Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other Crown Law Officer - Application to increase sentence - Offences against the person - Assault and indecent assault - Double jeopardy - Principles discussed.

R v Dowie [1989] TASSC 44; [1989] Tas R 167; Malvaso v R [1989] HCA 58; (1989) 168 CLR 227; R v Harland-White CCA 23/1997; R v McDonald [2002] TASSC 120; R v Clarke [1996] VICSC 30; [1996] 2 VR 520; R v Allpass (1993) 72 A Crim R 561; Lowndes v R [1999] HCA 29; (1999) 195 CLR 665, discussed.

Judgment Number: [2004] TASSC 53

1 I have had the advantage of reading the reasons for judgment of Blow J. With a minor reservation, I agree with his reasons for concluding that upon the respondent's conviction for one count of assault and one count of indecent assault, a sentence of 80 hours' community service was manifestly inadequate and that a sentence in the order of 12 - 15 months' imprisonment would reflect a proper exercise of the sentencing discretion.

2 The minor reservation I have relates to the significance in the sentencing process of the causal relationship between the commission of the crimes and the stress, anxiety and depression experienced by the complainant. The report from the clinical psychologist that was given to the learned sentencing judge said:

"It would be reasonable to say that these two alleged incidents, along with a number of other alleged acts of emotional, physical and sexual violence that [the complainant] had detailed in the course of the consultations, contributed to [the complainant] suffering from an extreme level of stress and anxiety, as well as a significant level of depression." [Emphasis added.]

3 It seems to me that it would be impossible from the foregoing expression of opinion to determine to what degree the commission of the two crimes contributed to the complainant's psychological problems. Accordingly, I would tend to the view that an appropriate sentence would have been closer to 12 months than 15 months, with the execution of portion of it conditionally suspended.

4 However, I regret to say that I differ from Blow J with respect to the ultimate disposition of this appeal. It is well established that in the case of a Crown appeal against sentence, an appellate court will be slow to intervene because of the so-called "double jeopardy" rule. The relevant principles applicable in this State were set out in R v Dowie [1989] TASSC 44; [1989] Tas R 167. The authorities were examined by Deane and McHugh JJ in Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 at 234 and approval was expressed of the following passage in the judgment of Barwick CJ in Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 at 310:

"On my view of the proper meaning of s 5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons."

5 In expressing approval of that statement of principle, Deane and McHugh JJ said that it could be expanded to include an express reference to the need to avoid the kind of manifest disparity or inconsistency in sentencing standards which could be described as being "error in point of principle". Their Honours then said, also at 234, that "Otherwise, [the statement of Barwick CJ] should be accepted as representing general and authoritative guidance to the Courts of Criminal Appeal of this country". This Court has since proceeded in accordance with those statements of principle. See for example, R v Harland-White CCA 23/1997; R v McDonald [2002] TASSC 120.

6 Mr Coates SC, who appeared as counsel for the Crown, did not contend that the sentence reflected any particular error in point of principle. His submission simply was that in all the circumstances of the case, the sentence was manifestly inadequate. No submission was put on behalf of the Crown that there was a trend in cases of violence perpetrated upon a female spouse or partner to impose sentences that were inadequate, nor was there any submission that the prevailing standard of sentences for these kinds of assaults should be increased. Thus, although I am of the respectful view that general error attended the exercise of the sentencing discretion in this case, the following may be noted:

* The first assault was committed a little more than three years ago.

* Following its commission, the complainant and the respondent continued to cohabit. I accept that nothing is known of the circumstances which led to this continuation of cohabitation, other than Crown counsel's statement to the learned sentencing judge that "she was persuaded to give them another chance".

* The cohabitation continued for a period of about 15 months, but ended about three weeks before the commission of the second crime.

* No complaint was laid until 4 June 2003, more than 12 months after the commission of the second crime. I accept that during this period, the respondent denied committing the second crime, and there was considerable unavoidable delay in obtaining DNA examination of the semen deposited on the complainant's leg.

* The respondent was committed to this Court for trial on 10 October 2003 and sentence was imposed four months later.

* The respondent has now discharged the obligations imposed upon him by the learned sentencing judge by performing the 80 hours of community service that he was ordered to serve by way of penalty.

* The respondent has been at liberty (except for overnight custody following the making of the complaint) since the commission of the first of the crimes more than three years ago.

7 If the appeal were to be upheld, and the respondent re-sentenced, the period that he would have to spend in custody would be unlikely to exceed 6 months and, so far as I can see, would not serve to establish any particular principle. In these circumstances, and absent some point of principle, it seems to me unjust to take away the respondent's liberty and put him in prison because an undefined error, not caused or contributed to by him in any way, infected the sentencing discretion exercised with respect to crimes that occurred two and three years ago.

