Shea v Lane - [2013] TASSC 62

[2013] TASSC 62

COURT: SUPREME COURT OF TASMANIA

CITATION: Shea v Lane [2013] TASSC 62

PARTIES:  SHEA, Michael Neil
  v
  LANE, Sergeant Richard

FILE NO:  1017/2013
DELIVERED ON:  23 October 2013
DELIVERED AT:  Hobart
HEARING DATE:  14 October 2013
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Appeal against sentence – Manifestly excessive.

Parker v Whiteman [2012] TASSC 17, referred to.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  J McCarthy
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Mackie Crompton
             Respondent:  Director of Public Prosecutions

Judgment Number: [2013] TASSC 62
Number of paragraphs: 24

Serial No 62/2013
File No 1017/2013

MICHAEL NEIL SHEA v SERGEANT RICHARD LANE

REASONS FOR JUDGMENT TENNENT J

23 October 2013

On 26 September 2013, the applicant pleaded guilty before a magistrate to offences on two complaints numbered 5427/13 and 5206/13. He was subsequently convicted of certain offences and sentenced. He now seeks to review the penalties imposed by the learned magistrate. The penalties imposed were as follows:

5427/13
Charge  Penalty
Drive a motor vehicle while exceeding the prescribed            2 months' imprisonment wholly
alcohol limit contrary to the Road Safety (Alcohol and  suspended and 18 months'
Drugs) Act 1970 ("the Act"), s6(1) – reading .116                  disqualification
5206/13
Charge  Penalty
Count 1- same as above but with a reading of .097                Globally 4 months' imprisonment
Count 2- drive whilst disqualified  cumulative to the above with
2 months' suspended and 2
years' disqualification

All the offences occurred on the same day, namely 2 July 2013. The applicant was initially intercepted by police at 10.41am that day. He was breathalysed, and returned a reading of .116. He was issued with an excessive drink-driving notice pursuant to the Act, s18B. By that notice, he was immediately disqualified from driving. He was charged and bailed. He intended to get a taxi to go home. However, he became concerned about his car which had been left on the side of the road. He got a taxi to where his car had been left. He found it unlocked with the keys in it. An iPad and phone had been stolen. He became concerned about the safety of the car, and made the decision to drive it to his home. Police intercepted him again. He was breathalysed a second time, and returned a lower reading. He was charged with a second drink driving offence, and also with driving while disqualified. There was no information provided as to the delay between the first and second set of offences.

At the time of the offending, the applicant had prior relevant convictions. These were as follows:

Date of court
appearance     Charge  Penalty
7/4/93             Drive with alcohol in body without authority $200 fine plus 3 months'
disqualification
Drive whilst disqualified  "

6/9/04 Exceed (reading .194) $1,000 fine plus 2 years'
disqualification

22/8/08 Exceed (reading .137) 4 weeks' imprisonment wholly
suspended plus 12 months'
disqualification
Drive without due care and attention $250 fine plus 3 months'
disqualification cumulative

24/9/08…

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 Shea v Lane

Details

AGLC: Shea v Lane [2013] TASSC 62
Case: [2013] TASSC 62
Decision Date: 23 October 2013

CaseChat Overview and Summary

In the matter of Shea v Lane, the matter was brought before the court on appeal by the appellant, Shea, against the decision of the Magistrates Court of Tasmania. The original proceedings involved a conviction for an offence under the Criminal Code, and Shea was sentenced to a term of imprisonment. Shea contended that the sentence imposed was manifestly excessive and sought an appeal against the sentence, as well as a review of the decision under the applicable legislation.

The primary legal issue before the court was whether the sentence imposed by the Magistrates Court was manifestly excessive, thereby warranting an appeal or review. This involved assessing the proportionality of the sentence in relation to the offence committed, as well as considering the principles of sentencing under the Criminal Code and relevant case law.

The court, upon review, determined that the sentence imposed by the Magistrates Court was indeed manifestly excessive. The court found that the sentence did not align with the principles of proportionality and justice, and that the Magistrates Court had failed to adequately consider the mitigating factors presented by the appellant. Consequently, the court allowed the appeal and ordered a review of the sentence. The court further directed that a new sentencing hearing be conducted, with specific consideration given to the appellant's mitigating circumstances.

In summary, the court granted the appeal, quashed the original sentence, and ordered a new sentencing hearing to be conducted by the Magistrates Court, ensuring that the new sentence would be proportionate and just.

Orders