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Nichols v McCullough

Nichols v McCullough

Case [2017] TASSC 75 14 December 2017

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[2017] TASSC 75

COURT: SUPREME COURT OF TASMANIA

CITATION: Nichols v McCullough [2017] TASSC 75

PARTIES:  NICHOLS, Benjamin Ray
  v
  McCULLOUGH, Julie

FILE NO:  LCA 2773/2017
DELIVERED ON:  14 December 2017
DELIVERED AT:  Hobart
HEARING DATE:  5 December 2017
JUDGMENT OF:  Geason J

CATCHWORDS:

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving with more than prescribed concentration of alcohol in breath or blood – Sentence and penalty – Whether sentence manifestly excessive.

Aust Dig Traffic Law [1158]

REPRESENTATION:

Counsel:
             Applicant:  D Marcenko
             Respondent:  S Thompson
Solicitors:
             Applicant:  Ogilvie Jennings
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 75
Number of paragraphs: 42

Serial No 75/2017
File No LCA 2773/2017

BENJAMIN RAY NICHOLS v CONSTABLE JULIE McCULLOUGH

REASONS FOR JUDGMENT GEASON J

14 December 2017

The applicant moves the Court to review an order of Magistrate S Cooper made on 25 September 2017 on a complaint for an offence contrary to s 6(1) of the Road Safety (Alcohol and Drugs) Act 1970 (the Act). The amended notice to review raises two grounds. The first ground is that the sentence is manifestly excessive in all the circumstances. The second ground is that the learned magistrate erred in that he failed to invite the applicant to make submissions as to how the sentencing discretion ought to have been exercised in determining the period of disqualification.
The applicant returned a reading of 0.067 grams of alcohol in 100 millilitres of blood. Upon his plea of guilty to the charge of exceeding .05, the applicant was sentenced to two months' imprisonment. He was disqualified from holding or obtaining a driver's licence for a period of 15 months, to commence upon his release from prison. He was ordered to pay the costs of the complaint and the relevant victims of crime levy. The applicant was taken into custody, where he spent four days prior to a grant of bail pending the determination of this appeal.
The applicant had filed and served an application for a restricted licence under s 18 of the Vehicle and Traffic Act 1999. After sentencing the applicant, the learned magistrate described that application as "entirely deficient", advised him that he had no chance of receiving a restricted licence in view of his history, and "the law required to be applied", and dismissed it.
The applicant was unrepresented in the proceedings in the Magistrates Court.
The applicant does not challenge the learned magistrate's decision to impose a custodial sentence, nor the duration of the suspension of his licence. The focus of ground 1 of the appeal is on the failure to suspend the custodial component of the sentence.

The offence

At 6.27pm on Sunday, 18 December 2016, random breath tests were being conducted by police on the East Derwent Highway near the Bowen Bridge overpass. The applicant submitted to a breath test and returned a positive result. He then submitted to a breath analysis and…

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 Nichols v McCullough

Details

AGLC: Nichols v McCullough [2017] TASSC 75
Case: [2017] TASSC 75
Decision Date: 14 December 2017

CaseChat Overview and Summary

Nichols v McCullough is a case before the Supreme Court of Tasmania involving an appeal against a sentence imposed for a conviction of driving with a breath alcohol concentration (BAC) of over the legal limit. The defendant, Nichols, was found guilty of this offence and was sentenced to a term of imprisonment and a disqualification from driving. The defendant appealed the sentence on the basis that it was manifestly excessive, and the case was heard by the Supreme Court of Tasmania.

The central legal issue in this case was whether the sentence imposed on Nichols was manifestly excessive. The defendant argued that the sentence was disproportionate to the offence and did not take into account mitigating factors. The prosecution contended that the sentence was appropriate given the seriousness of the offence and the need to deter such behaviour. The court was required to consider the principles of sentencing in Tasmania, including the need for deterrence, denunciation, and the protection of the community, as well as the circumstances of the case and the character of the offender.

In delivering the judgment, the court considered the seriousness of the offence, which involved driving with a high BAC, potentially endangering the lives of other road users. The court also acknowledged the defendant's previous good character and the mitigating factors presented on his behalf. However, the court found that the sentence was not manifestly excessive, as it was proportionate to the offence and served the purposes of deterrence and denunciation. The court emphasised that driving under the influence of alcohol was a serious matter with significant potential consequences, and that the sentence reflected the need to protect the community from such behaviour.

The court dismissed the appeal and upheld the sentence imposed by the lower court. The defendant's term of imprisonment and disqualification from driving remained in effect, and the appeal was unsuccessful. The decision reinforces the importance of adhering to traffic laws and the potential consequences of driving under the influence of alcohol.

Orders