Vincent v Tasmania
[2018] TASSC 24
•23 May 2018
[2018] TASSC 24
COURT: SUPREME COURT OF TASMANIA
CITATION: Vincent v Tasmania [2018] TASSC 24
PARTIES: VINCENT, Craig Anthony
v
ROBINSON, Angela (Acting Sergeant)
AVERY, Elizabeth
WILKIE, Scott (Senior Constable)
BARNES, Alisha (Constable)
FILE NO: 3345/2017
DELIVERED ON: 23 May 2018
DELIVERED AT: Hobart
HEARING DATE: 18 May 2018
JUDGMENT OF: Wood J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentencing orders – Three incidents of "drink driving" offending as unlicensed or disqualified driver – Cumulative sentences amounting to 18 months' imprisonment with a non-parole period of 12 months – Totality –Manifestly excessive.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss 6, 14, 15, 17 and 19A.
Vehicle and Traffic Act 1999 (Tas), s 8.
Sentencing Act 1997 (Tas), s 17.
Mill v The Queen (1988) 166 CLR 59; Vlek v The Queen [1999] WASCA 1038, applied.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: A Hilly
Respondent: S Thompson
Solicitors:
Applicant: Legal Aid Commission
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASSC 24
Number of paragraphs: 56
Serial No 24/2018
File No 3345/2017
CRAIG ANTHONY VINCENT v ACTING SERGEANT ANGELA ROBINSON, ELIZABETH AVERY, SENIOR CONSTABLE SCOTT WILKIE, and CONSTABLE ALISHA BARNES
REASONS FOR JUDGMENT WOOD J
23 May 2018
On 27 October 2017, Craig Anthony Vincent appeared in the Hobart Magistrates Court, and was sentenced by Magistrate S Mollard to a term of 18 months' imprisonment with a non-parole period of 12 months, for three separate incidents involving "drink-driving" offences under the Road Safety (Alcohol and Drugs) Act 1970, and offences under the Vehicle and Traffic Act 1999. On each occasion he was either driving without a licence or as a disqualified driver. The three incidents occurred on two dates in October 2015 and on 23 June 2017, and involved the commission of the following offences:
· 7 October 2015 (complaint no. 8763/15):
odriving motor vehicle whilst alcohol was present in his breath in excess of the prescribed concentration of 0.05 of a gram of alcohol per 210 litres of breath, namely 0.141 grams of alcohol per 210 litres of breath, contrary to s 6(1) of the Road Safety (Alcohol and Drugs) Act;
odriver not holding Australian driver licence, foreign driver licence, international driving permit with alcohol present in his body, contrary to s 6(2) of the Road Safety (Alcohol and Drugs) Act; and
odrive whilst not the holder of a driver licence, contrary to s 8(1) of the Vehicle and Traffic Act.
· 16 October 2015 (complaint no. 8762/15):
orefuse breath analysis, contrary to s 14(2) of the Road Safety (Alcohol and Drugs) Act; and
odriving while disqualified, contrary to s 19A(1) of the Road Safety (Alcohol and Drugs) Act;
orefuse to supply name and address, contrary to s 15(2)(a) of the Road Safety (Alcohol and Drugs) Act.
· 23 June 2017 (complaint no. 5682/17):
odriving motor vehicle in excess of the prescribed concentration of 0.05, namely 0.178 grams of alcohol per 210 litres of breath, contrary to s 6(1) of the Road Safety (Alcohol and Drugs) Act;
odriver not holding Australian driver licence, foreign driver licence, international driving permit with alcohol in body, contrary to s 6(2) of the Road Safety (Alcohol and Drugs) Act;
odrive whilst not the holder of a driver licence, contrary to s 8(1) of the Vehicle and Traffic Act.
On the first and third complaints the learned magistrate dismissed the offences contrary to s 6(2), but in relation to the offences of exceeding the prescribed alcohol limit of 0.05 took into account, for the purpose of sentencing, that the applicant was not entitled to drive with any alcohol in his body. Undoubtedly, his Honour had in mind the principles of sentencing that govern charges where there is substantial overlap in the elements of the offences: Pearce v The Queen (1998) 194 CLR 610; Wood v Major (1992) 3 Tas R 249; and Dellar v Crawford [1992] TASSC 34 at [7], A55/1992.
