M v Hibble - [2003] TASSC 13

[2003] TASSC 13

CITATION: M v Hibble [2003] TASSC 13

PARTIES:  M
  v
  HIBBLE, Kim

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 28/2002

LCA 29/2002

DELIVERED ON:  4 April 2003
DELIVERED AT:  Launceston
HEARING DATE/S:  26 March 2003
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Review of sentence - Wide discretion of magistrate - Whether propensity to reoffend a mitigating factor for shorter period of suspended sentence - Whether sentence manifestly excessive.
Whittle v McIntyre [1967] Tas SR (NC 6); Jones v Fleming [1957] Tas SR 1, applied.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  C J Gibson
           Respondent:  L Goodsell
Solicitors:
           Applicant:  AT Legals
           Respondent:  Director of Public Prosecutions

Judgment ID Number: [2003] TASSC 13
Number of paragraphs: 15

Serial No 13/2003
File No LCA 28/2002
LCA 29/2002

M v KIM HIBBLE

REASONS FOR JUDGMENT CRAWFORD J
4 April 2003

The applicant has applied to review sentences imposed against him in the Magistrate's Court (Youth Justice Division). His grounds are the same with respect to each of the motions to review. The first ground is that the learned magistrate failed to give due weight to the applicant's personal circumstances, including his intellectual disability, youth, lack of prior convictions and lack of subsequent offending. The second ground is that the sentence was manifestly excessive in all the circumstances. There was no dispute at the hearing that unless I am persuaded that the respective sentences were manifestly excessive, having regard in particular to the factors specified in the first ground, the motions must fail.

On complaint 27326/01 the applicant pleaded guilty to and was sentenced for three counts of aggravated burglary, seven counts of burglary, 10 counts of stealing associated respectively with the aggravated burglaries and burglaries, one count of stealing by finding and one count of receiving stolen property. Details of the offences, in their likely chronological order, are:

1On the night of 31 December 1999 the applicant and Patrick Simon Bailey entered as trespassers a Scottsdale house with intent to steal. They walked a short distance from Bailey's residence to do so. They gained entry through an unlocked window and once inside stole property worth about $2,370, that included two mobile phones, a baby monitor, a video cassette recorder and cassette, a CD stereo, a Game Boy console and games and a telescope. They returned to Bailey's residence where the property was hidden in bushland at the rear.
2On about 15 January 2000 the applicant found a BMX bicycle worth about $200 and decided to keep it for himself. He later repainted the bicycle in an attempt to disguise its appearance.
3Sometime between January and March 2000 Bailey gave to the applicant two Army-style life jackets, informing him that they had been stolen in a George Town burglary committed by Bailey. The applicant was instructed by Bailey to take the items to the rear of Bailey's residence and…

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 M v Hibble

Details

AGLC: M v Hibble [2003] TASSC 13
Case: [2003] TASSC 13
Decision Date: 4 April 2003

CaseChat Overview and Summary

The applicant, M, sought to review sentences imposed upon him by the Magistrate's Court (Youth Justice Division). M was convicted of multiple counts of aggravated burglary, burglary, stealing, receiving stolen property, and possessing a prohibited substance. The sentences were largely suspended, with conditions requiring M to refrain from further offences involving dishonesty for a period of two years. M challenged the sentences on the grounds that the magistrate failed to consider his personal circumstances, including his intellectual disability, youth, lack of prior convictions, and lack of subsequent offending, and that the sentences were manifestly excessive. The court was required to determine whether the magistrate's sentencing decision was an error in the exercise of discretion, given the wide latitude afforded to magistrates in sentencing matters. The court considered the nature and seriousness of the offences, M's personal circumstances, and the objectives of sentencing, particularly rehabilitation. The court found that the magistrate had appropriately considered M's circumstances and that the sentences were within the appropriate range for a 17-year-old offender, aimed at rehabilitation rather than punishment. The court dismissed both motions to review.

The court held that the magistrate's consideration of M's personal circumstances, including his intellectual disability and youth, was appropriate and that the sentences imposed were not manifestly excessive. The offences were serious, involving multiple burglaries and thefts over an 11-month period, and the community had a right to demand substantial punishment. However, the sentences were more focused on rehabilitation, with a condition that M not commit similar offences for two years, which the court deemed reasonable. The court emphasised that it was not entitled to substitute its opinion for that of the magistrate unless there was a clear error in the exercise of discretion. In this case, the court found no such error and dismissed both motions to review.

Orders