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

1. 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

1. 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

1. 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. 

1. The two appellants were accompanied at all times by men named Shepherd and Holt.  The four men set out from a house in Waverley to buy beer and obtain marijuana in Ravenswood.  They went to licensed premises that were closed.  They then went to a private home where they obtained marijuana.  They then set out for the Empire Hotel in the city of Launceston, intending to purchase beer there.  They were affected to some extent by alcohol, and possibly marijuana.  Semmens drove a two-door four-wheel drive vehicle. They travelled along Warring Street, Ravenswood. What happened there appears from the following passages in the learned judge's comments on passing sentence:

"Outside number 42 the vehicle collided with a domestic wheelie bin. As a result, some damage to the vehicle was caused.  Semmens immediately became angry about that and looked to see if he could exact vengeance on whoever had put the bin where he hit it.  He reversed back up the road and saw Mr Brooks, whose bin it happened to be, standing at his front doorsteps down his driveway at number 42. He had been inside watching television. In response to the sound of the collision and the screeching of tyres he had come outside.  Seeing him there, Semmens drove down the driveway until his vehicle ran into the steps and hit a railing. The three prisoners quickly got out of the vehicle and went towards Mr Brooks who was standing on his landing.  Semmens was armed with a wooden blockbuster handle. 

Mr Brooks was accused of deliberately throwing or putting the bin out onto the road so as to cause the vehicle to hit it.  He protested his innocence but that had no effect on them.  Violence was their aim and pleasure, and certainly not thought or reason. 

Mr Brooks' evidence, which I accept, was that one of the men threw at him a couple of punches, which hit him in the side of the head and in the ribs.  He had his hands up for protection.  Another of the men was immediately behind the first, but he did not know whether that man also struck him. 

…

Semmens then smashed two windows of Mr Brooks' residence. 

In the meantime, Joshua Holt had also got out of the vehicle but the preponderance of evidence is that he remained near its front left corner. 

The prisoners [the two appellants and Shepherd] and Mr Holt got back into the vehicle.  Semmens reversed out into Warring Street.  They then saw people outside the house at number 39.  Semmens immediately drove over the gutter and across the front of number 41, coming to a standstill just before the boundary of number 39.

The three prisoners got out of the vehicle.  Mayne went up to Nathan Woolley and held him.  Semmens swung a wooden implement at the head of Nathan Woolley, striking his head with substantial force.  The blow resulted in his death four days later, on 25 December." 

1. The learned sentencing judge left open the possibility that the wooden object used by Semmens when he attacked Nathan Woolley was not the blockbuster handle that he was holding at the time of the attack on Mr Brooks.

1. Semmens, Mayne and Shepherd were all jointly charged on four counts: (1) assaulting Mr Brooks; (2) unlawfully injuring Mr Brooks' property; (3) murdering Nathan Woolley; and (4) assaulting his brother, Grant Woolley.  Mayne pleaded guilty to assaulting Mr Brooks.  Shepherd pleaded guilty to assaulting Grant Woolley.  Otherwise they pleaded not guilty, and were tried together on all charges.  Semmens was found guilty of the first three charges but acquitted of the fourth.  For assaulting Mr Brooks and unlawfully injuring his property, he received a cumulative sentence of 6 months' imprisonment in addition to his sentence for murder.  Mayne was found guilty of assaulting Mr Brooks, for which he received a cumulative sentence of 6 months' imprisonment in addition to his sentence for manslaughter.  He was acquitted on counts 2 and 3.  Shepherd was found guilty on count 1, but not guilty on counts 2 and 3.

Mr Mayne's appeal

1. Mr Mayne's appeal relates only to his sentence for manslaughter.  The appeal was brought solely on the basis that the learned sentencing judge made an error as to the factual basis of the sentence.  It was not argued that, if the factual basis for the sentencing involved no error, the sentence of 7 years' imprisonment with a non-parole period of 4½ years was excessive.

