Tasmania

Court of Criminal Appeal

  • Director of Public Prosecutions v Karklins [2018] TASCCA 6 (20 April 2018) – Court of Criminal Appeal of Tasmania
    Appeal against sentence’ – ‘Damaging property’ – ‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Listening to Victims’ – ‘Physical violence and harm’ – ‘Pregnant people’ – ‘Sentencing’ – ‘Vulnerable groups

    Charges: Assault x 1; Assault on a pregnant woman x 3; Attempt to interfere with a witness x 5; Destroying property x 1.

    Appeal type: Prosecution appeal against sentence.

    Facts: The respondent and complainant had been living together for 5 months with the complainant’s son ([6]). The complainant was 4 weeks pregnant at the time of the offences ([7]). The respondent threatened to leave the complainant, but the complainant asked him to stay ([9]-[10]). The respondent threatened to kill her and the baby. He headbutted the complainant and strangled her three times, causing her to lose consciousness twice ([13]-[16]).

    The respondent was arrested and on remand. The respondent told a friend to tell the complainant that if she retracted her statement, he would ‘consider getting back with her’ ([22]). The complainant did so ([23]). The respondent was sentenced to 1 year and 10 months’ imprisonment with a non-parole period of 11 months.

    Issues: Whether the sentence was manifestly inadequate.

    Decision and Reasoning: Geason J emphasised aggravating features of the case, such as the fact that the respondent had the opportunity to reflect on his conduct between each attack ([55]), that he did not seek help for the complainant ([51]), that the crimes were committed in the context of a domestic relationship ([54]), and that the complainant was unable to defend herself ([50]). Mitigating considerations included the fact that the respondent pleaded guilty early ([61]).

    In relation to the charges of interfering with a witness, Geason J at [56] remarked on the importance of such charges in aiding the administration of justice in relation to domestic violence:

    The respondent's attempts to frustrate his prosecution should also be seen as particularly serious matters. They were a cynical exercise in emotional blackmail … Domestic violence typically occurs behind closed doors, making detection inherently difficult. Relationship dynamics frequently militate against a prosecution. Conduct directed at interfering with the prosecutorial process undermines the system intended to afford protection to victims of violence, making an inherently difficult process more so … It should be accepted in cases of family violence that attempts to interfere with the due administration of justice by the means of emotional manipulation of a vulnerable victim is a serious matter the consequences of which will always be severe.

    Geason J referred to R v Kilic [2016] HCA 48, where the High Court stated at [21] that sentencing practices for offences involving domestic violence may ‘depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations’. His Honour at [92] subsequently justified interfering with the sentence on the basis that:

    Domestic violence is properly regarded as a most serious form of offending, frequently hidden from view, and thus difficult to detect. The court has a symbolic function. Censure for domestic violence should be communicated through the sentences which are imposed.

    His Honour cautioned against giving weight to the complaint’s forgiveness of the respondent ([77]). His Honour questioned the sentencing judge’s generous characterisation of the respondent’s conduct during the assault ([83]-[86]).

  • Price v Tasmania [2016] TASCCA 22 (6 December 2016) – Court of Criminal Appeal of Tasmania
    Assault’ – ‘Extraordinary case’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Public protection’ – ‘Unlawful assault causing bodily harm

    Charge/s: Assault x 3; unlawful act intended to cause bodily harm x 1.

    Appeal Type: Appeal against sentence.

    Facts: The male appellant and the female complainant were in a relationship. The three assault counts occurred in August 2014 and April 2015 after the appellant had been drinking. The appellant punched the complainant in the face, choked her, and fractured her wrist. The final count occurred in June 2015 when, after an argument, the intoxicated appellant threw petrol on the complainant and ignited her. The complainant’s daughter heard the screams and rescued her mother. The appellant was sentenced to ten years imprisonment with a non-parole period of six years.

  • Daley v State of Tasmania [2016] TASCCA 10 (22 August 2016) – Court of Criminal Appeal of Tasmania
    Aggravating factor’ – ‘Children’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relevance of impact on children

    Charge/s: Murder x 2.

    Appeal Type: Appeal against sentence.

