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Kirkwood v Tasmania

Kirkwood v Tasmania

Case [2017] TASCCA 7 26 April 2017

Statutory Interpretation

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[2017] TASCCA 7

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

CITATION: Kirkwood v Tasmania [2017] TASCCA 7

PARTIES:  KIRKWOOD, Joshua Allan
  v
  STATE OF TASMANIA

FILE NO:  2886/2016
DELIVERED ON:  26 April 2017
DELIVERED AT:  Hobart
HEARING DATE:  13 April 2017
JUDGMENT OF:  Wood, Pearce and Brett 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 5½ years' imprisonment with non-parole period of three years not manifestly excessive.

Criminal Code (Tas), s 170.
Barron v Tasmania [2010] TASCCA 3; Director of Public Prosecutions v Blyth [2010] 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; Price v Tasmania [2016] TASCCA 22, referred to.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  Unrepresented
           Respondent:  D G Coates SC
Solicitors:
           Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASCCA 7
Number of paragraphs: 12

Serial No 7/2017
File No 2886/2016

JOSHUA ALLAN KIRKWOOD
v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
PEARCE J
BRETT J
26 April 2017

Order of the Court

Appeal dismissed.

Serial No 7/2017
File No 2886/2016

JOSHUA ALLAN KIRKWOOD
v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
26 April 2017

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

File No 2886/2016

JOSHUA ALLAN KIRKWOOD
v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
26 April 2017

The appellant, Joshua Kirkwood, pleaded guilty to an unlawful act intended to cause bodily harm and aggravated burglary. On 2 September 2016 he was sentenced by Estcourt J to imprisonment for 5½ years from 12 February 2016. His Honour ordered that the appellant not be eligible for parole until he had served three years of the sentence. The single ground of appeal is that the sentence is manifestly excessive. For the following reasons I would dismiss the appeal.
Just before 3am on 21 October 2015 the appellant went to the home of the complainant in Ulverstone, having driven there from Devonport. She was his estranged partner. They had been in a marriage-like relationship for about two years but had separated in the latter part of 2014. The appellant wore a balaclava and a hooded jumper, and took with him a metal baseball bat. He broke into the house by smashing a window and went into the complainant's bedroom. Her 7 year old daughter was asleep in another bedroom. The appellant repeatedly struck the complainant around the lower body and legs with the baseball bat. He yelled, "Look what you've turned me into you fucking dog." She ran into her daughter's bedroom screaming and covered in blood. The appellant followed her and again…

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 Kirkwood v Tasmania

Details

AGLC: Kirkwood v Tasmania [2017] TASCCA 7
Case: [2017] TASCCA 7
Decision Date: 26 April 2017

CaseChat Overview and Summary

Kirkwood appealed against a sentence of five and a half years' imprisonment with a non-parole period of three years, imposed by a judge of the Supreme Court of Tasmania. The appeal concerned the severity of the sentence imposed for an unlawful act intended to cause grievous bodily harm.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the sentence imposed was manifestly excessive, thereby justifying interference on appeal.

The Court considered the nature of the offence, which involved an unlawful act intended to cause grievous bodily harm, and the sentencing judge's assessment of relevant factors, including the offender's culpability and the impact of the offence. Applying established principles of sentencing, the Court found that the sentence imposed was not demonstrably outside the range of appropriate sentences for such an offence, nor was it so severe as to be unjust. The Court therefore concluded that the sentence was not manifestly excessive.

The appeal was dismissed.

Orders