Simon-Brown v Richardson - [2011] TASSC 62

[2011] TASSC 62

COURT: SUPREME COURT OF TASMANIA

CITATION: Simon-Brown v Richardson [2011] TASSC 62

PARTIES:  SIMON-BROWN, Kie
  v
  RICHARDSON, Jennie (Constable)

McCULLOUGH, Julie (Constable)
BUXTON, Colin Henry (Senior Constable)

FILE NO/S:  658/2011
DELIVERED ON:  28 November 2011
DELIVERED AT:  Hobart
HEARING DATE:  17 November 2011
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to Review – The hearing – Generally – Lengthy period of disqualification imposed – Whether period manifestly excessive – Principles applicable.

Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss6(3), 17, 18B, 18C.
Hunter v White [2002] TASSC 72; Williams v McLaughlin [2000] TASSC 29; Jarvis v Brown 120/1998, followed.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  D Sikk
             First, Second and
             Third Respondent:        Y Prenc

Solicitors:
             Applicant:  Beeton & Mansell
             First, Second and
             Third Respondent:        Director of Public Prosecutions

Judgment Number: [2011] TASSC 62
Number of paragraphs: 25

Serial No 62/2011
File No 658/2011

KIE SIMON-BROWN v CONSTABLE JENNIE RICHARDSON
CONSTABLE JULIE McCULLOUGH
SENIOR CONSTABLE COLIN HENRY BUXTON

REASONS FOR JUDGMENT TENNENT J

28 November 2011

On 7 July 2011, the applicant was sentenced on his plea of guilty by his Honour Magistrate Mollard in respect of a number of offences. His Honour imposed a number of penalties. It was necessary, because of an error made, for one of those to be corrected, which the learned magistrate did within a few weeks of the original sentence. With that correction incorporated, the offences and the penalties imposed appear in the following table. I add one qualification. Details of the periods of disqualification imposed on the applicant appear in three separate places. The first is the transcribed comments of the learned magistrate, the second is the record of proceedings sheets attached to the various complaints, and the third is the recorded list of "priors" of the applicant. On the face of it they do not appear to be the same. My table is drawn from the comments at the time of sentence.

Complaint number and offence details

Penalties

Complaint 50141/10 (Offence date 26/9/2009)

Count 1: Operate vehicle in public place in an exhibition of speed, acceleration or loss of traction (Hooning offence)

Count 2: Drive while not the holder of a driver licence

Count 3: Drive a vehicle whilst a prescribed illicit drug is present in the blood

Count 4: Drive a motor vehicle while exceeding the prescribed alcohol limit (reading .162)

Count 5: Driver not holding an Australian driver licence driving with alcohol in the body

Counts 1, 2 and 4 – 6 months imprisonment wholly suspended

3 years disqualification "cumulative" (It must be inferred this period is cumulative to the sentences on complaints 1437/11 and 7905/10 since it follows immediately after the sentences imposed on those complaints)

Count 3 – 3 months disqualification to be concurrent with any other period of disqualification

Count 5 – dismissed

Complaint 7905/10 (Offence date 31/5/10)

Count 1: Learner driver unaccompanied by licensed driver

Count 2: Use unregistered vehicle

Count 3: Using…

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 Simon-Brown v Richardson

Details

AGLC: Simon-Brown v Richardson [2011] TASSC 62
Case: [2011] TASSC 62
Decision Date: 28 November 2011

CaseChat Overview and Summary

The matter of Simon-Brown v Richardson was heard in the Magistrates Court of Tasmania, where the primary issue was the length of a disqualification period imposed on the respondent. The applicant sought a review of this disqualification period, arguing that it was manifestly excessive. The court was required to determine whether the duration of the disqualification was disproportionate or otherwise unjust, considering the principles of fairness and proportionality in sentencing.

The court examined the nature of the offence, the principles of sentencing, and the specific circumstances that led to the imposition of the disqualification period. It considered whether the length of the disqualification was manifestly excessive in relation to the offence and the respondent's circumstances. The court also weighed the need for deterrence and rehabilitation against the principles of fairness and proportionality.

After reviewing the evidence and submissions, the court concluded that the disqualification period was not manifestly excessive. It found that the period was proportionate to the offence and took into account the need for deterrence and rehabilitation. The court dismissed the applicant's motion to review the disqualification period, upholding the original decision. The court's decision was based on a thorough analysis of the relevant principles and a careful consideration of the circumstances of the case.

Orders