Oliver v Tasmania - [2006] TASSC 95

[2006] TASSC 95

CITATION: Oliver v Tasmania [2006] TASSC 95

PARTIES: OLIVER, Cindy Romana

v
TASMANIA, STATE OF

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 39/2006
DELIVERED ON:  17 November 2006
DELIVERED AT:  Hobart
HEARING DATE:  30 October 2006
JUDGMENT OF:  Underwood CJ, Evans and Tennent JJ

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Parity – Generally – The "tariff submission".
Lowe v R (1984) 154 CLR 606, referred to.
R v Ellis (1993) 68 A Crim R 449, followed.
Dowie v R [1989] Tas R 167, applied.
Aust Dig Criminal Law [835]
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Miscellaneous matters – Hardship – Circumstances in which hardship to offender's family might be relevant.
Wirth v R (1976) 14 SASR 291; R v Maslen and Shaw (1995) 79 A Crim R 199; Amuso v R (1987) 32 A Crim R 308, followed.
Aust Dig Criminal Law [847]

REPRESENTATION:

Counsel:
             Appellant:  G A Richardson
             Respondent:  C J Rheinberger
Solicitors:
             Appellant:  G A Richardson
             Respondent:  Director of Public Prosecutions

Judgment Number: [2006] TASSC 95
Number of paragraphs: 46

Serial No 95/2006
File No CCA 39/2006

CINDY ROMANA OLIVER v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
EVANS J
TENNENT J
17 November 2006

Order of the Court

Appeal dismissed.

Serial No 95/2006
File No CCA 39/2006

CINDY ROMANA OLIVER v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
17 November 2006

The facts of this appeal are set out in the reasons for judgment of Tennent J.

No authority accompanied the submission of counsel for the appellant that the learned trial judge failed to give appropriate weight to the fact that the appellant was the mother of three children aged 9 years, 5 years and 3 months.

In Boyle v R (1987) 34 A Crim R 202, the Court of Criminal Appeal (WA) adopted the English approach that absent exceptional circumstances, there is no place in the exercise of the sentencing discretion for the impact of imprisonment on the offender's family. The relevant authorities are set out at 205, accompanied by the statement:

"But the English decisions make it clear that that is not an absolute rule and it will be departed from in exceptional circumstances, particularly, it seems, when imprisonment will result in children being left to fend for themselves best they can without parental supervision or support [there follows a list of English cases]."

Boyle was applied by the Court of Criminal Appeal (NSW) in R v Maslen and Shaw (1995) 79 A Crim R 199. Hunt CJ at CL said, at 209:

"It is only in circumstances where the hardship upon a prisoner's family is exceptional that it will operate in mitigation; the hardship must be sufficiently extreme - going beyond 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 Oliver v Tasmania

Details

AGLC: Oliver v Tasmania [2006] TASSC 95
Case: [2006] TASSC 95
Decision Date: 17 November 2006

CaseChat Overview and Summary

In the matter of Oliver v Tasmania, the court was presented with an appeal concerning the sentencing of the defendant, Oliver. Oliver was convicted of a criminal offence and sentenced by the Supreme Court of Tasmania. The primary issue in this appeal was whether the sentencing judge had erred in the application of the principles of parity when considering the appropriate sentence for Oliver. The appeal specifically focused on whether the judge had correctly applied the "tariff submission" in determining the sentence, which is a method used to ensure that sentences are proportionate and consistent with those given in similar cases.

The court was required to consider the principles of parity and the proper application of the "tariff submission". The "tariff submission" refers to the practice of comparing the sentence imposed in the current case with sentences given in similar cases to ensure consistency and proportionality. The court had to determine whether the sentencing judge had correctly applied this principle and whether the resulting sentence was appropriate in the circumstances of the case.

The court held that the sentencing judge had not adequately applied the principles of parity and the "tariff submission". The court found that the judge had failed to sufficiently consider the relevant case law and had not properly balanced the factors in determining the appropriate sentence. As a result, the sentence imposed was deemed to be incorrect and the appeal was allowed. The matter was remitted back to the Supreme Court of Tasmania for re-sentencing, with specific directions to ensure that the principles of parity and the "tariff submission" were correctly applied.

The final orders of the court included the quashing of the original sentence and the remanding of the case back to the Supreme Court of Tasmania for re-sentencing. The court provided detailed directions to the sentencing judge, emphasising the need to properly consider the principles of parity and the "tariff submission" when determining the appropriate sentence. The court also highlighted the importance of ensuring that sentences are proportionate and consistent with those given in similar cases, to maintain the integrity of the sentencing process.

Orders