1. It was necessary for the learned sentencing judge to make findings of fact, consistent with the verdict of the jury, for the purpose of sentencing Mayne.  A sentencing judge may not make a finding of fact that is adverse to the interests of the accused unless the fact in question has been established beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270. The learned sentencing judge acknowledged that principle. Mayne contends that it was not open to his Honour to be satisfied beyond reasonable doubt that he was holding Nathan Woolley when Semmens struck the fatal blow. That is the sole basis of his appeal. The Crown contends that that finding of fact was open.

1. Mayne was sentenced on the basis that he was guilty of manslaughter as a participant in an unlawful common purpose, by virtue of the Criminal Code, s4. The learned sentencing judge explained that basis for his sentencing as follows:

"Concerning Mayne and his guilt of manslaughter, I am satisfied that he formed a common intention with Semmens to assault Nathan Woolley in conjunction with one another and that the crime of manslaughter was a crime of such a nature that its commission was a probable consequence of the prosecution of that common intention.  He knew that Semmens had armed himself with the blockbuster handle at number 42 and had every reason to think that he would arm himself in the same way.  The obvious purpose of driving to number 39 was to be violent to one or more of those they could see there.  I do not consider it to be open on the evidence to find that he deliberately held the deceased to render him defenceless against an attack from Semmens with the wooden implement."

1. Two witnesses gave evidence at the trial to the effect that they saw two men holding Nathan Woolley before Semmens inflicted the fatal blow.  Those two witnesses were Grant Woolley and Trent Saunders.  Saunders was a friend of the murdered man's teenage son.  As Holt had remained in the car, the only two men who could have held Nathan Woolley at that time were Mayne and Shepherd. As I have said, Shepherd was acquitted on the murder charge. In his sentencing submissions, counsel for Mayne submitted that the jury must have rejected the evidence that two men held the deceased.  The Crown prosecutor submitted that it had been open to the jury to accept Grant Woolley's evidence that he saw the first man, Mayne, holding the deceased, whilst not accepting his evidence that he saw a second man, Shepherd, holding the deceased.

1. In his sentencing comments, in the first passage quoted above, the learned sentencing judge made a finding that Mayne was holding the deceased at the time of the fatal blow.  Later in those comments he said this:

"The preponderance of evidence admissible against Mayne supports the finding that he was holding the deceased when Semmens delivered the fatal blow.  I refer in particular to the evidence of Grant Woolley and Trent Saunders.  They accepted that in the dark, and in the commotion, they could not see his hands holding the deceased at the time the blow was delivered, but I have no reason to doubt their evidence that they saw two men go up to the deceased and grab hold of him.  That was the evidence of Kyle Chugg as well, although he also conceded that he could not see the deceased actually being held.  Lauris Reed, of number 41, was aware of three men going from the four-wheel drive and behind her vehicle in the direction of where Nathan Woolley was. 

As I mentioned earlier, it was submitted by Mayne's counsel that in the light of the verdict that Shepherd was not guilty of murder or manslaughter, I should find that Mayne was not holding Nathan Woolley.  The argument was that the verdict revealed that the jury was not satisfied beyond reasonable doubt that Shepherd was holding Mr Woolley.  It followed from that, so it was argued, that no such finding could be made against Mayne either. 

However, the evidence on Mayne's trial was not identical to the evidence on Shepherd's trial.  In particular, on Shepherd's trial, the jury had to consider Shepherd's third interview, in which he admitted striking Michael Brooks and Grant Woolley but denied having any involvement in the attack on Nathan Woolley.  That evidence may have tipped the scales in favour of a reasonable doubt for Shepherd on the murder count.  Mayne, on the other hand, did not participate in an interview or give evidence.  His version of the events remains unknown. 

I do not accept Semmens' evidence that he acted alone against Nathan Woolley.  Based on his interview, he is a proven liar, and his evidence was contrary to the evidence of other witnesses, particularly the ones to which I have referred." 

1. On the hearing of this appeal, it was not argued that the finding that Mayne was holding Nathan Woolley at the time of the fatal blow involved any inconsistency with the jury's acquittal of Shepherd on the murder charge.  The appeal was based solely on the proposition that the finding that Mayne was holding the victim at the critical time was a finding that was not open on the evidence.

