[2005] TASSC 119
CITATION: Tyne v Tasmania [2005] TASSC 119
PARTIES: TYNE, Alan Cecil
v
TASMANIA
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CA 50/2005
DELIVERED ON: 1 December 2005
DELIVERED AT: Hobart
HEARING DATE: 2 November 2005
JUDGMENT OF: Underwood CJ, Slicer and Blow JJ
CATCHWORDS:
Criminal law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Other matters – Tasmania – Whether sentence for murder should have been imposed as if a case of murder reduced to manslaughter by reason of provocation – Provocation no longer a partial defence to murder.
Aust Dig Crim Law [911]
REPRESENTATION:
Counsel:
Appellant: G A Richardson
Respondent: D G Coates SC
Solicitors:
Appellant: G A Richardson
Respondent: Director of Public Prosecutions
Judgment Number: [2005] TASSC 119
Number of paragraphs: 28
Serial No 119/2005
File No CA 50/2005
ALAN CECIL TYNE v TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ
SLICER J
BLOW J
1 December 2005
Order of the Court
Appeal dismissed.
Serial No 119/2005
File No CA 50/2005
ALAN CECIL TYNE v TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ
1 December 2005
On 4 December 2003 the appellant murdered his partner with whom he had lived since about 1994. They had three children, all of whom were under the age of 8 years at the time of their mother's death. The appellant pleaded guilty to murder, and on 7 July 2005, he was sentenced to 16 years' imprisonment with an eight-year non-parole period.
The deceased suffered from Munchausen's Disease by Proxy. She caused serious injury to her second eldest child and there was reason to suspect that she had harmed her elder daughter. As a result of the harm done to the second eldest child, the authorities were alerted to the risk of harm being done to the eldest child, (the youngest was not born at this time) and child protection proceedings were instituted in the Launceston Magistrates Court. In result, the two children were placed in the care of the appellant's mother. The youngest child was born in December 2001 and placed in foster care within three days of her birth. Because of her illness, the deceased was not allowed to be alone with the children. Throughout, the deceased claimed that she had done nothing to harm the children and the appellant believed and supported her. As the events progressed, the appellant came to realise that the deceased did suffer from Munchausen's Disease by Proxy, that she had harmed her children and that he had to make a choice between living with, and supporting, the deceased and having his children. Not surprisingly, their relationship deteriorated, although for a long time the appellant hoped that somehow, he could become reunited with his wife and children all of whom he loved.
In March 2001 the appellant and the deceased separated. However, they continued to visit one another and subsequently became reconciled. The relationship became very volatile. The deceased engaged…
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CaseChat Overview and Summary
The legal question before the Court was whether the trial judge should have imposed a sentence as if the appellant had been convicted of manslaughter instead of murder, given that provocation is no longer a partial defence to murder in Tasmania. The Court needed to determine if the trial judge had erred in not considering the provocation defence in the sentencing process, despite its abolition. The central issue was the interplay between the abolition of the provocation defence and its potential impact on the sentencing of murder convictions.
The Court found that the abolition of the provocation defence did not automatically mean that sentences for murder should be treated as if the offence had been reduced to manslaughter. The Court held that the trial judge was not required to consider the provocation defence in sentencing, as the defence had been abolished and did not alter the nature of the offence or its punishment. The Court concluded that the trial judge's sentence was appropriate and did not constitute an error of law. The appeal was dismissed, and the original sentence was upheld.
No further orders were made by the Court beyond dismissing the appeal and affirming the original sentence. The Court's decision emphasised the distinction between the abolition of a defence and its impact on sentencing, affirming that the sentence for murder remained unchanged despite the removal of the provocation defence.
Orders
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Background
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Evidence
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Decision
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