R v Doyle, Colin Peter - [1998] TASSC 157

157/1998

PARTIES:  R
  v
  DOYLE, Colin Peter

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 88/1998
DELIVERED:  15 December 1998
HEARING DATE/S:  26 October 1998
JUDGMENT OF:  Cox CJ, Wright J, Crawford J

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other Crown Law officer - Application to increase sentence - Offences against the person - Assault by deprivation of liberty - Manifestly inadequate sentence.

Aust Dig Criminal Law [1023]

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Concurrent, cumulative and additional sentences, sentences on escape and commencement of sentence - Date of commencement - Pre-sentence custody period - Power to backdate.

Sentencing Act 1997 (Tas), ss14, 15 and 16.
R v Gilbert (1974) 60 Cr App R 220; R v Judge Frederico; ex parte The Attorney-General [1971] VR 425, referred to.
Aust Dig Criminal Law [869]

REPRESENTATION:

Counsel:
             Appellant:  M P Shirley
             Respondent:  D J Porter QC
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment category classification:
Court Computer Code:
Judgment ID Number:  157/1998
Number of pages:  16

Serial No 157/1998
File No CCA 88/1998

THE QUEEN v COLIN PETER DOYLE

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
WRIGHT J
CRAWFORD J (dissenting)
15 December 1998

Orders of the Court:

Appeal allowed.

Sentence quashed.

Substitute a sentence of imprisonment for four months but order that the execution of that sentence be suspended on condition that the respondent be of good behaviour for a period of two years and during that time submit himself to the supervision of a probation officer as required by that probation officer and comply with the reasonable and lawful directions given by his probation officer.

Direct that the respondent attend at the Registry of this Court to arrange a date and time upon which the Registrar shall explain to him the above orders in accordance with the Sentencing Act 1997, s92.
Serial No 157/1998
File No CCA 88/1998

THE QUEEN v COLIN PETER DOYLE

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
15 December 1998

I adopt the statement of facts set out in the reasons for judgment of Wright J, which I have had the advantage of reading. I also adopt his characterisation of the respondent's conduct as predatory and deserving punishment containing an element of both general and personal deterrence. On the face of it, a probation order is a manifestly inadequate penalty for such a crime. An offence of this nature called for an immediate custodial sentence notwithstanding that some part of its execution could properly have been suspended in light of those prospects of rehabilitation which the material before the learned sentencing judge indicated were present.
The principal ground of complaint urged by counsel for the Crown was that although the learned sentencing judge took into account, as he was obliged to do, 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 R v Doyle, Colin Peter

Details

AGLC: R v Doyle, Colin Peter [1998] TASSC 157
Case: [1998] TASSC 157
Decision Date: 15 December 1998

CaseChat Overview and Summary

This appeal against sentence concerns the adequacy of the sentence imposed on the respondent, Colin Peter Doyle, by Evans J following his conviction on count 1 of a two count indictment. The Crown contends that the sentence was manifestly inadequate. The trial was a retrial ordered after the Court of Criminal Appeal allowed the respondent's appeal against his original conviction. The Court is divided as to the appropriate orders to be made. Cox CJ is of the opinion that a sentence of imprisonment of considerably greater length than sixty-four days was required to act as a general deterrent and that the conduct of the respondent required denunciation and that was not achieved by the making of the probation order. Wright J, on the other hand, considered that a wholly suspended sentence of imprisonment would have been adequate. Crawford J considered that the learned trial judge was clearly correct in giving the respondent credit for the sixty-four days he had spent in custody. If for his offence the respondent deserved no more than sixty-four days of imprisonment by way of punishment, the learned judge had no choice which was reasonably open, in the circumstances of this case, but to not impose any imprisonment and to allow the respondent's immediate release. As the Court is divided as to the appropriate orders to be made, resort must be had to a pragmatic solution. The one suggested by Wright J is a reasonable one which is adopted, although Crawford J does not resile from his views as to the power to backdate sentences so as to take account of time spent in custody. The appeal is allowed. The sentence imposed at first instance is quashed. A sentence of imprisonment for four months is substituted, but the execution of that sentence is suspended on condition that the respondent be of good behaviour for a period of two years and during that time submit himself to the supervision of a probation officer as required by that probation officer and comply with the reasonable and lawful directions given by his probation officer. The respondent is directed to attend at the Registry of this Court to arrange a date and time upon which the Registrar shall explain to him the orders of this Court in accordance with the Sentencing Act 1997, s92.

Orders