Dadson v O'Brien - [1998] TASSC 75

75/1998

PARTIES:  DADSON, Michael Keith
  v
  O'BRIEN, Eric Robert

DADSON, Michael Keith
v
O'BRIEN, Eric Robert
DADSON, Michael Keith
v
TAYLOR, Warren

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 40/1997

LCA 41/1997
LCA 42/1997

DELIVERED:  29 June 1998
HEARING DATE/S:  20 May 1998
JUDGMENT OF:  Wright J
CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Factual basis for sentence - Circumstances of offender - Taxation offences - Statutory requirement that court state reasons why no other sentence is appropriate - Whether a substantial miscarriage of justice.

Crimes Act 1914 (Cth), s17A.
Justices Act 1959 (Tas).
Petreski v Cargill (1987) 31 A Crim R 277; Diner v Edwards A27/1995; Clayton v Mulcahy 19/1990, followed.
Freeman v Pulford (1988) 92 FLR 199, discussed.
R v Whitnall (1993) 42 FLR 512; Veen v R (No 2) (1987 - 1988) 164 CLR 465; Taylor v Lanning 55/1997; Bessell v Deverell 3/1998; Brown v Stone B14/1995, considered.

Aust Dig Criminal Law [830]

Appeal and New Trial - In general and rights of appeal - When appeal lies - Error of law - Taxation offences - Substantial fines and sentences of imprisonment - Whether sentences imposed were manifestly excessive - Whether the magistrate erred in law by failing to comply with the Crimes Act 1914 (Cth), s17A - Whether insufficient or no consideration of other available sentences.

Aust Dig Appeal and New Trial [6]

REPRESENTATION:

Counsel:
             Applicant:  W T McMillan
             Respondent:  I M Arendt
Solicitors:
             Applicant:  W T McMillan & Co
             Respondent:  Australian Government Solicitor

Judgment category classification:
Court Computer Code:
Judgment ID Number:  75/1998
Number of pages:  10

Serial No 75/1998
File Nos LCA 40/1997
LCA 41/1997
LCA 42/1997

MICHAEL KEITH DADSON v ERIC ROBERT O'BRIEN
MICHAEL KEITH DADSON v ERIC ROBERT O'BRIEN
MICHAEL KEITH DADSON v WARREN TAYLOR

REASONS FOR JUDGMENT WRIGHT J

29 June 1998

The applicant appeared for sentence in the Launceston Court of Petty Sessions on 19 December 1997 in respect of numerous taxation offences. Substantial fines were imposed and, in addition, upon three complaints, he received sentences of imprisonment totalling six months. He now seeks to review each of those sentences of imprisonment on the grounds that:
"1the sentence imposed was manifestly excessive; and
1Athe learned magistrate erred in law by failing to comply with the Crimes Act, s17A."

I will deal with ground 1A first.

The Crimes Act 1914 (Cth), s17A, provides as follows:

"17A — (1) A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
(2) Where a court passes a sentence of imprisonment on a person for a federal offence, or…

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 Dadson v O'Brien

Details

AGLC: Dadson v O'Brien [1998] TASSC 75
Case: [1998] TASSC 75
Decision Date: 29 June 1998

CaseChat Overview and Summary

In the case of Dadson v O'Brien, the applicant, Michael Keith Dadson, sought to review the sentences of imprisonment imposed on him by the Launceston Court of Petty Sessions for multiple taxation offences. The applicant contended that the sentences imposed were manifestly excessive and that the magistrate had erred in law by not complying with the requirements of the Crimes Act 1914 (Cth), s17A. Justice Wright of the Supreme Court of Tasmania considered both grounds of appeal. Firstly, concerning s17A, Wright J found that the magistrate had considered all relevant matters and had provided sufficient reasons for the decision to impose imprisonment, thus complying with the statutory requirements. The Justice then considered whether the sentences were manifestly excessive, noting that the sentences were at the lower end of the statutory maximum penalties and were appropriate given the nature of the offences and the applicant's persistent non-compliance with tax laws. Consequently, the court dismissed both grounds of appeal and upheld the sentences of imprisonment imposed by the magistrate.

Orders