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Deakin v Tasmania

Deakin v Tasmania

Case [2016] TASCCA 19 8 November 2016

Appeal

Sentencing

Statutory Construction

Criminal Law

Statutory Interpretation

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[2016] TASCCA 19

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Deakin v Tasmania [2016] TASCCA 19

PARTIES:  DEAKIN, Kevin Anthony
  v
  STATE OF TASMANIA

FILE NO:  891/2016
DELIVERED ON:  8 November 2016
DELIVERED AT:  Hobart
HEARING DATE:  6 October 2016
JUDGMENT OF:  Tennent, Wood and Pearce JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Trafficking in a controlled substance – Regularly importing methylamphetamine for eight months - Sentence of 18 months' imprisonment, six months suspended – No provision for parole – No error demonstrated.

Sentencing Act 1997 (Tas), s 17.
Corrections Regulations 2008 (Tas), reg 22(3).
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  J Wade
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2016] TASCCA 19
Number of paragraphs: 52

Serial No 19/2016
File No 891/2016

KEVIN DEAKIN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
WOOD J
PEARCE J
8 November 2016

Order of the Court

Appeal dismissed.

Serial No 19/2016
File No 891/2016

KEVIN DEAKIN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
8 November 2016

I have had the benefit of reading in draft form the reasons of Wood J. I agree with those reasons and would also dismiss the appeal.

File No 891/2016

KEVIN ANTHONY DEAKIN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
8 November 2016

This is an appeal brought by Kevin Anthony Deakin against a sentence he received for trafficking in a controlled substance, methylamphetamine, between 1 October 2014 and 25 June 2015. He pleaded guilty before Porter J, and on 24 March 2016 was sentenced by his Honour to 18 months' imprisonment, with the execution of six months suspended on condition that he was not to commit an offence punishable by imprisonment for a period of two years following his release. In addition, a probation order was imposed for 12 months. The appellant appeals the sentence on the sole ground that the sentence was manifestly excessive.

The facts of offending

On 26 June 2015 police officers became aware of the appellant's offending when they received a report of a suspicious parcel from Australia Post. The parcel was addressed to the appellant. It was seized, and inside police found a vacuum sealed bag containing 83.1 grams of crystal methylamphetamine (Ice). The drug was replaced with an inert substance and delivered to the appellant's address. Within a few minutes police attended and searched the appellant's home and found the parcel, unopened. The search also yielded other drug associated items including snap lock bags, one of which contained .2 grams of methylamphetamine, a used smoking device and two sets of electronic scales.
The appellant was interviewed by police and admitted he was a regular user of Ice and that he had purchased the Ice located in the snap lock…

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 Deakin v Tasmania

Details

AGLC: Deakin v Tasmania [2016] TASCCA 19
Case: [2016] TASCCA 19
Decision Date: 8 November 2016

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the respondent, who had been convicted of trafficking in methylamphetamine. The respondent had been importing the drug regularly over an eight-month period. The sentencing judge imposed a term of 18 months' imprisonment, with six months suspended, and made no provision for parole. The appeal was heard by Tennent, Wood and Pearce JJ of the Supreme Court of Tasmania.

The primary legal issue before the Full Court was whether the sentence imposed by the sentencing judge was manifestly excessive or inadequate, thereby justifying interference on appeal. The appellant argued that the sentence did not adequately reflect the seriousness of the offending conduct.

The Full Court considered the sentencing judge's reasons and found no error in the application of sentencing principles. The court noted that the sentencing judge had taken into account relevant factors, including the duration and regularity of the trafficking, the nature of the drug, and the respondent's personal circumstances. The court concluded that the sentence was not demonstrably outside the range of a sound and just exercise of the sentencing discretion.

Accordingly, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Deakin v Tasmania [2016] TASCCA 19

Most Recent Citation

Stanley v Koehler [2020] TASSC 44

Cases citing this decision · 10 of 10 shown

Kay v Tasmania
[2024] TASCCA 13

…CCA 5, 28 Tas R 325; Stebbins v Tasmania [2016] TASCCA 6, 25 Tas R 421, Director of Public Prosecutions v Swan (above), Deakin v Tasmania [2016] TASCCA 19 and Le v Tasmania [2017] TASCCA 21. The principles restated by Porter AJ in Upston have direct application to this case. At [15]-[16], his Honour said: "There is…
Gordon v Tasmania
[2020] TASCCA 17 Para 9

