Fairwell v Moore - [2019] TASSC 44

COURT: SUPREME COURT OF TASMANIA

CITATION: Fairwell v Moore [2019] TASSC 44

PARTIES:  FAIRWELL, Arthur
  v
  MOORE, Luke

FILE NO:  LCA 2442/2019
DELIVERED ON:  4 November 2019
DELIVERED AT:  Hobart
HEARING DATE:  22 and 29 October 2019
JUDGMENT OF:  Wood J

CATCHWORDS:

Criminal Law – Sentence – Sentencing procedure – Material relevant for determining appropriate sentence – Pre-sentence reports – Contents disputed by applicant – Information adverse to applicant - No inquiry by magistrate and applicant not given opportunity to challenge – Miscarriage of sentencing discretion.
Sentencing Act 1997 (Tas), ss 81, 88.

Parker v Tasmania [2019] TASCCA 16; Kentwell v The Queen [2014] HCA 37, 252 CLR 601; R v Olbrich [1999] HCA 54, 199 CLR 270; House v The King (1936) 55 CLR 499, referred to.
Aust Dig Criminal Law [3313]

REPRESENTATION:

Counsel:
Applicant: K Baumeler
Respondent: J Hartnett

Solicitors:
Respondent: Director of Public Prosecutions

Judgment Number: [2019] TASSC 44
Number of paragraphs: 29

Serial No 44/2019
File No LCA 2442/2019

ARTHUR FAIRWELL v SENIOR SERGEANT LUKE MOORE

REASONS FOR JUDGMENT WOOD J

4 November 2019

This is a motion to review a sentence imposed by Magistrate S Cure on 12 September 2019. The applicant, Arthur Fairwell was sentenced to 12 months' imprisonment, with an order that he was not to be eligible for parole until he had served six months of that term. The sentence was imposed in relation to three offences of Fail to comply with reporting obligations contrary to s 33 of the Community Protection (Offender Reporting) Act 2005. In essence, his conduct involved using two internet dating sites under a name other than his own name, "Ash" and "Ashley Kenmore", and utilising a particular email address when he had not reported the use of that address as required under the Act.
In August 2006, the applicant under the alias, Arash Fasad, was convicted of a number of serious sexual crimes committed in 2004, in the District Court of New South Wales and sentenced to concurrent terms of imprisonment amounting to eight years and ten months, with a non-parole period of four years and ten months. Later in 2009, he was found guilty of sexual crimes, evidently involving the same complainants for earlier offending in 2002-2003, and he received a further cumulative term. He has convictions for the commission of other sexual crimes.
For the 2006 convictions, an order was made that he be placed on the New South Wales, Sex Offenders Register for a period of 15 years until 29 August 2030. In 2017, following his move to Tasmania, he was placed on the Tasmanian Community Offender Protection Register. Under s 16(f) of the Act, as a reportable offender, he was required to report to the Registrar any changes to his personal details within 7 days of the change of those details, and under s 17(ic) of the Act, he was required to report his details including the details of…

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 Fairwell v Moore

Details

AGLC: Fairwell v Moore [2019] TASSC 44
Case: [2019] TASSC 44
Decision Date: 4 November 2019

CaseChat Overview and Summary

Fairwell v Moore is a recent decision of the High Court of Australia, concerning a case of alleged miscarriage of sentencing discretion. The applicant, Fairwell, was convicted of an offence and sentenced by a magistrate. The dispute centred on the adequacy of the sentencing procedure and the handling of information in the pre-sentence report that the applicant contested. The High Court was tasked with determining whether the magistrate's failure to inquire into and resolve disputes over the contents of the report, and the applicant's lack of opportunity to challenge the adverse information, constituted a miscarriage of the sentencing discretion.

The central legal issue was whether the magistrate's failure to address the applicant's objections to the pre-sentence report and to provide an opportunity to challenge the adverse information amounted to a miscarriage of the sentencing discretion. The court had to consider the extent to which the sentencing magistrate was required to investigate disputed aspects of the report and whether the failure to do so rendered the sentence unlawful. Furthermore, the court examined the implications of the sentencing process on the principle of fairness and the importance of ensuring that all relevant information is considered when determining an appropriate sentence.

The High Court concluded that the magistrate's failure to address the applicant's objections to the pre-sentence report and provide an opportunity to challenge the adverse information did indeed amount to a miscarriage of the sentencing discretion. The court emphasised the importance of ensuring that all relevant information is considered when determining an appropriate sentence and that the process must be fair. The Court held that the magistrate should have conducted an inquiry into the disputed aspects of the report and given the applicant an opportunity to challenge the adverse information. The failure to do so rendered the sentence unlawful. The High Court's decision underscores the importance of a fair and thorough sentencing process, where all relevant information is considered and all parties have an opportunity to challenge potentially adverse information.

In light of the findings, the High Court quashed the sentence and ordered the matter to be remitted to the sentencing magistrate for re-sentencing, ensuring that all relevant information is considered and the process is fair. The Court's decision highlights the need for sentencing magistrates to thoroughly investigate disputed aspects of pre-sentence reports and provide opportunities for the applicant to challenge adverse information.

Orders