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TAP v Tasmania

TAP v Tasmania

Case [2014] TASCCA 5 14 November 2014

Statutory Interpretation

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[2014] TASCCA 5

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

CITATION: TAP v Tasmania [2014] TASCCA 5

PARTIES:  P, T A
  v
  STATE OF TASMANIA

FILE NO:  758/2013
DELIVERED ON:  14 November 2014
DELIVERED AT:  Hobart
HEARING DATE:  2 June 2014
JUDGMENT OF:  Blow CJ, Porter and Wood JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Generally – Alleged insufficiency of weight given to a sentencing consideration is not of itself a ground of appeal.

Director of Public Prosecutions (Vic) v Terrick (2009) 24 VR 457; Gorladenchearau v The Queen [2011] VSCA 432, followed.
Aust Dig Criminal Law [3519]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive – Maintaining sexual relationship with young person – Forty unlawful sexual acts over 12 months including 2 anal rapes and 14 oral rapes – Complainant nearly 10 years old and appellant 17½ years old at the start of the period – Appellant 24 years old at time of sentence – Mitigating factors of youthfulness and remorse – Sentence of 6½ years' imprisonment with non-parole period of one-half not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  E Hughes
             Respondent:  J P Ransom
Solicitors:
             Appellant:  Rae & Partners
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2014] TASCCA 5
Number of paragraphs: 56

Serial No 5/2014
File No 758/2013

TAP v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
PORTER J
WOOD J
14 November 2014

Order of the Court

Appeal dismissed.

Serial No 5/2014
File No 758/2013

TAP v TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
14 November 2014

I have had the advantage of reading the reasons for judgment of Porter J in draft form. I agree that, for the reasons stated by him, this appeal should be dismissed.
File No 758/2013

TAP v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PORTER J
14 November 2014

Introduction

This is an appeal against sentence. The appellant pleaded guilty before Tennent J to one count of maintaining a sexual relationship with a young person. The appellant was sentenced to 6½ years' imprisonment to take effect from 24 June 2013, and was made ineligible for parole until he had served one-half of that term. In addition, under the Community Protection (Offender Reporting) Act 2005, an order was made that his name be placed on the register, and he is required to comply with the obligations under that Act for a period of six years after his release.
The offence was committed between 15 April 2006 and 30 April 2007; a period of just over a year. Sexual offences were committed on nine separate occasions in that period. The complainant was a girl just over 9 years and 8 months old at the start of the period. The appellant was just…

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 TAP v Tasmania

Details

AGLC: TAP v Tasmania [2014] TASCCA 5
Case: [2014] TASCCA 5
Decision Date: 14 November 2014

CaseChat Overview and Summary

The appellant, TAP, appealed against a sentence imposed by the Supreme Court of Tasmania. The appeal concerned the severity of the sentence for offences involving a complainant who was nearly 10 years old at the commencement of the offending period, during which the appellant, aged 17½ at the time, engaged in forty unlawful sexual acts, including anal and oral rapes. The appellant was 24 years old at the time of sentencing.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the sentence of 6½ years' imprisonment, with a non-parole period of one-half, was manifestly excessive. The appellant contended that insufficient weight had been given to mitigating factors, specifically his youthfulness at the time of the offences and his expressed remorse.

The Court affirmed the principle that an alleged insufficiency in the weight given to a sentencing consideration is not, in itself, a sufficient ground for appeal. Applying this principle, the Court considered the gravity of the offences, the age difference between the appellant and the complainant, and the duration and nature of the offending. While acknowledging the mitigating factors of the appellant's youth and remorse, the Court concluded that these did not render the sentence manifestly excessive in light of the serious nature of the crimes committed.

Consequently, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

TAP v Tasmania [2014] TASCCA 5

Most Recent Citation

Clark v Harvey [2018] TASSC 34

Cases citing this decision · 18 of 18 shown

JL v Clark
[2025] TASSC 58

…he objective and principles are largely restatements of the long established common law to be applied when sentencing young offenders: TAP v Tasmania [2014] TASCCA 5 per Porter J, with whom Blow CJ and Wood J agreed, at [23]-[29]. Young offenders, being immature, are more prone to ill-considered or rash decisions:…
Director of Public Prosecutions v JAP
[2025] TASCCA 9

…TAP v Tasmania [2014] TASCCA 5…
Watson v Woodgate
[2025] TASSC 26 Para 30

…o any relevant factor or factors unless the sentence is manifestly excessive taking into account all matters relevant to sentence: TAP v Tasmania [2014] TASCCA 5 at [30]; Mulholland v Tasmania [2017] TASCCA 2 at [17]; Butt v Tasmania [2018] TASCCA 3 at [53]. The identified factors are to be considered with other r…
Palmer v Tasmania
[2024] TASCCA 6 Para 30

