Summers v Tasmania - [2015] TASCCA 23

[2015] TASCCA 23

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

CITATION: Summers v Tasmania [2015] TASCCA 23

PARTIES:  SUMMERS, Brooke Hope
  v
  STATE OF TASMANIA

FILE NO:  CCA 1579/2015
DELIVERED ON:  20 November 2015
DELIVERED AT:  Hobart
HEARING DATE:  9 November 2015
JUDGMENT OF:  Tennent, Porter and Estcourt JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Other matters – Specific errors of fact – Multiple errors alleged – Fact asserted in mitigation but opposite fact in aggravation not established beyond reasonable doubt where no dispute – Where mistake of fact as to benefit to be obtained by appellant from crimes of dishonesty – Where adverse fact asserted by Crown and contradicted by appellant but conflict not resolved by evidence – Sentence quashed and appellant re-sentenced – Parity with co-offender.
Aust Dig Criminal Law [3525]

REPRESENTATION:

Counsel:
             Appellant:  F Brimfield
             Respondent:  J Dennison
Solicitors:
             Appellant:  Ogilvie Jennings
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASCCA 23
Number of paragraphs: 58

Serial No 23/2015
File No CCA 1579/2015

BROOKE HOPE SUMMERS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
PORTER J
ESTCOURT J
20 November 2015

Orders of the Court

Appeal allowed.

Sentence imposed on 4 September 2015 quashed.

The proceedings in respect of the appellant are adjourned for a period of two years pursuant to the Sentencing Act 1997, s 7(f), upon her undertaking given to the Court this day that she will be of good behaviour for that period.

Serial No 23/2015
File No CCA 1579/2015

BROOKE HOPE SUMMERS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
20 November 2015

The appellant, Brooke Hope Summers, and Kyle Douglas Schultz were jointly charged with one count of unlawfully setting fire to property and one count of attempting to dishonestly acquire a financial advantage. Each pleaded guilty on 14 August 2015. Counsel for Schultz made a plea in mitigation that day and sentence followed on the same day. Schulz was dealt with pursuant to the Sentencing Act 1997 ("the Act"), s 7(f), that is upon his undertaking to be of good behaviour for two years his matter was adjourned for that period. As to the appellant, a plea in mitigation was not made until 27 August. The Chief Justice adjourned sentence to 4 September and sought an assessment in relation to her suitability to perform community service. The appellant was deemed suitable to perform community service and, on 4 September, it was ordered she perform 140 hours of community service. Because of the provisions of the Act, his Honour was obliged to record a conviction.
The sentences imposed on the two accused were obviously different and it was essentially that difference and the reasons for it which have given rise to this appeal. It is necessary to note what his Honour said when he sentenced Schultz and the appellant. The…

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 Summers v Tasmania

Details

AGLC: Summers v Tasmania [2015] TASCCA 23
Case: [2015] TASCCA 23
Decision Date: 20 November 2015

CaseChat Overview and Summary

Summers appealed against a sentence imposed by the Supreme Court of Tasmania. The appeal concerned alleged errors in the sentencing judge's factual findings, particularly regarding the benefit derived by the appellant from her crimes of dishonesty and the assertion of an adverse fact by the Crown that was contradicted by the appellant without the conflict being resolved by evidence.

The central legal issues before the Full Court of the Supreme Court of Tasmania were whether the sentencing judge had made specific errors of fact that warranted interference with the sentence, and whether the sentence imposed was appropriate in light of these alleged errors and the principle of parity with a co-offender.

The Court found that the sentencing judge had made multiple errors of fact. Specifically, the judge had erred in finding the benefit to be obtained by the appellant from the crimes of dishonesty, and had also erred by treating an adverse fact asserted by the Crown as established when it was contradicted by the appellant and the evidence did not resolve this conflict. Consequently, the appeal was allowed, the sentence imposed on 4 September 2015 was quashed, and the proceedings were adjourned for two years pursuant to section 7(f) of the Sentencing Act 1997, conditional upon the appellant undertaking to be of good behaviour for that period.

Orders

Orders of the court

1. Appeal allowed.

2. Sentence imposed on 4 September 2015 quashed.

3. The proceedings in respect of the appellant are adjourned for a period of two years pursuant to the Sentencing Act 1997, s 7(f), upon her undertaking given to the Court this day that she will be of good behaviour for that period.

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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