R v Stanley (1998) 7 Tas R 357, applied.

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Fresh evidence and events occurring after sentence - Failure to fulfil promise to co-operate and give evidence against co-offender.

R v Stanley (1998) 7 Tas R 357, applied.

Judgment Number: [2021] TASCCA 5

1 The time limited for appeal is extended to 4 December 2020.

3 The sentence imposed by Brett J on 26 August 2020 is set aside.

1. The respondent is re-sentenced to term of imprisonment of two years and six months from 9 July 2020. The respondent is not eligible to apply for parole until having served one year and three months of that term.

1. This is a Crown appeal against sentence. The respondent pleaded guilty to wounding. On 26 August 2020 he was sentenced by Brett J to imprisonment for two years from 9 July 2020 with eligibility for parole after having served half of the sentence. The sole ground of appeal is that the sentence is manifestly inadequate. The sentence imposed on the respondent was discounted because of an indication he gave to the sentencing judge that he would give evidence against a co-accused. This appeal is based on evidence that, after sentence, the respondent failed to comply with that indication.
2. For the following reasons the appeal should be allowed, and the sentence imposed on the respondent increased.

1. The respondent was jointly charged with two other men, one of whom was Paul Broad. The other I will refer to as the co-accused man.
2. The victim of the crime was Phillip Adams, then aged 57. The respondent was aged 27. There was a history of antagonism directed by the respondent towards Mr Adams and his wife arising from ongoing disagreements with their son. Mr and Mrs Adams had installed CCTV at their home partly as a result of persistent vehicle "burnouts" in their street. On 17 June 2019 the respondent and the two other men travelled in a Commodore car to the street outside Mr and Mrs Adams' home. Images later taken from the CCTV footage show what then happened. The driver of the car began to smoke the tyres. An unidentified man, who the State asserted was most likely the co-accused man, walked to the Nissan Navara four wheel drive utility parked in the carport in Mr Adams' driveway and began to strike it with an implement, before moving back towards the Commodore. Mr Adams emerged from his home and walked to the Commodore carrying a small bat. He appears to hit the Commodore with the bat while it is still smoking its tyres. However he quickly retreats back to the driveway followed by Mr Broad and the co-accused man. That man was carrying a long handled implement which is fairly obviously a blockbuster or log splitter. Mr Broad confronted Mr Adams and wrestled with him, while the other man struck the utility with the implement. Then the respondent appeared, took the weapon from the other man and began to strike Mr Adams with it. He held the handle and struck Mr Adams with the heavy end of the blockbuster. The blows were forceful and were struck while Mr Adams was struggling with, and being held by, Mr Broad. The respondent first struck Mr Adams to the legs, then to his abdomen and upper body and then, at least once, to his head. At least two of the blows to his abdomen were struck while Mr Adams was on the ground. The co-accused man then took the bat Mr Adams had been holding and struck him with it twice, while the respondent continued to strike Mr Adams with blockbuster to his legs and back.
3. After the assailants withdrew, Mr Adams was taken to hospital by ambulance. He suffered lacerations to his lips, dental avulsions where the gums were torn away from his left lower teeth, left and right parietal scalp lacerations and a laceration of his left lower abdomen. He also suffered fractures of the transverse process of a lumbar vertebra, a left scapular body fracture, an injury to his abdominal cavity and broken teeth. Surgery was required to repair the various lacerations. Six teeth were to be removed and a further three required root canal treatment. The attack, quite understandably, caused serious psychological and emotional trauma.

1. The sentencing judge was informed that the respondent had four children. Two were older children from a previous relationship for whom he was primary carer. On his remand in custody those children went into the care of his mother. He had two children with his current partner, both of whom were still very young. He suffered from cystic fibrosis and received a disability pension. His education was limited. It was put to the sentencing judge that the respondent did not go to Mr Adams' house intending violence, and did not become involved until after the other two men initiated the physical altercation. He pleaded guilty and claimed to be remorseful. The respondent had not previously been sentenced to a term of imprisonment, suspended or otherwise. His prior convictions were principally for driving offences. There were some prior convictions for unlicensed possession of firearms. In 2019 he had been fined for two counts of breach of a family violence order, but those breaches did not involve violence.

