Simon-Brown v Richardson

[2011] TASSC 62

[2011] TASSC 62

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Simon-Brown v Richardson [2011] TASSC 62

PARTIES:  SIMON-BROWN, Kie
  v
  RICHARDSON, Jennie (Constable)

McCULLOUGH, Julie (Constable)
BUXTON, Colin Henry (Senior Constable)

FILE NO/S:  658/2011
DELIVERED ON:  28 November 2011
DELIVERED AT:  Hobart
HEARING DATE:  17 November 2011
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to Review – The hearing – Generally – Lengthy period of disqualification imposed – Whether period manifestly excessive – Principles applicable.

Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss6(3), 17, 18B, 18C.
Hunter v White [2002] TASSC 72; Williams v McLaughlin [2000] TASSC 29; Jarvis v Brown 120/1998, followed.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  D Sikk
             First, Second and
             Third Respondent:        Y Prenc

Solicitors:
             Applicant:  Beeton & Mansell
             First, Second and
             Third Respondent:        Director of Public Prosecutions

Judgment Number:  [2011] TASSC 62
Number of paragraphs:            25

Serial No 62/2011
File No 658/2011

KIE SIMON-BROWN v CONSTABLE JENNIE RICHARDSON
CONSTABLE JULIE McCULLOUGH
SENIOR CONSTABLE COLIN HENRY BUXTON

REASONS FOR JUDGMENT  TENNENT J

28 November 2011

1. On 7 July 2011, the applicant was sentenced on his plea of guilty by his Honour Magistrate Mollard in respect of a number of offences.  His Honour imposed a number of penalties. It was necessary, because of an error made, for one of those to be corrected, which the learned magistrate did within a few weeks of the original sentence. With that correction incorporated, the offences and the penalties imposed appear in the following table. I add one qualification. Details of the periods of disqualification imposed on the applicant appear in three separate places. The first is the transcribed comments of the learned magistrate, the second is the record of proceedings sheets attached to the various complaints, and the third is the recorded list of "priors" of the applicant. On the face of it they do not appear to be the same. My table is drawn from the comments at the time of sentence.

Complaint number and offence details

Penalties

Complaint 50141/10 (Offence date 26/9/2009)

Count 1:  Operate vehicle in public place in an exhibition of speed, acceleration or loss of traction (Hooning offence)

Count 2:  Drive while not the holder of a driver licence

Count 3:  Drive a vehicle whilst a prescribed illicit drug is present in the blood

Count 4:  Drive a motor vehicle while exceeding the prescribed alcohol limit (reading .162)

Count 5:  Driver not holding an Australian driver licence driving with alcohol in the body

Counts 1, 2 and 4 – 6 months imprisonment wholly suspended

3 years disqualification "cumulative" (It must be inferred this period is cumulative to the sentences on complaints 1437/11 and 7905/10 since it follows immediately after the sentences imposed on those complaints)

Count 3 – 3 months disqualification to be concurrent with any other period of disqualification

Count 5 – dismissed

Complaint 7905/10 (Offence date 31/5/10)

Count 1:  Learner driver unaccompanied by licensed driver

Count 2:  Use unregistered vehicle

Count 3:  Using a motor vehicle with no premium cover

9 months disqualification cumulative (It must be inferred this period is cumulative to the sentence on complaint 1437/11 since it follows immediately after the sentence imposed on that complaint)

Conviction recorded

Conviction recorded

Complaint 1434/11 (Offence date 13/2/11)

Count 1:  Drive a motor vehicle while exceeding the prescribed alcohol limit (reading .157)

Count 2:  Drive whilst disqualified

Count 3:  Driver not holding an Australian driver licence driving with alcohol in the body

Count 4:  Possession of cannabis

Counts 1 and 2 – 6 months imprisonment to date from 16/5/11

Count 3 dismissed

His Honour said "There is a disqualification from holding or obtaining a driver's licence for an additional two years on that complaint." 

