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Mortyn v Tasmania

Mortyn v Tasmania

Case [2018] TASCCA 2 28 March 2018

Sentencing

Appeal

Statutory Construction

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Criminal Law

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[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…

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 Mortyn v Tasmania

Details

AGLC: Mortyn v Tasmania [2018] TASCCA 2
Case: [2018] TASCCA 2
Decision Date: 28 March 2018

CaseChat Overview and Summary

The case of *Mortyn v Tasmania* concerned an appeal against a sentencing order made by a judge of the Supreme Court of Tasmania. The appellant, Mortyn, had been convicted of a criminal offence and sentenced to a term of imprisonment. A key aspect of the dispute related to the commencement date of this sentence, particularly in light of the time Mortyn had already spent in custody prior to the sentencing hearing.

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