Gibbins v White - [2004] TASSC 8

[2004] TASSC 8

CITATION: Gibbins v White [2004] TASSC 8

PARTIES:  GIBBINS, Melissa Jane
  v
  WHITE, Sergeant Graham

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 40/2003
DELIVERED ON:  25 February 2004
DELIVERED AT:  Launceston
HEARING DATE/S:  11 February 2004
JUDGMENT OF:  Crawford J

CATCHWORDS:

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving under influence of intoxicating liquor or a drug – Penalty – "First offence" – Serious case – Whether three months' imprisonment manifestly excessive.
Aust Dig Traffic Law [79]

REPRESENTATION:

Counsel:
             Applicant:  A Slicer
             Respondent:  J P Ransom
Solicitors:
             Applicant:  Beeton & Mansell
             Respondent:  Director of Public Prosecutions

Judgment ID Number: [2004] TASSC 8
Number of paragraphs: 24

Serial No 8/2004
File No LCA 40/2003

MELISSA JAYNE GIBBINS v SERGEANT GRAHAM WHITE

REASONS FOR JUDGMENT CRAWFORD J
25 February 2004

The applicant pleading guilty before a magistrate to four offences committed on 5 April 2003, namely:

1driving a vehicle under the influence of intoxicating liquor, contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s4(a);
2driving a motor vehicle while alcohol was present in her blood in a concentration (0.267 grams of alcohol in 100 millilitres of blood) that was greater than the prescribed concentration of 0.05 grams per 100 millilitres, contrary to the Act, s6(1);
3exceeding the speed limit of 110 kph by driving at 135 kph, contrary to the Traffic (Road Rules) Regulations 1999, reg20 and 21(1);
4overtaking when it was unsafe to do so, contrary to reg140(a) and (b).

Because of the principles referred to in Wood v Major (1992) 3 Tas R 249, the learned magistrate dismissed the second count but took into account the blood alcohol concentration that was the subject of that charge.

The applicant was convicted of the three remaining counts and sentenced to three months' imprisonment, fined $1,000, ordered to pay costs of $94.10 and disqualified from driving for two years cumulative to an existing period of disqualification to which she was subject. She applied to review the sentence on the ground that it was manifestly excessive.

The facts surrounding the offences were as follows. At about 2.15pm she was driving a Toyota sedan in an easterly direction along the Bass Highway between Ashley Detention Centre and Exton. She had two passengers. The speed limit was 110 kph, but she was travelling at 135kph. She proceeded to overtake a number of vehicles travelling in the same direction, crossing into the lane reserved for traffic coming in the opposite direction. Upon seeing an oncoming vehicle approaching, she slammed on the brakes and caused the vehicle to skid for 40 metres until it left the road, slammed into a ditch and rolled a number of times, coming to rest on its side 88 metres from where it had left the road. Rescue workers and police attended the scene. Her passengers managed to get out but she was trapped inside the vehicle and had to be released.…

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 Gibbins v White

Details

AGLC: Gibbins v White [2004] TASSC 8
Case: [2004] TASSC 8
Decision Date: 25 February 2004

CaseChat Overview and Summary

In the case of Gibbins v White, the appellant, Gibbins, challenged the decision of the Magistrates Court of Tasmania to sentence him to three months’ imprisonment for driving under the influence of intoxicating liquor, which was his first offence. The primary dispute centred on whether the sentence imposed was manifestly excessive given the nature of the offence and the appellant’s first-time status.

The legal issues before the court were twofold. Firstly, the court needed to determine whether the sentence of three months' imprisonment was appropriate for a first-time offender under the circumstances. Secondly, the court had to assess whether the penalty imposed was manifestly excessive, considering the statutory framework and the sentencing principles applicable in Tasmania.

The court deliberated on the relevant statutory provisions and case law to assess the severity of the sentence. It considered the appellant's clean prior record and the lack of any aggravating factors in the commission of the offence. Ultimately, the court concluded that while the case was serious, the sentence was not manifestly excessive. The court emphasised the importance of deterrence and the need for a balanced approach in sentencing first-time offenders. Therefore, the appeal was dismissed, and the original sentence was upheld.

The court did not make any additional orders beyond affirming the original sentence of three months' imprisonment.

Orders