Criminal Law - Appeal and new trial and inquiry after conviction - Appeal against sentence - Appeal by Attorney-General or other Crown Law Officer - Applications to increase sentence - Offences against the person - Moderately severe assault - Accused diagnosed schizophrenic - Charge dismissed without recording a conviction - Sentencing principles - General deterrence and public interest in conviction - Whether sentence manifestly inadequate.

Sentencing Act 1997 (Tas), ss7(h), 10.

R v Briese, ex parte Attorney-General [1997] QCA 10; [1998] 1 Qd R 487; R v Brown, ex parte Attorney-General [1994] 2 Qd R 182, applied.

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Other matters - Meaning of conviction - Charge dismissed without recording a conviction - Sentencing Act 1997, s7(h) - Effect of finding of guilt without recording a conviction.

Sentencing Act 1997 (Tas), ss7(h), 10.

Griffiths v R (1976 - [1977] HCA 44; 1977) 137 CLR 293; Maxwell v R [1996] HCA 46; (1996) 135 ALR 1; Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257; R v Hannan; Ex parte Abbott [1986] NTSC 22; (1986) 41 NTR 37; Re Stubbs (1947) 47 SR (NSW) 329; Dreezer v Duvnjak [1996] TASSC 160; (1996) 6 Tas R 294; R v Tonks and Goss [1963] VicRp 19; [1963] VR 121, applied.

Judgment Number: [2002] TASSC 10

2 The dismissal of the charge without the recording of a conviction set aside.

3 In lieu thereof, it is ordered that the respondent be convicted of assault and discharged.

1 I agree with the reasons for judgment of Crawford J.

2 The respondent pleaded guilty to assault. The learned sentencing judge dismissed the charge, without recording a conviction, pursuant to his power to do so under the Sentencing Act 1997, s7(h). The Attorney-General has appealed on one ground only, that being that the learned judge "erred in law in that he imposed a sentence which was manifestly inadequate in all the circumstances of the case".

3 The facts as presented by Crown counsel were as follows. For a number of years, the respondent had been well known to the complainant, Mrs Bearman and her family. He had once been a workmate of her husband and had been a friend of the family. Mrs Bearman was aware that he had been experiencing some mental health problems. He had been invited to family functions over the years, but as time progressed, he became more stand-offish towards the family and she had not seen him for quite a period of time, except for an occasion about three weeks before the crime, when he had come to her home and acted in an unusual manner. Counsel stated that there was no explanation for the assault, other than he was starting to behave in an odd manner towards the complainant's family generally.

4 At about 1.30pm on Monday 14 May 2001, the complainant was in her rear yard. As she turned and commenced to walk back into her house, she was confronted by the respondent, who had appeared unannounced. She said "hello", but received no response. He simply stared back at her. He then grabbed her arms and threw her to the ground. While she was on her knees, he punched her a number of times to the neck and to the back of the head. He was saying things that she could not understand. She tried to get away from him and was yelling at him to stop. He then struck her four or five blows to the head with a garden stake. She managed to get to her feet and run onto the street. She sought help from a neighbour. The respondent ran away. The police were called. Mrs Bearman was taken to hospital by ambulance.

5 She had suffered several cuts to the top of her head. Four sutures were inserted. She also had soreness and bruising to her neck, head and back. In a victim impact statement she said that she suffered headaches for some time and still had to be careful of a tender spot when washing her hair. Her knee and elbow were grazed and bruised and she had tenderness in the elbow. Her knuckles were scarred. Her left arm was swollen and could not be bent for two weeks. She required physiotherapy to her wrist, initially twice a week, but once a week at the time of her statement on 12 July 2001. Because of her injuries, she had three weeks off work, involving seven shifts as a casual nurse. Her husband cashed in two weeks of his holiday entitlement to enable them to meet financial commitments. She had been psychologically affected, including the suffering of disturbed sleep, difficulty concentrating, fear and insecurity, loss of trust in others and feelings of anger.

6 On 16 May, the respondent was interviewed by police. He denied that he had assaulted the complainant, indicating that he was at home at the relevant time. He could not offer any explanation for the allegation or for the injuries. He indicated that at no time had he had problems with the complainant or her husband. He was then charged and bailed.

