R v Devine, Robert Joseph (No 2) - [1998] TASSC 56

56/1998

PARTIES:  R
  v
  DEVINE, Robert Joseph (No 2)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  14/1998
DELIVERED:  14 May 1998
HEARING DATE/S:  21, 22, 23 April and 13 May 1998
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgement and punishment - Sentence -Miscellaneous matters - Remission, parole and prisoner classification - Whether court may consider consequences of breach of parole in deciding whether to suspend sentence.

R v Paivinen (1985) 158 CLR 489, applied.
R v Yates [1985] VR 41, followed.
George v R A19/1986, considered.
Parole Act 1975 (Tas), ss21, 25(4), 25(4A).
Aust Dig Criminal Law [848]

REPRESENTATION:

Counsel:
             Crown:  M A Stoddart
             Accused:  S C Chopping, J S Wilkinson
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  Steven Chopping

Judgment category classification:
Court Computer Code:
Judgment ID Number:  56/1998
Number of pages:  4

Serial No 56/1998
File No 14/1998

THE QUEEN v ROBERT JOSEPH DEVINE (No 2)

REASONS FOR JUDGMENT SLICER J

14 May 1998

Robert Joseph Devine has been found guilty of one count of burglary and one count of stealing, and acquitted of two other counts of stealing. The circumstances giving rise to conviction are those stated in general terms in the judgment of R v Devine 42/1998. The verdicts of the jury are consistent with the Crown case that Mr Devine took the items intending to place them at another's premises, in order to cause trouble to that person in retaliation for some previous event. The jury might not have been satisfied beyond reasonable doubt that he intended to permanently deprive the owners of ownership of some of the items, in that they could eventually have been returned, or alternatively that the statutory provisions of the Code, s234, had not been met. When apprehended by police, the offender made claim to the three items comprised in count 2 and removed them from the scene. The jury may well have concluded that such taking was accompanied by an intent to permanently deprive the owners. The verdicts are consistent with an act of entry to the vehicle, removal of the items in count 2, and the subsequent taking of the items comprised in counts 4 and 5. The crime of burglary was complete upon entry and the intent necessary to ground a conviction for count 2 held, at least at the time the items were placed by Devine in his wife's vehicle. It is on this basis that sentence will be imposed. The conduct was dishonest, but directed at making trouble for another. Devine was charged on 16 April 1997 and elected committal proceedings and trial in the Supreme Court, although he had the right to summary trial. He is not entitled to the benefit of an early plea. The offender, aged 41, is married with two young children. He has an extensive record of prior convictions commencing in 1966. He has accumulated sixteen convictions for burglary, twenty-eight for stealing, one for armed robbery 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 R v Devine, Robert Joseph (No 2)

Details

AGLC: R v Devine, Robert Joseph (No 2) [1998] TASSC 56
Case: [1998] TASSC 56
Decision Date: 14 May 1998

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of R v Devine, Robert Joseph (No 2) involved a defendant with an extensive criminal record, convicted of burglary and stealing. The central issue was whether the court could consider the consequences of a breach of parole when deciding whether to suspend the sentence. The court examined whether the commission of a crime while on parole was an aggravating factor, and whether the court could consider the consequences of a custodial sentence on parole eligibility under the Parole Act 1975.

The court concluded that while the commission of a crime on parole was an aggravating factor, the court was not permitted to consider the consequences of the sentence on parole eligibility when determining the length of the sentence. However, the court could consider these consequences in deciding whether to suspend the sentence. The court found that the Parole Board was better suited to assess the future disposition of the offender and that suspending the sentence would allow the Board to continue its role in monitoring and supervising the offender. The court imposed a suspended sentence of six months' imprisonment, with conditions to commit no further crimes involving dishonesty or violence for three years.

The final orders were that Robert Joseph Devine be sentenced to a term of imprisonment for a period of six months, commencing from 14 May 1998, with the execution of the sentence suspended on the condition that Devine commit no crime or offence involving dishonesty or violence to the person or property for a period of three years. Additionally, a Victim Compensation Levy of $100 was to be paid to the Clerk of Petty Sessions, Hobart, within three months of the date of this order.

Orders