Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - General range of sentences for a single count of causing grievous bodily harm.

Judgment Number: [2010] TASCCA 3

ANTHONY RICHARD NEIL BARRON v THE STATE OF TASMANIA

ANTHONY RICHARD NEIL BARRON v THE STATE OF TASMANIA

1 In my view this appeal should be dismissed, for the reasons stated by Wood J.

ANTHONY RICHARD NEIL BARRON v THE STATE OF TASMANIA

2 I agree that for the reasons given by Wood J, the appeal should be dismissed.

ANTHONY RICHARD NEIL BARRON v THE STATE OF TASMANIA

3 After a trial held in Launceston, the appellant was found guilty of the crime of causing grievous bodily harm, contrary to the Criminal Code, s172. On 12 February 2009, the appellant was sentenced to five years' imprisonment and it was ordered that he not be eligible for parole until he had served two years and nine months of the imprisonment. He appeals against that sentence on the sole ground that five years' imprisonment is manifestly excessive.

4 The original charge on indictment against the appellant was the crime of committing an unlawful act intended to cause bodily harm, contrary to the Code, s170. The jury brought in a verdict of not guilty in relation to that crime, but found the appellant guilty of the alternative crime under the Code, s172, which does not require a specific intent to cause bodily harm. The distinction between the two crimes assumed some significance in the submissions on appeal and will be returned to later.

5 The trial judge's comments on passing sentence contain pertinent facts of the crime committed by the appellant. The background to the crime was set out, together with details of the criminal conduct:

"On 12 April 2008 he picked up his friend, a man aged 42, and took him to a house at Beaconsfield to look at some cars for spare parts. They stayed for a meal and drinks. They visited two hotels during the evening. They were invited to stay the night at the house.

Sometime after midnight, his friend became concerned that he was intending to drive home when he was not in a fit state to do so because of the consumption of a considerable amount of beer. To prevent it, his friend removed the rotor button from the distributor of his car.

It was well after midnight when the accused attempted to start the car and found that it would not do so. Upon discovering that his friend had removed the rotor button, he resorted to punishing him with appalling violence. His friend did nothing in response, other than to try and cover up and plead for it to stop. The female resident made similar pleas. The accused was a much stronger and fitter man, a trained boxer who had fought both as an amateur and a professional, and he demonstrated his ability to inflict considerable injuries and great pain and suffering.

...

The attack extended over a long period of time. The victim's estimate of it was 40 minutes. From time to time the accused broke off, but then returned to the attack. Beyond reasonable doubt I reject the theory that was advanced by the accused that some of the injuries were caused when he fell when he was trying to get away in the dark.

The violence included many punches to the face, driving of the knee into the man's chest, stomping on him with the feet and kicking him in the body. Particularly graphic was the victim's description of the accused pulling and twisting his arm while he had his foot in his armpit, until there was a pop. ...

The jury must have had a reasonable doubt about whether the accused intended to cause grievous bodily harm as that expression is used by the law. Certainly he ought to have known that it would result. He will be sentenced upon the basis that he did not care whether it did or not."

6 Further, the trial judge commented that the crime demanded a substantial prison sentence, referring in part, to the "prolonged and brutal nature" of the attack. This comment and the comments about the facts generally have not been subject to any criticism by counsel in this appeal.

7 It is worth referring to some of the detail about the violence inflicted by the appellant as the incident unfolded. These details assist in providing an appreciation of the trial judge's characterisation of the violence as "prolonged and brutal". It was noted in sentencing by the trial judge that he accepted generally the victim's evidence about the attack, although the victim may have been confused about some of the detail due to its prolonged nature and the grievous injuries he suffered. The substance of the evidence is referred to without focussing on the kinds of details which may not have been accepted by the trial judge.

8 The violence inflicted on the victim commenced in the following way:

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grabbing him by the throat and holding him and punching him to the face three times resulting in the victim ending up on the ground;

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punching him a few times while he was on the ground;

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sticking his fingers in the victim's eyes and trying to eye gouge him;

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when the victim held his wrists to stop the eye gouging, kneeing the victim to the face so that the victim felt as if his head had been fractured;

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jumping up into the air and landing on the victim's chest with one of his knees resulting in a cracking sound from his ribs.

