Walters v White

[2002] TASSC 56

[2002] TASSC 56

CITATION:             Walters v White [2002] TASSC 56

PARTIES:  WALTERS, Michael Graeme
  v
  WHITE, Graham Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 11/2002
DELIVERED ON:  23 August 2002
DELIVERED AT:  Launceston
HEARING DATE/S:  21 August 2002
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates - Jurisdiction and procedure generally - Procedure - Orders and convictions - Sentencing -Procedure on sentencing - Opportunity to put mitigating circumstances - No opportunity given to deny or comment on prior conviction taken into account by a magistrate.

Sentencing Act 1997 (Tas), s81(2).

Aust Dig Magistrates [142]

REPRESENTATION:

Counsel:
             Applicant:  M J Brett
             Respondent:  J P Ransom
Solicitors:
             Appellant:  Archer Bushby
             Respondent:  Director of Public Prosecutions

Judgment ID Number:  [2002] TASSC 56
Number of paragraphs:  17

Serial No 56/2002

File No LCA 11/2002

MICHAEL GRAEME WALTERS v SERGEANT GRAHAM ROSS WHITE

REASONS FOR JUDGMENT  CRAWFORD J
  23 August 2002

1. The applicant appeared before a magistrate on three charges arising out of events that occurred on the evening of 28 August 2001.  By count 1 he was charged with driving a motor vehicle on a public street, namely Deviot Road at Deviot, while he was disqualified from driving under the Road Safety (Alcohol and Drugs) Act 1970, contrary to s19A(1) of that Act. Count 2 charged him with not being the holder of an Australian or other driving licence, driving a motor vehicle while alcohol was present in his body, contrary to s6(2). Count 3 charged him with assaulting a police officer contrary to the Police Offences Act 1935, s34B(1)(a)(i) by charging at Constable Tippett, yelling "I'm gonna kill ya", pushing him against his chest and punching him to his left arm.

1. There was a defended hearing.  He was convicted on all counts.  On the first count he was sentenced to two months' imprisonment and disqualified from holding a driver's licence for 12 months.  On the second count he was sentenced to a further period of two months' imprisonment, cumulative upon the first, and was disqualified from holding or obtaining a driver's licence for 12 months, cumulative upon the first period of disqualification.  Of the total of four months' imprisonment, three months were suspended on condition that he commit no further offence under the Act for three years.  The total period of disqualification of two years was to commence at the expiration of any period of disqualification to which he was already liable.  On the third count he was fined $350.  He has moved the Court to review the conviction on count 2 and the sentence imposed on counts 1 and 2.  I will deal first with the motion to review the conviction on count 2. 

1. The second ground claims that the conviction was unsafe and unsatisfactory because there was insufficient evidence of the fact that the applicant drove whilst alcohol was present in his body.  The relevant evidence was brief and I will summarise it.  Constable Tippett had been called from Beaconsfield because of the applicant's conduct at his parents' home at Gravelly Beach.  He had assaulted his father and had taken his father's utility without permission.  It was Constable Tippett's evidence that he was driving on Deviot Road towards Gravelly Beach when the utility passed him in the opposite direction.  He performed a U-turn and followed the utility.  It was being driven by the applicant who, within a short distance, drove up a long private driveway at 733 Deviot Road, at the end of which he came to a standstill with the engine running.  Constable Tippett said that he approached the vehicle and saw the applicant slouched over the passenger's seat.  The officer turned the engine off and took possession of the keys and informed the applicant that he was under arrest for disqualified driving.  Thereupon the applicant sat up abruptly and yelled "go on shoot me, fucking shoot me".  Constable Tippett's evidence was that he was only a metre from the applicant's face at that time and the applicant's breath smelt strongly of intoxicating liquor.  The officer said that the applicant's speech was slightly slurred, and he formed the opinion that the applicant had consumed alcohol.  The applicant then opened the door and charged at the officer yelling "I'm going to kill you".  He pushed the officer in the chest and punched him on the left arm, whereupon the officer sprayed him with capsicum spray.  However, the applicant was able to run away. 

1. Although the defence case was that events occurred differently, particularly at the end of the driveway of 733 Deviot Road, counsel for the applicant did not challenge Constable Tippett in cross-examination concerning his evidence that he was only about a metre from the applicant's face, that the applicant's breath smelt strongly of intoxicating liquor and that his speech was slightly slurred.  His opinion that the applicant had consumed alcohol was also not challenged. 

