Shepherd v Visser and Turner - [1999] TASSC 81

[1999] TASSC 81

CITATION: Shepherd v Visser and Turner [1999] TASSC 81

PARTIES: SHEPHERD, Damian James

v
VISSER, Claas
TURNER, Paul

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 3/1999
DELIVERED ON:  6 August 1999
DELIVERED AT:  Launceston
HEARING DATE:  29 July 1999
JUDGMENT OF:  Cox CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
             Applicant:  W T McMillan
             Respondent:  C J Geason
Solicitors:
             Applicant:  Ritchie & Parker Alfred Green & Co
             Respondent:  Director of Public Prosecutions

Judgment Number: [1999] TASSC 81
Number of paragraphs: 14

Serial No 81/1999
File No LCA 3/1999

DAMIAM JAMES SHEPHERD v CLAAS VISSER and PAUL TURNER

REASONS FOR JUDGMENT COX CJ

6 August 1999

The applicant seeks a review of orders disqualifying him for holding or obtaining a licence to drive a motor vehicle for an aggregate period of 18 months. On 2 February 1999 he was convicted of two counts of driving while disqualified, contrary to the Traffic Act 1925, s37(1) ("the Act"), the first occurring on 15 September 1998 and the second on 23 October 1998. The disqualification in breach of which he drove was imposed as the result of the accumulation of demerit points which led to his being "served" with a notice of disqualification in about July 1998. What form service took (see the Act, s43C(4)) was not apparent from the material before me. For the first offence, he was fined $400 and disqualified for a period of nine months to commence at the expiration of the six months' period of disqualification imposed by the July notice (namely, 13 February 1999), while for the second offence it was ordered that he be imprisoned for one month, the execution of such sentence being suspended on condition that he not commit a similar offence within a period of two years. In addition, he was disqualified for a further period of nine months cumulative upon the period imposed for the first offence. He was also ordered to pay levies amounting to $40 and court costs of $48. The applicant challenges only the imposition of cumulative periods of disqualification totalling 18 months as a miscarriage of the sentencing discretion.

The explanation offered by the applicant to police on his apprehension on 15 September 1998 was to the effect that his mother handled the mail and he did not realise that he was disqualified. On his plea of guilty, he was represented by counsel, who offered the explanation that "he considered that he was a person who had to hand a licence in when it expired which was going to be the middle of September, 18 September". It was not suggested that the applicant held an honest and reasonable belief that he was still licensed when he drove on 15 September because he had not seen or learnt of the contents of the notice of disqualification and counsel's submission indicates knowledge of the existence of some communication from the transport authorities involving the loss of his licence to drive. The lack of any particularity in the…

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 Shepherd v Visser and Turner

Details

AGLC: Shepherd v Visser and Turner [1999] TASSC 81
Case: [1999] TASSC 81
Decision Date: 6 August 1999

CaseChat Overview and Summary

Damian James Shepherd sought review of orders disqualifying him from holding or obtaining a licence to drive a motor vehicle for a total of 18 months. Shepherd was convicted of two counts of driving while disqualified, contrary to the Traffic Act 1925, s 37(1). He was fined $400 and disqualified for a period of nine months to commence at the expiration of the six months' period of disqualification imposed by the July notice for the first offence. For the second offence, Shepherd was imprisoned for one month, the execution of such sentence being suspended on condition that he not commit a similar offence within a period of two years. Shepherd was also disqualified for a further period of nine months cumulative upon the period imposed for the first offence. Shepherd challenged the imposition of cumulative periods of disqualification amounting to 18 months as a miscarriage of the sentencing discretion.

The court examined the principle that a very lengthy period of disqualification may be counter-productive and contrary to the public interest. The court referred to various cases where lengthy periods of disqualification were considered excessive and were reduced. The court noted that while the loss of the right to drive can be a deterrent, severe and unusual hardship may be caused by the disqualification. The court found that the period of 18 months was unnecessarily punitive and manifestly excessive. The court exercised its discretion to reduce the periods of disqualification to six months for the first offence and four months cumulative upon the first for the second offence. Shepherd was therefore disqualified for a total of ten months from 13 February 1999. The other orders of the Court of Petty Sessions were confirmed.

The court ordered that Shepherd be disqualified for holding or obtaining a licence to drive a motor vehicle for a period of ten months from 13 February 1999. The other orders of the Court of Petty Sessions were confirmed.

Orders