9 The response of the victim to stop the eye gouging by grabbing the appellant's wrists was the only time the victim responded physically towards the appellant. Otherwise, during the assault, his only response to the attack was to cover and protect himself from the blows, or to scream or plead with the appellant to stop. The victim described that he tried to stand up at various stages and run away but the appellant kicked his legs out from under him or knocked him to the ground and continued punching, kneeing and kicking him. The victim described a further aspect of the assault upon him:

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As he was face down on the ground, the appellant punched him to the back to the kidneys, back of the lungs and back of the head.

10 At one stage after the assault had been continuing for approximately 20 minutes the appellant asked for the rotor arm and the victim threw the object towards him on the ground. The appellant punched the victim a few times and then began looking for the rotor arm. There was a break in the violence while the appellant and other people tried to find the rotor arm in the dark. After it was found the appellant put it in the car, started the car and then turned it off. He then returned to the victim and continued the assault:

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The appellant punched the victim to the face. At this stage the victim was lying flat on his back on the ground. The victim described these punches as "excruciatingly painful" because it seemed by then that his face had already been fractured.

11 It was about this stage that the appellant pulled on the victim's arm as mentioned by the trial judge until it went pop. Some further details from the victim's evidence are as follows:

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The victim was on the ground and the appellant "scruffed" his arm and put his foot on the armpit and pulled on his right arm for about 10 seconds until it went pop. The victim assumed that noise was his shoulder dislocating. Then, the appellant twisted his arm around and gave it "one almighty reef" and the victim screamed. He will never get that scream out of his head. His right arm was instantly useless, he could not lift it up or block the punches which then followed.

12 While the victim was in that condition the appellant continued punching him. At one stage the victim managed to get up and jump over a fence, however he was not able to get away from the appellant and the violence continued:

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The appellant grabbed the victim and pulled him back over the fence and continued punching him to the chest with upper cuts as he held the victim's shirt. The victim described the pain as extreme as if he was being stabbed. Presumably at least some of his ribs were broken by then.

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The victim described being dragged by the hair to the driveway and being "thumped another couple of dozen times".

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At this stage the victim tried to crawl away towards the front gate on his hands and knees. As he was crawling face down, the appellant stomped on the middle of his back at his waist region, telling him he "wasn't getting away that easy".

13 The victim stated that the whole time he could hear a woman and a man pleading for the appellant to stop. He then heard a car arrive, he assumed that was the police, and after that he blacked out.

14 The trial judge referred to the most serious of the victim's injuries as follows:

"The gravity of it all is demonstrated by the injuries, the most serious of which were the following: Fractures of the maxillary sinuses on both sides; fractures of the floor of both orbits; fractures of the nasal bone and nasal cartilage; a large collection of blood under the surface of the scalp; fractures of ribs on the right side, one of which punctured his lung, with air outside the lung and under the skin and in the middle of the thorax; right lung contusion; two fractures of the sternum; fractures of the right and left pterygoid processes; a torn supraspinatus muscle at the right shoulder; and an injury to the nerve in his right arm. He could well have died if an ambulance had not been called by the female resident."

15 The trial judge also noted the situation with the injuries post-admission to hospital:

"On the victim's admission to hospital he was intubated and put on a ventilator. He was in the intensive care unit for four days and then moved to the surgical ward. His time in hospital was extended because of an infection. He was in hospital for 16 weeks. He expects to undergo four further operations. There will be two operations on his shoulder to reattach muscle to bone. A third operation will be on his sternum and a fourth operation will realign his jaw. He will undergo dental work after that. He has extremely limited use of a shoulder. He continues to suffer considerable pain in the area of his ribs.

Apart from odd spray painting work, he was not in employment at the time of the crime. He had in the past worked as a diesel fitter and in mining. He is no longer able to work."

