[2011] TASSC 23
COURT: SUPREME COURT OF TASMANIA
CITATION: Belbin v Bennett [2011] TASSC 23
PARTIES: BELBIN, Dylan Robert
v
BENNETT, Linda Jean
FILE NO/S: 1077/2010
DELIVERED ON: 19 May 2011
DELIVERED AT: Launceston
HEARING DATE: 18 March 2011
JUDGMENT OF: Crawford CJ
CATCHWORDS:
Magistrates – Jurisdiction and procedure generally – Procedure – Orders and convictions – Sentencing – Relevant factors – Other matters – Use of victim impact statement to make a finding of fact.
Attorney-General for Tasmania v B [2010] TASCCA 6, followed.
R v Singh [2006] QCA 71; R v Slack [2004] NSWCCA 128; R v Berg [2004] NSWCCA 330; R v Wilson [2005] NSWCCA 219; Wilmot v R [2007] NSWCCA 30; referred to.
Aust Dig Magistrates [140]
Magistrates – Jurisdiction and procedure generally – Procedure – Orders and convictions – Sentencing – Procedure on Sentencing – Fact-finding and evidence – Use of victim impact statement to make a finding of fact.
Attorney-General for Tasmania v B [2010] TASCCA 6, followed.
R v Singh [2006] QCA 71; R v Slack [2004] NSWCCA 128; R v Berg [2004] NSWCCA 330; R v Wilson [2005] NSWCCA 219; Wilmot v R [2007] NSWCCA 30; referred to.
Aust Dig Magistrates [144]
REPRESENTATION:
Counsel:
Applicant: P Sullivan
Respondent: P Sherriff
Solicitors:
Applicant: P Sullivan
Respondent: Director of Public Prosecutions
Judgment Number: [2011] TASSC 23
Number of paragraphs: 54
Serial No 23/2011
File No 1077/2010
DYLAN ROBERT BELBIN v LINDA JEAN BENNETT
REASONS FOR JUDGMENT CRAWFORD CJ
19 May 2011
The applicant appeared before a magistrate, Mr Brett, without legal representation. He pleaded guilty to a single charge of common assault, contrary to the Police Offences Act 1935, s35(1). On 2 December 2010, he was convicted and sentenced to five months' imprisonment, all of which was suspended for two years on conditions that he be of good behaviour, not commit any offence involving personal violence, and comply with the conditions of a community service order made at the same time. It required him to perform 140 hours of community service.
In the course of the hearing, the prosecutor tendered victim impact statements from the victim of the assault and his father. In comments on passing sentence, the magistrate drew from the contents of the victim's statement to make a finding that he had suffered psychological damage. Three grounds of the motion attack the use of that material. A fourth ground asserts that the sentence was manifestly excessive.
The hearing
The facts stated to the magistrate by the prosecutor included the following. During June 2010, the complainant, a 17-year old, met two girls, P and C, through a mutual friend. From then until the day of the assault, 29 June 2010, he received several threatening text messages. The prosecutor did not make the nature of the messages clear. It was said that one of the messages "related to" the applicant.
At 10.30pm on 29 June, the complainant was at home with his…
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- Belbin v Bennett [2011] TASSC 23
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- [2011] TASSC 23
- Decision Date
CaseChat Overview and Summary
The court examined the process by which the magistrate arrived at the conclusion that the victim had been crying. It was determined that the magistrate erred by relying on the victim impact statement rather than the direct evidence provided by the victim. The court held that the magistrate should have given more weight to the victim’s testimony that she was not crying during the incident. The reasoning underscored the importance of adhering to the principle that factual findings should be based on the evidence presented and not extraneous materials such as victim impact statements unless they are directly supported by the evidence.
The court concluded that the magistrate’s reliance on the victim impact statement to determine a fact that contradicted the victim's own testimony was inappropriate. As a result, the appeal was allowed, and the matter was remitted to a different magistrate for resentencing. The court stressed that in sentencing, factual findings must be based on the evidence, and where there is a conflict, the evidence of the victim should be given due weight. The final orders included the quashing of the original sentence and the remanding of the case for resentencing by another magistrate.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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