Tasmanian Sentencing - Pt 1 - Homicide and Violence

One of the crucial parts of criminal law is knowing "what is it worth?" While almost all crimes under Tasmanian law carry a maximum sentence of 21 years jail, this is not the case in practice: some crimes, like manslaughter, are more serious than others. The fundamental work in this area, written more than 15 years ago, was the piece Sentencing in Tasmania by Professor (now Governor) Kate Warner. However, what has changed in the last 15 years? What are the sentences now?

This article contains original research, reviewing the sentences of the Supreme Court of Tasmania over the last 9 years - from 2008 to 2016 - that answer these questions.

(c) All rights reserved. Third party publication only by permission of the author.

Part 1 - Homicide and Violence

Sentencing in Tasmania, written by (now Governor) Professor Kate Warner has been a fundamental text for both lawyers and judiciary operating in the state’s criminal courts. At the encouragement of practitioners and judiciary, what follows is a review and update of the sentencing tariffs apparent from the Comments on Passing Sentence issued by the Supreme Court of Tasmania for the period 2008 to 2016.


This is the first in a series of articles that will provide some guidance as to where the tariffs lie, and where they have moved over the past 20 years since Sentencing in Tasmania. The next article will focus on sentencing for aggravated assaults, sexual crimes and like offences.


Method and Caveats

As always, there must be caution - any case must be judged on the particular facts, defendant and mitigation. Whilst the Supreme Court’s justices – both past and present – have made reference to the sentencing tariffs, all have also cautioned that they are only intended as a guide and particular cases may be treated with leniency or severity as justice requires.


Minimum, mean and maximum sentences listed in the tables below are assessed on imprisonment, and are included even if partially or wholly suspended. The decision on which sentences to include requires some subjective judgement - sentences where the penalty for an individual crime is not readily discernable (i.e. an in-globo penalty for rape, assault and pervert justice) are not included, but where accompanied by lesser offences (i.e. grievous bodily harm and common assault) remain included.


“N/A” indicates that there is an insufficient number of cases to provide meaningful analysis.

Penalties altered by a successful appeal are included in the statistics, rather than the trial level decision.

HOMICIDE

Murder and Manslaughter

Term of Natural Life

A conviction for Murder under the Criminal Code Act 1924 (Tas.)[iii] does not share the restriction for other Code crimes (a maximum sentence of 21 years imprisonment) and the Court has the power to imprison “for the term of the person’s natural life or for such other term as the Court determines.” (Code s. 158)


Since 2008 the Court has used “term of his natural life” as a sentence on 4 occasions, including twice in 2015. Non-parole periods on each occasion were generally greater where compared to cases where the Court set periods of jail under the head sentence - but not extraordinarily so. For example, Mason and Dobson in 2015 received 16.5 years and 14 years as non-parole periods respectively. However, in March 2009, Adams had a prior conviction for murder and was sentenced to the term of his natural life with no order as to parole.


Mitigating Factors


Particularly in the case of murder convictions, it is difficult to find consistent sentencing themes. Youth has been mitigating in some cases, but was also a factor present in some of the higher sentences. Similar situations exist for factors like intellectual disability, drug dependence, and prior offending. As an example, compare Papadopoulos (2010) and Jellison. Papadopoulos was a youthful offender with no prior matters for violence, but showed little remorse and received a sentence of “term of natural life” with a 25 year non-parole period. Jellison was also a youthful offender with no relevant prior matters. However, Jellison also refused a police interview, was discredited at trial, and was held to be not remorseful, but received a head sentence of 20 years jail, with a non-parole period of 11 years.


The caveat about reading too much in to statistics or common factors certainly applies to attempted murder; there have only been 5 convictions in the period. The least sentence lay with an attempt where no lasting injury occurred; the greatest sentence with a youth sentenced to 8 years detention under the Youth Justice Act.


Manslaughter


The highest sentence for manslaughter, some 10 years jail, involved a case where the victim was tortured by the complainant and others (Keene, 2011). The lowest, which was wholly suspended, involved insufficient care for an elderly relative who died of exposure whilst residing in a shipping container (Anglin, 2015).


One Hit Deaths


Two manslaughter cases seem to be “one punch kills” involving alcohol. In each, the sentences were 3 years jail (youthful offender, immediately tried to help after) and 5 years jail. A further case is noted, where an elderly victim was knocked over on to concrete steps causing fatal injuries, which resulted in an 8 year head sentence.


WOUNDING AND BODILY HARM


Due to the sheer number of cases, instances where defendants have been found or pled guilty to both wounding and assault are included as a separate category.


Wounding


In regards to single counts of wounding, wholly suspended sentences were imposed in almost half of all cases – 40 of 82 custodial penalties. A further 13 involved partially suspended sentences suspensions of between 25% and 60%. On occasion these were accompanied by Community Service Orders of up to 240 hours.


