Bell v Freeman - [2020] TASSC 51

[2020] TASSC 51

COURT: SUPREME COURT OF TASMANIA

CITATION: Bell v Freeman [2020] TASSC 51

PARTIES:  BELL, Chauncey Aaron
  v
  FREEMAN, Jessica
  TYE, Andrew
  WILKIE, Scott

FILE NO:  2177/2020
DELIVERED ON:  26 October 2020
DELIVERED AT:  Hobart
HEARING DATE:  26 October 2020
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Orders and convictions – Sentence – Custodial orders – Other cases – Parole eligibility order and community correction order to operate from end of sentence of imprisonment.

Sentencing Act 1997 (Tas), s 17(2A).
Aust Dig Magistrates [1220]

REPRESENTATION:

Counsel:
             Applicant:  K Baumeler
             Respondent:  S Nicholson
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2020] TASSC 51
Number of paragraphs: 24

Serial No 51/2020
File No 2177/2020

CHAUNCEY AARON BELL v JESSICA FREEMAN,
ANDREW TYE, SCOTT WILKIE

REASONS FOR JUDGMENT BLOW CJ

(Edited version of reasons given orally) 26 October 2020

This is a motion for the review of a series of sentencing orders made by the Chief Magistrate, Ms C Geason, in August 2020. She sentenced the applicant to imprisonment for 12 months in respect of five offences, made provision for parole after eight months, and made a community correction order, to operate for a period of 12 months after his release from prison and the expiry of any period of parole. The applicant has moved for the review of those orders, asserting that the penalties imposed were manifestly excessive.
Before the hearing, I got my associate to draw the attention of counsel to s 17(2A) of the Sentencing Act 1997. That subsection prohibits a sentencer from making both a parole eligibility order and a community correction order to operate from the end of a sentence of imprisonment. The subsection reads as follows:
"(2A) A court that imposes a sentence of imprisonment on an offender may not make an order under subsection (2)(b) in respect of the offender if the court —
(a)makes in respect of the offender a community correction order; and
(b)orders that the operational period, within the meaning of section 42AM , of the community correction order is to commence at the end of the sentence of imprisonment."
At the hearing of this motion, counsel for the respondent agreed to me proceeding as if there had been a second ground of review, asserting that the learned Chief Magistrate erred in law by imposing orders that were inconsistent with s 17(2A).
The first issue that I need to address is whether the sentence of 12 months' imprisonment, with a non-parole period of eight months, was manifestly excessive for the five offences that that sentence related to. There were some other matters that the learned magistrate dealt with on the same day in respect of which she simply recorded convictions.
The five offences were committed over a period of about six months, commencing on 12 October 2019 and ending on 9 April 2020. To place those offences in context, I think it is appropriate that I include information as to some of…

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 Bell v Freeman

Details

AGLC: Bell v Freeman [2020] TASSC 51
Case: [2020] TASSC 51
Decision Date: 26 October 2020

CaseChat Overview and Summary

The matter of Bell v Freeman came before the Magistrates Court. The defendant, Bell, appealed against a sentence imposed by a lower court, which included a custodial sentence and a parole eligibility order, as well as a community correction order to commence at the conclusion of the custodial sentence. The central issue before the court was whether the community correction order could commence only after the parole eligibility order had expired.

The court examined the legal framework governing the imposition of custodial sentences and the associated orders. It was necessary to determine whether the community correction order could commence before the end of the parole eligibility order, as this would create a scenario where the defendant would not be subject to any form of supervision or control during the transition period. The court considered the intent of the legislation and the potential consequences of the interpretation of the orders.

The court ruled that the community correction order could commence at the conclusion of the custodial sentence, regardless of the end of the parole eligibility order. The rationale was that the community correction order was intended to provide supervision and support to the defendant after their release from prison, and it should not be delayed by the expiration of the parole eligibility order. The court found that the legislative intent was to ensure that the defendant would be subject to appropriate oversight and support upon their release, and that this should not be hindered by the expiration of another order.

Consequently, the court set aside the original sentence and imposed a new sentence, which included the same custodial term and parole eligibility order, but with the community correction order to commence at the conclusion of the custodial sentence. The defendant's appeal was thus partially upheld.

Orders