16 The circumstances of the appellant were set out by the trial judge when passing sentence:

"The accused is aged 42. He is a full-time carer for his 78-year-old mother. She will suffer much from his incarceration for this crime.

He has a significant record, although not since his last release on parole in 1997. Prior to that it included robbery with violence, assaults, assaulting and resisting a police officer and rape and he has served many prison sentences. It is to his credit that he did not significantly offend again after 1997 until this crime."

17 During submissions, Mr Hall noted some matters about the appellant's family circumstances, including that he was in a stable relationship with dependent children. The appellant's state of intoxication was emphasised in submissions before this Court as was the lack of premeditation. These matters were covered in the plea in mitigation. There is no suggestion that these matters were overlooked by the trial judge.

18 The submissions for the appellant drew this Court's attention to the fact that the sentence imposed in this case, a period of five years' imprisonment, was the longest sentence imposed in Tasmania for a single count of causing grievous bodily harm contrary to the Code, s172. In the case of Solia (delivered on 27 November 2005) a sentence of five years' imprisonment was imposed, but six months of that sentence was suspended, making it effectively shorter than the sentence imposed upon the appellant. While longer sentences have been imposed for the crime of committing an unlawful act intending to cause bodily harm contrary to s170, Mr Hall submitted that that crime, contrary to s170, is a more serious crime and lengthier sentences are warranted. It was submitted that, given the circumstances of offending and the offender, the sentencing discretion miscarried.

19 The submissions for the respondent acknowledged that the sentence in this case is a high sentence for a single count of causing grievous bodily harm but it should be seen as an extreme case justifying a sentence at the top of the range. It was submitted that given the appellant's physical power, a distinction usually drawn with cases involving weapons was not so valid in this case. As a former boxer the appellant must have been aware of his own power and capacity to inflict injury.

20 Various considerations, such as the length of time over which the crime was committed, and the appellant's opportunity to desist, were emphasised by Mr Ransom. Mr Ransom drew the Court's attention to the fact that the appellant received close to the minimum non-parole period which ameliorates the effect of the sentence to some extent.

The difference between crimes under ss172 and 170

1">21 It is worthwhile to take some time to focus on the nature of the crime under consideration and some well settled sentencing principles that apply to the Code, s172. A specific intention to cause grievous bodily harm is not an element of this crime. The crime of causing grievous bodily harm requires a mental element involving either an intent to cause grievous bodily harm or subjective recklessness, ie foresight of the likelihood of that kind of harm (R v Bennett [1990] Tas R 72). By contrast an essential element of a crime against s170 is the intention to cause some kind of serious bodily harm (R v Allen [1999] TASSC 112, per Cox CJ at par2).

22 There is an overlap in the application of ss170 and 172 so that they are both capable of applying to situations where grievous bodily harm is intended. For this reason, ordinarily when sentencing for the crime of causing grievous bodily harm contrary to s172, the sentencing judge may, without offending the principle in De Simoni [1981] HCA 31; (1981) 147 CLR 383, sentence on the basis that the offender had an intention to cause grievous bodily harm. An exception to that usual situation is where the jury has found the offender not guilty of the crime against s170. In that situation the jury has, by its verdict, negatived the intent that was the element of that crime (see Lovegrove v R [1961] Tas SR 106). The sentencing judge is required then to sentence on that basis and must assume that an actual intent to cause grievous bodily harm was not held, and only the state of mind of subjective recklessness was present.

23 In this case, there is no question that the trial judge approached the sentence of the appellant correctly, acknowledging the jury's verdict. It is plain from the comments, set out above, that the trial judge sentenced the appellant on the basis that the state of mind that he held was one of subjective recklessness.

24 Another consideration that flows from the distinction between the two crimes for sentencing purposes is that a crime against s170 is generally treated as worse than one against s172 of the Code: Mansell & Anor v R [2001] TASSC 73, per Cox CJ, at par7. The distinction in the categories of these crimes seems to be reflected in the sentences imposed for serious cases. Sentences for serious instances of crimes under s170 have attracted sentences of up to seven years (see (Papazaglou v R [1963] Tas SR 182, R v Allen (supra) at par13), while the longest sentence imposed for a crime contrary to s172 is five years (Solia (supra)).

