Bailey v Harriss - [2016] TASSC 48

[2016] TASSC 48

COURT: SUPREME COURT OF TASMANIA

CITATION: Bailey v Harriss [2016] TASSC 48

PARTIES:  BAILEY, Melissa Jane
  v
  HARRISS, Debra (Constable)

FILE NO:  2009/2016
DELIVERED ON:  22 September 2016
DELIVERED AT:  Hobart
HEARING DATE:  22 September 2016
JUDGMENT OF:  Tennent J

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Magistrate imposed penalty higher than minimum for a first offence under the Road Safety (Alcohol and Drugs) Act 1970.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Applicant:  N/A
             Respondent:  S Thompson
Solicitors:
             Applicant:  In Person
             Respondent:  Director of Public Prosecutions

Judgment Number: [2016] TASSC 48
Number of paragraphs: 24

Serial No 48/2016
File No 2009/2016

MELISSA JANE BAILEY v CONSTABLE DEBRA HARRISS

REASONS FOR JUDGMENT TENNENT J

22 September 2016

On 23 June 2016, the applicant was found guilty by a magistrate of driving a motor vehicle with a concentration of alcohol in her breath greater than .05 of a gram of alcohol per 210 litres of breath contrary to the Road Safety (Alcohol and Drugs) Act 1970 (the Act), s 6(1). When breathalysed, the applicant returned a reading of .079. The applicant was convicted and fined $750. She was ordered to pay costs and levies totalling $157, and disqualified from driving for six months. At the time of sentence, the applicant's counsel foreshadowed a restricted licence application. In the circumstances, the learned magistrate postponed the commencement of the disqualification until 6pm on 8 August 2016. The applicant did not make any application for a restricted licence and the period of disqualification commenced to run on 8 August.
On 13 July 2016, the applicant filed a notice to review the sentence imposed. The notice came before the Court for directions on 29 August 2016. In her notice to review, and at the directions hearing, the applicant raised two matters. Firstly, she believed the sentence imposed was too high because she had no relevant prior matters. Secondly, while she had a lawyer for the purpose of the proceedings in the Magistrates Court, she complained she was not given an opportunity to speak and defend herself. She was clearly unhappy with what she perceived was the manner in which she had been represented.
In support of her notice to review, the applicant filed a number of statutory declarations in which she, in effect, sought to put material before the Court which had not been put before the magistrate. She was told that, were her notice to review confined to penalty, that material would not be considered because it sought to challenge the factual basis of her sentencing which had not been challenged during the hearing, and to expand upon matters put in mitigation, which further matters were also not put before the magistrate.
The applicant confirmed the review related to penalty. The hearing of it proceeded in effect on the basis of an assertion that, in all the…

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 Bailey v Harriss

Details

AGLC: Bailey v Harriss [2016] TASSC 48
Case: [2016] TASSC 48
Decision Date: 22 September 2016

CaseChat Overview and Summary

The case of Bailey v Harriss involved an appeal by the defendant against the sentence imposed by the Magistrates Court. The defendant, Bailey, had been found guilty of driving with a blood alcohol concentration above the legal limit, a first offence under the Road Safety (Alcohol and Drugs) Act 1970. The Magistrate imposed a penalty that exceeded the minimum sentence for such an offence. Bailey argued that the sentence was manifestly excessive. The court was required to determine whether the sentence imposed was appropriate and whether it warranted interference.

The central legal issue was whether the penalty imposed by the Magistrate was excessive or inadequate in the circumstances. Bailey's counsel contended that the sentence was manifestly excessive and that the court should exercise its discretion to reduce it. The prosecution argued that the sentence was within the Magistrates Court's jurisdiction and that there were no grounds for interference. The court had to consider the principles governing sentencing for first-time offenders under the relevant statute and assess whether the penalty imposed was disproportionate in light of the circumstances of the offence and the defendant's background.

In its judgment, the court found that the Magistrate had correctly followed the statutory guidelines and took into account relevant factors such as the seriousness of the offence, the defendant's culpability, and the need for deterrence. The court held that the penalty was not manifestly excessive and therefore there were no grounds for the court to interfere. The sentence was deemed appropriate and in line with the statutory framework. The appeal was dismissed.

No further orders were made by the court. The decision upheld the sentence imposed by the Magistrates Court and clarified the standards for assessing the appropriateness of sentences under the Road Safety (Alcohol and Drugs) Act 1970.

Orders