many occasions and come from the High Court in cases such as House v R[1936] HCA 40; (1936) 55 CLR 499, Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 and Harris v R[1954] HCA 51; (1954) 90 CLR 652. Notwithstanding the wide sentencing discretion in the court below, it is the duty of the appellate court to interfere where it is necessary to do so to avoid such manifest inadequacy in sentence or inconsistency in sentencing standards that the error is of such gravity that it is essential in the administration of justice that the error be corrected. It is not necessary to identify any particular error of law made. The error can be implicit in the excessive leniency in the sentence imposed.'"
The views expressed in that quote are apposite here. Counsel for the applicant submitted that a combination of the sentence of imprisonment, even though partially suspended, plus the period of disqualification, was a disproportionate penalty for the offending in this particular case, having regard to the hardship to be suffered by the applicant during the period of disqualification, the applicant's remorse, that the offence was committed under extenuating circumstances, and the applicant's prospects of rehabilitation.
Before dealing with those particular submissions, I should first make reference to the penalty provisions in the Act. The Act provides for mandatory minimum penalties for offences of the type the applicant committed, leaving the drive while disqualified matter to one side. Given that the drink-driving matters represented a fourth and fifth offence under the Act, both offences attracted penalties by reference to the second table appearing in the Act, s17. As to the offence on complaint number 5427/13, the learned magistrate was required to impose a fine of not less than 8 penalty units and not more than 40 penalty units, or a term of imprisonment of not more than 12 months, or both, and disqualify the applicant from driving for not less than 12 months and not more than 3 years. As far as the period of disqualification was concerned, the learned magistrate imposed a period which represented half the maximum provided for.
As to the offences on complaint number 5206/13, for the drink-driving offence, the learned magistrate was required to impose a fine of not less than 4 penalty units, and not more than 20 penalty units, or a term of imprisonment of not more than 6 months, or both, and disqualify the applicant from driving for not less than 6 months and not more than 2 years. As far as the period of disqualification was concerned, the learned magistrate imposed the maximum period he was permitted to had he been sentencing for just the drink-driving matter. It should be kept in mind that he was also sentencing for a drive while disqualified matter, and the applicant had previously been convicted of one count of drive while disqualified, and one count of driving while his licence was suspended. That last conviction arose out of an incident which had occurred only two and a half months before this offending.
The net result of the sentences imposed by the learned magistrate was that the applicant was to serve an actual term of two months' imprisonment from 26 September 2013, and a three and a half year disqualification from 2 July 2013. The applicant was granted bail pending the outcome of this review on 4 October 2013. He has therefore already served seven days of the term of imprisonment.
As to the submissions referred to in par[8] of these reasons, there was, with respect, very little put before the learned magistrate about any hardship which might flow to the applicant from the period of disqualification. The only comments made by counsel for the applicant which could relate to the impact of disqualification were that the three cars the applicant owned had been sold, a property at Molesworth was about to go on the market because the applicant was unable to commute to the city, the excessive drink-driving notice had "understandably...interfered with the care of his father as he's no longer able to drive", and that it would be very difficult for the applicant to get back into employment given the lengthy period of disqualification that was likely to be imposed. There was nothing said about the type of work the applicant might have been looking for, and just how his inability to drive would impact on his ability to obtain whatever work he was seeking.
The court had already been told that the applicant had stable accommodation and was in a long-term relationship. The court was also told that the applicant had "had difficulty returning to employment in recent time", and that his source of income came from managing a block of units at Sandy Bay. While the court was told the applicant's father was ill, there was nothing to suggest the applicant provided any particular level of care. There was, in essence, almost nothing to suggest the applicant would suffer any particular hardship not anticipated as a consequence of any period of disqualification short or long.
As to the applicant's remorse, he had expressed it and pleaded guilty. The learned magistrate did not specifically refer to either of these factors. However, simply because he did not refer to them does not mean they were disregarded. As to extenuating circumstances and prospects of rehabilitation, it is difficult to know precisely what these were said to be, because counsel for the applicant did not expand on this submission. The learned magistrate was told the reasons for the applicant having driven. The applicant said he drove the first time because, albeit he had been drinking for some time until some six hours before being apprehended, he did not wish to stay at the place where he had been drinking because the person he had been drinking with there had left while the applicant was asleep, and there had been a home invasion there at some unidentified time. The applicant said he drove the second time because he did not want to leave his car on the side of the road. Neither of these explanations adequately explains why the applicant needed to drive when he did, so urgently that he could not consider alternatives.
