Wighton v Taws

[2004] TASSC 21

[2004] TASSC 21

CITATION:             Wighton v Taws [2004] TASSC 21

PARTIES:  WIGHTON, Heather Mary
  v
  TAWS, Jayson

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 2/2004
DELIVERED ON:  19 March 2004
DELIVERED AT:  Launceston
HEARING DATE/S:  19 March 2004
JUDGMENT OF:  Slicer J

[Edited edition of reasons for judgment delivered orally]

CATCHWORDS:

REPRESENTATION:

Counsel:
             Appellant:  M J Brett
             Respondent:  J P Ransom
Solicitors:
             Appellant:  Rae & Partners
             Respondent:  Director of Public of Prosecutions

Judgment ID Number:  [2004] TASSC 21
Number of paragraphs:  13

Serial No 21/2004
File No LCA 2/2004

HEATHER MARY WIGHTON v JAYSON TAWS

REASONS FOR JUDGMENT  SLICER J
(DELIVERED ORALLY)  19 March 2004

1. The appellant seeks review of a sentence of imprisonment of eight months, four of which were suspended, following her conviction of the charge of driving under the influence of intoxicating liquor contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s4. A second charge relative to driving with an excessive blood alcohol concentration contrary to the Act, s6(1) was, in accordance with the principles stated in Wood v Major 49/1992 dismissed.

1. The appellant had been previously convicted of the offence of driving with an excessive blood concentration in January 1998, contrary to the Act, s6. The previous conviction under s6 rendered the 2003 conviction a second offence which attracted the following penalty:

Fine	Period of Disqualification	Term of Imprisonment
Minimum 10 penalty units Maximum 60 penalty units	Minimum 24 months Maximum 72 months	24 months

The maximum penalty for a first offence against the Act, s4, was by virtue of s17:

Fine	Period of Disqualification	Term of Imprisonment
Minimum 5 penalty units Maximum 30 penalty units	Minimum 12 months Maximum 36 months	12 months

However, by virtue of s17(1)(b) which provides:

"a person is guilty of a subsequent offence if that person has previously been convicted of an offence under section 4, 6 or 14(5) or an offence in respect of a failure to comply with a requirement made under section 10(4) or 10A(1)"

her conviction on 13 February 2004 is deemed to be a subsequent offence (see Rivera v Maher A77/1992, O'Hara v Harrington [1962] Tas SR 165, Williams v McLaughlin [2000] TASSC 29).

1. The facts as stated by the prosecutor were that on 5pm on 28 October 2003 police received information concerning the manner of the driving of a particular vehicle which, as it turned out, was being driven by the appellant.  The officers observed the vehicle, a red Toyota Starlet sedan, leave a service station and in the words of the prosecuting officer:

"It turned right onto Hobler's Bridge Road from the service station and travelled towards the traffic lights at the intersection of Penquite Road and Elphin Road.  ...  As the vehicle approached the lights, it crossed over the centre dividing lane twice onto the incorrect side of the roadway.  The vehicle was then stopped for a red traffic light, being the first vehicle in line.  At the change of lights to green the vehicle has [sic] been slow to move off and did so eventually at a low speed.  It then travelled north on Elphin Road for approximately 400 metres before police intercepted the vehicle.  Prior to that it had been observed for those 400 metres travelled slowly and meandered slightly over the traffic lane, although it did not cross over the centre line.  Police approached the driver of the vehicle who appeared very shaky.  The door was opened and the female driver was spoken to and it was obvious to police who formed the opinion that she was DUI.  She smelt strongly of intoxicating liquor.  Her speech was extremely slurred."

The appellant was arrested and observed by police to be unable to maintain her stance or to stand and walk unaided.  She was co-operative with the police.  There were no passengers in the vehicle.  A breathalyser test was administered and a blood alcohol reading of .318 was recorded.  The breathalyser charge was subsumed into the driving under the influence charge and dismissed. 

1. The appellant was 53 years of age and for the majority of her life had been involved in the profession of nursing.  She had been married for 27 years but the marriage had ended in the year previous to the events of 28 October.  Counsel told the learned magistrate that the appellant was "a person with a specific underlying problem and that is long-standing alcohol dependence".  Counsel told the court that since the offence the appellant had sold her car and had entered the Missiondale residential program.  He tendered medical reports in support of his submissions and told the court as follows:

"It's obvious from the reports that Mrs Wighton has been struggling with this condition for a considerable period of time and that struggle has included attending residential programs in the past but not staying the distance.  It would seem that the type of care offered by that program and the following support program spoken about by the Centrelink social worker is really just from her own personal point of view, her only real hope for the future.  I make this submission, your Worship, that one sentencing option that would be available to you in this case, is the making of a probation order including a condition that required Mrs Wighton to continue with the Missiondale program." 

