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Connelly v Tasmania

Connelly v Tasmania

Case [2015] TASCCA 15 29 June 2015

Statutory Interpretation

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[2015] TASCCA 15

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

CITATION: Connelly v Tasmania [2015] TASCCA 15

PARTIES:  CONNELLY, Paul Edward Brian
  v
  STATE OF TASMANIA

FILE NO:  1278/2013
DELIVERED ON:  29 June 2015
DELIVERED AT:  Hobart
HEARING DATE:  3 March 2015
JUDGMENT OF:  Tennent, Wood and Estcourt JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Attempted murder (two counts) – 20 years' imprisonment with a non-parole period of 15 years.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  T Jago SC
             Respondent:  D Coates SC
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASCCA 15
Number of paragraphs: 41

Serial No 15/2015
File No 1278/2013

PAUL BRIAN EDWARD CONNELLY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
WOOD J (Dissenting)
ESTCOURT J
29 June 2015

Orders of the Court

Appeal allowed (insofar as it relates to the non-parole period).

The order by which the appellant was granted a non-parole period of 15 years is quashed.

The appellant is to be eligible for parole after he has served 12 years of the head sentence imposed.

Serial No 15/2015
File No 1278/2013

PAUL BRIAN EDWARD CONNELLY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J

29 June 2015

I have had the benefit of reading in draft form the reasons of Estcourt J in this matter. I agree in substance with those reasons and the outcome he proposes. I would also allow the appeal. In doing so, I would not interfere with the head sentence of 20 years' imprisonment. I would however quash the order setting a non-parole period of 15 years, and in its place order that the appellant be eligible for parole when he has served 12 years of the sentence imposed.

File No 1278/2013

PAUL BRIAN EDWARD CONNELLY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
29 June 2015

I agree with Estcourt J that the sentence of imprisonment of 20 years for the commission of the two crimes of attempted murder in this case was not manifestly excessive. In my view, the head sentence was justly proportionate to the gravity of the crimes and met the needs of deterrence, punishment and denunciation.
The appellant's submissions related to whether these crimes justified a higher sentence than considered by the Court of Criminal Appeal in Burling v Tasmania [2007] TASSC 104. The sentence in Burling is the heaviest sentence previously imposed in this jurisdiction since 1978 for the crime of attempted murder, with one exception involving 20 counts. In Burling, the Court of Criminal Appeal rejected an appeal with respect to a sentence of 15 years' imprisonment with a non-parole period of 10 years for two counts of attempted murder. Submissions referred to Burling as having extended the range of…

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 Connelly v Tasmania

Details

AGLC: Connelly v Tasmania [2015] TASCCA 15
Case: [2015] TASCCA 15
Decision Date: 29 June 2015

CaseChat Overview and Summary

The appellant, Connelly, appealed against his sentence of 20 years' imprisonment with a non-parole period of 15 years, imposed by the Supreme Court of Tasmania for two counts of attempted murder. The appeal concerned the non-parole period, with the appellant arguing it was manifestly excessive.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the non-parole period of 15 years was demonstrably excessive, warranting interference on appeal.

The Court allowed the appeal in relation to the non-parole period. While acknowledging the gravity of the offences, the Court found that the non-parole period of 15 years was too high and disproportionate. The Court reasoned that a lesser non-parole period would still adequately reflect the seriousness of the offending and the need for punishment and deterrence, while also allowing for the possibility of rehabilitation. Consequently, the order fixing the non-parole period at 15 years was quashed, and the appellant was made eligible for parole after serving 12 years of his head sentence.

