Parker v Tasmania
[2020] TASSC 57
•27 November 2020
[2020] TASSC 57
COURT: SUPREME COURT OF TASMANIA
CITATION: Parker v Tasmania [2020] TASSC 57
PARTIES: PARKER, Scott Cameron
v
STATE OF TASMANIA
FILE NO: 2067/2020
DELIVERED ON: 27 November 2020
DELIVERED AT: Hobart
HEARING DATE: 27 November 2020
JUDGMENT OF: Brett J
CATCHWORDS:
Criminal Law – Sentence – Sentencing orders – Non-parole period or minimum term – Tasmania –Separate parole order required for each sentence of imprisonment.
Police Powers (Vehicle Interception) Act 2000 (Tas), ss 11A(2A), 11A(3C).
Sentencing Act 1997 (Tas), ss 11, 92A(3).
Vehicle and Traffic Act 1999 (Tas), s 17(4).
Harper v Gauden [2003] TASSC 66, 12 Tas R 57; Murray v State of Tasmania [2020] TASSC 1, referred to.
Aust Dig Criminal Law [3379]
REPRESENTATION:
Counsel:
Applicant: L Flanagan
Respondent: V Dawkins
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2020] TASSC 57
Number of paragraphs: 7
Serial No 57/2020
File No 2067/2020
SCOTT CAMERON PARKER v STATE OF TASMANIA
REASONS FOR JUDGMENT BRETT J
27 November 2020
On 20 June 2018, Magistrate S Brown imposed sentence on the applicant in respect of multiple charges. The applicant had previously entered a plea of guilty to each charge. The charges were contained in 16 complaints and related to a variety of offences committed between 24 October 2017 and 8 March 2018. Some of the complaints related to an individual act of driving, and contained a number of charges arising from that driving. Of those, six complaints included a charge of evading police (aggravated circumstances) contrary to s 11A(2A) of the Police Powers (Vehicle Interception) Act 2000 (the Act). His Honour noted that s 11A(3C) prohibits a sentence for an offence contrary to s 11A(2A) from being included as part of a general sentence or mixed sentence imposed under s 11 of the Sentencing Act 1997, and requires that a separate sentence be imposed in respect of the offence. On five of those complaints, in accordance with that provision, His Honour imposed a separate and cumulative sentence of imprisonment for the evade police offence, and recorded convictions without imposing further penalty for each other offence on the complaint. The magistrate imposed three other separate and cumulative sentences in respect of other complaints. In total, his Honour imposed eight separate cumulative sentences of imprisonment, with an aggregate term of four years.
The notice of review contains two grounds, each of which identify technical errors on the part of the learned magistrate. The first ground relates to a non-parole period imposed by his Honour. Notwithstanding having imposed eight separate sentences as already described, his Honour then imposed a single non-parole period of three years in respect of the aggregate period of imprisonment. No complaint is made about the length of the sentences, either individually or in aggregate, or the length of the non-parole period. However, for reasons which have been explained in a number of cases, a sentencing court is not empowered to impose a single non-parole period in respect of the aggregate of separate sentences. These reasons were dealt with in detail by Pearce J in Murray v State of Tasmania [2020] TASSC 1 in a case substantially similar to this one. I adopt and agree with his Honour's reasoning. It is clear that, in this case, the magistrate erred in imposing the single non-parole period. The respondent does not contend otherwise.
The second ground relates to one of the complaints which included a charge of evade police (aggravated circumstances). As already noted, on five of the six complaints which contained this charge, the magistrate correctly imposed a discrete sentence of imprisonment on that charge, separately to the sentence imposed on the other charges on the complaint. However, the remaining complaint, 31198/18, also charged offences of drive while disqualified, use unregistered and uninsured motor vehicle, dishonestly altering or displaying a device in a way calculated to deceive, and destroy property. The transcript demonstrates that his Honour imposed a global sentence of imprisonment across all offences on that complaint. It is uncontroversial, and obvious in any event, that to do so was in breach of s 11A(3C) of the Act. I think it is probable that the error arose from an inadvertent slip of the tongue on the part of the learned magistrate, as it is clear that he was well aware of the need to impose a separate sentence in respect of each evading police charge, and had correctly applied that provision in respect of the other complaints containing that charge. However, on the face of the transcript, it appears that there is an error, and, accordingly, this ground also must succeed.
