Appeal from R v Inkson and ors, A38/1995, unreported, available on SCALE.

2 Appeal allowed.

3 Sentence of imprisonment of four years, four months

quashed and sentence of imprisonment of two years, ten

months commencing on 15 June 1995 substituted therefor.

UNDERWOOD J On 15 June 1995, the applicant pleaded guilty to one count of causing grievous bodily harm to Kerry Jack Stephens "by punching him twice to the head thereby causing him to fall backwards and strike his head on the roadway."

2. On 4 July 1995, Slicer J ordered that the applicant "be sentenced to a term of imprisonment for a period of four years and four months, such sentence to commence as and from 15 June 1995." The applicant spent fifty-seven days in custody before being called upon to plead. The learned sentencing judge said that the applicant "will be afforded the credit of two months' imprisonment already served" so there was an effective sentence of 4.5 years' imprisonment.

3. The applicant seeks leave to appeal against that sentence upon the grounds that:

1 It is manifestly excessive.

2 No, or insufficient,regard was paid to the applicant's

plea of guilty.

4. The learned sentencing judge's reasons for making the order to which this application relates and for making orders against the applicant's two co-accused, were published (A38/1995 (unreported, available on SCALE)). The following summary of facts is taken from those reasons:

"At 2.30am on 22 October 1994, Kerry Stephens, a respected

member of the Burnie community, was walking home from the

annual dinner of his football club. As he passed a block of

apartments he engaged in conversation with a young woman

attending a party within one of those apartments. The two

sat down on the footpath alongside the wall abutting the

building. For no reason, Ivan Thomas, another person

attending the party, commenced to spit at Mr Stephens, who

got to his feet in protest. As he did, another member of

the party, James Inkson, approached Mr Stephens and, without

warning or provocation, struck him twice in the face. Mr

Stephens fell backwards, struck his head on the roadway and

was rendered unconscious. There was no concert between

Thomas and Inkson.

The blows caused injury to the mouth and nose, whilst the

impact of the fall resulted in serious injury to the skull

and brain in the form of:

- laceration to the parietal bone; and

- complex fracture of the skull.

The head injury, in the opinion of the pathologist, was life

threatening and could have led to death. Inkson then moved

the unconscious victim onto the footpath and sat him against

the adjoining wall."

5. Crown counsel told the learned sentencing judge that Mr Stephens was bleeding from the back of the head and from his nose. His breathing was described by a witness "like snorting noises after he had been knocked unconscious." The applicant left his unconscious victim in this condition and returned to the party. This mindless violent criminal conduct was compounded with the crime of the co-accused, Thomas. This is what the learned sentencing judge said about his crime:

"Thomas, who had remained nearby, approached the unconscious

Mr Stephens, turned his body over and removed a wallet from

the rear pocket of his jeans. The sum of $43 taken from the

wallet was spent on alcohol for the party. The callous act

of robbery was akin to the behaviour of a scavenger."

6. The victim was then moved by Thomas and another from one side of the wall to the other and left in the garden. Thomas said they "had better hide the guy in case the cops came." Thomas also returned to the party.

7. This scarcely believable callous treatment by one human being to another was further compounded with the crime of the other co-accused, Sutton. Sutton came down to the garden and removed Mr Stephens' jacket. At that time Mr Stephens was still alive but deeply unconscious and breathing abnormally. Immediately after removing the jacket, a witness said that Sutton kicked Mr Stephens in the head once or twice. The reason given by Sutton for this was "I dunno why I kicked him I just ... he was there and I just ... done it."

8. He, too, returned to the party, leaving the unconscious victim in the garden. The learned sentencing judge was perfectly correct in describing Sutton's behaviour as "of the darkest side of human nature."

9. By 3am that morning Mr Stephens lay dead in the garden.

10. His Honour said that the pathologist had been unable to isolate the precise pathological cause of death. It may have been due to the injuries inflicted by the applicant, or to the injuries inflicted by Sutton, or to a combination of both. His Honour made the following determination of causation and attendant responsibility:

"- The act of causing grievous bodily harm by Inkson brought

about a most serious injury which made the victim helpless

to the subsequent violence and indifference of others. But

for his act, the death would not have occurred.

