TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS) JURISDICTION: APPELLATE FILE NO/S: CCA 77/2001 DELIVERED ON: 25 March 2002 DELIVERED AT: Hobart HEARING DATE: 12 March 2002 JUDGMENT OF: Underwood, Crawford and Evans JJ CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal against sentence - Appeal by Attorney-General or other Crown Law Officer - Applications to increase sentence - Offences against the person - Moderately severe assault - Accused diagnosed schizophrenic - Charge dismissed without recording a conviction - Sentencing principles - General deterrence and public interest in conviction - Whether sentence manifestly inadequate.
Sentencing Act1997 (Tas), ss7(h), 10. R v Briese, ex parte Attorney-General [1998] 1 Qd R 487; R v Brown, ex parte Attorney-General [1994] 2 Qd R 182, applied. Aust Dig Criminal Law [1023]
Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Other matters - Meaning of conviction - Charge dismissed without recording a conviction - Sentencing Act1997, s7(h) - Effect of finding of guilt without recording a conviction.
Counsel: Appellant: T J Ellis SC Respondent: R Mainwaring Solicitors: Appellant: Director of Public Prosecutions Respondent: Legal Aid Commission of Tasmania
Judgment Number: [2002] TASSC 10 Number of paragraphs: 29
Serial No 10/2001 File No CCA77/2001
THE ATTORNEY-GENERAL v WAYNE IAN SMITH
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J CRAWFORD J EVANS J 25 March 2002
Orders of the Court
Appeal allowed.
The dismissal of the charge without the recording of a conviction set aside.
In lieu thereof, it is ordered that the respondent be convicted of assault and discharged.
Serial No 10/2002 File No CCA 77/2001
THE ATTORNEY-GENERAL v WAYNE IAN SMITH
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J 25 March 2002
I agree with the reasons for judgment of Crawford J.
File No CCA77/2001
THE ATTORNEY-GENERAL v WAYNE IAN SMITH
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J 25 March 2002
The respondent pleaded guilty to assault. The learned sentencing judge dismissed the charge, without recording a conviction, pursuant to his power to do so under the Sentencing Act1997, s7(h). The Attorney-General has appealed on one ground only, that being that the learned judge "erred in law in that he imposed a sentence which was manifestly inadequate in all the circumstances of the case".
The facts as presented by Crown counsel were as follows. For a number of years, the respondent had been well known to the complainant, Mrs…
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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AGLC
Attorney-General v Smith [2002] TASSC 10
Case
[2002] TASSC 10
Decision Date
CaseChat Overview and Summary
The Attorney-General appealed against the sentence imposed by the learned sentencing judge on Smith, who had pleaded guilty to an assault charge. The sentencing judge dismissed the charge without recording a conviction, pursuant to the Sentencing Act 1997 (Tas) s7(h). The Attorney-General argued that the learned judge had erred in law by imposing a sentence that was manifestly inadequate in all the circumstances of the case. The Court of Criminal Appeal allowed the appeal, setting aside the dismissal of the charge without recording a conviction and ordering that Smith be convicted of assault and discharged. The sentencing judge had dismissed the charge without recording a conviction, based on the assessment that the case was essentially a medical problem rather than a legal one. However, the Court found that the failure to record a conviction was a manifestly inadequate response to the moderately severe assault committed by Smith. The Court emphasised the importance of recording a conviction to express the community's disapproval of criminal conduct, to provide general deterrence, and to ensure that the victim feels vindicated. The Court concluded that at the very least, a conviction should have been recorded, and ordered that Smith be convicted of assault and discharged.