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James v Turner

James v Turner

Case [2006] TASSC 54 7 July 2006

Jurisdiction

Sentence

Factors to be taken into account

Criminal Law

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[2006] TASSC 54

CITATION: James v Turner [2006] TASSC 54

PARTIES:  JAMES, Brendan
  v
  TURNER, Darren

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 15/2006
DELIVERED ON:  7 July 2006
DELIVERED AT:  Hobart
HEARING DATE:  28 June 2006
JUDGMENT OF:  Evans J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Relevant principles – Imprisonment a last resort.

Parkerv Director of Public Prosecutions (1992) 28 NSWLR 282, applied.
Aust Dig Criminal Law [826]

REPRESENTATION:

Counsel:
           Applicant:  W G Tucker
           Respondent:  K Brown
Solicitors:
           Applicant:  Grant Tucker
           Respondent:  Director of Public Prosecutions

Judgment Number: [2006] TASSC 54
Number of paragraphs: 9

Serial No 54/2006
File No LCA 15/2006

BRENDAN JAMES v DARREN TURNER

REASONS FOR JUDGMENT EVANS J

7 July 2006

On 17 May 2006 the applicant appeared before a magistrate in the court of petty sessions, pleaded guilty to a charge of common assault and was thereupon sentenced to three months' imprisonment. He has filed a notice to review appealing against that sentence.

The particulars of the charge are that on 10 April 2006, the applicant unlawfully assaulted Emma Watson by approaching her in a threatening manner whilst holding a crowbar above his head.

The prosecutor provided the learned magistrate with the following information:

·At 6.30pm on 10 April 2006, the applicant was driving his vehicle along Cameron Street, Launceston towards its intersection with George Street when the complainant, Emma Watson, her mother, brother and sister walked across Cameron Street against a red light in the path of the applicant's vehicle.
·The complainant did not notice the applicant's vehicle until she was half way across Cameron Street. She and her family had to run in order to avoid his vehicle. The complainant said its speed increased as it passed through the intersection. (The applicant did not indicate whether he disputed this assertion.)
·The complainant made a rude gesture towards the applicant as his vehicle passed.
·The applicant stopped his vehicle, reversed back to the intersection and alighted holding a crowbar above his head. His explanation for taking the crowbar with him was concern for his safety when confronting four people.
·The complainant's mother and brother fled, but the complainant did not. The learned magistrate was not told whether the complainant's sister also fled.
·The applicant approached to within 2 metres of the complainant and when he saw she was a teenage girl, he lowered the crowbar to his side and said, "Why the fuck did you cross the road when it was red?" Apparently the complainant did not respond. The applicant returned to his vehicle and left. During the confrontation the complainant was terrified and tried to dial 000 on her mobile phone.
·Later that night the applicant participated in a video interview with police in which he admitted what had occurred.

The applicant was not represented by a lawyer. The applicant told the learned magistrate that what he had done…

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 James v Turner

Details

AGLC: James v Turner [2006] TASSC 54
Case: [2006] TASSC 54
Decision Date: 7 July 2006

CaseChat Overview and Summary

James v Turner is a case where the court was asked to review the sentence imposed on the defendant, James, by the lower court. The defendant was found guilty of a criminal offence and sentenced to imprisonment. Turner, the respondent, was involved in the proceedings as an interested party, likely the victim or a representative of the victim's interests. The dispute centred on the appropriateness and fairness of the sentence handed down by the lower court.

The legal issues the court was required to decide involved the principles and factors to be considered when determining an appropriate sentence. This included whether the lower court correctly applied the relevant sentencing principles and whether the sentence imposed was proportionate to the offence committed. Additionally, the court needed to consider if imprisonment was indeed the last resort and whether there were alternative sentences that could have been considered.

In reaching its decision, the court considered the relevant sentencing principles and the factors that should be taken into account when determining an appropriate sentence. The court emphasised that imprisonment should be a last resort and that alternative sentences should be considered where appropriate. The court found that the lower court had not adequately considered the relevant principles and had failed to explore alternative sentences before imposing the imprisonment term. As a result, the court determined that the sentence was inappropriate and ordered a review of the case and a reconsideration of the sentence.

The final orders of the court were that the sentence imposed on James be quashed, and the case be remitted to the lower court for a re-sentencing hearing. The court instructed the lower court to properly consider the relevant sentencing principles and explore all available alternative sentences before imposing any term of imprisonment.

Orders