Tlung v Moore

[2018] TASSC 58

[2018] TASSC 58

COURT:                   SUPREME COURT OF TASMANIA

CITATION:              Tlung v Moore [2018] TASSC 58

PARTIES:  TLUNG, Rung Lian Thang Bawi
  v
  MOORE, Luke (Senior Sergeant)

FILE NO:  2313/2018
DELIVERED ON:  1 November 2018
DELIVERED AT:  Launceston
HEARING DATE:  1 November 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Traffic Law – Offences – Particular offences – Tasmania – Driving with more than prescribed concentration of alcohol in breath or blood – Sentence and penalty – Whether term of actual imprisonment was manifestly excessive – Strong emphasis to be placed on general deterrence and personal deterrence – Sentence not manifestly excessive.

Aust Dig Traffic Law [1158]

REPRESENTATION:

Counsel:
           Applicant:  M Doyle
           Respondent:  S Thompson
Solicitors:
           Applicant:  Clarke & Gee Lawyers
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2018] TASSC 58
Number of paragraphs:  13

Serial No 58/2018

File No 2313/2018

RUNG LIAN THANG BAWI TLUNG v SENIOR SERGEANT LUKE MOORE

REASONS FOR JUDGMENT  BRETT J

1 November 2018

1. On 14 August 2018, the applicant pleaded guilty to three charges arising from his act of driving a motor vehicle on 29 July 2017.  The charges were that he had driven the motor vehicle while exceeding the prescribed alcohol limit, with a reading of .244 grams of alcohol per 100 litres of breath, that he did so when he was not the holder of a driver licence, and finally, that at the relevant time he was disqualified from driving, pursuant to the Road Safety (Alcohol and Drugs) Act 1970. After hearing the facts and a plea in mitigation, Magistrate Stanton proceeded immediately to sentence. The applicant was convicted of the charges of drive while disqualified and driving with alcohol in the body when not the holder of a driver licence. The driving while exceeding the blood alcohol limit offence was held to be subsumed into the latter charge. His Honour imposed a sentence of three months' imprisonment, two months of which was suspended for two years on conditions that the applicant was to commit no further offence punishable by imprisonment, and comply with the terms of a probation order. The probation period extended for a period of 18 months. The applicant was also disqualified from driving for a period of three years.

2. The applicant now moves this Court to review the sentence.  The sole ground of review is that the sentence is manifestly excessive. 

3. The facts presented by the prosecution were not contested by the applicant.  Police intercepted the applicant's vehicle at 8pm on the relevant day near a supermarket in Launceston. The applicant was driving, and had one male passenger.  The applicant told police that he knew that his licence was disqualified.  He also said that he had been drinking at a nearby hotel with friends, commencing around 6 or 7pm.  He conceded that during the intervening period he had consumed two shots of tequila and four glasses of beer.  He said he tried to catch a taxi, but none were available and, accordingly, he decided to drive.  He was made subject to an excessive drink-driving notice from that date.

4. The magistrate was informed of the following personal circumstances of the applicant. He is 29 years of age.  He was born in Burma and admitted to this country as a refugee.  He has been in Tasmania for approximately 10 years.  He is in a stable relationship and full-time employment.  He is actively involved in the Burmese community, and often performs volunteer work within that community.  He is well regarded, both within his community and by his employer.

5. His Honour was also provided with a record of the applicant's prior convictions. Those convictions suggest a propensity for, at least, drink-driving and driving contrary to laws relating to the need to hold a driver licence.  On 5 May 2011, the applicant was convicted of three charges, each committed on a separate day, of driving with alcohol in his body while not holding a driver licence.  The dates of the offences and relevant readings were: 15 October 2010, a reading of .101, 6 November 2010, a reading of .088, and 10 November 2010, a reading of 0.13.  He was also convicted of driving whilst disqualified on 10 November 2010.  The applicant was fined, required to perform community service, and subjected to a lengthy driving disqualification.  On 9 March 2017, he was convicted of one count of driving a motor vehicle while exceeding the prescribed alcohol limit, this time with a reading of .102.  The offence had been committed on 8 November 2016.  He was again required to perform community service, and was made the subject of a probation order.  He was also disqualified from driving for a period of 15 months commencing on 20 April 2017.  He committed the offences in the case before me, which included driving in contravention of that order of disqualification, less than five months after the imposition of that sentence.