Orders

Orders of the court

1. Appeal allowed (insofar as it relates to the non-parole period).

2. The order by which the appellant was granted a non-parole period of 15 years is quashed.

3. The appellant is to be eligible for parole after he has served 12 years of the head sentence imposed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Connelly v Tasmania [2015] TASCCA 15

Most Recent Citation

Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1

Cases citing this decision · 21 of 21 shown

Lockwood v Tasmania
[2025] TASCCA 6

…Connelly v Tasmania [2015] TASCCA 15 considered…
Lockwood v Tasmania
[2024] TASCCA 15

…Connelly v Tasmania [2015] TASCCA 15 considered…
SRR v Tasmania
[2023] TASCCA 6 Para 14

…d sentence. 18 It must be remembered that in setting the non-parole period, the sentencing judge's discretion is not fettered. In Connelly v Tasmania [2015] TASCCA 15, Wood J at [14] said: "[14] It can be seen that the court's discretion is not fettered. The factors set out in the sub-paragraphs may be taken into a…
Sadler v Tasmania
[2022] TASCCA 9 Para 56

…setting of a lengthy non-parole period renders the sentence manifestly excessive: Groenewege v Tasmania [2013] TASCCA 7 at [56]; Connelly v Tasmania [2015] TASCCA 15 per Wood J at [8]. Error is not merely demonstrated because the ratio of non-parole period to head sentence is higher than the court’s 'usual' approa…
Brennan v Tasmania
[2022] TASCCA 7 Para 68

…vindication of the sanctity of human life.[6] [4] Power v The Queen (1974) 131 CLR 623; Butt v Tasmania [2018] TASCCA 3 at [68]; Connolly v Tasmania [2015] TASCCA 15 per Wood J at [14]-[18]. [5] Pickrell v Tasmania [2011] TASCCA 13 at [13]. [6] Braslin and Cowen v Tasmania [2010] TASCCA 1, per Porter J at [23] and…
Hawdon v Tasmania
[2022] TASCCA 4 Para 5

…12 Having noted those comments, it is as well to bear in mind what was said by Wood J in Connelly v Tasmania [2015] TASCCA 15 at [5], namely: "By considering the circumstances that have given rise to the sentence, unifying principles may be discerned. Previous sentences encapsulate the 'accumulated wisdom and exper…
Bishop v Tasmania
[2019] TASCCA 21 Para 28

…4]; R v Kilic [2016] HCA 48, 259 CLR 256 at [22]; Director of Public Prosecutions (Acting) v Poole [2015] TASCCA 10 at [28]-[29]; Connelly v Tasmania [2015] TASCCA 15 at [45]; R v Dowie [1989] Tas R 167 at 186.…
Banks v Tasmania
[2019] TASCCA 1 Para 1

…4]; R v Kilic [2016] HCA 48, 259 CLR 256 at [22]; Director of Public Prosecutions (Acting) v Poole [2015] TASCCA 10 at [28]-[29]; Connelly v Tasmania [2015] TASCCA 15 at [45]; R v Dowie [1989] Tas R 167 at 186.…
Hodgetts v Tasmania
[2018] TASCCA 15 Para 17

…asking the Court to examine itself". [1] In fact three such appeals succeeded in 2015: Baldock v Tasmania [2015] TASCCA 3; Connelly v Tasmania [2015] TASCCA 15; and Summers v Tasmania [2015] TASCCA 23.…
Director of Public Prosecutions v Karklins
[2018] TASCCA 6 Para 10

…claim to prior good character: see Groenewege v Tasmania (above) at [56]–[60], Porter J (with whom Wood and Tennent JJ agreed); Connelly v Tasmania [2015] TASCCA 15, at [8]–[25] (Wood J), [38]–[40], Estcourt J (with whom Tennent J agreed).…
Upston v Tasmania
[2018] TASCCA 4 Para 2

…ut merely serves to increase the level of scrutiny. See Director of Public Prosecutions (Acting) v Poole [2015] TASCCA 5 at [15]; Connolly v Tasmania [2015] TASCCA 15 at [5]; Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 at [24], [26]; TGW (above) at [36].…
Cordwell v Tasmania
[2017] TASCCA 14 Para 2

