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Merrigan v Oakley

Merrigan v Oakley

Case [2016] TASSC 58 19 October 2016

Appeal

Sentencing

Firearms and Drug Offences

Criminal Law

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[2016] TASSC 58

COURT: SUPREME COURT OF TASMANIA

CITATION: Merrigan v Oakley [2016] TASSC 58

PARTIES:  MERRIGAN, Phil (Constable)
  BARNES, Alisha (Constable)
  WILKIE, Scott (Senior Constable)
  v
  OAKLEY, Joshua Robin

FILE NO:  518/2016
DELIVERED ON:  19 October 2016
DELIVERED AT:  Hobart
HEARING DATES:  3, 4, 12, 31 May, 12, 18 October 2016
JUDGMENT OF:  Wood J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Sentence manifestly excessive or inadequate – Firearms and drug offences and unlawful possession – Sentence of nine months' imprisonment, six suspended manifestly inadequate.

Blake v Adams [2013] TASSC 44, (2013) 22 Tas R 295; Williams v Parker [2016] TASSC 39, referred to.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicants:  S Nicholson
             Respondent:  J Crotty
Solicitors:
             Applicants:  Director of Public Prosecutions
             Respondent:  James Crotty Barristers & Solicitors

Judgment Number: [2016] TASSC 58
Number of paragraphs: 55

Serial No 58/2016
File No 518/2016

CONSTABLE PHIL MERRIGAN, CONSTABLE ALISHA BARNES, SENIOR CONSTABLE SCOTT WILKIE v JOSHUA ROBIN OAKLEY

REASONS FOR JUDGMENT WOOD J

19 October 2016

On 2 February 2016 Joshua Robin Oakley was sentenced in the Magistrates Court for 21 offences contrary to the Firearms Act 1996, several drug offences, four offences of unlawful possession of property and one offence of breach of bail conditions. He was sentenced by Magistrate Webster to a term of imprisonment of nine months, with six months suspended on condition that he had to be of good behaviour for three years. The prosecution, identified as the applicants in these proceedings, seeks to review the sentence on the ground that it is manifestly inadequate. A number of issues were raised on the respondent's behalf regarding the charges contrary to the Firearms Act: whether the offences of possession or use of firearms without a licence as charged were known to exist; whether the respondent could properly be convicted of them, and that there had been no election by the respondent to the indictable offence of possession of stolen firearms contrary to s 107A of the Firearms Act. These issues receive some consideration but not all of them are properly raised for determination by an appeal confined to a review of the sentence. The primary question is whether the sentence is manifestly inadequate, revealing implicit error, such that it falls outside the bounds of the learned magistrate's wide sentencing discretion.

The offending

The respondent pleaded guilty to offences relating to three dates: 22 January 2015, 19 March 2015, and 18 November 2015.
The offences committed on 22 January 2015 are as follows:
· Four charges of possess a firearm when not the holder of a firearm licence of the appropriate category, contrary to s 9(1) of the Firearms Act. The firearms were a Harrington & Richardson .22 calibre revolver, a replica AK47 assault rifle, a replica M16 assault rifle and a replica Thompson machine gun.
· One charge of possess ammunition when not 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.

Continue reading Merrigan v Oakley

Details

AGLC: Merrigan v Oakley [2016] TASSC 58
Case: [2016] TASSC 58
Decision Date: 19 October 2016

CaseChat Overview and Summary

The matter before the court was an appeal from a sentencing decision made by a magistrate in Tasmania. The appellant, Merrigan, was found guilty of firearm and drug offences, as well as unlawful possession. The respondent, Oakley, was the magistrate who imposed a sentence of nine months imprisonment, with six months suspended. Merrigan sought a review of the sentence, arguing that it was manifestly inadequate.

The legal issues before the court were whether the sentence imposed was manifestly inadequate and whether the appeal should be allowed. The court considered the principles of sentencing in relation to firearm and drug offences, as well as the particular circumstances of the case. The court also considered the impact of the sentence on the community and the need for deterrence.

The court found that the sentence imposed was manifestly inadequate in light of the seriousness of the offences and the need for deterrence. The court noted that the sentence did not reflect the gravity of the offences or the harm caused to the community. The court also noted that the appellant had a history of offending and had shown little remorse for his actions. The court held that the appeal should be allowed and remitted the matter back to the original magistrate for resentencing. The court emphasised the need for a sentence that reflected the seriousness of the offences and the need for deterrence.

The final orders of the court were that the appeal be allowed and the matter be remitted to the original magistrate for resentencing. The court emphasised the need for a sentence that was proportionate to the seriousness of the offences and the need for deterrence. The court also noted that the original sentence did not adequately reflect the harm caused to the community and the need to protect the public.

Orders