- The robbery effected by Thomas was not legally causative

of death. Nevertheless, the act of moving the unconscious

victim was an act associated with the robbery and

accordingly can be regarded as an attendant consequence. He

should be punished for the act of robbery on a helpless and

hapless victim and to have caused harm by virtue of his

conduct associated with that act of robbery.

- The injuries inflicted by Sutton caused death. The fact

that such blows accelerated death is of little significance

to the question of causation. The crime committed is that

of manslaughter.

- None of the three offenders acted in concert. Had they so

done, it is likely that each would have been responsible for

a murder. It is almost unbelievable that three persons

could act separately and independently in the callous and

vicious manner in which they did. But that is the

evidence."

11. No complaint is made about that determination.

12. With respect to this, the learned sentencing judge said:

"Little regard is paid to his plea of guilty. I regard the

plea as an acceptance of the inevitability of a conviction

for the crime with which he is charged."

13. Senior counsel for the applicant accepted that inevitability of conviction was the basis for the plea, but submitted that notwithstanding, the applicant was entitled to "credit" for entering a plea of guilty.

14. In R v Shannon (1979) 21 SASR 442 the learned sentencing judge reported, "I am bound by a decision of the Full Court ... that a plea of guilty alone is not a ground for leniency." In the course of an appeal against sentence this report led to the court being reconstituted as a bench of five justices to determine the relevance of a plea of guilty in the sentencing process. There had previously been a difference of views about this matter in the South Australian Court. King CJ said at 459 - 460:

"During the course of the hearing of this appeal, a court of

five judges was convened to consider the extent (if any) to

which a plea of guilty could be regarded as a mitigating

factor apart from the remorse or repentance of which it

might be evidenced. That Court has laid down that a plea of

guilty may be taken into account in mitigation of sentence -

(a) where it results from genuine remorse, repentance or

contrition; or

(b) where it results from a willingness to co-operate in the

administration of justice by saving the expense and

inconvenience of a trial, or the necessity of witnesses

giving evidence, or results from some other consideration

which is in the public interest, notwithstanding that the

motive, or one of the motives, for such co-operation may be

a desire to earn leniency,

and where to allow the plea a mitigatory effect would be

conducive to the public purposes which the sentencing judge

is seeking to achieve."

15. Earlier, when speaking for himself, King CJ added the following to the above proposition at 453:

"(2) A plea of guilty is not of itself a matter of

mitigation where it does not result from any of the above

motives, but only from a recognition of the inevitable, or

is entered as the means of inducing the prosecution not to

proceed with a more serious charge.

(3) In cases falling within (1), the judge is not bound to

make a reduction, but should consider the plea with all the

other relevant factors in arriving at a proper sentence.

(4) In assessing the weight to be attached to a plea of

guilty as a factor making for leniency, it is proper for the

judge to bear in mind that it is important to the

administration of justice that guilty persons should not

cause expense to the public and delay to other cases by

putting forward false stories and on the basis of such false

stories contesting the charges against them.

(5) The above propositions are not to be taken as weakening

in any way the principle that there must be no increase in

the sentence which is appropriate to the crime because the

offender has contested the charge."

16. Shannon was referred to with approval by Cox J (as he then was) in R v Rouse A64/1990. In that case I expressed general agreement with his Honour's reasons for judgment. See also Wright J in R v Dowie [1989] TASSC 44; (1989) Tas R 167 at 184. In R v Lyons A66/1993 (unreported, available on SCALE), each member of the court took the view that proposition (2) of King CJ in Shannon and set out above was correct. With respect to his observations in Dowie, Wright J said at 3 of his reasons for judgment in Lyons:

"Counsel for the respondent also submitted that in the

present case the learned sentencing judge was entitled to

reduce an otherwise appropriate sentence in light of the

fact that the accused had entered a plea of guilty. In aid

of this proposition he referred again to what I had said in

Dowie's case (supra) at 184 where I expressed the view that

a plea of guilty, whether accompanied by remorse or not,

entitled the offender to some discount. However, as I also

observed in the passage referred to, the effect of a plea of

guilty may have different weight in individual cases and

this weight may vary quite significantly from one case to

another. In the present circumstances I think that the

respondent is entitled to little, if any, weight for this

factor."

