Van Der Veer v Lane
[2012] TASSC 10
•26 March 2012
[2012] TASSC 10
COURT: SUPREME COURT OF TASMANIA
CITATION: Van Der Veer v Lane [2012] TASSC 10
PARTIES: VAN DER VEER, Gary Andrew
v
LANE, Richard (Sergeant)
FILE NO/S: 1140/2011
DELIVERED ON: 26 March 2012
DELIVERED AT: Hobart
HEARING DATE: 13 March 2012
JUDGMENT OF: Porter J
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive – Lengthy period of disqualification for breathalyser offence and two other traffic offences arising out of one act of driving – Statutory maximum for breathalyser offence – Whether statutory maximum wrongly adopted – Whether double punishment by taking into account manner of driving as aggravating factor when the subject of a separate charge.
R v De Simoni (1981) 147 CLR 383; R v Birnie (2002) 5 VR 426, referred to.
Dobson v Clark 65/1983, applied.
Aust Dig Traffic Law [3251]
REPRESENTATION:
Counsel:
Applicant: T Mills
Respondent: C Robinson
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2012] TASSC 10
Number of paragraphs: 23
Serial No 10/2012
File No 1140/2011
GARY ANDREW VAN DER VEER v (SERGEANT) RICHARD LANE
REASONS FOR JUDGMENT PORTER J
26 March 2012
Introduction
The applicant, Mr Van Der Veer, pleaded guilty before Magistrate Mollard to three charges arising from a motor vehicle accident on 19 September 2011. They were, in the order in which they appeared on the complaint, one charge of driving a motor vehicle while exceeding the prescribed alcohol limit of 0.05 grams of alcohol per 210 litres of breath (0.093), failing to comply with the duties of a driver involved in a crash, and driving without due care and attention. The particulars of the last charge were that the applicant failed to maintain proper control of his vehicle, failed to negotiate a corner causing the vehicle to mount a kerb onto a grassed area, and failed "to manoeuvre [the] vehicle so as to avoid an accident and then crashing into the side of a building … ". A particular of driving at an excessive speed was not pressed.
On 1 December 2011, the applicant was fined $260 with costs of $33, and disqualified from holding or obtaining a driver's licence for a period of 15 months. He has moved to review the orders made but the notice is confined to the order of disqualification, the sole ground being that the period of disqualification is manifestly excessive in all of the circumstances.
The facts before the magistrate
In the circumstances, the prosecution facts were quite brief. The prosecutor said:
"… on the 19th of September this year the defendant had been at his estranged wife's house in Austin's Ferry consuming alcohol when an incident had occurred at that address and the defendant decided to leave. At about 11.30pm the defendant was travelling south on the Brooker Highway at Goodwood and, on entering the Goodwood roundabout, the defendant lost control of the vehicle on the wet road and mounted the kerb causing the vehicle to go onto the grass nature strip outside No 69 Howard Road. The vehicle then ran into, collided with, the residence of 69 Howard Road causing a large hole to be made in the Besser block side of the building. The defendant alighted from the vehicle and then left the scene prior to police arrival. He then went into an apartment on the other side of the highway. Police attended the accident scene, conducted a search for the driver and eventually located the defendant in the apartment complex. … Subsequent[s] breath analysis returned a reading of 0.093. The defendant stated that he'd consumed a quantity of Jim Beam and coke … at his estranged wife's house and that was between about 8.30 and 10.30. He estimated that he'd consume approximately a third of a bottle …".
The magistrate was told that the applicant, who was 42 years old, had relevant prior convictions in Queensland for speeding by not less than 13 kph and not more than 20 kph in June 2001, failing to keep left of the centre island of a roundabout in December 2010, and in March 2002 failing to wear a helmet as a bicycle rider.
The main points put in mitigation by the applicant's then counsel were as follows.
· Until August 2011, the applicant was living in Queensland with his wife and two young children, but he and his wife were having difficulties.
· He left to come to Tasmania and his wife was persuaded to follow with the children.
· He was living at Bethlehem House and had been struggling with depression and anxiety.
· In the period leading up to the night of the accident, his anxiety and depression had been severe.
· On the particular night he had been at his wife's for dinner and had had a few drinks there. An argument developed "and he felt the need to leave the house immediately and to remove himself from the situation.
· It was raining heavily and he lost control of the car. After the accident the "whole situation became too much for him". When he got out of the car people came to his assistance. "He just felt he couldn't deal with the situation at the time and walked away from it." He went with one of the people who offered assistance to him and had a drink at his home to help calm him.[1]
· He was co-operative with police and made admissions to them.
· It is very unusual for him to drink.
· It was simply a matter where he was in a very difficult situation in his life, and was not coping with the stress of separation. "He regrettably jumped in the car and drove the vehicle."
· He is very remorseful for his actions.
