Crosswell v Tasmania - [2012] TASCCA 1

[2012] TASCCA 1

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

CITATION: Crosswell v Tasmania [2012] TASCCA 1

PARTIES:  CROSSWELL, Rodney Gene
  v
  TASMANIA (STATE OF)

FILE NO/S:  1000/2010
DELIVERED ON:  25 January 2012
DELIVERED AT:  Hobart
HEARING DATE:  12 October 2011
JUDGMENT OF:  Evans, Blow and Tennent JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Other matters – Armed robbery, assaulting a police officer and other offences – Global sentence of ten years and six months' imprisonment – Whether sentence manifestly excessive.

Aust Dig Criminal Law [3537]

REPRESENTATION:

Counsel:
             Appellant:  J N Perks and K L Baumeler
             Respondent:  L A Mason
Solicitors:
             Appellant:  Butler McIntyre & Butler
             Respondent:  Director of Public Prosecutions

Judgment Number: [2012] TASCCA 1
Number of paragraphs: 56

Serial No 1/2012
File No 1000/2010

RODNEY GENE CROSSWELL v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
BLOW J
TENNENT J
25 January 2012

Orders of the Court

Appeal allowed.

The sentence of imprisonment imposed on the appellant on 16 November 2010 is quashed and in its place it is ordered that he serve a global sentence of eight years' imprisonment cumulative upon the sentences totalling 21 months' imprisonment that he was then serving, and that he be eligible to apply for parole after serving five years of the sentence of eight years' imprisonment.

Serial No 1/2012
File No 1000/2010

RODNEY GENE CROSSWELL v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
25 January 2012

Rodney Crosswell appeals against the severity of an in globo sentence imposed on him on 16 November 2010 of ten years and six months' imprisonment, subject to him being eligible to apply for parole after serving six years and six months of the sentence. It was ordered that the sentence be cumulative upon sentences he was then serving totalling 21 months' imprisonment which had commenced on 15 May 2010.

His principal ground of appeal is that the sentence is manifestly excessive. Subsidiary grounds of appeal, which his counsel advanced as particulars of the principal ground, are that the learned sentencing judge erred in failing to accord sufficient weight to the appellant's plea of guilty, his genuine remorse, his intention to make monetary reparation to his victims, and the totality principle.

The sentence subject to appeal, was imposed by Wood J, upon the appellant's plea of guilty to the following charges in respect of conduct on or referable to 13 May 2010:

·     Count 1 - assaulting a police officer. He assaulted Holly Dillon, a police officer, acting in the due execution of her duty by pointing and discharging a .410 calibre single barrel sawn-off shotgun in her direction.
·     Count 2 – stealing. He stole a Commodore sedan.
·     Count 3 – armed robbery. When armed with a .22LR calibre single shot sawn-off rifle, he robbed the proprietor of a newsagency of approximately $1,970.
·     Count 4 - aggravated assault. In the course of the above armed…

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 Crosswell v Tasmania

Details

AGLC: Crosswell v Tasmania [2012] TASCCA 1
Case: [2012] TASCCA 1
Decision Date: 25 January 2012

CaseChat Overview and Summary

Crosswell appealed against a global sentence of ten years and six months' imprisonment imposed by the Supreme Court of Tasmania for offences including armed robbery and assaulting a police officer.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the sentence imposed was manifestly excessive, thereby warranting appellate intervention.

The Court allowed the appeal, finding the original sentence to be excessive. It reasoned that the sentencing judge had failed to adequately account for certain mitigating factors and had placed undue emphasis on others. Consequently, the Court quashed the original sentence and substituted a global sentence of eight years' imprisonment, to be served cumulatively upon existing sentences totalling 21 months. The appellant was made eligible to apply for parole after serving five years of the new eight-year sentence.

Orders

Orders of the court

1. Appeal allowed.

2. The sentence of imprisonment imposed on the appellant on 16 November 2010 is quashed and in its place it is ordered that he serve a global sentence of eight years' imprisonment cumulative upon the sentences totalling 21 months' imprisonment that he was then serving, and that he be eligible to apply for parole after serving five years of the sentence of eight years' imprisonment.

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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