CITATION: Director of Public Prosecutions v Bradford [2016] TASCCA 14

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Assault on correctional officer during court proceedings - Sentence of 18 months' imprisonment with 12 months thereof suspended manifestly inadequate.

Judgment Number: [2016] TASCCA 14

2 Order suspending 12 months of the respondent's sentence of 18 months' imprisonment quashed.

1. Respondent not to be eligible for parole until he has served 12 months of the sentence of 18 months' imprisonment.

1. I have had the benefit of reading the reasons for judgment in draft form of Pearce J. I agree with those reasons and the orders proposed.

1. This is a Crown appeal against sentence. On 1 August 2016, the respondent was convicted on his plea of guilty to one count of assault and sentenced by Estcourt J to imprisonment for 18 months. The learned sentencing judge suspended 12 months of the term of imprisonment for two years. The appellant does not assert error in the length of the head sentence but contends that suspension of 12 months of the term made the sentence manifestly inadequate.
2. For the following reasons the appellant's contention should be accepted and the appeal allowed.

1. At about 4pm on 4 November 2015, the respondent was in the dock of this Court with two other men, Derek Crosswell and David Coles. They were all in custody because they were serving sentences for crimes committed on 25 May 2013. A Crown appeal against the adequacy of the sentences had already been heard and, on that day, the men were present for announcement of the result. When it became apparent that the appeals had succeeded, and that the length of the term of imprisonment imposed on each man was to be increased, the respondent's mother became agitated and moved from the gallery into the well of the Court. She assaulted a female Crown counsel. As the court security officers tried to restrain his mother, the respondent placed his knee on the dock as if to climb over. One of the correctional officers, Darren Clark, moved towards him and put his hands out to prevent the respondent from moving from the dock. As the complainant's attention was momentarily diverted by the disturbance behind him, the respondent punched him once with his right fist to the left cheek. The punch was so forceful that a correctional officer standing nearby heard a cracking sound. The respondent then raised his hands so as to threaten the other correctional officers who approached him. After being restrained he was returned to prison.

1. The respondent is 23. He has a poor record as a youth for dishonesty, driving offences and anti-social offending. He was also sentenced in 2009 for assaulting a police officer, and in 2010 for threatening a police officer, two counts of assaulting a police officer and one count of aggravated assault. He was variously made subject to probation, community service, suspended and then actual detention orders.
2. The respondent turned 18 in 2011. As an adult he continued to offend. Some more detailed attention to his recent record is required because his criminal conduct and the sentences imposed for it are relevant to this appeal. On 11 October 2011 he was sentenced to imprisonment for four months, wholly suspended for two years, for two counts of motor vehicle stealing and one count of stealing. On the same day previously suspended detention orders totalling about 14 months were activated because of re-offending. He was released from custody in early 2012. On 21 May 2012 he was fined for threatening a police officer and escape. On 17 August 2012 he was sentenced to imprisonment for six months backdated to 25 March 2012 for common assault, motor vehicle stealing and stealing. The part of that sentence the respondent had not already served, just over a month, was suspended. On 1 July 2013, not long after the hotel robbery mentioned below, the respondent was sentenced to imprisonment for six months wholly suspended for three years for motor vehicle stealing committed in October 2012. On 1 July 2013 he was also ordered to serve the suspended part of the 17 August 2012 sentence. On 19 August 2013 the four month suspended sentence imposed on 11 October 2011 was activated from 12 June 2013.
3. On 25 May 2013 the respondent committed the crimes of robbery, aggravated burglary and aggravated armed robbery. In the early hours of the morning he went with Mr Coles and Mr Crosswell to a nightclub in Hobart. He was seen on CCTV in a storage area at the rear of the nightclub stealing beer. As he left that area he was confronted by the licensee. The respondent head butted and punched the man, thereby committing a robbery. The licensee was taken to hospital for treatment. After leaving the nightclub the respondent drove with Mr Coles and Mr Crosswell to Granton. The respondent was the driver. After dropping Mr Crosswell and Mr Coles at the York Hotel he parked about 300 metres away. By then it was about 4.45am. The respondent waited while the other two broke into and robbed the hotel. In the course of the robbery two employees were tied up and threatened with a firearm the offenders had brought with them in the car. The respondent later returned to the hotel in the car in an unsuccessful attempt to retrieve the safe which was the target of the robbery. After the crime the respondent was found interstate and extradited. On 16 October 2014 he was sentenced to imprisonment for three years from 15 September 2014.
4. On 1 October 2015 the respondent was made subject to further sentencing orders. He was sentenced to imprisonment for eight months, wholly suspended for two years, for bail, driving and dishonesty offences committed during 2014 but prior to his imprisonment. On the same day the six-month suspended sentence imposed on 1 July 2013 was activated but ordered to be served concurrently with the sentence he was already serving. Although the effect of that order is a little unclear, the sentence had either, by then, already been served or had at least been served by the time he was sentenced on 1 August 2016.
5. On 4 November 2015 this Court increased the respondent's sentence for the 25 May 2013 crimes to imprisonment for four years with parole eligibility after serving half the sentence: Director of Public Prosecutions (Acting) v Crosswell [2015] TASCCA 22. The final result is that, when he was sentenced on 1 August 2016 for the assault committed against Mr Clark on 4 November 2015, the respondent was subject to the following sentences:
   • imprisonment for four years from 15 September 2014 with parole eligibility after half;
   • imprisonment for eight months wholly suspended for two years from 1 October 2015.
6. The sentence to which this appeal relates was expressed to be cumulative with the sentence of four years' imprisonment.

