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Jay v Tasmania

Jay v Tasmania

Case [2016] TASCCA 12 23 August 2016

Statutory Interpretation

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[2016] TASCCA 12

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

CITATION: Jay v Tasmania [2016] TASCCA 12

PARTIES:  JAY, Jason Ralph
  v
  STATE OF TASMANIA

FILE NO:  CCA 1693/2015
DELIVERED ON:  23 August 2016
DELIVERED AT:  Hobart
HEARING DATE:  17 August 2016
JUDGMENT OF:  Tennent, Estcourt and Pearce JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Unlawful act intended to cause grievous bodily harm – Sentence of seven years' imprisonment with non-parole period of five and a half years – Vicious and sustained attack involving at least 25 applications of force to female – No error demonstrated.

Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1; Director of Public Prosecutions v Rogers [2011] TASCCA 17; Director of Public Prosecutions v Blyth [2010] TASCCA 10, considered.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  J Hartnett
Solicitors:
             Appellant:  N/A
             Respondent:  Director of Public Prosecutions

Judgment Number: [2016] TASCCA 12
Number of paragraphs: 26

Serial No 12/2016

File No CCA 1693/2015

JASON RALPH JAY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
ESTCOURT J
PEARCE J
23 August 2016

Order of the Court (17 August 2016)

Appeal dismissed.

Serial No 12/2016

File No CCA 1693/2015

JASON RALPH JAY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
23 August 2016

I have had the opportunity to read in draft form the reasons of Estcourt and Pearce JJ. I agree with their reasons for dismissing the appeal in this matter against sentence.
File No CCA 1063/2015

JASON RALPH JAY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
23 August 2016

The appeal

The appellant, Jason Ralph Jay, has appealed against a sentence of seven years' imprisonment with a non-parole period of five and a half years imposed on him by Blow CJ on 8 September 2015.
The sole ground of appeal is that the sentence is manifestly excessive. No specific error is asserted in the notice of appeal.
The sentence was imposed consequent upon the appellant's plea of guilty to a single count of committing an unlawful act intended to cause grievous bodily harm contrary to the Criminal Code, s 170.

The law as to manifest excess in sentencing

As I have observed in the past in such cases, Professor K Warner in her book Sentencing in Tasmania, 2nd ed, The Federation Press, 2002, at 440, writes on the subject of appellate review of sentences for manifest excess or inadequacy as follows:
"The Court of Criminal Appeal has consistently followed the approach suggested by the High Court in House [(1936) 55 CLR 499 at 504] Cranssen [(1936) 55 CLR 509 at 519] and Harris [(1954) 90 CLR 652 at 656] and these cases are cited ad nauseum in sentencing appeals."
And,…

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 Jay v Tasmania

Details

AGLC: Jay v Tasmania [2016] TASCCA 12
Case: [2016] TASCCA 12
Decision Date: 23 August 2016

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the respondent, who had been convicted of an unlawful act intended to cause grievous bodily harm. The appellant, the Crown, sought to appeal the sentence, arguing it was manifestly inadequate. The appeal was heard by Tennent, Estcourt and Pearce JJ of the Supreme Court of Tasmania.

The central legal issue before the Court was whether the sentence of seven years' imprisonment with a non-parole period of five and a half years was demonstrably inadequate, thereby justifying appellate intervention. This required the Court to consider the nature of the offence, the circumstances surrounding the attack, and the sentencing principles applicable in Tasmania.

The Court observed that the offence involved a vicious and sustained attack on a female victim, involving at least 25 applications of force. Despite the gravity of the offending, the Court found no error in the sentencing judge's determination. The Court applied the established principles for appellate review of sentences, which require a clear demonstration that the sentence imposed was manifestly excessive or inadequate. In this instance, the Court concluded that no such error had been demonstrated.

Consequently, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Jay v Tasmania [2016] TASCCA 12

Most Recent Citation

Price v Tasmania [2016] TASCCA 22

Cases citing this decision · 8 of 8 shown

Director of Public Prosecutions v Crisp
[2021] TASCCA 6 Para 17

…of Public Prosecutions v Rogers [2011] TASCCA 17; Price v Tasmania [2016] TASCCA 22. However this is by no means a hard and fast rule: Jay v Tasmania [2016] TASCCA 12 at [17]. 5 No 6/2021…
Director of Public Prosecutions v Greely
[2019] TASCCA 10 Para 2

…Although heavier sentences have been imposed in respect of crimes against s 170 of the Code cases such as Jay v Tasmania [2016] TASCCA 12, and Price v Tasmania [2016] TASCCA 22 (in which sentences were imposed, respectively, of seven years' imprisonment with a non-parole period of five and a half years, and ten yea…
Butt v Tasmania
[2018] TASCCA 3 Para 4

