Supreme Court of Tasmania|2002-12-23|Before: Blow JJ, Slicer J, Evans J

Attorney-General for Tasmania v McDonald [2002] TASSC 120 (23 December 2002)

CITATION: Attorney-General for the State of Tasmania v McDonald [2002] TASSC 120

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other Crown Law officer - Application to increase sentence - Offences against the person - Wounding.

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other Crown Law officer - Other matters - Re-sentencing - Double jeopardy.

R v Harland-White 23/1997; R v Meers and Moles 32/1998; Attorney-General v B [2002] TASSC 63; R v Hayes (1987) 29 A Crim R 452; R v Allpass (1993) 72 A Crim R 561; R v Clarke [1996] VICSC 30; [1996] 2 VR 520, referred to.

Judgment Number: [2002] TASSC 120

1 The appellant, by the sole ground of appeal that a sentence imposed:

"... was manifestly inadequate having regard to all the circumstances of the case"

(1) the adequacy of a sentence of 18 months for the crime of wounding by reference to the existing range of penalties, the individual characteristics of the offender and his manner of inflicting harm to another;

(2) implicit in the submission is the contention that sentences imposed for the type of violence which is the subject of this review are generally too lenient and are an inadequate response to the nature of the violence;

(3) whether this Court, upon the upholding of a Crown appeal against sentence, is either permitted or required to afford the respondent in its re-sentencing, a discount which takes into account the nature of the appeal.

Comparable inadequacy, consistency and individualisation of sentencing

2 The respondent was charged with one count of wounding, contrary to the Criminal Code, s172, following an attack on another person in a hotel in the early hours of 1 June 2002. The complaint, to which the respondent pleaded guilty, alleged an act of wounding:

"... Kenneth Albert Ransley by striking him to the face and neck area with a broken glass."

The conduct involved more than one act of striking, but they can properly be taken into account as either a component of the wounding or surrounding circumstances.

3 During the early hours of 1 June 2002, the respondent was drinking at a Launceston hotel. He became involved in an argument with the complainant which had its origin in an earlier argument between the respondent and a member of the complainant's party. The facts, as stated by Crown counsel, were that during the argument:

"Without any physical provocation, this Accused punched Mr Ransley to the head on several occasions and smashed a glass and struck the Complainant three times with that."

Counsel for the respondent referred to the incident in his plea in mitigation in only general terms, stating that the respondent had little memory of the events. In his comments on passing sentence, the learned sentencing judge stated:

"When engaged in a drunken argument in a hotel you apparently lost your temper. In any event, without physical provocation you punched a man in the head several times and then smashed a glass and struck him with it three times in the face and neck. You were only stopped by security men."

4 The learned Director of Public Prosecutions contended that the attack was unprovoked and involved a degree of forethought in that the respondent had time to punch, obtain a glass, smash it and return to the attack. These matters are said to take the nature of the attack away from the ordinary and all too common "hotel glass" wounding. The finding of the learned sentencing judge replicated the statement of the prosecution counsel. It was not open for him to find that the attack was unprovoked since he did not have sufficient material from either party. His finding "without physical provocation" reflected a dismissal of the mixed provocation/disproportionate self-defence scenario, but not that the verbal exchange did not play a part in the physical attack. Likewise, on the material put before him, the learned sentencing judge was precluded from finding that there was a delay, and hence opportunity for thought, in the obtaining of the glass. The glass might have been held in the other hand or, more likely, within ready reach. Certainly the breaking of the glass displayed a conscious decision to harm, but such may have been instantaneous. The form of the attack did not substantially remove the circumstances from the ordinary.

5 The injuries inflicted on the complainant were serious and dangerous to life and health.

6 The learned sentencing judge was required to sentence the offender for the crime of wounding, albeit one with aggravating features. He was not entitled to sentence as if the matter was one subject to the Code, s170, (R v De Simoni [1981] HCA 31; (1981) 147 CLR 383).

7 Examination of comparable sentences and their range does not show the sentence to be outside the permitted range, or depart from such range by such a degree as to "manifest inadequacy". This was not a planned attack involving home invasion (Meers and Moles v R (1998) 101 A Crim R 329), committed in the course of the commission of a crime (Bennett v R 17/1990) or domestic violence (Brown v R 15/1987; Solia, Wright J 27/11/1995). Between 1978 and 2000, the median range for single count woundings has varied between 6 and 18 months' imprisonment and, assuming the conduct has equated with multiple counts, the median ranged between 6 months and 2 years, 3 months' imprisonment (Warner, Sentencing in Tasmania 2 ed, 11.306). Recognising the danger in relying on the median calculation (Burton v R [2002] TASSC 64), the range of penalties is still useful in determining whether as a basis for an appeal the sentence, of itself, shows undefined error (Franklin v R 82/1991).

