Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Parity between co-offenders – Justified sense of grievance shown where no reasonable grounds for the differentiation – Appellant sentenced to imprisonment for crimes of violence – Appellant with lengthy record of offending giving rise to terms of imprisonment – Co-offender a young offender with no significant record and played lesser role – Appellant sentenced for additional crime while co-offender liable as accessory for appellant's acts – Appellant not sentenced for those acts – Co-offender sentenced to lesser term of suspended imprisonment coupled with community service – Reasonably open to sentencing judge to differentiate between offenders.

Barbarov The Queen [2012] VSCA 288, 226 A Crim R 354; DPP (Commonwealth) v KMD [2015] VSCA 255, 254 A Crim R 244, followed.
Aust Dig Criminal Law [3527]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Other matters – Error of fact – Need to establish material error – Error must be one capable of having affected the outcome.

Kentwell v The Queen [2014] HCA 37, 252 CLR 601, considered.
Harding v Western Australia [2015] WASCA 27, followed.
Aust Dig Criminal Law [3525]

REPRESENTATION:

Counsel:
             Appellant:  P Monk
             Respondent:  M Allen and M Figg
Solicitors:
             Appellant:  Legal Aid Commission
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASCCA 12
Number of paragraphs: 156

Serial No 12/2019
File No CCA 2258/2018

CHRISTOPHER JENKINS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

GEASON J (Dissenting)
MARSHALL AJ
PORTER AJ
29 August 2019

Orders of the Court

Appeal dismissed.

Serial No 12/2019

File No CCA 2258/2018

CHRISTOPHER JENKINS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J

29 August 2019

Brett J sentenced the appellant to two years and six months' imprisonment upon his pleas of guilty to two counts of assault and a single count of wounding. He imposed a non-parole period of 18 months.
Leave was granted by the Court to bring an appeal against that sentence out of time, and, in turn, to amend the notice of appeal.
There are two grounds of appeal:
"(i)That the learned sentencing judge erred by failing to adequately take into account the parity principle; and
(ii)That the learned sentencing judge based the sentence on erroneous material regarding the appellant's prior convictions, namely by finding that the appellant had 'most recently in New South Wales … received a term of imprisonment of three years for the offence of robbery whilst armed with an offensive…

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 Jenkins v Tasmania

Details

AGLC: Jenkins v Tasmania [2019] TASCCA 12
Case: [2019] TASCCA 12
Decision Date: 29 August 2019

CaseChat Overview and Summary

Jenkins appealed against his sentence for crimes of violence. The appeal concerned the parity of his sentence with that of a co-offender. The appeal was heard by Geason J, Marshall AJ, and Porter AJ.

The central legal issue was whether the sentencing judge had erred in differentiating between the sentences imposed on the appellant and his co-offender, thereby giving the appellant a "justified sense of grievance." This required the court to consider the relevant factors for sentencing, including the nature of the offences, the roles of each offender, their respective criminal histories, and the overall proportionality of the sentences.

The court reasoned that while parity between co-offenders is an important consideration, it is not an absolute rule. The sentencing judge was reasonably open to differentiating between the offenders based on their individual circumstances. The appellant had a lengthy record of offending, which justified a more severe sentence, including imprisonment. In contrast, the co-offender was a young offender with no significant record and had played a lesser role in the commission of the crimes. Furthermore, the appellant was sentenced for an additional crime that the co-offender was not liable for, as the co-offender was only liable as an accessory for the appellant's acts. The co-offender received a lesser term of suspended imprisonment coupled with community service. The court concluded that these distinctions provided a reasonable basis for the sentencing judge to impose different sentences.

Orders