CITATION: Attorney-General for the State of Tasmania v McDonald [2002] TASSC 120
PARTIES: ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA
v McDONALD, Kristian Clarence
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS) JURISDICTION: APPELLATE FILE NO/S: CCA 72/2002 DELIVERED ON: 23 December 2002 DELIVERED AT: Hobart HEARING DATES: 5 November 2002 JUDGMENT OF: Slicer, Evans and Blow JJ
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other Crown Law officer - Application to increase sentence - Offences against the person - Wounding.
Aust Dig Criminal Law [1023]
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other Crown Law officer - Other matters - Re-sentencing - Double jeopardy.
R v Harland-White 23/1997; R v Meers and Moles 32/1998; Attorney-General v B [2002] TASSC 63; R v Hayes (1987) 29 A Crim R 452; R v Allpass (1993) 72 A Crim R 561; R v Clarke [1996] 2 VR 520, referred to. Aust Dig Criminal Law [1025]
REPRESENTATION:
Counsel: Appellant: T J Ellis SC Respondent: M I Evans Solicitors: Appellant: Director of Public Prosecutions Respondent: Beeton & Mansell
Judgment Number: [2002] TASSC 120 Number of Paragraphs: 66
Serial No 120/2002 File No CCA 72/2002
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v KRISTIAN CLARENCE McDONALD
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J EVANS J BLOW J (DISSENTING) 23 December 2002
Order of the Court
Appeal dismissed.
Serial No 120/2002 File No CCA 72/2002
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v KRISTIAN CLARENCE McDONALD
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J 23 December 2002
The appellant, by the sole ground of appeal that a sentence imposed:
"… was manifestly inadequate having regard to all the circumstances of the case"
raises three issues:
(1)the adequacy of a sentence of 18 months for the crime of wounding by reference to the existing range of penalties, the individual characteristics of the offender and his manner of inflicting harm to another;
(2)implicit in the submission is the contention that sentences imposed for the type of violence which is the subject of this review are generally too lenient and are an inadequate response to the nature of the violence;
(3)whether this Court, upon the upholding of a Crown appeal against sentence, is either permitted or required to afford the respondent in its re-sentencing, a discount which takes into account the nature of the appeal.
Comparable inadequacy, consistency and individualisation of sentencing
The respondent was charged with one count of wounding, contrary to the Criminal Code, s172, following an attack on another person in a hotel in the early hours of 1 June 2002. The complaint, to which the respondent pleaded guilty, alleged an act of wounding:
"… Kenneth Albert Ransley by striking him to the face and neck area with a broken glass."
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.
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Attorney-General v McDonald [2002] TASSC 120
Case
[2002] TASSC 120
Decision Date
CaseChat Overview and Summary
In the case of Attorney-General for the State of Tasmania v McDonald, the Court of Criminal Appeal in Tasmania heard an appeal by the Attorney-General against the sentence imposed on Kristian Clarence McDonald. The respondent pleaded guilty to a charge of wounding, contrary to the Criminal Code, s172, and was sentenced to 18 months' imprisonment. The Attorney-General argued that the sentence was manifestly inadequate and sought a higher sentence. The appeal raised questions about the adequacy of the sentence, the consistency and individualisation of sentencing, and the principles governing re-sentencing in the context of a Crown appeal. The Court examined the range of penalties for similar offences, the individual characteristics of the offender, and the nature of the attack. The Court concluded that the sentence, while on the upper end of the range for wounding offences, was not manifestly inadequate. The Court also considered the principle of double jeopardy in the context of a Crown appeal and determined that while it should be taken into account, it should not be given undue weight. The Court dismissed the appeal, maintaining the original sentence of 18 months' imprisonment.