Gibbs v Arnold - [2005] TASSC 120

[2005] TASSC 120

CITATION: Gibbs v Arnold [2005] TASSC 120

PARTIES:  GIBBS, Nathan John
  v
  ARNOLD, Ashley William Roy

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 10/2005
DELIVERED ON:  2 December 2005
DELIVERED AT:  Burnie
HEARING DATE:  29 November 2005
JUDGMENT OF:  Evans J

CATCHWORDS:

Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Account to be taken of a period held in custody on a related matter.

Carr v R A14/1993, referred to.
Sentencing Act 1997 (Tas), s16(1).
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  T Jago
           Respondent:  J Hartnett
Solicitors:
           Applicant:  Legal Aid Commission of Tasmania
           Respondent:  Director of Public Prosecutions

Judgment Number: [2005] TASSC 120
Number of paragraphs: 10

Serial No 120/2005
File No LCA 10/2005

NATHAN JOHN GIBBS v ASHLEY WILLIAM ROY ARNOLD

REASONS FOR JUDGMENT EVANS J

2 December 2005

The applicant was sentenced in the court of petty sessions upon pleading guilty to:

·a charge of resisting a police officer in breach of the Police Offences Act 1935, s34B(1)(a)(i), in that on 18 June 2005 at Smithton he resisted three police officers in the execution of their duty, by charging at them and fleeing the scene.
·a charge of common assault in breach of the Police Offences Act, s35(1), in that on 30 August 2005 at Lileah he unlawfully assaulted Sasha Wilson by kicking her in the shins, by grabbing her by the hair and pulling it, and by wrestling her.
·three charges of breaching a bail requirement contrary to the Bail Act 1994, s9, in that he breached a condition of his bail that he not approach Sasha Wilson directly or indirectly: on 30 August 2005 by being at her residence; on 21 September 2005 by approaching her; and on 4 October 2005 by being at her residence.

The material put before the learned magistrate in the course of the sentencing hearing was to the effect that the applicant and Ms Wilson had been in a relationship for about four years. The relationship had not been without problems and on occasions had been marked by violence.

The charge of resisting a police officer arose from an incident that occurred on 18 June 2005 when police were called to a women's shelter where the applicant and Ms Wilson were arguing. The applicant was arrested. He resisted the three police officers in attendance by charging at them and fleeing the scene. As he departed he was sprayed with capsicum, this slowed him down and he was caught 150 metres up the road and taken into custody. He remained in custody until 13 July 2005 when he was released on bail, the terms of which included a condition that he not approach Sasha Wilson directly or indirectly.

The common assault charge arose from an incident which began in the early hours of the morning of 30 August 2005 when the applicant was asleep at Ms…

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 Gibbs v Arnold

Details

AGLC: Gibbs v Arnold [2005] TASSC 120
Case: [2005] TASSC 120
Decision Date: 2 December 2005

CaseChat Overview and Summary

In the case of Gibbs v Arnold, the matter was brought before the court as an appeal from a decision made by a magistrate in Tasmania. The central dispute between the parties centred around the sentence handed down by the magistrate, with the appellant challenging the appropriateness of the sentence. The case was reviewed by the court to assess whether the magistrate had appropriately considered a period of custody the appellant had already served on a related matter.

The legal issues that the court needed to address included whether the magistrate had failed to adequately consider the time the appellant had already spent in custody, and if the sentence was proportionate to the offence committed. Additionally, the court needed to determine if the process by which the sentence was determined was fair and just, and whether there had been any procedural errors that would warrant a review of the sentence.

In examining these issues, the court found that the magistrate had not taken into account the period of custody the appellant had already served when determining the sentence. This omission was considered a significant error, as it impacted the overall fairness and proportionality of the sentence. The court also determined that the procedural fairness of the hearing was not compromised, but the error in not considering the prior custody period was enough to warrant a review of the sentence. The court concluded that the sentence was excessive, given the time already served by the appellant, and ordered a re-sentencing by a different magistrate, taking into account the period of custody already served.

As a result of the court's decision, the sentence handed down by the original magistrate was quashed, and the matter was remitted for re-sentencing. The court emphasised the importance of considering all relevant factors, including any prior periods of custody, when determining an appropriate sentence. The final orders of the court required the re-sentencing to be carried out by a different magistrate, ensuring that the appellant's rights to a fair and just process were upheld.

Orders