Sullivan v Tasmania - [2015] TASCCA 18

[2015] TASCCA 18

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

CITATION: Sullivan v Tasmania [2015] TASCCA 18

PARTIES:  SULLIVAN, Gary Scott
  v
  STATE OF TASMANIA

FILE NO:  419/2015
DELIVERED ON:  28 August 2015
DELIVERED AT:  Hobart
HEARING DATE:  21 August 2015
JUDGMENT OF:  Blow CJ, Porter and Pearce JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Aggravated armed robbery – Sentence of 5½ years' imprisonment with parole ineligibility period of 3 years – Knifepoint robbery at hotel.

Aust Dig Criminal Law [3521]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Parity between co-offenders – Appellant sentenced to 5½ years with parole ineligibility for 3 years on one charge of aggravated armed robbery – Co-offender sentenced to 7 years 3 months with parole eligibility after 3 years 9 months on two counts of aggravated armed robbery – Whether difference in non-parole periods manifestly inadequate – Co-offender's sentence cumulative with other sentences.

Aust Dig Criminal Law [3522]

REPRESENTATION:

Counsel:
           Appellant:  In person
           Respondent:  A Shand
Solicitors:
           Appellant:  In person
           Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASCCA 18
Number of paragraphs: 14

Serial No 18/2015
File No 419/2015

GARY SCOTT SULLIVAN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
PORTER J
PEARCE J
28 August 2015

Order of the Court

Appeal dismissed.

Serial No 18/2015
File No 419/2015

GARY SCOTT SULLIVAN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
28 August 2015

I agree with Pearce J that this appeal should be dismissed. I entirely agree with his reasons. I would like to add some comments in relation to the question of parity in sentencing.
The appellant's non-parole period of 3 years represents about 54.5% of his sentence of 5½ years. His co-offender's non-parole period of 3 years 9 months represents about 51.7% of his sentence of 7 years 3 months. However the learned sentencing judge stated that she considered a global sentence of 7½ years' imprisonment to be appropriate for the co-offender, and that she was reducing the sentence by three months to take account of time spent by him in custody on remand. His non-parole period of 3 years 9 months is equal to 50% of the notional appropriate sentence of 7½ years.
The shortest non-parole period that can be imposed in this State is half of the head sentence: Sentencing Act 1997, s 17(3). The appellant is aggrieved because his non-parole period was three years, when it could not have been any shorter than 2 years 9 months.
The appellant was sentenced before his co-offender. It was entirely appropriate for the learned sentencing judge, when sentencing the co-offender, to fix a non-parole period that represented a smaller percentage of the head sentence than the appellant's non-parole period did, because of two factors. First,…

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 Sullivan v Tasmania

Details

AGLC: Sullivan v Tasmania [2015] TASCCA 18
Case: [2015] TASCCA 18
Decision Date: 28 August 2015

CaseChat Overview and Summary

Sullivan appealed against a sentence of 5½ years' imprisonment with a parole ineligibility period of 3 years, imposed by the Supreme Court of Tasmania following a conviction for aggravated armed robbery. The robbery involved the use of a knife at a hotel.

The appeal raised the question of whether the sentence imposed was manifestly excessive or inadequate, thereby providing grounds for interference by the appellate court.

The Full Court of the Supreme Court of Tasmania, comprising Blow CJ, Porter and Pearce JJ, considered the circumstances of the offence and the sentencing principles applicable to aggravated armed robbery. The court found no error in the sentencing judge's determination and concluded that the sentence was not manifestly excessive.

Consequently, the appeal was dismissed.

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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