Richardson v Timmins - [2003] TASSC 5

[2003] TASSC 5

CITATION: Richardson v Timmins [2003] TASSC 5

PARTIES:  RICHARDSON, Daniel Sean
  v
  TIMMINS, Stephen Charles

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 108/2002
DELIVERED ON:  6 March 2003
DELIVERED AT:  Hobart
HEARING DATES:  20 February 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Magistrates - Appeal from and control of magistrates - Tasmania - Motion to review - The hearing - Generally - Review of sentence - Sentences of imprisonment and licence disqualification - Whether sentences manifestly excessive - Limited mitigatory material.
Road Safety (Alcohol & Drugs) Act 1970, s4(a).

Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  M I Taylor
           Respondent:  M Healey
Solicitors:
           Applicant:  Wallace Wilkinson & Webster
           Respondent:  Director of Public Prosecutions

Judgment Number: [2003] TASSC 5
Number of Paragraphs: 16

Serial No 5/2003
File No LCA 108/2002

DANIEL SEAN RICHARDSON v STEPHEN CHARLES TIMMINS

REASONS FOR JUDGMENT SLICER J

6 March 2003

The applicant seeks review of a sentence of six months' imprisonment following his conviction for the offence of driving under the influence of intoxicating liquor contrary to the Road Safety (Alcohol & Drugs) Act 1970, s4(a), on the ground that it was manifestly excessive. A concurrent charge of driving while exceeding the prescribed alcohol limit was dismissed.

The offender was intercepted by police on the Midlands Highway on Sunday, 7 September 2002 at 2.45pm, following a report from a concerned motorist. The intercepting officer:

"… noticed that the vehicle was veering from the left edge of the highway until the driver's side tyres were over the white centre line."

The vehicle, travelling at approximately 110 km/h when the officer activated his vehicle's lights and sirens, continued on its journey without slowing. The Court was told that:
"As the vehicle approached a right curve of the highway it drove straight and the front of the car and left rear wheels left the highway. The officer believed at this stage the vehicle was going to crash down the side embankment. At the last moment the vehicle swerved right and broadsided along the side of the highway before spearing back across the centre line on the wrong side of the road. The vehicle was then brought back under control for a short distance before pulling over and stopping."

Following interception, the applicant was observed to "be unsteady on his feet", his eyes "watery and blood shot" and "slurring his words". He told police that be had consumed "24 stubbies" during and since the previous evening and had driven to Hobart and back in his then state. His explanation to police was:

"I'm an alcoholic and I can't get any help. My GP only prescribed me valium. I need help."

The applicant subsequently underwent a blood alcohol analysis which returned a reading of .242 grams per 100 millilitres of blood.

On 8 September 1999, the applicant had been convicted of a breathanlysis offence involving a blood alcohol concentration of .173. He was fined $950 and disqualified from holding a driver's licence for…

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 Richardson v Timmins

Details

AGLC: Richardson v Timmins [2003] TASSC 5
Case: [2003] TASSC 5
Decision Date: 6 March 2003

CaseChat Overview and Summary

In Richardson v Timmins, the applicant, Daniel Sean Richardson, appealed against his sentence of six months' imprisonment for driving under the influence of intoxicating liquor, arguing it was manifestly excessive. The Supreme Court of Tasmania, presided over by Slicer J, was tasked with reviewing the sentence imposed by the Magistrates Court. The appeal hinged on whether the sentence was manifestly excessive, considering the applicant's driving behaviour, his blood alcohol concentration, and his previous convictions.

The court examined the nature of the driving offence, the high blood alcohol concentration of.242, and the significant danger posed to other road users. It also considered the applicant's previous conviction for a similar offence and his acknowledgment of his alcoholism and inability to seek help. Despite these factors, the court found that the sentence was at the upper end of the range but not manifestly excessive. However, the court noted the lack of detailed personal circumstances provided to the sentencing magistrate, which might have influenced the penalty.

The court concluded that while the sentence was not manifestly excessive, the lack of opportunity for the applicant to provide additional mitigating information led to manifest error. The court decided to suspend the sentence, allowing the applicant to avoid immediate imprisonment, but required him to adhere to strict conditions to prevent further offences. The final orders of the court included upholding the motion to review, quashing the imprisonment order, and imposing a new sentence that included a suspended term of imprisonment contingent on the applicant's compliance with certain conditions.

Orders