Cordwell v Tasmania

Case [2017] TASCCA 14


[2017] TASCCA 14

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

CITATION:                 Cordwell v Tasmania [2017] TASCCA 14

PARTIES:  CORDWELL, Brent Anthony
  v
  STATE OF TASMANIA

FILE NO:  15/2017
DELIVERED ON:  5 September 2017
DELIVERED AT:  Hobart
HEARING DATE:  23 August 2017
JUDGMENT OF:  Estcourt J, Martin and Porter AJJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Appellant found guilty by a jury of causing grievous bodily harm under s 172 of the Criminal Code – Group attack on victim causing serious injury including loss of sight in one eye – Appellant sentenced on the basis of common purpose liability by virtue of s 4 of the Code – Sentencing judge unable to be satisfied beyond reasonable doubt that the appellant was personally responsible for the infliction of grievous bodily harm and unable to be satisfied beyond reasonable doubt that whoever inflicted the harm did so intentionally – Sentence of six years' imprisonment with a non-parole period of four years not manifestly excessive.

Barron v Tasmania [2010] TASCCA 3, 20 Tas R 114, considered.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  F Cangelosi
             Respondent:  M Wilson
Solicitors:
             Appellant:  Simmons Wolfhagen
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2017] TASCCA 14
Number of paragraphs:  36

Serial No 14/2017

File No 15/2017

BRENT ANTHONY CORDWELL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

ESTCOURT J
MARTIN AJ
PORTER AJ
5 September 2017

Order of the Court

  1. Appeal dismissed.

Serial No 14/2017

File No CCA 15/2017

BRENT ANTHONY CORDWELL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

ESTCOURT J
5 September 2017

The appeal

  1. The appellant, Brent Anthony Cordwell, appealed against a sentence of six years' imprisonment with a non-parole period of four years imposed on him by Blow CJ on 19 December 2016. On 23 August 2017 this Court dismissed the appeal. These are my reasons for joining in the order of dismissal.

  2. The sole ground of appeal was that the sentence is manifestly excessive. No specific error was asserted in the notice of appeal.

  3. The sentence was imposed consequent upon the appellant being found guilty by a jury of a single count of causing grievous bodily harm contrary to the Criminal Code, s 172. For sentencing purposes the learned sentencing judge was satisfied that the basis of the appellant's criminal liability was common purpose pursuant to s 4 of the Code.

The law as to manifest excess in sentencing

  1. As I have observed in the past in such cases, Professor K Warner in her book Sentencing in Tasmania, 2nd ed, The Federation Press, 2002, at 440, writes on the subject of appellate review of sentences for manifest excess or inadequacy as follows:

    "The Court of Criminal Appeal has consistently followed the approach suggested by the High Court in House [(1936) 55 CLR 499 at 504]

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Cordwell v Tasmania [2017] TASCCA 14
Case
[2017] TASCCA 14
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CaseChat Overview and Summary

The appellant, Cordwell, was found guilty by a jury of causing grievous bodily harm under s 172 of the *Criminal Code*. The charge arose from a group attack on the victim, which resulted in serious injuries, including the loss of sight in one eye. The sentencing judge imposed a sentence of six years' imprisonment with a non-parole period of four years. The appeal was heard by Estcourt J, Martin and Porter AJJ.

The central legal issue before the appellate court was whether the sentence imposed was manifestly excessive or inadequate. This required the court to consider the sentencing judge's approach to liability, particularly in relation to common purpose under s 4 of the *Criminal Code*. Specifically, the court had to determine if the sentencing judge erred in finding that the appellant was not personally responsible for inflicting the grievous bodily harm, nor that the harm was inflicted intentionally by any participant in the attack, to the requisite standard of proof.

The appellate court reasoned that the sentencing judge had correctly applied the principles of criminal liability. The judge was unable to be satisfied beyond reasonable doubt that the appellant personally inflicted the grievous bodily harm, nor that any participant acted with the intention to cause such harm. Despite this, the judge found the appellant guilty on the basis of common purpose liability. The court concluded that, given the appellant's participation in the group attack and the serious nature of the victim's injuries, the sentence of six years' imprisonment with a non-parole period of four years was not manifestly excessive.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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