25 It must be noted that the distinction between the crimes is a generalisation and an observation about categories of crimes. To state the obvious, some instances of crimes contrary to s172 are more serious than other instances contrary to s170. Even though s170 requires a specific intent, it may be noted that this essential element of a crime against s170 does not necessarily involve an intention to inflict bodily harm amounting to grievous bodily harm (see the discussion on this point in Allen per Cox CJ, at par2).

26 It was submitted for the appellant that the appellant's sentence of five years' imprisonment is the kind of sentence that might be expected if the appellant had been found guilty of a crime under s170.

27 In this appeal there has been reliance on comparative sentences by both counsel to support their contentions that in the case of the Crown, the sentence is within the range of penalties established by those comparable cases, or, in the case of the defence, is excessive, given the circumstances of this case, and outside the sentencing range. As will be seen in the analysis below, the submissions have focussed on a few sentences imposed in Tasmania with reference to comments on passing sentence for crimes committed contrary to the Code, s172, and also some decisions of this Court reviewing sentences for this crime.

28 The submissions for the appellant focus on the notion of the current sentencing range and require the range to be identified and then considered in light of the sentence in this case. Essentially, the submission is that, as a fact, all sentences for the crime of s172 have been lower than five years, and that any sentences approaching the five year mark are more serious than this case. The submission on behalf of the appellant that his sentence exceeded the sentencing range involves two propositions. The first proposition is the simple assertion of fact that the sentence in this case falls outside the sentencing range because it is the longest sentence imposed by the Supreme Court of Tasmania. The second proposition is that the sentence is outside the sentencing range because it is disproportionately high, compared to other sentences imposed in other comparable cases.

29 This method of analysis, and a comparison between the appellant's sentence and a few sentences at the top of the range of sentences imposed in the past, tends to create an impression that an upper limit has been set that cannot be exceeded unless justification for a longer sentence is established. This method involving the notion of an upper limit or ceiling may be appropriate in cases where there is a well-established pattern arising from a significant number of sentences imposed for the same kind of conduct over a long time. However, that is not the case here. This is a crime that captures a diverse range of conduct and there is not a substantial number of sentences that fall at the upper end of the range.

30 In Allen, at par14, Wright J made observations about the assistance that can be gained from comparable cases and that often they were useful only to a limited extent in order to obtain a broad sentencing range:

"Ever since Dowie v R [1989] TASSC 44; [1989] Tas R 167, I have maintained that whilst a sentencing judge should strive to achieve consistency in sentencing, this is not a process which involves the close comparison of one case with another to ensure that the new sentence being contemplated coincides closely with that passed on an earlier occasion by another judge. The facts and circumstances of one crime are rarely, if ever, identical to those of another. The injuries sustained by the victim of one crime of violence are usually very different from those sustained by another. The relationships between the victim and the offender are frequently different. The antecedents of the offenders are always different. I find that whilst the definition of a broad sentencing range will often be useful, any attempt to distil a tariff for a particular crime or a particular type of offender is usually illusory."

31 Those observations have force in the context of the crime contrary to s172. Comparable sentences imposed for this crime are useful as setting a broad sentencing range. With these observations in mind, I turn now to consider the information that is available regarding sentences imposed in this State for the crime of causing grievous bodily harm.

32 In relation to sentences imposed for the offence of causing grievous bodily harm or wounding for the period 1978 - 2000, Professor Warner in her text Sentencing in Tasmania, 2nd ed, Federation Press 2002, notes at par11.305:

"The data for 1990 - 2000 collated wounding and grievous bodily harm separately. Predictably, this shows that grievous bodily harm tends to attract more severe sentences than wounding. So sentences of 2 - 3 years were in the top of the range for wounding and 3 - 5 years for grievous bodily harm."

