Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Crown appeal alleging manifest inadequacy - Pleaded guilty to one count of committing an unlawful act intended to cause bodily harm - Whether sentence of 21 months' imprisonment with parole eligibility after 11 months manifestly inadequate.

Judgment Number: [2013] TASCCA 4

1. Sentence of 21 months' imprisonment and order that the respondent not be eligible for parole until he has served 11 months of that sentence both quashed.

1. Respondent sentenced to four years' imprisonment with effect from 5 August 2012.

1. Order that respondent not be eligible for parole until he has served one half of that sentence.

1 I agree with the orders proposed by Estcourt J, and with his Honour's reasons.

2 I agree with the reasons for judgment of Estcourt J, and with the orders which his Honour has proposed.

3 The Director of Public Prosecutions has appealed, on the sole ground of manifest inadequacy, against a sentence of 21 months' imprisonment with a non-parole period of 11 months, imposed on the respondent by Porter J on 5 December 2012. No specific error is asserted in the notice of appeal.

4 The respondent pleaded guilty on indictment to a single count of committing an unlawful act intended to cause grievous bodily harm contrary to the Criminal Code, s170.

5 The learned sentencing judge in his comments on passing sentence set out the circumstances of the crime as follows:

"The defendant has pleaded guilty to one count of committing an unlawful act intended to cause grievous bodily harm. The crime arose out of an incident on 7 February 2012. On that day the defendant, his partner Ms Devine and their two children now aged 10 and 4, were at a campsite at Recherche Bay. Also camping at the site were Peter Machin, his son Richard and two friends, one of whom was Todd Faulkner. Late in the afternoon, the defendant and Ms Devine got into an argument, they having been left there without any means of transport due to the defendant's aunt and uncle driving away after a dispute with the defendant. As a result of that argument, the defendant's partner and their two children left. A little later Peter Machin went to the defendant's campsite and, believing it had been abandoned, extinguished the campfire and took some logs to his own fire. Later, persons in the Machin group heard the sound of yelling and crying from the defendant's campsite. They could make out the defendant threatening to kill someone and complaining that someone had interfered with his campfire. The disturbance went on for some time, and at one point the defendant's tent was seen to be on fire. A little later again, another camper found Ms Devine and the children huddled in some bushes nearby. They were taken back to that person's campsite and given some food. The defendant was heard to be still yelling out in an angry voice. Shortly afterwards the Machin group was near its campsite. The defendant approached and threatened them. He produced a black flashlight but said he would shoot them with it. There was then an altercation involving the defendant and Mr Faulkner in which Ms Devine intervened. She had a knife. The defendant ran towards Peter Machin and punched him to the head. He fell to the ground, apparently unconscious and lying on his back. The defendant then kicked him to the head and stomped on his head. This conduct gives rise to the crime on the indictment. The others in Mr Machin's group were not able to intervene because Ms Devine was standing between them holding the knife, but others came to help and the defendant was pulled away by Ms Devine. They walked away. Police arrived a few minutes later and the defendant was arrested."

6 His Honour then summarised the facts relating to the impact on the victim of the crime, Mr Machin, as follows:

"Peter Machin had to be taken to hospital by helicopter due to the severity of his injuries. He had a number of significant facial fractures, and although discharged the following day, he had to return a week later at which time a fracture of the left orbit had to be repaired by the insertion of a titanium plate and three screws. Mr Machin's eyesight has been affected and remains impaired. He has double vision. He has numbness in parts of the left side of his face, with little feeling in other parts and he gets severe flashes of pain. His ability to walk and drive a car have been affected because of his eyesight difficulties. He has been diagnosed as suffering post-traumatic stress disorder and suffers insomnia, fatigue, dizzy spells abdominal pains and associated psychological symptoms. He has vivid and violent flashbacks. Generally his life has been significantly affected. He was previously a self-employed garden contractor and has not been able to work since being assaulted."

