Burns v Tasmania - [2018] TASCCA 18

[2018] TASCCA 18

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Burns v Tasmania [2018] TASCCA 18

PARTIES:  BURNS, Philip Thomas
  v
  STATE OF TASMANIA

FILE NO:  CCA 3472/2017
DELIVERED ON:  13 November 2018
DELIVERED AT:  Hobart
HEARING DATE:  12 April 2018
JUDGMENT OF:  Blow CJ, Wood and Geason JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Armed robbery – Sentence of 3 years 6 months' imprisonment with non-parole period of 2 years not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  In Person
             Respondent:  E Avery
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASCCA 18
Number of paragraphs: 44

Serial No 18/2018
File No CCA 3472/2017

PHILIP THOMAS BURNS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
WOOD J (Dissenting)
GEASON J
13 November 2018

Order of the Court

Appeal dismissed.

Serial No 18/2018
File No CCA 3472/2017

PHILIP THOMAS BURNS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
13 November 2018

I agree with Geason J that this appeal should be dismissed, for the reasons stated by him.
There is a little that I would like to add in relation to the appellant's non-parole period of 2 years. A non-parole period may not be less than one half of the period of the head sentence: Sentencing Act 1997, s 17(3). A non-parole period should be "the minimum time that a judge determines justice requires that he [the offender] must serve having regard to all the circumstances of his offence": Power v The Queen (1974) 131 CLR 623 per Barwick CJ, Menzies, Stephen and Mason JJ at 629. Since the appellant's head sentence was 3 years 6 months, the shortest possible non-parole period would have been 1 year and 9 months. The non-parole period fixed by the learned sentencing judge was only 3 months longer than that, and only about 57% of the head sentence. In my view there was nothing unreasonable or unjust about the length of the non-parole period, particularly when one considers the appellant's bad criminal record and the shortage of mitigating factors in this case.

File No CCA 3472/2017

PHILLIP THOMAS BURNS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
13 November 2018

I have had the advantage of reading the draft reasons of Geason J. While I agree with much of what his Honour has said, I respectfully disagree with the conclusion reached. The reasons for my dissent may be briefly stated.
I conclude that the sentence of three and a half years with a non-parole period of two years' imprisonment is manifestly excessive. I have reached this view having particular regard to the nature of the appellant's offending. Armed robbery, like all crimes, covers a spectrum of seriousness in terms of criminal conduct and culpability, and the sentence…

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 Burns v Tasmania

Details

AGLC: Burns v Tasmania [2018] TASCCA 18
Case: [2018] TASCCA 18
Decision Date: 13 November 2018

CaseChat Overview and Summary

Burns appealed against a sentence imposed by the Supreme Court of Tasmania following a conviction for armed robbery. The sentence comprised three years and six months imprisonment, with a non-parole period of two years. The appeal was heard by the Full Court of the Supreme Court of Tasmania, comprising Blow CJ, Wood and Geason JJ.

The central legal issue before the Full Court was whether the sentence imposed by the trial judge was manifestly excessive, thereby justifying appellate intervention. The appellant argued that the sentence did not adequately reflect mitigating factors and was unduly harsh given the circumstances of the offence and the offender.

The Full Court considered the nature of armed robbery as a serious offence and the sentencing principles applicable to such crimes. They reviewed the evidence presented at the sentencing hearing, including any mitigating factors put forward by the appellant. After careful consideration of the gravity of the offence, the appellant's personal circumstances, and relevant sentencing precedents, the Court concluded that the sentence of three years and six months imprisonment with a non-parole period of two years was not demonstrably outside the range of appropriate sentences. The Court found no error in the exercise of the sentencing judge's discretion.

The appeal was dismissed.

Orders