Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Two counts of attempted wounding and two of aggravated assault involving use of a firearm - All crimes arising from the one incident - Sentence of 6½ years' imprisonment - Whether sentence manifestly excessive - Sentence to be based on broad and reasonable characterisation of criminal conduct.

Griffiths v R [1989] HCA 39; (1989) 167 CLR 372; Attorney-General v Tichy (1982) 30 SASR 84, considered.

Judgment Number: [2013] TASCCA 9

1. The appellant is sentenced to four and a half years' imprisonment with effect from 30 August 2012.

4 The appellant not be eligible for parole until he has served three years of that sentence.

1 I have had the opportunity to read the reasons of Estcourt J in draft form. I agree with those reasons and with the outcome he proposes.

2 I agree with the reasons for judgment of Estcourt J and with the orders he has proposed.

3 The appellant has appealed, on the sole ground of manifest excess, against a sentence of 6½ years' imprisonment with a non-parole period of four years, imposed upon him by Evans J on 17 December 2012. No specific error is asserted in the notice of appeal.

4 The appellant pleaded guilty to two counts of attempting to unlawfully wound Dallas Barrett, contrary to the Criminal Code, ss172 and 299, and to two counts of aggravated assault contrary to the Code, s183, the first upon Joshua Brandon and the second upon Kenneth Wilkinson.

5 After an incident at the home of the appellant on 25 May 2012, involving Dallas Barrett, the appellant, on the following day, set out to locate Mr Barrett who was at unit 29, 315 Tolosa Street, Glenorchy, together with his partner Hayley Brandon, her sister Cody Brandon and brother Joshua Brandon, and Mr Barrett's mother, Coleen Coad.

6 At about 8pm a vehicle containing Mr Coles, Eugene Smith and Mr Devine, arrived at 315 Tolosa Street. Soon afterwards another vehicle containing Mr Devine's wife, Ms Feil, the wife of Mr Smith, and one or two other females, arrived at that address.

7 The three men walked to the front of unit 29 and called for Mr Barrett to come out. Mr Coles was armed with a shotgun. Mr Barrett emerged from the unit with a chainsaw that was in operation. Mr Coles placed a cartridge in the previously unloaded shotgun and said that he only wanted to talk to Mr Barrett.

8 Joshua Brandon is aged 27. At a time after Mr Barrett emerged from the unit with the chainsaw, Mr Brandon was standing at the base of the steps to the unit. Mr Coles pointed the loaded shotgun directly at Mr Brandon's face and Mr Coles told Mr Brandon to tell Mr Barrett to put the chainsaw down. Mr Brandon, who was terrified and in fear of his life, did so. This conduct was the basis of Mr Coles' first conviction by the learned sentencing judge for aggravated assault.

9 Mr Barrett put the chainsaw down and stepped inside the unit. As he did so Mr Smith and Mr Devine followed him inside and punched him.

10 Mr Barrett broke free from Mr Smith and Mr Devine, and fled from the unit down the driveway. When he was as much as 20 to 25 metres away, Mr Coles put the shotgun to his shoulder, took aim and fired at Mr Barrett. He missed. This conduct was the basis of Mr Coles' first conviction by the learned sentencing judge for attempted wounding.

11 Mr Barrett, in fear for his life, continued to run and turned in behind other units. He was pursued by Mr Coles, who reloaded the shotgun and fired again at Mr Barrett, again missing. This conduct was the basis of Mr Coles' second conviction for attempted wounding.

12 Ken Wilkinson and his partner, Ms Snow, lived at unit 26. Having heard the noise outside, Mr Wilkinson went out carrying a torch and enquired what was going on. His enquiry was met with abuse, and Mr Coles came forward and fired the shotgun in the air above Mr Wilkinson's head.

13 Mr Wilkinson retreated to the front steps to his unit where Mr Coles pointed the shotgun directly at Mr Wilkinson's face. This latter conduct was the basis of Mr Coles' second conviction for aggravated assault. The firing of the shotgun that preceded the assault was not the subject of any charge.

14 Ms Snow went to the door of the unit and saw the gun pointed at Mr Wilkinson. She was shocked and scared, retreated into the unit, telephoned the police, and concealed herself on the floor behind the kitchen counter. Mr Wilkinson entered the unit, armed himself with his own shotgun and fired it to scare off those who had been threatening him. In his agitation, he fired it from inside the unit. Shot went through the wire screen to the front door and damaged the woodwork on the veranda.

