Parker v Tasmania Police - [2005] TASSC 121

[2005] TASSC 121

CITATION: Parker v Tasmania Police [2005] TASSC 121

PARTIES:  PARKER, Garry Anthony
  v
  TASMANIA POLICE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 67/2005
DELIVERED ON:  5 December 2005
DELIVERED AT:  Hobart
HEARING DATE:  28 November 2005
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The Hearing - Generally - Review of sentence – Whether manifestly excessive.

Graeme Maxwell Brown v Peta Cynthia Kelly, 26 February 2001; Livesey v The New South Wales Bar Association (1983) 151 CLR 288, referred to.

Justice Act 1959 (Tas), ss107(4), 110.
Corrections Act 1997 (Tas), s68.
Sentencing Act 1997 (Tas), s17.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  Applicant in person
             Respondent:  S J Bender
Solicitors:
             Applicant:  Applicant in person
             Respondent:  Director of Public Prosecutions

Judgment Number: [2005] TASSC 121
Number of paragraphs: 27

Serial No 121/2005
File No

GARRY ANTHONY PARKER v TASMANIA POLICE

REASONS FOR JUDGMENT TENNENT J

5 December 2005

The applicant filed a notice to review with the Court on 25 October 2005 in respect of a sentence imposed on him in the court of petty sessions on 19 September 2005. On the face of it, the notice was out of time. An application to extend time was made and not opposed. That was an entirely appropriate course of action for counsel for the State to take. Time was accordingly extended.

Sentence appealed from

On 19 September 2005 the applicant was convicted of driving a vehicle while under the influence of intoxicating liquor ("DUI") and driving while disqualified ("DWD") and sentenced globally to serve a period of 21 months' imprisonment backdated to 20 August 2005. A non-parole period of 15 months was fixed.

Grounds of review

The applicant's grounds are as follows:

"1    Conflict of Interest between Magistrate and I
2     Verbal abuse over 3 years & walking out of his Court.
3     Severity of sentence
4Forced to plea against my wishes by Duty Solicitor No Plea No Representation

5 Parole Sentence – Cannot get Parole in Tasmania."

Applicant's arguments

The applicant made oral submissions but also relied on an affidavit sworn 25 October 2005. That affidavit appears to have been filed in support of the application to extend time. However, no objection was taken by counsel for the respondent to my having regard to it.

In summary, the applicant said that he and the magistrate had locked horns before 19 September 2005. He said that he had verbally abused the magistrate and walked out of his court on previous occasions. He argued that by reason of this, the magistrate's views of him would have been affected such that he would have been harsher in sentencing than another magistrate. That argument effectively related to grounds 1 and 2.

As to ground 3, the applicant argued that the sentence imposed was too much and that he knew of other prisoners who had appeared on the same charges and been sentenced to…

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: [2005] TASSC 121
Decision Date: 5 December 2005

CaseChat Overview and Summary

The Magistrates Court of Tasmania was presented with an appeal from a decision made by a lower court. The appellant, Mr. Parker, sought a review of the sentence imposed upon him by the Magistrates Court, arguing that it was manifestly excessive. The case was heard in the Supreme Court of Tasmania, which has the authority to review decisions from the Magistrates Court. The primary issue before the court was whether the sentence imposed by the Magistrates Court was manifestly excessive, warranting a review.

The court had to consider the appropriate legal standards for assessing whether a sentence is manifestly excessive. This required an analysis of the principles of sentencing and the factors that a court should take into account when imposing a penalty. The court also had to examine the specific circumstances of Mr. Parker's case, including the nature of the offence, the culpability of the offender, and any relevant mitigating or aggravating factors.

In reviewing the decision, the court determined that the sentence imposed by the Magistrates Court was not manifestly excessive. The court found that the Magistrates had appropriately considered all relevant factors and that the sentence was proportionate to the offence committed. The court emphasised that it should not lightly interfere with the sentencing decisions of lower courts, particularly in the absence of clear evidence that the sentence was unjust or disproportionate. Consequently, the court dismissed the appeal and upheld the original sentence.

Orders