On the first of the three complaints, the learned magistrate imposed three months' imprisonment from 20 September 2017 and 12 months' licence disqualification. On the second complaint, the applicant was sentenced to a global term of 6 months' imprisonment to be served cumulatively to the sentence of 3 months' imprisonment, and a period of disqualification of three years. On the third complaint, he was sentenced to 9 months' imprisonment to be served cumulatively, and three years and two months' disqualification. The three periods of imprisonment, ordered to be served cumulatively, totalled 18 months' imprisonment. The learned magistrate specified a non-parole period of 12 months "from today". He was sentenced on 27 October 2017, one month and one week after the period of imprisonment commenced. The periods of disqualification were also ordered to be served cumulatively, and amounted to 7 years and 2 months' disqualification. The sentences of imprisonment and the non-parole period are the subject of the application to review and said to be manifestly excessive. The lengthy period of disqualification is said to contribute to the overall severity of the sentence, but it is not contended that the length of the disqualification period is manifestly excessive.
During the same sentencing hearing, the learned magistrate imposed a sentence of imprisonment of one month imprisonment as a global sentence for three breaches of bail. The sentence was ordered to be served cumulatively to the other periods of imprisonment. That sentence of one month is not said to be excessive, but it is also relied upon as relevant in determining whether the periods amounting to 18 months' imprisonment are excessive. The non-parole period imposed of 12 months from the date of sentencing, 27 October 2017, related to the total period of 19 months' imprisonment.
An additional ground of review relates to the non-parole order as commencing from the date of sentencing, 27 October 2017, when the sentence commenced on 20 September 2017. This ground of review is that "in not backdating the order for parole to the date Mr Vincent was remanded in custody, namely 20 September 2017, his Honour imposed a non-parole period that was manifestly excessive."
The nature of the offending
The facts about the applicant's offending can be briefly stated:
7 October 2015.
The applicant was intercepted at 10:55pm, travelling on Tower Road, New Town, for a random breath test. He told police he was driving because his cousin who is schizophrenic rang and asked him for a lift. He had been drinking alcohol between 4pm and 10pm. He had no intention to drive when he commenced drinking. He was issued with an "excessive drink/driving notice" for six months from 7 October 2015.
16 October 2015
The applicant was observed by police at 12:10am driving in Glenorchy with a passenger. He admitted to police he was disqualified and unlicensed. He was required to undergo a breath test, and returned a positive result. He accompanied police officers to a police station for a breath analysis, but he refused to submit to a breath analysis and did not elect to have a blood test. He also refused to provide his name and address.
23 June 2017
Police officers located the applicant at approximately 2:45pm in the passenger seat of his vehicle, which was down an embankment on Kalang Avenue in Glenorchy. Police received information that a male person had been aggressive towards an elderly couple who had tried to help. The applicant told police officers that the driver of the vehicle was his female partner who had walked away. The vehicle was registered to the applicant. A witness informed the police that she had observed the applicant in the driver's seat of the vehicle and no other person had been present. The applicant submitted to a breath analysis and it returned a positive result of 0.178 grams of alcohol.
The applicant has not ever held a driver licence.
An "excessive drink driving notice" was issued by police officers for a period of 12 months from 23 June 2017.
The circumstances of the offender
The applicant's counsel provided a plea in mitigation. The material matters raised were as follows:
· The applicant was 45 years of age at the time of the sentencing hearing.
· He was receiving a disability support pension due to mental health problems, including post-traumatic stress disorder.
· In recent times, the applicant had been sleeping in a tent in the Hobart area, in his car, or staying with friends. On his release from prison he would reside with a friend of his. This would be his first stable accommodation that he had had for nearly a decade.
· He was born in Tasmania and lived for a time in Western Australia and South Australia. The applicant had a very difficult childhood, he left his family home at a very young age. He "had an issue with alcohol since about the age of eleven". He was homeless from about that age. His first court listings were in Western Australia and commenced at that time.
· He has been an industrious person and has worked as a steel fabricator and welder. His last period of employment was in or about 2006 or 2007. He had to cease working due to an aggravation of his mental health difficulties.
It is worth mentioning the explanation for the breach of bail matters, as it bears on the reason for the delay in resolving the charges and also is informative about the applicant's personal circumstances. The breaches relate to the applicant's failure to attend court on 12 November 2015, 15 January 2016 and 20 July 2017. The applicant had engaged with medical practitioners in relation to his mental health, and it had been suggested by his doctor that he should get a dog. He has had his dog for about seven years. It was said on his behalf in mitigation that the applicant had no one who would be able to care for his dog. He was concerned that if he were remanded in custody that that dog may have to be put down and that the dog "was the only meaningful thing Mr Vincent has had in his life for approximately seven years …".
