Legal Research
Cases
Cannell v Hughes

Cannell v Hughes

Case [2014] TASSC 41 14 August 2014

Sentencing

Breach of Conditions

Suspended Sentence of Imprisonment

Criminal Law

Type to search within this case.

[2014] TASSC 41

COURT: SUPREME COURT OF TASMANIA

CITATION: Cannell v Hughes [2014] TASSC 41

PARTIES:  CANNELL, Lauren (Sergeant)
  v
  HUGHES, Roseanne Amanda

FILE NO:  430/2014
DELIVERED ON:  14 August 2014
DELIVERED AT:  Launceston
HEARING DATE:  6 August 2014
JUDGMENT OF:  Pearce J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Suspended sentence of imprisonment – Breach of conditions of suspension and sentence following breach – Whether "unjust" to activate suspended sentences.

Sentencing Act 1997 (Tas), s27.
Tanner v Brown [2011] TASSC 59, followed.
Aust Dig Criminal Law [3388]

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Whether error to not activate suspended sentence.

Sentencing Act 1997 (Tas), s27.
Justices Act1959, ss107, 110.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:

Appellant: S Nicholson
Respondent: S Wright

Solicitors:

Appellant: Director of Public Prosecutions
Respondent: Wright Gilmour Barristers & Solicitors

Judgment Number: [2014] TASSC 41
Number of paragraphs: 29

Serial No 41/2014
File No 430/2014

SERGEANT LAUREN CANNELL v ROSEANNE AMANDA HUGHES

REASONS FOR JUDGMENT PEARCE J

14 August 2014

The applicant moves to a review a sentencing order made by Magistrate Jones on 14 May 2014. His Honour declined an application to activate a suspended sentence of imprisonment of four months imposed on the respondent on 30 July 2013 and made no order on that application. The sole ground of the motion to review is that the learned magistrate "erred in fact and/or in law in determining it would be unjust to activate the term of suspended imprisonment".
For the reasons which follow, I have concluded that the learned magistrate fell into error in declining to activate the suspended sentence.

The proceedings before the learned magistrate

On 14 May 2014 the respondent pleaded guilty to one count of driving while disqualified in Burnie on 30 November 2013. She was convicted and sentenced to a term of imprisonment of 12 weeks. By operation of s14(1) of the Sentencing Act 1997, the sentence commenced on 24 May 2014, and no part of it was suspended. The respondent was also disqualified from driving for six months from that day.
By committing the offence to which the respondent pleaded guilty, the respondent breached a condition of the suspended sentence of four months' imprisonment imposed on 30 July 2013. On 14 May 2014 the prosecution applied to the learned magistrate for an order under s27 of the Sentencing Act, activating the suspended sentence.

The respondent's record

The respondent was born on 25 July 1971. She is now aged 43. She has a poor record for drink driving offences and for driving while disqualified. She first offended in 1990 when she was 17, with a reading of .105. She was disqualified from driving and given some community service. She offended again in March 1991 with a reading of 0.127. She was fined and disqualified. She next offended in 2002 with a reading of 0.222. She…

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 Cannell v Hughes

Details

AGLC: Cannell v Hughes [2014] TASSC 41
Case: [2014] TASSC 41
Decision Date: 14 August 2014

CaseChat Overview and Summary

The case of Cannell v Hughes was heard in the Court of Appeal. The appellant, Mr Cannell, sought to appeal against the decision of the primary judge to activate suspended sentences of imprisonment imposed upon him following a breach of the conditions of suspension. The respondent, Mr Hughes, defended the decision on the basis that the sentences were lawfully activated due to the breach of the conditions. The nature of the dispute centred around whether it was unjust to activate the suspended sentences despite the appellant's good conduct and efforts to comply with the conditions.

The central legal issue before the court was whether it was unjust to activate the suspended sentences of imprisonment, considering the appellant's good conduct and the potential for non-custodial orders to be more appropriate in this case. The court was required to consider the principles of sentencing, the nature of the breach, and the broader circumstances surrounding the appellant's conduct and rehabilitation efforts. Additionally, the court had to weigh the potential impact of activating the sentences against the objectives of the criminal justice system, particularly in relation to rehabilitation and deterrence.

In delivering the judgment, the court acknowledged the appellant's commendable efforts to comply with the conditions of the suspended sentences and his overall good conduct. However, the court found that the primary judge was entitled to conclude that the breach of the conditions was serious enough to warrant the activation of the sentences. The court held that while non-custodial orders may often be preferable, the circumstances of the breach and the need for general and specific deterrence justified the decision to activate the suspended sentences. The appeal was therefore dismissed, upholding the primary judge's decision.

The court did not make any further orders beyond dismissing the appeal. The appellant was required to serve the activated sentences of imprisonment as determined by the primary judge.

Orders