The medical reports were comprehensive and compelling.  Dr Maclaine-Cross, her treating physician had known the appellant for over 20 years.  He had admitted her to hospital on three occasions for depression and alcohol dependence.  Following her offence in October, she was admitted to hospital in late November early December and advised by Dr Maclaine-Cross to enter a rehabilitation program.  She was re-admitted on 20 December suffering from "malnutrition secondary to her alcohol dependence, with increasing weakness and exacerbation of her pre-existing neurological deficits".  The opinion of the treating physician was summarised in her report tendered to the learned magistrate in the following terms:

"I have known Mrs Wighton over a period of 20 years.  Over most of this time she was a good citizen and a hard worker.  Over the time she has been under my care, over the last three to four months, she has acknowledged the serious nature of her problem of alcohol dependence and expressed a firm desire to overcome the problem.  Unfortunately, she already has subtle neurological damage to her frontal lobes, as well as a mild cerebella disorder, affecting her speech and gait.  She suffers from depression and low self-esteem.  Over recent years she's had to deal with the added stress of breast cancer and the breakdown of her marriage.  All of this has made it difficult for her, despite her best intentions, in over coming her problem. 

I do not believe that there is any prospect that she can overcome the problem without participation in a residential rehabilitation programme and I believe this would have to be closely supervised and for quite a prolonged period of time.  Anything under three months would not be adequate.  I think it would be better if the programme were for six months.

In considering her sentence, I would point out that her depression and her frontal lobe syndrome have made it difficult for her to overcome her problem, even though she has acknowledged she has a problem and has sought to overcome it and to co-operate in the treatment programmes that have been offered so far."

The existence of a neurological problem ought to have attracted the learned magistrate to the relevant sentencing principles stated by the Court of Criminal Appeal in Gilchrist v R [1982] Tas R 309 (NC 22). The report was accompanied by one provided by a psychologist who confirmed the assessment and advised that on 13 January 2004 she had entered the Missiondale Treatment Centre and had remained there at least until 29 January. He stated that the appellant had agreed to participate in a separate treatment program operated through Centrelink. A further statement by the Manager of the Missiondale Program confirming admission and progress was provided to the court.

1. The learned magistrate, during the course of submissions by counsel indicated that a significant matter was the fact that in January 1998 the appellant had been convicted of a similar offence with a reading of .292.  Counsel responded to that observation by stating:

"I have got no argument with that at all, your Worship, and I'm certainly aware of what one of your other options would be in this case.  My submission is having regard to the material that I have placed before you that a sentencing option which has as a very clear condition the requirement that Mrs Wighton attends and completes the relevant residential course.  Also it protects the public interest in the sense that it is directed towards the only real possibility of rehabilitation in relation to her case.  I've suggested a probation order, but there are other types of orders that can be made that include that as a condition.  In my submission it is only an option but it is an attractive option in this case."

The learned magistrate accepted that the appellant had had a long working life and had no doubt been a good citizen and contributed to the community.

1. In his comments in passing sentence he stated that he regarded the reading of .318 as being wickedly high and that he regarded the January 1998 conviction as being particularly significant.  He regarded that as being a "relatively recent prior conviction".  He then stated:

"The documents that have been handed up to the court indicate that you are alcohol dependent.  You have been struggling with that for some time.  No doubt that dependence has led in part, I am not certain of this, but your marriage has broken down, you're now in trouble with the law, and all in all it has been a gross negative in your life in recent times. 

I accept the proposition that you have been a good citizen and a contributor to society over many years, particularly in your nursing life.  But this court has apart from considering your legitimate requests for individualised treatment, this court also has a duty to the public at large.  And that is to protect them from people such as you who drive motor vehicles with wickedly high readings such as these and put other members of the public at risk. 

Dr Maclaine-Cross says that the only prospect – he says this:

'I do not believe that there is any prospect that she can overcome the problem – that is the alcohol problem – without participation in a residential rehabilitation program.'

And I note in relation to that that you did admit yourself to Missiondale, only at the last moment however, and I note also that you've now sold your car.  Both of which would indicate that you've endeavoured to demonstrate to the court that you are no longer going to be a risk to other road users.  I note that. 

This court would be in my view failing in its duty were it not to impose a sentence both by way of personal and general deterrence.  I believe that that penalty also should incorporate as a feature of it an element which is directed towards your personal rehabilitation. 