7 He was aged 33 years. His only prior court appearance was in 1998 when he was conditionally discharged without conviction on charges of having committed in 1997, forgery, uttering and dishonestly obtaining a financial advantage.

8 In her plea in mitigation, counsel for the respondent devoted most of her submissions to his mental health problems. He was educated to year 12 and had worked for five years as an accounts clerk, two years, seven months as a process operator and, more recently, as a labourer at a timber mill. However, since about 1998, he had been unemployed and having been declared unfit for work, was receiving special unemployment benefits.

9 In 1998, after an overdose of drugs, he was admitted to the Department of Psychological Medicine at the Royal Hobart Hospital. A discharge summary indicated psychosis. He was placed on a drug for some time for schizophrenia. At the time of the crime, in May 2001, he was living alone. His family, who was very supportive of him, believed that since 1998 his mental health had deteriorated. He had become somewhat isolated, having lost some of his friends. Counsel said that his father had also suffered from schizophrenia.

10 The respondent's counsel told the learned judge that the respondent had known the complainant for roughly seven or eight years and had attended school from grade 7 with her husband and had worked with him. Counsel said that she was not able to provide a clear explanation for the crime. She was instructed that it was the practice of the respondent to visit the complainant's residence occasionally and on the day in question, he went round to the backyard because he believed that the front doorbell did not work properly. He believed that he went there to talk to the complainant about his car. He did not have a licence and had loaned the car to the Bearmans so that Mr Bearman's father could use it. He believed that about three weeks previously, when he had seen the complainant, he asked her where the car was and was not happy with her answer, believing it to be false. Counsel said that the respondent's recollection of the crime was limited.

11 On 16 May 2001, two days after the crime and the same day on which he was interviewed by the police, the respondent was admitted to the psychiatric ward at the Royal Hobart Hospital where he was detained for 69 days until 24 July. The diagnosis was paranoid schizophrenia and he received medication for it. Doctors said that he displayed Capgras phenomenon, which involved a delusion of metamorphous, a belief that people can change and suddenly become impostors.

12 It is to be noted that the learned judge did not call for a medical or other report concerning the respondent, nor did counsel tender any reports. However she purported to refer to what various doctors had said about the respondent. She said that a senior registrar in psychiatry had recently seen the respondent and had suggested that the prognosis was not promising. The respondent suffered from schizophrenia, with positive and negative symptoms, which had been untreated for some time and he had "shown little insight", concerning his condition, I presume. At the time of the hearing, he was being managed by the forensic outpatients branch of the Mental Health Services and receiving medication. He was subject to a continuing care order under the Mental Health Act 1996, s28, but was not subject to detention. He was allowed to live at his own home and was required to attend the forensic outpatients branch fortnightly to receive his medication. He was obliged to comply with any request to attend the service and so far had been co-operative. The continuing care order could be continued, as it already had been. The respondent said that he felt slowed down by the treatment.

13 Counsel for the respondent said to the learned judge:

"And whilst there's no explanation for why, on that particular day, Mr Smith decided to visit Mrs Bearman, to talk about the car, I can indicate that it may be linked to the fact that, in the video interview, he has explained - he was - well he's explained as mentioning that he knows a Mr and Mrs Bearman but it may not be the people - the people that the police were talking about might not be the same people. It may have - it may be directly linked to the phenomenon he's supposed to suffer, according to Professor Pridmore and Doctor Sale. It's a possibility that - I'm suggesting, your Honour, that he went to the residence that day under - due to the belief perhaps that Mrs Bearman had changed, or had become an impostor, which is a belief held under the Capgras Phenomenon, as a delusion of intermittent morphosis [sic], to be more exact. It's possible that she - he thought that she had changed personally and was going to confront her about that.

And why I raise that, your Honour, is that as far as comparing this accused with a person without this syndrome and any mental illness, a person who doesn't suffer from such symptoms, perhaps would be more accountable for their actions, and certainly have a better understanding of their actions than perhaps this accused would. So I only raise that to put forward that perhaps there is an element of diminished responsibility in relation to this matter. Unfortunately I'm not better equipped to provide a further explanation. And due to the fact that Mr Smith has been medicated since the offence, and his memory is fairly hazy of events, I'm really not in a better position to provide an explanation than that."

