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Devine v The Queen

Devine v The Queen

Case [2003] TASSC 52 3 July 2003

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[2003] TASSC 52

CITATION: Devine v R [2002] TASSC 52

PARTIES:  DEVINE, Robert Joseph
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 71/2002
DELIVERED ON:  3 July 2003
DELIVERED AT:  Hobart
HEARING DATE/S:  26 May 2003
JUDGMENT OF:  Crawford, Slicer and Evans JJ

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Non-parole period or minimum term - Tasmania - Whether non-parole eligibility for seven years of a sentence of nine years for aggravated armed robbery cumulative upon an earlier non-parole period of five and a half years of a sentence of seven years imprisonment manifestly excessive.
Aust Dig Criminal Law [880.5]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  T J Ellis SC
Solicitors:
             Appellant:  In person
             Respondent:  Director of Public Prosecutions

Judgment ID Number: [2003] TASSC 52
Number of paragraphs: 32

Serial No 52/2003
File Nos CCA 71/2002

ROBERT JOSEPH DEVINE v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J
SLICER J
EVANS J
3 July 2003

Order of the Court

Appeal allowed.
In place of the order of the learned trial judge that the appellant is not to be eligible for parole until he has served seven years of the sentence of imprisonment, it is ordered that he not be eligible for parole until he has served half of the sentence.

Serial No 52/2003
File No CCA 71/2002

ROBERT JOSEPH DEVINE v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J
3 July 2003

I agree with the other members of the Court that the sentence of nine years' imprisonment was not manifestly excessive for the aggravated armed robbery committed by the appellant against a newsagency. He used a sawn-off firearm. Whether it was loaded is not known, but he had ammunition. When the proprietor of the newsagency resisted, the appellant used actual violence to get his way and make off with close to $3,000.00.

He had an appalling record for dishonesty and violence and was entitled to no mercy. His record included causing death by dangerous driving and assault, together with robbery with violence (two charges) and aggravated burglary, for which he was sentenced to four years imprisonment in 1986 and armed robbery, for which he was sentenced to 8 years' imprisonment in 1991. Nineteen months before this crime he committed an aggravated burglary involving violence. Although a long sentence, nine years imprisonment was thoroughly justified, even having regard to the fact that it was ordered to be served cumulatively upon the sentence of seven years imprisonment imposed only three months earlier for the aggravated burglary. It was not a crushing sentence when regard is had to the crime and his record.

However, I also agree with the views of the other members of the Court that the non-parole period of seven years cumulative upon the non-parole of five and a half years imposed for the aggravated burglary, was crushing and manifestly excessive and that the learned judge ought to…

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 Devine v The Queen

Details

AGLC: Devine v The Queen [2002] TASSC 52
Case: [2003] TASSC 52
Decision Date: 3 July 2003

CaseChat Overview and Summary

In the Court of Criminal Appeal of Tasmania, the case of Devine v The Queen was heard, involving the appellant, Robert Joseph Devine, appealing against the sentence imposed for aggravated armed robbery. The appellant was sentenced to a term of imprisonment of nine years with a non-parole period of seven years. The primary legal issue in this case was whether the non-parole period of seven years, cumulative upon a previous non-parole period of five and a half years, was manifestly excessive. The Court held that while the nine-year sentence was justified, the cumulative non-parole period of 12½ years was indeed excessive, given the offender's rehabilitation prospects and the capacity of the Parole Board to assess suitability for release in the future. The Court concluded that the non-parole period should be reduced to half of the sentence, allowing the appellant to be eligible for parole after serving four and a half years.

Orders