Williams v McLaughlin - [2000] TASSC 29

[2000] TASSC 29

CITATION: Williams v McLaughlin [2000] TASSC 29

PARTIES:  WILLIAMS, Roger Eric
  v
  McLAUGHLIN, Colin David

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 2/2000
DELIVERED ON:  10 April 2000
DELIVERED AT:  Burnie
HEARING DATES:  28 March, 6 April 2000
JUDGMENT OF:  Evans J
CATCHWORDS:

Magistrates - Appeal from and control of magistrates - Tasmania - Motion to review - The hearing - Review of sentence - Sentences of imprisonment and licence disqualification - Whether sentences manifestly excessive - Offender with previous convictions - Whether a four year period of disqualification discourages reform.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss4, 14(1C) and 17.

Harriss v Walker (1996) 89 A Crim R 257; R v O'Brien 43/1987; Jarvis v Brown and McDonald 20/1998; Davies v Wylie [1992] 1 Tas R 73; Briant v Bessell (1994) 74 A Crim R 204; R v Causby [1984] Tas R 54; Shepherd v Visser and Turner [1999] TASSC 81; Peck v Visser and Turner [1999] TASSC 38, followed.
Aust Dig Magistrates [272].

REPRESENTATION:

Counsel:
             Applicant:  W J Friend
             Respondent:  M P Shirley
Solicitors:
             Applicant:  Friend & Jones
             Respondent:  Director of Public Prosecutions

Judgment Number: [2000] TASSC 29
Number of Paragraphs: 17

Serial No 29/2000
File No LCA 2/2000

ROGER ERIC WILLIAMS
v
COLIN DAVID McLAUGHLIN

REASONS FOR JUDGMENT EVANS J
10 April 2000

The applicant seeks a review of penalties of three months' imprisonment and disqualification from holding or obtaining a driver's licence for four years imposed upon his plea of guilty to the following charges:

"CHARGE: Drive under the influence of intoxicating liquor.
BREACH OF: Section 4 Road Safety (Alcohol and Drugs) Act, 1970.
PARTICULARS: You are charged with driving a motor vehicle on the 26th August, 1999 on Amy Street and Undara Crescent, public streets at Ulverstone in Tasmania, while you were under the influence of intoxicating liquor to the extent you were incapable of having proper control of the vehicle.
CHARGE: Hinder Conveyance.
BREACH OF: Section 14(1C) of Road Safety (Alcohol and Drugs) Act, 1970.
PARTICULARS: You are charged with on the 26th August, 1999 at Ulverstone in Tasmania, being a person having been taken into custody by a Police Officer under the provisions of Subsection (2) of Section 10 of the Road Safety (Alcohol and Drugs) Act, 1970 you did hinder your conveyance to a place to enable a direction to be given under Subsection 4 of Section 10 of the Road Safety (Alcohol and Drugs) Act, 1970."

The review is sought on the ground that the penalties are manifestly excessive. The prosecutor stated the facts to the learned magistrate in the following terms:

"… It was around 8.30 pm on Thursday the 26^th August [1999], police were alerted by radio to keep a lookout for a blue Holden ute with the possibility of a person driving under the influence of alcohol in the Amy Street area of West Ulverstone. Police were advised that the radio room had received…

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 Williams v McLaughlin

Details

AGLC: Williams v McLaughlin [2000] TASSC 29
Case: [2000] TASSC 29
Decision Date: 10 April 2000

CaseChat Overview and Summary

Williams, the applicant, sought a review of penalties imposed by the Court of Petty Sessions, which included three months' imprisonment and a four-year disqualification from holding or obtaining a driver's licence, following his guilty plea to charges of driving under the influence of alcohol and hindering police. The applicant argued that these penalties were manifestly excessive, considering his personal circumstances, such as being the sole parent of an 11-year-old daughter with ADD, and his history of rehabilitation following a prior imprisonment for dishonesty offences. The court was required to determine whether the penalties imposed were manifestly excessive and whether the disqualification period was appropriately set with the aim of encouraging reform.

The court found that the applicant's prior convictions demonstrated a pattern of offending, particularly in relation to drink driving, which indicated a need for severe penalties to act as both a general and personal deterrent. The seriousness of the applicant's recent offence, involving dangerous driving while heavily intoxicated, supported the imposition of an immediate custodial sentence. However, the court concluded that the four-year disqualification period was unnecessarily harsh and manifestly excessive. Given the applicant's prior history and the court's aim to encourage reform, a 24-month disqualification period was deemed sufficient. Therefore, the court quashed the four-year disqualification order and substituted it with a 24-month disqualification period.

The court confirmed the three-month imprisonment sentence but quashed the four-year disqualification order, substituting it with a 24-month disqualification period from the date of the applicant's release from prison. The orders of the Court of Petty Sessions were otherwise confirmed.

Orders