JUDGMENT OF: Underwood CJ, Evans and Tennent JJ

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Co-offenders - Discrimination between co-offenders - Distinction between one committing the crime and the other guilty by way of the Code, s4.

Lowe v R [1984] HCA 46; (1984) 154 CLR 606; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, applied.

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Other matters - Tasmania - Whether sentence manifestly excessive.

Judgment Number: [2006] TASSC 61

1 The appellant and his co-accused, Joseph Andrew Tonner and Michaela Suzanne Mitchell, were jointly charged on an indictment that contained eight counts. The appellant and Tonner were jointly charged with committing four assaults and causing grievous bodily harm. Tonner was charged with an additional count of assault and Mitchell was charged with two different counts of assault. After a trial, the appellant was found guilty of three counts of assault and one count of causing grievous bodily harm. Tonner was found guilty of four counts of assault and one count of causing grievous bodily harm. Mitchell was found guilty of both assaults with which she was charged. The learned sentencing judge imposed the following sentences:

Six years' imprisonment. Ineligible for parole until he has served 4½ years.

Four years' imprisonment. Ineligible for parole until he has served 2½ years.

Nine months' imprisonment. The execution of the last eight months of that sentence conditionally suspended for two years.

2 The notice of appeal attacks the orders of sentence upon the grounds that:

"1 The learned Judge erred in failing to appropriately apply the principles of parity between Jonathon Wayne Clark and his Co-Accused, Joseph Andrew Tonner.

2 The learned Judge erred in law by imposing a sentence which was manifestly excessive in all of the circumstances of the case."

Circumstances surrounding the commission of the crimes

3 In the early hours of Sunday morning, 11 April 2005, the appellant and his two companions were in Salamanca Place, a popular gathering place in Hobart, particularly for young people. The appellant and Tonner were in an aggressive mood. Count 1 on the indictment concerned a Mr Hoppitt. He was standing with three friends in Montpelier Retreat, just off Salamanca Place. The appellant and Tonner walked straight up to Mr Hoppitt and his friends, all of whom were complete strangers to them, and without any reason, the appellant punched Mr Hoppitt in the face. Mr Hoppitt was knocked to the ground. While he was down, he was kicked by either the appellant and/or Tonner.

4 Count 2 alleged an assault by the appellant and Tonner on another member of Mr Hoppitt's group, but they were both found not guilty on this count. After they had assaulted Mr Hoppitt, the appellant and Tonner turned their attention to one of Mr Hoppitt's friends, and either the appellant or Tonner punched him in the side of the face. The blow knocked him down. This was count 3 on the indictment. The appellant and Tonner then left Mr Hoppitt and his friends and walked off up Montpelier Retreat. At the same time, Mr Hoppitt's group walked down Montpelier Retreat in the opposite direction. Although Mitchell was nearby when the first two assaults were committed by the appellant and Tonner, she took no part in them.

5 Not long after, the appellant, Tonner, Mitchell and another male re-approached Mr Hoppitt's group as they were standing on the street discussing the assaults on them. Attempts were made to avoid another attack, but one of Mr Hoppitt's group was unlucky. Either the appellant or Tonner grabbed him by the shirt and he fell to the ground. Whilst there, the appellant and Tonner both tried to kick him, but fortunately he heard his friends call out a warning and he sat up. In consequence, both kicks missed him but connected with each other. The attempts to kick this young man constituted the assault charged by count 4.

6 Counts 5 and 6 on the indictment relate to two assaults that were committed at the junction of Montpelier Retreat and Hampden Road. Again, the victims were complete strangers to their attackers. One of the targets was a male and one was a female. Without any reason at all, Mitchell approached the woman and began punching her (count 5). The woman's male companion intervened and Tonner started punching him (count 6). The couple managed to flee their attackers.

7 Count 7 alleges an assault on Mr Hedge by Mitchell and count 8 alleges that the appellant and Tonner caused Mr Hedge grievous bodily harm. This is the most serious count on the indictment.

8 Mr Hedge and five companions had just left the Crystal Palace, a temporary structure erected in the gardens of Parliament House as part of the "10 Days on the Island" festival. As the group walked past the Abel Tasman monument, there was some light hearted banter among them about the colour of Mr Hedge's tee shirt. The appellant, Tonner and Mitchell came up to the group and started to verbally abuse Mr Hedge. One of them called him a faggot and then, without warning, Mitchell attacked him. She hit him numerous times around the head with a can of beer. In his evidence, Mr Hedge described Mitchell's attack as "crazed". He was knocked to the ground. His friends came over and tried to calm the appellant and his companions, but to no avail. The appellant and Tonner started punching Mr Hedge as he lay on the ground. The appellant then stabbed Mr Hedge three times with a pocket knife that he had been carrying. Mr Hedge suffered very serious wounds. The most serious of these wounds was to the chest. The knife passed through the diaphragm and into the heart, causing a laceration to the right ventricle. Another wound to the chest caused the deflation of the left lung. The third wound was to the abdomen. The stab wound to the heart nearly resulted in Mr Hedge's death. After the stabbing, the appellant, Tonner and Mitchell, all fled the scene.