17. On an unsuccessful application for special leave to appeal the High Court noted that there was no error in principle in the judgments of the Court of Criminal Appeal in Lyons.

18. Slicer J recently turned his attention to the relevance of a plea of guilty in the sentencing process in Pavlic v R A51/1995 (unreported, available on SCALE). His Honour set out a series of cases showing that in general terms, the propositions set out by the majority in Shannon have gained widespread acceptance in Australia, although it may be noted that in Queensland and Victoria the position is regulated by statute. In my opinion, the views of the majority of the Full Court of South Australia in Shannon with respect to the relevance of a plea of guilty in the sentencing process accurately reflect the law in Tasmania.

19. In the present application, the learned sentencing judge did take the applicant's plea of guilty into account. He said that. However, he paid it "little regard" because in the words of King CJ it resulted "only from a recognition of the inevitable." It was perfectly appropriate for his Honour to take that view in the circumstances of this case. This ground fails.

20. In support of this ground, senior counsel for the applicant submitted:

1 "Assaults of this kind are not uncommon."

2 Aged 18 at the time the crime was committed, the

applicant was a youthful offender.

3 The applicant was in employment at the relevant time and

came from a supportive family background.

4 The applicant had not previously been in serious trouble.

5 The applicant was remorseful.

6 The applicant pleaded guilty.

7 A sentence of 4.5 years' imprisonment was far in excess

of the range of sentences previously imposed by this Court

for single counts of causing grievous bodily harm.

21. I have already dealt with the weight that should have been given to the applicant's plea of guilty. With respect to the question of remorse, the learned sentencing judge found, "I accept that he regrets his conduct, in part because of its effect on his own life. And yet I suspect that he lacks insight into the cause and effect of his conduct."

22. The other factors set out above were taken into account. The learned sentencing judge said (6):

"I accept as factors of mitigation his youthfulness, good

character and absence of previous convictions. I accept

that the conduct was unpremeditated and alcohol related."

23. It is true that a sentence of 4.5 years' imprisonment on a single count of causing grievous bodily harm is in excess of "the tariff". In her book, Sentencing in Tasmania, Professor Warner reports at 323, that between 1978 and 1989 the maximum sentence imposed upon conviction for one count of wounding or one count of causing grievous bodily harm was three years. It was imposed in 1978. During the same period single convictions for the same crimes attracted three sentences in the range of two to three years and all the other sentences were eighteen months - two years or less. In Brown v R A15/1987, a sentence of four years was upheld on conviction of one count of wounding and one count of causing grievous bodily harm. Professor Warner reports this decision at 322 saying:

"In Brown the Court of Criminal Appeal upheld a sentence of

4 years imposed upon a man acquitted of two counts of

attempted murder and convicted of one count of wounding and

one count of causing grievous bodily harm. The appellant's

wife had left him and was at the house of another man when

the appellant fired a .22 rifle through a window at his wife

10 - 15 feet away seriously wounding her hand and slightly

wounding her chest. A short time later the man fired a shot

at the appellant and he fired back striking him in the chest

and causing grievous bodily harm."

24. Perusal of the records of this Court for the period after 1989 discloses that the Court has not, during that period, imposed a sentence as long as 4 1/2 years upon conviction for a single count of grievous bodily harm. Counsel for the applicant submitted that this sentence was in the order of twice as long as the average sentence imposed for one count of causing grievous bodily harm. I think that submission is substantially correct.

25. The learned sentencing judge acknowledged that the sentence he imposed was "equivalent to the higher range of a sentence of imprisonment" (sic) (6). He said that the mitigatory factors were "outweighed by the callousness and purposelessness of the conduct and the consequences to the victim."

