Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Aggravated burglary, wounding and assault - Violent home invasion.

Criminal Law - Appeal and new trial - Appeals against sentence - Appeals by Crown - Exercise of discretion - Double jeopardy.

R v JW [2010] NSWCCA 49; (2010) 199 A Crim R 486; Director of Public Prosecutions v Karazisis [2010] VSCA 350; Western Australia v Atherton [2009] WASCA 148, followed.

Judgment Number: [2011] TASCCA 8

DIRECTOR OF PUBLIC PROSECUTIONS v KATRINA ANN CHATTERS

2 The sentencing order of the learned sentencing judge is varied so that the conditions of the respondent's suspended sentence are that she (a) must not commit another offence punishable by imprisonment on or before 17 February 2014, and (b) is to perform 210 hours' community service.

DIRECTOR OF PUBLIC PROSECUTIONS v KATRINA ANN CHATTERS

1 These are the Court's reasons for orders that it made on 16 June 2011, allowing an appeal by the Director of Public Prosecutions in relation to a sentence imposed upon the respondent, Katrina Chatters, and re-sentencing her. She pleaded guilty to four charges relating to a violent attack by her upon another woman. On 17 February 2011 Tennent J sentenced her to 10 months' imprisonment, but suspended the whole of that sentence, stating that she did so on condition that for a period of three years the respondent commit no crime involving violence. The appellant contended that that sentence was manifestly inadequate.

2 The respondent pleaded guilty to four charges relating to the attack. Those charges comprised the following:

•

A charge of aggravated burglary, relating to the respondent entering the other woman's home with an intention to commit the crime of assault upon her.

•

A charge of assaulting the other woman by punching her to the head, face and body more than 20 times, striking to the head and body with a metal pole 20 times, and kicking her to the back and body four times.

•

A charge of wounding, relating to a head wound inflicted during the attack.

•

A second charge of wounding, relating to a wound to the left thumb suffered by the other woman during the attack.

3 Senior counsel for both parties made lengthy submissions to this Court about the impact of an amendment to the Criminal Code, by which s402(4A) was inserted in 2008. That subsection reads as follows:

"(4A) The Court, on hearing an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was brought, made or lodged by the person or by the prosecutor) -

(a) may take into account any matter relevant to the sentence that has occurred between when the court of trial dealt with the person and when the appeal is heard; but

(b) despite paragraph (a), must not take into account the fact that the Court's decision may mean that the person is again sentenced for the crime."

4 Counsel for the appellant made submissions to the effect that, as a result of the amendment, Crown appeals against sentence should now be allowed just as readily as defence appeals against sentence, and re-sentencing following a successful Crown appeal should not involve any leniency attributable to a Crown appeal having succeeded. Counsel for the respondent made a submission to the effect that the amendment had a more limited impact; that it precluded this Court, on re-sentencing after a successful Crown appeal, from taking into account any stress or anxiety experienced by a respondent as a result of having to stand for sentence a second time; and that the law in relation to Crown appeals against sentence was otherwise unchanged.

5 In order to evaluate those submissions, it is necessary to examine the case law concerning Crown appeals against sentence as it stood prior to the amendment in 2008. The law was well settled. The relevant principles were summarised 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 R 561, and by Charles JA, with whom Winneke P and Hayne JA (as he then was) agreed, in R v Clarke [1996] VICSC 30; [1996] 2 VR 520.

6 In Allpass at 562 - 563, the Court summarised the relevant principles 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. Rules designed to safeguard against double jeopardy are deeply embedded in our system of criminal justice: eg Dodd (1991) 56 A Crim R 451; Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502. Thus, for example, there is usually no right of Crown appeal against an acquittal at a trial.

3 If a Crown appeal against sentence is successful, and the appellate court resentences the respondent, it does so in the light of all the facts and circumstances as at the time of resentencing. Events which have occurred after the original sentencing may be relevant.

4 When, in response to a Crown appeal, the court decides to resentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.

5 An appellate court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection the conduct of the Crown at the original sentencing proceedings may be a matter of significance."

7 In Clarke at 522, Charles JA summarised the relevant principles as follows:

"1 An appeal by the Crown should be brought only in 'the rare and exceptional case' (Everett [Everett v R [1994] HCA 49; (1994) 181 CLR 295 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 lay 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) [R v Osenkowski (1982) 30 SASR 212 at 213]; (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306).

3 A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact (Allpass at 562-3).

Allpass is also authority for the following propositions:

4 When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.

5 An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance."

8 Both of these summaries were approved by the High Court, in a joint judgment of all seven judges, in Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 at 671.

9 As can be seen from the two summaries, there are several quite different aspects of the principles applicable to Crown appeals. The notion of "double jeopardy" is central to some, but not all, of these aspects. The term "double jeopardy" seems to have arisen from statements made by Brennan, Deane and Gallop JJ in R v Tait (1979) 46 FLR 386 at 388 - 389, as follows:

"A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal' (per Isaacs J in Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at 248). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court.

It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, ...".

10 In Hayes (1987) 29 A Crim R 452 at 469, Kirby P (as he then was) commented on this notion of double jeopardy, pointing out that it was not a true double jeopardy. His Honour went on to say:

"But in a practical sense, there is a species of double jeopardy. The prisoner's liberty, pocket and reputation are put in jeopardy both before the sentencing judge and before the appellate court. In addition, the prisoner suffers the anxiety and stress caused by the situation of uncertainty arising from the delay in resolving his or her position" [References omitted].

