Adams v The Queen - [1998] TASSC 41

41/1998

PARTIES:  ADAMS, Mark John (formerly Unsworth)
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 62/1997
DELIVERED:  24 April 1998
HEARING DATE/S:  5 March 1998
JUDGMENT OF:  Cox CJ, Underwood J, Crawford J

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by convicted persons - Application to reduce sentence - When granted - Particular offences - Offences against the person - Generally - Murder - Exercise of sentencing discretion with regard to parole - Manifestly excessive non-parole period reduced by Appeal Court.

Gill v R 34/1990; Bugmy v R (1990) 169 CLR 525, referred to.
Aust Dig Criminal Law [1010]

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Parity - Generally - Correction by Court of sentence - Non-parole period imposed was manifestly excessive.

Criminal Code (Life Prisoners and Dangerous Criminals) Act 1994.
Parole Act 1975.
Aust Dig Criminal Law [835]

REPRESENTATION:

Counsel:
             Appellant:  A R McKee
             Respondent:  D G Coates
Solicitors:
             Appellant:  Gunson Pickard & Hann
             Respondent:  Director of Public Prosecutions

Judgment category classification:
Court Computer Code:
Judgment ID Number:  41/1998
Number of pages:  11

Serial No 41/1998
File No CCA 62/1997

MARK JOHN ADAMS (FORMERLY UNSWORTH)
v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
UNDERWOOD J
CRAWFORD J (Dissenting)
24 April 1998

Order of the Court

Appeal allowed.

Order that the appellant not be eligible for parole in respect of the sentence passed upon him of imprisonment for twenty-five years from 23/4/1986 until the expiration of eighteen years therefrom, quashed.

Order that in lieu thereof it be ordered that he not be eligible for parole in respect of such sentence until the expiration of fifteen years from 23/4/1986.

Serial No 41/1998
File No CCA 62/1997

MARK JOHN ADAMS (FORMERLY UNSWORTH)
v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
24 April 1998

For the reasons given by Crawford J which I have had the advantage of seeing in draft form, I am of the view that the sentence of twenty-five years' imprisonment for this very serious case of murder is within the appropriate range and is not manifestly excessive. I confine my comments to the second aspect of this appeal, namely whether the setting of a period of eighteen years before the appellant is eligible for parole was an erroneous exercise of the sentencing discretion.
The Parole Act 1975 ("the Act"), s12A provides:
"12A ¾ (1) Subject to subsection (2) and to section 12B, the non-parole period in respect of a sentence of imprisonment is a period equal to one-half of the period of the sentence.

(2) Subsection (1) does not apply in relation to ¾
(a) a sentence of imprisonment for the term of the natural life of the prisoner; or
(b) detention in accordance with an order under section 392 (2) of the

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 Adams v The Queen

Details

AGLC: Adams, Mark John (formerly Unsworth) v The Queen [1998] TASSC 41
Case: [1998] TASSC 41
Decision Date: 24 April 1998

CaseChat Overview and Summary

Mark John Adams (formerly Unsworth) has appealed against his sentence of imprisonment for murder. The appeal concerns both the length of the sentence and the non-parole period set for the appellant. The appellant was re-sentenced to twenty-five years' imprisonment after the commencement of the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994. The Court of Criminal Appeal was required to determine whether the sentence and the non-parole period of eighteen years were manifestly excessive. The Court found that while the sentence of twenty-five years was within the appropriate range, the non-parole period of eighteen years was manifestly excessive and was quashed. The Court substituted a non-parole period of fifteen years. In coming to this conclusion, the Court considered the principles and purposes of sentencing and the particular circumstances of the appellant's crime. The Court determined that the appellant's prospects for reform, his age, and the fact that he had no prior convictions for violent conduct since he was fifteen years old warranted a reduction in the non-parole period. The Court also considered the views of the sentencing judge and the psychiatric report of Dr W Lopes.

Orders