1. The applicant gave evidence that conflicted with the evidence of Constable Tippett in a number of ways.  I need not deal with all of it.  He said that he had not been drinking, nor had he taken any other drugs.  He had a heated argument with his father, took his father's vehicle and drove off.  When he saw headlights coming towards him he drove up a private driveway because, he said, "it just clicked to me that I was being an absolute fool, absolute moron and I realised I was doing the wrong thing and drove up the road", for about 300 metres, he imagined.  He maintained that he was out of his father's utility by the time the police officer arrived.  He described a brief skirmish with the officer and then running away. 

1. The applicant called his father, Graeme Walters, to give evidence.  He confirmed that the applicant had been abusive and very angry when he had attacked him at his home.  He gave evidence that he was within eight inches or less of the applicant and could not smell alcohol on him, and the applicant did not appear to be affected by alcohol.  The learned magistrate was entitled to disbelieve that evidence, in the light of the father's statement to the police shortly following the incident that the applicant came home drunk, which he attempted to justify by saying that it was an assumption based on the applicant's anger and behaviour.  Evidence was also given by the applicant's mother, Helen Walters, that she could not smell alcohol on the applicant, but that evidence was of no value as she agreed that she might not have been closer to him than eight to 10 feet. 

1. There was adequate evidence justifying the conclusion of the learned magistrate that when he was driving the applicant had alcohol in his body.  The evidence of Constable Tippett, which was not challenged on the point in cross-examination, was capable of establishing that fact.  The statement of Mr Walters senior to the police supported it, and his evidence contradicting that was of little value.  The evidence of Mrs Walters that she could not smell alcohol was of no value.  There is plainly no merit in the ground that there was insufficient evidence to justify the finding that the applicant drove while alcohol was present in his body.

1. The third ground of the motion is that the learned magistrate failed to give adequate reasons for convicting the applicant on count 2 and I will consider it in conjunction with the first ground, which complains that the conviction was unsafe and unsatisfactory because the learned magistrate failed to properly consider the evidence of the applicant's parents.  In his reasons, the learned magistrate summarised the evidence of Constable Tippett and the applicant.  He referred to the father's evidence supporting the defence case that no alcohol had been consumed, but noted that following the incident the father had said that his son was drunk.  The learned magistrate did not accept the father's evidence, and that conclusion was plainly justified.  His Worship said that it was quite apparent that Mr Walters senior felt some responsibility for the altercation with his son and that he had reconstructed.  That finding was justified.  The learned magistrate commented that he gave no weight to Mrs Walters' evidence because she was some distance from the applicant.  Concerning the applicant's evidence, the learned magistrate considered that it had an air of unreality, bordering on the irrational.  He particularly referred to evidence from the applicant as to times and his claim that he had walked home from Launceston, little of which could be accepted having regard to the evidence of the parents, particularly his mother.  The learned magistrate said that he had no reason to doubt the evidence of Constable Tippett which was impressive and he preferred it to the evidence of the applicant.  He concluded that the applicant's evidence was a reconstruction. 

1. In my opinion, the reasons given by the learned magistrate were adequate and a proper consideration was given to the evidence of the parents. Accordingly, the motion to review the conviction on count 2 must fail.

1. The sentencing orders made on counts 1 and 2 were challenged on two main bases.  The first was that the sentences were manifestly excessive.  I find it unnecessary to determine that aspect because the second basis plainly must succeed.  It is that the learned magistrate erred by taking into account a fact that was not properly before him.  It related to the applicant's prior convictions.  The prosecutor put before the learned magistrate a one page record of them.  He was 26 years of age and the record revealed relevantly the following details.  On 20 December 1995 he was fined and disqualified from driving for driving with alcohol in his body at a time when he had no authority to drive.  In 1996 he was sentenced to three months' suspended imprisonment for three counts of burglary and three counts of stealing.  A probation order was also made and his driver's licence was disqualified for 12 months.  The last recorded offence was on 19 January 2000, when he was again convicted of driving without alcohol in his body (on 12 September 1999).  He was fined and disqualified from holding a driver's licence for three years.

