[2018] TASCCA 2
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Mortyn v Tasmania [2018] TASCCA 2
PARTIES: MORTYN, Travis Anthony
v
STATE OF TASMANIA
FILE NO: CCA 2898/2017
DELIVERED ON: 28 March 2018
DELIVERED AT: Hobart
HEARING DATES: 6 March 2018
JUDGMENT OF: Estcourt and Pearce JJ, Porter AJ
CATCHWORDS:
Criminal Law – Sentence – Sentencing orders – Commencement – Offender held in custody before sentence – Failure to backdate sentence affected operation of non-parole period and detracted from the integrity of the sentencing record.
Sentencing Act1997 (Tas), s 16.
Geale v Tasmania [2009] TASSC 28, 18 Tas R 338, applied.
Aust Dig Criminal Law [3379]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Violent home invasion – No error in effective head sentence of three years' imprisonment but long non-parole period made sentence manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: C Scott
Respondent: L Mason
Solicitors:
Appellant: Butler McIntyre & Butler
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASCCA 2
Number of paragraphs: 33
Serial No 2/2018
File No CCA 2898/2017
TRAVIS ANTHONY MORTYN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
PEARCE J
PORTER AJ
28 March 2018
Orders of the Court
Appeal allowed.
Sentence of two years and six months' imprisonment with parole ineligibility period of 20 months imposed on 26 September 2017 quashed.
Appellant sentenced to three years' imprisonment, backdated to 26 March 2017.
Appellant not eligible for parole until he has served 18 months of that sentence.
Serial No 2/2018
File No CCA 2898/2017
TRAVIS ANTHONY MORTYN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
28 March 2018
The appeal
The appellant, Travis Anthony Mortyn, appeals against a sentence imposed upon him by Slicer AJ on 26 September 2017.
His Honour convicted the appellant of crimes of aggravated burglary, attempted robbery, demanding property with menaces and assault, contrary to the Criminal Code, ss 245, 240(1), 299, 242 and 184, and sentenced him to imprisonment for two years and six months to commence on 26 September 2017 and ordered that the appellant not be eligible for parole until he had served 20 months of the term of imprisonment imposed.
The appellant, by his amended notice of appeal, asserts that the learned sentencing judge erred in imposing a non-parole period that made the sentence manifestly excessive in all the circumstances, erred in that he did not take into account the appellant's remorse in his reasons for passing sentence or at all, and erred in that he failed to state reasons for the imposition of a 20 month non-parole period.
The law
The frequently stated legal principles applicable to appeals against sentence on the ground of manifest excess or inadequacy are clear and well settled. They can be found succinctly stated in Braslin and Cowen v…
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- Mortyn v Tasmania [2018] TASCCA 2
- Case
- [2018] TASCCA 2
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the sentencing judge erred in failing to backdate the commencement of Mortyn's sentence to the date he was first taken into custody. This failure had a direct impact on the calculation of the non-parole period and, as argued by the appellant, undermined the accuracy and integrity of the sentencing record.
The Court reasoned that a failure to backdate a sentence to reflect time already served in custody can prejudice an offender and distort the intended operation of sentencing orders, including non-parole periods. The Court held that the sentencing judge had erred by not giving sufficient weight to the pre-sentence custody. Consequently, the Court allowed the appeal, setting aside the original sentencing order and remitting the matter for re-sentencing.
Orders
Orders of the court
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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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