8 The concurrent proposition advanced by the appellant was that the form of the attack together with a previous vicious act of violence, showed an inherent trait of violence which warranted the imposition of a more severe penalty. The offender, aged 22, had been convicted of the crime of assault, committed in company, when he was aged 19. The learned sentencing judge, who had previously sentenced the respondent for that crime, was well aware of the circumstances of the prior act of violence. In his comments on passing sentence pronounced in July 2000, he stated:

"You pursued a man who was attempting to flee and kicked him viciously to the head as he stumbled. When he was on the ground and semi-conscious, you kicked him in the head nine times. I found the video recording of your crime horrifying and sickening to watch. Nothing of what you believed had occurred earlier could justify what you did. You are aged 19. Only a month earlier, for crimes of dishonesty, I sentenced you to four months' imprisonment all of which was suspended upon condition that you be of good behaviour for 12 months. You breached that condition when you committed this crime. You had in fact been in custody for three months at the time I sentenced you and that experience apparently did little to deter you from committing crime. Your upbringing has been an extremely difficult one for you. You do have talents. It is a great pity that you have not used them. You were in custody for this crime from 3 March to 17 April but that counts for little because for almost all of that time you were serving another sentence of imprisonment for motor vehicle stealing."

9 On this hearing his Honour had before him the following material concerning the offender:

(1) he had lived with his mother in women's shelters between the ages of 8 and 15;

(2) he and his mother had been subjected to frequent acts of violence, one of which involved the threat with a firearm;

(3) when he returned to Tasmania at the age of 18, he commenced and continued to be enrolled in a writer's course and displays talent and has had some work published;

(4) he became involved in alcohol abuse at the age of 15 and amphetamine abuse some two years previous;

(5) he had (presumably whilst in prison) been involved in "anger management courses, alcohol and drug counselling and ... a course involving alternatives to violence".

10 The material did not require the learned sentencing judge to regard the offender as possessing an inherently and set violent or vicious disposition. The age, background, and record of the respondent suggests that, at least, he is not beyond change. It is not yet possible to safely conclude that his pattern of behaviour is set. This factor does not require this Court to regard the case as out of the ordinary.

11 The appellant is entitled to contend that an individual approach be taken but, consistent with Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321, accommodate the requirements of consistency (Smith v Jessup [1986] TASSC 78; [1986] Tas R 219) and proportionality (Veen v R [1979] HCA 7; (1980) 143 CLR 458; Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465; Lowe v R [1984] HCA 46; (1984) 154 CLR 606).

12 This is a Crown appeal. Notwithstanding the amendment to the Code, s401, which affects the status of the appeal, there remains a responsibility to pay regard to legal principle governing appeals of this nature (Griffiths v R [1977] HCA 44; (1977) 137 CLR 293; Malvaso v R [1989] HCA 58; (1989) 168 CLR 227; Everett and Phillips v R [1994] HCA 49; (1994) 181 CLR 295; R v Harland-White 23/1997).

13 Implicit in the submissions of the learned Director of Public Prosecutions is a critique that the range of penalties imposed in relation to these forms of mindless violence is too lenient. The submission included a clear statement that the penalty appropriate in this case was one of three years' imprisonment. However, this appeal is not an appropriate vehicle for a review, nor did the appellant seek to place relevant material before the Court in support of such a review. Review ought result in incremental, rather than substantial, change, dependent on an isolated case. (R v Barber (1976) 14 SASR 388; Poyner v R (1986) 66 ALR 264, cf Devine v R (1993) 2 Tas R 458.)

14 Given my conclusion in relation to the disposition of this appeal, it is not necessary to consider this portion of the argument. However, in deference to the wider significance of the issue and the request of the Director that he sought clarification of the issue, it is appropriate to consider the relevant principles and their impact on a Crown appeal.

15 The Crown contends that in the event that a Crown appeal succeeds, the re-sentencing ought be determined in accordance with the usual principles and should not take into account the fact that it is a Crown appeal. The contention is made on two bases:

16 Following the decision of the High Court in Everett and Phillips v R (supra), Parliament amended the provisions of the Code, s401(2)(c), so as to remove the requirement that a Crown appeal against sentence could only proceed with the leave of this Court. The consequences of that amendment were considered by this Court in R v Harland-White (supra). The Code, s402(4), relevantly provides:

"On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

17 In my opinion, the provision does not restrict the Court from paying regard to sentencing principles which have been developed over a long period of time. It contains nothing which precludes application of principle or requires that a Crown appeal should be dealt with in the same way as one brought by a citizen. The criminal law has long recognised the difference between a prosecution brought by the State and the defence conducted by an individual. The process of re-sentencing can take into account matters arising subsequent to the original imposition of sentence. (See generally R v Stanley (1998) 7 Tas R 357.)

18 In the event of a successful appeal by a convicted person on a ground of identified error, this Court remains precluded from imposing a more severe sentence on the offender, irrespective of the terms of s402(4), (R v Craig (1967) 51 Cr App R 8; the Code, s409(2), cf Criminal Appeal Act 1907 (UK), s4(3) - power "to pass such other sentence ... (whether more or less severe)" Archbold 24 ed, 307. The fact that the Crown has brought the appeal could be regarded as such a matter. The Code does not proscribe it. The section permits an unfettered discretion to vary the sentence following a successful appeal brought by the Attorney-General (Whittaker v The King [1928] HCA 28; (1928) 41 CLR 230; R v Watson [1962] Qd R 418. See Criminal Code (Qld), s669A, discussed in detail by Underwood J in Dowie [1989] TASSC 44; (1989) 42 A Crim R 234 at 240 - 241).

