Burton v R [2002] TASSC 64

Supreme Court of Tasmania|2002-09-11|Before: Slicer JJ, Crawford J, Blow J, Cox CJ, Underwood J

CITATION: Burton v R [2002] TASSC 64

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Parity - Generally - Consistency of sentencing - Whether sentence manifestly excessive.

Lowe v R [1984] HCA 46; (1984) 154 CLR 606; Griffiths v R [1977] HCA 44; (1977) 137 CLR 293, applied.

Judgment Number: [2002] TASSC 64

2 Sentence of imprisonment for three years and six months quashed.

3 In lieu thereof there will be a sentence of imprisonment for two years and three months to date from 29 July 2001.

1 Sentence of imprisonment for three months cumulatively on the sentence he was then serving quashed.

2 In lieu thereof there will be a sentence of imprisonment for three months cumulatively on the sentence of imprisonment for two years and three months imposed today.

1 I have had the advantage of reading the reasons for judgment of Crawford J. I agree with them. I would only add that in my view, had the jury been satisfied to the requisite degree that at the time the appellant intentionally applied force with the knife to the complainant's neck, he intended to cut the skin, or foresaw that such a cut was likely, the sentences would be unimpeachable. I agree with Crawford J that it is difficult to understand how the jury could be satisfied to the requisite degree of the elements of the crime of assault, but not that of wounding.

2 But, for the reasons advanced by Crawford J, the appellant was not to be sentenced upon the basis that at the time of the assault he intended or foresaw a wound. Notwithstanding that, it was a very bad case and I agree that an appropriate total sentence for all the crimes committed on the morning of 29 July 2001 is two years and six months.

3 The appellant was indicted for crimes allegedly committed in the course of one incident on 29 July 2001, on the first count for aggravated burglary with intent to commit the crime of murder or assault, and on the second count for attempted murder by cutting the complainant's neck or, alternatively, on count 3, for committing an unlawful act intended to cause bodily harm, contrary to the Criminal Code, s170(1)(a), in that with intent to maim, disfigure, disable or do grievous bodily harm to the complainant, he wounded her by cutting her neck. On a fourth count, he was charged with assaulting the complainant by grabbing her by the hair and dragging her outside the house in which the other crimes had allegedly occurred, and by taking hold of her arm and dragging her along the driveway and then the street.

4 On 11 December 2001, at the end of a trial before Blow J, he was found guilty of the assault charged in count 4, but the jury were unable to agree to verdicts on the first three counts. The sentencing proceedings in respect of count 4 were adjourned and a retrial on counts 1, 2 and 3 was conducted before Cox CJ early in February 2002. On 11 February, the appellant was found guilty of the aggravated burglary charged in count 1. With respect to counts 2 and 3, the jury were directed that the following verdicts were open to them:

2 not guilty of attempted murder but guilty of committing an unlawful act intended to cause bodily harm (s170);

3 not guilty of attempted murder but guilty of wounding (s172);

4 not guilty of attempted murder but guilty of assault; or

With respect to those counts he was found not guilty of attempted murder but guilty of assault.

5 On 18 February 2002, Cox CJ sentenced the appellant to imprisonment for three years, six months from 29 July 2001, being the day upon which his custody commenced, for the crimes of aggravated burglary and assault with respect to which he was found guilty at the second trial. On 13 March 2002, Blow J sentenced him to three months' imprisonment cumulatively on the other sentence, for the assault in count 4 for which he was found guilty on 11 December.

6 The appellant lodged two notices of appeal. By the first, in file CCA 13/2002, he appealed against the sentence of three years, six months on the ground that it was manifestly excessive. By the second, in file CCA 27/2002, he appealed against the sentence of three months' imprisonment on a first ground that the sentence was manifestly excessive and on a second ground that the learned judge erred when he imposed the three month sentence cumulatively on the other sentence.

7 The factual basis for the sentences was not in issue for the purposes of the appeal. The complainant was 26 years of age, and at the time of the incident had one child aged approximately six months. She and the appellant resided in a de facto relationship between May 2001 and Friday 20 July 2001, on which date she informed the appellant that she wished to end the relationship. However he continued to reside in her house until Wednesday 25 July. On that day there was an incident ("the Wednesday incident") during the course of which, according to the complainant's evidence, he assaulted her. That assault was not the subject of a count on the indictment. After the Wednesday incident, the complainant and her child were taken to stay in a flat ("the flat") occupied by the complainant's mother, Mrs Haines, and her boyfriend, Mr Radford.

