Jarvis v Brown and McDonald - [1998] TASSC 120

120/1998

PARTIES:  JARVIS, Robert Richard
  v
  BROWN, Graeme Maxwell

and
McDONALD, Scott Raymond

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 40/1998
DELIVERED:  7 October 1998
HEARING DATE/S:  2 September 1998
JUDGMENT OF:  Evans J

CATCHWORDS:

Vehicles and Traffic - Traffic law - Licensing of drivers - Tasmania - Disqualification and cancellation and suspension of licences - Multiple breathalyser offences - Discretion whether disqualifications cumulative or concurrent - Offender has significant history of driving related offences - Disqualified for 16½ years - Whether manifestly excessive and in conflict with totality principle of sentencing.

Nation v Carrick & Ors A7/1983; R v O'Brien A43/1987, applied.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s17.
Traffic Act 1925 (Tas), s35(1).
Aust Dig Vehicles and Traffic [26]

REPRESENTATION:

Counsel:
             Appellant:  G D Meyer
             Respondent:  K M Eales
Solicitors:
             Appellant:  Milton & Meyer
             Respondent:  Director of Public Prosecutions

Judgment category classification:
Court Computer Code:
Judgment ID Number:  120/1998
Number of pages:  6

Serial No 120/1998
File No LCA 40/1998

ROBERT RICHARD JARVIS v GRAEME MAXWELL BROWN and
SCOTT RAYMOND McDONALD

REASONS FOR JUDGMENT EVANS J

7 October 1998

The applicant appeals against the driver's licence disqualification aspect of penalties imposed upon him on 4 May 1998 in the Court of Petty Sessions for a series of breaches of the Road Safety (Alcohol and Drugs)Act 1970 and related breaches. He pleaded guilty to the offences and was sentenced to a total of thirteen and a half months' imprisonment and disqualified from holding or obtaining a driver's licence for a total of fourteen years cumulative upon a prior disqualification of two and a half years. In result, he is disqualified for sixteen and a half years.
The applicant is 34 years of age. When dealt with in the Court of Petty Sessions on 4 May 1998, his record of driving related convictions, excluding less significant traffic offences, was as follows.

DATE	OFFENCE	COURT DATE	PENALTY
7/8/86	S6(1) exceed .05 - .13	5/9/86	Licence disqualification - 6 months. Fine $150.
22/12/88	S6(1) exceed .05 -.139	12/1/89	Licence disqualification - 9 months. Fine $250.
12/2/95	S6(1) exceed .055 - .190	2/3/95	Licence disqualification - 2 years. Fine $1,500.
9/8/97	S6(2) driving with alcohol in his body without authority - .133.	15/1/98	28 days' imprisonment wholly suspended upon condition he commit no offence under the Act for 2 years. Licence disqualification - 2½ years. Fine $800.
Unlicensed driver, unregistered vehicle, uninsured vehicle.	Convictions recorded.

The matters for which the applicant was before the Court on 4 May 1998, and the penalties imposed were as follows.

Complaint 473/98

DATE	OFFENCE	PENALTY
7/12/97	S6(1) exceed .05 - .303	3 months' imprisonment. Licence disqualification 5 years - cumulative with any current disqualification.
Unlicensed driver.	Conviction recorded.
Unregistered vehicle.	Conviction recorded.
Unregistered vehicle.	Conviction recorded.
S6(2) driving with alcohol in his body without authority - .303.	14 days' imprisonment - cumulative.

Complaint 2980/98

DATE

OFFENCE

PENALTY

24/3/98

Driving whilst disqualified.

2 months' imprisonment - cumulative.

Licence disqualification 6 months…

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 Jarvis v Brown and McDonald

Details

AGLC: Jarvis v Brown and McDonald [1998] TASSC 120
Case: [1998] TASSC 120
Decision Date: 7 October 1998

CaseChat Overview and Summary

Jarvis v Brown and McDonald is an appeal by Robert Richard Jarvis against the driver's licence disqualification penalties imposed upon him by the Court of Petty Sessions. Jarvis pleaded guilty to a series of breaches of the Road Safety (Alcohol and Drugs) Act 1970 and related offences, resulting in a sentence of thirteen and a half months' imprisonment and a total disqualification from holding or obtaining a driver's licence for sixteen and a half years. Jarvis appeals against the disqualification aspect of the penalties.

The legal issues before the court were whether the disqualifications imposed were manifestly excessive and in conflict with the totality principle of sentencing. The Road Safety (Alcohol and Drugs) Act requires disqualification from holding or obtaining a licence, with minimum periods of disqualification being mandatory in relation to some of the offences. The magistrate had discretion as to whether the disqualifications were cumulative or concurrent, pursuant to the Traffic Act 1925.

The court found that the total disqualification of sixteen and a half years was manifestly excessive and in conflict with the totality principle of sentencing. The totality principle requires a sentencer to consider the overall effect of the sentence and avoid a penalty which is 'too crushing'. The court noted that while the applicant was undoubtedly a bad offender, there was still a prospect of reform. The court substituted a total disqualification of six years from the date of the appeal.

The final orders of the court were that the sentences in respect of disqualification imposed by the magistrate were quashed and substituted with a period of 18 months for the period of four years, each such period to be cumulative on the other. In the result, Jarvis is disqualified for holding or obtaining a driver's licence for a total period of 4½ years from the 2nd December 1982. The court will hear counsel on the terms of the order it should make to give effect to this decision.

Orders