19 Historically, the Crown could not appeal against sentence (Crown Cases Act 1848 (UK); Criminal Appeal Act 1907 (UK), s3). It may be that this led courts to use the term "double jeopardy" as the rationale for allowing some discount in the event of a successful Crown appeal. The right of the Attorney-General to appeal by leave of the Court against sentence has always been afforded by the Code. Two principles have been intermixed. The first (presumably created by the necessity to obtain leave) is that, for reasons of policy, there is a requirement for the Attorney-General to either show restraint in appealing against sentence (R v Harland-White (supra)) or ought be subject to greater scrutiny in any upholding of an appeal (Griffiths; Malvaso; Everett and Phillips (supra)). That, in turn, might come from the approach of "frugality of punishment" (Warner, 3.302) referred to in cases such as Webb v O'Sullivan [1952] SASR 65; Moyse v R (1988) 38 A Crim R 169, or reflect "society's respect for the liberty and physical integrity of the offender" (Brennan J in Channon v R (1978) 33 FLR 433).

20 The second is that upon re-sentence, an offender is entitled to the benefit of the fact that it was a Crown appeal (R v Harland-White (supra); R v Clarke [1996] VICSC 30; [1996] 2 VR 520; R v Tait and Bartley (1979) 24 ALR 473).

21 In Harland-White, Wright J seems to have preferred that the preliminary question of appeal ought remain within the discretion of the Crown which is expected to exercise its right sparingly and the special treatment afforded to a respondent be exercised (as an acceptable historic anomaly) at the stage of re-sentence. In Clarke Charles JA gave effect to both propositions. In Holder [1983] 3 NSWLR 245, Street CJ referred to the question of a second opportunity when he said, at 255:

"It is in this ultimate discretionary field that considerations of what has been called double jeopardy are of particular relevance. Within this field, also, the court's understandable reluctance to detect manifest inadequacy may be given, so to speak, a second opportunity of operating in the convicted person's favour. I forbear from citing examples of the exercise of this discretion in favour of a convicted person lest in so doing they could be thought to have some controlling significance in a general sense. The discretion, where it is exercised, necessitates an immediate and highly subjective assessment of the circumstances of the case in hand."

22 The learned Director of Public Prosecutions contends that an offender cannot receive the benefit of both statements of principle. The converse has equal validity. The Crown cannot claim that a Crown appeal ought be treated as equivalent to one brought by an offender and upon re-sentence the nature of the appeal ignored.

23 In Hayes (1987) 29 A Crim R 452, Kirby P (as he then was) considered the import of the reasoning in Tait (supra) stating, at 469:

"At the heart of the suggested difference between prisoner and Crown Appeals is the notion that, in a Crown Appeal, a prisoner suffers a species of 'double jeopardy' by reason of having twice to face the prospect of sentencing and possible loss of liberty. This is the way it was ultimately put in Tait (supra) drawing on the remarks of Isaacs J in Whittaker (supra). Of course, what is involved is not a true 'double jeopardy' (for the reasons analogous to those given by Cockburn CJ in Charlesworth (1861) 9 Cox CC 44 at p53): see also D O'Connor 'Criminal Appeals in Australia Before 1912' (1983) 7 Crim LJ 262 at 272. If the sentence was 'wrong' in the first place, it is upon the appeal that the only 'true' sentence according to law is passed. But in a practical sense, there is a species of double jeopardy. The prisoner's liberty, pocket and reputation are put in jeopardy both before the sentencing judge and before the appellate court; cf Wilton (1981) 28 SASR 362 at 367. In addition, the prisoner suffers the anxiety and stress caused by the situation of uncertainty arising from the delay in resolving his or her position. cf Carngham [1978] HCA 48; (1978) 140 CLR 487."

In Anderson (1987) 32 A Crim R 146, he seemed to expand the criteria by adding, at 151:

"Above all, it should not ignore the legitimate scope of mercy where the sentencing judge's sympathies have been reasonably attracted by the particular circumstances involving the prisoner and his offence. The particular advantages which the trial judge has in this connection must not be overlooked."

24 The reasoning of Kirby P permits resolution of the critique advanced on behalf of the appellant. The State has a general interest in the administration of justice and ought not pay particular regard to a specific individual unless that sentence impacts on public policy. The State, through either its executive officers or its judicial arm, ought not allow special or transient interests in a particular outcome distort that desired state of affairs. An individual offender has a specific (and legitimate) interest in a particular outcome and the principles governing those separate interests ought differ. There remains, despite historic anachronism, a proper need to accommodate the dichotomy.

25 There ought remain a distinction between the approach to appeals brought by the Crown and those of a citizen. The distinction can be justified in two ways. The first applies to a Crown appeal on the ground of manifest inadequacy. When an appeal court upholds an appeal on this ground it is entitled to re-sentence so that the sentence is no longer "manifestly inadequate". That might, in some circumstances, permit the imposition of a fresh sentence at the lower end of the appropriate range. The second distinction, grounded in policy, impacts at the stage of a grant or refusal of a Crown appeal and accords with the reasoning stated in cases such as Malvaso; Griffiths and Everett and Phillips (supra).

26 In the event of a successful Crown appeal, the fact that it is a Crown appeal ought not, of itself, constitute a basis for a reduction in sentence. But for the reasons given by Kirby P, it can be taken as a factor if it can be shown that the nature of the appeal has adversely impacted on the respondent.