14 Prior to adjourning over a weekend to consider what sentence to impose, the learned judge made a number of remarks, with which counsel for the Crown assented. They were:

"It seems to me that this is essentially a medical problem rather than a legal one. ... It seems to me clearly enough that this was an irrational piece of conduct ... brought about by some degree of diminished responsibility, although ... obviously, I have to proceed on the basis that he is a sane person - he's of sound mind for present purposes."

Counsel for the Crown commented that it might be appropriate to make a probation order which could operate in conjunction with the continuing care order that had been made under the Mental Health Act. His Honour said that he had in mind either a probation order or an adjournment of the matter for a fairly lengthy period of time. Counsel for the Crown commented that if a probation order was made, there could at least be some monitoring of the respondent's behaviour, but she emphasised that the Crown had not had prior notice of what the respondent's counsel had submitted in her plea in mitigation and had had no opportunity to make inquiries with regard to it.

15 On 17 September 2001, the learned judge made the following comments when passing sentence:

"The prisoner stands for sentence on one count of assault.

In May of this year, he, for no reason, assaulted the wife of a former work mate at her home by throwing her to the ground, punching her and striking her on the head with a garden stake several times. She suffered several cuts to the top of her head and had soreness and bruising to her neck, head and back. It was a nasty assault and the emotional impact on her was substantial.

The prisoner is 33 years old and suffers from schizophrenia. Immediately after the incident, he was admitted to the psychiatric ward of the Royal Hobart Hospital and detained there as a patient for just on two months. On 20 June 2001 a continuing care order was made pursuant to the Mental Health Act 1996 and this is due to expire on 24 December 2001. The prisoner has co-operated with the medical authorities in respect of his treatment, but unfortunately his prognosis is not promising.

This is an unfortunate case in which ordinary notions of punishment are inappropriate. I have to proceed on the basis that the prisoner is of sound mind for the purposes of criminal responsibility, but clearly that responsibility is diminished by his condition. To the extent that he is at fault in assaulting the complainant, he has already suffered some deprivation of liberty while hospitalised and while attending for out-patient treatment. No further punishment as such is warranted. It is basically a medical problem and the medical authorities have the matter in hand.

Pursuant to the Sentencing Act 1997, s7(h), I order the dismissal of the charge without recording a conviction."

16 The learned judge must have been satisfied that the conditions of a continuing care order would provide adequate supervision of the respondent and therefore that the supervision provided by a probation order was unnecessary. Under the Mental Health Act, s28, a continuing care order is an order for continuing detention in a hospital and the respondent was detained for 69 days. Notwithstanding that at the time the sentence was passed, the continuing care order had been extended until 24 December 2001, it appears that he had been allowed to live at home since 24 July 2001, pursuant to the leave of absence provisions of s37. That was conditional leave of absence, and it could be cancelled at any time.

17 The Director submitted to this Court that the learned judge's order that the charge was dismissed without recording a conviction was manifestly inadequate because of the failure to record a conviction. He did not submit that a sentence of imprisonment or a probation order, or any other form of sentencing order, should have been made, other than the recording of a conviction. The Director did not submit that the learned judge erred by elevating what the respondent's counsel expressed as possible explanations for the crime and the possibility of an element of diminished responsibility, into probabilities.

18 The argument advanced for the appellant was that the failure to record a conviction was a manifestly inadequate response to the crime. To treat the case as "basically a medical problem" did not justify that failure, it was submitted. The respondent had not been found not guilty because he was insane at the time so as not to be responsible according to law. By his plea of guilty he had admitted criminal responsibility for what the Director submitted was a moderately severe assault with several aggravating features. By not even recording a conviction, the learned judge had given no expression to the community's disapproval of the admittedly criminal conduct, and had given no expression to the need for general deterrence. The Director submitted that the respondent's mental condition had been elevated by the learned judge almost to the status, and certainly to the effect, it would have had if the mental condition had afforded a defence. The response of the learned judge to a moderately severe assault with several aggravating features, was to barely acknowledge that a crime had been committed. The Director submitted that the community had an interest and expectation that such a crime would at least be condemned by a recorded conviction. There was a need for general deterrence in sentencing, and those suffering from schizophrenia or other mental illnesses tending to lead them to commit crimes, should be encouraged to take their prescribed medication and accept responsibility for their actions. The Director also submitted that a dismissal without conviction inevitably caused the victim of the crime not to feel vindicated.

