"The Court of Criminal Appeal has consistently followed the approach suggested by the High Court in House [(1936) 55 CLR 499 at 504] Cranssen [(1936) [1936] HCA 42; 55 CLR 509 at 519] and Harris [(1954) [1954] HCA 51; 90 CLR 652 at 656] and these cases are cited ad nauseum in sentencing appeals."

1. And, as I have frequently observed in the past in appeals such as the present, where the principal ground is manifest excess or manifest inadequacy, I bear Professor Warner's admonition in mind, and content myself with setting out what Porter J said in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]-[34]. His Honour there observed:

"31 For the purposes of this case, I think it is desirable to traverse some well-travelled territory, and to again note the role of this Court on an appeal against sentence. 'The Court of Criminal Appeal has no charter to tinker with sentences. It sits to rectify genuine error'; Aherne v R 20/1982 per Nettlefold J at 3. In accordance with the traditional formula as set out in House v R (1935) 55 CLR 499, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to give rise to the inference that there has been a failure to properly exercise the discretion. As Kourakis J said in A, MC v Police [2008] SASC 279; (2008) 102 SASR 151 at [88], 'An appeal ground that a sentence is manifestly excessive is really a convenient alternative expression of the complaint that the sentence is by reason of its severity, unreasonable or plainly unjust.'

32 In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Kirby J (with whom Gummow and Gaudron JJ agreed) stated at [58]:

1. More recently in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, a case involving a sole ground of appeal that the sentence was manifestly inadequate, Pearce J, with whom Blow CJ and Porter J agreed, most succinctly and comprehensively, if I may once again say so with respect, summarised the relevant principles at [8] as follows:

In determining the appropriate sentence, I will rely on Cordwell v State of Tasmania [2017] TASCCA 14, Barron v Tasmania [2010] TASCCA 3; (2010) 20 Tas R 114, Inkson [1996] TASSC 13; (1996) 6 Tas R 1, and the material in Sentencing in Tasmania, Warner, 2nd ed, 11.304-11.310, Tables 6 and 7.

1. I should say at once that, in my view, the learned sentencing judge did not err in finding that the appellant's crimes were not committed spontaneously. The decision to carry out the attack may have been made spontaneously when the appellant saw the complainant's motor vehicle at the service station, but the transcript of the sentencing hearing before his Honour discloses that CCTV footage which was retrieved from the service station depicts the appellant arriving in his van and then approaching the complainant's ute and waiting there for one or two minutes, at the end of which the complainant can be seen approaching, and the attack takes place. If the appellant had not already removed his shirt and armed himself with the iron bar, it might be argued that it was something in the complainant's manner that prompted the appellant to set upon him, but, in my view, that decision had already been taken by the appellant some minutes earlier.
2. I can also dispose at once of the assertion that the learned sentencing judge erred in failing to impose a probation order. It is clear from the transcript of the sentencing hearing that the appellant had taken steps towards his rehabilitation, despite a lack of funds, and that he had done so on his own initiative. He had established a regular medical regime, had made contact with the Bridge Program to assist with his alcohol abuse, and was investigating volunteer work while contemplating re-entering the work force. It was open to his Honour, having taken the decision to impose an immediate sentence of imprisonment, to form the view that further rehabilitation would occur within the prison system, and as a result of the appellant's own efforts upon his release.
3. As to rehabilitation, I am of the view that his Honour was entitled to take the approach suggested by Pearce J in Kirkwood v Tasmania [2017] TASCCA 7 at [9], albeit that case involved an offence against s 170 of the Code. Pearce J observed that for a grave crime any entitlement to lenience arising from the appellant's age and the prospect of his reform is to be subordinated to the dominant sentencing considerations of general and specific deterrence, denunciation, punishment and vindication of the victim. As counsel for the State submitted to his Honour on the sentencing hearing, the attack was unprovoked, utilised a weapon, occurred in a public place during daylight hours, and there were a number of people in the vicinity who were exposed to the violence, including children. It was prolonged in the sense that it involved more than one strike and it continued despite the efforts of a member of the public to intervene. However, whether the learned sentencing judge did subordinate the appellant's rehabilitation to other sentencing considerations will really only be seen by determining whether the sentence he imposed was, in all the circumstances of the case, manifestly excessive. Likewise the asserted errors in failing to give sufficient weight to the appellant's pleas of guilty, his prior good record and the impact of his Major Depressive Disorder on his offending can only be assessed in the context of the question of manifest excess.
4. Turning to the crimes of causing grievous bodily harm and assault, in a case of what was really a single course of criminal conduct, the more serious offence is obviously that of causing grievous bodily harm contrary to s 172 of the Code.
5. In Director of Public Prosecutions v Blackaby [2013] TASCCA 4, I said at [18], with Blow CJ and Wood J agreeing:

'8 A crime against s170 involving a specific intent to do grievous bodily harm is generally regarded as worse than one against s172, which does not necessarily involve such an intent: R v Allen [1999] TASSC 112 per Cox CJ at par [2]; Barron v Tasmania [2010] TASCCA 3 at par[21].'"

"13 Count 1 in the indictment alleged a breach of the Criminal Code, s170. The seriousness of such criminal conduct has been reviewed in a number of previous decisions of this Court (see Lovegrove v R [1961] TASStRp 13; [1961] Tas SR 106; Brown v R (supra); Bennett v R [1990] TASRp 6; [1990] Tas R 72; R v Marshall 70/1990; Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1). In Papazoglou v R 9/1963, the Court of Criminal Appeal refused to dissent from comments made by the Chief Justice when imposing sentence upon the appellant for an offence against the Code, s170 that:

1. These comments were re-affirmed recently in Jay v Tasmania [2016] TASCCA 12, and in Price v Tasmania [2016] TASCCA 22, in which cases sentences of seven years' imprisonment with a non-parole period of five and a half years, and ten years' imprisonment with a non-parole period of six years were held not to be manifestly excessive and were upheld by this Court, albeit in cases involving injuries somewhat more severe than those suffered by the victim in the present case.
2. In Director of Public Prosecutions v Rogers [2011] TASCCA 17 at [16], where Evans J, with whom Porter and Wood JJ agreed, observed at [16]:

"16 The crime that is the subject of count 2 is committing an unlawful act intended to cause bodily harm in breach of the Code, s170. It is a serious crime. An element of it is a specific intent to disable or do grievous bodily harm. In DPP v Blyth [2010] TASCCA 10, Blow J, agreed with by Porter and Wood JJ, reviewed a number of authorities on the sentencing range that was appropriate for a contravention of s170. The effect of that decision and the authorities to which it refers is that subject to the unimpaired discretion of a sentencing judge to impose a sentence that is reasonable, ordinarily a contravention of s170 should attract a sentence of imprisonment of between three to seven years. The decision also refers to the importance, when sentencing for this crime, of the severity of the victim's injuries and the extent of any permanent disability or incapacity."

1. I have set out the foregoing passages to make it clear that when considering the sentence of three years' imprisonment in the present appeal it must be borne in mind firstly, that a crime against s 170, involving as it does a specific intent to do grievous bodily harm, and which ordinarily attracts a sentence of three to seven years' imprisonment, is generally to be regarded as worse than a crime against s 172 for which the appellant was in part sentenced and, secondly, that s 172 requires a mental element involving either an intent to cause grievous bodily harm or foresight of the likelihood of that kind of harm. Although the issue of the relevant mental element was not raised by anyone on the sentencing hearing, nor mentioned in the learned trial judge's comments on passing sentence, the appellant should, in my view, be regarded as sentenced on the basis of recklessness and not on the basis of an intention to cause grievous bodily harm.
2. In the present case, perhaps more by good luck than anything else, the complainant's injuries and their sequelae were not as serious as some other cases. He escaped with a 5 centimetre wound that was stapled in the emergency department of the hospital, although he was later found to have a non-displaced skull fracture to the left occipital bone, with no secondary brain bruising or bleed. He was to be admitted to hospital to manage his skull fracture and to exclude a cerebral spinal fluid leak, and to commence concussion management, however he discharged himself. Taking all matters into account, including the nature of the attack and the weapon used, as well as the extent of the complainant's injuries, I am of the view that the appellant's offending is at the lower end to the middle of the range of seriousness for offences of its kind.
3. In Barron v Tasmania [2010] TASCCA 3, 20 Tas R 114, Wood J, with whom Blow and Porter JJ agreed, whilst accepting that comparable sentences imposed for this crime are useful as setting a broad sentencing range, made the following observations at [28]-[30]:

'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'."

1. In the present case, the learned sentencing judge had proof of the nature and effect of the appellant's mental impairment in the form of a Major Depressive Disorder and the way in which it was relevant to his offending. In the report referred to by his Honour in his comments on passing sentence, which had been prepared by Dr Michael Jordan, it was noted that the appellant was at the time of his offending suffering from a Major Depressive Disorder and would have been more liable to make ill-considered decisions. Indeed Dr Jordan opined that the appellant's symptoms would have increased his propensity to act in an impulsive, disinhibited fashion when faced by adversity.
2. Moreover the learned sentencing judge had been advised by the appellant's counsel in her submissions on the sentencing hearing that within about two months of his offending the appellant was placed on a mood stabiliser, and he had maintained use of his prescription medication since that time. Counsel informed his Honour that the appellant instructed that the effect on his mood has been quite remarkable, that he no longer felt uncontrollable anger as he did previously, and he was dedicated to maintaining use of it for as long as it is recommended to him.
3. The first three of the Verdins principles are (a) impairing the offender's ability to exercise appropriate judgment; (b) impairing the offender's ability to make calm and rational choices, or to think clearly; and (c) making the offender disinhibited. The correct approach was said in Verdins at [15]-16] to be that general deterrence was not eliminated but still operated, sensibly moderated in cases where the principles were engaged, as the first three seem to me to be in the present case. The extent of moderation was said to depend on the nature and severity of the symptoms and their effect upon mental capacity. As noted by Porter AJ in his paper, the court in Verdins acknowledged that it was the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce blameworthiness, but said the effect on the assessment will vary with the nature and severity of the condition, and the nature and seriousness of the offence.
4. Whilst mindful of the observations of a court of five judges in Pantazis v The Queen [2012] VSCA 160 at [195] that an impairment that simply predisposes a person to flawed decisions is not sufficient, nonetheless, in my view, in the present case the necessary connection between the appellant's mental impairment and his offending was established. I point out that the offending may not have occurred at all if the appellant had been properly medicated at the time. I note the submission of counsel for the respondent, Ms Denton, that Dr Jordan did not go as far as to say that the appellant's mental health "caused his actions" but Verdins considerations are not reserved only for cases where mental impairment is the sole or controlling causative factor. A "realistic connection" with the offending and an "impaired ability to make calm and rational choices" are sufficient to enliven principles one to four of Verdins (Director of Public Prosecutions (Vic) v O'Neill [2015] VSCA 325, 47 VR 395 [74]-[75]). Such a connection and such an impaired ability are apparent in this case to my mind. As a result the appellant's blameworthiness is reduced, and general and specific deterrence need not be given prominence as sentencing considerations.
5. While the existence of a mental impairment will almost always be relevant to the sentencing of an offender, and will often result in a lower sentence, such modification is not always the case: GOK v The Queen [2010] WASCA 185 at [58] citing Gleeson CJ in Engert (1995) 84 A Crim R 67 at 68. I am of the view however that a modified sentence is warranted in the appellant's case. Having said that, I am not persuaded that a wholly suspended sentence would be appropriate given that it is clear from what was said by the appellant's counsel on the sentencing hearing concerning the investigations made as to the appellant's criminal responsibility that mental illness was not a sole and controlling causative factor in that he was not acting from an irresistible impulse within the meaning of s 16 of the Code. Moreover, notwithstanding the causal contribution of his mental impairment, it is apparent that the appellant at least a minute or two to consider his position after he armed himself and before the complainant appeared on the scene.
6. As I have already noted, Porter J, in Braslin and Cowen v Tasmania (above) at [31]-[34], considered the principles relating to the role of an appellate court on an appeal against sentence. 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. For the reasons I have given I do discern a miscarriage of the learned trial judge's sentencing discretion in the present case. In my view the sentence of three years' imprisonment can be said to be unreasonable or plainly unjust. Error is apparent to my mind. I consider that manifest excess has been established.