1. Although the respondent and Mr Broad pleaded guilty, the third co-accused did not. He is awaiting trial. In the course of the sentencing hearing the respondent's counsel told the sentencing judge that the respondent would give evidence against the co-accused man, referred to as G, at trial. The following exchange occurred:

"COUNSEL: Your Honour, Mr Dunne also instructs that he will give evidence against the third co-accused in this matter if the charges against the individual referred to as G proceed to trial, which I submit is, again, a clear indication of his genuine remorse and his desire to put matters right with the victim."

HIS HONOUR: Well, what evidence is he going to give?

COUNSEL: Well, he will give evidence G was with them on the night, that he got out of the vehicle and that he was there."

1. Counsel for the State told the sentencing judge that the evidence would be of value in the trial of the co-accused man because the primary issue would be identification of that person as the third offender. The prosecution submission was expressed in these terms:

"And finally your Honour, returning to the first person that hits the Navara that I said was unidentified, the most likely scenario, on the State's case, would be that it was G simply because of the build, but it is unknown. The issue in relation to identification is the live issue on G's trial. Therefore, the submission that Mr Dunne will cooperate and actively cooperate as opposed to be summonsed and we go through the usual thing of cross-examining somebody, although I have to say that in his interview he denies even being there or knowing what happened really, is a submission of some substance."

1. Mr Broad was sentenced by Brett J to imprisonment for two years and six months. His Honour ordered that Mr Broad not be eligible for parole until having served 18 months of that term. When sentencing the respondent, the sentencing judge reduced the sentence on the basis of the indication that the respondent would give evidence against the co-accused man, and specified the sentence discount he applied. His Honour said:

"But for your promise to give evidence against the third man I would have imposed a sentence of two years and six months on you. However your counsel indicated that you will give evidence to the prosecution against the co-accused still awaiting trial. Prosecuting counsel concedes that your evidence is likely to be of assistance, or be of importance to the strength of the prosecution of the case against that man. I consider it appropriate, for reasons of public policy, to provide for a specific discount to take into account your promised co-operation with the authorities, although when I compare your culpability with that of the co-accused, I think the discount should be relatively modest. I will therefore reduce the sentence by 20 per cent for this reason. Accordingly, you are sentenced to imprisonment for a term of two years which will be backdated to commence from 9 July 2020. You will not be eligible for parole until you have served one half of that sentence. [In] fixing the non-parole at this length, that is the minimum length, I have taken into account your plea of guilty, your lack of prior violent offending and the possibility that your condition of cystic fibrosis may make you current custody more difficult than would otherwise be the case."

1. The Criminal Code, by s 402(4), provides that 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. The Code, s 409(1)(c), confers a general power on this Court to receive evidence upon the hearing of an appeal. The issues to be considered in this appeal were considered and determined by this Court in R v Stanley (1998) 7 Tas R 357. There is no need to repeat all of what was said in that case. Although Underwood J (as he then was) dissented on the ultimate result, each member of the Court was agreed on the law to be applied. Evidence of post-sentence facts upon the hearing of an appeal against sentence on the ground of manifest inadequacy or excessiveness is relevant and admissible if it shows the true significance of facts which were in existence at the time of the imposition of sentence, or if it explains facts that were before the sentencing judge so as to put them in a new light. In Stanley, the Court applied the following passage from the judgment of King CJ in R v Smith (1987) 44 SASR 587 at 588:

"The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence, R v O'Shea (1982) 31 SASR 129 and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence."

