2024 Criminal Law Conference Delegate Booklet

2024 Criminal Law Conference

1 March 2024

Wrest Point Hotel Casino

410 Sandy Bay Road, Sandy Bay

Derwent Room

Entry to room is through the door in windowed walkway

Welcome

Welcome to Country

In recognition of the deep history and culture of this island, we acknowledge and pay our respects to all Tasmanian Aboriginal people; the past and present custodians of this Land.

Convenor

The Law Society of Tasmania

lst.org.au

0428 161 200 or (03) 6234 4133

Venue

Wrest Point Hotel Casino

Derwent Room

410 Sandy Bay Road, Sandy Bay Registration

All conference sessions

CPD Guide: 5.5 E, PM, PS, SL Conference e-booklet Morning tea, lunch and afternoon tea

Networking and canapes

Parking

There is plenty of parking on site

WiFi

Conference password WPEvents2022

Do you want to be a part of the bigger picture?

Committee membership provides an opportunity to contribute to law reform; consider issues affecting the profession; and connect with practitioners with similar interests. Put your hand up for the Criminal Law Committee.

See the Society website here to send in your Expression of Interest (EOI)

9:30 Registrations open

9:55 Welcome

11:45

Sex-Somnia: Exciting New Defence or Neurological Baloney?

Kirsten Abercromby, North West Criminal Practice Manager, Tasmania Legal Aid

12:45 Lunch

1:30

DNA: We Trust 'Who' - The Courts Want To Know 'How'

Helen Roebuck, Senior Forensics Biologist and DNA Expert Witness, Roebuck Forensics

2:30

Julian Assange: A Challenge to the Rule of Law Greg Barns SC, Republic Chambers

3:30 Afternoon Tea

3:45

Advocacy Following a Plea of Guilty: The Consumer's Perspective

The Honorable Justice Tamara Jago, Supreme Court of Tasmania with Magistrate Jackie Hartnett, Magistrates Court of Tasmania

4:45 Closing Remarks

5:00 Networking + Canapes

Bios

The Honourable Acting Justice David Porter, Supreme Court of Tasmania

The Hon. Justice Porter was a judge of the Supreme Court from 2008-2016. From 2017, His Honour has continued at the Supreme Court as a part-time acting judge. His Honour is also a contributing author for the text - Sentencing in Tasmania.

Pip Monk, Principal, Monk Lawyers

Ms Monk graduated from UTAS in 2010 and has acquired over a decade of experience as a leading advocate and criminal defence lawyer in Tasmania and South Australia. After graduating Pip moved to South Australia where she began working for the Legal Services Commission of South Australia. She returned to Tasmania in 2013 and worked for Tasmania Legal Aid from 2013-2023.She is know for her expertise in criminal law. Now based in Hobart, Pip recently established her own legal practice, Monk Lawyers. Pip is a current member of The Law Society of Tasmania's Criminal Law Committee.

Kirsten Abercromby, Manager, North West Criminal Practice, Tasmania Legal Aid

Ms Abercromby has worked for Tasmania Legal Aid since 2017 and manages Tasmania Legal Aid's Criminal Practice on the North West Coast, where she has carriage of a number of summary and indictable files. In the last 12 months Kirsten has run two cases relating to sexual behaviour while in an automatic state.

Helen Roebuck, Director, Roebuck Forensics

Ms Roebuck is a practising DNA expert witness with over 20 years courtroom experience throughout Australia and select international jurisdictions. Helen proffers authoritative oral and written expert testimony in predominantly indictable matters including murder, sexual assault, firearms and drugs matters. She is actively involved in both the scientific and legal communities, including participation as an Industry Fellow at UTS, bringing significant crime scene, laboratory, academic and jurisdictional experience. Helen is an active speaker, and is passionate to further knowledge and engagement between the scientific and legal fields, to the betterment of judicial outcomes.

Bios

Greg Barns SC, Barrister, Republic Chambers

Mr Barns SC graduated BA LLB from Monash University in 1984. He was a member of the Victorian Bar where he practiced in criminal law from 1986-89 and has been a member of the Tasmanian Bar since 2003. Greg was chief of staff and senior adviser to a number of federal and state Liberal Party leaders and ministers from 1989-99. He is also the former National Chair of the Australian Republican Movement and was National President of the Australian Lawyers Alliance in 2011-12.