11 The first aspect of the principles was that Crown appeals against sentence were less readily allowed than defence appeals against sentence. The concept of double jeopardy was central to this approach. There was a higher threshold test for error: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [62]; Director of Public Prosecutions (Vic) v Bright [2006] VSCA 147; (2006) 163 A Crim R 538 at [10]. See also Khan (1996) 86 A Crim R 552 per Allen J at 553 (Gleeson CJ and Sperling J agreeing) followed in this Court in R v Harland-White 23/1997 and Attorney-General v Blackler [2001] TASSC 27. Secondly, double jeopardy meant that having to be sentenced a second time, and any associated anxiety or stress, was taken into account in favour of the offender, with generally a more lenient sentence being imposed.

12 In summary, the situation was as Kirby J put it in Dinsdale v R (above at [62]): "that where the Crown appeals, it is normally obliged to demonstrate very clearly the error.. [and].. where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences".

13 The last aspect of the principles, and one not related to the concept of double jeopardy, or at least not exclusively so, is what was described in Allpass as an over-riding discretion "which may lead an appellate court to decline to intervene, even where error has been shown." This became known as the "residual discretion". In R v Dowie [1989] TASSC 44; [1989] Tas R 167 Underwood J (as he then was) at 180, and Wright J at 183, noted this principle with approval, both of their Honours referring to the article by F Rinaldi, Dismissal of Crown Appeals Despite Inadequacy of Sentence (1983) 7 Crim LJ 306.

14 The impact of recent legislation similar to Tasmania's s402(4A) has been considered by the appellate courts of New South Wales, Victoria and Western Australia in recent years. In each of those jurisdictions, it has been held that recent legislative amendments have not only precluded courts, when re-sentencing after successful Crown appeals, from taking into account the presumed stress and anxiety resulting from the offender having to stand for sentence a second time, but have also resulted in the old established principles as to the rarity of Crown sentencing appeals, the need to demonstrate error very clearly, and the imposition of lenient substituted sentences no longer being applicable.

15 The relevant legislative provision in New South Wales is the Crimes (Appeal and Review) Act 2001 (NSW), s68A. That section has different wording from the Tasmanian provision. It reads as follows:

"68A Double jeopardy not to be taken into account in prosecution appeals against sentence

(a) dismiss a prosecution appeal against sentence, or

(b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate,

because of any element of double jeopardy involved in the respondent being sentenced again.

(2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal."

16 The impact of that section was considered by the New South Wales Court of Appeal (Spigelman CJ, Allsop P, McClellan CJ at CL, Howie and Johnson JJ) in R v JW [2010] NSWCCA 49; (2010) 199 A Crim R 486. The principal judgment was delivered by Spigelman CJ. The other members of the Court agreed with his reasons as to all matters that are presently relevant. After undertaking a very thorough analysis of the relevant authorities, his Honour said the following at [141]:

"141 The following propositions emerge from the above analysis:

(i) The words 'double jeopardy' in s 68A refer to the circumstance that an offender is, subject to the identification of error on the part of the sentencing judge, liable to be sentenced twice.

(ii) Section 68A removes from consideration on the part of the Court of Criminal Appeal the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject.

(iii) Section 68A prevents the appellate court exercising its discretion not to intervene on the basis of such distress and anxiety.

(iv) Section 68A also prevents the appellate court from reducing the sentence which it otherwise believes to be appropriate on the basis of such distress and anxiety.

(v) Section 68A prevents the Court from having regard to the frequency of Crown appeals as a sentencing principle applicable to an individual case by taking either step referred to in (iii) or (iv), or otherwise."

17 However his Honour took the view that, in spite of the legislative amendment in New South Wales, there remained a residual discretion to reject a Crown appeal. At [95] he said this:

"95 Accordingly, s 68A, whilst removing the double jeopardy element from the exercise of the discretion to intervene, leaves other aspects untouched. On this basis, there remains a residual discretion to reject a Crown appeal, notwithstanding the abolition of the double jeopardy principle. The Court of Criminal Appeal must continue to recognise in a real and practical way the Crown's responsibility for the proper administration of the criminal justice system."

18 At [85] - [87] and [92] his Honour explained that the nature of this residual discretion to reject a Crown appeal is as follows:

•

it is not one to be exercised on the basis of a narrow range of considerations;

•

it remains extant on the basis of considerations not falling within the concept of double jeopardy;

•

the responsibility of the prosecutorial authorities for the fair, proper and just administration of the criminal justice system is such that many forms of inappropriate or unfair conduct can be taken into account in the exercise of the power and discretion vested in a court.

19 The implications of s68A were further considered by another five-member bench of the New South Wales Court of Criminal Appeal in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 273 ALR 324. Three members of that bench held that s68A required a re-sentencing court not to consider the element of anxiety and distress to which all respondents to a Crown appeal were previously presumed to be subject, but did not preclude consideration of any actual anxiety or distress occasioned by the fact that a particular respondent may be re-sentenced.

