Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Assault - Family violence - Extent of injuries - Application of totality principle.

Mill v R (1988) 166 CLR 59, applied.

Judgment Number: [2012] TASCCA 10

1. Sentence of three years' imprisonment and order that the appellant be eligible for parole when he has served two years of that sentence both quashed.

1. Sentenced to 18 months' imprisonment, cumulatively with the sentence he is currently serving.

1. Order that the appellant not be eligible for parole until he has served 12 months of that sentence.

1 This an appeal against a sentence of three years' imprisonment, and an order that the appellant not be eligible for parole until he has served two years of that sentence, imposed by Tennent J upon pleas of guilty to five counts of assault. The appellant, Graham Ennis, committed the five assaults upon his partner, Jocelyn Smedley, at their home over a period of between 24 and 30 hours on 29 and 30 May 2011. He contends that the sentence, including the order as to parole, was manifestly excessive. The sentence was cumulative with another sentence that the appellant was already serving.

2 The appellant was originally indicted on seven charges. He pleaded guilty to counts 2, 3, 4, 5 and 6 on the indictment. The Crown did not proceed on counts 1 and 7. The facts upon which the appellant was sentenced were essentially as follows.

3 The appellant and his partner had been living together intermittently for some years. They had had two children, but one of them had died in 2008. In May 2011, they were living together in Smithton. They had an argument on the evening of Saturday, 28 May. The first assault, the subject of count 2, occurred on the night of Sunday, 29 May when the complainant was getting ready for bed. The couple were arguing. The appellant told the complainant that he was going to tie her up. She begged him not to. He grabbed her by the throat with both hands. She attempted to resist. He forced her to the floor, and punched her to the head four or five times. One punch landed to the right side of her nose, one to the left temple, and two to the back of her head. She had her hands up trying to defend herself while she was being punched. The appellant stopped punching her. She stood up. As she was standing up, the appellant kicked her to the left hip. This assault caused bleeding from the complainant's nose and mouth.

4 After the complainant had cleaned herself up the appellant said to her, "Before you go to bed you can get kicked in the cunt." She became upset. The appellant continued to abuse her. She ran into her daughter's bedroom and got into bed with her. The child was 3 years old at the time. The complainant was wearing a jumper, and had her mobile phone in the pocket of that jumper. The appellant came into the child's bedroom, and tried to seize the mobile phone, but he was unsuccessful. He left the room, went to the kitchen, returned with a knife, and committed the assault that is the subject of count 3. He pointed the knife at the complainant and demanded the mobile phone saying, "Give it to me or I will stab you." That was not a physical assault. It was an assault by means of a threatening gesture: Criminal Code, s182(1). The child was asleep, and remained asleep, throughout this incident.

5 The next assault, the subject of count 4, occurred the next morning. The complainant had spent the night in her daughter's bedroom. After the complainant awoke, the appellant said to her, "Right, I still want to kick you in the cunt." He told the complainant to go to a bedroom, which she did. When she was standing in that bedroom, he kicked her between the legs. The kick connected with her inner thigh. He was wearing sneakers. She fell to the floor. The appellant said, "Get the fuck up." He then kicked the complainant between the legs a second time, closer to her genitals. Both kicks were painful. The complainant had a bruise to the inner thigh as a result of one of the kicks.

6 The appellant went to and from the house a number of times during the day, without further violence. The assault to which count 5 relates occurred at about 8.30pm. The couple's daughter was in bed. In the lounge, the appellant sat in a chair sharpening a pocket knife and a boning knife. He said to the complainant, "Tonight's the night I'm going to kill you and I'm going to enjoy watching you take your last breath." A little later he said to her, "No, I'm not going to kill you. I'm just going to bash the fuck out of you all night. You will wish that you were dead." The sharpening of the two knives, accompanied by those threatening words, amounted to a threatening gesture, and thus to an assault: s182(1). There was no physical violence at that time.