1. The basis of appellate intervention is not to punish an offender for failing to comply with his or her promise or stated intention to give evidence, but because the sentence was imposed on a wrong basis. Leniency has been granted on a ground which has proved to be baseless: R v J [1992] SASC 3639; (1992) 59 SASR 145 per King CJ at 148, applied in Stanley by Underwood J at 363, Wright J at 369 and Slicer J at 380. There is no reason for this Court to depart from those statements of principle, with which I agree. Section 409(2) of the Code does not present a statutory bar to increasing the sentence for the reasons explained in Stanley by Underwood J at 363-364 and by Wright J at 370-371.
2. The State adduced evidence in the form of affidavits sworn by John Patrick Ransom and Claire White on 21 April 2021 about events which had occurred since sentence. The evidence establishes that on 28 August 2020, two days after the sentence was imposed, two police officers sought to interview the respondent. He refused to see them. He signed a form that indicated that he did not consent to them visiting him in prison. On 2 September 2020 Mr Ransom, as counsel for the prosecution, wrote by email to the respondent's legal practitioner, Ms White, enquiring about whether the respondent's refusal to co-operate may have resulted from a lack of understanding of the purpose of the interview. On 11 September 2020 Ms White wrote to the DPP stating that the respondent's instructions "are now that he will not give evidence against the co-accused" and that "[a]n appeal against sentence will not be opposed".
3. On 4 November 2020 the respondent gave evidence on oath in preliminary proceedings in the proceedings against the other accused man. After being reminded of what had been said by his counsel to the sentencing judge, the respondent was asked to identify the other man who was present "at the wounding of Mr Philip Adams on 17 January". The respondent answered that he did not recall. When asked "is it because of fear of what might happen to you in prison?" he agreed, and then claimed that he did not know who that person was. He said "I thought I had an idea but - no, I was wrong."
4. The respondent appeared before this Court unrepresented. He declined the opportunity to give evidence to explain his apparent change of mind, although he stated from the dock that he did not want to be seen in prison as a "give-up dog".
5. Once it is demonstrated that evidence of events that have occurred since the imposition of sentence ought to be received on an appeal against sentence, it follows that there is jurisdiction to review the sentence in light of that evidence: Stanley per Underwood J at 362.