For the sake of completeness, I should also note two other concerns about the sentences. It appears from the transcript that the magistrate imposed a single period of disqualification in respect of all of the driving offences. There are mandatory periods of disqualification required in respect of each of the evade police (aggravated circumstances) offences, and a requirement to impose a period of disqualification in respect of the driving whilst disqualified offences. For the reasons discussed by Cox CJ in Harper v Gauden [2003] TASSC 66, 12 Tas R 57, a single, global disqualification was not authorised by the relevant legislation in respect of a number of separate sentences, and the magistrate was required to impose a separate period of disqualification in respect of each individual sentence. His Honour was, however, authorised to fix varying commencement dates for each order of disqualification in accordance with s 17(4) of the Vehicle and Traffic Act 1999. However, neither party has sought to review the order of disqualification, and, accordingly, while noting the technical issue, I will not intervene further in respect of same.
Secondly, the warrant of commitment in respect of the sentences notes that each sentence after the first is cumulative upon the first sentence. If it correctly reflected the magistrate's order, then it would mean that each of the subsequent sentences is being served concurrently with each other. When imposing each of the subsequent seven sentences, his Honour noted that the sentence was cumulative but did not specify the sentence in respect of which this order would operate. However, it can be inferred from the fact that the magistrate did note that the aggregate effect of the sentences was a period of four years, that it was intended that each would be cumulative upon the sentence immediately preceding it. Accordingly, the warrant is inaccurate. Both parties agree with this conclusion, and agree that the correct operation of the orders should be incorporated into any orders made by me.
As both grounds of appeal have been made out, the motion to review will be allowed. Each of the eight sentences of imprisonment imposed by the magistrate will be quashed, and replaced with the following sentences:
· On count 2 on complaint 51027/2018, the applicant is sentenced to four months' imprisonment which will commence on 8 March 2018. The applicant is not eligible for parole until he has served three months of that sentence.
· On count 1 on complaint 31189/2018, the applicant is sentenced to a term of four months' imprisonment, which will be cumulative upon the sentence of imprisonment imposed on complaint 51027/2018. The applicant is not eligible for parole until he has served three months of that sentence.
· On count 1 on complaint 31196/2018, the applicant is sentenced to a term of four months' imprisonment, which will be cumulative upon the sentence of imprisonment imposed on complaint 31189/2018. The applicant is not eligible for parole until he has served three months of that sentence.
· On complaint 31197/2018, the applicant is sentenced to a term of three months' imprisonment, which will be cumulative upon the sentence of imprisonment imposed on complaint 31196/2018. The applicant is not eligible for parole until he has served two months of that sentence.
· On count 1 on complaint 31198/2018, the applicant is sentenced to six months' imprisonment, which will be cumulative upon the sentence of imprisonment imposed on complaint 31197/2018. The applicant is not eligible for parole until he has served four months of that sentence.
· On counts 2, 3, 4, 5 and 7 on that complaint, there will be no further penalty imposed.
· On count 1 on complaint 31186/2018, the applicant is sentenced to a term of nine months' imprisonment, which will be cumulative upon the sentence of imprisonment imposed on complaint 31198/2018. The applicant is not eligible for parole until he has served seven months of that sentence.
· On count 1 on complaint 31187/2018, the applicant is sentenced to 12 months' imprisonment, which will be cumulative upon the sentence of imprisonment imposed on complaint 31186/2018. The applicant is not eligible for parole until he has served nine months of that sentence.
· On complaints 31194/2018, 31195/2018, 31199/2018, 31200/2018, 31929/2018, 31930/2018, 32246/2018 and 51028/2018, the applicant is sentenced to a global term of six months' imprisonment, which will be served cumulatively upon the sentence of imprisonment imposed on complaint 31187/2018. The applicant is not eligible for parole until he has served five months of that sentence.
For the purposes of s 92A(3) of the Sentencing Act, I specify that:
(a)The total term of imprisonment which the applicant is liable to serve in respect of all of the above sentences is four years commencing on 8 March 2018.
(b)The total period that the applicant must serve before he becomes eligible for parole is the aggregate of the specified non-parole periods, which is a total period of three years.
All other aspects of the sentencing orders made by the learned magistrate on 20 June 2018 are not affected by these orders and will remain in place.
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