7 On passing sentence the learned sentencing judge said:

"The defendant is now aged 33 with a lengthy record mostly for dishonesty, drug and traffic offences, although there is one matter of assault in 1998 and one of assault police in 2004. On 3 July 2012 he was sentenced to terms of imprisonment for a number of offences, including breaches of family violence and restraint orders, drug, driving and firearms offences, all committed before this crime. I have a pre-sentence report. That shows that his father died when the defendant was 13 years old, with his mother remarrying some five years later. Despite some tensions he seems to have had an otherwise unremarkable upbringing. He has the two children, of course, with Ms Devine now, as I have said, aged 10 and 4. He obtained trade qualifications as a painter after leaving year 10, but since December 2011 has been unemployed, that last employment being a part-time factory hand at a fish-food factory. I am told that there are realistic prospects of his employment when his liberty is available to him. At the time of this crime he was in the habit of drinking rather heavily with daily use of cannabis. He was also using amphetamines about once a twice a fortnight. It is said that in the periods out of custody this year, he no longer used amphetamine and has reduced his marihuana use. He has made contact with Drug and Alcohol Services and his awaiting assessment for induction into drug and alcohol and behavioural programs. The report reveals that he admitted to being 'off his head on amphetamines and alcohol' when these crimes occurred, and said he did not really know what he was doing. He thought he observed wrongdoing and responded. He has expressed remorse for his actions, saying that he feels sorry for what happened and that the complainant did not deserve what he did to him. The defendant's compliance with earlier probation orders and community service orders is reported as having been poor. This seems to have come about through his substance abuse, although the probation officer now reports that he appears to have changed his attitude significantly and looks to be making genuine efforts to address his risk factors. I am told that he has recently engaged himself in underage sporting activity with his son and that this has been beneficial.

Of course, the level of intoxication on drugs and alcohol at the time provides no excuse at all. This was a totally unwarranted and brutal attack on Mr Machin which has left him with significant, and apparently ongoing long-term disabilities. The crime must be viewed seriously. I taken into account his recent efforts at rehabilitation, but gratuitous alcohol and drug fuelled violence needs to be condemned.

Mr Blackaby, you are convicted of the crime and sentenced to 21 months' imprisonment to commence on 5 August 2012 to take into account the time spent in custody on this matter. Having regard to your prospects for reform, I order that you not be eligible for parole until you have served 11 months of that term".

8 In written submissions counsel for the appellant, Mr Coates SC, submitted that because specific intent is required for the commission of a crime contrary to s170 of the Criminal Code it is generally regarded as a more serious crime than grievous bodily harm under s172 of the Code (Lovegrove v R [1961] TASStRp 13; [1961] Tas SR 106 at 107; R v Allen [1999] TASSC 112 per Cox CJ at [3]; Director of Public Prosecutions v Blyth [2010] TASCCA 10 at [8]).

9 Counsel then noted that it has been repeated by a number of judges in this State that a crime under this section "ordinarily" carries a penalty within the range of three to seven years (Papazoglou v R 9/1963; Hyde v R [2001] TASSC 50; Director of Public Prosecutions v Blyth (supra); Director of Public Prosecutions v Rogers [2011] TASCCA 17).

10 As to the particular case, counsel submitted that when viewed against the absence of relevant mitigating factors, the sentence of 21 months with a non-parole period of 11 months was manifestly inadequate. In oral submissions he characterised the sentence imposed by the learned sentencing judge as "too far outside the range" arguing that while the case was by no means at the most serious end of the range, neither was it near the bottom.

11 Counsel pointed to the facts that the assault occurred in a public place and was unprovoked, that the respondent rendered Mr Machin helpless and then proceeded to kick him to the head and stomp on his head, and that his acts caused very serious physical and psychological injuries to Mr Machin with ongoing consequences.