15 As a result of these events the occupants of unit 29 feared for their lives and, for reasons of safety, Dallas Barrett, his mother, Coleen Coad, and his partner, Hayley Brandon left Hobart and settled in a different part of the State.

16 The learned sentencing judge made the following comments on passing sentence:

"Mr Coles is 29 years of age. He has many convictions for offences involving dishonesty and for offences that evidence his contempt for the law such as driving whilst disqualified (about 25), and breach of bail (about 39). He has six convictions for assault and two convictions for assaulting a police officer. He has received many custodial sentences.

Largely due to Mr Coles' abuse of alcohol, his childhood was dysfunctional. It seems that he has followed the same path as his parents with regard to alcohol and has compounded this problem by also resorting to illicit substances. He has been in a supporting relationship for the last seven years and has responsibilities for children. Nonetheless, he has continued to offend. He has taken steps and continues to take steps to change his ways. Although I do not doubt his good intentions, it remains to be seen whether they will come to anything.

Whilst some aspects of Mr Coles' rampage were impetuous, his presence at the scene armed with a shotgun was pre-meditated. Unit 29 is in a moderately intensive residential development. It is extremely fortunate that no-one was injured by what Mr Coles did with the shotgun and the response that he provoked from Mr Wilkinson.

Mr Coles has been held in custody since 26 May 2012. Due to an intervening sentence, it is only appropriate to backdate his sentence to 30 August 2012.

Mr Coles is sentenced to six and a half years' imprisonment to date from the 30 August 2012. It is ordered that he be eligible to apply for parole after serving four years of this sentence."

17 Counsel for the appellant, Ms Baumeler, made the following written submissions:

The Crown sought to rely upon a synopsis of convictions that had been prepared.

Analysis of this document clearly shows that though the Appellant had some history for matters of violence, in the main his prior convictions, though extensive, related to dishonesty offences and driving matters.

It could not be said that the Appellant had a significant history of violent offending.

He had not previously been the subject of a Parole Order.

The Appellant attended the residence armed with a firearm.

He also attended in the company of a group of people which included the other co-accused.

The incident took place in a built up suburban area on a block with units, which increased the possibility of members of the public becoming involved.

The witnesses were saved having to give evidence at a trial, though it is conceded some gave evidence at a Preliminary Proceedings.

None of the complainants suffered physical injuries as a result of the Appellant's conduct.

There was no suggestion of any psychological impact upon the complainants.

No Victim Impact Statements were relied upon by the Crown.

The Appellant initially attended with an unloaded firearm and only loaded it after Dallas Barrett produced a chainsaw that had been started inside the residence.

The Appellant was in a stable long term relationship and his partner was supportive of him.

A recent pre-sentence report was tendered on behalf of the Appellant, which was positive.

While in custody the Appellant had undertaken a horticultural course.

The Appellant had commenced the Suboxone Programme, which was assisting him in dealing with his substance addiction.

His partner had recently given birth to their first child and this was a strong motivating factor for reform."

18 Ms Baumeler submitted that given the lack of injuries or impact to the victims, and the personal circumstances of the appellant, the sentence was manifestly excessive in all the circumstances.

19 Counsel for the respondent, Mr Jacobs, made the following points in his written submissions:

• The appellant's approximate 281 prior convictions included two counts each of assault police and resist arrest, and six counts of assault, three of which were under the Code and of which, the last of those, on 20 October 2006, was serious enough to attract a sentence of 21 months' imprisonment.
• In addition the appellant had five prior convictions for dangerous driving, and three prior convictions for negligent driving, all of which obviously involved a risk of injury or death to members of the public.
• The three men who had the weapon fired at them or pointed close to their faces had feared for their lives and Mr Wilkinson was reduced to firing his own shotgun through his flyscreen door.
• No one was physically injured as a result of the commission of the crimes but, people who saw the appellant's actions, as well as the victims of them, were obviously extremely disturbed by them.
• The appellant was the ringleader of the series of crimes involved.
• Two of the crimes involved an attempt to shoot Mr Barrett. Fortunately the accused missed each time. If he had succeeded, serious injury or death could well have occurred.
• The range of penalties for actual serious injury is high in Australia.
• Recently, in many parts of the State and the nation, there has been an upsurge of violence by people firing guns at others, and by threatening to do so, and a strong deterrent sentence was called for.