1. The respondent was educated to grade 10. He has a long history of abuse of alcohol and drugs. Since leaving school he has enjoyed very little employment. He was interviewed by the police on the day after the assault. He admitted punching the complainant, but there could hardly have been any doubt that he had done so. There were many witnesses and his acts were recorded on the Court audio-visual recording system. Mitigation arose from his plea of guilty. It saved the cost of a trial and spared the complainant the anxiety and trauma of having to relive the assault and give evidence about it. The sentencing judge was told that before being imprisoned in September 2014 the respondent had reduced his consumption of alcohol and drugs, and following his imprisonment he had enrolled in an intensive course to address the abuse of those substances and was waiting to commence it. It was submitted on his behalf that he committed the assault as a spontaneous reaction only after he became aware that his mother was being restrained by the Court security officers and hearing her screams. He said he did not act in response to the Court's judgment but, rather, to action being taken against his mother which he did not then understand. He felt helpless and confused as a result. He expressed some remorse, claiming to have been shocked and disappointed at the impact of his actions.
2. He has already suffered some punishment for his act. As a result of his breach of prison discipline the respondent spent three months in solitary confinement. Since then however he has been of good behaviour in the prison, and, in the words of the sentencing judge, "has a rare trusted position of employment in his yard".

1. The principles justifying intervention of an appellate court in appeals on this ground have been stated in many cases, and were summarised in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1. The principles to be applied to Crown appeals were reviewed in Director of Public Prosecutions v Swan [2016] TASCCA 9 at [24] and following. The underlying principle is that a primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465-466 [1]- [2]. It is not the function of the Court to overturn a sentence merely because it is light or lenient. The sentence must be shown to be manifestly inadequate to the point of clear error. Appellate courts should exercise deference and restraint. However, when appropriate cases are brought on appeal, it is for this Court to maintain sentencing standards and levels: Director of Public Prosecutions v P [2007] TASSC 51 per Crawford J (as he then was) at [18]. Crown appeals serve also to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence: Everett v The Queen [1994] HCA 49, 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]- [116].

1. Subject to the principles just expressed, I have concluded that the sentence imposed in this case was manifestly inadequate and that the intervention of this Court is required. The effect of suspension of 12 months of the 18-month sentence, was to make a sentence which was otherwise appropriate, lenient to the point of error. The sentence thereby failed to adequately reflect the sentencing objectives of general and specific deterrence, punishment and denunciation. Appellate intervention is required to maintain standards for the future and so that lower than desirable sentences for crimes of this nature are not encouraged.
2. The objective gravity of this crime is high. It is a very serious example of the crime of assault. The victim of the crime was a correctional officer acting in the course of his employment. His duty was to maintain order and the security and safety of others, and to secure the custody of prisoners. The work of correctional officers involves exposure to risk. In the particular circumstances of this case the risk became greater than usual. The inescapable inference from the material put before the sentencing judge, including photographs of the respondent and the courtroom, is that the complainant intervened as the respondent was about to leave the dock. Courts have a responsibility to impose sentences which serve to support and protect those in the position of the complainant and to vindicate their authority. Sentences must serve to denounce and punish. The situation is comparable to cases involving the assault of police officers. Deterrence, both of the offender and others, is an important sentencing consideration: R v Hamilton (1993) 66 A Crim R 575; R v Edigarov [2001] NSWCCA 436, 125 A Crim R 551 per Wood CJ at CL at 558, [42]-[43]; DPP v Arvanitidis [2008] VSCA 189, 202 A Crim R 300 at [50]. In this State, Underwood J (as he then was) said in Thorpe v Turfrey [1985] TASSC 63, B3/1985:

