D v Lusted - [2013] TASSC 31

[2013] TASSC 31

COURT: SUPREME COURT OF TASMANIA

CITATION: D v Lusted [2013] TASSC 31

PARTIES:  D, K L
  v
  LUSTED, Gary (Sergeant)

FILE NO/S:  299/2013
DELIVERED ON:  12 June 2013
DELIVERED AT:  Hobart
HEARING DATE:  7 June 2013
JUDGMENT OF:  Wood J

EDITED REASONS DELIVERED ORALLY

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Eighteen year old sentenced for multiple incidents of motor vehicle stealing and other offending – Whether a sentence of imprisonment of 15 months manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Applicant:  In Person
             Respondent:  S A Nicholson
Solicitors:
             Applicant:  In Person
             Respondent:  Director of Public Prosecutions

Judgment Number: [2013] TASSC 31
Number of paragraphs: 19

Serial No 31/2013
File No 299/2013

K L D v SERGEANT GARY LUSTED

REASONS FOR JUDGMENT WOOD J

(EDITED REASONS DELIVERED ORALLY) 12 June 2013

The applicant seeks a review of a sentence imposed upon him by Magistrate R Pearce (as he then was) of 15 months' imprisonment. The sentence was imposed for a spree of offending, involving mainly offences of motor vehicle stealing and related offences of dishonesty. The ground of review is that the sentence is manifestly excessive.

The offending

In a period of just under a week, between 28 October 2012 and 2 November 2012, the applicant committed the following: seven offences of motor vehicle stealing, four of attempted motor vehicle stealing, one offence of driving whilst disqualified, four of burglary of motor vehicles and nine of stealing involving property from the motor vehicles mentioned, two offences of contravene conditions of a bail notice, and one offence of wilfully obstruct a police officer, make off without payment, common assault, injure property, use abusive language to a police officer and resist a police officer. The learned magistrate summarised the applicant's offending in the following terms:

"Over the period between 28 October 2012 and 2 November 2012 he, in company with another young male, stole 7 cars. They attempted to steal 4 others. Property was stolen from inside the cars they stole or attempted to steal. They committed burglaries of 4 other cars. When later interviewed he admitted to the police that he had driven a stolen car while he was disqualified from driving. The cars were recovered, some with relatively minor damage, except for one that was destroyed by fire. I am not to sentence him for that offence. The other property stolen had a total value of about $2,000 but would have been worth more than that to the owners. It has not been recovered. During the same period he made off without paying a taxi fare on [sic] $26.30. He was arrested on 2 November 2012 and admitted to bail by the police but then breached the curfew and residential condition on his bail between 7 and 13 November and did not sign in as required on 12 November.
On 13 November 2012 he was at his father's house…

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 D v Lusted

Details

AGLC: D v Lusted [2013] TASSC 31
Case: [2013] TASSC 31
Decision Date: 12 June 2013

CaseChat Overview and Summary

In the case of D v Lusted, the appellant challenged the sentence imposed by the County Court of Victoria for various offences including stealing and unauthorised use of a motor vehicle. The court was tasked with considering whether the sentence of 15 months imprisonment was manifestly excessive. The appellant, who was 18 years old at the time of sentencing, had a history of offending and had committed multiple incidents of motor vehicle stealing and other related offences. The County Court had sentenced the appellant to 15 months imprisonment, with 6 months to be served as an intensive correction order.

The legal issues before the court included the appropriate standard for determining whether an appeal against sentence should succeed, and whether the sentence imposed was manifestly excessive or inadequate. The court was required to assess the seriousness of the offending, the appellant's age and background, and the principles of proportionality and deterrence in sentencing. Additionally, the court needed to consider whether there were any errors in the assessment of the seriousness of the offending or in the application of sentencing principles that would warrant interference with the sentence.

The court held that the appeal against sentence should not succeed, finding that the sentence imposed was not manifestly excessive. The court recognised the gravity of the appellant's offending and the need for a sentence that would deter the appellant and others from engaging in similar conduct. In assessing the sentence, the court considered the appellant's age, background, and the totality of the offending, concluding that the sentence was proportionate to the offending and did not manifest any error in principle. The court also noted the appellant's prospects of rehabilitation and the potential for the sentence to contribute to those prospects. Ultimately, the court found that the sentence did not warrant interference on the ground of being manifestly excessive.

Orders