Mayne v Clark

[2022] TASSC 12

[2022] TASSC 12

COURT:                  SUPREME COURT OF TASMANIA

CITATION:             Mayne v Clark [2022] TASSC 12

PARTIES:  MAYNE, Tyler John
  v
  CLARK, Natalie

FILE NO:  LCA 3104/2021
DELIVERED ON:  23 February 2022
DELIVERED AT:  Hobart
HEARING DATE:  17 February 2022
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Whether sentence manifestly excessive – Sentence of two months' imprisonment imposed for two firearm possession offences – Possession was fleeting – Offences occurred 18 months prior to the sentencing date – Applicant had served substantial prison term since offending and was making progress with rehabilitation – Sentence manifestly excessive – Motion to review granted.

Firearms Act 1996 (Tas), ss 9 and 74.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
           Applicant:  P Monk
           Respondent:  J Greenwood
Solicitors:
           Applicant:  Tasmania Legal Aid
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2022] TASSC 12
Number of paragraphs:     20        

Serial No 12/2022

File No LCA 3104/2021

TYLER JOHN MAYNE v ACTING SERGEANT NATALIE CLARK

REASONS FOR JUDGMENT  ESTCOURT J
  23 February 2022

The motion to review

1. This is a motion by the applicant Tyler John Mayne to review a sentence of imprisonment imposed on him on 1 December 2021, by acting magistrate Mr S Mollard. The applicant was sentenced to two months' imprisonment (cumulative to a period of imprisonment he was already serving), on complaint 30076/2019, which alleged one count of possessing a firearm without a licence contrary to s 9(1) of the Firearms Act 1996, and possessing an unregistered firearm contrary to s 74(1) of that Act.

2. The grounds set out in the amended notice of review are as follows:

   "1The sentence imposed was manifestly excessive in all of the circumstances; and

   2The learned Magistrate erred by not imposing a community corrections order as a part of the sentence; and

   3The learned Magistrate erred by not affording procedural fairness to the Applicant when determining that the unchallenged explanation for the offending was 'not convincing'; and

   4The learned Magistrate erred by stating that the Applicant had received a term of imprisonment for similar previous offending on 25th September 2020."

3. Ground 4 was not pursued.

The relevant legal principles

1. The role of this Court in considering the question of manifest excess is well established. Magistrates have a very wide sentencing discretion, and an appellate court must not interfere unless a material error is shown (Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 per Kirby J at [57]-[60]). It must be shown that the sentence imposed is "unreasonable or plainly unjust" (Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, 28 Tas R 1 per Pearce J at [8], citing House v The King (1936) 55 CLR 499 at 505). The Court has no charter to "tinker" with sentences imposed (Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]).

2. An appellate court only sits to rectify a genuine error (Dinsdale v The Queen (above)) and that where, as here, no specific error is alleged the court must be persuaded that the sentence imposed is "unreasonable or plainly unjust" (House v The King (above)).  This requires something beyond being too lenient or too harsh.  It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of judicial discretion (Bresnehan v The Queen (1992) 1 Tas R 234).

The offending

1. The facts of the matter as outlined by counsel for the applicant, Ms Monk, in her written contentions, and accepted as accurate by counsel for the respondent, Ms Greenwood, are as follow:

   "·    On Wednesday 22 April 2020 at 4.35 pm the applicant was involved in a dangerous driving and evading police incident while driving an Audi A3 in Invermay in Launceston. He was arrested, charged and dealt with in this Court for that matter, and on 17 September 2020 was sentenced by Brett J to a total of 18 months' imprisonment.

   ·The vehicle was seized after his arrest, and at the police compound a firearm was located in a compartment underneath the driver's seat. The firearm was an air pistol, a category H firearm that resembled a .45 calibre Colt 1911 self-loading pistol.

   ·The firearm was forensically examined and the applicant's DNA was located on the trigger and barrel of the air pistol. He was not interviewed. He does not hold a firearms licence."

