Stocks v R - [2000] TASSC 106

[2000] TASSC 106

CITATION: Stocks v R [2000] TASSC 106

PARTIES:  STOCKS, Michael Keith
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 108/1999

CCA 124/1999

DELIVERED ON:  1 August 2000
DELIVERED AT:  Hobart
HEARING DATES:  6, 7 June 2000
JUDGMENT OF:  Underwood, Crawford and Slicer JJ

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Interference with discretion or finding of judge - Particular grounds - Misdirection and non-direction - Presentation of the defence case - Duty to put defence case fairly - Extent of obligation - Strong Crown case.
R v Ali (1981) 6 A Crim R 161, followed.
Aust Dig Criminal Law 976
Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Reparation and restitution by offender - Whether Court may take order of forfeiture and/or pecuniary penalty order into account - Weight to be given to such an order(s) in the exercise of the sentencing discretion.

Confiscation of Profits Act (Tas) 1993.
R v Thorley [1999] TASSC 73, overruled.
Allen v R (1989) 41 A Crim R 51; McDermott v R (1990) 49 A Crim R 105; Tapper v R (1992) 64 A Crim R 281, followed.
Aust Dig Criminal Law [844]

REPRESENTATION:

Counsel:
             Appellant:  W M Hodgman QC and T D Cox
             Respondent:  J N Perks and M P Shirley
Solicitors:
             Appellant:  Wallace Wilkinson & Webster
             Respondent:  Director of Public Prosecutions

Judgment Number: [2000] TASSC 106
Number of Paragraphs: 79

Serial No 106/2000
File Nos CCA 108/1999
CCA 124/1999

MICHAEL KEITH STOCKS v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
CRAWFORD J
SLICER J

1 August 2000

Orders of the Court

Appeal against conviction dismissed.

Appeal against sentence dismissed.

Serial No 106/2000
File Nos CCA 108/1999
CCA 124/1999

MICHAEL KEITH STOCKS v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J

1 August 2000

The appellant was convicted of one count of trafficking in a prohibited plant, namely Indian Hemp, and sentenced to a term of imprisonment for five years. In addition, the learned sentencing judge made a forfeiture order and a pecuniary penalty order, pursuant to the provisions of the Crimes (Confiscation of Profits) Act 1993 ("the Act"). By two notices of appeal, the appellant has appealed against his conviction and his sentence.

Appeal against conviction

With respect to the appeal against conviction, I have had the advantage of reading the reasons for judgment written by Crawford J. I agree with them. There is nothing I want to add.

Appeal against sentence

On 19 November 1999, the learned sentencing judge ordered the appellant to serve a sentence of five years' imprisonment to commence on 19 October 1999. At the same time, the learned sentencing judge made the following orders, pursuant to the Act, ss16 and 21, respectively:

· forfeiture to the State of $46,770 cash found in the appellant's possession and certain property…

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 Stocks v R

Details

AGLC: Stocks v R [2000] TASSC 106
Case: [2000] TASSC 106
Decision Date: 1 August 2000

CaseChat Overview and Summary

In the case of Michael Keith Stocks v R, the Court of Criminal Appeal of Tasmania dismissed both the appellant's appeal against conviction and his appeal against sentence. The appellant, Michael Keith Stocks, was convicted of trafficking in a prohibited plant, specifically Indian Hemp, and was sentenced to five years' imprisonment, along with a forfeiture order and a pecuniary penalty order under the Crimes (Confiscation of Profits) Act 1993. The Court of Criminal Appeal found that the trial judge had fairly put the defence case and that the conviction was supported by substantial corroboration, rendering the appeal against conviction unsuccessful. Regarding the appeal against sentence, the Court determined that the confiscation orders should have been taken into account by the sentencing judge when exercising his discretion to fix sentence. However, the Court concluded that the sentence of five years' imprisonment was appropriate in all the circumstances of the case, and therefore the appeal against sentence was also dismissed.

Orders