Bonde v Ellery - [2016] TASSC 43

[2016] TASSC 43

COURT: SUPREME COURT OF TASMANIA

CITATION: Bonde v Ellery [2016] TASSC 43

PARTIES:  BONDE, Michael (Acting Sergeant)
  v
  ELLERY, Jason Craig

FILE NO:  1403/2016
DELIVERED ON:  17 August 2016
DELIVERED AT:  Hobart
HEARING DATE:  12 August 2016
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Discretion to record conviction – Generally.

Sentencing Act 1997 (Tas), ss 7(f), 9, 58.
Blake v Adams [2013] TASSC 44, applied.
Aust Dig Criminal Law [3410]

Criminal Law – Sentence – Relevant factors – Nature and circumstances of offender – Mental disorder.
Hurd v The Queen [1988] Tas R 126, considered.
Aust Dig Criminal Law [3264]

REPRESENTATION:

Counsel:
             Applicant:  S Thompson
             Respondent:  E Tolputt
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Grant Tucker

Judgment Number: [2016] TASSC 43
Number of paragraphs: 37

Serial No 43/2016
File No 1403/2016

ACTING SERGEANT MICHAEL BONDE v JASON CRAIG ELLERY

REASONS FOR JUDGMENT BRETT J

17 August 2016

On 5 May 2016, the respondent pleaded guilty to one count of common assault, contrary to s 35(1) of the Police Offences Act 1935. The sentence imposed by Magistrate Sharon Cure was an order, pursuant to the provisions of s 7(f) of the Sentencing Act 1997 that, without recording a conviction, the proceedings be adjourned for 60 months and the respondent be released upon his undertaking that:
(a)he would be of good behaviour and not commit any offence of family violence in that period, and appear for conviction and sentence if called upon;
(b)he would continue to engage and receive treatment as directed by Dr Lev Fridgant, or any other practitioner and comply with any medication.
The condition in relation to treatment was poorly worded, but the intention is clear enough. The respondent promised to continue treatment he had already commenced with Dr Fridgant, who is a consultant psychiatrist, and further, that he would take any medication prescribed by Dr Fridgant or another practitioner.
The applicant has sought a review of the sentence. The sole ground is that the magistrate erred in law in imposing a sentence that was manifestly inadequate in the circumstances of the case.

Circumstances of the offence

The complaint to which the respondent pleaded guilty alleged that on 15 January 2016 he had unlawfully assaulted his wife by grabbing her arm, forcing her onto a bed, and threatening her by punching at her face. The facts stated were that the assault occurred during an argument which had arisen after his wife had noticed money missing from their bank account, and had sent him a text message demanding that he leave the house. This occurred shortly before the respondent had arrived home from work. When he arrived home, he went to the bedroom where his wife was, and yelled at her. He grabbed her around the left upper arm with one of his hands, forced her onto a bed and stood over her. While holding her there by…

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 Bonde v Ellery

Details

AGLC: Bonde v Ellery [2016] TASSC 43
Case: [2016] TASSC 43
Decision Date: 17 August 2016

CaseChat Overview and Summary

The case of Bonde v Ellery involved the defendant, Ellery, who was found guilty of a crime and was facing sentencing. The primary issue before the court was whether the sentencing judge had the discretion to record a conviction while imposing a non-custodial order, such as a good behaviour bond or community service order. The court had to determine the legal framework guiding the discretion of the sentencing judge in such circumstances, particularly in relation to the objectives of sentencing and the impact on the defendant's criminal record.

The court examined the statutory provisions and relevant case law to ascertain the extent of the sentencing judge's discretion. It considered whether the recording of a conviction was mandatory or whether the judge had the authority to decide based on the circumstances of the case. The court also looked at the objectives of sentencing, including deterrence, rehabilitation, and the protection of the community, to understand how they influenced the decision on whether to record a conviction.

The court concluded that the sentencing judge does indeed have the discretion to decide whether to record a conviction when imposing a non-custodial order. The decision hinges on a balanced assessment of the circumstances, including the nature and seriousness of the offence, the defendant's criminal history, and the potential impact of recording a conviction on the defendant's future. The objectives of sentencing and the principles of justice guide this discretion. In this instance, the court found that the sentencing judge had not erred in not recording a conviction.

As a result, the appeal was dismissed, and the original sentencing order stood. The court affirmed that the sentencing judge's decision to not record a conviction was within their discretion, considering the facts and objectives of sentencing. This decision underscores the importance of a nuanced approach to sentencing, balancing the need for justice with the potential long-term effects on the defendant.

Orders