Wilkie v Cohen - [2016] TASSC 14

[2016] TASSC 14

COURT: SUPREME COURT OF TASMANIA

CITATION: Wilkie v Cohen [2016] TASSC 14

PARTIES:  WILKIE, Scott
  v
  COHEN, Christian Peter

FILE NO:  1319/2015
DELIVERED ON:  23 March 2016
DELIVERED AT:  Hobart
HEARING DATE:  17 March 2016
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentencing orders – Whether sentence manifestly inadequate – Driving with more than prescribed concentration of alcohol in breath or blood, driving while disqualified, and other driving offences – Impact of sentence on family.

McDonald v Nilsson [2009] TASSC 83, 54 MVR 32; Markovic v The Queen [2010] VSCA 105, 30 VR 589, referred to.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  S Nicholson
             Respondent:  A Slicer
Solicitors:
             Applicant:  Director of Public Prosecutions

Judgment Number: [2016] TASSC 14
Number of paragraphs: 23

Serial No 14/2016
File No 1319/2015

SCOTT WILKIE v CHRISTIAN PETER COHEN

REASONS FOR JUDGMENT BLOW CJ

23 March 2016

This is a motion for the review of some sentencing orders made by a magistrate, Mr C P Webster. His orders relate to three separate occasions when the respondent committed driving offences. The applicant, a police officer, contends that the penalties imposed by the learned magistrate were manifestly inadequate.
The orders were made on 30 July last, but the notice to review was not filed and served until 21 August, the day after the expiration of the 21-day limitation period imposed by s 107(3) of the Justices Act 1959. At the hearing of the motion to review, counsel for the applicant realised that the notice had been filed out of time, and applied for an extension of time, which was opposed. I reserved my decisions in relation to both the application for an extension of time and the motion to review. I infer that the notice to review was filed out of time as a result of an oversight by someone in the office of the Director of Public Prosecutions. The delay in filing and serving the application after the 21-day period expired was minimal. The respondent was represented by counsel at the hearing of the motion to review. The delay did not result in him being handicapped in any way in opposing the motion. In the circumstances, I think it is in the interests of justice for time to be extended.
The first group of offences was committed by the respondent on 9 February 2015. He was apprehended driving at 1.32am. He did not hold a driver licence. He had not held one since 2002. He submitted to a breath analysis which returned a reading of 0.073%. There is no suggestion that there was anything wrong with the way he was driving. A police officer served him with an "excessive drink-driving notice" pursuant to s 18B of the Road Safety (Alcohol and Drugs) Act 1970. The effect of that notice was to disqualify him from driving. He…

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 Wilkie v Cohen

Details

AGLC: Wilkie v Cohen [2016] TASSC 14
Case: [2016] TASSC 14
Decision Date: 23 March 2016

CaseChat Overview and Summary

The case of Wilkie v Cohen involves an appeal against sentencing orders made by a magistrate in Tasmania. The appellant, Wilkie, was convicted of multiple driving offences, including driving with a blood alcohol concentration above the prescribed limit, driving while disqualified, and other related charges. The primary issue before the court was whether the sentence imposed was manifestly inadequate. The appellant argued that the sentence did not adequately reflect the impact of his offending on his family, and sought a review of the sentencing orders.

The court considered the arguments presented by both parties, focusing on the principles of sentencing and the specific circumstances of the case. The court examined the nature and seriousness of the offences, the appellant's criminal history, and the impact of his offending on his family. It was noted that the appellant had a prior history of similar offences, which indicated a pattern of behaviour that needed to be addressed. The court also considered the potential for rehabilitation and the need to protect the community.

The court found that the sentence imposed by the magistrate was not manifestly inadequate. It acknowledged the impact of the appellant's offending on his family but determined that the sentence was appropriate in light of the circumstances. The court emphasised the importance of deterrence and rehabilitation, and concluded that the sentence reflected these considerations. The appeal was dismissed, and the original sentencing orders were upheld.

No additional orders were made by the court. The appellant's appeal was dismissed, and the original sentencing orders were confirmed.

Orders