Underwood v Schiwy - [1989] TASSC 129

Serial No B51/1989
List “B”

COURT: SUPREME COURT OF TASMANIA

CITATION: Underwood v Schiwy [1989] TASSC 129; B51/1989

PARTIES:  UNDERWOOD
  v
  SCHIWY

DELIVERED ON: 4 December 1989
JUDGMENT OF: Nettlefold J

Judgment Number: B51/1989
Number of paragraphs: 20

Serial No B51/1989

UNDERWOOD v SCHIWY

REASONS FOR JUDGMENT NETTLEFOLD J

4 December 1989

Notice to review an order made by a magistrate in the Court of Petty Sessions at Hobart on the 1 September 1989 by which order the learned magistrate sentenced the applicant to six months' imprisonment for the offence of deception contrary to s252A(1) of the Criminal Code 1924. The grounds stated in the notice to review as amended are:–

1That the sentence was manifestly excessive having regard to all the circumstances of the case, and particularly the fact that the applicant is a 38 year old businessman running his own business, is married with three children, has no relevant prior conviction whatsoever and has made full restitution.
2That the learned magistrate erred in law by making conclusions which were not properly open to him and upon which conclusions counsel for the defendant was given no opportunity to make submissions upon.

The complaint reads as follows:–

"THE COMPLAINT of Detective 1/C Constable R K SCHIWY of Criminal Investigation Branch, Hobart, made upon oath, says that Garry Rupert UNDERWOOD, of 8 Brent Street, Glenorchy, did, on the 8th day of October 1986 at Moonah, in the State of Tasmania, by means of a certain deception, namely by exchanging the compliance plate on a 1980 WB Holden converted Utility, registered number CG 7705, to represent that the said vehicle was manufactured in 1982 as a Holden Utility, did dishonestly obtain a financial advantage from Timothy Norman WATTS, namely the difference in value between a 1980 Holden and a 1982 Holden, namely $1,900, by purporting to the said Timothy Norman WATTS that the vehicle was manufactured in 1982.
Contrary to Section 252A(1) of the Criminal Code Act 1924"

The facts as stated by the prosecutor were that on the 10th day of July 1986 the applicant purchased a 1980 Holden panel van from Motors Limited. The vehicle was subsequently delivered to the applicant's home and his wife signed for its delivery, using her maiden name of Grimwood. Shortly afterwards the applicant had a discussion with another person and arranged for the panel van to be converted into a utility. Arrangements were then made to obtain another compliance plate to attach to the vehicle. Approximately three weeks later the applicant picked up the converted car and another compliance plate. The applicant then removed the old compliance plate, which stated that it was a 1980 panel van and put on another plate which stated the vehicle was a 1982 utility.

During October 1986 the applicant re–registered the vehicle at the Transport Department as a 1982 WB utility, the registered number at that stage being CG 7705. He then produced to the Transport officer a receipt which showed that he had purchased a…

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 Underwood v Schiwy

Details

AGLC: Underwood v Schiwy [1989] TASSC 129
Case: [1989] TASSC 129
Decision Date: 4 December 1989

CaseChat Overview and Summary

Underwood appealed against the sentence imposed by the magistrate in the Court of Petty Sessions at Hobart. The appeal was against a six-month imprisonment sentence for an offence of deception under section 252A(1) of the Criminal Code Act 1924. Underwood argued that the sentence was manifestly excessive and that the magistrate erred in law by making conclusions which were not properly open to him. The court considered the principles that guide courts of appeal in dealing with matters resting in the discretion of the court of first instance. The court restrained intervention to cases where the sentence appears unreasonable or has not been fixed in the due and proper exercise of the court's authority. The court found that the sentence failed to estimate correctly the weight to be assigned to the element of general deterrence in light of modern sentencing policy in cases of this kind. The court also found that the offence was out of character for Underwood, who was a 38-year-old first offender and the father of three young children. The court concluded that it was not necessary to send Underwood to gaol for the first time for this offence and that the sentence was manifestly excessive. The appeal was allowed, and the sentence was set aside. In lieu of the original sentence, the court imposed a sentence of three months' imprisonment, the execution of which was wholly suspended on condition that Underwood commit no crime or offence involving an element of dishonesty for a period of three years.

The court found that the magistrate had overestimated the need for general deterrence and underestimated the applicant's very strong case for a sentence which stopped short of an order for immediate imprisonment. The court found that the offence was out of character for Underwood, who had been in business for a long time and had no prior convictions. The court also found that Underwood had made restitution and had suffered substantial detriment in consequence of his offence. The court concluded that it was not necessary to send Underwood to gaol for the first time for this offence and that the sentence was manifestly excessive. The appeal was allowed, and the sentence was set aside. In lieu of the original sentence, the court imposed a sentence of three months' imprisonment, the execution of which was wholly suspended on condition that Underwood commit no crime or offence involving an element of dishonesty for a period of three years.

Orders