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Shipton v R

Shipton v R

Case [2003] TASSC 23 28 April 2003

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[2003] TASSC 23

CITATION: Shipton v R [2003] TASSC 23

PARTIES:  SHIPTON, Troy Ashley
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 79/2002
DELIVERED ON:  28 April 2003
DELIVERED AT:  Hobart
HEARING DATE:  7 March 2003
JUDGMENT OF:  Cox CJ, Evans and Blow JJ

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Other matters - Tasmania - Motor manslaughter - Grossly reckless driving over sustained period while intoxicated - Bad driving record - Whether seven years' imprisonment (non-parole five years) manifestly excessive.

Jurisic v R (1998) 45 NSWLR 209; R v Dowie [1989] Tas R 167, referred to.
Aust Dig Criminal Law [911]

REPRESENTATION:

Counsel:
             Appellant:  M J Brett
             Respondent:  J P Ransom and L Goodsell
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2003] TASSC
Number of paragraphs: 49

Serial No 23/2003
File No CCA 79/2002

TROY ASHLEY SHIPTON v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
EVANS J
BLOW J
28 April 2003

Order of the Court:

Appeal dismissed.

Serial No 23/2003
File No CCA 79/2002

TROY ASHLEY SHIPTON v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
28 April 2003

The appellant pleaded guilty to one count of manslaughter and was sentenced on 5 August 2002 to seven years' imprisonment with effect from 31 January 2002. He had been taken into custody on the day of the crime, namely 10 October 2001, but was subsequently sentenced to a period of imprisonment for other summary offences. The time in custody in respect only of this offence was calculated to have effectively commenced on 31 January 2002. The learned sentencing judge ordered that he not be eligible for parole before the expiration of five years from the last-mentioned date. He appeals against his sentence on the grounds that the sentence is manifestly excessive and that the learned sentencing judge erred in the exercise of his discretion by fixing a specific non-parole period. Had he failed or declined to do so, then the appellant would have been entitled to apply for parole at the expiration of one-half of his sentence, as the amendment to the Sentencing Act 1997 ("the Act"), s17(3A), did not commence until 1 October 2002.

This was a case of motor manslaughter, the particulars specified in the indictment being as follows:

"TROY ASHLEY SHIPTON at Dilston in Tasmania on or about the 10^th of October, 2001 unlawfully killed Marian Josephine Elliget when having control of a when having control of a motor vehicle he failed to take reasonable care to avoid danger to human life, such omissions amounting to culpable negligence and thereby causing the death of Marian Josephine Elliget.
The following particulars of culpable negligence are alleged:
(a)Driving a vehicle when his capability was effected by the consumption of alcohol;

(b) Failing to keep as near as practicable to the left side of the road;
(c) Failing…

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 Shipton v R

Details

AGLC: Shipton v R [2003] TASSC 23
Case: [2003] TASSC 23
Decision Date: 28 April 2003

CaseChat Overview and Summary

The case of Shipton v R involved the appellant, Troy Ashley Shipton, who was convicted of manslaughter and sentenced to seven years' imprisonment with a non-parole period of five years. The appellant pleaded guilty to the manslaughter of Marian Josephine Elliget, who was killed in a head-on collision caused by Shipton's reckless driving under the influence of alcohol. The court was required to decide whether the sentence imposed was manifestly excessive and whether the learned sentencing judge had erred in setting a specific non-parole period.

The court found that the sentence was not manifestly excessive. The court considered the aggravating factors of the crime, including the extent and nature of the injuries inflicted, the number of people put at risk, the degree of speed, the degree of intoxication or substance abuse, erratic driving, and the length of the journey during which others were exposed to risk. The court also considered the appellant's extensive criminal history, including multiple prior convictions for drink driving offences, and his failure to comply with previous court orders and sentences. The court concluded that the sentence was warranted in the circumstances of this case and that it was not manifestly excessive.

The court also found that the learned sentencing judge had the discretion to impose a specific non-parole period in excess of one-half of the head sentence. The court considered the nature and circumstances of the offence, the appellant's antecedents or character, and any other sentence to which the appellant was subject. The court concluded that there was ample justification for the setting of a non-parole period of five years and that it was within the proper exercise of the learned sentencing judge's discretion.

The appeal was dismissed, and the sentence and non-parole period were upheld.

Orders