…ility period may make a sentence manifestly excessive: Pickrell v Tasmania [2011] TASCCA 13; Groenewege v Tasmania [2013] TASCCA 7; Deakin v Tasmania [2016] TASCCA 19.…
Stanley v Koehler
[2020] TASSC 44 Para 2

…a sentence which is otherwise within the proper bounds of discretion, manifestly excessive: Groenewege v Tasmania [2013] TASCCA 7; Deakin v Tasmania [2016] TASCCA 19.…
Director of Public Prosecutions v Kobelke
[2020] TASCCA 10 Para 5

…t or plainly unreasonable by reason of inadequacy. See merely by way of example the very recent decision of this Court in Deakin v State of Tasmania [2016] TASCCA 19, where a sentence of 18 months' imprisonment was upheld in the case of the appellant's 'persistent and brazen' course of conduct in importing 212.5 gr…
Davidson v State of Tasmania
[2019] TASCCA 9 Para 4

…mania [2017] TASCCA 21; Farhat v Tasmania [2017] TASCCA 20; Cooper v Tasmania [2017] TASCCA 3; Roland v Tasmania [ 2016] TASCCA 20; Deakin v Tasmania [2016] TASCCA 19).…
Dunning v Tasmania
[2018] TASCCA 21 Para 6

…mania [2017] TASCCA 21; Farhat v Tasmania [2017] TASCCA 20; Cooper v Tasmania [2017] TASCCA 3; Roland v Tasmania [ 2016] TASCCA 20; Deakin v Tasmania [2016] TASCCA 19; DPP v Swan [2016] TASCCA 9; Stebbins v Tasmania [2016] TASCCA 6 and Billinghurst v Tasmania [2018] TASCCA 16).…
Quirk v State of Tasmania
[2018] TASCCA 8 Para 3

…as he then was) in Garnsey v Stamford [2002] TASSC 43. I would, with respect, prefer to commence with the observations of Wood J in Deakin v Tasmania [2016] TASCCA 19 at [39]-[40]. There, her Honour said: "39 A gambling addiction may, like any other mental condition, reduce the offender's moral culpability and the…
Upston v Tasmania
[2018] TASCCA 4 Para 1

…bins v Tasmania [2016] TASCCA 6 per Pearce J at [102]; Director of Public Prosecutions v Swan [2016] TASCCA 9 per Pearce J at [21]; Deakin v Tasmania [2016] TASCCA 19 per Wood J at [34]. As this Court has recognised, these considerations may become more acute where the controlled substance involved is methylampheta…
Director of Public Prosecutions v Allen
[2017] TASCCA 24 Para 3

…judge, nor any other evidence, that a gambling habit had contributed to the crimes or impaired the appellant's mental functioning: Deakin v Tasmania [2016] TASCCA 19 per Wood J at [39]-[40]. To the contrary, the evidence suggested that the money, or at least most of it, was not spent on gambling. Nor was there mat…
Roland v Tasmania
[2016] TASCCA 20 Para 4

…st or plainly unreasonable by reason of inadequacy. See merely by way of example the very recent decision of this Court in Deakin v State of Tasmania [2016] TASCCA 19, where a sentence of 18 months' imprisonment was upheld in the case of the appellant's "persistent and brazen" course of conduct in importing 212.5 g…

View all 10 citing cases →

Cases cited in this decision · 21 of 21 shown

Stebbins v Tasmania
[2016] TASCCA 6 Para 1

…encing appeals on the ground of manifest excess or manifest inadequacy. Those principles were recently re-stated by Estcourt J in Stebbins v Tasmania [2016] TASCCA 6 at [34]-[37]. In my view, the sentence is not manifestly excessive even if the appellant is not entitled to remissions. Nevertheless, I agree with he…
Taylor v The Queen
[2015] TASCCA 7 Para 2

…of remissions against the head sentence in determining an appropriate non-parole period: Hoare at 356, 358; see the discussion in Taylor v The Queen [2015] TASCCA 7, per Pearce J at [17]-[24].…
Director of Public Prosecutions (Acting) v Pearce
[2015] TASCCA 1 Para 1

…manifestly excessive, it is necessary to show the sentencing decision miscarried. In a passage from Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 , the relevant principles were succinctly stated by Pearce J at [8]: "The court sits to correct material error: Dinsdale v The Queen (2000) 202 CLR 3…
Director of Public Prosecutions v CSS
[2013] TASCCA 10 Para 1