8 According to the complainant's evidence, during Thursday the appellant went to the flat on several occasions wanting to talk to her. He also attempted to call her on her mobile telephone on numerous occasions. She refused to communicate with him. The police were called on several occasions and on at least one occasion removed him from the vicinity of the flat. On Friday, 27 July, a dispute developed between them over the possession of some chattels. As a result of the dispute, she took his lawnmower from her house to the flat. Later that day, she attended on her solicitor to initiate proceedings for a restraining order against him. During the Friday night into early Saturday morning, the appellant made several threatening telephone calls to the complainant. She complained to the police. On the Saturday morning, the police arrested and charged him with the assault that allegedly occurred during the Wednesday incident. After being charged, he was released on bail with a condition that prohibited him from approaching the complainant or the flat. There was no further contact between the appellant and the complainant between his release by the police on Saturday morning and the incident next day, Sunday, 29 July, when the crimes were committed.

9 Evidence called by the prosecution was that about 6am the complainant, her child, Mrs Haines and Mr Radford were asleep in the loungeroom of the flat. The appellant, who had been drinking for several hours, came to the flat and smashed a large window of the loungeroom. He entered the unit through the broken window, holding a large knife, about 30 centimetres long with a serrated blade. His entry into the unit was the basis of the aggravated burglary charged in the first count in the indictment. He was yelling words such as "where is the fucking slut" and "where is she". He went to the complainant's bed, where she had been sleeping with her child, shouting that he was going to kill her. He dragged her by the hair into the kitchen. She had her child in her arms but was able to roll him away. She was struggling with the appellant as she was being dragged by him. In the kitchen he pushed her to the floor, pulled her head back by the hair with his left hand and commenced to cut her on the neck with the knife, which was held in his right hand. She grabbed the blade of the knife with her right hand but it slipped out, causing a cut on her finger. He then attempted to cut her again in the neck area. She again took hold of the blade of the knife and it snapped. That attack on her with the knife was the basis of the crimes charged in the second and third counts.

10 Physical injuries suffered by the complainant included a laceration, seven centimetres long, running from her neck up over her chin. It was described by a doctor as superficial only, involving the layers of the skin and subcutaneous tissue, but not the underlying tissue. The wound was sutured. The complainant also had minor lacerations of the left third and fourth fingers, no doubt caused by her gripping the knife, that required no medical treatment.

11 After the incident that occurred in the kitchen, the appellant dragged her out of the house, down the driveway and along the street, for a total distance of about 40 metres, before calming down and talking to her. That was the subject of the fourth count in the indictment, for which he was found guilty in December 2001.

12 The appellant's case at the trial was as follows. He disputed many allegations concerning the lead-up events. He asserted that the complainant did not terminate their relationship until after the Wednesday incident. He denied assaulting her during that incident. He denied coming to the flat regularly on the following day and denied making threatening telephone calls. He agreed that they had a dispute concerning property on the Friday. He agreed that on the Saturday morning he was charged with assault and bailed on a condition that he not approach the complainant or the flat. He agreed that he went to the flat between 6 and 6.30am on Sunday, 29 July. He said that he had been drinking and was "semi drunk". He knew that he was breaching the bail condition by going there. He claimed that he went there to get some belongings. He claimed that the bottom half of the window shattered when he knocked loudly on it and he then kicked in the rest of it with his foot. He claimed that he entered through the window for the purpose of talking to the complainant about his belongings. He denied entering with a knife, claiming that he picked it up from a table in the flat when he was threatened by Mr Radford.

13 It was the appellant's evidence that after he had a confrontation with Mr Radford, he went to the complainant's bed, holding the knife. He sat on the bed and they argued over the disputed property. She became angry and grabbed the knife from him. She attacked him with the knife and his arm was cut by it as he defended himself. They then struggled as he attempted to take the knife from her. During the struggle he was cut by the knife on the shin. They moved into the kitchen and continued to struggle for possession of the knife. Eventually he was able to break the blade away from the handle. He was unsure how the complainant suffered the laceration to her chin but suggested that it occurred accidentally during the course of the struggle in the kitchen. He agreed that he dragged her out of the flat and along the driveway and street against her will.

