Shepherd v Visser and Turner

[1999] TASSC 81

[1999] TASSC 81

CITATION:                 Shepherd v Visser and Turner [1999] TASSC 81

PARTIES:  SHEPHERD, Damian James

v
VISSER, Claas
TURNER, Paul

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 3/1999
DELIVERED ON:  6 August 1999
DELIVERED AT:  Launceston
HEARING DATE:  29 July 1999
JUDGMENT OF:  Cox CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
             Applicant:  W T McMillan
             Respondent:  C J Geason
Solicitors:
             Applicant:  Ritchie & Parker Alfred Green & Co
             Respondent:  Director of Public Prosecutions

Judgment  Number:  [1999] TASSC 81
Number of paragraphs:  14

Serial No 81/1999
File No LCA 3/1999

DAMIAM JAMES SHEPHERD v CLAAS VISSER and PAUL TURNER

REASONS FOR JUDGMENT  COX CJ

6 August 1999

1. The applicant seeks a review of orders disqualifying him for holding or obtaining a licence to drive a motor vehicle for an aggregate period of 18 months.  On 2 February 1999 he was convicted of two counts of driving while disqualified, contrary to the Traffic Act 1925, s37(1) ("the Act"), the first occurring on 15 September 1998 and the second on 23 October 1998. The disqualification in breach of which he drove was imposed as the result of the accumulation of demerit points which led to his being "served" with a notice of disqualification in about July 1998. What form service took (see the Act, s43C(4)) was not apparent from the material before me. For the first offence, he was fined $400 and disqualified for a period of nine months to commence at the expiration of the six months' period of disqualification imposed by the July notice (namely, 13 February 1999), while for the second offence it was ordered that he be imprisoned for one month, the execution of such sentence being suspended on condition that he not commit a similar offence within a period of two years. In addition, he was disqualified for a further period of nine months cumulative upon the period imposed for the first offence. He was also ordered to pay levies amounting to $40 and court costs of $48. The applicant challenges only the imposition of cumulative periods of disqualification totalling 18 months as a miscarriage of the sentencing discretion.

1. The explanation offered by the applicant to police on his apprehension on 15 September 1998 was to the effect that his mother handled the mail and he did not realise that he was disqualified.  On his plea of guilty, he was represented by counsel, who offered the explanation that "he considered that he was a person who had to hand a licence in when it expired which was going to be the middle of September, 18 September".  It was not suggested that the applicant held an honest and reasonable belief that he was still licensed when he drove on 15 September because he had not seen or learnt of the contents of the notice of disqualification and counsel's submission indicates knowledge of the existence of some communication from the transport authorities involving the loss of his licence to drive.  The lack of any particularity in the explanations offered deprived them of any real substance.  The explanation offered to the police on the second occasion after he was stopped on the Hobart road in Launceston at 10.40am was "I have no other way of getting to town".  This was expanded on by counsel on the hearing before the learned magistrate.  Counsel said that the applicant had suffered a severe work injury on 15 September 1998 (coincidentally the date of the first offence) and had been off work since.  He was consulting his general practitioner and on the morning of 23 October after other members of his household had left for work, he had felt extreme pain requiring medical attention.  He looked for money in the house to pay for a taxi, but finding none "took the risk to drive to the doctor and that was when he was apprehended".  A specialist's report dated 14 January 1999 tendered to the magistrate confirmed complaints by the applicant consistent with a contusional injury to the left shoulder area for which on-going physiotherapy, massage and a hydrotherapy programme was recommended.  As counsel's explanation was not challenged by the prosecution nor queried by the learned magistrate, it should be accepted as genuine.  It appears that the applicant was in regular employment and came from a good background.

1. The period of six months' disqualification by accumulation of demerit points was not the first such disqualification he had received by the same process.  In June 1997, he was disqualified for three months.  He was born on 19 October 1979 and his offences prior to the first disqualification had been committed in November 1996, February 1997 (two), March 1997 (four) and May 1997 (two).  They all resulted in infringement notices being issued and accepted by him.  The offences were "undue noise" (three); "commit offence while vehicle in motion" (one); "speeding" (one); "failing to display P-plates" (two); "using a mobile phone whilst driving" (one); and "obscured number plates" (one).  After getting his licence back, he received and accepted infringement notices for offences committed in December 1997 (one), March 1998 (one), April 1998 (one), June 1998 (three) and July 1998 (two).  These offences were "inefficient exhaust system" (one); "speeding" (three); "undue noise" (two); "failing to indicate" (one); and "obscured number plates" (one).  His only conviction in a court was in October 1997 for "recklessly throwing a missile endangering the property of another" (two charges) for which he was placed on probation.  There is no evidence that any motor vehicle was involved in the commission of these offences. 

