Colbran v Tasmania

[2020] TASCCA 14

[2020] TASCCA 14

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

CITATION:                Colbran v Tasmania [2020] TASCCA 14

PARTIES:  COLBRAN, Belinda Leone
  v
  STATE OF TASMANIA

FILE NO:  CCA 52/2019
DELIVERED ON:  17 September 2020
DELIVERED AT:  Hobart
HEARING DATE:  25 August 2020
JUDGMENT OF:  Blow CJ, Estcourt J and Brett J

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Parity between co-offenders – Murder – Killer and person who enabled or aided commission of the crime.

Lowe v The Queen (1984) 154 CLR 606; Green v The Queen [2011] HCA 49, 244 CLR 462, referred to.
Aust Dig Criminal Law [3522]

REPRESENTATION:

Counsel:
             Appellant:  A Hilly
             Respondent:  J Ransom
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2020] TASCCA 14
Number of paragraphs:  80

Serial No 14/2020

File No CCA 52/2019

BELINDA LEONE COLBRAN v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
ESTCOURT J
BRETT J
17 September 2020

Order of the Court

Appeal dismissed.

Serial No 14/2020

File No CCA 52/2019

BELINDA LEONE COLBRAN v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
17 September 2020

1. This is a sentencing appeal. The appellant, Belinda Colbran, was charged with murder and found guilty by a jury. Geason J sentenced her to 24 years' imprisonment, backdated to commence on the date when she was taken into custody, and ordered that she was not to be eligible for parole until she had served 13 years of that sentence.

2. I have read the judgments of Estcourt J and Brett J in draft form. I agree with them that this appeal should be dismissed. I agree with their reasons. There are comments that I would like to add.

Ground 2(c)

1. When the learned sentencing judge made findings of fact for the purpose of sentencing, one of those findings was that the appellant assisted Mr Smith – the man who killed the deceased – by "effectively restricting" the victim's movement. Addressing himself to Mr Smith, his Honour said, "I find that you used the knife which had been brought to Parua Road by Colbran, that she assisted you by giving you that knife and effectively restricting Mr Monaco's movement whereupon you were able to stab him." Ground 2(c) of the amended notice of appeal asserted that his Honour erred in finding that "Ms Colbran effectively restricted Mr Monaco's movement whereupon Mr Smith stabbed him." The fact that Mr Smith stabbed the deceased was uncontroversial. Ground 2(c) is concerned with the finding that the appellant "effectively restricted" the victim's movement. In my view the learned trial judge erred in making that finding, but his error was inconsequential, and should not result in the appeal succeeding.

2. There was no direct evidence as to the part played by the appellant in the hostilities that culminated in the fatal stabbing of Mr…