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.

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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