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SG v Tasmania

SG v Tasmania

Case [2017] TASCCA 12 8 August 2017

Statutory Interpretation

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[2017] TASCCA 12

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

CITATION: SG v Tasmania [2017] TASCCA 12

PARTIES:  G, S
  v
  STATE OF TASMANIA

FILE NO:  1103/2017
DELIVERED ON:  8 August 2017
DELIVERED AT:  Hobart
HEARING DATE:  5 June 2017
JUDGMENT OF:  Pearce J, Marshall and Porter AJJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Offender asserts manifest excessiveness – Sentence of imprisonment for 18 months for aggravated sexual assault – Penetration of anus by sex aid – Mistaken belief as to consent not honest or reasonable – Sentence not manifestly excessive.

Criminal Code (Tas), ss 2A, 14A.
Aust Dig Criminal Law [3521]

Criminal Law – Sentence – Relevant factors – Nature and circumstances of offence – Relevance of non-exculpatory mistake as to consent.

Criminal Code (Tas), ss 14, 14A.
Aust Dig Criminal Law [3250]

REPRESENTATION:

Counsel:
             Appellant:  G Stevens
             Respondent:  J Hartnett
Solicitors:
             Appellant:  N/A
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASCCA 12
Number of paragraphs: 47

Serial No 12/2017
File No 1103/2017

SG v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
MARSHALL AJ
PORTER AJ
8 August 2017

Order of the Court

Appeal dismissed.

Serial No 12/2017
File No 1103/2017

SG v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
8 August 2017

This is a sentencing appeal. The appellant pleaded guilty to one count of aggravated sexual assault. He was sentenced by Brett J to imprisonment for 18 months from 3 April 2017. His Honour ordered that the appellant not be eligible for parole until having served half of the sentence. There are two grounds of appeal. One ground contends that the sentence is manifestly excessive. The other ground contends that the sentencing judge erred by giving insufficient weight to the appellant's plea of guilty.

The circumstances of the crime

The crime was committed on 26 October 2014 against the appellant's wife. At that time the appellant was aged 54 and the complainant was aged 50. They met in another State before travelling to Tasmania in 2009 to operate a business they purchased together. They married in 2012 but soon experienced marital problems and separated in early 2014. In September the same year the complainant returned, intending to try to salvage the marriage. However, she quickly decided it would not succeed and planned to leave Tasmania on 6 November 2014. She suggested to the appellant that, before she left, they visit Cradle Mountain because they had not been there before. She made clear to the appellant that she still intended to leave the marriage.
The complainant and the appellant arrived at Cradle Mountain during the afternoon of 26 October 2014. They spent the rest of the day together. After walking, they consumed alcohol in the room they were sharing. More alcohol was consumed at dinner. By 10pm both were considerably…

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 SG v Tasmania

Details

AGLC: SG v Tasmania [2017] TASCCA 12
Case: [2017] TASCCA 12
Decision Date: 8 August 2017

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the respondent for aggravated sexual assault, specifically the penetration of the anus by a sex aid. The appellant, the offender, argued that the sentence of 18 months imprisonment was manifestly excessive. The appeal was heard by Pearce J, Marshall and Porter AJJ.

The central legal issue before the court was whether the sentence of 18 months imprisonment for aggravated sexual assault was demonstrably too severe, thereby justifying appellate intervention. This required the court to consider the nature of the offence, the offender's subjective circumstances, and the sentencing principles applicable to such a charge.

The court determined that the offender's mistaken belief as to consent was neither honestly held nor reasonably held in the circumstances. Applying established sentencing principles, the court found that the sentence of 18 months imprisonment was not manifestly excessive, taking into account the gravity of the aggravated sexual assault. The appeal was therefore dismissed.

Orders