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RDA v Tasmania

RDA v Tasmania

Case [2021] TASCCA 4 20 April 2021

Statutory Interpretation

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[2021] TASCCA 4

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	RDA v Tasmania [2021] TASCCA 4
PARTIES:	A, RD
v
STATE OF TASMANIA
FILE NO:	1261/2020
DELIVERED ON:	20 April 2021
DELIVERED AT:	Hobart
HEARING DATES:	8 October, 17 December 2020
JUDGMENT OF:	Pearce J, Geason J, Porter AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Sexual crimes against children forty years prior to sentence – Offender substantially rehabilitated – Failure to suspend part of the head sentence of five years'

imprisonment made sentence manifestly excessive.

R v PJB [2007] VSCA 242, 17 VR 300; TAP v Tasmania [2014] TASCCA 5, applied.
Aust Dig Criminal Law [3521]

Criminal Law – Procedure – Information, indictment or presentment – Amendment – Generally – Sentencing judge amended name of charge to allege a different crime after pleas of guilty entered – Where legislation permitted the name change – Criminal Code provided for amendment "before trial or at any stage of the trial" – Whether power to amend following pleas of guilty – "Trial" to be interpreted broadly

according to its context and included proceedings following a plea of guilty.

Criminal Code (Tas), s 326(1). Aust Dig Criminal Law [3070]

REPRESENTATION:

Counsel:

Appellant: S Keim SC, F Cangelosi, S Wright
Respondent: M Wilson

Solicitors:

Appellant: Bold Lawyers
Respondent: Director of Public Prosecutions

Judgment Number:	[2021] TASCCA 4
Number of paragraphs:	140

Serial No 4/2021

File No 1261/2020

RDA v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL PEARCE J GEASON J PORTER AJ 20 April 2021
Orders of the Court (17 December 2020)

1            Appeal allowed.
2            Sentence of five years' imprisonment from 1 May 2020 imposed by Wood J on 15 May 2020 set aside.
3            The appellant is re-sentenced to five years' imprisonment from 1 May 2020. Three years of that term is suspended on condition that the appellant not commit any offence punishable by imprisonment for a period of three years from his release.
4            The appellant is not eligible for parole until having served half of the operative part of the sentence.
5            The determination of the sentencing judge to not make an order under the Community Protection (Offender Reporting) Act 2005 is unaffected.

Serial No 4/2021

File No 1261/2020

RDA v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL
PEARCE J
20 April 2021

1 This is an appeal against sentence. The appellant pleaded guilty to four counts of indecent assault and two counts of penetrative sexual abuse of a child or young person. He was sentenced by Wood J to imprisonment for five years from 1 May 2020. It was ordered that the appellant not be eligible for parole until he had served one half of that term. No order was made under the Community Protection (Offender Reporting) Act 2005.
2 The crimes were…

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 RDA v Tasmania

Details

AGLC: RDA v Tasmania [2021] TASCCA 4
Case: [2021] TASCCA 4
Decision Date: 20 April 2021

CaseChat Overview and Summary

The Full Court of the Supreme Court of Tasmania heard an appeal against sentence brought by the appellant, RDA, who had been convicted of sexual offences against children committed approximately forty years prior to sentencing. The sentencing judge imposed a head sentence of five years' imprisonment.

The primary legal issue before the Full Court was whether the sentencing judge erred in failing to suspend part of the head sentence, and whether the sentence imposed was manifestly excessive in all the circumstances. The Court was required to consider the principles governing appeals against sentence, particularly where the offences occurred a significant time before the offender's rehabilitation.

The Full Court allowed the appeal, finding that the sentencing judge had given insufficient weight to the appellant's substantial rehabilitation over the intervening forty years. The Court applied the principle that while the gravity of sexual offences against children is significant, the passage of time and the offender's subsequent good character and rehabilitation are crucial factors to be considered in determining an appropriate sentence. The Court concluded that the failure to suspend part of the sentence was an error.

The Full Court varied the sentence by suspending the final two years of the five-year head sentence, meaning the appellant was required to serve three years' imprisonment.

Orders