[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…
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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