Fama v Tasmania - [2015] TASCCA 27

[2015] TASCCA 27

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

CITATION: Fama v Tasmania [2015] TASCCA 27

PARTIES:  FAMA, Benjamin Michael
  v
  STATE OF TASMANIA

FILE NO:  CCA 264/2015
DELIVERED ON:  18 December 2015
DELIVERED AT:  Hobart
HEARING DATES:  18 August, 1 October 2015
JUDGMENT OF:  Blow CJ, Tennent and Wood JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Particular grounds of appeal – Conduct of defence counsel – Plea of guilty – Whether counsel failed to take thorough instructions – Whether counsel failed to acquaint sentencing judge with all relevant mitigating circumstances.
Aust Dig Criminal Law [3515]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Trafficking in cannabis – Continuation of trafficking after arrest and charge – Sentence of 8 months' imprisonment with 3 months suspended.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  Not represented
             Respondent:  J Ansell
Solicitors:
             Appellant:  Not represented
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASCCA 27
Number of paragraphs: 42

Serial No 27/2015
File No CCA 264/2015

BENJAMIN MICHAEL FAMA v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
TENNENT J
WOOD J
18 December 2015

Order of the Court (1 October 2015)

Appeal dismissed.

Serial No 27/2015
File No CCA 264/2015

BENJAMIN MICHAEL FAMA v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
18 December 2015

On 13 March 2015 the appellant, Benjamin Fama, pleaded guilty before Porter J to a charge of trafficking in a controlled substance, namely cannabis. On 2 April 2015 his Honour made an order activating suspended sentences totalling 26 weeks' imprisonment, with effect from 13 March 2015, and, on the trafficking charge, sentenced the appellant to a cumulative term of 8 months' imprisonment, of which 3 months was suspended on condition that he was not to commit any offence punishable by imprisonment for a period of two years. This is an appeal in relation to that partly suspended sentence of imprisonment. The order activating the suspended sentences is not the subject of any appeal.
Initially the appellant relied on only one ground of appeal, which asserted that the sentence was manifestly excessive. He did not have legal representation for this appeal. The hearing of the appeal commenced on 18 August 2015. It became apparent that the appellant contended that his counsel at the time of the sentencing proceedings, Mr Stevens, failed to take proper instructions and failed to acquaint the learned sentencing judge with relevant mitigating circumstances. The hearing of the appeal was adjourned so that the grounds of appeal could be amended, and so that affidavits could be prepared in relation to Mr Stevens' conduct of the case. The hearing resumed on 1 October 2015, at which time the appellant pursued two grounds of appeal:
"1 The learned sentencing Judge erred in law in that he imposed a sentence which…

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 Fama v Tasmania

Details

AGLC: Fama v Tasmania [2015] TASCCA 27
Case: [2015] TASCCA 27
Decision Date: 18 December 2015

CaseChat Overview and Summary

The appeal concerned the conduct of defence counsel and the appropriateness of a sentence imposed for trafficking in cannabis. The appellant, Fama, pleaded guilty to the charge and was sentenced to eight months' imprisonment, with three months suspended. Fama appealed against this sentence, arguing that his defence counsel had failed to take thorough instructions and had not adequately acquainted the sentencing judge with all relevant mitigating circumstances.

The central legal issues before the Full Court of the Supreme Court of Tasmania were whether the conduct of defence counsel amounted to a failure to provide effective representation, and whether the sentence imposed was manifestly excessive or inadequate in light of the circumstances of the offending, including the continuation of trafficking after arrest.

The Court considered the evidence regarding the instructions taken by defence counsel and the information presented to the sentencing judge. It was found that defence counsel had taken instructions and had presented mitigating factors to the court. The Court also noted that the appellant had continued to engage in trafficking activities after being arrested and charged, which was a significant factor in sentencing. Applying the principles of sentencing for drug trafficking offences, and considering the totality of the circumstances, the Court concluded that the sentence imposed was not demonstrably wrong.

The appeal was accordingly dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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