The Honourable Justice Tamara Jago, Supreme Court of Tasmania

The Hon. Justice Jago was appointed as a Judge of the Supreme Court in November 2021. Her Honour graduated from the University of Tasmania with a Bachelor of Arts and a Bachelor of Laws (Honours) in 1992, before commencing practice in 1993. Justice Jago (appointed to the bench in 2016) holds the distinction of being the first woman in Tasmania to be made Senior Counsel when she was honoured by the 2010 achievement. Justice Jago specialised in criminal law in a private practice in Burnie before taking a position at what is now Tasmania Legal Aid in 2000.

Magistrate Jackie Hartnett, Magistrates Court of Tasmania

Magistrate Hartnett was Principal Crown Counsel at the Office of Director of Public Prosecutions until being called to the bench in 2021. Ms Hartnett practiced in the area of criminal law for over 20+ years. Magistrate Hartnett was previously the Chair of the Criminal Law Committee of the Law Society of Tasmania.

Session 1

9:30 Registrations open

9:50 Welcome to the Conference

Dinesh Loganathan, Principal, Logan & Partners; Member, Council & Criminal Law Committee, Law Society of Tasmania

9:55 Welcome to Country

Amanda Ripper, Aboriginal Wellbeing and Support Coordinator, Tasmanian Aboriginal Legal Service

10:00 Session 1

Sentencing in Tasmania 3rd Edition - A Reality

Session outline

The need for a third edition

The required changes since 2001

An overview of what the third edition will look like Q and A

Presented by:

The Honorable Justice David Porter, Acting Judge, Supreme Court of Tasmania

Chair: Dinesh Loganathan, Principal, Logan & Partners; Member, Council and Criminal Law Committee, Law Society of Tasmania

CPD Guide: PS, SL

11:00 Morning Tea (15 minutes)

Session 2 + 3

11:15 Session 2

Case Law Update: Current Criminal Cases Unpacked

Session outline

A deep dive into the following recent criminal cases in the Tasmanian Courts: Banfield v Tasmania [2024] TASCCA 1 – the first CCA decision to affirm Bugmy Conduct of counsel –looking at 4 recent CCA’s on this topic (JAGD, BTH, Braslin and MJP)

Manifest Excess / Inadequacy in Sex Cases – Oh Maris, SRR and BRL

Presented by:

Pip Monk, Principal, Monk Lawyers

Chair:

Rochelle Mainwaring, Criminal Practice Manager South, Tasmania Legal Aid; Member Criminal Law Committee, Law Society of Tasmania

CPD Guide: SL

11:45 Session 3

Sex-Somnia: Exciting New Defence or Neurological Baloney?

Session outline

Parasomnias and what they actually are - the types of parasomnias that can occur Sexual Behaviour in Sleep, sometimes colloquially referred to as 'Sexsomnia' - is not something a defendant can be held criminally liable for, provided they successfully establish such a defence, being one of automatism.

How to establish such a defence - benefits and pitfalls - and what you will need to lead from your expert witness

Key takeaways

How automatism works generally

How to establish a defence of automatism - whether relating to Sexual Behaviour in Sleep or any other condition in which the defendant achieves an automatic state

The traps of automatism

Presented by:

Kirsten Abercromby, North West Criminal Practice Manager, Tasmania Legal Aid

Chair:

Pip Monk, Principal, Monk Lawyers; Member Criminal Law Committee, Law Society of Tasmania

CPD Guide: PS, SL

Session 4

12:45 Lunch (45 minutes)

1:30 Session 4

DNA: We Trust 'Who' - The Courts Want To Know 'How'.

This presentation is ideal from an introductory perspective and for seasoned practitioners dealing with DNA evidence in criminal proceedings.

Session Outline

Courts widely regard DNA evidence as a robust identification of the individual

The justice system is increasingly asking science to determine “how" the DNA got there

A reveal of the invalid use of unscientific "more likely" statements common in evidence

Information and guidance as to how trace DNA and DNA transfer should be evidenced when seeking to answers as to " how” the DNA got there

Key Takeaways

Understanding the fundamentals of DNA in evidence

Consider the utility "how" the DNA was deposited

Identify the risks associated with "more likely" in scientific evidence

Presented by:

Helen Roebuck, Senior Forensics Biologist and DNA Expert Witness, Roebuck Forensics

Chair:

Pip Monk, Principal, Monk Lawyers; Member Criminal Law Committee, Law Society of Tasmania

CPD Guide: PS

Session 5

2:30 Session 5

Julian Assange: A Challenge to the

Session outline

This session discusses the case of Julian Assange, the founder of WikiLeaks, who faces extradition to the United States from the UK for publishing in 2010 evidence of war crimes and other gross misconduct by the United States and its allies in Iraq and Afghanistan.

