Chatwin v Godfrey - [2013] TASSC 70

[2013] TASSC 70

COURT: SUPREME COURT OF TASMANIA

CITATION: Chatwin v Godfrey [2013] TASSC 70

PARTIES:  CHATWIN, Damien John
  v
  GODFREY, Jessica
  MINEHAN, Christopher
  McKENNA, Peter
  MORTEN, Andrew
  DUNHAM, Taneka

FILE NO:  1034/2013
DELIVERED ON:  8 November 2013
DELIVERED AT:  Hobart
HEARING DATE:  31 October 2013
JUDGMENT OF:  Porter J

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive – Imprisonment for driving with an illicit drug present in the blood and separate act of driving whilst disqualified – Whether sentence manifestly excessive – Appreciable time gap since previous similar offending but other traffic offences in the interim.

Aust Dig Criminal Law [3521]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Other matters – Appeal against activation of suspended term of imprisonment – Sentence imposed for offences of dishonesty – Applicant in breach by committing driving offences punishable by imprisonment – Whether magistrate erred in ordering activation.

Tanner v Brown [2011] TASSC 59, considered.
Aust Dig Criminal Law [3525].

REPRESENTATION:

Counsel:
             Applicant:  N Everett
             Respondents:  S Nicholson
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondents:  Director of Public Prosecutions

Judgment Number: [2013] TASSC 70
Number of paragraphs: 26

Serial No 70/2013
File No 1034/2013

DAMIEN JOHN CHATWIN
v JESSICA GODFREY and OTHERS

REASONS FOR JUDGMENT PORTER J

8 November 2013

On 25 September 2013 the applicant was sentenced by Magistrate Brett to four months' imprisonment on a global basis, the execution of three months of which was suspended on condition the applicant commit no offence punishable by imprisonment for 18 months. The sentence was made cumulative to an activated term of two months' imprisonment which had been imposed by a different magistrate on 28 February 2011. That sentence was imposed for what is described as unlawful possession of property. In addition, the magistrate ordered that the applicant be disqualified from driving for a period of 12 months which was backdated to 7 May 2013, in order to take into account a bail condition.

The sentence of four months' imprisonment was imposed in relation to the following charges:

· Driving whilst an illicit drug was present in his blood, contrary to s6A(1) of the Road Safety (Alcohol and Drugs) Act 1970, committed on 17 August 2011.
·     Driving whilst disqualified (for unlicensed driving), using an unregistered vehicle, and using a vehicle in respect of which no premium had been paid, all committed by one act of driving on 18 December 2012.
·     Failing to appear on 24 January 2013.
·     Using a motor vehicle with no number plate affixed or displayed, committed on 25 April 2013.

The applicant has moved to review the orders both of sentence and the activation of the suspended sentence. The order of disqualification is not in issue. The amended notice to review contains three grounds. The first ground alleges error of law in that it was unjust to impose the outstanding period of the suspended sentence in…

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 Chatwin v Godfrey

Details

AGLC: Chatwin v Godfrey [2013] TASSC 70
Case: [2013] TASSC 70
Decision Date: 8 November 2013

CaseChat Overview and Summary

Chatwin appealed against the sentence imposed on him by the Magistrates Court for driving with an illicit drug present in his blood and for driving whilst disqualified. The appeal focused on the sentence being manifestly excessive, given the appreciable time gap since previous similar offending, despite other traffic offences occurring in the interim. The court was tasked with determining whether the sentence was excessive and whether the magistrate erred in ordering the activation of a suspended term of imprisonment.

The legal issues the court had to address included whether the sentence was manifestly excessive considering the mitigating factors and the timing of the previous offences, and whether the magistrate was correct in activating a suspended term of imprisonment for driving offences. The court examined the principles governing the imposition of sentences for such offences and the circumstances that might justify activating a suspended sentence. The court needed to balance the need for deterrence with the principles of proportionality and justice.

The court found that the sentence was not manifestly excessive. While acknowledging the time gap since the previous similar offending, the court emphasised the importance of addressing the repeated traffic offences. The court also found that the magistrate did not err in activating the suspended term of imprisonment, as the driving offences were serious and warranted a custodial sentence. The appeal was dismissed, and the original sentence was upheld.

The final orders were that the appeal against the sentence was dismissed, and the activation of the suspended term of imprisonment was affirmed. The original sentence remained in place.

Orders