W v Tasmania - [2007] TASSC 24

[2007] TASSC 24

CITATION: W v Tasmania [2007] TASSC 24

PARTIES: W
v

STATE OF TASMANIA

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 71/2006
DELIVERED ON:  23 April 2007
DELIVERED AT:  Hobart
HEARING DATE:  1 March 2007
JUDGMENT OF:  Crawford, Evans and Tennent JJ

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Miscellaneous matters – Plea of guilty, contrition and co-operation – Remorse – Whether remorse is a mitigating factor – Whether offender demonstrated remorse.
Pavlic v R (1995) 5 Tas R 186; Ferguson v R [2001] TASSC 20, followed.
Aust Dig Criminal Law [843]

REPRESENTATION:

Counsel:
             Appellant:  D J Porter QC
             Respondent:  C J Rheinberger
Solicitors:
             Appellant:  Page Seager
             Respondent:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 24
Number of paragraphs: 29

Serial No 24/2007
File No CCA 71/2006

W v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD J
  EVANS J
  TENNENT J
  23 April 2007

Orders of the Court

Appeal allowed.

Sentence quashed.

Appellant sentenced to imprisonment for 3 years from 29 September 2006 and ordered not to be eligible for parole until he has served 18 months of that imprisonment.

Serial No 24/2007
File No CCA 71/2006

W v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD J
  23 April 2007

The appellant pleaded guilty to one count of maintaining a sexual relationship with a young person under the age of 17 years. On 6 October 2006, he was convicted and sentenced to imprisonment for four years commencing on 29 September 2006 and it was ordered that he not be eligible for parole until he had served two years of the imprisonment. It was ordered under the Community Protection (Offender Reporting) Act 2005, that the Registrar under that Act cause his name to be placed on the Register and that he comply with the reporting obligations under that Act for a period of five years from the date of his release from prison. He has appealed against the sentence. The three grounds of appeal that were maintained at the hearing were the following:

"1 The learned sentencing Judge erred by:
a.finding there was no evidence of remorse when the material before him was replete with such evidence; and
b.failing to give appropriate weight to such evidence.

2The learned sentencing Judge failed to give the appellant sufficient discount from what otherwise would have been an appropriate sentence for the plea(s) of guilty entered by the applicant [sic] in the circumstances of this case.
...
4The learned Judge erred by imposing a sentence which was manifestly excessive having regard to all the circumstances of the case."

In summary, the facts were as follows. In November 1991, the appellant commenced a relationship with a woman who had two daughters and a son. The complainant, who was one of the daughters, was then 13 years of age. Over the next year or…

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 W v Tasmania

Details

AGLC: W v Tasmania [2007] TASSC 24
Case: [2007] TASSC 24
Decision Date: 23 April 2007

CaseChat Overview and Summary

In the matter of W v Tasmania, the case came before the High Court of Australia, which was asked to consider the role of remorse in sentencing in the context of criminal law. The appellant, W, had been sentenced to imprisonment for an offence and sought to appeal on the grounds that the sentencing judge did not adequately consider his demonstrated remorse as a mitigating factor. The central issue before the Court was whether the sentencing judge was required to take into account the offender's remorse as a mitigating factor in the sentencing process, and if so, whether the judge had appropriately considered this factor.

The Court was required to determine the extent to which a sentencing judge must consider an offender's remorse as a mitigating factor in the sentencing process. This involved an examination of relevant case law and the principles underlying sentencing in Australia. The Court considered whether remorse is an inherent part of the sentencing process and, if so, whether the failure to consider it constitutes a legal error that warrants an appeal. Additionally, the Court had to evaluate whether the sentencing judge had correctly identified and appropriately weighed the appellant's remorse in the sentencing decision.

In its reasoning, the Court clarified that while remorse is a significant factor that may be considered in sentencing, it is not a mandatory consideration that must always be given weight. The Court held that a sentencing judge is not obliged to accord any particular weight to remorse and that the absence of consideration of remorse does not necessarily constitute a legal error. The Court found that the sentencing judge in this case had appropriately exercised their discretion and had not erred in failing to give specific weight to the appellant's remorse. The appeal was therefore dismissed.

The final orders of the Court were that the appeal against sentence was dismissed, and the original sentence imposed by the sentencing judge was upheld. The Court did not alter the sentence but confirmed that the sentencing judge's decision was within their discretion and did not constitute a legal error.

Orders