Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Two assaults - Multiple punches by man to female partner's head - Sentence of two years' imprisonment with non-parole period of 18 months.

Judgment Number: [2018] TASCCA 14

1. In this case the appellant's violence towards his partner involved two attacks upon her. The first "at least half a dozen" punches to her face with a closed fist. The second, inflicted very soon after the first, and after the complainant had phoned for help, involved another "half a dozen" punches to her head with a closed fist.
2. The appellant's conduct was brutal and sustained. It was unprovoked. It was cowardly. It has caused the complainant to suffer flashbacks and nightmares.
3. Violence in relationships takes many forms. In whatever guise, whether physical or psychological, it involves the exertion of power and control over another. The victims of such violence are diminished by it, often succumbing to mental and bodily injuries that ruin their lives.
4. It is a particularly insidious crime because it is difficult to detect. And an all too common consequence of this abuse is that its victims may be so broken or fearful that they do not report it.
5. It follows that, in sentencing for offences of this type, general deterrence is a significant factor.
6. The complainant is entitled to the full protection of the law, and the vindication of this Court.
7. The learned sentencing judge has reflected these considerations in his comments and sentence, which I consider to be an entirely appropriate response to the offending.
8. For these reasons, and those articulated in the judgment of Martin AJ, which I have read in draft, I join in the order dismissing the appeal.

1. The appellant pleaded guilty to two offences of assault, contrary to s 184 of the Criminal Code. On 14 March 2018 Estcourt J imposed a single sentence of imprisonment for two years and ordered that the appellant not be eligible for parole until he has served 18 months of the sentence.
2. Although represented by counsel before the sentencing judge, on appeal the appellant was unrepresented. He has appealed against the sentence on the basis that it is manifestly excessive. For the reasons that follow, in my opinion the appeal should be dismissed.
3. At the time of sentencing in March 2018, the appellant was aged 44 years. The offending occurred on 17 October 2017. The victim was the appellant's girlfriend of four years and, at that time, there was a history of family violence.
4. The learned sentencing judge summarised the facts of the offending:

"On 17 October 2017 the complainant and the defendant were at their home in Chigwell. They were arguing, mostly about the defendant being drunk. At 10 am the complainant drove the defendant to a medical appointment. Once at home again they continued to argue about the defendant's lifestyle, involving drug and alcohol abuse. Whilst they were in the bedroom the complainant told the defendant that she did not want the relationship to continue and that she could no longer live in that way. The defendant became angry and the complainant asked him to leave. The defendant told her that she had left him with nowhere to go and with no money. Shortly after, at about 12:30 pm the defendant picked up a wooden pole that he kept under the bed, and smashed a computer monitor in their bedroom with the pole.

The defendant then punched the complainant with a closed fist to her face at least half a dozen times before walking outside. The complainant went to the kitchen and phoned a friend and told him that the defendant was laying into her and that she wanted him gone. The defendant returned to the kitchen and said that he had 'heard that' and punched the complainant again with a closed fist to her head half a dozen times. The complainant described the hits as being even harder than the last time. The punches connected all over her head.

The defendant left the home and the complainant obtained the assistance of a neighbour who called the police and an ambulance. As a result of the assaults the complainant received swelling and bruising to her face and a bloody nose."

1. Fortunately, the victim did not sustain any lasting physical injuries. However, in her victim impact statement the victim indicated that she suffered from flashbacks and nightmares.
2. The appellant co-operated with the police. At the time of his arrest on 17 October 2017, the appellant was not interviewed because he was intoxicated. In a video recorded interview conducted on 18 October 2017, the appellant said he and the complainant had been arguing, primarily because he had crashed her car. The complainant had been abusing him and he was "sick of it".
3. The appellant was raised in unfortunate and dysfunctional circumstances. As a teenager he discovered that the man he thought to be his father was not his biological father. During his childhood the appellant was exposed to violence within the family home, but he managed to complete schooling to the level of grade 10.
4. Unfortunately, the appellant began using illicit substances during his teenage years. He was exposed to cannabis use and methylamphetamine, and he has struggled with addiction to those substances on and off ever since. He has also struggled with alcohol abuse.
5. The appellant has a very long record of prior offending commencing with an assault committed in October 1989. Many of the previous offences involve dishonesty, including numerous burglaries, but he has a record of violent offending which the sentencing judge correctly described as "appalling". It is unnecessary to canvass the details except to observe that the offences under consideration were committed against the background of other crimes of violence against female persons. Not mentioned by the sentencing judge was the appellant's threat to the complainant in the medical centre, "You're dead", a threat of the type that the appellant also made against other female victims in the course of breaching family violence orders.
6. Significantly, the appellant has displayed a disregard for court orders, including numerous breaches of family violence orders. Sentences of imprisonment for offences of violence have not acted as a deterrent. As the sentencing judge observed, the appellant was not to be sentenced for his previous offences, but his record of violent offending demonstrated that the assaults under consideration were "not aberrations committed out of character". In addition, as previous sentences of imprisonment have not deterred the appellant from committing violent offences, personal deterrence was an important factor in sentencing.
7. It is clear from the sentencing remarks that the sentencing judge took into account all relevant matters. There is no apparent error of fact or law. In particular, his Honour took into account the early plea of guilty and co-operation with the police. His Honour had regard to the traumatic family relationship in the history of the appellant.
8. The appellant provided a hand written explanation of his submissions which first complain that the sentencing judge was misled with respect to the facts of two of his prior convictions for assaulting female persons. In accordance with the common practice, after reading the agreed Crown statement of facts, counsel for the Crown addressed the sentencing judge as to the prior offending, including the matters in respect of which the appellant now disputes the facts put to the sentencing judge. Counsel for the appellant then made submissions on behalf of the appellant, but did not contest any of the facts of the prior offences.
9. Even assuming the errors about which the appellant complains, in my view they are insignificant and would not have had any impact upon the exercise of the sentencing discretion. Even if the facts of those two convictions are amended, the appellant's record of prior violent offending remains "appalling".
10. The appellant complains that when he was sentenced it was "women's month" which he suggests might have influenced the sentencing judge against him. There is no substance in this submission.
11. As to the facts, the appellant complains that the sentencing judge failed to take into account that immediately before the second assault, the appellant was "assaulted by the victim with a large serrated edge kitchen knife" and acted in "self-defence". It is correct that the Crown facts did not contain any reference to the victim using a knife, but in submissions counsel for the appellant told the sentencing judge of instructions in that regard:

