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Upston v Tasmania

Upston v Tasmania

Case [2018] TASCCA 4 16 April 2018

Statutory Interpretation

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[2018] TASCCA 4

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Upston v Tasmania [2018] TASCCA 4

PARTIES:  UPSTON, Matthew John
  v
  STATE OF TASMANIA

FILE NO:  59/2017
DELIVERED ON:  16 April 2018
DELIVERED AT:  Hobart
HEARING DATE:  7 March 2018
JUDGMENT OF:  Blow CJ, Pearce J, Porter AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Trafficking in a controlled substance – Guarding and concealing methylamphetamine and morphine in the belief that another intended to sell the drugs – Appellant addicted to methylamphetamine – Benefit from conduct limited to cheaper drug and ready access – Sentence of three years' imprisonment with one year suspended manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  M Doyle
             Respondent:  L Mason, V Jones
Solicitors:
             Appellant:  Clarke & Gee
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASCCA 4
Number of paragraphs: 31

Serial No 4/2018
File No 59/2017

MATTHEW JOHN UPSTON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
PEARCE J
PORTER AJ
16 April 2018

Orders of the Court

Appeal allowed.

Sentence of three years' imprisonment with one year thereof suspended, and non-parole period of two years, set aside.

Appellant sentenced to 15 months' imprisonment with effect from 9 January 2018, the execution of nine months of which is suspended on condition that he commit no offence punishable by imprisonment for a period of two years.

Serial No 4/2018
File No 59/2017

MATTHEW JOHN UPSTON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
16 April 2018

I agree with Porter AJ.

File No 59/2017

MATTHEW JOHN UPSTON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
16 April 2018

I agree with Porter AJ.

File No 59/2017

MATTHEW JOHN UPSTON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PORTER AJ
16 April 2018

Introduction

This is an appeal against sentence. The appellant pleaded guilty before Slicer AJ to one count of trafficking in a controlled substance, namely methylamphetamine and morphine. On 10 November 2017, the appellant was sentenced to three years' imprisonment to commence on 23 October 2017, the execution of 12 months of which was suspended on condition that for a period of three years following his release from prison he was to commit no crime or offence involving:
·     violence to the person;
·     any commercial act or dealing in a controlled substance as defined by the Misuse of Drugs Act 2001;
·     the possession or use of any firearm as defined by the Firearms Act 1996.
It was ordered that the appellant not be eligible for parole until he had served two years. It can at once be seen that his eligibility for parole arose on the same day on which he was entitled to be released after the expiration of the operative part 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 Upston v Tasmania

Details

AGLC: Upston v Tasmania [2018] TASCCA 4
Case: [2018] TASCCA 4
Decision Date: 16 April 2018

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, Upston, for the offences of guarding and concealing methylamphetamine and morphine, with the belief that another person intended to sell the drugs. The appeal was heard by the Supreme Court of Tasmania, constituted by Blow CJ, Pearce J, and Porter AJ.

The central legal issue before the Court was whether the sentence of three years' imprisonment, with one year suspended, was manifestly excessive given the appellant's circumstances and the nature of his involvement in the offending. The Court was required to consider the appellant's addiction to methylamphetamine and the limited personal benefit he derived from his conduct, which primarily consisted of access to cheaper drugs and ready availability.

The Court reasoned that while the appellant's conduct was serious, the sentence imposed did not adequately reflect the mitigating factors. The appellant's addiction and the minimal personal gain were significant considerations. The Court applied the principle that a sentence must be proportionate to the gravity of the offence and the circumstances of the offender, and that a manifestly excessive sentence should be interfered with on appeal.

Ultimately, the Court found the sentence to be manifestly excessive and ordered that the appeal be allowed. The original sentence was set aside and replaced with a sentence of two years' imprisonment, wholly suspended, on the condition that the appellant be of good behaviour for that period.

Orders