Criminal Law - Appeal and new trial - Appeal against sentence - Sentence manifestly excessive or inadequate - Committing unlawful act intended to cause bodily harm - Knife wounds.

Judgment Number: [2010] TASCCA 10

DIRECTOR OF PUBLIC PROSECUTIONS v STEPHEN JOHN BLYTH

2 Sentence of 18 months' imprisonment with an order that the respondent not be eligible until he has served 13 months of that sentence, quashed.

3 Respondent sentenced to 3 years' imprisonment with effect from 23 February 2010.

4 Respondent not to be eligible for parole until he has served 18 months of that sentence.

DIRECTOR OF PUBLIC PROSECUTIONS v STEPHEN JOHN BLYTH

1 On 19 March 2009 the respondent, Mr Blyth, attacked a man named Briscoe with a knife and inflicted two wounds. He was charged under the Criminal Code, s170, with committing an unlawful act intended to cause bodily harm. He pleaded guilty, and was sentenced to 18 months' imprisonment, with an order that he was not to become eligible for parole until he had served 13 months of that sentence. The Director of Public Prosecutions has appealed against that sentence. He contends that it was manifestly inadequate. For present purposes, the order as to parole must be regarded as part of the sentence: Criminal Code, s399.

2 This crime was committed on a Thursday evening when the respondent and Mr Briscoe were both visiting a mutual friend. The respondent was drunk. Mr Briscoe apparently said something that irritated him. He reacted by abusing Mr Briscoe, and punching him to the head and torso. Mr Briscoe defended himself. He punched the respondent a number of times to the face. The respondent then indicated that he had stopped fighting. Mr Briscoe released him, and he went away. After an interval, during which Mr Briscoe made a cup of coffee, the respondent returned, armed with a long barbecue knife. It had a blade about 15 centimetres long and a very long wooden handle. Its overall length was about 53 centimetres. The respondent swore at Mr Briscoe, swung the knife at him causing a deep laceration to the right side of his face, and then lunged at him again, stabbing him between the left armpit and the left shoulder blade. Mr Briscoe again defended himself, even though he was bleeding profusely and the knife was sticking out of his back. The respondent still had hold of the knife. It is clear that he had not finished what he set out to do. But Mr Briscoe overpowered him. He let go of the knife, and Mr Briscoe pulled it out of his back.

3 Mr Briscoe was taken to a hospital by ambulance. The laceration to his face was not actively bleeding. The laceration to his back was described in a medical report as "muscle deep and ... actively bleeding on presentation". The lacerations were so serious that they had to be surgically repaired under general anaesthesia. Mr Briscoe was discharged from the hospital three days later. It was necessary for a number of his teeth to be extracted. However that was not a consequence of the crime in question, but of the earlier punching. Mr Briscoe had difficulty looking after himself after his discharge from hospital. He had significant psychological problems as a result of being attacked. He was left with a significant facial scar. It is possible that he will have plastic surgery to repair it. The learned sentencing judge quite rightly commented that his life had been significantly affected by the respondent's actions.

4 The respondent was 43 years old at the time of sentencing. He had two prior convictions for assaults committed in August 2006 upon a female partner. On those charges, and on two charges of breaching a family violence order, he was sentenced to two months' imprisonment. That was his only prior prison sentence. He had a number of alcohol-related convictions, including convictions for drink-driving offences committed in 1990, 1996 and 1999.

5 The only relevant mitigating factors were as follows:

•

The respondent pleaded guilty. However he did so only at the moment when his trial was about to start. The court, a jury panel, the prosecutor, the Crown witnesses, and defence counsel were present, ready to proceed, and expecting a plea of not guilty. However his plea saved some of the cost and inconvenience of a trial. Mr Briscoe, who had given evidence in preliminary proceedings, did not have to give evidence again. It counts in the respondent's favour that he pleaded guilty. However it was not only a very late plea, but also one that apparently resulted from an acceptance of the inevitable. The Crown case appears to have been very strong. There is no reason to treat the plea as an indication of any remorse.