20 At [173] McClellan CJ at CL analysed the comments of Spigelman CJ in R v JW (above), as follows:

"[173] It may be that an offender who is being sentenced is experiencing actual anxiety and distress out of a concern that they may be sentenced to imprisonment. In JW, Spigelman CJ accepted that actual anxiety and distress is a subjective circumstance of the offender which may be relevant to the sentence which should be imposed at first instance. His Honour also acknowledged the submission on behalf of the appellant (in that case the State DPP) that there is a distinction between the distress and anxiety in facing sentence for the first time and the additional distress and anxiety caused by the possibility of a harsher sentence on appeal (at [51]). When a court is re-sentencing, the Chief Justice said that anxiety and distress 'is capable of being a significant indication that considerations of personal deterrence are not to be given significant weight' (at [52]). That the Chief Justice was referring to actual anxiety and distress is plain from the fact that his Honour had regard to this consideration when discussing the appropriate sentence. His Honour said, 'His mother gave evidence as to the stress and anxiety manifested by the respondent, which indicates that the objective of personal deterrence is already being served' (at [192])."

21 His Honour then set out [141] of the judgment of Spigelman CJ, which we have set out at [16] above. His Honour emphasised that in proposition (ii) in the paragraph, Spigelman CJ referred to "the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject", and the fact that propositions (iii) and (iv) in that paragraph referred to "such distress and anxiety". At [175] his Honour continued:

"[175] I have added my own emphasis to make plain my understanding of his Honour's reasoning. In short, s 68A has removed from consideration the element of anxiety and distress to which all respondents to a Crown appeal are presumed to be subject. However, it has not removed from consideration any actual anxiety or distress occasioned by the fact that the respondent may be re-sentenced. Notwithstanding s 68A, being a subjective consideration of that particular offender, it must be considered. The appropriate sentence must be informed by all of the relevant objective and subjective circumstances. It may be that, in the circumstances of a particular respondent, including his or her actual anxiety or distress, the appeal court should exercise its discretion and decline to intervene (at [95], [146]) or impose a lesser sentence."

22 At [275] - [278], Simpson J, referring to the judgment of McClellan CJ at CL, said the following:

"[275] To the reasons given by the chief judge I would add only this. The simple and basic proposition is that, in any appeal by the Director of Public Prosecutions (Cth) ('CDPP') against the asserted manifest inadequacy of sentence, s 68A does not exclude from consideration any evidence of a respondent's mental condition, even if that mental condition involves or includes distress and anxiety occasioned by the institution of the Crown appeal and the risk of an increased sentence.

[276] What s 68A precludes is reliance by the court upon the presumption that a respondent is suffering from that distress or anxiety. In my opinion, there is a significant distinction between a presumption of fact (even if drawn from common experience) and an inference available from evidence in the proceedings (see the judgment of Basten JA, para [106]). It is only the former that is excluded by s 68A.

[277] The principle of double jeopardy evolved as a humanitarian consideration in circumstances where an offender, having been sentenced leniently - manifestly too leniently, on the Crown case - faces the prospect of losing the benefit of that leniency. Courts presumed that that prospect would be the source of distress and anxiety.

[278] That may not invariably have been the case. Where it was, the principle that came to be called the principle of double jeopardy meant that it was unnecessary for evidence to be given to that effect. Where it was not, the offender benefited from a presumption of fact that was not, in reality, warranted."

23 Barr AJ agreed with those observations at [315]. Thus, the majority in that case took the view that s68A did not preclude a re-sentencing court from taking into account any actual anxiety or distress occasioned by the fact that a particular respondent may be re-sentenced.

24 The Victorian Parliament legislated to preclude double jeopardy from being taken into account in the Criminal Procedure Act 2009 (Vic), ss289 and 290. The wording is different from the provisions in Tasmania and New South Wales. Those sections read as follows:

(1) On an appeal under section 287, the Court of Appeal must allow the appeal if the DPP satisfies the court that -

(a) there is an error in the sentence first imposed; and

(2) In considering whether an appeal should be allowed, the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed.

(3) In any other case, the Court of Appeal must dismiss an appeal under section 287.

Orders etc on successful appeal

290 Orders etc on successful appeal

(1) If the Court of Appeal allows an appeal under section 287, it must set aside the sentence imposed by the originating court and impose the sentence, whether more or less severe, that it considers appropriate.

(2) If the Court of Appeal imposes a sentence under subsection (1), it may make any other order that it considers ought to be made.

(3) In imposing a sentence under subsection (1), the Court of Appeal must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate."

25 The effect of these sections was considered by the Victorian Court of Appeal in Director of Public Prosecutions v Karazisis [2010] VSCA 350. The majority judgment in that case was delivered by Ashley, Redlich and Weinberg JJA. Warren CJ and Maxwell P dissented, but only in relation to the relevance of double jeopardy as a consideration affecting the exercise by Victoria's Director of Public Prosecutions of his statutory right to bring an appeal against sentence.

26 The effect of the new statutory regime was summarised by Ashley, Redlich and Weinberg JJA at [52] - [53] as follows:

"52 We should briefly state our conclusions as to the effect of the new regime. The Act addresses each of the stages at which double jeopardy has been regarded as a relevant consideration. Section 289 is concerned with when this Court must allow an appeal. In that sense, s 289(1)(a) addresses the first stage of the process. It eliminates double jeopardy when considering whether there has been sentencing error. Section 289(1)(b) relates to the second stage. It removes double jeopardy as a discretionary consideration when the Court determines whether it is satisfied that a different sentence should be imposed. It must be remembered that, in that context, the Court has always had a residual discretion to refuse to intervene even if sentencing error has been shown. That residual discretion survives, despite the fact that double jeopardy has been removed as one of the bases upon which it can be exercised. R v Papazisis (1991) 51 A Crim R 242, 247; Allpass (1993) 72 A Crim R 561; and Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 624-5.