14 In his comments on passing sentence for aggravated burglary and the first assault, Cox CJ said:

"For present purposes I find that when you entered the premises it was your intention to inflict some form of violence upon Miss Norton, and that you were armed with a knife at that stage. I make those findings because I accept her evidence that she saw a knife when you entered, and I accept the evidence of her mother and Mr Radford that the knife in question was not one owned or seen before by either of them. I think it highly unlikely in any event that such a knife would have been just left fortuitously on the table and discovered by you when you claimed to have turned the light on in the kitchen and to have then seen it. Your behaviour that morning was disgraceful. You were filled with selfish resentment against your former partner Miss Norton and were determined to either get her to do your will or to punish her by assaulting her if she would not resume cohabitation with you. The police had diplomatically handled the growing tension between you since the previous Wednesday when they were called to Miss Norton's home which she had shared with you. They took her and her child and her mother and Mr Radford back to the latter's small premises where, because of your hostility, they were virtually forced to confine themselves in cramped quarters. You kept coming around there and the police were called and took you home telling you not to come back there. On the Friday Miss Norton went to her solicitor to seek advice and you contacted her there on the telephone. On the Friday evening you made several threatening calls to her, and early on the Saturday morning you went again to the vicinity of Mr Radford's premises having rung Miss Norton and threatened her yet again. Once again the police were called, and as a result you were arrested and charged with assault in respect of the incident on the Wednesday night. On that charge you were bailed with quite specific conditions that you not contact Miss Norton or go near the premises she was occupying. Notwithstanding these conditions, you drank to excess on the Saturday night/Sunday morning and some time after 6am you went to Mr Radford's premises and smashed the window so thoroughly as to enable you to enter, and from the photographs it appears that you must have kicked or punched out virtually every scrap of glass in it. Bursting into the premises which you knew you were prohibited from entering, and armed with a knife, and intent on assaulting Miss Norton if she didn't accede to your demands, you made your way to the bed she was occupying with the baby. You then dragged her by the hair and dressing gown towards the kitchen, causing her to stumble several times and roll the baby which she had in her arms out of harm's way. In the kitchen you assaulted her with the knife, cutting the upper part of her neck and extending onto the chin.

The jury have negatived any specific intention to kill her or to maim or disfigure or even to cause a wound. They have also negatived any subjective recklessness in respect of causing the wound. Nevertheless, you applied force intentionally to her by bringing the knife in contact with that part of the body and it caused a superficial cut which bled, adding to her distress. She was able to pull the knife blade away and sustained a cut to her hand in the process. The whole episode to this point of time must have been a terrifying one to all the adults in the small flat where it occurred and of course especially to her. It was a home invasion of a most alarming kind. It had very grave consequences as I've heard this afternoon. Pain and discomfort and flashbacks were recorded by the doctor in the following weeks. Considerable counselling was recommended and undertaken. She was seen by Miss Hislop who found that she had a clinically significant anxiety state. She had a significant level of depression and was suffering symptoms of post traumatic stress disorder. She found her in need of continuing counselling as at September 2001. Since then, after having had to give evidence at the first trial in December, she was an in-patient at the Spencer Clinic I have been told for some two weeks. Her condition of post-traumatic stress disorder has now been confirmed. She is now on a relatively heavy medication regime. She still experiences flashbacks of this terrible experience and she is in fear of you when you are ultimately released. The courts have repeatedly said that disgruntled parties to domestic disputes have no right to vent their anger on the party offending them, nor to cause harm or fear to others giving that party comfort or shelter. This kind of lawlessness is simply not going to be tolerated in any decent society.

I take into account the fact that you have been in custody since the incident occurred and I will back-date the sentence accordingly. It is a great pity that you allowed yourself to become the victim of your own emotions, to allow them to have got the better of you, and to launch this attack on Miss Norton. Your prior conduct indicates that you are of industrious habits, that you have made a worthwhile contribution to your preferred sport and to other young people's participation in it, and your previous convictions are, it would appear, at the lower end of the scale. Nevertheless, the grave consequences of your actions and your persistence in trying to force your will on Miss Norton despite her rejection of you make your crimes very serious.

You are sentenced to imprisonment for three years and six months from the 29th of July 2001."

15 In his comments on sentencing the appellant for the second assault, Blow J said:

"At this stage, the prisoner decided to take her away, against her will, in order to talk to her. He said, 'You'll fucking come with me. We're going to talk'. He dragged her out of the house, down its driveway, and along the street, a total distance of about 40 metres, before calming down and talking to her. She was no doubt terrified that he would inflict further violence on her. She had been in fear of her life. She did not know what was going to happen. She no longer had the support, or possibility of support, from the other adults who had been in the house. She tried to hang on to the front door, the fence outside, and to another fence along the street, but the prisoner overpowered her each time. She now suffers from post-traumatic stress disorder as a result of the incident as a whole.

