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Peck v Visser

Peck v Visser

Case [1999] TASSC 38 1 April 1999

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[1999] TASSC 38

PARTIES:  PECK, Michael Wayne
  v
  VISSER, Claas

TURNER, Paul John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 43/1998
DELIVERED:  1 April 1999
HEARING DATE/S:  23 March 1999
JUDGMENT OF:  Wright J

CATCHWORDS:

Magistrates - Appeal from and control of magistrates - Motion to review - The hearing - Review of sentence - Principles applicable - Totality and proportionality principles - Sentences of imprisonment and licence disqualification - Whether sentences manifestly excessive - Driver with bad record -Consideration of aggregate sentences.

Road Safety (Alcohol & Drugs) Act 1970 (Tas).
Veen v R (No 2) (1987 - 1988) 164 CLR 465, applied.
Harris v Walker (1996) 89 A Crim R 257; Brown v Stone B14/1995; Bessell v Riley B12/1995; R v O'Brien 43/1987; Jarvis v Brown and McDonald 120/1998, followed.
Grabovac (1997) 92 A Crim R 258; Hyland v R A82/1996; R v Faulkner (1972) 56 Cr App R 594, considered.
Devine v R (1992) 2 Tas R 167, distinguished.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  C J Gunson
             Respondent:  H Virs
Solicitors:
             Applicant:  Abetz Curtis & Worsley
             Respondent:  Director of Public Prosecutions

Judgment category classification:
Judgment ID Number: [1999] TASSC 38
Number of pages: 6

Serial No 38/1999
File No LCA 43/1998

MICHAEL WAYNE PECK v CLASS VISSER, PAUL JOHN TURNER

REASONS FOR JUDGMENT WRIGHT J

1 April 1999

On 6 October 1998 at the Court of Petty Sessions in Launceston, the applicant was convicted upon five complaints, the details of which are set out in the table hereunder. The penalties imposed in respect of each offence are set out in the column headed "Penalty" and the maximum available penalty provided for in the Road Safety (Alcohol & Drugs) Act 1970 is set out in the column headed "Max Penalty".

"Comp No Charge Breach of Penalty Max Penalty

22604/97 Exceed 0.05% (0.166%) Sec 6(1), Road Safety (Alcohol & Drugs) Act 1970 12 mths imp
2 years disq
24 mths imp
24 mths disq (min)

72 mths disq (max)

Drive whilst disqualified Sec 19A(1), Road Safety (Alcohol & Drugs) Act 1970 6 mths imp (conc)
12 mths disq (conc) 6 mths imp
3 years disq

22674/98 Exceed 0.05% (0.20%) Sec 6(1), Road Safety (Alcohol & Drugs) Act 1970 Dismissed

Drive while alcohol in body no authority (0.20%) Sec 6(2), Road Safety (Alcohol & Drugs) Act 1970 12 mths imp
3 years disq
24 mths imp
24 mths disq (min)

72 mths disq (max)

Drive whilst disqualified Sec 19A(1), Road Safety (Alcohol & Drugs) Act 1970 6 mths imp (conc)
12 mths disq (conc) 6 mths imp
3 years disq

23891/97 Fail to appear Sec 5(4), Bail Act 1994 Convicted & disch

22694/98 Fail to wear seat belt Reg 8(1A)(a), Traffic (General & Local) Regs 1956 Convicted & disch

Drive whilst disqualified Sec 19A(1), Road Safety (Alcohol & Drugs) Act 1970 6 mths imp
12 mths disq 6 mths imp
3 years disq

Drive while alcohol in body no authority (0.219%) Sec…

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 Peck v Visser

Details

AGLC: Peck v Visser [1999] TASSC 38
Case: [1999] TASSC 38
Decision Date: 1 April 1999

CaseChat Overview and Summary

Peck v Visser is a case involving an appeal against a sentence imposed by the Court of Petty Sessions in Launceston. The applicant, Michael Wayne Peck, was convicted on multiple charges, including driving under the influence of alcohol and driving while disqualified, and was sentenced to imprisonment and licence disqualification. The legal issues before the Supreme Court of Tasmania were whether the sentences imposed were manifestly excessive and whether they offended the principles of totality and proportionality. The court considered the applicant's extensive criminal history, including multiple prior convictions for similar offences, and the need for deterrence and protection of society. The court found that while the sentences individually were not excessive, the cumulative effect of the penalties warranted review. The court confirmed the sentences of imprisonment but reduced the disqualification period to run concurrently with the pre-existing disqualification, starting from the date of the applicant's release from prison. The court thus varied the sentence to some extent but did not grant a full review.

Orders