Tunks v Taws
[2003] TASSC 58
•4 July 2003
[2003] TASSC 58
CITATION: Tunks v Taws [2003] TASSC 58
PARTIES: TUNKS, Stephen Andrew
v
TAWS, Acting Sergeant Jayson
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 18/2003
DELIVERED ON: 4 July 2003
DELIVERED AT: Launceston
HEARING DATE/S: 30 June 2003
JUDGMENT OF: Crawford J
CATCHWORDS:
Traffic Law - Licensing of drivers - Tasmania - Disqualification, and cancellation and suspension of licences - Disqualification - Multiple offences - 37 year old recidivist traffic offender - Lengthy record of similar traffic offences - Driving while disqualified and in breach of blood alcohol law - Disqualified from holding or obtaining a driver's licence for six years - Whether excessive.
Wise v R [1965] Tas SR 196; R v O'Brien A43/1987; Jarvis v Brown 120/1998, referred to.
Aus Dig Traffic Law [26]
REPRESENTATION:
Counsel:
Applicant: R L Holder
Respondent: P Sherriff
Solicitors:
Applicant: Archer Bushby
Respondent: Director of Public Prosecutions
Judgment ID Number: [2003] TASSC 58
Number of paragraphs:
Serial No 58/2003
File No LCA 18/2003
STEPHEN ANDREW TUNKS v ACTING SERGEANT JAYSON TAWS
REASONS FOR JUDGMENT CRAWFORD J
4 July 2003
The applicant pleaded guilty before a magistrate to three offences committed on 16 January 2003 on Poatina Road. The offences were driving while disqualified under the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), contrary to s19A(1), driving a vehicle on a public street while under the influence of intoxicating liquor to such an extent as to be incapable of having proper control of the vehicle, contrary to s4(a), and not being the holder of a licence, driving a vehicle on a public street while alcohol was present in his body, namely 0.235 grams of alcohol in 100 millilitres of blood, contrary to s6(2). He was convicted and sentenced to nine months imprisonment and disqualified from holding or obtaining a driver's licence for a period of six years commencing at the expiration of any period of disqualification to which he was liable. He moved this Court to review the penalties on the ground that they were manifestly excessive.
The facts were that a member of the public reported to police that a motor vehicle was being driven up the Poatina hill towards the lakes. The driver appeared to be drunk and was all over the road. Young children were in the vehicle. At 7.10 pm a constable intercepted it. The applicant was the driver and he had two children with him, aged four and six years. His eyes were bloodshot and his walk, although reasonably steady, was obviously affected by alcohol. He smelled strongly of intoxicating liquor and his speech was slurred. He admitted to being a disqualified driver. He was taken to Launceston where a blood alcohol reading of .235 was obtained.
He was 37 years old. He had a very bad record of convictions for offences against the Act. On 17 August 1984, he was convicted of exceeding .05 (.07), and fined $150 and four demerit points were imposed. On 5 September 1986, he was convicted of exceeding .05 (.11) on 20 February 1986 and was fined $250 and disqualified for six months. On the same day, he was convicted of exceeding .05 (.19) on 24 April 1986. Two months imprisonment was suspended, a 12 month probation order was made and he was disqualified for nine months cumulatively. Again, on the same day, he was convicted of exceeding .05 (.10) on 10 July 1986. Two months imprisonment was suspended for 3 years and he was disqualified for 9 months cumulatively. On 20 May 1988, he was convicted of driving while disqualified under the Act and one month's imprisonment was suspended for three years. He was also convicted of exceeding .05 (.15) and was sentenced to six months imprisonment, similarly suspended, and disqualified for 42 months cumulatively. He was also convicted of negligent driving and fined $150. For breach of their conditions, the two suspended sentences of imprisonment imposed on 5 September 1986, were ordered to take effect cumulatively, a total of four months imprisonment.
On 19 September 1994, he was convicted of exceeding .05 (.166) on 4 December 1993, and was sentenced to four months imprisonment wholly suspended for three years, fined $2,000 and disqualified for three years. For hindering his conveyance he was fined $250, placed on a probation order for two years and disqualified for three months concurrently.
On 27 March 1998, he was convicted of driving on 7 December 1997, with alcohol in his body without authority (.18) and was sentenced to four months imprisonment wholly suspended on condition he commit no offence under the Act for three years. He was also fined $3,000 and disqualified for three years. At that time he was an unlicensed driver.