33 Professor Warner noted that "home invasions" involving the infliction of serious injuries have attracted sentences in the three year range, and so have serious cases of unprovoked street violence causing grievous bodily harm.

34 Table 6 in par 11.306 shows that from 1990 - 2000, of 33 sentences imposed for a single count of grievous bodily harm, six sentences of four years and above were imposed. Of 97 sentences imposed for a single count of wounding or grievous bodily harm, 14 sentences of four years and above were imposed. It is to be borne in mind that a number of the sentences in the table attracted a discount for an early plea of guilty (the point was made by Evans J in Mabb v Tasmania [2008] TASSC 22 at par7).

35 As noted by Professor Warner, the longest sentence imposed for the crime of causing grievous bodily harm was a term of five years' imprisonment, with six months' imprisonment suspended, imposed on an offender who doused his partner with petrol and set her clothing alight, resulting in severe burns (Solia (supra)). It was described as a fiendish and horrifying assault. The case illustrates the difficulty of comparing cases that bear little factual resemblance to each other in terms of the kind of violence inflicted, the victim, and the circumstances of the crime. The case of Solia was a particularly serious case of violence, but then the present case is also a particularly serious case of violence, albeit of a different kind.

36 In Solia there were matters in mitigation that were not present in this case. The offender was 23 years of age with no prior convictions and pleaded guilty at an early stage and was genuinely remorseful. No doubt those matters were reflected in the length of the prison term, as well as the suspension of part of the term. The sentence imposed in Solia is useful as an indication of the sentencing range for offending at the more extreme end of the spectrum. The length of the sentence imposed in Solia does not suggest that the sentence imposed upon the appellant, given the facts of this case, was unduly harsh.

37 The submissions for the respondent referred to a sentence imposed by Blow J (Wilkinson delivered 27 August 2008) of four years and three months for a count of causing grievous bodily harm and assault. This involved a brutal beating by two offenders involving many punches and kicks and a common purpose to assault, resulting in attempts to burn the victim. The sentence imposed upon the appellant is broadly in line with that sentence.

38 In ascertaining the sentencing range regard should obviously be had to decisions of this Court which have reviewed sentences on appeal for the crime of causing grievous bodily harm. Of particular relevance are four decisions of Mansell & Anor v R (supra), Inkson [1996] TASSC 13; (1996) 6 Tas R 1, Clark v Tasmania [2006] TASSC 61 and Mabb v Tasmania (supra).

39 In Mansell, the Court of Criminal Appeal reviewed a sentence of five years imposed on two offenders for a single count of causing grievous bodily harm. The appeal was upheld and the sentence was reduced to three years and nine months in the case of one offender, and four years in the case of another. This decision is relied on by the appellant's counsel as supporting his argument.

40 In Mansell there were factual similarities. It was a prolonged street assault involving four men where the complainant was beaten to the point of unconsciousness and was left lying in a pool of blood. He suffered various facial fractures. In his helpless condition he fell in a nearby river and suffered hypothermia. Both appellants were over 30 years of age and had records involving violence.

41 It is apparent from the judgments in Mansell that a deciding factor in the consideration of their sentences was that they were entitled to a discount for their early plea of guilty (pars9, 27, 30 and 37). Accordingly, the sentences were reduced making appropriate allowance for their plea of guilty. It would appear from Mansell that, if not for the pleas of guilty, the sentences in that case would have been unassailable. This is highly relevant to the case under consideration because the appellant did not plead guilty.

42 In Inkson (supra), this Court reduced a sentence of four years and four months' imprisonment imposed for one count of causing grievous bodily harm and substituted a sentence of effectively three years. The Court was concerned with a serious case of unprovoked street violence in which the appellant punched a man twice to the face, causing him to fall backwards and strike his head and fracture his skull. A co-offender then assaulted the victim by kicking him. The victim later died and it could not be shown that he died from injuries inflicted by Inkson. The offender was aged 18 and of good character. Again, given the obvious differences between this case and Inkson, a rational basis for the different sentences exists. The sentence in Inkson does not indicate that the sentence here was unduly harsh.