1. In his comments on passing sentence, on 24 May 2002, the learned magistrate said:

"But in all the circumstances these offences have to be regarded as being serious ones and you are - as you are a persistent offender of the Road Safety Alcohol and Drugs Act and indeed the last offence of drive while disqualified which I note you have no prior offences. Nevertheless that and the offence under the Road Safety Alcohol and Drugs Act took place only a few weeks after you had been sentenced for an offence under the Road Safety Alcohol and Drugs Act."

The learned magistrate then stated that there was nothing about the prior history which should mitigate from the appropriate penalty that he needed to impose and commented that a term of imprisonment was called for to deter him and others from committing "these kind of offences". 

1. Upon the basis of the information that had been provided to the learned magistrate by the prosecutor and counsel for the defence, including the one page record of prior offences, there was no justification for the magistrate's comment that the offences had been committed only a few weeks after the applicant had been sentenced for an offence under the Act.  At the hearing of the motion to review I was informed by counsel for both parties that the magistrate must have taken into account information that was not put before him at the hearing but may have been personally known to him.  On 30 July 2001, 29 days before the commission of these offences, the applicant had been sentenced by the same magistrate on nine complaints for a total of 17 charges, one of which was the offence of driving with alcohol in his body when he was not the holder of a licence, contrary to s6(2) of the Act.  Because of the facts that were agreed before me, I can only assume that the learned magistrate used information known to him concerning those matters, without giving the applicant any opportunity to respond to it.  With respect, that was not a proper course to take.

1. In Sentencing in Tasmania, 2nd ed by Professor Warner, at 48, it is said:

"The defendant must be given the opportunity to challenge the prior convictions alleged by the Crown or considered by the court.  Thus, it has been held to be improper for justices to act upon convictions recorded in the Minute Book without giving the defendant the opportunity to deny them.  Hinds v Atkins 100/1962; Hastings v Ostle (1930) Cox CC 177.  Nor should the court act upon information given about the defendant's prior convictions when the printed record put to the court does not include such convictions.  Hunter 50/1964."

1. It is not correct to say that Hunter's case (Van Der Linden v R; Hunter v R 50/1964) is authority for the proposition that the court should not act upon information about a defendant's prior convictions when the printed record put to the court does not include such convictions.  It is not a strict rule that only convictions recorded in a formal record presented to the court may be taken into account.  What happened in Hunter's case was that the magistrate acted on information that the defendant had five previous convictions of a particular kind, when the formal record later tendered to the court contained no mention of them.  It appears from the judgment in that case that in fact there were no such convictions. 

1. Facts may be put before a sentencing tribunal, orally or in writing.  If they are challenged they may need to be proved.  If they are admitted they are usually assumed to be proved.  There is nothing to prevent a prosecutor orally or in writing submitting a list of a defendant's prior convictions.  The law does not require, at least until it is known whether they are challenged, that they be in some kind of formal list. 

1. The Sentencing Act 1997, s81(1) provides that before a court passes sentence on an offender found guilty of an offence, it may receive such information, in oral or documentary form, as it thinks fit and in doing so it is not bound by the rules of evidence. Importantly for this case, it is provided by subs(2) that the court must ensure that the offender has knowledge of, and the opportunity to challenge, the information so received by the court. On the facts that have been admitted before me, the learned magistrate took into account information he had received but which the applicant had no knowledge of, nor did he have the opportunity to challenge it. It was an appealable error for the learned magistrate to take into account that the applicant had a relevant prior conviction without first giving to the applicant the opportunity to challenge or make submissions concerning it.

1. For these reasons the motion to review must succeed so far as it seeks to review the sentences imposed on counts 1 and 2.  It was agreed by counsel that in such event the appropriate orders should be:

1The order made by a magistrate in a court of petty sessions at Launceston on 24 May 2002 with respect to count 1 on complaint No 33389/2001 whereby the applicant was sentenced to two months' imprisonment to commence from 23 May 2002 and disqualified from obtaining or holding a driver's licence for a period of 12 months to commence at the expiration of any term of disqualification he was then serving or liable to serve, is set aside.

2The order made by a magistrate in a court of petty sessions at Launceston on 24 May 2002 with respect to count 2 on complaint No 33389/2001 whereby the applicant was sentenced to two months' imprisonment cumulative to the imprisonment imposed on count 1 and disqualified from holding or obtaining a driver's licence for a period of 12 months cumulative to the period of disqualification imposed on count 1, is set aside.

3That the complaint is remitted for hearing by a different magistrate for the purpose of imposing sentence on counts 1 and 2 of the complaint.