Green v Tasmania - [2022] TASSC 5

[2022] TASSC 5

COURT: SUPREME COURT OF TASMANIA

CITATION: Green v Tasmania [2022] TASSC 5

PARTIES:  GREEN, Paul
  v
  STATE OF TASMANIA

FILE NO:  LCA 2386/2021
DELIVERED ON:  8 February 2022
DELIVERED AT:  Hobart
HEARING DATE:  3 February 2022
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Whether sentence manifestly excessive – Single count of possessing child exploitation material – Sentence of imprisonment of six months, wholly suspended for a period of three years – Not manifestly excessive – Motion dismissed.

Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Cth), s 74A.
Director of Public Prosecutions v Latham [2009] TASSC 101, 19 Tas R 281, considered.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
           Applicant:  P Monk
           Respondent:  E Belonogoff
Solicitors:
           Applicant:  Tasmania Legal Aid
           Respondent:  Director of Public Prosecutions

Judgment Number: [2022] TASSC 5
Number of paragraphs: 15

Serial No 5/2022
File No LCA 2386/2021

PAUL GREEN v STATE OF TASMANIA

REASONS FOR JUDGMENT ESTCOURT J
8 February 2022

The application

This is a motion by Paul Green, to review a sentence of imprisonment of six months, which was wholly suspended for a period of three years, imposed on 17 September 2021 by Magistrate C Webster upon the applicant's plea of guilty to a single count of possessing child exploitation material contrary to s 74A of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Cth). The applicant contends that the sentence was manifestly excessive in all of the circumstances.
As noted by counsel for the respondent, Ms Belonogoff, in her written submissions, the role of this Court considering the question of manifest excess is well established. Magistrates have a very wide sentencing discretion, and an appellate court must not interfere unless a material error is shown (Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 per Kirby J at [57]-[60]). It must be shown that the sentence imposed is "unreasonable or plainly unjust" (Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, 28 Tas R 1 per Pearce J at [8], citing House v The King (1936) 55 CLR 499 at 505). The Court has no charter to "tinker" with sentences imposed (Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]).
Ms Monk, counsel for the applicant, accepts in her written submissions that an appellate court only sits to rectify a genuine error (Dinsdale v The Queen (above)) and that where, as here, no specific error is alleged the court must be persuaded that the sentence imposed is "unreasonable or plainly unjust" (House v The King (above)). This requires something beyond being too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of judicial discretion (Bresnehan v The Queen (1992) 1 Tas R 234).

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 Green v Tasmania

Details

AGLC: Green v Tasmania [2022] TASSC 5
Case: [2022] TASSC 5
Decision Date: 8 February 2022

CaseChat Overview and Summary

In the matter of Green v Tasmania, the appellant sought a review of a sentence imposed by the Magistrates Court of Tasmania. The respondent, the State of Tasmania, had charged and convicted the appellant for a single count of possessing child exploitation material. The primary dispute centred around the sentencing decision, with the appellant contending that the sentence was manifestly excessive. The sentence imposed was imprisonment for six months, wholly suspended for a period of three years. The Court of Criminal Appeal was tasked with determining whether the sentence was manifestly excessive and whether the lower court's decision warranted review.

The court examined whether the sentence imposed by the Magistrates Court was manifestly excessive. It considered the nature of the offence, the principles of sentencing, and the circumstances surrounding the appellant's offending. The court assessed whether the sentence was so disproportionate as to shock the conscience of the community. Given the statutory maximum penalty for the offence and the court's consideration of relevant sentencing principles, the court found that the sentence was not manifestly excessive. The court also noted the appellant's early guilty plea and other mitigating factors that had been taken into account by the Magistrates Court.

Consequently, the Court of Criminal Appeal dismissed the appellant's motion to review the sentence. The court upheld the Magistrates Court's decision, affirming that the sentence of imprisonment for six months, wholly suspended for three years, was appropriate and not manifestly excessive. The court's decision was based on a comprehensive analysis of the sentencing principles and the specific circumstances of the case. The appellant's motion to review the sentence was accordingly dismissed, and the original sentence remained in place.

Orders