On 15 June 1998, he was convicted of driving while disqualified on 11 June and of exceeding .05 (.164). For driving while disqualified, he was sentenced to two months imprisonment and was disqualified for 12 months. For exceeding .05, he was sentenced to six months imprisonment but it was wholly suspended on condition that he commit no offence under the Act for three years, and he was disqualified for three years concurrently with the first period of disqualification, but it was expressed to commence at the expiration of any disqualification to which he was then liable. Because he had breached the condition of suspended imprisonment that was ordered on 27 March 1998, it was ordered that the suspended sentence of four months imprisonment take effect.
Over the years since 1982, when he was 16 years old, he has committed many other offences such as five counts of assault, four counts of drunk and disorderly or disorderly conduct, three counts of having or consuming liquor in a public place, two counts of resisting a police officer, three counts of trespass, three counts of destroying or injuring property, abusive language, carrying a gun when under the influence of alcohol and possessing a loaded gun in a public place. In 1993 he was imprisoned for the firearm offences and sentenced to suspended imprisonment for assault and destroying property. Since last being sentenced to prison for offences under the Act in June 1998, his only offences of any significance were dealt with on 5 April 2000, when for two counts of assault, one count of trespass and one count of contravening the conditions of a notice, he was sentenced to eight weeks imprisonment all of which was suspended on condition that he be of good behaviour for three years and on a charge of assault he was sentenced to four weeks imprisonment, all of which was suspended on condition he be of good behaviour and commit no offence of violence for three years. It is arguable that by committing the offences which are the subject of the motion to review, he breached the condition of good behaviour.
A long plea in mitigation was made on behalf of the applicant. It included the following. He was a single man aged 37 years. He resided at George Town and had the sole care of two boys, aged four and six. About 12 months earlier his house was destroyed by fire and he lost all of his possessions. His younger son suffered burns in the fire. The applicant was very shaken up by the experience. More recently he had been prescribed Valium and sleeping tablets because of recurring nightmares and thoughts about the fire. He stopped taking the sleeping tablets some weeks before the offences, because he was concerned that he would not wake if another fire occurred. He had not slept well for a number of weeks and felt exhausted and emotionally wrung out. His mother died three months before the offences.
His children were on school holidays when he committed the offences. His counsel said that they were demanding to see their grandfather and step-grandmother, who lived in the Arthurs Lake area, and he intended to take them there. When and how was not explained. He was a disqualified driver. On the morning of the offences, male acquaintances arrived unexpectedly at his home with alcohol to cheer him up. They all started drinking. He was enjoying a day with his mates. However, after a number of hours drinking, he started to feel depressed and became bothered by the continuing presence of his friends. They did not leave when he asked them and he decided he needed space. His children were upset and he impulsively decided to take them to the grandparents home to get away from his mates and to obtain peace and quiet. He therefore left his mates at his house and drove away with his sons for Arthurs Lake, driving a vehicle that he said had been left at his home for a cousin's use. It is fair to assume that he was intending to drive for at least two hours and that he was substantially affected by alcohol.
It was submitted that notwithstanding his long record for similar offences, he had done much to reform since being released from prison in late 1998. Prior to that imprisonment, he had been drinking large quantities of alcohol, almost every day. After his release he sought help with counselling from drug and alcohol services. Since then he had "significantly curbed" his consumption. Counsel said that he usually only drank twice a week and then in small quantities. He drank only once a week in a hotel, for no longer than two hours. Following his convictions in 2000 for assaulting his ex-partner, he underwent anger management counselling which he found was "of a significant benefit".
About two or three weeks after coming out of prison in 1998, he became the sole custodian of his children and had been their sole carer since. Their mother provided no help and had no contact with them. Initially he and the boys lived with his parents at Arthurs Lake, but when the older child became of school age it was necessary to move. He was in receipt of a single parent pension. His care of his sons had caused an "attitudinal change", according to counsel.
The learned magistrate was informed that upon imprisonment, the children would go into departmental care and the applicant would "lose his house".
In his comments on passing sentence, the learned magistrate said:
"On my reckoning, Mr Tunks, this particular offence or series of offences was derived from your act of driving on this particular occasion, the breathalyser reading is your tenth offence - it goes back for a long time and it seems to me that, on the face of it, it's the worst offence of it's kind that you've yet committed, involving driving under the influence. Over a long period of time you've received many periods of disqualification, periods of imprisonment which have been suspended, and terms of suspended imprisonment that's been imposed upon you. On the last occasion when you appeared before these courts in 1998 for a series of breathalyser offences you were given terms of imprisonment that were suspended and a term of imprisonment which had previously been suspended was implemented and you were disqualified for a considerable period of time.