53 The third stage, when the Court has determined to intervene and impose a different sentence, is addressed in s 290(3). That sub-section removes the application of the principle of double jeopardy from the fixing of the sentence. It was not suggested on the appeal that double jeopardy now has scope for operation when, having allowed a Crown appeal, the Court must determine the sentence to be imposed. There are again discretionary considerations, other than double jeopardy, which may affect the sentence which the Court considers 'appropriate'."

27 As to the residual discretion, their Honours said that:

•

the requirement in s289(1)(b) that the Court be satisfied that a different sentence should be imposed served "to preserve a good part, at least" of the discretion - [75];

•

it was unnecessary to determine whether the term "double jeopardy" in the new provisions should "be confined to 'anxiety and distress' in the sense spoken of in JW [above], or whether the term had any wider import" - [99];

•

whatever the scope of the residual discretion, its removal as a rationale or sentencing principle to be taken into account does not otherwise diminish the scope of the residual discretion - [99].

28 At [101] -[102] their Honours said that as a result of the new provisions, regard could no longer be had to double jeopardy when considering whether to dismiss an appeal in the exercise of the residual discretion, and that:

"102 The new provisions also make it clear that the residual discretion to dismiss a Crown appeal can no longer be exercised on the basis that, if the Court were to proceed to re-sentencing, it would in any event arrive at a sentence close to that imposed at first instance because the Court would necessarily be giving a 'discount' for double jeopardy."

29 At [104] and [105], their Honours listed some of the factors that might be relevant to the residual discretion to dismiss an appeal, and commented on those factors. They said this:

"104 Among the factors that might be relevant to the exercise of the Court's discretion to dismiss an appeal, despite inadequacy of sentence having been demonstrated, are delay, parity, the totality principle, rehabilitation, and fault on the part of the Crown.

105 It is not difficult to see how factors such as these, and perhaps a number of others, might be regarded as justifying such a course in any given case. It is important to note that they are all far removed from double jeopardy, certainly in the sense in which that term is now understood in the context of the new provisions."

30 Their Honours referred at [94] and [95] to Director of Public Prosecutions v De La Rosa (above), and to the conclusion in that case that the New South Wales section precluded reliance upon presumed anxiety and distress, but not actual anxiety and distress. They expressed no disapproval. However, as they made clear in [53], it was not suggested in argument before them that double jeopardy had any scope for operation in re-sentencing. De La Rosa and the distinction between presumed and actual distress and anxiety appear not to have been considered in any subsequent Victorian Crown appeals.

31 Western Australian also legislated in 2008 in relation to the double jeopardy aspect of Crown sentencing appeals. That State enacted a provision that is indistinguishable from Tasmania's s402(4A) - the Criminal Appeals Act 2004 (WA), s41(4). That subsection reads as follows:

"(4) The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) -

(a) may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard; but

(b) despite paragraph (a), must not take into account the fact that the court's decision may mean that the person is again sentenced for the offence."

32 The effect of the enactment of that subsection has been discussed in a number of criminal appeals in Western Australia. The first case in the series is Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116. That case was considered in Western Australia v Cunningham [2008] WASCA 240; (2008) 190 A Crim R 430 and Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137, the consideration of the issue culminating in Western Australia v Atherton [2009] WASCA 148.

33 In Wallam, McClure and Miller JJA had to consider the transitional provisions in relation to the amendment and whether s41(4)(b) operated retrospectively. At [29] McClure JA said that the language of the provision was "clearly based on judicial statements of the principle [of double jeopardy] and was intended to exclude the double jeopardy principle as a relevant consideration in the appeal court's determination of the sentence that should be imposed on a State appeal." Miller JA agreed at [54].

34 There might have been some room for thinking that McClure and Miller JJA in Wallam said no more than that the provision operated only in relation to the re-sentencing exercise. However, in Cunningham, Miller JA (with whom Steytler P and Buss JA agreed), after repeating the proposition "that the double jeopardy principle is no longer a relevant consideration when the Appeal Court is determining the sentence to be imposed on a State appeal" said at [22]:

"The result is that the appeal in this matter falls to be decided in accordance with the general principles that relate to the hearing of appeals against sentence: Wallam at [66]-[67] (Miller JA) and see House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ); Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. In short, some error must be shown in the exercise of the discretion exercised by the sentencing judge, either by a wrong principle being employed, some extraneous or irrelevant matter guiding or affecting the sentencing judge, a mistake as to the facts, failure to take into account some material consideration, or, alternatively, the sentence is unreasonable or plainly unjust."

35 Further, in Bennett, Miller JA (this time with Buss and Owen JJA concurring) said at [67] - [68]:

"This is a prosecution appeal to which what were termed 'time-honoured concepts of double jeopardy' would once have applied: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 115 A Crim R 558 at [62], Kirby J. However, s 41(4)(b) of the Criminal Appeals Act 2004 (WA) has done away with the double jeopardy principle and its consequence that, when resentencing an offender on a prosecution appeal, a sentence will ordinarily be less than the sentence which should have been imposed at first instance ...

... The principles now to be applied are the same as those which apply in a case of an appeal by a sentenced person; namely, those set out in House at 504-505 by Dixon, Evatt and McTiernan JJ: see Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116 at [66], Miller JA."