•

Although the respondent was an alcoholic, he had temporarily overcome his alcoholism from about 2001 to 2005. There was therefore some prospect of rehabilitation.

•

The respondent's father was terminally ill, and likely to die while he was in prison.

6 A number of common mitigating factors were absent in this case. The respondent was not a youthful offender. He was not without prior convictions. There was no suggestion of remorse.

7 The Criminal Code creates two different crimes relating to grievous bodily harm. Under s172, there is a crime of causing grievous bodily harm. That crime can be committed by an offender who foresees such harm as a probable consequence of his or her conduct, even if he or she has no intention of causing such harm: Vallance v R [1961] HCA 42; (1961) 108 CLR 56; R v Bennett [1990] Tas R 72. However the respondent was charged under s170, which applies when the offender intends to cause grievous bodily harm. Relevantly, s170 provides as follows:

"(1) Any person who, with intent to maim, disfigure, or disable any person, or to do any grievous bodily harm to any person, or to resist or prevent the lawful arrest or detention of any person -

(a) wounds or does any actual bodily harm to any person by any means whatever;

Committing an unlawful act intended to cause bodily harm."

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].

9 Some statistics as to sentences under s170 have been published by Professor K Warner: Sentencing in Tasmania, 2nd ed, par11.303. Care needs to be taken in the use of those statistics, since there were only 16 single-count custodial sentences imposed under s170 from 1978 to 2000, and since the conduct prohibited by the section does not necessarily involve an intent to do grievous bodily harm. However sentences of up to six years' imprisonment were imposed during the years 1990 to 2000, and the median sentence imposed for single counts under s170 during that period was two years six months.

10 Counsel referred us to a number of cases where offenders were sentenced for contravening s170 or s172, including several appeals. All of those cases turned on their own facts. Most of them do not warrant discussion.

11 Papazoglou v R (unreported, 9/1963, Court of Criminal Appeal) concerned a sentence of two years' imprisonment imposed by Burbury CJ. The appellant was convicted under s170 on the basis that he hit a man on the head with a piece of wood intending to do grievous bodily harm. Burbury CJ provided the Court of Criminal Appeal with a report which concluded as follows:

"These circumstances induced me, with some hesitation, to impose only a two years sentence. Ordinarily I would think that this crime would require a sentence of from three to seven years."

"In the case before us I would agree that if the Chief Justice had said, without qualification, that an offence against section 170 should be punished by a sentence of imprisonment between the limits of three and seven years, he would be unduly fettering his discretion and especially so as to the lower limit. But he qualifies this by prefacing his remark with the word, 'ordinarily' which leaves the discretion unimpaired within the bounds of what is reasonable. I do not think, therefore, that it has been shown that we should infer that he proceeded on any wrong basis in approaching the task of sentencing the applicant."

"It is one's common practice and the only proper one, whether sitting as a trial judge imposing a sentence, or sitting in this Court reviewing a sentence, to commence by thinking of the approximate standards of penalty (set by judges and Court of Criminal Appeal) for the crime committed and then by taking into account the many other factors which may be taken into account, including any variations from the typical case and he circumstances leading up to an surrounding the commission of the particular offence being dealt with. This applies particularly to the serious crimes involving personal violence where the deterrent aspect is relevantly more important than it is in the consideration of sentences for the more usual crimes involving dishonesty.

In using the words complained of, the learned Chief Justice was doing no more than this. His standard is a wide one and for ordinary cases it is approximately appropriate."

15 In R v Allen (above) at par[13], Wright J referred to the sentencing range suggested by Burbury CJ in Papazoglou, and said:

"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."

16 In Hyde v R [2001] TASSC 50 at par[12], the Court of Criminal Appeal (Crawford, Slicer and Blow JJ) said that a sentence of 7 years' imprisonment was "at the top of the range of the sentences which are usually imposed for crimes involving breaches of s170". In Parker v Tasmania [2007] TASSC 39 at par[11], Crawford J (as he then was), delivering the principal judgment in the Court of Criminal Appeal, said that a sentence of 4 years' imprisonment was "within the range that earlier Courts of Criminal Appeal have thought to be ordinarily appropriate for more serious examples of a crime against s170", and referred to Papazoglou, Allen and Hyde.