"It is well established that in dealing with offenders such as the applicant regard must be had to the proposition that in the lawful execution of their duty police officers are exposed to risks of violence and the courts should uphold the authority the community has vested in them. See R v Coleman (1975) 61 Crim App R, p206; Derrico v McKenna, Tas unreported, Serial No 39/1980; Lahey v Edwards, Tas unreported, Serial No 46/1967. This is not to say that a custodial sentence is appropriate in every case but the imposition of such a sentence is a primary consideration and this must be taken into account with the circumstances surrounding the commission of the offence and the circumstances of the offender. I respectfully adopt what Neasey J said in House v Johnson, Tas unreported, Serial No 93/1966:-

'In a recent judgment in O'Donnell v Dakin, Ellston v Dakin ([1966] Tas SR 87), delivered on the 20th of June 1966 the Chief Justice of this Court expressed the view that it was the duty of the Court to vindicate the authority of the police by imposing substantial punishment for the offences of resisting arrest or assaulting a police officer, and that ordinarily nothing less than a gaol sentence would be appropriate to vindicate the authority of the police. I take that to have been meant as a statement of the general line of approach which the Court ought to take in cases of this sort, although such a general approach must of course yield to the overall result of taking into account all considerations proper to the exercise of judicial discretion in the particular case. Upon the assumption that those qualifications are implicit in his Honour's statement, I entirely agree with it. I can only regard the present case as a very serious instance of assault on a police officer in the execution of his duty. I think that, notwithstanding the previous good record of the respondent a gaol sentence is required in the public interest, and having regard to all the circumstances he will be sentenced to imprisonment for one month'."

