Legal Research
Cases
Blake v Adams

Blake v Adams

Case [2013] TASSC 44 16 August 2013

Type to search within this case.

[2013] TASSC 44

COURT: SUPREME COURT OF TASMANIA

CITATION: Blake v Adams [2013] TASSC 44

PARTIES:  BLAKE, Brendan Anthony
  v
  ADAMS, Daniel

FILE NO:  LCA 34/2013
DELIVERED ON:  16 August 2013
HEARING DATES:  8 April, 13 August 2013
JUDGMENT OF:  Porter J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Discretion to record conviction – Relevant considerations – Statutory requirement to have regard to nature and circumstances of offence, offender's character, and impact on offender's economic or social wellbeing or employment prospects – Firearms offence – Factor of public interest in recording convictions – Motion to review sentence – Magistrate's focus on public interest factor to exclusion of other matters – Failure to have regard to particular circumstances of offending and offender's personal circumstances.

Sentencing Act 1997 (Tas), s9.
Aust Dig Criminal Law [3411]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Other matters – Whether conviction ought to have been recorded – Firearms offence – Magistrate's focus on public interest factor to exclusion of other matters – Failure to have regard to particular circumstances of offending and personal circumstances of offender – Resentence – Nature and effect of order of release on undertaking to be of good behaviour.

Sentencing Act 1997 (Tas), ss7(f), 9.
R v Mauger [2012] NSWCCA 51, applied.
Aust Dig Criminal Law [3525]

REPRESENTATION:

Counsel:
             Applicant:  G Stevens
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Henry Wherrett & Benjamin
             Respondent:  Director of Public Prosecutions

Judgment Number: [2013] TASSC 44
Number of paragraphs: 84

Serial No 44/2013
File No 34/2013

BRENDAN ANTHONY BLAKE v DANIEL ADAMS

REASONS FOR JUDGMENT PORTER J

16 August 2013

Introduction

This is a motion to review sentencing orders made by Magistrate Mollard on 3 January 2013. The applicant entered a plea of guilty to a charge of possessing, on 10 June 2012, an implement designed to suppress the sound caused by the discharge of a firearm, contrary to the Firearms Act 1996, s118(1). The relevant implement is commonly referred to as a silencer. The penalty for the offence was a fine not exceeding 50 penalty units, or imprisonment for a term not exceeding two years, or both.

The magistrate convicted the applicant and fined him an amount of $400. The notice to review contains five grounds which allege specific errors of law. The grounds allege failures by the magistrate to take certain matters into account, and errors of principle in the approach he took. At the hearing of the motion, counsel for the applicant, Mr Stevens, directed his arguments primarily to the recording of a conviction. Neither the imposition, nor the quantum, of the fine is in issue.

Mr Stevens noted that the provisions of s7 of the Sentencing Act 1997 do not enable the imposition of a fine without proceeding to conviction. The relevant provision is s7(e) which enables a court to "record a conviction and order the offender to pay a fine". The Firearms Act does not authorise a fine without recording…

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 Blake v Adams

Details

AGLC: Blake v Adams [2013] TASSC 44
Case: [2013] TASSC 44
Decision Date: 16 August 2013

CaseChat Overview and Summary

In the case of Blake v Adams, the appellant sought judicial review of a decision by a magistrate to impose a sentence on the respondent for a firearms offence. The respondent was found guilty of possessing a firearm without a licence, and the magistrate sentenced him to imprisonment. The appellant challenged the sentence on the grounds that the magistrate had failed to properly consider the relevant factors under the sentencing legislation. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the magistrate had exercised his sentencing discretion in accordance with the statutory requirements. Specifically, the court had to determine if the magistrate had appropriately considered the nature and circumstances of the offence, the offender's character, and the impact on the offender's economic or social wellbeing or employment prospects. Additionally, the court examined whether the magistrate had properly balanced the public interest in recording convictions with the other relevant considerations.

The court held that the magistrate had erred in his approach to sentencing. The magistrate had focused primarily on the public interest factor, to the exclusion of the other statutory considerations. The court found that the magistrate had not given adequate regard to the particular circumstances of the offending and the offender's personal circumstances. Consequently, the court quashed the sentence and remitted the matter back to the magistrate for resentencing.

The final orders of the court were that the sentence imposed by the magistrate be quashed and the matter be remitted to the same or another magistrate for resentencing. The court emphasised the importance of the magistrate considering all relevant statutory factors in exercising his sentencing discretion.

Orders