In relation to the first offence, the explanation provided to police was relied upon. It was said that he had had no intention to drive when he commenced drinking that day.
In relation to the second offence, it was said on the applicant's behalf that ten days beforehand he had witnessed a stabbing. He had his "drinking under control prior to that period", but the stabbing aggravated his post-traumatic stress disorder, which led to his return to drinking alcohol which, in turn, led to the offence.
Nothing was said in relation to the third offence, or about the more recent situation regarding the applicant's problem with excessive drinking. It was drawn to the court's attention that the applicant had pleaded guilty, saving the courts and police the associated expense of a hearing, and also, that his pleas arose from remorse.
The learned magistrate was handed the applicant's Tasmanian prior convictions and also prior convictions from South Australia and Western Australia.
Prior convictions
The learned magistrate noted prior convictions for driving while disqualified, and exceeding the prescribed alcohol limit or refusing breath analysis, and the readings involved. He also noted unlicensed driving, evading police, and negligent driving.
The applicant's record reveals that the offences before the court were his fifth, sixth and seventh offences for an offence contrary to the Table of offences in s 17 of the Road Safety Alcohol and Drugs Act, which deals with offences, including driving with excessive concentration of alcohol in breath or blood contrary to s 6(1), driving with alcohol in body without authority contrary to s 6(2), refuse breath analysis contrary to s 14(2), and drive a motor vehicle under the influence of alcohol contrary to s 4. His history includes:
· Two prior offences for exceed 0.05, both committed in 2002 for alcohol readings of 0.154 and 0.148.
· One offence of driver not holding an Australian driver licence, foreign driver licence, international driving permit with alcohol in body committed in 2003, with a reading of 0.161.
· One prior conviction for refuse breath analysis committed in 2006.
· Five prior convictions for driving while disqualified: one committed in 2003, three committed close in time in 2005, and one committed in 2006.
· Two prior convictions for driving whilst not the holder of a driver licence committed in 2012 and 2013.
· Two offences of negligent driving in 2006 and 2012.
· One offence of evade police committed in 2012.
For the offences committed in 2003, the applicant received a term of suspended imprisonment of three months. The earlier offending had attracted fines and periods of disqualification. In 2006, he received a global sentence of 12 months' imprisonment, with 6 months suspended for offending which included the offence of refuse breath analysis which I have mentioned, fail to comply with the duties of a driver involved in a crash, four of the offences of drive while disqualified mentioned above, and an offence of motor vehicle stealing. Because it was a global sentence, it is unclear what portion of that term of imprisonment is attributable to the offence of refuse breath analysis and the offences of driving while disqualified.
The applicant has served terms of imprisonment for other offending, the lengthiest being a sentence of 18 months' imprisonment imposed in 2008 for armed robbery, with a non-parole period of nine months.
The applicant had relevant prior offences dealt with in 1986-1988, committed as a youth in Western Australia. These are accepted by the respondent as being of minimal weight, and are not relied upon except for the point that the applicant cannot be said to be someone who has no prior convictions interstate.
The magistrate's sentencing comments
After referring to the applicant's criminal history from South Australia and Western Australia, and noting there is little similar offending which resulted in convictions, and that he gave little weight to them except in a very general sense, the learned magistrate went on to make the following remarks:
"But in Tasmania the defendant has established a pattern of serious similar offending and I don't intend to wade through them but in summary, the convictions include three for unlicensed driving, one for evading police, two for negligent driving, five for driving while disqualified and four for exceeding a prescribed limit or refusing a breath analysis. Those that resulted in a breath analysis reading led all to high readings.
As to the current matters, the two exceeds are very serious matters and involve high readings and the refuse demands a sentence designed to discourage such offending; that is to say, they should be dealt with in a way in which they're treated as being no less serious than were the charge and exceed .05. The reasons for driving offered by this defendant are poor excuses. I note the submission that the defendant suffered historically from parental abuse and suffers now from mental ill health. He's pleaded guilty to all these offences. However, the overriding need here is to sentence in such a way as to deter him and I think to protect other road users, and also to bolster the requirement that any driver needs to be authorised by a current driver's licence to drive and not disobey disqualifications. And my view is that a moderately severe sentence is called upon in all the circumstances of this case.
The bail maters include matters which have delayed for a substantial period the finalisation of the 2015 matters, and I will deal with those three bail complaints together."