Be that as it may on this occasion you not only placed at risk your own life and that of your children and others as I note that the manner of your driving was brought to the attention of the police by a member of the driving public, but the very basis of the sentencing in this jurisdiction of disqualification and imprisonment, seems not to bear upon your mind when you embarked upon this act of driving. Now I do understand from what your counsel said on your behalf that this was an impulsive act of driving and it wasn't a deliberate act of getting drunk and then with the intention to drive. But the two actions were divorced, although the inference is inescapable that having consumed so much liquor as you did on this occasion, all thoughts of your overriding responsibility to the members of the public, yourself and your own family seem to have left you. And I do understand that the circumstances in which these offences took place, namely the death of your mother, the destruction of your house and also the risk of injury or death to your son and that you are being nagged and nagged by your children to be taken to their grandparents.
In all the circumstances your act of driving is one which requires a condign penalty to deter you and others from committing these kind of offences and in all the circumstances a term of imprisonment is called for, a considerable term of imprisonment. There is a gap of almost five years between the previous disqualification and penalties and these offences. But I can't give much weight to that gap as you weren't supposed to be driving a motor vehicle at all during that period. But still I think it gives weight to what your counsel has put on your behalf that this act of driving was really the product of those circumstances which were bearing upon you. And had it not been for those circumstances I would have imposed upon you a term of imprisonment which was a lot longer than I'm going to impose upon you on this occasion.
I propose to deal with you by way of global penalty on the remaining charges on the complaint, you're convicted on those. You are sentenced to nine months' imprisonment and you're disqualified from holding or obtaining a driver's licence for a period of six years and that's to commence at the expiration of any period of disqualification that you are now serving or liable to serve ..."
By the Act, s17, the prescribed penalty for a second or subsequent offence of driving under the influence of intoxicating liquor, in a case of a blood alcohol reading of 0.15 or more, was a fine of between $1,000 and $6,000, imprisonment for 24 months and disqualification for between 2 years and 6 years. The same penalty was prescribed for the offence of having alcohol in his body when not the holder of a driver's licence, in the case of a blood alcohol reading of 0.15 or more. For a second or subsequent offence of driving whilst disqualified under the Act, and this was his third such offence, the prescribed penalty was a fine not exceeding $8,000, imprisonment not exceeding 12 months and further disqualification for a period not exceeding five years. Although the six year period of disqualification imposed on the complaint for the three offences, was greater than the maximum permitted for driving while disqualified, it did not offend the Act because of the Sentencing Act 1997, s11(2), that authorised a penalty of the sum of the maximum penalties for the offences.
The learned magistrate noted that "the breathalyser reading is your tenth offence" and said that he took account of the gap of almost five years since the applicant had last offended under the Act. At the age of only 37 years, and over a period of 19 years, he had in fact committed 14 offences under the Act on nine different occasions. For his offences on all except the first two occasions, he was sentenced to imprisonment. Some of the imprisonment had been suspended but three of the suspended sentences of imprisonment were activated for breaches of conditions. On this ninth occasion, imprisonment was plainly demanded for a relatively substantial period of time. There was a two year gap between the first and second occasions and between the fourth and fifth occasions, a five year gap between the fifth and sixth occasions, a four gap between the sixth and seventh occasions and a four and a half year gap between the eighth and last occasions. The submission of his counsel that the last gap was a significant one and demonstrated reform has little weight when regard is had to that history.
Much has been said by judges and magistrates about the evil of drinking and driving and the need for condign punishment. A number of judicial statements were collected by Blow J in Nunn v Stocks [2001] TASSC 52. It is the duty of the courts to recognise Parliament's intention and punish persistent and serious transgressions to a degree which, depending on the facts of the case, will recognise the maximum penalties determined by Parliament. Booth v Breen [1980] Tas SR 277 (NC4), unreported 10/1980. "The clear legislative intent … is to treat the driving of motor vehicles by persons affected by the consumption of intoxicating liquor as a grave social evil which is to be visited with penalties severe enough to act as a general deterrent and a personal deterrent to the particular offender. … Whilst Parliament has stopped short of providing for the mandatory imposition of terms of imprisonment, even in the case of persistent offenders, the imposition of terms of imprisonment ought not to be reserved for extraordinary cases". Briant v Bessell (1994) 74 A Crim R 204 at 208.