12 Counsel for the appellant further submitted that the respondent's comments, after he was pulled off Mr Machin, that "he's not hurt" and that he "should have given him more", demonstrated a lack of immediate remorse, and that the respondent's false account to police of the circumstances of the attack on Mr Machin, in which the respondent claimed he had been attacked and acted in self-defence, perpetuated that lack of remorse.

13 Counsel also argued that the respondent's plea of guilty was not an early plea, coming some six months after an indictment was filed and that while the eventual plea of guilty may have saved the State the expense and inconvenience of a trial, and saved Mr Machin the trauma of giving evidence, it was a plea of guilty in the face of an overwhelming case against the respondent and it deserved very little weight.

14 Counsel for the respondent, Mr Kovacic, pointed to a number of what he submitted were mitigating factors. He first contended that the attack on Mr Machin was not premeditated and was only short lived, that the respondent made no attempt to continue on with the attack after the intervention of others, that Mr Machin's injuries were not life threatening and that the respondent accepted responsibility and was remorseful.

15 Counsel argued that the fact that the respondent had entered a plea of guilty did have some weight, that the respondent did not have "extensive relevant prior convictions", that he had ceased his use of amphetamines and was in a stable domestic relationship. Counsel submitted that the pre-sentence report before the learned sentencing judge showed the potential for rehabilitation and employment upon the respondent's release from prison.

16 As to sentencing principles it was submitted that K Warner Sentencing in Tasmania, 2nd ed, Federation Press, 2002, at par11.303 lists the median sentence between 1990 and 2000 for a single count of a crime contrary to s170 of the Criminal Code as being two years and six months.

17 Counsel submitted that the learned sentencing judge's sentence of 21 months' imprisonment could not be considered so far below any range as to warrant interference on the basis that it created a strong sense of grievance, and that in having regard to a range of sentences imposed for a crime not every sentence has to fall within the range (Inkson v R, supra, at 15).

18 There is no doubt that counsel for the appellant was correct in submitting that because specific intent is required for the commission of a crime contrary to s170 of the Criminal Code it is generally regarded as a more serious crime than that of grievous bodily harm under s172 of the Code. In Director of Public Prosecutions v Blyth (supra), Blow J (as he then was), with whom Porter and Wood JJ agreed, said, unambiguously at [8]:

"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]."

19 In Barron (supra), Wood J, with whom Blow and Porter JJ agreed, said at [21] - [22]:

"21 It is worthwhile to take some time to focus on the nature of the crime under consideration and some well settled sentencing principles that apply to the Code, s172. A specific intention to cause grievous bodily harm is not an element of this crime. The crime of causing grievous bodily harm requires a mental element involving either an intent to cause grievous bodily harm or subjective recklessness, ie foresight of the likelihood of that kind of harm (R v Bennett [1990] TASRp 6; [1990] Tas R 72). By contrast an essential element of a crime against s170 is the intention to cause some kind of serious bodily harm (R v Allen [1999] TASSC 112, per Cox CJ at par2).

22 There is an overlap in the application of ss170 and 172 so that they are both capable of applying to situations where grievous bodily harm is intended. For this reason, ordinarily when sentencing for the crime of causing grievous bodily harm contrary to s172, the sentencing judge may, without offending the principle in De Simoni [1981] HCA 31; (1981) 147 CLR 383, sentence on the basis that the offender had an intention to cause grievous bodily harm ...".

20 Counsel for the appellant was also correct in his submission that it has been repeated by a number of judges in this State that a crime under this section "ordinarily" carries a penalty within the range of three to seven years.

21 In R v Allen [1999] TASSC 112, Wright J observed at [13]:

"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:

'Ordinarily I would think that this crime would require a sentence of from three to seven years.'

When these comments are considered alongside the current practice of the Court in sentencing violent criminals, they do not appear to me to be out of place, even now, some 36 years later. Sentences for rape commonly fall within a similar range and there appears to me to be no sound basis for suggesting that a deliberate crime of violence which inflicts severe trauma with long term disability upon another human being is any less serious than a case of serious sexual assault."

