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TGW v Tasmania

TGW v Tasmania

Case [2017] TASCCA 10 7 July 2017

Appeal

Charge

Sentencing

Statutory Construction

Criminal Law

Statutory Interpretation

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[2017] TASCCA 10

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

CITATION: TGW v Tasmania [2017] TASCCA 10

PARTIES:  TGW
  v
  STATE of TASMANIA

FILE NO:  279/2017
DELIVERED ON:  7 July 2017
DELIVERED AT:  Hobart
HEARING DATE:  6 June 2017
JUDGMENT OF:  Tennent J, Marshall and Porter AJJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Grounds for interference – Other matters – Appellant acquitted by direction of rape but found guilty of indecent assault – Conduct involved the appellant placing complainant's penis in appellant's mouth – Crown appealed against acquittal – Appeal court ruled that conduct amounted to rape but no retrial ordered – Appellant sentenced for indecent assault – Relevance of the act of penetration to the sentence for indecent assault.

R v De Simoni (1981) 147 CLR 383; R v Causby [1984] Tas SR 54, considered.
Aust Dig Criminal Law [3525]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive – Sentence of 2½ years' imprisonment for indecent assault – Conduct involved the appellant placing complainant's penis in appellant's mouth – Appellant and complainant both aged in their 60s – Complainant with intellectual disability – Appellant also with intellectual deficits but with relevant offending history of some age – Sentence manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  K Baumeler
             Respondent:  L Brett
Solicitors:
             Appellant:  N/A
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASCCA 10
Number of paragraphs: 42

Serial No 10/2017
File No 279/2017

TGW v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
MARSHALL AJ
PORTER AJ
7 July 2017

Orders of the Court

Appeal allowed.

Sentence of imprisonment imposed on 31 January 2017 is set aside.

In lieu, the appellant is sentenced to 18 months' imprisonment to commence on 31 January 2017. The appellant is not eligible for parole until he has served 10 months of that sentence.

The order made on 31 January 2017 under the Community Protection (Offender Reporting) Act 2005 is confirmed.

Serial No 10/2017
File No 279/2017

TGW v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
7 July 2017

I have had the benefit of the detailed draft reasons of Porter AJ. I agree with those reasons and the outcome he proposes.

File No 279/2017

TGW v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARSHALL AJ
7 July 2017

I agree with the reasons of Porter AJ.
File No 279/2017

TGW v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PORTER AJ
7 July 2017

Introduction

This is an appeal against sentence. The appellant was found guilty by a jury of one count of indecent assault. That count was count 5 on an indictment containing a total of five charges of sexual offending involving the one complainant, a male person. The jury was unable to agree on the remaining four counts. In…

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 TGW v Tasmania

Details

AGLC: TGW v Tasmania [2017] TASCCA 10
Case: [2017] TASCCA 10
Decision Date: 7 July 2017

CaseChat Overview and Summary

The appeal concerned a criminal matter heard in the Supreme Court of Tasmania. The appellant, TGW, had been acquitted of rape by direction of the trial judge but was found guilty of indecent assault. The Crown appealed against the acquittal of rape.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the appellant's conduct, which involved placing the complainant's penis in the appellant's mouth, constituted rape. A further issue arose regarding the relevance of this conduct to the sentence imposed for indecent assault, given the acquittal of the more serious charge.

The Full Court determined that the conduct in question did amount to rape, as it involved penetration of the appellant by the complainant's penis. However, the Court declined to order a retrial for the rape charge, noting that the appellant had already been sentenced for indecent assault. The Court considered the act of penetration to be relevant to the sentencing for indecent assault, even though the rape charge itself was not to be pursued further.

Orders