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[2001] TASSC 26
respondent. Appeal dismissed; original sentences of 4 years (Maynard) and 4½ years (Devine) for aggravated armed robbery were not altered by the Court of Criminal Appeal [Order of the Court; Reasons for...
The Attorney-General appealed sentences of 4 and 4½ years for aggravated armed robbery as manifestly inadequate. The Court held that appellate interference requires a high threshold: the sentence must be so disproportionate or plainly wrong that the sentencing judge's discretion must have miscarried. Although the offences were serious and the sentences at the low end of the appropriate range, the sentences were within the exercise of discretion and could not be upset, especially because subsequent convictions and cumulative sentences raised totality issues. The Crown appeal was dismissed.
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1,665 words · generated 20/07/2026
Maynard and Devine were convicted of aggravated armed robbery and sentenced to imprisonment: Maynard to 4 years and Devine to 4½ years [2]. The facts of the robbery were elevated in seriousness. The respondents went armed to commercial premises, confronted the staff manager as he disengaged the alarm, brandished a shotgun and a crow bar, placed the shotgun against the manager's face, forced him to lie on the floor with his hands behind his back, compelled him to open the safe and took $9,100, bound and hooded him, and threatened that a bomb would detonate in five minutes as they left [4]. The manager suffered severe and lasting health effects and could not continue his employment [5].
No linked legislation citations have been extracted yet.
The respondents were arrested shortly after the robbery and prosecuted; little or no mitigation was available from plea, cooperation or remorse and the offending was planned and calculated [6]. Maynard received a slightly lesser sentence due to a less serious prior record and the existence of an injury which impacted on the effect of imprisonment, following principles discussed in Smith (as referred to by the Court) [3].
Her Majesty's Attorney-General appealed to the Court of Criminal Appeal, arguing that the sentences were manifestly inadequate (a Crown appeal on sentence). The Court heard the appeal on 7 March 2001 and delivered reasons on 15 March 2001, dismissing the appeal [1; Order of the Court].
Subsequent to the original sentencing, Maynard was sentenced on three occasions to additional and cumulative terms for assault and drug trafficking, and in March 2001 both respondents were convicted of further violent crimes including abduction and terrorising; they were remanded for sentence two days after the appeal hearing [12-13]. These subsequent events were material to the Court’s assessment because they raised the principle of totality and the potential disruption an increased sentence might cause to the aggregate sentencing outcome [12-15].
Three principal strands of reasoning led the Court to dismiss the Crown appeal.
Appellate standard for Crown appeals: The Court emphasised appellate restraint in sentencing appeals. It recited the authorities stating that Crown appeals from sentence are not free-standing permissions to re-sentence, but require identification of error by the sentencing judge or a result so manifestly unreasonable or plainly wrong that the appellate court can infer a miscarriage of discretion. The Court quoted Dinsdale (Kirby J) to describe that threshold: appellate intervention is available where the resulting order is "so disproportionate ... as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried" [10]. The Court also referenced Griffiths and Everett for principles governing Crown appeals and their application in the jurisdiction [9].
Discretionary sentencing and range of acceptable outcomes: The Court treated sentencing as a discretionary exercise. It observed that the range of penalties for armed robbery in this jurisdiction has been stated as up to six years (Devine v R), and acknowledged that the sentences imposed were at the lower end of the appropriate scale but were not necessarily outside the discretionary range. That is, leniency alone does not establish manifest inadequacy [11,16].
Totality and subsequent offending: The decisive factor in refusing to increase the sentences was the existence of subsequent convictions and cumulative sentences which had been imposed after the robbery. The Court recognised the totality principle and the practical difficulties in increasing an earlier sentence where it could affect the overall quantum of punishment already imposed or to be imposed. The Court cited Allpass for the proposition that an appellate court has an overriding discretion and may decline to increase a sentence even if it thinks error occurred in the original sentencing [12-15]. Given that Maynard had received additional cumulative sentences and both respondents faced imminent further sentencing, the Court concluded that interfering would risk upsetting an appropriate total sentence structure [12-15].
The combination of appellate restraint, the sentences falling within the permissible discretionary range, and the material subsequent events leading to totality concerns persuaded the Court to dismiss the appeal despite expressing that the sentences were lenient [11,12,16].
Before this decision, settled appellate law required a high threshold for intervention in sentencing appeals, particularly Crown appeals. The Court relied on High Court authorities (Griffiths; Everett) and recent authority (Dinsdale) describing the manifest inadequacy test for appellate interference in discretionary sentencing [9-10]. The Court also applied jurisdictional precedent on sentencing ranges for armed robbery (Devine v R) [11].
