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Wright v Tasmania

Wright v Tasmania

Case [2010] TASCCA 7 19 May 2010

Appeal

Sentencing

Criminal Law

Statutory Interpretation

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[2010] TASCCA 7

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

CITATION: Wright v Tasmania [2010] TASCCA 7

PARTIES:  WRIGHT, Anthony Troy
  v
  STATE OF TASMANIA

FILE NO/S:  CCA 994/2009
DELIVERED ON:  19 May 2010
DELIVERED AT:  Hobart
HEARING DATE:  1 March 2010
JUDGMENT OF:  Tennent, Porter and Wood JJ

CATCHWORDS:

Criminal Law – Sentence – Relevant factors – Other factors – Offences committed while on parole.
Wisniewskiv Tasmania [2007] TASSC 25 ; R v Cicekdag (2004) 150 A Crim R 299, referred to.
Aust Dig Criminal Law [3297]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Parity between co-offenders.

Aust Dig Criminal Law [3522]

Criminal Law – Appeal against sentence – Grounds for interference – Other matters – Failure to give reasons for specifying non-parole period.

Sentencing Act1997 (Tas), ss17, 93.
Wisniewskiv Tasmania [2007] TASSC 25; Shrubsole v Rodriguez (1978) 18 SASR 233; Trueman v Tasmania [2009] TASSC 29, referred to.
Aust Dig Criminal Law [3525]

REPRESENTATION:

Counsel:
             Appellant:  P E Barker
             Respondent:  J Hartnett
Solicitors:
             Appellant:  Beeton & Mansell
             Respondent:  Director of Public Prosecutions

Judgment Number: [2010] TASCCA 7
Number of paragraphs: 66

Serial No 7/2010
File No CCA 994/2009

ANTHONY TROY WRIGHT v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
PORTER J
WOOD J
19 May 2010

Order of the Court

Appeal dismissed.

Serial No 7/2010
File No CCA 994/2009

ANTHONY TROY WRIGHT v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
19 May 2010

On 9 October 2009, the appellant was convicted on his plea of guilty of two counts of unlawfully injuring property, two counts of attempting to steal, one count of burglary, one count of stealing and one count of motor vehicle stealing. A co-accused, Crosswell, was sentenced at the same time. Crosswell was however dealt with only in respect of single counts of unlawfully injuring property, attempted stealing and motor vehicle stealing.

The appellant was sentenced to serve a period of four years imprisonment to commence at the end of a sentence he was already serving. It was also ordered that he not be eligible for parole until he had served three years of that sentence. Crosswell was sentenced to serve a period of 18 months imprisonment to commence at the end of a sentence he was then serving. It was ordered he be eligible for parole when he had served 12 months of that sentence.

The appellant now appeals his sentence on the following grounds, namely that:

"1The said sentence, in all the circumstances of the case, is manifestly excessive.
2That the learned judge erred in law in that he imposed a non-parole period which was manifestly excessive in all the circumstances.
3The learned judge failed to adequately consider the question of parity in relation to the sentences imposed on the Appellant and Aaron James Crosswell.
4The learned judge erred in law in failing to give reasons…

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 Wright v Tasmania

Details

AGLC: Wright v Tasmania [2010] TASCCA 7
Case: [2010] TASCCA 7
Decision Date: 19 May 2010

CaseChat Overview and Summary

Wright appealed against a sentence imposed by the Supreme Court of Tasmania following his conviction for a number of offences. The appeal concerned the sentencing judge's decision to specify a non-parole period and the parity of the sentence with that imposed on a co-offender.

The Court of Criminal Appeal was required to determine whether the sentencing judge erred in specifying a non-parole period without providing adequate reasons. It also had to consider whether the sentence imposed on Wright was demonstrably unjust or disproportionate when compared to the sentence given to his co-offender, particularly in light of the fact that Wright committed the offences while on parole.

The Court found that the sentencing judge had provided sufficient reasons for specifying the non-parole period, considering the gravity of the offences and the appellant's criminal history, including the fact that the offences were committed while on parole. The Court also held that the disparity in sentences between Wright and his co-offender was justified, given the differences in their respective roles in the offending and their prior records. The appeal was accordingly 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

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Citations

AGLC Citation

Wright v Tasmania [2010] TASCCA 7

Most Recent Citation

Barrett v Wilson [2015] TASSC 3

Cases citing this decision · 5 of 5 shown

Hodgetts v Tasmania
[2018] TASCCA 15 Para 14

…r to serve after taking into account the degree of seriousness of the offending and all circumstances relevant to the offender. See Wright v Tasmania [2010] TASCCA 7 per Tennent J, with whom Wood J agreed, at [41]-[44] and per Porter J at [47]-[52]; Mortyn v Tasmania [2018] TASCCA 2 per Estcourt J, with whom Pearc…
Mortyn v Tasmania
[2018] TASCCA 2 Para 4

…comments on passing sentence which are invariably published and publicly available. That view is consistent with those expressed in Wright v Tasmania [2010] TASCCA 7 by Tennent J at [41]-[44] and Porter J at [47]-[52].…
Rainbird v Tasmania
[2016] TASCCA 11 Para 4

