Coles v Tasmania - [2013] TASCCA 9

[2013] TASCCA 9

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

CITATION: Coles v Tasmania [2013] TASCCA 9

PARTIES:  COLES, Lewis Wayne
  v
  TASMANIA, STATE OF

FILE NO:  CCA 1130/2012
DELIVERED ON:  5 September 2013
DELIVERED AT:  Hobart
HEARING DATE:  22 August 2013
JUDGMENT OF:  Tennent, Porter and Estcourt JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Two counts of attempted wounding and two of aggravated assault involving use of a firearm – All crimes arising from the one incident – Sentence of 6½ years' imprisonment – Whether sentence manifestly excessive – Sentence to be based on broad and reasonable characterisation of criminal conduct.

Griffiths v R (1989) 167 CLR 372; Attorney-General v Tichy (1982) 30 SASR 84, considered.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  K Baumeler
             Respondent:  A R Jacobs
Solicitors:
             Appellant:  Butler McIntyre & Butler
             Respondent:  Director of Public Prosecutions

Judgment Number: [2013] TASCCA 9
Number of paragraphs: 31

Serial No 9/2013
File No CCA 1130/2012

LEWIS WAYNE COLES v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
PORTER J
ESTCOURT J
5 September 2013

Orders of the Court

The appeal is allowed.

The sentence of 17 December 2012 is set aside.

The appellant is sentenced to four and a half years' imprisonment with effect from 30 August 2012.

The appellant not be eligible for parole until he has served three years of that sentence.

Serial No 9/2013
File No CCA 1130/2012

LEWIS WAYNE COLES v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J

2013
5 September 2013

I have had the opportunity to read the reasons of Estcourt J in draft form. I agree with those reasons and with the outcome he proposes.

File No CCA 1130/2012

LEWIS WAYNE COLES v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PORTER J
5 September 2013

I agree with the reasons for judgment of Estcourt J and with the orders he has proposed.
File No CCA 1130/2012

LEWIS WAYNE COLES v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
5 September 2013

The appeal

The appellant has appealed, on the sole ground of manifest excess, against a sentence of 6½ years' imprisonment with a non-parole period of four years, imposed upon him by Evans J on 17 December 2012. No specific error is asserted in the notice of appeal.

The appellant pleaded guilty to two counts of attempting to unlawfully wound Dallas Barrett, contrary to the Criminal Code, ss172 and 299, and to two counts of aggravated assault contrary to the Code, s183, the first upon Joshua Brandon and the second upon Kenneth Wilkinson.

The facts

After an incident at the home of the appellant on 25 May 2012, involving Dallas Barrett, the appellant, on the following day, set out to locate Mr Barrett who was at unit 29, 315 Tolosa Street, Glenorchy,…

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 Coles v Tasmania

Details

AGLC: Coles v Tasmania [2013] TASCCA 9
Case: [2013] TASCCA 9
Decision Date: 5 September 2013

CaseChat Overview and Summary

Coles appealed against a sentence imposed by the Supreme Court of Tasmania following his conviction on two counts of attempted wounding and two counts of aggravated assault, all stemming from a single incident involving the use of a firearm.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the original sentence of 6½ years' imprisonment was manifestly excessive, thereby justifying interference on appeal.

The Court reasoned that the sentencing judge had erred by failing to properly characterise the totality of the appellant's criminal conduct. While acknowledging the seriousness of the offences, the Full Court determined that the original sentence did not adequately reflect the broad and reasonable characterisation of the criminal conduct. Consequently, the appeal was allowed, the original sentence was set aside, and the appellant was resentenced to four and a half years' imprisonment, with a non-parole period of three years.

Orders

Orders of the court

1. The appeal is allowed.

2. The sentence of 17 December 2012 is set aside.

3. The appellant is sentenced to four and a half years' imprisonment with effect from 30 August 2012.

4. The appellant not be eligible for parole until he has served three years of that sentence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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