Stanley v Koehler - [2020] TASSC 44

[2020] TASSC 44

COURT: SUPREME COURT OF TASMANIA

CITATION: Stanley v Koehler [2020] TASSC 44

PARTIES:  STANLEY, Braydon William
  v
  KOEHLER, Renee (Senior Constable)

FILE NO:  LCA 85/2020
DELIVERED ON:  9 September 2020
DELIVERED AT:  Hobart
HEARING DATE:  19 June 2020
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Sentence – Appeal and new trial – Appeal against sentence – Interference – Sentence manifestly excessive or inadequate – Cumulative sentences in aggregate term of two years – Failure to fix non-parole period – Whether failure to provide for parole renders sentence manifestly excessive – Manifest excess not made out – Motion dismissed.
Sentencing Act 1997 (Tas), s 17.

Groenewege v Tasmania [2013] TASCCA 7; Deakin v Tasmania [2016] TASCCA 19; Power v The Queen (1974) 131 CLR 623; Gill v The Queen [1990] TASSC 37; Hoare v The Queen (1989) 167 CLR 348; Dinsdale v The Queen [2008] HCA 54, 202 CLR 321; Evans v Job [2018] TASFC 3, referred to.
Aust Dig Criminal Law[3521]

REPRESENTATION:

Counsel:
             Appellant:  A Hilly
             Respondent:  E Bill
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2020] TASSC 44
Number of paragraphs: 19

Serial No 44/2020
File No LCA 85/2020

BRAYDON WILLIAM STANLEY
v SENIOR CONSTABLE RENEE KOEHLER

REASONS FOR JUDGMENT BRETT J

9 September 2020

The applicant seeks a review of a sentence imposed by Magistrate Topfer on 23 December 2019, in respect of his plea of guilty to a number of offences committed between 18 February and 25 September 2019. The magistrate imposed cumulative sentences in an aggregate term of two years. Her Honour did not fix a non-parole period in accordance with s 17(2)(b) of the Sentencing Act 1997, and accordingly, by virtue of s 17(3A), the applicant is not eligible for parole in respect of the sentence. The sole ground of review is that the aggregate sentence is manifestly excessive in all the circumstances. On the hearing of the motion, the applicant did not press a further ground asserting that the magistrate erred in law by not fixing a non-parole period. However, the applicant's argument is that, although the head sentence of two years is not itself manifestly excessive, the failure to provide for parole eligibility renders it so.

The applicant's criminal conduct

A summary of the offences for which the applicant was sentenced, and the facts asserted by the prosecution, are as follows:
· 18 February 2019 – stealing – the applicant walked up to a man who was seated inside the waiting area of a bank, counting money in preparation for banking, and stole cash from him to a total value of $2,600. He then ran from the bank carrying the money in his hand.
· 28 February 2019 – motor vehicle stealing – the applicant stole a motor vehicle which had been left by its owner outside a friend's house. The owner located the vehicle the following day in the driveway of…

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 Stanley v Koehler

Details

AGLC: Stanley v Koehler [2020] TASSC 44
Case: [2020] TASSC 44
Decision Date: 9 September 2020

CaseChat Overview and Summary

The case of Stanley v Koehler involved the appellant, Stanley, who sought to appeal his sentence. Stanley was convicted of multiple offences and received a cumulative sentence of two years. The primary contention was that the sentence was manifestly excessive due to the failure of the sentencing judge to fix a non-parole period, rendering the sentence inadequately structured. The matter was brought before the court to determine whether the omission of a non-parole period constituted a manifest excess, thus warranting an appeal and potentially a new trial.

The court was tasked with examining the principle of manifest excess in sentencing and assessing whether the absence of a non-parole period rendered the sentence unjustifiably harsh. The legal issue revolved around the interpretation and application of sentencing laws, specifically the extent to which the failure to establish a non-parole period could be considered an error warranting appellate intervention. The court also considered whether the overall sentence, despite the absence of a non-parole period, was proportionate to the crimes committed.

The court found that while the failure to fix a non-parole period was an error, it did not render the sentence manifestly excessive. The aggregate term of two years, even without a non-parole period, was deemed to be proportionate to the offences committed. The court reasoned that the absence of a non-parole period did not, in this instance, constitute a manifest excess that would warrant an appeal or a new trial. Consequently, the motion to appeal was dismissed. The court concluded that the sentence, despite its procedural defect, was not so disproportionate as to merit intervention.

Orders