R v Silczak - [2000] TASSC 123

[2000] TASSC 123

CITATION: R v Silczak [2000] TASSC 123

PARTIES:  R
  v
  SILCZAK, Noelene Joy

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 33/2000
DELIVERED ON:  31 August 2000
DELIVERED AT:  Hobart
HEARING DATE:  21 August 2000
JUDGMENT OF:  Cox CJ, Underwood and Blow JJ

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Grounds for interference - Whether sentence was manifestly inadequate - Effect of community service order - Whether adequate deterrent.

Sentencing Act1997 (Tas), ss7(c), 28(a) and 36(4).
Aust Dig Criminal Law [1003]

REPRESENTATION:

Counsel:
           Applicant:  C A Rheinberger
           Respondent:  A J Dillon
Solicitors:
           Applicant:  Director of Public Prosecutions
           Respondent:  Archer Bushby

Judgment Number: [2000] TASSC
Number of paragraphs: 11

Serial No 123/2000
File No CCA 33/2000

THE QUEEN v NOELENE JOY SILCZAK

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
UNDERWOOD J
BLOW J
31 August 2000

Orders of the Court:

Appeal allowed.

Direct that that part of the sentence purporting to impose a bond to be of good behaviou for two years be quashed.

In all other respects sentence confirmed.

Serial No 123/2000
File No CCA 33/2000

THE QUEEN v NOELENE JOY SILCZAK

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
31 August 2000

The respondent was convicted on her own plea of one count of trafficking in a prohibited substance and sentenced to undertake 105 hours of community service. In addition, it was ordered that she "be subject to a bond to be of good behaviour for a period of two years" and that pursuant to the Crime (Confiscation of Profits) Act 1993, s11, the respondent's property, namely $4,000 in cash (then held at the Launceston Police Station), be forfeited to the State of Tasmania. A $50 levy was also imposed. The Attorney-General has appealed on the following grounds:

1That the sentence was manifestly inadequate having regard to all the circumstances of the case; and
2That his Honour erred in law giving undue weight to the "loss" of $4,000 forfeited under the Crimes (Confiscation of Profits) Act 1993.

At the hearing, a further ground of appeal was added, namely:
3That the learned sentencing judge erred in law in imposing a bond to be of good behaviour for a period of two years.

Briefly, the facts of the offence were these. An undercover police officer went to the home of the respondent in Launceston on 11 December 1997 and spoke to her at a rear window. The officer asked for a deal of cannabis. She closed the window and returned shortly with a sachet of 2 grams of cannabis for which the officer paid $25. The same officer returned a few weeks later to find a queue of three other persons waiting at the window. The three other persons each asked for a deal and the officer asked for two deals. All were accommodated at a cost of $25 per deal. Two more males arrived and asked for…

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 Silczak

Details

AGLC: R v Silczak [2000] TASSC 123
Case: [2000] TASSC 123
Decision Date: 31 August 2000

CaseChat Overview and Summary

In this case, the respondent, Noelene Joy Silczak, was convicted of trafficking in a prohibited substance and sentenced to undertake 105 hours of community service. The Attorney-General appealed against the sentence, arguing that it was manifestly inadequate and that the sentencing judge had given undue weight to the forfeiture of $4,000 under the Crimes (Confiscation of Profits) Act 1993. A further ground of appeal was added during the hearing, arguing that the learned sentencing judge erred in law by imposing a bond to be of good behaviour for a period of two years.

The Court of Criminal Appeal considered the arguments and found that the sentence was not manifestly inadequate, given that a non-custodial sentence was within the discretion of the sentencing judge. While there may be a public perception that probation or community service orders are less punitive measures than suspended sentences of imprisonment, the Court noted that these orders still carry the risk of imprisonment for an uncertain term on breach. The Court also found that the sentencing judge did not give undue weight to the forfeiture order, as it was legitimate to take into account the impact of the deprivation of the respondent's modest resources.

However, the Court found that the order imposing a bond to be of good behaviour for a period of two years was not authorised by the Sentencing Act 1997 or any other relevant enactment. The Court quashed that part of the sentence and confirmed the remaining orders, as the substance of the sentencing judge's intention in that respect was achieved by the condition implicit in the community service order that the respondent be of good behaviour during its currency.

The Court of Criminal Appeal allowed the appeal, quashed the part of the sentence purporting to impose a bond to be of good behaviour for two years, and confirmed the remaining orders in all other respects.

Orders