This decision applies those existing principles to the facts: it reaffirms that the Crown must establish error of principle or a result so manifestly unreasonable that it warrants interference; the existence of later sentences and the totality principle may counsel an appellate court to exercise its discretion to decline to increase an earlier sentence even where leniency is apparent [12-15]. The decision therefore maintains the status quo: appellate courts will be cautious about upsetting discretionary sentencing outcomes, and totality is a powerful consideration when subsequent sentences exist.
The judgment does not alter the legal tests; it exemplifies their application where subsequent conduct and sentences intervene between the original sentence and the Crown appeal.
Paragraph 10 (quoting Kirby J in Dinsdale): The Court highlights that appellate courts will sometimes have to infer that a sentencing judge made an error if the sentence is so unreasonable or plainly wrong, but that inference is only available in the most glaring cases. Plain English: appellate courts only step in for sentencing when the sentence is obviously and glaringly wrong; mere disagreement about severity is not enough.
Paragraph 11: "The range of penalties for the crime of armed robbery has been stated as being up to 6 years ... although these sentences ... could have been greater, their length does not necessarily disclose error ..." Plain English: even if precedent allows higher sentences, a lower sentence that is within the judge's reasonable assessment is not automatically invalid.
Paragraphs 12-13: The Court stresses that Maynard received further cumulative sentences after the robbery and that both were convicted of further violent crimes and remanded for sentence two days after the appeal. Plain English: events after the original sentence matter; if more punishment has already been or will shortly be imposed, raising the earlier sentence may make the overall punishment excessive, so the court must be careful.
Paragraph 16: "The sentences imposed were lenient ... However, we remained unpersuaded that the appeal should have been upheld." Plain English: although the Court thought the sentences were on the light side, it did not find legal grounds to overturn them.
This decision will be directly relevant where:
Thus, the precedent is most potent when appellate intervention would complicate or undermine a just overall sentencing structure because of later, cumulative penalties. Where no subsequent sentencing events intervene, the Court conceded the Attorney-General might have had a stronger case to challenge disproportionality [11-12].
The judgment itself cites earlier authorities (Griffiths, Everett, Dinsdale, Devine v R, Allpass) as the governing law [9-11,14]. The present reasons apply those authorities rather than creating new law. The Court explicitly relied on the existing appellate standards and totality principle. The judgment does not record or discuss any subsequent appellate treatment of this particular decision. From the document alone, one cannot assert how later courts have treated Her Majesty's Attorney-General v Maynard & Devine; the decision functions as an application of established High Court and appellate principles to a particular factual matrix rather than as a novel precedent redefining the law.
From the text of the judgment, several practical and doctrinal questions remain for future cases:
When is subsequent offending sufficiently linked in time and character to the original sentence to justify declining to increase that sentence on crown appeal? The Court treated the immediate imposition of additional cumulative sentences and imminent further sentencing as decisive, but precise boundaries remain a fact-sensitive exercise [12-13].
How should appellate courts quantify the risk of disrupting aggregate sentencing when contemplating an increase to an earlier sentence? The Court emphasised the overriding discretion of an appellate court to decline to increase a sentence (Allpass), but did not specify a structured methodology for weighing the relative injustice of leaving an earlier sentence unadjusted against the injustice of rendering the overall sentence excessive [14].
To what extent should the manifest inadequacy standard accommodate cases where the original sentencing judge failed to address relevant aggravating factors? This appeal emphasised that the sentences were lenient but within range; future instances where sentencing reasons omit essential considerations may present clearer bases for appellate intervention.
How should appellate courts approach Crown appeals where the Crown's formulation of 'manifest inadequacy' is expressed as a categorical statement (as in para 8) rather than a demonstration of specific legal error in the sentencing process? The Court summarised the Crown's submission but required more than categorical assertion to meet the Dinsdale standard [8-10].
The case underscores the interaction between parity/disparity adjustments (Maynard's lesser sentence due to injury and record) and overall proportionality. Future authorities will need to address when disparities between co-offenders, combined with other mitigating factors, cross the line into manifest inadequacy.
These questions are left open for resolution in future cases, to be decided on their particular facts and in light of the established high threshold for appellate interference in sentencing.
CITATION: Her Majesty's Attorney-General v Maynard & Devine [2001] TASSC 26
Judgment Number: [2001] TASSC 26
HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v
JUSTIN RICHARD MAYNARD and CRAIG ANTHONY DEVINE
HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v
JUSTIN RICHARD MAYNARD and CRAIG ANTHONY DEVINE
1 On 7 March 2001, the Court dismissed the appeal for reasons to be published later. These are the reasons.
2 The respondents were sentenced to a term of imprisonment for periods of 4 and 4½ years' respectively, following their convictions for the crime of aggravated armed robbery.
