Venn v Pettit - [2020] TASSC 18

[2020] TASSC 18

COURT: SUPREME COURT OF TASMANIA

CITATION: Venn v Pettit [2020] TASSC 18

PARTIES:  VENN, Luke (Senior Constable)
  v
  PETTIT, Daniel John

FILE NO: LCA 1948/2019

DELIVERED ON:  19 May 2020
DELIVERED AT:  Burnie
HEARING DATE:  24 February 2020
JUDGMENT OF:  Geason J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Appeal against sentence – Failure to have regard to relevant prior convictions – Sentence manifestly inadequate – Sentencing discretion miscarried – Appeal allowed.
Criminal Code s 50.
Kentwell v The Queen [2014] HCA 37, 252 CLR 601; Veen (No. 2) (1988) 164 CLR 465; Munda v The State of Western Australia (2013) 249 CLR 600 referred to.
Aust Dig Magistrates [1345]

Aust Dig Criminal Law [3519]

REPRESENTATION:

Counsel:
             Applicant:  E Bill
             Respondent:  In Person
Solicitors:
             Applicant:  Director of Public Prosecutions

Judgment Number: [2020] TASSC 18
Number of paragraphs: 35

Serial No 18/2020
File No LCA 1948/2019

SENIOR CONSTABLE LUKE VENN v DANIEL JOHN PETTIT

REASONS FOR JUDGMENT GEASON J

19 May 2020

The respondent was charged with common assault contrary to s 35(1) of the Police Offences Act 1935.
On 8 July 2019 Magistrate L Topfer found the charge proven and convicted the respondent and fined him $250.
By an amended notice to review the applicant contends:
1The sentence imposed was manifestly inadequate.
2The learned magistrate made a specific error in law/fact, by failing to have regard to the respondent's prior convictions in New South Wales.
The applicant was given leave to proceed on the basis of the amended notice to review.
The respondent was unrepresented on the appeal.
For the reasons which follow the appeal succeeds.

The facts

The respondent was the complainant's stepfather. It was alleged that between 8 and 18 October 2018, he struck the child on the back with a belt. A photo of the child's back was in evidence. The child was five years old at the time.
The respondent admitted the conduct.
The issue at hearing was whether the force he applied was lawful by reason of s 50 of the Criminal Code. That section provides "it is lawful for a parent or a person in the place of a parent to use, by way of correction, any force towards a child in his or her care that is reasonable in the circumstances."
The learned magistrate, in finding the charge proven, made the following findings of fact:
1         The child was being naughty all day.
2         The respondent went to discipline the child.
3The respondent put the child on the side of the couch, took off his belt, and intended to hit the child on the buttocks.
4The child was moving around so much that the respondent missed the buttocks and struck the child with the belt on the left side of the back.
5         The force of the strike was sufficient to leave a distinct bruise on the child's back.
The magistrate observed that…

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 Venn v Pettit

Details

AGLC: Venn v Pettit [2020] TASSC 18
Case: [2020] TASSC 18
Decision Date: 19 May 2020

CaseChat Overview and Summary

The parties involved in the case of Venn v Pettit were the applicant, Venn, and the respondent, Pettit. The dispute was an appeal against a sentence imposed by the Magistrates Court of Tasmania. Venn sought a review of the sentence on the grounds that the magistrate had not taken into account relevant prior convictions, and that the sentence was manifestly inadequate. The case was heard and determined by the Supreme Court of Tasmania.

The legal issues before the court were whether the sentence imposed was manifestly inadequate and whether the magistrate failed to consider relevant prior convictions. The court had to determine if there had been a miscarriage of the sentencing discretion by the magistrate. The applicant argued that the sentence imposed was manifestly inadequate and that the magistrate had failed to consider relevant prior convictions, which resulted in a manifestly inadequate sentence. The court had to consider if there was a miscarriage of the sentencing discretion and whether the sentence should be reviewed.

The court found that the magistrate had failed to take into account relevant prior convictions and that the sentence imposed was manifestly inadequate. The court concluded that the magistrate had miscarried in the exercise of their sentencing discretion. The court allowed the appeal and remitted the matter back to the Magistrates Court for re-sentencing. The court found that the sentence imposed was manifestly inadequate and that there had been a miscarriage of the sentencing discretion.

The final orders of the court were that the appeal was allowed, and the matter was remitted back to the Magistrates Court for re-sentencing. The court found that the sentence imposed was manifestly inadequate and that there had been a miscarriage of the sentencing discretion. The court did not impose a specific sentence but rather remitted the matter back to the Magistrates Court for re-sentencing.

Orders