36 In Atherton, Buss JA at [148] said, that "At common law, the fact that, on a State appeal against sentence, the offender was in jeopardy of being re-sentenced, was a critical factor in the formulation of the restraints on an appellate court in determining whether to allow the appeal ... as well as in moderating the new sentence to be imposed upon the appeal being allowed." His Honour referred to Dinsdale per Kirby J at [62] in which double jeopardy notions of restraint on intervention and moderation on re-sentencing were mentioned. Buss JA went on to note that the "common law principles were summarised by Steytler P in The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 at [25] - [40]".

37 Buss JA unequivocally stated the position as follows:

"149 In my opinion, s 41(4)(b) applies generally on the hearing of a State appeal against sentence. The provision does not merely abrogate the common law principle of moderation in relation to the new sentence to be imposed upon the appeal being allowed. It abrogates generally the common law principles applicable to State appeals against sentence."

38 At [383] Miller J specifically agreed with Buss JA, also saying that the common law principles applicable to State appeals against sentence had been abrogated. The view that the provision has "abrogated" the common law principles generally applicable to Crown appeals has been subsequently confirmed, again in unequivocal terms, in Western Australia v Johnson [2009] WASCA 224 at [29], Western Australia v SJH [2010] WASCA 40, and Western Australia v JWRL [2010] WASCA 179.

39 There can be no doubt that the Western Australian case law establishes that the double jeopardy principle no longer has any operation in Crown appeals in relation to (a) the approach to the detection of error, and (b) the taking into account of presumed anxiety and distress when an offender is re-sentenced. However there does not appear to have been any discussion in the Western Australian cases of Director of Public Prosecutions (Cth) v De La Rosa (above) and the distinction between presumed and actual distress and anxiety. Further, the fate of the residual discretion to reject a Crown appeal has not been expressly discussed in the Western Australian cases either.

40 However there is a little more that can be said as to the impact of the Western Australian cases on the fate of the residual discretion. In Atherton, when Buss JA spoke of the provision abrogating generally the common law principles applicable to State appeals against sentence, as noted above he did so immediately after saying that the common law principles were as summarised by Steytler P in Western Australia v Marchese at [25] - [40]. Those paragraphs in Marchese appear under the heading "Principles relating to Crown appeals", and contain express reference to the residual discretion and to that part of the judgment of Underwood J in Dowie to which we have earlier referred, including a reference to the Rinaldi article.

41 This notwithstanding, we think it appropriate to proceed on the assumption that nothing which has been said in any of the Western Australian cases impacts on the residual discretion except to the extent that it might be based on double jeopardy considerations. This is particularly so given that as we will later discuss, the Western Australian legislation contains a provision in similar terms to s402(4).

42 Since Western Australia's s41(4) is practically identical to Tasmania's s402(4A), this Court should not depart from the interpretation placed on the Western Australian provision by that State's Court of Appeal unless convinced that that interpretation is plainly wrong: Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 485 at 492; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135]; R v DG [2010] VSCA 173 at [54].

43 In a number of Crown sentencing appeals since the commencement of s402(4A) this Court has proceeded on the basis that it was unnecessary to consider the implications of that subsection since, whatever its effect, it would not make any difference to the outcome of the appeal: Director of Public Prosecutions v Latham [2009] TASSC 101; Director of Public Prosecutions v Blyth [2010] TASCCA 10; Director of Public Prosecutions v Broadby [2010] TASCCA 13. In R v Talbot [2009] TASSC 107, this Court took the view that s402(4A)(b) did not apply to sentencing appeals relating to offences against Commonwealth legislation. The Court on that occasion did not have the benefit of submissions from counsel as to the relevant provisions of the Judiciary Act 1903 (Cth), s109 of the Australian Constitution, cases from other States about new legislation relating to sentencing double jeopardy, or even s402(4A) itself. The decision in R v Talbot, insofar as it concerned s402(4A), has been held to have been plainly wrong in Director of Public Prosecutions v De La Rosa (above), and by the Western Australian Court of Appeal in R v Baldock [2010] WASCA 170; (2010) 269 ALR 674. For present purposes, we need only say that the Court did not find it necessary in R v Talbot to give detailed consideration to the full effect of s402(4A).

44 Counsel for the respondent submitted that this Court should not follow the decisions from other States to which we have referred. She relied on the second reading speech relating to the Criminal Code Amendment Act 2008, by which s402(4A) was introduced (House of Assembly, 28 August 2008). It was argued that that speech indicated an intention only that, upon re-sentencing, this Court was to disregard any stress or anxiety flowing from a respondent facing sentence for a second time. However the then Minister for Justice, Mr Llewellyn, made comments that indicated that a wider impact was intended. At one point he said this:

"Even if a prosecution appeal against sentence is successful, 'double jeopardy' considerations sometimes result in an appeal court not imposing a new sentence or discounting the substituted sentence. If sentences that have been accepted by appeal courts as inadequate remain uncorrected, this may have a tendency to lower sentencing tariffs, and persons convicted of crimes may be able to escape appropriate punishment. As a matter of principle, 'double jeopardy' considerations should not be given precedence over the community's interest in seeing crimes appropriately punished.

The Council of Australian Government's [sic] working group recommended that all jurisdictions should implement reforms to provide that, when a court is considering a prosecution appeal against sentence, no principle of 'sentencing double jeopardy' should be taken into consideration by the court when determining whether to exercise its discretion to impose a different sentence or in determining what sentence to impose."

