Startup v Tasmania - [2010] TASCCA 5

[2010] TASCCA 5

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

CITATION: Startup v Tasmania [2010] TASCCA 5

PARTIES:  STARTUP, Katherine Ann
  v
  STATE OF TASMANIA

FILE NO/S:  CCA 891/2009
DELIVERED ON:  10 May 2010
DELIVERED AT:  Hobart
HEARING DATE:  4 May 2010
JUDGMENT OF:  Evans, Tennent and Wood JJ

CATCHWORDS:

Criminal Law – Sentence – Relevant factors – Nature and circumstances of offender – Mental disorder – Severe borderline personality disorder – Competing considerations of reduced moral culpability and need to protect public.
Veen v R (No 2) (1988) 164 CLR 465; R v Verdins (2007) 16 VR 269, followed.
Aust Dig Criminal Law [3264]

REPRESENTATION:

Counsel:
           Appellant:  G J Barns
           Respondent:  J Hartnett
Solicitors:
           Appellant:  Hobart Community Legal Service
           Respondent:  Director of Public Prosecutions

Judgment Number: [2010] TASCCA 5
Number of paragraphs: 12

Serial No 5/2010
File No CCA 891/2009

KATHERINE ANN STARTUP v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
TENNENT J
WOOD J
10 May 2010

Order of the Court

Appeal dismissed.

Serial No 5/2010
File No CCA 891/2009

KATHERINE ANN STARTUP v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
TENNENT J
WOOD J
10 May 2010

The appellant, having pleaded guilty to a charge of aggravated armed robbery, was sentenced to three years six months' imprisonment, and it was ordered that she not be eligible for parole until she had served two years six months of that sentence.

She has appealed against the severity of her sentence. Her first ground of appeal is that the sentence is manifestly excessive. This ground was not pursued, and rightly so. The sentence imposed is plainly within the range of penalties that are appropriate for the appellant's crime.

Her second ground of appeal relates to the manner in which the learned sentencing judge dealt with evidence of the appellant's mental state. Counsel for the appellant says that the essence of this ground is that the learned sentencing judge did not give any, or any sufficient, weight to a submission made in the course of the sentencing hearing that the appellant's criminal responsibility was diminished by reason of her mental state at the time of the crime, as explained by psychiatric and other evidence put before the Court of the appellant's severe borderline personality disorder.

As to the circumstances of the crime, its impact on the victim, and the appellant's background, the parties accept the accuracy of the following portion of the learned sentencing judge's comments on passing sentence:

"Affected by alcohol and an illicit drug, she decided to rob a newsagency at Chigwell while armed with a broken glass bottle. She was not in need of money at the time. She waited for customers to leave before committing the crime. When the female proprietor resisted, she swung at her with the broken bottle and cut her neck, cheek and nose with it. She grabbed money from the till. A struggle developed between her and the proprietor…

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 Startup v Tasmania

Details

AGLC: Startup v Tasmania [2010] TASCCA 5
Case: [2010] TASCCA 5
Decision Date: 10 May 2010

CaseChat Overview and Summary

Startup v Tasmania concerned an appeal against a sentence imposed by the Supreme Court of Tasmania. The appellant, Startup, had pleaded guilty to a number of offences. The central issue on appeal was the appropriate sentence to be imposed, given the appellant's severe borderline personality disorder.

The Court of Appeal was required to determine how the appellant's mental disorder should be weighed against the need to protect the public and the gravity of the offences committed. Specifically, the court had to consider whether the sentencing judge had given sufficient weight to the mitigating factors arising from the appellant's condition, while also adequately addressing the community's safety.

The Court of Appeal affirmed the sentencing judge's approach, recognising the tension between reduced moral culpability due to mental disorder and the imperative of public protection. The judges applied established principles of sentencing, acknowledging that while a mental disorder can diminish an offender's blameworthiness, it does not automatically lead to a lesser sentence, particularly where there is a significant risk of reoffending. The court found that the sentencing judge had carefully balanced these competing considerations.

The appeal was dismissed, with the Court of Appeal upholding the sentence imposed by the Supreme Court of Tasmania.

Orders

Orders of the court

Appeal dismissed.

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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