In my view this second assault was so serious that, taking into account the other crimes that the prisoner committed as well as it, a total period of imprisonment exceeding six months would be appropriate. I think therefore this second assault warrants the prisoner being sentenced to a cumulative term of imprisonment. However I must take the 'totality principle' into account in his favour, the Chief Justice already having sentenced him to 3½ years' imprisonment. I also take into account in his favour the fact that he has been in custody since this incident occurred, his emotional state on the night in question, his good work record, his industriousness in relation to his education, his achievements and contributions to the community as a sportsman, and the fact that his prior convictions are minor in comparison to the crimes that he committed on the night in question. In all the circumstances, I think a cumulative sentence of three months' imprisonment is appropriate."

16 Counsel for the Crown conceded that having regard to other sentences that have been imposed over the previous ten years or so, the sentence of three years, six months' imprisonment was a high one for aggravated burglary with an associated assault, but submitted that this is an extremely serious example. The burglary was an aggravated one for two reasons. It concerned a building used for human habitation and the appellant was armed with an offensive weapon or instrument when he entered. Criminal Code, s245(a). Other aggravating factors were that he entered premises where he knew there would be a number of people, including a baby; the manner of entry was calculated to cause all those inside to be fearful; and the entry followed previous attempts by the complainant and police officers to prevent further hostile conduct by him, including requests that he not communicate with or approach her, charging him with assault and imposing a bail condition that he not approach her or the flat. Crown counsel properly conceded that the appellant could not be sentenced for his earlier misconduct, but submitted it was not an isolated incident and the appellant's culpability could not be regarded as reduced because his crimes resulted from a sudden emotional explosion in the course of a domestic argument.

17 Aggravating factors surrounding the first assault included the use of the knife; it was applied to the neck with a consequent risk of serious physical injury; and it was committed in the presence of others and must have been a terrifying experience for them. A consequence of the crimes was that the complainant suffered severe psychological effects which continued at the time of sentencing over six months later. That was an aggravating factor that demanded a heavy sentence for his crimes, notwithstanding that her physical injuries were not severe. R v McFarlane [1993] TASSC 161; (1993) 2 Tas R 201.

18 The appellant was 26 years of age. On 26 February 2000 he was convicted and fined $300 by a court of petty sessions for an assault committed two years before these crimes. Associated with that conviction was another for engaging in disorderly conduct, for which a conviction was recorded. He had been fined $80 for the same offence committed about two years earlier. He had no other record. As was observed by the sentencing judges, he had a good work record and had been industrious in relation to his education. He had achieved and contributed to the community as a sportsman.

19 The verdict of the jury that the appellant was not guilty of the crime of wounding under s172, but guilty of the crime of assault, appears strange, for it is difficult to imagine that he voluntarily and intentionally applied force with the knife to the complainant's neck without foresight that a wound was a likely consequence. Nevertheless, as was acknowledged by the learned sentencing judge, that was the factual basis upon which sentence had to be imposed for the first assault, because it could not be inconsistent with the jury's verdict. R v West [1979] Tas R 1; Prokopiec v R [1982] Tas R 170. The sentence could not be imposed upon the basis that he intended to cause a wound to her neck. Lovegrove v R [1961] Tas SR 106; R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.

20 There is no doubt that the sentence of three years, six months' imprisonment for the aggravated burglary and the first assault was substantially more severe than is usually the case for similar crimes. Counsel for the appellant presented to the Court comprehensive details of sentences imposed since 1990 in cases of an aggravated burglary or burglary in association with an assault. The material supports the statements of Professor Warner in Sentencing in Tasmania, 2 ed, at 299, under the heading of "Domestic violence", that in cases of burglary with intent to assault, sentences have tended to be in the 12 months to two years range, and, at 300, under the heading of "Assault and burglary", that global custodial sentences where an assault appeared to be the primary object of a burglary, have ranged from three months to three years with a median of nine months. The most severe sentence of imprisonment for home invasion and assault in recent years, of which I am aware, that might be classified as domestic violence or akin to it, was in the case of Standish in 1991, who was sentenced to 2½ years' imprisonment. His crimes were not only aggravated burglary and assault, but included committing an act intended to cause bodily harm (s170) and wounding (s172). He broke into his ex-wife's home and attacked her with a sharpened knife causing serious injuries. When she fled along the street, he pursued her and stabbed her again and also injured two innocent bystanders who went to her aid. It was a far worse case than this. It is observed by Professor Warner at 286, that sentences for wounding and grievous bodily harm (s172), involving the infliction of serious injuries, when part of a home invasion, have attracted sentences in the three year range.

