Hyde v R [2001] TASSC 50

Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186; Jeffrey v R 69/1979; Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1; R v Mills [1998] 4 VR 235, applied.

Judgment Number: [2001] TASSC 50

2 Sentence of 7 years' imprisonment from 19 October 1999, set aside.

3 Substituted sentence of 5 years' imprisonment from 19 October 1999.

1 On 8 December 1999, the appellant was sentenced to 7 years' imprisonment from 19 October 1999, when his custody commenced, upon his pleas of guilty to one count of attempted aggravated armed robbery, contrary to the Criminal Code, ss240(4) and 299, and one count of committing an unlawful act intended to cause bodily harm, contrary to s170(1). He appealed upon one ground, that the sentence was manifestly excessive in all the circumstances.

2 At about 2.40 on the afternoon of 15 October 1999, the appellant left where he was living at Devonport for the purpose of obtaining money, so that he could purchase drugs. To that end, he took with him a claw hammer. He went to a corner store and entered it. The only person inside was its proprietor, Mrs Jennifer Crisp, aged 35 years. He engaged her in conversation and ordered $2 worth of cooked chips. She placed the order in a deep fryer and then answered the telephone. He went outside the shop for a brief moment and returned to the counter, Mrs Crisp having completed the telephone call.

3 While Mrs Crisp was attending to some paperwork at the counter, he struck her to the head with the hammer, with a number of blows. She fell to the floor unconscious, whereupon he went behind the counter to the cash register, intending to take money from it. However, he was unable to open it and he fled from the store and ran back to his residence, leaving Mrs Crisp lying where she had fallen. Very shortly after he left, a customer entered the store, found her and called an ambulance.

4 The injuries suffered by his victim were grievous. We will return to them later. Four days after the commission of the crimes, the police went to the appellant and took him to the Devonport Police Station, where he participated in a video recorded interview. He admitted what he had done. Subsequently he pleaded guilty to the charges at the earliest possible opportunity, so that his case proceeded with unusual speed through a court of petty sessions into the Criminal Court and leading to his sentencing exactly two months after the crimes were committed.

5 Because of the speed with which the case was concluded, counsel for the Crown was unable to inform the learned sentencing judge of a definite prognosis for Mrs Crisp. His Honour was told that she was found deeply unconscious and comatose. Her treatment required artificial respiratory support. Brain scans revealed the presence of blood over both cerebral hemispheres. Over the scalp, she had four longitudinal wounds on both sides of the head, two on each side, and she sustained a depressed skull fracture, together with a severe brain injury. Her treatment in an intensive care unit was complicated with renal failure and she also developed fibrillation and hypothyroidism, both of which required treatment. There was a gradual improvement in Mrs Crisp's condition. On 4 November 1999, she became responsive and was obeying commands. She was discharged from ICU on 6 November and transferred to a neurological unit for further care. On 27 November, she was discharged from hospital. At that time, she was wheelchair bound, requiring assistance and help for basic things such as showering. She was able to understand simple commands only and to participate in very limited verbal conversation. She could walk a very short distance if actively supported by a physiotherapist and equipment. Her balance remained poor.

6 Her condition was summarised as a severe brain injury, complicated with multiple medical problems as well as mental impairment, infections and neurological deficits. It was expected that she would require further physiotherapy, medical treatment and strong psychological support. When making submissions on 8 December 1999, counsel for the Crown commented that the injuries were life-threatening and whilst it was hoped she would make a full recovery, there would inevitably be some ongoing problems. It was too early at the time of sentencing to make any accurate prognosis concerning Mrs Crisp's future health and quality of life. However, at that time she had lost all sense of smell and had lost some of her sense of taste.

7 We turn to the circumstances of the offender, the applicant. He was 19 years of age. His parents separated when he was 3 years old and he resided thereafter with his mother. He left high school part way through grade 9 following extensive truancy. He had suffered from what his counsel vaguely described as learning difficulties. His truancy caused considerable problems between him and his mother, as a result of which he left home when only 12 years of age. For the next two years, he lived with family friends until he moved into a youth shelter in the Devonport area. After a period, he travelled to the mainland, returned to Tasmania, obtained some casual employment on an apple orchard, went back to the mainland and obtained an apprenticeship, which he subsequently lost following an argument with his employer. Apart from those periods of employment, which were short, he had been unemployed. Since he was 12 years of age, he had really been looking after himself. To his credit, and despite his difficult and troubled childhood, and deprivations, he had no record of prior offences.

8 However, he had been a regular user of cannabis and about seven months before the crimes, he commenced to use amphetamines and subsequently developed an addiction. A day or so before the crimes, "he had been abusing amphetamine", his counsel said. The night before, he was suffering from withdrawal. When he arose on the day of the crimes, he decided to go out and get money, taking the hammer with him. His sole motivation was to obtain money to purchase more drugs. Mrs Crisp's store was chosen at random.

9 Counsel said that the appellant had no real apprehension of what damage could flow from striking someone on the head with a hammer. The appellant simply believed that he could render the other unconscious.

10 It was pointed out by his counsel that without his admissions to the police, it would have been very difficult, if not impossible, to prove his involvement. His admissions and early pleas of guilty were claimed to be evidence of remorse and it was pointed out that as a result of them, the extra stress on the Crisp family of a trial had been avoided.

11 In his comments on passing sentence, the learned sentencing judge mentioned some of what we have more fully related. His Honour found that the explanation for the crimes was the appellant's craving for drugs and its impact on his appreciation of the likely consequences of his behaviour. Although drugs explained his behaviour, they did not justify it. His Honour described what the appellant had done as a vicious, unprovoked and unwarranted attack.

12 The Court is of the opinion that the sentence of imprisonment for 7 years was manifestly excessive. It was at the top of the range of the sentences which are usually imposed for crimes involving breaches of s170 and above what would usually be imposed for aggravated armed robbery actually committed, rather than merely attempted. There were a number of mitigating factors demanding the imposition of a sentence of less severity. They were the appellant's admissions and speedy plea of guilty (Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186), his youthfulness (Jeffrey v R 69/1979 per Green CJ at 2; Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1 per Crawford J at 23; R v Mills [1998] 4 VR 235) and the fact that he was a first offender. What the learned sentencing judge described as a vicious, unprovoked and unwarranted attack resulting in the victim's life being threatened and significant disabilities being inflicted, although the future was uncertain, demanded a sentence of denunciation, retribution and deterrence. If his Honour took into account, as he ought to have done in this case, the mitigating factors to which we have referred as entitling the appellant to a reduction from what would otherwise have been an appropriate term of imprisonment (his Honour did not mention whether or not he did so), it can only be inferred that if those factors were not present, his Honour would have imposed a sentence approaching 9 or 10 years' imprisonment which would have been far higher than we would consider to be justified. We can only conclude that some error occurred in the sentencing process. Seven years' imprisonment is an exceptionally long period of incarceration with respect to a young first offender and not one appropriate in this case.

13 Because the Court considers the sentence to have been manifestly excessive, it will be set aside. In its place, the appellant will be sentenced to 5 years' imprisonment, backdated to commence on 19 October 1999, when he went into custody.