Carlson v Parr
[2003] TASSC 61
•28 July 2003
[2003] TASSC 61
CITATION: Carlson v Parr [2003] TASSC 61
PARTIES: CARLSON, Jamie Brian
v
PARR, Christopher (Acting Sergeant)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 20/2003
DELIVERED ON: 28 July 2003
DELIVERED AT: Launceston
HEARING DATES: 21 July 2003
JUDGMENT OF: Slicer J
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicant: E G Hughes
Respondent: M J Brett
Solicitors:
Applicant: Legal Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2003] TASSC 61
Number of Paragraphs: 12
Serial No 61/2003
File No LCA 20/2003
JAMIE BRIAN CARLSON v ACTING SERGEANT CHRISTOPHER PARR
REASONS FOR JUDGMENT SLICER J
28 July 2003
The applicant seeks review of a sentence of imprisonment of three months imposed by a court of petty sessions following his conviction for offences of dangerous driving, trespass and three breaches of the Poisons Act 1971. The sentence was composite and a result of two sentencing exercises.
The notice to review claims the sentence to be "manifestly excessive in all the circumstances".
Complaint 26867/02
The applicant was convicted of a serious offence of dangerous driving. The course of driving was prolonged, deliberate and inherently dangerous. There had been a history of animosity between the applicant and a former partner of his own current partner. On the evening of 29 January 2002, Mr Carlson, with two companions as passengers, used his motor vehicle as a form of harassment and intimidation of the complainant. The particulars of the complaint, as found proven by the learned magistrate, were that:
"1 on Weld Street Beaconsfield by driving your vehicle up to a position immediately behind the vehicle in front of you and repeatedly flashing your lights. 2 On Weld Street Beaconsfield by driving your vehicle up to a position immediately behind the vehicle in front of you, reducing your speed and then speeding up to the rear of the said vehicle. 3 On Weld Street Beaconsfield by driving your vehicle to a position alongside a vehicle travelling in the same direction on Weld Street on several occasions. 4 Subsequent to count one (1) on Weld Street Beaconsfield by driving your vehicle up to a position immediately behind the vehicle in front of you and flashing your headlights. 5 on Weld Street Beaconsfield by driving your vehicle to a position alongside a vehicle travelling in the same direction on Weld Street causing that vehicle to take evasive action to avoid a collision. 6 … 7 on Weld Street Beaconsfield by driving your vehicle up to a position immediately behind the vehicle in front of you. 8 on Weld Street Beaconsfield by driving your motor vehicle in such a manner as to box in a motor vehicle between your vehicle and a white Gemini sedan. 9 On West Tamar Highway Beaconsfield by driving your motor vehicle over the double white lines in the centre of the roadway. 10 Subsequent to count seven (7) on West Tamar Highway Beaconsfield by driving your motor vehicle up to a position immediately behind the vehicle in front of you. 11 Flinders Street Beauty Point by driving your motor vehicle to a position alongside a motor vehicle travelling in the same direction on Flinders Street and remaining in that position on the incorrect side of the roadway. 12 Flinders Street Beauty Point by driving your motor vehicle in such a manner as to cut in front of a motor vehicle travelling in the same direction on Flinders Street causing that vehicle to brake to avoid a collision. 13 Flinders Street beauty Point by driving your motor vehicle whilst part of your body is out side the drivers side door window."
Particular 6 alleging an act of "driving [his] motor vehicle into the side of" the complainant's vehicle was dismissed, since the learned magistrate was not satisfied that the act of collision was intentional, but was instead a product of the course of driving. However that finding did not alter the general finding that it was the applicant's course of driving which brought about a collision between the two vehicles.
There were four episodes of driving. Initially, the applicant pursued the complainant's vehicle which contained his three children. The complainant attempted to escape and returned to his home where he collected his partner and a fourth child. He was further pursued after leaving his residence. Such was the fear engendered by the conduct of the applicant that police were notified during the course of the chase. A passenger of the applicant's vehicle, who gave evidence at the hearing, stated that he had felt frightened during the episode.
The course of driving, which included a collision, was inherently dangerous and in no way could be categorised as a momentary lapse of concentration or attention.
The act of trespass occurred when the offender pursued the complainant to his home.
Complaint 28972/02
Following the hearing and conviction for the act of dangerous driving, the applicant entered pleas of guilty to three offences of possession and use of cannabis and possession of a smoking device. The offences occurred on 5 March 2002, and the charges were laid following a search, with warrant, of the applicant's home.
Background of offender
Mr Carlson was aged 30. It was said that he suffered from anxiety and depression and that rehabilitation ought be the determining factor in the assessment of penalty. He had a record of convictions commencing in 1988 which included those for breaches of traffic and drug laws and acts of dishonesty. Significant to any determination of penalty were four occasions of illegal use and possession of prohibited plants or substances, two of driving whilst disqualified, three of drink driving and one of assault resulting in an order that he keep the peace, to a person named, for a period of 18 months. He had been given the benefit of a suspended sentence and, in January 2002, ordered to undertake 70 hours of community service following his conviction on drug related charges. The record showed a persistent course of antisocial conduct. Mr Carlson was neither a youth nor a first offender.
Penalties
The Traffic Act 1925, s32, prescribes a maximum penalty of two years' imprisonment and 50 penalty units for the offence of dangerous driving. The offence of trespass attracts a maximum penalty of twelve months' imprisonment by virtue of the Police Offences Act 1935, s14B, while the Poisons Act 1971, s55(c) and (d), provides for a penalty of 50 penalty units or imprisonment for a term not exceeding 2 years. The penalty imposed by the learned magistrate of three months' imprisonment and licence disqualification for two years related to five offences committed on two occasions. Its length showed some accommodation for the principle of rehabilitation (Parker v Gleeson 66/1991) whilst reflecting the seriousness of the act of dangerous driving (Sheldrick 41/1960; R v Percy [1975] Tas SR 62) and the record of the offender (Cirkel v White [1980] Tas R 91). In his comments on passing sentence, the learned magistrate said:
"This was a case that involved actual danger but fortunately no injuries were sustained as a result of this act of driving. I note your age, I note your family and employment situation and history and I also note the medical matters to which Mr Hughes made reference last week. So far as prior offending is concerned I note that you are a persistent drug offender and you do have an unacceptable driving record but nothing as serious as this. There is a need to deter others from driving motor vehicles in this way and a term of imprisonment is the only appropriate penalty."
Those conclusions were warranted. The sentence imposed was within the permitted range and not manifestly excessive.
The motion to review is dismissed.
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