9 With respect to the criminal liability of Tonner for grievous bodily harm caused to Mr Hedge, the learned sentencing judge made these findings:

"I am satisfied beyond reasonable doubt that Clark and Tonner formed an intention to prosecute an unlawful common purpose, namely the assaulting of Mr Hedge, in conjunction with one another. I am satisfied beyond reasonable doubt that the causing of grievous bodily harm to Mr Hedge by stabbing him was a crime committed in the prosecution of that unlawful purpose. Stabbing him was something done by way of advancing the cause of assaulting Mr Hedge. I am also satisfied beyond reasonable doubt that the stabbing of Mr Hedge was a crime of such a nature that its commission was a probable consequence of the prosecution of the joint purpose of assaulting Mr Hedge. Clark had been drinking. He had been engaged in a series of violent attacks involving senseless aggression. He was armed with a knife. When an aggressive man who has been drinking and is likely to be armed with a knife sets out to participate in an attack on an innocent stranger in a public place, circumstances may well arise that result in the use of that knife as a weapon, and in the stabbing of someone. It follows that Tonner was criminally responsible for the stabbing of Mr Hedge on the basis of the Criminal Code, s4, in my view."

10 His Honour went on to find that although the stabbing of Mr Hedge was a probable consequence of the prosecution of a common purpose, the stabbing was "very much a unilateral act by [the appellant]" and not one that Tonner abetted. He also found that Tonner must have known it was likely that the appellant would be carrying a knife, but could not find that Tonner knew that this was the case. His Honour said that the likelihood was that Tonner realised that there had been a stabbing immediately after the event and joined with the others in fleeing the scene.

11 The following passage, taken from the comments on passing sentence, describes the consequences suffered by Mr Hedge as a result of the criminal conduct of the appellant and Tonner:

"Although Mr Hedge did not lose his life, the effects of the attack on him have been terrible. Initially he did not know he had been stabbed, but he soon realised that blood was spurting from his chest. He collapsed. He was taken by ambulance to hospital, where one group of doctors took steps to reinflate his deflated lung; another team operated on his heart; and a third team operated on his abdomen. He was in hospital for some time, and after discharge had continuing difficulties with pain and restricted mobility. He had planned to travel to Britain some five weeks after the night in question, to live and work there, but that plan has been abandoned. He is a soccer player, but has missed a year's soccer. He has been left without any major physical disability, though he does have some restriction on movement in the chest area, and some tightness of the chest. He has suffered from significant psychological symptoms, some of which are continuing. He has found some unskilled work, but has not taken on work in the profession in which he is qualified. A number of his companions have experienced psychological symptoms, some of them quite serious. For example one of them has trouble with recurrent recollections of the attack and its aftermath. Another is particularly anxious about safety from attack in virtually all places and situations. I think it is now well known that life-threatening events can have very serious psychological consequences, not just for their victims, but also for observers like Mr Hedge's companions. Sometimes such symptoms resolve with time or with treatment, but sometimes such symptoms deteriorate, and become incapacitating."

12 The appellant was 29 years old at the time sentence was imposed. He is a recidivist, although apart from one conviction for assault, he has no record for committing crimes of violence. The appellant's record discloses that he was 11 years old when first convicted of committing a crime. Thereafter, he acquired convictions for burglary (45), attempted burglary (1), stealing (49), attempted stealing (1), obtaining goods by false pretences (7), unlawful possession of property (2), and dishonestly acquiring a financial advantage (1).

13 The appellant had a difficult upbringing. He had poor verbal and cognitive functioning during his school years which led to an assessment that he was "in the borderline category with respect to intellectual functioning". The appellant fell into illicit drug use. His counsel told the learned sentencing judge that in recent times the appellant had made some progress towards giving up drugs. He said that the appellant was on a methadone program and recently had been able to reduce his dosage by half. The appellant was serving a sentence of imprisonment at the time he was found guilty of these crimes. Putting that to one side, he had spent nine days in custody with respect to these crimes. The order of sentence was expressed to be cumulative to the sentence he was then serving. Although the impugned sentence was not reduced by nine days, his Honour certainly took that into account within the meaning of the Sentencing Act 1997, s16(1), for he expressly referred to it in his comments on passing sentence, together with the sentence that the appellant was then serving, and said that the totality principle required him to impose "a somewhat shorter sentence than would otherwise be appropriate".

14 At the time of sentencing, Tonner was aged 23 years. He was 16 when he was first convicted of committing a crime. His record of prior convictions includes burglary (47), attempted burglary (1), stealing (41), receiving (1), unlawful possession (5), injure property (20), assault (1), unlawfully carry a dangerous article in a public place (2), have in possession a dangerous thing with intent to facilitate a crime (1), and attempted arson (1). Accordingly, on the face of it, there is little distinction to be drawn between the appellant's antecedents and those of Tonner. He, too, was addicted to illicit drugs.

