Mayne v Tasmania - [2011] TASCCA 4

[2011] TASCCA 4

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

CITATION: Mayne v Tasmania [2011] TASCCA 4

PARTIES: MAYNE, Nathan Patrick
v

STATE OF TASMANIA
SEMMENS, Andrew John
v
STATE OF TASMANIA

FILE NO/S: 1086/2009

677/2010

DELIVERED ON:  30 May 2011
DELIVERED AT:  Hobart
HEARING DATE:  24 May 2011
JUDGMENT OF:  Evans, Blow and Tennent JJ

CATCHWORDS:

Criminal Law – Sentence – Sentencing procedure – Factual basis for sentence – Evidence – Generally – Finding of fact by judge after jury trial – Whether finding open on trial evidence – Whether less severe sentence warranted if finding not open.
Criminal Code (Tas), s402(4).

Aust Dig Criminal Law [3311]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Murder – Act which killer ought to have known to be likely to cause death – Senseless random unprovoked attack on stranger.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant Mayne:  A J Hall
             Appellant Semmens:  J Robinson
             Respondent:                J Ransom

Solicitors:
             Appellant Mayne:  G Tucker
             Appellant Semmens:  Robinson Law
             Respondent:  Director of Public Prosecutions

Judgment Number: [2011] TASCCA 4
Number of paragraphs: 46

Serial No 4/2011
File Nos 1086/2009
677/2010

NATHAN PATRICK MAYNE v STATE OF TASMANIA
ANDREW JOHN SEMMENS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
BLOW J
TENNENT J
30 May 2011

Orders of the Court

Appeals dismissed.

Serial No 4/2011
File Nos 1086/2009
677/2010

NATHAN PATRICK MAYNE v STATE OF TASMANIA
ANDREW JOHN SEMMENS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
30 May 2011

I agree with the reasons of Blow J and would also dismiss the appeals.
File Nos 1086/2009
677/2010

NATHAN PATRICK MAYNE v STATE OF TASMANIA
ANDREW JOHN SEMMENS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW J
30 May 2011

These two appeals relate to sentences imposed by Crawford CJ on two men responsible for the killing of a man named Nathan Woolley outside his home in the Launceston suburb of Ravenswood on the night of 21 December 2008. One of the appellants, Mr Semmens, killed him by hitting him to the head with a wooden object. He was found guilty of murder by a jury, and sentenced to 20 years' imprisonment, with a non-parole period of 12½ years. He contends that his sentence was manifestly excessive, and that the learned sentencing judge made a number of specific errors in sentencing him. The other appellant, Mr Mayne, participated in the attack that resulted in Mr Woolley's death. He was found not guilty of murder, but guilty of manslaughter. He was sentenced to 7 years' imprisonment, with a non-parole period of 4½ years. He contends that the learned sentencing judge made a factual error as to what he did during the attack, and that the correction of the suggested error should result in a more lenient sentence.

The two appellants were accompanied at all…

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 Mayne v Tasmania

Details

AGLC: Mayne v Tasmania [2011] TASCCA 4
Case: [2011] TASCCA 4
Decision Date: 30 May 2011

CaseChat Overview and Summary

Mayne appealed against his conviction and sentence in the Supreme Court of Tasmania. The dispute concerned the factual basis upon which his Honour judge imposed sentence following a jury trial.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the sentencing judge had made a finding of fact that was not open on the evidence presented at the trial. If such a finding was not open, the Court was required to consider whether a less severe sentence would have been warranted.

The Full Court reasoned that the sentencing judge was entitled to make the finding of fact in question, as it was open on the evidence presented at trial. The Court applied the principle that a sentencing judge may make findings of fact that are not necessarily proven beyond reasonable doubt, provided those findings are supported by the evidence. Consequently, the Court found no error in the sentencing process.

The appeals were dismissed.

Orders

Orders of the court

Appeals 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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