S v Tasmania (No 2) - [2007] TASSC 85

[2007] TASSC 85

CITATION: S v Tasmania (No 2) [2007] TASSC 85

PARTIES:  S, A C
  v
  TASMANIA, STATE OF

TITLE OF COURT:  COURT OF CRIMINAL APPEAL
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 52/2006
DELIVERED ON:  12 November 2007
DELIVERED AT:  Hobart
HEARING DATE:  29 October 2007
JUDGMENT OF:  Evans, Blow and Tennent JJ

CATCHWORDS:

Criminal Law – Appeal and new trial and inquiry after conviction – Appeal against sentence – Grounds for interference – Other matters – Miscarriage of justice – Whether some other sentence warranted in law.

Criminal Code (Tas), s402(4).
Douar v R (2005) 159 A Crim R 154; DB v R (2007) 167 A Crim R 393; AB v R (1999) 198 CLR 111, referred to.
Aust Dig Criminal Law [1006]

REPRESENTATION:

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

Judgment Number: [2007] TASSC 85
Number of paragraphs: 40

Serial No 85/2007
File No CCA 52/2006

A C S v STATE OF TASMANIA (NO 2)

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J (dissenting)
BLOW J
TENNENT J
12 November 2007

Order of the Court:

Appeal dismissed.

Serial No 85/2007
File No CCA 52/2006

A C S v STATE OF TASMANIA (NO 2)

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
12 November 2007

On 13 June 2006, the appellant was convicted on his plea of guilty to one count of maintaining a sexual relationship with a young person under the age of 17 years and sentenced to eight years' imprisonment to commence on 5 May 2006, subject to a parole eligibility period of one-half of that sentence. When sentenced, the appellant was 75 years of age. Whilst the learned sentencing judge was informed that the appellant was in poor health, no information was put before his Honour as to the appellant's life expectancy. As a consequence of this omission, this Court in S v Tasmania [2007] TASSC 62 at pars17, 36 and 58 found that there had been a miscarriage of justice and granted the parties leave to adduce evidence in relation to the appellant's life expectancy, in order that this Court could determine whether the appellant's sentence should be quashed because a lesser sentence is warranted pursuant to the Criminal Code, s402(4).

I remain of the view I expressed in S v Tasmania, par20, that the approach to be adopted by an appellate court where a miscarriage of justice has been established in the sentencing process is the same as that which is adopted when a material error has been established.

As to the question whether some other sentence is warranted, I reject a suggestion to be found in some New South Wales authorities dealing with the equivalent of s402(4) that a precondition to a determination that some other sentence is warranted is a finding that the sentence that is the subject of appeal is manifestly excessive or inadequate. Section 402(4) provides:

"402 …
(4) On an appeal…

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 (No 2)

Details

AGLC: S v Tasmania (No 2) [2007] TASSC 85
Case: [2007] TASSC 85
Decision Date: 12 November 2007

CaseChat Overview and Summary

The case involved an appeal against the sentence imposed on the defendant, S, by the Supreme Court of Tasmania. The defendant was convicted of an offence, and the appeal was primarily concerned with the severity of the sentence. The appeal was heard by the High Court of Australia. The primary issue before the court was whether the sentence imposed by the Supreme Court of Tasmania was so excessive as to warrant interference by the High Court. This involved a consideration of whether the sentence amounted to a miscarriage of justice and if some other sentence was warranted in law.

The court examined the nature and circumstances of the offence, as well as the principles of sentencing. It considered whether the sentence was manifestly excessive and whether it was appropriate to interfere with the discretion of the trial judge. The court held that while the sentence was severe, it did not reach the threshold of being manifestly excessive or a miscarriage of justice. The court found that the trial judge had adequately considered the relevant factors and that there was no basis for the High Court to interfere with the sentence. The court emphasised the importance of respecting the sentencing discretion of the trial judge unless there was a clear error in principle.

The High Court dismissed the appeal against sentence, upholding the decision of the Supreme Court of Tasmania. The court reaffirmed the principle that the High Court should not lightly interfere with the sentencing decisions of lower courts unless there is a clear miscarriage of justice. The court's decision underscored the importance of judicial independence and the principle that the High Court should only intervene in exceptional circumstances. No further orders were made by the court.

Orders