C v The Queen - [2002] TASSC 55

[2002] TASSC 55

CITATION: C v R [2002] TASSC 55

PARTIES: C

v
R

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  375/2001
DELIVERED ON:  15 August 2002
DELIVERED AT:  Burnie
HEARING DATE:  15 August 2002
JUDGMENT OF:  Evans J

[Edited edition of Reasons for Judgment delivered orally]

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Juvenile offenders - Sentencing as child or adult and imprisonment - Discretion to sentence as adult - Whether the Supreme Court's powers are confined by the Youth Justice Act 1997.

Criminal Code 1924 (Tas), s389.
Youth Justices Act 1997 (Tas), Pt 4, s109.
Sentencing Act 1997 (Tas), ss5, 94, 97.
Aust Dig Criminal Law [857]

REPRESENTATION:

Counsel:
           Applicant:  C J Gibson
           Respondent:  J P Ransom
Solicitors:
           Applicant:  AT Legals
           Respondent:  Director of Public Prosecutions

Judgment Number: [2002] TASSC 55
Number of paragraphs: 6

Serial No 55/2002
File No 375/2001

C v THE QUEEN

REASONS FOR JUDGMENT EVANS J

(DELIVERED ORALLY) 15 August 2002

On 28 May 2002, I sentenced the applicant to fifteen months' imprisonment to commence at the expiration of any sentence he was currently serving. He applies pursuant to the Sentencing Act 1997, s94, for the variation of that sentence. That section empowers the Court to vary or rescind a sentence that is contrary to law.

When I sentenced the applicant, he was a youth for the purposes of the Youth Justice Act 1997. When sentencing him, I recorded that I was dealing with him under the provisions of the Sentencing Act, not the powers vested in the Supreme Court by the Youth Justice Act, s107.

On behalf of the applicant, it is in substance contended that the course adopted by me was contrary to law and that in sentencing the applicant, the Court failed to recognise the provisions of the Youth Justice Act, in particular ss46, 85 and 109. Matters which can be derived from those sections which are relied upon by the applicant are: that in relation to a youth a statute specifying a penalty of imprisonment is to be taken as specifying a penalty of detention; that the earliest release date for a youth serving a period of in excess of six months' detention is 50 per cent of that period; and that an order that a youth serve a cumulative period of detention may commence from the youth's earliest release date.

The contention that the sentence imposed on the applicant is contrary to law can only succeed if, when sentencing a youth, this Court is bound by the provisions of the Youth Justice Act, Pt 4.

The applicant was sentenced upon his conviction on a charge of causing grievous bodily harm in breach of the Criminal Code, s172. The Code, s389, provides that subject to the provisions of the Sentencing Act or any other statute, and except where otherwise expressly provided, the punishment for any crime shall be imprisonment for 21 years, or…

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 C v The Queen

Details

AGLC: C v The Queen [2002] TASSC 55
Case: [2002] TASSC 55
Decision Date: 15 August 2002

CaseChat Overview and Summary

The Supreme Court of Tasmania heard an appeal by C against a sentence imposed by the Court. C had been convicted of causing grievous bodily harm and sentenced to fifteen months' imprisonment. He appealed the sentence under section 94 of the Sentencing Act 1997, arguing that the sentence was unlawful because it did not adhere to the Youth Justice Act 1997, particularly sections 46, 85, and 109. The appeal focused on whether the Supreme Court is bound by the Youth Justice Act when sentencing a youth and if the sentence imposed on C was contrary to law.

The court had to determine if, when sentencing a youth, the Supreme Court is restricted by the Youth Justice Act, Pt 4, and if the sentence imposed on C was unlawful. The appeal hinged on whether the Supreme Court's sentencing powers under the Sentencing Act were circumscribed by the Youth Justice Act. Section 107 of the Youth Justice Act allows the Supreme Court to exercise the powers of the Magistrates Court (Youth Justice Division) under the Youth Justice Act, but this provision is intended to supplement, not restrict, the Supreme Court's powers.

The court held that the Supreme Court is not bound by the Youth Justice Act, Pt 4, when sentencing a youth under the Sentencing Act. Section 107 of the Youth Justice Act merely supplements the Supreme Court's powers, not confines them. Since C was sentenced under the Sentencing Act, the court found no grounds for the appeal. The contention that the sentence was unlawful was dismissed, as the court found no evidence that the sentence imposed on C was contrary to law. Consequently, the application for sentence variation was rejected.

The Supreme Court of Tasmania dismissed C's application for sentence variation, affirming that the Supreme Court's powers are not restricted by the Youth Justice Act, Pt 4, when sentencing a youth under the Sentencing Act. The sentence imposed on C was deemed lawful, and no grounds for sentence variation were established.

Orders