17 The severity of the victim's injuries, and the extent of any permanent disability or incapacity, are very significant sentencing factors in s170 cases. Whilst Mr Briscoe's injuries were serious, and the respondent might well have killed him or inflicted much more serious harm if he had not been stopped, this is not a case where the victim has been left with a severe physical or intellectual impairment. Sentences at the heavier end of the range have been considered appropriate in cases where such impairments have resulted: Hyde v R (above) (5 years); Parker v Tasmania (above) (4 years, non-parole period 3 years); Bradshaw v Tasmania [2009] TASSC 22 (6 years, non-parole period 4 years); Tasmania v Clay (Tennent J, 13 October 2009) (5 years, non-parole period 4 years); Barron v Tasmania (above) (5 years, non-parole period 2 years 9 months, for causing grievous bodily harm contrary to s172).

18 Whilst Mr Briscoe's injuries did not result in a severe physical or intellectual impairment, a substantial prison sentence was appropriate because of the seriousness of the harm done to him, the degree of premeditation involved, the apparent intention of the respondent to cause more harm than he did, his prior convictions for assault, and the shortage of mitigating circumstances. In my view the head sentence of 18 months' imprisonment was far too low, and a head sentence in the vicinity of 3 years would have been appropriate. However a non-parole period equal to or near half the head sentence would not have been inappropriate. It is not possible to impose a non-parole period shorter than half of the head sentence: Sentencing Act 1997, s17(3). In my view the head sentence and the non-parole period were manifestly inadequate, but it does not necessarily follow that they were so manifestly inadequate that this Court should allow this appeal.

19 Some well established principles have been developed in relation to Crown appeals against sentence are: Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 per Barwick CJ at 301; Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 per Deane and McHugh JJ at 234; Everett v R [1994] HCA 49; (1994) 181 CLR 295 per Brennan, Deane, Dawson and Gaudron JJ at 299; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at 340 - 341.

20 Within the last few years, legislation has been enacted in Tasmania and some other Australian jurisdictions in relation to so-called "double jeopardy": Criminal Code, s401(4A); Criminal Appeal Act 2004 (WA), s41(4); Crimes (Appeal and Review) Act 2001 (NSW), s68A; Criminal Procedure Act 2009 (Vic), s289. Before the introduction of that legislation, it was well established that, when a Crown appeal succeeded and an offender had to stand for sentence a second time, the anxiety and stress caused by that situation had to be taken into account in favour of the offender, with the result that the final sentence was more lenient than the sentence that would otherwise have been appropriate: Attorney-General v McDonald [2002] TASSC 120; (2002) 11 Tas R 221. In Tasmania, the Criminal Code, s402(4A)(b), now prohibits this Court from taking into account "the fact that the Court's decision may mean that the person is again sentenced for the crime". Plainly, this Court may not now take into account the consequent stress and anxiety, even when that person has served his or her original sentence and been released. However questions also arise as to whether s402(4A)(b) and similar provisions in other jurisdictions have any impact on another principle established by the courts whereby, in prosecution appeals, there is a residual discretion to decline to intervene despite error or a manifest inadequacy: Director of Public Prosecutions v Latham [2009] TASSC 101 at par[50]; R v J W [2010] NSWCCA 49 at pars[44] - [130]. At the hearing of this appeal, counsel neither referred to the line of authorities concerning Crown appeals nor made any submissions as to whether or not s402(4A)(b) had had any impact on the residual discretion to decline to intervene.

21 For the reasons which follow, I have come to the conclusion that, however narrow the impact of s402(4A)(b) might be, this is an appeal that should succeed. It is therefore not necessary in this case to consider how far s402(4A)(b) has gone in changing the law.

22 I turn to consider the case law as it stood prior to the recent legislation concerning double jeopardy. In R v Osenkowski (1982) 30 SASR 212 at 213 King CJ made the following observation, with which White J agreed:

"The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

23 In R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522, Charles JA, with whom Winneke P and Hayne JA agreed, reviewed the relevant authorities and derived from them a number of propositions, the first two of which read as follows:

"1 An appeal by the Crown should be brought only in 'the rare and exceptional case' (Everett at 299) to establish some point of principle. The reason is that such appeals 'represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy' (Malvaso at 234).