1. Added to those considerations is that this assault was committed in a court room when the court was sitting. The respondent's conduct was a demonstration of his continuing disregard for the law and authority. Further, as the sentencing judge correctly pointed out, an objective of the sentence was to maintain the safety of other persons present in court; counsel, court staff and officials were all engaged in the performance of their respective functions.
2. In my view the explanation offered by the respondent for his conduct carried no mitigation. The complainant moved towards the respondent as a result of the respondent's motion to climb out of the dock. It was the complainant's duty to secure the respondent, but the complainant posed no threat to him. The blow was struck by the respondent when the complainant's attention was directed elsewhere, and with knowledge of the complainant's status as a correctional officer. By acting as he did the respondent showed cowardly disregard for the law and for the authority and interests of the complainant and the Court.
3. The impact of the crime is relevant to sentence. The complainant made a victim impact statement. Although the respondent struck a single blow and it was not a prolonged attack, the impact fractured the complainant's eye socket, fractured his cheek bone in four places and fractured his jaw. Surgery was required to reconstruct his face by insertion of three titanium plates and screws. They will remain in place permanently. He suffered a substantial loss of sensation to the left side of his face. He was away from work for more than three months and his return to work after that was graduated. He said his confidence and pride were badly affected, although, by the time he made his statement, he was "almost back to his old self". The consequences went beyond his employment to his recreation and social life. His family was directly and indirectly affected. Although the contents of victim impact statements require the degree of circumspection described by Attorney-General v B [2010] TASCCA 6, 20 Tas R 277 and Belbin v Bennett [2011] TASSC 23, 218 A Crim R 42 at [36] and following, especially as to assertions of psychological injury, there was no challenge to the contents of the complainant's victim impact statement, nor the use of it made by the sentencing judge.
4. No specific error is alleged, but the sentencing judge's comments on passing sentence are relevant to consideration of the exercise of his Honour's broad sentencing discretion. His Honour mentioned many relevant sentencing factors, all of which no doubt influenced him to take the course he did. However, he offered two principal reasons for suspending part of the sentence. He said that he had in mind "the need not to subject the defendant to a crushing period of incarceration and in the hope that the defendant's recent ongoing imprisonment will have aided the steps he has taken towards rehabilitation". With great respect, neither the prospect of rehabilitation nor the principle of totality justified suspension of any part of this sentence.
5. When sentenced the respondent was still a relatively young man. It was a factor to which the sentencing judge referred on more than one occasion, and on which he placed considerable weight. The importance of youth as a sentencing consideration has been emphasised by courts for many years. In many cases, youth is a powerful factor pointing to lenience. Despite community criticism of suspended sentences founded on the contention that they constitute insufficient punishment, they are a valuable sentencing tool, particularly when sentencing young offenders or offenders without a bad record of offending. That is so for the reasons explained by Evans J in Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, 20 Tas R 339 at [16] and following. However this was not a case justifying a suspended sentence. The respondent's record disentitled him to the mitigation which a person of his age with a relatively good record might otherwise be entitled to. He had spurned the opportunities he had previously been given to allow for his reform. He had already served many periods of detention and imprisonment. Leaving aside suspended detention orders, the respondent had already had the benefit of four suspended sentences of imprisonment. The first three of those had been breached by re-offending and activated. The most recent one had been imposed while he was in prison serving the sentence for aggravated armed robbery and other crimes. Once again, it did not deter him. This assault was committed just over a month after that suspended sentence was ordered, and it is an aggravating factor that the assault was committed while he was subject to it. It is obvious that suspended sentences were, for the respondent, no deterrent at all. The respondent's submission to this Court that the respondent's record is mostly for dishonesty significantly understates the relevance of the offences of violence I described earlier, many of which demonstrated a continuing disregard for authority. The indicators of any reasonable prospect of rehabilitation or reform were insufficient to displace the need for a sentence giving priority to general and specific deterrence, punishment and denunciation. The decision to suspend a sentence may depend on mitigating factors other than whether there is a reasonable prospect of rehabilitation and reform: Langridge v The Queen [2004] TASSC 97, 12 Tas R 470 at [30]- ; , However, leaving aside for a moment the issue of totality, there were no other mitigatory factors of sufficient weight to justify suspension of the sentence.
6. With respect, the sentencing judge was correct to order that the sentence he imposed was to be cumulative to the sentence the respondent was serving. Because the respondent was a prisoner who assaulted a correctional officer, the crime was a prison offence within the meaning of that term in the Corrections Act 1997. As a result, absent exceptional circumstances justifying an order to the contrary, the sentence was to be served cumulatively: Sentencing Act 1997, s 15(3). In any event, the application of principle required a cumulative sentence. The assault was a separate incursion into criminal conduct for which a cumulative sentence was appropriate: Johnson v The Queen [2004] HCA 15, 78 ALJR 616. In those circumstances the sentencing judge was also correct to have regard to the principle of totality. The operation of the principle was reviewed by this Court in Hall v Tasmania [2015] TASCCA 6. In my view, for the following reasons, the respondent was entitled to little consideration arising from totality. The totality principle "requires a sentencing judge to impose a sentence or sentences which reflect the overall criminality of the offending for which the offender has been convicted": Contin v The Queen [2012] VSCA 247 at [38]. It is the final step in the sentencing process which requires the sentencing court to consider the "overall picture", taking into account the objective criminality of the conduct and matters of mitigation: R v Creed (1985) 37 SASR 566 at 568; Postiglione v The Queen [1997] HCA 26, 189 CLR 295 per Kirby J at 340-341. The effect is to reduce the sentence which an offender would otherwise receive such that the aggregation of the sentences is a just and appropriate measure of an offender's total criminality: per McHugh J at 307-308. The totality the principle applied because the respondent was sentenced at a time when he was already serving another sentence of imprisonment: ; at 308; ; ; , per Evans J at [24]; , and per Crawford CJ at [18]. As Hunt CJ at CL in pointed out at 466:

"When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable."

1. The sentencing judge referred to the objective of avoiding a ''crushing period of incarceration". The notion derives from totality. Totality does not apply only in cases where the aggregation of sentences imposes an "otherwise crushing burden": Johnson at [22]. However it is commonly referred to as part of the consideration of totality. A "crushing sentence" was described by Nettle JA (as he then was) in R v Beck [2005] VSCA 11 at [22], as one in which "the total effective sentence is so long as to risk provoking within the applicant a feeling of helplessness and the destruction of any reasonable expectation of a useful life after release". In the same year his Honour, in a joint judgment with Chernov JA in R v Kerbatieh [2005] VSCA 194, 155 A Crim R 367, said at [125]:

"Views may differ as to whether any given sentence is crushing. The test most often applied is whether the sentence is of such a length that it would provoke a feeling of helplessness in the applicant when and if released or whether it connotes the destruction of any reasonable expectation of useful life after release. But length of sentence is not always determinative and there are cases in which the length of a sentence may almost certainly have those effects and yet still not be manifestly excessive. In the end, as so often has been observed, it is a matter of impression and there is little that may usefully be said about it."

