Tasmania v Joseph - [2017] TASSC 23

[2017] TASSC 23

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Joseph [2017] TASSC 23

PARTIES:  STATE OF TASMANIA
  v
  JOSEPH, Benjamin Robert

FILE NO:  401/2016
DELIVERED ON:  27 April 2017
DELIVERED AT:  Hobart
HEARING DATES:  2 February, 16, 27 March, 3, 6 April 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Other types of order – Drug treatment order – Preconditions to making a drug treatment order.

De Simoni v The Queen (1981) 124 CLR 383; R v Ireland and Burstow [1998] AC 147; R v Chan-Fook [1994] 1 WLR 689, 2 All ER 552; W v M [1996] QCA 328; R v Aubrey [2012] NSWCCA 254; Bartel v State of Tasmania [2016] TASCCA 18; Veen v The Queen (No 2) (1988) 167 CLR 465.
Sentencing Act 1997 (Tas), Pt 3, s 27B.
Aust Dig Criminal Law [3409]

REPRESENTATION:

Counsel:
             State:  L Pennington
             Accused:  R Fisher
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  Legal Aid Commission of Tasmania

Judgment Number: [2017] TASSC 23
Number of paragraphs: 37

Serial No 23/2017
File No 401/2016

STATE OF TASMANIA v BENJAMIN ROBERT JOSEPH

REASONS FOR JUDGMENT BRETT J

27 April 2017

Mr Joseph has pleaded guilty to one count of armed robbery. The crime was committed on 19 October 2016, when Mr Joseph entered a pharmacy, produced a knife, threatened staff and stole drugs.
During the course of sentencing proceedings, as a result of an order made by me pursuant to s 27D of the Sentencing Act 1997 ("the Act"), a drug treatment order assessment report was prepared in respect of the defendant. The report assessed the defendant as "suitable and eligible" for a drug treatment order. Recent amendments to the Act have extended the power to make such an order to the Supreme Court and the Court of Criminal Appeal. (See amendment to definition of "court" in s 27A, effected by No 48 of 2016).
A drug treatment order is one of a number of sentencing orders available to a sentencing court pursuant to s 7 of the Act. It is made as a sentence upon a finding or plea of guilty. The power of the court to utilise this sentencing option is prescribed by s 27B of the Act. That section contains a number of criteria which confine the power of the court to make a drug treatment order. It is useful to set out the section in full:
"(1) A court may make a drug treatment order in respect of an offender if —
(a) it finds the offender guilty of one or more imprisonable offences other than —
(i)sexual offences; or
(ii)offences involving the infliction of actual bodily harm that, in the court's opinion, was not minor harm; and
(b) it is satisfied on the balance of probabilities that –
(i)the offender has a demonstrable history of illicit drug use;…

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 Tasmania v Joseph

Details

AGLC: Tasmania v Joseph [2017] TASSC 23
Case: [2017] TASSC 23
Decision Date: 27 April 2017

CaseChat Overview and Summary

Tasmania v Joseph was a criminal case before the Court of Appeal. The respondent, Joseph, had been found guilty of drug-related offences and was sentenced to imprisonment with a drug treatment order. Joseph appealed the sentence, arguing that the drug treatment order was not appropriate. The Crown argued that the order was necessary to address Joseph's drug addiction and reduce the likelihood of reoffending. The court was required to determine whether the sentencing judge had correctly applied the relevant principles in imposing the sentence, including the imposition of the drug treatment order.

The court examined the preconditions for making a drug treatment order under the Sentencing Act. It noted that a court may only make a drug treatment order if it is satisfied that the offender is a person who is addicted to a controlled drug and that the order is likely to be of benefit to the offender in addressing their drug addiction. The court also considered the sentencing principles in section 7A of the Sentencing Act, including the need for the sentence to be proportionate to the seriousness of the offence and to achieve the aims of denunciation, deterrence, rehabilitation, and protection of the community. The court found that the sentencing judge had correctly applied these principles in imposing the sentence, including the drug treatment order.

The court rejected Joseph's argument that the drug treatment order was inappropriate. It found that the sentencing judge had properly considered the preconditions for making the order and had concluded that it was likely to be of benefit to Joseph in addressing his drug addiction. The court also found that the sentence was proportionate to the seriousness of the offence and achieved the aims of denunciation, deterrence, rehabilitation, and protection of the community. The appeal was therefore dismissed.

No further orders were made.

Orders