Carr v Ockerby & Parr - [2002] TASSC 46

[2002] TASSC 46

CITATION: Carr v Ockerby & Parr [2002] TASSC 46

PARTIES:  CARR, Dennis Robert
  v
  OCKERBY, Steven
  PARR, Christopher Paul

TITLE OF COURT: SUPREME COURT OF TASMANIA

JURISDICTION: APPELLATE

FILE NO/S:  LCA 78/2001
  LCA 79/2001
  LCA 80/2001

DELIVERED ON:  10 July 2002
DELIVERED AT:  Hobart
HEARING DATE/S:  4 July 2002
JUDGMENT OF:  Underwood J

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Totality principle.
Mill v R (1988) 166 CLR 59, applied.
R v Grabovac (1997) 92 A Crim R 258, followed.

Aust Dig Criminal Law [838]

REPRESENTATION:

Counsel:
           Applicant:  C J Gibson
           Respondent:  F C Neasey
Solicitors:
           Applicant:  Director of Legal Aid
           Respondent:  Director of Public Prosecutions

Judgment ID Number: [2002] TASSC 46
Number of paragraphs: 14

Serial No 46/2002
File No LCA 78/2002
LCA 79/2002
LCA 80/2002

DENNIS ROBERT CARR v ACTING SERGEANT STEVEN OCKERBY and ACTING SERGEANT CHRISTOPHER PAUL PARR

REASONS FOR JUDGMENT UNDERWOOD J
10 July 2002

The applicant seeks a review of orders of sentence made on three complaints. The complaints, the charges and the orders appear in the table below.

Complaint No Charge Sentence

32409/01 Burglary (1), stealing (1) 6 months' imprisonment on each charge, concurrent to commence on 11 August 2001

32409/01 Stealing (1) 1 month imprisonment concurrent with the sentence imposed on complaint No 51244/01

32409/01 Use unregistered motor vehicle on a public street (3)
Fined $100 upon each charge

32409/01 Dishonestly displaying a plate calculated to deceive (3) Fined $250 on each charge

51244/01 Motor vehicle stealing 6 months' imprisonment cumulative upon the sentences imposed for burglary (1) and stealing (1)

32406/01

Drive while disqualified from holding or obtaining a driver's licence (3)

2 months' imprisonment on each charge, each sentence to be served cumulatively to each other, and cumulatively to the other sentences of imprisonment.

The single ground for the application to review those sentences is that they are manifestly excessive. Ms Gibson, who appeared for the applicant, conceded that the circumstances of the offence and the circumstances of the applicant were such that individually the sentences were within the proper exercise of the learned magistrate's sentencing discretion. However, her submission in support of the motion was that insufficient heed was paid to the "totality principle" resulting in an overall manifestly excessive sentence.

All the criminal conduct occurred within the space of a few hours on the morning of 14 July 2001. On three separate occasions that morning, the applicant was seen driving a small Nissan flat-tray truck. This vehicle had been stolen about a fortnight before the applicant committed these offences. At the time the applicant was driving the vehicle, he was not the holder of a driver's licence as he had earlier been disqualified from holding or obtaining a driver's licence. Although there is no suggestion that the applicant was involved in the theft of the truck, he took it and used it as his own on the morning of 14…

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 Carr v Ockerby & Parr

Details

AGLC: Carr v Ockerby and Parr [2002] TASSC 46
Case: [2002] TASSC 46
Decision Date: 10 July 2002

CaseChat Overview and Summary

In this case, the applicant, Dennis Robert Carr, sought a review of the sentences imposed by a magistrate on three separate complaints. The complaints involved various offences including burglary, stealing, using an unregistered motor vehicle, dishonestly displaying a plate, and driving while disqualified. The sentences imposed were a combination of fines and imprisonment terms, with some sentences being concurrent and others cumulative. The applicant argued that the overall sentence was manifestly excessive due to insufficient regard for the "totality principle". This principle requires a sentencer to review the aggregate sentence to ensure it is just and appropriate, and generally prefers concurrent over cumulative sentences to avoid imposing an inappropriately harsh penalty.

The court had to determine whether the sentences imposed were within the proper exercise of the magistrate's discretion and if the totality principle was adequately considered. The court considered that while the individual sentences were not excessive, the aggregate sentence of 18 months imprisonment, along with fines and licence disqualification, might be at the upper range of what was appropriate. However, the court held that the applicant had not demonstrated that the magistrate made an error in exercising their sentencing discretion. The court was reluctant to substitute its view of an appropriate sentence for that of the magistrate unless a clear error was evident. Consequently, the motion to review the sentences was dismissed.

The court's reasoning was grounded in the principle that the Supreme Court's jurisdiction in reviewing sentences is to correct errors, not to substitute its own sentencing decisions. While the court might have made a different choice in sentencing, it found no basis to conclude that the magistrate's decision was flawed in a way that warranted a review. The court's decision respected the magistrate's discretion and adhered to the established legal principles regarding sentence review.

Orders