1. The learned magistrate observed that he was "a hopeless driver" and that in respect of his driving he had "little, if any, regard for the law".  He noted in particular the two previous disqualifications by reason of the demerit point system and acknowledged that he had no previous conviction for driving while disqualified and had disposed of his car.  He also noted his age.  He made no observations about the explanation for driving on the first occasion, but in respect of the second, said that there was no excuse for it.

1. Although no complaint is made of the fine and suspended sentence of imprisonment, it is submitted that in all the circumstances, the imposition of a period of disqualification of 18 months, to commence some ten days later when the earlier period of disqualification of six months had expired, was manifestly excessive and offended the totality principle.

1. Mr McMillan, on his behalf, sought to invoke a sentencing principle applied by the English Court of Appeal in R v Thomas [1983] 3 All ER 756 which Lord Lane CJ described at 757 in these terms:

"… that with persons like the present appellant, who seem to be incapable of leaving motor vehicles alone, to impose a period of disqualification which will extend for a substantial period after their release from prison may well, and in many cases certainly will, invite the offender to commit further offences in relation to motor vehicles.  In other words, a long period of disqualification may well be counter-productive and so contrary to the public interest."

In that case, the 25 year old appellant with an "appalling" driving record, which included at least four prior convictions for driving while disqualified and who was described by the court as "quite arrogant in relation to the law" and of whom, furthermore, it was said "for his deliberate and repeated offences he had to be punished", was sentenced to six months' imprisonment for two offences of driving while disqualified and ordered to be disqualified for two further years.  The Court of Appeal varied the period of disqualification by substituting one of 12 months' duration (inclusive of the time spent in prison).

1. The danger that a very lengthy period of disqualification may be counter-productive has been adverted to in this Court.  In Wise v R [1965] Tas SR 196, each member of the Court of Criminal Appeal expressed concern that a period of 15 years' disqualification extending beyond a period of imprisonment for 21 months would be likely to restrict unreasonably the appellant's prospects of rehabilitation. In Nation v Carrick 7/1983, Everett J viewed disqualification for 12 years for three offences under the Road Safety (Alcohol and Drugs) Act 1970, in addition to six months' imprisonment (which he did not reduce), as unduly punitive and restrictive of rehabilitation. He reduced the period to 4½ years. In O'Brien v R 43/1987, Wright J said that "an unreasonably long period of suspension tends to encourage the commission by the offender of the further serious offence of driving while disqualified".  That was a bad case of motor manslaughter where a Crown appeal against the inadequacy of a sentence of four months' imprisonment was upheld and the sentence increased to 12 months.  A period of disqualification for three years imposed by the trial judge was not challenged.

1. In Jarvis v Brown 120/1998, Evans J dealt with a notice to review a disqualification for 14 years in addition to an existing one which had 2½ years to run.  The applicant had pleaded guilty to many serious offences under the Road Safety (Alcohol and Drugs) Act with very high readings and he had a bad prior record.  He was also imprisoned for 13½ months.  At 5, his Honour said:

   "The Court's power to disqualify drivers is an important road safety tool. The threat of a licence disqualification is a major deterrent to the great majority of drivers and actual disqualifications frequently prompt drivers to desist from unsafe driving. Licence disqualifications can protect the community by keeping potentially dangerous drivers off the road. Some protection is also obtained in relation to those who drive regardless of their disqualification in that police officers and others who are aware of the situation can take steps to bring about compliance and the imposition of further penalties. In a sense, it does not make a lot of difference whether recidivists who receive disqualification are disqualified for six years or sixteen years. They are likely to re-offend early in the period of their disqualification and be saddled with the consequences of their behaviour. As to others, it is important that the length of their disqualification should not be so great as to offer little or no hope. Where an offender has not exhausted the Court's hopes for his or her reform, where possible, the period of disqualification should encourage reform."

   He reduced the period of disqualification to six years from the date the applicant was originally sentenced. 