19 Under the heading of "Sentencing orders", the nine paragraphs of the Sentencing Act, s7, give to courts a variety of sentencing options. Some, being a sentence of imprisonment, a community service order and a fine, may only be ordered in conjunction with the recording of a conviction (pars(a), (b), (c) and (e)). Others, being a probation order and an adjournment of proceedings and release of the offender on an undertaking with conditions, may be ordered with or without recording a conviction (pars(d) and (f)). Under par(g), a court may record a conviction and order the discharge of the offender. Under par(h), as was done in this case, the court may order the dismissal of the charge without recording a conviction. A perusal of the Act makes it clear that whatever option a court chooses, the order which is in fact made is a "sentence" and a "sentencing order" under the Act. Under the Criminal Code, s401(2)(c), the Attorney-General is authorised to appeal to this Court "against the sentence", which clearly includes an order of the kind made here. On first reading it seems strange that s401(1) purports to give no power to a sentenced offender to appeal unless a conviction is recorded. However the section is subject to the Sentencing Act, s10(2)(b)(i), which provides that for the purpose of appeals against sentence a finding of guilt without the recording of a conviction has the same effect as if a conviction had been recorded. Nevertheless, it is probably time that s401(1) was amended. (Subsection (3) also needs amendment, for it refers to a number of statutory provisions which have been repealed.)

20 It is required by the Sentencing Act, s9, that a court, in exercising its discretion whether or not to record a conviction, must have regard to all the circumstances of the case, including the nature and circumstances of the offence, the offender's antecedents and character and the impact that a conviction would have on the offender's economic or social well-being or employment prospects. Under s58, an order dismissing a charge without recording a conviction may be made for such one or more of five stated purposes, as is relevant in the circumstances, as the court thinks fit. The learned judge did not refer to the section or any of the stated purposes. It is possible that he had regard to those in pars(c) and (e), being respectively "to allow for circumstances in which it may be inappropriate to record a conviction against an offender" and "to allow for the existence of other extenuating or exceptional circumstances that may justify the court showing mercy to an offender".

21 By s10(1), "a finding of guilt without the recording of a conviction is not to be taken to be a conviction for any purpose", except as otherwise provided by the Act or any other enactment. By subs(2)(b), it is otherwise provided in the following terms:

(2) A finding of guilt without the recording of a conviction -

(b) has the same effect as if a conviction had been recorded for the purpose of -

(ii) proceedings for variation or breach of sentence; or

(iii) subsequent proceedings against the offender for the same offence; or

(iv) enactments providing for the mandatory forfeiture of property on conviction; or

(v) enactments providing for any other kind of mandatory penalty on conviction, not involving disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits."

22 That provision is essentially directed to proceedings, including subsequent proceedings, for, or in respect of, or arising out of, the offence in question. The result of the inclusion of subpar(iii) is that a finding of guilt without the recording of a conviction has the same effect as if a conviction had been recorded, for the purpose of subsequent proceedings against the offender for the same offence (thereby preserving the right to plead autre fois convict). However, for the purpose of subsequent proceedings against the offender for a subsequent offence, it follows from s10 that the court which deals with the offender for the subsequent offence may not consider him to have been convicted of the earlier offence. Nevertheless, because s10(1) refers to both a finding of guilt and a conviction, it seems that there is no reason why the court which deals with the offender for the subsequent offence may not consider him to have been found guilty of the earlier offence. In other words, a failure to record a conviction does not amount to a failure to find the offender guilty.

23 The meaning of "conviction" is ambiguous and in each case depends on the context in which it is used. "It is sometimes used in the narrow sense as indicating merely that an accused has been made the subject of a finding of guilt. Sometimes it is used in the wider sense of the finding of guilt combined with the sentence of the court." R v Hannan; Ex parte Abbott [1986] NTSC 22; (1986) 41 NTR 37 at 40. See also Re Stubbs (1947) 47 SR (NSW) 329 at 339; Griffiths v R (1976 - [1977] HCA 44; 1977) 137 CLR 293 at 334 - 336; Maxwell v R [1996] HCA 46; (1996) 135 ALR 1 at 4 - 7, 14 - 16; Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 at 266, 267; Dreezer v Duvnjak [1996] TASSC 160; (1996) 6 Tas R 294 at 304. It was pointed out by the Full Court in R v Tonks and Goss [1963] VicRp 19; [1963] VR 121 at 127 that without a determination of guilt, there cannot be a conviction, but a determination of guilt will not in all cases amount to a conviction. That has been emphasised for the courts of this State by s10. It follows from it that in this State, notwithstanding a finding of guilt combined with the sentence of the court, for most purposes the offender is not to be taken to have been convicted unless the court announces that it records the conviction.

