[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…
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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