R v Marshall - [1990] TASSC 71

Serial No 70/1990
List "A"

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

CITATION: R v Marshall [1990] TASSC 71; A70/1990

PARTIES:  R
  v
  MARSHALL, Timothy John

FILE NO/S:  CCA 50/1990
DELIVERED ON:  7 December 1990
DELIVERED AT:  Hobart
JUDGMENT OF:  Green CJ, Wright and Zeeman JJ

Judgment Number: A70/1990
Number of paragraphs: 64

Serial No 70/1990
List "A"
File No CCA 50/1990

R v TIMOTHY JOHN MARSHALL

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

GREEN CJ
WRIGHT J (Dissenting)
ZEEMAN J
7 December 1990

Order of the Court

Application for leave to appeal refused.

Serial No 70/1990
List "A"
File No CCA 50/1990

R v TIMOTHY JOHN MARSHALL

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

GREEN CJ
7 December 1990

The respondent was convicted upon his own plea of one count of causing grievous bodily harm contrary to s172 of the Criminal Code and was sentenced to imprisonment for what was expressed to be a period of 1½ years. This is an application by the Crown for leave to appeal against that sentence. The grounds of the application are as follows:

1That the learned Judge erred in fact and in law in failing to give sufficient weight to the aspect of general deterrence when imposing sentence.
2The learned judge erred in fact and in law in that he misdirected himself as to the ingredients essential to establish guilt of the crime of causing grievous bodily harm under s172 of the Criminal Code thereby precluding from his consideration of the facts an intention of the respondent to cause grievous bodily harm and fettering the exercise of his sentencing discretion.
3That the sentence was manifestly inadequate having regard to all the circumstances of the case.

The factual materials presented to the trial judge appear in the reasons for judgment of Zeeman J

The circumstances of this application are not such as to require a detailed examination of the principles which should guide this court in the exercise of its discretion to grant leave to the Crown to appeal against sentence. It is sufficient for present purposes to make the following observations:

1The question of whether leave should be granted is distinct from the question of whether the appeal should be allowed although upon hearing the application for leave to appeal against sentence it is not inappropriate for the court to hear full argument on the appeal as well: Malvaso (1989) 43 A Crim R 451 at pp455 and 456.
2The determination of an application for leave to appeal against sentence involves the exercise of a discretion whereas, although it might involve the exercise of a judgment or the formation of an opinion, the determination of the appeal itself does not involve the exercise of a discretion in the sense in which that expression is usually employed of a process requiring the court to have regard to broad considerations of fairness and justice.
3It should not be overlooked that the observations appearing in the reasons for judgment in Griffiths v 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 Marshall

Details

AGLC: R v Marshall [1990] TASSC 71
Case: [1990] TASSC 71
Decision Date: 7 December 1990

CaseChat Overview and Summary

The Court of Criminal Appeal of the Supreme Court of Tasmania was asked to consider an application by the Crown for leave to appeal against the sentence of Timothy John Marshall, who had been convicted of causing grievous bodily harm. The Crown argued that the sentence was inadequate and that the trial judge had erred in law. The court had to decide whether to grant leave to appeal. The Crown submitted that the sentence was manifestly inadequate and that the trial judge had failed to give sufficient weight to general deterrence. The court considered whether the Crown had demonstrated that the sentence was manifestly inadequate. The Crown also argued that the trial judge had erred in law by misdirecting himself about the ingredients necessary to establish guilt of causing grievous bodily harm. The court found that while the trial judge had made an error of law, it did not amount to a vitiating error. Finally, the Crown argued that the sentence was manifestly inadequate. The court considered the nature of the crime, the circumstances, and the sentencing principles before deciding whether to grant leave to appeal. The majority of the court found that the Crown had not demonstrated that the sentence was manifestly inadequate and that the error of law did not warrant an appeal. The court refused the application for leave to appeal against the sentence.

Orders