Burns v Robinson - [2022] TASSC 43

[2022] TASSC 43

COURT: SUPREME COURT OF TASMANIA

CITATION: Burns v Robinson [2022] TASSC 43

PARTIES:  BURNS, Jason Robert
  v
  ROBINSON, Angela

FILE NO: 930/2022

DELIVERED ON:  24 June 2022
DELIVERED AT:  Hobart
HEARING DATE:  20 June 2022
JUDGMENT OF:  Brett J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – When remedy available – Sentencing procedure – Factual basis for sentence – Fact asserted by accused in mitigation – Rejected by magistrate without defendant having opportunity to establish by evidence – Miscarriage of sentencing discretion – Ground upheld but review dismissed because no substantial miscarriage of justice.

Nash v Haas [1972] Tas SR 1, Parker v Tasmania [2019] TASCCA 16, applied.
Aust Dig Magistrates [1345]

REPRESENTATION:

Counsel:

Applicant:  L Flanagan
             Respondent:  L King-Roberts
Solicitors:
             Applicant:  Tasmania Legal Aid
             Respondent:  Director of Public Prosecutions

Judgment Number: [2022] TASSC 43
Number of paragraphs: 19

Serial No 43/2022
File No 930/2022

JASON ROBERT BURNS v SERGEANT ANGELA ROBINSON

REASONS FOR JUDGMENT BRETT J

24 June 2022

The applicant moves this Court to review a sentence imposed on him by Magistrate Brown on 30 March 2022, for a number of summary offences under the Firearms Act 1996. The offences are one count of possessing a shortened firearm contrary to s 116(b) of the Act, one count of possessing a firearm when not being the holder of a licence of the appropriate category, one count of possessing a stolen firearm contrary s 107A of the Act and one count of possessing a firearm to which a firearms licence may not be issued. The learned magistrate imposed a global sentence of eight months' imprisonment, with no provision for parole. The magistrate imposed a separate fine in respect of the remaining charge on the complaint, that of possession of ammunition without holding the appropriate licence, but that penalty is not challenged in this motion. This is not an imprisonable offence.
The objective facts presented by the prosecution were not disputed by the applicant. The offence was committed on 15 February 2022. The applicant had been found by police in a hotel room in possession of the relevant firearms and ammunition. The subject of the first three offences was a 12 gauge shot gun, which had been previously stolen, and which was shortened to approximately 40 cm in length. It was not alleged that the applicant had either stolen or shortened the firearm, but it was his possession of this item which constituted his liability for the offences. It is a defence to the charge of possessing a stolen firearm to provide a satisfactory account for the possession or control of the firearm. The plea of guilty precluded such an account, and in any event, the applicant's counsel in her plea in mitigation acknowledged that the applicant had purchased the firearm and ammunition shortly before their location by police and that the applicant appreciated that "it wasn't a legitimate sale given it was paid…

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 Burns v Robinson

Details

AGLC: Burns v Robinson [2022] TASSC 43
Case: [2022] TASSC 43
Decision Date: 24 June 2022

CaseChat Overview and Summary

In the case of Burns v Robinson, the matter was heard in the Supreme Court of Tasmania. The defendant, Burns, appealed a decision made by a magistrate in a lower court regarding his sentencing. The crux of the dispute revolved around the magistrate's handling of a fact that Burns had asserted in mitigation, which the magistrate subsequently rejected without allowing Burns the chance to substantiate it with evidence. This appeal sought a review of the magistrate’s decision on the basis that it constituted a miscarriage of sentencing discretion.

The primary legal issue before the court was whether the magistrate’s rejection of the asserted fact without affording the defendant an opportunity to provide evidence constituted a miscarriage of the sentencing discretion. The court had to consider if the remedy of review was available under the circumstances and whether the error was substantial enough to warrant a miscarriage of justice. The court also examined the principles governing the factual basis required for sentencing and the procedural fairness expected in such proceedings.

The court determined that while the magistrate's approach was indeed flawed, it did not result in a substantial miscarriage of justice. The court held that the ground of appeal was valid in that the magistrate had erred in not providing Burns with an opportunity to establish the factual basis of his mitigation claim. However, the error did not lead to such a significant injustice that it warranted a review. Consequently, the appeal was dismissed because although the magistrate's procedure was incorrect, it did not result in a substantial miscarriage of justice. The court's decision reaffirmed the importance of procedural fairness in sentencing but found that, in this instance, it did not necessitate overturning the sentence.

Orders