Banfield v Tasmania - [2024] TASCCA 1

[2024] TASCCA 1

COURT:	SUPREME COURT OF TASMANIA (COURT OF APPEAL)
CITATION:	Banfield v Tasmania [2024] TASCCA 1
PARTIES:	BANFIELD, Beverley Anne
v
STATE OF TASMANIA
FILE NO:	1293/2022
DELIVERED ON:	1 February 2024
DELIVERED AT:	Hobart
HEARING DATE:	8 June 2023
JUDGMENT OF:	Wood, Estcourt, and Jago JJ
CATCHWORDS:

Criminal law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – No specific error alleged – One count of robbery involving theft of jewellery from fashion boutique and violence involving punching and biting complainant – 2 years' imprisonment with non-parole period of 14 months to be served cumulatively to current term not manifestly excessive.

Bugmy v The Queen [2013] HCA 37; 249 CLR 571, considered.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant: M McShane
Respondent: A Hilly

Solicitors:

Appellant: Tasmania Legal Aid
Respondent: Director of Public Prosecutions

Judgment Number:	[2024] TASCCA 1
Number of paragraphs:	40

Serial No 1/2024

File No 1293/2022

BEVERLEY ANNE BANFIELD v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL
WOOD J
ESTCOURT J
JAGO J

1 February 2024

Order of the Court:

Appeal dismissed.

2 No 1/2024

File No CCA 1293/2022

BEVERLEY ANNE BANFIELD v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL
WOOD J
1 February 2024

1             I have had the advantage of reading the reasons of Estcourt J. I agree with those reasons and the conclusion reached that the appeal should be dismissed. In my view, the sentence for this offender and for this crime was heavy, though not too harsh, and moreover, did not meet the threshold test of manifestly excessive.
2             I agree also with the additional comments of Jago J, and I wish to add some brief remarks of my own regarding the authority of Bugmy v The Queen [2013] HCA 37, 249 CLR 571, noting that this was a case where the offender's background of deprivation was relied upon as one of the reasons why the sentence was said to be manifestly excessive.
3             This case illustrates the importance of counsel at the sentencing hearing pointing to material tending to establish a background of deprivation if such deprivation is to be relied upon as a matter in mitigation. Counsel for the appellant was not counsel at the sentencing hearing and, as highlighted by Jago J, there was scant and inadequate material about the appellant's background that counsel for the appellant could draw upon in this regard.
4            Such a background, if shown, is undoubtedly relevant and may operate to mitigate the sentence. In Bugmy, the plurality judgment at [40] noted that:
"The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way."

5 The judgment went on…

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 Banfield v Tasmania

Details

AGLC: Banfield v Tasmania [2024] TASCCA 1
Case: [2024] TASCCA 1
Decision Date: 1 February 2024

CaseChat Overview and Summary

Banfield appealed against a sentence imposed by the Supreme Court of Tasmania. The appellant had pleaded guilty to one count of robbery, which involved the theft of jewellery from a fashion boutique and the use of violence against the complainant, including punching and biting. The sentence imposed was two years' imprisonment, with a non-parole period of 14 months, to be served cumulatively upon a current term of imprisonment.

The sole legal issue before the Full Court of the Supreme Court of Tasmania was whether the sentence imposed was manifestly excessive. The appellant did not allege any specific error in the sentencing process.

The Full Court considered the nature of the offence, noting the element of violence involved in the robbery. It applied the principle that a sentence is only to be set aside on appeal if it is "manifestly excessive," meaning that it is demonstrably wrong or unjust. The Court found that, having regard to the gravity of the offence and the circumstances of its commission, the sentence of two years' imprisonment with a non-parole period of 14 months, served cumulatively, was not outside the bounds of what was appropriate.

The appeal was therefore dismissed.

Orders