Menichelli v Tasmania - [2009] TASSC 111

[2009] TASSC 111

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

CITATION: Menichelli v Tasmania [2009] TASSC 111

PARTIES:  MENICHELLI, Robert Peter
  v
  STATE OF TASMANIA

FILE NO/S:  757/2009
DELIVERED ON:  18 December 2009
DELIVERED AT:  Hobart
HEARING DATE:  12 November 2009
JUDGMENT OF:  Blow, Porter and Wood JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Causing grievous bodily harm – Culpable negligence with pistol.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  T Jago
           Respondent:  J Ransom
Solicitors:
           Appellant:  Legal Aid Commission of Tasmania
           Respondent:  Director of Public Prosecutions

Judgment Number: [2009] TASSC 111
Number of paragraphs: 23

Serial No 111/2009
File No 757/2009

ROBERT PETER MENICHELLI v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW J
PORTER J
WOOD J
18 December 2009

Orders of the Court

Appeal allowed.
Sentence of three years' imprisonment, and order that the appellant not be eligible for parole until he has served 21 months of the imprisonment, both quashed.
Appellant sentenced to imprisonment for two years to date from 22 December 2008.
The appellant is not to be eligible for parole until he has served 15 months of that sentence of imprisonment.

Serial No 111/2009
File No 757/2009

ROBERT PETER MENICHELLI v STATE OF TASMANIA

REASONS FOR JUDGMENT BLOW J

18 December 2009

This is an appeal against sentence. The appellant contends that the sentence imposed on him was manifestly excessive. He pleaded guilty to a charge of causing grievous bodily harm on the basis that, while he was handling a loaded pistol at his partner's home, the pistol discharged as a result of his criminal negligence, with the result that his partner was shot through the hand and in the head. He was sentenced to three years' imprisonment, and it was ordered that he not be eligible for parole until he had served 21 months of that sentence.

The Crown did not contend that the appellant intended to discharge the pistol, nor that he foresaw that the pistol might discharge. The Crown relied on the Criminal Code ("the Code"), ss150 and 152. Section 150 provides:

"It is the duty of every person who has anything in his charge or under his control … which, in the absence of precaution or care in its use or management may endanger human life, to take reasonable precautions against, and to use reasonable care to avoid, such danger."

Section 152 provides:
"A person who without lawful excuse omits to perform any of the duties mentioned in this chapter shall be criminally responsible for such omission if the same causes … grievous bodily harm to any person to whom such duty is owed …".

The pistol was defective. If it had been in proper working order, it could only have been discharged if (a) the "slide safety", also known as the "thumb safety", was off; and (b) the trigger was pulled; and (c) pressure was applied to the grip. The…

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 Menichelli v Tasmania

Details

AGLC: Menichelli v Tasmania [2009] TASSC 111
Case: [2009] TASSC 111
Decision Date: 18 December 2009

CaseChat Overview and Summary

The case of Menichelli v Tasmania involved an appeal against the sentence handed down for an offence of causing grievous bodily harm through culpable negligence while handling a pistol. The appellant, Menichelli, had been convicted and sentenced by the Supreme Court of Tasmania. The court was tasked with reviewing the sentence to determine whether it was manifestly excessive or inadequate.

The central legal issue before the court was whether the sentence imposed was appropriate in light of the circumstances of the offence. The court had to assess the gravity of the offence, the culpability of the appellant, and the principles of sentencing relevant to such cases. Specifically, the court examined whether the sentence reflected the seriousness of causing grievous bodily harm due to culpable negligence with a firearm.

The court's reasoning involved a detailed examination of the circumstances leading to the offence, the harm caused, and the appellant's culpability. The court considered the principles of sentencing and the need for the sentence to reflect both the deterrence of such conduct and the rehabilitation of the offender. Ultimately, the court found that the sentence was manifestly excessive and ordered a re-sentencing by the Supreme Court of Tasmania.

The final orders of the court were to quash the original sentence and remit the matter back to the Supreme Court for re-sentencing, ensuring that the new sentence would appropriately reflect the seriousness of the offence and the principles of criminal justice.

Orders