    Facts: The 60 year old appellant murdered his former partner, 31 year old Meagan Wilton, and her new partner, 34 year old Benjamin Eyles, by shooting them with a shotgun. The appellant and Ms Wilton had a 21 month old son together, and Ms Wilton had two other girls, aged 12 and 9. Ms Wilton’s youngest daughter and the appellant’s son were in the house at the time of the murders. After leaving the premises, the appellant tried to commit suicide by shooting himself in the head. He suffered brain damage, lost the ability to walk, and required visual and hearing aids. He pleaded guilty and was sentenced to 45 years imprisonment, with a non-parole period of 25 years.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Estcourt J provided the lead judgment, with Blow CJ and Brett J agreeing but providing additional comments. Relevantly, Blow CJ stated that while the punishment here was significant and that there were a number of mitigating factors in the circumstances, these carried little weight in light of the aggravating factors of this case. As per His Honour: ‘[t]hese were deliberate killings. They were premeditated. They were motivated by vindictiveness towards a former partner’ (see [4]). Moreover, ‘[t]his was a case in which the impact of the killings on survivors [was] particularly significant’. The children who were present in the house could suffer long-term psychological or psychiatric consequences (see [5]). Further, the impact of the crime would be felt by family members raising the children, and police officers who worked on this case.
  • Devine v Tasmania [2015] TASCCA 19 (26 August 2015) – Court of Criminal Appeal of Tasmania
    Breach of domestic violence order’ – ‘Damaging property’ – ‘Deterrence’ – ‘History of abuse’ – ‘Manifestly excessive’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Sentencing’ – ‘Vulnerable - new partner

    Charges: Aggravated burglary, Unlawful act intended to cause bodily harm, Breach of family violence order, Motor vehicle stealing, Destroying property

    Appeal type: Appeal against sentence

    Facts: The appellant and the protected person had been in a domestic relationship that ended towards the end of 2012. As a result of the appellant threatening to cut her throat and burn her house down, the protected person moved away from Hobart. Early in 2015, her house was burnt down, although no one was charged. The protected person then moved back to Hobart and entered into a new relationship. The appellant threatened her new partner, resulting in a family violence order restraining him from approaching the protected person.

    On the day of offending, the appellant went to the protected person’s home, kicked the front door, smashed a window, drew a knife and threatened to kill her. The appellant then lunged towards the protected person who cut her hand as a result of trying to stop him. When the protected person’s partner came to assist, the appellant was holding the knife to the protected person’s throat and threatened ‘Why shouldn’t I kill him’. When her partner attempted to separate them, the appellant stabbed him in the stomach. In relation to this conduct the appellant was charged and pleaded guilty to one count of aggravated burglary, two counts of committing an unlawful act intended to cause bodily harm, three breaches of a family violence order, one count of motor vehicle stealing, and one count of destroying property. He was sentenced to seven years’ imprisonment with no non-parole period.

    The appellant had a long history of dishonest and violent offending commencing from childhood. When given the benefit of suspended sentences, bonds and parole in relation to these offences, the appellant breached them. A psychologist’s report noted the appellant had extremely low to borderline intellectual functioning and could be considered to have a mild intellectual disability. This was substantially the result of substance abuse in the view of the psychologist. The sentencing magistrate did not consider this as a mitigating factor, concluding there was a significant risk he would re-offend and therefore there was a need for specific deterrence.

    Issue: Whether the sentence was manifestly excessive due to the magistrate failing to order a non-parole period.

    Decision and reasoning: The appeal was dismissed.

    Tennent J, with whom Porter and Pearce JJ agreed, held that the issue of whether or not to order a parole period is a matter for the discretion of the sentencing judge. His Honour took into account the relevant factors including the appellant’s offending history and disregard for orders in refusing to grant a non-parole order. The psychologist report did not suggest rehabilitation was likely. The sentencing judge therefore did not err in failing to order a non-parole period and the sentence was not manifestly excessive.

  • Connelly v Tasmania [2015] TASCCA (29 June 2015) – Court of Criminal Appeal of Tasmania
    Aggravating factor’ – ‘Arson’ – ‘Attempted murder’ – ‘Denunciation’ – ‘Double jeopardy in sentencing’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Sentencing

    Charges: Attempted murder (two counts)

    Appeal Type: Appeal against sentence

    Facts: The appellant’s relationship with his wife deteriorated after she told him that she had a sexual relationship with another man. She moved out of the family home. The appellant attempted to kill his two sons by blowing up the family car when they were sitting in it with him. He was unsuccessful but he caused an explosion and a very fierce fire. His two sons suffered life-threatening burns. Their injuries are ongoing and they will have ‘functional and cosmetic problems for life’. They are at risk of ongoing psychological harm. The impact on their mother was devastating. The trial judge was satisfied that the appellant intended to kill the boys to ‘deprive his wife of them’ or to ‘spite his wife’ ([29]). He was sentenced to 20 years’ imprisonment with a non-parole period of 15 years.

    Issue: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld in respect of the non-parole period. Estcourt J (with whom Tennent J agreed) held that the head sentence of 20 years was not excessive. The offending was serious and both victims were young children. However, Estcourt J noted that there was one act that impacted both victims. While the sentence encompassed the entirety of the appellant’s criminal behaviour, he should not be sentenced for his conduct twice.

