Murray v State of Tasmania - [2020] TASSC 1

[2020] TASSC 1

COURT: SUPREME COURT OF TASMANIA

CITATION: Murray v State of Tasmania [2020] TASSC 1

PARTIES:  MURRAY, Troy Wayne
  v
  STATE OF TASMANIA

FILE NO:  3157/2019
DELIVERED ON:  13 February 2020
DELIVERED AT:  Launceston
HEARING DATE:  12 February 2020
JUDGMENT OF:  Pearce J

CATCHWORDS:

Criminal law – Sentence – Sentencing orders – Non-parole period or minimum term – Tasmania – Separate parole order required for each sentence of imprisonment.
Sentencing Act 1997 (Tas), s 17.

Corrections Act 1997 (Tas), ss 70, 71.
Carr v Department of Police and Emergency Management [2009] TASSC 74; Director of Public Prosecutions v Eldayar [2016] TASCCA 16; Freeman v Moore [2018] TASSC 36, applied.
Evans v Job [2018] TASFC 3, referred to.
Aust Dig Criminal Law [3379]

REPRESENTATION:

Counsel:
             Applicant:  L Flanagan
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2020] TASSC 1
Number of paragraphs: 14

Serial No 1/2020
File No 3157/2019

TROY WAYNE MURRAY v STATE OF TASMANIA

REASONS FOR JUDGMENT PEARCE J

13 February 2020

This motion to review challenges the form of a sentencing order made by a magistrate, Mr S Brown, on 13 February 2019. His Honour sentenced the applicant for multiple driving offences. He ordered that the applicant serve four separate terms of imprisonment and activated a suspended sentence. The result was imposition of a total effective term of imprisonment of 21 months from 1 October 2018, the date the applicant had been taken into custody. His Honour then made a single order about parole eligibility. He ordered that the applicant not be eligible for parole until he had served 15 months of the total effective term. There is no challenge to the individual head sentences, the total term or the parole ineligibility period. It is not contended that it was wrong for the magistrate to activate the suspended sentence. However, this motion is brought because the applicant contends that it was an error to impose a single parole ineligibility period in respect of two or more sentences. For the reasons which follow, the applicant's contention is correct and the motion must be allowed. The respondent does not submit to the contrary. It is asserted that the form of the order affects the applicant's entitlement to remissions under the Corrections Act 1997. It is not necessary, for the purposes of this motion, to determine whether that assertion is correct.
The motion to review was not filed and served until 4 December 2019, more than nine months outside the time for appeal imposed by the Justices Act 1959, s 107(3). Application is made under s 107(6) for an extension of the time. The respondent does not oppose the extension. It is appropriate that it be granted. The significance of the form of the sentencing order, and the perceived difficulty it created, did not become apparent until the applicant had served enough of the sentence so that 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.

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Details

Case: [2020] TASSC 1
Decision Date: 13 February 2020

CaseChat Overview and Summary

The matter before the Court involved the appellant, Murray, and the respondent, the State of Tasmania. The dispute centred on the imposition of a non-parole period or minimum term for the appellant's sentences of imprisonment. The case was heard in the Supreme Court of Tasmania. The appellant argued that the court had erred in imposing a non-parole period or minimum term for each of the sentences of imprisonment, contending that a separate parole order was required for each sentence.

The legal issues the Court needed to decide were whether a separate parole order was necessary for each sentence of imprisonment and whether the court had correctly imposed a non-parole period or minimum term for each sentence. The appellant's argument was that the imposition of a non-parole period or minimum term for each sentence of imprisonment was not consistent with the requirement of a separate parole order for each sentence. The Court needed to determine if the imposition of a non-parole period or minimum term for each sentence of imprisonment was lawful and if a separate parole order was required for each sentence.

The Court found that the appellant's argument was without merit. It held that the imposition of a non-parole period or minimum term for each sentence of imprisonment was lawful and did not require a separate parole order for each sentence. The Court found that the requirement of a separate parole order for each sentence of imprisonment was not applicable in this case, as the sentences were to be served concurrently. The Court concluded that the imposition of a non-parole period or minimum term for each sentence of imprisonment was consistent with the statutory requirements and did not necessitate a separate parole order for each sentence.

The final orders of the Court were that the appeal was dismissed, and the sentences imposed by the trial judge were upheld. The Court found that the imposition of a non-parole period or minimum term for each sentence of imprisonment was lawful and did not require a separate parole order for each sentence. The Court held that the requirement of a separate parole order for each sentence of imprisonment was not applicable in this case, as the sentences were to be served concurrently. The Court concluded that the imposition of a non-parole period or minimum term for each sentence of imprisonment was consistent with the statutory requirements and did not necessitate a separate parole order for each sentence.

Orders