Lusted v Jordan - [2011] TASSC 47

[2011] TASSC 47

COURT: SUPREME COURT OF TASMANIA

CITATION: Lusted v Jordan [2011] TASSC 47

PARTIES: LUSTED, Garry
v

JORDAN, Leslie Paul

FILE NO/S:  388/2011
DELIVERED ON:  1 September 2011
DELIVERED AT:  Launceston
HEARING DATE:  26 August 2011
JUDGMENT OF:  Blow J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – The hearing – Generally – Whether fine manifestly inadequate – Unlicensed driver using unregistered uninsured vehicle – Persistent offender.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  P R Sherriff
           Respondent:  In person
Solicitors:
           Applicant:  Director of Public Prosecutions
           Respondent:  In person

Judgment Number: [2011] TASSC 47
Number of paragraphs: 10

Serial No 47/2011
File No 388/2011

GARRY LUSTED v LESLIE PAUL JORDAN

REASONS FOR JUDGMENT BLOW J
1 September 2011

This is a motion for the review of a sentencing order made by a magistrate, Mr R Marron, fining the respondent $250. That was a global penalty that related to three charges – driving without a licence, using an unregistered motor vehicle, and using an uninsured motor vehicle. The applicant contends that the penalty was manifestly inadequate.

The learned magistrate was told that the respondent was intercepted riding a motorcycle at Ravenswood at 11.55am on 13 January 2011; that he had only ever held a car licence that had been "disqualified and not renewed"; that the registration and insurance on the motorcycle had both expired on 21 September 2010; and that there were no aggravating circumstances. He was provided with a list of the respondent's prior convictions. He had twelve prior convictions for driving without a licence, one for driving while disqualified, six for using an unregistered vehicle, and five for using an uninsured vehicle. They covered a period of nearly 30 years. His first conviction for driving without a licence related to an offence committed in 1982. However there were several such convictions in recent years. The respondent was caught driving without a licence and speeding in October 2005. He was fined. He was caught driving without a licence in October 2006. He was fined $250. He was caught using an unregistered vehicle in December 2007. He was fined $150. He was caught driving while unlicensed and speeding in October 2009. He was fined $400 and disqualified from driving for four months. He was caught driving an unregistered and uninsured vehicle, without a licence, in November 2009. He was fined a total of $600. It seems that fines did not deter him from re-offending.

In a plea in mitigation, the respondent told the learned magistrate that he was "riding home to [sic] work at lunchtime"; that he was normally driven to work by his wife, but that she was busy that day taking a sick child to the dentist; that he worked nine kilometres from home; that he owed about $3000 in unpaid fines; that he had gross earnings of about $880 per week; and that he had five children. The learned magistrate fined him $250, decided not to disqualify him, suggested that he…

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 Lusted v Jordan

Details

AGLC: Lusted v Jordan [2011] TASSC 47
Case: [2011] TASSC 47
Decision Date: 1 September 2011

CaseChat Overview and Summary

Lusted appealed against a fine for driving an unregistered and uninsured vehicle, arguing it was manifestly inadequate. The matter was heard in the Magistrates Court of Tasmania. The defendant, Lusted, contended that the penalty was insufficient given the circumstances, which included the fact that the vehicle was unregistered, uninsured, and that Lusted was an unlicensed driver with a history of similar offenses.

The court needed to determine whether the fine was manifestly inadequate. It had to consider the seriousness of the offence, Lusted's history as a persistent offender, and the factors relevant to sentencing under the relevant legislation. The court had to balance the deterrent effect of the penalty against the circumstances of the case.

The court found that the fine was not manifestly inadequate. It considered the persistent nature of Lusted's offenses, the fact that the vehicle was unregistered and uninsured, and the need to deter similar future conduct. The court held that the fine reflected the seriousness of the offence and the need to address Lusted's persistent offending behaviour. The appeal was dismissed.

Orders