Bell v Tasmania - [2021] TASCCA 3

[2021] TASCCA 3

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Bell v Tasmania [2021] TASCCA 3
PARTIES:	BELL, Mark Anthony
v
STATE OF TASMANIA
FILE NO:	CCA 2114/2020
DELIVERED ON:	19 March 2021
DELIVERED AT:	Hobart
HEARING DATE:	3 March 2021
JUDGMENT OF:	Martin AJ, Marshall AJ, Porter AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Trafficking in crystalline methylamphetamine – Found in possession of 28.8 grams – Proof of three sales in previous 10 days – Prior conviction for trafficking in methylamphetamine – Evidence that appellant not an addict selling purely to fund addiction – Sentence

of 2 years' imprisonment with non-parole period of 16 months not manifestly excessive.

Aust Dig Criminal Law [3521]

Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Other types of order – Drug treatment order – Court required to order an assessment report if considering making a drug treatment order – Sentencing judge declined to order an assessment report – Inappropriate to order an assessment report if not considering making the order – Seriousness of the offending and other considerations may make it obvious an order is inappropriate – No error on the part of the sentencing judge.

Sentencing Act 1997 (Tas), s 27B, 27C, 27D.
Tasmania v Joseph [2017] TASSC 23, considered.

Aust Dig Criminal Law [3409]

REPRESENTATION:

Counsel:

Appellant: K Baumeler, J Bourke
Respondent: M Allen, M Figg

Solicitors:

Appellant: Jessica Bourke
Respondent: Director of Public Prosecutions

Judgment Number:	[2021] TASCCA 3
Number of paragraphs:	49

Serial No 3/2021

File No CCA 2114/2020

MARK ANTHONY BELL v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL MARTIN AJ MARSHALL AJ PORTER AJ 19 March 2021
Order of the Court
Appeal dismissed.

Serial No 3/2021

File No CCA 2114/2020

MARK ANTHONY BELL v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL MARTIN AJ 19 March 2021
Introduction

1             The appellant was found guilty by a jury of trafficking in a controlled substance, namely, methylamphetamine (Ice). Blow CJ sentenced the appellant to imprisonment for two years and ordered that the appellant not be eligible for parole until he has served 16 months.
2            In addition, the appellant pleaded guilty to two summary charges, namely, using Ice on the day before he was arrested and possessing ecstasy and diazepam on the day of his arrest.
3             The appellant appealed against the sentence on the sole ground that the sentence was manifestly excessive. At the conclusion of oral submissions the appeal was dismissed. I now set out my reasons for agreeing with that order.

Facts
4	On 29 October 2018 the appellant was seen by police officers repairing his motorcycle in a car park of a Bunnings Store at Mornington. The officers decided to check the registration of the motorcycle and found it was not current.
5	A search of the appellant…

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 Tasmania

Details

AGLC: Bell v Tasmania [2021] TASCCA 3
Case: [2021] TASCCA 3
Decision Date: 19 March 2021

CaseChat Overview and Summary

Bell appealed against a sentence imposed by the Supreme Court of Tasmania for trafficking in crystalline methylamphetamine. The appellant was found in possession of 28.8 grams of the drug and evidence was presented of three sales of methylamphetamine within the ten days preceding his arrest. The appellant had a prior conviction for trafficking in methylamphetamine, and the sentencing judge had found that the appellant was not selling purely to fund an addiction.

The appeal raised the question of whether the sentence imposed was manifestly excessive or inadequate, thereby providing grounds for interference by the appellate court. This required the court to consider the principles governing sentencing for drug trafficking offences, particularly in light of the quantity of drugs involved, the evidence of ongoing trafficking activity, and the appellant's previous conviction for a similar offence.

The Court of Criminal Appeal of Tasmania upheld the sentence. It reasoned that the sentencing judge had correctly taken into account all relevant factors, including the seriousness of the offence, the appellant's criminal history, and the evidence that the trafficking was not solely for the purpose of funding addiction. The court found no error in the sentencing judge's assessment of the appropriate penalty, concluding that the sentence was neither manifestly excessive nor inadequate.

Orders