    Counsel for the appellant submitted that even if the head sentence was not excessive, the non-parole period was excessive because of factors such as his lack of prior relevant offending, the unlikelihood of any re-offending ‘given the crime was directly related to his family circumstances’ and the fact that ‘it could not be said that the appellant’s “incorrigibility” justified the setting of the non-parole period at 75% of the head sentence’ ([38]). Estcourt J (Tennent J agreeing) accepted these submissions notwithstanding the appellant’s almost complete lack of remorse and reduced the non-parole period to 12 years.

    Wood J agreed with Estcourt J’s reasoning with respect to the head sentence but dissented in regards to the non-parole period. At [7]-[21], her Honour engaged in general discussion about the applicable principles in determining the most appropriate non-parole period. Wood J then noted at [23] a number of considerations relevant to the nature of the crime. These included that it involved deliberate acts to kill two young children, the appellant’s ‘vindictive motive to inflict maximum anguish and emotional trauma upon his wife’, his son’s extensive injuries and degree of emotional suffering and physical pain, risks to their psychological well-being and the torment and harm suffered by his wife. It was appropriate for the sentencing judge to give effect to the aims of denunciation and retribution and, ‘the goal of assuaging informed moral outrage of the community, reasserting society's values and giving proper weight to the harm done to the victims’ ([24]).

  • Groenewege v Tasmania [2013] TASCCA 7 (26 July 2013) – Court of Criminal Appeal of Tasmania
    Arson’ – ‘Assault’ – ‘Course of conduct’ – ‘Denunciation’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Risk factor - strangulation’ – ‘Sentencing

    Charges: Arson, Assault

    Appeal Type: Appeal against sentence

    Facts: The appellant suffered from depression and became abusive and intimidating towards his wife. After she ended the relationship, the appellant became angry and upset. He cornered his wife in a shed, pushed her to the chest, grabbed her around the throat and squeezed for four seconds, causing her to become very fearful. The appellant asked to see his four children. His wife then walked with him to the car, got in and locked the doors before attempting to drive off and call the police. However, the appellant grabbed the vehicle and punched the window, which caused it to shatter. His wife then attended her children’s school. Meanwhile, the appellant poured methylated spirits onto the main bedroom of their house, set fire to the bed and left knowing the bed was on fire. The house was damaged beyond repair. An insurance claim was denied. The impact of the offending on the appellant’s wife and children was very significant. He was sentenced to four years and six months’ imprisonment, with a non-parole period of two years and nine months.

    Issues:

    1. Whether the sentence was manifestly excessive.
    2. Whether the trial judge erred by placing too much weight on general deterrence given the appellant’s mental health condition.

    Decision and Reasoning: The appeal was upheld in respect of issue 1.

    1. The appellant submitted that various mitigating factors existed ([39]) and that the sentence was outside the range of permissible sentences for arson. Further, the appellant submitted that the assault was brief and no physical harm was caused. The respondent conceded that the assault would not add to a sentence imposed for arson, but submitted that it was relevant as a course of conduct and to demonstrate the appellant’s attitude towards his wife ([44]). Porter J (with whom Wood J and Tennent J agreed) held that while the head sentence was very high, it was not outside the permissible range: ‘The appellant intentionally set fire to the house and intentionally caused its entire destruction. His motive for doing so was to exact some sort of vengeance on his estranged wife intending to destroy his wife's interest in the building and its availability as a home’…‘This was obsessive and possessive conduct, involving some violence, committed in the aftermath of a broken relationship. It is the type of conduct which simply cannot be tolerated’ ([52]-[53]).

      Nevertheless, the non-parole period was found to be excessive. Porter J noted that in considering the length of a non-parole period, the issue is whether the period makes the sentence manifestly excessive, ‘"sentence" in this context, being used in a broader sense’ ([56]). The non-parole period amounted to a little over 60% of the head sentence. Given factors such as the appellant’s prior good character, his mental health condition and apparent remorse ([60]), the non-parole period made the overall sentence manifestly excessive and was therefore reduced to one half of the head sentence.
    2. The appellant submitted that his psychiatric condition affected his ability to properly consider the consequences of his actions, such that it was inappropriate for general deterrence to remain a large consideration in sentencing. Porter J (with whom Tennent J and Wood J agreed) held that notwithstanding the psychiatric condition, mood disorders are reasonably common in the community. As such, the sentencing judge was correct to conclude that the appellant was, ‘an appropriate vehicle by which to convey a message to the general community about the seriousness and likely consequences of this type of offending’.
  • Enniss v Tasmania [2012] TASCCA 10 (2 October 2010) – Court of Criminal Appeal of Tasmania
    Assault’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Risk factor - strangulation’ – ‘Risk factor - weapon’ – ‘Sentencing’ – ‘Totality

    Charge: Assault (five counts)

