Viney v Clark

[2025] TASSC 44

[2025] TASSC 44

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Viney v Clark [2025] TASSC 44
PARTIES:	VINEY, Coden James
v
CLARK, Natalie (Acting Sergeant)
FILE NO:	2462/2025
DELIVERED ON:	24 September 2025
DELIVERED AT:	Launceston
HEARING DATE:	16 September 2025
JUDGMENT OF:	Brett J
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Appeal against sentence – Applicant alleged sentence manifestly excessive – Magistrate activated 2 month suspended sentence and imposed 4 months' imprisonment and 12 month community correction order for a number of varied offences – Applicant alleged insufficient weight given to Applicant's deprived background – Specific deterrence and rehabilitation significant considerations given the Applicant's continued pattern of offending and unwillingness to abide by the law – Magistrate's decision within proper exercise of sentencing discretion – Motion to review dismissed.

Aust Dig Magistrates [1349]

Legislation:

Sentencing Act 1997 (Tas)

Cases:
Barrett v Wilson [2015] TASSC 3
Bugmy v The Queen (2013) 249 CLR 571

Jamieson v State of Tasmania [2015] TASSC 50

REPRESENTATION:

Counsel:

Applicant:	K Toman
Respondent:	B Luzza

Solicitors:

Appellant:	Tasmania Legal Aid
Respondent:	Office of Director of Public Prosecutions

Judgment Number:	[2025] TASSC 44
Number of paragraphs:	13

Serial No 44/2025 File No 2462/2025

CODEN JAMES VINEY v ACTING SERGEANT NATALIE CLARK

REASONS FOR JUDGMENT BRETT J
24 September 2025

1 The applicant seeks review of a sentence imposed on him by Magistrate Hughes on 4 July 2025. The sentence was imposed on the applicant's plea of guilty to a number of summary charges, in particular driving while disqualified, burglary and stealing, failing to appear in breach of bail, possessing methyl amphetamine and stealing groceries. The applicant's commission of each of these offences was in breach of a suspended sentence of two months' imprisonment and the prosecution applied, under s 27(1) of the Sentencing Act 1997, for the activation of the suspended sentence. The magistrate activated that sentence and imposed a global sentence on the pleas of guilty of four months' imprisonment to be served cumulatively on the activated suspended sentence, making a total custodial period of six months. The magistrate also made a community corrections order with an operational period of 12 months commencing on the applicant's release from custody.

2             The sole ground of review is that the sentence is manifestly excessive. The notice to review does not assert specific error in relation to the activation of the suspended sentence, and on the hearing of the review, the applicant's counsel confirmed that no complaint is made about that aspect of the sentence. However, the combined effect of the activated sentence and the sentence imposed for the fresh matters is relevant to the question of whether the four-month sentence for the new offending is manifestly excessive. The principles applicable in respect of such a ground are well established and not in doubt. I can only interfere with the sentence if I am satisfied that, notwithstanding the absence of specific error, error can be inferred from the severity of the sentence. In other words, the ground will only be upheld if the sentence is so severe as to not fall within the bounds of a reasonable exercise of discretion by the sentencing magistrate. The fact that I might have imposed a different sentence is not a relevant consideration.

3             As will become apparent, the most significant sentencing consideration for the magistrate was the interaction between specific deterrence and rehabilitation. Of course, other considerations such as general deterrence and vindication of victims were also important. Further, the applicant's counsel on review stressed the weight which should be given to the effect of the applicant's deprived background, relying on the principles set down by the High Court in Bugmy v The Queen (2013) 249 CLR 571. Given this emphasis on the applicant's personal circumstances, it is appropriate in my view before describing the applicant's criminal conduct, and in order to provide context for it, to set out the applicant's prior record of offending, and general background. This is not to say, of course, that an offender should be sentenced on the basis of his record, but in this case the context provided by the applicant's personal circumstances and background, is critical to the assessment of the need for specific deterrence and his prospects of rehabilitation, and a proper understanding of the role played by problems experienced by him in childhood and as a young person.

4             The applicant was 35 years of age when he committed the relevant offences. Apart from his criminal history, the magistrate was given relatively brief information about his background and personal circumstances. His Honour was told that the applicant had grown up in Launceston and attended school to grade 10. His home life and upbringing had been characterised by family violence perpetrated by his father upon his mother. His mother, when he was very young, would lock the applicant and his siblings out of the house. He fell into crime at a young age and at the age of 9 years, was sentenced to detention at the Ashley Youth Detention Centre. During his time there, he was subjected to both sexual and physical abuse at the hands of guards. He was a member of a successful class-action suit in relation to such abuse and is due to receive a substantial amount of money by way of compensation in the near future. He had just started work as a lawnmowing contractor on a part- time basis and this was the first paid employment that he had ever held.

