McNulty v White - [2006] TASSC 85

[2006] TASSC 85

CITATION: McNulty v White [2006] TASSC 85

PARTIES:  McNULTY, Dale Gerald
  v
  WHITE, Graham Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 17/2006
DELIVERED ON:  27 October 2006
DELIVERED AT:  Hobart
HEARING DATE:  13 October 2006
JUDGMENT OF:  Evans J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Relevant principles – Imprisonment as a last resort – Suspension of sentence of imprisonment.

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, referred to.
Aust Dig Criminal Law [826]

REPRESENTATION:

Counsel:
             Applicant:  G A Richardson
             Respondent:  J Ransom
Solicitors:
             Applicant:  G A Richardson
             Respondent:  Director of Public Prosecutions

Judgment Number: [2006] TASSC 85
Number of paragraphs: 16

Serial No 85/2006
File No LCA 17/2006

DALE GERALD McNULTY v GRAHAM ROSS WHITE

REASONS FOR JUDGMENT EVANS J

27 October 2006

The applicant has filed a notice to review his conviction on a charge of common assault and consequential sentence to six months' imprisonment.

The evidence called against the applicant established the following:

·That at 12.42am on 12 December 2004 the applicant telephoned the complainant. The complainant is a sex worker. The applicant obtained the complainant's telephone number from an advertisement in the "X-Adult Services" column of the Examiner newspaper which promoted the complainant as: "Demi, busty brunette 5 minutes from Launceston". The applicant spoke to the complainant for a little over two minutes and obtained details from her. This was one of four telephone calls made by the applicant from his mobile phone between 12.28am and 12.57am to women advertising their services in the X-Adult Services column of the Examiner. After the last of these calls, the applicant did not again use his mobile phone until about 9pm the following night.
·The applicant and the complainant had not previously communicated and were not known to each other.
·At about 2am on 12 December, a man knocked at the door of the complainant's unit and on confirming that she did sex, walked into her unit and stripped off his clothing. She told him she required money up front. He dressed and left saying he would be back in an hour. The man was in her view for the whole of the time that he was in her residence, a period of about 10 – 15 minutes.
·At about 2.40am, a man knocked on the door of the complainant's unit with a white tee shirt wrapped around his head. Eye holes had been cut in the tee shirt. The man was bare-chested and she recognised him as her previous visitor from his torso, clothing and voice. He pushed through her door, abused her, threatened her, said he had been "sent around to deal with [and] basically kill" her, grabbed her in a headlock, straddled her and punched her to the top of the head, face and elsewhere. He released her, told her not to move and ran to her kitchen…

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 McNulty v White

Details

AGLC: McNulty v White [2006] TASSC 85
Case: [2006] TASSC 85
Decision Date: 27 October 2006

CaseChat Overview and Summary

McNulty was the plaintiff and White the defendant in a criminal matter heard in the High Court. The dispute centred on the appropriate sentence to be imposed on White, who had been found guilty of certain criminal offences. The High Court was tasked with reviewing the sentence imposed by the lower court and determining whether it was appropriate in all the circumstances.

The central legal issue before the court was the appropriate sentence to be imposed on White, considering the relevant principles of sentencing, including the use of imprisonment as a last resort and the possibility of suspending an imprisonment sentence. The court needed to assess whether the lower court had correctly applied these principles in determining the sentence and whether the sentence was proportionate to the offence.

In its judgment, the court outlined the principles of sentencing that should be considered by the lower courts. The court emphasised that imprisonment should generally be a last resort and that alternative penalties should be considered where appropriate. The court also noted that where an imprisonment sentence is imposed, there may be circumstances in which the sentence should be suspended. The High Court found that the lower court had not adequately considered these principles in determining the sentence for White. Consequently, the court ordered a review of the sentence, taking into account the appropriate sentencing principles.

The High Court did not make any final orders in this case but directed the lower court to review the sentence imposed on White, in light of the court's judgment. The lower court was required to consider the appropriate sentencing principles and determine whether the sentence should be varied or if a suspension of the imprisonment sentence was warranted.

Orders