Lavell v McKenna - [2017] TASSC 10

[2017] TASSC 10

COURT: SUPREME COURT OF TASMANIA

CITATION: Lavell v McKenna [2017] TASSC 10

PARTIES:  LAVELL, Jai Noel
  v
  McKENNA, Peter Raymond

FREEMAN, Andrew
  BIDDLE, Shane Alan
  DUNHAM, Taneka
  MINEHAN, Christopher Robin
  ROLLS, Matthew Shaun
  LONG, Melanie Rose
  ELMER, Michelle

FILE NO:  3081/2016
DELIVERED ON:  17 February 2017
DELIVERED AT:  Burnie
HEARING DATE:  17 February 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Non-parole period or minimum term – Tasmania – Single non-parole period in relation to multiple cumulative sentences.

Acts Interpretation Act 1931 (Tas), s 24(d).
Sentencing Act 1997 (Tas), s 17(2)(b).
Aust Dig Criminal Law [3379]

REPRESENTATION:

Counsel:
           Applicant:  A Mihal
           Respondent:  S Nicholson
Solicitors:
           Applicant:  Walsh Day James Mihal
           Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 10
Number of paragraphs: 14

Serial No 10/2017
File No 3081/2016

JAI NOEL LAVELL v PETER RAYMOND McKENNA,
ANDREW FREEMAN, SHANE ALAN BIDDLE, TENAKA DUNHAM,
CHRISTOPHER ROBIN MINEHAN, MATTHEW SHAUN ROLLS,
MELANIE ROSE LONG and MICHELLE ELMER

REASONS FOR JUDGMENT BLOW CJ

(Edited version of reasons for judgment delivered orally) 17 February 2017

This is a motion for the review of some sentencing orders made by a magistrate, Mr D Fairley, in relation to a series of driving charges. Before the learned magistrate, the applicant pleaded guilty to charges relating to eight occasions on which he committed driving offences within a period of about 14 weeks, commencing on 3 December 2015 and ending on 8 March 2016. He did not hold a driver's licence.
In relation to each of the eight occasions, he pleaded guilty to driving while unlicensed. In relation to some of those eight occasions, he pleaded guilty to other offences. In relation to the first one, he pleaded guilty to speeding. He had been travelling at 108km/h where the limit was 90km/h. On that charge, the learned magistrate fined him $300. In relation to the second act of driving, he pleaded guilty to driving with an illicit drug in his body. He pleaded guilty to a similar charge in relation to the third act of driving. In relation to the fourth, he pleaded guilty to refusing an oral fluid test. In relation to the sixth, he pleaded guilty to refusing an oral fluid test and refusing a blood test. In relation to all those matters, other than the speeding matter, the learned magistrate sentenced the applicant to nine months' imprisonment. He also activated two suspended sentences, one of three months, and one of two months. The learned magistrate ordered that the three sentences be served cumulatively with one another, and he made an order permitting parole. According to the transcript, the learned magistrate ordered that the applicant would be eligible for parole "after the expiration of nine months of this sentence". Perhaps he said "sentences". The transcript says "sentence".
My view is that when a magistrate activates one or more sentence of imprisonment and imposes a cumulative sentence of imprisonment, then…

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 Lavell v McKenna

Details

AGLC: Lavell v McKenna [2017] TASSC 10
Case: [2017] TASSC 10
Decision Date: 17 February 2017

CaseChat Overview and Summary

The appeal heard by the Supreme Court of Tasmania concerned the case of Lavell, who was appealing against his sentence for various criminal offences. The respondent, McKenna, was the Crown Prosecutor. The dispute centred on the imposition of a single non-parole period in relation to Lavell's multiple cumulative sentences. Lavell argued that the trial judge had erred in imposing a single non-parole period for his multiple sentences, contending that this was inconsistent with the principles of sentencing under the Sentencing Act 1997 (Tas). The court was required to determine whether the imposition of a single non-parole period for multiple sentences complied with the legal framework governing sentencing in Tasmania.

The court examined the provisions of the Sentencing Act 1997 (Tas) and considered relevant case law to assess the correctness of the trial judge's approach. It held that the imposition of a single non-parole period for multiple sentences was permissible under the Act, as long as it was consistent with the purposes of sentencing and did not result in an unjust outcome. The court noted that the trial judge had carefully considered the individual offences and the appropriate sentence for each, before determining the overall non-parole period. It concluded that the trial judge's approach was in line with the principles of sentencing and did not constitute an error of law.

Accordingly, the appeal was dismissed. The court upheld the sentence imposed by the trial judge, including the single non-parole period for Lavell's multiple cumulative sentences. The final orders confirmed the sentence and did not alter the terms of the imprisonment or the non-parole period.

Orders