8 Accordingly, I am of the view that although the sentence imposed was manifestly inadequate, and although in lieu thereof a sentence of relevantly short actual imprisonment should have been imposed, the appeal should be dismissed.

9 The Attorney-General has given notice of appeal against a sentence of 80 hours' community service imposed on the respondent following his plea of guilty to counts of assault and indecent assault contrary to the Criminal Code, ss184 and 127. The sole ground of appeal is:

"That the sentence was manifestly inadequate having regard to all the circumstances of the case."

10 The notice of appeal does not raise specific error, nor does it seek to raise, as a more general question, the appropriate penalties for crimes associated with the issue of domestic violence. It raises as a question the issue of whether, in the particular circumstances of this case, the sentence reflected error by reason of its inadequacy. In my opinion, the circumstances of this case do not make it an appropriate vehicle for the wider question.

11 The indictment comprised two counts. The first alleged that between 1 March 2001 and 31 March 2001, the respondent unlawfully assaulted his partner by raising his fist at her, waving a knife at her face, and by threatening to kill her. The facts as read to the Court were stated in the following terms:

"At approximately 2 am one morning, the accused arrived home and an argument occurred between the two of them. The complainant packed some clothing for the accused and he walked out of the front door. The complainant closed the front door to the residence and the accused started banging on the door and threatened to kill the complainant if she did not allow him inside. The accused smashed the glass panel next to the front door and again entered the house. The complainant ran to the kitchen with the accused following her. The accused raised his fist at the complainant and in fear of being struck, she dropped onto the floor between the doorway and the oven. The complainant covered her head and screamed for the accused to leave. The accused continued to yell abuse and threatened to kill the complainant. The accused wrenched open a drawer in the kitchen and removed a serrated edged knife with a bone-coloured handle. With the knife in his right hand the accused began waving the blade in front of the complainant a few inches from her face. While doing this, the accused stated to the complainant that she deserved to die. The accused then suddenly turned the knife around and shoved it towards the complainant stating that if she wanted him gone she would have to kill him. As soon as the complainant got hold of the knife she threw it away where it fell behind a freezer. The complainant grabbed her mobile phone from the kitchen bench at which time the accused shoved her against the laundry door. When the complainant dialled a number on the phone the accused yelled abuse at her and he left the house."

12 When the complainant began to summon help through her mobile phone, the respondent yelled abuse at her and left the house.

13 The complainant did not report the matter to police. The relationship continued until some weeks previous to 30 May 2002. At that time, the respondent had left the joint residence and was living nearby. On the evening of 30 May, the respondent, with his brother, visited the residence to make arrangements for access to the children on the following day. After he had left, the complainant went to bed but was awakened at about midnight. The respondent had entered the locked house and when challenged by the complainant, called out that he was leaving. She waited until she heard the door close. On getting up, the complainant noticed a substance on her thigh which on later examination was found to be semen which matched the DNA profile of the respondent. Police were notified and the respondent was interviewed on 4 June 2003. During that interview, he accepted partial responsibility for the assault in March 2001, but denied that on 30 May he had entered the house and did not know how his semen got onto the complainant. He was not charged at that time. It took some time for the DNA sample to be tested and the results obtained. Accordingly, the respondent was not charged until 9 June 2003. On 29 August 2003, the respondent indicated, through his solicitor, that he would plead guilty to the act of indecent assault and to a charge of common assault, but would not admit a Code assault. The offered plea was not acceptable to the prosecution and the indictments were filed. On 6 February 2004, he pleaded guilty to both counts in the indictment.

14 In September 1991, the respondent had been sentenced to a term of imprisonment of 12 months, with three months suspended, for the crimes of going armed in public and for an act of assault on a previous partner. Those crimes were committed following the break-up of a relationship with his then partner. He had gone to the workplace of his partner and in the course of a series of events, had assaulted police officers with a loaded weapon, confronted a staff member of the partner's place of employment and initiated a series of life-threatening actions. Between 1991 and 2001, he had committed two further acts of violence, namely disturbing the peace in 1994 and assault on police in 1996. The circumstances of those offences, in particular whether they related to incidents involving domestic violence, were not communicated to the sentencing tribunal.

15 The learned sentencing judge did not regard a sentence of imprisonment as being appropriate, stating:

"Outrageous as the conduct which is the subject of the charges now being dealt with is, I am satisfied that your crimes do not warrant a sentence of imprisonment. I consider that an appropriate penalty is a community service order."