…single ground of appeal of manifest excess, assertions of inadequate weight can only be assessed by reference to the ultimate outcome: TAP v Tasmania [2014] TASCCA 5 at [30]; Mulholland v Tasmania [2017] TASCCA 2 at [17].…
MRTC v Tasmania Police
[2024] TASSC 14

…TAP v Tasmania [2014] TASCCA 5…
Director of Public Prosecutions v Oh Marris
[2023] TASCCA 1 Para 23

…o youthful offenders should properly be applied to him. The principles were stated by Porter J with whom Blow CJ and Wood J agreed, in TAP v Tasmania [2014] TASCCA 5 at [23]-[29] and reviewed in JSP . The imposition of an actual sentence of imprisonment has a dramatic effect on the life of a young person. It expos…
RDA v Tasmania
[2021] TASCCA 4

…R v PJB [2007] VSCA 242, 17 VR 300; TAP v Tasmania [2014] TASCCA 5, applied. Aust Dig Criminal Law [3521]…
Mrgic v Judges
[2021] TASSC 14 Para 30

…nt correctly concedes that it is not a proper ground of appeal, but is relevant as a particular of a ground asserting manifest excess: TAP v Tasmania [2014] TASCCA 5 at [30], Mulholland v Tasmania [2017] TASCCA 2, 25 Tas R 313 at [17].…
McKenna v Tasmania
[2020] TASCCA 7 Para 2

…The sentencing principles as to youthful offenders were restated in TAP v Tasmania [2014] TASCCA 5, by Porter J, with whom Blow CJ and Wood J agreed. His Honour said at [24] and [26]-[27]: "[24] …The principles are that the rehabilitation of the offender is always an important, if not the dominant, consideration,…
Director of Public Prosecutions v JSP
[2020] TASCCA 3 Para 1

…In TAP v Tasmania [2014] TASCCA 5, Porter J with whom Blow CJ and Wood J agreed, said at [23]-[29]: ["23] It is convenient to deal with this ground first. Counsel for the appellant in this Court submits that when determining penalty, the sentencing judge ought to have been guided by the principles which are appare…
Hardwick v Tasmania
[2020] TASCCA 2 Para 5

…ntradictory, but all of which must be weighed by the appellate court in assessing whether the sentence is manifestly excessive or not: TAP v Tasmania [2014] TASCCA 5 at [30]; Mulholland v Tasmania [2017] TASCCA 2, 25 Tas R 313 at [17]; Butt v Tasmania [2018] TASCCA 3 at [53].…
Jenkins v Tasmania
[2019] TASCCA 12 Para 1

…terms of a failure to adequately consider something, or to give sufficient weight to some principle, is not a proper ground of appeal: TAP v Tasmania [2014] TASCCA 5 per Porter J at [30]; Mulholland v Tasmania [2017] TASCCA 2, 25 Tas R 313, per Pearce J at [17]; Butt v Tasmania [2018] TASCCA 3 per Pearce J at [53]…
Kelly v Pensalfini
[2019] TASSC 2 Para 1

…nsideration. The only way the sufficiency of weight can be measured is by considering the inadequacy or excessiveness of the sentence: TAP v Tasmania [2014] TASCCA 5 at [30]; JWM v Tasmania [2017] TASCCA 22 at [68].…
Fallon v Baker
[2018] ACTSC 319 Para 1

…the sufficiency of weight given to a particular consideration is as a particular of a ground of appeal based upon manifest excess: TAP v Tasmania [2014] TASCCA 5 at [30].…
Clark v Harvey
[2018] TASSC 34 Para 1

…ive taking all such considerations into account, then it cannot be said that his Honour gave too much weight to any particular factor: TAP v Tasmania [2014] TASCCA 5 at [30], Mulholland v Tasmania [2017] TASCCA 2 at [17].…
Butt v Tasmania
[2018] TASCCA 3 Para 1

…s unarguably correct. However they are not proper grounds of appeal for the reasons explained by Porter J as a member of this Court in TAP v Tasmania [2014] TASCCA 5 at [30], and by me in Mulholland v Tasmania [2017] TASCCA 2 at [17]. It cannot be said that the sentencing judge failed to give sufficient weight to…
JWM v Tasmania
[2017] TASCCA 22 Para 2

…given appropriate weight to a factor such as this, is in the consideration of the ground alleging manifest excess. As Porter J said in TAP v Tasmania [2014] TASCCA 5 at [30]: "… The Victorian Court of Appeal has pointed out on a number of occasions that a complaint about the weight given to a particular sentencing…
SG v Tasmania
[2017] TASCCA 12 Para 1

…not give it sufficient weight. It is not a proper ground of appeal for the reasons explained by Porter J as a member of this Court in TAP v Tasmania [2014] TASCCA 5 at [30], and by me in Mulholland v Tasmania [2017] TASCCA 2 at [17]. A plea of guilty is one of many relevant sentencing considerations which must be…

