Godfrey v Bannon [2025] TASSC 39

Supreme Court of Tasmania|2025-07-03|Before: Jago J

The applicant referred the Court to data obtained from the website of the Tasmania Sentencing Advisory Council in respect to sentences imposed in the Supreme Court, between 2001 and 2014 for single counts of indecent assault to support the proposition advanced, and submitted the sentence imposed by the magistrate was, when viewed against the range of sentences imposed for similar offending, unjustifiably lenient.
Of course, whilst a sentencing court, and by extrapolation an appellate court, should have regard to what has been done in other cases, it is appropriate to bear in mind what Simpson J said in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303]- [305]. There, her Honour pointed out:

"Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts."

But the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought, to sentence. Past sentences are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence."

The gravamen of these observations is that whilst comparative sentencing data is instructive, comparative sentences do not dictate the outcome in a particular sentencing matter by requiring that a given set of circumstances be fitted into a range of similar past sentences. Rather, the sentencing judge uses the information as to past sentences as a yardstick against which to consider an appropriate sentence.
In any event, a review of sentences imposed for the crime of indecent assault reveals it is far from inevitable that a period of imprisonment, suspended or otherwise, must be imposed. Not infrequently, for a single count of indecent assault, where the offending falls towards the lower end of the scale of seriousness, a sentence other than imprisonment is imposed. The range of behaviours associated with indecent assault charges is vast, and by necessity, the sentencing discretion vested in the magistrate is very wide.
Here, the indecent assault whilst of course, serious, was opportunistic, brief in nature and isolated. The respondent had no relevant criminal history, was a mature 64-year-old man with good employment and good supports. The magistrate determined personal deterrence was not a weighty sentencing consideration but acknowledged the need for the sentence to reflect general deterrence, vindication of the victim and denunciation. The sentence imposed was sufficient to meet such aims. Whilst, I am of the view, the respondent benefited from a lenient sentence, the sentence imposed was sufficient to meet the relevant sentencing aims and could not be said to be plainly unjust or unreasonable.
Ground 1 of the Notice to review is dismissed.

The magistrate declined to make an order making the respondent subject to the requirements of the Community Protection (Offender Reporting) Act. He said as follows:

"As to the Community Protection (Offender Reporting) Act, it is the state of the law that I must place your name on the register of reporting offenders unless satisfied that you do not pose a risk of committing a reportable offence in the future....that test is whether that risk is a more than fanciful risk with respect to that likelihood of committing a reportable offence into the future. There are a number of factors that I have regard to as set out within s 10 - without pausing to reflect on all of them, but they include the evidence that was adduced at the hearing, the victim impact statement of the complainant that has been provided, the submissions that were made by the State and your counsel with respect to the operation of the Act and the need to - or the likelihood as I should say, of you committing a reportable offence into the future, and whether that risk is fanciful.

I also have regard to the pre-sentence report that has been prepared in relation to you which finds - that report being the 11th June 2024, which finds that there is a lack of criminogenic needs or identified issues that give rise to a need for supervision. That is also a factor that I take into account. I take into account your age. At the age of 64 this is the first occasion where you have been dealt with for an offence of this nature, engaging in conduct of this sort in terms of your record. I have taken into account that age and the record as outlined and the role that alcohol played, in my view, in the commission of this offence.

If there had been a need for a further degree of supervision, in my view, it might change the overall risk factors attaching to you, but it is the view of the author of the report that there is not a need with respect to you to provide further supervision, management and control in relation to you, and in particular in this regard, with respect to the use of alcohol and the risks that arise from the use.

In relation to the report it is a different test that is applied of course when they are considering risk, and the risk I consider is whether that risk is fanciful which is a far lower threshold, but I take into account all of the factors that have been raised on the hearing, in the submissions, and in the materials that are before me.

In weighing up those factors, as I do and must, I therefore with respect to the matter decline to place your name on the reportable offenders register."

The issue raised by ground 2 of the notice to review is whether the magistrate erred by concluding that the respondent did not pose a risk of committing a reportable offence in the future. If a risk existed, in the sense of a real risk and not one that is far-fetched or fanciful (Traynor v McCulloch 2011 TASSC 41 at [53]) then the magistrate was obliged to make an order as s 6 (1) of the Act is directory and no discretion exists within the section. To uphold this aspect of the motion, I must be positively satisfied that no magistrate acting reasonably could have reached the conclusion that no risk existed. It is not enough that I would have found alternatively.
I am positively satisfied that no magistrate acting reasonably could have found, on the material before the magistrate in this case, that the respondent did not pose a risk of committing a reportable offence in the future.
The magistrate appropriately took into account the personal circumstances of the respondent, together with the evidence that was adduced at the hearing. He also appeared to place significant weight on the pre-sentence report that he had obtained and the conclusion therein that there was no need for further supervision of the respondent. That report contained, inter alia the following information:

The defendant has been assessed utilising the LSI-R:SV assessment screening tool endorsed by Community Corrections as having medium risks/needs. (my emphasis)

The defendant is deemed suitable to participate in court ordered community service.

