Her Majesty's Attorney-General v C

[2001] TASSC 107

[2001] TASSC 107

CITATION:              Her Majesty's Attorney-General v C [2001] TASSC 107

PARTIES:  HER MAJESTY'S ATTORNEY-GENERAL

FOR THE STATE OF TASMANIA
v
C

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 47/2001
DELIVERED ON:  28 August 2001
DELIVERED AT:  Hobart
HEARING DATES:  28 August 2001
JUDGMENT OF:  Underwood, Crawford and Evans JJ

Edited edition of reasons for judgment delivered orally

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other law officer - Application to increase sentence - Offences against the person - Unlawful sexual intercourse with a young person - Manifestly inadequate - Notwithstanding principles governing Crown appeals against sentence duty of court to maintain consistent sentencing standards.

Aust Dig Criminal Law [1023]

REPRESENTATION:

Counsel:
           Appellant:  T J Ellis SC
           Respondent:  P W Barker
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Baker Tierney & Wilson

Judgment Number:  [2001] TASSC 107
Number of Paragraphs:  4

Serial No 107/2001
File No CCA 47/2001

HER MAJESTY'S ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA v C

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
(DELIVERED ORALLY)  UNDERWOOD J

CRAWFORD J
EVANS J
28 August 2001

Orders of the Court

1. Appeal allowed.

1. The sentence of six months' imprisonment, the execution of four months of which was conditionally suspended, is quashed.

1. In lieu thereof there will be a sentence of 18 months' imprisonment to commence on 28 June 2001 to take into account the time the respondent has already spent in custody serving the quashed sentence.

1. The execution of the last six months of that sentence will be suspended upon condition that the respondent is of good behaviour for a period of 18 months from the date of his release from prison.

Serial No 107/2001
File No CCA 47/2001

HER MAJESTY'S ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA v C

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
(DELIVERED ORALLY)  UNDERWOOD J

CRAWFORD J
EVANS J
28 August 2001

1. This is a Crown appeal against sentence imposed upon the respondent on one count of maintaining a sexual relationship with a young person.  The impugned sentence was imprisonment for six months, the execution of the last four months of which was conditionally suspended.  In our view this was a bad case.  At the time of the commission of the crime the respondent was aged 29 and his victim aged 13.  She was the respondent's niece by marriage.  She went to live with the respondent and his wife and children.  The respondent seduced her while she was living under his roof. 

1. Between 1 April 1995 and 30 September 1995, the respondent committed three aggravated assaults, two indecent assaults and 12 acts of unlawful sexual intercourse.  In result, the complainant became pregnant and, in due course, gave birth to a child.  This criminal conduct constituted a grave breach of trust.  It had a disastrous affect upon the complainant.  The learned sentencing judge said:

"The conduct has affected the life of the complainant, especially in her capacity to develop other relationships, and caused ongoing stress.  It [has] destroyed the marriage of the offender and his former wife continues to live with the knowledge that the child of her niece is half-sister to her own children."

The learned sentencing judge correctly continued:

"There is little evidence of remorse other than regret for the consequences of conduct.  The offender is entitled to the benefit of a plea of guilty although the Court notes that the offender waited for the results of DNA testing before determining his plea."

1. It is true that the respondent has no prior convictions and has led a hitherto industrious life.  However, reference to the Court's sentencing database shows that this case is at the lower end of sentences for this crime, but the circumstances surrounding its commission do not warrant it being at the lower end.  The Court is mindful of the principles applicable to Crown appeals against sentence which dictate caution before overturning a sentence.  But this sentence is so lenient that the Court is well satisfied that it is manifestly inadequate and should be overturned.  The Court of Criminal Appeal has an obligation to maintain consistent sentencing standards.

1. Accordingly, the following orders are made:

1        The appeal is allowed.

2The sentence of six months' imprisonment, the execution of four months of which was conditionally suspended, is quashed.

3In lieu thereof there will be a sentence of 18 months' imprisonment to commence on 28 June 2001 to take into account the time the respondent has already spent in custody serving the quashed sentence.

4Finally, to acknowledge the principles upon determination of Crown appeals against sentence to which reference has been made, the execution of the last six months of that sentence will be suspended upon condition that the respondent is of good behaviour for a period of 18 months from the date he is released from prison.