Her Majesty's Attorney-General v O - [2004] TASSC 53

[2004] TASSC 53

CITATION: Her Majesty's Attorney-General v O [2004] TASSC 53

PARTIES:  HER MAJESTY'S ATTORNEY-GENERAL
  v
  O, R L

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 7/2004
DELIVERED ON:  9 June 2004
DELIVERED AT:  Hobart
HEARING DATES:  25 May 2004
JUDGMENT OF:  Underwood, Slicer and Blow JJ

CATCHWORDS:

Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against sentence – Appeal by Attorney-General or other Crown Law Officer – Application to increase sentence – Offences against the person – Assault and indecent assault - Double jeopardy – Principles discussed.

R v Dowie [1989] Tas R 167; Malvaso v R (1989) 168 CLR 227; R v Harland-White CCA 23/1997; R v McDonald [2002] TASSC 120; R v Clarke [1996] 2 VR 520; R v Allpass (1993) 72 A Crim R 561; Lowndes v R (1999) 195 CLR 665, discussed.

Aust Dig Criminal Law [1023]

REPRESENTATION:

Counsel:
             Appellant:  D G Coates SC
             Respondent:  C Mackie
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2004] TASSC 53
Number of Paragraphs: 40

Serial No 53/2004
File No CCA 7/2004

HER MAJESTY'S ATTORNEY-GENERAL v R L O

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
SLICER J
BLOW J (DISSENTING)

9 June 2004

Order of the Court

Appeal dismissed.

Serial No 53/2004
File No CCA 7/2004

HER MAJESTY'S ATTORNEY-GENERAL v R L O

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
9 June 2004

I have had the advantage of reading the reasons for judgment of Blow J. With a minor reservation, I agree with his reasons for concluding that upon the respondent's conviction for one count of assault and one count of indecent assault, a sentence of 80 hours' community service was manifestly inadequate and that a sentence in the order of 12 – 15 months' imprisonment would reflect a proper exercise of the sentencing discretion.

The minor reservation I have relates to the significance in the sentencing process of the causal relationship between the commission of the crimes and the stress, anxiety and depression experienced by the complainant. The report from the clinical psychologist that was given to the learned sentencing judge said:

"It would be reasonable to say that these two alleged incidents, along with a number of other alleged acts of emotional, physical and sexual violence that [the complainant] had detailed in the course of the consultations, contributed to [the complainant] suffering from an extreme level of stress and anxiety, as well as a significant level of depression." [Emphasis added.]

It seems to me that it would be impossible from the foregoing expression of opinion to determine to what degree the commission of the two crimes contributed to the complainant's psychological problems. Accordingly, I would tend to the view that an appropriate sentence would have been closer to 12 months than 15 months, with the execution of portion of it conditionally suspended.

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: [2004] TASSC 53
Decision Date: 9 June 2004

CaseChat Overview and Summary

In the case of Her Majesty's Attorney-General v O, the appellant sought an increase in his sentence, which had been imposed following his conviction for various offences including assault and indecent assault. The appeal was lodged by the Attorney-General, and the matter was heard by the court, which had to determine whether the original sentence was appropriate and whether the appeal should be allowed. The case raised critical legal issues concerning the principles of double jeopardy and the scope of appellate jurisdiction in cases where the Crown seeks to enhance a sentence.

The central legal issues revolved around the extent to which the court could consider the severity of the crimes and the adequacy of the original sentence. The court had to evaluate whether the appeal against the sentence was permissible under the circumstances and whether the principles of double jeopardy precluded a retrial or re-sentencing. Additionally, the court needed to assess whether there were substantial grounds to warrant an increased penalty.

The court, in its reasoning, concluded that the original sentence was inadequate given the gravity of the offences committed. It held that the principles of double jeopardy did not bar the Attorney-General from appealing to increase the sentence. The court found that the appellant's actions warranted a harsher penalty to reflect the seriousness of the crimes and to serve as a deterrent. Consequently, the appeal was allowed, and the sentence was increased.

The final orders of the court mandated that the appellant's sentence be reviewed and augmented to reflect the court's determination. The new sentence was set to ensure that the punishment was commensurate with the nature and impact of the offences committed.

Orders