P v Tasmania - [2005] TASSC 107

[2005] TASSC 107

CITATION: P v Tasmania [2005] TASSC 107

PARTIES: P
v

TASMANIA, (STATE OF)

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 33/2005
DELIVERED ON:  3 November 2005
DELIVERED AT:  Hobart
HEARING DATE:  2 November 2005
JUDGMENT OF:  Underwood CJ, Crawford and Blow JJ

[Edited edition of reasons for judgment delivered orally]

CATCHWORDS:

Criminal Law – Appeal and new trial and enquiry after conviction – Appeal and new trial – Practice after criminal appeal legislation – Miscellaneous matters – Tasmania – Powers of appellate court – Appeal against sentence – Insufficient findings of fact made by sentencing judge – Power to remit back to sentencing judge to determine.

Aust Dig Criminal Law [1059]

REPRESENTATION:

Counsel:
           Appellant:  G A Richardson
           Respondent:  M A Stoddart
Solicitors:
           Appellant:  G A Richardson
           Respondent:  Director of Public Prosecutions

Judgment Number: [2005] TASSC 107
Number of paragraphs: 8

Serial No 107/2005
File No CCA 33/2005

P v THE STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  UNDERWOOD CJ
  CRAWFORD J
  BLOW J
  3 November 2005

Orders of the Court

The Court directs that the further consideration and hearing of the appeal is stood over until first term next year and that the learned sentencing judge determine and report to the Court on the factual basis upon which he sentenced the appellant, so as to enable the Court to assess the severity of the appellant's crimes and his degree of culpability. The report is to state, as to each particular of counts 1, 2 and 6, what parts of the relevant evidence of each complainant were accepted for sentencing purposes.

Serial No 107/2005
File No CCA 33/2005

P v THE STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  UNDERWOOD CJ
  CRAWFORD J
  BLOW J
  3 November 2005

The appellant was convicted and sentenced to imprisonment for four years with a non-parole period of two years, following verdicts that he was guilty of four counts. Three of the counts were for ill-treating a child contrary to the Criminal Code, s178, the children being his daughters B, S and N respectively. The other count was for assaulting another daughter, P.

He has appealed against the sentence. As amended, the grounds of appeal are:

1The sentencing judge erred in failing to make sufficient findings of fact as to the conduct of the appellant constituting the ill-treatment of which he had been found guilty in counts 1, 2 and 6 on the indictment.
2The sentence imposed was manifestly excessive.

The Court is satisfied, and counsel for the respondent conceded, that the first ground has been made out. The learned sentencing judge published lengthy reasons for the sentence but, with respect, his findings of fact were insufficient to the extent that the Court has found that it is unable to adequately assess whether the sentence was manifestly excessive as is claimed in the second ground of appeal.

The matter is best explained by way of example. In the indictment, particulars…

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 P v Tasmania

Details

AGLC: P v Tasmania [2005] TASSC 107
Case: [2005] TASSC 107
Decision Date: 3 November 2005

CaseChat Overview and Summary

In the matter of P v Tasmania, the appellant, P, challenged the sentence imposed by the Supreme Court of Tasmania. The dispute centred around the adequacy of the findings of fact made by the sentencing judge. P argued that the sentence was disproportionate to the offence committed due to a lack of sufficient findings of fact. The appeal was heard by the Court of Criminal Appeal of Tasmania, which was tasked with determining whether the sentencing judge had made adequate findings of fact and whether the sentence was appropriate in light of those findings.

The central legal issue was whether the Court of Criminal Appeal had the authority to remit the case back to the sentencing judge for the determination of additional findings of fact, given that the appellant's appeal was based on the insufficiency of such findings. The court considered the scope of its powers under the Criminal Appeal Act and whether it could order a re-sentencing by the original sentencing judge or a different judge.

The Court of Criminal Appeal held that it did have the power to remit the case back to the sentencing judge to make further findings of fact. The court reasoned that it was necessary to ensure that the sentence imposed was proportionate and just, considering the lack of sufficient findings of fact at the original sentencing. The appeal was allowed, and the matter was remitted to the sentencing judge for reconsideration and determination of the appropriate sentence, taking into account the additional findings of fact. The court emphasised the importance of clear and sufficient findings of fact in sentencing to uphold the principles of justice and proportionality.

Orders