    Appeal Type: Appeal against sentence

    Facts: The appellant lived intermittently with his partner (the complainant). The first count occurred when, during an argument, the appellant grabbed the complainant by the throat, forced her to the floor, punched her to the head multiple times and kicked her to the hip as she tried to stand up. The second assault occurred when the complainant was in her three-year-old child’s bed. The appellant pointed a knife at the complainant and threatened to stab her if she did not give him her phone (i.e. an assault by means of a threatening gesture). The child remained asleep throughout the incident. The next count occurred when the appellant kicked the complainant between the legs twice, which caused her to fall to the floor. The final count was again an assault by means of a threatening gesture and involved the appellant sharpening knives and threatening to kill or violently assault the complainant. The appellant was arrested but escaped on arrival at the police station and was not found until 10 days later. While the complainant did not suffer serious physical injuries, there were lasting psychological consequences for her and her daughter. The appellant had a significant criminal history. He was sentenced to three years’ imprisonment with a non-parole period of two years. Before being sentenced for these offences, he was sentenced to another 3 years’ imprisonment (with a two-year non-parole period) in respect of 50 unrelated offences. This resulted in an aggregate sentence of six years’ imprisonment with a four-year non-parole period.

    Issue: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld. ‘The ordeal that the appellant inflicted on his partner was horrific. He had many opportunities to desist from assaulting her, but did so over and over again, with their young daughter in the house. It was an unusually bad case of family violence. The only appropriate penalty was a significant cumulative sentence of imprisonment.’ ([20]).

    Counsel for the appellant submitted that the fact the appellant was unlikely to be granted parole (even if eligible) should have been taken into account in his favour. The Court rejected this argument, holding that this is not an appropriate consideration in determining the sentence. However, the magistrate imposed the two-year non-parole period for the assault offences so as to not impose a crushing sentence. If the head sentence of three years was ‘crushing’, a non-parole period should not be regarded as changing that situation because parole may not be granted. Given the length of the sentence in combination with the fact that the complainant suffered no physical injuries, the head sentence was disproportionate to the gravity of the offending and the aggregate term was also disproportionate. The appellant was re-sentenced for the assault offences to 18 months’ imprisonment with a non-parole period of 12 months.

  • Braslin v Tasmania [2011] TASCCA 14 (13 October 2011) – Court of Criminal Appeal of Tasmania
    Admission of guilt’ – ‘Arson’ – ‘Circumstantial evidence’ – ‘Directions and warnings for/to jury’ – ‘Physical violence and harm’ – ‘Risk factor - separation

    Charge: Arson

    Appeal type: Appeal against conviction

    Facts: The appellant was tried by jury and found guilty of arson purely on the basis of circumstantial evidence. It was alleged that he unlawfully set fire to the house of his former female partner. She gave evidence that the night before the fire the appellant slept over at her place. She and the appellant argued the next morning as she was leaving the property. He called her a ‘leg-opening slut’ and said that if she left he was going to burn the house down. She left and not long after received a phone call from the appellant who asked whether she was ‘warm enough’. She returned home to find the house on fire. Evidence was also given by a neighbour that he heard the appellant and his former partner arguing that morning for 10 minutes. He ignored the argument and did not claim to have seen the appellant on the morning of the fire.

    Before trial, the appellant pleaded guilty to breaching a family violence order on the day of the fire by approaching his former partner and calling her a ‘leg-opening cunt’. The Crown alleged that this amounted to an admission of guilt. At trial, the appellant asserted that he did not realise the significance of this date and that he had used those words but not on the day of the fire. The appellant’s younger sister provided the appellant with an alibi. She said he was asleep at their mother’s place on the morning of the fire.

    Issues: Some of the grounds of appeal were:

    1. Whether the trial judge failed to correct the prosecution’s lack of adherence to the ‘rule’ in Browne v Dunn.
    2. Whether the trial judge failed to give an adequate warning in relation to the neighbour’s voice identification evidence.

    Decision and Reasoning: The appeal was upheld and the conviction set aside.

    1. ‘In the context of a criminal trial, the "rule" in Browne v Dunn (1893) 6 R 67 requires defence counsel to put to a Crown witness in cross-examination the case upon which the accused proposes to rely, to the extent that it is proposed to contradict the evidence of the Crown witness. Similarly, if it is proposed, as part of the defence case, to lead evidence of a fact which, if true, would be within the knowledge of a Crown witness, it is usually expected, at least in this State, that defence counsel will put that part of the defence case to the Crown witness in cross-examination’ ([21]). Here, the Crown did not do this and sought to rely on such evidence in summing up. The trial judge did not correct this mistake in her directions to the jury and further she incorrectly directed the jury that they should be careful about the appellant’s sister’s evidence.
    2. The direction that the jury had ‘to clearly be careful’ about the identification evidence from the neighbour fell short of informing the jury that there was a ‘special need for caution.’ The trial judge said nothing about the reasons for that caution namely, the conviction of innocent persons as a result of mistaken identification by an apparently honest witness ([34]-[35]).