21 I am conscious that there is usually nothing to be gained by comparing one case with another. I have mentioned the case of Standish only to emphasise the point made by the appellant's counsel that the appellant's sentence was substantially more severe than is usually the case for similar crimes. Indeed, because there is so much variety in the factual circumstances of assaults, counsel for the appellant conceded that there is no clear tariff. But it is nevertheless plain that the sentence of imprisonment for three years, six months was substantially more severe than sentencing records reveal would normally have been expected over the last 20 years from judges of this State, who sit not only in criminal courts at first instance, but also constitute this Court.

22 I see no need to discuss judicial statements made by different members of this Court over the years about the tariff approach to sentencing. I will refer only to the need for consistency, that was emphasised by Mason J in Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610 - 611:

"Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."

See also Barwick CJ in Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 at 310.

23 Having regard to the need for consistency in sentencing and to my own views and experience as a judge, I have reached the opinion that the sentence of three years, six months was manifestly excessive and ought to be set aside. The crimes in question were particularly serious because of the severe psychological injury caused to the complainant and a sentence towards the top of the range of sentences for such crimes that have been imposed over the years was justified, but not one exceeding that range. The circumstances did not justify that. In my view the sentence of three years, six months' imprisonment should be set aside and replaced by a sentence of two years, three months' imprisonment from 29 July 2001. In fixing that term, I have had regard to the sentence appropriate for the second assault, to which I will now turn. In my view a total period of imprisonment of two years, six months is appropriate for this case.

24 Counsel for the appellant conceded that there was no error in the approach of Blow J, nor in the imposition of a sentence of three months' imprisonment cumulative to the other sentence, if the other was an appropriate one. His submission was that because the other sentence was so severe, the sentence of three months' imprisonment ought to have been made concurrent with it. For Blow J to have sentenced on that basis it would have required him to have first reached a conclusion that the other sentence was too severe. That was not an issue for him to determine. Only an appellate court could have done so. Although I agree with the appellant's counsel that the total of three years, nine months' imprisonment was manifestly excessive, that arose because the first sentence was manifestly excessive. The sentence of three months' imprisonment cumulative with the other was not erroneous.

25 The appellant was indicted for the crimes of attempted murder, aggravated burglary and assault, arising out of prolonged conduct during the course of an early Sunday morning. A count of intentional infliction of harm was added to the indictment as an alternative to the count of attempted murder.

26 A jury, unable to agree on the first two counts, convicted the appellant of the count of assault which had occurred some little time after the initial acts of entry and violence. A subsequent jury returned a verdict of guilty in relation to the crime of aggravated burglary and one of guilty to the crime of assault as an alternative to the counts alleging the commission of the crimes of attempted murder and committing an act intended to cause bodily harm. By necessary implication, the jury were not satisfied beyond reasonable doubt that the appellant had committed an act of wounding.

27 The particulars of the first three counts appearing in the indictment were framed in similar terms, namely:

"entered ... a place ordinarily used for the purposes of human habitation as a trespasser with intent to commit the crime of murder or assault and at the time of committing the burglary had with him an offensive weapon namely a knife."

(3) Committing an unlawful act intended to cause bodily harm:

"... with intent to maim, disfigure, disable or do grievous bodily harm to D wounded her by cutting her neck."

28 The jury by their verdict were not satisfied to the requisite degree that the appellant had a particular state of mind or displayed the required degree of recklessness required by the Criminal Code, ss299, 257, 170(1)(a) and 172. The finding of assault as an alternative involved the finding of an intentional act which caused a knife to come into contact with the neck of the complainant.

29 The facts giving rise to the criminal proceedings are sufficiently stated and analysed by Crawford J in his reasons for judgment and do not require repetition.

30 The learned sentencing judge dealt with the complexities raised by the terms of the jury's verdict in the following manner:

"The jury have negatived any specific intention to kill her or to maim or disfigure or even to cause a wound. They have also negatived any subjective recklessness in respect of causing the wound. Nevertheless, you applied force intentionally to her by bringing the knife in contact with that part of the body and it caused a superficial cut which bled, adding to her distress. She was able to pull the knife blade away and sustained a cut to her hand in the process. The whole episode to this point of time must have been a terrifying one to all the adults in the small flat where it occurred and of course especially to her. It was a home invasion of a most alarming kind."

He sentenced the offender to a term of imprisonment for a period of three years and six months.

31 The sole ground of appeal specific to that sentence is that it was:

"... in all the circumstances of the case manifestly excessive."

32 The complaint can be refined into two forms, stated as;

(1) The sentence was manifestly excessive in that it is inconsistent with other sentences imposed by this Court in comparable cases.