7 Over the next couple of hours, the appellant proceeded to commit the assault that is the subject of count 6. He either kicked or punched the complainant to the head. He kicked and punched her to other parts of the body, mainly the rib area. He also threw a porcelain mug at her. It struck her left elbow.

8 There were no further assaults. The appellant told the complainant to lie down on the floor of the lounge room and go to sleep there. She lay down on the floor. The appellant lay down next to her. He had not slept for days as a result of ingesting methylamphetamine, but he had run out of it, and therefore fell asleep.

9 On the Tuesday morning, the appellant told the complainant to take her bed and bedding to the back yard and set fire to it. He told their daughter that this was because her mother had been naughty. He arranged for his mother to come to collect the child. His mother and sister subsequently arrived. He went to the toilet and, while he was there, the complainant escaped with his sister. As a result, the police were called.

10 Police officers arrived at the house. The appellant was arrested, placed in the police car, and driven to the Smithton Police Station. On arrival he jumped out of the car and ran away. He was not found until 10 days later. Between his escape on 31 May and his final arrest on 10 June, he committed a number of burglaries and other offences.

11 When sentencing the appellant, the learned sentencing judge remarked that the five assaults "were committed over a three day period", but that is not accurate. They were committed during a period of probably no more than 30 hours, beginning when the complainant was getting ready for bed on the Sunday night, and ending a couple of hours later than 8.30pm on the Monday night.

12 The physical effects of the five assaults were not serious. The bleeding caused by the first assault was evidently transient. The complainant suffered bruises, and a graze where the mug hit her elbow. The psychological consequences for the complainant and her daughter were more serious. The complainant was distressed and had trouble sleeping. Antidepressants were prescribed. She attended counselling on a number of occasions. The child exhibited a number of significant psychological symptoms, and was seen by a psychologist on a number of occasions.

13 The appellant has a bad criminal record, but not many of his convictions are for matters involving violence. When sentenced he was 30 years old. He first went to prison in 1999, when he was 17, in relation to a number of burglary and stealing charges. Since then he has been to prison many times, usually in relation to crimes of dishonesty, but also in relation to driving charges. In June 2007 he was sentenced to three years six months' imprisonment for a number of crimes and offences, including wounding, aggravated assault, and assault. In September 2010 a magistrate remanded him in custody in relation to another matter, and he attempted to escape when he was being placed in the prison van, assaulting two correctional officers in the process. He was sentenced to eight months' imprisonment as from that date in respect of those assaults and his attempt to escape. He had been out of prison for less than three months when he committed the assaults to which this appeal relates. He has no other convictions for crimes or offences involving violence.

14 The appellant has been in custody ever since his arrest on 10 June 2011. On 17 February 2012, before being sentenced for the five assaults on the complainant, the appellant was sentenced by a magistrate to three years' imprisonment with effect from 15 June 2011. The magistrate ordered that he was not to be eligible for parole until he had served two years of that sentence. That was a global sentence in respect of 50 offences. Some of those offences were committed before the attempted escape of 21 September 2010. The others were committed from the time of his escape on 31 May 2011 until and after his final arrest on 10 June 2011. Those that pre-dated the September 2010 incident comprised two burglary charges, two stealing charges, one charge of the unlawful possession of property, four charges of evading police, two other charges of offences against police, four firearms offences, and 15 offences relating to vehicles and driving. One of the 50 offences was the escape on 31 May 2011. The offences relating to the following 10 days comprised three charges of burglary, three charges of stealing, two charges of motor vehicle stealing, one charge of unlawful possession of property, three firearms offences, one charge of breach of bail, two charges of breaching bail conditions, and a charge of evading police. Finally, there were three charges of breaching an interim family violence order. On three occasions after the appellant was remanded in custody, he breached an interim family violence order by phoning the complainant and making threats of physical harm to her.

