Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Wounding.

Judgment Number: [2010] TASCCA 19

1 The appellant was found guilty of the crime of wounding. Evans J sentenced him to imprisonment for 18 months from 2 August 2010, with a non-parole period of 12 months. He appealed on the ground of manifest excessiveness.

2 At about 6am on 31 January last, he was on the pathway outside an upper Liverpool Street residence in which a party, not involving him, had been in progress. The complainant, who was the occupier, left the residence to speak to a youth who had been asked to leave because of fighting. As the complainant returned to the unit, he noticed the appellant approaching him, and said to him that he was not welcome inside. The appellant followed the complainant a short distance up steps leading from the pathway to the residence. The complainant turned to speak to him and placed an empty stubby on the ground. As he did so, the appellant queried whether the complainant was going to glass him. The complainant said he was not, whereupon the appellant picked up the stubby and struck the complainant with it on the side of the head, with sufficient force to break the stubby. At the time of the attack, the appellant was intoxicated. He was not provoked by the complainant.

3 The blow caused a six centimetre laceration to the scalp above the left ear. The complainant went to the Royal Hobart Hospital where the wound was cleaned and closed with seven staples. He attended his general practitioner for two follow-up visits and had two days off work. At the time of sentencing, he still suffered pain which could become quite distracting. He had a six centimetre scar in his scalp, which had healed in the form of a "step" or raised scar.

4 The appellant was 22 years old. He was employed and had demonstrated a good work ethic. He lived with and supported his mother, who had had periods of anxiety and depression. Those matters in mitigation did not count for much when regard was had to his record. It contained offences of violence.

5 In 2005, he was sentenced to 63 hours of community service under the Youth Justice Act 1997 for causing grievous bodily harm on 2 May 2004. He pleaded guilty to the charge that arose out of an incident at football club rooms where he had been consuming alcohol. No other details were provided.

6 In 2007, in a criminal court, for an assault committed on 14 May 2006, he was sentenced to five months' imprisonment, all of which was suspended on condition he commit no crime or offence involving violence for two years, and he was ordered to perform 210 hours of community service. He pleaded guilty to the charge. Drunk and angry, he returned to a function at the same football club with a baseball bat and struck a member of the club's committee on the head with it, when the other was trying to calm the appellant down. He caused a six centimetre laceration that required ten stitches.

7 Later in 2007, he was fined for a common assault committed on 4 February 2007. He had been drinking. Observing his girlfriend talking to a male in the bedroom of a house, he punched the window until it smashed, removed the pieces of glass from the window frame, climbed into the room and punched the male complainant in the head repeatedly.

8 On 7 January 2010, he was sentenced to 28 days' imprisonment, wholly suspended on condition that for 12 months he be of good behaviour and commit no offence of personal violence. The sentence was imposed for a common assault committed on 10 January 2009. He was intoxicated and, with no apparent provocation, head butted a stranger in a nightclub. The victim suffered bruising, a sore and bleeding nose and a chipped tooth. (By committing the offences, he breached the condition of the 2007 suspended sentence. On 18 March 2010, he was ordered to serve two months' imprisonment as a result. In his sentencing submissions, counsel for the appellant said to the judge that the imprisonment had a very salutary effect on him because it prevented him from providing his mother with the care and support she needed from him, and it jeopardised his employment, although he was able to return to it.)

9 Only 24 days after the imposition of the sentence of 7 January, he committed the crime under consideration in this appeal.

10 There is more to his relevant history. About 5½ hours before the commission of the crime, he was one of three youths behaving in an aggressive manner in central Hobart. A police officer formally directed him that he was not to be found in the CBD for a period of eight hours. A little over four hours later, he was found to be fighting with another youth at the intersection of Murray and Bathurst Streets. He was arrested, charged with disturbing the peace by fighting, and bailed. Within less than an hour of leaving the police station, he committed the present crime.

11 The sentencing judge expressed the view that, notwithstanding the salutary impact of the short term of imprisonment the appellant had served earlier this year, for reasons of personal deterrence a significant sentence was necessary.

12 Counsel for the appellant presented a detailed analysis of sentences since 1990 for wounding, particularly for wounding with a glass, bottle or stubby. It revealed that commonly they were sentences of imprisonment in the range of three to six months, although sentences in this range almost always involved offenders with no prior convictions, and if so, the sentences were often wholly suspended. However, sentences of imprisonment for the crime in those circumstances had been as long as 18 months. See McDonald 21 August 2002, upheld on appeal in Attorney-General v McDonald [2002] TASSC 120. Sentences for single counts of wounding not involving a glass, bottle or stubby, had been as long as five years. The Court accepts that 18 months' imprisonment for the crime involving the use of such a weapon was at the top of the range of punishments imposed over the last 20 years, and that terms in excess of that were ordered in cases in a number of which other weapons, such as a knife, were used, or in which multiple wounds were caused.

13 Counsel for the Crown pointed out that the crime was not committed without thought in the heat of anger. The appellant contemplated what he was about to do and then did it. It was also submitted that, having regard to the facts that the crime was unprovoked, committed on the complainant's premises where the appellant entered uninvited, and the appellant's record for violence over the previous five years was a bad one, 18 months' imprisonment was justified and not manifestly excessive. The need for strong personal deterrence, as well as general deterrence, was required.

14 There is clear authority for the proposition that an offender's criminal history cannot be given such weight as to lead to the imposition of a sentence which is disproportionate to the gravity of the crime that was committed by the offender. Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465, at 477. Nevertheless, a criminal history may justify a sentence at the top end of the range for offences of the same kind. Hill v R [1999] TASSC 29, per Cox CJ, at par[4].

15 The conclusion of the Court is that although the length of the imprisonment and its non-parole period were at the top of the range for such a crime and its circumstances, and a somewhat less severe sentence might have been justified, the sentence was not manifestly excessive. There were relatively few factors in mitigation. There was no remorse or provocation. The appellant had been given many chances by courts when dealing with him for offences of violence, with a fine, community service and suspended imprisonment. Deservedly, he had lost the chance of further leniency. His counsel's arguments have failed to persuade us that the sentence should not be allowed to stand.