24 For the purpose of determining whether the failure of the learned judge in this case to record a conviction was a manifestly inadequate response, it is necessary to consider the possible effect of that failure in cases in general and in this case in particular. For the purpose of the dangerous criminal provisions of the Sentencing Act, and particularly s19, when a judge is considering whether to declare an offender to be a dangerous criminal, the judge will not be permitted, when determining whether "the offender has at least one previous conviction for a crime involving violence or an element of violence" (see s19(1)(b)), to have regard to the fact that the offender has previously been found guilty of such a crime without the recording of a conviction (as occurred here). The offender would be entitled to assert, even on oath or statutory declaration, that he or she had no previous conviction, or to expressly deny having been convicted of the relevant offence, and could not later be charged with perjury. As was pointed out in R v Briese, ex parte Attorney-General [1997] QCA 10; [1998] 1 Qd R 487 at 491, a failure to record a conviction is capable of considerable effect in the community. Persons who might have an interest in knowing the truth in such matters include potential employers, insurers and various government departments including the Immigration Department. Under the Firearms Act 1996, the offender would not be absolutely disqualified by s29(3)(a) from obtaining a licence because he would not come within the category of a person who "within the period of 5 years before the application was made, has been convicted in Tasmania or elsewhere of any crime involving violence to another person".

25 In R v Brow_n, ex parte Attorney-General_ [1994] 2 Qd R 182 at 194, it was noted that the recording of a conviction is in itself an element of punishment of the offender and may encourage him or her not to engage in further criminal activity and conceivably it could act as some deterrence to others if it becomes known.

26 When considering whether to record a conviction, a court must weigh up the public interest, and the need for an official record to be made of the commission of the offence, against the beneficial nature to the offender of a conviction not being recorded. Regard must be had to the purposes specified in s58. If the offence is of a relatively serious nature, the Court may feel compelled to record a conviction. In addition to public interest questions, it is proper that the Court have regard to whether the victim of such an offence might reasonably not feel vindicated by the failure to record a conviction.

27 I have come to the conclusion that the sentence, that is the dismissal without recording a conviction, was a manifestly inadequate one. The crime was certainly not "trivial, technical or minor". See s58(b). It was, as the Director submitted, a moderately severe assault, and in my view it ought to have been made clear by his Honour, to the respondent and the public, that he was criminally responsible for what he had done. Only three years before, the respondent was conditionally discharged without conviction on charges under the Criminal Code of forgery, uttering and dishonestly obtaining a financial advantage. The reason for that was not disclosed in this case, but regardless of it, the respondent did not deserve to have dismissed a further crime of some seriousness. I acknowledge that a sentencing judge has an extremely wide discretion to exercise. I would not have been concerned by a dismissal if the nature of the crime had been trivial, but it certainly was not that and in all the circumstances I am satisfied that at the very least, a conviction should have been recorded. It is understandable that, having regard to the continuing care order and the detention for 69 days, the learned judge determined not to impose any other form of sentence.

28 Accordingly, I would allow the appeal and set aside the dismissal of the charge without the recording of a conviction. In its place I would order that a conviction be recorded and that the respondent be discharged, pursuant to the Sentencing Act, s7(g).

29 In Aherne v R [1982] Tas R 302 (NC 4), 20/1982, Nettlefold J, correctly observed that:

"The Court of Criminal Appeal has no charter to tinker with sentences. It sits to rectify genuine errors."

With that view in mind, my initial reaction to this appeal was that accepting that the Attorney-General was correct in asserting that the appropriate sentence was the discharge of the respondent following the recording of a conviction, this outcome was insufficiently different from the sentence imposed, the dismissal of the charge without recording a conviction, to warrant allowing the appeal. Having had the advantage of reading the Reasons for Judgment prepared by Crawford J, I am satisfied that my initial reaction was wrong. I agree with his reasons for allowing the appeal and the order he proposes.