Miller v Visser - [1988] TASSC 41

Serial No 32/1988
List "A"

CITATION: Miller v Visser [1988] TASSC 41; A32/1988

PARTIES:  MILLER
  v
  VISSER

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 15/1988
DELIVERED ON:  10 August 1988
JUDGMENT OF:  Cox J

Judgment Number: A32/1988
Number of paragraphs: 18

Serial No 32/1988
List "A"
File No LCA 15/1988

MILLER v VISSER

REASONS FOR JUDGMENT

Notice to review a sentence of 4 weeks' imprisonment for driving while disqualified and a further 2 weeks' imprisonment for a third offence of driving a motor vehicle with alcohol present in the blood in a greater concentration than that prescribed, contrary to sections 19A(1) and 6(1) respectively of the Road Safety (Alcohol & Drugs) Act 1970 ("the Act") .

The applicant is a 26 year old woman separated from her husband for 2 years prior to the offences and having the custody of a 3 year old child. On 30 July 1986 (shortly after the separation commenced) she was convicted of her first offence against section 6(1) of the Act. The driving had occurred on 18 July 1986, the reading was .15% and she was fined $150 and disqualified for driving for 9 months. Her second such conviction was recorded on 23 March 1988, the driving having occurred on 11 March 1988 and the reading being .11%. She was fined $300, $200 thereof was suspended on conditions and she was disqualified for driving for 18 months.

The offences leading to the sentences appealed against occurred on 14 April 1988 when she was stopped for a random breath test in the city of Launceston at or about 2.20 a.m. Her reading was again .11% and the act of driving constituted a contravention of the order of disqualification made less than 3 weeks before. In addition the car she was driving was not registered and the required insurance premium had not been paid. These two offences were punished by way of fines and have no relevance to the issues before me.

On 6 June 1988 she pleaded guilty to all four charges and was represented by counsel who made the following plea in mitigation:–

"The defendant is 26 years of age, she is separated and she has one child 3 years of age who is in her care and control. The defendant separated some 2 years ago and at the time she owned a business in Launceston that being a hairdressing and beautician business. Her child was ill. She had to take the child to work in order to continue with the business and there was a lot of pressure on her, and this pressure eventually led to the separation between her husband and herself. The business was sold and the defendant's husband who has not accepted the separation continues to place pressure on the defendant for a reconciliation. During this period the defendant accepts that her behaviour has been totally irresponsible and she has in fact tried to ignore the pressures upon her and the responsibilities which she…

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 Miller v Visser

Details

AGLC: Miller v Visser [1988] TASSC 41
Case: [1988] TASSC 41
Decision Date: 10 August 1988

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Miller v Visser revolved around an appeal against a sentence of imprisonment imposed on the applicant, Miller, for driving while disqualified and driving with a blood alcohol concentration exceeding the prescribed amount. The applicant, a 26-year-old woman separated from her husband, had a history of similar offences and was disqualified from driving for 18 months at the time of her latest offence. The legal issues in the case were whether the magistrate erred in imposing a manifestly excessive sentence, in failing to obtain a pre-sentence report or a report under the Alcohol and Drug Dependency Act, and in treating the concurrent nature of the offences as aggravating circumstances. Cox J dismissed the appeal, finding no error in the magistrate's decision-making process. The court held that the magistrate had sufficient information to properly consider the circumstances of the case, there was no reason to suspect alcohol dependency that would necessitate a report under the Act, and the magistrate did not treat the concurrent offences as aggravating one another but rather considered them separately in determining an appropriate sentence. The court found the sentence of imprisonment, while serious, was not manifestly excessive given the seriousness of the repeated offences and the need for deterrence.

The reasoning of Cox J in dismissing the appeal was grounded in the principles of sentencing discretion and the need for deterrence in cases involving repeated breaches of road safety laws. The court emphasised the importance of observing orders of disqualification and the role of imprisonment in deterring further infractions. Cox J noted that while alternatives to imprisonment, such as fines or community service, might also be considered appropriate, the decision ultimately rested with the magistrate. The court held that the magistrate had not erred in exercising his discretion to impose imprisonment, as the seriousness of the offences and the need for deterrence justified the sentence. The court concluded that the appeal against the sentence should be dismissed, affirming the magistrate's decision.

Orders