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Cleaver v Tasmania

Cleaver v Tasmania

Case [2018] TASCCA 11 22 August 2018

Statutory Interpretation

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[2018] TASCCA 11

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

CITATION: Cleaver v Tasmania [2018] TASCCA 11

PARTIES:  CLEAVER, Aaron John
  v
  STATE OF TASMANIA

FILE NO:  CCA 744/2018
DELIVERED ON:  22 August 2018
DELIVERED AT:  Hobart
HEARING DATE:  17 April 2018
JUDGMENT OF:  Wood J, Pearce J, Marshall AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Two and a half years' imprisonment with a non-parole period of 18 months for aggravated sexual assault and sexual intercourse with a young person – Age disparity of 10 years – Appellant intellectually impaired – No overt resort to emotional pressure or manipulation – Sentence manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  P Monk
             Respondent:  H Denton
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASCCA 11
Number of paragraphs: 44

Serial No 11/2018
File No CCA 744/2018

AARON JOHN CLEAVER v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
PEARCE J
MARSHALL AJ
22 August 2018

Orders of the Court

Appeal allowed.

Sentence of 2½ years' imprisonment, imposed on 2 March 2018, quashed.

Appellant sentenced to 12 months' imprisonment from 23 February 2018.

Appellant not to be eligible for parole until he has served 6 months of that sentence.

Serial No 11/2018
File No CCA 744/2018

AARON JOHN CLEAVER v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
22 August 2018

I agree with the conclusion reached by Pearce J and Marshall AJ that the sentence is manifestly excessive and that the appeal should be allowed. I agree with the reasons of Pearce J and with the orders proposed by his Honour.
In relation to the argument regarding the well established principle in R v De Simoni (1981) 147 CLR 383 at 389 per Gibbs CJ, I consider that the comments of the learned sentencing judge, when taken in context, should not be read as offending that principle.

File No CCA 744/2018

AARON JOHN CLEAVER v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
22 August 2018

This is a sentencing appeal. The appellant pleaded guilty to one count of aggravated sexual assault and one count of sexual intercourse with a young person. On 2 March 2018 he was sentenced by Slicer AJ to imprisonment for 2½ years from 23 February 2018, with eligibility for parole after having served 18 months. His Honour ordered that the Registrar appointed under s 42 of the Community Protection (Offender Reporting) Act 2005 place the appellant's name on the register under that Act and that he comply with the reporting obligations under that Act for five years.
The sole ground of appeal is that the sentence is manifestly excessive.

The criminal conduct

Both crimes were committed against the same female complainant. At the time the appellant was aged…

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 Cleaver v Tasmania

Details

AGLC: Cleaver v Tasmania [2018] TASCCA 11
Case: [2018] TASCCA 11
Decision Date: 22 August 2018

CaseChat Overview and Summary

Cleaver appealed against a sentence imposed by the Supreme Court of Tasmania for aggravated sexual assault and sexual intercourse with a young person. The appellant, who was intellectually impaired, received a sentence of two and a half years' imprisonment with a non-parole period of 18 months. The victim was significantly younger than the appellant, with an age disparity of 10 years.

The appeal concerned whether the sentence imposed was manifestly excessive, thereby justifying interference by the appellate court. The grounds for appeal focused on the severity of the sentence in light of the appellant's intellectual impairment and the absence of overt emotional pressure or manipulation in the commission of the offences.

The Court of Criminal Appeal of Tasmania allowed the appeal. It reasoned that while the offences were serious, the sentencing judge had given insufficient weight to the appellant's intellectual impairment and the lack of manipulative behaviour. The Court found that these factors, when considered in conjunction with the totality of the circumstances, rendered the sentence manifestly excessive. The Court applied the principle that a sentence must be proportionate to the gravity of the offence and the culpability of the offender, taking into account all relevant mitigating and aggravating factors.

The Court ordered that the sentence be set aside and substituted with a sentence of 18 months' imprisonment, with a non-parole period of 9 months.

Orders