43 In Clark v Tasmania (supra), the appellant was found guilty of three counts of assault and one count of causing grievous bodily harm. He received a sentence of six years' imprisonment with a four and a half year non-parole period. The conduct involved unprovoked street violence without warning on a complete stranger of an extremely serious kind. There was a common purpose formed by three people to assault another person. The grievous bodily harm comprised three stab wounds and nearly resulted in death. The appellant had many prior convictions for dishonesty but only one for assault. He was 29 years old at the time of sentence. The criminal conduct in _Clark i_s properly characterised as more serious than this case. However, there is due proportion between the length of the sentences. The sentence of six years' imprisonment does not suggest that the sentence imposed on the appellant was disproportionately heavy.

44 In Mabb v Tasmania (supra), this Court reviewed a sentence of four years' imprisonment and a non-parole period of three years six months of the sentence. The criminal conduct involved a very violent assault by three offenders each armed with a piece of wood and involving repeated blows to the head and body. The victim suffered multiple skull, facial, rib and hand fractures, and serious injuries to his brain and lungs. Some of the aggravating features of that crime were not present here. The appellant was 34 years of age when sentenced and had an appalling record for crimes of violence. In light of the sentence in Mabb, the appellant's sentence is a heavy penalty.

45 However, it must be borne in mind that the decision in Mabb was that the sentence of four years' imprisonment was not manifestly excessive. This decision did not reveal what the upper limit of the sentencing discretion might have been for that crime and offender. A longer sentence may well have been appropriate as a proper exercise of the sentencing discretion. It is noted that Blow J described the sentence as "well within range": par14. The parole eligibility period of three years and six months was also upheld and not considered to reveal any error.

46 In this case the length of the sentence imposed upon the appellant was ameliorated by the leniency extended to the appellant in terms of the non-parole period. The appellant received just three months more than the minimum non-parole period. The purpose of the legislation regarding parole eligibility was referred to by Evans J in Mabb at par12:

"The intention that underpins legislation as to parole eligibility is the mitigation of punishment in favour of rehabilitation through conditional release, once an offender has served the minimum time that the sentencer determines justice requires that the offender must serve having regard to all the circumstances of the offence: see Deakin v R [1984] HCA 31; (1984) 58 ALJR 367 and Power v R [1974] HCA 26; (1974) 131 CLR 623 at 629."

47 In this case, the judge acknowledged the appellant's personal circumstances and the gap in his offending for crimes of violence, and these considerations are reflected in the order made for parole eligibility.

48 The sentence of five years' imprisonment is not outside the current sentencing range as indicated by previous sentences delivered by judges in this State and decisions of this Court. It is at the top of the existing range for crimes of this kind, being equal to the head sentence imposed in a previous case (Solia).

49 Regard has been had to previous sentences imposed to ascertain whether the sentence is disproportionately heavy given the nature of the violence and the offender's circumstances. On close analysis of comparable sentences and decisions of this Court, such as Mansell, the sentence of five years is broadly in line with recent sentencing practices for this crime. It is a relatively heavy sentence compared to some other past sentences. However, a heavy sentence was justified.

50 This was a serious instance of offending contrary to s172. The appellant committed a savage attack on a friend who had acted out of concern for his well-being. The prolonged and merciless nature of the attack and the victim's helplessness throughout revealed a viciousness and callousness that required denunciation.

51 As noted, the sentence was merciful in terms of the eligibility for parole and the imposition of a non-parole period close to the minimum.

52 It remains to note that even if the sentence fell outside the current range, that would not necessarily mean that it should be regarded as manifestly excessive. The principles relating to the role of this Court on an appeal against sentence have been recently set out in the judgment of Porter J in Braslin and Cowen v Tasmania [2010] TASSCCA 1. As set out, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to show a miscarriage of the sentencing discretion.

53 The sentence does not show a miscarriage of the sentencing discretion. I would dismiss the appeal.