You are convicted upon the complaint and you are sentenced to a term of eight months' imprisonment.  I suspended the execution of four months of that sentence upon the condition that you make application for admission to Missiondale and are received by them upon the completion of four months of your sentence.  That is suspended for a period of 12 months.  You are disqualified from driving for four years, that will commence immediately upon you being released from prison.  And I order that you pay the victims of crime compensation levy of $20 together with costs of $26.60.  You will serve four months in prison, you will have four months hanging over your head for 12 months.  It is suspended conditioned that you apply for readmission and in fact are received by Missiondale at the expiration of the prison term."

1. The notice to review as originally framed claimed that "the sentence is manifestly excessive in all the circumstances".  During the course of the hearing the notice to review was amended to include a new ground 2 claiming specific error which reads:

(2)       That the learned magistrate erred in that:

(a)he found that the appellant had admitted herself to Missiondale only at the last moment, such finding being contrary to the evidence.

(b)he failed to give effect to his stated intention to provide for the appellant in rehabilitation by sentencing her to an immediate term of imprisonment which then necessarily terminated or interfered with the course of treatment being undertaken by her.

1. The learned sentencing magistrate was entitled to impose a condign penalty commensurate with the nature of the offence, the high blood alcohol concentration, the manner of driving and the risk to the public (Dobson v Clark 65/1983, Barrett v Pearce 6/1986, Tunks v Taws [2003] TASSC 58) and his discretionary exercise not lightly interfered with by appellate review (Miller v Visser 32/1998, Whittle v McIntyre [1967] Tas SR 263 (NC 6)). However, proportionality requires that sentences, more appropriate for persistent offenders, are inappropriate where the acts are isolated, by serious, transgression (Pugh v White [2003] TASSC 135).

1. The learned sentencing magistrate did not specifically define the duty of general and personal deterrence except as an all encompassing phrase.  He was dealing with a person with physiological and psychological problems.  The person had led a good and productive life.  Personal deterrence, in the sense that it is commonly used by sentencing tribunals, was not a significant factor in the process.  General deterrence, when regard is had to the age, life history and medical history of the offender was, likewise of little account unless its rationale be explained.  Personal rehabilitation was unlikely to be enhanced by an eight month sentence in the circumstances of this case.  Detention to permit detoxification might be justified as an end in itself but prolongation was unlikely to achieve the stated aim.  A further problem is caused by the term of suspension.  Four months of the sentence was suspended on condition that upon release the appellant "apply for re-admission and in fact are received by Missiondale at the expiration of the prison term". 

1. The condition as formulated ran contrary to the spirit of the Sentencing Act 1997, ss24 and 37, which requires participation in treatment as required by a public officer. Section 37 whilst not restricted pre-supposes that such treatment is available. Here the appellant had no control over whether Missiondale was able or agreeable to provide treatment. The material in the report of the psychologist shows the capacity of Missiondale to accept new admissions to be limited.

1. The effect of the order of the learned magistrate to sentence the appellant to an immediate sentence of imprisonment interrupted whatever benefits her admission to the Missiondale program might have provided and ran counter to his stated objective of rehabilitation.  The report of Mr Smith, the manager of the program certifying that the appellant was "currently a resident on our recovery programme" was dated 5 February 2004, the date of the sentencing hearing.  Although the material before this Court does not establish whether as at 13 February the appellant was a resident of the program but the submission of her counsel that "the statement from the City Mission, in particular the Missiondale Centre Manager dated 5^th February 2004 which confirms that Mrs Wighton is currently engaged in a residential program at Missiondale" suggests that she was.  Irrespective of her then status, the order of immediate imprisonment interrupted the prospect of effective treatment and was contrary to the stated aim of the sentencing tribunal.  The opinion of her treating physician was that, "Anything under three months would not be adequate.  I think it would be better if the programme were for six months."

1. A further problem associated with the comments of the learned sentencing magistrate in passing sentence arises from his statement, "And I note in relation to that that you did admit yourself to Missiondale, only at the last moment however."  The statement ignores the report of Mr Hayes, the examining psychologist from Centrelink of 5 February 2004 which states, "The initial referral commenced on 16 September 2003 (a date before the commission of the offence), however there was a waiting list, and on 21^st January 2004, she was offered a place in the program".  The appellant had not been admitted "only at the last minute" but it is clear that she had attempted treatment before the commission of the offence.  She had been referred to the psychologist in August 2003, some two months previous to her act of driving.  That matter had been made obvious in the written material provided to the sentencing tribunal.  Its disregard led to the imposition of a sentence which was contrary to the subjective requirements of the offender and public policy.  The sentence reflected a single incident on the life of the offender which was elevated to a matter of public concern.

Conclusion

1. The grounds of appeal are sustained and the appeal ought be upheld.  That portion of the order of the Court of Petty Sessions made on 5 February sentencing the appellant to eight months' imprisonment and its partial suspension is quashed.