[1]The applicant was also originally charged with consuming intoxicating liquor with the intent to alter the concentration of alcohol in his blood, contrary to the Road Safety (Alcohol and Drugs) Act 1970, s14(7). At the hearing, no evidence was offered in relation to this charge and it was dismissed.
In passing sentence the magistrate said:
"Those prior matters don't have a big impact on the outcome of this matter. The factors that do are the circumstances of the case and the offences you committed. Driving when you either knew or should have that you'd go over .05 committing what I regard as being a quite serious example of driving without due care and attention, although I take into account that you're not admitting that you were speeding, but more particularly the charge of failing to comply with the duties of a driver involved in a crash. You come before the Court at the age of 42 with not a lot in the way of prior matters. You pleaded guilty at an early date and you have been going through a difficult period, particularly in relation to your marriage. I take those matters into account. But it's my view that a quite lengthy period of driver licence disqualification needs to be imposed here to reflect the seriousness of all the matters and, accordingly, on the complaint you're disqualified from holding or obtaining a driver's licence for a period of 15 months …".
The legislation concerning penalties
The applicant was of course a first offender for the purposes of the Road Safety (Alcohol and Drugs) Act 1970. Section 17 of that Act made him liable for a fine of not less than $160 (2 penalty units) and not more than $1,300 (10 penalty units), and more relevantly to a period of disqualification of at least three months, but not more than 12 months. A reading of 0.1 grams would have put the applicant at risk of between six and 18 months' disqualification. Empirically, he was only 0.007 grams short of falling within that category.
The offences of driving without due care and attention and of failing to comply with the duties of a driver involved in a crash, were offences under the Road Rules 2009 made under s31A of the Traffic Act 1925. Section 17 of the Vehicle and Traffic Act 1999 provides that (subject to two sections which are not relevant) a court which convicts a person of a traffic offence may disqualify the person from driving for a period specified by the court. "Traffic offence" is defined in s3 as meaning "an offence against this Act involving the driving or use of a motor vehicle …". However, s3(2) provides that the Act is to be read together with the Traffic Act as a single Act. Further, by the Acts Interpretation Act s5(2), "Act" includes a regulation made under that Act. Accordingly, the period of disqualification for the Road Rules offences was solely within the discretion of the magistrate.
Discussion
Apart from the overarching submission that the period of disqualification is in excess of an appropriate range for the totality of the applicant's conduct, and hence plainly unreasonable and unjust, two particular points were argued. In either case, counsel for the applicant accepted that the imposition of a global period of disqualification without an apportionment across the three offences, presented difficulties for him. The first point is that for the magistrate to have imposed such a period of disqualification, he must have adopted the upper part of the range, or very near the maximum prescribed by the Road Safety (Alcohol and Drugs) Act for the exceeding .05 offence. The imposition of the maximum disqualification, or near to it, was not appropriate in the circumstances of that offence.
Mr Mills' second point is that there is an element of double punishment in the order of disqualification, in that either the manner of driving has been used as an aggravating factor when that was the subject of the separate driving without due care and attention charge. Alternatively, the applicant's blood alcohol level was taken as aggravating the driving offence, when that was the subject of the separate charge under the Road Safety (Alcohol and Drugs) Act.
The statutory maximum issue
Counsel for the applicant submitted, in accordance with the authorities, that maximum statutory penalties are reserved for bad cases, where the offender has prior convictions for similar matters, or where the offender has a bad record for offending generally, and the particular case is a serious example of the type of offence: Bounds v Robertson (No 2) [1969] Tas S R (NC 8) 60/1969; Adams v White (2006) 15 Tas R 350 at 357 [17]. Mr Mills accepted that the second category (prior convictions for similar matters) has less relevance to this case because s17 of the Road Safety (Alcohol and Drugs) Act makes its own provision for a higher range of penalties for subsequent offences.
The applicant's submission is that, based on the assumption that the magistrate imposed a period of disqualification at the upper end up of the maximum, then the approach was an inappropriate one because the case did not fall into the applicable categories as defined by the authorities. However, both the assumption on which the submission is based, and the submission itself, must be rejected.
There is nothing to suggest that the magistrate adopted as his starting point a period at the very upper end of the range, and then added the few months to bring the period up to 15 months. (Or indeed, started with a number of months for the other two offences and added close to or the maximum itself to arrive at the 15 months.) The magistrate may well have taken the view that the emotional state underlying the act of driving might have warranted a moderate approach to disqualification for the exceeding .05 offence, but that the manner of driving and his conduct after the accident called for a significant penalty. In any event, the submission itself must be rejected. The magistrate was entitled to have regard to the magnitude of the reading, to take note that detection of the offending came about as a result of the applicant being involved in an accident rather than a random breath test, and to disqualify the applicant for a period in the high to maximum range.
