Murfet v Crawford - [1991] TASSC 153

Serial No B39/1991
List "B"

COURT: SUPREME COURT OF TASMANIA

CITATION: Murfet v Crawford [1991] TASSC 153; B39/1991

PARTIES:  MURFET, Kevin Geoffrey
  v
  CRAWFORD, Mark Anthony

FILE NO/S:  LCA 16/1991
DELIVERED ON:  1 August 1991
JUDGMENT OF:  Slicer J
CATCHWORDS

Sentence — Proportionate to gravity of offence — Considerations affecting use of suspended sentence.

Judgment Number: B39/1991
Number of paragraphs: 7

Serial No B39/1991
File No LCA 16/1991

KEVIN GEOFFREY MURFET
v MARK ANTHONY CRAWFORD

REASONS FOR JUDGMENT SLICER J

1 August 1991

The question raised by this Motion to Review is whether, in the event of the commission of a crime involving a trivial amount of money, a court is entitled to impose a sentence of imprisonment (albeit suspended) in circumstances where the offender has a relatively minor record.

The contention is that the sentence was clearly disproportionate to the gravity of the offence and should not, in any case, be more than that commensurate with the offence whatever be the previous record of the offender. The fact that the sentence is then suspended does not affect the proposition.

I agree with that contention and adopt the comments of Nettlefold J in R v Percy [1975] Tas SR 62 at pp72–73 when he said:

"A suspended sentence is the penultimate weapon in the extensive armoury of graduated penalties available ..... for the punishment of crime. Respectfully, I subscribe entirely to the view that a suspended sentence should not be imposed as a 'soft option' when 'the court is not quite certain what to do', or 'when' but for the power to give a suspended sentence, a probation order was the proper order to make"'.

His Honour went on to subscribe to a further quotation from the judgment in O'Keefe v The Queen (1969) 53 Cr App R 91 in which it was said:
"Therefore, it seems to the Court that before one gets to a suspended sentence at all, a court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fine, and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment: is immediate imprisonment required, or can I give a suspended sentence?"

In this case the applicant was charged jointly with his wife with theft from a shop. His theft amounted to four rolls of sticky tape, one chocolate bar and one butter–scotch roll to a value less than $3. His record of convictions contained four previous court appearances as a result of offences of dishonesty, such appearances being in 1973, 1983, 1986 and 1989. In October 1989 the applicant was placed on a twelve month good behaviour bond following the improper and undisclosed use of his wife's tax cheque which resulted in her obtaining a fresh cheque. It was put to the court that he was an invalid pensioner aged 41 who suffered from a number of disabilities including alcohol induced brain damage. At the time of 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 Murfet v Crawford

Details

AGLC: Murfet v Crawford [1991] TASSC 153
Case: [1991] TASSC 153
Decision Date: 1 August 1991

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Murfet v Crawford involved a motion to review the sentence imposed by the Court of Petty Sessions. Kevin Geoffrey Murfet sought to challenge the appropriateness of the sentence, which was a suspended term of imprisonment, imposed for a theft involving items valued at less than $3. The court had to determine whether the sentence was proportionate to the gravity of the offence and whether the imposition of a suspended sentence was justified. The second ground of the motion argued that the sentencing was discriminatory, as Murfet's wife, who was jointly charged, received a different sentence. The court considered the arguments and found that the sentence was disproportionate to the offence, given the relatively minor nature of the theft and the applicant's history of previous convictions. The court highlighted that a suspended sentence should not be used as a 'soft option' when a court is uncertain about the appropriate punishment. The court agreed that a term of imprisonment was rarely warranted for a theft of such a trivial value. The court also noted that the Magistrate had not provided reasons for the sentence, which left the court with the impression that the emphasis was on the applicant's criminal record rather than the offence itself. Therefore, the court concluded that the Magistrate had erred in imposing the sentence, and the motion to review was upheld on this ground. The court did not find merit in the second ground of the motion, as it did not consider the different treatment of Murfet's wife to be so disparate as to vitiate the sentencing process. The court decided not to remit the matter back to the Court of Petty Sessions and proceeded to hear counsel on the appropriate penalty to impose.

The court's decision in this case emphasised the importance of proportionality in sentencing. The court highlighted that a suspended sentence should only be imposed after considering other possible courses of action, such as an absolute discharge, conditional discharge, probation order, or fine. The court also noted that the sentence should be proportionate to the gravity of the offence, taking into account the value of the property taken and the circumstances surrounding the offence. In this case, the court found that a term of imprisonment was rarely, if ever, warranted for a theft involving items valued under $3. The court also emphasised that the sentence should not be based solely on the offender's criminal record, but rather on the nature of the offence and the circumstances surrounding it. The court's decision in this case provides guidance to lower courts on the appropriate sentencing options for minor theft offences and the importance of proportionality in sentencing. The court's decision also highlights the need for Magistrates to provide reasons for their sentencing decisions to ensure that the sentence is proportionate and appropriate to the offence.

Orders