McDonald v Nilsson - [2009] TASSC 83

[2009] TASSC 83

COURT: SUPREME COURT OF TASMANIA

CITATION: McDonald v Nilsson [2009] TASSC 83

PARTIES:  McDONALD, Scott (Sergeant)
  v
  NILSSON, Scott James

FILE NO/S:  659/2009
DELIVERED ON:  21 September 2009
DELIVERED AT:  Hobart
HEARING DATE:  2 September 2009
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Magistrates – Jurisdiction and procedure generally – Procedure – The hearing – Matters relating to decision – Duty to state reasons for sentence – Whether breach of duty and an error of law.

Trueman v Tasmania [2009] TASSC 29; Harrison v Taws [2009] TASSC 33, discussed.
Aust Dig Magistrates [128]

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Other offences – Driving with more than prescribed concentration of alcohol – Sentence – Persistent offender – Whether sentence manifestly inadequate.

Barrett v Pearce A6/1986; Briant v Bessell (1994) 74 A Crim R 204; Peck v Visser [1999] TASSC 38; Boyd v Peters [1988] Tas R 66; Devine v Maher [1990] Tas R 147; Harriss v Walker (1996) 89 A Crim R257, applied.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s17.
Aust Dig Traffic Law [80]
REPRESENTATION:

Counsel:
             Applicant:  S Nicholson
             Respondent:  S C Chopping
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Steven Chopping

Judgment Number: [2009] TASSC 83
Number of paragraphs: 25

Serial No 83/2009
File No 659/2009

SERGEANT SCOTT McDONALD v SCOTT JAMES NILSSON

REASONS FOR JUDGMENT CRAWFORD CJ

21 September 2009

The respondent was charged with driving a motor vehicle whilst alcohol was present in his breath in a concentration greater than the prescribed concentration, contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1). He returned a breath analysis of 0.128, which was in excess of the limit of 0.05 grams of alcohol per 210 litres of breath.

A magistrate fined him $960 and ordered that he be disqualified from driving for 16 months.

The applicant has moved the Court to review the sentence. There are two grounds. The first is manifest inadequacy in the sentence, and the second is an error of law by failing to give sufficient reasons for the sentence.

Circumstances of the offence

The learned magistrate was informed that on Saturday, 28 March 2009, at 1.45am, police intercepted the respondent driving a motor vehicle on Charles Street, Moonah for the purposes of undergoing a random breath test. As a result of that, he was required to submit to a breath analysis and a reading of 0.128 was obtained. When questioned about the offence, the respondent told the police that he had driven from the bottom of Hopkins Street, intending to drive to his home in Gargano Court. He said that he had his first drink at 4pm, his last drink at 1am, and in all drank about eight beers at a place called the Mustard Pot.

Counsel for the respondent told the magistrate that the respondent had been with friends and had foolishly decided to drive home, rather than travel home by alternative means. It…

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 McDonald v Nilsson

Details

AGLC: McDonald v Nilsson [2009] TASSC 83
Case: [2009] TASSC 83
Decision Date: 21 September 2009

CaseChat Overview and Summary

In the matter of McDonald versus Nilsson, the dispute arose from a sentencing decision made by a magistrate. The appellant, McDonald, appealed the decision on the grounds that the magistrate failed to provide adequate reasons for the sentence imposed and that this constituted a breach of the duty to state reasons for sentence, as well as an error of law. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the magistrate's failure to provide detailed reasons for the sentence amounted to a breach of the duty to state reasons for sentence and constituted an error of law. The court needed to determine if this omission was significant enough to warrant a re-sentencing or if it could be considered a minor procedural error without substantive impact on the outcome. Another aspect was whether the failure to provide reasons could be seen as a departure from the principles of natural justice, potentially invalidating the sentence.

The court found that while the magistrate did not provide extensive reasons for the sentence, the overall context and the principles of natural justice were not compromised. The magistrate had considered the relevant factors, and the sentence was within the appropriate range. The court held that the duty to state reasons for sentence is a procedural requirement, and while it is important, it does not necessarily invalidate a sentence if the overall process was fair and just. The omission of detailed reasons did not rise to the level of an error of law that would necessitate a re-sentencing. Consequently, the appeal was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal by McDonald was dismissed and the original sentence imposed by the magistrate was affirmed. The court did not order any re-sentencing, finding that the procedural error did not materially affect the fairness of the sentencing process.

Orders