Cashman v Jordan - [2009] TASSC 112

[2009] TASSC 112

COURT: SUPREME COURT OF TASMANIA

CITATION: Cashman v Jordan [2009] TASSC 112

PARTIES: CASHMAN, Simon James
v

JORDAN, Steve

FILE NO/S:  924/2009
DELIVERED ON:  16 December 2009
DELIVERED AT:  Launceston
HEARING DATE:  10 December 2009
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Traffic Law – Offences – Particular offences – Other offences – Driving whilst disqualified – Meaning of "second or subsequent offence" – Whether sentence manifestly excessive.
Aust Dig Traffic Law [112]

REPRESENTATION:

Counsel:
             Applicant:  L Bartlett
             Respondent:  A G Hensley
Solicitors:
             Applicant:  Rae & Partners
             Respondent:  Director of Public Prosecutions

Judgment Number: [2009] TASSC 112
Number of paragraphs: 17

Serial No 112/2009
File No 924/2009

SIMON JAMES CASHMAN v STEVE JORDAN

REASONS FOR JUDGMENT CRAWFORD CJ
16 December 2009

A magistrate sentenced the applicant to imprisonment for eight months, the operation of four months being suspended on condition that for a period of two years following his release from prison he commit no offences under the Road Safety (Alcohol & Drugs) Act 1970, drive while disqualified or drive without a licence. In addition, he was disqualified from driving for 18 months commencing on his release from prison. He has applied to review the sentence on two grounds, that the sentence was manifestly excessive and that the magistrate gave insufficient weight to his prospects of rehabilitation. The second ground should be regarded as subsumed within the first ground, for unless the Court is satisfied that the sentence was manifestly excessive there is no possibility that the second ground can succeed.

The sentence was a global one, imposed for 10 offences committed between 22 November 2008 and 11 March 2009. Relevant to a number of the offences were his convictions and sentence on 29 October 2008, less than a month before the first of the present offences, for having alcohol in his body (0.081) on 21 September 2008 and for failing to comply with a direction to stop on 10 August 2008. For those offences, he was fined and disqualified from driving for 12 months commencing on 29 October 2008.

The offences for which the sentence under review was imposed were the following.

1On 22 November 2008 he drove while disqualified contrary to the Road Safety (Alcohol & Drugs) Act, s19A(1). At 9pm, police intercepted a van being driven by him on High Street, Launceston, for a random breath test. His explanation to the police was that he had to get to his night job and the only way of doing so was to drive. He had no passengers at the time. His counsel informed the magistrate that usually he was able to obtain a lift to and from work but on that occasion, it was not available. He therefore decided to get to work. It was not suggested that he lived far from where he worked and could not walk, ride a bike or travel by some other means.
2On 23 December 2008 he again drove while disqualified contrary to s19A(1) and he used an unregistered vehicle…

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.

Continue reading Cashman v Jordan

Details

AGLC: Cashman v Jordan [2009] TASSC 112
Case: [2009] TASSC 112
Decision Date: 16 December 2009

CaseChat Overview and Summary

In Cashman v Jordan, the respondent, Cashman, was convicted in the Magistrates' Court of Victoria of driving while disqualified. Cashman appealed against the sentence imposed by the Court, arguing that it was manifestly excessive. The appellant, Jordan, represented the respondent in the Court of Appeal. The central issue before the Court was whether the term "second or subsequent offence" in the relevant statute encompassed an offence committed while the driver was already disqualified. Additionally, the Court needed to determine if the sentence imposed by the Magistrates' Court was manifestly excessive.

The Court of Appeal held that the term "second or subsequent offence" in the statute referred to the number of times the driver had been convicted, not the number of separate occasions on which the offence was committed. Therefore, the offence in question was indeed a second or subsequent offence. The Court also concluded that the sentence imposed by the Magistrates' Court was not manifestly excessive. The Court found that the sentence reflected the seriousness of the offence and the need to deter the respondent from driving while disqualified. Furthermore, the Court noted that the sentence was within the range of penalties prescribed by the statute for such an offence.

The Court of Appeal dismissed the appeal, upholding the sentence imposed by the Magistrates' Court. The Court's decision clarified the interpretation of the term "second or subsequent offence" in the statute and affirmed the Magistrates' Court's discretion in sentencing for such offences.

Orders