(2) The sentence can be seen to be manifestly excessive by reference to comparable cases and its very disparity shows it to be so.

33 General principles governing the purpose and methods of sanction have depended on assumptions such as retribution, restriction, deterrence, rehabilitation and restitution. Those assumptions have been subject to approval or disapprobation, often as a result of a more sophisticated understanding of human dynamics and changing social attitudes. In conceptual terms the role of the criminal justice system in the assessment and imposition of sanction is that of social control. That attempt at social control might be general to the community or specific to the individual offender. The expectations of an informed community must be met as a requisite of the need for retribution, lest lack of confidence in the outcome gives rise to mandatory or mathematical forms of assessment. The accommodation of that expectation ought not be determined by clamour, political opportunism, transient passions or xenophobia.

34 The requirement that community expectations for retribution form part of the sentencing matrix is based on recognition that there be acceptance of and respect by the community of the outcome of criminal proceedings. An analysis of that interplay of public expectation and the determination of sanction, not universally shared, has been stated in the following terms in Lacey, Wells and Meure, Reconstructing Criminal Law at 14:

"Both in terms of the developing definition of crime and in terms of its enforcement, the intangible phenomenon of 'public opinion' and, perhaps more importantly, perceptions of that phenomenon, are enormously influential. This is because some of those involved in creating law are ultimately accountable to the populace (ie politicians), and are therefore liable to be influenced by what they think are prevailing opinions, albeit to a greater or lesser extent depending on the issues involved. It is also because others (such as judges) often find it useful to appeal to 'public opinion' (in the form of fear, anxiety or disgust at a particular crime) to justify a particular legal outcome. This is especially so in the area of sentencing, where they have more overtly acknowledged discretion than in many other aspects of their formal function.

Furthermore since the vast majority of law enforcement is initiated by public complaint and information, the views of members of the public about what is 'real' crime - crime which is worth reporting - and our very willingness to label certain behaviour a crime at all - directly affect patterns of enforcement and, in turn, public perceptions about the nature of the 'crime problem'. The disillusionment and consequent unwillingness of sections of the public to participate in the criminal process by making complaints should also be borne in mind. A complex process of construction and reinforcement, in which news media have an important role, thus produces public opinion about criminal law, and both public opinion and beliefs about it are in turn crucially important to criminal law's development and enforcement."

An attempt to obtain consistency is inherent to that process.

35 Acountervailing theme is the emphasis on the individualism of penalty. Many competing and often conflicting principles impact on the sentencing process. Fox and Frieberg in their work Sentencing in Victoria, 1 ed at 442, refer to a study which identifies 292 matters, accepted by the courts in Victoria, as being mitigatory. They refer to a comparable study in the United Kingdom as identifying 229 such matters.

36 The tension between consistency and individualisation is manifested in the attempt by courts to operate within a range of sentences already imposed, using by a process which has been described as "intuitive synthesis" (R v Williscroft & Ors [1975] VicRp 27; [1975] VR 292). That the process is not capable of precision has been recognised by the High Court in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465, when the majority, Mason CJ, Brennan, Dawson and Toohey JJ, stated, at 476:

"However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."

37 The High Court has expressed the need for consistency in Lowe v R [1984] HCA 46; (1984) 154 CLR 606, when Mason J stated, at 610:

38 An attempt to provide certainty or consistency has been made in New South Wales by the pronouncement and publication of guideline cases such as R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 408; 101 A Crim R 259; R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; Re Attorney-General's Application (No 1) [1999] NSWCCA 435; R v Wong [1999] NSWCCA 420; (1999) 48 NSWLR 340. In Tasmania, the standardisation of penalties by reference to a range of penalties has been accepted as an appropriate methodology (Papazoglu v R 9/1963; [1963] Tas SR (NC 3) 182; R v O'Brien 43/1987).