27 In Dowie (supra), Underwood J cited an extract from an article Dismissal of Crown Appeals Despite Inadequacy of Sentence by F Rinaldi (1983) 7 Crim LJ 306, in which having analysed decisions in New South Wales where, despite identification of error, the court had refused to intervene, he concluded at 241:

"For convenience of exposition factors which courts have invoked to justify their refusal to disturb lenient sentences can be divided into five overlapping groups: (1) where there has been delay; (2) where an unappealed sentence imposed on a co-offender is seen to create a penalty ceiling; (3) where imposition of an appropriate sentence would offend the so called 'totality' principle; (4) where the inadequate sentence is seen to have a significant prospect of 'rehabilitating' the offender; (5) where imposition of the inadequate sentence was contributed to by lack of challenge by the Crown of sentencing facts submitted by the offender or seen to exist by the trial judge."

28 Factors 2, 4 and 5 would be relevant to the initial test governing the allowance or refusal of the appeal. Factors 1 and 3 might properly be determined at the stage of re-sentencing when the usual sentencing factors become relevant. In addition, the matters identified by Kirby P in Hayes and Anderson would be matters appropriate for the re-sentencing process.

29 The critique advanced on behalf of the appellant might go to the automatic allowance of discount solely by virtue of the nature of the appeal, a course followed in accordance with the Crown's submission, in Attorney-General v B [2002] TASSC 63.

30 In my opinion, a successful Crown appeal giving rise to a re-sentencing need not of itself warrant a reduction in the appropriate sentence, but an appellate court is permitted to take the nature of the appeal into account during the re-sentencing process.

32 The Attorney-General appeals on the basis that a sentence of 18 months' imprisonment imposed on the respondent upon his plea of guilty to one count of wounding contrary to the Criminal Code, s172, is manifestly inadequate.

33 Whilst the same principles apply to the determination of Crown appeals against sentence as apply to appeals by a defendant; it must not be forgotten that a Crown appeal raises considerations which are not present on a defendant's appeal; R v Dowie [1989] TASSC 44; [1989] Tas R 167 and R v Harland-White 23/1997. As to these special considerations, in Anderson (1987) 32 A Crim R 146, Kirby P at 151, said:

"In approaching its task, the appellate court should keep in mind the reasons for restraint which have marked the approach to Crown appeals of appellate courts in Australia, New Zealand, Canada and elsewhere. Above all, it should not ignore the legitimate scope of mercy where the sentencing judge's sympathies have been reasonably attracted by the particular circumstances involving the prisoner and his offence. The particular advantages which the trial judge has in this connection must not be overlooked."

34 In R v Osenkowski (1982) 30 SASR 212, King CJ at 212 - 213 said:

"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

35 An aspect of the Court's circumspection when considering a Crown appeal is the axiom that a defendant should receive the benefit of any doubt. In R v West [1979] Tas R 1, Crisp J, at 9 - 10, said of Crown appeals:

"Appeals of this description are rare and properly so, but happily there is no doubt as to the principles which should be applied. Subject perhaps to some difference in emphasis, whether the appeal be by the Crown or by the person convicted against severity the principles are the same. They were stated by the High Court in House v The Queen [1936] HCA 40; (1936) 55 CLR 499, at p 505, and repeated in Cranssen v The Queen [1936] HCA 42; (1936) 55 CLR 509, at p 519, and in Harris v The Queen (1954) 90 CLR 654. (After citing a passage from Harris his Honour continued.)

Where, however, the Court is asked to review an exercise of clemency while the principles remain unchanged there is likely to be some reluctance in their application in accordance with the general principle of resolving doubts in favour of one whose liberty is at stake."

36 The crime was committed on 2 June 2002 when the respondent, who was drinking in a bar, became involved in an argument with the complainant about an earlier verbal confrontation between the respondent and an associate of the complainant. Without any physical provocation, but inflamed I assume by their argument, the respondent punched the complainant and smashed a glass with which he struck the complainant three times and only desisted when restrained. The complainant received nine lacerations to his face and neck. He is left with scars for which he is to undergo plastic surgery. As the learned sentencing judge observed, the consequences of the attack could have been far worse; it could have resulted in loss of sight or death.

37 The respondent was 21 years of age when he committed the crime and he had a prior conviction for a serious assault on 1 March 2000 for which he was sentenced to six months' imprisonment. The respondent's counsel told the learned sentencing judge: that the respondent had been an alcohol consumer since he was 15 years of age, but that his life "really went into a tailspin" in early 2000 when he took to amphetamines; that the respondent had consumed a substantial quantity of alcohol when he committed the crime; and that the respondent, who was then in prison, had involved himself in courses for anger management and alternatives to violence and had obtained counselling for his abuse of alcohol and drugs.

38 Two references were put before the Court. One reference, from a couple, is as follows:

"We have known Kristian for two years, and during this time he has been a guest in our house many times - enjoying meals with our family - staying overnight on various occasions - and we can say with complete sincerity his company, honesty and committment are unquestionable attributes of which he should be proud and have added to our familie's respect for him.

Kristian, like many young men of his age has an abundance of energy which when channelled in the right directions can only lead to a better life for himself and consequently for the people whom have faith in him and his future. We know he has been devastated by the consequences of his latest actions and, given half the chance, know if he finds himself in a similar situation will take it on the chin and walk away with his pride intact and with his eye on the future.

