Allen v Tasmania - [2019] TASCCA 7

[2019] TASCCA 7

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

CITATION: Allen v Tasmania [2019] TASCCA 7

PARTIES:  ALLEN, Robert Michael
  v
  STATE OF TASMANIA

FILE NO:  1499/2018
DELIVERED ON:  18 June 2019
DELIVERED AT:  Hobart
HEARING DATE:  30 May 2019
JUDGMENT OF:  Blow CJ, Geason J and Martin AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Manslaughter – Intentional stabbing to leg severing artery – Sentence of eight years' imprisonment with non-parole period of five years not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  K Baumeler, A McKenzie
             Respondent:  M Wilson, L Pennington
Solicitors:
             Appellant:  McLean, McKenzie and Topfer
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASCCA 7
Number of paragraphs: 20

Serial No 7/2019
File No 1499/2018

ROBERT MICHAEL ALLEN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
GEASON J
MARTIN AJ
18 June 2019

Order of the Court

Appeal dismissed.

Serial No 7/2019
File No 1499/2018

ROBERT MICHAEL ALLEN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ

18 June 2019

This is a sentencing appeal. Early on the morning of 11 April 2016 the appellant, Robert Allen, killed a man named Justin Tonner by stabbing him to the right leg with a knife, severing the popliteal artery. Mr Tonner bled to death. The appellant was tried on a charge of manslaughter, found guilty, and sentenced by Brett J to eight years' imprisonment, with a non-parole period of five years. He contends that that sentence was manifestly excessive.
The verdict of the jury was a majority verdict, not a unanimous verdict. That is to say, either 10 or 11 of the jurors agreed upon a verdict of guilty. In accordance with s 383 of the Criminal Code, the learned trial judge asked the jury a question as to the basis of the verdict, and was told that all the jurors who had joined in the majority verdict had concluded that the appellant committed the crime of manslaughter by an intentional act, rather than by culpable negligence. The learned trial judge said that he took the same view of the evidence, and sentenced the appellant accordingly.
His Honour made findings of fact for sentencing purposes. In his sentencing comments he stated his findings as to the circumstances in which the crime was committed as follows:
"Prior to Mr Tonner's arrival at Ms Knowles' house, you were seated in the kitchen with her, your former partner Ms Gearman, and another man who lived there. This group had spent the night in conversation. You and some of the others had consumed some drugs, in particular, in your case, methylamphetamine and cannabis. You had just started to consume some alcoholic drinks. The conversation had been pleasant, the mood was peaceful, and there is nothing to suggest that you were other than…

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 Allen v Tasmania

Details

AGLC: Allen v Tasmania [2019] TASCCA 7
Case: [2019] TASCCA 7
Decision Date: 18 June 2019

CaseChat Overview and Summary

The appellant, Allen, appealed against a sentence of eight years' imprisonment with a non-parole period of five years imposed by the Supreme Court of Tasmania following his conviction for manslaughter. The conviction arose from an incident where the appellant intentionally stabbed the victim in the leg, severing an artery and causing death.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the sentence imposed was manifestly excessive or inadequate, thereby justifying interference on appeal. The court was required to consider the gravity of the offence, the appellant's culpability, and the principles of sentencing in determining if the original sentence fell outside the bounds of a reasonable exercise of judicial discretion.

The Full Court applied established sentencing principles, considering the intentional nature of the stabbing, the severe consequences of the act, and the appellant's subjective circumstances. The court found that while the sentence was severe, it was not so disproportionate to the gravity of the offence and the appellant's actions as to be considered manifestly excessive. The judges reasoned that the intentional infliction of a wound that led to death warranted a significant custodial sentence, and the imposed term reflected an appropriate balance of punishment, deterrence, and rehabilitation. Consequently, the appeal against sentence was dismissed.

Orders