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Bimson, Roads & Maritime Services v Damorange Pty Ltd

Bimson, Roads & Maritime Services v Damorange Pty Ltd

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Case Copied 30 May 2014 49 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734
Hearing dates: 29 May 2014
Decision date: 30 May 2014
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
The appeal is dismissed.

Catchwords: APPEAL - road safety offences - appeal to Supreme Court from sentence imposed by Local Court - appeal restricted to a ground that involves a question of law alone - scope of appeal - necessity to identify question of law in abstract terms - alleged manifest inadequacy in sentence does not raise question of law alone - use of transcript of exchanges between counsel and the Bench to contradict sentencing judgment - misapprehension of jurisdictional limit of Local Court immaterial to sentence imposed - error in relation to maximum sentence for some offences - raises question of law - scope of discretion conferred by s 59(b) of Crimes (Appeal and Review) Act 2001 - error solely caused by statement to the Court by prosecutor - whether Court should consider "merits" of sentence when exercising discretion not to intervene.
Legislation Cited: - Crimes (Appeal and Review) Act 2001 (NSW), s 56, s 59
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5, s 5D
- Road Transport (General) Act 2005 (NSW) s 6, s 178
- Road Transport (General) Amendment (Heavy Vehicle Driver Fatigue and Speeding Compliance) Regulation 2008 (NSW), reg 156
- Road Transport (General) Regulation 2005 (NSW), reg 156
- Road Transport Legislation Amendment Act 2008 (NSW), s 11C
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 6, s 69A, s 69C, Div 2A
- Road Transport (Safety and Traffic Management) Regulation 1999 (NSW), reg 139
- Supreme Court Act 1970 (NSW), 75A
Cases Cited: - Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
- Barbaro v R [2014] HCA 2
- David Morse (Office of the State Revenue) v Chan [2010] NSWSC 1290
- DPP v Wunderwald [2004] NSWSC 182
- HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292
- Hili v R [2010] HCA 45; 242 CLR 520
- House v R [1936] HCA 40; 55 CLR 499
- Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
- Markarian v R [2005] HCA 25; 228 CLR 357
- Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78, 51 NSWLR 673
- R v Allpass (1993) 72 A Crim R 561
- R v Jermyn (1985) 2 NSWLR 194
- R v Jessop [1974] Tas SR 64
- R v JW [2010] NSWCCA 49; 77 NSWLR 7
- R v PL [2009] NSWCCA 256
- R v PL [2012] NSWCCA 31
- Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Ltd [2008] NSWSC 936
- Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230
-…

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.

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Details

Case: [2014] NSWSC 734
Decision Date: 30 May 2014

CaseChat Overview and Summary

In Bimson, Roads & Maritime Services v Damorange Pty Ltd, the appellant, Roads & Maritime Services, sought to appeal the sentence imposed by the Local Court on Damorange Pty Ltd, which had been found guilty of road safety offences. The appeal was brought to the Supreme Court, restricted to a single ground involving a question of law. The primary issue before the court was whether the Local Court's sentence was manifestly inadequate, which would constitute a question of law. The appellant argued that the sentence was excessive and did not properly consider the statutory maximum penalties applicable to the offences.

The court considered whether the alleged manifest inadequacy in the sentence raised a question of law, noting that such a claim would not typically fall within the scope of a legal appeal. The court also examined the use of the transcript of exchanges between counsel and the Bench to challenge the sentencing judgment. The appellant contended that the Local Court had misapprehended its jurisdictional limits, but the court found that this misapprehension was not material to the sentence imposed. Additionally, the appellant pointed out an error in the maximum sentence for some offences, which the court acknowledged as a question of law. The court then turned to the scope of discretion under section 59(b) of the Crimes (Appeal and Review) Act 2001, focusing on whether the error in the sentence was solely attributable to a statement made by the prosecutor. The court concluded that it should not consider the "merits" of the sentence when exercising its discretion not to intervene, but rather focus on the legal correctness of the sentence.

The Supreme Court dismissed the appeal, finding that the error in the maximum penalty did not warrant intervention. The court emphasised that the scope of its discretion under section 59(b) was limited to questions of law and did not extend to reviewing the merits of the sentence. The court held that the Local Court's error was not so significant as to warrant appellate intervention, as it did not affect the overall fairness of the sentence. The appeal was therefore dismissed, and the original sentence of the Local Court was upheld.

Orders