Frost v The Queen - [2003] TASSC 39

[2003] TASSC 39

CITATION: Frost v R [2003] TASSC 39

PARTIES:  FROST, Ian Robert
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 107/2002
DELIVERED ON:  23 June 2003
DELIVERED AT:  Hobart
HEARING DATES:  27 May 2003
JUDGMENT OF:  Underwood, Slicer and Evans JJ

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Non-parole period or minimum term - Tasmania - Federal offender - State law governing remission of sentence not applicable to pre-release period of imprisonment.

Crimes Act 1914 (Cth), ss19AA and 19AG (since repealed).
Corrections Act 1997 (Tas), s86.
Corrections Regulations 1998 (Tas), reg23.
Oancea (1990) 51 A Crim R 141; Paunovic (1990) 51 A Crim R 174; Selimoski v Picknoll SC(WA) Full Court 1992, unreported BC9201074, referred to.
Aust Dig Criminal Law [880.5]

REPRESENTATION:

Counsel:
             Appellant:  M J Brett
             Respondent:  J D Barnett
Solicitors:
             Appellant:  Douglas & Collins
             Respondent:  Commonwealth Director of Public Prosecutions

Judgment Number: [2003] TASSC 39
Number of Paragraphs: 19

Serial No 39/2003
File No CCA 107/2002

IAN ROBERT FROST v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
SLICER J
EVANS J
23 June 2003

Orders of the Court

Appeal dismissed.

Serial No 39/2003
File No CCA 107/2002

IAN ROBERT FROST v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
23 June 2003

For the reasons expounded by Evans J, I agree that no part of the law of the State of Tasmania governing the remission of prisoners' sentences applied to a period of the appellant's imprisonment equivalent to the pre-release period of imprisonment. Consequently, as the Crimes Act 1914 (Cth), s19AG had no application, no error in the exercise of the sentencing discretion has been made out and the appeal should be dismissed.

I would prefer to express no view about the provisions of the Crimes Act, ss19AA(1) and 19AG and the imposition of sentence in a case where it is ordered that the execution of part of the sentence be conditionally suspended. It was not in issue on the appeal and was not fully argued.
File No CCA 107/2002

IAN ROBERT FROST v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

SLICER J
23 June 2003

I have read in draft form the reasons for judgment of Evans J and agree with both his reasoning and conclusion and would dismiss the appeal.
File No CCA 107/2002

IAN ROBERT FROST v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
23 June 2003

Upon pleading guilty to twelve counts of obtaining credit by false pretences contrary to the Corporations Law, the appellant was sentenced to:

· 18 months' imprisonment on each of counts 1 to 6, each sentence to be served concurrently with each other and to commence on 15 May 2002.
· 18 months' imprisonment on each of counts 7 to 12, each sentence to be served concurrently with each other, but to commence at the expiration…

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 Frost v The Queen

Details

AGLC: Frost v The Queen [2003] TASSC 39
Case: [2003] TASSC 39
Decision Date: 23 June 2003

CaseChat Overview and Summary

Ian Robert Frost was convicted on twelve counts of obtaining credit by false pretences and was sentenced to imprisonment terms for each count. Frost appeals against his sentence, arguing that the sentencing judge failed to consider that the pre-release period of his sentence would not be subject to remission under the laws of the State of Tasmania. Frost contends that this oversight constitutes an error in the exercise of the sentencing discretion. The legal issue at hand is whether the sentencing judge was required to adjust the pre-release period in accordance with the Crimes Act 1914 (Cth), s19AG, which has since been repealed.

The Court of Criminal Appeal, comprising Underwood, Slicer, and Evans JJ, considered the arguments presented by Frost and the legal framework surrounding the remission of sentences. The Court determined that the Tasmanian law governing the remission of prisoners' sentences did not apply to the period of the appellant's imprisonment equivalent to the pre-release period. Consequently, the Crimes Act 1914 (Cth), s19AG did not apply in this context, and no error in the exercise of the sentencing discretion was made. The Court unanimously agreed to dismiss Frost's appeal.

In reaching its decision, the Court noted that the Tasmanian remissions law did not relate to the remission or reduction of non-parole periods of imprisonment or periods of imprisonment equivalent to pre-release periods of imprisonment in respect of recognizance release orders. Therefore, the exclusion contained in the Crimes Act 1914 (Cth), s19AA(1) did not affect any part of the current Tasmanian remissions law. The Court held that the purpose of the statutory scheme was to avoid disparity between federal sentences and those imposed for offences against the laws of the State or Territory. Adopting a construction that does not involve part of the State's remissions law being affected by the exclusion contained in s19AA(1) better achieved this purpose. The Court concluded that the sentencing judge was not required to resort to s19AG when sentencing Frost, and the appeal was dismissed.

The final orders of the Court were that the appeal be dismissed.

Orders