Criminal Law - Appeal and new trial - Appeal against sentence - Powers of appellate court - Generally - Insufficient findings of fact made by sentencing judge - Power to remit back to sentencing judge to determine.

P v Tasmania [2005] TASSC 107, cited.

Supreme Court Civil Procedure Act 1932 (Tas), s 39(5)

Judgment Number: [2019] TASCCA 2

The Court directs that the further consideration and hearing of the appeal is stood over until next Term, and that the learned sentencing judge determine and report to the Court on the factual basis upon which he sentenced the respondent, so as to enable the Court to assess the adequacy of the sentence. The matters to be included in the report will be specified in our published reasons.

1. The respondent was charged on indictment with one count of causing grievous bodily harm contrary to s 172 of the Criminal Code. The trial proceeded before Geason J, and the jury returned a verdict of guilty. On 3 December 2018, his Honour convicted the respondent of the crime and imposed a sentence of 12 months' imprisonment with the last nine months suspended for a period of three years on conditions which included that she perform 80 hours of community service. His Honour also made a probation order for a period of 12 months.
2. The appellant appeals against the sentence on the following grounds:

"1 The learned judge erred in law and/or fact in not making and/or stating his findings of fact.

1. The learned trial judge erred in fact by finding a probation report had identified the respondent was suitable for a community service order when the report in fact said she was unsuitable for a community service order.
2. The sentence imposed was manifestly inadequate in all the circumstances of the case."
3. The prosecution case was largely reliant on the evidence of the complainant. The crime had been committed on 30 September 2017, which was AFL grand final day. The complainant, the respondent, their respective partners, and several other persons had gathered in a shed in the backyard of the respondent's mother's house to watch the grand final. According to the complainant's evidence, during the course of the function, she became involved in a verbal altercation with the respondent. After a brief verbal exchange, at the suggestion of her partner, the complainant decided to leave the shed in order to extricate herself from the argument. She was almost at the door when the respondent made a further comment to her. The complainant turned around and responded verbally. Her evidence was that the respondent then walked towards her quickly and hit her in the face with her hand. Although the complainant did not see anything in the respondent's hand, the evidence established that the respondent was holding a wine glass when she hit the complainant. The glass broke on impact and caused significant injuries to the complainant's face, including her left eye.
4. As a result of these injuries, the complainant suffered permanent loss of sight from that eye and suffered other permanent facial disfigurement. The complainant's evidence was that she felt pain in her eye immediately, and reacted by putting her hand to her eye, screaming and dropping to the ground on her knees. She said that the respondent then took hold of her and punched her to the face and head. The clear import of her evidence was that she was punched more than once.
5. The complainant's partner was already outside the shed when this happened and did not see the initial blow. However, he immediately returned to the shed when he heard a smashing sound. He saw the complainant against the door "with [the respondent] just punching her directly in the face ... while she had hold of her hair". The complainant was bleeding from her head and eye.
6. The respondent did not give or adduce evidence. However, a recorded interview between police and the respondent was admitted into evidence in the prosecution case. In the interview, the respondent agreed that she had hit the complainant with her hand while it contained a wine glass, but claimed that the complainant had attacked her physically by grabbing her hair and slapping her in the face. She asserted that the blow that struck the complainant's face was in self-defence, and suggested that she had not realised that the glass was in her hand when she delivered the blow. She said nothing about continuing to punch the complainant after the first blow. The respondent's partner gave evidence in the prosecution case which supported the version that she had been attacked first by the complainant. Self-defence was left to the jury by the trial judge.
7. In sentencing submissions, prosecuting counsel submitted that the evidence established that the respondent had deliberately hit the complainant to her face with the wine glass. It was submitted that the respondent's actions in walking the length of the shed demonstrated a degree of premeditation, and that the respondent's purpose was to inflict serious violence upon the complainant. It was submitted that the court should accept that the respondent had continued to attack the complainant by delivering several further punches to her injured face, and that she did so after having realised that the complainant was seriously injured. The prosecutor submitted that the court should reject any claim that the respondent was acting in purported self-defence or that she was remorseful for her actions.
8. Defence counsel submitted that the court should proceed to sentence on the basis that the respondent's actions "were reckless rather than intentional". It was also submitted that the respondent was genuinely remorseful.
9. The defence also presented two reports from a psychologist, Damian Minehan. Mr Minehan gave evidence in the sentencing proceedings and was cross-examined extensively by prosecuting counsel. Mr Minehan's assessment of the respondent was that she had "a mental health condition, in the form of social and generalised anxiety that had been present since adolescence". She had also experienced panic attacks and periods of depression. Mr Minehan was asked to specifically comment upon the relevance of "the Verdins principles". He expressed the opinion that her "Heightened state of anxiety may have contributed to her perceiving higher levels of threat, losing control of her emotions and acting impulsively and violently. The court may wish to consider principles 1 and 2 in this context."
10. In Mr Minehan's subsequent report he specifically addressed the contribution and/or causality of the respondent's mental condition to the offending behaviour. He noted that "Ms Harwood experiences a higher level of psychological and physical arousal than a person who does not experience this condition ... she entered the situation at a higher level of alertness, vigilance and arousal than a person who does not have an anxiety disorder and is more prone to experiencing an acute stress or 'fight or flight' response, a response that contributed to her behaviour". He described her anxiety disorder as a contributing factor in her offending. Mr Minehan was cross-examined and prosecuting counsel put to him the complainant's version of events. Mr Minehan's evidence was that it was his belief that on that account the respondent's mental state contributed in some way but that he could not be more specific: "I don't believe that it was the primary causal factor and I don't believe that it was completely irrelevant to the offending either." He described the respondent's reaction, if the complainant's version of events was accepted, as "impulsive" in the sense of behaviour with little thought or control.
11. The only parts of his Honour's comments on passing sentence which deal with the details of the respondent's conduct, the circumstances of the crime, Mr Minehan's evidence, or the contested issue of remorse are as follows:

