Anthony v Hibble - [2004] TASSC 67

[2004] TASSC 67

CITATION: Anthony v Hibble [2004] TASSC 67

PARTIES:  ANTHONY, Richard Dare Ellis
  v
  HIBBLE, Constable Kim
  VISSER, Sergeant Claas
  LUSTED, Constable Trudie Margaret
  RYAN, Constable Patrick Lawrence
  BONDE, Sergeant Michael Andrew
  FISHER, Stephen Leigh

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 9/2004
DELIVERED ON:  2 July 2004
DELIVERED AT:  Launceston
HEARING DATE/S:  25 June 2004
JUDGMENT OF:  Blow J

CATCHWORDS:

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Multiple breathalyser, false name, failure to appear, and other offences – Totality principle – Ineligibility for parole – Whether manifestly excessive.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  D G Grey
           Respondents:  J P Ransom
Solicitors:
           Applicant:  Zeeman Kable & Page
           Respondents:  Director of Public Prosecutions

Judgment ID Number: [2004] TASSC 67
Number of paragraphs: 9

Serial No 67/2004
File No LCA 9/2004

RICHARD DARE ELLIS ANTHONY v CONSTABLE KIM HIBBLE, SERGEANT CLAAS VISSER, CONSTABLE TRUDIE MARGARET LUSTED, CONSTABLE PATRICK LAWRENCE RYAN, SERGEANT MICHAEL ANDREW BONDE and STEPHEN LEIGH FISHER

REASONS FOR JUDGMENT BLOW J
2 July 2004

The applicant was sentenced by a magistrate to 15 months' imprisonment, with 5 months thereof suspended and no eligibility for parole, in relation to a series of charges under the Road Safety (Alcohol and Drugs) Act 1970, the Bail Act 1994, the Traffic Act 1925, the Motor Accidents (Liabilities and Compensation) Act 1973, the Vehicle and Traffic Act 1999, and the Traffic (Road Rules) Regulations 1999. This is a motion to review in respect of the sentencing orders made by the learned magistrate. The applicant contends that the sentence was manifestly excessive, and that the learned magistrate erred in refusing to set a non-parole period.

Details of the charges, and the maximum penalty under the relevant legislation for each of them, appear in the following table:

Complaint No Charge Date Section
Prison – Months

23673/96 Exceed .05 – .19 19.07.1996 s6(1) RSAD
24

23674/96 False name 19.07.1996 15(2)(b) RSAD
Act
6

Fail to appear 28.08.1996 s5(4) Bail Act
3

23676/96 Exceed .05 – 0.117 02.08.1996 s6(1) RSAD
12

False information
21.08.1996

s15(2)(b) RSAD
6

Fail to appear 02.10.1996 s5(4) Bail Act
3

17825/97 Breach of Bail 09.05.1997 s9 Bail Act
6

80259/97 False name 08.12.1996 s41(1)(a)
Traffic s52
1^1stoffence –
fine only

Unregistered motor vehicle 08.12.1996 s14(i)(c)(ii)
Traffic
1^st offence –
fine only

Uninsured motor vehicle 08.12.1996 s29(1) MA (L & C) Act
12

80258/97 False name 24.03.1997 s41(1)(a)
Traffic
3

Unregistered 24.03.1997 s14(1)(c)(ii) Traffic
3

Uninsured 24.03.1997 s29(1) MA (L & C) Act
12

33639/03 Unlicensed 02.11.2002 s8(1) Vehicle & Traffic Act
1^st offence –
fine only

Unregistered motor vehicle 07.11.2002 s27(1) Vehicle & Traffic Act
1^st offence –
fine only

Use mobile 07.11.2002 Reg300(1)
Traffic Road Rules
Fine only
$500

Unlicensed 23.11.2002 s8(1) Vehicle & Traffic Act
3

Unlicensed 27.11.2002 s8(1) Vehicle & Traffic Act
3

Use mobile 27.11.2002 Reg300(1)
Traffic Road Rules

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anthony v Hibble

Details

AGLC: Anthony v Hibble [2004] TASSC 67
Case: [2004] TASSC 67
Decision Date: 2 July 2004

CaseChat Overview and Summary

In the case of Anthony v Hibble, the appellant, Mr Anthony, sought a review of a sentence imposed by the Magistrates Court of Tasmania. The appellant was found guilty of several offences including providing a false name, multiple instances of driving with a blood alcohol concentration over the legal limit, and failure to appear in court. The total sentence imposed was substantial and included a term of imprisonment with ineligibility for parole, leading to Mr Anthony's application for a review of the sentence on the grounds that it was manifestly excessive.

The central legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account the totality of the circumstances, including the nature and seriousness of the offences, the appellant's criminal history, and the principles of sentencing. The court was tasked with determining whether the totality principle had been appropriately applied and whether the ineligibility for parole was justified under the circumstances.

The court considered the totality of the offences and the appellant's criminal history, noting the seriousness of the repeated breaches of driving laws and the appellant's failure to appear in court. The court found that while the sentence was severe, it was not manifestly excessive. It held that the sentence reflected the gravity of the multiple offences and the need to deter the appellant and others from similar conduct. The court also found that the ineligibility for parole was justified given the appellant's history and the nature of the offences. Ultimately, the court dismissed the application for review, affirming the original sentence.

The final orders of the court were that the application for review of the sentence imposed by the Magistrates Court of Tasmania be dismissed, and that the original sentence remain in place. The court's decision underscores the importance of considering the totality of the circumstances in sentencing, particularly in cases involving repeated and serious breaches of the law.

Orders