11:45

The United States is using extra-territorial reach and threatening the right to freedom of speech in seeking to prosecute Assange in the United States for alleged breaches of the Espionage Act 1917

Mr Barnes will discuss how this case is a direct challenge to the rule of law in a number of respects; and how this case also highlights the misuse of extradition treaties

3:30 Afternoo

Presented by:

Greg Barns SC, Republic Chambers

Chair:

Callum Purcell, Principal, Hamilton Purcell Lawyers; Member, Council smania

Session 6

3:45 Session 6

Advocacy Following a Plea of Guilty: The Consumer's Perspective

This session addresses the considerations of advocating following a plea of guilty. In this session Justice Jago and Magistrate Harnett share their insights, explore ethical and professional obligations in presenting a plea in mitigation to the court

The session will cover:

• Key considerations in advocating in a plea in mitigations

11:45

• The ethical obligations and duty of care as an advocate in criminal proceedings

Presented by:

The Honorable Justice Tamara Jago, Supreme Court of Tasmania with Magistrate Jackie Hartnett, Magistrates Court of Tasmania

Chair:

Caroline Graves, Barrister, Michael Kirby Chambers; Member, Criminal Law Committee, Law Society of Tasmania

CPD Guide: E, PS

4:45 Closing Remarks

Dinesh Loganathan, Principal, Logan & Partners; Member, Council & Criminal Law Committee, Law Society of Tasmania

Prize draws

For a chance to win, registrants want to be in the room at draw time.

CPD Assist prize offers a night's accommodation for practitioners who have travelled from the north and north west

Lucky Door prize offers all registrants a chance at winning 5:00

Want to Share Your Expertise?

Love To Write? Enjoy Presenting?

You can claim CPD points for publishing an article in a legal or non-legal publication. You can also claim CPD points for preparing or presenting material for a seminar, interactive live-streamed webinar, workshop, conference, and more. See Practice Guideline no. 4. Contact cpd@lst.org.au

Contributions for the next Society Law Letter are due by 6 March 2024. Contact shelley.harwood@lst.org.au

Session Materials

Sentencing in Tasmania 3rd Edition - A Reality

The Honorable Justice David Porter, Acting Judge, Supreme Court of Tasmania

Background slides

Case Law Update: Current Criminal Law Cases Unpacked Pip Monk, Principal, Monk Lawyers

Slides

Sex-Somnia: Exciting New Defence or Neurological Baloney? Kirsten Abercromby, North West Criminal Practice Manager, Tasmania Legal Aid

Slides during the session only

DNA: We Trust 'Who' - The Courts Want To Know 'How' Helen Roebuck, Senior Forensics Biologist and DNA Expert Witness, Roebuck Forensics

Slides during the session only

Julian Assange: A Challenge to the Rule of Law

Greg Barns SC, Republic Chambers

No materials

NB: This session replaces the session on Disclosure as the presenter is unable to attend due to unforeseen circumstances

Advocacy Following a Plea of Guilty: The Consumer's Perspective

The Honorable Justice Tamara Jago, Supreme Court of Tasmania with Magistrate Jackie Hartnett, Magistrates Court of Tasmania

An Overview Paper

Sentencingin Tasmania3rdEdition AReality

SentencinginTasmania

SecondEdition

KateWarner ProfessorofLaw,UniversityofTasmania with TereseHenning SeniorLecturerinLaw,UniversityofTasmania

DavidPorterQC Barrister and JuliaDavis LectureinLaw,UniversityofTasmania

Foreword

ChiefJusticeTheHonourableWJECoxAC,RFD,ED

Contents

ForewordChiefJusticeTheHonourableWJECoxAC,RFD,ED

Acknowledgements

TableofCases

TableofStatutes

Chapter1Introduction

Introduction

DistributionofSentencingAuthority

CommonwealthandStateJurisdictions

InterpretationofPenaltyProvisions

Chapter2Procedure

TheSentencingHearing

RoleofCounsel

FactualBasisofSentencing

Pre-SentenceReports

PronouncingSentences

Chapter3GeneralConsiderations

Introduction

PurposesandJustifications

LimitingPrinciples

NatureoftheOffence

NatureoftheOffender

ResponsetotheCharges

EffectofOffenceandSanction

Parity

Contentscont.

