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Parker v Tasmania

Parker v Tasmania

Case [2019] TASCCA 16 8 October 2019

Statutory Interpretation

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[2019] TASCCA 16

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Parker v Tasmania [2019] TASCCA 16

PARTIES:  PARKER, Leigh John
  v
  STATE OF TASMANIA

FILE NO:  CCA 3282/2018
DELIVERED ON:  8 October 2019
DELIVERED AT:  Hobart
HEARING DATES:  6 June and 29 August 2019
JUDGMENT OF:  Pearce J, Geason J, Marshall AJ

CATCHWORDS:

Criminal Law – Sentence – Sentencing procedure – Factual basis for sentence – Generally – Facts adverse to accused – Disputed facts adverse to accused not resolved before sentence – Miscarriage of sentencing discretion– Appeal allowed – Whether an apprehension of bias - Remitted to sentencing judge for re-sentence.

Sentencing Act 1997 (Tas), s 81.

Criminal Code (Tas), s 402.
O'Neil-Shaw v The Queen [2010] NSWCCA 42; GAS v The Queen [2004] HCA 22, 217 CLR 198; R v Olbrich [1999] HCA 54, 199 CLR 270; Kentwell v The Queen [2014] HCA 37, 252 CLR 601; Minister for Immigration and Multi-cultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507, applied.

Dale v Peterson Serial No 64/1972, referred to.

S v Tasmania [2007] TASSC 62, 16 Tas R 292; S v Tasmania (No 2) [2007] TASSC 85, 16 Tas R 449; Roberts v State of Tasmania [2011] TASCCA 2, followed.
Aust Dig Criminal Law [3308]

REPRESENTATION:

Counsel:
             Appellant:  K Baumeler
             Respondent:  A Shand
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASCCA 16
Number of paragraphs: 59

Serial No 16/2019
File No CCA 3282/2018

LEIGH JOHN PARKER v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
GEASON J
MARSHALL AJ
8 October 2019

Orders of the Court

Appeal allowed.

Sentence imposed by Blow CJ on 28 November 2018 quashed.

Matter remitted to Blow CJ for re-sentence.

Serial No 16/2019
File No CCA 3282/2018

LEIGH JOHN PARKER v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
8 October 2019

This is a sentencing appeal. The appellant pleaded guilty to two counts of assault. The plea to one of the counts was accepted by the Crown in satisfaction of a charge of causing grievous bodily harm. The appellant was sentenced by the learned Chief Justice to imprisonment for four years and three months from 27 August 2018. His Honour ordered that the appellant not be eligible for parole until he has served two years and nine months of the sentence.
As originally drafted, the notice of appeal contained only one ground, that the sentence is manifestly excessive. However, in the course of argument, the appellant challenged the manner in which the sentencing judge determined the factual basis for sentence. The appellant contends that some circumstances of the crimes asserted by the Crown to the sentencing judge were materially different, in ways which were adverse to the appellant, to the description of the circumstances of the crimes asserted by the appellant. The differences in the respective versions…

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 Parker v Tasmania

Details

AGLC: Parker v Tasmania [2019] TASCCA 16
Case: [2019] TASCCA 16
Decision Date: 8 October 2019

CaseChat Overview and Summary

In *Parker v Tasmania*, the appellant, Parker, appealed against his sentence imposed by a judge of the Supreme Court of Tasmania. The dispute concerned the factual basis upon which the sentence was determined, with the appellant arguing that certain facts adverse to him, which he disputed, were not properly resolved before the sentencing judge made his decision.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the sentencing judge had erred in proceeding to sentence Parker without resolving disputed facts that were adverse to the appellant. This raised the question of whether such an approach constituted a miscarriage of sentencing discretion and, by extension, whether it gave rise to an apprehension of bias.

The Full Court held that a sentencing judge must ensure that any facts adverse to an accused, which are disputed by the accused, are resolved before imposing sentence. Failing to do so, and instead proceeding on the basis of disputed facts, constitutes a fundamental error and a miscarriage of sentencing discretion. The Court reasoned that an accused person has a right to have the factual basis of their sentence determined fairly, and that proceeding on disputed facts undermines this right and can lead to an apprehension of bias. Consequently, the appeal was allowed, and the matter was remitted to the sentencing judge for re-sentencing.

Orders