Shield v Tasmania - [2017] TASCCA 6

[2017] TASCCA 6

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

CITATION: Shield v Tasmania [2017] TASCCA 6

PARTIES:  SHIELD, Benjamin Angus
  v
  STATE OF TASMANIA

FILE NO:  2655/2016
DELIVERED ON:  24 March 2017
DELIVERED AT:  Hobart
HEARING DATE:  2 March 2017
JUDGMENT OF:  Blow CJ, Brett J and Slicer AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Causing grievous bodily harm – Criminal negligence – Waving of loaded pneumatically operated spear gun near victim with safety catch disengaged – Sentence of two years five months' imprisonment.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  J Hartnett
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASCCA 6
Number of paragraphs: 20

Serial No 6/2017
File No 2655/2016

BENJAMIN ANGUS SHIELD v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
BRETT J
SLICER AJ
24 March 2017

Order of the Court

Appeal dismissed.

Serial No 6/2017
File No 2655/2016

BENJAMIN ANGUS SHIELD v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ

24 March 2017

I agree with Brett J that this appeal should be dismissed, for the reasons stated by him.
File No 2655/2016

BENJAMIN ANGUS SHIELD v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BRETT J
24 March 2017

On 3 January 2015, the appellant, contrary to s 172 of the Criminal Code (the Code), unlawfully caused grievous bodily harm to Scott David Syme by discharging a spear from a fishing spear gun which entered Mr Syme's neck and lodged in his chest cavity. The appellant was subsequently found guilty by a jury of that crime, on the basis that, having the spear gun under his care or control, he failed to comply with the duty imposed on him by s 150 of the Code to take reasonable precautions, and use reasonable care to avoid danger to human life. The breach of that duty amounted to culpable negligence. On 22 July 2016, Estcourt J imposed a sentence of 2½ years' imprisonment, with an order that the appellant not be eligible for parole until he had served one half of the sentence. The head sentence was subsequently varied by his Honour, pursuant to s 94 of the Sentencing Act 1997, to two years and five months' imprisonment, to take account of time which the appellant had spent in custody prior to trial. The order relating to parole remained unchanged.
The appellant has now appealed to this Court against that sentence. The sole ground of appeal is that the sentence imposed is manifestly excessive.

Factual basis of sentence

On the day of the crime, the victim and a friend, Mr Fernando, had gone to the appellant's flat in order to purchase some cannabis. All of the men were known to each other, and the victim's evidence was that he had telephoned earlier…

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 Shield v Tasmania

Details

AGLC: Shield v Tasmania [2017] TASCCA 6
Case: [2017] TASCCA 6
Decision Date: 24 March 2017

CaseChat Overview and Summary

Shield appealed against a sentence of two years and five months imprisonment imposed by the Supreme Court of Tasmania following his conviction for causing grievous bodily harm. The conviction arose from an incident where Shield, while intoxicated, waved a loaded, pneumatically operated spear gun with the safety catch disengaged in the vicinity of the victim.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the sentence imposed was manifestly excessive or inadequate, thereby justifying interference on appeal. The court was required to consider the principles governing appeals against sentence, including the assessment of the gravity of the offence, the offender's culpability, and the appropriateness of the custodial term.

The Full Court, comprising Blow CJ, Brett J, and Slicer AJ, found that the sentencing judge had correctly identified the relevant factors and had not erred in principle. While acknowledging the seriousness of the conduct, the court determined that the sentence reflected an appropriate balance between punishment, deterrence, and rehabilitation, and was not demonstrably outside the range of a reasonable sentence for the offence committed. Consequently, the appeal against sentence was dismissed.

Orders