Bradshaw v Tasmania - [2009] TASSC 22

[2009] TASSC 22

CITATION: Bradshaw v Tasmania [2009] TASSC 22

PARTIES:  BRADSHAW, Benjamin John
  v
  TASMANIA

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  543/2008
DELIVERED ON:  9 April 2009
DELIVERED AT:  Hobart
HEARING DATE:  19 November 2008
JUDGMENT OF:  Evans, Tennent and Porter JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Applications to reduce sentence – When refused – Particular offences – Offences against the person – Unlawful act intended to cause grievous bodily harm.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  G A Richardson and P D Sullivan
             Respondent:  J Hartnett
Solicitors:
             Appellant:  Paul Sullivan Lawyer
             Respondent:  Director of Public Prosecutions

Judgment Number: [2009] TASSC 22
Number of paragraphs: 37

Serial No 22/2009
File No 543/2008

BENJAMIN JOHN BRADSHAW v TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
TENNENT J
PORTER J

9 April 2009

Order of the Court:

Appeal dismissed.

Serial No 22/2009
File No 543/2008

BENJAMIN JOHN BRADSHAW v TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
9 April 2009

Arising from a series of events that culminated in the appellant, Benjamin Bradshaw, stabbing the complainant, Kristi Wolfe, the appellant was convicted of a number of crimes and offences for which he received a global sentence of six years' imprisonment and made eligible to apply for parole after serving four years of that sentence. He appeals against that sentence.

The appellant pleaded guilty to all of the crimes and offences that are the subject of the sentence, save for the crime of aggravated burglary, as to which he was found guilty by a jury. The offences that are the subject of the sentence that are not crimes under the Criminal Code Act 1924, were dealt with by the learned sentencing judge pursuant to the Code, s385A. The crimes to which the sentence relates were committed on the night of 21 October 2007 and are:

·Aggravated burglary. The appellant having broken a window in the complainant's residence, climbed through it with the intention of attacking either the complainant or a man in the residence, Riley Hamill, or both of them.
·Committing an unlawful act intended to cause bodily harm. Having entered the complainant's residence, the appellant stabbed her twice to the right side of her stomach as she sat on a lounge.
·Committing an unlawful act intended to cause bodily harm. After inflicting the wounds that are the subject of the above conviction, the appellant took a few steps away from the complainant and then returned to stab her twice to the left side of her stomach.

The learned sentencing judge's findings in relation to the circumstances of the crimes and offences have not been challenged. They include the following. I have added, in italics, references to the offences dealt with pursuant to s385A that are also the subject of the sentence.

"Mr Bradshaw cohabited with the complainant at her home in…

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 Bradshaw v Tasmania

Details

AGLC: Bradshaw v Tasmania [2009] TASSC 22
Case: [2009] TASSC 22
Decision Date: 9 April 2009

CaseChat Overview and Summary

Bradshaw was charged with multiple offences, including unlawful acts intended to cause grievous bodily harm. Following his conviction, the sentencing judge imposed a term of imprisonment. Bradshaw subsequently appealed against the sentence, arguing that it was excessive. The appeal was heard in the Court of Criminal Appeal in Tasmania. The appeal court was required to determine whether the sentence imposed by the primary judge was manifestly excessive or inadequate, and whether there were grounds to interfere with the sentence.

The appeal court considered the nature and gravity of the offences, the circumstances in which they were committed, and the principles of sentencing. The court noted that the offences involved serious violence against multiple victims, and that the primary judge had taken into account relevant aggravating and mitigating factors. The court held that the sentence was not manifestly excessive or inadequate, and that there were no grounds to interfere with the sentence imposed by the primary judge. The court also rejected the applicant's application to reduce the sentence, finding that it was appropriate in all the circumstances.

The appeal was dismissed, and the original sentence was upheld. The court's decision highlights the importance of considering the nature and gravity of the offences, as well as the circumstances in which they were committed, when determining an appropriate sentence. The court also emphasised the need for appellate courts to exercise caution when interfering with the sentencing decisions of primary judges, particularly where those decisions are based on a thorough consideration of the relevant factors.

Orders