20 In Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31] - [34] Porter J said of the approach of this Court to sentencing appeals:

"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 [1936] HCA 40; (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 R [2000] HCA 54; (2000) 202 CLR 321, Kirby J (with whom Gummow and Gaudron JJ agreed) stated at [58]:

'The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence. Indeed, it is commonly referred to by the Court of Criminal Appeal of Western Australia. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.' [References omitted]

33 Later, in Wong v R (above) at [58] Gaudron, Gummow and Hayne JJ said:

'Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.'

34 In Dinsdale (above) at [6], Gleeson CJ and Hayne J said that: 'inadequacy or excess is, or is not, plainly apparent'. ..."

21 To my mind, in the present case, for the reasons that follow, excess is plainly apparent.

22 Even accepting all that counsel for the respondent has submitted as to aggravating features and the need for a strong deterrent sentence, a sentence of 6½ years' imprisonment as a head sentence is, in my view, by reason of its severity, unreasonable and plainly unjust. I consider that there must have been some misapplication of principle by the learned sentencing judge.

23 In a case such as this, involving as it does a series of several serious offences committed over a short space in time on one day, and forming in reality one incident of criminal behaviour, I do not find it helpful to resort to sentencing statistics or to speak of a range of penalties for "actual serious injury", particularly when none, fortuitously perhaps, occurred. Neither is a search for comparable sentences a particularly worthwhile endeavour.

24 Having made those observations however, I note, by way of random example, that two charges of wounding by firing a shotgun and striking two persons with many pellets in the arms and chest attracted a sentence of three and a half years' imprisonment in Wynwood (Evans J, 16 October 1998) and a shooting spree in public, described by Crawford J (as he then was) as "cold blooded", and in which the defendant shot and wounded four police officers, causing "terror and fear to them and many others", attracted a sentence of eight years' imprisonment (Graham, 25 June 1996). More recently, one count of aggravated assault and one count of wounding involving the firing of two shots in a public street by a 32 year old man with a history of violent offending and with little prospect of rehabilitation, where one shot actually wounded the victim, attracted a sentence of four years imprisonment with six months suspended and a non-parole period of two years and eight months Denman (Tennent J, 20 August 2013).

25 However, leaving those sentences to one side, the sentence in the present case still seems excessive to me. It does not bear a proper relationship to the overall criminality involved and in my view therefore does not pay sufficient regard to the totality principle.

26 Gaudron and McHugh JJ observed, obiter, in Griffiths v R [1989] HCA 39; (1989) 167 CLR 372 at 393:

"It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender: Reg v Smith (1983) 32 SASR 219, at pp 220, 221, 222; Boyle and Allen, Sentencing Law and Practice (1985), p 282; Hall, Sentencing in New Zealand (1987), p 195. This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently."

27 In Attorney-General v Tichy (1982) 30 SASR 84, Wells J said at 92 - 93:

"It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct.

Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time.

What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration." (Underlining added.)

28 These passages were cited with approval by Cox CJ in Hyland v R [1996] TASSC 144 at [14] - [15] and to my mind the analysis of Wells J in Attorney-General v Tichy (supra) is particularly helpful in approaching the question arising in the present case of what is a just and appropriate sentence that takes account of the appellant's total criminality on this evening, involving as it did "one multifaceted course of criminal conduct" or "one transaction" or "spree", (Thomas v The State of Western Australia [2012] WASCA 182 at [29] per Mazza JA). The dictum of Gaudron and McHugh JJ, and the analysis of Wells J, and the many cases dealing with the first limb of the totality principle are equally applicable to the selection of a single sentence and its length as they are to the selection of consecutive sentences of reduced length, or to the selection of concurrent sentences.

29 Accordingly, I approach the question of whether there is manifest excess in the sentence in this case with the foregoing considerations in mind. Taking into account the mitigating factors enumerated by counsel for the appellant in her submissions, in particular the appellant's pleas of guilty, his positive pre-sentence report and his prospects of rehabilitation, but not losing sight of the aggravating features and the need for a strong deterrent sentence pointed to by counsel for the respondent, I am of the view that a just and appropriate sentence is a single sentence of four and a half years' imprisonment with a non-parole period of three years.

31 The order I would make is that the appellant be sentenced to four and a half years' imprisonment with effect from 30 August 2012, and that he not be eligible for parole until he has served three years of that sentence.