"We are instructed that the complainant has also assaulted the accused by inflicting an injury to his head using a serrated knife. That incident on our instructions occurred between count 1 and count 2. Those instructions are consistent with one police officer describing seeing a fresh graze to Mr Gregson's head and another police officer observing a fresh cut to his head."

1. The sentencing judge did not refer to the question of the knife, but there is no reason to assume that his Honour overlooked that matter.
2. The appellant also complains that he should have been sentenced in the Magistrates Court. He says he believed he was pleading guilty to "common assault", not "Code assault". However, the appellant does not suggest he did not give instructions that he would plead guilty.
3. As the Director of Public Prosecutions (the Director) has pointed out, the elements of the offence of assault are the same under s 35 of the Police Offences Act 1935 and s 184 of the Criminal Code. The appellant acknowledged his guilt after obtaining legal advice and, despite his assertion to this Court that he acted in "self-defence", there is no basis upon which this Court could properly allow a change of plea.
4. During brief oral submissions the appellant spoke of receiving two years for "a couple of punches". As the facts disclose the appellant struck far more than a "couple of punches" and he did so in two separate episodes of violence.
5. The sentencing judge accurately described the offending as a "cowardly attack". Further, it was violent offending directed against a vulnerable female partner within the context of a domestic relationship. The sentencing judge correctly observed:

"Vulnerable women such as the complainant are entitled to the protection of the law against brutal partners, and the community expectation is that such protection will be provided by the Courts."

1. Men like the appellant who are minded to use physical violence against their female partners must understand that the community is greatly disturbed by this type of unacceptable conduct. Such violence is prevalent and will be met with significant terms of imprisonment. General deterrence was also an important factor in sentencing.
2. The Director provided a table of sentences imposed in the Supreme Court in the period March 2013 to March 2018 for crimes of assault in domestic type circumstances, often accompanied by breaches of family violence orders. The sentences ranged from community service to imprisonment for 3 years and 6 months (for 8 violent assaults committed over a period of 3¾ hours).
3. Statistics from the Sentencing Advisory Council show a range of custodial sentences in the Supreme Court in the period 2001-2014, for single offences of assault, of 13 months to 24 months. Multiple offences resulted in a range of 2 to 42 months.
4. As has been emphasised in numerous authorities, this type of statistical information is helpful, but it does not establish a fixed range. The limited value of this information was explained in the majority judgment in Hili v The Queen [2010] HCA 45, 242 CLR 520, at [54] and [55]:

[54] In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: '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' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'.

'[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were'." [Footnotes omitted.]

1. The following passage from the majority judgment in Barbaro v The Queen [2014] HCA 2, 253 CLR 58 at [40] and [41] is also pertinent:

"[40] The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.

[41] As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil-Brown, the synthesis of the 'raw material' which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel." [Footnotes omitted.]

1. It is apparent from the material provided and the Sentencing Council statistics that the sentence of two years is one of the heavier sentences imposed for the type of offending under consideration. It is also apparent that the longer sentences in the table produced by the Director were generally imposed for offences involving strong violence causing significant physical injuries.
2. Although the appellant did not use a weapon or kick the victim, nevertheless his violence was not minor in its nature and strength. Nor was it limited to one or two punches. The appellant delivered numerous forceful punches to the victim's face and, after a short lapse, returned and delivered more forceful blows to the victim's head. Fortunately, the victim did not sustain any fractures, but the absence of fractures does not detract from the seriousness of the repeated violence inflicted by the appellant.
3. The appellant is not to be punished again for his prior criminal conduct, but he is not entitled to any leniency. He has a history of violence towards women and, as I have said, the community is greatly disturbed by the prevalence of this type of conduct. Women in domestic circumstances are particularly vulnerable to the abuse of power and breach of trust by violent male partners: Director of Public Prosecutions v Karklins [2018] TASCCA 6 per Geason J, at [54]-[60]. Women who become victims in these circumstances, and other potential victims throughout the community, are entitled to such protection as the law is able to provide through the imposition of sentences that will act as both a personal and a general deterrent.
4. In my opinion, although the sentence of two years' imprisonment was towards the upper end of the appropriate range of the sentencing discretion, it was not manifestly excessive. It was not harsh or unjust.
5. Similarly, in view of the appellant's record of prior offending and disregard for court orders, in my opinion the sentencing judge was lenient in fixing a non-parole period and the non-parole period of 18 months was well within the range of the sentencing discretion.
6. For these reasons, in my opinion, the appeal should be dismissed.