View all 18 citing cases →

Cases cited in this decision · 12 of 12 shown

DPP v T
[2012] TASCCA 15 Para 1

…as would have been imposed if individual sexual acts constituting the crime had been charged as separate crimes: Director of Public Prosecutions v T [2012] TASCCA 15 per Crawford CJ at [19] (with whom Evans and Tennent JJ agreed) citing Director of Public Prosecutions v M (above) and Director of Public Prosecution…
Neubecker v The Queen
[2012] VSCA 58 Para 8

…blic Prosecutions (Vic) v Terrick (2009) 24 VR 457 at 459-460 [5] and Scerri v The Queen [2010] VSCA 287 at [22]-[24]. See also Neubecker v The Queen (2012) 34 VR 369 at 385 [71].…
Gorladenchearau v The Queen
[2011] VSCA 432 Para 8

…er it was reasonably open to the judge to impose that sentence if appropriate weight were given to all relevant factors": Gorladenchearau v The Queen [2011] VSCA 432 per Maxwell P (Ashley JA and Ross AJA agreeing) at [34], citing Director of Public Prosecutions (Vic) v Terrick (2009) 24 VR 457 at 459-460 [5] and S…
Azzopardi v The Queen
[2011] VSCA 372 Para 5

…n cases of serious crime, I refer also to the detailed discussions by McLellan CJ at CL in R v Carroll [2008] NSWCCA 218 at [8], and by Redlich JA in Azzopardi v The Queen (2011) 35 VR 43 at 53–57 [30]-[44]. There is no doubt at all that, in short, where the level of seriousness in the criminality increases, there will be a co…
R v Pickett
[2010] NSWCCA 273 Para 11

…igating factor, having relevance of its own as being indicative of remorse and rehabilitation: R v Burns [2007] NSWCCA 228 at [27], [29], R v Pickett [2010] NSWCCA 273 at [71]-[72]. The appellant says that voluntary cessation is a mitigating factor in this case, and that the issue needs to be judged in its proper li…
Scerri v The Queen
[2010] VSCA 287 Para 8

…hley JA and Ross AJA agreeing) at [34], citing Director of Public Prosecutions (Vic) v Terrick (2009) 24 VR 457 at 459-460 [5] and Scerri v The Queen [2010] VSCA 287 at [22]-[24]. See also Neubecker v The Queen (2012) 34 VR 369 at 385 [71].…
DPP v Terrick
[2009] VSCA 220 Para 8

…enchearau v The Queen [2011] VSCA 432 per Maxwell P (Ashley JA and Ross AJA agreeing) at [34], citing Director of Public Prosecutions (Vic) v Terrick (2009) 24 VR 457 at 459-460 [5] and Scerri v The Queen [2010] VSCA 287 at [22]-[24]. See also Neubecker v The Queen (2012) 34 VR 369 at 385 [71].…
R v Carroll
[2008] NSWCCA 218 Para 5

…e given to general deterrence and retribution in cases of serious crime, I refer also to the detailed discussions by McLellan CJ at CL in R v Carroll [2008] NSWCCA 218 at [8], and by Redlich JA in Azzopardi v The Queen (2011) 35 VR 43 at 53–57 [30]-[44]. There is no doubt at all that, in short, where the level of se…
JA (a child) v The State of Western Australia
[2008] WASCA 70 Para 2

…t with the broader sentencing goal of community protection: LWR v Lusted (2009) 19 Tas R 233 at [26] citing JA (A child) v State of Western Australia [2008] WASCA 70 at [29]-[30].…
R v Boland
[2007] VSCA 242 Para 6

…after the last of his offending conduct. The correct approach to sentencing an adult for offences committed as a juvenile was discussed in R v Boland (2007) 17 VR 300. At 304 [16], Nettle JA with whom Ashley and Dodds-Streeton JJA agreed, said: "[Previous decisions] recognise that where offences which have been com…
R v Burns
[2007] NSWCCA 228 Para 11

…ry cessation of offending can be a strong mitigating factor, having relevance of its own as being indicative of remorse and rehabilitation: R v Burns [2007] NSWCCA 228 at [27], [29], R v Pickett [2010] NSWCCA 273 at [71]-[72]. The appellant says that voluntary cessation is a mitigating factor in this case, and that…
R v Tran
[2002] VSCA 52 Para 4

…ty. They are more likely to make ill-considered and immature decisions. At the same time, counsel for the appellant accepts, by reference to R v Tran (2002) 4 VR 457 at [14], that the importance of rehabilitation of a youthful offender is usually far more important than general deterrence, but that there are cases…

Legislation cited in this decision · 2

Community Protection (Offender Reporting) Act 2005 (TAS)
1 mention (from Para 1)
Youth Justice Act 1997 (TAS)
1 mention (from Para 9)