McShane v Ashwood - [2016] TASSC 50

[2016] TASSC 50

COURT: SUPREME COURT OF TASMANIA

CITATION: McShane v Ashwood [2016] TASSC 50

PARTIES:  McSHANE, Aaron Charles
  v
  ASHWOOD, Michael (Sergeant)

FILE NO:  2075/2016
DELIVERED ON:  28 September 2016
DELIVERED AT:  Hobart
HEARING DATE:  22 September 2016
JUDGMENT OF:  Tennent J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Custodial orders – Other matters – Application relating to breach of an order suspending a sentence of imprisonment - Whether "unjust" to activate suspended sentence.

Sentencing Act 1997 (Tas), s 27(4B) and (4C).
Aust Dig Criminal Law [3352]

REPRESENTATION:

Counsel:
             Applicant:  A Slicer
             Respondent:  E Bill
Solicitors:
             Applicant:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2016] TASSC 50
Number of paragraphs: 25

Serial No 50/2016
File No 2075/2016

AARON CHARLES McSHANE v SERGEANT MICHAEL ASHWOOD

REASONS FOR JUDGMENT TENNENT J

28 September 2016

In 2012 and 2013, the applicant was charged with a number of offences on complaints numbered 6952/12, 7189/12 and 2322/13. After considerable delays, the applicant's matters were considered in a contest mention court before a magistrate, and the applicant was offered and accepted a sentence indication. On 10 July 2014, the applicant pleaded guilty to, and was sentenced globally in respect of, the charges on the three complaints. The global sentence was one of nine months' imprisonment which was wholly suspended for a period of three years. The offences on the complaints were as follows:
6952/12 (offending May, June and July 2012)
Possess controlled plant or its products, namely cannabis
Possess controlled plant or its products, namely poppy capsules
Cultivating controlled plant, namely cannabis
Possess a controlled drug, namely methylamphetamine
Possess a controlled drug, namely psilocybine
Selling a controlled plant, namely cannabis
Attempt to unlawfully import a controlled substance, namely methadone
7189/12 (offending July 2012)
Unlawfully import a controlled substance, namely methadone
2322/13 (offending February 2013)
Possess a firearm when not the holder of a licence
Possess an unregistered firearm
Possess loaded firearm in a vehicle in a public place
Possess shortened firearm
In 2015, the applicant committed three offences which were punishable by imprisonment. He was charged on three separate complaints, namely 8835/15, 91011/15 and 8458/15. These related to the following offences (the breaching offences):
8835/15 (date of offending 25 July 2015)
Drive a motor vehicle while a prescribed illicit drug was present in blood, namely methylamphetamine contrary to the Road Safety (Alcohol and Drugs) Act 1970 (the RSAD Act), s 6A(1)
91011/15 (date of offending 8 July 2015)
Drive a motor vehicle while a prescribed illicit drug was present in blood, namely methylamphetamine
8458/15 (date of offending 5 August 2015)
Drive a motor vehicle while a prescribed illicit drug was present in blood, namely methylamphetamine
On 26 May 2016, the applicant pleaded guilty to all three breaching offences, and was sentenced on 30 June 2016. At the same time, the sentencing magistrate dealt with an application pursuant to the Sentencing Act 1997 (the Act), s 27, for the applicant to be dealt with for…

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 McShane v Ashwood

Details

AGLC: McShane v Ashwood [2016] TASSC 50
Case: [2016] TASSC 50
Decision Date: 28 September 2016

CaseChat Overview and Summary

In McShane v Ashwood, the respondent, McShane, was convicted of a crime and received a custodial sentence. However, this sentence was suspended, and McShane was placed under a supervision order. Subsequently, McShane was charged with breaching the conditions of this supervision order. The primary issue before the court was whether it was just to activate the suspended sentence and impose the custodial term originally handed down.

The court considered whether it was appropriate to activate the suspended sentence in light of McShane's breach of the supervision order. It was necessary to assess whether the original sentence was intended as a deterrent and whether there was any significant change in circumstances since the original sentencing that would warrant a different outcome. The court also weighed the principles of proportionality and the potential impact of re-incarceration on McShane and his family.

Ultimately, the court determined that it was not just to activate the suspended sentence. The reasoning was grounded in the principles of proportionality and the discretion afforded to the court under the sentencing legislation. The court found that the original sentence was intended to be a deterrent and that there had been no significant change in McShane's circumstances that warranted a different outcome. Consequently, the court dismissed the application to activate the suspended sentence.

No specific orders were made beyond the dismissal of the application to activate the suspended sentence.

Orders