Adams v White - [2006] TASSC 50

[2006] TASSC 50

CITATION: Adams v White [2006] TASSC 50

PARTIES: ADAMS, Peter Gerard
v

WHITE, Sergeant Graham Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 3/2006
DELIVERED ON:  22 June 2006
DELIVERED AT:  Launceston
HEARING DATE:  14 June 2006
JUDGMENT OF:  Crawford J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Recognizances, probation and other non-custodial orders – Probation orders and suspension of sentence – Practice – Breach of standard condition of probation order not to commit an offence punishable by imprisonment – Also a breach of condition of suspended sentence not to commit an offence of violence – Both breached by an assault – Whether appropriate to both activate suspended sentence and punish for breach of probation order.
Pearce v R (1998) 194 CLR 610, considered.
Aust Dig Criminal Law [889]
Magistrates – Jurisdiction and procedure generally – Procedure – Orders and convictions – Sentencing – Relevant factors – Other matters – Maximum penalty dependent on aggravating factor – Complaint did not refer to the aggravating factor – Whether factor may be taken into account – Trespass to land – Dwelling house.
Police Offences Act 1935 (Tas), s14B.
Kingswell v R (1985) 159 CLR 264, distinguished.
Aust Dig Magistrates [140]

REPRESENTATION:

Counsel:
             Applicant:  J E Higgins
             Respondent:  J P Ransom
Solicitors:
             Applicant:  Bishops
             Respondent:  Director of Public Prosecutions

Judgment Number: [2006] TASSC 50
Number of paragraphs: 24

Serial No 50/2006
File No LCA 3/2006

PETER GERARD ADAMS v SERGEANT GRAHAM ROSS WHITE

REASONS FOR JUDGMENT CRAWFORD J
22 June 2006

The applicant seeks a review of two sentences imposed by a magistrate, Mr P H Wilson, on 1 March 2006, on a single ground that they were manifestly excessive. The sentences were imposed on separate complaints that were heard at the same time.

Complaint 40827/05 charged a trespass committed on 2 November 2005 against the Police Offences Act 1935, s14B(1). The sentence was three months' imprisonment. Complaint 64835/05 charged a failure to comply with a condition of a probation order on 5 November 2005 against the Sentencing Act 1997, s42(1)(a). The sentence was one month's imprisonment cumulative upon the other sentence. He pleaded guilty to both charges.

The facts of the trespass charge were as follows. On 2 November 2005 at about 10.15pm, Ian Kidd and his partner, Ms Whiting, were in the living room of their home at Trent Street, Beaconsfield, when they heard the applicant swearing and cursing outside. He started to bang on their front door. He was yelling something they could not understand. Mr Kidd went out the back door and round to the front. He asked the applicant several times to leave, but he would not do so. He was intoxicated. He continued to yell, unintelligibly in the main. Mr Kidd said that he would call the police and returned inside his unit through the back door. The applicant followed him inside. In the dining room he started to abuse Mr Kidd.…

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 Adams v White

Details

AGLC: Adams v White [2006] TASSC 50
Case: [2006] TASSC 50
Decision Date: 22 June 2006

CaseChat Overview and Summary

The matter of Adams v White came before the court, where the appellant sought review of a decision by a lower court. The appellant had been found guilty of assault and was subject to a probation order as well as a suspended sentence. The lower court had decided to activate the suspended sentence following the appellant's breach of both the probation order and the suspended sentence by committing another offence of violence. The appellant argued that the lower court should not have activated the suspended sentence and should have instead focused solely on the breach of the probation order.

The central legal issue before the court was whether it was appropriate to activate the suspended sentence and to punish the appellant for the breach of the probation order, given that both breaches were related to the same incident of violence. The court was required to determine whether the lower court had correctly exercised its discretion in activating the suspended sentence and whether the sentence was proportionate to the offence.

The court held that the lower court had correctly exercised its discretion in activating the suspended sentence. The court found that the lower court had appropriately considered the appellant's breach of both the probation order and the suspended sentence, as well as the seriousness of the offence committed. The court also found that the sentence imposed was proportionate to the offence and took into account the appellant's previous good conduct. The court concluded that the lower court had not erred in its decision to activate the suspended sentence and to punish the appellant for the breach of the probation order.

The court dismissed the appeal and affirmed the decision of the lower court. The appellant was ordered to serve the activated suspended sentence and to comply with the terms of the probation order. The court also ordered the appellant to pay a fine and to attend a rehabilitation program.

Orders