Smith v Tasmania

[2012] TASCCA 3

[2012] TASCCA 3

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

CITATION:              Smith v Tasmania [2012] TASCCA 3

PARTIES:  "SMITH, John"
  v
  TASMANIA (STATE OF)

FILE NO/S:  805/2011
DELIVERED ON:  28 February 2012
DELIVERED AT:  Hobart
HEARING DATE:  9 November, 12 December 2011
JUDGMENT OF:  Tennent, Porter and Wood JJ

NOTE:

In this published version of the judgment, the appellant has been given the pseudonym of "John Smith".  References in the judgment to the names of others have been replaced with letters.

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Disparity – Co-offenders – Equal culpability but differences in personal circumstances – Whether marked disparity.

Green v The Queen (2011) 86 ALJR 36, followed.
Aust Dig Criminal Law [3522]

REPRESENTATION:

Counsel:
             Appellant:  P Morgan
             Respondent:  J Hartnett
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2012] TASCCA 3
Number of paragraphs:  34

Serial No 3/2012

File No 805/2011

"JOHN SMITH" v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J
PORTER J
WOOD J
28 February 2012

Orders of the Court

1. The appeal against sentence is allowed and the sentence imposed on the appellant on 25 August 2011 is quashed.

1. In lieu of that sentence, the appellant is sentenced to serve nine months' imprisonment to commence on 5 October 2011.

Serial No 3/2012

File No 805/2011

"JOHN SMITH" v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J
28 February 2012

1. I have had the benefit of reading draft reasons of Porter J.  I agree with those reasons and the outcome he proposes.

   File No 805/2011

"JOHN SMITH" v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PORTER J
28 February 2012

Introduction

1. This is an appeal against sentence. The appellant pleaded guilty before Crawford CJ to two counts of assault contained in an indictment dated 16 August 2011.  The counts arose out of the one incident on 1 April 2010.  The first count was a joint charge alleging that the appellant, together with AB and CD assaulted X by punching and kicking him to the head, knocking and dragging him to the ground, and by pushing him into a window.  The second count was brought solely against the appellant, and it alleged that he assaulted X by kicking him to the head. 

1. On 25 August 2011, the appellant was sentenced to 15 months' imprisonment cumulative to a sentence of three months which he was then serving.  That sentence expired on 5 October 2011.  It was ordered that he not be eligible for parole until he had served nine months of the sentence.  AB and CD pleaded not guilty to the first count.  Following a jury trial before Crawford CJ, AB was acquitted but CD was convicted.  On 8 September 2011 CD was sentenced to six months' imprisonment to date from 31 August 2011, with the execution of the last three months of that sentence…