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Barnes v Entresz

Barnes v Entresz

Case [2018] TASSC 45 2 October 2018

Criminal Liability

Sentencing

Criminal Law

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[2018] TASSC 45

COURT: SUPREME COURT OF TASMANIA

CITATION: Barnes v Entresz [2018] TASSC 45

PARTIES:  BARNES, Alisha
  v
  ENTRESZ, Aaron Richard

FILE NO:  1038/2018
DELIVERED ON:  2 October 2018
DELIVERED AT:  Hobart
HEARING DATE:  2 July 2018
JUDGMENT OF:  Geason J

CATCHWORDS:

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving with more than prescribed concentration of alcohol in breath or blood – Sentence and penalty – Whether sentence manifestly inadequate.

Aust Dig Traffic Law [1158]

Criminal Law – Sentence – Sentencing orders – Discretion to record conviction – Relevant considerations.
Aust Dig Criminal Law [3411]

REPRESENTATION:

Counsel:
             Applicant:  S Thompson
             Respondent:  G Stevens
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  G Stevens

Judgment Number: [2018] TASSC 45
Number of paragraphs: 42

Serial No 45/2018
File No 1038/2018

CONSTABLE ALISHA BARNES v AARON RICHARD ENTRESZ

REASONS FOR JUDGMENT GEASON J

2 October 2018

The respondent pleaded guilty to driving with an excessive concentration of alcohol in his blood, contrary to s 6(1) of the Road Safety (Alcohol and Drugs) Act 1970 (The Act). Magistrate G A Hay fined him $650 and imposed six months' licence disqualification. Pursuant to s 7(e) of the Sentencing Act 1997, the learned magistrate declined to record a conviction.
The applicant moves the Court to review this sentence on the ground that it is manifestly inadequate.
At the hearing of this appeal leave was granted to add a second ground in the following terms:
"The learned magistrate erred in fact in finding that the respondent 'pleaded guilty essentially at the earliest opportunity', when such a finding was not reasonably open to him."
An appellate court sits to correct material error: Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 per Kirby J at [57]–[60]. In Green v The Queen [2011] HCA 49, 244 CLR 462 at 477, the High Court stated the principles which are relevant to a Crown appeal. It said that the purpose was "to lay down principles for the governance and guidance that courts have in the duty of sentencing convicted persons. That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges".
In Everett v The Queen (1994) 181 CLR 295 at 300, the High Court explained that the reference to principles in Green (above) is to be understood as encompassing the avoidance of manifest inadequacy or inconsistency in sentencing standards.
It is established that it is not the function of the Court to overturn a sentence merely because it is considered to be lenient: Director of Public Prosecutions v Bradford [2016] TASCCA 14 at [14]. It is important that appellate courts respect the wide discretion vested in a sentencing court; Postiglione v The Queen (1997) 189 CLR 295. As Kirby J noted in that case, at 337, "the proper approach is one of vigilance within a context of appellate restraint".
In this…

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 Barnes v Entresz

Details

AGLC: Barnes v Entresz [2018] TASSC 45
Case: [2018] TASSC 45
Decision Date: 2 October 2018

CaseChat Overview and Summary

Barnes was charged with driving with more than the prescribed concentration of alcohol in his breath. He was found by the Magistrates Court of Tasmania to have a blood alcohol concentration of 0.118 per cent and was fined $800 and disqualified from driving for three months. Barnes appealed to the Supreme Court of Tasmania, arguing that the sentence was manifestly inadequate.

The primary issue for the court was whether the sentence imposed by the Magistrates Court was manifestly inadequate. The court was required to consider whether the sentence imposed was appropriate in the circumstances of the case and whether it reflected the seriousness of the offence. The court was also required to consider whether the sentence was sufficient to achieve the purposes of sentencing, including deterrence and rehabilitation.

The court held that the sentence was manifestly inadequate. The court found that the offence involved a significant breach of public safety and that the sentence imposed did not reflect the seriousness of the offence. The court noted that the sentence was at the lower end of the range of sentences typically imposed for similar offences and that it did not provide sufficient deterrence or rehabilitation. The court also noted that the sentence did not reflect the principles of parity and proportionality in sentencing. As a result, the court allowed the appeal and ordered a re-sentencing hearing.

The final orders of the court were that the appeal be allowed and that the matter be remitted to the Magistrates Court for re-sentencing. The court did not specify what the appropriate sentence should be, leaving that decision to the discretion of the Magistrates Court.

Orders