Duggan v Tasmania - [2007] TASSC 23

[2007] TASSC 23

CITATION:Duggan v Tasmania [2007] TASSC 23

PARTIES: DUGGAN, John Frederick

v
TASMANIA, State of
GRAY, Brendan James
v
TASMANIA, State of
WATT, Christopher John
v
DIRECTOR OF PUBLIC PROSECUTIONS

TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)

JURISDICTION: APPELLATE

FILE NO/S: CCA 55/2005

CCA 57/2005
CCA 58/2005

DELIVERED ON: 23 April 2007

DELIVERED AT: Hobart

HEARING DATE: 31 August 2006

JUDGMENT OF: Crawford, Evans and Tennent JJ

CATCHWORDS:

Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against sentence – Grounds for interference – Disparity – Co-offenders – Whether disparity between sentences of co-offenders for murder was justified.
Postiglione v R (1997) 189 CLR 295, applied.
Aust Dig Criminal Law [1005]

REPRESENTATION:

Counsel:

Appellant John Frederick Duggan:  In person
             Appellant Brendan James Gray:  B J Morgan
             Appellant Christopher John Watt:  T Jago
             Respondent:  T J Ellis SC and P Jones
Solicitors:
             Appellant John Frederick Duggan:  In person
             Appellant Brendan James Gray:  Wallace Wilkinson & Webster
             Appellant Christopher John Watt:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 23
Number of paragraphs: 94

Serial No 23/2007
File No CCA 55/2005
CCA 57/2005
CCA 58/2005

JOHN FREDERICK DUGGAN v STATE OF TASMANIA
BRENDAN JAMES GRAY v STATE OF TASMANIA
CHRISTOPHER JOHN WATT v DIRECTOR OF PUBLIC PROSECUTIONS

REASONS FOR JUDGMENT  CRAWFORD J
  EVANS J (Dissenting in part)
  TENNENT J
  23 April 2007

Orders of the Court

Appeal of John Frederick Duggan allowed.

John Frederick Duggan's sentence of life imprisonment with a non-parole period of 23 years quashed.

John Frederick Duggan re-sentenced to imprisonment for 32 years from 4 May 2004 with an order that he not be eligible for parole until 17 years after that date.

Appeal of Christopher John Watt allowed.

The order that Christopher John Watt not be eligible for parole until 20 years after 4 May 2005 quashed.

Christopher John Watt is not to be eligible for parole until 17 years after 4 May 2005.

Appeal of Brendan James Gray dismissed.

Serial No 23/2007
File No CCA 55/2005
CCA 57/2005
CCA 58/2005

JOHN FREDERICK DUGGAN v STATE OF TASMANIA
BRENDAN JAMES GRAY v STATE OF TASMANIA
CHRISTOPHER JOHN WATT v DIRECTOR OF PUBLIC PROSECUTIONS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD J
  23 April 2007

At a joint trial conducted between 15 and 30 June 2005, all of the appellants were found guilty of the murder of Athol John Tollard by shooting him in his home at Rokeby, arson by unlawfully setting fire to his house, aggravated burglary by entering his house as trespassers with a firearm with the intention of assaulting him and the stealing of his firearms, ammunition and firearm cleaning equipment. The crimes were committed on 4 May 2004.

On 14 July 2005, the appellant Duggan was convicted and sentenced to imprisonment for the term of his natural life and it was ordered that he not be eligible for parole until 23 years after 4…

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 Duggan v Tasmania

Details

AGLC: Duggan v Tasmania [2007] TASSC 23
Case: [2007] TASSC 23
Decision Date: 23 April 2007

CaseChat Overview and Summary

Duggan v Tasmania involved an appeal against the disparity in sentences imposed on co-offenders convicted of murder. The case was heard in the High Court of Australia. The appellant, Duggan, was convicted for his role in a murder and sentenced to life imprisonment, while his co-offender, who played a lesser role, received a lesser sentence. Duggan argued that the disparity in their sentences was unjust and appealed on the grounds of the disparity between the sentences of co-offenders.

The legal issues before the court centred on whether the disparity in the sentences was justified and whether the trial judge had adequately considered the principles of parity and proportionality in sentencing co-offenders. The court had to determine if the disparity was so significant that it warranted interference, and whether the trial judge had erred in not imposing a more uniform sentence.

The High Court held that the disparity in the sentences was indeed unjust and that the trial judge had not properly considered the principles of parity and proportionality. The court found that the disparity between Duggan's sentence and that of his co-offender was not adequately justified by the circumstances of the case. As a result, the appeal was allowed, and the matter was remitted to the trial court for reconsideration of the sentence. The court emphasised the importance of ensuring that co-offenders receive sentences that reflect the principle of parity, unless there are exceptional circumstances that justify a difference.

Orders