Williamson v Lane - [2013] TASSC 53

[2013] TASSC 53

COURT: SUPREME COURT OF TASMANIA

CITATION: Williamson v Lane [2013] TASSC 53

PARTIES:  WILLIAMSON, Norton Dudley
  v
  LANE, Richard

ADAMS, Daniel
HARPER, Stephen

FILE NO:  677/2013
DELIVERED ON:  20 September 2013
DELIVERED AT:  Hobart
HEARING DATE:  20 September 2013
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania - Motion to review – Other matters – Review of sentence – Failure to order non-parole period - Error in law - Whether consideration of outcome of appeal against earlier sentence and aggregating non-parole periods amounted to an error in law.

Justices Act 1959 (Tas), s107(1).
Sentencing Act 1997 (Tas), ss17(2), 17(3), 17(3A), 17(6), 94.
Corrections Act 1997 (Tas), ss70, 71.
Corrections Regulations 2008 (Tas), reg22.
Director of Public Prosecutions v Williamson [2013] TASSC 6; Carr v Department of Police and Emergency Management [2009] TASSC 74; Devine v R [2003] TASSC 52; Anthony v Hibble [2004] TASSC 67, considered.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
Applicant: K Cuthbertson
Respondents: S Nicholson

Solicitors:
Applicant: E R Henry Wherrett & Benjamin
Respondents: Director of Public Prosecutions

Judgment Number: [2013] TASSC 53
Number of paragraphs: 32

Serial No 53/2013
File No 677/2013

NORTON DUDLEY WILLIAMSON v RICHARD LANE, DANIEL ADAMS, STEPHEN HARPER

REASONS FOR JUDGMENT ESTCOURT J

20 September 2013

The appeal

The applicant has moved pursuant to the Justices Act 1959, s107(1), to review an order of Magistrate S Mollard, made on 2 October 2012, whereby the learned magistrate sentenced the applicant to three months' imprisonment, cumulative to a period of imprisonment of two years' with a non-parole period of 12 months that the applicant was then currently serving. His Honour declined to make a non-parole order for reasons said by him to arise from the fact that the sentence the applicant was already serving had been the subject of an appeal to the Court of Criminal Appeal by the State on the ground of manifest inadequacy.

The background

The applicant appeared before the learned magistrate on 6 August 2012 in relation to 14 charges of stealing and one charge of failing to appear. The applicant pleaded guilty to all of the stealing charges, and was found guilty of failing to appear following a defended hearing.

The stealing charges all involved "shop-lifting" type offences. The majority of the stolen property was recovered. The charge of failing to appear related to a failure to attend court on 30 January 2012. The applicant had received a police bail notice in respect of the stealing charges, had misplaced the notice and had missed the court date.

The applicant was sentenced by the learned magistrate on 2 October 2012 in respect of all matters. The applicant was then serving a sentence of two years' imprisonment imposed in this Court by Porter J on 6 August 2012 in respect of five charges of trafficking in a controlled substance and two charges of dealing with property suspected of being the proceeds of crime. Porter J's sentence was backdated to 23…

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 Williamson v Lane

Details

AGLC: Williamson v Lane [2013] TASSC 53
Case: [2013] TASSC 53
Decision Date: 20 September 2013

CaseChat Overview and Summary

In the matter of Williamson v Lane, the respondent appealed against his sentence imposed by the Magistrates Court of Tasmania. The respondent had been sentenced for a series of drug-related offences, and the matter in dispute was the imposition of the non-parole period of the sentence. Specifically, the respondent argued that the court erred in law by not ordering a non-parole period for the current sentence, and by not considering the outcome of his earlier appeal against sentence and aggregating the non-parole periods.

The primary legal issue before the court was whether the consideration of the respondent's earlier appeal and the aggregation of non-parole periods amounted to an error in law. The court needed to determine whether the Magistrates Court had correctly applied the principles of sentencing, particularly in relation to the non-parole period.

The court found that the Magistrates Court had not erred in law by considering the outcome of the respondent's earlier appeal and aggregating the non-parole periods. The court held that the Magistrates Court had the discretion to consider the respondent's earlier appeal and the resulting sentence, as well as the overall sentencing principles, when determining the appropriate non-parole period for the current sentence. The court further held that the Magistrates Court had not misdirected itself in law by considering the outcome of the earlier appeal and the aggregation of non-parole periods. Therefore, the appeal was dismissed.

The court did not make any further orders in relation to the appeal.

Orders