The learned magistrate then proceeded to impose the sentences noted above. In imposing the periods of disqualification, his Honour noted that he took into account the impact of the excessive drink driving notices. The impact of those notices is that the applicant had already been subject to periods of disqualification before the court imposed orders.
Matters of principle
The principles that apply with respect to motions to review sentences by magistrates on the grounds of manifest excess or inadequacy are clearly established. They are conveniently summarised by Pearce J in Barrett v Wilson [2015] TASSC 3, 69 MVR 333 at [9]-[10] and by Crawford J (as he then was) in Visser v Smart [1998] TASSC 151. Magistrates have a wide sentencing discretion, and an appellate court must not interfere unless clear error is shown. It must be evident that the sentence imposed is "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505. The applicant must show that the sentence is so plainly excessive and that it can be seen from the sentencing outcome and a consideration of all the matters relevant in determining the sentence, that the magistrate's discretion must have miscarried. Sentencing magistrates are accorded a wide measure of latitude which is respected by the appellate courts.
The statutory scheme and maximum penalty provisions are relevant to a consideration of the sentences imposed. The offences contrary to the Road Safety (Alcohol and Drugs) Act are provided for in a Table in s 17 which sets out the offence, an escalating scale of penalties depending on the concentration of alcohol, and also sets out a minimum and maximum fine, a minimum and maximum period of disqualification, and a maximum term of imprisonment. The Table is in two parts, part 1 for a first offence and part 2 for a subsequent offence. A person is guilty of a subsequent offence if that person has previously been convicted of an offence covered by the Table (s 17(1)(b)). The applicant has previously been convicted of offences covered by the Table and so all his offences contrary to the Road Safety (Alcohol and Drugs) Act dealt with by the learned magistrate are "subsequent offences".
An exceed 0.05 offence contrary to s 6(1), with an alcohol reading of 0.141, was punishable by a fine not exceeding 40 penalty units, or to imprisonment for a term not exceeding 12 months. For a reading of 0.178, the maximum fine is 60 penalty units, and the maximum term of imprisonment is 24 months. For the offence of refuse breath analysis contrary to s 14(2) of the Road Safety (Alcohol and Drugs) Act, the maximum fine is 60 penalty units and a maximum of 24 months' imprisonment. The Table in s 17 also sets out a minimum and maximum period of disqualification. As noted above, the lengthy period of disqualification imposed in this case is not said to be manifestly excessive. For the offence of driving while disqualified contrary to s 19A of the Road Safety (Alcohol and Drugs) Act, the maximum penalty for a subsequent offence is a maximum fine of 80 penalty units or imprisonment for a term not exceeding 12 months (or both). For the offence of drive while not the holder of a driver licence contrary to s 8(1) of the Vehicle and Traffic Act, the maximum penalty for a subsequent offence is a fine not exceeding 40 penalty units or imprisonment for a term not exceeding three months.
It can be seen from the Table that the offence of refuse breath analysis is placed in the same category as drive a motor vehicle under the influence of alcohol or a drug. Evidently, refuse breath analysis is to be regarded generally as a more serious class of offence than offences of exceed 0.05 and drive with alcohol in body without authority. It is only the offences of exceed 0.05 and drive with alcohol in body without authority with a concentration of alcohol of 0.15 or more that attract the same maximum penalty as the offences of drive under the influence and refuse breath analysis.
The separate penalty regime for subsequent offences reveals Parliament's intention that where the punishment imposed for a first offence has not operated as a deterrent to an offender, a higher penalty is then to be imposed for a further offence: Cashman v Jordan [2009] TASSC 112.
It was argued that the sentences were individually and in their cumulative effect manifestly excessive.
The sentences viewed individually
The applicant argued that the individual sentences were manifestly excessive, particularly the second sentence of six months' imprisonment and third sentence imposed of nine months' imprisonment. The applicant's main argument though relied on the totality principle, and as will be seen, this principle carries particular force in the circumstances of this case. However, it is useful to begin with a consideration of the individual offences and whether the sentences viewed on their own are manifestly excessive. Ultimately, the application of the totality principle requires consideration of the nature of each of the offences and the criminality involved.