…iscretion: see Lowndes v The Queen (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequa…
Smith v Tasmania
[2012] TASCCA 3 Para 3

…ovision of information because of the inherent personal risk involved, and because it was indicative of prospects of rehabilitation: Smith v Tasmania [2012] TASCCA 3 at [15].…
Johnstone v Tasmania
[2011] TASCCA 9 Para 8

…of the offender and the nature and seriousness of the offences committed: R v Verdins (2007) 16 VR 269 at [25]; Grossi at [55]; Johnstone v Tasmania [2011] TASCCA 9 at [13]. The reference by the learned sentencing judge to a "pathological gambling" addiction is to a form of impulse control disorder. The disorder…
Hili v The Queen
[2010] HCA 45 Para 1

…(above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen (2010) 242 CLR 520 at 539."…
R v Grossi
[2008] VSCA 51 Para 8

…addiction may, like any other mental condition, reduce the offender's moral culpability and the need for general and specific deterrence: R v Grossi (2008) 23 VR 500 at [55]. It will depend on the nature and severity of the symptoms, its effect on the mental capacity of the offender and the nature and seriousness…
R v Verdins
[2007] VSCA 102 Para 8

…and severity of the symptoms, its effect on the mental capacity of the offender and the nature and seriousness of the offences committed: R v Verdins (2007) 16 VR 269 at [25]; Grossi at [55]; Johnstone v Tasmania [2011] TASCCA 9 at [13]. The reference by the learned sentencing judge to a "pathological gambling" add…
Markarian v The Queen
[2005] HCA 25 Para 17

…y for parole would have had merit and would have been effective in promoting his reform. There is "no single correct sentence": Markarian v The Queen (2005) 228 CLR 357 at [27]; see also Hili at [74]. The question is whether the failure to make an order specifying a parole ineligibility period, thereby giving an oppo…
Dinsdale v The Queen
[2000] HCA 54 Para 1

…[2015] TASCCA 1 , the relevant principles were succinctly stated by Pearce J at [8]: "The court sits to correct material error: Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The Kin…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 11

…evidently aware that an early plea of guilty is generally deserving of more weight in mitigation than a plea of guilty at a late stage: R v Thompson (2000) 49 NSWLR 383 at [154]. The appellant argued on appeal that, in fact, he had wanted to plead guilty on "day one" and the reason he did not enter a plea until March…
Postiglione v the Queen
[1997] HCA 26 Para 1

…in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is…
Radenkovic v The Queen
[1990] HCA 54 Para 2

…to compensate or account for any remissions that may flow to a prisoner: R v Paivinen (1985) 158 CLR 489 at 494; Hoare at 354; Radenkovic v The Queen (1990) 170 CLR 623 at 631 . However, it is not the general rule that a judge must pay no regard in the sentencing process to the availability of remissions for good beh…
Hoare v The Queen
[1989] HCA 33 Para 2

…work as an incentive for the encouragement and reward of good behaviour on the part of eligible prisoners while serving a sentence: Hoare v The Queen (1989) 167 CLR 348 at 351. There are limits on the court's consideration of the remissions system in fixing an appropriate sentence. It would be contrary to principle f…
R v Paivinen
[1985] HCA 39 Para 2

…sentencing judge to inflate the sentence to be imposed in order to compensate or account for any remissions that may flow to a prisoner: R v Paivinen (1985) 158 CLR 489 at 494; Hoare at 354; Radenkovic v The Queen (1990) 170 CLR 623 at 631 . However, it is not the general rule that a judge must pay no regard in the s…
Power v The Queen
[1974] HCA 26 Para 16

…de for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate": Power v The Queen (1974) 131 CLR 623 per Barwick CJ, Menzies, Stephen and Mason JJ at 629. The non-parole period should be "the minimum time that a judge determines justice requires that…
House v R
[1936] HCA 40 Para 1

…er Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may…
Bresnehan v The Queen
[1992] TASSC 55 Para 1

…at the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court…
Lowndes v The Queen
[1999] HCA 299 Para 1

…te court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges shoul…
House v The King
63 WN 176 Para 1

…00) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the se…

Legislation cited in this decision · 2

Corrections Regulations 2008 (Rescinded) (TAS)
22(3) 2 mentions (from Para 3)
Sentencing Act 1997 (TAS)
17 2 mentions (from Para 2)