Earle v Tasmania - [2011] TASCCA 16

[2011] TASCCA 16

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

CITATION: Earle v Tasmania [2011] TASCCA 16

PARTIES:  EARLE, Regan Edward Frank
  v
  STATE OF TASMANIA

FILE NO/S:  344/2011
DELIVERED ON:  2 November 2011
DELIVERED AT:  Hobart
HEARING DATE:  12 September 2011
JUDGMENT OF:  Evans, Tennent and Porter JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference - Sentence manifestly excessive or inadequate – Parity between co-offenders – Whether disparity between the suspension of a sentence justified – Drug offences.

Postiglione v R (1997) 189 CLR 295; Lowe v R (1984) 154 CLR 606, followed.
Aust Dig Criminal Law [3521], [3522]

REPRESENTATION:

Counsel:
           Appellant:  G A Richardson and A Hall
           Respondent:  A Hensley
Solicitors:
           Appellant:  Grant Tucker
           Respondent:  Director of Public Prosecutions

Judgment Number: [2011] TASCCA 16
Number of paragraphs: 32

Serial No 16/2011
File No 344/2011

REGAN EDWARD FRANK EARLE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
TENNENT J
PORTER J
2 November 2011

Orders of the Court

Appeal allowed in part.

The sentence of nine months' imprisonment imposed on the appellant is varied by the addition of an order that three months' of that sentence be suspended on condition that for two years from his release from prison he not commit an offence punishable by imprisonment

Serial No 16/2011
File No 344/2011

REGAN EDWARD FRANK EARLE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
2 November 2011

The appellant appeals against a sentence of nine months' imprisonment imposed on him upon his conviction, on his plea of guilty, to the following charges:

· count 1 - possessing thing intended for use in the cultivation of a controlled plant for sale;

· count 2 - cultivating controlled plant for sale; and

· count 3 - trafficking in a controlled substance.

The grounds of appeal are:

· that the sentence was manifestly excessive; and
· that the sentencing judge, the learned Chief Justice, had no regard or insufficient regard to the principle of parity as between the appellant and his co-accused Alexander James Bartels.

The appellant and Mr Bartels were jointly charged with the same three charges and both offenders were dealt with in the course of the same sentencing hearing. Mr Bartels pleaded not guilty to count 1, the charge of possessing a thing intended for use in the cultivation of a controlled plant for sale. This plea was accepted by the prosecution and he was discharged on that count. Mr Bartels pleaded guilty to counts 2 and 3, the charges of cultivating a controlled plant for sale and trafficking in a controlled plant. For these two crimes he was sentenced to three months' imprisonment, the whole of which sentence was suspended on condition that for two years he not commit another offence punishable by imprisonment.

For three years prior to 16 June 2010, the appellant was the tenant of a rural property at Frankford. Mr…

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 Earle v Tasmania

Details

AGLC: Earle v Tasmania [2011] TASCCA 16
Case: [2011] TASCCA 16
Decision Date: 2 November 2011

CaseChat Overview and Summary

Earle appealed against a sentence of nine months' imprisonment imposed by the Supreme Court of Tasmania for drug offences. The appeal concerned the grounds for interference with a sentence, specifically whether the sentence was manifestly excessive or inadequate, and whether the disparity in the suspension of sentences between co-offenders was justified.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the sentencing judge erred in imposing a wholly suspended sentence on a co-offender while ordering the appellant to serve the full nine months' imprisonment. The Court was required to consider the principles of parity between co-offenders and whether the sentencing judge had adequately justified the difference in the treatment of the two individuals.

The Court allowed the appeal in part, finding that while the initial sentence was not manifestly excessive, the disparity in the suspension of sentences between the appellant and his co-offender was not adequately explained or justified by the sentencing judge. The Court reasoned that a degree of parity should generally be observed between co-offenders, and any deviation from this principle requires clear justification. Consequently, the Court varied the sentence by suspending three months of the nine-month term, conditional upon the appellant not committing any offence punishable by imprisonment for two years from his release.

Orders

Orders of the court

1. Appeal allowed in part.

2. The sentence of nine months' imprisonment imposed on the appellant is varied by the addition of an order that three months' of that sentence be suspended on condition that for two years from his release from prison he not commit an offence punishable by 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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