[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…
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CaseChat Overview and Summary
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.
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Decision
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