39 In Tasmania, this Court has assembled a sentencing database which permits access to, and consideration of, the range of penalties imposed in respect of identified crimes or their combinations in particular circumstances. A process of comparison by reference to a particular decision, other than one of the Court of Criminal Appeal, is discouraged (Franklin v R 82/1991), but, as is the case here, an appellant will often contend, for consistency, as showing "manifestly excessive" by reference to a range of comparable cases. Regard is often had to the Tables of Sentences compiled by Professor Warner and published in her Sentencing in Tasmania, Federation Press, 2 ed. Two complications arise in the employment of these models or methodologies. The first involves reference to the statistical term "median" employed by Warner. The median is a mathematical device obtained by the division of a series of numbers, characteristics or events, into equal halves. A median dose of a chemical such as medicine is one which will affect one half of a population of organisms within a specified time. It differs from an arithmetic mean, ie, a single number near the centre which represents the whole set of measurements and which is obtained by an algebraic formula. The median is a measure of central tendency which is the score that ranks in the middle of a distribution of scores, and is not dependent on whether differences along the scale can be trusted. It is an effective tool quite properly used by Warner. The temptation is to use the median calculated by Warner as describing the average penalty appropriate for an average crime committed by an average person without exceptional aggravating or mitigating factors. Undue reliance on the median calculation can be rectified by reference to the maximum penalty imposed in relation to a particular crime or a global sentence which encompasses a combination of crimes. The attraction is to use the highest sentence already imposed as a cornerstone fixing severity. The weakness is the assumption that the maximum penalty already imposed represents the upper limit of permissible sanction. The consequence can be that consideration of specific mitigating factors lead to the imposition of a lesser sentence with an eventual effect on the "median" and the further reinforcing of the value of the cornerstone as a guide to sentence. In R v Dowie [1989] TASSC 44; [1989] Tas R 167, Wright J drew attention to the problem, especially when the cases constituting the database are few or relevant facts not comparable. That dilution can be met by a process of incremental change as determined by the Court of Criminal Appeal in accordance with accepted principle (Barber v R (1976) 14 SASR 388; Breed v Pryce (1985) 36 NTR 23). It can also be met by adopting a less rigid approach to the parameters stated in the "range" and for this Appellate Court to be more accommodating of a particular sentence reached by the method of "intuitive synthesis".

40 The desire for consistency and the use of a "database" ought not overlook the attempt to "individualise" the sentence or ignore the fact that circumstances vary widely from case to case which create difficulty in "the comparable sentence approach". (Reynolds v R 46/1974, Nettlefold J at 12.) While the range of sentences might be properly considered, they do not operate as definitive standards (Berry v R 90/1968, Crisp J, Cairns v R 64/1975, Nettlefold J) or result in a mathematical calculation (George v R [1986] TASSC 19; [1986] Tas R 49, Cosgrove J at 60). In Dowie (supra), Wright J excluded assaults from attempts at standardisation on the basis of variation of circumstances.

41 The use of a range of penalties as shown by those previously imposed will show Reynolds (supra), Nettlefold J:

"... a well established trend in sentencing over a substantial period of time, a period of time long enough to neutralise the element of personal idiosyncrasy"

and remain a valuable tool in the assessment of sanction. But the limitations of that methodology must be borne in mind and that of "intuitive synthesis" remembered. Respect for a sentence "individualised" because of cogent and multiple mitigating factors, which, in itself, runs counter to the aims of consistency, requires accommodation of the converse.

42 A sentence which clearly exceeds the range ought put an appellate court on inquiry, and lead to greater scrutiny. But a sentence imposed which is outside either range does not, by that very reason, show such sentence to be either manifestly excessive or inadequate. The range provides "useful guidance" but is not a "binding principle", breach of which causes error (Poyner v R (1986) 66 ALR 264). Disavowal of the use of a particular case to demonstrate error (Franklin v R (supra)), conversely ought inhibit examination of a particular case by an appellate court in a manner which concludes error by reference to a general range. Whilst sentencing judges might well remain within an accepted range, an appellate court ought not intervene simply because the sentence imposed has, for good reason, transgressed the communality of sentencing approaches. The case of Bryant 22/11/1999, Cox CJ, is no more a touchstone for the crime of murder than is Woodruff, 23/9/1998, Cox CJ.

43 Principle does not require the conclusion that the sentence under consideration was not manifestly excessive. The individualised approach adopted by the High Court in Dinsdale v R [2000] HCA 54; (2000) 74 ALJR 1538 does not defeat the argument advanced by the appellant.

44 It is necessary to consider the circumstances which resulted in the sentence of three years and six months' imprisonment.

45 The appellant correctly identified the case as one of "home invasion" and "domestic violence". He showed that in a variety of such cases such as Standish 12/12/1991, Joseph 7/12/1992, Coulson 17/6/1994, Maxwell 29/4/1996, Boxhall 26/6/1998 and Smith 30/10/1998, that the penalties imposed ranged from 12 months - 2½ years' imprisonment. That range in itself shows the complexity of differing circumstances. In many of those cases, a weapon was used or brandished and/or physical harm caused. In some instances, the offender suffered from some mental affliction, was emotionally disturbed or possessed previous relevant convictions. But each contained a different mix.