Complaint 1437/11 (Offence date 13/2/11)

Exceed speed limit (95/60kph)

3 months disqualification to commence from release from custody

1. The applicant has moved to review the sentence of the learned magistrate insofar as it relates to the period of disqualification only. The grounds of review are as follows:

"1The Magistrate erred in law in that the sentence imposed by way of a period of disqualification was manifestly excessive in all the circumstances of the case and/or

2The Magistrate erred in law in failing to take into consideration the period of disqualification already served by the Applicant in respect of Complaints 6302/10 and 6565/10."

1. At the commencement of the hearing both counsel for the applicant and the respondents expressed themselves uncertain as to the effect of the orders made by the learned magistrate in relation to disqualification. Neither, with respect, gave me any assistance in resolving the matter. Counsel for the applicant simply proceeded on the basis that, if the applicant had been disqualified for six years, which it seemed to him was the most favourable interpretation of his Honour's sentence, that in the circumstances was excessive, and it would be made more so if the period were longer. At the time submissions were made, I had not studied his Honour's sentencing comments in any detail and had principally had regard only to the list of prior matters. They are confusing in the extreme. However, having now studied his Honour's remarks, I am proceeding on the basis that the effect of the sentencing process undertaken by his Honour was a total of six years disqualification.  My reasons for so doing are as follows.

1. At the time of his interception on 13 February 2011, the applicant was already a disqualified driver. He had been disqualified from driving for a period of four years on 14 November 2010. That period of disqualification had not been the subject of any review. On 13 February 2011, because of the level of alcohol in his blood, the applicant was issued with an Excessive Drink Driving Notice pursuant to the Road Safety (Alcohol and Drugs) Act 1970 ("RSAD Act"), s18B. The notice specified a period of disqualification of two years which, by reference to the RSAD Act, was the minimum penalty to which the applicant was subject given his prior convictions.

1. The clear intention of parliament in providing for excessive drink driving notices was to effectively take people off the road immediately an offence was committed without the need to wait until the matter might be dealt with by a court. Section 18B(3) makes that clear. However, as here, there could be situations where a driver was, at the time an excessive drink driving notice was issued, already disqualified. When, in such a situation, does the period of disqualification imposed by the notice commence? The RSAD Act, s18C, provides that if a driver is already subject to a period of disqualification at the time he or she is given a notice, the period of disqualification provided for in the notice commences at the expiration of the existing period of disqualification. Applying that in this case produces the result that the period of disqualification imposed by the notice does not commence until November 2014.

1. However, s18B(5), provides that a person to whom a notice is given is disqualified from driving until the sooner of the determination of the charge resulting from the events which gave rise to the notice, and the expiration of the minimum period of disqualification applicable to the offence committed after the notice was given. Section 18B(6) requires a magistrate who subsequently hears the charge against a driver and disqualifies him or her to take into account any period of disqualification already served pursuant to the notice. I take these two sub-sections to mean that, if a driver is not already disqualified at the time he or she receives an excessive drink driving notice, they are by virtue of the notice immediately disqualified until, usually, when the matter comes before the court. If they plead or are found guilty of the offence, the magistrate will be obliged, absent special circumstances, to disqualify the driver for a minimum period. If the driver has already served a period of disqualification between the date of the offence and the date of court, that period must be taken into account as part of the period of disqualification ordered

1. In this case, by reason of the fact that the drink driving offence on complaint 1437/11 was a subsequent offence, the learned magistrate, absent special circumstances, was obliged to disqualify the applicant for a minimum period of two years. I take him to have done so, effectively adding no more to the minimum period of disqualification imposed by the notice on the applicant. I do not take his Honour to have intended that there was to be an additional two years disqualification over and above the applicable minimum on complaint 1434/11.

1. I need also to refer to the Vehicle and Traffic Act 1999, s17(4)(b), which provides:

"(4)     A disqualification imposed by a court under this or any other Act, and a related licence suspension or cancellation imposed by the court, takes effect as follows:

(a)       …..

(b)if the convicted person is subject to a current period of disqualification, licence suspension or ineligibility to hold a driver licence as a result of the accumulation of demerit points – at the end of that period unless the court fixes an earlier or later time."