"All of these consequences flow from your impulsive and wholly unjustified action on grand final night last year. It appears that your action occurred after a brief exchange with the complainant. The complainant had exhibited no physical violence towards you whatsoever. Nothing justifies the extent of your response.

Whilst I accept that you did not intend that the complainant should lose her eye, you nevertheless engaged in an action that was fraught with the risk of serious injury and, which in fact, had that result.

I have had the considerable benefit of hearing from Dr Minehan, and I accept his evidence. It does not absolve you of wrong doing, it provides a partial or qualified explanation for your conduct and I have regard to it in fixing the penalty which I consider to be appropriate.

I also accept that you are remorseful for your actions and that you will live with the consequences of them. I consider that that will have a considerable effect on your future conduct and I think it is unlikely that you will re-offend. Even if I ameliorate the penalty in light of report, the seriousness of your conduct demands a penalty which marks the gravity of this impulsive and reckless action. The consequences I have described cannot be ignored."

1. His Honour expressed no other findings of fact. In particular, nothing more was said about the differences between the version presented by the prosecution witnesses and the version contained in the respondent's interview, or the respondent's state of mind in respect of the initial blow. In addressing ground 1 of the appeal, senior counsel for the appellant submitted that three options were open to the Court. The appellant's preferred option - put on the basis of the course adopted by the Court of Criminal Appeal in P v Tasmania [2005] TASSC 107 - was to adjourn the hearing of the appeal, and seek a report from the sentencing judge on the factual basis of the sentence. The alternative courses suggested were to quash the sentence and remit the matter to the sentencing judge pursuant to s 402(4C) of the Criminal Code, or for this Court to make its own findings. The first alternative was said to be attended by difficulties and inappropriate, and senior counsel urged us not to adopt the second alternative, a position agreed with by counsel for the respondent.
2. This Court has not yet determined whether any of the grounds of appeal have been made out. However, we have concluded that his Honour's comments on passing sentence do not sufficiently express findings in respect of various material matters relevant to the factual basis of sentencing and the personal circumstances of the respondent. We have concluded that without these findings, it is impossible for this Court to adequately assess the issue raised by ground 3, that is, whether the sentence imposed was manifestly inadequate in all of the circumstances of the case. We also anticipate that there will be further difficulties faced by the Court in the event that the appeal is upheld and the Court is in the position of resentencing the respondent. After a finding of guilt by a jury, it is the obligation of the trial judge to determine the facts relevant to sentence. As most of the facts in this case are dependent upon the assessment and acceptance of evidence presented at the trial, it is only the trial judge who can make those findings. For this reason, when the appeal came before us, we stood over the hearing of the appeal and directed that the learned sentencing judge determine and report to this Court on the factual basis on which sentence was imposed, so that this Court can assess the adequacy of the sentence. It was indicated that the particular matters in respect of which findings are required would be explained in these reasons.
3. Those matters are set out below. In essence, there was a failure to make findings of fact about the details of the respondent's conduct, the narrative of what happened and the circumstances of the case. While the learned sentencing judge made remarks which characterised the conduct, in this particular case, given the factual disputes and the competing arguments, these remarks did not illuminate his findings of fact. For example, the respondent's conduct was described as "impulsive" but this does not tell the Court what the learned judge's findings were in relation to what the respondent did and essential matters of context. Indeed, it is apparent from the factual disputes and the submissions before the learned sentencing judge that that label could encompass competing versions of events.

