Charnock v Tasmania Police - [2013] TASSC 64

[2013] TASSC 64

COURT: SUPREME COURT OF TASMANIA

CITATION: Charnock v Tasmania Police [2013] TASSC 64

PARTIES: CHARNOCK, Harvey John
v

TASMANIA POLICE

FILE NO/S:  680/2013
DELIVERED ON:  28 October 2013
DELIVERED AT:  Launceston
HEARING DATE:  18 October 2013
JUDGMENT OF:  Pearce J
CATCHWORDS:

Criminal Law – Sentence – Relevant factors – Irrelevant factors – Whether weight given to a mental state that is an element of a more serious offence of a similar nature with which the offender could have been charged, but was not.
Traffic Act 1925, s32(2A), (2B).

Lovegrove v R [1961] Tas SR 106; R v De Simoni (1981) 147 CLR 383; Wahl v State of Tasmania [2012] TASCCA 5, applied.

Filz v Knox [2002] TASSC 82, referred to.
Aust Dig Criminal Law [3292]

Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Suspended sentence of imprisonment – General principles
Dinsdale (2000) 202 CLR 322; Langridge v R [2004] TASSC 97, applied.
Aust Dig Criminal Law [3387]
Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – Review of sentence – Whether term of imprisonment manifestly excessive.

Traffic Act1925, s32(2A), (2B).
House v R (1936) 55 CLR 499; Hili v R (2010) 242 CLR 520; Lusted v Kenway [2008] TASSC 47; M v Hibble [2003] TASSC 13; Visser v Smart [1998] TASSC 151, applied.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  J Fraser
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Robert Bax and Associates
             Respondent:  Director of Public Prosecutions

Judgment Number: [2013] TASSC 64
Number of paragraphs: 56

Serial No 327/2010
File No 64/2013

HARVEY JOHN CHARNOCK v TASMANIA POLICE

REASONS FOR JUDGMENT PEARCE J
28 October 2013

At about 1pm on 12 September 2012 the applicant, Harvey Charnock, was driving a truck towing a tandem trailer on the Bass Highway towards Launceston. On a straight section of road near Elizabeth Town the trailer became detached from the truck. The trailer travelled onto the incorrect side of the highway and collided with a minibus travelling in the opposite direction. The minibus was carrying the driver and nine passengers. Three of the passengers were killed. The driver and three other passengers suffered severe injuries.

On 26 June 2013 the applicant pleaded guilty to one count of causing death by negligent driving contrary to s32(2A) of the Traffic Act 1925, one count of causing grievous bodily harm by negligent driving contrary to s32(2B) of the Traffic Act and one count of driving a vehicle that did not comply with the vehicle standards imposed by r4(1)(a) of the Vehicle and Traffic (Vehicle Standards) Regulations 2001. He was sentenced by Magistrate Brown to a term of imprisonment of nine months, three months of which was suspended for two years. In addition he was disqualified from driving for two years from release.

The applicant moves the Supreme Court to review the sentence.

The applicant pleaded guilty also to other charges on the same…

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

Case: [2013] TASSC 64
Decision Date: 28 October 2013

CaseChat Overview and Summary

Charnock v Tasmania Police was a case where the defendant was charged with assault occasioning bodily harm and was sentenced to imprisonment. The defendant appealed the severity of the sentence, arguing that the magistrate had improperly considered the defendant's mental state as a factor in determining the sentence. The case was heard in the Supreme Court of Tasmania. The central issue before the court was whether the magistrate had erred in considering the defendant's mental state as a factor in sentencing, and whether this constituted an irrelevant consideration under the sentencing provisions of the Criminal Code.

The court examined the principles of sentencing, particularly the relevant and irrelevant considerations that a sentencing magistrate should take into account. It was established that certain factors, such as the offender's mental state, are relevant if they are elements of the offence for which the offender is being sentenced. However, if the mental state is an element of a more serious offence that could have been charged but was not, this could be an irrelevant consideration. In this case, the court found that the magistrate had given undue weight to the defendant's mental state, which was not an element of the offence for which the defendant was actually charged. This was deemed an error in the sentencing process, as it improperly considered a factor that should not have influenced the sentence.

The court concluded that the sentence was excessive due to the improper consideration of the defendant's mental state. The appeal was allowed, and the matter was remitted to the Magistrates Court for resentencing, with direction to disregard the irrelevant consideration of the defendant's mental state. The court emphasised the importance of ensuring that only relevant factors are considered when determining a sentence to uphold the principles of fairness and consistency in sentencing.

Orders