1. The only witnesses who gave evidence of seeing anyone grab or hold the deceased were Grant Woolley, Trent Saunders, and Kyle Chugg.  All three made concessions in cross-examination which, counsel for Mayne submitted to this Court, meant that none of them could say that anyone was holding the deceased when the fatal blow was struck. 

1. The Crown contends that, notwithstanding the concessions by the three witnesses, it was open to the learned sentencing judge to be satisfied beyond reasonable doubt that Mayne was holding the deceased at the relevant time.  Further, the Crown contends that, even if that finding was not open, an erroneous finding of fact as to that point was not significant enough to make any difference to Mayne's sentence.  In order for Mayne's appeal to succeed, this Court would need to be satisfied not only that the learned sentencing judge made a mistake in his fact finding, but also that therefore a less severe sentence "is warranted in law and should have been passed":  Criminal Code, s402(4).

1. Grant Woolley gave the following version of events in his evidence-in-chief:

"I heard someone yell out keep driving all the way up the driveway or something like that and then the four-wheel drive broke hard and skidded and come to a stop.  I seen the driver's side door open and two fellas jump out and then I looked back at me brother, he takes two steps down the driveway and then I see a fellow come from the bottom side, or the passenger side of the vehicle and grab him from the front and there's a slight struggle.  Then I seen one of the fellows that got out of the driver's side, grab him from behind.  Then the first fellow out of the vehicle, he had a piece of wood.  He, um, went and hit him in the head with it … ".

1. Holt gave evidence as to the positions of the four men in the two-door vehicle.  That evidence was unchallenged and uncontradicted.  He said that Semmens was in the driver's seat, Mayne was in the front passenger seat, Shepherd was sitting behind the driver, and he was in the rear left seat.  If Grant Woolley's evidence-in-chief was accurate, he must have seen Semmens and then Shepherd get out of the driver's door, Mayne get out on the passenger side and grab the deceased from the front, Shepherd grab the deceased from behind, and Semmens hit him with a piece of wood. 

1. Grant Woolley was cross-examined as to what he could see of the man who grabbed his brother from the front, particularly in relation to that man's hands, after the initial grabbing.  He said that his brother had his back to him.  He said that the second person to grab his brother stood between his brother and himself.  He said that, because of the person standing between him and his brother, he could not say whether the man at the front was continuing to grab his brother.  However, he said that his brother was in the middle of the two men; that there was nowhere for him to go; and that the two fellows' movements did not change from the time he saw them hold his brother to the time his brother was struck.

1. The relevant evidence-in-chief of Trent Saunders was to the following effect.  He was visiting Nathan Woolley's son.  He heard a car screaming up and down the street.  He looked out a window.  He saw a car screaming up and coming across the driveway.  Three people got out.  Two of them ran up to Nathan Woolley, and one hit him.  The other two were holding him on the shoulders when he was hit.  They were holding his arms. 

1. However, under cross-examination, he said that because it was "sort of dark" he could not really tell whether the two men were grabbing Mr Woolley, but that it looked like they were.  Under cross-examination by counsel for Shepherd, he said that he could not see any hands on Mr Woolley.  However he said, "All I could see was Nathan struggling and two people behind him."  In re-examination he said that by that he meant that Mr Woolley was trying to shake them off.  In my view it was open to the learned sentencing judge to treat the evidence that Mr Woolley was struggling as evidence that he was being held.

1. Kyle Chugg gave evidence that he lived in the same street, heard a noise, and looked out of the window.  He described what he saw as follows:

"And then we saw three guys get out and I saw two of them walk over to one guy and grab hold of him and then I saw another, one of the other guys that got out, go back to the car and get something and then I basically went over to Mum where she was in the other part of the house and told them and then when I came back to look out the window the car was leaving."

1. Under cross-examination, he said that he could not see the hands of the people that he had referred to.  It was put to him that he could not see whether they were in fact holding anybody.  He responded, "Well it sounded like it because they were yelling and screaming and they weren't exactly moving anywhere."  Under re-examination he confirmed that what he had said about someone being held was a conclusion, rather than something he had seen.

