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S v Johnson

S v Johnson

Case [2015] TASSC 20 21 May 2015

Review of Sentencing Orders

Criminal Law

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[2015] TASSC 20

COURT: SUPREME COURT OF TASMANIA

CITATION: S v Johnson [2015] TASSC 20

PARTIES:  S, RAA
  v
  JOHNSON, Allira Jai

FILE NO:  891/2014
DELIVERED ON:  21 May 2015
DELIVERED AT:  Hobart
HEARING DATE:  21 May 2015
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Indecent assault - Error of law and or error relating to facts – Magistrate's conclusions based on credit findings – Conviction for two offences where complaint may have alleged only one – Court's power to amend complaint.
Justices Act 1959 (Tas), ss 31 and 110(2)(f).

Phillips v Arnold (2009) 19 Tas R 21; Nilsson v McDonald (2009) 19 Tas R 173, applied.
Aust Dig Magistrates [1349]

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentencing orders – Whether sentence manifestly excessive – Whether Magistrate erred in not giving proper weight to previous sentence of imprisonment served by the applicant.

Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, applied.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  G A Richardson
             Respondent:  S A Nicholson
Solicitors:
             Applicant:  G A Richardson
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASSC 20
Number of paragraphs: 36

Serial No 20/2015
File No 891/2014

RAAS v ALLIRA JAI JOHNSON

REASONS FOR JUDGMENT ESTCOURT J

21 May 2015

The appeal

The applicant moves by way of a notice pursuant to the Justices Act 1959, s 107, for the review of orders of Magistrate M Bartlett of 25 September 2014, whereby the learned magistrate "convicted the applicant of committing the offences of indecent assault on two separate occasions" in or about 2005 or 2006 contrary to the Criminal Code, s 127.
The particulars of the complaint on which the applicant complains he was convicted of those offences charged the defendant with "between 1 January 2002 and 30 April 2006, at Ulverstone in Tasmania, unlawfully and indecently assaulting another person RAH, by sucking her on the vagina".

The test to be applied on the review

Crawford CJ set out the relevant principles to be applied on a review such as this in Phillips v Arnold (2009) 19 Tas R 21 at [46] as follows:
"46 Those principles include the following. The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co…

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 S v Johnson

Details

AGLC: S v Johnson [2015] TASSC 20
Case: [2015] TASSC 20
Decision Date: 21 May 2015

CaseChat Overview and Summary

The case of S v Johnson involved an appeal against a decision made by a Magistrate in Tasmania. The respondent, Johnson, had been convicted of two counts of indecent assault. The appellant, S, sought a review of the decision, arguing that the Magistrate had erred in convicting him of two offences when the complaint may have only alleged one. Additionally, S challenged the sentence as being manifestly excessive and contended that the Magistrate had not given proper weight to a previous sentence of imprisonment that he had served.

The primary legal issues before the court were whether the Magistrate had erred in his conclusions regarding the credit findings and whether the sentence imposed was manifestly excessive. Specifically, the court needed to determine if the Magistrate's interpretation of the complaint was correct in finding two separate offences and whether the sentence was unduly harsh, considering the previous imprisonment served by the appellant.

The court found that the Magistrate had indeed erred in convicting the appellant of two separate offences, as the complaint could have been interpreted as alleging only one offence. Consequently, the court amended the complaint to reflect this interpretation. Regarding the sentence, the court considered the previous imprisonment served by the appellant and found that the sentence was not manifestly excessive. The court concluded that the Magistrate had not erred in this regard, as there was no indication that the sentence was unduly harsh or that the Magistrate had failed to give proper weight to the previous sentence.

In summary, the court allowed the appeal in part, amending the complaint to reflect a single offence of indecent assault. The court dismissed the appeal in relation to the sentence, finding it to be appropriate and not manifestly excessive. No further orders were made beyond the amendment of the complaint.

Orders