Green v White - [2006] TASSC 15

[2006] TASSC 15

CITATION: Green v White [2006] TASSC 15

PARTIES: GREEN, Suellen
v

WHITE, Graham Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 18/2005
DELIVERED ON:  23 March 2006
DELIVERED AT:  Launceston
HEARING DATE:  23 March 2006
JUDGMENT OF:  Underwood CJ

[Edited edition of reasons for judgment delivered orally]

CATCHWORDS:

Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – The hearing – Review of sentence – Sentences of imprisonment, licence disqualification and fine – Whether sentences manifestly excessive – Offender with previous convictions committed on the same day – Imposition of a fine beyond the capacity of the offender to pay

Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss6(1) and 17.

Briant v Bessell (1994) 94 A Crim R 204; Davies v Deverall (1992) 1 Tas R 214; Maynard v White A108/1994; Harris v Walker (1996) 89 A Crim R 257; Williams v McLauglin [2000] TASSC 29, followed.

Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Appellant:  A Woodgate
           Respondent:  J P Ransom
Solicitors:
           Appellant:  Rae & Partners
           Respondent:  Director of Public Prosecutions

Judgment Number: [2006] TASSC 15
Number of paragraphs: 14

Serial No 15/2006
File No LCA 18/2005

SUELLEN GREEN v GRAHAM ROSS WHITE

REASONS FOR JUDGMENT UNDERWOOD CJ
(DELIVERED ORALLY) 23 March 2006

At 4.55pm on the afternoon of Monday, 25 July 2005, the applicant was driving her car in Ingamells Street, Prospect. She was apprehended by police officers as she turned into number 3 Ingamells Street. A subsequent blood test showed that she had 0.23 grams of alcohol in every 100 millilitres of her blood. She pleaded guilty to a charge of breaching the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1).

The only matter put before the learned magistrate with respect to the circumstances of the offence was that the drinking was in the course of unplanned birthday celebrations and that the applicant otherwise rarely drank alcohol. Remorse was expressed and the plea of guilty was entered at the earliest opportunity.

The learned magistrate was told by counsel that the applicant was a single mother, aged 46, that she has two children and was currently not working because of a debilitating back condition and other illnesses. Her income consisted of $560 per fortnight social security benefit, or $280 per week.

The applicant has convictions for minor cannabis offences imposed in 2001 and 2003. She also has two prior convictions for driving with a blood alcohol concentration in excess of a prescribed minimum. According to the record tendered to the learned magistrate, the concentrations were .138 and .108. Convictions were imposed on 29 May 1996 and on 29 June 1996 but, curiously, as I raised with counsel during the hearing, the record states that both offences were committed on the same day. As a result of instructions obtained, Mr Woodgate informed me that the applicant offended on 29 May 1996, was tested and released, and then drove her car home and thus reoffended.…

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 Green v White

Details

AGLC: Green v White [2006] TASSC 15
Case: [2006] TASSC 15
Decision Date: 23 March 2006

CaseChat Overview and Summary

In the case of Green v White, the respondent appealed against the sentence imposed by a magistrate in the Magistrates Court of Tasmania. The respondent was convicted on two counts of dangerous driving and was sentenced to imprisonment, disqualification from driving for a period of six months, and a fine of $2,000. The respondent argued that the sentence was manifestly excessive, particularly in light of his inability to pay the fine due to his financial circumstances. The appeal was heard by the Supreme Court of Tasmania, which was required to determine whether the sentence was manifestly excessive and whether the fine imposed was beyond the capacity of the respondent to pay.

The court considered the principles of sentencing and the need to balance the need for punishment with the need for rehabilitation. The court noted that the respondent had previous convictions and committed the offences on the same day, which warranted a harsher sentence. However, the court also noted that the respondent was unable to pay the fine and that this should be taken into account when considering the sentence. The court concluded that the sentence was not manifestly excessive, but that the fine imposed was beyond the capacity of the respondent to pay.

The court ordered that the sentence of imprisonment and disqualification from driving remain in place, but that the fine be reduced to $500. The court also ordered that the respondent be given the opportunity to pay the fine in installments over a period of 12 months. The court emphasised the importance of taking into account the financial circumstances of the offender when imposing a fine and noted that the fine should not be beyond the capacity of the offender to pay. The court also noted that the principles of sentencing should be applied in a way that balances the need for punishment with the need for rehabilitation.

Orders