The plea in mitigation

1. In relation to the offending, the following matters were put to the learned magistrate on behalf of the applicant and were not challenged by the police prosecutor:

   ·    The applicant was sentenced to 18 months' imprisonment for the driving offences related to the vehicle in which the firearm was located.

   ·    The initial report from Tasmania Police identified the firearm as a "BB Gun". That identification subsequently changed and it was identified as an air pistol.

   ·    The vehicle containing the firearm was not owned by the applicant. He felt around under the seat while he was in possession of the vehicle and he felt the firearm, but his possession was fleeting.

   ·    The applicant was initially charged with a third count on the complaint in respect of which no evidence tendered – that charge was possessing a loaded firearm in public.

2. In relation to his personal circumstances, the following matters were raised in mitigation:

   ·    He was aged 28. He grew up in Tasmania and had a disadvantaged upbringing, where he was introduced to drugs at the age of 7. He suffered abuse whilst in government care. This set of circumstances has led to the lengthy criminal history that was acknowledged.

   ·    He lived his entire life in Launceston, and all his criminal contacts lived in Launceston. He did not have a very good relationship with Community Corrections in Launceston. To that end, in May 2021 he applied to move to southern Tasmania with a view to distancing himself from criminal peers and making a fresh start.

   ·    Since that move in May 2021, the applicant had made some significant steps towards rehabilitation. His parole officer, Veronica Young, was supportive of him and provided a letter to the court on his behalf demonstrating the steps that had been taken towards rehabilitation.

   ·    The applicant had built positive relationships with services in Hobart, and Ms Young was of the view that it was expected that he would continue to make positive progress towards recovery and desistance if subject to further supervision via a Community Corrections Order.

   ·    When his parole was revoked, he expressed gratitude to the Board for the support he had received from Community Corrections.

   ·    The applicant had been working with Louisa Straatsma from Sexual Assault Support Service (SASS), for three years whilst in custody and he was able to continue to engage with her face to face since his move to Hobart, with this therapeutic relationship and continuity of care considered an important support for the applicant in Ms Young's view.

   ·    He engaged with the suboxone program whilst on parole, with staff noting a marked improvement in his engagement over time. He had been referred on to additional support services after returning to custody, namely Beyond the Wire. 

   ·    A further Community Corrections Order, noting that the parole order was due to expire soon, would in Ms Young's view provide further opportunities to support the applicant's rehabilitation and reintegration, and to address his complex trauma informed issues that underlay his offending behaviours.

   ·    Ms Straatsma from the SASS provided a letter on the applicant's behalf. SASS had been working with the applicant since 2018.

   ·    She was of the view that the applicant had identified barriers to successful reintegration into the community, and had taken steps to address those barriers.

   ·    She noted that the complex history of the applicant, including trauma, institutionalisation and institutionalised abuse meant that the applicant requires appropriate support which cannot be provided in custody.

   ·    She wrote that the applicant had undertaken significant steps in his readiness and motivation to reintegrate into the community, and extended time in custody is detrimental to that process, and that the applicant was at a critical stage where he had both the support networks and the capacity to address his complex needs. 

The manifest excess ground

1. The applicant submits on this ground that Wood J in Director of Public Prosecutions v King [2020] TASCCA 8 summarised the law at [60] as follows:

   "Imprisonment is severe punishment (Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 627) and should be the last available punitive resort in any civilised system of criminal justice (Mainwaring v The Queen [2009] NSWCCA 207 at [71]). It is a fundamental principle of sentencing that a custodial sentence is a punishment of last resort and should not be imposed unless it is 'necessary', and when no other punishment is appropriate: Underwood v Schiwy [1989] TASRp 22; [1989] Tas R 269 per Nettlefold J; James v Turner [2006] TASSC 54, 15 Tas R 375 at [6] per Evans J; Parker v Director v of Public Prosecutions Public Prosecutions (1992) 28 NSWLR 282 at 296."

