Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Purpose of sentence - Relevant principles - Generally - Effect of plea of guilty.

Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186; Wong (2001) 207 (CLR) 584; Markarian v R [2005] HCA 25, referred to.

Judgment Number: [2005] TASSC 54

2 Sentence of 6 years and 6 months' imprisonment effective from 11 March 2004 of which 5 years was required to be served before eligibility for parole, quashed.

3 In lieu thereof, the appellant is sentenced to imprisonment for four years six months from 11 March 2004 and it is ordered that he is not to be eligible for parole until he has served half that term.

1 I agree with the reasons for judgment of Slicer J

2 The appellant seeks review of a sentence of imprisonment of 6½ years following his plea to the crime of committing an unlawful act intended to cause bodily harm, contrary to the Criminal Code, s170. A cumulative sentence of one month's imprisonment imposed for a contempt committed during the course of the sentencing hearing was the subject of the notice of appeal, but not actively pursued at the hearing of the appeal. The sole ground of the notice is that the "sentence was manifestly excessive".

3 The appellant was an inmate of Risdon Prison. On 11 January 2004, a fellow inmate was attacked by three men. The circumstances surrounding the attack were stated by the prosecution in the following terms:

"The accused, the complainant and various other prisoners were circulating in the yard area of Division 5. Within the yard is an area known as the landing, it is a common belief among inmates that the video surveillance footage of the yard does not cover the area of the landing. At around 1:26 p.m. the accused, the complainant, Michael Lyndon Dennison and Michael Adam Thompson were all in the area of the landing. The complainant was speaking to Michael Lyndon Dennison when he felt someone behind him lift his jumper, tee shirt and singlet over the top of his head. He was then dragged to the ground where he felt himself punched and kicked to the head. He then felt a tightness in the left lower side of his upper body and something warm running down his back, he then heard a prison officer say, 'He's been stabbed, call the nurse', and guessed he was referring to him.

Video surveillance and other evidence revealed that the accused, together with Michael Lyndon Dennison and Michael Adam Thompson surrounded the complainant. The complainant tried to move out from under the landing but he was dragged to the ground and back under the landing by the accused and the other two men. The accused and Michael Adam Thompson kicked the complainant to his head and body and Michael Lyndon Dennison was seen to lunge over the complainant in a stabbing motion four times. It then shows the accused and the other two men leaving the complainant lying on the ground."

4 The knife used in the attack was later recovered from within the yard and found to have been a bread and butter knife taken unlawfully from the canteen and sharpened to a point. When it was located, the appellant was heard to say "they found my piece". The three men present at the scene of the attack were questioned but declined to make relevant comment. The motive said to have given rise to the attack was:

"... a belief that the complainant had provided details to the police about criminal conduct of other people."

5 Following the attack the complainant was admitted to hospital in a critical condition. He had received four puncture wounds to his left lower abdomen, one of eleven centimetres in depth. He suffered a punctured lung, severed diaphragm and injuries to the kidney, spleen and intestine. He was treated in hospital for some 25 days.

6 The attack was premeditated, vicious, committed in company and threatening to life. Its commission required, as a matter of public policy, punitive sanction and its nature was such that that sanction be one of a significant custodial term. No contrary submission was advanced during the hearing of this appeal.

7 There was a suggestion that another of the three men had inflicted the stab wounds. Although proceedings were commenced against the three, only the appellant was subjected to punishment. The learned sentencing judge dealt with the matter in stating:

"The Crown asserted that one of the other prisoners inflicted the stab wounds but the prisoner's counsel told me that he inflicted them. Whoever inflicted them, this prisoner is criminally responsible for them."

8 Counsel for the appellant, had, on instructions, accepted at the sentencing hearing "that the accused was the main offender". On any approach the appellant was to be sentenced as a principal, fully responsible for the conduct.

9 The crime for which the appellant was sentenced involved the intentional infliction of grievous bodily harm. The Court was required to take into account all of the sentencing components (Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321) including that of the fixing of a non-parole period (Attorney-General (Tas) v McDonald [2002] TASSC 120; (2002) 11 Tas R 221). In this case the sentence included the fixing of a five year non-parole period.

10 The appellant was aged 20 at the time of the commission of the crime. He had an extensive record of prior convictions, including ones for attempted armed robbery, burglary, stealing and resisting arrest. However his age required the Court to consider the possibility of rehabilitation. He first came before the courts at the age of 11 on charges of burglary and stealing and was placed under the supervision of the Director of Child Welfare. His conviction for attempted armed robbery was recorded when he was still 15. He had spent various times subject to detention orders imposed pursuant to the Youth Justice Act 1997. The sentencing court was told that on an earlier occasion he had been placed in the Ashley Detention Centre because:

"... there simply wasn't anywhere in the community to place him, there weren't any foster care placements that were available and the group homes that exist within Hobart again weren't sufficient or it wasn't believed by the Director that they were sufficient to enable the level of supervision that the accused required and accordingly he was placed at Ashley. He was placed in a house at Ashley and it was slightly removed from the inmates at Ashley and it was made quite clear to him that he wasn't there because of his offending but the difficulty was that he was an eleven year old child who was put in an institution and quite clearly somewhere where it was intended generally to punish children rather than - or that was his view of it, rather than anywhere where he was meant to be supervised."

11 His pattern of conduct followed that event. It may be that the learned sentencing judge was correct in his prognosis that "a parole order will be of little benefit to him", but it is less certain that:

"He's not the sort of young offender who should be dealt with leniently in order to prevent him being exposed to corrupting influences and confirmed in his criminal ways, [and that] this crime demonstrates that it's too late for any such consideration to be relevant."

