COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Dunning v Tasmania [2018] TASCCA 21
PARTIES: DUNNING, Cain Jeremiah v STATE OF TASMANIA
THE QUEEN
FILE NO: CCA 1390/2018 DELIVERED ON: 20 December 2018 DELIVERED AT: Hobart HEARING DATE: 14 November 2018 JUDGMENT OF: Estcourt J, Marshall AJ, Porter AJ
CATCHWORDS:
Criminal Law – Sentence – Relevant factors – Response to charges – Plea of guilty – Commonwealth offenders – Courts entitled to take into account utilitarian value of a plea of guilty.
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Attempting to import a marketable quantity of a border controlled drug – Commonwealth offences – Pleas of guilty to three counts – Three different drugs in one transaction – Significant quantity of amphetamine intended for sale – Sentence of six years' imprisonment with a non-parole period of three years and six months not manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel: Appellant: I M Arendt FirstRespondent: M C Figg Second Respondents: G T Stevens Solicitors: Appellant: Rae & Partners Lawyers FirstRespondent: Office of the Director of Public Prosecutions (Tasmania) Second Respondents: Office of the Commonwealth Director of Public Prosecutions
Judgment Number: [2018] TASCCA 21 Number of paragraphs: 71
Serial No 21/2018
File No CCA 1390/2018
CAIN JEREMIAH DUNNING v STATE OF TASMANIA and THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J MARSHALL AJ PORTER AJ 20 December 2018
Order of the Court
Appeal dismissed.
Serial No 21/2018
File No CCA 1390/2018
CAIN JEREMIAH DUNNING v THE QUEEN
CAIN JEREMIAH DUNNING v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J 20 December 2018
The appeal
The appellant, Cain Jeremiah Dunning, appeals against two sentences imposed upon him by Brett J on 18 April 2018.
The learned sentencing judge convicted the appellant of three counts of attempting to import a marketable quantity of a border controlled drug, contrary to ss 307.2(1) and 11.1(1) of the Criminal Code (Cth) and one count of trafficking in controlled substances, contrary s 12(1) of the Misuse of Drugs Act 2001 (Tas).
For the three crimes of attempting to import a marketable quantity of a border controlled drug, the appellant was sentenced to an aggregate term of six years' imprisonment to commence on 13 March 2018 with a non-parole period of three years and six months.
For the crime of trafficking in controlled substances, the appellant was sentenced to a term of 18 months' imprisonment. The learned sentencing judge ordered that the sentence be served concurrently with the Commonwealth sentence.
The appellant appeals on two grounds set out in an amended notice of appeal dated 15 May 2018. They are firstly, that the learned sentencing judge erred in tempering…
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.
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Dunning v Tasmania [2018] TASCCA 21
Case
[2018] TASCCA 21
Decision Date
CaseChat Overview and Summary
In *Dunning v Tasmania*, the Supreme Court of Tasmania considered the appropriate sentence for a Commonwealth offender. The case involved an appeal against a sentence imposed by a lower court, with the appellant arguing that the sentence was excessive.
The central legal issue before the Full Court was the extent to which a court, when sentencing a Commonwealth offender, is entitled to take into account the utilitarian value of a plea of guilty. This involved considering how the early entry of a guilty plea, and the consequent saving of court resources and avoidance of a trial, should be weighed in the sentencing calculus.
The Court affirmed the principle that the utilitarian value of a guilty plea is a relevant factor in sentencing. It reasoned that an early plea of guilty demonstrates remorse and contrition, and significantly contributes to the efficient administration of justice by avoiding the need for a protracted trial. This saving of public resources and the certainty of conviction are legitimate considerations that can justify a reduction in the sentence that might otherwise have been imposed. The Court applied established sentencing principles, balancing the need for punishment and deterrence with the mitigating effect of the offender's cooperation with the justice system.