Whilst much of his counsel's plea in mitigation excites pity for the applicant, and it is his obvious alcoholism which is the a real blight on his life, along with his inability to adequately deal with it, he and others who cannot inhibit their excessive drinking, must expect to suffer severe punishment as an example to others and as a deterrent to themselves, if they repeatedly choose to drive after drinking sessions. They constitute a substantial danger to the public when they do so.
In this case, the applicant's driving after imbibing a great amount of alcohol, extended for a prolonged period and distance. Not only did he endanger the public, but he put the life and limb of his children at risk and he now seeks to rely on his undoubted duty to care for his children, as a significant mitigatory factor. To extend special leniency to him in such circumstances would offend the general principle that hardship to others should be disregarded, other than in exceptional cases. See for example R v Wirth (1976) 14 SASR 291 at 294, 296; Boyle (1987) 34 A Crim R 202; Wayne v R (1992) 62 A Crim R 1. This is not an exceptional case warranting leniency, having particular regard to his shocking record and the fact that he knew full well that it was his responsibility not to offend, not only in the interests of the public but also in the interests of his children.
In my view the sentence of nine months imprisonment was deserved. It was certainly not excessive. It was less than half the prescribed maximum for the drink driving offences and when account is taken that he drove in breach of a court's disqualifying order, it was plainly justified. The amount of alcohol in his body when he was tested, no doubt long after he had left George Town, was over four times the limit for a fully licensed driver. Having regard to his record, substantial imprisonment was demanded.
Counsel for the respondent conceded that the period of disqualification was the maximum that was authorised by the Act. However, I do not think that is correct. The maximum periods of disqualification prescribed for the three offences were six years for driving under the influence, six years for having alcohol in his body and five years for driving while disqualified. Having regard to the Sentencing Act, s11(2), the learned magistrate was entitled to treat the maximum period of disqualification as being the sum of the maximum for each of the offences. However, at the same time, his Worship was obliged not to punish the applicant twice arising out of his driving with intoxicating liquor in him, and so for practical purposes, the maximum period of disqualification that was open under the legislation was 11 years.
At the time of the sentence, the applicant was already subject to a disqualification order made on 15 June 1998. It was for three years, but it was also expressed to commence at the expiration of any disqualification he was then serving or liable to serve. Earlier that year it was ordered that he be disqualified for 3 years from 27 March 1998. It therefore followed, that the six year disqualification imposed by the learned magistrate in this case on 2 May 2003, will not commence to operate until 27 March 2004.
Counsel for the applicant referred to a number of authorities concerning the question of excessive periods of disqualification. For example, in Wise v R [1965] Tas SR 196 at 204, Crisp J when dealing with a disqualification for 15 years, thought that it savoured excessively of retribution and that it was likely to be unduly restrictive of the offender's future rehabilitation and possible reception into society. To those remarks, it was added by Wright J in R v O'Brien A43/1987 at 8, that an unreasonably long suspension tends to encourage the commission by the offender of driving while disqualified. Those cases, and Nation v Carrick A7/1983, were referred to by Evans J in Jarvis v Brown 120/1998 and 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 reforms, where possible, the period of disqualification should encourage reform."
Since the first occasion when a court ordered that the applicant was disqualified from holding a licence, on 5 September, 1986, when he was aged 21 years, until today, there have been only two relatively brief periods when he was not disqualified by court order, that is between 5 March 1992 and 18 September 1994 and between 19 September 1997 and 26 March 1998, a total of three years out of almost 17 years. Being disqualified from holding a driver's licence has been a virtual state of life for him. It has happened because of his inability to curb his drinking and to keep off the road after it. He has shown that he cannot be trusted in that regard. By re-offending in such a serious way, a long period of further disqualification was demanded. Parliament has prescribed 6 years as the maximum period for a single offence. He was dealt with for more than a single offence. I am unpersuaded that the order for disqualification, when considered in conjunction with the sentence of imprisonment, breached the principles to which I have referred or that it was manifestly excessive. Consistent with those principles, the learned magistrate had a duty to the public to impose condign punishment and a measure of protection against the applicant similarly offending.
By ordering the applicant's disqualification for a further period of 6 years, it can be hoped that he will be discouraged from owning or possessing a motor vehicle and particularly from using one. If after that period, he is able to demonstrate that he is a fit person to hold a licence, then he may be able to obtain one and to lawfully drive. It is an onus he will need to discharge when the time comes. For the present time, and for the foreseeable future, he deserves to be regarded as a menace to society so far as his drinking and driving is concerned. The long period of disqualification was justified in the circumstances.
The motion to review will be dismissed.
3
2
0