1. By these grounds the appellant contends that the sentencing judge failed to give sufficient weight to, respectively, the appellant's plea of guilty, his "progress towards rehabilitation", the appellant's "major depressive disorder" and the appellant's "previously good record". The proposition that a guilty plea, reform and rehabilitation, impaired mental function and criminal record are all factors relevant to sentence is unarguably correct. However they are not proper grounds of appeal for the reasons explained by Porter J as a member of this Court in TAP v Tasmania [2014] TASCCA 5 at [30], and by me in Mulholland v Tasmania [2017] TASCCA 2 at [17]. It cannot be said that the sentencing judge failed to give sufficient weight to any or all of those factors unless the sentence is manifestly excessive taking into account all matters relevant to sentence. The identified factors are to be considered with other relevant sentencing considerations, some of which are conflicting and contradictory, but all of which must be weighed by the sentencing court in determining the proper sentence to be imposed: Pavlic v The Queen [1995] TASSC 96; (1995) 5 Tas R 186; Markarian v The Queen [2005] HCA 25, 228 CLR 357. If the sentence is not manifestly excessive taking all such considerations into account, then it cannot be said that his Honour failed to give sufficient weight to any one of them.

1. The circumstances which justify intervention by an appellate court on the ground that a sentence is manifestly excessive or manifestly inadequate have been stated on many occasions. I respectfully adopt Estcourt J's re-statement of the principles in his Honour's reasons. An appellate court must be satisfied that, with proper allowance for the wide discretion to be afforded a sentencing judge, the sentence is so manifestly wrong that there must have been some misapplication of principle. Error may be established when the sentence is unreasonable or plainly unjust. All matters relevant to sentence must be taken into account.
2. Viewed objectively, these were serious crimes. A stern response was required to meet the sentencing objectives of specific and general deterrence, punishment and denunciation. The appellant committed an unprovoked attack involving multiple blows to the head of the victim with a weapon. The crimes were committed in a public place in daylight when adults and children were exposed to violence. By his plea to the crime of causing grievous bodily harm under the Code, s 172, the appellant admitted that he caused grievous bodily harm to the complainant, and that he either intended to cause grievous bodily harm or was subjectively reckless; that is, he appreciated that grievous bodily harm was a likely consequence of his acts. Adopting the position as to intention most favourable to the appellant, he acted despite an appreciation that the blows he struck to the complainant with the heavy implement he used were likely to result in bodily injury of such a nature as to cause or be likely to cause serious injury to the complainant's health. The attack was not especially prolonged, but was long enough to involve multiple blows. The appellant did not take the opportunity to desist, despite being requested by the complainant and the onlooker to do so.
