Brown v Lusted and Parker

Case [2015] TASSC 45


[2015] TASSC 45

COURT:  SUPREME COURT OF TASMANIA

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.

W v Tasmania [2007] TASSC 24, followed.
Aust Dig Magistrates [1348]

REPRESENTATION:

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

  1. 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:

    ·     dangerous driving (Traffic Act 1925, s 32(1));

    ·     evading police (Police Powers (Vehicle Interception) Act 2000, s 11A(1));

    ·     two counts of driving while disqualified (Vehicle and Traffic Act 1999, s 13(1));

    ·     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));

    ·     driving a motor vehicle which was unregistered (Vehicle and Traffic Act, s 27(1)) and uninsured (Motor Accidents (Liabilities and Compensation) Act 1973, s 29(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 Act 1935, 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).

  2. 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

  1. The conduct which is the subject of the charges…

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Brown v Lusted and Parker [2015] TASSC 45
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[2015] TASSC 45
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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.

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