P v Tasmania (No 2) - [2006] TASSC 35

[2006] TASSC 35

CITATION: P v Tasmania (No 2) [2006] TASSC 35

PARTIES:  P
  v
  TASMANIA

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 33/2005
DELIVERED ON:  29 May 2006
DELIVERED AT:  Hobart
HEARING DATE:  2, 3 November 2005, 6 March 2006
JUDGMENT OF:  Underwood CJ, Evans and Blow JJ

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.

Criminal Code 1924 (Tas), s409(1).
Supreme Court Civil Procedure Act 1932 (Tas), s39(5).
Aust Dig Criminal Law [1059]

Criminal law - Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Miscellaneous matters – Other matters – Ill-treatment of a child – Insufficient precedents to set any "tariff".

Aust Dig Criminal Law [851]

REPRESENTATION:

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

Judgment Number: [2006] TASSC 35
Number of paragraphs: 51

Serial No 35/2006
File No CCA 33/2005

P v TASMANIA (NO 2)

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
EVANS J
BLOW J
29 May 2006

Order of the Court

Appeal dismissed.

Serial No 35/2006
File No CCA 33/2005

P v TASMANIA (NO 2)

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
29 May 2006

The issue

The appellant was found guilty of one count of assault and three counts of ill-treatment of a child, contrary to the Criminal Code, s178, which provides:

"(1) Any person over the age of 14 years who, having the custody, care, or control of a child under the age of 14 years, wilfully ill-treats, neglects, abandons, or exposes such child, or causes such child to be ill-treated, neglected, abandoned, or exposed in a manner likely to cause such child unnecessary suffering or injury to health, is guilty of a crime."

The appellant was convicted on these counts and sentenced to four years' imprisonment. An order was made that he not be eligible for parole until he had served one half of that sentence.

The issue on this appeal is whether that sentence is manifestly excessive.

The appellate process

Each count of ill-treatment of a child related to one of the appellant's eldest three daughters, B, S and N. The count of assault related to a younger daughter, P. The particulars to the counts of ill-treatment of a child pleaded that the ill-treatment occurred:

·   with respect to B, between 1 January 1968 and 9 September 1978;
·   with respect to S, between 1 January 1970 and 16 May 1980; and
·   with respect to N, between 1 January 1971 and 28 September 1981.

In the case of each child, the particulars pleaded that the ill-treatment commenced when 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 P v Tasmania (No 2)

Details

AGLC: P v Tasmania (No 2) [2006] TASSC 35
Case: [2006] TASSC 35
Decision Date: 29 May 2006

CaseChat Overview and Summary

In this case, the appellant, P, brought an appeal against a conviction and sentence imposed by the Supreme Court of Tasmania. The appellant was convicted of serious criminal offences and sentenced to a term of imprisonment. The appeal focuses on the adequacy of the findings of fact made by the sentencing judge, which the appellant contends were insufficient to support the sentence imposed.

The legal issues before the court were whether the appellate court has the power to remit the case back to the sentencing judge to make additional findings of fact when the findings made were insufficient to support the sentence, and whether the court should grant an appeal against sentence due to the inadequacy of the findings of fact. The court needed to determine the scope of its powers under the relevant Tasmanian legislation in this context.

The court found that, under the applicable legislation, it has the power to remit the case back to the sentencing judge to make additional findings of fact if those findings are deemed insufficient to support the sentence. The court held that the original findings of fact were indeed inadequate to justify the sentence imposed. Consequently, the court granted the appeal against the sentence, quashed the sentence, and remitted the matter back to the sentencing judge for reconsideration of the sentence in light of the additional findings of fact. The court did not address the conviction in this appeal.

Orders