Attorney-General (Tas) v Blackler - [2001] TASSC 27

[2001] TASSC 27

CITATION: Her Majesty's Attorney-General v Blackler [2001] TASSC 27

PARTIES: HER MAJESTY'S ATTORNEY-GENERAL

FOR THE STATE OF TASMANIA
v
BLACKLER, Toby Edward Kim

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 9/2001
DELIVERED ON:  15 March 2001
DELIVERED AT:  Hobart
HEARING DATES:  7 March 2001
JUDGMENT OF:  Crawford and Slicer JJ

CATCHWORDS:

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - First offenders - Suspension of sentence - General principles - Youthful offender - Crimes of dishonesty - Whether 12 months' imprisonment all suspended manifestly inadequate.

Griffiths v R (1977) 137 CLR 293; Malvaso v R (1989) 168 CLR 227; Dinsdale v R (2000) 74 ALJR 1538; Lahey v Edwards 46/1967, [1967] Tas SR (NC 13); Jones v Fleming [1957] Tas SR 1; Lahey v Sanderson [1959] Tas SR 17, applied.
Aust Dig Criminal Law [853]

REPRESENTATION:

Counsel:
             Appellant:  T J Ellis
             Respondent:  D J Gunson and K J Monaghan
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Gunson Pickard & Hann

Judgment Number: [2001] TASSC 27
Number of Paragraphs: 19

Serial No 27/2001
File No CCA 9/2001

HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v TOBY EDWARD KIM BLACKLER

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J
SLICER J
15 March 2001

Order of the Court

Appeal dismissed.

Serial No 27/2001
File No CCA 9/2001

HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v TOBY EDWARD KIM BLACKLER

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J
SLICER J
15 March 2001

On 13 February 2001, the respondent was sentenced to 12 months' imprisonment, all of which was suspended on a condition that he be of good behaviour for a period of 2½ years. In addition, a probation order was made, which included the same condition and another requiring him to submit to such medical, psychological or psychiatric testing, assessment or treatment as may be directed by a probation officer. The sentence was imposed with respect to four counts of stealing, seven counts of uttering, one count of burglary and one count of motor vehicle stealing. The Crown appealed against the sentence on one ground, that being that it was manifestly inadequate having regard to all the circumstances of the case.

The offences were committed in two series, the first involving the theft of two cheque books on 15 May 2000 and the subsequent forging and uttering of seven of the cheques between that day and 1 June 2000. The second involved events between 18 and 19 August 2000, when he unlawfully used a motor vehicle, placed on it number plates he stole from another vehicle, and then burgled premises and stole property from it, using the first vehicle to carry the property away.

It is convenient to refer to what was said by the learned sentencing judge concerning the substance of the circumstances of the offences and the offender:

"In the latter period of your schooling, you became a regular…

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: [2001] TASSC 27
Decision Date: 15 March 2001

CaseChat Overview and Summary

In this case, the Attorney-General for the State of Tasmania appealed against the sentence imposed on Toby Edward Kim Blackler by the sentencing judge in the Supreme Court. The respondent had been sentenced to 12 months' imprisonment, all of which was suspended, and a probation order made subject to conditions, for various offences including stealing, uttering, burglary, and motor vehicle stealing. The Crown appealed on the ground that the sentence was manifestly inadequate.

The Court of Criminal Appeal considered the nature and circumstances of the offences, the background of the respondent, and the sentencing principles applicable. The Court held that while the crimes were serious, the respondent was a first offender aged 19 at the time of the offences, with no prior convictions. The sentencing judge had considered factors such as the respondent's age, lack of prior criminal history, potential for rehabilitation, and remorse. The judge had concluded that an immediate custodial sentence was not needed and that the suspended sentence and probation order aimed at the respondent's rehabilitation.

The Court held that when the Crown appeals against a sentence, it must clearly demonstrate an "error in point of principle." The Court was not persuaded that the wholly suspended sentence was manifestly inadequate given the respondent's youth, lack of prior criminal history, and potential for rehabilitation. The Court held that the sentencing judge had properly exercised his discretion and applied relevant sentencing principles.

Accordingly, the Court of Criminal Appeal dismissed the appeal against sentence. The original sentence of 12 months' imprisonment, all suspended, and the probation order, stood.

Orders