45 Counsel for the respondent submitted that s402(4A) needed to be read in light of s402(4), which immediately precedes it. Of course the context of a legislative provision is always relevant to its interpretation. Section 402(4) reads as follows:

"(4) On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

46 It was submitted that s402(4A)(b), which requires a court not to take into account the fact that its decision may mean that an offender is again sentenced for his or her crime, had no role to play until it was determined under s402(4) that a sentence more severe than the original one was "warranted in law and should have been passed". That is inconsistent with what was decided in Western Australia. That State has a provision that corresponds to Tasmania's s402(4), in the Criminal Appeals Act (WA), s31. That section includes the following provisions:

"(1) This section applies in the case of an appeal commenced by an offender under section 23, or by a prosecutor under section 24(1), against -

(a) the sentence imposed or any order made as a result of -

(4) The Court of Appeal may allow the appeal if, in its opinion -

(a) in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed; or

(5) If the Court of Appeal allows an appeal referred to in subsection (1)(a), it must set aside the sentence and -

(a) may instead impose a new sentence that is either more or less severe ...".

47 Given the similarity between those provisions and Tasmania's s402(4), this is another situation where the Western Australian Court of Appeal decisions should be followed unless this Court considers that they are plainly wrong.

48 In our view the language of s402(4A) is such that it must have been intended to be relevant not just to re-sentencing, but also, in appropriate cases, in relation to the question whether to allow or reject an appeal. In the opening words of the subsection, it is made clear that it applies to this Court "on hearing an appeal that does or may require it to impose a sentence, or to vary a sentence imposed". In par(b) there is a reference to "the fact that the Court's decision may mean that the person is again sentenced for the crime". That paragraph refers to what this Court's decision "may" mean, a matter of some uncertainty, suggesting that it is to be applied when deciding whether or not an appeal should succeed.

49 Counsel for the respondent relied on the proposition that legislation should not be interpreted as altering common law doctrines unless the legislature expresses its intention with irresistible clearness: Pearce & Geddes, Statutory Interpretation in Australia, 6th ed, pars5.23 - 5.24. In a sense the case law in Allpass and in Clarke does not relate to the common law, but to the principles applicable to the exercise of specific statutory powers. However it can be accepted that a similar principle can be relevant to the interpretation of a statute when a question arises as to whether Parliament intended that a substantial body of case law should be superseded. Given that the relevant body of case law was based upon a foundation that s402(4A) and its counterparts in other jurisdictions have taken away, and given the wider intentions made evident in the second reading speech, there can be no room for the operation of the principle relied upon.

50 In our view the decisions of the intermediate appellate courts in Western Australia, New South Wales and Victoria were plainly correct, and there is every reason why this Court should follow them. In our view s402(4A) has the same effects as the corresponding provision in New South Wales, as outlined by Spigelman CJ in R v JW at [141], as quoted in [16] above, although with respect, we do not want to be taken as agreeing with any proposition that the concept of double jeopardy is confined to presumptive stress and anxiety; see [9] to [11] above.

51 In our view, s402(4A)(a) would operate so as to allow this Court to take into account any actual stress and anxiety established in the usual way, and which has occurred after the sentence has been imposed at first instance. See, in any event, Director of Public Prosecutions (Cth) v De La Rosa (above). Further, the residual discretion to dismiss a Crown appeal, in spite of the sentence being manifestly inadequate, on some basis other than double jeopardy survives in Tasmania. In such a case, it cannot be said that a more severe sentence "is warranted in law" within the meaning of s402(4).

52 The questions whether the respondent's sentence was manifestly inadequate, and whether a more severe sentence "is warranted in law and should have been passed" must therefore be considered in accordance with the new body of case law, and not in accordance with the old body of case law as summarised in Allpass and in Clarke.

53 The crimes in question were committed in the early hours of 28 March 2007. The respondent was sharing a house with a man who, had until recently beforehand, been her partner. They were working towards a reconciliation. She checked that man's mobile phone for text messages, and found five sexually explicit messages from the woman whom she subsequently attacked. She confronted her former partner. He denied that there was any sexual relationship between him and the other woman. The respondent had been drinking heavily. She decided to drive to the other woman's house. She armed herself with a metal pole that was part of a trampoline set. She drove from her home in Rokeby to the other woman's home in the adjoining suburb of Clarendon Vale. She used the metal pole to batter the boot of the other woman's car, and to beat on the front door, while screaming out to her to get outside. The other woman spoke to the respondent from inside the house, apologised to her, opened her front door, and walked back inside the house. The respondent followed her in. When she did that, she intended to assault her.

54 Once inside, the respondent asked, "You want to fuck my man do you?" The other woman apologised again. The respondent then commenced assaulting her. She struck her with the metal pole to the head. The other woman fell to the floor, and tried to protect her head. The respondent continued to strike her with the metal pole to the head and to other parts of the body. She put down the pole, but then she repeatedly kicked and punched the victim. She was wearing Blundstone boots. She kicked her to the back and the stomach at least four times. She tried to kick her to the head. She punched her to the face and body numerous times. She picked up the pole again, and resumed striking the victim with it. The attack lasted for about five to ten minutes. The victim was struck with the pole about 20 times. Some of those blows connected with the left and right sides of her head. During the attack the victim repeatedly told the respondent that she was sorry, and screamed out to her to stop. During the attack the respondent told the victim to get out of the State, and told her that this was only the beginning, that the victim should watch out for her family, and that she was going to kill her former partner. After the attack, the respondent left the house, and the victim was taken to hospital by ambulance.

