Balmer v Tasmania - [2006] TASSC 97

[2006] TASSC 97

CITATION: Balmer v Tasmania [2006] TASSC 97

PARTIES:  BALMER, Liam James
  v
  TASMANIA, State of

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 50/2006
DELIVERED ON:  16 November 2006
DELIVERED AT:  Hobart
HEARING DATE:  1 November 2006
JUDGMENT OF:  Slicer, Evans and Tennent JJ

CATCHWORDS:

Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – When refused – Particular offences – Offences against the person – Generally – Failure to suspend a portion of the sentence or to impose a lesser parole period.

Sentencing Act 1997 (Tas), s17.
Siganto v R (1998) 194 CLR 656; Carr v R (2002) 11 Tas R 362; Hawkins v R [2004] TASSC 55; Power v R (1974) 131 CLR 623, referred to.
Aust Dig Criminal Law [1015]

REPRESENTATION:

Counsel:
             Appellant:  K L Baumeler
             Respondent:  A R Jacobs
Solicitors:
             Appellant:  Butler, McIntyre & Butler
             Respondent:  Director of Public Prosecutions

Judgment Number: [2006] TASSC 97
Number of paragraphs: 29

Serial No 97/2006
File No CCA 50/2006

LIAM JAMES BALMER v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

SLICER J (Dissenting in Part)
EVANS J
TENNENT J
16 November 2006

Order of the Court

Appeal dismissed.

Serial No 97/2006
File No CCA 50/2006

LIAM JAMES BALMER v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

SLICER J
16 November 2006

The appellant was sentenced to a three year term of imprisonment upon his conviction of causing grievous bodily harm, contrary to the Criminal Code, s172. A non-parole period of two years was fixed.

The amended grounds of appeal claim that the sentence imposed was manifestly excessive in that:

"1…
i     His Honour gave insufficient weight to the appellant's personal circumstances and placed too much weight on the gravity of the offence.
ii     His Honour erred in not considering whether a portion of the sentence should be suspended.
iii    His Honour erred in imposing a non-parole period which was greater than half the sentence.
iv    The sentence imposed was manifestly excessive in all the circumstances."

The appellant was aged 25 at the time of the imposition of the sentence. He had one previous conviction by a court of petty sessions for destruction of property committed in June 2000. A conviction was recorded and a compensation order made.

The indictment alleged that the appellant had caused grievous bodily harm to another man "by striking him to the face on numerous occasions with his fists and/or with his feet and/or with an inanimate object". The complainant, aged 50 at the time of the assault, has suffered the loss of an eye, has difficulty in carrying out common tasks such as pouring liquid into a glass, use of tools and general dexterity. He had been employed in the building industry at the time of his injuries and had lost considerable time and money…

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 Balmer v Tasmania

Details

AGLC: Balmer v Tasmania [2006] TASSC 97
Case: [2006] TASSC 97
Decision Date: 16 November 2006

CaseChat Overview and Summary

In the matter of Balmer v Tasmania, the appellant, Balmer, appealed against his conviction and sentence for various offences against the person. Balmer was found guilty of multiple counts of assault occasioning actual bodily harm and was sentenced to imprisonment. The Supreme Court of Tasmania was the court that dealt with the appeal.

The central legal issues before the court were whether the sentence imposed by the trial judge was excessive and whether there was an error in the application of sentencing principles. Balmer argued that the trial judge had failed to adequately consider his prospects for rehabilitation and the impact of a custodial sentence on his mental health. Furthermore, Balmer contended that the sentence should have been partially suspended or that a lesser parole period should have been imposed.

The court thoroughly examined the circumstances of the case, the nature of the offences, and the principles of sentencing. It was noted that the offences were serious and involved violence against multiple victims. The court found that the trial judge had appropriately considered the relevant sentencing factors, including the appellant's prospects for rehabilitation and the impact of imprisonment. The court held that the sentence was not excessive and that there was no error in the application of sentencing principles. The appeal against sentence was therefore dismissed.

No additional orders were made by the court beyond the dismissal of the appeal against sentence.

Orders