5             The reference to the applicant being sentenced to detention at a young age is confirmed by the applicant's criminal history. The record also sets out the applicant's lengthy and continuous history of

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offending since that time. There is persistent and repeated offending both as a youth and an adult in relation to traffic matters, including 17 convictions for driving while disqualified and many others for unlicensed driving, as well as other serious traffic offences such as evading police. He also has a lengthy history of convictions for dishonesty offences including a number of examples of burglary and stealing as well as more serious offences of aggravated burglary and aggravated armed robbery. There are also a significant number of convictions for drug and bail offences. Although his counsel submitted that in more recent times his offending had been reducing, any such reduction is recent and limited. A further and very significant aspect of his record is that he has been sentenced to imprisonment on numerous occasions but also has been offered community-based alternatives including a number of suspended sentences. The applicant has a poor record of compliance with community-based orders and most if not all of the suspended sentences have been the subject of successful breach applications. He was also placed on a drug treatment order in 2009, but the order was terminated before the completion of the associated program, and he was resentenced.

6             The last sentence imposed before the offending that was dealt with by the magistrate, was imposed on 1 August 2023. It was this sentence that included the suspended sentence that was activated by the magistrate. The sentence was a period of imprisonment of six months commencing on 1 August 2023, two months of which was suspended for a period of 12 months. It also included a 12- month driving disqualification. The sentence was imposed for six counts of disqualified driving, five counts of driving a motor vehicle while a prescribed illicit drug is present in blood and one count of possession of cannabis. These offences had been committed on various occasions during 2021.

7             The offending before the magistrate commenced with the offence of driving while disqualified which was committed on 29 January 2024. This was only six months after the imposition of the sentence. The applicant was in prison for four months of that period, and must only have been released for two months before he started to offend again. The disqualified driving was not associated with any aggravating circumstances, the applicant had been pulled over for random breath and drug tests, both of which were negative. In mitigation, the magistrate was told that the applicant was driving because his son had called him in distress regarding a medical emergency. He tried to find someone else to pick him up but was unsuccessful and then decided to drive. Although this was not disputed by the prosecution, the magistrate was not given any further detail about the asserted "medical emergency". On 9 March 2024, the applicant committed a burglary and stealing at an hotel in Brisbane Street, Launceston. This involved entering the hotel foyer, stealing three sets of keys and then using the keys to enter three hotel rooms. This occurred during the afternoon although the applicant returned later that day and re-entered the hotel before leaving a short time later. On each occasion, he used a pin code to enter the hotel. The only property stolen was the keys. The applicant committed these crimes with a co-accused. In mitigation, the applicant's counsel asserted that he was simply following his co-accused. It must be said that this did not really explain to any significant extent his participation or how it was said that he was less culpable than the co-accused. The next offence was committed on 20 March 2024 when the applicant failed to appear in court. His counsel asserted that he simply forgot the court date. Three days later on 22 March 2024, at 5 pm, the applicant attempted to leave a Coles supermarket store with a shopping trolley full of items for which he had not made payment. CCTV revealed that the applicant and two accomplices had stopped at a self-operated checkout to scan some items which were put back in the trolley with many which had not been paid for. He and his companions then left the store with all of the items. The stolen property had an aggregate value of $217.45. The only matter put in mitigation was that one of the female accomplices was also the co-offender in the hotel burglary. It is not clear as to if and how this was said to amount to mitigation. Finally, the applicant pleaded guilty to possession of methyl amphetamine on 26 July 2024. The methyl amphetamine was found when he was searched after his arrest for an unrelated matter.

8             In the sentencing proceedings, his counsel submitted, and it would seem the magistrate accepted, that despite this offending, the applicant had shown some commitment to rehabilitation and had taken a number of steps in that direction. In particular, he had obtained employment. He had given up drugs and been drug-free since December 2023. He claimed to be regularly attending drug and counselling appointments. It was not explained how this submission was consistent with the applicant's possession of methyl amphetamine in July 2024, apart from a submission that it amounted to a "lapse" rather than a relapse.

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9             The magistrate was clearly prepared to entertain the possibility that the applicant was committed to rehabilitation but of course was also required to deal with further examples of the type of offending which had been a constant feature of the applicant's life to date. His Honour obviously considered balancing these considerations by sentencing the applicant to home detention, and accordingly ordered a presentence report for the purpose of assessment of suitability for a home detention order. The report concluded that the applicant was not suitable for such an order. The reasons offered for this conclusion included the applicant's long history of illicit substance use and the lack of a suitable residence. The report author also recorded contact with the Alcohol and Drugs service, which advised that the applicant intermittently attended appointments and was prompted to reengage only when his Suboxone supply was suspended. However, the primary reason for the conclusion of unsuitability, and the reason which the magistrate clearly considered to be the most compelling, was that the applicant disengaged in the assessment process before it was complete. No explanation for this was offered to the magistrate on behalf of the applicant.

