Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Wounding - Undertaking without conviction manifestly inadequate.

Sentencing Act 1997 (Tas), ss 7(f), 9, 58.

Attorney-General v Smith [2002] TASSC 10; Blake v Adams [2013] TASSC 44, 22 Tas R 295, referred to.

Criminal Law - Particular offences - Offences against the person - Acts intended to cause or causing danger to life or bodily harm or serious injury - Sentence - Wounding with subjective recklessness.

Read v Tasmania [2016] TASCCA 8, referred to.

Judgment Number: [2017] TASCCA 8

1. Respondent convicted and re-sentenced to six months' imprisonment, wholly suspended for 18 months on condition that she not commit an offence punishable by imprisonment during that period, and that she perform 70 hours of community service.

1. The respondent, Stacey Cooper, pleaded guilty to wounding. She was sentenced by Estcourt J on 3 November 2016. His Honour, without recording a conviction, adjourned the proceedings for two years. The respondent was released on her undertaking to be of good behaviour during that period. The Director of Public Prosecutions appeals the sentence on the ground that it is manifestly inadequate. On 27 April 2017 the appeal was allowed and the sentence was quashed. The respondent was convicted and re-sentenced to imprisonment for six months, wholly suspended for 18 months on condition that she not commit an offence punishable by imprisonment and that she perform 70 hours of community service. These are the reasons for those orders.

1. The respondent's crime was committed in the early hours of the morning on 5 January 2016. She lived in Risdon Vale with her partner and two daughters. Her next door neighbour was Emma Norman. Over the course of a year or so, some antagonism developed between the two women. Around midnight, Ms Norman called the police and complained about loud music emanating from the respondent's home. The police arrived and told the respondent to turn the music down. Trouble then started. Rocks were thrown on Ms Norman's roof. The respondent sent Ms Norman messages on social media. The police were called at least once more. More rocks were thrown and Ms Norman's Christmas decorations were cut from a fence. Becoming fearful, Ms Norman called her father and asked him to come to her house. He arrived at about 2.30am. After being there for a time he heard the respondent yelling at his daughter from outside, as well as other noises which sounded like someone hitting cars in his daughter's driveway. He went to investigate. He stood at the fence which separates the two properties. The respondent walked to the fence, reached over, and struck Mr Norman twice with a beer bottle.
2. The blows caused a 1.5 centimetre laceration to the front of Mr Norman's head, above his eye. He was treated at the scene by ambulance officers and then taken to hospital. He made a victim impact statement in September 2016. A piece of glass was removed from the wound, and the wound was stapled closed. The complainant said that he had been left with a "scar and a lump on the top of [his] head which is still tender to touch". He had headaches for about two weeks. He had become cautious and less trusting of others.

1. At the date of the crime the respondent was 33. She had no recorded history of violence but, about eight months before this crime, she committed an alcohol-related driving offence for which she was fined and disqualified from driving. She had been with her partner for 10 years and they had a daughter then aged 8. She and her partner also cared for her 15-year old daughter from a previous relationship. The respondent was worried because her partner was in poor and deteriorating health. She had not previously held paid employment and received social security benefits. However she completed a carer's course hoping to find work in aged care. Her counsel made a submission to the effect that a conviction might preclude her from obtaining such work. Before committing the crime she consumed a large amount of alcohol and was highly intoxicated. When interviewed she told the police she had no recollection of striking Mr Norman. Her counsel asserted that the respondent could remember Mr Norman directing "fairly strong abuse" at her, but that she could not remember striking him.

1. Section 7 of the Sentencing Act 1997 (the Act) is headed "Sentencing orders", and gives to a court a variety of sentencing options listed, at least from pars (a) to (h) inclusive, in descending order of seriousness. When the respondent was sentenced s 7 provided:

"7 A court that finds a person guilty of an offence may, in accordance with this Act and subject to any enactment relating specifically to the offence -

(a) record a conviction and order that the offender serve a term of imprisonment; or

(ab) if the court is constituted by a magistrate, record a conviction and make a drug treatment order under Part 3A in respect of the offender; or

(b) record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended; or

(c) record a conviction and, if the offender has attained the age of 18 years and the offence is punishable by imprisonment, make a community service order in respect of the offender; or

(d) with or without recording a conviction, make a probation order in respect of the offender if the offender has attained the age of 18 years; or

(e) record a conviction and order the offender to pay a fine; or

(ea) in the case of a family violence offence, with or without recording a conviction, make a rehabilitation program order; or

(f) with or without recording a conviction, adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender; or

(g) record a conviction and order the discharge of the offender; or

(h) without recording a conviction, order the dismissal of the charge for the offence; or

(i) impose any other sentence or make any order, or any combination of orders, that the court is authorised to impose or make by this Act or any other enactment."