1. As was contemplated by Underwood J in Stanley, at 363, it might perhaps be said that specific error has occurred because the evidence establishes that the sentencing judge took into account a matter of fact he should not have taken into account. To that I would add that, in this case, error might have occurred because a matter wrongly taken into account created an unjustified disparity between the sentences respectively imposed on the respondent and Mr Broad. Whatever the correct position, this appeal, as was the case in Stanley, is confined to the ground of manifest inadequacy. The appellant must establish that, taking into account all matters relevant to sentence, the sentence was unreasonable or plainly unjust. I am satisfied that it was.
2. There could be no doubt that this was a serious crime. The men did not go to the home intending violence, but it was their actions which provoked violence. The respondent enthusiastically joined in the group attack and then was the most prominent and aggressive participant. The sentencing judge correctly described the attack as brutal, cowardly and sustained. Mr Adams was attacked at his own home by the respondent, with a weapon, and in company with the others. He was struck on multiple occasions. The manner in which the blockbuster was used by the respondent to strike Mr Adams was obviously likely to cause serious injury, and it was accepted that it was the respondent's use of the weapon which caused most of Mr Adams' injuries.
3. The respondent's crime was against s 172 of the Code for wounding. It is not difficult to find sentences imposed for that crime which are less than the sentences imposed on the respondent and Mr Broad. That is because the crime covers a broad range of conduct, and the objective circumstances of each case may vary widely. The crime can be committed either with intention to wound, or with subjective recklessness. The prosecution did not assert that the respondent intended to wound Mr Adams, but rather that he acted despite an appreciation of the risk of that result. However, I agree with the sentencing judge's assessment that, taking into account the nature and force of the blows struck by the respondent with the weapon, any reduction in criminal culpability associated with that state of mind was minimal. Mr Adams' wife was present to witness the attack. The attack had both immediate and lasting physical and psychological impact on the victim. Despite the respondent's lack of prior convictions for violence, a significant sentence of imprisonment was called for.
4. As the sentencing judge correctly recognised, it is the policy of the criminal law to allow discounts in sentence in return for co-operation with the police and for giving evidence in relation to co-offenders. It encourages guilty persons to disclose and provide evidence to the police and to courts with the aim of bringing other offenders to justice. The criminal justice system is assisted by the preparedness of offenders to co-operate with the prosecution, including by informing upon, and if necessary giving evidence against, others who may have offended. However, there is an equally strong public policy consideration in favour of permitting appellate intervention when necessary to ensure that undertakings to co-operate are taken seriously, and that offenders do not receive a benefit from disingenuous or unfulfilled undertakings to co-operate: R v J (above); R v Stanley (above) at 370, 375; R v X [2016] NSWCCA 265 at [54]- [55]; R v Haklar-McCarthy; R v Summerhill [2017] SASCFC 129, 129 SASR 1. I agree with Wright J's statement in Stanley at 370 that "broken promises of co-operation are a discrete and special area in which the Court must be able to reconsider the sentence if the quid pro quo offered by the prisoner is repudiated by him". It is strongly in the public interest, and of importance to the administration of justice, to ensure that undertakings of co-operation are observed, and that there are consequences if they are not: R v Haklar-McCarthy per Doyle J at [78].
5. I do not think that the respondent's claim that his change of heart arises from a fear of what might happen in prison carries much weight in this case. The matter was also touched upon by Wright J in Stanley at 369. One of the reasons that a sentencing discount is given for co-operation with the prosecuting authorities and the giving of evidence in court is that, as is well known, it may expose a person, or a person's family, to actual or threatened danger or, as Wright J put it, "threats and unpleasantness". It may make prison more difficult. Those considerations must have been known by the respondent when he gave his counsel instructions to convey to the sentencing judge the intention which was then stated. The purpose was to obtain a reduction in sentence. His counsel expressly attached the submission to his remorse and "desire to put things right with the victim". The sentencing judge proceeded to sentence on the basis of the truth of those propositions which, as events demonstrated, should have been given no weight. For those reasons the sentence is, in my view, manifestly inadequate and should be set aside. The respondent is still in custody serving the sentence. There is no reason to exercise the residual discretion to dismiss the appeal.
6. Because the respondent's refusal to give evidence did not become fully apparent until expiry of the time limited by the Code, s 407(1), the appellant applies for an extension pursuant to s 407(5). The appeal and the application for an extension of time were not filed until almost three months after the failure to co-operate first became known. It was not unreasonable however to await the outcome of the preliminary proceedings on 4 November. It was still about a month before the appeal was lodged. In that time a transcript of the preliminary proceedings was obtained. Nothing turns on the delay, and the broader policy considerations favour the extension. It is in the interests of justice that the extension be granted. I would grant an extension of the time limited for appeal until 4 December 2020. I would allow the appeal and set aside the sentence imposed on 26 August 2020.

