Wordsworth v Lowe; Wordsworth v Kenney
[1988] TASSC 52
•17 October 1988
Serial No 46/1988
List “A”
COURT: SUPREME COURT OF TASMANIA
CITATION: Wordsworth v Lowe; Wordsworth v Kenney [1988] TASSC 52; A46/1988
PARTIES: WORDSWORTH
v
LOWE
WORDSWORTH
v
KENNEY
FILE NO/S: LCA 100/88
LCA 101/88
DELIVERED ON: 17 October 1988
JUDGMENT OF: Underwood J
Judgment Number: A46/1988
Number of paragraphs: 14
Serial No 46/1988
List "A"
File Nos LCA 10088
LCA 10188
WORDSWORTH v LOWE
WORDSWORTH v KENNEY
REASONS FOR JUDGMENT UNDERWOOD J
17 October 1988
The applicant was charged and, on the 23 August 1988, convicted and sentenced as follows:–
Complaint No 595588: On the 22 March 1988, destroyed property – two glass panels – sentenced to one month's imprisonment wholly suspended upon condition that, within 24 hours of his release from prison, the applicant apply to the John Edis Hospital for admission either as an in–patient or an out–patient and submit to such treatment as may be directed by medical officers for three months. There is no application to review this sentence.
Complaint No 876488: On the 28 May 1988, drove a motor vehicle under the influence of liquor and drove a motor vehicle whilst disqualified from holding or obtaining a driver's licence. Sentenced to three months' imprisonment on each matter of complaint, the first sentence to commence on the 12 August 1988 and the second to be served at the expiration of the first.
Disqualified from holding or obtaining a driver's licence for two years from the expiration of a period of disqualification imposed by the Supreme Court on the 22 December 1986.
Complaint No 876588: On 28 May 1988, drove a motor vehicle with a blood alcohol content in excess of .05% to wit .17%. Conviction recorded. (The same facts ground this offence and the offence of driving under the influence). There is no application to review this penalty.
Complaint 1110388: On the 29 July 1988, drove a motor vehicle without the consent of the owner. Sentenced to three months' imprisonment to be served at the expiration of the other periods of imprisonment.
Complaint No 1110288: On the 29 July 1988, drove a motor vehicle whilst disqualified from holding or obtaining a driver's licence and gave police a name calculated to mislead police officers. Sentenced to three months' imprisonment to be served at the expiration of the other periods of imprisonment and conviction recorded respectively. There is no application to review the conviction recorded.
Complaint No 1192388: On the 8 August 1988 drunk, and disorderly. Conviction recorded. (No application to review).
There are two motions to review. Together, they seek a review of each sentence of imprisonment and the total effective sentence of twelve months imprisonment on the ground that individually or cumulatively the penalty was manifestly excessive.
The sentences were imposed for offences committed on two separate occasions. At 1.30am on the 28 May 1988 the applicant, then disqualified from holding or obtaining a driver's licence, drove his brother's car to a hotel in George Town. There he consumed a large amount of alcohol. He drove from the hotel and, on becoming aware of the presence of police, sought to avoid apprehension by driving at high speeds along various streets until forced to stop at the end of a cul–de–sac. When spoken to by the police he said, "I've got to give you guys some fun eh". Later it was ascertained by blood analysis that the concentration of alcohol in his blood was .17 per cent.
On the 29 July 1988 the applicant and another had been drinking at the Maypole Hotel. From the hotel car–park the applicant took a motor vehicle and drove it until stopped about 9.30pm by police on the Lyell Highway at Gretna. The applicant gave the police a "false name" and, as they were then unaware that the vehicle was being driven without the owner's permission, the applicant was allowed to proceed. He was later apprehended and admitted that he had been driving whilst disqualified.
On the 12 July 1988, five weeks before he was sentenced to the terms of imprisonment, the applicant turned 19. Apart from a sentence of seven days' imprisonment he had not previously served a custodial sentence notwithstanding an appalling record of previous convictions all of which were imposed between February 1987 and 1988. In addition to a number of convictions for offences of dishonesty, the applicant has the following previous convictions involving the use of motor vehicles:
Motor vehicle stealing (1)
Dangerous driving (1)
Unlicenced driver (5)
Unregistered vehicle (2)
Uninsured vehicle (2)
Drive whilst disqualified (1)
First year driver with alcohol in his body (2)
Fail to stop at the direction of the police (1)
Drive without lights (1)
Apart from the sentence of seven days (served on remand), all previous convictions resulted in fines, community service orders or suspended terms of imprisonment.