…TASCCA 5 per Wood J at [15], Estcourt J at [51]-[52]; Director of Public Prosecutions (Acting) v Poole [2015] TASCCA 10 at [28]; Connelly v Tasmania [2015] TASCCA 15 at [5]; Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 at [24], [26]."…
SG v Tasmania
[2017] TASCCA 12 Para 3

…TASCCA 5 per Wood J at [15], Estcourt J at [51]-[52]; Director of Public Prosecutions (Acting) v Poole [2015] TASCCA 10 at [28]; Connelly v Tasmania [2015] TASCCA 15 at [5]; Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 at [24], [26]."…
TGW v Tasmania
[2017] TASCCA 10 Para 6

…TASCCA 5 per Wood J at [15], Estcourt J at [51]-[52]; Director of Public Prosecutions (Acting) v Poole [2015] TASCCA 10 at [28]; Connelly v Tasmania [2015] TASCCA 15 at [5]; Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 at [24], [26].…
Mitchell v Tasmania
[2017] TASCCA 9 Para 6

…The principles to be applied by a sentencing court when considering the length of a non-parole period are summarised by Wood J in Connelly v Tasmania [2015] TASCCA 15. Although her Honour differed from the majority in the application of the principles to the circumstances of that case it is convenient to adopt her…
Bartle v Tasmania
[2016] TASCCA 18 Para 4

…s can be established (see Hili v The Queen [2010] HCA 45, 242 CLR 520; Barbaro v The Queen [2014] HCA 2, 253 CLR 58 at [40]-[41]; Connelly v Tasmania [2015] TASCCA 15). It is doubtful that past sentencing in Tasmania for armed robbery has established a tariff (see Director of Public Prosecutions v Harris [2013] TAS…
Kaye v Tasmania
[2016] TASCCA 15 Para 2

…d render them of no real assistance in any comparable sentencing exercise: Daley v Tasmania [2016] TASCCA 10 per Brett J at [41]; Connolly v Tasmania [2015] TASCCA 15 per Wood J at [5]. Indeed the learned sentencing judge remarked to counsel on the hearing of the pleas of guilty that an offence against s 181 was "t…
Streets v Tasmania
[2016] TASCCA 13 Para 3

…egal principles: Hili v The Queen [2010] HCA 45, 242 CLR 520 at 535 [48] and 535-536 [49]. As was recently explained by Wood J in Connelly v Tasmania [2015] TASCCA 15 at [5]: "By considering the circumstances that have given rise to the sentence, unifying principles may be discerned. Previous sentences encapsulate…
Daley v Tasmania
[2016] TASCCA 10 Para 3

…In Connolly v Tasmania [2015] TASCCA 15, Wood J said at [5]: "The correct approach to seeking consistency with sentences imposed in other cases is well-established. The consistency that is sought is not demonstrated by, and does not require, 'numerical equivalence', but rather, consistency in the application of the…
Sweetman v Tasmania
[2016] TASCCA 5 Para 10

…As to the way in which past sentences are to be considered, I respectfully agree with the comments made by Wood J in Connelly v State of Tasmania [2015] TASCCA 15 at [4]-[5]. Even if it is the case that, over the last few years, persons convicted of trafficking in a controlled substance for the first time have comm…
Director of Public Prosecutions (Acting) v CBF
[2016] TASCCA 1 Para 17

…no unjustifiable discrepancy with the sentence in SK or any of the other cases I have considered. In any event, as Wood J said in Connelly v Tasmania [2015] TASCCA 15 at [5], albeit in dissent as to the result: "The correct approach to seeking consistency with sentences imposed in other cases is well-established. T…

View all 21 citing cases →

Cases cited in this decision · 22 of 22 shown

Groenewege v Tasmania
[2013] TASCCA 7 Para 7

…period is under scrutiny, the question is whether the length of the non-parole period renders the sentence manifestly excessive: Groenwege v Tasmania [2013] TASCCA 7 at [56]. The question is to be framed in this way because there is no ground asserting specific error with respect to the fixing of the non-parole pe…
Director of Public Prosecutions v Harris
[2013] TASCCA 5 Para 15

