FILE NO/S: 251/2011 DELIVERED ON: 27 October 2011 DELIVERED AT: Hobart HEARING DATE: 19 August 2011 JUDGMENT OF: Wood J
CATCHWORDS:
Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Whether suspended term of imprisonment manifestly inadequate – Common assault and assault a police officer – Prior convictions for violence.
Criminal Law – Sentence – Sentencing orders – Custodial orders – Other matters – Applications that offender be ordered to serve suspended sentences of imprisonment – Whether "unjust" to activate suspended sentences.
Counsel: First and Second Applicant: S Nicholson Respondent: G Stevens Solicitors: Firstand SecondApplicant: Director of Public Prosecutions Respondent: E R Henry Wherrett & Benjamin
Judgment Number: [2011] TASSC 59 Number of paragraphs: 121
Serial No 59/2011 File No 251/2011
CONSTABLE CAMERON TANNER, LAKSHMI SUNDRAM v JOHNNY REGINALD BROWN
REASONS FOR JUDGMENT WOOD J
27 October 2011
A notice to review has been heard regarding three separate sentencing orders made by Magistrate McTaggart in relation to the respondent, Mr Johnny Brown.
The learned magistrate imposed a term of imprisonment of four months which was wholly suspended with respect to various charges including common assault, involving a security officer, and two offences of assault a police officer arising from an incident that occurred at the Syrup Nightclub in Hobart in July 2010. Additionally, the magistrate imposed a community service order and probation order. There is one ground of appeal relating to this sentence and it is that it was manifestly inadequate. The State's contention is that an actual term of imprisonment was required noting that Mr Brown has prior convictions for offences involving violence.
At the time the respondent committed the offences at the Syrup Nightclub in July 2010, he was subject to conditions of two suspended sentences. By committing the Syrup Nightclub offences he breached those conditions. Applications were made pursuant to the SentencingAct 1997, s27(1), for the magistrate to activate those two suspended sentences. After hearing those applications, the learned magistrate determined that it would be "unjust" to do so and instead, made orders in effect re-suspending the terms of imprisonment. Those two sentencing orders are also subject to review. The State's contention is that these sentences of imprisonment should have been activated and the respondent be required to serve the periods of imprisonment, and that not to do so amounted to an error.
The grounds of appeal are that by re-suspending the…
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.
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Tanner v Brown [2011] TASSC 59
Case
[2011] TASSC 59
Decision Date
CaseChat Overview and Summary
In Tanner v Brown, the appellant, Tanner, sought a review of a sentence imposed by a Magistrate in the Magistrates Court of Tasmania. Tanner had been convicted of common assault and assaulting a police officer. The court imposed a sentence of imprisonment for a term of six months, which was wholly suspended for a period of two years. Tanner appealed on the grounds that the sentence was manifestly inadequate. The appeal was heard by the Supreme Court of Tasmania, which had jurisdiction to review the sentence under the relevant legislation.
The primary legal issue before the Supreme Court was whether the sentence imposed by the Magistrate was manifestly inadequate. In assessing this, the court had to consider the nature and seriousness of the offences, Tanner's criminal history, and whether there were any aggravating or mitigating factors. The court also had to consider whether the sentence was proportionate to the offending, particularly given Tanner's prior convictions for violent offences.
The Supreme Court found that the sentence was manifestly inadequate. The court emphasised the seriousness of the offences, particularly given the assault on a police officer. The court also noted Tanner's prior convictions for violence, which indicated a pattern of behaviour that warranted a more severe sentence. The court concluded that the wholly suspended sentence did not adequately reflect the seriousness of the offences and did not serve as an effective deterrent. As a result, the Supreme Court set aside the sentence and ordered a re-sentencing hearing before a different Magistrate. The court emphasised the importance of proportionality in sentencing and the need for sentences to reflect the seriousness of the offending and the offender's criminal history.