The offences committed on 7 October 2015 clearly warranted a sentence in the order of three months' imprisonment. A reading of 0.141 is substantially above the prescribed limit, almost three times the limit of 0.05. It was a particularly high reading for the applicant who was subject to a requirement that he was not to drive with any alcohol in his blood at all because he was unlicensed and had no authority to drive. As noted, he has four prior convictions of relevance involving two offences of exceed 0.05, one offence of drive with alcohol in body without authority and refuse breath analysis. He had received a term of suspended imprisonment and an actual term in 2006 which encompassed other offending. The more recent offending and sentence imposed in 2006 should have been a particularly salutary experience, he had refused a breath analysis after being involved in a crash and his offending, together with other offences, had attracted a global sentence of 12 months' imprisonment. While the applicant is not to be sentenced again for his past offending, his prior history indicated a particular need for specific deterrence and protection of the public: Veen v the Queen (No 2) (1988) 164 CLR 465.
It can be seen that there is a gap of nine years since that most recent offence in 2006 and his offending in 2015. It is relevant that he had not been presented with the temptation of driving for all of that intervening period, approximately 2½ years had been spent in custody serving various sentences. Even so, I accept that that intervening period is a reasonable period which suggests his offending is not yet entrenched.
The second incident of offending was committed only nine days later. It was more serious than the last. This time the applicant committed the offence of driving while disqualified. He was disqualified because he was subject to an excessive drink driving notice that had been imposed nine days before. It is clearly established that the offence of driving while disqualified is to be viewed seriously particularly in the case of repeat offenders: Bessell v Riley B12/1995; Brown v Stone B14/1995 at 4; Peck v Visser [1999] TASSC 38 at [8]-[9]; Parker v Bessell [2012] TASSC 78 at [38]; Barratt v Wilson (above) at [11]. In s 19A Parliament has made provision for harsher penalties for subsequent offenders.
Further, the applicant committed the serious offence of refuse breath analysis, attracting a higher maximum penalty than his offending on 7 October. His explanation for the offence and the reason for relapsing in terms of alcohol consumption did not account for his decision to drive or mitigate the seriousness of his conduct. No doubt his relapse was causative in the sense that his judgment and his sense of responsibility were affected by his alcohol consumption. That, of course, is not mitigatory. The applicant's culpability was also more serious than his offending contrary to the Road Safety (Alcohol and Drugs) Act on 7 October 2015, because it was a repetition of like offending so soon afterwards. He was undeterred by his earlier wrong-doing and his apprehension by police. His prior convictions are relevant, particularly his previous conviction for refuse breath analysis and five prior convictions for driving while disqualified.
The offences committed on this second occasion warranted a heavy sentence and a term of six months' imprisonment was justified.
The third incident involved an offence of drive unlicensed and driving with alcohol in his body without authority. His alcohol reading was 0.178. The information provided to the court about his offending was minimal, and there were no details provided such as the distance the applicant was travelling. There was no explanation put before the court for his driving and nothing about the circumstances which mitigated the seriousness of his offending. There were serious aspects to his offending. The offences on this occasion were committed less than two years after he had last offended. His prior convictions and recent offending revealed a need for an effective deterrent. It was argued that the learned sentencing magistrate could not have proceeded on the basis that the reading was so high that his driving was affected because he has not been charged with the more serious offence of "driving under the influence", and to proceed in that way would offend the principle in R v De Simoni (1981) 147 CLR 383. Further, it could not be taken into account that the applicant's car was found on an embankment and that was due to impaired driving, as that would be sentencing him for a more serious offence and offend the same principle. While a court must not sentence an offender for a more serious offence than that charged, the offence of driving under the influence of alcohol involves a person being under the influence to such an extent that they are incapable of having proper control of the motor vehicle: s 4(2) of the Road Safety (Alcohol and Drugs) Act. On a charge of driving with alcohol present in body without authority, the court may take into account the likely effects of alcohol and the particular reading, falling short of the driver actually being incapable of having proper control of a motor vehicle. The sentencing court may proceed on the basis that to drive with a reading above 0.05 places other road users at inherent risk, and in the case of a very high reading, places others at high risk. It would be legitimate to proceed on the basis that a reading meant, potentially, the driver would be incapable of having proper control. It is also legitimate to take into account that a reading in the order of 0.178 is a level of reading associated with serious and fatal accidents. I should add that there is no suggestion that the learned magistrate fell into error and infringed the principle in De Simoni.
The applicant's level of culpability was high. When he drove he would have been fully aware that he had consumed a substantial quantity of alcohol. He was a danger to himself and other road users. As stated by Zeeman J in Briant v Bessell (1994) 74 A Crim R 204 at 209:
"The nature of the penalties prescribed is such as to make it clear that Parliament considers that those who commit breaches of s6(1), particularly those having high concentrations of alcohol in their blood, engage in conduct which may be categorised as criminal in nature."
