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Bluett v Lusted

Bluett v Lusted

Case [2017] TASSC 15 16 March 2017

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[2017] TASSC 15

COURT: SUPREME COURT OF TASMANIA

CITATION: Bluett v Lusted [2017] TASSC 15

PARTIES:  BLUETT, Mark William
  v
  LUSTED, Gary
  BONDE, Michael

FILE NO:  99/2017
DELIVERED ON:  16 March 2017
DELIVERED AT:  Launceston
HEARING DATE:  14 March 2017
JUDGMENT OF:  Pearce J

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Common assault – Imprisonment for 90 days with 78 days suspended not manifestly excessive.

Police Offences Act1935 (Tas), s 35.
Aust Dig Criminal Law [3521]

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentence and penalty - Common assault – Imprisonment for 90 days with 78 days suspended not manifestly excessive.

Police Offences Act1935 (Tas), s 35.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  C Flockhart
             Respondents:  S Thompson
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondents:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 15
Number of paragraphs: 34

Serial No 15/2017
File No 99/2017

MARK WILLIAM BLUETT v GARY LUSTED
and MICHAEL BONDE

REASONS FOR JUDGMENT PEARCE J

16 March 2017

This is a motion to review two sentencing orders made by a magistrate, Mr R Marron, on 12 January 2017. The applicant pleaded guilty to three charges, each of which was the subject of a separate complaint:
·     common assault;
·     operating or controlling a vehicle in a public place in an unnecessary execution of sustained loss of traction; and
·     breaching bail by failing to appear.
For the common assault, the magistrate sentenced the applicant to imprisonment for 90 days from 12 January 2017. His Honour ordered that 78 days of that term be suspended for 12 months. For the driving offence, the applicant was disqualified from driving for three months, fined $800 and ordered to pay the special penalty of $600. For the charge of breaching bail the applicant was fined $200.
The notice to review does not challenge the fine imposed for breach of bail. There are two grounds of appeal. One ground contends that the "sentence" is manifestly excessive. Although the ground refers to a single sentence, the applicant's contentions are directed to both the sentence imposed for the common assault, as well as the sentence for the driving offence. The second ground is directed to the sentence imposed for common assault and contends that the magistrate erred by failing to pay sufficient regard to the parity principle.
The motion was heard on 14 March 2017. At the conclusion of the hearing, I dismissed the motion. I did, however, vary the magistrate's order in one respect. Because, after the sentence was imposed by the magistrate, the applicant was admitted to bail pending determination of this review without spending any time in custody, I ordered that the term of imprisonment his Honour imposed commence on 14 March 2017. These are my reasons for making those orders.

The offences

At about…

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 Bluett v Lusted

Details

AGLC: Bluett v Lusted [2017] TASSC 15
Case: [2017] TASSC 15
Decision Date: 16 March 2017

CaseChat Overview and Summary

Bluett v Lusted is an Australian court case that concerns an appeal against a sentence imposed by the lower court. The appellant, Bluett, was convicted of common assault and sentenced to 90 days imprisonment, with 78 days suspended. Bluett sought to appeal the sentence, arguing that it was manifestly excessive. The matter was heard and determined by the court of appeal. The primary legal issue before the court was whether the sentence was manifestly excessive or inadequate, warranting interference. The court considered the principles governing appeals against sentences and the relevant legal authorities. The court found that the sentence was not manifestly excessive and dismissed the appeal.

The court of appeal examined the principles of sentencing and the appropriate circumstances under which an appellate court should interfere with a sentence imposed by a lower court. The court considered the appellant's arguments and the evidence presented in the case. It was noted that the appellant had pleaded guilty to common assault and that the sentence imposed was within the statutory maximum for the offence. The court also considered the appellant's criminal history, the nature and circumstances of the offence, and the principles of deterrence, rehabilitation, and proportionality in sentencing. The court concluded that the sentence imposed was not manifestly excessive and did not warrant interference by the appellate court. The appeal was therefore dismissed.

In reaching its decision, the court emphasised the importance of respecting the primary decision-maker's assessment of the appropriate sentence in a given case. The court noted that the primary decision-maker had considered the relevant principles and circumstances in imposing the sentence and had exercised its discretion in accordance with the law. The court also highlighted the importance of proportionality in sentencing and the need to balance the interests of society, the victim, and the offender. In the present case, the court found that the sentence imposed was proportionate to the offence and did not amount to an error of law or a manifestly excessive sentence. The appeal was accordingly dismissed, and the original sentence stood.

Orders