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Allie v Wilkie

Allie v Wilkie

Case [2019] TASSC 27 28 June 2019

Sentencing

Suspended sentence of imprisonment

Breach of conditions of suspension and sentence

Criminal Law

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[2019] TASSC 27

COURT: SUPREME COURT OF TASMANIA

CITATION: Allie v Wilkie [2019] TASSC 27

PARTIES:  ALLIE, Aaron Joshua
  v
  Senior Constable Scott Wilkie and Ors

FILE NO:  LCA 159/2019
DELIVERED ON:  28 June 2019
DELIVERED AT:  Hobart
HEARING DATE:  18 and 28 June 2019
JUDGMENT OF:  Wood J
CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Suspended sentence of imprisonment for driving offences – Breach of conditions of suspension and sentence following breach – Whether "unjust" to activate suspended sentence – Period of non-offending – Sound prospects of rehabilitation – Youthful offender.

Sentencing Act 1997 (Tas), s 27.
Tanner v Brown [2011] TASSC 59; Cannell v Hughes [2014] TASSC 41; Garcie v Lusted [2014] TASSC 27, referred to.
Aust Dig Criminal Law [3388]

REPRESENTATION:

Counsel:
             Appellant:  K Dolbey
             Respondent:  S Nicholson
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASSC 27
Number of paragraphs: 62

Serial No 27/2019
File No LCA 159/2019

AARON JOSHUA ALLIE v SENIOR CONSTABLE SCOTT WILKIE AND ORS

REASONS FOR JUDGMENT WOOD J

28 June 2019

On 17 January 2019, Aaron Joshua Allie was sentenced in the Magistrates Court for a number of summary offences including an offence of drive while disqualified committed on 2 March 2018. The learned sentencing magistrate, Mr C Webster, also heard an application with respect to a suspended sentence of four months' imprisonment which had been breached by the new offences. The suspended sentence had been imposed on 3 November 2015 for offences including drive while disqualified and drive while not the holder of a driver licence. It was in force for a period of three years with the condition that, during the period of the order, he not commit another offence punishable by imprisonment.
The learned magistrate activated the suspended sentence of four months. In relation to the new offence of drive while disqualified, he imposed a term of three months' imprisonment wholly suspended for a period of two years on condition the applicant be of good behaviour for that period, as well as a cumulative period of disqualification of one year. Referring to the activated sentence he stated: "hopefully that prison term will indicate to you that when a suspended sentence is given we expect it to be obeyed and if you do drive again or commit other offences you're likely to go to prison."
The applicant seeks to review the activation of the suspended sentence. Section 27, subs (4B) and (4C) of the Sentencing Act 1997, obliges the court to activate the sentence unless it would be unjust to do so.
In considering whether it would be unjust to activate the sentence, it is necessary for the sentencing court to examine the circumstances of the individual case. In Cannell v Hughes [2014] TASSC 41 at [14], Pearce J referred to the authorities on point and identified the following factors as important: "the nature and circumstances…

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

AGLC: Allie v Wilkie [2019] TASSC 27
Case: [2019] TASSC 27
Decision Date: 28 June 2019

CaseChat Overview and Summary

The case of Allie v Wilkie involved a defendant, Allie, who had been sentenced to a suspended sentence of imprisonment for driving offences. The sentence was subject to certain conditions, which Allie subsequently breached. Wilkie, representing the Crown, sought to activate the suspended sentence. The dispute arose from the question of whether it would be unjust to activate the suspended sentence given the period of non-offending and the prospects of rehabilitation.

The court was required to determine whether, in light of the defendant's period of non-offending and the sound prospects of rehabilitation, it would be unjust to activate the suspended sentence of imprisonment. The central legal issue was balancing the need for punishment and deterrence against the principles of rehabilitation and the proportionality of the sentence to the offence. The court also had to consider the defendant's age and the impact of activating the sentence on their future.

In addressing the matter, the court considered the principles of sentencing and the specific circumstances of the defendant. The court found that the defendant had demonstrated a period of non-offending and had sound prospects of rehabilitation, which were significant factors in the decision-making process. The court emphasised the importance of proportionality and the potential for a non-custodial order to effectively address the sentencing objectives. Ultimately, the court decided that it would be unjust to activate the suspended sentence of imprisonment, taking into account the defendant's age and the potential benefits of continued rehabilitation.

The court's final orders were to maintain the suspended sentence as it stood, without activating the imprisonment term. The court also emphasised the importance of ensuring that any further breaches of the conditions would be carefully considered in the context of the defendant's rehabilitation and future prospects.

Orders