PARTIES: ACTING DIRECTOR OF PUBLIC PROSECUTIONS

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Causing grievous bodily harm - Stabbing of brother in back with kitchen knife - Wholly suspended sentence of 12 months' imprisonment - Offender with intellectual disability.

Appellant: Acting Director of Public Prosecutions

Judgment Number: [2015] TASCCA 1

1. I have read the reasons for judgment of Pearce J in draft form. I agree that this appeal should be dismissed, for the reasons stated by him. I think it is very significant that the respondent has an intellectual disability. The crime that he committed was so serious that a substantial sentence of imprisonment would ordinarily be the only appropriate penalty, and a wholly suspended sentence would ordinarily be inadequate. But, because the respondent is a person of extremely low intelligence, because of his prospects for rehabilitation, and, less significantly, because of the attitude of his victim, I do not consider that the sentence in this case - a wholly suspended sentence of 12 months' imprisonment - was manifestly inadequate.

1. The respondent, Justin Kevin Pearce, pleaded guilty to one count of causing grievous bodily harm. On 30 July 2014 he was sentenced by Wood J to imprisonment for 12 months. Her Honour made an order wholly suspending the sentence of imprisonment for two years, subject to special conditions. The special conditions included that the respondent:
   • be subject to supervision by a probation officer;
   • "undertake and successfully complete a residential Bridge Program as soon as that is available";
   • comply with the directions of a probation officer "relating to drug and alcohol counselling and treatment"; and
   • comply with the directions of a probation officer "concerning vocational training and acquiring vocational skills, education and courses".
2. The Acting Director of Public Prosecutions appeals the sentence. The sole ground of appeal is that the sentence is manifestly inadequate.
3. Late in the afternoon on Tuesday, 13 August 2013, the respondent returned to the house in Bridgewater where he lived with his father, grandfather, brother, and his brother's nine year old son. He had been drinking all day and was heavily intoxicated. He arrived with two companions. At the instigation of one of the companions, the respondent intended to arm himself with a baseball bat and steel pole and go out looking for a person against whom his companion had a grievance. When his brother, the complainant, found out what the respondent intended to do, he ejected the companions and prevented the respondent from leaving by bolting the front door. When the respondent tried to leave through the back door, the complainant and their father held him down and disarmed him. The respondent became agitated and produced a pocket knife which his brother took and hid. They tried to calm him down. Without the complainant noticing, the respondent took a steak knife from the kitchen. It had a ten centimetre blade. While his brother sat in a chair, the respondent approached from behind and stabbed the complainant twice. The first blow was to his brother's left shoulder. The second was near his right shoulder blade. On the second occasion the blade of the knife embedded completely between the complainant's ribs. The complainant's son was present and saw his father being stabbed and was distressed by it. The complainant fled. The respondent, having armed himself with another knife, chased his brother out the door, before walking off down the street and throwing that knife away. The complainant went to a neighbour's house and took refuge there, with the knife still fully lodged in his back. An ambulance was called. The police arrived. The respondent was found nearby and apprehended.
4. Because of his intoxication the respondent was not interviewed until the following day. He then admitted all he had done although he said he could only remember "bits and pieces". He told the police he was angry about being prevented from leaving the house. During the interview he cried several times. Since then he has continued to express his distress about, and remorse for, his conduct.
5. The blade of the knife penetrated the complainant's chest wall. He suffered a collapsed lung and required surgery to remove the knife. It was the injury caused by the second blow which constituted the grievous bodily harm that is the subject of the charge. The wound caused by the first blow was three centimetres long and three centimetres deep and required stitches. It was relied on by the Crown only to demonstrate that the respondent's conduct consisted of more than a single blow. The complainant was in hospital for five days but made a full recovery.
6. As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is "unreasonable or plainly unjust". It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be "accorded a wide measure of latitude": Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: ; at 539.
7. It is opportune to refer again to the oft quoted passage from the joint decision of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476:

"However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."

1. In the course of her sentencing remarks the learned sentencing judge said:

"This is a serious crime of inflicting grievous bodily harm involving the use of a knife. It was an impulsive crime arising from an extreme state of intoxication. Fortunately the victim has fully recovered but there was the potential for permanent serious injury or even death. The sentence must reflect the seriousness of the crime. Ordinarily, a lengthy term of imprisonment would be imposed. However, this is an exceptional case where it is not appropriate to give significant weight to general deterrence. Because of Mr Pearce's individual circumstances, in particular his intellectual disability, and his reduced criminal culpability, the Court's primary goal is his rehabilitation. In view of his good prospects and his willingness to engage in intensive alcohol and drug rehabilitation and the support services now available, a suspended term of imprisonment is appropriate. It will be subject to strict conditions designed to achieve his reform. I add that I consider that this sentence will be an effective deterrent to Mr Pearce, and there will, of course, be clear and severe consequences if he does not comply with the conditions. Further, I note that his rehabilitation coincides with the community's interests that he not commit further acts of violence."