1. It is true that none of the three relevant witnesses was able to give evidence of actually observing that Mr Woolley was being held when the fatal blow was struck.  However there was evidence that he had been grabbed only a very short time beforehand by the person who came from the passenger side of the vehicle, that he was struggling, and that the person who first grabbed him had not moved.  In my view it was open to the learned sentencing judge to accept all of that evidence, to infer from it that Mr Mayne was holding the victim when the fatal blow was struck, and to be satisfied of that fact beyond a reasonable doubt.  The concessions by the three witnesses as to the limited nature of their observations made the evidence weaker, but did not preclude the making of the impugned finding.  It follows that, in my view, Mayne's appeal must fail.

1. Even if the evidence was insufficient for the learned sentencing judge to be satisfied that Mayne was holding the deceased at the critical time, I do not think that an error as to that point alone could warrant a conclusion that a less severe sentence should have been passed.  Without the impugned finding, the factual basis for the sentence was essentially as follows:

·     Mayne and Semmens formed a common intention to assault Nathan Woolley in conjunction with one another.

·     Semmens had armed himself with a blockbuster handle when Brooks was attacked.  Semmens was likely to arm himself in the same way for the attack on Nathan Woolley.

·     The purpose of driving to Mr Woolley's home was to be violent to one or more of the men who could be seen there. 

·     Semmens and Mayne both got out of the vehicle for that purpose.

·     Mayne approached Nathan Woolley and participated in a joint assault by grabbing him. 

·     Nathan Woolley struggled.

·     While he and Mayne remained in the same positions, Semmens delivered the fatal blow, either with the blockbuster handle or some other wooden object capable of causing death.

·     Mayne was not deliberately holding the victim to render him defenceless against an attack by Semmens with a wooden object.

1. Generally speaking, the greater the level of participation of an offender in a fatal attack like this, the longer the offender's sentence should be.  However, on the facts of this case, I can see no reason why Mayne's participation in the attack should be regarded as less serious if, contrary to the impugned finding, he happened not to be holding the victim when the fatal blow was struck, particularly in light of the finding that he was not deliberately holding the victim to render him defenceless against an attack by Semmens with a wooden object.  It follows that, even if the impugned finding was not open, there is no reason why a less severe sentence should have been imposed, and the appeal should therefore be dismissed.

Mr Semmens' appeal

1. Mr Semmens' appeal relates only to his sentence for murder.  He contends that that sentence was manifestly excessive.  His counsel submitted that the learned sentencing judge made a number of specific errors.  The suggested specific errors should therefore be considered first.

Remorse

1. The learned sentencing judge said nothing in his sentencing comments about remorse on the part of Semmens.  Remorse after the offence is a mitigating factor: Pavlic v R (1995) 5 Tas R 186; Ferguson v R [2001] TASSC 20, at par[16].

1. Mr Semmens' trial counsel said the following in his sentencing submissions:

"The prosecutor has said there's no remorse; well that's simply not correct.  Since I've been acting for him I can tell you Mr Semmens has expressed great remorse to me.  He's sat in a cell and sobbed.  He's instructed me that he's haunted by the memories of what happened that night and virtually on a – I'm sure the family of the deceased are, I accept that, but so is he.  There are no winners out of any of this.  He says every night when he goes to bed he tries to sleep but he has memories of these events."

1. That submission did not provide the learned sentencing judge with any assistance as to how much of Mr Semmens' distress was attributable to self-pity, and how much, if any, was attributable to concern for the deceased and his family.

1. Semmens gave evidence at the trial.  At the end of his evidence-in-chief he said that his evidence was the truth, that he would like to get it off his chest, and that he was ashamed of what he had done.  However he gave evidence that was designed to exculpate both Mayne and Shepherd.  The jury rejected his evidence, at least in relation to the extent of Mayne's involvement.