1. Sentencing orders combining more than one of the sentencing options may be made where authorised under s 8.
2. The Act, s 9, deals with conviction or non-conviction:

"In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including -

(a) the nature and circumstances of the offence; and

(b) the offender's antecedents and character; and

(c) the impact that a conviction would have on the offender's economic or social wellbeing or employment prospects."

1. The sentencing order which is the subject of this appeal was made pursuant to s 7(f). Orders under s 7(f), (g) or (h) are subject to the Act, Pt 8. By s 58, such orders "may be made for such one or more of the following purposes, as is relevant in the circumstances, as the court thinks fit:

"(a) to provide for the rehabilitation of an offender by allowing the offender's sentence to be served in the community unsupervised;

(b) to take account of the trivial, technical or minor nature of the offence committed by an offender;

(c) to allow for circumstances in which it may be inappropriate to record a conviction against an offender;

(d) to allow for circumstances in which it may be inappropriate to inflict any punishment other than a nominal punishment on an offender;

(e) to allow for the existence of other extenuating or exceptional circumstances that may justify the court showing mercy to an offender."

1. An undertaking given by an offender under s 7(f) is subject to the conditions specified in s 59:

"(a) that the offender must appear before the court during the period of the adjournment if called on to do so and, if the court so specifies, at the time to which the further hearing is adjourned;

(b) that the offender must be of good behaviour during the period of the adjournment;

(c) that the offender must observe any conditions imposed by the court."

1. A person subject to an order made under s 7(f) is required to appear before the court again only if:
   • called on to appear during the period of the adjournment under s 60(1);
   • the court specifies a date to which the further hearing is adjourned under s 59(a); or
   • notice is given of an application under s 62(1) alleging that the person has failed without reasonable excuse to comply with a condition of the undertaking.
2. If the court specifies a date to which the further hearing is adjourned, then the offender must appear on that date. If, on such appearance, the court is satisfied that the conditions of the undertaking have been observed then it must dismiss the charge without further hearing if a conviction was not recorded: s 60(3)(b). If the court is not satisfied that the conditions have been observed, then it may cancel the order and deal with the offender "in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences": s 60(4). The offender may also be required to appear if application is made under s 62(1) alleging a failure without reasonable excuse to comply with a condition of the undertaking. If the court is satisfied of such failure then it may make one of the following alternative orders under s 62(4):

(c) cancel the order if it is still in force and, whether or not the order is still in force, deal with the offender for the offence or offences in respect of which the order was made in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences."

1. If, however, the order is made without recording a conviction and without adjourning the hearing to a specified time, unless the offender is called on to appear under s 60, or an application for breach of the undertaking is made under s 62, the result is that the charge is dismissed by operation of s 61(2) when the period of the undertaking expires.

1. In his sentencing remarks, the sentencing judge said:

"I accept the submission made on her behalf that given her prior good record, and her age, this appears to be an isolated incident that is totally out of character.

Drunkenness is no excuse where criminal behaviour is concerned, although it is an explanation for what otherwise might be viewed as irrational behaviour. Assaults with objects, often bottles or glass, frequently result in serious injury and are becoming more commonplace and sentences are usually imposed to deter people from that sort of violence. They are crimes against the community as well as crimes against the complainants. I have noted, however, and taken into account that the consequences to the complainant in this case are relatively minor."

1. It is appropriate to make reference to the terms of the undertaking given by the respondent. The sentencing judge said:

"The course I propose to take is to adjourn these proceedings for a period of two years from today upon an undertaking that I now require the defendant to give, that she will be of good behaviour and will appear before the Court during this period if called upon to do so."

1. The written undertaking signed by the respondent was then in the following terms:

"The sentencing proceedings are hereby adjourned for a period of two years from 3 November 2016 upon this undertaking I now give that during that period I will be of good behaviour and that I will appear before the Court during this period if called upon to do so."