2 Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to law down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski at 213) (f); to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306)."

24 A similar summary of the principles applicable to Crown appeals was formulated by the New South Wales Court of Criminal Appeal (Gleeson CJ, Hunt CJ at CL and McInerney J) in R v Allpass (1993) 72 A Crim 561 at 562. That summary begins as follows:

"1 A Court of Criminal Appeal which is dealing with an appeal against sentence does not simply embark upon the task of sentencing afresh, substituting its own opinion for that of the sentencing judge, and increasing the sentence if it considers it to be inadequate, or decreasing the sentence it if considers it to be excessive. An appellate court will only interfere if it is demonstrated that the sentencing judge fell into material error of law or fact. Such error may appear in the reasons given by the sentencing judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing judges have a substantial discretion, and the appellate court does not intervene simply upon the basis that the members of that court would have exercised their discretion differently from the judge at first instance.

2 Crown appeals against sentence are relatively infrequent. The High Court has said that such appeals 'should be a rarity': Griffiths [1977] HCA 44; (1977) 137 CLR 293 at 310; Malvaso [1989] HCA 58; (1989) 168 CLR 227 at 234; [1989] HCA 58; 43 A Crim R 451 at 456. One reason for this is the element of double jeopardy that is involved in such appeals."

25 The summaries of the principles relating to Crown appeals against sentences in Allpass and Clarke were approved by all seven judges of the High Court in Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 at 671.

26 It has not been suggested that this Court needs to act in order to overcome any inconsistency in sentencing standards or any idiosyncratic views. However we should allow this appeal if the sentence (ie the head sentence and the non-parole period) is so disproportionate to the seriousness of the crime as to shock the public conscience. Minds are likely to differ as to whether the sentence under review is so lenient that it satisfies that criterion.

27 In my view it does. The respondent slashed a man's face and stabbed him in the back. Fortunately the second wound was only "muscle deep", but there was a high risk of the respondent causing much more harm than he did. Having regard to his drunkenness, and the haphazard nature of the wounds he inflicted, I think there must have been a strong risk that he might have inflicted a potentially fatal or potentially incapacitating wound. He was intent on causing greater harm than he did.

28 It follows that the appeal must be allowed. In re-sentencing, it must be taken into account that, as feared, the respondent's father has died while he has been in prison. Otherwise, there is no new information to be taken into account. Having regard to the respondent's previous efforts to overcome his alcoholism, I consider that the shortest possible non-parole period would be appropriate.

29 I would allow the appeal, set aside the sentence of imprisonment and the parole order, substitute a sentence of 3 years' imprisonment with effect from 23 February 2010, and order that the respondent not be eligible for parole until he has served 18 months of that sentence.

DIRECTOR OF PUBLIC PROSECUTIONS v STEPHEN JOHN BLYTH

30 I agree with the reasons for judgment of Blow J. It may well be that the effect of the Criminal Code, s402(4A)(b) is to remove the double jeopardy element from the discretion to intervene in Crown appeals: Western Australia v Atherton [2009] WASCA 148 and R v JW [2010] NSWCCA 49 at [95], [141]. However, the extent to which the provision has modified the approach to intervention was not raised in this appeal, and there is no need to decide the point.

31 That is because in my view, the sentence is manifestly inadequate so as to constitute error in point of principle. It is one which may "lower the standard for the future and encourage sentencing levels for the crime which are lower than is desirable": per Crawford J (as he then was) in Director of Public Prosecutions v P [2007] TASSC 51 at [18].

32 It follows that I would also allow the appeal. I agree with the orders in relation to the substituted sentence which Blow J has proposed.

DIRECTOR OF PUBLIC PROSECUTIONS v STEPHEN JOHN BLYTH

33 I agree with the reasons of Blow J and the conclusion he has reached that the appeal should be allowed. I also agree with the orders he proposes.