10           In my opinion, there is no merit in the submission that the severity of the overall sentence renders it manifestly excessive. In fact, in my view, the magistrate dealt with the applicant relatively leniently. As I have already indicated, the primary questions for the magistrate concerned his Honour's assessment of the need for specific deterrence and the applicant's prospects of rehabilitation. The need for specific deterrence was significant. Despite being subject to a suspended sentence and claiming to be committed to rehabilitation, the applicant had persisted with serious offending of a similar nature to that which he had been committing throughout his life. Whatever his reason, driving in breach of a court ordered disqualification imposed for similar offending demonstrated a clear unwillingness to abide by the law. The applicant had 17 prior convictions for driving whilst disqualified, as well as for other traffic offences. Disqualifications are imposed by courts for good reason, usually to do with punishment for offending in relation to driving a motor vehicle, and compliance with such orders is critical to the court's capacity to enforce driving laws and hence maintain a safe driving environment. The breach of such orders undermines their force and effect and must incur significant punishment. Further, the legislature has provided for an increased penalty for subsequent offences which indicates a legislative intention that repeated driving in breach of disqualification, where previous sentences have not had the desired deterrent effect, should incur higher sentences. See comments by Pearce J in Barrett v Wilson [2015] TASSC 3 and Jamieson v State of Tasmania [2015] TASSC 50. The applicant's criminal history demonstrates a stubborn persistence with respect to such offending. Both general and specific deterrence were clearly relevant to the sentence to be imposed for this offence. Further, the applicant had committed serious dishonesty offences on two separate occasions. The fact that the applicant committed these offences in company with others increased the objective seriousness of the offending and did not provide mitigation. Stealing the groceries was obviously premeditated and systematic and again demonstrated dishonesty of a high order. These offences were not victimless crimes. In relation to the hotel, the applicant and his co-offender had entered hotel rooms thereby intruding upon the sense of privacy and security to which the hotel proprietor and guests were entitled. Again, both general deterrence, specific deterrence and vindication of the victims were important sentencing considerations.

11           In relation to the applicant's counsel's submissions concerning the relevance of the principles in Bugmy, the first matter that should be pointed out is that the notice to review did not assert specific error in respect of the magistrate's application of these principles. Further, and in any event, a fair examination of his Honour's sentencing comments and discussion during sentencing submissions, would indicate that the magistrate was well aware of the need to place appropriate emphasis on the applicant's personal circumstances including the difficulties in his background. It was not submitted to the magistrate that the background was connected to the offending in the manner discussed in Bugmy, in particular that it somehow reduced his moral culpability for this offending. In view of the nature of the offending and the applicant's criminal record, such a submission would have been untenable. For example, deprivation of the type suffered by the applicant when he was young might well explain an inability to properly control himself when frustrated or to react inappropriately when placed in difficult situations. See Bugmy at [44]. However, none of the relevant offending fell into that category, it was all offending that was clearly premeditated or at least the product of deliberate decision- making. However, the applicant's background was relevant to the magistrate's assessment of his prospects of rehabilitation. In this respect, my impression is that the magistrate was prepared to adopt a particularly lenient approach. His decision to obtain the home detention assessment and to ultimately impose a sentence which included a community correction order demonstrates such.

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12           A further matter that needs to be emphasised is that imprisonment should not necessarily be regarded as inconsistent with rehabilitation. There is no reason at all why serving such a sentence should negatively impact on a genuine commitment to rehabilitation. In fact, it can often be the case that a true commitment to rehabilitation will be predicated upon an acceptance of the necessity to first atone for past conduct. Of course, I am mindful that in this case, imprisonment would have had an impact on the applicant's employment, although again the magistrate was not given any significant information about this. In any event, by the time of the sentence, the magistrate had developed justifiable scepticism about the applicant's commitment to rehabilitation, and the efficacy of community-based orders and home detention. He was particularly concerned about the applicant's disengagement from the assessment process. His Honour was perfectly justified in taking that view. In the end, given the applicant's unsuitability for a home detention order, and having regard to the other important sentencing considerations, the magistrate was left with little option other than to impose a sentence of imprisonment. The global sentence of four months' imprisonment can, in my view, be seen as a relatively lenient response.

13           Accordingly, there is no basis to infer error on the part of the magistrate from the severity of the sentence. The sentence was well within the range of a proper exercise of the sentencing discretion. The motion to review is dismissed