Murray v Tasmania Police - [2022] TASSC 1

[2022] TASSC 1

COURT: SUPREME COURT OF TASMANIA
CITATION: Murray v Tasmania Police [2022] TASSC 1

PARTIES: MURRAY, Andrew Scott
v
TASMANIA POLICE
FILE NO: 1045/2021
DELIVERED ON: 24 January 2022
DELIVERED AT: Hobart
HEARING DATES: 18, 25 November; 1, 6 December 2021
JUDGMENT OF: Porter AJ
CATCHWORDS:
Criminal Law – Sentence – Sentencing procedure – Sentences on two or more counts – Other particular cases – Double punishment – Offence of aggravated evading police – Driving recklessly at time of evasion an element of aggravation but not particularised in charge – Where reckless driving separately charged –
Where particulars and facts of that charge related to driving away from initial point of evasion to a
collision a distance away – Whether magistrate erred in treating reckless driving charge as subsumed
within charge of aggravated evading police – No error shown – Amendment available in any event.

Aust Dig Criminal Law [3337]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Sentence of four months' imprisonment with two months suspended on conditions for aggravated evading police – Offender drove away from random breath test site at speed and disobeyed two red lights before colliding with another vehicle – Forceful collision – Where sentenced on same day for previous offence of evading police – Totality of penalties said to make sentence of imprisonment manifestly excessive – Manifest excess not established.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:

Applicant: M Doyle
Respondent: S Nicholson and E Belonogoff

Solicitors:

Applicant: Clarke and Gee
Respondent: Director of Public Prosecutions

Judgment Number: [2022] TASSC 1
Number of paragraphs: 60

Serial No 1/2022

File No 1045/2021

ANDREW SCOTT MURRAY v TASMANIA POLICE

REASONS FOR JUDGMENT PORTER AJ
24 January 2022
Introduction
1 This is a motion to review a sentence of imprisonment imposed by Magistrate Stanton on 20 April 2021. The sentence was imposed in respect of a charge of "evading police (aggravated circumstances)" and was one of four months' imprisonment, the execution of two months of which was suspended on conditions that the applicant commit no offence punishable by imprisonment for a period of 18 months, and that he comply with the terms of a community correction order made on the same day in relation to other offending. I will later explain those other matters.
2 The charge of aggravated evading police arose from an incident on 22 November 2020. In addition to that first charge on the complaint (35819/20), and also arising from the same incident, the applicant was charged with exceeding the speed limit (charge 2), two charges of disobeying a red traffic light (charges 3 and 4), reckless driving (charge 5), driving while exceeding 0.05 (charge 6), driving while alcohol was present in his body being a person to whom s 6(3) of the Road Safety (Alcohol and Drugs) Act 1970 applies (charge 7), and driving while his licence was suspended…

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.

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Details

Case: [2022] TASSC 1
Decision Date: 24 January 2022

CaseChat Overview and Summary

Murray v Tasmania Police involved the defendant who was charged with evading police and reckless driving. The dispute before the court was whether the defendant could be punished twice for the same act of reckless driving, which was an element of the aggravated evading charge but was also separately charged. The Court of Criminal Appeal of Tasmania was tasked with determining the correct application of sentencing principles in this context.

The primary legal issue was whether the defendant could be sentenced twice for the same act of reckless driving. The court had to consider whether the charge of aggravated evading police, which included reckless driving as an element of aggravation, should be treated separately from the charge of reckless driving, or if the reckless driving had already been sufficiently punished as part of the evading charge. This issue involved a careful examination of the principles of double punishment and the proper interpretation of the respective charges and their elements.

In its reasoning, the Court of Criminal Appeal concluded that the defendant should not be punished twice for the same act. The court held that the element of reckless driving inherent in the charge of aggravated evading police had already been adequately addressed within that charge. The court further reasoned that to sentence the defendant for reckless driving separately would constitute double punishment, which is impermissible. The court was mindful of ensuring that the sentences were proportionate and did not overlap in a way that would unjustly increase the defendant's punishment.

The final orders of the court were that the sentence for reckless driving was to be quashed, and the sentence for aggravated evading police was to stand. The court ordered that the defendant's sentence for reckless driving be disregarded, ensuring that the overall punishment did not exceed what was just and proportionate for the offences committed.

Orders