McKenna v Roughan - [2019] TASSC 23

[2019] TASSC 23

COURT: SUPREME COURT OF TASMANIA

CITATION: McKenna v Roughan [2019] TASSC 23

PARTIES:  McKENNA, Troy Matthew
  v
  ROUGHAN, Anthony

FILE NO:  578/2019
DELIVERED ON:  14 May 2019
DELIVERED AT:  Launceston
HEARING DATE:  14 May 2019
JUDGMENT OF:  Brett J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Whether sentence manifestly excessive – Applicant pleaded guilty to one count of common assault and was sentenced to one month imprisonment wholly suspended – Offender's first offence – Sentence was appropriate in the circumstances and within the sentencing discretion of the magistrate – Sentence not manifestly excessive.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
           Applicant  M Doyle
           Respondent:  L Ogden
Solicitors:
           Applicant:  Clarke & Gee Lawyers
           Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASSC 23
Number of paragraphs: 10

Serial No 23/2019
File No 578/2019

TROY MATTHEW McKENNA v SERGEANT ANTHONY ROUGHAN

REASONS FOR JUDGMENT BRETT J

14 May 2019

This is my decision in respect of a motion to review a sentence imposed by Magistrate Stanton on the applicant on 20 February 2019. The applicant had pleaded guilty to one count of common assault, committed on 1 November 2018. His Honour convicted him of the offence and imposed a sentence of one month's imprisonment wholly suspended for 12 months, on condition that he not commit another offence punishable by imprisonment during that period. He was also ordered to pay costs and levies. The sole ground of review is that the sentence is manifestly excessive.
The test to be applied in determining a review on such a ground is well established. The Court must not substitute its own opinion, but may only interfere with the sentence if error in the exercise of the sentencing discretion can be inferred because the sentence is obviously excessive, or "unreasonable or plainly unjust", so that the only conclusion which can be drawn is that the sentencing discretion must have miscarried in some undefined way. See Barrett v Wilson [2015] TASSC 3, 69 MVR 333, Pearce J at [9].
The factual basis of the sentence, which was put to the magistrate by the prosecution, was qualified to some extent by the applicant's counsel in the plea in mitigation. The factual basis upon which sentence was imposed by the magistrate was ultimately in accordance with the version provided by the defence. This was not challenged by the prosecution at the time, and is not challenged by the respondent on this motion. The applicable factual basis of the sentence is as follows.
The complainant was sitting at the bar of a hotel having a drink when he was approached by the applicant and the co-accused. They asked him to confirm his first name. He offered his hand in greeting. The co-accused shook his hand and said "This is what you done to Emma". It was explained to the magistrate that Emma was a friend of the applicant and the co-accused, 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 McKenna v Roughan

Details

AGLC: McKenna v Roughan [2019] TASSC 23
Case: [2019] TASSC 23
Decision Date: 14 May 2019

CaseChat Overview and Summary

McKenna v Roughan is a case where the respondent, McKenna, sought a review of a sentence imposed by a Tasmanian magistrate. The respondent had pleaded guilty to one count of common assault and was sentenced to one month imprisonment, wholly suspended. The respondent contended that the sentence was manifestly excessive and sought a review. The primary focus of the appeal was whether the sentence was appropriate given it was the respondent's first offence.

The legal issue before the court was to determine if the sentence imposed was manifestly excessive. The court was required to consider the appropriateness of the sentence in light of the respondent's first offence and the discretion afforded to the magistrate under the relevant sentencing laws. The court also needed to assess whether the sentence fell outside the range of what could be considered a reasonable or appropriate punishment for the offence committed.

In determining the matter, the court examined the circumstances surrounding the offence and the respondent's background. The court acknowledged that it was the respondent's first offence but also considered the seriousness of the assault. The court held that the sentence was appropriate and within the sentencing discretion of the magistrate, and therefore, it was not manifestly excessive. The court emphasised that the sentence reflected the appropriate balance between punishment and rehabilitation, given the nature of the offence and the respondent's first-time offender status.

The court dismissed the application for review, concluding that the sentence was neither manifestly excessive nor inappropriate. No further orders were made by the court.

Orders