55 As a result of the attack the victim suffered two wounds. Once was a seven centimetre wound to the left side of her head which was repaired with six staples. The other was a wound to the right thumb that was repaired with two sutures. She suffered bruising all over her body.

56 Later that day the respondent was interviewed by police officers. She admitted driving to the other woman's home with the intention of hurting her. She said she took the other woman's apologies as confirmation that she had tried to initiate a sexual relationship with her former partner. She said she "lost it" and just started hitting her. She said that she punched the other woman more than she hit her with the pole, but that she probably hit her with the pole 20 times. She said that the victim was cowering down on the floor like a sobbing little dog during the attack, saying that she was sorry. She admitted kicking her three to four times to "the bum and back", and trying to kick her to the head. She admitted that the attack continued for five to ten minutes. She said that she stopped only because she thought about the possibility of the victim's son being present. She said that she had never hit anyone like that before, but admitted that she hit the victim as hard as she could hit anyone, that she wanted her to hurt, and that she wanted her to suffer and wake up every morning knowing what she had done. She said she did not want to cut her open or break her bones.

57 Although this attack occurred in March 2007, the respondent was not sentenced in relation to it until February 2011. The reason for the delay was that the respondent absconded from bail. In fact she failed to appear on three occasions during 2007, and a warrant for her arrest was issued each time. In late 2007 she left the State, moved to Western Australia, and started a new life. She returned to Tasmania in August 2008, but did nothing about surrendering herself to face the charges against her. Apparently it was late 2010 before she again appeared in the Magistrates Court in relation to the charges. The learned sentencing judge was not told how that came about, nor was this Court. An order committing her for trial was made in November 2010. She pleaded guilty to the four charges on 11 February 2011.

58 The respondent's crimes involved the following aggravating factors:

•

The attack was premeditated. It certainly was not planned days in advance, but it was something that the respondent planned at her home before setting out with the metal pole to drive to the victim's home.

•

The attack involved a home invasion. However, unlike many home invasions, it did not involve a forced entry. The respondent entered the house through a door that her intended victim had left open.

•

The attack involved the use of a weapon, namely the metal pole from the trampoline set.

•

The victim was unarmed and unable to defend herself.

•

The attack was sustained and vicious, involving the victim being struck many times with the metal pole, kicked when the respondent was wearing Blundstone boots, and punched.

•

The nature of the attack was such that there was a serious risk that the victim might have suffered serious injury or even death.

59 At the time of the attack the respondent was 34 years old. When sentenced she was 38 years old, unemployed, actively seeking work, and living with her 18 year old daughter. She had another daughter, an adult, who had a young child. The respondent regularly looked after that child.

60 The learned sentencing judge was required to take into account the following mitigating factors:

•

The attack occurred when the respondent was under emotional stress. She had been the partner of the man in question for a number of years until shortly before the night in question.

•

The respondent was of generally good character, save for this attack, her absconding from bail, and her not surrendering herself. She was not given to violence and had no convictions for offences committed before or after the night in question.

•

When she moved to Western Australia, the respondent took steps to overcome an alcohol problem, to cut herself off from an undesirable group of friends, and to rebuild her life.

•

The respondent was unlikely to re-offend.

•

The respondent made full and frank admissions to the police within hours after the attack.

•

The respondent pleaded guilty not long after her committal. Although a plea of not guilty was entered in the Magistrates Court, her solicitor indicated to the Crown as early as October 2010 that she was likely to plead guilty. The inconvenience and expense of preparing for a trial were therefore avoided.

•

The victim had forgiven her, and was now her brother's partner. Although forgiveness is relevant, it must be given very limited weight. As Howie J, with whom Levine and Hidden JJ agreed, said in R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [37], "Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. ... Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim." See also R v Begbie [2001] NSWCCA 206; (2001) 124 A Crim R 300 at [43]; R v Burton [2008] NSWCCA 128 at [102]; Menichelli v Tasmania [2009] TASSC 111 at [16].

•

There was no suggestion that the victim's injuries were other than transient.

•

The respondent had a good work history.

•

The respondent had an unfortunate medical history. She was diagnosed with cancer in 1999. As a consequence she has problems with her legs, had to give up working in the hospitality industry, and is unable to work in many occupations. In late 2009 she was diagnosed with post-traumatic stress disorder after finding a friend who had attempted suicide. That condition had been substantially overcome, but she was left with continuing psychological symptoms.

61 Remorse is not a significant mitigating factor in this case. The respondent showed absolutely no remorse when she was interviewed by the police following the attack. It was not until late 2010 that she took responsibility for what she had done.

62 Both before the learned sentencing judge and before this Court, counsel for the respondent made much of the fact that she had not re-offended in the years following the attack, and had rehabilitated herself. However it would be a mistake to give undue weight to those matters. The delay between the offending and the sentencing resulted from the respondent absconding to another State, and then not surrendering herself in the years following her return to Tasmania. She may have overcome an alcohol problem, but violence had never been part of her nature. It cannot be said that she was a reformed character whilst she did nothing about facing the charges that were pending against her.

