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Parker v Shaw

Parker v Shaw

Case [2017] TASSC 25 27 April 2017

Appeal

Sentencing

Criminal Law

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[2017] TASSC 25

COURT: SUPREME COURT OF TASMANIA

CITATION: Parker v Shaw [2017] TASSC 25

PARTIES:  PARKER, John
  v
  SHAW, Christopher Mark

FILE NO:  LCA 3307/2016
DELIVERED ON:  27 April 2017
DELIVERED AT:  Hobart
HEARING DATES:  3 and 12 April 2017
JUDGMENT OF:  Pearce J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentence and penalty –Cancellation of drug treatment order – Activation of seven months of custodial sentence of 14 months manifestly inadequate.

Sentencing Act 1997 (Tas), ss 27B, 27C, 27D, 27F, 27Q.

Ferguson v Tasmania [2011] TASSC 51; McCullough v Larner [2012] TASSC 35, referred to.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  M Figg
             Respondent:  A Hensley
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2017] TASSC 25
Number of paragraphs: 29

Serial No 25/2017
File No 3307/2016

JOHN PARKER v CHRISTOPHER MARK SHAW

REASONS FOR JUDGMENT PEARCE J

27 April 2017

This is a motion to review a sentencing order made on 8 November 2016 by a magistrate, Ms S Cure. On 27 April 2016 the respondent, Christopher Shaw, was made subject to a drug treatment order under the Sentencing Act 1997 ("the Act"), s 27B. The custodial part of the order was imprisonment for 14 months. Just over six months later, on 8 November 2016, the magistrate cancelled the order: s 27Q. Her Honour activated seven months of the custodial part of the sentence. The sentence was backdated to commence on 17 October 2016 to take account of 22 days of custody, 14 of which had been activated for failures to comply with conditions of the order while it was in force.
The applicant, who is a police officer, moves for review of the sentencing order on the ground that by activating only seven months of the original 14-month sentence the magistrate imposed a sentence which was manifestly inadequate. The applicant submits that the account taken, under s 27Q(2), for the "extent of the offender's compliance" with the drug treatment order was, in all the circumstances, generous to the respondent to the point of error. That submission should be accepted. However, for the reasons which follow, I would exercise the residual discretion to dismiss the motion.

The legislative scheme

Drug treatment orders are provided for by the Act, Pt 3A. They form part of what is referred to as a program of court mandated diversion, or CMD, designed to address addiction to illicit drugs as a cause of offending. A court may make a drug treatment order if, subject to some other pre-conditions not relevant here, it finds an offender guilty of one or more imprisonable offences, is satisfied that the offender has a demonstrable history of illicit drug use, that illicit drug use contributed to the offending, and the offender would otherwise have been sentenced to a wholly effective term of imprisonment: s 27B(1). The purpose of an order finds…

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 Shaw

Details

AGLC: Parker v Shaw [2017] TASSC 25
Case: [2017] TASSC 25
Decision Date: 27 April 2017

CaseChat Overview and Summary

In the matter of Parker v Shaw, the appellant, Mr. Parker, sought a review of a decision made by a magistrate in Tasmania. The dispute centred on the sentence handed down for drug-related offences. The original sentence consisted of a 14-month custodial sentence, of which seven months were activated. Mr. Parker argued that the sentence was manifestly inadequate and sought to appeal the decision on this basis. The court was required to determine whether the sentence was indeed inadequate and if the magistrate's decision was reviewable under the circumstances.

The court examined the principles of sentencing and the adequacy of the sentence in light of the circumstances of the case. It considered whether the magistrate had taken into account all relevant factors in determining the sentence, including the nature and circumstances of the offence, the offender's culpability, and the need for deterrence and rehabilitation. The court also considered whether the sentence was manifestly inadequate, meaning it was so lenient that no reasonable person could have imposed it. The court found that the sentence was inadequate and that the magistrate had not adequately considered all relevant factors in determining the sentence.

The court allowed the appeal and remitted the matter to the original magistrate for reconsideration of the sentence. The court found that the original sentence was manifestly inadequate and that the magistrate had not properly exercised their discretion in determining the sentence. The court emphasised the importance of considering all relevant factors in sentencing and the need for sentences to be proportionate to the seriousness of the offence. The court's decision provides guidance for magistrates in Tasmania when considering drug-related offences and the appropriate sentence to impose.

Orders