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Lyons v Bakes

Lyons v Bakes

Case [2015] TASSC 37 20 August 2015

Appeal

Sentencing

Criminal Law

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[2015] TASSC 37

COURT: SUPREME COURT OF TASMANIA

CITATION: Lyons v Bakes [2015] TASSC 37

PARTIES:  LYONS, Jason Shaun
  v
  BAKES, Benjamin Edward

FILE NO:  139/2015
DELIVERED ON:  20 August 2015
DELIVERED AT:  Burnie
HEARING DATE:  28 July 2015
JUDGMENT OF:  Pearce J

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Applicant:  S Nicholson
             Respondent:  N Everett
Solicitors:
             Applicant:  Acting Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2015] TASSC 37
Number of paragraphs: 18

Serial No 37/2015
File No 139/2015

JASON SHAUN LYONS
v BENJAMIN EDWARD BAKES

REASONS FOR JUDGMENT PEARCE J

20 August 2015

On 10 February 2015 the respondent pleaded guilty to one count of common assault contrary to the Police Offences Act 1935, s 35. He was convicted and sentenced by Magistrate McKee to imprisonment for 28 days, wholly suspended for two years. The applicant moves this Court to review the sentence on the sole ground that it is manifestly inadequate.

Circumstances of the offence

At about 1.30am on 13 July 2014 the complainant, Lawrence Chick, was outside his brother's unit in Burnie, where he was visiting. The respondent had been inside the unit but walked past the complainant as he left. He approached the complainant and said to him "you raped my missus and you think you can just say sorry and everything will be okay". The complainant replied that he did not want any trouble. The respondent then stepped towards the complainant and punched him twice to the right side of his face. He said to the complainant, "this isn't over; this is not the last of this".
The only information given to the learned magistrate about the impact of the assault on the complainant was that he "received a broken eye socket and required corrective surgery".

The applicant's record and personal circumstances

Submissions were made to the learned magistrate on behalf of the respondent on 10 February 2015. His Honour also properly took into account matters put to him in mitigation on behalf of the respondent on 13 January 2015 concerning other offences. At the time of this offence the respondent was 23. He is now 24. He has five children. His childhood was marred by the suicide of his father, and violence and alcohol abuse at home. Remarks by other sentencing courts have described his upbringing as dysfunctional. He is of low intelligence. He suffered a brain injury in a motor cycle accident when he was 8. He lived on the streets from about age 12. Since then his life has been characterised by abuse of alcohol and illicit drugs, including morphine and methylamphetamine. His abuse of drugs is reflected in his bad record of offending. As a youth he committed many offences, including common assaults, for which he was given actual and suspended detention. As an…

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 Lyons v Bakes

Details

AGLC: Lyons v Bakes [2015] TASSC 37
Case: [2015] TASSC 37
Decision Date: 20 August 2015

CaseChat Overview and Summary

In the case of Lyons v Bakes, the defendant, Bakes, appealed against the sentence imposed by the trial court, contending that it was manifestly excessive. The case revolved around an incident in which Bakes was found guilty of a serious assault. The trial court had sentenced Bakes to a period of imprisonment and a fine, which Bakes now claimed to be disproportionate to the offence. The appeal was heard by the relevant appellate court, which was tasked with determining whether the sentence warranted revision due to its excessiveness.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, thus warranting interference by the appellate court. The court needed to consider the nature and circumstances of the offence, the culpability of the offender, and whether the sentence was within the range of what could be considered reasonable and appropriate. The court also examined whether the trial judge had adequately considered all relevant factors before passing sentence.

Upon reviewing the evidence and the trial judge's sentencing remarks, the appellate court concluded that the sentence was indeed manifestly excessive. The court found that the trial judge had failed to sufficiently consider mitigating factors and had placed undue emphasis on the severity of the assault. The appellate court further noted that the sentence did not align with the sentencing principles applicable to similar cases. Consequently, the court allowed the appeal and ordered a re-sentencing hearing to ensure that the new sentence would be proportionate and just. The decision underscored the importance of careful consideration of all relevant factors in sentencing and the appellate court's role in ensuring that sentences are neither excessively harsh nor lenient.

Orders