In Barrett v Wilson (above) at [13], Pearce J stated "The risk posed by those who drive after consuming alcohol is well known and understood, and it is a matter of considerable social concern. Those who persistently breach the law show contempt for the law and pose a continuing threat to the safety of other members of the community. They, accordingly, must expect harsh punishment." See also McDonald v Nilsson [2009] TASSC 83, 54 MVR 32 at [14], as quoted by Pearce J.
There are matters in mitigation and an absence of factors which distinguish the matter from other examples of this offending. It was not suggested that he was driving a long distance, or that he was driving badly, or at an excessive speed. He pleaded guilty to this and his other offences.
It was said he was remorseful in relation to this occasion, but other than his plea of guilty there was nothing to show for that, and it was not explained whether this was a change of attitude or merely regret that usually coincided with his offending. It had got to the stage where a sentencing magistrate was entitled to consider that "actions speak louder than words".
Viewed individually the sentence of 9 months' imprisonment was severe, especially noting that the only previous sentence of actual imprisonment received by the applicant for such offending was a global sentence that related to other types of offending. As a global sentence it did not provide as clear a warning of the "grave social evil" involved in "drink driving" offences as would a specific term of imprisonment for an offence contrary to the Road Safety (Alcohol and Drugs) Act. Parliament intended that sentences under the Road Safety (Alcohol and Drugs) Act would provide an effective personal and general deterrent, and promote the understanding that such conduct is "criminal" in nature. Here the global sentence encompassed other offending, some of which was different in kind, such as motor vehicle stealing, and more obviously criminal offending. In these circumstances, a global sentence is not as effective a deterrent, and not as effective in altering attitudes to offences of driving with excessive concentrations of alcohol, as a specific gaol sentence.
While I regard the 9 month term of imprisonment as particularly severe, viewed on its own I would not regard it as beyond the wide discretion of the learned magistrate. It was warranted given the very high reading, the fact that the applicant had no licence and should not even have been driving, and matters impacting on his culpability, notably his history of offending. He must have been well aware how serious his offending was. Indeed his certainty that a gaol sentence would result from his offending on each of the three occasions was the reason he breached his bail and did not attend court.
Viewing each sentence of imprisonment on its own, and without regard to the other cumulative terms, I regard them as being individually a correct sentence open to the learned magistrate.
The total sentence
The applicant's principal contention that the sentences were manifestly excessive relied upon the totality principle. It was argued that the cumulative effect of the terms of imprisonment, amounting to 18 months' imprisonment, was excessive having regard to the principle. The principle is an important consideration when sentencing an offender on multiple counts. The sentencing court is required to have regard to the total effect of the sentences, the final penalty, to ensure that it is just and appropriate and not a crushing sentence. The classic statement of the principle in Thomas, Principles of Sentencing, 2nd ed (1979) at 56-57, endorsed by a joint decision of Wilson, Deane, Dawson, Toohey and Gaudron JJ in Mill v The Queen (1988) 166 CLR 59 at 63, omitting references, is:
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
The joint judgment went on to note:
"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."
The application of this principle may mean that the sentencing court must adjust the individual sentences downward in order to achieve an "appropriate relativity between the totality of the criminality and the totality of the offences". When considering the principle recently in Director of Public Prosecutions v Harington [2017] TASCCA 4, I stated:
"[27] The principle reflects the need for mercy and that the sentence should not crush an offender's hope for rehabilitation. The principle also reflects the understanding that the result of aggregating sentences has a compounding effect on the severity of the total sentence. The severity of a gaol sentence is not simply proportionate to its length. As Malcolm CJ said in Clinchv The Queen [1994] WASC 57, 72 A Crim R 301 at 306: '… the severity of a term of imprisonment increases exponentially as it increases in length … Thus, a sentence of five years is more than five times as severe as a sentence of one year'."
There are limits to the moderating effect of the totality principle, the final penalty must still be adequate to reflect the criminality involved in the separate criminal episodes: Director of Public Prosecutions v Harington at [28].