1. That sentencing order did not specify a time to which the further hearing was adjourned. However, before the undertaking was signed, the sentencing judge explained the order to the respondent as follows:

"Now Ms Cooper, this is in no way letting you off the hook. It is no guarantee that I will not impose a conviction; there's no guarantee that I won't impose a sentence of imprisonment in two years' time, but it gives you an opportunity to demonstrate that you can be of further good behaviour. It gives you an opportunity to obtain employment without a criminal conviction at this stage. It may be that in two years' time you've obtained employment which you would not lose if a conviction were imposed, but it all remains to be seen. Your name goes in the diary, both in my calendar and in [Crown counsel's] calendar and you'll be sent a notice to appear ... this day in two years' time."

1. With respect to the sentencing judge, his Honour's explanatory comments were not a completely accurate reflection of the effect of his sentencing order. No order was made specifying a time to which the proceedings were adjourned. Unless the respondent was called upon to appear under s 60 or application was made under s 62, the inevitable result was that the charge against her was dismissed without further hearing. There was no opportunity to re-visit the proposed sentence unless the Court was satisfied that the respondent had not complied with the condition requiring her to be of good behaviour. Had notice been given to the respondent requiring her appearance at the end of the two-year period, as his Honour suggested would happen, the mandatory result would be dismissal of the charge without conviction unless the Court was not satisfied of compliance. The respondent's employment status at that future time, and the possible effect of conviction upon it, is irrelevant except in the event of non-compliance. No regard could be taken of it in determining the order to be made under s 60(3). In terms of the sentencing judge's remarks, even if the respondent had obtained employment during the period of the undertaking she would not have lost if convicted, there was no power to re-sentence her unless she had otherwise breached the undertaking.
2. What might be viewed as a somewhat technical analysis of the nature of an order under s 7(f) is nevertheless relevant to sentence. The effect of the sentencing order was not, as the sentencing judge's remarks to the respondent tended to suggest, in the nature of a deferred sentence. It meant that, provided that the respondent complied with the condition requiring her to be of good behaviour, not an unduly onerous condition in the circumstances, the mandated statutory result was that she would entirely escape conviction and punishment for her crime.
3. The sole ground of appeal is directed to the adequacy of the sentencing order. The principles which limit the circumstances in which intervention of an appellate court is justified on appeals on the ground of manifest excess or inadequacy of sentence are set out in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8]. This Court sits to correct material error: Dinsdale v The Queen [2000] HCA 54, 202 CLR 321, per Kirby J at [57]-[60]. It must be established that, taking all matters relevant to sentence into account, the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the broad sentencing discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242; Lowndes v The Queen [1999] HCA 29, 195 CLR 665 at [15]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, per Kirby J at 336; Hili v The Queen [2010] HCA 45, 242 CLR 520 at 539 [59]. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6].
4. To "wound" a person means to cause an injury whereby the skin is broken or cut and blood is caused to flow: Devine v The Queen [1982] TASRp 16; (1982) 8 A Crim R 45, [1982] Tas R 155. As was explained by this Court in Read v Tasmania [2016] TASCCA 8, guilt of the charge of wounding requires proof of "actual intent to wound or subjective recklessness": Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56; R v Bennett [1990] TASRp 6; [1990] Tas R 72, per Neasey J at 81, with whom Underwood and Crawford JJ (as they then were) agreed at 85; Hurst v Tasmania [2011] TASCCA 12 at [11]- [14]. Thus, by her plea of guilty, the respondent admitted that, at the time she struck Mr Norman, she either intended to wound him or realised the likelihood that she would do so, and acted regardless of the risk: Standish v The Queen (1991) 61 A Crim R 364 at 372 [22]. As the sentencing judge pointed out, sentencing courts commonly see cases involving infliction of wounds as a result of blows struck by persons holding a glass or a bottle. The respondent struck the complainant twice to the head, not far from his eye. Of course, the limited extent of the complainant's actual injury is relevant to sentence. However, the considerable potential in such cases for serious physical and psychological injury, combined with the mental element for the crime, means that deterrence, denunciation, punishment and the safety and security of the public are important sentencing considerations: (above) at [16]. The sentencing data available to this Court shows that sentences of imprisonment are imposed in most similar cases. There are many instances of the imposition of sentences of actual imprisonment. A sentence of actual imprisonment is not necessarily required in every case. Professor Warner points out in her text, that, on the material then available to her, most cases of wounding by striking with a glass, bottle or stubby attract a sentence of three to six months, and are often wholly suspended. The need for general deterrence is not such as to make a sentence of actual imprisonment inevitable, particularly in the case of a person with no record for violence or any other form of serious offending. Examples offered by the appellant, and other sentencing data available to this Court, include many examples of sentences for similar cases, some more serious than this, which involve the imposition of wholly suspended sentences. However, in every case to which we were referred, a conviction was recorded.
5. Of course, the approach taken in other cases does not mean that the sentencing judge erred by not recording a conviction or not imposing a sentence of imprisonment. Other sentences do not fix a boundary within which the sentencing judge must sentence, but they do give some pointer towards excess or inadequacy: Munda v Western Australia [2013] HCA 38, 249 CLR 600 at 615 [39].
6. There must always be a place for a sentencing judge, in exercise of the broad sentencing discretion, to extend leniency in a particular case. However the sentence imposed on the respondent is plainly inadequate, such as to be indicative of error or departure from principle: Griffiths v The Queen (1977) 137 CLR 293 at 310. The punishment did not fit the objective seriousness of the respondent's crime. Error is implied in the excessive leniency of the sentence. There was nothing about the circumstances of this crime, or the circumstances of the respondent, which justified the degree of leniency extended to her. The sentence provided some personal deterrence. However, the objective gravity of the crime pointed strongly to the need to record a conviction and to impose a stronger sentence. The making of an order under s 7(f) is to take account of the purpose of an order specified in s 58. Exercise of the discretion whether or not to record a conviction required consideration of each of the three factors listed in s 9: Blake v Adams [2013] TASSC 44, 22 Tas R 295. Neither provision justified the sentence imposed when all of the circumstances relevant to sentence are taken into account. In Attorney-General v Smith [2002] TASSC 10 Crawford J, with whom Underwood and Evans JJ agreed, said at [26]:

"When considering whether to record a conviction, a court must weigh up the public interest, and the need for an official record to be made of the commission of the offence, against the beneficial nature to the offender of a conviction not being recorded. Regard must be had to the purposes specified in s58. If the offence is of a relatively serious nature, the Court may feel compelled to record a conviction. In addition to public interest questions, it is proper that the Court have regard to whether the victim of such an offence might reasonably not feel vindicated by the failure to record a conviction."

1. In Blake v Adams, Porter J, after considering the Queensland authority referred to by Crawford J in Smith, commented at [53] that, in Tasmania, the "assumptions underpinning the public interest factor may now be less soundly based". It is not necessary to consider that question in further detail in this case because other factors determine the outcome. Reference has already been made to the nature and circumstances of the offence. It was not a "trivial, technical or minor" crime and required much more than a nominal punishment. The sentencing judge's remarks seem to attach considerable weight to the possible effect of conviction on the prospect of her future employment as an aged carer. It was, with respect, the only circumstance which could have made it appropriate to proceed by way of undertaking without conviction. However, the material before the sentencing judge relevant to that issue was lacking in detail and uncertain. It referred only to the possibility of future employment, and drew no attention to any difference in effect between conviction and a finding of guilt without conviction. The possible effect of conviction on the respondent's financial wellbeing or employment prospects fell well short of displacing the need for punishment, denunciation, general deterrence and vindication of the complainant.
2. There was no reason to exercise the residual discretion in Crown appeals against sentence to not interfere despite error having been established: CMB v Attorney-General (NSW) [2015] HCA 9, 317 ALR 308, per French CJ, Gageler J at [34], Kiefel J (as she then was), Bell and Keane JJ at [66]. Appellate intervention was necessary to maintain public confidence in the administration of justice and for the governance and guidance of sentencing courts: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465-466 [1]- [2].

1. This Court determined that it should re-sentence the respondent. Taking all of the relevant sentencing factors into account it ordered that the respondent be convicted and sentenced to imprisonment for six months, wholly suspended for 18 months on condition that she not commit an offence punishable by imprisonment and that she perform 70 hours of community service.