1. In my opinion, although a wholly suspended sentence of imprisonment for 12 months may fairly be described as lenient, it is not, in all the circumstances, manifestly inadequate. The substance of the appellant's submission is that the seriousness of this crime demanded a sentence involving a term of actual imprisonment, or at least a more tangible form of punishment than a wholly suspended sentence, primarily for reasons of personal deterrence and denunciation. In support of the submission the appellant referred to a number of particular circumstances of the crime, including that:
   • the respondent used a weapon with significant force;
   • the respondent attacked from behind so as to allow the complainant little opportunity to defend himself;
   • the crime took place in the presence of the complainant's nine year old son and caused distress to him;
   • the attack was sustained, involved more than one blow, and more harm was intended even after the original attack;
   • the respondent caused serious injury and there existed potential for permanent injury or death.
2. The complainant wrote a letter to the Court indicating that he did not want his brother sent to prison, but punished in another way and "made to get help for his drinking". Her Honour, correctly, treated the victim's attitude to sentencing as relevant but to be given very limited weight: Director of Public Prosecutions v Chatters [2011] TASCCA 8 at [60], referring to R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [37]; R v Begbie [2001] NSWCCA 206; (2001) 124 A Crim R 300 at [43]; R v Burton [2008] NSWCCA 128 at [102] and Menichelli v Tasmania [2009] TASSC 111 at [16]. Subject to the statements of principle in those cases, the victim's attitude was relevant in this case in that a lenient sentence was not likely to aggravate any feelings of distress, hurt and violation suffered by him, and was less likely to be demeaning to him.
3. The crime of causing grievous bodily harm does not necessarily require a sentence of actual imprisonment in every case. The sentencing data available to me lists numerous examples of the imposition of wholly suspended sentences for the crime, commonly with terms between six and twelve months and sometimes longer. It is apparent from the sentencing remarks set out earlier in these reasons that the learned sentencing judge recognised the seriousness of the respondent's crime and that ordinarily a sentence of imprisonment would be required. However she regarded rehabilitation as the primary sentencing goal. The personal circumstances of the respondent are relevant to that aim. At the time of crime he was aged 24. When sentenced he was 25. By then he was living with his mother. He had some prior convictions for relatively minor offending, but not for violence, and he had not been to prison or received any form of custodial sentence before. On 25 June 2012 a magistrate made a probation order which expired only two months before this crime. At the initial sentencing hearing her Honour was given a report prepared by a forensic and clinical psychologist at the instigation of the respondent's advisors. Because of behavioural difficulties at school the respondent was educated only to grade 7. He is illiterate and innumerate. He has never held employment and has been in receipt of a disability pension since age 16. He commenced using cannabis at age 11, and from age 13 has been a daily user. He started drinking alcohol heavily as a teenager and became addicted to alcohol. Prior to this crime he would drink whatever alcohol he could acquire every day, even though alcohol made him angry and aggressive. An assessment of the respondent's intellectual ability was undertaken using the Wechsler Adult Intelligence Scale - Fourth Edition. His cognitive functioning was assessed in the areas of verbal comprehension, perceptual reasoning, working memory and processing speed. In all areas he scored very poorly and his full scale IQ is extremely low, well below the first percentile when compared to persons of the same age and consistent with mild intellectual disability. He had no major mental illness. He meets the criteria for antisocial personality disorder.
4. Upon receipt of that material her Honour went to some trouble to find out what the prospects for the rehabilitation of the respondent were. She requested and obtained a pre-sentence report from an officer of Community Corrections, and then obtained supplementary information based on an investigation by that officer of a considerable number of services, agencies and programs. Her Honour concluded that the chance of the respondent's reform depended upon a high level of community support and sequential intervention by various agencies, commencing with intensive addressing of the issue of alcohol abuse in a residential program, assisted by collaboration with the psychologist. Her Honour expressed the aim of relieving the boredom and inactivity which led to the respondent's alcohol and drug abuse, and kept him from constructive participation in vocational programs and employment. She then, following a detailed exchange with the community corrections officer about what was proposed, carefully tailored a sentencing order based on the view she had reached by imposing special conditions on the suspended sentence.
5. I am not persuaded that her Honour fell into error in her sentencing approach. She took a course within the proper exercise of her sentencing discretion. Given the absence of prior convictions for violence, the respondent's age and intellectual disability, and the chance of rehabilitation, this is a case in which it is proper to allow for the exercise of mercy. The community as a whole will benefit if the respondent's rehabilitation can be achieved.
6. General deterrence is generally an important sentencing consideration for crimes of violence. In this case the appellant accepted that, by reason of the respondent's intellectual disability, general deterrence was of lesser significance, although it remained relevant: DPP v Burns [2012] TASCCA 11 at [51]. The learned sentencing judge described the effect of the respondent's intellectual disability in the following terms:

"His intellectual disability affects his ability to learn information and his understanding of abstract concepts. He has difficulties regulating emotion and it would be expected that at times he will have a limited understanding of risk in social situations. I add that it no doubt means he is suggestible and vulnerable to the influence of others. Mr Minehan notes it is likely the defendant requires support for daily living tasks; he has minimal skills in terms of self-care and day-to-day tasks. He meets the criteria for Antisocial Personality Disorder. His intellectual disability, antisocial personality traits and alcohol abuse give rise to a risk of future offending."

1. Nevertheless, the appellant submitted that the sentence imposed paid insufficient regard to personal deterrence and denunciation, and that a sentence involving a more tangible form of punishment was required. I do not accept that submission, or the assumption that underlies it that the sentence in this case was not a "tangible" punishment. A sentence of imprisonment was the only appropriate sentence. The real issue for her Honour was whether to wholly or partially suspend it and, if it was to be suspended, what conditions to impose. She may have coupled a sentencing order with a requirement that the respondent perform community service or pay a fine, but he had been assessed as unsuitable for community service and had no capacity to pay. The purpose and utility of suspended sentences was comprehensively reviewed by this Court in Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13; (2010) 20 Tas R 399. The principal judgment was written by Evans J. He said at [9]:

"When addressing considerations such as general deterrence, punishment or denunciation, it is important to keep in mind that there is a marked divergence between the views of the judiciary and the community in relation to the impact of suspended sentences. The judiciary's view reflects that of Bray CJ in Elliott v Harris (No 2) (1976) 13 SASR 516 at 527, where his Honour addressed a comment made by a magistrate who had said 'I agree with the view currently prevailing in England that a suspended sentence is really no punishment at all'. Bray CJ said of the comment that:

'It reveals an entirely mistaken and wrong-headed approach to the question of suspended sentences. So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment'."

1. The passage just referred to was approved by this Court in Director of Public Prosecutions v Chatters (above). In that case it was pointed out that since Broadby was decided the Tasmanian legislation concerning suspended sentences has become stricter. The Sentencing Act 1997, s 24(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." The court may impose additional conditions including conditions of the type that were imposed in this case, that the offender is subject to the supervision of a probation officer, is required to undertake a rehabilitation program, and any other condition the court considers necessary or expedient: s 24(2). The combined effect of s 27(4B) and (4C) is that, if a breach is constituted by commission of an offence which is punishable by imprisonment, the court to which the application is made must activate the sentence held in suspense unless of the opinion that it would be unjust: State of Tasmania v Thorpe [2011] TASSC 18; Tanner v Brown [2011] TASSC 59. If the court is satisfied that the offender has breached, without reasonable excuse, a condition of the suspended sentence other than by committing a new offence, the court may take one of the courses open under s 27(4E). One of the alternatives is activation of all or part of the suspended sentence. As to suspended sentences generally, even without the Sentencing Act provisions to which I have referred, it has long been the case that suspended sentences are meant to be a last chance and if an offender wastes an opportunity offered by the court by breaching a condition of a suspended sentence, then ordinarily a suspended sentence should be activated.
2. The provisions of the Sentencing Act just referred to have a real and tangible effect on the respondent. If, during the two-year period following imposition of the sentence, he commits an offence punishable by imprisonment, it is very likely he will be required to serve the term of imprisonment her Honour imposed. One special condition her Honour imposed requires that the respondent undertake and successfully complete a residential program aimed at his abuse of alcohol and drugs. Other special conditions require him to comply with the directions of a probation officer as to the steps he is required to take after completion of that program. It was the intention of the learned sentencing judge that the respondent, once his alcohol and drug issues are first addressed, be required to participate in vocational, literacy and behavioural programs. If he fails to comply with any special condition he is likely to be required to serve the sentence of imprisonment. All of that adds up to a sentence of considerable personal deterrence.
3. Without understating the importance of denunciation of the respondent's conduct, I am not persuaded that, when weighed with all other factors, it was so important that the imposition of a wholly suspended sentence constituted error.
4. I would dismiss the appeal.