Kay v Hickey - [2002] TASSC 108

[2002] TASSC 108

CITATION: Kay v Hickey [2002] TASSC 108

PARTIES:  KAY, Lindsay Edward Campbell
  v
  HICKEY, David John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 66/2002
DELIVERED ON:  9 December 2002
DELIVERED AT:  Hobart
HEARING DATES:  19 November 2002
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Recognizances, probation and other non-custodial orders - Recognizances - Breach - Generally - Discretion to order community service instead of imprisonment.

Crimes Act 1914 (Cth), s20A(5)(c)(ic).
Aust Dig Criminal Law [885]

REPRESENTATION:

Counsel:
             Applicant:  I M Arendt
             Respondent:  S J Bender
Solicitors:
             Applicant:  Director of Public Prosecutions (Commonwealth)
             Respondent:  Avery Partners

Judgment Number: [2002] TASSC 108
Number of Paragraphs: 13

Serial No 108/2002
File No LCA 66/2002

LINDSAY EDWARD CAMPBELL KAY v DAVID JOHN HICKEY

REASONS FOR JUDGMENT BLOW J

9 December 2002

The applicant contends that a sentence of 70 hours' community service imposed upon the respondent was manifestly inadequate. The respondent had some sort of mental block about completing and lodging income tax returns. That alone is not unusual, but this was an extreme case, as can be seen from the following history of the matter.

The respondent used to be a public servant. He should have lodged income tax returns in 1990, 1991, 1992, 1993, 1995, 1996 and 1997 but he failed to do so. He was prosecuted. On 14 September 1998 a magistrate made orders under the Taxation Administration Act 1953 (Cth), s8G, requiring him to furnish those returns on or before 19 October 1998. He did not comply with those orders. He was prosecuted again. He was charged with seven counts of failing to comply with a court order contrary to the Taxation Administration Act, s8H. He was served with a summons requiring him to appear before a magistrate on 5 February 1999. He did not appear. A warrant was issued for his arrest. It was not executed promptly. He was arrested and brought before a magistrate on 28 August 2000. He was granted bail. The matter was adjourned. He pleaded guilty on 11 September 2000. Over the following 12 months, the matter was listed for mention before the Magistrates Court on 12 occasions. The twelfth occasion was on 10 September 2001. On that day the respondent failed to appear, and a warrant for his arrest was issued. He was brought before the court on 11 October 2001, and bailed again. On 19 October 2001, he was sentenced on the seven charges to two months' imprisonment, subject to an order under the Crimes Act 1914 (Cth), s20(1)(b), that he be released forthwith upon giving security by recognizance in the sum of $500 (i) to be of good behaviour for a period of 12 months, and (ii) to lodge with the Deputy Commissioner of Taxation on or before 16 October 2001 income tax returns for the years in question. On the day that that sentence was imposed, his counsel told…

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 Kay v Hickey

Details

AGLC: Kay v Hickey [2002] TASSC 108
Case: [2002] TASSC 108
Decision Date: 9 December 2002

CaseChat Overview and Summary

The case of Kay v Hickey involved Lindsay Edward Campbell Kay, the applicant, appealing against a decision made by a magistrate concerning the sentencing of David John Hickey, the respondent. The appeal was against the sentence of 70 hours' community service imposed on the respondent for breaching a condition of a recognizance order. The Supreme Court of Tasmania was tasked with determining whether the sentence was manifestly inadequate.

The legal issue at the heart of this case revolved around the interpretation and application of the Crimes Act 1914 (Cth), specifically sections 20A(5)(c)(ic) and 20AB. The court was required to decide whether the sentence imposed by the magistrate was manifestly inadequate and if the discretion to order community service instead of imprisonment was appropriately exercised.

The court, Blow J, carefully considered the circumstances leading to the respondent's sentencing. It was noted that the respondent had a history of failing to lodge income tax returns and had repeatedly failed to appear in court. Despite this, the court found that the magistrate had discretion under the Crimes Act to order community service instead of imprisonment when a condition of a recognizance was breached. The court held that while the sentence was lenient, it was not manifestly inadequate given the circumstances and the principles governing prosecution appeals. The court emphasized that the legislative policy is to avoid imprisonment unless no other course is appropriate. Thus, the court concluded that the magistrate's decision to impose community service was reasonably open to him and dismissed the motion to review.

Orders