1. Under cross-examination, Semmens was asked why he did not hit the deceased somewhere else on the body. He responded, "Don't you think I think about that every night?"  His counsel submitted to this Court that that was evidence of remorse.  However, at best, it was evidence that, with hindsight, he would rather have committed a serious assault than a fatal one.

1. There was evidence at the trial that indicated a lack of remorse on Semmens' part in the hours and days following the killing. After he inflicted the fatal blow, Semmens and his companions resumed their journey to the Empire Hotel, and bought some beer there.  Two bottle shop attendants from that hotel gave evidence at the trial.  One of them had fetched a carton of the wrong beer by mistake.  It was more expensive than the beer that had been asked for.  Both attendants gave evidence that one member of the group said that they had just knocked out two guys, and asked which of the two of them was going to be next.  One of the attendants identified the person who said that as the driver.  It was Semmens who was driving.  His conduct was inconsistent with remorse.

1. There was evidence that Semmens was interviewed by police officers on the afternoon of 22 December 2008, and that he was told then that the victim of the attack might not live.  There was evidence that he told the police that he did not get out of the car at the scene of the attack.  He admitted during his cross-examination that that was a deliberate lie.

1. Remorse did not lead Semmens to make any significant admission, to plead guilty, or even to give an honest account of events in his evidence at the trial.  There was no suggestion that he had made any attempt to tell the dead man's partner or family that he was sorry for their loss or their distress.  In my view this was not a case in which remorse was a significant mitigating factor. 

Effect on the victim's family

1. The learned sentencing judge said the following, and nothing more, on the subject of victim impact in relation to the crimes of the two appellants and Shepherd:

"I have read the victim impact statements from members of Nathan Woolley's family and from his partner and from Michael Brooks.  These crimes have touched many people in terrible ways.  Their suffering is enormous."

1. It was submitted to this Court that his Honour attached undue weight to victim impact.  There is nothing in that paragraph to indicate any error.  Its brevity is inconsistent with the proposition that undue weight was attached to victim impact.  His Honour was provided with five victim impact statements — from Nathan Woolley's partner, mother and two brothers, and from Mr Brooks.  His brief comments did not overstate or exaggerate their contents.  It emerged during argument that counsel for Semmens was reasoning that the sentence was excessive, and that therefore aggravating factors such as victim impact must have been given too much weight, and mitigating factors too little weight.  The real question is whether the sentence was manifestly excessive.  I will come to that question in due course.

Lack of premeditation

1. Semmens' counsel argued that the learned sentencing judge attached insufficient weight to the lack of premeditation.  His Honour said that he accepted a defence submission that, until the collision with the wheelie bin, violence to others was not planned.  He accepted that it was possible that, when Semmens struck the fatal blow, he did not stop to think, and therefore did not think of the fact that his blow was likely to cause death.  Once again, I think the real argument is that the sentence was manifestly excessive, and that therefore a wrong approach must have been taken to various matters, perhaps including the lack of premeditation.  There is nothing in the sentencing remarks to give any indication that the learned sentencing judge erred in his approach in relation to the lack of premeditation.

Provocation

1. Counsel for Semmens submitted that the conduct of Nathan Woolley and Grant Woolley amounted to provocation, and that the learned sentencing judge erred in failing to take such provocation into account as a mitigating factor.  That was the least meritorious of his submissions.  The Woolley brothers had been in Nathan Woolley's shed, discussing his lathe.  They heard a loud noise.  They walked from the shed to the front gate.  Nathan Woolley walked ahead alone to a point a couple of paces beyond his gate.  That is to say, he walked towards Semmens.  Semmens gave evidence that he had his arms out in front of him at about shoulder height with his hands wide open.  The learned sentencing judge did not say whether he accepted or rejected that piece of evidence.

1. The conduct I have described, it was argued, amounted to provocation warranting a more lenient sentence for the crime of murder than the sentence that was imposed.  There was no suggestion that Nathan Woolley said or did anything unpleasant.  There was no suggestion that he had caused the wheelie bin to be on the road where Semmens collided with it, nor that there was any reason for anyone to believe or suspect that he had caused it to be there.  Semmens' trial counsel did not suggest that anything other than the presence of the wheelie bin on the road had provoked violence on the night of the killing.  Semmens gave evidence that he believed Brooks had put the wheelie bin on the road.

