Lynch v Turner - [1999] TASSC 88

[1999] TASSC 88

CITATION: Lynch v Turner [1999] TASSC 88

PARTIES:  LYNCH, Terrence Michael
  v
  TURNER, Paul John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 14/1999
DELIVERED ON:  6 August 1999
DELIVERED AT:  Launceston
HEARING DATE:  6 August 1999
JUDGMENT OF:  Cox CJ

CATCHWORDS:

[Edited reasons given orally]

REPRESENTATION:

Counsel:
           Appellant:  J Kitto
           Respondent:  J Ransom
Solicitors:
           Appellant:  Beeton & Mansell
           Respondent:  Director of Public Prosecutions

Judgment Number: [1999] TASSC 88
Number of paragraphs: 7

Serial No 88/1999
File No LCA 14/1999

MICHAEL TERRENCE LYNCH v PAUL JOHN TURNER

REASONS FOR JUDGMENT COX CJ
(DELIVERED ORALLY) 6 August 1999

The applicant seeks to set aside a penalty of one month's imprisonment imposed in June this year for one count of stealing. The offence was one of shoplifting and it involved the unlawful removal from a department store of a pair of sandshoes valued at $109. The applicant was observed concealing them under his jacket and walking out of the shop without paying for them. He was immediately apprehended and found in possession of them. Having been caught red-handed he made an immediate admission and he pleaded guilty in the court of petty sessions. He also pleaded guilty to two other counts, one of trespass and one of injury to property.

In sentencing him the learned magistrate remarked "these offences took place and I note that you have a history of offending, although for offences of burglary and stealing, and I also note that you apparently, from what your counsel has said, have been making strenuous efforts to amend your ways. However, notwithstanding that there appears to be a consistency of offending, and these particular offences unfortunately cannot be viewed other than as a continuation of a general pattern of offending." Criticism is made of these comments.

The applicant has a significant record of offences of dishonesty, repeated notwithstanding the imposition of penalties by the courts. I leave out of account matters in the children's court but note that in July and October 1994 he was convicted of stealing twice, and placed on probation for 12 months from October 1994. Seven days later he committed a burglary and stealing for which he was before the court in April 1995, along with two other matters. He received 119 hours of community service. Seventeen months later, in September 1996, he again stole twice and in the following February, he was convicted and fined in two separate court appearances in relation to those particular offences of stealing. In March 1997, he was given a wholly suspended sentence of six weeks' imprisonment for burglary and stealing in July 1995, and another four weeks' imprisonment, suspended, for an offence of burglary and stealing in December 1996. In March 1997, he received yet another four weeks' imprisonment, wholly suspended, for another burglary and stealing, which had occurred in February 1995, and in October 1997, 21 hours of community service for stealing in March 1997.

This offence occurred in November 1998 while he…

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 Lynch v Turner

Details

AGLC: Lynch v Turner [1999] TASSC 88
Case: [1999] TASSC 88
Decision Date: 6 August 1999

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Terrence Michael Lynch, the appellant, sought to overturn a one-month imprisonment sentence imposed for stealing, which was one count of shoplifting a pair of sandshoes valued at $109 from a department store. Lynch was apprehended immediately after concealing the shoes under his jacket and attempting to leave the store without paying. He pleaded guilty and was also convicted of trespass and injury to property. The court's attention was drawn to Lynch's significant history of dishonesty offences, despite previous penalties imposed by the courts.

The legal issues before the court involved whether the penalty imposed was disproportionate to the offence and whether the magistrate erred in considering Lynch's prior criminal record in sentencing. The appellant argued that the penalty was excessive and punitive, focusing on his past rather than the current offence. The court examined whether the penalty was appropriate in light of the principles set out in Veen v R, which outline the considerations when taking into account an offender's previous criminal history.

The court found that the penalty, while severe, was not disproportionate to the offence given the circumstances. The learned magistrate had rightly observed that previous penalties, including community service orders and suspended sentences, had failed to deter Lynch. The court concluded that the magistrate's assessment that a deterrent penalty was necessary was not erroneous, and therefore dismissed the appeal.

No specific final orders are mentioned in the judgment. However, the dismissal of the appeal implies that the original penalty of one month's imprisonment remains in effect.

Orders