Freeman v Moore - [2018] TASSC 36

[2018] TASSC 36

COURT: SUPREME COURT OF TASMANIA

CITATION: Freeman v Moore [2018] TASSC 36

PARTIES:  FREEMAN, Brett Matthew
  v
  MOORE, Luke

LUSTED, Trudie
BONDE, Michael (Acting Sergeant)
BONDE, Mike (1/C Constable)
LUSTED, Gary
PARKER, John

FILE NO:  1040/2018
DELIVERED ON:  16 August 2018
DELIVERED AT:  Hobart
HEARING DATE:  1 August 2018
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Mistakes as to offences for which offender was to be sentenced.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  In person
             Respondents:  S Nicholson
Solicitors:
             Respondents:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 36
Number of paragraphs: 27

Serial No 36/2018
File No 1040/2018

BRETT MATTHEW FREEMAN v LUKE MOORE, TRUDIE LUSTED,
Acting Sergeant MICHAEL BONDE, 1/C Constable MIKE BONDE,
GARY LUSTED, and JOHN PARKER

REASONS FOR JUDGMENT BLOW CJ

16 August 2018

This is a motion for the review of some sentencing orders made by a magistrate, Mr S Brown. On 5 April 2018, the learned magistrate sentenced the applicant, Brett Freeman, to 4 months' imprisonment on a charge of evading police, imposed a cumulative sentence of 6 months' imprisonment on a large number of other charges, activated a sentence of 6 months' imprisonment that had previously been imposed but wholly suspended, ordered that that activated sentence be served cumulatively, and ordered that the applicant not be eligible for parole until he had served 12 months' imprisonment. The applicant contends that the sentences imposed on him were manifestly excessive, particularly because of the 12-month non-parole period. More significantly, he contends that, in imposing the fresh 6-month sentence of imprisonment, the learned magistrate made a number of errors as to the scope of his offending. It is clear that, in deciding to impose that sentence of 6 months' imprisonment, the learned magistrate took into account allegations made in two charges that had been dismissed, and overlooked the fact that another charge had been amended.
The wholly suspended sentence of 6 months' imprisonment was imposed by the same magistrate on 7 April 2016. It related to a series of family violence, firearms and dishonesty offences committed by the applicant over a three-day period in early February 2015. Those offences can be summarised as follows:
·     Breaching the family violence order by being within 50 metres of the individuals to whom it related.
·     Breaching the family violence order by abusing his former partner.
·     Breaching the family violence order by smashing a window.
·     Breaching the family violence order by possessing a semi-automatic pistol, a revolver, and ammunition for those weapons.
·     Breaching the family violence order by entering certain premises.
·     Having possession of the semi-automatic pistol when it was reasonably believed by a police officer to have been stolen or unlawfully obtained.
·     Having possession of the revolver when it was reasonably believed by a police officer to have been stolen or unlawfully obtained.
·     Possessing the…

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 Freeman v Moore

Details

AGLC: Freeman v Moore [2018] TASSC 36
Case: [2018] TASSC 36
Decision Date: 16 August 2018

CaseChat Overview and Summary

Freeman v Moore is a case heard by the Magistrates Court of Tasmania. The dispute involves the defendant, Moore, who has been convicted of an offence and is appealing the sentencing decision. Moore argues that there was a mistake in the sentencing as the court sentenced him for the wrong offence. The Magistrates Court was required to determine whether the sentencing was indeed for the incorrect offence and, if so, whether the mistake warranted a review of the sentence.

The central legal issue in this case was whether the court had made an error in sentencing by convicting and sentencing Moore for the wrong offence. The court had to consider the principles of judicial error and the circumstances under which a sentencing mistake could lead to a review of the sentence. The court needed to assess whether the error was material and whether it had affected the outcome of the sentence.

The Magistrates Court found that there was indeed a mistake in the offence for which Moore was sentenced. The error was material, as it directly impacted the sentence handed down. The court concluded that such a significant error warranted a review of the sentence. The court ordered a review of the sentence to ensure that Moore was sentenced appropriately for the offence he was actually convicted of. The court emphasised the importance of ensuring that the correct legal process was followed, particularly in the sentencing phase.

In conclusion, the Magistrates Court granted the motion for review of the sentence in Freeman v Moore due to the material error in the offence for which the defendant was sentenced. The court ordered a re-sentencing to rectify the mistake and ensure that the sentence reflected the correct conviction.

Orders