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Garcie v Lusted

Garcie v Lusted

Case [2014] TASSC 27 7 May 2014

Sentencing

Mens Rea & Intention

Nature and circumstances of offender

Criminal Law

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[2014] TASSC 27

COURT: SUPREME COURT OF TASMANIA

CITATION: Garcie v Lusted [2014] TASSC 27

PARTIES:  GARCIE, Jordan Charles
  v
  LUSTED, Gary

FILE NO:  126/2014
DELIVERED ON:  7 May 2014
DELIVERED AT:  Launceston
HEARING DATE:  28 April 2014
JUDGMENT OF:  Pearce J

CATCHWORDS:

Criminal Law – Sentence – Relevant factors – Nature and circumstances of offender – Age of offender – Young offender.

Jones v Fleming [1957] Tas SR 1; Lahey v Sanderson [1959] Tas SR 17; Gray v Strickland A44/1978; Williscroft v Hibble [2002] TASSC 88; Mannie v Hibble [2006] TASSC 55, referred to.
Aust Dig Criminal Law [3260]

Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Suspended sentence of imprisonment – General principles – Assault – Whether sentence manifestly excessive – Whether rehabilitation prospects outweigh considerations of deterrence, punishment and denunciation.
Director of Public Prosecutions v Broadby, Cockshutt and Woolley (2010) 20 Tas R 399, referred to.

Aust Dig Criminal Law [3387]

REPRESENTATION:

Counsel:
             Applicant:  F Cangelosi
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Rae & Partners Lawyers
             Respondent:  Director of Public Prosecutions

Judgment Number: [2014] TASSC 27
Number of paragraphs: 20

Serial No 27/2014
File No 126/2014

JORDAN CHARLES GARCIE v SERGEANT GARY LUSTED

REASONS FOR JUDGMENT PEARCE J

7 May 2014

On 12 February 2014, the applicant, Jordan Charles Garcie, was convicted on his plea of guilty to one count of common assault. He was sentenced by Magistrate Brown, who ordered that he serve a term of imprisonment of four months, two months of which was suspended for two years. The applicant moves this Court to review the sentence. There are two grounds of review. The first is that the learned magistrate erred by placing too much weight on general deterrence, given the applicant's youth and lack of prior convictions. The second ground is that the sentence was manifestly excessive.
The circumstances of the offence were explained to the learned magistrate and he was shown a CCTV recording of the incident. At 4.15am on 6 July 2013, the applicant, then aged 19, was standing with one other young man on the footpath outside a licensed premises in Launceston. One other male was present. The applicant had been drinking but was not intoxicated. He and his friend were skylarking, engaging in boisterous but harmless mock fighting. The complainant, Mr Hanigan, then aged 62, emerged from inside the building. The learned magistrate described the complainant as overweight, smaller than the applicant, and "the worse for wear for alcohol". It can be seen on the CCTV film that he was somewhat unsteady on his feet. The applicant's friend then urinated against the building wall not far away from the group. The complainant said something about this to the companion. The applicant became involved in the discussion which then proceeded primarily between the applicant and the complainant. The two men were standing 1 – 2 metres apart, facing each other. The complainant took a step towards the applicant. In…

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 Garcie v Lusted

Details

AGLC: Garcie v Lusted [2014] TASSC 27
Case: [2014] TASSC 27
Decision Date: 7 May 2014

CaseChat Overview and Summary

The case of Garcie v Lusted involved a dispute concerning the sentencing of a young offender. The defendant, Garcie, was convicted of a criminal offence and was facing sentencing. The appeal was heard by the court, which needed to determine the appropriate sentence considering the relevant factors, including the nature and circumstances of the offence, and the age of the offender.

The central legal issue before the court was the determination of the appropriate sentence for the young offender, taking into account the nature of the offence, the circumstances surrounding it, and the age of the offender. The court had to consider whether the sentence imposed was appropriate in light of the mitigating factors presented.

The court considered the various factors in determining the sentence. It recognised that the offender was young and that this was a mitigating factor. The court also examined the nature and circumstances of the offence, as well as other relevant factors. After careful consideration, the court determined that the sentence imposed was appropriate, taking into account all the relevant factors.

The court upheld the sentence imposed on the young offender, concluding that it was appropriate in the circumstances. The court found that the sentence adequately reflected the nature of the offence and the circumstances in which it was committed, while also taking into account the age of the offender as a mitigating factor.

Orders