Her Majesty's Attorney-General v Maynard and Devine - [2001] TASSC 26

[2001] TASSC 26

CITATION: Her Majesty's Attorney-General v Maynard & Devine [2001] TASSC 26

PARTIES: HER MAJESTY'S ATTORNEY-GENERAL

FOR THE STATE OF TASMANIA
v
MAYNARD, Justin Richard
DEVINE, Craig Anthony

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 45/2000
DELIVERED ON:  15 March 2001
DELIVERED AT:  Hobart
HEARING DATES:  7 March 2001
JUDGMENT OF:  Crawford, Slicer and Blow JJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Appellant:  M P Shirley
           Respondent Maynard:                   R A Browne
           Respondent Devine:  K L Baumeler
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent Maynard:                   Legal Aid Commission
           Respondent Devine:  Legal Aid Commission

Judgment Number: [2001] TASSC 26
Number of Paragraphs: 16

Serial No 26/2001
File No CCA 45/2000

HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v
JUSTIN RICHARD MAYNARD and CRAIG ANTHONY DEVINE

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J
SLICER J
BLOW J
15 March 2001

Order of the Court

Appeal dismissed.

Serial No 26/2001
File No CCA 45/2000

HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v
JUSTIN RICHARD MAYNARD and CRAIG ANTHONY DEVINE

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J
SLICER J
BLOW J
15 March 2001

On 7 March 2001, the Court dismissed the appeal for reasons to be published later. These are the reasons.

The respondents were sentenced to a term of imprisonment for periods of 4 and 4½ years' respectively, following their convictions for the crime of aggravated armed robbery.

No question of parity arises. Maynard received the lesser sentence because of a slightly less serious record of prior convictions and the existence of an injury which impacted on the effect of imprisonment, a course permitted in accordance with the principles stated in Smith (1987) 27 A Crim R 315. Had more severe penalties been imposed on each, no criticism could be made of the sentences on the basis that they were manifestly excessive.

The crime was serious. The respondents went armed to commercial premises and waited for the staff manager to disengage the alarm system when they confronted him by brandishing a shotgun and a crow bar. The manager had the shotgun placed against his face and was forced to lie on the floor with his hands behind his back. He was then forced to open the safe from which $9,100 was taken. The manager was bound and a bag placed over his head. As he began to free his hands, one of the respondents returned and retaped his hands. As they left, one of the assailants said, "Set the bomb, the bomb's going off in 5 minutes".

The effects on the health of the manager have been severe and long lasting and he has been unable to continue with his employment with the company from whom the money was taken.

The respondents were arrested shortly after the robbery and a strong case assembled against them. No benefit arose because of plea, co-operation or remorse. The crime was planned and performed in a calculated manner. Apart from the medical condition of Maynard…

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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Details

Case: [2001] TASSC 26
Decision Date: 15 March 2001

CaseChat Overview and Summary

In the case of Her Majesty's Attorney-General for the State of Tasmania v Maynard and Devine, the respondents were convicted of aggravated armed robbery and sentenced to four and four and a half years' imprisonment respectively. The Attorney-General appealed against the sentences, arguing that they were manifestly inadequate. The Court of Criminal Appeal, comprising Crawford, Slicer, and Blow JJ, dismissed the appeal. The respondents had prior convictions for armed or aggravated armed robbery, and the crime in question was meticulously planned and executed with the use of weapons, causing severe and lasting harm to the victim.

The legal issues the court had to decide centered around the adequacy of the sentences in light of the severity of the crime, the offenders' prior criminal history, and the principle of totality. The principle of totality refers to the consideration of the cumulative effect of all sentences imposed on an offender. The court had to weigh the principle of totality against the seriousness of the crime and the offenders' prior criminal history. The court was also required to consider the principles governing Crown appeals, which are stricter than those applicable to appeals by the offender.

The court found that while the sentences were at the lower end of the appropriate range, they were not manifestly inadequate. The court considered that the sentences imposed on the respondents were not disproportionate to the crime and the offenders' criminal history. The court also took into account the principle of totality, as the respondents had been sentenced for additional crimes committed after the initial sentences were imposed. The court concluded that despite the lenient nature of the sentences, the appeal should not be upheld. The Court of Criminal Appeal dismissed the appeal, and the original sentences of four and four and a half years' imprisonment for Maynard and Devine respectively, were upheld.

Orders