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Butcher v Lyons

Butcher v Lyons

Case [2018] TASSC 39 17 August 2018

Criminal Liability

Sentencing

Criminal Law

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[2018] TASSC 39
COURT: SUPREME COURT OF TASMANIA

CITATION: Butcher v Lyons [2018] TASSC 39

PARTIES:  BUTCHER, Nicholas Michael
  v
  LYONS, Jason
  KOEHLER, Renee

FILE NO:  LCA 309/2018
DELIVERED ON:  17 August 2018
DELIVERED AT:  Hobart
HEARING DATE/S:  4 July 2018
JUDGMENT OF:  Geason J

CATCHWORDS:

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving under influence of intoxicating liquor or drug – Sentence and penalty – Whether sentence manifestly excessive.

Aust Dig Traffic Law [1156]

Criminal Law – Sentence – Sentencing orders – Custodial orders – Other matters – Applications that offender be ordered to serve suspended sentences of imprisonment – Whether "unjust" to activate suspended sentences.

Sentencing Act 1997 (Tas), s 27.
Aust Dig Criminal Law [3352]

REPRESENTATION:

Counsel:
             Appellant:  In Person
             Respondent:  Sam Thompson
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 39
Number of paragraphs: 45

Serial No 39/2018
File No LCA 309/2018

NICHOLAS MICHAEL BUTCHER v JASON LYONS and RENEE KOEHLER

REASONS FOR JUDGMENT GEASON J

17 August 2018

On 31 January 2018 the applicant was sentenced to two months imprisonment on his plea of guilty to driving a motor vehicle whilst a prescribed illicit drug was present in his blood and driving whilst disqualified. He was disqualified from driving for 18 months.
As a result of these offences he was in breach of a suspended sentence of six weeks' imprisonment, which had been imposed on 24 November 2016. That sentence was imposed for breaches of a family violence order.
On an application made pursuant s 27 of the Sentencing Act 1997 for activation of the suspended sentence, the applicant did not show cause. He contended that activation of the suspended sentence would be unjust. When a court determines that it would be unjust to activate a suspended sentence, options are available to it, including leaving the sentence undisturbed.
The learned magistrate, Mr D R Fairley, determined that activation of the suspended sentence would not be unjust, and ordered that it be activated. He ordered that it be served cumulatively to the two months' imprisonment he imposed for the driving offences.
By his notice to review, the applicant recites the driving offences, and that cause was not shown in relation to the application to activate the suspended sentence. The notice refers to the penalty imposed for the driving offences, and to the direction that the applicant serve the suspended sentence. It then contends that the "learned magistrate erred in fact and law in imposing a sentence that was manifestly excessive in all the circumstances of the case".
On its face the notice to review did not explicitly challenge the order activating the suspended sentence. When the matter came on for hearing the applicant explained the notice was intended to raise these matters: that the sentence for the driving offences was manifestly excessive; that the activation of the suspended sentence was unjust; and that the overall period of…

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

AGLC: Butcher v Lyons [2018] TASSC 39
Case: [2018] TASSC 39
Decision Date: 17 August 2018

CaseChat Overview and Summary

The matter of Butcher v Lyons involved a challenge by the appellant against the sentence imposed by the Magistrates' Court of Tasmania. The appellant was convicted of driving under the influence of intoxicating liquor. The appeal was against the sentence, with the appellant arguing it was manifestly excessive. The appeal was heard by the Supreme Court of Tasmania.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The court was required to examine the principles of sentencing and the specific circumstances of the case to determine if the sentence was within the range of acceptable penalties for the offence. The court also needed to consider the gravity of the offence, the appellant's culpability, and any mitigating or aggravating factors.

The Supreme Court of Tasmania considered the principles of sentencing for driving under the influence of intoxicating liquor. It examined the appellant's criminal history, the level of intoxication, the circumstances of the offence, and the impact of the offence on the community. The court found that while the sentence was on the higher end of the scale, it was not manifestly excessive. The court noted that the appellant had a history of similar offences and that the sentence reflected the seriousness of the repeated behaviour. The appeal was dismissed.

The Supreme Court of Tasmania confirmed the sentence imposed by the Magistrates' Court, holding that it was not manifestly excessive. The court emphasised the importance of deterrence and the need to uphold the law's authority in cases involving driving under the influence. The sentence was considered appropriate given the appellant's history and the circumstances of the offence.

Orders