Parker v Bessell - [2012] TASSC 78

[2012] TASSC 78

COURT: SUPREME COURT OF TASMANIA

CITATION: Parker v Bessell [2012] TASSC 78

PARTIES: PARKER, Senior Sergeant John
v

BESSELL, Stacey Amanda

FILE NO/S:  338/2012
DELIVERED ON:  3 December 2012
DELIVERED AT:  Launceston
HEARING DATE:  9 November 2012
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Suspended sentence of imprisonment – Breach of conditions of suspension and sentence following breach – Statutory requirement to activate sentence of imprisonment unless unjust – Failure to find it would be unjust – Failure to give reasons.
Sentencing Act 1997 (Tas), s27(4B), (4C), (4D).

Trueman v Tasmania (2009) 18 Tas R 435, [2009] TASSC 29; Tanner v Brown [2011] TASSC 59, referred to.
Aust Dig Criminal Law [338]

Traffic Law – Licensing of drivers – Tasmania – Offences – Driving when disqualified from holding licence – Whether sentence manifestly inadequate – Whether sentence of imprisonment required.

Maher v Banks [1992] TASSC 67; Davies v Petersen 50/1991; Green v Bessell B57/1993; Bessell v Riley [1995] TASSC 15; Peck v Visser [1999] TASSC 38, applied.
Aust Dig Traffic Law [28]

REPRESENTATION:

Counsel:
             Appellant:  S Nicholson
             Respondent:  A Hall
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Grant Tucker

Judgment Number: [2012] TASSC 78
Number of paragraphs: 40

Serial No 78/2012
File No 338/2012

SENIOR SERGEANT JOHN PARKER v STACEY AMANDA BESSELL

REASONS FOR JUDGMENT CRAWFORD CJ
3 December 2012

On 16 April last, on three complaints charging the respondent with three counts of driving while disqualified and other offences, a magistrate, Mr R Marron, sentenced her to "a total period of three months' imprisonment wholly suspended for two years" and "63 hours' community work".

At the same time, the magistrate dealt with the respondent for breaching a condition of a sentence of suspended imprisonment imposed by a magistrate, Mr T Hill, on 16 September 2011 for 11 offences. The sentence in question was one of three months' imprisonment wholly suspended on condition she commit no offence punishable by imprisonment for a period of 12 months. For the breach, the learned magistrate said that he would "cancel it ... and impose 100 hours of community work".

After telling the respondent that if she got behind the wheel of a car again she would go to gaol, he also disqualified her from driving without stating whether it was part of the sentence on the three complaints or part of the order consequent upon the breach of the condition of the suspended sentence. What his Honour said was: "There's a six month period of disqualification cumulative on any period you've got". However the record of proceedings attached to the three complaints recorded "6 months' disqualification cumulative to any period currently serving (driving matters)" and no disqualification order was recorded for the breach of the condition of the suspended sentence.

The motion to review attacks all of the sentence and the breach order. The first ground of review concerns the sentence on the three complaints and…

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 Parker v Bessell

Details

AGLC: Parker v Bessell [2012] TASSC 78
Case: [2012] TASSC 78
Decision Date: 3 December 2012

CaseChat Overview and Summary

In Parker v Bessell, the respondent, Bessell, was sentenced to a suspended sentence of imprisonment for a crime committed. Subsequently, Bessell breached the conditions of the suspension, leading to the activation of the sentence. Bessell appealed against the decision to activate the sentence, arguing that the primary judge erred in law by failing to find that it was unjust to activate the sentence and by not providing reasons for the decision.

The central legal issues before the court were whether the primary judge erred in not finding that it was unjust to activate the suspended sentence of imprisonment and whether the primary judge failed to provide adequate reasons for the decision to activate the sentence. The court was required to determine if the primary judge correctly applied the relevant statutory provisions and if the decision was adequately reasoned.

The court found that the primary judge did not err in law by not finding that it was unjust to activate the suspended sentence. The statutory provisions required the activation of the sentence unless it would be unjust, and the primary judge was required to consider whether it was unjust. The court held that the primary judge correctly found that it was not unjust to activate the sentence, as there were no exceptional circumstances that would make activation unjust. The court also found that the primary judge provided adequate reasons for the decision to activate the sentence. The reasons given by the primary judge were sufficient to demonstrate that the decision was based on a consideration of the relevant factors and was not arbitrary or capricious.

The appeal was dismissed. No further orders were made.

Orders