Wilkie v Fewkes - [2016] TASSC 18

[2016] TASSC 18

COURT: SUPREME COURT OF TASMANIA

CITATION: Wilkie v Fewkes [2016] TASSC 18

PARTIES:  WILKIE, Scott
  v
  FEWKES, Marty James

FILE NO:  2706/2015
DELIVERED ON:  5 April 2016
DELIVERED AT:  Hobart
HEARING DATE:  24 March 2016
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentencing orders – Whether sentence manifestly inadequate – Driving with alcohol in blood and whilst unlicensed – Repeat offender.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
           Applicant:  S Thompson
           Respondent:  T Kovacic
Solicitors:
           Applicant:  Director of Public Prosecutions

Judgment Number: [2016] TASSC 18
Number of paragraphs: 17

Serial No 18/2016
File No 2706/2015

SCOTT WILKIE v MARTY JAMES FEWKES

REASONS FOR JUDGMENT BLOW CJ

5 April 2016

This a motion for the review of some sentencing orders made by a magistrate, Mr G Hay. The respondent pleaded guilty to charges of driving with alcohol in his blood and driving whilst unlicensed. The applicant, a police officer, contends that the penalties imposed by the learned magistrate were manifestly inadequate.
The charges relate to a single incident. On the night of 27 June 2015 the respondent drank a small amount of alcohol at the Brooker Inn. He left the Brooker Inn in a vehicle driven by a friend, but took over the driving in order to investigate a problem with the steering. He was stopped by police officers for a random breath test on Derwent Park Road, Moonah. He was not the holder of a driver licence. He participated in a breath analysis and elected to have a blood test. That test revealed a blood alcohol concentration of 0.021%.
It is an offence for an unlicensed driver to drive a motor vehicle with any alcohol present in his or her body: Road Safety (Alcohol and Drugs) Act 1970, s 6(2). The respondent pleaded guilty to a charge under that section, and, as I have said, to a charge of driving whilst not the holder of a driver licence. The learned magistrate convicted him on both charges and made the following sentencing orders:
·    He sentenced him to 2 months' imprisonment, wholly suspended on condition that, for a period of 30 months, he was to commit no offences punishable by imprisonment and be of general good behaviour.
·    He ordered him to undertake 22 hours' community service.
·    He ordered him to complete the Sober Driving Program.
·    He imposed a probation order, for a period of 9 months, with special conditions that I need not recite.
·    He disqualified him from holding or obtaining a driver licence for a period of 30 months.
The respondent had a large number of prior convictions for driving offences. Because of his prior convictions, the applicant contends that the sentences were manifestly inadequate, and that the learned magistrate should have sent him to prison.
In relation to the drink-driving charge, s 17(5) of the Road Safety (Alcohol and Drugs) Act required the learned magistrate, subject to there being no special circumstances, to impose a fine of between 4 and 20 penalty units ($616 – $3,080) and/or a term of up to 6 months' imprisonment, as well as a driving disqualification for a period between 6 and 24 months. On the charge of driving whilst unlicensed, s 8(1) of the Vehicle and Traffic Act 1999 prescribed as maximum penalties for a second or subsequent offence a fine not exceeding 40 penalty units ($6,160) or imprisonment for a term not exceeding 3 months. Under s 17(1) of that Act, the learned magistrate had the power to disqualify the respondent from driving for a period specified by him. It seems that Act did not place any limit on the length of a disqualification.
The respondent had seven prior convictions for drink-driving offences, committed in April 1994 (with a reading of 0.059%), June 1995 (with a reading of 0.196%), July 1997 (with a reading of 0.147%), August 1999 (with a reading of 0.189%), June 2001 (with a reading of 0.215%), December 2007 (with a reading of 0.122%), and June 2012 (with a reading of 0.158%). On the second, third and fourth of those occasions, the respondent drove whilst disqualified. On each of the others, he drove whilst unlicensed. Altogether, he had four convictions for driving whilst disqualified, but only three for driving whilst unlicensed. He went to prison for some of these offences – in 2000, 2002, and 2013. He also received a number of suspended sentences and a number of community service orders. He had convictions for other, less serious, driving offences.
As a consequence of his seventh drink-driving offence, he was sentenced to 6 months' imprisonment, with 5 months of that sentence suspended on condition that he commit no offence punishable by imprisonment for a period of 2 years. That period expired in January 2015. He was also disqualified from driving for a period of 2 years that expired in January 2015. He was unable to get a driver licence when the disqualification period expired because of outstanding fines.
