Sutcliffe v Brown - [2017] TASSC 51

[2017] TASSC 51

COURT: SUPREME COURT OF TASMANIA

CITATION: Sutcliffe v Brown [2017] TASSC 51

PARTIES:  SUTCLIFFE, Callan Giuseppe
  v
  BROWN, Jessica

FILE NO:  1754/2017
DELIVERED ON:  5 September 2017
DELIVERED AT:  Hobart
HEARING DATES:  4 September 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Sentence manifestly excessive or inadequate – Driving with blood alcohol content exceeding .05, injury to property, and other offences – Deliberate collisions with partner's car – Time in custody on related matters overlooked – Sentence of four months' imprisonment with three months suspended manifestly excessive.

Geale v Tasmania [2009] TASSC 28, 18 Tas R 338, referred to.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
           Applicant:  F Cangelosi
           Respondent:  M Figg
Solicitors:
           Applicant:  Simmons Wolfhagen
           Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 51
Number of paragraphs: 19

Serial No 51/2017
File No 1754/2017

CALLAN GIUSEPPE SUTCLIFFE v JESSICA BROWN

REASONS FOR JUDGMENT BLOW CJ

(DELIVERED ORALLY) 5 September 2017

This is a motion to review a sentencing order made by a magistrate, Mr S Mollard. The order in question relates to five charges that arose out of a single incident on the night of 7 December 2016. On that night the applicant deliberately drove a car into the back of his partner's car twice on a public road. In relation to those five charges the learned magistrate convicted him and sentenced him to four months' imprisonment, with three months thereof suspended on condition that he be of good behaviour for two years. The learned magistrate also disqualified the applicant from driving for 18 months as from that day, in addition to a disqualification that had been imposed by a notice served by a police officer. The effect of the partly suspended sentence was that it was a condition of the suspended sentence that the applicant was not to commit any offence punishable by imprisonment for a period of two years after the day of sentencing. It is only the partly suspended sentence that is challenged in these proceedings. None of the other orders are challenged.
The principal grounds upon which the applicant relies are that the learned magistrate gave inadequate reasons for not suspending the whole sentence, and that the sentence was manifestly excessive. He does not contend that the head sentence of four months' imprisonment was manifestly excessive. He contends that the sentence is manifestly excessive as a result of it not having been wholly suspended.
The five charges that were the subject of the sentence were as follows:
·    A charge of exceeding .05. (The applicant's blood alcohol content was measured at 0.127.)
·    A charge of driving while his licence was suspended. (It appears to have been a provisional licence that was suspended as a result of an accumulation of demerit points.)
·    Driving without due care and attention.
·    Failing to stop after involvement in a crash.

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 Sutcliffe v Brown

Details

AGLC: Sutcliffe v Brown [2017] TASSC 51
Case: [2017] TASSC 51
Decision Date: 5 September 2017

CaseChat Overview and Summary

The Magistrates Court of Tasmania reviewed a decision made in the case of Sutcliffe v Brown. The respondent, Brown, had been convicted of driving with a blood alcohol content above the legal limit, causing injury to property, and other related offences. The central issue in this appeal was whether the sentence imposed by the original court was manifestly excessive or inadequate. Brown had been sentenced to four months in prison, with three months suspended, for deliberately colliding with his partner's car. The court was required to consider whether the sentence was disproportionate to the offences committed.

The court assessed the severity of the offences and the appropriate sentence. It noted that Brown had a history of similar behaviour and had already spent time in custody for related matters, which had not been taken into account in the original sentencing. The court found that the sentence of four months' imprisonment, with three months suspended, was manifestly excessive, considering the nature of the offences and the mitigating factors such as the time already served by Brown. The court concluded that the sentence imposed did not appropriately balance the need for punishment and deterrence with the circumstances of the case.

Consequently, the court ordered a review of the sentence. It determined that the original sentence was manifestly excessive and did not reflect a fair and just outcome. The court did not specify a new sentence but directed that the matter be re-considered by the original sentencing court with the appropriate weight given to all relevant factors, including the time already served by Brown. The review highlighted the importance of proportionality and consideration of all relevant circumstances in sentencing decisions.

Orders