Accepting that his act of stabbing a fellow inmate shows him to be already corrupted, his age nevertheless does not demonstrate incapacity for change. A sentence of 6½ years with a non-parole period of 5 years will confirm criminality and deprive the offender of any motive for repairing an already fractured life. He was on remand at the relevant time and had thus far, other than the period when he was aged 11, spent less than six months in a custodial institution. The principles stated in R v Mills [1998] 4 VR 235 remained relevant to the assessment of an appropriate sentence.

12 Difficult though the process might be, consistency remains one of fundamental importance (Lowe v R [1984] HCA 46; (1984) 154 CLR 606). Reference to decisions of appellate courts in this jurisdiction (Papazoglu v R [1963] Tas SR 182 (NC 3); R v Allen [1999] TASSC 112; Hyde v R [2001] TASSC 50; Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1; DPP v Humphrey [2004] TASSC 99), the statistical tables published by Professor Warner, Sentencing in Tasmania, 2nd ed, par11.303, Table 5, and the database of the Court (Stevens 31 March 2004; Kirkhope 14 December 2001; Bullock 9 February 2000; Plumstead 28 February 1996, and others) show this sentence to be at the upper end of the range of penalties. Consistency alone might not warrant interference with the penalty, but it is a useful guide in the light of other factors relevant to the ground of appeal.

13 The appellant was, together with the other two assailants, charged with the crime of wounding, contrary to the Criminal Code, s172, a crime generally regarded as less serious in nature. On 29 January 2004, each entered a plea of not guilty and the matters were adjourned until 18 February. Upon election, the matters were further adjourned until 31 March when the pleas were confirmed. Further adjournments were had to permit the examination of witnesses. A date for that examination was fixed for 21 September, but on 3 August the appellant changed his plea to one of guilty and was committed for sentence for the crime, contrary to the Code, s172. On 3 September, a fresh indictment was filed ex officio alleging the crime contrary to the Code, s170. The appellant pleaded to that crime on 6 September. He was entitled to the benefit of that plea, especially since, contrary to normal experience, it was to a more serious crime.

14 The co-offenders maintained their pleas of not guilty and eventually were discharged on the complaint laid against them. Their discharge was a consequence of an assessment by the prosecution that on the basis of available evidence there was little prospect of conviction. That assessment demonstrates the social utility derived from the appellant's plea. It is unlikely, given the plea and circumstances of the attack, that there would have been co-operative and corroborative witnesses and the complainant may have been reluctant to give evidence for fear of repercussion. None of the attackers had admitted responsibility and it appears that the videotape was less than determinative. Whilst the statement attributed to the appellant on recovery of the knife was cogent, it did not transform the case against him into one of inevitability. His plea was utilitarian and, in the circumstances here, of significant import (Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186). Given that the crime was committed in a prison on a fellow inmate and thus impacted on the discipline of a custodial institution, the effect of the plea of guilty had wider import than would ordinarily be the case. Assuming that the sentence actually imposed adequately took into account the utilitarian benefit of a plea, the actual sentence to be imposed, if he had maintained his plea of not guilty, ought to have been that of eight years' imprisonment, which, in turn, would be contrary to the requirement of consistency. On either approach the sentence itself demonstrates or manifests excessiveness.

15 Whilst the High Court has rejected a sequential or two tiered approach to sentencing (Markarian v R [2005] HCA 25; Pavlic (supra)) it has not suggested that significant components to the assessment of such sentence be identified and their weight stated. In that case, the court allowed an appeal against the judgment of the New South Wales Court of Criminal Appeal (R v Markarian [2003] NSWCCA 8; (2003) 137 A Crim R 497) which had identified a discount amounting to 25 per cent as the sum of amelioration permitted because of a plea of guilty and the fact that the appeal was a Crown appeal. In their joint judgment, Gleeson, Gummow, Hayne and Callinan JJ repeated, at 37, the earlier statement of Gaudron, Gummow and Hayne JJ in Wong (2001) 207 (CLR) 584 at 611 - 612, that:

"Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.

It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.

In R v Thomson (2000) 49 NSWLR 383, Spigelman CJ reviewed the state of the authorities in Australia that deal with the 'two-stage' approach of arriving at a sentence, in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender's place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences. To take another example, to 'discount' a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R v Gallagher (1991) 23 NSWLR 220 when he said that:

'It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.'

So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform."

16 In relation to that passage, the majority judges, with whom McHugh J agreed, said, at 39:

"Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of 'instinctive synthesis', as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression 'instinctive synthesis' may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge."

17 In accepting the approach of "instinctive synthesis", the court did not suggest that identification of a component and analysis of the weight which such component should be given in the assessment of sanction should not be made.

18 Here the plea of guilty and acceptance of responsibility were cogent factors in the determination of penalty. The sentence itself, with due respect, does not reflect the utilitarian benefit of the plea.

20 Assuming for the purpose of this appeal the sentence of 6½ years to be an appropriate commencing point, I would make allowance for the age of the offender, the possibility, albeit slight, of reform and the effect of a crushing sentence. In the determination of both the sentence and the fixing of a non-parole period, I would give significant allowance for the entry of the plea of guilty. Taken together I would propose the substitution of a sentence of 4½ years' imprisonment, with the fixing of a non-parole period of one half of that sentence.

21 I agree with the reasons for judgment of Slicer J and the orders he proposes.