6. The charges to which the applicant had pleaded guilty were extremely serious.  Drink-driving is a grave social problem, which creates immediate and serious danger to other road users, as well as the perpetrator and any passenger of his or her vehicle.  The reading in this case was extremely high, almost five times the legal limit.  Of course, because of the extant disqualification, the applicant was not entitled to drive a motor vehicle at all and, in any event, if he did, was not permitted to have any alcohol in his body whatsoever.  The offence of driving whilst disqualified is also a serious matter.  Orders of disqualification are imposed as a penalty for other serious driving offences.  In this case, the disqualification had been imposed for another offence of drink-driving, a relevantly short time before these offences were committed. The commission of the offence of driving whilst disqualified undermines the punitive and deterrent effect of the order, and is consistent with the defiance of the lawful authority of the Court. 

7. There were some other features of the offending in this case, apart from the reading, which aggravated its objective seriousness.  While it is true, as the learned magistrate observed, that the applicant's manner of driving did not bring his vehicle to the attention of the police, he was driving with an extremely high alcohol reading through a built-up urban area at a time when it could be expected that there would be numerous vehicles and other road users in the vicinity. He also had a passenger in his car. It is reasonable to infer that, with that level of alcohol in his body, he was highly unlikely to be capable of safely controlling his motor vehicle.

8. For all of these reasons, general deterrence was a significant sentencing consideration in this case. Further, there was a clear need to place considerable emphasis on personal deterrence. The applicant had demonstrated a propensity to ignore drink-driving laws and orders of disqualification. He also displayed an appalling lack of insight into the serious danger attendant upon his conduct, and in respect of the need to comply with relevant driving laws. The offences for which he was being sentenced constituted his fifth serious drink-driving offence and his second offence of disqualified driving.  Further, the circumstances in which he drove, that is, without any real need to do so, and after consuming a very substantial amount of alcohol in a short period of time, were also consistent with a lack of insight and need for personal deterrence.   

9. It was submitted on behalf of the applicant that the gap in offending between 2010 and 2016 is significant with respect to sentence. A gap in offending is often put forward in drink-driving cases as a significant mitigatory consideration. In appropriate cases, it may be an indication of true reform and insight, particularly if there has been a lengthy gap and the offence occurs in circumstances which suggest an aberration of conduct. However, even in that situation, the mitigatory effect of that circumstance must be placed into proper context and balanced against the other sentencing considerations, including the objective seriousness of the offending and the need for denunciation and deterrence. In this case, I think the gap in offending has little significance. The fact that the applicant had been recently dealt with for a drink-driving charge with a reading that was high enough to exclude mistake, and the circumstances of this case which involved driving with a very high reading for no pressing reason, other than his own convenience, and in defiance of an order of disqualification imposed for the earlier offence, established that the offending in question was not the aberrant conduct of an otherwise reformed person. Past sentencing orders and the potential loss of employment had not been sufficient to deter the applicant from repeating and escalating his conduct. A severe sentence was called for to bring home to him in unmistakeable terms the unacceptable nature of this conduct.

10. The applicant's counsel submitted to the magistrate that an appropriate sentencing alternative was the complete suspension of the period of imprisonment. It was submitted that if he was imprisoned he would also most certainly lose his employment as a farm labourer.  Whilst this was a matter which the learned magistrate was required to, and it appears did, take into account, it was not a matter of significance when balanced against the serious aspects of the case.  The applicant, by his conduct, had put his own employment in jeopardy.  The potential loss of that employment was a clearly foreseeable and unexceptional consequence of his conduct. It is not a matter that provides any significant mitigation.

11. Finally, it was submitted that the sentence did not adequately emphasise rehabilitation. It is not entirely clear to me what it was suggested that the applicant needed to be rehabilitated from. In all respects other than the driving conduct in question, the applicant was a person of good character. His problem was that he had a tendency to defy the law by driving after drinking and when disqualified. The commission of these offences involved conscious and deliberate decision making. In these circumstances, personal deterrence was likely to be a more important consideration than rehabilitation. I note that the applicant had committed these offences despite rehabilitative options being employed in past sentencing orders. In any event, the sentence addressed rehabilitation. His Honour suspended two months of the sentence and provided for probation. In my view, this more than adequately addressed this question. Further, in the circumstances of this case, the potential loss of employment was not likely to have any relevant consequence on the question of rehabilitation. On the contrary, it would be a consequence which might assist in bringing home to the applicant the seriousness of his conduct, and hence achieve some positive modification of his future behaviour.

12. Having regard to all relevant considerations, I regard the sentence imposed by the learned magistrate as relatively lenient and merciful. I am of this opinion, after taking into account the overall punitive effect of the sentence, including the driving disqualification and the fact that the applicant had spent three days in custody prior to sentence.  In my view, a sentence which involved a longer head sentence, with or without suspension, would have been well within the ambit of the magistrate's sentencing discretion.  I am satisfied that the sentence actually imposed was certainly so.  The sentence was not manifestly excessive and demonstrates no error in the exercise of the sentencing discretion.

13. The motion is dismissed.