1. I see no room in this case for any application of the principle espoused by the English Court of Appeal in R v Thomas (supra).  The dominant consideration underlying that principle, it seems to me, is that it is contrary to the public interest to impose, as a deterrent penalty, a form of punishment to which the offender will not submit and which cannot be enforced.  Such penalties do not operate as a deterrent.  In the present case there is no reason to suppose that the applicant will not observe the court's order of disqualification and not be deterred by it from committing other traffic offences.  Admittedly, he has shown a disregard to date of many of the obligations the law imposes upon him in respect of the use of a motor vehicle.  But this was the first time he had committed the offence of driving while disqualified, the first time he had appeared in court to answer for any traffic offence and he had disposed of his own motor car.  In Thomas's case, the real deterrent was an actual prison sentence which could be enforced and the court contented itself with imposing a modest period of disqualification because a 1981 amendment to the Transport Act required the court to impose some period of disqualification, even in circumstances which excepted the offender from a mandatory period of considerably longer duration.

1. The Tasmanian cases to which I have referred are also of marginal significance in a case such as the present.  They were all cases of serious breaches of the law involving great, actual or potential risk to other road users.  The safety of the public required substantially longer periods of disqualification than that required here, but did not require such lengthy periods as the court below had imposed.  In some cases, they were manifestly excessive and they were reduced, but nonetheless reduced to periods of time far in excess of the 18 months imposed in this case.

1. Clearly, the loss of the right to drive by a young person entering adulthood and just beginning to enjoy the freedom and other advantages access to a motor vehicle provides is most unpalatable.  It is likely to operate as a deterrent in most cases, especially when that person finds the disqualification enforced by action in the courts.  In some cases it is a good deal more than merely unpalatable.  Severe and unusual hardship thereby caused may be reduced by the grant of a restricted licence, but hardship short of this may nevertheless be suffered without the possibility of mitigation.  In many cases employment prospects are reduced by the absence of the right to drive a motor car and other people reliant upon the offender for mobility may also suffer.

1. I was referred to the case of Rolston v Harriss A49/1996 where Zeeman J found error in the imposition of a period of eight months' disqualification and, exercising the sentencing discretion himself, declined to impose any period of disqualification.  That was a very different case where the jurisdiction to disqualify the offender arose under the Justices Act 1959, s92B on the basis that offences of burglary and stealing were facilitated by the use of a motor vehicle. Having regard to the imposition of community service orders in respect of these criminal offences and of the likely effect on the applicant's job prospects, as to which he had some material, he did not consider disqualification appropriate. This is clearly a case for disqualification, as the present applicant's counsel acknowledged to the magistrate. The only question really is whether in all the circumstances, the period of 18 months was manifestly excessive.

1. While acknowledging the width of the discretion reposed in the learned magistrate (Whittle v McIntyre [1967] Tas SR 263 (NC 6)), I am of the view that such a period on top of a fine of $400 and a suspended sentence of one month's imprisonment is unnecessarily punitive and is manifestly excessive. The description of the applicant as a "hopeless driver" was an over-statement. Certainly he has a record he should take no pride in; but in the period of seven months before his first disqualification, the offences involving potentially unsafe driving were confined to one instance of speeding, one of committing some unspecified offence while the vehicle was in motion and one of using a mobile phone while driving. The others (failing to display P-plates, having an obscured number plate(s) and making undue noise in no way affected the safety of others. They are breaches of regulations designed to assist the authorities in the identification of drivers and ensuring that other citizens are not disturbed or alarmed by undue noise. The requirement to display P-plates may alert other drivers to the presence of relatively new drivers, but I suggest a breach would rarely expose such drivers to any added danger or result in their taking any additional precautions. In the second period of about nine months there were three cases of speeding and one of failing to indicate, while the balance involved noise and obscuring of number plates. The manner of his driving on the two occasions he was apprehended while disqualified was unremarkable.

1. He had no excuse for driving on the first occasion, but on the second, the undisputed contention was that he suffered sufficient pain from his recent work injury to cause him to seek relief from his general practitioner in circumstances where he had no alternative transport.  It was not an excuse in law, but his dilemma was deserving of some mitigating effect and to have it dismissed as something for which there was no excuse suggests a failure on the part of the learned magistrate to attach any weight to it at all.  In all the circumstances I am persuaded that the sentencing discretion miscarried and that I should exercise it afresh.  Nothing was put to the learned magistrate suggesting that disqualification would have any serious effect on the applicant's employability.  On the first count I would impose a period of disqualification for six months and on the second, having regard to his dilemma but taking account, nevertheless, of his awareness of his status as a disqualified driver, I consider an appropriate period would be in the order of six months also.  However, the combined effect of those two periods of disqualification requires some tempering in the circumstances, having regard to the totality principle and accordingly I would reduce the second to four months cumulative upon the first.  He is therefore disqualified for holding or obtaining a licence to drive a motor vehicle for a period of ten months from 13 February 1999.  The other orders of the Court of Petty Sessions are confirmed.