Tennant v The Queen - [2020] SASCFC 26

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
TENNANT v THE QUEEN
[2020] SASCFC 26
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Hughes)
23 April 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE
Appeal against sentence for an offence of manslaughter by unlawful and dangerous act – whether the sentence imposed was manifestly excessive.
Held (per Bampton J, Kourakis CJ and Hughes J agreeing): Appeal dismissed – the sentence imposed by the Judge was not manifestly excessive.
Sentencing Act 2017 (SA), referred to.
R v Liddy (No 2) (2002) 84 SASR 231, applied.
R v Tennant [2019] SASC 150; Coleman v Zanker (1991) 58 SASR 7; Considine v Kirkpatrick (1971) SASR 73; Ward v The Queen [2013] NSWCCA 46; R v Peerdikoyiannis, Condo & Peabody [2011] SASCFC 82; R v Duke [2000] SASC 254; R v Lupoi (1984) A Crim R 183; R v Piotrowski (1990) 156 LSJS 254; Munda v Western Australia (2013) 249 CLR 600; Kentwell v The Queen (2014) 252 CLR 601, considered.

TENNANT v THE QUEEN
[2020] SASCFC 26
Court of Criminal Appeal: Kourakis CJ, Bampton and Hughes JJ

KOURAKIS CJ: I agree that the appeal should be dismissed for the reasons given by Bampton J.
BAMPTON J: Adriana Betty Tennant was charged with murder. She pleaded guilty to manslaughter on the morning of her trial before a Judge sitting alone. The plea was not accepted and the matter proceeded to trial. Ms Tennant was found not guilty of murder but guilty of manslaughter by unlawful and dangerous act.
Ms Tennant was sentenced to 10 years imprisonment reduced to nine years on account of her guilty plea. As mandated by s 47(5)(d) of the Sentencing Act 2017 (SA) (“the Sentencing Act”), a non-parole period four-fifths the length of the head sentence of seven years, two months, and 12 days was fixed. Ms Tennant was also disqualified from holding or obtaining a driver’s licence for 12 years from the date she is released from custody.
Ms Tennant appeals with permission on ground 1, which asserts that the sentence is manifestly excessive. The following proposed grounds 2 to 12 have been referred to this Court for permission:
2.The conceptual starting point of 10 years, prior to the Discount for Plea, was such as to negate, nullify or subsume the appropriate purpose and effect of the discount.
3.The Judge erred in affording disproportionate emphasis and weight to the victim impact statements, and/or permitting to stand within them the inclusion of inappropriate and irrelevant material, to such a degree that the exercise of the sentencing discretion miscarried.
4.The Judge erred, in affording disproportionate weight to “the context in which the events that afternoon…

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 Tennant v The Queen

Details

AGLC: Tennant v The Queen [2020] SASCFC 26
Case: [2020] SASCFC 26
Decision Date: 23 April 2020

CaseChat Overview and Summary

The appeal concerned a sentence imposed on Ms Tennant for the offence of manslaughter by unlawful and dangerous act. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Bampton and Hughes JJ. The central question before the court was whether the sentence of 10 years imprisonment was manifestly excessive.

The legal issue before the Full Court was to determine if the sentencing judge had erred in imposing a sentence that was outside the permissible range for the offence and the offender, or if any error of fact or law had occurred. This required the court to assess whether the sentencing judge had given proper regard to all relevant factors, including the personal circumstances of Ms Tennant, when determining the appropriate punishment.

The Full Court, in dismissing the appeal, reasoned that the sentencing judge had properly considered Ms Tennant's personal circumstances and had given appropriate regard to all relevant factors. The court found that it was open to the sentencing judge, on the facts presented, to conclude that Ms Tennant's conduct fell within a very serious category of manslaughter by unlawful and dangerous act. Consequently, the sentence imposed was not considered to be outside the permissible range, nor was any error of fact or law identified.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In sentencing, her Honour had proper regard and consideration to the personal circumstances of Ms Tennant, and the sentence reflected this.Conclusion It was open to the Judge on the facts of this matter to conclude that Ms Tennant’s conduct was in a very serious category of manslaughter by unlawful and dangerous act. The Judge had appropriate regard to all relevant factors, including all matters personal to Ms Tennant in arriving at the starting point of 10 years imprisonment. The sentence imposed was neither “outside the permissible range of sentences for the offender and the offence”[19] nor has any error of fact or law been identified.[19] Kentwell v The Queen (2014) 252 CLR 601 at [35] (French CJ, Hayne, Bell, and Keane JJ). I would dismiss the appeal on ground 1 and refuse permission to appeal on all proposed grounds. HUGHES J: I agree with the reasons given by Bampton J. The appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

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