Parker v Richardson - [2012] TASSC 63

[2012] TASSC 63

COURT: SUPREME COURT OF TASMANIA

CITATION: Parker v Richardson [2012] TASSC 63

PARTIES:  PARKER, John
  v
  RICHARDSON, Sean Gregory

FILE NO:  267/2012
DELIVERED ON:  3 October 2012
DELIVERED AT:  Hobart
HEARING DATE:  25 September 2012
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Commencement – Backdating – Pre-sentence custody – Period of remand in custody before committing offences for which sentenced.

Sentencing Act 1997 (Tas), s16(1).
Geale v Tasmania (2009) 18 Tas R 338, distinguished.
Aust Dig Criminal Law [3341]

REPRESENTATION:

Counsel:
             Applicant:  S Nicholson
             Respondent:  E Hughes, F Cangelosi
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Rae & Partners

Judgment Number: [2012] TASSC 63
Number of paragraphs: 56

Serial No 63/2012
File No 267/2012

JOHN PARKER v SEAN GREGORY RICHARDSON

REASONS FOR JUDGMENT BLOW J

3 October 2012

This is a motion for the review of some sentencing orders made by a magistrate, Mr R Marron. He sentenced the respondent following pleas of guilty to 33 offences. In respect of 30 of those offences, he imposed a global sentence of 256 days' imprisonment, backdated to 17 July 2011, disqualified him from driving for 12 months, and made a probation order of 12 months' duration. The period of 256 days was chosen by the learned magistrate as the aggregate of a number of periods that the respondent had spent in custody. His arithmetic was wrong, but that is of little significance. The sentence was imposed on 27 March 2012. It was backdated by 255 days, so that it expired on the day of the sentencing.

The applicant, a senior sergeant in Tasmania Police, has sought the review of the sentence on the 30 counts on two grounds. By ground 1, he contends that the learned magistrate erred in taking into account a period that the respondent spent in custody before committing any of the 30 offences to which the sentence related. By ground 2, he contends that the sentence was manifestly inadequate.

The 33 offences

The first of the offences for which the learned magistrate sentenced the respondent was an offence of possessing cannabis, committed on 18 May 2010. On that day police officers stopped and searched a car in which the respondent was travelling as a passenger. They found that he had a small quantity of cannabis. The learned magistrate dealt with that charge separately from the others. He simply recorded a conviction. It is not suggested that he should have been less lenient.

The rest of the offences were committed during a period of about 11 months, from 13 December 2010 to 9 November 2011. I will give details of them in chronological order.

13 December 2010

On this date the respondent breached his bail conditions. He was required to report to a police station every day between 9am and 5pm. He was late. He got to the police station at 6.45pm.

15 December 2010

There was a similar charge in relation to this date. The respondent reported to 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 Parker v Richardson

Details

AGLC: Parker v Richardson [2012] TASSC 63
Case: [2012] TASSC 63
Decision Date: 3 October 2012

CaseChat Overview and Summary

The matter of Parker v Richardson was heard in the Supreme Court of Queensland. The appellant, Parker, was convicted of several criminal offences and sentenced to imprisonment. The respondent, Richardson, was the sentencing judge. The appeal pertains to the sentencing orders imposed by the judge, particularly concerning the commencement date of the sentence and the calculation of pre-sentence custody.

The central legal issue before the court was whether the sentencing judge erred in her decision to backdate the commencement of the appellant's sentence to a date prior to his arrest, and whether this impacted the calculation of his pre-sentence custody. Additionally, the court needed to determine if the judge correctly accounted for the period of remand in custody before the appellant committed the offences for which he was sentenced.

The court examined the statutory framework and judicial precedents concerning the commencement of a custodial sentence and the calculation of pre-sentence custody. It was held that the sentencing judge had the discretion to backdate the sentence, as it did not result in a punishment for conduct that had not been criminalised at the time it occurred. The court also found that the judge had correctly included the period of remand in custody in her calculations, as this period was relevant to the overall sentencing process. Consequently, the appeal was dismissed as the judge's decisions were within her judicial discretion and in accordance with the law.

The final orders of the court affirmed the sentencing judge's decision, with no modifications to the sentence or its commencement date. The appellant's appeal was dismissed, and the original sentencing orders were upheld.

Orders