O'Toole v White - [2004] TASSC 26

[2004] TASSC 26

CITATION: O'Toole v White [2004] TASSC 26

PARTIES:  O'TOOLE, Jamie Nathan
  v
  WHITE, Sergeant Graham Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 34/2003
DELIVERED ON:  25 March 2004
DELIVERED AT:  Launceston
HEARING DATE/S:  18 March 2004
JUDGMENT OF:  Slicer J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Appellant:  E Hughes
             Respondent:  J P Ransom
Solicitors:
             Appellant:  Director of Legal Aid
             Respondent:  Director of Public Prosecution

Judgment ID Number: [2004] TASSC 26
Number of paragraphs: 12

Serial No 26/2004
File No LCA 34/2003

JAMIE NATHAN O'TOOLE v SERGEANT GRAHAM ROSS WHITE

REASONS FOR JUDGMENT SLICER J
25 March 2004

The appellant seeks review of a sentence of imprisonment of 18 months following his conviction for a number of driving offences. The grounds of appeal claim error on the grounds that:

(1)The sentence imposed was manifestly excessive in all the circumstances. A component of this ground is the effect of the concurrent imposition of 68 days' imprisonment for the non-payment of fines.
(2)The refusal to set a non-parole period in relation to the sentence of imprisonment was either a wrongful exercise of discretion or contributed to the error that the sentence was excessive.

The offences

The appellant was sentenced to a single term of imprisonment in respect of his conviction upon seven complaints encompassing conduct between 19 May 2002 and 6 May 2003. Those offences comprise:

(i)        Complaints 29664/02 and 34646/02
On 19 May 2002 the appellant was intercepted by police following their observation of his manner of driving. When intercepted he attempted to avoid continued detention or identification. The significance of this, is not that he was punished for a separate and uncharged offence (De Simoni (1998) 147 CLR 383) but that his conduct showed that he was aware of the seriousness of his conduct and that his act of driving was not temporary inadvertence. Mr O'Toole was convicted of driving with a blood alcohol concentration of .07, contrary to the Road Safety (Alcohol and Drugs) Act 1970, s6(1), an unregistered motor vehicle contrary to the Vehicle and Traffic Act 1999, s27 and, under a separate complaint (No 34646/02, laid for technical reasons) of driving while disqualified contrary to the Vehicle and Traffic Act, s13(1). The permitted combined maximum sentencing penalty was that of 15 months' imprisonment (Road Safety (Alcohol and Drugs) Act, s17, Pt 1, Vehicle and Traffic Act, s13(1)(b)(b)(i)).
(ii)       Complaint 63287/02
Following his detention on 19 May 2002 the appellant was admitted to bail requiring him to appear in the Scottsdale Court of Petty Sessions on 15 October 2002. He was further bailed to re-appear on 26 November and failed to so do. The complaint was made pursuant to the Bail Act 1994, s9, contravention of which attracts a maximum custodial term of six months.
(iii)      Complaint 45415/02
On 19 June 2002 the appellant was apprehended driving a motor vehicle at Rocherlea some considerable distance from his given residential address in Launceston. He was charged with driving…

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 O'Toole v White

Details

AGLC: O'Toole v White [2004] TASSC 26
Case: [2004] TASSC 26
Decision Date: 25 March 2004

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Jamie Nathan O'Toole appealed against the 18-month imprisonment sentence imposed by the magistrate following his conviction for multiple driving offences. The appellant argued that the sentence was manifestly excessive, particularly because of the concurrent imposition of 68 days' imprisonment for the non-payment of fines, and that the refusal to set a non-parole period contributed to the excessiveness of the sentence. The court had to decide whether the sentence was indeed manifestly excessive and whether the magistrate's refusal to set a non-parole period was a wrongful exercise of discretion.
The court held that the sentence of 18 months did not demonstrate error nor was it manifestly excessive in its own right. The magistrate was within his discretion in considering the nature and circumstances of the offences, the appellant's record, and the public interest in requiring him to serve the full sentence. The non-provision of an opportunity for parole did not make the sentence manifestly excessive. The court also found that the method adopted by the court in imposing the concurrent sentence for unpaid fines was unassailable, as required by the Sentencing Act 1997. Therefore, the motion to review was dismissed, and the sentence upheld.

Orders