Cannell v Probert - [2017] TASSC 69

[2017] TASSC 69

COURT: SUPREME COURT OF TASMANIA

CITATION: Cannell v Probert [2017] TASSC 69

PARTIES:  CANNELL, Lauren
  v
  PROBERT, Jade

FILE NO:  2322/2017
DELIVERED ON:  24 November 2017
DELIVERED AT:  Hobart
HEARING DATE:  17 October 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Discretion to record conviction – Generally – Emphasis on rehabilitative approach – Magistrate's decision to not record conviction justified – Motion dismissed.

Sentencing Act 1997 (Tas), ss 7(f), 9, 58.
Family Violence Act2004 (Tas), s 13(b).
Blake v Adams [2013] TASSC 44, 22 Tas R 295; Bonde v Ellery [2016] TASSC 43, cited.
Aust Dig Criminal Law [3410].

REPRESENTATION:

Counsel:
             Applicant:  K Groot
             Respondent:  D Gray
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Darrell Gray

Judgment Number: [2017] TASSC 69
Number of paragraphs: 29

Serial No 69/2017
File No 2322/2017

LAUREN CANNELL v JADE PROBERT

REASONS FOR JUDGMENT BRETT J

24 November 2017

The applicant seeks review of a sentence imposed on the respondent by Magistrate Cure on 28 August 2016, upon the respondent's plea of guilty to two counts of common assault. The assaults were characterised as family violence offences. The learned magistrate sentenced the respondent by making an order pursuant to s 7(f) of the Sentencing Act 1997 that, without recording a conviction, the proceedings be adjourned for two years and the respondent be released on his undertaking that he would observe the following conditions:
1    That he would appear before the court if directed by the court to do so during the period of adjournment.
2    That he would be of good behaviour during the period of two years.
3    That he would not commit any offence of family violence during the period of adjournment and complete the MENS Program with Relationships Australia, and at the completion of that program forward a copy of the certificate of completion to the Court Registry for placement on the court file to demonstrate compliance with this condition.
The sole ground of the motion to review is that the learned magistrate erred in fact and/or in law in imposing a sentence which was manifestly inadequate in all the circumstances of the case.
The complaint alleged two counts of assault against the respondent's partner. The magistrate was told that the respondent and his partner had been in a relationship for approximately eight years and had three children aged between 6 years and 1 year. The partner's 10 year old son from a previous relationship also lived with them.
The first act of assault occurred on 20 November 2016. It occurred during the course of an argument. The respondent had stood over his partner while arguing with her. The partner pushed him away and subsequently swung a frying pan towards him in order to "gain some personal space". Eventually, the partner threw the contents of a coffee cup at him and then placed the cup on the kitchen sink,…

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 Probert

Details

AGLC: Cannell v Probert [2017] TASSC 69
Case: [2017] TASSC 69
Decision Date: 24 November 2017

CaseChat Overview and Summary

In the matter of Cannell v Probert, the respondent sought to have a conviction for an offence recorded against the applicant. The matter was before the Supreme Court of Victoria, where the primary focus was on the appropriateness of recording a conviction and the suitability of imposing non-custodial orders. The court was tasked with determining whether the magistrate's decision to not record a conviction was justified, given the emphasis on a rehabilitative approach in sentencing.

The legal issue at the heart of this case revolved around the magistrate's discretion in sentencing and the principles guiding the imposition of non-custodial orders. The respondent argued that the magistrate should have recorded the conviction, while the applicant contended that the decision not to record a conviction was consistent with a rehabilitative approach. The court had to assess whether the magistrate exercised their discretion appropriately, considering the objectives of sentencing and the specific circumstances of the case.

The court found that the magistrate had correctly exercised their discretion in not recording a conviction. The decision was based on a comprehensive consideration of the applicant's background, the nature of the offence, and the potential benefits of a rehabilitative approach. The magistrate's decision aligned with the principles of sentencing, which prioritise rehabilitation over punitive measures. Consequently, the court upheld the magistrate's decision and dismissed the respondent's motion. The court's ruling emphasised the importance of a balanced and rehabilitative approach in sentencing, particularly in cases where non-custodial orders are appropriate.

Orders