15 The mitigating factors that the learned sentencing judge was asked to take into account included the following:

• The appellant had a difficult upbringing, involving exposure to violence.
• He had a disrupted and limited education, with the result that he had limited literacy skills.
• In the past he had done some casual manual work.
• His son had died at a time when he was in custody. He had had ongoing emotional difficulties ever since. Those difficulties placed stress on his relationship with the complainant. However she had willingly resumed her relationship with him after his release from custody in March 2011.
• The complainant did not suffer any lasting physical injuries as the result of the five assaults.
• Her relationship with the appellant had ended.
• The appellant had been having a more unpleasant time in custody than most prisoners, spending significant periods of time in segregation or in a high security section.
• His pleas of guilty had saved the complainant the ordeal of giving evidence and saved the State the cost and inconvenience of a trial.
• As the appellant was serving the three-year sentence imposed by the magistrate, his sentence for the five assaults should be shorter than it would otherwise have been, in accordance with the "totality principle" discussed by the High Court in Mill v R (1988) 166 CLR 59.

16 The appellant's pleas of guilty were entered on the day that his trial was to commence. The fact that he pleaded guilty is still a mitigating factor that must be taken into account, but that factor carries less weight than it would have carried if he had decided to plead guilty at an earlier stage in the proceedings.

17 Counsel for the appellant submitted that, judging by past experience, the appellant was unlikely to be granted parole, even if eligible. She submitted that the unlikelihood of parole should be taken into account in the appellant's favour. We disagree. It is not appropriate to take into account the likelihood or otherwise of parole when determining the length of an appropriate sentence: R v Paivinen [1985] HCA 39; (1984) 158 CLR 489 at 494 - 495; R v Yates [1985] VicRp 3; [1985] VR 41; George v R [1986] TASSC 19; [1986] Tas R 49 per Cox J (as he then was) at 64.

18 When making the order that the appellant be eligible for parole after serving two years of the sentence imposed by her, the learned sentencing judge gave two reasons for doing so - to reflect the possibility that the appellant would change his ways while in prison, and "to give effect to the need not to impose a crushing sentence". If the head sentence - a cumulative sentence of three years' imprisonment - was a "crushing" sentence, an order making provision for parole should not be regarded as making any difference to that situation because parole might not be granted, and because, as we have just said, it is not appropriate to take into account the likelihood of parole when determining the length of an appropriate sentence.

19 The combined effect of the magistrate's three-year sentence and the cumulative sentence under appeal was that the appellant was sentenced to a total of six years' imprisonment, with no eligibility for parole until he had served four years of those sentences.

20 The ordeal that the appellant inflicted on his partner was horrific. He had many opportunities to desist from assaulting her, but did so over and over again, with their young daughter in the house. It was an unusually bad case of family violence. The only appropriate penalty was a significant cumulative sentence of imprisonment. However, having regard to all the circumstances, particularly the length of the sentence imposed by the magistrate, and the fact that the complainant suffered no lasting physical injuries, we consider that the head sentence of three years' imprisonment and the non-parole period of two years were out of proportion to the gravity of the appellant's crimes. From another perspective, we consider that the aggregate of six years' imprisonment, and the aggregate of four years without the possibility of parole, were out of proportion to the gravity of the totality of his offending. On that basis, we are satisfied that the head sentence and non-parole period fixed by the learned sentencing judge were both manifestly excessive.

21 In re-sentencing the appellant, we think it appropriate to make a provision for parole. When the time comes, he might benefit from a period of conditional release, and from the associated supervision. The shortest possible non-parole period is one half of the head sentence: Sentencing Act 1997, s17(3). Because the appellant has a very bad criminal record, we think a greater proportion of his head sentence is appropriate.

22 For the reasons stated, we have decided to allow the appeal, quash the sentence of three years' imprisonment and the order that the appellant be eligible for parole when he has served two years of that sentence, and, in substitution for those orders, sentence the appellant to 18 months' imprisonment, cumulatively with the sentence he is currently serving, and order that he not be eligible for parole until he has served 12 months of that sentence.