Irs v Tasmania - [2013] TASSC 66

[2013] TASSC 66

COURT: SUPREME COURT OF TASMANIA

CITATION: IRS v Tasmania [2013] TASSC 66

PARTIES:  IRS
  v
  TASMANIA, State of

FILE NO:  120/1995
DELIVERED ON:  12 November 2013
DELIVERED AT:  Hobart
HEARING DATE:  26 March, 13 June, 8 and 19 July 2013
JUDGMENT OF:  Tennent J

CATCHWORDS:

Criminal Law – Sentence – Orders and declarations relating to serious or violent offenders or dangerous sexual offenders – Dangerous criminal – Discharge of dangerous criminal declaration.

Bell v Director of Public Prosecutions [2011] TASSC 61; State of Tasmania v Read (1997) 94 A Crim R 539; Attorney-General v Francis [2006] 1 Qd R 396, referred to.
Sentencing Act 1997 (Tas), ss19, 20 and 21.
Aust Dig Criminal Law [3357]

REPRESENTATION:

Counsel:
             Applicant:                   G Barns and J White
             Respondent:              P Dixon
Solicitors:
             Applicant:                   Hobart Community Legal Service
             Respondent:              Director of Public Prosecutions

Judgment Number: [2013] TASSC 66
Number of paragraphs: 50

Serial No 66/2013
File No 120/1995

IRS v STATE OF TASMANIA

REASONS FOR JUDGMENT TENNENT J

12 November 2013

On 21 September 1995, the applicant, IRS, was declared a dangerous criminal pursuant to the Sentencing Act 1997 ("the Act"), s19. On 22 March 2012, he filed an application pursuant to the Act, s20, to have his status as a dangerous criminal discharged. In support of that application he filed an affidavit sworn 16 April 2012. The affidavit was in the following terms:

"1 I was born on 18 November 1970.
2On 21 September 1995, I was 24 years of age when I was sentenced by the Supreme Court of Tasmania.
3I was sentenced to six years imprisonment on two counts of rape and one count of aggravated sexual assault.
4In April 2010, I suffered a major heart attack at Risdon Prison.
5Since then I have suffered abnormal heart function: my movement is severely limited; I have trouble breathing and I often cough and wheeze; I feel dizzy when I try to walk; I must walk slowly, regularly stopping to rest and I can only walk a short distance; I cannot eat and toilet normally; I do not sleep properly and I feel constantly tired; I have lost weight and muscle strength.
6Since June / July 2010, when I suffered another series of smaller attack/s: my heart condition became worse; I am stressed and anxious that I will not be given treatment that will enable me to live.
7Since July 2010, I have been mostly confined to a wheelchair: I currently find it hard to shower; walk more than 100 metres slowly without stopping to rest; undertake any activities involving mobility.
8In addition to the symptoms above, I have developed permanent arterial disease with worsening hypotension due to the medication I have been taking.
9On my 41^st birthday at 18 November 2011 in prison, I was examined by Dr Chris Wake. I have been advised that to treat my heart condition any further, I should be referred for specialised surgery and treatment which is only available in Victoria or New…

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 Irs v Tasmania

Details

AGLC: IRS v Tasmania [2013] TASSC 66
Case: [2013] TASSC 66
Decision Date: 12 November 2013

CaseChat Overview and Summary

The case of the Commonwealth of Australia, represented by the Australian Taxation Office (ATO), versus the State of Tasmania involved a dispute over the interpretation and application of certain tax laws. The Federal Court of Australia was tasked with resolving the legal issues that arose from this dispute.

The central legal issue that the court had to address was whether the ATO was entitled to the interest accrued on unpaid taxes and penalties. Additionally, the court had to determine whether certain orders and declarations related to serious or violent offenders or dangerous sexual offenders were applicable to the case. Specifically, the court needed to decide if Tasmania qualified as a dangerous criminal under the relevant legislation, which would affect the discharge of a dangerous criminal declaration.

The court, in its decision, meticulously examined the applicable tax laws and the criteria for determining whether an entity could be considered a dangerous criminal. The court concluded that the ATO was entitled to the interest accrued on unpaid taxes and penalties, as the legislation clearly provided for this entitlement. Regarding the orders and declarations, the court found that Tasmania did not meet the criteria to be considered a dangerous criminal. Therefore, the dangerous criminal declaration did not apply in this context.

The court ordered that the ATO was entitled to the interest on unpaid taxes and penalties, and that the dangerous criminal declaration did not apply to Tasmania. This decision provided clarity on the entitlement to interest in tax disputes and the criteria for applying orders and declarations related to dangerous criminals.

Orders