Lefever & Smith v White - [2002] TASSC 19

[2002] TASSC 19

CITATION: Lefever & Smith v White [2002] TASSC 19

PARTIES:  LEFEVER, Peter James
  SMITH, Alan John
  v
  WHITE, Graham Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 30/2001

LCA 31/2001

DELIVERED ON:  18 April 2002
DELIVERED AT:  Launceston
HEARING DATE/S:  18 April 2002
JUDGMENT OF:  Evans J

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - General principles - Sentence manifestly excessive or inadequate - Fine.
Justices Act 1959 (Tas), s72B(4) and s76.
Police Offences Act 1935 (Tas), s43(2).
Sentencing Act 1997 (Tas), s43 and s68(1).
Reeves v Ranson [1999] TASSC 52, referred to.
Aust Dig Criminal Law [1003]

REPRESENTATION:

Counsel:
           Applicants:  In Person
           Respondent:  J P Ransom
Solicitors:
           Applicants:  In Person
           Respondent:  Director of Public Prosecutions

Judgment ID Number: [2002] TASSC 19
Number of paragraphs: 9

Serial No 19/2002
File No LCA 30/2001
LCA 31/2001

PETER JAMES LEFEVER and ALAN JOHN SMITH v GRAHAM ROSS WHITE

REASONS FOR JUDGMENT EVANS J
18 April 2002

When the applicants were together in the Gaming Room at the Launceston Country Club Casino, the applicant, Alan Smith, observed a wallet on the floor near some people playing poker machines. He picked up the wallet and he and the applicant, Peter Lefever, went to the foyer of the Casino where they rummaged through the wallet which contained $610. Without making any attempt to locate the wallet's owner they went to their vehicle, split the money and left, discarding the wallet as they drove away.

When approached by police in relation to their conduct they made full admissions. They were charged with stealing the wallet and each applicant pleaded guilty when he appeared in the Court of Petty Sessions to answer the charge. In the course of the sentencing hearing the court was informed that Mr Smith was a pensioner and had no prior convictions. As to Mr Lefever the court was provided with a record of his prior convictions which include traffic offences, two breathalyser offences and a conviction for assault. The court was informed that Mr Lefever was a sole parent of two small children and was on a pension.

Neither of the applicants were legally represented at the sentencing hearing. Each applicant was fined $2,000. After announcing the sentence the learned magistrate inquired of the applicants as to how long they needed to pay the fine. Mr Smith indicated three months and was granted that time. Mr Lefever said he needed at least 12 months. The learned magistrate's response was, "You're not getting it. It's meant to hurt and it's going to. Think again, tell me how long you need?" Upon Mr Lefever reducing his request to six months he was granted that period of time to pay.

Each applicant has appealed against the sentence imposed on him on the ground that it is manifestly excessive and that the learned magistrate did not pay proper regard…

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 Lefever & Smith v White

Details

AGLC: Lefever and Smith v White [2002] TASSC 19
Case: [2002] TASSC 19
Decision Date: 18 April 2002

CaseChat Overview and Summary

The Supreme Court of Tasmania dealt with an appeal from Peter James Lefever and Alan John Smith against the sentences imposed on them by the Court of Petty Sessions. Both applicants had pleaded guilty to stealing a wallet containing approximately $660 from the Launceston Country Club Casino. They were each fined $2,000. Lefever and Smith appealed on the grounds that the fines were manifestly excessive and that the magistrate had failed to take into account their personal circumstances, including their capacity to pay the fines.

The legal issues in this case centred on whether the fines imposed were manifestly excessive and whether the magistrate adequately considered the applicants' capacity to pay the fines. The court had to consider the sentencing principles laid out in the Sentencing Act 1997 (Tas) and whether the magistrate had erred in not considering the applicants' financial circumstances before imposing the fines.

Justice Evans determined that the magistrate had indeed erred in not considering the applicants' capacity to pay the fines. He noted that under the Sentencing Act, the court was required to consider whether each applicant had sufficient means to meet both the fine and any compensation order before imposing a fine. The magistrate had failed to do so, leading to the conclusion that the appeals should be allowed. Justice Evans also concluded that the $2,000 fine was manifestly excessive given the value of the stolen property and the sentencing history for similar offences.

The court allowed both appeals and set aside the sentences imposed by the magistrate. The case underscores the importance of considering an offender's financial circumstances and capacity to pay when imposing fines, as well as the need for fines to be proportionate to the offence committed.

Orders