The learned magistrate obtained a pre-sentence report from a probation officer. That officer reported that the respondent completed the Sober Driving Program in 2014, and thereafter abstained from alcohol, except on the night in question. His counsel told the learned magistrate that he had a cold that night, and that he had a couple of nips of a drink that the bar attendant said would be good for his cold. His Honour was told that there was a problem with the steering of the car, that the respondent drove in order to test the steering, and that he was pulled over almost immediately. There was no suggestion that there was anything wrong with his driving.
The respondent was 39 years old when he was sentenced. He and his wife had been together for about 20 years. They had three children aged 19, 17 and 7 years. His wife had cancer. It was a stressful time for the family. One of the children had a drug problem. His mother-in-law had recently died, and the family was going through a time of grief.
The respondent was in steady employment in a managerial position with a cleaning business. He was acting as a volunteer youth worker, helping out with soup kitchens. He was diagnosed with post-traumatic stress disorder and depression following the death of his brother in 2002, but did not undergo any counselling or begin taking any medication.
The probation officer recommended that the learned magistrate make a community service order for 22 hours so that the respondent could again complete the Sober Driving Program. She reported that the respondent suffered from osteoarthritis, and that as a result he was considered unsuitable for the worksite commitments of a community service order.
The learned magistrate was required to impose a sentence that was designed to deter the respondent from re-offending, and to act as a general deterrent to others. The respondent did not contravene the conditions of a suspended sentence imposed in October 2008, which remained in force for 2 years, nor did he contravene the conditions of the partly suspended sentence imposed in January 2013, which also remained in force for 2 years. The learned magistrate made an observation to the effect that suspended sentences appeared to operate as a deterrent in his case.
As Evans J observed in Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, 20 Tas R 399, at [9], "there is a marked divergence between the views of the judiciary and the community in relation to the impact of suspended sentences". There is a tendency for members of the public to regard a suspended sentence as scarcely being any punishment at all. That view is misconceived, but it is a common perception that should be taken into account in assessing the likely effect of a package of sentencing orders by way of general deterrence.
However a driving disqualification for 30 months is a very substantial penalty. The maximum period of disqualification that could be imposed for a second or subsequent drink-driving offence involving a blood alcohol concentration of less than 0.05% was 24 months. The learned magistrate had the power to impose a longer disqualification under s 17 of the Vehicle and Traffic Act because the respondent had driven whilst unlicensed. A driving disqualification is a major handicap in the employment market, as well as a source of great personal inconvenience. In the circumstances, I think such a lengthy disqualification should be regarded as a penalty that should act as a general deterrent.
Although the respondent was a repeat offender, there were a number of factors that weighed in favour of a somewhat lenient package of penalties. He had no intention of driving far. There was nothing wrong with the way he drove. His blood alcohol reading was by no means a worrying one. He was unlicensed, not disqualified. He did not have the means to pay off his fines and get a driver licence. He had made excellent progress towards overcoming an alcohol problem. He was in steady employment. His family circumstances were tragic. Having regard to those matters, I do not think it can be said that anything short of actual imprisonment was "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505.
If the respondent had been considered fit for community service work, it would have been appropriate for the learned magistrate to have ordered him to perform a significant number of hours of community service, but he was considered unsuitable. Having regard to all the circumstances of the offences and the offender, I consider that the suspended prison sentence and the lengthy driving disqualification were adequate penalties for the purposes of denunciation and personal and general deterrence.
I am not satisfied that the penalties imposed by the learned magistrate were manifestly inadequate. I think they were quite appropriate. I have therefore decided to dismiss the motion to review.