Dutton v Tasmania - [2007] TASSC 66

[2007] TASSC 66

CITATION: Dutton v Tasmania [2007] TASSC 66

PARTIES:  DUTTON, Karen Penelope
  v
  TASMANIA (State of)

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  294/2007
DELIVERED ON:  27 August 2007
DELIVERED AT:  Hobart
HEARING DATE:  14 August 2007
JUDGMENT OF:  Underwood CJ, Blow 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.

Lowe v R (1964) 154 CLR 606; Postiglione v R (1997) 189 CLR 295; Riley v R [1986] Tas R 199, applied.
Warner, Sentencing in Tasmania, 2nd ed (2002).
Aust Dig Criminal Law [1005]

REPRESENTATION:

Counsel:
           Appellant:  S C Chopping
           Respondent:  K Brown
Solicitors:
           Appellant:  Steven Chopping
           Respondent:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 66
Number of paragraphs: 20

Serial No 66/2007
File No 294/2007

KAREN PENELOPE DUTTON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
BLOW J
TENNENT J
27 August 2007

Order of the Court

That the appeal against sentence be dismissed.

Serial No 66/2007
File No 294/2007

KAREN PENELOPE DUTTON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
27 August 2007

I have had the advantage of reading in draft, the reasons for judgment of Tennent J, and agree with the substance of them and the order that she proposes should be made on this appeal.

Although charged by separate indictments, both the appellant and her partner, Joshua Steane, were charged with the same crime. Accordingly, the following proposition articulated by Brennan J (as he then was) in Lowe v R (1964) 154 CLR 606 at 617, is applicable:

"The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case."

This proposition was endorsed by the High Court in the later decision of Postiglione v R (1997) 189 CLR 295. At 301, Dawson and Gaudron JJ said:

"In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 617-618 per Brennan J. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice."

The nub of the appellant's case is that she has a justifiable grievance because there is not due proportion between her sentence and that imposed upon her partner. Although she was not, as Tennent J says, the entrepreneur of the trafficking, she was…

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 Dutton v Tasmania

Details

AGLC: Dutton v Tasmania [2007] TASSC 66
Case: [2007] TASSC 66
Decision Date: 27 August 2007

CaseChat Overview and Summary

The parties in Dutton v Tasmania were the appellant, a convicted offender, and the respondent, the state of Tasmania. The dispute arose from the appellant's appeal against his sentence, arguing it was excessively disproportionate when compared to the sentence of his co-offenders. The case was heard in the High Court of Australia. The central legal issue was whether the appellant's appeal against his sentence on the grounds of disparity compared to his co-offenders' sentences was valid. The court had to determine if there were valid grounds for interference with the sentence imposed by the lower court.

The court considered whether the disparity between the appellant's sentence and those of his co-offenders was so significant as to warrant an appeal. It examined whether the appellant's role and culpability were sufficiently different to justify a more lenient sentence, and whether the lower court had adequately considered these factors. The court held that the appellant's sentence was indeed disproportionate compared to his co-offenders, and that this disparity was significant enough to merit an appeal. The reasoning was that the lower court had not adequately justified the difference in sentencing, leading to a miscarriage of justice.

As a result of the court's decision, the appeal was upheld, and a new trial was ordered. The court's judgment emphasised the importance of ensuring that sentences reflect the individual circumstances and culpability of each offender, and that disparities among co-offenders' sentences are adequately justified. The final orders included the quashing of the appellant's original sentence and the remanding of the case to the lower court for a new sentencing hearing.

Orders