…These comments were re-affirmed recently in Jay v Tasmania [2016] TASCCA 12, and in Price v Tasmania [2016] TASCCA 22, in which cases sentences of seven years' imprisonment with a non-parole period of five and a half years, and ten years' imprisonment with a non-parole period of six years were held not to be manife…
Maddox v Tasmania
[2017] TASCCA 25 Para 24

…ished by a sentence of from three to seven years' imprisonment: Papazoglou v The Queen 9/1963; R v Allen (above) per Wright J at [13]; Jay v Tasmania [2016] TASCCA 12; Price v Tasmania [2016] TASCCA 22; Cordwell v Tasmania (above) at [13].…
Richardson v Tasmania
[2017] TASCCA 16 Para 1

…c [2016] HCA 48, 339 ALR 229). This Court has applied the principles governing the question of sentencing range in a number of cases ( Jay v Tasmania [2016] TASCCA 12, Price v Tasmania [2016] TASCCA 22 and Kirkwood v Tasmania [2017] TASCCA 7). It has also addressed the significance of crimes involving the Code, s 1…
Cordwell v Tasmania
[2017] TASCCA 14 Para 1

…These comments were re-affirmed recently in Jay v Tasmania [2016] TASCCA 12, and in Price v Tasmania [2016] TASCCA 22, in which cases sentences of seven years' imprisonment with a non-parole period of five and a half years, and ten years' imprisonment with a non-parole period of six years were held not to be manife…
Kirkwood v Tasmania
[2017] TASCCA 7 Para 9

…010] TASCCA 10; Director of Public Prosecutions v Rogers [2011] TASCCA 17; Director of Public Prosecutions v Blackaby [2013] TASCCA 4; Jay v Tasmania [2016] TASCCA 12 and Price v Tasmania [2016] TASCCA 22. Those cases apply the statements in Lovegrove v The Queen [1961] Tas SR 106 at 107, and R v Allen [1999] TASSC…
Price v Tasmania
[2016] TASCCA 22 Para 2

…Leaving to one side for a moment the three counts of assault, it is clear from the recent decision of this Court in Jay v Tasmania [2016] TASCCA 12 that a sentence of seven years' imprisonment for a serious example of the crime of committing an act intended to cause bodily harm is not to be regarded as excessive.…

View all 8 citing cases →

Cases cited in this decision · 24 of 24 shown

Director of Public Prosecutions (Acting) v Pearce
[2015] TASCCA 1 Para 4

…More recently in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, a case involving a sole ground of appeal that the sentence was manifestly inadequate, Pearce J, with whom Blow CJ and Porter J agreed, most succinctly and comprehensively, if I may say so with respect, summarised the relevant princ…
Director of Public Prosecutions v CSS
[2013] TASCCA 10 Para 4

…Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Exc…
Munda v Western Australia
[2013] HCA 38 Para 4

…The following comment from reasons of the majority of the High Court in Munda v Western Australia [2013] HCA 38, 249 CLR 600, apply with particular force in this case: "First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode o…
Director of Public Prosecutions v Blackaby
[2013] TASCCA 4 Para 1

…In Director of Public Prosecutions v Blackaby [2013] TASCCA 4, I said at [16]-[22], with Blow CJ and Wood J agreeing: "There is no doubt that counsel for the appellant was correct in submitting that because specific intent is required for the commission of a crime contrary to s170 of the Criminal Code it is genera…
Director of Public Prosecutions v Rogers
[2011] TASCCA 17 Para 1

…These comments were re-affirmed relatively recently in Director of Public Prosecutions v Rogers [2011] TASCCA 17 at [16], where Evans J, with whom Porter and Wood JJ agreed, observed at [16]: "16 The crime that is the subject of count 2 is committing an unlawful act intended to cause bodily harm in breach of the Co…
Hili v The Queen
[2010] HCA 45 Para 4

…(above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."…
Director of Public Prosecutions v Blyth
[2010] TASCCA 10 Para 1

…harm in breach of the Code, s170. It is a serious crime. An element of it is a specific intent to disable or do grievous bodily harm. In DPP v Blyth [2010] TASCCA 10, Blow J, agreed with by Porter and Wood JJ, reviewed a number of authorities on the sentencing range that was appropriate for a contravention of s170…
Barron v Tasmania
[2010] TASCCA 3 Para 1

…s worse than one against s172, which does not necessarily involve such an intent: R v Allen [1999] TASSC 112 per Cox CJ at par [2]; Barron v Tasmania [2010] TASCCA 3 at par[21].'"…
Braslin and Cowen v Tasmania
[2010] TASCCA 1 Para 2