In the context of a drive while disqualified matter, Evans J said in Parker's case (above) at par[9]:
"For an explanation for driving in breach of a disqualification to be a significant mitigating factor, there must be a real emergency, otherwise little weight will be given to it."
In the present case, no such real emergency existed.
The only other matter which counsel may have been relying on as to extenuating circumstances and prospects of rehabilitation was the contents of Dr Haines' report. That report was the subject of specific complaint in ground 2 of the review. That report indicated that the applicant had been seeing Dr Haines for psychological support between 30 May 2012 and 20 June 2012, that is, over a year prior to the offending the subject of this review. No reason was given as to why he had been seeking that support, although Dr Haines indicated there had been therapeutic gains from the sessions then had. The applicant had sought such support again, and saw Dr Haines once on 20 September 2013, that is, over two and a half months after the offending, and six days before the applicant anticipated pleading guilty and being sentenced. Dr Haines did not have the benefit of seeing the applicant at the time of the offending. Further, there was nothing to indicate that the applicant had seen the need for, and sought any, further psychological support between June 2012 and 20 September 2013.
Dr Haines, in her report, answered specific questions put to her by the applicant's counsel. In response to the request for details of any illness or affliction suffered by the applicant, Dr Haines said:
"2 Details of any illness or affliction suffered by Mr Shea.
I doubt that Mr Shea could be diagnosed with a psychiatric condition. However, there are psychological factors in his presentation that are worthy of note. In general, Mr Shea demonstrates a tendency to become overwhelmed by stressful life events. At these times, his thinking tends to constrict so that he is more likely to think in inflexible ways, seeing things in more extreme terms. For example, when under pressure, Mr Shea is more likely to be unable to generate a range of possible strategies to cope with a problem with which he is faced. This constriction in his thinking is linked to his mood so that when his mood is poor, his capacity to think more broadly is reduced. This constriction in thinking is a recognised problem that is linked to lowered mood and distress. At times when he is thinking in such a way, he is much more likely to make poor choices as he is unable to see alternative solutions to even the simplest of problem situations."
Dr Haines went on to say:
"4 Is there a link between Mr Shea's health condition/s and his driving offending?
It is my view that Mr Shea's offending behaviour is an example of the problems that arise as a consequence of the problematic thinking styles outlined above. It is clear that Mr Shea has been dealing with some stressful events in his life. For example, Mr Shea reported that he has been experiencing a range of life stressors. He reported that his father's health is deteriorating. He indicated that it was evident that his father's prognosis following his cancer diagnosis is poor despite his father refusing to discuss the matter with his children. The uncertainty about his father's health and the worry he feels about his father's wellbeing are distressing for Mr Shea. In addition, Mr Shea was faced with some significant decisions about his financial position, about which he was receiving conflicting advice. This process of determining what to do was stressful for Mr Shea. Also, he reported that the tenant at the property where he was residing experienced a home invasion and this was disturbing for Mr Shea. In addition, he reported experiencing some relationship disruptions with his long-term partner that have now resolved to some extent. The cumulative effect of these events would be sufficient to trigger a deterioration in Mr Shea's mood and activate the type of thinking that makes it difficult to adequately address his stressed state.
In this state, Mr Shea reported that he awoke after drinking the night before and found himself alone at the property where the home invasion had occurred. With limited capacity to think laterally about his situation, he said he opted to leave the property to feel safer. He reported that he drove because he felt sober, a common enough perception by people who have slept following the consumption of alcohol.
Then, after being charged with a driving offence, Mr Shea reported that he opted to take a taxi home. He said he then chose to divert to his car in New Norfolk to ensure that it was securely locked. He reported that he found his car unlocked with the keys on the seat and expensive items in the car had been stolen. When faced with this dilemma, he opted to drive the car the few kilometres home to ensure that it would not be stolen.
When faced with the problem of his car being left in an unsafe position, his constricted thinking presented him with two options; his car would be at risk of being damaged or stolen OR he had to get the car home. He did not consider that he could have secured the car onsite. This tendency to think in black and white terms (ie, either the car will be damaged or it must be taken home) is typical of the constricted thinking to which I was referring. It is a function of this tendency Mr Shea's demonstrates to think in an inflexible way when he is under stress.