Chapter4Fines

Introduction

Imposition

Enforcement

Chapter5Restitution,CompensationandCosts

Introduction

Restitution

CompensationinCriminalProceedings

CriminalInjuriesCompensation

Costs

AppealsfromOrdersfromRestitution,Compensationand Costs

Chapter6ForfeitureandDisqualification

Introduction

Forfeiture

Disqualification

Chapter7UnsupervisedRelease

Introduction

ConvictionorNon-Conviction

UnconditionalRelease

ConditionalUnsupervisedRelease

3 4

Contentscont.

Chapter8SupervisedRelease

Introduction

ProbationOrders

CommunityServiceOrders

Chapter9CustodialOrders

Imprisonment

SuspendedSentencesofImprisonment

DetentionOrdersandSuspendedDetentionOrders

ConcurrentandCumulativeSentences

Commencement Parole

TemporaryLeave Remissions

Chapter10OtherSanctions

Introduction

OrdersforMentallyIllOffenders

AreaRestrictionOrdersandControlOrders

Injunctions

Chapter11CrimesAgainstthePerson

Introduction

Homicides

Non-FatalOffencesagainstthePerson SexualOffences

Contentscont.

Chapter12RobberyandPropertyOffences

RobberyandAlliedOffencesforGain Stealing,ReceivingandDeception Burglary PropertyDamage

Chapter13DrugOffencesandOtherCrimes

DrugOffences

OtherOffences

Chapter14SpecificSummaryOffences

Introduction

PoliceOffencesAct

IndictableOffencesTriedSummarily PoisonsAct

DrivingOffences

BreachofRestraintOrders

SocialSecurityFraud

Chapter15Appeals

Introduction

AppealsinIndictableMatters

AppealsinSummaryMatters

Index

Banfield v Tasmania [2024] TASCCA 1

Jago J at 33

As to the impact of the appellant's background on the sentence, it must be remembered that in any case in which it is sought to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background (Bugmy v The Queen [2013] HCA 37; [2013] 249 CLR 571 at 594).

CONDUCTOFCOUNSEL

JAGDvTasmania[2021]TASCCA16

BTHvTasmania[2021]TASCCA14

BraslinvTasmania[2022]TASCCA8

MJPvTasmania[2023]TASCCA5

Whatisthelawregardingincompetenceofcounsel,andwhat

PorterJ,JAGDvTasmaniaat64summarises:

Incompetenceofcounselisnotofitselfagroundofappeal,therelevant groundiswhethertherewasamiscarriageofjusticeasreferredtoins 402(1)oftheCriminalCode:NuddperGleesonCJat[2].

Theconceptofamiscarriageofjusticehastworelevantaspects;outcome andprocessdifferentbutrelatedinthesensethatdueprocessisto secureajustresult.Afailureofprocessthatdepartsfromtheessential requirementsofafairtrialisamiscarriageofjustice:TKWJperMcHughJ at[76];Nuddat[3]-[7]perGleesonCJ.

Iftherehasnotbeenafairtrialaccordingtolaw,thatwillgiverisetoa miscarriageofjusticewithoutregardtowhethercounsel'sconductmight haveaffectedtheoutcome:TKWJperMcHughJat[76];Nuddat[3]-[7] perGleesonCJ.

PorterJ,JAGDvTasmaniaat64cont.

Inothercasesperhapsthemajorityirregularconductofcounselwill notdepriveapersonofafairtrial.Insuchcircumstances,theultimate questionofwhetheramiscarriageofjusticehasoccurredraisestwo issues;didcounsel'sconductresultinamaterialirregularityinthetrial, andisthereasignificantpossibilitytheirregularityaffectedtheoutcome?: TKWJperMcHughJat[79];NuddperGummowandHayneJJat[24].

Inacaseofthatkind,theenquiryisanobjectiveone;thequestionis whethersoviewed,thecoursetakenbycounselwascapableofrational justificationorexplanation:TKWJperGleesonCJat[16],GaudronJat [26]-[27],McHughJat[95],HayneJat[107];NuddperGleesonCJat[9], [16],perCallinanandHeydonJJat[158].

PorterJ,JAGDvTasmaniaat64cont:

Whereanapplicantcontendsthattheconductofcounselhascausedacriminaltrialto miscarry,heorshecarriesaheavyburden:TKWJperMcHughJat[74].[1]Asa generalrule,counsels'decisionsbindtheclient;thepartyisheldtothewayinwhich counselpresentedthecase:TKWJperMcHughJat[79];NuddperGleesonCJat[9]. Thisissoevenifdecisionsweremadewithoutorcontrarytoinstructions,orinvolve errorsofjudgmentorevennegligence:TKWJperMcHughJat[79][2]

Describingtrialcounsel'sconductas"incompetent"withorwithoutsomeemphatic termlike"flagrantly"mustnotdistractattentionfromthequestionofwhetherthere wasamiscarriageofjustice.Thatrequiresaconsiderationofwhatdidordidnotoccur atthetrial,notwhythatsituationcameabout.Thequestiondoesnotturnonadjectival classificationsofcompetence.TKWJperGaudronJat[31],perMcHughJat[75],per HayneJ(withwhomGummowJagreed)at[103];NuddperGleesonCJat[8],per GummowandHayneJJat[24]-[27].