My husband and I recommend Kristian and intend to help him get his life in order so that only the positives' remain and we are confident the committment which is intrinsic to his character will make a man of him of which his family, friends and the community can be proud."

39 The other reference, from a co-ordinator of the Launceston College Aboriginal Club includes the following:

"I have known Kristian for four years as a member of the Launceston College Aboriginal Arts and Education Club. Kristian is highly valued by the group for his literary contributions and the support he gives to younger members.

Kristian is a young man who has an impressive talent for writing. I have seen a room full of teachers silenced by the power of his writing. The editor of the Examiner was also sufficiently moved by reading his work to request permission to print it. Kristian's writing tells the story of a child growing up in an environment of substance abuse and violence. It explains graphically how this culture clashes with the prevailing school culture and creates a sense of alienation.

Kristian's analysis of his life indicates intelligence and the ability to critically reflect. His recent correspondence shows a growing sense of optimism and desire to move beyond a criminal lifestyle. His relationship with a supportive young woman and her family is helping him greatly. I believe he is beginning to appreciate that he is able to overcome the alienation he has suffered. He is also reviewing his former role models and making the judgement that while he can still love them as family members he does not, nor would they want him to, have to follow the course of life they chose in their youth.

The problems that Kristian has had with the Law have resulted mainly from alcohol abuse. I believe that his rehabilitation lies in overcoming this tendency to sometimes binge drink. When not under the influence he is a peaceful, reflective young man who gives guidance to younger children whom he fears are heading into the lifestyle he is endeavouring to abandon.

Having worked closely with Kristian I have confidence in his ability and inclination to make a useful contribution to society. I would go so far as to say that I believe he will make his mark in the Australian literary world."

40 What then is an appropriate penalty for the respondent's crime? A sentence of six months' imprisonment is commonly imposed for wounding by striking a person with a glass or the like in a bar or at a social gathering. This sort of offence usually involves an impetuous blow with an item which happens to be in the offender's hand at the relevant time. The respondent's conduct was far more serious than that which is usually involved in such offences. He apparently picked up the glass in the course of his attack on the complainant and struck the complainant with the glass three times. His conduct warranted a significantly greater penalty than a sentence of six months' imprisonment. As to the length of an appropriate sentence, I am assisted by Professor Warner's analysis of the sentences imposed for the crime of wounding since 1978 in her text, Sentencing in Tasmania, 2 ed, 11.305. For the period 1978 - 1989 the data on the crime of wounding and the crime of causing grievous bodily harm was combined. During this period, for a single count of either of these offences the median sentence was six months and the maximum sentence was three years. For the period 1990 - 2000 the data was collated separately in respect of the crimes of wounding and causing grievous bodily harm and shows that more severe sentences tended to be imposed for causing grievous bodily harm than for wounding. During this period the median sentence imposed for a single count of wounding was six months and the maximum sentence was two years.

41 Whilst the respondent's crime is serious and he has a bad prior conviction for an offence involving violence; he is a comparatively young man who has demonstrated some remorse and who, it seems from the references, is not beyond redemption. The learned sentencing judge sentenced the respondent to 18 months' imprisonment, a penalty towards the upper end of the range of sentences imposed for wounding over the past decade. I am unpersuaded that the circumstances of the respondent's crime are so exceptionally grave as to warrant the conclusion that this sentence is manifestly inadequate. I would dismiss the appeal.

42 I turn to the appellant's contention that where a Crown appeal against sentence succeeds, the re-sentencing court should not apply a discount in recognition of what is referred to in the authorities as the element of double jeopardy. Whilst, on the view that I have reached as to the outcome of the appeal it is not necessary for me to deal with this contention, I make these observations. I have empathy for the appellant's contention insofar as it seems from an examination of the authorities that on occasions too much weight has been given to the element of double jeopardy when a defendant has been re-sentenced. However, the contention is contrary to authority; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 341, Attorney-General v B [2002] TASSC 63, R v Jones [1999] TASSC 30 and R v Meers and Moles 32/1998, and if pursued to the point of an absolute bar on the consideration of the element of double jeopardy when re-sentencing, it is contrary to common sense. When a Crown appeal against a sentence is successful, the defendant is re-sentenced in the light of the facts and circumstances at the time of the re-sentencing; R v Allpass (1994) 72 A Crim R 561 and R v Meers and Moles (supra). It would be illogical to ignore evidence that a defendant has suffered as a consequence of being subjected to the strain of a successful Crown appeal against sentence but take into account evidence of other matters which had occurred since the defendant was initially sentenced. A consideration that a re-sentencing court should have in mind is the extent, if at all, to which the defendant has suffered as a consequence of being put through the sentencing process twice. Ordinarily, I would expect the extent of the defendant's suffering to be modest and the weight to be given to this consideration on re-sentencing to be similarly modest.

44 The appellant contends that the respondent's sentence of 18 months' imprisonment on a single charge of wounding was manifestly inadequate.

45 The crime in question was committed on 1 June 2002 at about 3.30am in a bar in Launceston. The respondent was drinking there. A group of other people was present. The respondent argued with one of that group, and later with another. He then punched that second man to the head on several occasions, smashed a glass, and struck him three times with it. The victim suffered nine lacerations to his face and neck.