During interview the defendant advised he has full time employment with the local council as a contract cleaner and works on an on-call basis. He reported he would be able to attend community service obligations if he was advised in advance of details for him to cover requirements ....

The defendant is deemed not suitable for an order with a community-based supervision condition. The defendant has several protective factors in place including employment, family support, stable housing. There are limited risks identified through assessment which require intervention provided by this service." (my emphasis)

As can be seen, the report identifies the respondent has medium risks/needs, and at another point refers to there being limited risks which require intervention. The report does not conclude that the respondent has no identifiable risks. Pertinently, in my view, the report is silent as to the respondent's alcohol consumption. It is simply unclear from the report as to whether there was any discussion or consideration of the respondent's alcohol consumption during the assessment process. Yet, it seems the magistrate has inferred that risk arising from the use of alcohol did form part of the assessment process when he concluded "there is not a need with respect to you to provide further supervision, management and control in relation to you, and in particular in this regard, with respect to the use of alcohol and the risks that arise from the use."

In my view, given the report was silent as to whether his use of alcohol had even been discussed, and given the evidence the magistrate had heard on the hearing, it was an unjustifiable approach to conclude from the report that the respondent's use of alcohol did not present as a risk factor to the respondent committing a further reportable offence. It is the drawing of this conclusion which appears to have played a significant part in the magistrate concluding that the respondent did not pose a risk of committing a reportable offence in the future.
The evidence on the hearing was that the indecent assault occurred in circumstances where the respondent was so intoxicated that he could not recall the incident. Additionally, the magistrate had evidence, that he accepted, that on other occasions when the respondent had been consuming alcohol, he had behaved in a sexualised manner, such that the magistrate concluded the respondent was not of good character.
Such evidence very clearly established that there was a real risk that if the respondent became intoxicated, he may commit a reportable offence into the future.
There was nothing at all before the magistrate to suggest the respondent had abstained from the consumption of alcohol or limited his alcohol consumption. Nothing was said during the plea in mitigation about his alcohol habits or consumption. There was nothing in the pre-sentence report that could properly satisfy the magistrate that alcohol consumption would not be an ongoing difficulty.
Very clearly, the indecent assault had occurred in circumstances where the respondent had consumed alcohol to excess. Absent material that eliminated that as a risk factor, no magistrate acting reasonably could have concluded that the respondent did not pose a risk of committing a reportable offence into the future. Moreover, the so-called protective factors identified in the pre-sentence report - employment, family support and stable housing - were all operative at the time the offending occurred. The existence of those factors did not operate to eliminate risk when the indecent assault occurred, and without something more, did not provide a basis from which it could reasonably be concluded that the respondent presented with no risk of future offending. Therefore, the magistrate was required to make an order pursuant to the provisions of the Community Protection (Offender Reporting) Act.
Ground 2 of the Notice to Review is upheld. I will hear Counsel as to whether I should proceed to make the consequential order or whether the matter should be remitted to the magistrate.

Having heard Counsel, and it being agreed that I should proceed to make the order, I make the following order:

Mr Bannon, pursuant to s6(1) Community Protection (Offender Reporting) Act, I direct that the Registrar cause your name to be placed on the register and that you comply with the reporting obligations under that Act for a period of two years from today, being 3 July 2025.

Principles relevant to an appeal of this nature are frequently referred to by appellate courts and are well understood. To succeed on a ground that a sentence is manifestly inadequate, it is not enough to establish that the sentence may be regarded by some as too lenient. An appeal court may not substitute its own opinion for that of the magistrate merely because it may have exercised the sentencing discretion differently and imposed a more severe penalty: Lowndes v The Queen [1999] HCA 29, 195 CLR 665 at [15]. This Court must be persuaded of error of the second type referred to in House v The King [1936] 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing court is, on the facts, unreasonable such that the appellant court may infer that in some way there has been a failure to properly exercise the sentencing discretion. A magistrate is vested with a very wide discretion. The application ought only to succeed if the prosecution has demonstrated clear error, that is imposed a sentence that is obviously outside the proper limits of the broad sentencing discretion of a magistrate: Whittle v McIntyre [1967] TASSR 263, Visser v Smart [1998] TASSC 151 at 5, TGW v Tasmania [2017] TASCCA 10 at [33]. There is no charter for an appellate Court to "tinker with sentences".
It is to be noted that as a Crown appeal, special considerations apply. Generally, if a Crown appeal is to succeed, the Crown must satisfy two aspects. The first is to demonstrate an appealable error in the sentencing magistrate's discretionary decision. The second is to negate any reason why the residual discretion of the appellate court not to interfere, should be exercised.
The authorities establish that the Crown must negate any reason why the appeal should be dismissed in exercise of the residual discretion, notwithstanding any manifest inadequacy in the initial sentence. The exercise of the residual discretion is informed by the purpose of Crown appeals, which distinguishes such appeals from appeals against a severity of sentence by a convicted person. As the High Court made clear in Green v The Queen ,Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465-466 the primary purpose of an appeal by the Crown is to identify principles for the governance and guidance of sentencing courts. They also serve to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence.
In Everett v The Queen [1994] HCA 49, 181 CLR 295 at 306, McHugh J said:

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