16 He directed the respondent to undertake 80 hours of community service.

17 I would have imposed a different form of sentence which would have had, as a component, a wholly or partially suspended sentence of imprisonment. Coupled with an extended period of time, the order would have been intended to operate as a future form of control of the offender and protection for the complainant.

18 The effect on the complainant and her children has been significant and the conduct represented a serious breach of the trust required within a relationship (Parker v R CCA 57/1994). Although that case involved crimes of assault with a loaded shotgun, rape and indecent assault, the general observations made by Underwood J, sitting as a member of the Court of Criminal Appeal, are apposite. I would repeat the statement made by Underwood J at 11, when he said:

"No complaint was made with respect to the learned trial judge's description of the acts of the appellant as 'serious acts of violence and depravity intentionally committed against the complainant' and that 'what he did were acts of subjugation and humiliation.' His Honour's categorisation of the criminal conduct of the appellant would have been completely apposite had he found the appellant's conduct with respect to count 1 as described by him in evidence. In my view, a sentence of 2½ years is a very modest sentence for conviction on count 3 alone. Assuming that the appellant had not pointed the loaded rifle at the complainant, the crimes of which the appellant was convicted were nonetheless serious crimes of domestic violence. In my opinion sentencing for crimes of domestic violence should proceed in accordance with the following principles expressed by the Alberta Court of Criminal Appeal in R v Brown (1992) 73 CCC (3d) 242 at 249:

'When a man assaults his wife or other female partner, his violence toward her can be accurately characterised as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape'."

19 However here there were particular circumstances which permitted the learned sentencing judge to take the course which he did. That is not to say that a more severe penalty, especially one which afforded future protection, would not have been more appropriate. The respondent and the complainant had been in a relationship for some eight years and there were four children born of that relationship. There were, at the time of the sentencing hearing, proceedings existent in the Family Court relating to access to the children which permitted two hours' supervised access per month. It would appear that the respondent had abided by his bail conditions which included prohibition of any approach to the complainant. The assault committed in March 2001 had not been reported to police and the parties had resumed cohabitation for at least a further 12 months. The conduct of 30 May 2002, abhorrent in nature, did not include overt violence, although its effect was, doubtless, significant to the well-being of the complainant and her children. Nevertheless, 12 months elapsed before the respondent was charged and, at the sentencing hearing, no material was advanced which suggested continuation of harassment or manifestation of aggression. That in itself is not to downplay the effect of the conduct on the complainant and the children, nor to lessen the culpability of the offender. Resolution of the problem of violence within a domestic situation is complex and resumption of cohabitation, as in this case where the complainant had decided to give her partner another chance, makes any assessment of sanction difficult.

20 This is a Crown appeal. To succeed, it is necessary for the appellant to demonstrate error "in point of principle" (Griffiths v R [1977] HCA 44; (1977) 137 CLR 293; R v Tait (1979) 46 FLR 86). The particular circumstances of this case do not show "manifest disparity or inconsistency in the sentencing standard" (Malvaso v R [1989] HCA 58; (1989) 168 CLR 227). Although the Attorney-General no longer needs to obtain leave to appeal (Everett v R [1994] HCA 49; (1994) 181 CLR 295) it is not the function of this Court to overturn sentences merely because they are light (R v Jones [1999] TASSC 30). Here the original assault had been followed by resumption of cohabitation and the act of indecency not charged for a further period of 12 months. The need for immediate protection was not readily manifest and as a factor relevant to sentence, on the material presented at the sentencing hearing, not paramount. At the time of the hearing of this appeal, the respondent had successfully completed the order of community service and would, in any event, be entitled to the credit of that service.

21 Given the constraints to a Crown appeal, and the particular circumstances of this case, I would not uphold the ground of manifest inadequacy as advanced. I would dismiss the appeal.

22 This is a Crown appeal against sentence. The respondent pleaded guilty to one charge of assault contrary to the Criminal Code, s184, and to one charge of indecent assault contrary to the Criminal Code, s127(1). The victim of each crime was a woman with whom he cohabited for some years. In respect of the two charges he was ordered to perform 80 hours' community service. The Crown contends that he should have been sent to prison.

23 The first of the two crimes was the assault contrary to s184. That crime was committed in March 2001. It was alleged in the indictment that the respondent assaulted the complainant by raising his fist at her, waving a knife at her face, and threatening to kill her. The respondent and the complainant were living together, and had been for about seven years. They have four children. All of those children were apparently born before March 2001. The account of events given by Crown counsel to the learned sentencing judge is set out in full in the reasons for judgment of Slicer J. That account was not disputed.

