McKenna v Tasmania - [2020] TASCCA 7

[2020] TASCCA 7

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

CITATION: McKenna v Tasmania [2020] TASCCA 7

PARTIES:  McKENNA, Jarrod Anthony
  v
  STATE OF TASMANIA

FILE NO:  CCA 3/2020
DELIVERED ON:  29 May 2020
DELIVERED AT:  Hobart
HEARING DATES:  23 April 2020
JUDGMENT OF:  Wood J, Estcourt J, Pearce J

CATCHWORDS:

Criminal Law – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Multiple counts of burglary, stealing, receiving stolen property involving theft of and stripping of motor vehicles valued at approximately $180,000 – Appellant 18-19 years of age played minor role in criminal enterprise carried out by a group of older offenders – Desisted offending and substantial progress towards reform – Global sentence of 3 years' imprisonment with minimum non-parole period manifestly excessive.

Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, 20 Tas R 399; TAP v Tasmania [2014] TASCCA 5; Director of Public Prosecutions v J S P [2020] TASCCA 3, referred to.

Aust Dig Criminal Law [3521].

REPRESENTATION:

Counsel:
             Appellant:  G Stevens
             Respondent:  J Shapiro and L Ogden
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2020] TASCCA 7
Number of paragraphs: 29

Serial No 7/2020
File No CCA 3/2020

JARROD ANTHONY McKENNA v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J

ESTCOURT J
PEARCE J
29 May 2020

Orders of the Court:

Appeal allowed.

Sentence of 3 years' imprisonment with non-parole period of 18 months imposed 18 December 2019 set aside.

In substitution for that sentence, the appellant is sentenced to a term of 18 months' imprisonment with 12 months of that term suspended for three years from his release from custody on condition that the appellant does not commit an offence punishable by imprisonment for that period of 3 years.

The substituted sentence is to be served cumulatively to the activated term of 6 months' imprisonment imposed on 18 December 2019, commencing on 21 October 2019.

Serial No 7/2020
File No 3/2020

JARROD McKENNA v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
29 May 2020

I agree with Estcourt J. The sentence of three years' imprisonment was manifestly excessive in light of the nature of the appellant's offending and his circumstances.
I reach this conclusion having in mind that the activated sentence of six months' imprisonment was ordered to be served concurrently with the three year term. This order ameliorated the severity of the punishment the appellant received. The learned sentencing judge explained that by making it concurrent he was addressing totality and the appellant's youth. Ordinarily, an activated sentence would be ordered to take effect cumulatively, not concurrently with another sentence just imposed: s 27(6) of the Sentencing Act 1997. It is perhaps worth noting that if the sentences had been structured so that the sentence under appeal had been two and a half years' imprisonment, not three, and the activated term…

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 McKenna v Tasmania

Details

AGLC: McKenna v Tasmania [2020] TASCCA 7
Case: [2020] TASCCA 7
Decision Date: 29 May 2020

CaseChat Overview and Summary

McKenna appealed against a sentence imposed by the Supreme Court of Tasmania. The appellant, who was 18 to 19 years old at the time of the offences, had pleaded guilty to multiple counts of burglary, stealing, and receiving stolen property. These offences involved the theft and dismantling of motor vehicles with an approximate total value of $180,000. The appellant's role in the criminal enterprise was described as minor, with the principal offending being carried out by a group of older individuals.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the global sentence of three years' imprisonment, with a minimum non-parole period, was manifestly excessive, thereby justifying interference on appeal. The court was required to consider the appellant's age, his limited involvement in the offending, and any evidence of his subsequent reform.

The Full Court reasoned that while the value of the stolen property was significant, the appellant's youth and minor role were crucial mitigating factors. The court also gave weight to the appellant's desistance from further offending and the substantial progress he had made towards rehabilitation. Applying the principles of sentencing, the court concluded that the imposed sentence was indeed manifestly excessive in light of these considerations.

Consequently, the Full Court allowed the appeal and quashed the original sentence. A new sentence was imposed, consisting of 18 months' imprisonment, with a minimum non-parole period of nine months.

Orders