Often, a charge of wounding is accompanied by a charge of assault. [vi] The highest sentences in this spectrum have been for assaults aggravated by the use of firearms (4 years jail in both Denman (2013) and Marshall (2015)). This is also the case for wounding and assault in the course of a drive-by shooting (5 years jail in Richardson (2015), 21 months jail in Wright (2013)).


Intent to Cause Bodily Harm vs Causing Grievous Bodily Harm


The Code provides for two crimes of “bodily harm” – acts intended to cause bodily harm (Code s.170) and causing grievous bodily harm (Code s.172). Section 170 is the more serious[vii] and requires that the defendant have “intent to main, disfigure, or disable any person, or to do any grievous bodily harm...”


The maximum sentence for section 170 on its own was 7 years – but please note the matter of Price, which involved an in-globo sentence for 1 count of section 170 and 3 counts of Code Assault (10 years jail).


For Section 172, the maximum was 5 years jail in the matter of Baron (2009). This involved the defendant pleading not guilty, together with massive injuries to the victim by stomping and punching, and the defendant had previously served jail time. However, there are some higher in-globo sentences; for example, 6 years jail for causing grievous bodily harm, aggravated armed robbery and assault.


ASSAULT

Due to the sheer number of cases – Assault is the most common charge dealt with by the Supreme Court – there is enough of a sample size to allow us to gloss over some of the more unusual cases: MacMillan, where the sentence was a good behaviour bond only for 3 counts of Assault; Cowen, involving 12 months wholly suspended and a $2,500 fine for 6 counts of Assault; and Johnson (2016), involving 42 hours community service for 9 counts of Assault.


In 13 cases, the only penalty was conviction with a fine, varying between $400 and $2,500.

The Court has suspended part or all of the jail penalty in the majority of cases. Wholly suspended sentences are commonly accompanied by Community Service Orders – on average, 112 hours. There has been judicial commentary in sentencing that the maximum number of hours possible should be raised from the current limit of 240 hours. Despite this, no sentence for Assault has reached the maximum of 240 hours – in all, 6 sentences have had orders for 200 hours or more, but none greater than 220 hours.


Common Maximum


Curiously, one tariff does seem to have appeared from the statistics: there is no sentence greater than 30 months imprisonment irrespective of the number of counts. This may simply be a statistical anomaly but does seem to mark the high point for the Court’s sentences on Assault charges (whether a single count or many) over the past 8 years.


ROBBERY

An important caution lies with the statistics above on “simple” robbery: the single highest sentence was far above any other. The matter of Mayne in 2012 involved the hold-up of a Commonwealth Bank branch. Bank staff were told by the defendant to hand over money or he would remove a gun from his bag (there is no indication that there was ever actually a weapon.) The defendant had more than 90 priors for dishonesty, two prior matters for escape, was in breach of a suspended sentence and of the funds taken (roughly $8,000), $7,500 had been spent before his arrest only one day after the hold-up. The sentencing judge, Crawford CJ, listed condemnation as a major factor in sentencing, particularly as the matter related to a bank robbery. Mayne was sentenced to 3 years 6 months jail, with a 2 year 6 month non-parole period.


The sentence against Mayne is almost double the next highest – sentences of 2 years jail issued by the court on four occasions over the past eight years. In three of these, the non parole period was fixed at 15 months; in the fourth, the Court refused to make any order as to parole.

For this reason, the penalty is Mayne is excluded from the “mean” calculation above – if included, it pushes the average penalty for robbery up to almost 12 months jail.


Youthful Offending


Particularly in the area of aggravated armed robbery, offenders were predominantly youthful (i.e. aged 21 or below) and one-quarter of all cases (25.4%) involved sentences under the Youth Justice Act. These sentences generally account for those at the lower end of the spectrum – but there are exceptions. For instance TJM and TWF both received 2 year detention periods without suspension. The spread of wholly suspended sentences was not statistically different between children sentenced to detention (Youth Justice Act) and or adults to imprisonment (Sentencing Act).


Crown Appeals


Charges of aggravated armed robbery were also the subject of a number of successful Crown appeals against sentence. 7 defendants were resentenced on the basis of manifestly inadequate sentences; only on one occasion was a Defence appeal successful in establishing the penalty was manifestly excessive (non-parole period reduced in Pickett [2014] TASCCA 1. Pickett received the most severe head sentence in the statistical period – 7 years – which was not altered on appeal.)

[ii] Average excludes 4 instances of sentences “for term of natural life”

[iii] For the sake of brevity, herein “The Code” or “Code”

[iv] in-globo penalty for 2 x wounding, 1 x attempted wounding, 5 x Code Assault and others.

[v] Including aggravated assault

[vii] Section 172 is an alternative lesser charge to Section 170.

[viii] Capitalised “Assault” refers specifically to the crime of Assault under the Criminal Code Act 1924.

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