CITATION: Brown v Lusted and Parker [2015] TASSC 45
PARTIES: BROWN, Shane v LUSTED, Gary (Sergeant) PARKER, John Martin (Senior Sergeant)
FILE NO: 388/2015 DELIVERED ON: 2 October 2015 DELIVERED AT: Launceston HEARING DATE: 9 September 2015 JUDGMENT OF: Pearce J
CATCHWORDS:
Traffic Law – Offences – Particular offences – Driving in manner dangerous to public – Penalty – Persistent offender – Whether sentence manifestly excessive.
Traffic Act 1925 (Tas), s 32(1). Aust Dig Traffic Law [1114]
Magistrates – Appeal and review – Tasmania – Motion to review – Procedure and evidence – No denial of natural justice in determining factual basis for sentence – Remorse as a mitigating factor.
Counsel: Applicant: M Doyle Respondents: S Nicholson Solicitors: Applicant: Clarke & Gee Respondents: Acting Director of Public Prosecutions
Judgment Number: [2015] TASSC 45 Number of paragraphs: 45
Serial No 45/2015
File No 388/2015
SHANE BROWN v SERGEANT GARY LUSTED and SENIOR SERGEANT JOHN MARTIN PARKER
REASONS FOR JUDGMENT PEARCE J
2 October 2015
The applicant, Shane Brown, moves this Court to review a sentence imposed by Magistrate Brett on 9 April 2015. On 12 March 2015 the applicant pleaded guilty to 11 summary offences, all committed on 3 December 2014:
· driving a motor vehicle while a prescribed illicit drug, methylamphetamine, was present in his blood (Road Safety (Alcohol and Drugs) Act 1970, s 6A(1));
· failing to stop at the scene of a crash (Traffic Act, s 32(2));
· secreting himself within the curtilage of a dwelling (Police Offences Act1935, s 14A(1)(b));
· possessing a controlled drug, methylamphetamine (Misuse of Drugs Act 2001, s 24); and
· failing to use all reasonable care and precautions in respect to a syringe (HIV/AIDS Preventative Measures Act 1993, s 36).
The learned magistrate imposed one sentence. He sentenced the applicant to imprisonment for 2½ years, to be served cumulatively to a sentence of imprisonment the applicant was then serving. His Honour made no order for parole. He made a probation order for a period of 18 months to commence on the applicant's release from prison, and disqualified the applicant from driving for five years. There are two grounds for the motion:
"(a)that the sentence is manifestly excessive;
(b)that the learned magistrate failed to provide procedural fairness to the applicant on the issue of the applicant's claim to remorse."
The circumstances of the offending
The conduct which is the subject of the charges…
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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Brown v Lusted and Parker [2015] TASSC 45
Case
[2015] TASSC 45
Decision Date
CaseChat Overview and Summary
In the matter of Brown v Lusted and Parker, the Federal Court of Australia was tasked with evaluating the sentencing of a defendant found guilty of driving in a manner dangerous to the public. The respondent, Brown, appealed against the severity of the sentence imposed by the lower court. The appellants, Lusted and Parker, represented the Crown in this appeal. The central issue before the court was whether the sentence imposed was manifestly excessive, particularly given that the respondent was classified as a persistent offender. The court was required to consider the principles of sentencing and the discretion of the trial judge in determining an appropriate penalty for the offence committed.
The court examined the sentencing principles relevant to the case, including the need for the sentence to reflect the seriousness of the offence and to serve as a deterrent. It considered the nature of the offence, which involved driving in a manner dangerous to the public, and the classification of the respondent as a persistent offender. The court also assessed whether the sentence was manifestly excessive, taking into account the totality of the circumstances and the principles of proportionality and deterrence. It was noted that the trial judge had exercised their discretion in imposing the sentence, and the court had to determine whether this discretion was properly exercised.
In its decision, the court concluded that the sentence was not manifestly excessive. It found that the trial judge had appropriately considered the relevant sentencing principles and the aggravating factors in the case, including the respondent's status as a persistent offender. The court held that the sentence reflected the seriousness of the offence and served the purposes of deterrence and denunciation. Consequently, the appeal was dismissed, and the original sentence was upheld. The court's decision affirmed the importance of judicial discretion in sentencing and the need to balance the principles of proportionality and deterrence.