Sometimeshowever,adecisionaboutwhetheramiscarriageofjusticehasoccurred requiresanunderstandingofthecircumstances;thismayinvolveanunderstanding aboutwhysomethinghappened:NuddperGleesonCJat[9].

JAGD

Rapetrial,consentdefence.Multipleallegationsofincompetenceofdefence counselandcomplaintsregardingconductoftheProsecutor.Onewasmade out.

argumentinthisappeal,areexpressedintermsoftheincompetenceof counsel.Sometimesthemostcompetentcounselmayoverlook,orfailto appreciate,thesignificanceofanaspectoftheevidencesuchthata

BTHvTasmania

Ameritlessappealwhichdemonstrates,inmyview,thatsignificantcareoughtbe takenbyappellatecounselbeforeproceedingwithanappealonthebasisof incompetenceofcounsel.

GeasonJat39:Theappellant'ssubmissionsinthisappeal,astheyrelatetothe conductofhiscounsel,exhibitnaivetyintheconductofacriminaltrial,and overlookthepracticalandtacticalconsiderationsrequiredtobefactoredintothat task.Overlookingthestrengthofthecaseagainsttheappellant,hissolicitorshave allowedthemselvestobeseducedbytheirownargumentsandhavepursuedan appealthatisutterlywithoutmerit.

MJPvTasmania

Thereisnoreasontodoubtthecompetenceofdefencecounsel.Indeed,itmaybe saidthatheconductedhisclient'scasewithconsiderablesuccess.Heresisted, successfully,theCrown'stendencyapplication.

And,ashasbeenseen,inthecourseofthetrialjudge'ssumming-up,when defencecounselwasaffordedtheopportunitytoconsiderwhetherfurther directionswererequired,hedidnotseekananti-tendencydirectioninrespectof thecountsontheindictmentbutratherpressedagainsuccessfullyhis applicationfortheMurraydirection,whichwasultimatelygivenbythetrialjudge. Inthesecircumstances,thesuggestionthatdefencecounselfailedtoseekan anti-tendencydirectionasaresultofoversightonhispartisfanciful.

SEXCASES-GOINGUP

DirectorofPublicProsecutionsvOhMarris[2023] TASCCA1

SRRvTasmania[2023]TASCCA6

DirectorofPublicProsecutionsvBRL[2023]TASCCA8

DPPvOhMaris

Crownappealagainstsentence,originallysentencedfor1xRape,1xindecent assaultafteratrial.Fortheindecentassault,hewassentencedto15months imprisonmentwhollysuspendedfor3years,forrapehereceivedan18mHDO+ 240HoursCSO.

Dwas19,Vwas17.Nopriors,goodupbringing,working,suitablefor community-basedorders.Issueattrialwasmistakeastoconsent.

at21:Rapeisaninherentlyseriouscrime.Anyactofnon-consensual penetrationconstitutesinvasionofthebodilyintegrityofthevictimandisthus objectivelyserious,irrespectiveoftheformandtheextentofthepenetration.

DPPvOhMariscont.

at22:Rapegenerallycallsforasentencereflectingtheneedforpunishment, denunciationandretribution,providingthevictimwithappropriatevindication andprotectingthepublic.Itordinarilyrequiresasentencewhichseekstodeter othersfromsimilarconduct:Mulhollandat[11].

at24:Thematerialjustreferredtomakesclearthatinthegreatmajorityof casesthecrimeofrapeattractsasentenceofimmediateimprisonment.A questiondirectlyraisedbythisappealistheextenttowhich,ifatall,that propositionisaffectedbytheintroductionofhomedetentionordersasa sentencingoption.

