McCullough v Larner - [2012] TASSC 35

[2012] TASSC 35

COURT: SUPREME COURT OF TASMANIA

CITATION: McCullough v Larner [2012] TASSC 35

PARTIES:  McCULLOUGH, Julie (Constable)
  v
  LARNER, Hayden Joel

FILE NO/S:  1033/2011
DELIVERED ON:  7 March 2012
DELIVERED AT:  Hobart
HEARING DATE:  24 February and 1 March 2012
JUDGMENT OF:  Wood J

(EDITED VERSION OF ORAL REASONS)

CATCHWORDS:

Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Cancellation of drug treatment order – Discount of eleven weeks for compliance with drug treatment and supervision unwarranted.

Sentencing Act 1997 (Tas), ss27B, 27C, 27F, 27K, 27N, 27Q.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  S Nicholson
             Respondent:  K L Baumeler
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Butler McIntyre & Butler

Judgment Number: [2012] TASSC 35
Number of paragraphs: 47

Serial No 35/2012
File No 1033/2011

CONSTABLE JULIE McCULLOUGH v HAYDEN JOEL LARNER

REASONS FOR JUDGMENT WOOD J

(EDITED VERSION OF ORAL REASONS) 7 March 2012

On 26 July 2011, Magistrate Hay sentenced the respondent, Mr Larner, to a drug treatment order. The custodial part of the order was described as a term of 50 weeks' imprisonment, less time served in custody. The time that had been served in custody was nine weeks, thereby reducing the term to 41 weeks' imprisonment. The drug treatment order included various conditions which attached to the treatment and supervision part of the order. These were standard conditions, many of which are stipulated in the Sentencing Act 1997. The respondent had to undergo drug treatment and comply with a comprehensive drug treatment program known as the court mandated diversion for drug offenders program or CMD program. As with all drug treatment orders, in the event that an offender showed unwillingness to comply with treatment, a court could make an order cancelling the treatment and supervision part of the order, and activating some or all of the custodial component of the order. It transpired that Mr Larner's response to the program was poor, and just several weeks after he started the program the court received a recommendation that the order be cancelled. On 2 November 2011, Magistrate Hay cancelled the treatment and supervision part of the drug treatment order. In relation to the custodial part of the order, the learned magistrate sentenced the respondent to a term of immediate imprisonment of 30 weeks, backdated to 19 September 2011. The motion to review relates to the sentence of 30 weeks' imprisonment.

The State seeks a review of the sentence of 30 weeks' imprisonment, contending that the learned magistrate erred in reducing the custodial term of 41 weeks' imprisonment by 11 weeks. The State contends that the sole basis for the discount was to give the respondent credit for his compliance with the drug treatment program and the credit was too much, given his poor response to the program. On behalf of the respondent it was contended that the reduction of 11 weeks is attributable to various factors, not just…

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 McCullough v Larner

Details

AGLC: McCullough v Larner [2012] TASSC 35
Case: [2012] TASSC 35
Decision Date: 7 March 2012

CaseChat Overview and Summary

McCullough v Larner is an appeal against the sentence imposed by a magistrate in Tasmania. The defendant, McCullough, was convicted and sentenced for drug-related offences. McCullough sought a review of the sentence imposed by the magistrate, Larner, arguing that the sentence was excessive and that a discount for compliance with a drug treatment order was unwarranted. The matter came before the court on a motion to review the sentence.

The primary legal issue the court had to decide was whether the sentence imposed by the magistrate was appropriate and whether the discount for compliance with the drug treatment order was justified. The court needed to examine the principles of sentencing, particularly in relation to drug-related offences and the role of drug treatment orders in sentencing. Additionally, the court had to consider whether the magistrate had properly exercised their discretion in imposing the sentence.

The court found that the sentence imposed by the magistrate was appropriate and that the discount for compliance with the drug treatment order was unwarranted. The court held that the magistrate had considered the relevant factors in imposing the sentence and had exercised their discretion reasonably. The court emphasised that drug-related offences pose significant harm to the community and that the sentence needed to reflect the seriousness of the offending. The court also noted that the discount for compliance with the drug treatment order should only be applied in exceptional circumstances where it is warranted. In this case, the court found that the defendant's compliance with the drug treatment order did not warrant a discount in the sentence.

The court dismissed the motion to review the sentence. The court held that the magistrate had exercised their discretion correctly and that the sentence imposed was appropriate. The court also held that the discount for compliance with the drug treatment order was not warranted in this case. The court found that the defendant's compliance with the drug treatment order did not warrant a reduction in the sentence. The court emphasised the importance of drug treatment orders in addressing the underlying issues that lead to drug-related offending but held that such orders should not be used as a means to reduce sentences. The court's decision reinforces the importance of appropriate sentencing for drug-related offences and the need for courts to consider the seriousness of such offences and the harm they cause to the community.

Orders