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

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.
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."
Ground 4 was not pursued.

The relevant legal principles

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]).
An appellate court only sits to rectify a genuine error (Dinsdale v…

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 Mayne v Clark

Details

AGLC: Mayne v Clark [2022] TASSC 12
Case: [2022] TASSC 12
Decision Date: 23 February 2022

CaseChat Overview and Summary

In the matter of Mayne v Clark, the applicant sought a review of a sentence imposed by the Magistrates Court of Tasmania. The applicant was found guilty of possessing two firearms and was sentenced to two months imprisonment. The applicant sought a review of the sentence, arguing it was manifestly excessive. The appeal hinged on several factors, including the fleeting nature of the possession, the applicant's progress in rehabilitation, and the substantial time already served in custody.

The legal issues before the court included whether the sentence was manifestly excessive, considering the circumstances of the case and the principles of sentencing. The court had to assess the proportionality of the sentence in light of the applicant's rehabilitation efforts and the time already served. Additionally, the court needed to determine if the sentence was disproportionate to the fleeting nature of the possession offence.

The court found that the sentence was manifestly excessive. The possession was fleeting, and the applicant had already served a substantial term in prison since the offence. Furthermore, the applicant was making significant progress with their rehabilitation, which was a critical factor in the court's decision. The court concluded that the sentence did not adequately reflect the circumstances of the case and granted the motion to review. The court's decision was based on the need for proportionality in sentencing, considering the applicant's rehabilitation and the nature of the offence. The sentence was deemed manifestly excessive, and the motion to review was granted.

Orders