Weeding v Crawford

[1991] TASSC 181

Serial No B67/1991
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Weeding v Crawford [1991] TASSC 181; B67/1991

PARTIES:  WEEDING
  v
  CRAWFORD

FILE NO:  LCA 102/1991
DELIVERED ON:  13 November 1991
JUDGMENT OF:  Wright J

Judgment Number:  B67/1991
Number of paragraphs:  10

Serial No B67/1991
File No LCA 102/1991

WEEDING v CRAWFORD

REASONS FOR JUDGMENT  WRIGHT J

13 November 1991

1. On 4 September 1991 the applicant Trixie Weeding was convicted of driving a motor vehicle on 22 July 1991 on Tamar and Cimitiere Streets, public streets at Launceston in Tasmania whilst alcohol was present in her blood in a concentration exceeding .05 grams of alcohol in 100 millilitres of blood, namely .291 grams of alcohol in 100 millilitres of blood, contrary to s6(1) of the Road Safety (Alcohol and Drugs) Act 1970.

1. Upon her conviction she was declared disqualified from holding or obtaining a licence to drive a motor vehicle for a period of 30 months and she was also ordered to pay costs of $21. No other penalty was imposed.

1. Pursuant to the provisions of s17 of the Act, a first offender is liable to maximum penalties of (a) a fine of $1,000, (b) six months' imprisonment (or both) and (c) disqualification from holding or obtaining a driving licence for a period not exceeding three years. The applicant was a first offender and she moves this Court to review the penalty imposed on the ground that it was manifestly excessive. It is not claimed that the learned magistrate who dealt with the matter erred in any specific or identifiable manner in his approach to the question of sentence.

1. Relying upon the well known proposition that a maximum penalty must be reserved for "worst cases" (see for example Mallinder v The Queen (1986) 23 A Crim R 179) counsel for the applicant pointed out that his client, now aged 44 years, had held a driving licence for 25 years without prior conviction, that she was not intercepted by police in consequence of any observed bad driving on her part and that, although she admitted driving from Hobart to Launceston after having consumed the alcohol which produced the reading in question, she was charged only with driving on two Launceston streets with an excessive blood alcohol content.

1. In the course of his plea in mitigation before the learned magistrate, counsel for the applicant disclosed that his client was an alcoholic who had been successfully combating this condition until a few days before her offence when, as a result of her mother's attempted suicide, she succumbed to stress and again started consuming liquor to excess. It was also mentioned that the applicant is a pensioner in receipt of sickness benefits amounting to the sum of $140 per week. This factor is not without significance because it is plain that the learned magistrate took into account the applicant's impoverished financial circumstances in declining to impose a monetary penalty upon her.

1. Neither before the learned magistrate nor on this motion to review, was any attempt made to minimise the significance of the very high blood alcohol level exhibited by the applicant – a level almost six times higher than the permissible maximum. It is plain that in these circumstances the learned magistrate had a sentencing problem of considerable delicacy with factors both in favour of the imposition of a significant penalty and other factors tending to favour leniency. By reference to a number of decided cases, counsel for the applicant submitted that the applicant's lengthy and unblemished driving record entitled her to leniency. (See for example Czyz v Robertson, Serial No 15/1974, Chambers J at p6 and McSweeney v Strickland, Serial No B39/1987, Underwood J at p5).

1. The principles which should guide the Court in determining an appeal of this kind were adverted to by the Full Court in Boyd v Peters [1988] Tas R 66 at pp72, 73. At p73 the Court said:

"Whether a sentence imposed in a Court of Petty Sessions is manifestly adequate or inadequate falls to be determined by this court applying the well known principles expressed in House v The King (1936) 55 CLR 499 and Cranssen v The King (1936) 55 CLR 509. Whether a sentence under review by this court falls within the range of sentences usually imposed in Courts of Petty Sessions is a factor which may be considered but only as one matter amongst many which have to be taken into account in determining whether in the end result, the sentence is manifestly inadequate or excessive as the case may be."

At p72 the Court said:

"The clear intention, manifested by the unambiguous words of s17(1), is to leave it to the discretion of the sentencer whether or not an order for licence disqualification for a period up to a maximum of three years should be made in any given case. Such a discretion must, of course, be exercised in accordance with judicial principles. Those principles include an obligation to take into account the notorious fact that 'drink driving' is a grave social evil carrying with it a substantial risk of causing death, serious injury and loss, that the offence is prevalent and that the imposition of penalty must take into account the need to deter not only the offender from repeating the offence, but others who might be tempted to act in the same way."

The words of Burbury CJ in Whittle v McIntyre [1967] Tas SR 263 are also worth bearing in mind. He said:

"It is necessary to say emphatically that a police magistrate in deciding what the appropriate penalty is for an offence, is entrusted by the law with a very wide discretion. An appellant is not entitled to ask the Supreme Court to substitute its opinion for that of the police magistrate. The appeal against sentence is a limited appeal. The Supreme Court can only properly allow an appeal against sentence if it plainly appears that the police magistrate made some error in the exercise of his discretion or that a sentence imposed is so manifestly excessive that it is only explicable upon the view that the police magistrate did err in some way. Indeed, it is of great importance that a police magistrate should have a wide discretion in the delicate and anxious task of sentencing – so long as he takes into account all proper factors it is for him to determine what weight should be attached to each. It is not a good ground of appeal to say, 'The magistrate ought to have given more weight than he did to a certain factor'."

Nettlefold J put it compendiously in Aherne v The Queen, Serial No 20/1982 when he remarked that an appellate court "has no charter to tinker with sentences. It sits to rectify genuine error".

1. In considering an appeal of the present kind, it should not be left out of account that s17(1) of the Act provides for a penalty consisting of up to three individual factors, namely a financial penalty up to $1,000, incarceration for up to six months and disqualification for up to three years. In the worst conceivable case it would be theoretically possible for all three maxima to apply. Obviously such a case would be very rare indeed. But it is of significance that Parliament has provided this range of penalties in the case of the very bad first offender. A second offender can be penalised pursuant to the provisions of s17(2) by the imposition of a fine amounting to $2,000, imprisonment for a period of twelve months and disqualification for up to six years. This multi–faceted and two tiered penalty structure must be borne steadfastly in mind when one is invited to say that a penalty imposed in an individual case is excessive. True it is that the learned magistrate in the present case imposed a disqualification amounting to 80% of the permissible maximum. However he inflicted no monetary penalty, nor did he impose a term of imprisonment. He also chose not to make a probation order or require the applicant to perform community service, both of which alternatives were available to him. It may be that as a consequence his sentence could be described as somewhat unbalanced, but this factor alone does not necessarily indicate that the sentence was excessive, particularly if the lack of balance can be seen to have resulted from a desire to avoid inflicting economic hardship upon the offender. The essential question is, I think, whether in imposing a longer than average disqualification to partly compensate for the absence of a fine, the learned magistrate fell into error.

1. After carefully weighing all relevant factors in the balance I think that the disqualification imposed in this case failed to accord due recognition to the applicant's previous good driving record and also failed to recognize the potential hardship to the applicant in being disqualified from driving for a lengthy period of time. In consequence I am of opinion that the learned magistrate fell into error and that the penalty imposed was manifestly excessive in all the circumstances.

1. Therefore I propose to allow the motion to review. In lieu of the order imposed by the learned magistrate the applicant will be fined $150 and disqualified from holding or obtaining a licence to drive a motor vehicle for a period of eighteen months from 4 September 1991. She will also be ordered to pay costs in the Court of Petty Sessions of $21. I will grant 28 days to pay the fine and costs.