1. On any version of Nathan Woolley's conduct, there was no reason to think that anything he said or did was intended to anger or irritate anyone, or to incite violence.  Nor is there any reason to think that there was any realistic risk that anything he said or did might have angered or irritated anyone, or incited violence.  Semmens did not claim to have been provoked by the murdered man's conduct.  There was no evidence that this murder was provoked to any degree in any sense at all.

Manifestly excessive sentence?

1. Semmens was sentenced on the basis that the killing amounted to murder because, within the meaning of the Criminal Code, s157(1)(c), it was committed by means of an unlawful act which Semmens "ought to have known to be likely to cause death in the circumstances". He was not sentenced on the basis that he intended to cause death, nor on the basis that he knew that his physical act was likely to cause death in the circumstances. Offenders sentenced for murder under s157(1)(c) on the basis of what they ought to have known often receive head sentences in the range of 15 to 17 years' imprisonment. Examples include R v Kibbey (10 March 2000, Crawford J (as he then was) — 16 years); R v Smith (10 July 2002, Crawford J — 15 years); and R v Waddington (2 August 2002, Slicer J — 17 years).  However, in order to determine whether Semmens' sentence of 20 years' imprisonment, with a non-parole period of 12½ years, was manifestly excessive, it is necessary to have regard to all the relevant circumstances.

1. The following aggravating factors are significant in this case:

·     The attack on the deceased was random and pointless.

·     The deceased was murdered in front of his home.

·     The deceased was murdered in front of his 13 year old son, his brother and his partner.

·     The attackers outnumbered the victims.

·     Semmens was armed with a potentially fatal weapon, but the Woolley brothers were unarmed and defenceless.

1. The relevant mitigating factors can be summarised as follows:

·     Semmens had no intention to kill.

·     It did not occur to him that his physical act was likely to cause death in the circumstances.

·     If the wheelie bin had not been on the road, he would not have got angry.

1. A number of common mitigating factors were absent in this case.  Semmens was not a first offender.  He did not make admissions.  He did not plead guilty.  His level of culpability was not diminished as a result of a low intellect or psychological problems.  There was no significant remorse.  There was no provocation.

1. Mr Semmens was 28 years old at the time of the killing, and 29 years old when sentenced.  He had a partner, a child by an earlier relationship, and a business as a self-employed wood merchant.  He had a criminal record.  He was given a conditional discharge for an assault in 2000.  He was fined in 2001 and 2004 for subsequent assaults.  He was fined for engaging in disorderly conduct in 2002, and in 2005 for threatening a public officer.  He was sentenced to six months' imprisonment with effect from 14 January 2008 for a series of offences that included an assault, disorderly conduct, threatening a police officer, resisting a police officer, firearms offences, offences of dishonesty, and other offences.  That sentence was served in the same year that he committed this murder.

1. Nathan Woolley was a stranger to Semmens.  He had done absolutely nothing to suggest hostility to him.  He was going about his ordinary life at his home.  He had nothing to do with the position of the wheelie bin.  The learned sentencing judge took the view that the random nature of the attacks on him and the other people in his street was disturbing.  I agree with him as to that.

1. Because of the context of this killing, I think it warranted a substantially higher sentence than most cases that amount to murder under the "ought to have known" provision in s157(1)(c). In my view the head sentence of 20 years' imprisonment was an entirely appropriate one. The shortest possible non-parole period is half of the head sentence: Sentencing Act 1997, s17(3). In this case the non-parole period of 12½ years amounted to five eighths of the head sentence. In my view that was appropriate, particularly having regard to Semmens' prior convictions and the context of the killing. The head sentence and the non-parole period, considered separately and in combination, were not manifestly excessive. I would therefore dismiss Semmens' appeal.

   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

TENNENT J
30 May 2011

1. I have had the benefit of reading the draft reasons of Blow J in relation to each of these appeals. I agree with his reasons in relation to both and would also dismiss both appeals.