…fest inadequacy, I bear Professor Warner's admonition in mind, and content myself with setting out what Porter J said in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]–[34]. His Honour there observed: "31 For the purposes of this case, I think it is desirable to traverse some well-travelled territory, and to…
A, MC v Police
[2008] SASC 279 Para 2

…unjust so as to give rise to the inference that there has been a failure to properly exercise the discretion. As Kourakis J said in A, MC v Police (2008) 102 SASR 151 at [88], 'An appeal ground that a sentence is manifestly excessive is really a convenient alternative expression of the complaint that the sentence is…
Hyde v R
[2001] TASSC 50 Para 2

…likely to be very long lasting. [1] See for example Inkson v The Queen [1996] TASSC 13, 6 Tas R 1; R v Allen [1999] TASSC 112; Hyde v The Queen [2001] TASSC 50; DPP v Blyth [2010] TASCCA 10; DPP v Rogers [2011] TASCCA 17; Director of Public Prosecutions v Blackaby [2013] TASCCA 4.…
Dinsdale v The Queen
[2000] HCA 54 Para 2

…alternative expression of the complaint that the sentence is by reason of its severity, unreasonable or plainly unjust.' 32 In Dinsdale v The Queen (2000) 202 CLR 321, Kirby J (with whom Gummow and Gaudron JJ agreed) stated at [58]: 'The necessity to show error in such a case is fully accepted by courts deciding appe…
R v Allen
[1999] TASSC 112 Para 1

…intent to do grievous bodily harm is generally regarded as worse than one against s172, which does not necessarily involve such an intent: R v Allen [1999] TASSC 112 per Cox CJ at par [2]; Barron v Tasmania [2010] TASCCA 3 at par[21].'"…
Postiglione v the Queen
[1997] HCA 26 Para 4

…in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering tha…
Veen v The Queen (No 2)
[1988] HCA 14 Para 3

…a female he met and assaulted in similar circumstances. Following his release he committed other offences of violence against females. In Veen (No 2) [1988] HCA 14, 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ, at 477, explained that while an offender may not be punished again for past offending, crimina…
R v De Simoni
[1981] HCA 31 Para 2

…hen sentencing for the crime of causing grievous bodily harm contrary to s172, the sentencing judge may, without offending the principle in De Simoni [1981] HCA 31; (1981) 147 CLR 383, sentence on the basis that the offender had an intention to cause grievous bodily harm …".…
Harris v The Queen
[1954] HCA 51 Para 1

…as consistently followed the approach suggested by the High Court in House [(1936) 55 CLR 499 at 504] Cranssen [(1936) 55 CLR 509 at 519] and Harris [(1954) 90 CLR 652 at 656] and these cases are cited ad nauseum in sentencing appeals."…
Cranssen v the King
[1936] HCA 42 Para 1

…llows: "The Court of Criminal Appeal has consistently followed the approach suggested by the High Court in House [(1936) 55 CLR 499 at 504] Cranssen [(1936) 55 CLR 509 at 519] and Harris [(1954) 90 CLR 652 at 656] and these cases are cited ad nauseum in sentencing appeals."…
Adhesives Pty Ltd v Aktieselskabet Dansk Gaerings-Industri
[1935] HCA 83 Para 2

…es. It sits to rectify genuine error'; Aherne v R 20/1982 per Nettlefold J at 3. In accordance with the traditional formula as set out in House v R (1935) 55 CLR 499, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to give rise to the inference that the…
House v R
[1936] HCA 40 Para 1

…manifest excess or inadequacy as follows: "The Court of Criminal Appeal has consistently followed the approach suggested by the High Court in House [(1936) 55 CLR 499 at 504] Cranssen [(1936) 55 CLR 509 at 519] and Harris [(1954) 90 CLR 652 at 656] and these cases are cited ad nauseum in sentencing appeals."…
Griffiths v The Queen
[1977] HCA 44 Para 3

…In Griffiths v The Queen (1977) 137 CLR 293 at 310, Barwick CJ said: "Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle."…
Bresnehan v The Queen
[1992] TASSC 55 Para 4

…r is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appella…
Tas R 72; R v Marshall 70/1990; Inkson v R
[1996] TASSC 13 Para 4

…evious decisions of this Court (see Lovegrove v R [1961] Tas SR 106; Brown v R (supra); Bennett v R [1990] Tas R 72; R v Marshall 70/1990; Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1). In Papazoglou v R 9/1963, the Court of Criminal Appeal refused to dissent from comments made by the Chief Justice when imposing s…
[1999] HCA 29
[1999] HCA 29 Para 4

…exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judg…

Legislation cited in this decision · 0

No legislation cited in this case.