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Mann v Tremethick (No 2)

Mann v Tremethick (No 2)

Case [2023] ACTSC 31 3 March 2023

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Mann v Tremethick (No 2)
Citation:	[2023] ACTSC 31
Hearing Date:	28 February 2023
DecisionDate:	3 March 2023
Before:	McWilliam AsJ
Decision:	See [52]
Catchwords:	APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from sentence – whether sentence was manifestly excessive
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 33 Magistrates Court Act 1930 (ACT) ss 207, 208 Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 20 Road Transport (DriverLicensing) Act 1999 (ACT) s 32 Road Transport Legislation Amendment Bill 2014 (ACT) Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 7, 7A
Cases Cited:	Balthazaar v The Queen[2012] ACTCA 26 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Hoare v The Queen (1989) 167 CLR 348 House v The King(1936) 55 CLR 499 Kelly v The Queen [2021] ACTCA 15 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Millard v Pomeroy [2022] ACTSC 319 Melham v The Queen[2011] NSWCCA 121 NC v The Queen[2017] ACTCA 31 Ngati v R [2018] NSWCCA 32 Preston v Carnall [2015] ACTSC 325; 300 FLR 302 R v Abbott [2007] VSCA 32; 170 A Crim R 306 R v Collins [2019] ACTSC 302 R v Goolagong (No 2) [2021] ACTSC 131 R v Seymour [2021] ACTSC 152 R v Verdins [2007] VSCA 62; 16 VR 269 Thorn v Laidlaw [2005] ACTCA 49 Veen v The Queen (No 2) (1988) 164 CLR 465
Parties:	Jayden Charles Mann ( Appellant) David Matthew Tremethick ( Respondent)
Representation:	Counsel Self-represented ( Appellant) E Roff ( Respondent)
Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	SCA 34 of 2022
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate B Campbell Date of Decision: 29 August 2022 Case Title: David Matthew Tremethick v Jayden Charles Mann Court File Number: AM 3634/2009

McWilliam AsJ

The appellant, Mr Jayden Mann, pleaded guilty on 2 August 2022 in the Magistrates Court of the Australian Capital Territory to four charges of driving-related offences.

(a)On 15 April 2022, drive while disqualified, repeat offender, contrary to s 32(1)(a) of the Road Transport (DriverLicensing) Act 1999 (ACT) (CC2022/3637).
(b)On 14 July 2022:
(i)Aggravated dangerous driving, contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (the Act) (CC2022/6770).
(ii)Drive with prescribed drug in oral fluid, repeat offender, contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (CC2022/6771).
(iii)Drive while disqualified, repeat offender, contrary to s 32(1)(a) of the Road Transport (DriverLicensing) Act 1999 (ACT) (CC2022/6772).

On 29 August 2022, the magistrate in the court below sentenced the appellant to an aggregate sentence of 22 months’ imprisonment, commencing on 14…

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 Mann v Tremethick (No 2)

Details

AGLC: Mann v Tremethick (No 2) [2023] ACTSC 31
Case: [2023] ACTSC 31
Decision Date

CaseChat Overview and Summary

In the case of Mann v Tremethick (No 2), the appellant, Jayden Charles Mann, appealed against his sentence for aggravated dangerous driving, arguing that it was manifestly excessive. Mann had pleaded guilty to multiple driving-related offences and was sentenced to an aggregate of 22 months' imprisonment by the Magistrates Court of the Australian Capital Territory. The appeal focused on the 18-month sentence for the aggravated dangerous driving offence. The court was required to determine whether the sentence was manifestly excessive, unreasonable, or plainly unjust.

The court reviewed the principles governing manifest excess and the reasoning provided by the sentencing magistrate. The magistrate had considered the maximum penalty for the offence, the objective seriousness of the offence, and the subjective circumstances of the appellant. The magistrate also took into account the sentencing objectives of protection of the community, general deterrence, and public denunciation of the conduct. The magistrate had applied the maximum discount for the appellant's guilty plea, resulting in an 18-month sentence. The court found that the magistrate had properly considered all relevant factors and that the sentence was not manifestly excessive, unreasonable, or plainly unjust.

The court also compared the present case to other cases cited by the appellant and the respondent. The court found that while some sentences may have been less numerically, the circumstances of those cases were not as objectively serious or did not involve the same aggravating factors present in the appellant's case. The court concluded that the magistrate had acted consistently with the principles articulated in other cases and that no specific or inferential error had been established.

The appeal was dismissed, and the sentence of the Magistrates Court was confirmed with specific orders regarding the commencement and end dates of the sentence and periods of disqualification from holding or obtaining a driver's license.

Orders