1. In the absence of any indication from the learned magistrate as to anything different, the effect of the above provisions is that, save and except where otherwise stated, the period of disqualification imposed as a consequence of the corrected July 2011 sentence and the excessive drink driving notice would commence at the expiry of the period of disqualification imposed in November 2010.  In practical terms, the applicant was disqualified to November 2020.

1. The issue on this hearing is, taking into account the applicant's status at the time of sentence, was the period of disqualification imposed by the learned magistrate manifestly excessive?

The applicant's offending history

1. The applicant was 23 years old at the time of sentence. He already had a number of driving related convictions. These were as follows:

26 June 2003

On 13 March 2003 when he was 14 years old, the applicant committed a drink driving offence. On 26 June, he was, as a consequence, convicted of one count of being a driver with no licence driving with alcohol in his body. He was ordered to serve a period of six months disqualification. A second charge of driving unlicensed was dismissed under the provisions of the Youth Justice Act 1997.

1 May 2008

On this occasion, the applicant was convicted of two groups of driving offences. The first group occurred on 27 November 2007, and the second on 10 January 2008. The first group of offences contained the following:

·     Learner driver driving unaccompanied

·     Using an unregistered motor vehicle

·     Using a motor vehicle with no premium cover

·     Drive at night without taillights

The second group of offences contained the following:

·     Driving a vehicle while exceeding the prescribed alcohol limit (.092)

·     Driver with no licence with alcohol in the body

·     Using an unregistered vehicle

·     Using a motor vehicle with no premium cover

·     Learner driver driving unaccompanied

There was also a count of fail to appear on 3 March 2008 dealt with on the same day. The applicant was convicted of all offences and fined. He was also disqualified from driving for eight months.

12 November 2008

On 11 January 2008, that is the day after earlier similar offending for which the applicant was convicted in May 2008, the applicant committed a further offence pursuant to the RSAD Act. He stole a car and drove it when he was disqualified. In respect of that offending, he was ordered to perform community service and no period of disqualification was imposed.

Also on 12 November, the applicant was convicted of other offences which had occurred in August and September 2008. These were mainly offences of violence and public disorder, although there were breaches of bail and a minor drug offence. The applicant was ordered to serve a partially suspended term of imprisonment, placed on probation and ordered to perform community service.

15 November 2010

On this date, the applicant was dealt with in respect of two groups of driving-related offences which occurred on the same day, namely 17 June 2010. On one occasion, he committed the offences of being an unaccompanied learner, driving a vehicle while exceeding the prescribed alcohol limit with a reading of .162, using an unregistered vehicle, using a motor vehicle with no premium cover, and being a person mentioned in s6(3).

On the other occasion he was intercepted, he was charged with driving whilst disqualified, driving a vehicle while exceeding the prescribed alcohol limit with a reading of .059, being a driver with no licence with alcohol in the body, using an unregistered vehicle, using a motor vehicle with no premium cover, and dishonestly alter or display a document in a way calculated to deceive.

The applicant was sentenced to serve three months imprisonment which was wholly suspended, and disqualified from driving for four years.

1. It follows that, having been convicted and disqualified from driving for a lengthy period on 15 November 2010, the applicant re-offended just under three months later.

1. The applicant's offending on some of the occasions which have resulted in court appearances has not been what might be described as routine. The charges arising from the incident on 26 September 2009 involved the applicant in "hooning" in a street in Devonport.  As a consequence of swerving the vehicle being driven to avoid parked cars and onlookers, the applicant rolled the vehicle a number of times. He was found to have a level of alcohol over three times the legal limit and delta-9-tetrahydocannabinol in his blood. There was no excessive drink driving notice issued on this occasion, notwithstanding the applicant's high blood alcohol level.

1. On 13 February 2011, the applicant was caught driving at a speed of 95 kilometres per hour in a 60 kilometres per hour zone. On that occasion he admitted he had been drinking and said he was taking his 16 year old brother home. He was found to have a blood alcohol level of .157 at the time. On this occasion, the applicant was issued with an excessive drink driving notice.

