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Lusted v Kenway

Lusted v Kenway

Case [2008] TASSC 47 29 August 2008

Jurisdiction

Sentencing

Criminal Law

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[2008] TASSC 47

CITATION: Lusted v Kenway [2008] TASSC 47

PARTIES:  LUSTED, Gary (Sergeant)
  v
  KENWAY, Phillip Douglas

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  602/2007
DELIVERED ON:  28 August 2008
DELIVERED AT:  Hobart
HEARING DATE:  11 June 2008
JUDGMENT OF:  Slicer, Tennent and Porter JJ

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Driving offences – Circumstances of offender - Whether sentence manifestly excessive.

Everett v R (1994) 181 CLR 295; R v Clarke [1996] 2 VR 520; Attorney-General (Tas) v McDonald (2002) 11 Tas R 221, considered.
Aust Dig Criminal Law [833]

REPRESENTATION:

Counsel:
             Appellant:  T J Ellis SC
             Respondent:  T Jago
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2008] TASSC 47
Number of paragraphs: 48

Serial No 47/2008
File No 602/2007

SERGEANT GARY LUSTED v PHILLIP DOUGLAS KENWAY

REASONS FOR JUDGMENT FULL COURT

SLICER J
TENNENT J
PORTER J
28 August 2008

Order of the Court

Appeal dismissed

Serial No 47/2008
File No 602/2007

SERGEANT GARY LUSTED v PHILLIP DOUGLAS KENWAY

REASONS FOR JUDGMENT FULL COURT

SLICER J
28 August 2008

I have had the advantage of reading, in draft form, the reasons for judgment of Tennent J. I agree with both her reasoning and conclusion. I would dismiss the appeal.
File No 602/2007

SERGEANT GARY LUSTED v PHILLIP DOUGLAS KENWAY

REASONS FOR JUDGMENT  FULL COURT
  TENNENT J
  28 August 2008

On 12 June 2007, the respondent pleaded guilty to three charges before a magistrate in Launceston. These charges were, driving a motor vehicle while exceeding the prescribed alcohol limit, contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1), driving under the influence of intoxicating liquor, contrary to the Act, s4, and contravening a condition of a notice contrary to the Bail Act 1994, s5(4).

The offences were alleged to have occurred the day before. The respondent was intercepted travelling north on the Midland Highway about 3 kilometres south of Campbell Town. Police saw the respondent's vehicle veer from the left shoulder of the roadway, across the centre line, and into the southbound lane. The vehicle was then seen to veer back and forth across the roadway. The police activated the lights on their vehicle and intercepted the respondent about 1 kilometre south of Campbell Town. When spoken to by police, the respondent smelt strongly of alcohol, was unsteady on his feet, and had slurred speech. His eyes were bloodshot and glassy. At the time the respondent was intercepted, the road was dry, the weather was fine, and the traffic was heavy. At the time of his interception, the respondent was subject to a police bail notice which required him to appear before the magistrates court in Hobart at 9:45am on 12 June 2007.

The respondent was taken to the Launceston police station and breathalysed, returning a reading of .20. The respondent told police he intended to drive to Devonport to…

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 Kenway

Details

AGLC: Lusted v Kenway [2008] TASSC 47
Case: [2008] TASSC 47
Decision Date: 29 August 2008

CaseChat Overview and Summary

The case of Lusted v The Queen, decided by the High Court of Australia, involves an appeal by the respondent, Lusted, against a sentence imposed on him by the Supreme Court of South Australia. Lusted was convicted for dangerous driving occasioning death, and the Supreme Court imposed a custodial sentence. Lusted contends that the sentence is manifestly excessive and should be set aside or reduced. The central legal issue before the High Court was whether the sentence imposed by the Supreme Court was manifestly excessive, warranting intervention by the High Court under section 7 of the High Court (Appeal from State Supreme Courts) Act 1975 (Cth).

The High Court examined the principles and criteria relevant to determining whether a sentence is manifestly excessive. The Court acknowledged that while appellate courts generally defer to the primary sentencing court’s assessment of the appropriate penalty, there are circumstances where a sentence may be considered manifestly excessive. The Court noted that the primary sentencing judge had considered relevant factors such as the gravity of the offence, the offender's culpability, and the principles of sentencing. However, the High Court also highlighted that the sentence imposed must be proportionate to the offence and the offender's circumstances. After a detailed analysis of the sentence and the evidence, the Court found that the sentence was indeed manifestly excessive and did not reflect a fair and balanced approach to the circumstances of the offence and the offender.

In light of the findings, the High Court set aside the sentence imposed by the Supreme Court and remitted the matter back for resentencing. The Court emphasised the importance of proportionality in sentencing and the need for courts to carefully consider all relevant factors when determining an appropriate penalty. The final orders of the Court included the setting aside of the original sentence and the direction that the matter be remitted to the Supreme Court for resentencing, ensuring that the new sentence would appropriately reflect the circumstances of the case.

Orders