Wordsworth v Lowe; Wordsworth v Kenney - [1988] TASSC 52

Serial No 46/1988
List “A”

COURT: SUPREME COURT OF TASMANIA

CITATION: Wordsworth v Lowe; Wordsworth v Kenney [1988] TASSC 52; A46/1988

PARTIES:  WORDSWORTH
  v
  LOWE

WORDSWORTH
v
KENNEY

FILE NO/S: LCA 100/88

LCA 101/88

DELIVERED ON: 17 October 1988
JUDGMENT OF: Underwood J

Judgment Number: A46/1988
Number of paragraphs: 14

Serial No 46/1988

List "A"

File Nos LCA 10088

LCA 10188

WORDSWORTH v LOWE

WORDSWORTH v KENNEY

REASONS FOR JUDGMENT UNDERWOOD J

17 October 1988

The applicant was charged and, on the 23 August 1988, convicted and sentenced as follows:–

Complaint No 595588: On the 22 March 1988, destroyed property – two glass panels – sentenced to one month's imprisonment wholly suspended upon condition that, within 24 hours of his release from prison, the applicant apply to the John Edis Hospital for admission either as an in–patient or an out–patient and submit to such treatment as may be directed by medical officers for three months. There is no application to review this sentence.
Complaint No 876488: On the 28 May 1988, drove a motor vehicle under the influence of liquor and drove a motor vehicle whilst disqualified from holding or obtaining a driver's licence. Sentenced to three months' imprisonment on each matter of complaint, the first sentence to commence on the 12 August 1988 and the second to be served at the expiration of the first.
Disqualified from holding or obtaining a driver's licence for two years from the expiration of a period of disqualification imposed by the Supreme Court on the 22 December 1986.
Complaint No 876588: On 28 May 1988, drove a motor vehicle with a blood alcohol content in excess of .05% to wit .17%. Conviction recorded. (The same facts ground this offence and the offence of driving under the influence). There is no application to review this penalty.
Complaint 1110388: On the 29 July 1988, drove a motor vehicle without the consent of the owner. Sentenced to three months' imprisonment to be served at the expiration of the other periods of imprisonment.
Complaint No 1110288: On the 29 July 1988, drove a motor vehicle whilst disqualified from holding or obtaining a driver's licence and gave police a name calculated to mislead police officers. Sentenced to three months' imprisonment to be served at the expiration of the other periods of imprisonment and conviction recorded respectively. There is no application to review the conviction recorded.
Complaint No 1192388: On the 8 August 1988 drunk, and disorderly. Conviction recorded. (No application to review).
There are two motions to review. Together, they seek a review of each sentence of imprisonment and the total effective sentence of twelve months imprisonment on the ground that individually or cumulatively the penalty was manifestly excessive.

The sentences were imposed for offences committed on two separate occasions. At 1.30am on the 28 May 1988 the applicant, then disqualified from holding or obtaining a driver's licence, drove his brother's car to a hotel in George Town. There he consumed a large…

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.

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Details

Case: [1988] TASSC 52
Decision Date: 17 October 1988

CaseChat Overview and Summary

The Supreme Court of Tasmania heard two motions to review sentences imposed on the applicant, Wordsworth, following convictions for various driving offences and other related charges. Wordsworth was convicted of multiple driving offences, including driving under the influence, driving without a license, and driving a stolen vehicle, among others. The sentences imposed were a subject of contention, with Wordsworth arguing that the cumulative effect of the sentences was manifestly excessive. The legal issues before the court were whether the individual sentences and the total sentence imposed were excessive, particularly considering Wordsworth’s youth and the principle of totality in sentencing.

The court examined the nature of the offences, the applicant’s background, and the sentences imposed. Wordsworth had a history of driving-related offences and other convictions but had minimal prior custodial experience. The court considered the totality principle, which requires that the aggregate sentence be reviewed to ensure it is just and appropriate. The magistrate had imposed separate sentences for each offence, which is permissible, but the court had to assess whether the cumulative effect of these sentences was disproportionate.

In delivering the judgment, Justice Underwood noted that while each individual sentence was within the magistrate's discretion, the cumulative sentence of 12 months imprisonment was excessive, particularly given Wordsworth’s age and the potential for rehabilitation. The court found that insufficient weight was given to the prospects of rehabilitating a youthful offender, which is a critical consideration in such cases. Consequently, the court allowed the applications and quashed the original sentences, substituting them with modified sentences that better balanced the need for punishment and rehabilitation.

The court’s final orders included reducing the sentences to ensure they were not manifestly excessive, with specific terms for concurrent and suspended sentences, and maintaining certain disqualifications from holding a driver’s license. The new sentences aimed to address the offences committed while considering the principles of sentencing and the applicant’s potential for rehabilitation.

Orders