Mansell v Chokljat - [2006] TASSC 67

[2006] TASSC 67

CITATION: Mansell v Chokljat [2006] TASSC 67

PARTIES:  MANSELL, Ricky Brendan
  v
  CHOKLJAT, Katrina

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 20/2006
DELIVERED ON:  2 October 2006
DELIVERED AT:  Launceston
HEARING DATE:  19 September 2006
JUDGMENT OF:  Slicer J

CATCHWORDS:

Magistrates – Appeal from and control over magistrates – Tasmania – Motion to Review – Review of Sentence – Principles applicable – The hearing - Generally – Licence disqualification – Whether sentence manifestly excessive – Offender with previous convictions.

Vehicles and Traffic Act 1999 (Tas).
Shepherd v Visser [1999] TASSC 81; Davies v Hewitt A53/1990; Hunter v White [2002] TASSC 72; Williams v McLaughlin [2000] TASSC 29, considered.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  C J Gibson
           Respondent:  J Ransom
Solicitors:
           Applicant:  Zeeman Kable and Page
           Respondent:  Director of Public Prosecutions

Judgment Number: [2006] TASSC 67
Number of paragraphs: 11

Serial No 67/2006
File No LCA 20/2006

RICKY BRENDAN MANSELL v KATRINA CHOKLJAT

REASONS FOR JUDGMENT SLICER J

2 October 2006

The applicant seeks review of a penalty imposed by a court of petty sessions following his conviction for an offence of driving a motor vehicle while exceeding the prescribed alcohol limit, contrary to the Road Safety (Alcohol & Drugs) Act 1970 ("the Act"), s6. The penalty imposed was a fine of $2,500 and disqualification from holding or obtaining a driver's licence for a period of two years and six months.

The grounds of appeal are:

"1The Learned Magistrate erred in imposing a sentence that was manifestly excessive in all the circumstances.
2The Learned Magistrate erred in that he failed to give due weight to the circumstances of the Applicant, including the effect on the Applicant's employment of a lengthy period of disqualification."

The Act, s17, provides a range of penalties for offences of driving with an excessive blood alcohol concentration. In this case the concentration was .132 grams of alcohol per 210 litres of breath. Section 17(5), Pt2, relevantly provides for:

"column 2

column 3

column 4

column 5

Concentration of alcohol in blood in grams per 100 millilitres of blood

Fine

Period of

disqualification

Term of
imprisonment

0·1 or more but less than 0·15

Minimum 8 penalty units Maximum 40 penalty units

Minimum 12 months
Maximum 36 months

12 months"

The Vehicles and Traffic Act 1999, s18, applies to convictions of a person for an offence under the Act. The Act, s19(1A), precludes the grant of a restricted licence in cases where the offence was committed during any period of disqualification or within three years after the end of any period of disqualification imposed under the Act. Here the applicant had such a conviction and was not entitled to apply for the grant of a restricted licence. There might be circumstances where a court is permitted before sentence to grant a restricted licence but increase the period of disqualification. However, such was not the case here.

The argument as defined by counsel is that:

(1)The period…

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 Mansell v Chokljat

Details

AGLC: Mansell v Chokljat [2006] TASSC 67
Case: [2006] TASSC 67
Decision Date: 2 October 2006

CaseChat Overview and Summary

In the case of Mansell v Chokljat, the appellant, Mansell, sought a review of a sentence imposed by the Magistrates Court of Tasmania, challenging the length of a licence disqualification imposed following a conviction for a driving offence. The court was asked to consider whether the sentence was manifestly excessive, taking into account Mansell's previous convictions and the circumstances of the offence.

The primary legal issue before the court was whether the length of the licence disqualification imposed by the Magistrates Court was manifestly excessive, thus warranting a reduction on review. The court needed to consider the principles applicable to reviewing sentences, including the nature and seriousness of the offence, the offender's criminal history, and the need for deterrence and rehabilitation.

The court examined the principles guiding the review of sentences and found that the Magistrates Court had considered relevant factors, including Mansell's previous convictions and the need for deterrence. The court determined that the length of the licence disqualification was not manifestly excessive and therefore dismissed the appeal. The reasoning focused on the court's discretion in sentencing and the balance between deterrence and rehabilitation, concluding that the original sentence was appropriate given the circumstances.

The court made no alteration to the sentence and upheld the decision of the Magistrates Court, affirming the licence disqualification period imposed. The outcome underscored the importance of judicial discretion in sentencing and the role of the reviewing court in ensuring sentences are proportionate and justifiable.

Orders