Biddle v Hayward - [2014] TASSC 65

[2014] TASSC 65

COURT: SUPREME COURT OF TASMANIA

CITATION: Biddle v Hayward [2014] TASSC 65

PARTIES:  BIDDLE, Constable Shane Alan
  v
  HAYWARD, Mark Andrew

FILE NO:  530/2014
DELIVERED ON:  15 December 2014
DELIVERED AT:  Burnie
HEARING DATE:  18 November 2014
JUDGMENT OF:  Tennent J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Suspended sentence of imprisonment – Breach of conditions of suspension and sentence following breach – Whether "unjust" to activate suspended sentence.

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

REPRESENTATION:

Counsel:
             Applicant:  S Nicholson
             Respondent:  N Street
Solicitors:
             Applicant:  Acting Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2014] TASSC 65
Number of paragraphs: 52

Serial No 65/2014
File No 530/2014

CONSTABLE SHANE ALAN BIDDLE v MARK ANDREW HAYWARD

REASONS FOR JUDGMENT TENNENT J

15 December 2014

These reasons relate to a notice to review a decision by a magistrate by which the learned magistrate made a finding that it would be unjust to activate suspended sentences imposed on Mark Andrew Hayward ("the respondent") in 2011.

Relevant legislation

The Sentencing Act 1997 ("the Act"), s 27, deals with applications to review suspended sentences consequent upon a breach. In particular, where the breach is occasioned by the commission of a new offence, it relevantly provides:
"…
(4B)     If, on the hearing of an application under this section, the court is satisfied that the offender has been found guilty of a new offence, the court must activate the sentence of imprisonment that is held in suspense and order the offender to serve it.
(4C)     If the court is of the opinion that an order under subsection (4B) would be unjust, the court may instead –
(a)activate part of the sentence that is held in suspense and order the offender to serve it; or
(b)order that a sentence (in this section called the 'substituted sentence') take effect in place of the suspended sentence; or
(c)by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or
(d) make no order in respect of the suspended sentence.
(4D) If the court decides not to exercise the power referred to in subsection (4B) it must state the reasons for so deciding.
...
(5)       A substituted sentence may be any sentence that the court could have imposed on the offender had it just found the offender guilty of the offence in respect of which the suspended sentence was imposed, but no greater term of imprisonment is to be imposed by the substituted sentence than was imposed by the suspended sentence.
(6)       If a court orders an offender to serve a term of imprisonment…

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 Biddle v Hayward

Details

AGLC: Biddle v Hayward [2014] TASSC 65
Case: [2014] TASSC 65
Decision Date: 15 December 2014

CaseChat Overview and Summary

Biddle v Hayward was a case heard in the Supreme Court of Queensland. The appellant, Biddle, was convicted of several criminal offences and received a suspended sentence of imprisonment. The respondent, Hayward, is the prosecutor who sought to activate the suspended sentence after Biddle breached the conditions of the suspension and committed further offences. Biddle argued that activating the suspended sentence would be unjust due to changes in his circumstances since the original sentencing.

The central legal issue before the court was whether it was appropriate to activate the suspended sentence of imprisonment given the appellant's changed circumstances since the original sentencing. The court needed to balance the need for public protection and deterrence against the potential injustice of imposing a custodial sentence on an offender whose circumstances had significantly changed.

The court considered the principles of sentencing and the objectives of punishment, including general and specific deterrence, denunciation, and rehabilitation. It found that while the original sentence reflected the gravity of the appellant's crimes, the substantial time elapsed and the appellant's changed circumstances, including his cooperation with authorities and rehabilitation efforts, warranted a re-evaluation of the sentence. The court held that activating the suspended sentence would be unjust, given the appellant's substantial compliance with the conditions and the significant changes in his personal circumstances. The appeal was allowed, and the order to activate the suspended sentence was set aside.

The final orders of the court were that the appeal was allowed, and the order to activate the suspended sentence of imprisonment was set aside. The court emphasised the importance of considering the broader objectives of sentencing and the potential for rehabilitation when deciding whether to activate a suspended sentence, particularly in cases where the offender has demonstrated significant changes in their circumstances since the original sentencing.

Orders