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Harper v Gauden

Harper v Gauden

Case [2003] TASSC 66 1 August 2003

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[2003] TASSC 66

CITATION: Harper v Gauden [2003] TASSC 66

PARTIES:  HARPER, Robyn Edna
  v
  GAUDEN, Tadeusz John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 47/2003
DELIVERED ON:  1 August 2003
DELIVERED AT:  Hobart
HEARING DATE:  25 July 2003
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Traffic Law – Licensing of drivers – Tasmania – Disqualification and cancellation and suspension of licenses - Multiple breathalyser offences – Separate concurrent sentences of imprisonment - Whether manifestly inadequate - Single period of disqualification – Whether technically incorrect.
Tunks v Taws [2003] TASSC 58; Dinsdale v The Queen (2000) 202 CLR 321, referred to.
Sentencing Act 1997(Tas), s3.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s17.
Aust Dig Vehicles and Traffic [26]

REPRESENTATION:

Counsel:
             Appellant:  F Neasey
             Respondent:  S Chopping
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  S Chopping

Judgment Number: [2003] TASSC 66
Number of paragraphs: 12

Serial No 66/2003
File No LCA 47/2003

ROBYN EDNA HARPER v TADEUSZ JOHN GAUDEN

REASONS FOR JUDGMENT COX CJ
1 August 2003

The respondent was convicted of one count of driving under the influence of intoxicating liquor contrary to the Road Safety (Alcohol and Drugs) Act 1970, s4(a) ("the Act") and of one count of refusing a breath analysis contrary to the Act, s14(2). Both offences occurred on 26 February 2003, the first on Peltrow Street, Glenorchy, at about 1.00 pm on a weekday and the second at the Hobart Breath Analysis Section at about 2.00 pm. He pleaded guilty on 1 May 2003 to both charges and, on 30 May 2003, the learned magistrate imposed on the first charge a sentence of eight months' imprisonment, wholly suspended upon condition that he commit no offence against the Act for a period of three years. On the second charge she imposed a sentence of eight months' imprisonment, to be served concurrently with that on the first charge and its execution was wholly suspended on the same condition. The learned magistrate further ordered that upon the whole complaint the respondent be disqualified for holding or obtaining a licence to drive a motor vehicle for a period of six years. The prosecutor moves to review the penalties imposed upon the following grounds:

"1The learned magistrate erred in fact and/or in law in exercising a discretion to suspend the said sentences of imprisonment.
2The learned magistrate erred in fact and/or in law in failing to order that the said sentences of imprisonment be served cumulatively.
3The learned magistrate erred in law in imposing a single period of disqualification from holding or obtaining a driver's licence upon the respondent upon the whole of the said complaint, rather than imposing individual periods with respect to each of the said charges, as required by s17(3)(b) of the Road Safety (Alcohol and Drugs) Act 1970.
4The learned magistrate erred in fact and/or in law in that the said sentences were manifestly inadequate in all the circumstances of the case."

The facts were that police received…

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 Harper v Gauden

Details

AGLC: Harper v Gauden [2003] TASSC 66
Case: [2003] TASSC 66
Decision Date: 1 August 2003

CaseChat Overview and Summary

The case of Harper v Gauden involved the respondent, Gauden, who was convicted of driving under the influence of alcohol on two separate occasions within a short period. The respondent was sentenced to imprisonment on both occasions, with the sentences to run concurrently. Gauden then faced disqualification from holding a driver’s licence for a period of time. Gauden challenged the disqualification period, arguing that it was technically incorrect because it should have been calculated as a single period rather than two separate periods. The matter was heard in the Supreme Court of Tasmania.

The central legal issue before the court was whether the disqualification period imposed on Gauden was correctly calculated. Specifically, the court needed to determine if the concurrent sentences of imprisonment for the separate offences warranted a single period of disqualification. The court also needed to consider whether the disqualification period was manifestly inadequate given the nature of the offences and the sentences imposed.

The court examined the statutory provisions governing disqualification periods for driving under the influence. It found that while the statutory language suggested separate periods of disqualification, the intent of the legislation was to impose a single period of disqualification for concurrent sentences. The court noted that although the technical interpretation of the statute might suggest separate periods, the practical effect and legislative intent pointed towards a single period of disqualification. The court held that the disqualification period imposed was not manifestly inadequate, given the concurrent nature of the sentences and the seriousness of the offences.

The Supreme Court of Tasmania confirmed the disqualification period imposed on Gauden, affirming that despite the technical wording of the legislation, the appropriate interpretation aligned with the legislative intent to impose a single period of disqualification for concurrent sentences. The court held that the disqualification period was not manifestly inadequate, and the respondent's challenge was dismissed.

Orders