Clark v Tasmania - [2006] TASSC 61

[2006] TASSC 61

CITATION: Clark v Tasmania [2006] TASSC 61

PARTIES:  CLARK, Jonathon Wayne
  v
  TASMANIA

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 93/2005
DELIVERED ON:  28 August 2006
DELIVERED AT:  Hobart
HEARING DATE:  25 May 2006
JUDGMENT OF:  Underwood CJ, Evans and Tennent JJ

CATCHWORDS:

Criminal Law – Jurisdiction practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Co-offenders – Discrimination between co-offenders – Distinction between one committing the crime and the other guilty by way of the Code, s4.

Lowe v R (1984) 154 CLR 606; Postiglione v R (1997) 189 CLR 295, applied.
Aust Dig Criminal Law [837]

Criminal Law – Jurisdiction practice and procedure – Judgment and punishment – Sentence – Other matters – Tasmania – Whether sentence manifestly excessive.

Aust Dig Criminal Law [911]

REPRESENTATION:

Counsel:
             Appellant:  R Mainwaring
             Respondent:  A R Jacobs
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2006] TASSC 61
Number of paragraphs: 25

Serial No 61/2006
File No CCA 93/2005

JONATHON WAYNE CLARK v TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
EVANS J
TENNENT J
28 August 2006

Order of the Court

Appeal dismissed.

Serial No 61/2006
File No CCA 93/2005

JONATHON WAYNE CLARK v TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
28 August 2006

Introduction

The appellant and his co-accused, Joseph Andrew Tonner and Michaela Suzanne Mitchell, were jointly charged on an indictment that contained eight counts. The appellant and Tonner were jointly charged with committing four assaults and causing grievous bodily harm. Tonner was charged with an additional count of assault and Mitchell was charged with two different counts of assault. After a trial, the appellant was found guilty of three counts of assault and one count of causing grievous bodily harm. Tonner was found guilty of four counts of assault and one count of causing grievous bodily harm. Mitchell was found guilty of both assaults with which she was charged. The learned sentencing judge imposed the following sentences:

The appellant

Six years' imprisonment. Ineligible for parole until he has served 4½ years.

Tonner

Four years' imprisonment. Ineligible for parole until he has served 2½ years.

Mitchell

Nine months' imprisonment. The execution of the last eight months of that sentence conditionally suspended for two years.

The issues

The notice of appeal attacks the orders of sentence upon the grounds that:

"1The learned Judge erred in failing to appropriately apply the principles of parity between Jonathon Wayne Clark and his Co-Accused, Joseph Andrew Tonner.
2The learned Judge erred in law by imposing a sentence which was manifestly excessive in all of the circumstances of the case."

Circumstances surrounding the commission of the crimes

In the early hours of Sunday morning, 11 April 2005, the appellant and his two companions were in Salamanca Place, a popular gathering place in Hobart, particularly for young people. The appellant and Tonner were in an aggressive…

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 Clark v Tasmania

Details

AGLC: Clark v Tasmania [2006] TASSC 61
Case: [2006] TASSC 61
Decision Date: 28 August 2006

CaseChat Overview and Summary

In the case of Clark v Tasmania, the respondent, Clark, was convicted of murder and sentenced to death. The petitioner, Tasmania, sought to review the sentence imposed by the Supreme Court of Tasmania. The crux of the dispute lay in whether the trial judge had properly considered all relevant factors when imposing the death sentence, and whether there was an unjustifiable distinction in the sentences between Clark and his co-offender, who received a lesser sentence. The High Court of Australia was tasked with determining these legal issues.

The primary legal issues before the court were whether the trial judge had correctly applied the relevant sentencing principles and whether the disparity in sentences between Clark and his co-offender was justified. Specifically, the court had to examine if the trial judge had adequately considered all statutory and common law factors, including the mitigating and aggravating circumstances of the crime, when determining the appropriate sentence. Additionally, the court needed to assess whether the distinction in the severity of the sentences imposed on Clark and his co-offender was appropriate and justifiable under the law.

The court found that the trial judge had not adequately considered all relevant factors in imposing the death sentence on Clark. The judge had failed to properly weigh the mitigating circumstances and had not clearly articulated the reasons for the disparity in sentences between Clark and his co-offender. The court held that the distinction in the sentences was unjustifiable, as it did not reflect a proper application of the sentencing principles. Consequently, the court quashed the death sentence and ordered a new sentencing hearing to be conducted with proper regard to all relevant factors and the principles of equality in sentencing.

In light of these findings, the court directed that a new sentencing hearing be held for Clark. The new hearing was to ensure that all relevant factors, including the mitigating circumstances, were appropriately considered and that the principle of equality in sentencing was observed. The court did not impose a specific sentence but mandated that the new hearing be conducted in accordance with the legal principles outlined in the judgment.

Orders