46 There was little for the learned sentencing judge to take into account by way of mitigation. There was no physical provocation. The respondent had a terrible upbringing, involving violence and alcoholism. He pleaded guilty in the Magistrates Court less than eight weeks after being charged, but there is every indication that the case against him was very strong. He was only 21 years old, but he had already been sentenced to imprisonment on three occasions, and was therefore not entitled to the leniency afforded to a youthful first offender. His counsel said that whilst in prison he had undertaken anger management courses, alcohol counselling, and drug counselling, but it was not made clear whether these had been undertaken while serving his earlier sentences or while remanded in custody after committing this crime. Two written references were tendered. In one it was said that the respondent had been "devastated by the consequences of his latest actions", but it was not made clear whether his devastation resulted from concern for his victim or sorrow for himself. There was no other suggestion of remorse. The author of the other reference said the respondent was reviewing his former role models, and suggested that he was thinking he should live his life differently.

47 There were a number of aggravating features that made this crime a very serious one of its kind. It was committed in a public place. The respondent, having punched his victim several times, deliberately broke the glass in order to continue his attack. His victim had not been able to defend himself or retaliate. The respondent did not desist from his attack, but had to be stopped by security officers. The injuries that he inflicted could have been fatal, or caused blindness in one eye, or visual impairment. They resulted in permanent disfiguring. Plastic surgery was required.

48 Two years previously the respondent had been sentenced to six months' imprisonment for a vicious assault. He had pursued a man who was attempting to flee, kicked him viciously to the head as he stumbled, and kicked him to the head nine more times when he was on the ground and semi-conscious. Although the respondent has only one prior conviction for assault, he had twice been imprisoned for motor vehicle stealing, and had convictions relating to three burglaries, two drink driving offences, and one offence of driving while disqualified.

49 Wounding cases involving the infliction of facial injuries by hotel glasses used as weapons are not uncommon. A sentence of 18 months' imprisonment for such a crime is a long one in this State. Heavier sentences for the crime of wounding, contrary to the Criminal Code, s172, are most commonly appropriate for crimes involving premeditation and/or the use of a knife or a gun, rather than an impulsive crime involving the use of a hotel glass as an improvised weapon. It was submitted that this was such a bad case of its kind that a heavy sentence, outside the normal range for such crimes, was called for. It was not submitted that sentences for this sort of crime have been too low, and need to be heavier. That might be the case, but it would be inappropriate to decide that question as no argument was advanced in relation to it.

50 It is important to note that the respondent was not charged under the Criminal Code, s170 with committing an unlawful act intended to cause bodily harm. The wounding of another person will constitute that crime if accompanied by an intention "to maim, disfigure, or disable any person, or to do any grievous bodily harm to any person, or to resist or prevent the lawful arrest or detention of any person". A crime against s170 is generally regarded as worse than one against s172: Lovegrove v R [1961] Tas SR 106 at 107; R v Allen [1999] TASSC 112; Mansell v R [2001] TASSC 73 at par7. The respondent was sentenced without any suggestion that, at the time of the wounding, his acts were accompanied by any intention within the scope of s170.

51 I acknowledge the need for caution in Crown appeals; that occasions arise for the bringing of Crown appeals only in limited circumstances, such as where a sentence reveals such manifest inadequacy as to constitute an error in principle, or where a sentence is so disproportionate to the seriousness of the crime as to shock the public conscience; and that a Crown appeal against sentence should be allowed only if there is manifest inadequacy or if it is shown that the sentencing judge fell into material error of law or fact: R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522. However I am persuaded that, in all the circumstances, the sentence of 18 months' imprisonment in this case was so manifestly inadequate that this appeal should be allowed. Because of the severity of the injuries inflicted, and the risks of death, blindness and visual impairment, I think a sentence outside the normal range for a hotel-glass wounding was called for. Because of the similarly vicious assault committed by the respondent two years previously, I think there was a need for a heavy sentence for the purpose of personal deterrence.

52 The learned Director of Public Prosecutions submitted that, if the appeal was to be allowed and the respondent resentenced, this Court should not follow the authorities to the effect that a prisoner being resentenced following a successful Crown appeal should receive a shorter sentence than would have been appropriate at first instance to compensate for being in a situation sometimes described as "double jeopardy". He submitted that the practice of discounting the substituted sentence on that basis was a practice that had "grown like Topsy" without the support of High Court authority.

53 In its traditional sense, the term "double jeopardy" does not apply to the situation in which an unsuccessful respondent to a Crown appeal stands to be sentenced on a second occasion. Double jeopardy in the strict sense involves putting a person on trial for a second time in relation to an allegation that has been the subject of an earlier trial and verdict: R v Charlesworth (1861) 9 Cox CC 44 at 53; R v Hayes (1987) 29 A Crim R 452 per Kirby P at 469. However a prisoner in the respondent's position suffers in a similar way through having to face twice the prospect of sentencing and possible loss of liberty (or additional loss of liberty).