3. The appellant's contentions, as can be elicited from the grounds of appeal and his brief submissions, are principally directed to his subjective circumstances. He is not married and has no children. He has no relevant prior convictions. At the time of the crimes he was employed as a linesman for Telstra. He had held that employment for about four and a half years. However, in the period leading up to the crimes, his work had become increasingly demanding and stressful for him. He was experiencing some financial pressure. Although all factors relevant to sentence are to be taken into account, the appellant placed particular emphasis on the identified specific factors: his plea of guilty, his good record, rehabilitation and his mental health.
4. An important aspect of the appellant's sentencing is his plea of guilty. Pleas of guilty should ordinarily attract a reduction in sentence: Ilic v Tasmania [2009] TASSC 94, 19 Tas R 201. A plea of guilty may indicate an acceptance of responsibility, contrition and remorse. However, mitigation also arises from the utilitarian benefit of a plea of guilty: Dennison v The State of Tasmania [2005] TASSC 54, 15 Tas R 50, per Slicer J at 54 [14]. That is so even if the case against an accused is strong and the plea "was born of nothing other than acceptance of the inevitable": Director of Public Prosecutions v Harris [2013] TASCCA 5, 22 Tas R 448, per Estcourt J at 458 [41]. See also DPP (Cth) v Thomas [2016] VSCA 237, 315 FLR 31 and Xiao v The Queen [2018] NSWCCA 4, in which intermediate courts of appeal in Victoria and New South Wales considered the mitigatory effect of a plea of guilty in federal offences.
5. In this case the appellant was entitled to mitigation from his plea. It facilitated the course of justice and meant that the complainant and the witnesses were not required to prepare for and appear as witnesses during a trial. They were not required to give evidence and be cross-examined, thus did not have to re-visit and recount the events of that day. It was not a particularly early plea but was entered not long after the extent of the complainant's injuries and the amended charges were brought to the appellant's attention. Some delay in entry of the plea was explained by an investigation into the appellant's mental capacity. The mitigatory effect of the plea was recognised by the sentencing judge. His Honour said that the appellant "is to be afforded some amelioration for that plea, although he could have pleaded earlier to the lesser crimes".
6. The appellant had no relevant prior convictions. The sentencing judge recognised the appellant's otherwise good record. His Honour mentioned in his sentencing remarks that the appellant had "never been to prison and has only been convicted on three minor traffic matters".
7. A factor in sentencing in this case is the appellant's mental health. Mental disorder or abnormality or impairment of mental function may be relevant to sentence in the ways explained by the Victorian Court of Criminal Appeal in R v Verdins, Buckley and Vo [2007] VSCA 102, 16 VR 269. In this State, Verdins was applied in Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 by Porter J, with whom Tennent J agreed. His Honour's statements of principle have been applied in a number of decisions of this Court since then. In CBF, at [36], he applied the reconsideration and re-statement of the principles in R v Verdins at 276:

1. When asked whether any disorder impaired the appellant's ability to exercise judgment, Dr Jordan answered that "although a Major Depressive Disorder can impair judgment, this is only usually the case when that depressive disorder is more severe". Dr Jordan did not state whether the appellant's depressive disorder was in fact severe, only that there was some evidence that the appellant's judgment at work had been impaired. When asked whether any disorder impaired the appellant's "ability to make calm and rational choices or to think clearly", Dr Jordan stated that the depressive disorder "would have affected his sleep pattern and energy levels". The problems, according to Dr Jordan, would have been compounded by the appellant's "regular use of alcohol after work". The combination of problems that the appellant was facing in his life "would have made him more liable to ill-considered decisions such as on the day in question". The appellant was not directly affected by alcohol at the time of the crimes. Dr Jordan's report suggests only that the appellant's consumption of alcohol was one of a number of factors which combined to affect the appellant's judgment. To the extent that consumption of alcohol induced the offending, it is not mitigating. Dr Jordan's report did not extend, at least with any clarity, to the proposition that alcohol contributed to impaired mental functioning. According to Dr Jordan the effects of the bullying suffered by the appellant at school may have "increased his propensity to act in an impulsive, disinhibited fashion". Dr Jordan states that there is no indication that the appellant's depression prevented him from forming an intent to commit the offence, although there was "likely some deficits in judgment".
2. As to treatment, Dr Jordan recommended that the appellant's alcohol misuse be addressed and noted that his anti-depressant medication would continue. When asked about imposition of a sentence of imprisonment on the appellant, Dr Jordan indicated that treatment would be available to the appellant in prison, although not to a standard available in the community. He opined that the appellant would likely feel further isolation and fear and, at least initially, his mental health would deteriorate. When asked to make a general comment, Dr Jordan stated that the appellant "resorting to violence was an impulsive moment of intense frustration".
3. In my respectful opinion, the material before the sentencing judge justified the conclusion that the mental condition suffered by the appellant at the time of offending was of some, but limited, weight. From Dr Jordan's report it may be concluded that, at the time of the crimes, the appellant may have suffered some "impairment" or "deficit" in judgment, that he was "more liable" to ill-considered decisions, and that there may have been some increase in propensity to impulsivity. However, on my assessment of the report, the nature and severity of any mental condition was not so serious as to reduce the appellant's moral culpability by anything beyond a limited extent, particularly when compared to the seriousness of the violence he inflicted: Freeman v The Queen [2011] VSCA 349 at [27]- [28]. The crimes were not especially impulsive. After arming himself the appellant had ample opportunity to reflect on his conduct before acting, and the material does not justify the conclusion that he was unable to do so. The extent to which his judgment was impaired is not specified, and the appellant was able to exercise judgment in other ways. Before the sentencing judge, the appellant's counsel did not contend that the content of Dr Jordan's report supported the assertion that the appellant's moral culpability was reduced. The submission was limited to the contention that the appellant's mental health reduced the significance of general deterrence as a sentencing consideration, and was relevant to how the appellant would deal with prison. The nature and severity of the symptoms did not eliminate general deterrence or specific deterrence as sentencing considerations. At its highest, the material may have moderated the significance of general deterrence but, again, not to any great extent. The only material which had a bearing on the type of sentence to be imposed was Dr Jordan's opinion that treatment only to a lesser standard would be available in prison and that the appellant may, at least initially, suffer some deterioration in mental health. I see no reason to conclude that he would not obtain any treatment he reasonably requires.
4. In my view, the material before the sentencing judge about the appellant's mental health, was not, even when taken in combination with all other factors relevant to sentence, sufficient to justify the conclusion that the head sentence of imprisonment for three years, with one year suspended, manifested error justifying appellate intervention.
5. I have a different opinion about the non-parole order. Because one year of the three year sentence was suspended, the combined effect of s 17(3) and (8) of the Act was that the sentencing judge could have ordered that the appellant be eligible to apply for parole after having served 12 months of the sentence. His Honour ordered eligibility for parole only after 18 months had been served. A parole ineligibility period should be the minimum period that the sentencing judge determines that justice requires the prisoner must serve in prison, having regard to all the circumstances: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 629; Carr v The Queen [2002] TASSC 60, 11 Tas R 362 at [96]; Richman v Tasmania [2011] TASCCA 18 at [47]; Director of Public Prosecutions v Harris [2013] TASCCA 5. There is no presumption that the non-parole period should be the minimum: Pickrell v Tasmania [2011] TASCCA 13 at [13]. However, a long parole ineligibility period may make a sentence manifestly excessive: Groenewege v Tasmania [2013] TASCCA 7 per Porter J at [56]-[59]. In Gill v The Queen [1990] TASSC 37, Crawford J (as he then was), with whom Neasey J agreed, commented on the effects of not making an order that a defendant be eligible for parole at the earliest possible time:

(1935) 55 CLR 499

(2008) 102 SASR 151

(2000) 202 CLR 321

(1977) 137 CLR 293

(1936) 55 CLR 499

(1992) 1 Tas R 234

(1999) 195 CLR 665

(1997) 189 CLR 295

(2010) 242 CLR 520

(2010) 20 Tas R 114

(1996) 6 Tas R 1

(1995) 5 Tas R 186

(1974) 131 CLR 623