The learned magistrate obtained a report from the Probation Service before proceeding to sentence. This report disclosed that the applicant was a product of an economically deprived background, almost illiterate and prone to anti–social conduct. In 1982 and 1983 he spent 12 months in hospital recovering from accidental burns to 79% of his body. In 1986 a brother, to whom he was emotionally attached, died in a freak accident. The probation report describes the applicant as being a person who holds himself in low esteem and admits to having a serious problem with alcohol. From the report it appears that the only time the applicant does not feel inadequate is when he is behind the wheel of a motor vehicle. The report contains the following positive passages:
"Some realisations seem to have been made after the defendant's most recent brushes with the law. He has admitted that alcohol has become a serious problem and that some form of treatment is very necessary in the near future. He claims that he wants to admit himself to the John Edis Hospital as soon as practicable. Further to this revelation is a renewed motivation for some form of vocational training, in particular a chef or catering course. It may be argued that these are reactions to his court appearances but in this defendant's case any motivation is to be welcomed. The most positive part of the defendant's response to supervision has been his reasonable contact record. It would suggest that the defendant does derive some benefit from supervision in being able to be counselled when particularly depressed about his 'lot in the world'.
In summary the defendant's biggest drawbacks are his withdrawn nature and lack of vision in terms of life alternatives. The writer is loath to give up on one so young and in such obvious need of direction in his life but it is difficult to perceive any constructive options that are available to the court. The defendant is under the supervision of this Service until May 1990." [My emphasis]
Viewed individually, each sentence of three months' imprisonment is well within the sentencing discretion of the magistrate and could not be categorised as manifestly excessive. It remains to consider whether a total of 12 months' imprisonment together with the suspended sentence of one month's imprisonment, imposed at the same time but with respect to an unrelated matter, offends what has become known as the "totality principle". This principle is described by D A Thomas in "The Principles of Sentencing" (2nd ed) at p56 as follows:
"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'".
See also Brakey v The Queen CCA 21987; Wise v The Queen [1965] Tas R 196 at p209; McIntosh v Lowe, Cox J 5682.
The Justices Act 1959 does not give justices a power to impose a single penalty for a number of offences even when they arise out of a single criminal episode. The imposition of separate sentences was the only permissible course open to the learned magistrate. However such sentences must not together constitute a sentence disproportionate to the total criminal conduct. 12 months' immediate custodial imprisonment was imposed for two episodes of driving a motor vehicle contrary to the law. On the first occasion the applicant's manner of driving could be described as negligent if not reckless but he was not charged with either offence. See R v De Simoni (1981) 35 ALR 265 at p268; Lovegrove v The Queen [1961] Tas R 106 at p107. On the second occasion the "stolen" vehicle was recovered undamaged. The maximum sentence for driving whilst disqualified is six months' imprisonment for a second or subsequent offence. Were it not for the youth of the applicant I would not consider the total effective sentence of 12 months' imprisonment to be manifestly excessive. However, although by no means inexperienced, the applicant was at the time of sentencing a youthful offender who had not previously served a term of imprisonment. The applicant's previous convictions disentitle him to mitigation of penalty on account of good antecedents. However, there still remained some prospects for his rehabilitation, a fact recognised by the learned magistrate by the conditional suspension of execution of one month's imprisonment on Complaint No 595588. In the case of youthful offenders the community has an interest in fostering a prospect of rehabilitation. This is an important factor and weighs heavily in the scales against the deterrent factor. It is of particular importance on a consideration of the effect of the totality of a number of sentences for the prospect of rehabilitating a youthful offender must not be extinguished by a total sentence which, in the circumstances, is crushing. In my view, error occurred in that insufficient weight was given to this aspect of the sentencing discretion and the sentences viewed together have resulted in a penalty that is manifestly excessive.
I allow the applications. The sentences of imprisonment are quashed and in lieu thereof the following sentences are imposed:
On Complaint No 876488, a sentence of three months' imprisonment upon each matter of complaint to be served concurrently. The sentences to commence on 12 August 1988. Disqualified from holding or obtaining a driver's licence for two years to commence at the expiration of the period of disqualification imposed by the Supreme Court on 22 December 1986.
On Complaint No 1110388, a sentence of three months' imprisonment to be served at the expiration of the sentences imposed upon Complaint No. 876488.
On Complaint No 1110288, a sentence of three months' imprisonment the execution of which will be suspended upon condition that the applicant be of good behaviour for a period of 12 months from the date of his release from prison.
No probation order is necessary as one is in force until May 1990.
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