1. In this appeal, the question is whether, taking into account that the respondent was already serving a sentence of imprisonment of four years with eligibility for parole after serving half, the sentence imposed by the learned sentencing judge fell below a just and appropriate measure of the respondent's total criminality to the point of error. In my opinion, taking into account all of the circumstances of all of the offending, and the circumstances of the respondent, it did. The crime for which the respondent was sentenced involved quite separate criminality, separated in time and by the nature of the offending behaviour. The suspension of so much of the term resulted in a sentence which failed to adequately meet all of the sentencing objectives referred to earlier in these reasons - punishment, denunciation, general and specific deterrence and protection of the community. Even allowing for the effect of the sentence the respondent was already serving, the new sentence failed to reflect the gravity of the crime and the respondent's moral culpability.
2. As counsel for the respondent correctly submitted, there are some cases in which a second sentencing court may impose a shorter cumulative sentence because, by reason of the imposition of the first sentence and the loss of liberty, deterrence, denunciation and possible progress towards rehabilitation it entails, not as much emphasis is required on such aims when passing the second sentence: Vlek v The Queen [1999] WASCA 1038, citing Mill [1988] HCA 70, 166 CLR 59. The relevant passage from the decision in Vlek was relied upon by Tennent J in Hall v Tasmania [2015] TASCCA 6. The force of that submission is substantially reduced in this case because the respondent committed the crime while serving the first sentence, after having already been in custody for more than a year. It is thus a situation to be distinguished from a situation involving imposition of a second sentence for conduct prior to imprisonment.
3. There was no need to suspend any of the term imposed to avoid a sentence that was "crushing". A harsh sentence was called for, and adequate provision can be made for any feeling of helplessness held by the respondent, or the destruction of any hope of reform he may harbour, by allowing the opportunity for parole: Sentencing Act, s 17(3). When sentenced he was only a few months away from eligibility for parole for the sentence he was already serving. His age on release will not leave him without any reasonable expectation of a useful life, and the Court should be optimistic about the prospect of the respondent's release on parole when eligible: Devine v The Queen [2003] TASSC 52 per Evans J at [30]. I agree with the submission of counsel for the appellant that the appropriate means of addressing the prospect of the respondent's rehabilitation, the likelihood of him re-offending, and the need for protection of the public, is to allow the Parole Board to do so when considering those and the other matters it is required to consider under the Corrections Act, s 72(4), before granting parole.
4. As counsel for the respondent submitted, this Court has no charter to tinker with sentences: Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31] citing Aherne v The Queen 20/1982 per Nettlefold J at 3. She contended that there was only a marginal difference between the effect of the sentence imposed and the head sentence with eligibility for parole after the minimum period. Because no parole order was made by the sentencing judge, the respondent will, absent remissions, be required to serve all of the six-month unsuspended part of the sentence his Honour imposed: Sentencing Act, s 17(3A). By the combined operation of the Corrections Act, ss 70 and 71, and the Sentencing Act, s 17(3) and (8), the sentencing judge could have ordered eligibility for parole after the respondent had served half of the operative part of the sentence, but did not: Williamson v Lane [2013] TASSC 53. The respondent's contention should not be accepted. The submission that there is limited difference between the two sentencing scenarios suggested by counsel for the respondent is based on two unjustified assumptions. The first is that, if no part of the 18-month head sentence had been suspended, the respondent would be eligible for parole after having served nine months of the sentence. The second assumption is that there is little practical difference between the operation of a suspended sentence and the grant of parole if the period of actual custody is comparable. In fact, there are considerable differences arising from the statutory hierarchy of sentences, as a matter of perception and by their practical effect. A sentence of actual imprisonment is the most serious of the available sentencing orders: Sentencing Act, A wholly or partly suspended sentence is the penultimate option. A head sentence with eligibility for parole is, and carries the perception of being, a sentence of greater gravity than a wholly or partly suspended sentence. That perception serves the objectives of denunciation, deterrence and public confidence in the administration of justice. A suspended sentence operates by force of order, regardless of the circumstances and behaviour of the prisoner at the time of release. Approval of an application for parole is not to be assumed. It is subject to the proper exercise of the statutory function of the Parole Board. Following the grant of parole a prisoner is taken to be still under sentence and is subject to the continuing close supervision of the Board with the attendant prospect of parole revocation, even for reasons falling short of the commission of an offence punishable by imprisonment: , and .

1. Application of the foregoing principles to this case leads me to the conclusion that the sentence is manifestly inadequate. I am satisfied that there is no reason to exercise the residual discretion to dismiss the appeal. I would allow the appeal. I would quash the sentence, reimpose the same head sentence and order eligibility for parole. The factors which led me to the view that the appeal should be allowed are also relevant in determining the appropriate non-parole period: Sentencing Act, s 17(4). I think that the minimum period that justice requires the respondent must serve in prison is 12 months. I would sentence the respondent to imprisonment for 18 months cumulative to the sentence imposed on 4 November 2015, and order that he not be eligible for parole until having served 12 months of the sentence.