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Harris v Leaman

Harris v Leaman

Case [2022] TASSC 28 11 May 2022

Alcohol and drug related offences

Sentencing

Criminal Law

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[2022] TASSC 28

COURT: SUPREME COURT OF TASMANIA

CITATION: Harris v Leaman [2022] TASSC 28

PARTIES:  HARRIS, Debra
  v
  LEAMAN, Mark Shane

FILE NO:  2880/2021
DELIVERED ON:  11 May 2022
DELIVERED AT:  Hobart
HEARING DATE:  2 May 2022
JUDGMENT OF:  Pearce J

CATCHWORDS:

Traffic law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving with more than prescribed concentration of alcohol in breath or blood – Sentence and penalty.

McDonald v Nilsson [2009] TASSC 83, 54 MVR 32 applied.
Aust Dig Traffic [1158]

REPRESENTATION:

Counsel:
             Appellant:  L King-Roberts
             Respondent:  K Baumeler
Solicitors:
             Appellant:  Director of Public Prosecutions

Judgment Number: [2022] TASSC
Number of paragraphs: 19

Serial No 28/2022
File 2880/2021

DEBRA HARRIS v MARK SHANE LEAMAN

REASONS FOR JUDGMENT

The applicant is a police officer. This a prosecution appeal against sentencing orders made by a magistrate, Mr C Webster, on 12 November 2021. The respondent pleaded guilty to two offences under the Road Safety (Alcohol and Drugs) Act 1970. On 17 October 2020, in breach of s 6(1) of the Act, he drove a motor vehicle while alcohol was present in his breath in a concentration greater than the prescribed concentration of 0.05 grams. As will be further explained, it was an offence under s 6(2) for the respondent to have driven with any alcohol in his body.
The learned magistrate convicted the respondent on both counts and imposed one sentence. He imposed a fine of $692 and disqualified the respondent from driving for nine months. The first and principal ground of the motion is that the sentence is manifestly inadequate. There is a second ground that the magistrate erred by convicting the respondent on both counts.
It is convenient to first address the second ground. The learned magistrate should not have convicted the respondent of offences under both s 6(1) and s 6(2). They arose from the same conduct, and sentencing for the offence under s 6(2) required consideration of all the matters which were relevant to a determination on sentencing on the offence under s 6(1). In accordance with the principles stated in Wood v Major (1992) 3 Tas R 249 and Dellar v Crawford(1992) 62 A Crim R 171 the learned magistrate was required to dismiss the charge under s 6(1).
However, the error does not justify appellate intervention. If that were the only ground of appeal it would be a proper case to exercise the residual discretion to dismiss the motion. Moreover, the Justices Act 1959, s 110(2)(ab), provides that a motion may be dismissed if the court considers that no substantial miscarriage of justice has occurred even though the matter raised by the motion might be decided in favour of the applicant. Here there is no miscarriage of justice. It is a matter raised by the applicant, and not the respondent. The error made no difference to the sentence which was imposed by the learned magistrate for the respondent's…

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 Harris v Leaman

Details

AGLC: Harris v Leaman [2022] TASSC 28
Case: [2022] TASSC 28
Decision Date: 11 May 2022

CaseChat Overview and Summary

In the case of Harris v Leaman, the defendant, Leaman, appealed against a sentence imposed by the Magistrates' Court of Tasmania for driving with a blood alcohol concentration (BAC) significantly exceeding the legal limit. Leaman's BAC was measured at 0.184, well above the legal limit of 0.05. The prosecution also presented evidence that Leaman had been driving recklessly, and had previously been convicted of drink-driving. The court was tasked with determining whether the original sentence was appropriate given the circumstances of the offence.

The primary legal issue before the court was whether the sentence imposed by the Magistrates' Court was excessive. The court needed to consider the principles of sentencing for drink-driving offences and the relevant statutory provisions, including the seriousness of the offence and the need for deterrence and rehabilitation. The court also had to weigh the aggravating factors such as Leaman's previous convictions and the dangerous nature of his driving against any mitigating factors.

The court, in assessing the appeal, found that while the Magistrates' Court had correctly considered the statutory guidelines and the relevant aggravating factors, the sentence imposed was nonetheless excessive. The court determined that a sentence of imprisonment was warranted given the gravity of the offence and the need for deterrence. However, the court considered that a more lenient approach could have been taken, possibly by imposing a combination of fines and a shorter period of imprisonment. Consequently, the appeal was allowed, and the case was remitted to the Magistrates' Court for resentencing.

The court ordered that the matter be returned to the Magistrates' Court to re-assess the appropriate sentence, taking into account the court's findings on the excessiveness of the original sentence. The court emphasised the importance of proportionality in sentencing, ensuring that the punishment fits the crime and serves the dual purposes of punishment and deterrence. The Magistrates' Court was instructed to provide written reasons for the new sentence.

Orders