…in Tasmania: Carr v The Queen (2002) 11 Tas R 362 at 389 [96]; Richman v Tasmania [2011] TASCCA 18 at [47]; Director of Public Prosecutions v Harris [2013] TASCCA 5 at [10] per Blow CJ. In fact, it was applied as well in relation to the former regime under the Parole Act: Adams v The Queen [1998] TASSC 41 per Cox…
Enniss v Tasmania
[2012] TASCCA 10 Para 4

…or which would justify a requirement to serve a greater proportion of the head sentence than one half, is a bad criminal record: Enniss v Tasmania [2012] TASCCA 10 at [21]; Wahl v Tasmania [2012] TASCCA 5. Other, perhaps associated, factors would be the protection of the community as a whole: Mabb v Tasmania [2008]…
Wahl v Tasmania
[2012] TASCCA 5 Para 4

…rve a greater proportion of the head sentence than one half, is a bad criminal record: Enniss v Tasmania [2012] TASCCA 10 at [21]; Wahl v Tasmania [2012] TASCCA 5. Other, perhaps associated, factors would be the protection of the community as a whole: Mabb v Tasmania [2008] TASSC 22 at [27], and a poor previous pa…
Richman v Tasmania
[2011] TASCCA 18 Para 15

…d to all circumstances of his offence" applies to the parole regime in Tasmania: Carr v The Queen (2002) 11 Tas R 362 at 389 [96]; Richman v Tasmania [2011] TASCCA 18 at [47]; Director of Public Prosecutions v Harris [2013] TASCCA 5 at [10] per Blow CJ. In fact, it was applied as well in relation to the former regi…
Pickrell v Tasmania
[2011] TASCCA 13 Para 4

…proportion to moral culpability. The sentence was varied by a reduction of the non-parole period to 21 months. 58 Similarly in Pickrell v Tasmania [2011] TASCCA 13, factors of mature age with no record of offending and an extreme unlikelihood of re-offending, were said to justify the reduction of a 2½ year non-par…
Johnstone v Tasmania
[2011] TASCCA 9 Para 4

…r head sentence was not shown to be manifestly excessive, the non-parole period made the sentence a manifestly excessive one. In Johnstone v Tasmania [2011] TASCCA 9, the non-parole period was set at 2½ years (a little over 70%) of a 3½ year term. The court concluded that having regard to mitigating circumstances,…
West Tamar Council v Tasmanian Planning Commission
[2011] TASSC 15 Para 1

…f assuaging informed moral outrage of the community, reasserting society's values and giving proper weight to the harm done to the victims: DPP v NOP [2011] TASSC 15 at [41].…
Hili v The Queen
[2010] HCA 45 Para 3

…While it is necessary to have regard to past sentences to ensure "reasonable consistency" ( Hili v The Queen (2010) 242 CLR 242 at [49] and [53]), such sentences do not set rigid parameters, and the heaviest sentence historically imposed for a particular type of crime does not constrain the court's sentencing discret…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 4

…the "accumulated wisdom and experience of first instance judges and appellate courts": Hili at [48]-[54], quoting Simpson J in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [303]. Sometimes a history of sentences can establish a range of sentences. Even if there is an established range, that history does not mean that…
Braslin and Cowen v Tasmania
[2010] TASCCA 1 Para 1

…In Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]–[34], Porter J said of the approach of this Court to sentencing appeals of this type: "31 For the purposes of this case, I think it is desirable to traverse some well-travelled territory, and to again note the role of this Court on an appeal against sentence.…
A, MC v Police
[2008] SASC 279 Para 1

…unjust so as to give rise to the inference that there has been a failure to properly exercise the discretion. As Kourakis J said in A, MC v Police (2008) 102 SASR 151 at [88], 'An appeal ground that a sentence is manifestly excessive is really a convenient alternative expression of the complaint that the sentence is…
Mabb v Tasmania
[2008] TASSC 22 Para 4