26. The criminal conduct constituting the commission of the crime was of the very worst kind. The victim was a total stranger to the applicant. He was acting in a peaceable and lawful manner. He said nothing and did nothing to provoke the savage attack. The applicant did not claim to the contrary. The commission of the crime caused very serious and potentially fatal injuries. In consequence of the commission of the crime the victim died, albeit the crime was not the cause of that death within the meaning of the Criminal Code, s153(2). Leaving Mr Stephens propped up against the wall, unconscious and bleeding to return to the party, demonstrated a depraved, callous disregard for the welfare of a human being seldom encountered in a civilised society. Ordinary right thinking members of the community would be outraged and revulsed by the applicant's criminal conduct and demand that it be denounced.

27. The learned sentencing judge said that the applicant's criminal conduct "made the victim helpless to the subsequent violence and indifference of others" and that but for the applicant's crime "the death would not have occurred". His Honour did not expressly state that he was taking into account the death of the deceased as a consequence of the applicant's conduct but it might perhaps be inferred that he did so. It is clear that the learned sentencing judge did not take the death of the deceased into account in a way that would offend the principle clearly spelled out in R v de Simoni (1980 - [1981] HCA 31; 1981) 147 CLR 383, viz, an offender should not be sentenced for an offence more serious than that of which he has been convicted. See also R v Causby (1984) Tas R 54; Lovegrove v R (1961) Tas SR 106.

28. In the course of his submissions counsel for the applicant referred to R v Boyd [1975] VicRp 16; (1975) VR 168. At 172, Gowans J (with whose reasons the other members of the court agreed) set out a number of principles applicable to the sentencing process, the fourth and fifth of which were:

"(4) Among the surrounding circumstances of criminal acts

to be regarded are the consequences of those acts; these are

relevant to any sentence which ought to be imposed. (I

refer to an article by Professor Goodhart 80 LQR 18 - 20,

the views of which were adopted by the Court of Criminal

Appeal in Tasmania in Wise v R, (1965) Tas SR 196, per

Crisp, J at pp201 - 2 and per Neasey, J at p209; and to R v

Webb[1971] VicRp 16; , (1971) VR 147 at p151.)

(5) If the consequences of the prisoner's acts were not

such as would reasonably have been foreseen by him, then

such consequences ought not to be used against him; but if

they ought to have been foreseen by him they are relevant

circumstances; the consequences, however, should not be

allowed to take over from all other considerations. (I

refer to what was said by Crisp J in Wise v R supra)."

29. By proposition (5) I understand his Honour to be saying that if the prisoner did not foresee a particular consequence of his criminal act, and if that consequence was not one that he ought to have foreseen, then it should not be taken into account in the sentencing process. With the greatest respect to his Honour, I do not consider Wise v R (1965) Tas R 196 to be authority for that proposition.

30. In Paynter v R CCA 95/1964, the court cited the note of Dr Goodhart referred to by Gowans J and without expressing any limitation by way of any test of foreseeability, held that consequences of criminal conduct may be taken into account.

31. Wise v R (supra) was an appeal against sentence in a case of driving at a speed and in a manner dangerous to the public. The applicant did not cause death or bodily harm as a result of the offence. The following is the passage to which Gowans J referred:

"Another argument presented to us was based on the

proposition that as the offender in this case had not in

fact caused death or bodily harm by his dangerous driving,

he was on that account entitled (and I stress the word) to

be treated more leniently than if he had. I SAY NOTHING

AGAINST THE PROPOSITION THAT CONSEQUENCES MAY BE MATERIAL TO

SENTENCE, WHATEVER BE THE ARGUMENTS OF STRICT MORALITY (CF

80 LQR P18-20) FOR THE FACT IS THAT IN LEGAL EXPERIENCE THEY

HAVE CONSTANTLY BEEN SO REGARDED (SEE PAYNTER SUPRA). But

there is a non sequitur I suggest in the proposition which

learned counsel addressed to us the effect of which I think

is fairly expressed in this fashion.

A If a criminal act causes death or injury it may be

punished severely, therefore

B If it doesn't cause death or injury it may not be

punished severely. The second does not follow in my view

and I don't pursue the matter further." (My emphasis.)