5 Your opinion as to Mr Shea's likely ongoing need for treatment and/or prospects of recovering from his illness/affliction.
As stated, Mr Shea made some therapeutic gains when these issues were addressed before. Since that time, Mr Shea has been experiencing some significantly challenging stressful life events. These have exceeded his capacity to cope with their psychological demands and his thinking again has become distorted. It is evident that further intervention is warranted. However, I do consider that Mr Shea can learn to challenge these distortions in thinking and control his mood.
6 Is Mr Shea likely to reoffend if he engages in proper treatment? How long would you recommend that treatment to be?
If Mr Shea learns to challenge his distorted thinking his chances of re-offending are likely to significantly reduce. I would recommend a series of 6-10 therapeutic sessions. Previously, Mr Shea engaged well with the therapeutic process and I believe that he will do so again."
Counsel for the applicant suggested that the learned magistrate failed to give any or sufficient weight to statements in Dr Haines' report. The learned magistrate specifically adjourned to consider the contents of the report. He took a particular view of its contents. From the applicant's perspective, the view the learned magistrate took was not acceptable, and indicated a lack of consideration of the points made. With respect, his Honour's conclusion as to the impact of that report was open to him, having regard to the contents of the report, particularly when regard is had to the points I referred to in par[16] of these reasons.
When counsel for the applicant was making submissions in relation to what he described as his client's impaired mental functioning, he referred the Court to a matter of Startup v The State of Tasmania [2010] TASCCA 5. The first point which must be made is that Ms Startup was in an entirely different category to the applicant, a factor which the learned magistrate was aware of from having dealt with her on a number of occasions. She had a diagnosed mental illness. Counsel referred to the remarks of the Court at par[6]:
"There is no question that an offender's impaired mental state may be relevant to the sentencing process. In R v Verdins (2007) 16 VR 269, Maxwell P, Buchanan and Vincent JJA said at par[32]:
[32] Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:
1 The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2 The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3 Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4 Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both. See for example, Payne at 444, [43].
5 The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6 Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment."
There is no challenge at all to the remarks quoted. However, they have minimal relevance in the present case. Dr Haines, at best, suggested that the applicant, when stressed, did not always think clearly and logically and did things without properly considering the impact of doing those things. That may be so. However, the situation was clearly not one where the applicant felt the need for on-going psychological support after June 2012, and he had offended, in the sense of driving while his licence was suspended, only relatively recently. A combination of that factor and the fact that the drink-driving offences with which the learned magistrate was dealing were the fourth and fifth offences under the Act suggest clearly that the issue of deterrence was a very important one in this case.
Another complaint by the applicant was that the learned magistrate:
- did not order a pre-sentence report, and
- did not make or consider the option of making a probation order.
When queried as to what use a pre-sentence report might have been in the context of a plea in mitigation which incorporated two reports being provided to the learned magistrate, counsel for the applicant was unable to provide a reason, save one would be needed if probation were to be ordered. As to probation, the only reason advanced as to why that might have assisted the applicant appeared to be that it would provide a framework within which the applicant might, in effect, be compelled to continue with counselling with Dr Haines.
With respect, the complaint about probation is without merit. The learned magistrate was working within a framework of mandatory minimum penalties. He was dealing with a long-term repeat offender, and personal deterrence was an important consideration. The applicant had already had a suspended sentence imposed for a drink-driving offence in 2008. A sentence of actual imprisonment was almost inevitable. The learned magistrate clearly took into account the applicant's circumstances when he suspended the majority of the sentence of imprisonment imposed. Further, probation would not have achieved anything beyond providing a framework to compel the applicant to attend further counselling with Dr Haines, which he had already engaged in once before.
As to the period of disqualification imposed, the applicant had a poor driving record which included at least three occasions when he had driven in breach of a licence suspension or disqualification. While the period imposed in total was a significant one, it was well within the range open to the learned magistrate in the circumstances of the applicant.
I am not satisfied that the applicant has, in respect of the assertion that the sentence imposed upon him was manifestly excessive, demonstrated any error on the part of the learned magistrate. I am also not satisfied that the applicant has demonstrated any error in the matters he raised in ground 2 of his notice to review. The notice to review is therefore dismissed.
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