Parker v Whiteman - [2012] TASSC 17

[2012] TASSC 17

COURT: SUPREME COURT OF TASMANIA

CITATION: Parker v Whiteman [2012] TASSC 17

PARTIES:  PARKER, John (Senior Sergeant)
  v
  WHITEMAN, Kristian Vincent

FILE NO/S:  1147/2011
DELIVERED ON:  16 April 2012
DELIVERED AT:  Launceston
HEARING DATE:  16 April 2012
JUDGMENT OF:  Evans J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Review of sentence – Disqualified from driving for 14 days and fined $300 for driving while disqualified – Whether sentence manifestly inadequate.

Visser v Smart [1998] TASSC 151, Maher v Banks A7/1992 ([1992] TASSC 67 Jarvis v Brown and McDonald [1998] TASSC 120, applied.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  S Nicholson
             Respondent:  In person
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  In person

Judgment Number: [2012] TASSC 17
Number of paragraphs: 18

Serial No 17/2012
File No 1147/2011

SENIOR SERGEANT JOHN PARKER v KRISTIAN VINCENT WHITEMAN

REASONS FOR JUDGMENT EVANS J

16 April 2012

The applicant has filed a notice to review the sentence Magistrate Marron imposed on the respondent on 15 December 2011, following the respondent's plea of guilty to a charge of driving whilst disqualified in breach of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s19A(1). His Honour fined the respondent $300 and disqualified him from driving for 14 days.

The sole ground of review is that the sentence is manifestly inadequate. In arguing this ground counsel for the applicant has focused on the inadequacy of the driving disqualification of 14 days.

In my consideration of this matter I have kept in mind the following passage from the decision of Crawford J (as he then was) in Visser v Smart [1998] TASSC 151:

"An appellate court must not interfere with the exercise of the sentencing discretion except in a clear case of error. A magistrate is vested with a very wide discretion. Whittle v McIntyre [1967] Tas SR 263 (NC6). It is not sufficient to set aside a sentencing order just because a more severe sentence would have been imposed by the appellate court. In the circumstances of this case, the motion must fail unless the Court is satisfied that the sentence was manifestly wrong in its inadequacy, as to amount to a clear error in the sentencing process. Such principles have been stated by courts of this State on a great many occasions and come from the High Court in cases such as House v R [1936] HCA 40; (1936) 55 CLR 499, Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 and Harris v R [1954] HCA 51; (1954) 90 CLR 652. Notwithstanding the wide sentencing discretion in the court below, it is the duty of the appellate court to interfere where it is necessary to do so to avoid such manifest inadequacy in sentence or inconsistency in sentencing standards that the error is of such gravity that it is essential in the administration of justice that the error be corrected.…

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 Parker v Whiteman

Details

AGLC: Parker v Whiteman [2012] TASSC 17
Case: [2012] TASSC 17
Decision Date: 16 April 2012

CaseChat Overview and Summary

The case of Parker v Whiteman involves an appeal by the respondent against a sentence imposed by the Magistrates Court of Tasmania. The appellant, Whiteman, was found guilty of driving while disqualified and was sentenced to a 14-day disqualification from driving and a fine of $300. Dissatisfied with the sentence, the respondent, Parker, moved for a review of the sentence, arguing it was manifestly inadequate.

The central legal issue before the court was whether the sentence imposed by the Magistrates Court was manifestly inadequate. Parker contended that the sentence was insufficient given the gravity of the offence and the appellant's history of similar violations. The court had to determine if the punishment was proportionate to the offence and if it adequately served the purposes of punishment, deterrence, and rehabilitation.

The court considered the nature of the offence, the appellant's history, and the principles of sentencing. It found that the sentence was not manifestly inadequate. The court noted the importance of deterrence and the need to send a clear message that driving while disqualified would not be tolerated. However, it also acknowledged the appellant's cooperation and remorse, as well as the potential impact of a harsher penalty on their livelihood. The court concluded that the sentence, while not lenient, was appropriate and served the necessary purposes of punishment. The motion for review was therefore dismissed.

Orders