McCullough v OBG and MJW - [2012] TASSC 29

[2012] TASSC 29

COURT: SUPREME COURT OF TASMANIA

CITATION: McCullough v OBG and MJW [2012] TASSC 29

PARTIES:  McCULLOUGH, Constable Julie
  v
  OBG

MJW

FILE NO/S:  812/2011
DELIVERED ON:  30 May 2012
DELIVERED AT:  Hobart
HEARING DATE:  2 December 2011
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – Sentence asserted to be manifestly inadequate.

Justices Act 1959 (Tas), s107.
Quinn v Canning [1967] TASSC 37; DPP v NOP [2011] TASCCA 15, referred to.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  S C Karpeles
             First Respondent:  C G Rainbird
             Second Respondent  A Mignot
Solicitors:
             Applicant:  Director of Public Prosecutions
             First Respondent:  Craig Rainbird
             Second Respondent:  Legal Aid Commission of Tasmania
Judgment Number:  [2012] TASSC 29
Number of paragraphs:  33

Serial No 29/2012
File No 812/2011

CONSTABLE JULIE McCULLOUGH v OBG and MJW

REASONS FOR JUDGMENT TENNENT J

30 May 2012

This review relates to sentences imposed by Magistrate Dixon on OBG and MJW following each being found guilty of certain assaults arising out of events on the night of 31 December 2010. Each was a youth at the time of the offending and each was sentenced under the Youth Justice Act 1997 ("the Act"). The prosecutor seeks to review the sentences imposed on the ground that they were manifestly inadequate in all the circumstances. There were actually three grounds in the notice to review as filed. The third relating to asserted inadequacy of reasons was abandoned, and the second was conceded by counsel for the applicant to be, in effect, particulars of the asserted inadequacy of the sentence.

Background to sentences

On 11 February 2011, OBG was charged on complaint number 1421/11 with one count of common assault contrary to the Police Offences Act 1935, s35(1), (count 1), by punching, and one count of assault contrary to the Criminal Code, s184, (count 2), by kicking and punching. The incidents were said to have occurred on 31 December 2010. OBG was jointly charged with MJW and AWB on that complaint. OBG and AWB were also jointly charged on complaint number 1420/11 with two other counts of common assault. Count 1 alleged assault by kicking and punching, and count 2 alleged an assault by punching.

OBG and MJW both pleaded not guilty to all charges and the matters went to hearing.

As to OBG:

·his date of birth was 28 September 1994. He was therefore 16 at the time of the offending and sentence,
·on complaint 1420/11 he was found guilty of common assault by punching only (count 1),
·he was found not guilty of the second assault on the same complaint (count 2) and that charge was dismissed,
·on complaint 1421/11, he was found guilty of count 1 but only by pushing, and not guilty of count 2, which was dismissed,
·he therefore stood for sentence in relation to one common assault by punching and one common assault by pushing,
·on a global basis, the…

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.

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Details

Case: [2012] TASSC 29
Decision Date: 30 May 2012

CaseChat Overview and Summary

The appellant, McCullough, appealed against his conviction and sentence imposed by the Magistrates Court of Tasmania. The nature of the dispute was that McCullough was convicted of two charges related to driving offenses. He contested the adequacy of the sentence imposed, claiming it was manifestly inadequate. The appeal was heard in the Court of Criminal Appeal of Tasmania.

The legal issues before the court were whether the sentence imposed by the Magistrates Court was manifestly inadequate and whether the appeal process followed the required legal standards. The court needed to consider if the sentence was so inadequate that it amounted to a failure to administer justice. The appellant argued that the sentence did not reflect the seriousness of the offenses, while the respondent maintained that the Magistrates Court had exercised its discretion correctly.

The Court of Criminal Appeal reviewed the circumstances of the case, the nature of the offenses, and the sentence imposed. It considered the principles of sentencing and whether the sentence imposed was manifestly inadequate. The court found that the sentence did not reflect the seriousness of the offenses and amounted to a failure to administer justice. Consequently, the court allowed the appeal, quashed the conviction, and remitted the matter to the Magistrates Court for re-sentencing.

The court's final orders were that the appeal was allowed, the conviction was quashed, and the matter was remitted to the Magistrates Court of Tasmania for re-sentencing. The court did not interfere with the guilt findings but emphasized the need for a sentence that appropriately reflected the gravity of the offenses.

Orders