1. It is clear the applicant, at the time he was sentenced by Magistrate Mollard, had demonstrated repeatedly a complete disregard for the requirements of drink driving and vehicle and traffic legislation, and that penalties designed to act as a deterrent had had no effect whatsoever. The learned magistrate made it clear that he realised he may have imposed a very lengthy period of disqualification, but had done so quite deliberately. Given the applicant's record and continuing bad driving behaviour, I can well understand why his Honour did what he did.

Factors put in mitigation

1. The applicant was living with his mother and pregnant girlfriend. He was unemployed and in receipt of Centrelink benefits. His parents had separated when he was about seven years old. He moved back and forth between them and was homeless at times. As an adult he had moved between the homes of various relatives for short periods at a time. Despite this, he was able to complete schooling to year 11 at Kingston and Huonville High Schools. On leaving school, he did various jobs with the Tasmanian Aboriginal Centre. He did six months training with Green Corps and completed a certificate in land management and first aid at TAFE. He was exposed to drug use at a young age and cannabis use became a feature of his life. He has significantly reduced his consumption. He also went through a stage of binge drinking and suffered from depression.

1. The learned magistrate noted, before counsel for the applicant even completed his plea in mitigation, that the applicant was looking depressed. His Honour brought the proceedings to a halt, and organised for a mental health liaison officer to see the applicant. As a consequence, the proceedings were adjourned and a forensic mental health report was obtained. The author of the report interviewed the applicant and determined he was suffering from a mild form of depression. Dr Jordan said the applicant's description of his circumstances indicated a pattern of this for at least two years, and said there was evidence of poor concentration, low esteem and transient feelings of hopelessness. He noted however that the significance of the applicant's misuse of both alcohol and cannabis needed to be considered because they could contribute to a lowering of mood.

Comments on passing sentence

1. The learned magistrate determined there was a very strong need to impose a sentence designed to deter the applicant, notwithstanding the contents of the forensic mental health report. He also noted however that he had to balance that against the contents of the report. His Honour emphasised the use of the word "safety" in the legislation pursuant to which the applicant was to be sentenced, and said that the applicant's behaviour had been so bad and so persistent that the public was entitled to see a sentence imposed which would guarantee it would be safe for a significant period of time. He also noted he hoped any sentence would be something the applicant would learn from.

Discussion

1. The submissions by counsel for the applicant commenced with the proposition that a period of six years disqualification in itself was manifestly excessive, but that the sentence of disqualification was even more so having regard to the disqualification already being served at the time of sentence. Counsel referred to a portion of the text, Warner, K, Sentencing in Tasmania, 2^nd ed, The Federation Press, Sydney, 2002, at 170, where the learned author, under the heading "Length of disqualification", summarised the impact of a number of cases in which arguments about the excessive length of periods of disqualification had been dealt with. She said, starting at par6.318,:

"Courts have warned against very long periods of disqualification on the grounds that they discourage rehabilitation.  In Wise, the Court of Criminal appeal reduced a 15-year disqualification period to five years in a case of dangerous driving when a 21-month period of imprisonment was also imposed.  Crisp J stated:

To add to that a penalty of fifteen years deprivation of a licence to drive, savours to me excessively of retribution and is likely I think to be unduly restrictive of the offender's future rehabilitation and possible reception into society.

Wise was applied in Nation v Carrick where Everett J set aside three periods of disqualification of four years, to be served cumulatively, and substituted three 18-month periods.  In O'Brien, a case of 'motor manslaughter', the Court of Criminal Appeal confirmed an order for disqualification from holding a driver's licence for three years while substituting a sentence of 12 months imprisonment for one of four months.  Wright J stated the disqualification period was entirely appropriate and added:

It was recognised in Wise v The Queen (supra) that an excessively long suspension smacks of retribution and may hinder rehabilitation.  I would also add that an unreasonably long suspension tends to encourage the commission by the offender of the further serious offence of driving whilst disqualified.

