Clarke v McKenna and Weston - [2023] TASSC 39

[2023] TASSC 39

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Clarke v McKenna and Weston [2023] TASSC 39
PARTIES:	CLARKE, Daniel Reginald v MCKENNA, Peter and WESTON, Adam
FILE NO:	1419/2023
DELIVERED ON:	30 October 2023
DELIVERED AT:	Hobart
HEARING DATE:	24 October 2023
JUDGMENT OF:	Pearce J
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentencing orders

– Driving with illicit drug in blood, driving while disqualified, and other driving offences – Sentence of

imprisonment not manifestly excessive.

Road Safety (Alcohol and Drugs) Act 1970, s 6A, s 19A.
Aust Dig Magistrates [1349]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Applicant: D Allen
Respondent: A Hogan

Solicitors:

Applicant: Tasmania Legal Aid
Respondent: Director of Public Prosecutions

Judgment Number:	[2023] TASSC 39
Number of paragraphs:	19

Serial No 2023/39 File No 1419/2023

DANIEL REGINALD CLARKE v PETER McKENNA and ADAM WESTON

REASONS FOR JUDGMENT

PEARCE J

30 October 2023

1 The applicant moves to review sentencing orders made by a magistrate, Mr S Brown, on 26 May 2023. The respondents are the police officers who made the relevant complaints. The applicant was found guilty of, or pleaded guilty to, a number of offences, mostly driving offences, some of which were committed in breach of a ten week suspended sentence. The learned magistrate activated the suspended sentence to commence from 26 February 2023. He imposed fines totalling $1,250 and disqualified the applicant from driving for a total period of 21 months. The magistrate also imposed a term of imprisonment of four months to be served cumulatively to the activated suspended sentence. The motion to review was filed in June 2023 but by the time it came to be listed before me, the applicant had completed the sentence and been released. No application for bail was made.
2 The applicant contends that imposition of the four month term, to be served cumulatively to the activated suspended term, resulted in a total term of imprisonment which was manifestly excessive. For the following reasons the sentence was not manifestly excessive and the motion to review must be dismissed.

The offences and the circumstances of offending

3 The term of imprisonment ordered by the magistrate was for driving offences committed by the applicant on 24 June 2021 and for a further driving offence and a bail breach committed in March 2023. I will outline the circumstances of the offending in chronological order.
4 Following a hearing conducted before the learned magistrate on 26 May 2023, the applicant was found guilty of the offences committed on 24 June 2021: driving with prescribed illicit drug in blood contrary to the Road Safety (Alcohol and Drugs) Act 1970, s 6A, driving while disqualified contrary to the Road Safety (Alcohol and Drugs) Act 1970, s 19A, using a motor 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.

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Details

Case: [2023] TASSC 39
Decision Date: 30 October 2023

CaseChat Overview and Summary

The case before the court was an appeal against a decision made by the Magistrates Court of Tasmania. Clarke appealed the sentencing of McKenna and Weston, who had been found guilty of various driving offences including driving with an illicit drug in their blood and driving while disqualified. The court was tasked with reviewing the sentence handed down by the Magistrates Court.

The primary legal issue before the court was whether the sentence imposed by the Magistrates Court was manifestly excessive or inadequate. The court had to consider the seriousness of the offences, the culpability of the offenders, and the principles of sentencing. In particular, the court needed to determine whether the Magistrates Court had erred in law or failed to take into account relevant factors when imposing the sentence.

The court held that the Magistrates Court had considered the relevant factors and had not erred in law. It found that the sentence was appropriate in the circumstances, taking into account the seriousness of the offences and the need for deterrence and rehabilitation. The court also noted that the Magistrates Court had correctly exercised its discretion in imposing the sentence. Consequently, the appeal was dismissed.

The court did not make any further orders beyond dismissing the appeal. It confirmed the original sentencing order of the Magistrates Court, which included a fine and a suspension of the offenders' driving licenses.

Orders