DPP v T - [2012] TASCCA 15

[2012] TASCCA 15

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

CITATION: DPP v T [2012] TASCCA 15

PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS
v

T

FILE NO/S:  198/2012
DELIVERED ON:  21 December 2012
DELIVERED AT:  Hobart
HEARING DATE:  17 October 2012
JUDGMENT OF:  Crawford CJ, Evans and Tennent JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Crown appeal alleging manifest inadequacy – Pleaded guilty to one count of maintaining a sexual relationship with a young person under the age of 17 years, eight counts of producing child exploitation material and two counts of possessing child exploitation material – Found guilty of three counts of rape – Whether sentence of seven years' imprisonment with parole eligibility after four years manifestly inadequate.
Aust Dig Criminal Law [3521]
Criminal Law – Appeal and new trial – Appeal against sentence – Power of appellate court – Generally – Ability of court to make findings of fact.
R v Timbs unreported 11/1974, applied.
Aust Dig Criminal Law [3535]

REPRESENTATION:

Counsel:
           Appellant:  L Mason
           Respondent:  T Jago SC, N Everett
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2012] TASCCA 15
Number of paragraphs: 26

Serial No 15/2012
File No 198/2012

DIRECTOR OF PUBLIC PROSECUTIONS v T

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD CJ
  EVANS J
  TENNENT J
  21 December 2012

Orders of the Court

Appeal allowed.

Sentence of seven years' imprisonment quashed and in substitution for it the respondent is sentenced to imprisonment for 12 years from 23 February 2012 and it is ordered that he is not to be eligible for parole until he has served seven years of the imprisonment.

Serial No 15/2012
File No 198/2012

DIRECTOR OF PUBLIC PROSECUTIONS v T

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD CJ
  21 December 2012

The Director appealed against a sentence imposed by Porter J of seven years' imprisonment, and an order that there be no eligibility for parole for four years, on a sole ground of manifest inadequacy in all the circumstances.

Most of the facts stated in these reasons are drawn from the statements of the learned judge in his comments on passing sentence. However, some have also come from the evidence of the complainant, which his Honour accepted, and a few from watching parts of the recording made by the respondent of his commission of the crimes. I mention that because his counsel submitted it is not open to the Court to make findings of fact that were not made by the learned judge. No authority for that proposition was cited and it was contrary to the authority of R v Timbs unreported 11/1974 per Neasey J at 12, noted in Sentencing in Tasmania by Professor Warner, 2^nd ed, at par15.220.

The sentence was imposed for 14 sexual crimes. The respondent pleaded guilty to 11 of them and was found guilty by a jury of…

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 DPP v T

Details

AGLC: DPP v T [2012] TASCCA 15
Case: [2012] TASCCA 15
Decision Date: 21 December 2012

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed on the respondent, who had pleaded guilty to maintaining a sexual relationship with a young person under 17, eight counts of producing child exploitation material, and two counts of possessing child exploitation material, and was found guilty of three counts of rape. The appeal concerned whether the original sentence of seven years' imprisonment with parole eligibility after four years was manifestly inadequate. The appeal was heard by Crawford CJ, Evans and Tennent JJ.

The central legal issue before the court was whether the sentencing judge erred in imposing a sentence that was manifestly inadequate, given the gravity of the offences committed by the respondent. This required the appellate court to consider its power to interfere with a sentence and, if necessary, to make its own findings of fact to determine an appropriate sentence.

The Court of Appeal found that the original sentence was indeed manifestly inadequate. In reaching this conclusion, their Honours considered the nature and seriousness of the offences, particularly the sexual offences against a child, and the need for general deterrence and denunciation of such conduct. They determined that the sentencing judge had failed to give sufficient weight to these factors and had not adequately reflected the objective seriousness of the offending in the sentence imposed. The court exercised its power to substitute a more appropriate sentence.

The appeal was allowed, the original sentence of seven years' imprisonment was quashed, and the respondent was resentenced to 12 years' imprisonment, with a non-parole period of seven years.

Orders

Orders of the court

1. Appeal allowed.

2. Sentence of seven years' imprisonment quashed and in substitution for it the respondent is sentenced to imprisonment for 12 years from 23 February 2012 and it is ordered that he is not to be eligible for parole until he has served seven years of the 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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