Kenway v Lusted - [2007] TASSC 71

[2007] TASSC 71

CITATION: Kenway v Lusted [2007] TASSC 71

PARTIES: KENWAY, Phillip Douglas
v

LUSTED, Sergeant Gary

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 289/2007
DELIVERED ON:  10 September 2007
DELIVERED AT:  Launceston
HEARING DATE:  3 September 2007
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Sentence of imprisonment, fine and licence disqualification for driving under influence – Whether sentence manifestly excessive.
Briant v Bessell (1974) 74 A Crim R 204, approved.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  E G Hughes
           Respondent:  J P Ransom
Solicitors:
           Applicant:  Legal Aid Commission of Tasmania
           Respondent:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 71
Number of paragraphs: 13

Serial No 71/2007
File No LCA 289/2007

PHILLIP DOUGLAS KENWAY v SERGEANT GARY LUSTED

REASONS FOR JUDGMENT CRAWFORD J
10 September 2007

The applicant moved the Court to review a sentence of a magistrate, Mr P H Wilson, imposed at Launceston on 18 June 2007. The sole ground of the motion was that the sentence was manifestly excessive.

He pleaded guilty to driving a motor vehicle while alcohol was present in his breath in a concentration greater than the prescribed concentration of .05 grams in 210 litres of breath, contrary to the Road Safety (Alcohol and Drugs) Act 1970, s6(1). His concentration at the time was .2 grams. He also pleaded guilty to driving under the influence of intoxicating liquor, contrary to s4. As the charges arose out of the same circumstances, the first charge was dismissed but the learned magistrate had regard to the concentration of alcohol when sentencing the applicant on the second charge. He was sentenced to imprisonment for three months, fined $3000 and disqualified from driving for two years six months.

The facts are that at about 4pm on 11 June 2007 police received a report of a vehicle travelling in a dangerous manner in a northerly direction on the Midland Highway south of Campbell Town. A short time later police found the vehicle about three kilometres south of Campbell Town and followed it. It was seen to veer from the left shoulder of the roadway, across the centreline and into the southbound lane. It then swerved back and forth across the roadway. It was intercepted by the police vehicle approximately one kilometre south of Campbell Town. The applicant smelt strongly of alcohol. He was unsteady on his feet, his eyes were bloodshot and glassy and his speech was slurred. The police officers formed the opinion that he was drunk. He was taken to the police station at Launceston and a reading of .20 was obtained. He had intended to drive a distance well in excess of 200 kilometres from the south of the State, where he had been living, to embark on the Spirit of Tasmania at Devonport. At the time of the offence the road was dry, the weather was…

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 Kenway v Lusted

Details

AGLC: Kenway v Lusted [2007] TASSC 71
Case: [2007] TASSC 71
Decision Date: 10 September 2007

CaseChat Overview and Summary

The case of Kenway v Lusted involved an appeal by the defendant, Kenway, against a sentence imposed by the Magistrates Court of Tasmania. The defendant was found guilty of driving under the influence of alcohol and was sentenced to imprisonment, a fine, and a disqualification from holding a driver's licence. The defendant sought a review of the sentence, arguing that it was manifestly excessive. The court was required to determine whether the sentence imposed by the Magistrates Court was appropriate and whether the defendant's appeal should be upheld.

The legal issues in this case centred on the criteria for reviewing a sentence imposed by a Magistrates Court. The court had to consider whether the sentence was manifestly excessive or inappropriate in the circumstances. This involved assessing the severity of the offence, the defendant's culpability, and any relevant mitigating or aggravating factors. The court also had to determine whether the sentence was disproportionate to the crime committed and whether there were grounds for the appeal to be successful.

In reviewing the sentence, the court examined the facts of the case and the circumstances surrounding the offence. The court considered the defendant's previous criminal history, the level of intoxication at the time of the offence, and the potential harm caused by the defendant's actions. The court also took into account the principles of proportionality and deterrence in sentencing. After careful consideration, the court found that the sentence imposed by the Magistrates Court was not manifestly excessive and did not warrant a review. The court upheld the original sentence, confirming its appropriateness in the context of the offence and the defendant's circumstances.

The final orders of the court were to dismiss the defendant's appeal and confirm the sentence imposed by the Magistrates Court. The defendant was required to serve the sentence of imprisonment, pay the fine, and comply with the disqualification from holding a driver's licence. The court's decision emphasised the importance of maintaining the integrity of the sentencing process and ensuring that sentences are proportionate to the offences committed.

Orders