1. The particular matters in respect of which findings are required are as follows:
   • The circumstances of the commission of the crime, including the actions of the complainant and the respondent immediately before, during and after the crime. It has already been noted that the version of the complainant was materially different to the version put forward by the respondent in the police interview. This conflict is not resolved by the jury verdict. The verdict is equally consistent with the complainant's version, that the respondent angrily walked up to her and immediately struck her in the face without being presented with any physical threat from the complainant, as it is with the respondent's version that the complainant had attacked her first, and that she had struck her in response. In particular, the jury's verdict is consistent with an acceptance of the respondent's version of the circumstances, but with a finding that the force used by the respondent was excessive. Counsel for the respondent argued that the sentencing judge's statement that the respondent's "wholly unjustified action occurred after a brief exchange with the complainant [when] the complainant had exhibited no physical violence ..." clearly showed that his Honour wholly rejected any aspect of self-defence. However, that does not resolve all relevant issues, and counsel for the respondent expressly did not concede that his Honour accepted the complainant's version in its entirety. Counsel expressly put that the respondent was not content to have this Court proceed to consider ground 3 of the appeal on that basis. While his Honour's statement deals with the absence of violence by the complainant it does not deal with the question of any threat or aggression on her part. More significantly it only hints at but does not satisfactorily resolve the issues of fact concerning the respondent's conduct.
   • The respondent's state of mind in respect of the crime. In order to find guilt, the jury was required to be satisfied that the respondent intended to cause grievous bodily harm to the complainant or was subjectively reckless about that consequence. The prosecution had argued that the respondent had formed an intention to perpetrate serious violence upon the complainant at least from the time that she commenced to walk across the shed towards her, and, accordingly, the crime was premeditated. It was also argued that the respondent had struck the complainant with the intention of causing serious injury. It had adduced evidence which suggested that events some weeks before had provided the respondent with a motive to attack the complainant, and that the respondent had, at that time, expressed a desire to inflict violence upon the complainant. At the other end of the scale, defence counsel had suggested that a finding of subjective recklessness was open to the judge for the purpose of sentence. In our view, his Honour did not resolve this question. The findings that the respondent did not intend that the complainant should lose her eye, and that her actions "were fraught with risk of serious injury" are consistent with the contentions of each party. An intention to cause serious injury, as contended by the prosecution, did not require a finding that she intended to cause the specific harm which actually resulted from her actions. The comment about risk was equally applicable to an intentional act, as well as a subjectively reckless act. While the learned sentencing judge stated "the seriousness of your conduct demands a penalty which marks the gravity of this impulsive and reckless action", the comment lacks content without findings about what the respondent did, her state of mind and the circumstances. As to the respondent's state of mind, we should note that in light of the directions given to the jury, the verdict foreclosed the issue of whether the respondent realised that she had a glass in her hand when she hit the complainant in the face. That fact, however, does not resolve the issues which we have just outlined.
   • A matter which may have considerable relevance to the objective seriousness of the offence and the respondent's culpability, is the existence and extent of any ongoing violence delivered by her after the initial blow to the face with the glass. We have already noted the complainant's evidence, supported by the evidence of her partner, that the respondent continued to strike her to the face on multiple occasions after the initial blow. It was open on the evidence to find that the broken glass was still in her hand, and that the complainant was bleeding and visibly injured when any further blows were delivered. In any event, the ongoing perpetration of violence to the injured face of the complainant may be seen as a significant aggravating factor. His Honour makes no reference to matters of any ongoing violence.
   • His Honour indicated that he accepted Mr Minehan's evidence. However, it is not clear from his comments whether his Honour accepted that any of the principles derived from R v Verdins [2007] VSCA 102, 16 VR 269 were engaged and, if so, the effect of that acceptance upon the moral culpability of the respondent, and otherwise in respect of the sentence. In particular, in relation to Mr Minehan's reference to principles 1 and 2 of Verdins, it is not clear from his Honour's comments whether:
     • ➢ The mental health conditions referred to by Mr Minehan resulted in impaired mental functioning at the time of commission of the crime.
     • ➢ Whether any such condition reduced the moral culpability of the respondent.
     • ➢ The extent to which the condition has a bearing on the kind of sentence imposed and the conditions in which it should be served.
2. As submitted by the appellant, the course which we have taken is consistent with that adopted by this Court in P v Tasmania (above). In that case, the Court concluded that the trial judge's findings were insufficient to enable the Court to assess a ground of appeal which asserted that the sentence imposed was manifestly excessive. The Court stood over the hearing of the appeal and directed the sentencing judge to "determine and report to the Court on the factual basis upon which he sentenced the appellant, so as to enable the Court to assess the severity of the appellant's crimes and his degree of culpability". The Court explained its power to take this course as follows:

"[7] Under the Criminal Code, s409(1), the Court has power to exercise any of the powers of the Supreme Court on appeals and applications in civil matters. Under the Supreme Court Civil Procedure Act 1932, s39(5), the Full Court has the power, if it is of the opinion that it has not sufficient materials before it to enable it to give judgment, to direct that the application before it be stood over for further consideration, and to direct that such issues or questions be determined as it thinks fit. That is a sufficient power to resolve the present problem on this appeal."

1. We agree that this passage correctly identifies the power of this Court to proceed as we have done. It is a power which should be utilised sparingly, but we are satisfied for the reasons already explained, that its use in this case is appropriate.