Cowen v Tasmania - [2018] TASCCA 17

[2018] TASCCA 17

COURT: SUPREME COURT OF TASMANIA

CITATION: Cowen v Tasmania [2018] TASCCA 17

PARTIES:  COWEN, Kristel Cee Anne
  v
  STATE OF TASMANIA

FILE NO:  CCA 1696/2018
DELIVERED ON:  1 November 2018
DELIVERED AT:  Hobart
HEARING DATE:  12 October 2018
JUDGMENT OF:  Blow CJ, Estcourt J, Martin AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Manslaughter – Intoxicated motorist caused fatal collision with motorcycle – Sentence of six years' imprisonment with non-parole period of four years not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  T Kovacic
             Respondent:  L Mason SC, M Figg
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASCCA 17
Number of paragraphs: 23

Serial No 17/2018
File No CCA 1696/2018

KRISTEL CEE ANNE COWEN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
ESTCOURT J
MARTIN AJ
1 November 2018

Order of the Court (12 October 2018)

Appeal dismissed.

Serial No 17/2018
File No CCA 1696/2018

KRISTEL CEE ANNE COWEN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
1 November 2018

On the night of 14 October 2016 the appellant, Kristel Cowen, became very intoxicated, drove south along the northbound lanes of the Brooker Highway, and collided with a motorcycle, killing its rider. She was charged with manslaughter, pleaded guilty, and was sentenced by Brett J to six years' imprisonment, with a non-parole period of four years, and an order disqualifying her from driving for five years after her release from prison.
Ms Cowen appealed to this Court, contending that the head sentence of six years and the non-parole period of four years were manifestly excessive. On 12 October 2018, at the conclusion of the hearing of the appeal, this Court dismissed the appeal, reserving its reasons for publication at a later date.
The facts, circumstances, and applicable legal principles are fully set out in the reasons for judgment of Estcourt J, with which I fully agree. There is a little that I would like to add.
In my view the head sentence of six years' imprisonment was a moderate one, but the non-parole period of four years was a long one. A non-parole period may not be less than one half of the period of the head sentence: Sentencing Act 1997, s 17(3). A non-parole period should be the minimum time that a judge determines justice requires that the offender must serve, having regard to all the circumstances of the offence: Power v The Queen (1974) 131 CLR 623 per Barwick CJ, Menzies, Stephen and Mason JJ at 629. In this case, the learned sentencing judge made it clear that he considered a non-parole period of four years to be the minimum time that the appellant should spend in custody "because of the seriousness of the circumstances of the crime". I decided that that conclusion was reasonably open…

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 Cowen v Tasmania

Details

AGLC: Cowen v Tasmania [2018] TASCCA 17
Case: [2018] TASCCA 17
Decision Date: 1 November 2018

CaseChat Overview and Summary

The Court of Criminal Appeal of Tasmania considered an appeal against sentence in *Cowen v Tasmania*. The appellant, Cowen, had been convicted of manslaughter following a fatal collision caused by his intoxicated driving, which resulted in the death of a motorcyclist. Cowen appealed the sentence imposed by the trial judge, which was six years' imprisonment with a non-parole period of four years.

The central legal issue before the Court of Criminal Appeal was whether the sentence of six years' imprisonment, with a non-parole period of four years, was manifestly excessive in the circumstances of the case. The Court was required to assess the appropriateness of the sentence having regard to the gravity of the offence, the appellant's culpability, and relevant sentencing principles.

The Court applied established principles for reviewing sentences, focusing on whether the sentence imposed was outside the range of reasonable sentences available to the sentencing judge. It considered the factors of intoxication, the fatal consequences of the appellant's actions, and the need for general and specific deterrence. The Court found that the sentencing judge had properly weighed all relevant considerations and that the sentence imposed was not outside the bounds of what was reasonable or just in the circumstances.

Consequently, the Court of Criminal Appeal dismissed the appeal against sentence.

Orders