54 This sort of double jeopardy has been recognised in a number of cases as a factor weighing in favour of the dismissal of a Crown appeal against sentence: R v Tait (1979) 24 ALR 473; R v Wilton (1981) 28 SASR 362 at 367; R v Peterson [1984] WAR 329 per Burt CJ at 330; Rohde v Director of Public Prosecutions [1986] HCA 50; (1986) 161 CLR 119 per Deane J at 128; Hayes (supra) at 469; Attorney-General v Dowie [1989] TASSC 44; (1989) 42 A Crim R 234 per Underwood J (with whom Nettlefold J agreed) at 238 - 239. However the origins of the practice of applying a sentencing discount in the present circumstances are somewhat obscure. The earliest reference to the practice in a reported case, as far as I am aware, is in Hayes (supra) at 471, where Kirby P said:

"... in Crown Appeals the sentence on appeal will often be less than the judges would themselves have imposed if the matter had come before them at trial. This approach has been justified as compensating in some way for the disappointment inherent in a respondent's having his or her sentence challenged by the Crown and increased: see Moore (unreported, 21 October 1982, Court of Criminal Appeal) cited, F Rinaldi, Drug Offences In Australia: Vol 1 Sentencing (1986)."

55 In R v Allpass (1993) 72 A Crim R 561, the Court of Criminal Appeal of New South Wales (Gleeson CJ, Hunt CJ at CL and McInerney J) laid down, in a summary form, a number of principles relating to Crown appeals against sentence, including the following (at 562):

"3 If a Crown appeal against sentence is successful, and the appellate court resentences the respondent, it does so in the light of all the facts and circumstances as at the time of resentencing. Events which have occurred after the original sentencing may be relevant.

4 When, in response to a Crown appeal, the court decides to resentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance."

56 It seems logical to regard the fact that the respondent has had to stand twice for sentence as one of the facts and circumstances existing as at the time of resentencing that the Court is required to take into account in accordance with the third principle that I have quoted from Allpass. Their Honours did not cite any authority in relation to the fourth principle. From what they said, it seems that the principle was well established, at least in New South Wales, by 1993. This principle was applied by the Court of Criminal Appeal of New South Wales, differently constituted, in later cases, eg, R v Gordon (1994) 71 A Crim R 459 at 470; R v Khan (1996) 86 A Crim R 552 at 559. It was adopted by the Victorian Court of Appeal in 1996: R v Clarke (supra) per Charles JA at 522. It has also been adopted by this Court on a number of occasions.

57 In R v Harland-White 23/1997, Wright J at 2, after quoting from Clarke, said the following:

"It is obvious that an application of these principles may result in a degree of amelioration of the outcome for the prisoner which might not be justifiable on logical grounds. For my part, I have always regarded the 'double jeopardy' argument as being one of doubtful validity in modern society where the discretion of the sentencing court is, or should be, guided by a substantial body of clear authority as to the appropriate course to be followed in the various kinds of situations which come before it. To me it seems inappropriate that an offender may escape his just desserts when error has occurred merely because, like other litigants, he may have to withstand the challenge of an appeal. I tend to think that current societal values would not regard such an outlook as lacking decency or fairness.

However, the 'double jeopardy' principle has become too well established in recent years to be denied and, if applied in the limited way suggested by Charles JA's formulation, I have no difficulty with it.

In the same case, Crawford and Slicer JJ referred at 5 to "the commonly applied principle that applies to a Crown appeal, that the sentence this Court imposes may appropriately be less than the sentence it would have been appropriate to pass at first instance", citing Khan and Clarke.

58 In R v Meers and Moles 32/1998, Cox CJ, after citing Allpass and Gordon said, at 4:

"The fact that the respondents had been subjected to double jeopardy in these proceedings has undoubtedly placed them under extra strain and I think it proper to temper the sentence which otherwise 'should have been passed'."

Wright J said, at 3, that the sentence he proposed "would ... give recognition to the fact that an element of double jeopardy is inherent in an appeal against sentence which should be acknowledged when resentencing takes place", citing Allpass and Clarke. In Attorney-General v B [2002] TASSC 63, all members of the court proceeded on the basis that the respondent's increased sentence had to be discounted because of double jeopardy, though the Crown had not argued to the contrary.

59 In Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 at 671, the seven judges of the High Court said the following:

"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke."

Although their Honours were concerned with the criteria for allowing a Crown appeal against sentence, rather than the principles applicable to resentencing, I think the passage I have quoted should be taken as an authoritative approval of the principle concerning double jeopardy that was formulated in Allpass and adopted in Clarke.

60 Further, there are relevant dicta in two judgments of Kirby J in other High Court cases. In Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 341, his Honour said:

"... where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences."

In R H McL v R [2000] HCA 46; (2000) 203 CLR 452 at 497, his Honour said the following:

"... it is trite to remember that, in a successful prosecution appeal against sentence, the appellate court does not regard itself as entitled to impose on the unsuccessful respondent a fresh sentence which consideration of the case might have justified at first instance. In such cases, it is common for moderation to be observed. The judges engaged in resentencing are controlled, to some extent, by any leniency previously afforded to the offender. This approach is regularly adopted in sentencing appeals. In my view it is a correct one. "

61 In R v Carngham [1978] HCA 48; (1978) 140 CLR 487, the High Court made orders that required the Court of Criminal Appeal of New South Wales to re-determine a Crown appeal against sentence. At first instance the respondent had been sentenced to imprisonment for two years, subject to an order that he be released after six months upon entering into a recognisance to be of good behaviour for the balance of the period of the sentence. By the time the High Court remitted the matter to the Court of Criminal Appeal, the respondent had entered into that recognisance, been released, obtained employment, and achieved a promotion. Gibbs ACJ, with whom the other members of the court agreed, said at 494 that those circumstances were "to be given full weight, together with all the other circumstances of the case, in deciding whether ... a sentence should be substituted which would require the respondent to serve a further term of imprisonment." That case did not contain any statement of principle of the type found in such cases as Allpass and Clarke, but is consistent with such statements of principle.