3 No question of parity arises. Maynard received the lesser sentence because of a slightly less serious record of prior convictions and the existence of an injury which impacted on the effect of imprisonment, a course permitted in accordance with the principles stated in Smith (1987) 27 A Crim R 315. Had more severe penalties been imposed on each, no criticism could be made of the sentences on the basis that they were manifestly excessive.
4 The crime was serious. The respondents went armed to commercial premises and waited for the staff manager to disengage the alarm system when they confronted him by brandishing a shotgun and a crow bar. The manager had the shotgun placed against his face and was forced to lie on the floor with his hands behind his back. He was then forced to open the safe from which $9,100 was taken. The manager was bound and a bag placed over his head. As he began to free his hands, one of the respondents returned and retaped his hands. As they left, one of the assailants said, "Set the bomb, the bomb's going off in 5 minutes".
5 The effects on the health of the manager have been severe and long lasting and he has been unable to continue with his employment with the company from whom the money was taken.
6 The respondents were arrested shortly after the robbery and a strong case assembled against them. No benefit arose because of plea, co-operation or remorse. The crime was planned and performed in a calculated manner. Apart from the medical condition of Maynard caused by an event occurring subsequent to the robbery, there were few mitigating matters.
7 A sentence of 6 years' imprisonment for Devine with some small allowance made for disparity for Maynard could not be said to be unreasonable.
8 Two matters persuaded us to dismiss the Attorney-General's appeal. The first is that this was a Crown appeal and the suggested error of principle identified was that of manifest inadequacy. That principle, as articulated by counsel is that:
... a sentence of imprisonment of 4 or 4½ years, making allowance for disparity, in a case of persons with prior convictions for armed or aggravated armed robbery who re-offend whilst armed in a planned robbery and who cause harm to another is itself manifestly inadequate."
9 The principles governing the disposition of a Crown appeal have been stated by the High Court in Griffiths v R (1977) 137 CLR 392; Everett v R [1994] HCA 49; (1994) 181 CLR 295 and applied in this jurisdiction in R v Harland-White 23/1997.
10 The imposition of the sentences by the learned trial judge was a discretionary exercise. The identification of error is as that stated by Kirby J (with whom Gaudron and Gummow JJ agreed) in Dinsdale v R [2000] HCA 54; (2000) 74 ALJR 1538 when he said, at 1549, par59:
"As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried."
11 The range of penalties for the crime of armed robbery has been stated as being up to 6 years (Devine v R (1993) 2 Tas R 458) and although these sentences, whilst at the lower end of the appropriate scale, could have been greater, their length does not necessarily disclose error in the manner stated in Dinsdale.
12 Had the question of disproportionality been the only matter raised by this appeal, it is possible that the Attorney's appeal might have been upheld. But of greater import are events which have occurred subsequent to sentence, and which bring into consideration the issue of totality. On three occasions following the sentences imposed in May 2000, Maynard was sentenced to additional and cumulative sentences of imprisonment for crimes of assault and drug trafficking. On each occasion the sentence imposed was stated as being less than would have been warranted because of the existence of this sentence.
13 In each case, regard was had to the principle of totality. An increase in this sentence could have an impact on a process already undertaken. That alone might not have created complexity. However, in March 2001, the respondents were convicted of a series of violent crimes which included the abduction and terrorising of an innocent person. They were remanded for sentence until 9 March, two days following the hearing of this appeal. The sentencing judge was required to pay regard to the sum of existing sentences in any consideration of the relevant sentence insofar as the issue of totality is raised.
14 In Allpass v R (1994) 73 A Crim R 561, the New South Wales Court of Criminal Appeal considered the principles relevant to Crown appeals. In its joint judgment at 562 - 563, the court stated:
"An appellate court has an overriding discretion which may lead it to decline to increase, even if it comes to the conclusion that error has been shown in the original sentencing process."
15 Maynard is aged 28 and Devine 31. Their records show that rehabilitation is not relevant to any imposition of sentence. Factors of retribution and removal from the community are significant matters. In consideration of these matters, the question of totality remains an issue. That principle of sentencing was considered in the three hearings concerning Maynard and as of the date of dismissal of this appeal required resolution at the sentencing hearing two days later.
16 The sentences imposed were lenient and certainly at the lowest end of the range of penalties appropriate for the circumstances of this crime and these offenders. However, we remained unpersuaded that the appeal should have been upheld.
Her Majesty's Attorney-General
Maynard & Devine [2001] TASSC 26
(1977) 137 CLR 392
(1994) 181 CLR 295
(2000) 74 ALJR 1538
(1993) 2 Tas R 458
Appeal dismissed; original sentences of 4 years (Maynard) and 4½ years (Devine) for aggravated armed robbery were not altered by the Court of Criminal Appeal [Order of the Court; Reasons for Judgment].