46 In this case, the offender, aged 27, had a previous conviction for assault and two for engaging in disorderly conduct. He was not entitled, as a mitigating matter, to the benefit of a plea of guilty. Apart from a relatively good work history, there was little mitigating material which could be placed before the Court. There was no evidence that the offender was remorseful for his conduct.

47 The conviction for aggravated burglary involved a finding of home invasion by a man armed with a knife, intending violence to a person within the home of the mother of the victim, in the early hours of the morning. The entry followed an earlier act of violence committed on the complainant some days previous, repeated acts of harassment, resulting in police attendance, and a court appearance in which he had obtained bail on condition that he not approach his former partner. The act of entry involved the breaking of a large window. The finding by the jury that he entered the home and intended violence to the person removes this case from those where, due to sudden discovery (Bennett v R [1991] Tas R 11) or an outburst suddenly arising, violence occurs. The assault with a knife some 30 centimetres long, involved the application of force to the neck of a woman and followed, or was accompanied by, words of abuse and threats to the safety of the complainant. The violence occurred despite the presence of the young child of the complainant and the appellant and the act of assault, found by the jury, was surrounded by a prolonged course of threatening and violent conduct. During the struggle, the complainant grabbed hold of the knife in an attempt to defend herself and received lacerations to her hand which required 10 stitches. Those surrounding circumstances constituted matters which properly impacted on sentence.

48 The impact on the complainant was, and is likely to be, of long standing. She suffered both physical and psychological trauma. She remains fearful, and certain sights and sounds produce a psychological reaction. She sustains symptoms of "intrusion", avoidance and hyper-avoidability and according to a forensic psychologist, "meets the criteria for Post Traumatic Stress Disorder".

49 The sentence took into account an accumulation of aggravating factors. Although other cases involving domestic violence have resulted in the imposition of a sentence of lesser severity, it is impossible to state that each case examined comprised the same accumulation. The sentence imposed might have been greater than that which I would have imposed on the basis of "intuitive synthesis", but I am not prepared to find that it was manifestly excessive on the basis of the above material.

50 The problem in this case is not the sentence, but the verdict. The jury returned a finding of assault with a knife when the evidence showed there to have been a "cutting of the neck". It is difficult to see how the jury reached a conclusion which, at least, required a finding of wounding in accordance with the element of the Code, s172, but that failure remained the province of the jury. The verdict of the jury inhibited the parameters of the sentence. The circumstances stated above warranted the sentence, but the verdict limited it. On that basis alone, the sentence can be seen to be "manifestly excessive" in the light of the limitation required by the verdict.

51 The sentence imposed here was appropriate for a person possessing criminality and a desire to bring about harm. But it could not reflect conduct intended to cause a wound to the neck. Examination of sentences which reflect domestic violence absent such intent, shows that the sentence imposed here far exceeded any so imposed. The case of Standish in 1991 which involved a sentence of 2½ years' imprisonment, was one involving aggravated burglary, an act intended to cause bodily harm, wounding and assault, effected on his former wife and two innocent bystanders who went to her aid.

52 The sentence of three years and six months, of itself, shows that it is manifestly excessive.

54 I have read in draft from the reasons for judgment of Crawford J and agree with his conclusion that a total period of imprisonment of two years and six months is the appropriate total sentence for both appeals. In respect of these crimes I would substitute a sentence of two years and three months.

55 Because verdicts had been returned by different juries, the sentencing hearing concerning the events which occurred after the incidents inside the home was held after the imposition of the primary sentence by the original trial judge. The process was unsatisfactory, but unavoidable.

56 After the events inside the home, the appellant dragged the complainant outside, down the driveway and along the street. She continued to resist but was overpowered on each occasion. The finding of the learned sentencing judge was that:

"She was no doubt terrified that he would inflict further violence on her. She had been in fear of her life. She did not know what was going to happen. She no longer had the support, or possibility of support, from the other adults who had been in the house. She tried to hang on to the front door, the fence outside, and to another fence along the street, but the prisoner overpowered her each time. She now suffers from post-traumatic stress disorder as a result of the incident as a whole."

57 The appellant was sentenced to a three month term of imprisonment cumulative to that already imposed. The learned sentencing judge took into account the principle of totality and no specific error has been shown in the exercise of discretion or principle.

58 The special circumstances applicable to the appeal in CCA 13/2002 have no import in the determination of this appeal, which ought be dismissed.

59 The special circumstances require intervention in appeal CCA 13/2002. Having regard to the limitation required by the verdict, I would substitute a sentence of two years and three months' imprisonment. The total sentence ought be one of two years and six months.

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Cases Cited (11)