2. The applicant submits that that imprisonment was not necessary; that this was a case of fleeting possession of a firearm that had occurred some 18 months prior to the sentencing date; that he had spent a large portion of that time serving a sentence of imprisonment, and had then been on parole; that he had made significant progress in the latter half of his parole upon relocating to Hobart; that he had significant supports in place and was at a critical time in his life and that a Community Corrections Order was available and appropriate, and that a term of imprisonment "was not the last available punitive resort" available to the learned magistrate.

3. The respondent, on the other hand, submits that the sentence imposed was not manifestly excessive when having regard to all relevant sentencing factors.

4. The respondent points out that the penalties provided for by the Firearms Act for possessing a firearm when not the holder of a firearm licence of the appropriate category is a fine not exceeding 100 penalty units and/or, imprisonment for a term not exceeding two years, and that the penalties for possessing an unregistered firearm are a fine not exceeding 50 penalty units and/or, a term of imprisonment not exceeding two years.

5. The respondent submits, given the penalties available, a sentence of two months' imprisonment was open to the learned magistrate, notwithstanding that there were other sentencing options available to him. The respondent contends that this sentence "was not at the upper end of the options available" and it therefore does not follow that the sentence was "unreasonable or plainly unjust" or beyond the wide range of sentences available. The respondent submits that the sentence imposed was "appropriate in this situation and in respect to the applicant", that the learned magistrate considered all matters relevant to sentence when exercising his sentencing discretion, and that a relevant sentencing consideration was the seriousness of the offence (firearms offences are inherently serious which was highlighted by Wood J in Merrigan v Oakley [2016] TASSC 58 at [34]–[36]).

6. The respondent also points out that the applicant has a significant history of prior offending, which was conceded by the applicant's counsel in the plea in mitigation and in written submissions, namely: 

   ·    On 1 December 2010, in respect to complaint 35872/2009 the applicant, as a youth, had convictions recorded for pleas of guilty to one count of possessing ammunition when not the holder of the appropriate firearm licence, one count of possessing a shortened firearm, two counts of possessing a firearm when not the holder of a firearm licence of the appropriate category and one count of possessing an unregistered firearm.

   ·    On 17 September 2020 the applicant received a conviction recorded for one count of possessing ammunition when not the holder of the appropriate licence. (This formed a part of the sentence for, amongst other things, the dangerous driving charge referred to.)

   ·    On 25 September 2020 the applicant received a sentence of 14 days' imprisonment on complaint 31494/2020 in respect to one count of possessing a shortened firearm and one count of possess a firearm when not the holder of a firearm licence of the appropriate category.

7. The respondent concedes that the applicant had made some progress towards rehabilitation, as noted in the letters tendered to the learned magistrate and noted by him in his comments on passing sentence. It is the respondent's submission that these efforts were noteworthy, but were not overwhelming given they occurred over a relatively short period. Further, the respondent submits that the applicant's antecedents, the need for deterrence, the nature of the offences, and the need for punishment outweighed those factors.

Discussion and disposition

1. I cannot accept the respondent's submissions.

2. Despite any scepticism one might have as to the applicant's asserted fleeting possession of the firearm by merely touching it under the seat of a vehicle that did not belong to him, that was the factual basis for sentencing purposes.

3. Given that, and given the fact that the offending occurred some 18 months prior to sentencing and before the applicant had served a substantial prison term, it is my view that the learned magistrate should have given paramount consideration to the applicant's fraught personal circumstances and the solid progress he had made upon his relocation to Hobart and while in custody after his parole was revoked. To my mind this was very clearly a case that called for an individualised approach to punishment and not for a sentence of actual imprisonment.

4. The sentence was in my view plainly unreasonable and unjust.

5. Ground 1 of the notice of review is made out. I do not need to consider the remaining grounds of review. The motion is granted and I will hear counsel as to the orders sought.