Ferguson v Tasmania - [2011] TASSC 51

[2011] TASSC 51

COURT: SUPREME COURT OF TASMANIA

CITATION: Ferguson v Tasmania [2011] TASSC 51

PARTIES:  FERGUSON, Peta Lynne
  v
  STATE OF TASMANIA

FILE NO/S:  282/2011
DELIVERED ON:  20 September 2011
DELIVERED AT:  Hobart
HEARING DATES:  15, 19, 24, 26 August 2011
JUDGMENT OF:  Wood J

CATCHWORDS:

Magistrates – Jurisdiction and procedure generally – Procedure – The hearing – Matters relating to decision – Duty to state reasons for sentence – Factual basis for sentence not clear – Facts of offending not stated by prosecutor in open court in presence of accused.

Trueman v Tasmania [2009] TASSC 9, referred to.
R v Causby [1984] Tas R 54, referred to.
Aust Dig Magistrates [128]

Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Cancellation of drug treatment order – Order that seven months' imprisonment be activated – Whether sentence manifestly excessive – Extent of compliance with drug treatment and supervision – Proportionality of penalty.

Sentencing Act 1997 (Tas), ss27B, 27C, 27F, 27G, 27K, 27N, 27Q.
Aust Dig Magistrates [272].

REPRESENTATION:

Counsel:
             Applicant (15/8/11)  :            In Person
             Applicant (19, 24, 26/8/11):           P Morgan
             Respondent:  S Nicholson
Solicitors:
             Applicant: (15/8/11)  In Person
             Applicant (19, 24, 26/8/11):           Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2011] TASSC 51
Number of paragraphs: 71

Serial No 51/2011
File No 282/2011

PETA LYNNE FERGUSON v STATE OF TASMANIA

REASONS FOR JUDGMENT WOOD J

20 September 2011

These are reasons for orders made on 19 and 26 August 2011 upholding a notice to review, quashing a sentence of seven months' imprisonment and re-sentencing the applicant.

Ms Ferguson applied to review two sentencing orders made by Magistrate C P Webster relating to numerous offences on 23 complaints, mostly involving shop-lifting. In relation to 21 complaints, the magistrate imposed a sentence of seven months' imprisonment, after cancelling a drug treatment order previously made in relation to those complaints. The learned magistrate imposed an additional period of one month imprisonment in relation to two further complaints of stealing. It was ordered that the period of one month imprisonment be served as a cumulative sentence. The total period of eight months' imprisonment is subject to review.

The sentence

The learned magistrate made the two sentencing orders under review on 14 April 2011. The sentencing order of seven months relating to the multiple offences on 21 complaints was made after cancellation of a drug treatment order pursuant to the Sentencing Act 1997 ("the Act"), s27Q. The drug treatment order contained a treatment and supervision part and a custodial component as required by the Act. The custodial component was nine months' imprisonment. The magistrate exercised his discretion under the Act and activated some of the custodial component of the order by requiring the applicant to serve seven months' imprisonment.

The other sentencing order involved the imposition of a further period of imprisonment being one month in relation to two complaints requiring that that…

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 Ferguson v Tasmania

Details

AGLC: Ferguson v Tasmania [2011] TASSC 51
Case: [2011] TASSC 51
Decision Date: 20 September 2011

CaseChat Overview and Summary

The case of Ferguson v Tasmania involved the defendant appealing against a sentence imposed by the Magistrates Court of Tasmania. The defendant had been found guilty of an offence and sentenced to a term of imprisonment, which was to be activated after a period of drug treatment. The appeal was based on the contention that the sentence was manifestly excessive, and the sentencing process had not been conducted properly. The appeal was heard in the Supreme Court of Tasmania.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive and whether the court had properly exercised its sentencing powers. This included whether the sentencing process had adhered to the statutory requirements, including the duty to state reasons for the sentence and the factual basis for the sentence. Additionally, the court had to consider whether the extent of compliance with the drug treatment and supervision requirements was properly considered and if the penalty was proportionate to the offence committed.

In its reasoning, the court found that the sentencing process had not been conducted correctly. The court noted that the prosecutor had not clearly stated the facts of the offending in open court in the presence of the accused, which is a statutory requirement. The court also found that the reasons for the sentence were not sufficiently articulated, and the factual basis for the sentence was not clearly stated. The court held that these deficiencies rendered the sentence manifestly excessive and ordered a review of the sentence. The court also noted that the extent of compliance with the drug treatment and supervision requirements was not properly considered and that the penalty imposed was disproportionate to the offence committed.

The final orders of the court were to cancel the drug treatment order and activate the seven months' imprisonment sentence, but with a requirement for the sentencing court to provide clear reasons for the sentence and to ensure that the sentencing process adhered to statutory requirements. The court also directed that the sentencing court consider the extent of compliance with the drug treatment and supervision requirements and the proportionality of the penalty.

Orders