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Clark v Harvey

Clark v Harvey

Case [2018] TASSC 34 6 July 2018

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[2018] TASSC 34

COURT: SUPREME COURT OF TASMANIA

CITATION: Clark v Harvey [2018] TASSC 34

PARTIES:  CLARK, Jamie Michael
  v
  HARVEY, Aron

FILE NO:  1436/2018
DELIVERED ON:  6 July 2018
DELIVERED AT:  Launceston
HEARING DATE:  26 June 2018
JUDGMENT OF:  Pearce J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Sentence manifestly excessive or inadequate – Three breaches of family violence order – Sentence of imprisonment for one month not manifestly excessive.

Family Violence Act 2004 (Tas), s 35(1).
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  F Brimfield
             Respondent:  S Thompson
Solicitors:
             Applicant:  Ogilvie Jennings
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 34
Number of paragraphs: 24

Serial No 34/2018
File No 1436/2018

JAMIE MICHAEL CLARK v ARON HARVEY

REASONS FOR JUDGMENT PEARCE J

6 July 2018

This is a sentencing appeal. The applicant pleaded guilty to three counts of breaching a family violence order contrary to the Family Violence Act 2004, s 35(1). On 25 May 2018 he was sentenced by a magistrate, Mr S F Mollard, to imprisonment for one month from 30 April 2018. The grounds of appeal contend that the learned magistrate erred:
(a)by imposing a sentence which was manifestly excessive;
(b)by taking into account an irrelevant consideration, namely that the applicant had been charged with and pleaded guilty to stalking; and
(c)alternatively, by placing too much weight on the fact that the applicant had been charged with and pleaded guilty to stalking.

The factual basis of sentence

The sentence under review was imposed on 25 May 2018. In addition to the three counts of breaching a police family violence order, the applicant also pleaded guilty to offences under the Misuse of Drugs Act 2001. He was fined $1,000 for the drug offences. That sentence is not challenged and is not relevant to this motion. As to the offences under the Family Violence Act, the learned magistrate was informed that the applicant and the complainant were in a significant relationship for three years between 2013 and 2016. For reasons which will be later explained, he began living with his parents, across the road from the complainant's home, in September 2017. On 20 April 2018 the applicant was arrested and charged with stalking the complainant, contrary to the Criminal Code, s 192. After his arrest the applicant was issued with a police family violence order which was made to protect the complainant. He was granted police bail. One of the conditions of the police family violence order was that he not contact the complainant "directly or indirectly, including by any electronic or other communication".
The applicant breached the police family violence order four days later on 24 April 2018 and again on 27 April 2018. On 24 April the applicant phoned the complainant's mobile phone at 4.16am. His phone was set so that it would be identified to the receiver of the call only as…

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 Clark v Harvey

Details

AGLC: Clark v Harvey [2018] TASSC 34
Case: [2018] TASSC 34
Decision Date: 6 July 2018

CaseChat Overview and Summary

The Magistrates Court of Tasmania presided over the case of Clark v Harvey, in which the appellant, Harvey, sought a review of a sentence imposed by the original court. The matter revolved around Harvey's sentencing for three breaches of a family violence order, which resulted in a one-month imprisonment term. Harvey argued that the sentence was manifestly excessive, prompting the court to examine this claim.

The central legal issue the court had to decide was whether the one-month imprisonment sentence for the three breaches of the family violence order was manifestly excessive. The court also needed to determine whether the sentence was appropriate given the circumstances and the statutory guidelines for such offences. Harvey contended that the sentence was excessively harsh, while the respondent, Clark, maintained that the sentence was justified.

The court meticulously reviewed the sentencing principles and statutory provisions applicable to the breaches of the family violence order. It considered the nature of the offences, the need for deterrence, and the impact of the breaches on the victim. The court noted that while imprisonment is a serious measure, it is not inherently excessive if it is within the range of reasonable penalties for the offences committed. The court found that the one-month imprisonment sentence was not manifestly excessive, as it was commensurate with the seriousness of the breaches and the need for deterrence and protection of the victim.

The court dismissed the appeal and affirmed the original sentence. No further orders were made.

Orders