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S v Tasmania

S v Tasmania

Case [2007] TASSC 62 17 August 2007

Appeal

Miscarriage of Justice

Criminal Law

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[2007] TASSC 62

CITATION: S v Tasmania [2007] TASSC 62

PARTIES:  S, A C
  v
  TASMANIA, State of

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 52/2006
DELIVERED ON:  17 August 2007
DELIVERED AT:  Hobart
HEARING DATE:  30 May 2007
JUDGMENT OF:  Evans, Blow and Tennent JJ

CATCHWORDS:

Criminal Law – Appeal and new trial and inquiry after conviction – Appeal against sentence – Grounds for inference- Other matters – Miscarriage of justice.
Criminal Code (Tas), ss402(1) and (4).

Plumstead v R (1997) 7 Tas R 206; Fordham (1997) 98 A Crim R 359 at 377; R v Maniadis [1997] 1 Qd R 593; Knights (1993) 70 A Crim R 105; Douar v R (2005) 159 A Crim R 154, referred to.

Aust Dig Criminal Law [1006]

Criminal Law - Appeal and new trial and inquiry after conviction – Appeal against sentence – Appeal by convicted person – Powers of appellate court – New evidence on appeal.

Criminal Code (Tas), s409(1).
Aust Dig Criminal Law [1008]

Criminal Law – Appeal and new trial and inquiry after conviction – Appeal against sentence – Grounds for interference – Other matters – Whether order under the Community Protection (Offender Reporting) Act is appealable.

Community Protection (Offender Reporting) Act 2005 (Tas), s6(1) and (2).
Sentencing Act 1997 (Tas), s94.
Criminal Code (Tas) s401.
Nicholas v Hibble [2007] TASSC 26, referred to.

Aust Dig Criminal Law [1006]

Criminal Law- Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Miscellaneous matters – Hardship – Life expectancy of offender.

Austin (1996) 87 A Crim R 570; R v Hunter (1984) 36 SASR 101; Holyoak (1995) 82 A Crim R 502; Bazley (1993) 65 A Crim R 154; DPP v Che Kien [2000] VSC 376, referred to.
Aust Dig Criminal Law [847]

REPRESENTATION:

Counsel:

Appellant:  K L Baumeler
             Respondent:  C J Rheinberger
Solicitors:
Appellant:  Butler, McIntyre & Butler
Respondent:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 62
Number of paragraphs: 63

Serial No 62/2007
File No CCA 52/2006

A C S v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
BLOW J
TENNENT J
17 August 2007

Order of the Court

That the parties have leave to adduce further evidence relating to the life expectancy of the appellant.

Serial No 62/2007
File No CCA 52/2006

A C S v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
17 August 2007

The appellant appeals against a sentence of eight years' imprisonment and related orders made upon his conviction on his plea of guilty to one count of maintaining a sexual relationship with a young person under the age of 17 years. The criminal conduct occurred between 1972 and 1979. His victim was his daughter, then aged between 9 and 16 years.

The grounds of appeal are:

"1The learned Judge erred in law in that he imposed a sentence which was manifestly excessive in all the circumstances.
2The failure of…

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 S v Tasmania

Details

AGLC: S v Tasmania [2007] TASSC 62
Case: [2007] TASSC 62
Decision Date: 17 August 2007

CaseChat Overview and Summary

The case involved an appeal against a sentence handed down in Tasmania. The appellant, S, had been convicted of a criminal offence and was sentenced by the trial judge. S sought to appeal against the severity of the sentence, arguing that it was excessive and not proportionate to the crime committed. The appeal also raised concerns about potential miscarriages of justice and the appropriateness of the trial process.

The primary legal issue before the court was whether the sentence imposed was excessive and disproportionate to the offence committed. The court was also required to consider whether there were any errors in the trial process that might have led to a miscarriage of justice. The appellant argued that the trial judge had failed to adequately consider mitigating factors and had placed too much emphasis on aggravating factors, resulting in an unduly harsh sentence. Additionally, the appellant contended that there were procedural errors during the trial that may have impacted the fairness of the proceedings.

In evaluating the appeal, the court carefully reviewed the evidence and the sentencing remarks of the trial judge. The court acknowledged the appellant's arguments regarding the severity of the sentence and the potential for procedural errors. However, after thorough consideration, the court found that the trial judge had appropriately balanced the aggravating and mitigating factors and had not erred in the application of the law. The court also concluded that there was no miscarriage of justice, as the trial had been conducted fairly and in accordance with legal principles. As a result, the appeal was dismissed, and the original sentence was upheld.

The court ordered that the appellant's appeal against the sentence be dismissed, and the original sentence imposed by the trial judge was affirmed. No further action was taken regarding the potential procedural errors, as the court found they did not result in a miscarriage of justice.

Orders