24 The indecent assault was committed by the respondent ejaculating over the complainant's legs. The facts as stated by Crown counsel in relation to that charge, which again were not disputed, were (omitting names) as follows:

"On Thursday 30th May 2002 at approximately 8.30 pm the complainant was at [her home] when the accused visited with his brother .... By this stage the accused had moved out of the residence and was living nearby in Gagebrook. He had in fact moved out a few weeks before that date. Arrangements were made regarding the accused seeing the children the following day and the accused and his brother remained at the residence for about 15 minutes. Once the accused left the house, the complainant lay down on her bed in the main bedroom with the children. At that time, both the front and rear doors were closed and locked.

At approximately midnight the complainant woke up and thought that somebody was inside the house. She yelled out ' Who's there?' to which the accused replied 'It's me ..., I was on my way home ... and noticed that the TV was on and the door was open'. The complainant told the accused to leave and waited until she heard the door close before getting out of bed.

When the complainant stood up, she felt something on the inside of her thighs. The complainant wiped the substance with her hand and immediately formed the impression that it was semen. The complainant then proceeded to wipe her legs with a light blue polo top. The complainant immediately phoned her mother ... and told her what had occurred. The complainant contacted the police who attended her home and took possession of a number of items, including the polo top. The polo top has since been analysed by Forensic Services and a semen stain detected. The major DNA profile from the semen stain on the top matched the DNA profile of the accused, or approximately one in one hundred million in the Tasmanian population."

25 The complainant reported the indecent assault to the police soon after it occurred. At the same time, she reported the assault of March 2001, which had not previously been reported. Considerable time was taken to obtain a DNA analysis of the semen that the complainant had wiped from her legs. As a result, police officers interviewed the respondent about the two crimes on 4 June 2003, a little more than a year after the indecent assault. He initially admitted the first crime but not the second. His counsel indicated in August 2003 that he was willing to plead guilty in relation to both incidents, but there was a delay as a result of an attempt to have both matters disposed of summarily in the Magistrates Court.

26 In my view the second incident involved a particularly serious indecent assault since it was committed by the respondent ejaculating over his former partner's legs. The commission of that disgusting crime was aggravated by a number of factors. The respondent had entered her house as a trespasser at about midnight. The complainant was asleep. The crime was committed in the immediate presence of the couple's four young children. There must have been strong risk of one or more of them witnessing the respondent exposing himself, masturbating and ejaculating onto their mother, though there is no suggestion that any of them did see anything. There must also have been a risk of the complainant waking up during the assault, and reacting in a way that drew the children's attention to it.

27 His Honour was informed that the two incidents contributed to the complainant suffering from an extreme level of stress and anxiety, and a significant level of depression, with a number of related psychological symptoms.

28 The respondent has previously been to prison as the result of an incident that occurred following the breakdown of an earlier domestic relationship. In 1991, after separating from his former fiancée, he bought a shotgun, went to her place of work with it, asked to be taken to her, became agitated and very aggressive when that request was refused, and made threats with the weapon until eventually being shot by the police and disarmed. He pleaded guilty to one count of being unlawfully armed in public and two counts of assault, and was sentenced to 12 months' imprisonment, of which 3 months were suspended.

29 In relation to the present charges, there are a number of mitigating factors that the learned sentencing judge was obliged to take into account. The respondent pleaded guilty. In fact, as I have said, his counsel gave an indication that he would do so at an early stage. His counsel told the learned sentencing judge that he was remorseful, though he was not sufficiently remorseful to acknowledge to the police when interviewed in June 2003 that he had ejaculated onto the complainant. The complainant suffered no physical injury on either occasion. There is no suggestion of premeditation on either occasion. It is also true that the complainant continued to live with the respondent following the assault of March 2001. However the learned sentencing judge had very little information as to the relationship between the two individuals, and it would not have been possible to make any judgment as to how hard or how easy it would have been for the complainant to escape from that relationship at that time.

30 In my view the nature of the indecent assault, and the circumstances of aggravation in which it was committed, made it a particularly serious example of that sort of crime. According to Prof K Warner, Sentencing in Tasmania, 2nd ed, par11.426, about 85 per cent of single-count sentences for indecent assault under the Criminal Code in Tasmania in the years 1978 - 2000 were custodial.

31 The principles relating to Crown appeals against sentence are well established: Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 per Barwick CJ at 301; Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 per Deane and McHugh JJ at 234; Everett v R [1994] HCA 49; (1994) 181 CLR 295 per Brennan, Deane, Dawson and Gaudron JJ at 299; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at 340 - 341; R v Harland-White Court of Criminal Appeal, 23/1997 per Crawford and Slicer JJ at 4.