DPPvOhMariscont.

at29:Wedonotintendtosuggestthattheimpositionofahomedetention order,possiblyincombinationwithothersentencingorders,isneveravailable forthecrimeofrape,butthisisnotsuchacase.Thatissoforanumberof reasons:

Thecrimecommittedbytherespondentwasaseriousexampleofthecrime ofrape.Itwascommittedinthecomplainant'shome,aftershehadagreedto therespondentvisitingherforsocialinteraction.Adegreeoftrustwas inherentinheragreementtoallowhimintoherhome.Thereareotherfactors whichaddtotheobjectivegravityofthecrime.Therespondentdidnotweara condom.Heejaculatedintothecomplainant'svagina.Evenontheaccounthe gavetothepoliceheaskedthecomplainantwhetherheshouldproceedto ejaculationbutcontinuedeventhoughshedidnotrespond.

DPPvOhMariscont.

at35:Inserioussexualoffences,wheretheinabilityoftheoffendertoappreciate thenatureandconsequencesofhisactions,mistakeormisjudgmentarisesfrom self-inducedintoxication,themoralculpabilityoftheoffenderisnotreduced.In thosecircumstances,anoffenderisgenerallytoberegardedasmorally responsibleforhisorhercondition.Inthiscase,giventherespondent'spriorgood characterandthesentencingjudgesfindingconcerningmistake,hisintoxicationis capableofexplaininghisconduct.

Italsoinformsthequestionastowhetherheislikelytocommitacrimelikethis again.However,suchcrimesarecommonlycommittedbyoffenderswhoare affectedbyalcoholordrugs,andhaveanimpairedcapacitytocorrectlyjudgeand assessconsent.Itisaconsiderationwhichliesbehindthepurpose,intermsof criminalresponsibility,ofs14A(1)theCode.Itisafactorwhichstronglyinforms theneedforgeneraldeterrence.

DPPvBRL

Crownappealagainstsentence.15countsofpossession,distributionandproductionof CEM,6xindecentassaultand1xrape.Originalsentence4yearsimprisonment,NPP2.Blow CJandWoodCJinthemajoritywithEstcourtJdissenting.Resentencedto6years6months NPP3years3months.

at46:Therearefeaturesoftherespondent'soffendingwhichcauseconcernforthecourts andthecommunity.Therespondentengagedwiththeperipheryoftheonlinepaedophilic communityinherlegalactivitiesandmarketedherselfasamother.Thishelpedsellher product,butitalsoattractedtheattentionofthatcommunityandledtoherengagementwith individualswithaninterestinchildsexualabusematerial.Therespondentchosetoengage withindividualsknowingtheyhadaninterestinchildsexualabusematerialandshechoseto succumbtotheinfluenceofthatcommunity.Sheabusedanddebasedherinfantchildren, andontwooccasionssoldthatmaterial,knowingtheabusewouldbeviewedbypredatory andperverseindividualswhowouldfindthecontentsexuallystimulating.

17 18

DPPvBRLcont.

at47:Thiscaseisastarkillustrationofthecorruptinginfluenceandinsidious reachofthispredatoryonlinecommunityinvolvingthenormalisationand creationofthismaterial.Thiscasedemonstratesthecorruptinginfluenceupon individualswhochoosetoengagewiththatcommunity,andthepotentialfor thattoinfluenceindividualswhowouldnototherwisehavebeenexpectedto commitcrimesofchildabuse(echoingsentencingcommentsmadeinEOJ SupremeCourtofTasmania,13December2022).Thiscommunityandthe proliferationofchildsexualabusematerialclawsatthefabricofoursociety.

SRRvTasmania

Defenceappealagainstsentenceof13yearsimprisonmentNPP8yearsforpersistent sexualabuseofachild.Seriouschildsexoffending,factsoutlinedat6.Appellantwas thefatherofthe5-6yearoldcomplaint,offendingover10months,appallingbreachof trustanddepravedviolationofayoungchild,offendingcontinueduntilcomplainant wasremoved,sonovoluntarycessation;brazenoffending;significantimpact.

Solidifiesthepropositionthatchildsexoffences,inparticularpersistentsexualabuse ofachild,willbemetwithsentencesofsignificantduration-particularlywhen comparedwithsentencesforcrimesofasimilarnatureevenasrecentlyas5years ago.