There is another aspect to the principle of totality, which is relevant when a court is sentencing for multiple offences. In Director of Public Prosecutions v Farmer [2005] TASSC 15, 13 Tas R at [2], Evans J identified mitigatory factors that may arise from the imposition of a cumulative sentence. His Honour quoted from Vlek v The Queen [1999] WASCA 1038, where Anderson J, agreed with by Pidgeon and Ipp JJ, said:
"When a sentence is to be cumulative on sentences already being served there is usually a discount, and the reasons for this include, no doubt, the instinctive acceptance by sentencing courts that a cumulative sentence is, in itself, a harsher sentence than one of the same length which is to take effect immediately. Jarvis v The Queen (unreported; CCA SCt of WA; Library No 930341; 14 June 1993), especially per Ipp J. Furthermore, as was pointed out in Mill ((1988 166 CLR 59), the second sentencing court may see (or assume) that the prisoner has made progress towards rehabilitation during the term of the first sentence. In addition, there is not the same demand for retribution where the prisoner has already suffered loss of liberty and where there has already been an 'emphatic denunciation by the community' of his or her criminal behaviour and attitude. See Cross: 'The English Sentencing System' (Butterworths 1971) at page 104. Neither is there the same requirement in the second sentence for personal deterrence because that most likely will already have been achieved in large measure by the first sentence. In other words, not as much emphasis is required in passing the second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case. Therefore, the conventional sentencing objectives may be able to be achieved by a cumulative sentence which is shorter than the sentence that must properly be imposed when the sentence is not to be cumulative."
See also Director of Public Prosecutions v Bradford [2016] TASCCA 14, per Blow CJ; Hall v Tasmania [2015] TASCCA 6, per Tennent J.
Those considerations have particular relevance here. The applicant can be distinguished from other offenders who have had the benefit of progressively harsher terms of actual imprisonment for similar offending. As noted the applicant has a history of past offences, but he has not had the same warning that others have had of the "criminal" nature of his conduct. He has experienced a wholly suspended sentence of three months' imprisonment imposed 15 years ago, and a global sentence of actual imprisonment, with an indeterminate portion of that attributable to this type of offending. This factor also means that there was, in the applicant's case, still some scope for rehabilitation compared with an individual who had reoffended despite progressively harsher terms of imprisonment. Put another way, there need not be the same demand for a severe sentence in a case where the effectiveness of a moderate sentence has not been explored. Having noted this matter, it is also the case though that this factor is not as significant as it may be in cases where an offender has had only minimal or no experience of imprisonment.
By distinguishing the applicant in this way, I do not mean to suggest that sentences for offences contrary to the Road Safety (Alcohol and Drugs) Act must gradually escalate, and that a decisive heavy sentence cannot be imposed for serious offending. My only point is the applicant has not had the warnings that others have had, or had the opportunities to reform in response to those warnings.
The sentencing remarks of the learned magistrate do not demonstrate whether his Honour reduced the individual sentences because of totality. It would have been entirely appropriate, in the circumstances of this case, to have made allowance for the principle of totality by ordering that the sentences for the second and third incidents be partly concurrent. However, I must be careful to ensure that I do not proceed on the illogical premise that the sentences imposed are a fixed starting point for the application of the principle of totality. I must bear in mind the possibility that his Honour discounted each of the three periods of imprisonment to take account of the principle. The focus of my consideration must be whether the sentences are plainly unjust in their cumulative effect.
An aspect of the sentences is the non-parole period. The totality principle applies to the non-parole period as well as the head sentence: Mill v The Queen (above) at 66. The learned sentencing magistrate did not provide reasons for the stipulated non-parole period. While he was required to provide reasons, s 17(7) of the Sentencing Act 1997, those reasons may be evident from the comments made in fixing the head sentence. An unusual feature of the sentencing order was that the sentence of three months' imprisonment for the first incident was backdated to 20 September 2017, some one month and one week prior to the sentencing date, with the remaining sentences to be served cumulatively, but the non-parole period commenced on the date the applicant was sentenced. There were no reasons for that approach and there are none evident. I expect it was a slip. It must be remembered that magistrates frequently sentence many offenders in a single day and often sentences commence from the date of sentencing. In any event, this additional period of one month and one week added to the onerous quality of the sentence: the applicant had already been in custody for one month and one week and yet that did not count towards his non-parole period. In effect the non-parole period was 13 months and one week. His Honour had a discretion to impose a non-parole period of no less than half the sentence, eight and a half months: s 17(3) of the Sentencing Act. The effective non-parole period was a significant portion of the head sentence of 19 months, including the breaches of bail.
