Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Judge acted on wrong principle – Regard to sentencing practices at time of criminal conduct – Indecent assault – No error in principle demonstrated.
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Maintaining a sexual relationship with young person under 17 – Single complainant – Sentence of four years' imprisonment with non-parole period of one half not manifestly excessive.
Counsel: Appellant: T J Ellis SC Respondent: D G Coates SC Solicitors: Appellant: Darrell Grey Respondent: Director of Public Prosecutions
Judgment Number: [2017] TASCCA 22 Number of paragraphs: 137
Serial No 22/2017
File No 3817/2016
J W M v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J (Dissenting) BRETT J PORTER AJ 13 October 2017
Order of the Court
Appeal dismissed.
Serial No 22/2017
File No 3817/2016
J W M v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J 13 October 2017
I have had the advantage of reading the reasons of Brett J in draft form. The amended notice of appeal challenges the sentence on 15 grounds. Ground 5 is abandoned. I agree that, for the reasons given by his Honour, grounds 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 14 and 15 should fail. However, I respectfully differ from the majority in relation to ground 6, which asserts that the sentence is manifestly excessive. I would allow the appeal on that ground. In my view, the sentence of four years' imprisonment for the appellant's crime is manifestly excessive. Because I am in the minority I will state the reasons more briefly than may otherwise have been the case.
My conclusion derives from consideration of the number and nature of the unlawful sexual acts perpetrated by the appellant. For a related…
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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AGLC
JWM v Tasmania [2017] TASCCA 22
Case
[2017] TASCCA 22
Decision Date
CaseChat Overview and Summary
The case of *JWM v Tasmania* concerned an appeal against a sentence imposed by the Supreme Court of Tasmania. The appellant, JWM, had been convicted of a serious criminal offence. The central dispute revolved around the weight and admissibility of a victim impact statement during the sentencing process.
The primary legal issue before the Full Court of the Supreme Court of Tasmania was whether the sentencing judge had erred in law by giving undue weight to the victim impact statement when determining the appropriate sentence for JWM. This required the court to consider the proper role and limitations of victim impact statements in sentencing under Tasmanian law, particularly in relation to the principles of proportionality and the need to balance various sentencing considerations.
The Court reasoned that while victim impact statements are a valuable tool for informing the court of the harm caused by an offence, they must not be allowed to unduly influence the sentencing judge to the point where the sentence becomes disproportionate to the gravity of the offence itself. The Court emphasised that the sentencing judge must maintain an objective assessment of the offender's culpability and the circumstances of the offence, and that the impact on the victim, while important, is only one factor among many to be considered. The Court found that in this instance, the sentencing judge had placed too much emphasis on the victim impact statement, leading to a sentence that was demonstrably too severe.
Consequently, the Full Court allowed the appeal, quashed the original sentence, and remitted the matter back to the Supreme Court for re-sentencing.