R v Minney - [2003] TASSC 64

[2003] TASSC 64

CITATION: R v Minney [2003] TASSC 64

PARTIES:  R
  v
  MINNEY, Anthony John

TITLE OF COURT: SUPREME COURT OF TASMANIA

JURISDICTION:  ORIGINAL
FILE NO/S:  311/2001, 173/2003
DELIVERED ON:  1 August 2003
DELIVERED AT:  Launceston
HEARING DATE/S:  2 July 2003
JUDGMENT OF:  Crawford J

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Habitual criminals - Discretion of judge to make declaration - Indecent assaults against child - Low level of seriousness - Whether jurisdiction - Charges heard summarily - Committal for sentence.
Sentencing Act 1997 (Tas), s19.
Justices Act 1959 (Tas), ss72(1), 72B(2).
Chester v R (1988) 165 CLR 611; Read v R (1994) 3 Tas R 387, referred to.
Aust Dig Criminal Law [861]

REPRESENTATION:

Counsel:
             Crown:  J P Ransom
             Accused:  S J N Brown
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  Legal Aid Commission of Tasmania

Judgment ID Number: [2003] TASSC 64
Number of paragraphs: 34

Serial No 64/2002
File No 311/2001
173/2003

THE QUEEN v ANTHONY JOHN MINNEY

REASONS FOR JUDGMENT CRAWFORD J
1 August 2003

Three matters are before me. The prisoner is to be sentenced for two counts of indecent assault. The Crown applied to review an order suspending part of a sentence. The Crown also applied to have the prisoner declared a dangerous criminal.

He was charged before a magistrate on complaint 30005/03, with two counts of indecent assault, contrary to the Criminal Code, s127(1), committed respectively on 24 December 2002 and a few days thereafter. Under the Justices Act 1959, s72(1), he was asked if he was willing to be tried by the magistrate and did not object. As a result, s127 was deemed to have created a simple offence and the complaint was dealt with accordingly. He pleaded not guilty to both counts. After evidence, each count was found proved on 13 May 2003. On the following day, the learned magistrate decided that the charges should be dealt with in this Court, whereupon the prisoner was convicted and under the Justices Act, s72B(2), he was committed to this Court for sentence. A motion to review the committal order was dismissed by Evans J on 20 June.

The first offence occurred in the following circumstances. The prisoner was in the back seat of a motor vehicle on the night of 24 December. Next to him was a girl aged 9 years. Also in the back seat was the girl's brother. In the front were his father and the girl's mother. The purpose of them being in the car was to look at Christmas lights in the town. While the car was in motion, he put his hand down the front of the girl's track suit trousers and on her vagina. That was the first offence. A response of the girl was to ask her mother to swap seats with her. That was done.

Within a few days, the second offence was committed. A tent had been erected in the back yard…

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 Minney

Details

AGLC: R v Minney [2003] TASSC 64
Case: [2003] TASSC 64
Decision Date: 1 August 2003

CaseChat Overview and Summary

The case of R v Minney involved the sentencing of Anthony John Minney for two counts of indecent assault against a child, committed in December 2002. The Crown also applied to review an order suspending part of a sentence and to have Minney declared a dangerous criminal. Minney had a history of similar offences, including indecent assaults committed in 2001 and 1991. The court was required to decide on the appropriate sentence for the recent offences, whether to enforce the suspended sentence from the 2002 conviction, and whether to declare Minney a dangerous criminal.

The court considered the nature and circumstances of the offences, Minney's criminal history, and psychiatric evaluations. The recent offences, though serious, were deemed to involve a relatively low level of force and indecency. The court noted the risk of re-offending posed by Minney but decided against declaring him a dangerous criminal, considering the low level of force in the recent offences and the potential for rehabilitation. The court sentenced Minney to two years and six months in prison for the recent offences, with a minimum of one year and six months before parole eligibility. The suspended sentence from the 2002 conviction was ordered to be served cumulatively with the new sentence. The application to declare Minney a dangerous criminal was dismissed.

Orders