62 The learned Director of Public Prosecutions submitted that taking into account double jeopardy in a case like this would be inconsistent with the requirements of the Criminal Code. He relied on s402(4), and to the amendment of s401(2)(c) by the Criminal Code Amendments (Appeals) Act 1996 so as to permit the Attorney-General to appeal against a sentence without seeking the leave of the court to do so. Section 402(4) reads as follows:

"(4) On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

If one took a very strict and literal approach to the wording of this subsection, one could argue that, when a sentence is to be increased, the requirement to "pass such other sentence", ie, the sentence that "should have been passed", requires this Court to ignore all that has occurred since the passing of the original sentence, including the consequences of double jeopardy. One only has to consider the effect that such an interpretation would have in a case like Carngham to realise that such an interpretation would sometimes result in such injustices that Parliament could not possibly have intended it. Cox CJ considered the wording of this subsection in Meers (supra), and said the following (at 4):

"However, as Gibbs CJ pointed out in Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 609 - 610, similar words appear in the statutes of the other Australian States other than Queensland, which he was considering, and that 'they are wide enough to empower the Court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender'. It follows that a Court of Appeal is not obliged to impose the sentence which, but for later events, should have been imposed at first instance (R v Maniadis [1996] QCA 242; [1997] 1 Qd R 593; Plumstead v R 157/1997). The fact that the respondents had been subjected to double jeopardy in these proceedings has undoubtedly placed them under extra strain and I think it proper to temper the sentence which otherwise 'should have been passed'. This does not detract from the Court's function on a Crown appeal of laying down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 at 310)."

63 Prior to the amendment of s401 in 1996, sentencing appeals, both by convicted persons and by the Attorney-General, were permitted only by leave of the court. The 1996 Act amended ss401(1)(c) and 401(2)(c) by omitting the words "by leave of the court" from both provisions. The abolition of the leave requirement applicable to the Attorney-General was prompted by the High Court's decision in Everett v R [1994] HCA 49; (1994) 181 CLR 295. The Court of Criminal Appeal had granted leave to the Attorney-General, allowed two appeals, and made orders that required the unsuccessful respondents to return to prison. The High Court quashed those orders and restored the sentencing orders made at first instance, holding that the Attorney-General should be granted leave only in a rare category of cases in which the appeal was brought to establish some "matter of principle" - that term encompassing what is necessary to avoid manifest inadequacy or inconsistency in sentencing standards. Parliament responded by abolishing the leave requirement. There is nothing in the second reading speech (House of Assembly 2 October 1996) to suggest that Parliament intended the amendment to have any effect in relation to the resentencing of unsuccessful respondents. It intended only to make it easier for Crown appeals against sentence to succeed.

64 For these reasons, I conclude that the relevant provisions of the Criminal Code do not exclude the requirement, well established by the authorities that I have referred to, that the double jeopardy involved in standing twice for sentence must be taken into account in favour of the unsuccessful respondent to a Crown appeal against sentence. Having said that, I think it would be wrong to give that factor undue weight. In Everett (supra) at 299, Brennan, Deane, Dawson and Gaudron JJ said, "An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed." However I do not think it follows that the heretical or novel nature of a Crown appeal against sentence should result in a sentencing discount to allow for double jeopardy that is out of all proportion to the consequences of that double jeopardy. In a case like Carngham a very substantial discount could be appropriate. But the present case involves no question of returning a liberated person to prison. The respondent's exposure to double jeopardy began only a few months ago: he was sentenced on 21 August 2002 and the notice of appeal was filed the following day.

65 In the light of the comments of Kirby J that I have quoted, I think it would be appropriate to impose a somewhat lenient sentence on the respondent. I think that fairness will often dictate that an excessively lenient sentence should be replaced by one a little on the lenient side. With that in mind, and making appropriate allowance for double jeopardy, I would substitute a sentence of two years, four months' imprisonment. The learned sentencing judge did not make any order as to a non-parole period. At that time, the consequence of not specifying a non-parole period was that the offender became eligible for parole upon the expiration of half of the sentence. However the Sentencing Act 1997, s17, has since been amended so that offenders do not become eligible for parole unless the sentencing court fixes a non-parole period. I think the respondent should be eligible for parole upon the expiration of half his sentence (ie, 14 months), for a number of reasons. I think that would be fair, since the learned sentencing judge took the most lenient possible course in relation to parole. I think the Parole Board will be in a better position than this Court is to make an assessment as to when release will be appropriate. It is also significant that the material put to the learned sentencing judge in mitigation contained matters suggesting a fair chance of rehabilitation.

66 For these reasons I would allow the appeal, quash the sentence of 18 months' imprisonment, substitute a sentence of two years, four months' imprisonment with effect from 2 June 2002, and order that the respondent is not eligible for parole in respect of that sentence before the expiration of 14 months from that date.

(1983) 7 Crim LJ 262

(1983) 7 Crim LJ 306

Attorney-General for Tasmania v McDonald [2002] TASSC 120

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Attorney-General for Tasmania v McDonald [2002] TASSC 120 (23 December 2002)

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