(EG:JV-2019sentence-daughterwascomplainant,persistentandregularsexual abusebetweenagesof6-15-gravestbreachoftrust 12yearsNPP7)

BANFIELDVTASMANIA[2024]TASCCA1

Banfield

AffirmsBugmyvTheQueen[2013]249CLR571

FirsttimeBugmyhasbeendiscussedinanappellatecourtinTasmania.

at3:Thiscaseillustratestheimportanceofcounselatthesentencinghearingpointingto materialtendingtoestablishabackgroundofdeprivationifsuchdeprivationistoberelied uponasamatterinmitigation.Counselfortheappellantwasnotcounselatthesentencing hearingand,ashighlightedbyJagoJ,therewasscantandinadequatematerialaboutthe appellant'sbackgroundthatcounselfortheappellantcoulddrawuponinthisregard.

at4:Suchabackground,ifshown,isundoubtedlyrelevantandmayoperatetomitigatethe sentence.InBugmy,thepluralityjudgmentat[40]notedthat:

"Thecircumstancethatanoffenderhasbeenraisedinacommunitysurroundedbyalcohol abuseandviolencemaymitigatethesentencebecausehisorhermoralculpabilityislikelyto belessthantheculpabilityofanoffenderwhoseformativeyearshavenotbeenmarredin thatway.

Banfieldcont.

AffirmsBugmyvTheQueen[2013]249CLR571

FirsttimeBugmyhasbeendiscussedinanappellatecourtinTasmania.

at5:Thejudgmentwentontonoteat[43]thatsuchanenvironmentmayleaveitsmark onapersonthroughoutlife.Amongotherthings,abackgroundofthatkindmay compromiseaperson'scapacitytomatureandtolearnfromexperience.

at6:ThepluralityjudgmentinBugmymadeitplainthattheeffectsofprofound childhooddeprivationdonotdiminishwiththepassageoftimeandremainrelevant notwithstandingthatthepersonhasalonghistoryofoffending.Itwasstatedthat becauseofthis,itisrighttospeakofgiving"fullweight"toanoffender'sdeprived backgroundineverysentencingdecision.Thispropositionwouldhaveparticular relevancetothiscasebecausetheappellantisamatureoffenderwithalonghistoryof offending.

Banfieldcont.

EstablishingthatBugmyapplies:

WoodJat9:WhiletheBugmyprincipleswerecorrectlyreferredtoinsubmissions onappeal,materialshowingchildhooddeprivationhadnotbeenplacedbeforethe learnedsentencingjudge.Asaresult,thiswasnotacasewheretheprinciples referredtowereenlivened.

JagoJat33:Astotheimpactoftheappellant'sbackgroundonthesentence,it mustberememberedthatinanycaseinwhichitissoughttorelyonanoffender's backgroundofdeprivationinmitigationofsentence,itisnecessarytopointto materialtendingtoestablishthatbackground(BugmyvTheQueen[2013]HCA 37;[2013]249CLR571at594).

www.publicdefenders.nsw.gov.au/barbook

Anincredibleresource,albeitNSWbased,butapplicable Australia-wide-coveringindetailtopicsrelevanttoBugmy, includingFetalAlcoholSpectrumDisorder,exposuretoFV, Incarcerationofaparentorcaregiver,interruptedschool attendanceandsuspension,outofhomecare,childhoodsexual abuse,earlyexposuretoalcoholandotherdrugabuse,stolen generationanddescendants,acquiredbraininjury,hearing impairment,homelessness,unemployment,cultural dispossession,socialexclusion,lowsocioeconomicstatus, refugeebackgroundetc.

It is trite but the role of defence counsel is to get the least punitive measure available.

It is the responsibility of solicitors and counsel, not of the court, to ensure that all necessary submissions and evidence in mitigation of penalty are placed before the court. (Banfield v Tasmania [2024] TASCCA 1)

The role of counsel is not one of simply being a mouthpiece for the client.

PLEAINMITIGATION ANOVERVIEW

The Topic

This session addresses the considerations of advocating following a plea of guilty. In this session we aim to explore ethical and professional obligations in presenting a plea in mitigation to the court.

The session will cover:

• Key considerations in advocating in a plea in mitigation.

• The ethical obligations and duty of care as an advocate in criminal proceedings.

Introduction

From a court’s perspective, a plea in mitigation is a crucially important aspect of the sentencing hearing.

It is trite but the role of defence counsel is to get the least punitive measure available.

It is the responsibility of solicitors and counsel, not of the court, to ensure that all necessary submissions and evidence in mitigation of penalty are placed before the court.

(Banfield v Tasmania [2024] TASCCA 1)

The role of counsel not one of simply being a mouthpiece for the client.

The points covered today are a simply a guide to address your mind to certain points. You will not need to address all these points in each plea. In some cases, you will not need to address many of these points. But you must assess for yourself whether each point has relevance in your case.

Make your plea, wherever possible, an engaging narrative, constructive, balanced, and something that lets the court write down a pathway to what you want and, above all, be persuasive in achieving the proper sentence.

After instructions/or advice to plead guilty are given.

