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Kaye v Tasmania

Kaye v Tasmania

Case [2016] TASCCA 15 6 October 2016

Appeal

Sentencing

Statutory Construction

Criminal Law

Statutory Interpretation

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[2016] TASCCA 15

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

CITATION: Kaye v Tasmania [2016] TASCCA 15

PARTIES:  KAYE, Shaun Keverall
  v
  STATE OF TASMANIA

FILE NO:  CCA 1422/2016
DELIVERED ON:  6 October 2016
DELIVERED AT:  Hobart
HEARING DATE:  28 September 2016
JUDGMENT OF:  Tennent, Wood and Estcourt JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Sentence for offending not commonly dealt with – Offending against public official – Need for sentence reflecting general and personal deterrence.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  R Mainwaring
             Respondent:  L Mason and L Brett
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2016] TASCCA 15
Number of paragraphs: 21

Serial No 15/2016
File No CCA 1422/2016

SHAUN KEVERALL KAYE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
WOOD J
ESTCOURT J
6 October 2016

Order of the Court

Appeal dismissed.

Serial No 15/2016
File No CCA 1422/2016

SHAUN KEVERALL KAYE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J

6 October 2016

I agree that the appeal should be dismissed, for the reasons stated by Estcourt J.

File No CCA 1422/2016

SHAUN KEVERALL KAYE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J

6 October 2016

I agree that the appeal should be dismissed, for the reasons stated by Estcourt J.

File No 1422/2016

SHAUN KEVERALL KAYE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
2016

The appeal

The appellant, Shaun Keverall Kaye, appeals against a sentence imposed upon him by Pearce J on 18 May 2016.
His Honour convicted the appellant on his pleas of guilty to making a dangerous thing with intent to facilitate a crime contrary to the Criminal Code, s 181, and causing a fire with intent to injure property, contrary to the Code, s 269A. He sentenced the appellant to imprisonment for three years from 9 November 2015 and ordered that he not be eligible for parole until he had served half that sentence.
The single ground of the appellant's appeal is that the sentence is manifestly excessive. No specific error is alleged.

The law

In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, Pearce J, with whom Blow CJ and Porter J agreed, summarised the principles relevant to appeals such as the present at [8]-[9] as follows:
"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40

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 Kaye v Tasmania

Details

AGLC: Kaye v Tasmania [2016] TASCCA 15
Case: [2016] TASCCA 15
Decision Date: 6 October 2016

CaseChat Overview and Summary

Kaye appealed against a sentence imposed by the Magistrates Court of Tasmania. The appeal was heard by the Full Court of the Supreme Court of Tasmania.

The Full Court was required to determine whether the sentence imposed was manifestly excessive or inadequate, considering the nature of the offending, which involved an offence against a public official. The court also had to consider the need for the sentence to reflect both general and personal deterrence.

The Full Court dismissed the appeal, finding that the sentence was not manifestly excessive or inadequate. The court applied principles of sentencing that require consideration of the gravity of the offence, the need to deter others from similar conduct, and the personal circumstances of the offender. The offending against a public official was a significant factor in the sentencing determination.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Kaye v Tasmania [2016] TASCCA 15

Most Recent Citation

Director of Public Prosecutions v Karklins [2018] TASCCA 6

Cases citing this decision · 1 of 1 shown

Director of Public Prosecutions v Karklins
[2018] TASCCA 6 Para 2

…small, and the reasons for particular penalties not articulated: Wong v The Queen [2001] HCA 64, 207 CLR 584 [59] and [66]. See also Kaye v Tasmania [2016] TASCCA 15 at [12]. Even where a "sentencing range" can be demonstrated, it does not mean that the range itself or its upper or lower limits are correct: Hili v…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

Daley v Tasmania
[2016] TASCCA 10 Para 2

…ual scenarios and sentences are observed in those cases and render them of no real assistance in any comparable sentencing exercise: Daley v Tasmania [2016] TASCCA 10 per Brett J at [41]; Connolly v Tasmania [2015] TASCCA 15 per Wood J at [5]. Indeed the learned sentencing judge remarked to counsel on the hearing o…
Connelly v Tasmania
[2015] TASCCA 15 Para 2

…d render them of no real assistance in any comparable sentencing exercise: Daley v Tasmania [2016] TASCCA 10 per Brett J at [41]; Connolly v Tasmania [2015] TASCCA 15 per Wood J at [5]. Indeed the learned sentencing judge remarked to counsel on the hearing of the pleas of guilty that an offence against s 181 was "t…
Director of Public Prosecutions (Acting) v Pearce
[2015] TASCCA 1 Para 1

…In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, Pearce J, with whom Blow CJ and Porter J agreed, summarised the principles relevant to appeals such as the present at [8]-[9] as follows: "As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances i…
R v Goodwin; Ex parte Attorney-General
[2014] QCA 345 Para 3

…there were comparable sentencing decisions. That suggestion was debunked by the Queensland Full Court in R v Goodwin; Ex parte Attorney-General (Qld) [2014] QCA 345. Of particular interest are the observations of Fraser JA at [3]-[5]. His Honour, who had sat on two of the earlier cases cited in argument, said: "[…
Barbaro v The Queen
[2014] HCA 2 Para 4

…The plurality in Barbaro v The Queen (2014) 88 ALJR 372 restated the process of sentencing at [34]: "Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and con…
Director of Public Prosecutions v CSS
[2013] TASCCA 10 Para 1

…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. Ex…
Hili v The Queen
[2010] HCA 45 Para 1

…(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. It is opportune to refer again to the oft quoted passage from the joint decision of Mason CJ, Brennan, Dawson and Toohey…
Dinsdale v The Queen
[2000] HCA 54 Para 1

…hich limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred t…
Postiglione v the Queen
[1997] HCA 26 Para 1

…n 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 th…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…t is opportune to refer again to the oft quoted passage from the joint decision of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476: 'However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in…
House v R
[1936] HCA 40 Para 1

…er Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust '. It is not to the point th…
Bresnehan v The Queen
[1992] TASSC 55 Para 1

…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…
[1999] HCA 29
[1999] HCA 29 Para 1

…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.