The double punishment issue
The essential submission is that the order itself shows that a manner of driving and the fact of the accident were taken as aggravating the offence of exceeding .05, when those matters were themselves the subject of the charge of driving without due care and attention. It is said that to take into account the aggravating factors, and at the same time to punish for the other offence, contravenes a prohibition on double punishment.
That prohibition is clear enough. Where two offences contain common elements, subject to contrary legislative intention, it is wrong to punish the offender twice for the commission of the elements that are common: Pearce v R (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ at 623 [40]. Where there are aggravating circumstances which might have led to a more serious charge, or a separate one, it is not proper or fair to sentence on the basis of uncharged conduct: R v De Simoni (1981) 147 CLR 383 per Gibbs CJ at 389; R v Birnie (2002) 5 VR 426 per Ormiston JA (Charles JA and O'Bryan AJA agreeing) at 432. In Dobson v Clark 65/1983, Green CJ at 4 referred to the comments of Gibbs CJ in R v De Simoni (above), and noted that they apply a fortiori where, as in the case before him, "the circumstances of aggravation are in fact made the subject of a distinct charge for which the accused has already been punished."
The facts of Dobson v Clark have some similarity to those in the present case. Mr Dobson had been charged with being a first year driver with alcohol present in his blood, an exceeding .05 offence, and driving whilst disqualified. He challenged a term of seven days' imprisonment imposed on the third charge. At 3, Green CJ said:
"It appears that the learned magistrate regarded the fact that the applicant drove a motor vehicle whilst the amount of alcohol in his blood exceeded the prescribed concentration as a significantly aggravating circumstance. With great respect, although that was a relevant consideration, the learned magistrate fell into error if, as a result, he imposed a heavier sentence than he would have imposed had that circumstance not been present. It was not an ingredient of the charge and the applicant had already been punished for driving whilst the concentration of alcohol in his blood exceeded the prescribed concentration."
In this case, the only common element in the three charges is the requirement of an act of driving. The manner of driving and the fact of the accident might well aggravate the charge of exceeding .05, but they are the subject of a distinct charge. It must be accepted therefore, that it would have been wrong for the magistrate to have increased the component of the sentence for the exceeding .05 charge as a result of those circumstances, as well as adding a component for the same circumstances making up the driving without due care and attention charge. Factors relevant to the exceeding .05 charge would be the level of the reading, and the potential risk to other road users leading up to the acts of driving the subject of the other charge.
But having said all of that, there is really nothing to suggest that is what the magistrate did. It will be recalled that his Honour noted the applicant's driving when the applicant knew or ought to have known that he would exceed the blood alcohol limit, what his Honour described as a "quite serious example of driving without due care and attention" and, more particularly, "the charge of failing to comply with the duties of a driver involved in a crash". I am not persuaded either from the words used or from the sentence itself, that an element of double punishment has been established.
Is the period of disqualification manifestly excessive?
This Court's jurisdiction in relation to such a ground of appeal against sentence is confined to the rectification of error. There is no warrant to interfere with a sentence which falls within the proper limits of the discretionary authority vested in a magistrate. A sentence will not be disturbed on appeal merely because an appellate court would have reached a different result had the responsibility of sentencing belonged to it.
Counsel for the respondent highlights the following matters:
· the state of mind alluded to by the magistrate, – that the applicant knew or ought to have known that he would be exceeding the blood alcohol limit;
· the decision to drive was a deliberate one, albeit taken in circumstances of high emotion;
· the act of driving did not arise from "an emergency of some kind which gave rise to a peremptory need to drive": Dobson v Clark (above) at 5.
· the built-up nature of the area and the point at which the accident occurred, the road itself being a major arterial road;
· the distance the applicant had travelled and was intending to travel;
· the circumstances of the accident itself;
· the applicant's breath alcohol level being nearly twice the legal limit; and
· the applicant's conduct afterwards in leaving the scene and having the police search for, and locate, him.
The applicant's plea of guilty at an early opportunity, his lack of relevant prior convictions, and his expression of remorse are accepted by counsel for the respondent as matters weighing in his favour. It is, however, submitted that the period of disqualification was well within a proper range available to the magistrate.
In my view, the list of factors which I have just set out is one which demonstrates that a strong punitive measure was appropriate, notwithstanding the personal circumstances which could be properly taken into account. In addition to the factors which counsel for the respondent noted, although the facts put before the magistrate by the prosecutor were sparse, the magistrate was entitled to infer that there was at least a risk of injury to people in the residence, it being late on a weekday evening. Further, from what he was told, the magistrate was entitled to infer that at least some amount of time and of police resources were spent on locating the applicant in the nearby apartment complex. Having regard to all of those matters, and notwithstanding matters favourable to the applicant, I am not persuaded that the order of disqualification is unreasonable or plainly unjust.
The motion is dismissed.
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