63 Counsel for the respondent also relied upon one aspect of the conduct of the Crown prosecutor at the sentencing hearing. A submission was made to the learned sentencing judge on behalf of the respondent to the effect that she could properly suspend part or even all of a sentence of imprisonment. Her Honour asked the Crown prosecutor whether she wished to say anything arising from the plea in mitigation. The Crown prosecutor did not take the opportunity to say anything about the appropriateness or inappropriateness of a wholly or partly suspended sentence. Counsel for the respondent submitted to this Court that it could be taken into account in her client's favour that no comment was made about the inappropriateness of a wholly suspended sentence at the sentencing stage, but that the Crown subsequently appealed and argued that that course was inappropriate.

64 The Sentencing Act 1997, s80, contains provisions that are relevant to that submission. Its relevant subsections read as follows:

"(1) Before a court passes sentence on an offender found guilty of an offence, both the prosecutor and the offender, or counsel on the offender's behalf, may address the court in relation to that sentence.

(2) ...

(3) The failure by a prosecutor to exercise the right conferred by subsection (1) is not to be taken into account by a court in determining any appeal against the sentence or in determining any motion to review the sentence."

65 Because of s80(3) this Court, at least when deciding whether or not to allow this appeal, must ignore the fact that the prosecutor remained silent when invited by the learned sentencing judge to reply to the plea in mitigation. There may be scope for an argument that s80(3) allows that silence to be taken into account as a factor relevant to re-sentencing if the appeal is allowed. It would be inappropriate to consider that proposition at this point.

66 In the vast majority of cases, the crime of wounding results in a custodial sentence. See Warner, Sentencing in Tasmania, 2nd ed, pars11.305 - 11.306. Given that the respondent's crimes involved a degree of premeditation, the use of a weapon, a home invasion, and a sustained vicious attack, we consider that the head sentence of 10 months' imprisonment was very low, and that a wholly suspended sentence, without more, was a manifestly inadequate penalty, despite all the mitigating factors that we have referred to.

67 It is true that a wholly suspended sentence is a severe sentence, and a more severe sentence than many members of the public might realise. The nature and status of a suspended sentence was discussed by Evans J in Director of Public Prosecutions v Broadby (above) at [7] - [12]. We agree with that analysis, and need not repeat it. Since that case, the Tasmanian legislation concerning suspended sentences has become stricter. Amendments to the Sentencing Act took effect on 1 January 2011. Now s24(1) makes every suspended sentence subject to a condition "that the offender does not commit another offence punishable by imprisonment during the period that the order [suspending the whole or a part of a sentence] is in force." Applications for an offender who has breached a condition of a suspended sentence may now be made orally: s27(4). If a court is satisfied that an offender has been found guilty of a new offence, the court must activate the suspended sentence unless it is of the opinion that that would be unjust: s27(4B) and (4C).

68 However, despite the serious nature of a wholly suspended sentence of imprisonment, we consider that the respondent's crimes were so serious that some more tangible form of punishment - either a period of actual imprisonment or a condition requiring the respondent to perform community service - was warranted.

69 In the short period between the sentencing of the respondent and the hearing of this appeal, the respondent's circumstances changed. About six weeks before the hearing she obtained full time employment selling security alarms on a commission basis. Her employment requires her to travel around the State. She had been having difficulty finding employment, particularly because of her physical disability. Since the sentencing, the respondent's older daughter and that daughter's young child have come to live as members of her household. Since the sentencing, the respondent's mother has been diagnosed as suffering from terminal cancer, with an estimated life expectancy of about six months. If the respondent had been sent to prison when re-sentenced, there was a chance that her mother could have died before she was released. The various changes in the respondent's circumstances are matters which this Court took into account in re-sentencing pursuant to s402(4A)(a).

70 We saw no need to determine whether the Crown prosecutor's decision not to make a submission to the learned sentencing judge as to the inappropriateness of a wholly suspended sentence was a matter that we could take into account in spite of the Sentencing Act, s80(3). In the circumstances of this case, we did not consider that to be a sufficiently important factor for it to have any bearing on the re-sentencing of the respondent.

71 Sending the respondent to prison on re-sentencing would almost certainly have resulted in her losing her newly found employment and, because of her physical disability, in her having difficulty finding another position. After the hearing of this appeal she was assessed as a suitable candidate for a community service order. Despite her disability, projects were available for her. In the circumstances, we considered that the most appropriate course was for this Court to allow the appeal and vary the sentence by adding, as an additional condition of the suspended sentence, a requirement that the respondent perform community service. We saw no need to adjust the length of the suspended sentence. Structuring the sentence in this way will mean a failure to carry out the community service order will result in breach proceedings and the likely result that the term of imprisonment will be put into effect.

72 As we have said, the learned sentencing judge said the respondent's sentence was suspended on condition that she commit no crime involving violence for a period of three years. Since the Sentencing Act, s24(1), operates so as to impose a more stringent condition, making the order suspending the sentence conditional upon the respondent not committing another offence punishable by imprisonment, it was appropriate to vary the sentencing order so as to state that condition. A condition suggesting that the suspended sentence could be activated only upon the commission of a crime involving violence could be misleading.

73 For these reasons, we ordered that the appeal be allowed, and that the sentencing order of the learned sentencing judge be varied so that the conditions of the suspended sentence are that the respondent (a) must not commit another offence punishable by imprisonment on or before 17 February 2014, and (b) is to perform 210 hours' community service.