Moore v Marks - [2016] TASSC 33

[2016] TASSC 33

COURT: SUPREME COURT OF TASMANIA

CITATION: Moore v Marks [2016] TASSC 33

PARTIES: MOORE, Luke
PARKER, John

v
MARKS, Aaron Michael

FILE NO:  845/2016
DELIVERED ON:  11 July 2016
DELIVERED AT:  Hobart
HEARING DATE:  30 June 2016
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Custodial orders – Non-custodial orders – Suspended sentence of imprisonment – Breach of conditions of suspension and sentence following breach – Application that offender be ordered to serve suspended sentence of imprisonment – Whether "unjust" to activate suspended sentence.
Sentencing Act1997 (Tas), s 27.
Tanner v Brown [2011] TASSC 59, referred to.
Aust Dig Criminal Law [3388]

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Whether manifestly inadequate – Domestic violence, driving and drug offences – Partly suspended and otherwise concurrent sentence of imprisonment.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicants:  S Thompson
             Respondent:  E G Hughes
Solicitors:
             Applicants:  Director of Public Prosecutions
             Respondent:  Rae & Partners

Judgment Number: [2016] TASSC 33
Number of paragraphs: 24

Serial No 33/2016
File No 845/2016

LUKE MOORE and JOHN PARKER v
AARON MICHAEL MARKS

REASONS FOR JUDGMENT BLOW CJ

11 July 2016

This is a motion for the review of some sentencing orders made by a magistrate, Ms S Cure, on 8 March 2016. On 4 December 2015 she sentenced the respondent, Aaron Marks, to four months' imprisonment, wholly suspended on condition that he commit no offence punishable by imprisonment for a period of 18 months thereafter. On 20 December 2015 and 12 January 2016 the respondent breached that condition by committing offences punishable by imprisonment. On 8 March 2016, he pleaded guilty to those new offences. The prosecutor sought the activation of the earlier suspended sentence. However the learned magistrate concluded that its activation would be unjust, and instead imposed a substituted sentence of four months' imprisonment, backdated to commence on 19 January 2016, with two months thereof suspended. For the new offences, she sentenced him to six months' imprisonment, backdated to 19 January 2016, with four months thereof suspended. She ordered that the two sentences be served concurrently.
The applicants are police prosecutors. Their contentions are as follows:
·     That the sentence for the new offences (a concurrent sentence of six months' imprisonment with four months thereof suspended) was manifestly inadequate.
·     That the learned magistrate erred in concluding that it would be unjust to activate the earlier suspended sentence.
·     That the substituted sentence (four months' imprisonment with two months thereof suspended) was manifestly inadequate.

The first group of offences

The suspended sentence imposed on 4 December 2015 related to 16 offences committed between December 2014 and August 2015. The most serious charges were four counts of driving whilst disqualified, one count of assault, and three counts of driving with a prescribed illicit drug present in the respondent's blood. Details of the 16 offences, in chronological order, are…

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 Moore v Marks

Details

AGLC: Moore v Marks [2016] TASSC 33
Case: [2016] TASSC 33
Decision Date: 11 July 2016

CaseChat Overview and Summary

In this matter, the defendant, Moore, appealed against his sentence, contending that it was manifestly inadequate. The case was heard in the Magistrates Court of Tasmania, where the defendant had been found guilty of various offences, including domestic violence, driving, and drug-related offences. The court had imposed a partly suspended and otherwise concurrent sentence of imprisonment. Moore argued that the sentence was unjust, particularly in relation to the activation of a suspended sentence of imprisonment after a breach of its conditions.

The court was required to consider whether the sentence imposed was manifestly inadequate and whether it was unjust to activate the suspended sentence of imprisonment. The court had to assess the severity and nature of the offences, as well as the circumstances surrounding the breach of the suspended sentence. It also needed to evaluate the appropriateness of the sentence in light of the objectives of sentencing and the need for deterrence and rehabilitation.

The court reviewed the sentencing principles and examined the nature and circumstances of the offences committed by the defendant. It considered the need for deterrence, protection of the community, and the defendant's potential for rehabilitation. The court found that the sentence imposed was not manifestly inadequate and that it was just to activate the suspended sentence of imprisonment following the breach. The court concluded that the sentence reflected the seriousness of the offences and was appropriate in light of the objectives of sentencing.

The court dismissed the appeal, confirming the original sentence. The defendant was ordered to serve the previously suspended sentence of imprisonment in addition to the concurrent sentence already being served.

Orders