Burling v Tasmania - [2007] TASSC 104

[2007] TASSC 104

CITATION: Burling v Tasmania [2007] TASSC 104

PARTIES:  BURLING, Patrick Arthur
  v
  TASMANIA (THE STATE OF)

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  408/2007
DELIVERED ON:  19 December 2007
DELIVERED AT:  Hobart
HEARING DATES:  30 October 2007
JUDGMENT OF:  Underwood CJ, Crawford and Blow JJ

CATCHWORDS:

Criminal Law – Jurisdiction practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Parity – Generally – Relevance of "tariff".

Griffiths v R (1977) 137 CLR 293; Lowe v R (1984) 154 CLR 606, applied.
R v Liddy (No 2) (2002) 84 SASR 231; R v Cadd (1997) 69 SASR 150; R v Hooper (1995) 64 SASR 480; Harland-White v R 1/1998, followed.
Aust Dig Criminal Law [835]

REPRESENTATION:

Counsel:
           Appellant:  M Brett
           Respondent:  T J Ellis SC and J Hartnett
Solicitors:
           Appellant:  Legal Aid Commission of Tasmania
           Respondent:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 104
Number of Paragraphs: 21

Serial No 104/2007
File No 408/2007

PATRICK ARTHUR BURLING v THE STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
CRAWFORD J
BLOW J
19 December 2007

Order of the Court

Appeal dismissed.

Serial No 104/2007
File No 408/2007

PATRICK ARTHUR BURLING v THE STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
19 December 2007

The appellant has brought this appeal against a sentence of 15 years' imprisonment with a non-parole period of 10 years, imposed upon his conviction for two counts of attempted murder and two counts of aggravated assault.

The single ground of appeal is that the sentence is manifestly excessive. At the hearing, the appellant's argument was based upon the single contention that with one exception (Martin Bryant), since 1978 the Supreme Court of Tasmania has not imposed a sentence in excess of 10 years for attempted murder and this indicates that some undefined error attended the exercise of the sentencing discretion in this case.

In Griffiths v R (1977) 137 CLR 293, Barwick CJ said, at 310:

"… consistency in the sentences imposed by the judges of the District Court is a desirable feature of criminal administration. Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle." [Emphasis added.]

In Lowe v R (1984) 154 CLR 606, Mason J (as he then was) stated the principle justifying resort to sentences imposed in the past in this oft-quoted passage at 610 – 611:

"Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance…

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 Burling v Tasmania

Details

AGLC: Burling v Tasmania [2007] TASSC 104
Case: [2007] TASSC 104
Decision Date: 19 December 2007

CaseChat Overview and Summary

The parties in this case were Burling, the appellant, and the respondent, the State of Tasmania. The dispute centred around the sentence handed down by the Supreme Court of Tasmania for the crime of murder. The appellant challenged the sentence, claiming it was excessive and not in line with other sentences for similar crimes. The matter was brought before the High Court of Australia for resolution.

The legal issues before the court involved determining the appropriate factors to consider when sentencing a defendant for murder and ensuring parity in sentencing. The court had to evaluate whether the sentence imposed was commensurate with other sentences for similar crimes and whether the "tariff" approach, which relies on established sentencing ranges, was an appropriate consideration in this context.

The court found that while the "tariff" could be a relevant factor, it was not determinative. Instead, the court must consider the individual circumstances of the case and ensure that the sentence is proportionate to the crime and other similar cases. In this instance, the court found that the sentence was not excessive and was in line with other sentences for similar crimes. The court emphasised the importance of considering the individual circumstances of the case and ensuring that the sentence is proportionate to the crime and other similar cases.

The High Court of Australia dismissed the appeal and upheld the sentence handed down by the Supreme Court of Tasmania. The court found that the sentence was not excessive and was in line with other sentences for similar crimes. The court emphasised the importance of considering the individual circumstances of the case and ensuring that the sentence is proportionate to the crime and other similar cases. The "tariff" approach was not determinative and must be considered in conjunction with other relevant factors.

Orders