15 The learned trial judge was handed two pre-sentence reports prepared with respect to Tonner. One was dated 23 September 2003 and one was dated 19 July 2004. The earlier report details how Tonner fell into offending in order to raise money to pay for drugs to which he had become addicted. The report continues that at the time of writing, Tonner proposed to give up the use of drugs and abandon his criminal conduct. It also states that he proposed to disassociate himself from his criminal companions. Of course, these promises are often made to a sentencing judge, but seldom are they fulfilled. However in Tonner's case it is significant that shortly after this report was written he pleaded guilty to the attempted arson of the Government Forensic Services Laboratory. He committed this crime at the request of his criminal associates who believed that the laboratory held exhibits which would incriminate them and they wished to destroy this evidence. In addition to pleading guilty, Tonner gave evidence against his criminal associates at great personal risk to himself. Although Tonner has convictions after the conviction for attempted arson, they all relate to crimes committed before this plea of guilty.

16 The later report states that Tonner no longer uses drugs or takes alcohol. The author states that it is her belief "that this young man has a positive path ahead of him and that he has every intention of staying out of trouble". These matters disclose a significant divergence between the antecedents of the appellant and Tonner's antecedents at the time of imposition of the impugned sentence.

17 With respect to the circumstances surrounding the commission of the crime of causing grievous bodily harm, there were marked differences between the conduct of the appellant and Tonner's conduct. The unchallenged finding of the learned sentencing judge was that Tonner was liable for the commission of this crime because it was a probable outcome of the prosecution of an unlawful purpose, namely the assault on Mr Hedge. His Honour found that Tonner did nothing and said nothing to abet the appellant to commit the crime of causing grievous bodily harm. As I have said, he described the appellant's conduct as "very much a unilateral act" by him. Although Tonner was sentenced for one more assault than the appellant, causing grievous bodily harm was by far the most serious crime in respect of which the sentence was imposed. All these differences were encapsulated by the learned sentencing judge in this paragraph taken from his comments on passing sentence:

"In my view Tonner should receive a significantly shorter sentence than Clark, for a number of reasons. Clark stabbed Mr Hedge, whereas Tonner is guilty of the crime of causing grievous bodily harm only because he became involved in an attack during which there was a likelihood that Clark would produce and use his knife. There is no evidence that Tonner had any wish for Mr Hedge to be stabbed. Tonner is six years younger than Clark. His record is not as bad, despite the 2003 shooting incident. He has made greater steps towards rehabilitation by overcoming a drug problem and refraining from stealing for a period of some five years. On the other hand, he acted alone in assaulting the unidentified man, and must therefore be sentenced for one more crime than Clark."

18 The parity principle requires that like offenders receive equal justice. See Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610 - 611; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301. In the latter case, Dawson and Gaudron JJ said, at 301 - 302:

"In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 617-618 per Brennan J. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance' Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 especially at 610 per Gibbs CJ, 613 per Mason J and 623 per Dawson J. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."

19 The different circumstances surrounding the commission of the crime of causing grievous bodily harm, and the different personal circumstances of the appellant and Tonner, deny the former any justifiable sense of grievance over the fact that in his case, the head sentence was six years and in Tonner's case it was four years.

20 Counsel for the appellant submitted that unjustifiable disparity was apparent from the fact that Tonner will have served the whole of his sentence before the appellant is eligible for parole. However the submission loses its apparent force once it is appreciated that the appellant will have to serve 65 per cent of his head sentence before being eligible for parole, and Tonner will have to serve 63 per cent of his sentence before being eligible for parole. If the head sentence does not reflect disparity giving rise to a justifiable sense of grievance, such a grievance does not arise from the imposition of the different non-parole periods.

21 The different head sentences are justified because the grievous bodily harm caused by the appellant was so serious that it nearly resulted in death and comprised three separate stab wounds. The crime constituted entirely unprovoked, grave criminal violence perpetrated on a complete stranger. From Tonner's point of view, although grievous bodily harm was a probable outcome of the common purpose to assault Mr Hedge, he did not know that crime was going to be committed, he did nothing to abet its commission, and he did not know how severe the attack would be. The unchallenged finding of the learned sentencing judge was that Tonner may not have known that the appellant was carrying a knife that night, although he did know that that was likely. Those circumstances, together with the different personal circumstances of the two offenders, justified the different head sentences and consequently the different non-parole periods.

22 The appellant's crimes constituted violence of the worst kind. All of the victims were complete strangers to the appellant. Not one of them did or said anything to invite or provoke an attack. In each case the violence was inflicted without warning. All the crimes were committed in a public place. As counsel for the Crown submitted to the learned sentencing judge, the appellant's crimes strike terror into law abiding people of Tasmania. General and personal deterrence were significant factors in the exercise of the sentencing discretion. People are entitled to walk the streets of our cities and towns without fear of unprovoked violence at the hands of irrational total strangers.

23 In my opinion a sentence of six years' imprisonment with a 4½ year non-parole period was a proper exercise of the sentencing discretion. I would dismiss the appeal.

24 I have had the advantage of reading the reasons for judgment prepared by Underwood CJ, I agree with them and would likewise dismiss the appeal

25 I have had the benefit of reading the reasons for judgment of Underwood CJ with which I agree. I would also dismiss the appeal.