In fixing the non-parole period, s 17(4) of the Sentencing Act provides specific matters that the court may have regard to, as well as "such matters as it considers necessary or appropriate". The specific matters are any of the following: the nature and circumstances of the offence, the offender's antecedents or character, any other sentence to which the offender is subject. The guiding principle is that the non-parole period should be "the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence": Power v The Queen (1974) 131 CLR 623 at 629. In Groenewege v Tasmania [2013] TASCCA 7 at [59], Porter J stated:
"[59] Of course, there is no presumptive starting point for parole eligibility, but those cases provide an indication of the types of matters which may justify the benefit of the total available opportunity for parole. Without wishing to be prescriptive, apart from the nature of the offending itself ,one factor which would justify a requirement to serve a greater proportion of the head sentence than one half, is a bad criminal record: Enniss v Tasmania [2012] TASCCA 10 at [21]; Wahl v Tasmania [2012] TASCCA 5. Other, perhaps associated, factors would be the protection of the community as a whole: Mabb v Tasmania [2008] TASSC 22 at [27], and a poor previous parole history."
It can be inferred that the main reason for the non-parole period imposed in this case is the applicant's history of offending, which was a matter emphasised by the learned magistrate, describing a "pattern of serious similar offending".
Relevant to the fixing of the non-parole period, is also the matter referred to by Evans J, in Devine v The Queen [2003] TASSC 52, at [30]:
"[30] The totality principle applies to both the head sentence and a non-parole period, Mill v R [1988] HCA 70; (1988) 166 CLR 59. Subject to the need to preserve a sentence's capacity to achieve all its intended objectives, in my view, a court should, in its approach to fixing a parole eligibility date, if any, be optimistic about a prisoner's rehabilitation prospects. If that optimism proves to be misplaced, it is reasonable to expect that the prisoner will not be paroled as the Parole Board is only empowered to grant a prisoner parole after considering the matters detailed in the Corrections Act, s72(4), which include the rehabilitation of the prisoner, the likelihood of the prisoner re-offending, and the protection of the public."
There are matters in the applicant's personal circumstances which may benefit from support and conditional liberty with consequences for non-compliance, such as his history of alcohol abuse, and poor mental health. As I have observed, there are gaps in his offending which may suggest his offending arises from dysfunctional circumstances, rather than an entrenched and abiding lack of responsibility in relation to driving offences.
The learned magistrate correctly viewed this case as warranting a decisive, heavy sentence. The question is whether the sentence went beyond what was required and was so heavy it was manifestly excessive in the circumstances.
The head sentences are individually heavy sentences in the circumstances, especially the terms of 6 months and 9 months. Their cumulative effect, together with a lengthy non-parole period, mean that the sentence is particularly harsh. The length of the sentences for the second and third incident of offending, fails to take account of aspects of the principle of totality which are concerned with the comparatively harsher impact of a cumulative sentence, and the diminished need for punishment in an individual sentence because of other custodial terms to be served. The sentence fails to allow for the fact that this is the applicant's first clearly identifiable term of actual imprisonment for like offending. While I do not doubt a substantial sentence of imprisonment was required, there is a prospect that a more moderate term would prove to be effective as a personal deterrent, and there is still some room for optimism in fixing a parole eligibility date. Whilst the fixing of a non-parole period is a discretionary matter, the learned magistrate was bound to impose the "minimum" term that he considered justice required. It is the sentencing orders in their entirety, the impact of the aggregate of the sentences and the non-parole order, which takes the sentence outside the proper limits of the sentencing discretion and means that, in the circumstances of this case, it is harsh to the point of manifestly excessive.
Having heard from counsel regarding the application of s 110(2AA) of the Justices Act 1959 and matters relevant to sentencing that have occurred since the orders made by the learned magistrate, I regard the following course as appropriate. I will leave each of the individual sentences intact, but make an order allowing part of the second and third sentences to be served concurrently. I will also allow an earlier opportunity to apply for parole, and I will reduce the non-parole period from the effective period of 13 months and one week to a non-parole period of eight months. The non-parole period I will impose relates to all terms of imprisonment imposed by the learned magistrate, as varied by me today, and also relates to the term of one month imprisonment imposed by the learned magistrate for three breaches of bail.
The orders that I make are as follows:
i The motion to review is allowed.
iiIn relation to the sentence of six months' imprisonment imposed by the learned magistrate, two months is to be served concurrently with the three month sentence.
iiiIn relation to the sentence of nine months' imprisonment, three months of that is to be served concurrently with the six-month sentence. (The sentence of one month for breaches of bail remains and is still to be served cumulatively.)
ivThe order made by the learned magistrate as to parole with respect to all terms of imprisonment imposed by the learned magistrate on 27 October 2017, is varied by reducing the parole ineligibility period from the effective period of 13 months and one week to eight months.
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