22 These comments were re-affirmed relatively recently in Director of Public Prosecutions v Rogers (supra) 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...".

23 As to the reliance by counsel for the respondent on the median sentence of two years and six months reported in Professor Warner's book, it must be remembered, as Blow J noted in Blyth at [9], that care needs to be taken in the use of those statistics, as there were only 16 single-count custodial sentences imposed under s170 from 1978 to 2000, and also because the conduct prohibited by s170 does not necessarily involve an intent to do grievous bodily harm (as opposed for example, to an intent to disable any person or prevent the lawful arrest of any person).

24 It seems to me that the authorities I have referred to above make it very clear that, subject to the unimpaired discretion of a sentencing judge to impose a sentence that is reasonable, a contravention of s170 should ordinarily attract a sentence of imprisonment of between three to seven years. The real issue on this appeal is whether there is anything about the circumstances of the crime committed by the respondent, or in his personal circumstances, that would justify the imposition of a sentence very considerably less than within a range of three to seven years. Unless so, there is nothing in my view to breathe life into the submission made by counsel for the respondent in reliance on the undoubtedly correct observation by Underwood J (as he then was) in Inkson (supra), that, "... having regard to the range of sentences imposed for a crime does not mean that every sentence must fall within that range".

25 For my part I cannot see any such justification.

26 Contrary to the submission of counsel for the respondent I am of the view that the fact that there were seven eye witnesses to the attack, the fact that the attack was continued after Mr Machin had been rendered incapable of defending himself, and the fact that the respondent had to be pulled off Mr Machin, does support the proposition that the respondent's plea of guilty is sensibly attributable only to an acceptance by him of the inevitable. I accept that his bare plea of guilty nonetheless has some mitigatory value, as does his ultimate expression of remorse for his actions.

27 It is true that the attack was unpremeditated, short lived and not revisited after the intervention of others, but it was brutal and its seriousness is aggravated by the fact that after Mr Machin fell to the ground and was apparently unconscious and lying on his back, the respondent proceeded to kick him to the head and stomp on his head. Even then the respondent did not desist. This was an attack that was stopped by others.

28 Even if it is correct to say, as counsel for the respondent submitted, that Mr Machin's injuries were not "life threatening" and that is by no means clear, those injuries and their consequences were very serious indeed, and, as pointed out by Blow J in Blyth at [17] and reiterated by Evans J in Rogers (supra) at [16], the severity and the extent of any permanent disability or incapacity are very significant sentencing factors in s170 cases.

29 Mr Machin had a number of significant facial fractures; the fracture of the left orbit had to be repaired by the insertion of a titanium plate and three screws. His eyesight has been impaired and he has double vision which has affected his ability to walk and drive a car. He has numbness in parts of the left side of his face, with little feeling in other parts and he suffers severe pain. He suffers insomnia, fatigue, dizzy spells and abdominal pains. He has been diagnosed as suffering post-traumatic stress disorder and has vivid and violent flashbacks. He has not been able to work as a self-employed garden contractor since the attack.

30 The respondent's lack of an "extensive record of prior convictions", his plea of guilty, his ultimate expression of remorse, his stable relationship with his partner and the potential for rehabilitation and possible employment on his release from prison, are all relevant matters but they deserve little weight in my judgment, as compared to the need for retribution, general deterrence and the protection of the community from vicious drug-fuelled attacks that continue with kicking and stomping even after the victim has been knocked to the ground and rendered incapable.

31 All of these matters cause me to view the learned sentencing judge's sentence, by reason of manifest inadequacy, as being unreasonable or plainly unjust so as to warrant the intervention of this Court. In my view a substituted sentence within the "ordinary" range of three to seven years and not at the bottom of that range, is called for in this case.

33 The order I would make is that the respondent be sentenced to four years' imprisonment with effect from 5 August 2012, and that he be eligible to apply for parole when he has served one-half of the period of his sentence.