32 In R v Osenkowski (1982) 30 SASR 212 at 213 King CJ made the following observation, with which White J agreed:

"The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

33 In R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522, Charles JA, with whom Winneke P and Hayne JA agreed, reviewed the relevant authorities and derived from them a number of propositions, the first two of which read as follows:

"1 An appeal by the Crown should be brought only in 'the rare and exceptional case' (Everett at 299) to establish some point of principle. The reason is that such appeals 'represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy' (Malvaso at 234).

2 Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to law down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski at 213) (f); to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306)."

34 A similar summary of the principles applicable to Crown appeals was formulated by the New South Wales Court of Criminal Appeal (Gleeson CJ, Hunt CJ at CL and McInerney J) in R v Allpass (1993) 72 A Crim 561 at 562. That summary begins as follows:

"1 A Court of Criminal Appeal which is dealing with an appeal against sentence does not simply embark upon the task of sentencing afresh, substituting its own opinion for that of the sentencing judge, and increasing the sentence if it considers it to be inadequate, or decreasing the sentence it if considers it to be excessive. An appellate court will only interfere if it is demonstrated that the sentencing judge fell into material error of law or fact. Such error may appear in the reasons given by the sentencing judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing judges have a substantial discretion, and the appellate court does not intervene simply upon the basis that the members of that court would have exercised their discretion differently from the judge at first instance.

2 Crown appeals against sentence are relatively infrequent. The High Court has said that such appeals 'should be a rarity': Griffiths [1977] HCA 44; (1977) 137 CLR 293 at 310; Malvaso [1989] HCA 58; (1989) 168 CLR 227 at 234; [1989] HCA 58; 43 A Crim R 451 at 456. One reason for this is the element of double jeopardy that is involved in such appeals."

35 The summaries of the principles relating to Crown appeals against sentences in Allpass and Clarke were approved by all seven judges of the High Court in Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 at 671.

36 The authorities to which I have referred make it clear that on some occasions a Crown appeal against sentence should succeed even though there is no need for the appellate court to give guidance to sentencing judges or correct the idiosyncratic views of individual judges. In my view the indecent assault committed by the respondent, taking into account the circumstances in which it was committed, was so serious a crime, and the community service order so inadequate a penalty, that this appeal should be allowed.

37 I regret that I cannot agree with the comments of Slicer J as to delay insofar as those comments relate to the indecent assault. Certainly fairness to an offender can require a judge imposing a sentence for a stale crime, long after it was committed, to extend what otherwise might be an undue degree of leniency: R v Todd [1982] 2 NSWLR 517 at 519 - 520. There is also authority that a delay need not be inordinate before it deserves to be taken into account: Miceli v R [1997] VSC 22; (1997) 94 A Crim R 327 at 330. However the respondent was sentenced for the indecent assault some 20 months after committing it, and a delay of that order is now, regrettably, quite normal in this State. I therefore think that the delay in relation to that charge is of little significance.

38 There are a number of factors that should be taken into account in the respondent's favour for re-sentencing purposes. Having stood for sentence once, on 6 February 2004, he must now stand for sentence a second time. The "double jeopardy" principle discussed in Attorney-General v McDonald [2002] TASSC 120 must therefore be taken into account in his favour. It is significant that he was not originally sentenced to imprisonment, but now faces a prison sentence. This appeal has been hanging over his head for about four months. He has completed his 80 hours' community service. He has been unable to do anything about increasing his contact with his children while these proceedings have been pending. Those factors should all result in a somewhat shorter sentence than it would have been appropriate for the learned sentencing judge to impose. So far as the completed hours of community service are concerned, I note that the Sentencing Act 1997, s48(7), requires a magistrate, when substituting a term of imprisonment for a community service order when an offender has not performed community service, to treat seven hours' community service as equal to one day of imprisonment. That provision is not binding in this case, but gives some indication of the significance that should be attached to the 80 hours' community service, apart from the other factors.

39 In my view a sentence of about 12 or 15 months' imprisonment would have been appropriate for the two crimes to which the respondent pleaded guilty. It would have been within the bounds of the sentencing discretion to have suspended part of that sentence in order to deter the respondent from re-offending. Because of the factors I have mentioned in relation to the "double jeopardy" principle, I think it would now be appropriate to impose a head sentence of a little under twelve months. An order specifying a non-parole period of under 6 months could not result in the respondent's earlier release: Corrections Act 1997, s70. I therefore consider a 6-month non-parole period appropriate.

40 I would therefore allow the appeal, and, in addition to the community service order, impose a sentence of 11 months' imprisonment, with 3 months thereof suspended on condition that the respondent be of good behaviour for three years, and order that the respondent not be eligible for parole until he has served 6 months of that sentence.