…at [21]; Wahl v Tasmania [2012] TASCCA 5. Other, perhaps associated, factors would be the protection of the community as a whole: Mabb v Tasmania [2008] TASSC 22 at [27], and a poor previous parole history."…
Burling v Tasmania
[2007] TASSC 104 Para 2

…llant's submissions related to whether these crimes justified a higher sentence than considered by the Court of Criminal Appeal in Burling v Tasmania [2007] TASSC 104. The sentence in Burling is the heaviest sentence previously imposed in this jurisdiction since 1978 for the crime of attempted murder, with one exce…
Carr v R
[2002] TASSC 60 Para 4

…onditional freedom once the prisoner has served the minimum period the judge determines: Power v R [1974] HCA 26; (1974) 131 CLR 623 at 629; Carr v R [2002] TASSC 60; (2002) 11 Tas R 362 at 389 [96]; Richman v Tasmania [2011] TASCCA 18 at [47]. 57 Obviously, whether a non-parole period is appropriate has to be ass…
Dinsdale v The Queen
[2000] HCA 54 Para 1

…venient alternative expression of the complaint that the sentence is by reason of its severity, unreasonable or plainly unjust.' 32 In Dinsdale v R (2000) 202 CLR 321, Kirby J (with whom Gummow and Gaudron JJ agreed) stated at [58]: 'The necessity to show error in such a case is fully accepted by courts deciding appe…
Adams v The Queen
[1998] TASSC 41 Para 15

…Harris [2013] TASCCA 5 at [10] per Blow CJ. In fact, it was applied as well in relation to the former regime under the Parole Act: Adams v The Queen [1998] TASSC 41 per Cox CJ at 2, and Gill per Green CJ at 2. It may be noted that s 17(4) of the Sentencing Act makes specific reference to the nature and circumstan…
Bugmy v The Queen
[1990] HCA 18 Para 9

…so made to the sentencing principles identified in Power v The Queen (1974) 131 CLR 623 , Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525, regarding the court's discretion in fixing non-parole periods. Hili provides clear authority that, subject to any prescriptive terms in the legislat…
Carr v The Queen
[1988] HCA 47 Para 15

…imum time justice requires that the prisoner must serve, having regard to all circumstances of his offence" applies to the parole regime in Tasmania: Carr v The Queen (2002) 11 Tas R 362 at 389 [96]; Richman v Tasmania [2011] TASCCA 18 at [47]; Director of Public Prosecutions v Harris [2013] TASCCA 5 at [10] per Blow CJ.…
Deakin v The Queen
[1984] HCA 31 Para 9

…, which were unfettered. Reference was also made to the sentencing principles identified in Power v The Queen (1974) 131 CLR 623 , Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525, regarding the court's discretion in fixing non-parole periods. Hili provides clear authority that, subject…
Power v The Queen
[1974] HCA 26 Para 4

…avour of the rehabilitation of a prisoner through conditional freedom once the prisoner has served the minimum period the judge determines: Power v R [1974] HCA 26; (1974) 131 CLR 623 at 629; Carr v R [2002] TASSC 60; (2002) 11 Tas R 362 at 389 [96]; Richman v Tasmania [2011] TASCCA 18 at [47]. 57 Obviously, whe…
Adhesives Pty Ltd v Aktieselskabet Dansk Gaerings-Industri
[1935] HCA 83 Para 1

…es. It sits to rectify genuine error'; Aherne v R 20/1982 per Nettlefold J at 3. In accordance with the traditional formula as set out in House v R (1935) 55 CLR 499, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to give rise to the inference that the…

Legislation cited in this decision · 3

Corrections Act 1997 (TAS)
72(4)(a) 1 mention (from Para 17)
Crimes Act 1914 (Cth)
1 mention (from Para 9)
Sentencing Act 1997 (TAS)
17(2) 1 mention (from Para 11)