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Banks v Tasmania

Banks v Tasmania

Case [2019] TASCCA 1 7 February 2019

Statutory Interpretation

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[2019] TASCCA 1

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Banks v Tasmania [2019] TASCCA 1

PARTIES:  BANKS, Christopher Craig
  v
  STATE OF TASMANIA

FILE NO:  CCA 1427/2018
DELIVERED ON:  7 February 2019
DELIVERED AT:  Hobart
HEARING DATE:  15 November 2018
JUDGMENT OF:  Brett and Geason JJ, Porter AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Dangerous driving – Where dangerous driving recently made a crime under the Criminal Code and no longer a summary offence – Erratic and high speed driving during lengthy police pursuit – Physical intervention required to stop appellant driving when stationary at a traffic light – Appellant with relevant prior convictions – Relevance of evading police and driving without a licence where such charges pending in lower court – Sentence of 18 months' imprisonment with a non-parole period of 9 months not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  L Mason SC
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASCCA 1
Number of paragraphs: 58

Serial No 1/2019
File No CCA 1427/2018

CHRISTOPHER CRAIG BANKS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BRETT J
GEASON J
PORTER AJ
7 February 2019

Order of the Court

Appeal dismissed.

Serial No 1/2019
File No CCA 1427/2018

CHRISTOPHER CRAIG BANKS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BRETT J
7 February 2019

I have had the benefit of reading the draft reasons for judgment of Porter AJ. I agree with everything his Honour has said and his conclusion that the appeal should be dismissed. However, I would like to comment further on one peripheral aspect of his Honour's reasons.
My comments concern the interaction between the offence of dangerous driving and the offence of evading police under s 11A(1) and (2A) of the Police Powers (Vehicle Interception) Act 2000. In this case, the charge of evading police is still pending in the Magistrates Court. I agree with Porter AJ's conclusion that the principle in R v De Simoni (1981) 147 CLR 383 did not preclude the learned sentencing judge from taking into account as an aggravating factor that the appellant drove dangerously in the course of evading police. The fact that such driving occurs in the course of escape from police, adds the factor of desperation to the driving and decision-making during the course of the driving, which, in turn, adds significantly to the potential danger arising from that driving. Accordingly, the circumstance is directly related to the dangerous nature of the driving, and it is therefore appropriate to take that factor into account in assessing the objective seriousness of the dangerous driving, notwithstanding that it would also constitute an offence which is not before the sentencing court. It may also have relevance to other sentencing considerations, including the need for general and personal deterrence.

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 Banks v Tasmania

Details

AGLC: Banks v Tasmania [2019] TASCCA 1
Case: [2019] TASCCA 1
Decision Date: 7 February 2019

CaseChat Overview and Summary

Banks appealed against a sentence of 18 months' imprisonment with a non-parole period of 9 months imposed by the Supreme Court of Tasmania. The appeal concerned the severity of the sentence for dangerous driving, which had recently become a criminal offence under the *Criminal Code* rather than a summary offence. The appellant's conduct involved erratic and high-speed driving during a prolonged police pursuit, culminating in physical intervention to stop the vehicle when it was stationary at a traffic light. The appellant also had relevant prior convictions.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the sentence imposed was manifestly excessive or inadequate, thereby justifying interference on appeal. The Court was required to consider the nature and seriousness of the dangerous driving, the appellant's criminal history, and the relevance of pending charges for evading police and driving without a licence, which had not yet been finalised in a lower court.

The Court reasoned that the appellant's driving constituted a serious instance of dangerous driving, particularly given the length of the pursuit and the need for physical intervention. The Court acknowledged the appellant's prior convictions as a relevant factor in sentencing. While the pending charges were noted, the Court ultimately found that the sentence of 18 months' imprisonment with a non-parole period of 9 months was not manifestly excessive, considering the gravity of the offence and the appellant's history. The appeal was dismissed.

Orders