…tences. It was an aggravating factor that he was on parole when the aggravated burglary and stealing were committed in August 2014; Wright v Tasmania [2010] TASCCA 7, per Tennent J at [34] and Wood J at [54].…
Brown v Lusted and Parker
[2015] TASSC 45 Para 3

…o impose. The revocation of parole is relevant in considering the totality and proportionality of the aggregation of the sentences: Wright v Tasmania [2010] TASCCA 7 at [60]; Young v Wilson [2015] TASSC 16. In this context, in considering whether the sentence is manifestly excessive, the proper question for this C…
Barrett v Wilson
[2015] TASSC 3 Para 1

…her parole is relevant in considering the totality and proportionality of the aggregation of the sentences. As Wood J explained in Wright v Tasmania [2010] TASCCA 7 at [60]: "The cumulative operation of a sentence, and that an offender is serving part of a previous sentence having breached his parole, is to be ta…

View all 5 citing cases →

Cases cited in this decision · 11 of 11 shown

Braslin and Cowen v Tasmania
[2010] TASCCA 1 Para 1

…In Braslin and Cowen v Tasmania [2010] TASCCA 1 at par[36], Porter J dealt with what I might describe as the "disparity argument" which arose in that sentencing appeal. He said:…
Okwechime v Sindel
[2009] ACTSC 162 Para 1

…the reasons an offender is to serve the whole, or a part not less than one-half, of the specified period of imprisonment: compare Okwechime v Sindel (2009) 171 ACTR 1 at [36].…
Trueman v Tasmania
[2009] TASSC 29 Para 1

…ole v Rodriguez (1978) 18 SASR 233 at 235. Counsel went on to refer to some remarks of the learned sentencing judge in a matter of Trueman v Tasmania [2009] TASSC 29 at par[33]. His Honour there noted that the determination of an appropriate sentence was made by way of instinctive or intuitive assessment after a c…
Wisniewski v Tasmania
[2007] TASSC 25 Para 1

…o give reasons for the fixing of a non-parole period. That reasons should be given, he said, had been recognized by Slicer J in Wisniewski v Tasmania [2007] TASSC 25. In that case, his Honour noted that a court was required to give reasons for making such an order, that no reasons were given, and that in some case…
R v Cicekdag
[2004] NSWCCA 357

…per Hoeben J in R v Cicekdag (2004) 150 A Crim R 299 at par[52] (see also Spigelman CJ in R v Fernando [2002] NSWCCA 28 at par[42]). The commission of offences on parole is described by Wood CJ at CL in R v Tran [1999] NSWCCA 109 at par[15] as "the betrayal of the opportunity for rehabilitation".…
R v Fernando
[2002] NSWCCA 28

…per Hoeben J in R v Cicekdag (2004) 150 A Crim R 299 at par[52] (see also Spigelman CJ in R v Fernando [2002] NSWCCA 28 at par[42]). The commission of offences on parole is described by Wood CJ at CL in R v Tran [1999] NSWCCA 109 at par[15] as "the betrayal of the opportunity for rehabilitation".…
R v Tran
[1999] NSWCCA 109

…] (see also Spigelman CJ in R v Fernando [2002] NSWCCA 28 at par[42]). The commission of offences on parole is described by Wood CJ at CL in R v Tran [1999] NSWCCA 109 at par[15] as "the betrayal of the opportunity for rehabilitation".…
Postiglione v the Queen
[1997] HCA 26 Para 1

…account in assessing whether the aggregate of sentences imposed is a just and appropriate measure of the total criminality involved: Postiglione v R (1997) 189 CLR 295 per McHugh J at 307 – 308; Mill v R (1988) 166 CLR 59; R v Piacentino (2007) 169 A Crim R 348 at 356 - 357. I mention this principle so that the pote…
Mill v The Queen
[1988] HCA 70 Para 1

…imposed is a just and appropriate measure of the total criminality involved: Postiglione v R (1997) 189 CLR 295 per McHugh J at 307 – 308; Mill v R (1988) 166 CLR 59; R v Piacentino (2007) 169 A Crim R 348 at 356 - 357. I mention this principle so that the potential relevance of revocation of parole is not thought t…
Lowe v R
[1984] HCA 46

…at leaves the disparity argument put on Mr Cowen's behalf. The extent of the operation of the parity principle was illustrated by Mason J in Lowe v R (1984) 154 CLR 606 at 613 – 614. His Honour said that the correct principle to be applied in cases of discrepancy, was that a court of appeal was 'entitled to intervene…
Beale v Government Insurance Office of NSW
(1997) 48 NSWLR 430 Para 1

…ed not be explicitly articulated; it is sufficient if they are appropriately clear from the comments taken as a whole: Beale v GIO of New South Wales (1997) 48 NSWLR 430 per Meagher JA at 443.…

Legislation cited in this decision · 1

Sentencing Act 1997 (TAS)
17, 17(7), 93 4 mentions (from Para 1)