Ponsford v Wynwood - [1999] TASSC 21

[1999] TASSC 21

PARTIES: PONSFORD, David Paul

v
WYNWOOD, Shane Jeffrey

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 50/1998
DELIVERED:  4 March 1999
HEARING DATE/S:  22 February 1999
JUDGMENT OF:  Wright J

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - General principles - Sentencing discretion - Whether sentence was manifestly excessive - Principles of general and specific deterrence.

Police Offences Act 1935 (Tas), s.34B.
Boyle (1987) 34 A Crim R 202; Sheldrick v The Queen [1960] Tas SR (NC 3); Suckling v Ling 27/1993; R v Causby [1984] Tas R 54; R v Percy [1975] Tas SR 62; Salt v Galkowski (1978) 19 SASR 130; Whittle v McIntyre [1967] Tas SR (NC 6); R v Rouse 64/1990, considered.
Aust Dig Criminal Law [1003]

REPRESENTATION:

Counsel:
             Applicant:  J V Mobsby
             Respondent:  K Brown
Solicitors:
             Applicant:  Rutherford Barristers & Solicitors
             Respondent:  Director of Public Prosecutions

Judgment category classification:
Judgment ID Number: [1999] TASSC 21
Number of pages: 6

Serial No 21/1999
File No LCA 50/1998

DAVID PAUL PONSFORD v SHANE JEFFREY WYNWOOD

REASONS FOR JUDGMENT WRIGHT J

4 March 1999

The applicant seeks to review a sentence of imprisonment of three months imposed upon him in respect of three counts of assaulting a police officer and one count of obstructing a police officer, contrary to the Police Offences Act 1935, s34B(1)(a)(i) and one count of threatening a police officer, contrary to the Police Offences Act, s34B(1)(b). He pleaded guilty to all charges in the Court of Petty Sessions at Launceston on 17 December 1998.
The various offences were particularised as follows:
"1   You are charged with on the 4th October, 1994 at Devonport in Tasmania, assaulting Nola MAXWELL a Police Officer in the execution of her duty, by grabbing her by the shoulders and ramming her into a police vehicle.
2    You are charged with on the 4th October, 1994 at Devonport in Tasmania, assaulting Nola MAXWELL a Police Officer in the execution of her duty, by grabbing her around the shoulders and shaking her violently.
3    You are charged with on the 4th October, 1994 at Devonport in Tasmania, assaulting Jason RYBARCZYK a Police Officer in the execution of his duty, by pushing him to the ground and kneeing him in the head.
4    You are charged with on the 4th October, 1994 at Devonport in Tasmania, did threaten one Nola MAXWELL, a Police Officer in the execution of her duty, by saying the words, 'Fucking let her out of those handcuffs or I'll fucking kill you'.
5    That on the 4th October, 1994 at Devonport in the State of Tasmania, did wilfully obstruct one Peter GIBSON a Sergeant of Police in the Tasmania Police Force in the execution of his duty by pushing and shoving him while he was trying to arrest another person."
The sentence of three months' imprisonment was a global sentence 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.

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Details

Case: [1999] TASSC 21
Decision Date: 4 March 1999

CaseChat Overview and Summary

The applicant, David Paul Ponsford, appealed against the sentence of imprisonment imposed on him for assaulting and obstructing police officers. The Supreme Court of Tasmania heard the appeal, led by Wright J. The primary legal issue was whether the sentence of three months' imprisonment was manifestly excessive and whether the learned magistrate erred in imposing the sentence by not considering mitigating factors or the applicant's prospects for rehabilitation.

The court examined the circumstances of the offences and the mitigating factors presented, including the applicant's prior good character and family responsibilities. Wright J emphasised the importance of general deterrence in cases involving assaults on police officers. The court acknowledged that the learned magistrate considered the applicant's personal circumstances but ultimately concluded that the sentence was not manifestly excessive, despite some hesitation. Wright J found that the sentence exceeded the minimum necessary to achieve the aims of deterrence and punishment, particularly given the delay in sentencing and the lack of evidence of significant injuries caused to the police officers.

Consequently, the court allowed the motion to review and quashed the original sentence. Wright J decided to re-sentence the applicant, requiring a pre-sentence report to assess suitability for community service. The applicant was bailed to appear again for sentencing.

Orders