6.319   In Jarvis v Brown, Evans J agreed that long periods of disqualification may be counter-productive.  He stated:  'Where an offender has not exhausted the Court's hopes for his or her reform, where possible, the period should encourage reform'.  He reduced a disqualification period of 16 years to six years for three occasions of drink driving over a four-month period where the offender had four prior convictions for such offences.  In the case of recidivists he suggested very long periods are not more effective than shorter period because 'they are likely to reoffend early in the period of their disqualification and be saddled with the consequences of their behaviour'.  These comments were cited in Peck v Visser where Wright J reiterated the concern he had expressed in O'Brien that long periods of disqualification have a tendency to increase non-compliance with the courts orders.  He reduced an eight-year period of disqualification, which was on top of six years previously ordered, by making the periods partly concurrent even though the offender was a confirmed recidivist who had committed drink-driving offences on 10 separate occasions over 15 years.  The policy that periods of disqualification should not be so long as to invite the commission of further offences or hinder rehabilitation applies only to long periods of disqualification, particularly periods which extend long after the offender's release from custody."

1. Counsel then briefly referred to a number of the cases referred to by Professor Warner and added to the list, Hunter v White [2002] TASSC 72 and Williams v McLaughlin [2000] TASSC 29. In both these cases, lengthy periods of disqualification were reduced. In Hunter's case, Cox CJ referred to Jarvis v Brown 120/1998, a decision of Evans J and quoted a passage:

"See also Nation v Carrick A7/1983 (Everett J); O'Brien v R A43/1987 (CCA) and Jarvis v Brown 120/1998, where Evans J said, at page 5:

'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.'

The period of 16 years' disqualification in that case was reduced to six years for three instances of drink driving with high readings by a person with four prior such convictions, but who had shown some slight signs of reform which his first sentence of actual imprisonment might be expected to encourage."

1. In the present case, the court was dealing with a young man who had a bad driving record, although it must be said it was not as bad as some described in the cases referred to above. He was, at the time of sentence, clearly in need of psychological assistance and had been for about two years before. He had in the past shown little inclination to change his ways. However, his personal circumstances were such that he was to become a father for the first time, he had been in custody for some months and would stay there for another two, and on release he would be the subject of a suspended sentence. A forensic mental health report also indicated an awareness of the problems being caused by excessive alcohol and cannabis use.

1. The court was also dealing with a young man who was already disqualified through to 2016 by reason of the November 2010 sentence and the excessive drink driving notice. Because the drink driving offences on complaints 50141/10 and 1434/11 were both subsequent offences for the purpose of the imposition of penalties by reference to the table in the RSAD Act, s17, and the minimum period of disqualification applicable to each was two years, the learned magistrate was to an extent constrained as far as the lower level of the range of penalties of disqualification he could impose. It is clear from his Honour's comments in respect of complaint 1434/11 that he imposed that minimum period of disqualification, thereby confirming the disqualification imposed by virtue of the excessive drink driving notice. As to the penalty imposed on complaint 50141/10, his Honour sentenced globally and it can only be inferred that his starting point with that complaint was again another two year minimum period of disqualification.

1. There is no doubt the applicant deserved a lengthy period of disqualification for his conduct. The question is, in the context of this young man's circumstances, should a period of six years be considered to be manifestly excessive? I am of the view that it should be, having regard to the applicant's age, his personal circumstances, the time actually spent in custody, the suspended sentence, and the period of disqualification already in place. Having said that, any sentence needed to ensure the system of minimum mandatory penalties for certain offences under the RSAD Act was not undermined and that penalties be seen to provide adequately for the protection of the public. I am of the view that a period of four years disqualification in all would address those needs.

1. To achieve that end, the orders of the Court are:

1         That the notice to review dated 28 July 2011 is allowed.

2That the order of disqualification made by the learned magistrate on complaint 50141/10 in respect of counts 1, 2 and 4 is quashed and in its place, the applicant, in respect of count 4 is ordered to be the subject of a period of two years disqualification and in respect of count 1 a period of 12 months disqualification with the latter period to be served concurrently with the former.

3That the orders of disqualification imposed by the learned magistrate in respect of complaints 7905/10 and 1437/11 be varied so as to provide that the periods of disqualification are to operate concurrently with that imposed on complaint 50141/10.

1. There is no need in the circumstances to deal with the second ground of the notice to review as a distinct ground.