1. This Court should re-sentence the respondent. In terms of the head sentence, his Honour determined that, apart from the discount for the promise of co-operation, there should be no distinction made between the respondent and Mr Broad. His Honour concluded that, to the extent that Mr Broad was less responsible for the direct infliction of force to Mr Adams, that factor was balanced out because his record for violent offending was significantly worse. Unlike in Stanley, the sentencing judge specified the reduction in sentence he applied for the respondent's promise of co-operation. It is just that the head sentence his Honour stated that he would have imposed now be reimposed. Taking into account all matters relevant to sentence, I think it is the correct sentence. No other matters relevant to sentence have occurred since sentence was imposed which justify the imposition of a lesser head sentence: the Code, s 402(4A).
2. The sentencing judge did not specify what non-parole period he would have ordered but for the respondent's promise of co-operation. However, his Honour did address the issue of parole eligibility generally. His Honour determined that, for parole, there was reason for difference as between the respondent and Mr Broad. He determined that it was "appropriate to distinguish in the fixing of the respective non-parole periods, given the difference in the prior criminal history of each of you". His Honour expressed the view that, in the case of Mr Broad, there was an "increased need for emphasis on specific deterrence." For the discounted sentence his Honour imposed on the respondent, he ordered the earliest possible eligibility for parole, that is, after half of the sentence was served. In the case of Mr Broad, his Honour imposed a head sentence of two years and six months, and ordered eligibility for parole after one year and six months.
3. In re-sentencing the respondent, this Court is not bound to adopt the same approach as that taken by the sentencing judge. It is to re-exercise the sentencing discretion. However, I consider the sentencing judge's reasoning to be correct. That view is reinforced by matters raised by the respondent as relevant to sentence which have occurred since he has been in custody. He informed the Court that he has undertaken courses to the limited extent that they have been available to him, that he has been moved from medium to minimum security and has held a number of prison jobs involving increasing levels of trust. He said he has tried to "put his head down" and improve himself. I am persuaded that his rehabilitation should be encouraged by allowing the earliest possible eligibility for parole.
4. I would re-sentence the respondent to imprisonment for two years and six months from 9 July 2020 and order that he not be eligible for parole until having served half of that term.

1. The Director of Public Prosecutions ("the appellant") appeals from the sentence imposed on the respondent, Mr Dunne, of two years' imprisonment with a non-parole period of one year, upon the respondent's conviction of one count of wounding contrary to s 172 of the Criminal Code.
2. The primary judge imposed the sentence on 26 August 2020. The sole appeal ground is that the sentence imposed was manifestly inadequate having regard to the circumstances of the case.
3. In his sentencing remarks, the primary judge noted that the respondent and a Mr Broad, who each pleaded guilty, were conjointly charged with a third person. His Honour said in relation to the respondent:

"But for your promise to give evidence against the third man, I would also have imposed a sentence of two years and six months on you. [As he did with the co-offender.]However, you have, through your counsel, indicated that you will give evidence for the prosecution against the co-accused still awaiting trial. Prosecuting counsel concedes that your evidence is likely to be of assistance and will be of importance to the strength of the prosecution case against that man. I consider it appropriate, for reasons of public policy, to provide for a specific discount to take into account your promised co-operation with the authorities, although when I compare your culpability with that of the co-accused, I think that the discount should be relatively modest. I will therefore reduce the sentence by 20% for this reason. Accordingly, you are sentenced to imprisonment for a term of two years ... You will not be eligible for parole until you have served one half of that sentence.

1. I infer that but for the promise of co-operation to prosecuting authorities, the sentence imposed by the primary judge would have been 20% higher than two years, which equates to about two years and six months with a non-parole period of 15 months.
2. As it transpired, the respondent reneged on his promise to assist the prosecution in giving evidence regarding the identity of the third man. On 11 September 2020, the solicitor acting for the respondent advised the appellant that the respondent:

"... will not give evidence against the co-accused, ...

The respondent was to appear to give evidence in preliminary proceedings in the Magistrates Court at Launceston concerning, amongst other matters:

"... the identity of the other person, who, along with himself and Paul Lance Broad, wounded [the complainant] on the 17th June 2019."

1. On 4 November 2020, the respondent gave evidence in a preliminary proceeding and confirmed that he no longer intended to give promised identification evidence on the trial of the so-called "third man". He said that he would not comment on the identity of that person because of what might happen to him in prison.
2. The appeal and the application to extend time within which to bring it are not opposed. The sentence was given on 26 August 2020. The appeal was filed on 4 December 2020, but only one month after the confirmation by the respondent that he would not co-operate with the prosecution as promised. It is in the interests of justice that leave be granted for an extension of time within which to bring the appeal.
3. The appeal should be allowed. His Honour, the sentencing judge, acted on a proper principle in allowing the respondent a discount at the time of the sentence. However the subsequent conduct of the respondent has disentitled him to that discount.
4. In R v Stanley (1998) 7 Tas R 357, the Court of Criminal Appeal heard an appeal against sentence in which the sole ground of appeal was:

"That the sentence imposed was manifestly inadequate having regard to all the circumstances of the case those circumstances being that His Honour sentenced the Respondent upon the basis that he had undertaken to the Court to continue to co-operate with the Police and assist the prosecution of his co-offenders by giving evidence at their trial and he has since declined to continue that co-operation and refused to give evidence."

1. Underwood J (as he then was) held that there was jurisdiction in the Court to review a sentence in light of evidence of events that had occurred since the imposition of the sentence. His Honour observed that the sentencing judge did not articulate the extent to which he was reducing what would have been an appropriate sentence by reason of the respondent's promise. However his Honour was not persuaded on the facts that the sentence, which he considered was open to review, was manifestly inadequate. His Honour was in dissent in that regard.
2. According to Wright J it was most important to the integrity of the sentencing process that an offender not be given leniency due to an undertaking not fulfilled. His Honour held that the Court has jurisdiction to review sentences obtained by fraud. His Honour said that were it otherwise, it would be a "public scandal", and that breaches of undertakings to co-operate with the prosecution constitute exceptional circumstances justifying the intervention of the court.
3. Wright J referred to s 409(2) of the Code which states that:

"In no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at trial."

His Honour noted that an identically worded provision in the South Australian comparable criminal legislation was held in that State's Supreme Court as going to matters relevant to the commission of the offence and the personal circumstances of the accused, and not with the reneging on an undertaking.

1. Wright J considered that the sentencing judge accorded a substantial discount to the respondent for his promised co-operation and that the failure to specify the quantum of the discount was not relevant. His Honour said he would allow the appeal and impose a sentence of six years' imprisonment, one year in excess of that ordered by the sentencing judge. His Honour said that the intervention of the Court was needed to ensure a clear message is sent to the respondent and the broader community that if promised co-operation does not eventuate, the Court will correct the original sentence.
2. Slicer J said that there was little doubt that a sentence imposed as a result of a fraudulent plea is susceptible to review. His Honour referred to s 402(4) of the Code which allows the Court on an appeal against sentence to quash a sentence and impose some other sentence, whether more or less severe if one is warranted in law, and should have been passed. He noted that the provision affords a wide power of review. Slicer J said that a promise of co-operation is relevant to the sentencing process and its negation is relevant to any review.
3. His Honour considered that the question for resolution was whether the sentence, absent the mitigatory factor, could be said to be manifestly inadequate. Slicer J said that the sentence should have been greater, and that absent the mitigatory factor, a six year sentence should have been imposed.
4. In R v Hakler-McCarthy [2017] SASFC 129, 129 SASR 1, the South Australian Court of Criminal Appeal, by majority, held that two people who gave untruthful evidence at a trial, and whose sentences had been reduced on account of their promises to give evidence at that trial, should be resentenced after Crown appeals against sentence.
5. Consistently with R v Stanley, this Court has the jurisdiction to adjust a sentence to reflect the fact that a mitigating factor is no longer relevant. In so doing this Court is at liberty to state for itself on the appeal what the appropriate sentence should be.
6. I consider that, in all the circumstances, a head sentence of two years and six months is appropriate. I would impose a non-parole period of 15 months. I appreciate that a co-offender received a non-parole period of 18 months and that accordingly there would be a disparity between his sentence and that of the respondent. However the co-offender had a more extensive criminal history than the respondent. In my view a non-parole period of 15 months, being one half of his new sentence, is appropriate in the case of the respondent.
7. I would allow the appeal and re-sentence the respondent to a term of imprisonment of two years and six months with a non-parole period of 15 months. I would also order that the time within which the notice of appeal was filed be extended to 4 December 2020.