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.
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
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
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.
The sole ground of appeal was that the sentence is manifestly excessive. No specific error was asserted in the notice of appeal.
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
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]
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.
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Cordwell v Tasmania [2017] TASCCA 14
Case
[2017] TASCCA 14
Decision Date
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.