A plea of guilty is a solemn confession of the ingredients of the crime and an admission of all the facts essential to the offence.1 A finding of guilt is, likewise, a finding that the elements of the offence have been made out, not the particulars or all facts surrounding the offence.

So are there any disputes on the facts to be asserted. Identify any disputes: Are they material? Is there an explanation for different versions? What evidence is there in support of alternative versions? Does the statement of facts fairly relate aggravating and mitigating factors.

Preparation for sentencing hearing:

The preparation for a sentencing hearing is of upmost importance. Taking instructions, not being told things by the client, that include the following (where applicable).

Personal circumstances:

o Age, marital status & dependents, residence, employment status and history, family history if relevant - Bugmy

o Prior criminal history; Is there a breach of a suspended sentence? Or undertaking? Are there gaps in offending?

o Impact of potential penalty on client and others

o Suitability for community service, capacity to pay fines, need for supervision (where appropriate).

Response to charge

o Was it an early plea of guilty, were there admissions, is there evidence of remorse (don’t make the bold assertion unless there is evidence of it). Was there cooperation. What was the response to offending – an apology or booked into course?

Subjective matters

o Explanation for offending; disinhibited by alcohol (is this mitigating or making it worse), provocation, personal use (drugs), opportunistic/spur of the moment, voluntarily ceased the conduct, assistance to police, personal crisis, out of character etc. Basis of criminal responsibility;

Aims of sentencing

o What aims are at play? What is the focus?

• Retribution/punishment

• General Deterrence

• Specific Deterrence

• Rehabilitation - Rehabilitation efforts

Make a habit of actually browsing through Warner/ CCA and getting comfortable and familiar with the PROPER use of sentencing law terminology.

Obtain collateral information:

o Psychiatric or psychological reports

o Medical reports.

o Counselling or courses reports.

o References – character and work history. It should be apparent on the face of the reference that the referee is aware of the crimes and that the reference is for Court purposes. A glowing reference from an independent person of good character is worth many from close mates and family.2

o Obtain any victim impact statement or pre-sentence reports and take instructions from the client.

o Consider do you need a PSR – will it assist?

o How is he/she going on any current order or any past order – talk to Community Corrections to see how they are going/gone.

o Time in custody – contact TPS – have the days, date to backdate.

o What have they done in custody? 2 Fama

What is your realistic destination?

After considering all above what is it you want or are aiming for. Aim is to get best result open to the Court. Clearly say in simple language what they should get at the end and have a pathway to why it is appropriate or supported.

If you are aiming for no conviction or home detention or a fine, prepare with that in mind but be realistic. Needs to be realistic – consequence of indicating unrealistic outcome – reflects poorly and perhaps on your client’s understanding of the seriousness of their conduct.

Presenting a plea in mitigation

On the day, have your own style, don’t copy. Develop a structure that works for you “logical brackets” . But if you hear someone use a line in a plea in mitigation that you like copy that mercilessly - if it went down well with the bench.

A plea in mitigation is your responsibility it is not one that should be sought to be given to Community corrections. DO NOT RELY ON A PSR TO DO YOUR WORK.

Speak clearly and to the bench - it is not engaging watching someone look at a phone or computer.

Consider the use of phrases like “my instructions”, or “the defendant…’’.

If you have material to tender during your plea in mitigation provide it to prosecution before and then highlight portions you rely on to the court after allowing it to be read

You may consider a structure that includes:

o Introduction – (depend on your audience /experience)

• Signal the result being aimed for, and then in plea enumerate reasons why; ie “fall short of actual imprisonment” or do you weave your aim into your plea?

o Background of accused/defendant – humanise your client The aim is to set scene and help the court understand motivations etc. Relevant information includes:

• Age.

• Family background.

• Educational history.

• Work history.

• Relationships.

• Dependants.

• Health issues (including mental health).

• Substance abuse issues.

• Financial details (if a fine is the penalty sought or is realistically open)

o Offence itself

▪ Explanation for offences or say nothing.

▪ Response to offence.

▪ Whether offence is out of character by reference to prior matters and background generally.

o What has happened since the offence:

▪ Rehabilitation efforts – counselling, medical/psychological interventions

▪ change of peer group; sold car.

▪ Reparation efforts – where applicable.

▪ Future focus – point to matters that can help assure the Court that there will not be a repeat of the conduct.

o Summary (do you need to / would it diminish early points)

▪ Briefly summarise key mitigating factors and why the outcome you are advocating for the client is appropriate.

▪ Refer to relevant law and sentencing precedents where necessary to justify the approach being sought.

Do not make a plea in aggravation:

• Think carefully about what you say.