Draper v Tasmania Police - [2004] TASSC 120

[2004] TASSC 120

CITATION: Draper v Tasmania Police [2004] TASSC 120

PARTIES:  DRAPER, Dale Andrew
  v
  TASMANIA POLICE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 19/2004
DELIVERED ON:  29 October 2004
DELIVERED AT:  Hobart
HEARING DATES:  20 October 2004
JUDGMENT OF:  Underwood J

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Totality principle.

Wise v R [1965] Tas SR 196; Postiglione v R (1997) 189 CLR 295; Harland-White v R A1/1998, applied.
Aust Dig Criminal Law [838]

REPRESENTATION:

Counsel:
           Applicant:  G Tucker
           Respondent:  P Sherriff
Solicitors:
           Applicant:  Grant Tucker
           Respondent:  Director of Public Prosecutions

Judgment Number: [2004] TASSC 120
Number of Paragraphs: 12

Serial No 120/2004
File No LCA 19/2004

DALE ANDREW DRAPER v TASMANIA POLICE

REASONS FOR JUDGMENT UNDERWOOD J

29 October 2004

The applicant seeks a review of orders made in a court of petty sessions that he be sentenced to six months' imprisonment, cumulative to the sentence he was then serving, and that he be disqualified from holding or obtaining a drivers licence for 18 months following his release from prison. Those orders were made upon the applicant's pleas of guilty to:

·    three charges of motor vehicle stealing;
·    one charge of attempted motor vehicle stealing;
·    two charges of driving while disqualified;
·    four charges of breach of bail, contrary to the Bail Act 1994, s5(4);
·    one charge of receiving stolen property, contrary to the Criminal Code, s258;
·    one charge of being in unlawful possession of $300, contrary to the Police Offences Act 1935, s39(2);
·    one charge of using controlled plants or its products, contrary to the Misuse of Drugs Act 2003, s25; and
·    one charge of possessing a thing used for administration of a controlled drug, contrary to the Misuse of Drugs Act, s23.

All these offences were committed between December 2002 and February 2003. The complaints by which the applicant was charged also charged him with a large number of crimes which were also committed between December 2002 and February 2003. These crimes were dealt with in this Court upon the applicant's pleas of guilty, prior to the subject offences being dealt with in a court of petty sessions. The learned sentencing judge imposed a sentence of three years' imprisonment to date from 21 February 2003 when he was taken into custody. There was no order for eligibility of parole. At the time of imposing sentence, the learned sentencing judge said:

"Dale Andrew Draper pleaded guilty to 23 counts of burglary, 21 counts of stealing and one count of receiving.
With one possible exception, the crimes were committed in a two month period between December 2002 and February 2003. The value of property stolen or damaged in the course of committing them exceeded $110,000. About half of the crimes concerned thefts from parked cars and the balance were from commercial premises. The public were eventually protected…

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.

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Details

Case: [2004] TASSC 120
Decision Date: 29 October 2004

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Dale Andrew Draper appealed against orders made by a court of petty sessions that he be sentenced to six months' imprisonment, cumulative to the sentence he was then serving, and that he be disqualified from holding or obtaining a driver's licence for 18 months following his release from prison. Draper had pleaded guilty to multiple charges, including motor vehicle stealing, attempted motor vehicle stealing, driving while disqualified, breaches of bail, receiving stolen property, unlawful possession of $300, using controlled plants or its products, and possessing a thing used for the administration of a controlled drug. The court was required to decide whether the sentence imposed was manifestly excessive and whether the period of imprisonment should have been concurrent rather than cumulative with the existing sentence.

The court considered the totality principle, which requires a sentencer to review the aggregate sentence and ensure it is just and appropriate. The principle applies even when the offender is already serving a sentence. The court noted that Draper had a significant criminal history and had committed these offences while on bail, indicating a disregard for the conditions set for his release. The court held that a total sentence of 3½ years without parole for the totality of the criminal conduct was not excessive or crushing, considering Draper's extensive criminal record and the nature of the offences. The motion to review was dismissed, affirming the magistrate's decision.

Orders