"Nor does it assist the applicant to argue that because no

death or injury resulted from the acts in question the

penalty should have been lighter. I AGREE WITH THE

PROPOSITION THAT THE RESULTS OF CRIMINAL ACTS MAY PROPERLY

BE TAKEN INTO CONSIDERATION IN CONSIDERING PUNISHMENT (SEE

DR GOODHART'S NOTE IN 80 LQR 18), but I should have thought

that if death or injury had resulted in the present case the

penalty might well have been more substantial." (My

emphasis)

33. I do not understand either Crisp J or Neasey J to be expressing the view espoused by Gowans J in Boyd, that a consequence of a criminal act that was neither foreseen nor reasonably foreseeable is to be ignored. It is worth setting out part of Dr Goodhart's note in 80 LQR 18 with respect to the relevance of consequences in the sentencing process. At 19, Dr Goodhart referred to a dangerous driving case in which a man killed a motor cyclist, and quoted the sentencing judge who said, "it would be quite wrong for the court to measure a man's culpability by the amount of damage he did." Dr Goodhart commented:

"This is a view on which there seems to be a division of

judicial opinion. From the stand point of strict morality

it is correct to say that a man's moral guilt must be

measured by the degree of his negligence and not by the

consequences of his act. It is less certain, however,

whether this moral measurement should be applied to legal

punishment, because other considerations may be of

importance. There is, of course, the feelings of those who

have suffered from the accident ... Such feelings may be

nothing more than thwarted desire for retribution, which

undoubtedly is reprehensible, but on the other hand they may

represent the ordinary man's conception of justice which is

a necessary factor in establishing respect for the law. Of

greater importance, however, is the deterrent effect of

punishment which has been said to be the primary

justification for the criminal law."

34. I understand Dr Goodhart's view to be that there is a good argument for the proposition that the consequences of a crime are relevant to the issue of deterrence and, I would add, retribution.

35. In R v Holness and Banks 39/1970, Burbury CJ referred to Dr Goodhart's article and the judgment of Crisp J in Wise (supra). His Honour held that the consequences are relevant but, of course, possess no priority over other considerations in the sentencing process. In R v Bayley 77/1972, Burbury CJ said that the law does take into account the consequences in determining the appropriate punishment. It is, of course, fair to observe that both Holness and Banks and Bayley were cases of manslaughter in which death was an ingredient in the crime. In Hardy v R CCA 8/1980, the applicant sought leave to appeal against sentences passed upon conviction for stealing and obtaining goods by a false pretence. At 1 of his reasons for judgment the Chief Justice said:

"The consequences of a criminal act may properly be taken

into account in considering sentence, notwithstanding that

those consequences may be fortuitous and notwithstanding

that they may not have any direct correspondence to the

extent of the moral turpitude of the accused's act."

36. His Honour referred to Wise as authority for that proposition. In R v Bennett CCA 17/1990, I observed, "it was appropriate to take into account the consequences of the applicant's criminal conduct" and Crawford J said, "it was proper to take into account the actual consequences which flowed from the criminal act to the respondent."

37. It seems to me, with respect to those who might hold a different view, that principle (5) expressed by Gowans J in Boyd (supra) and set out above, has not been the law in Tasmania.

38. The position in South Australia is not entirely clear. In Feldman v Samuels (1956) SASR 55 Napier CJ held that a consequence was relevant in the sentencing process but went on to say at 57 that a fortuitous event "something unintended and unforeseeable" was something that ought to be ignored. In R v Teremoana (1990) 54 SASR 30, Cox J said at 38:

"The harm that a crime causes the victim will usually be a

relevant factor in sentencing the defendant, certainly where

the harm was intended and sometimes where it was not,

provided, of course that to take it into account would not

amount to punishing the defendant for some other serious

crime. So far as unintended or unforseen consequences are

concerned, it is not possible, I think to generalise. If a

defendant foresaw that his criminal act would probably cause

injury to another, obviously that circumstance might be

taken into account when imposing sentence, even though he

did not actually intend to cause the injury. What of the

consequence physical harm, say, or fear that was not

foreseen? That will depend on the particular

circumstances."

39. His Honour then went on to refer to a number of cases, most of which I have referred to above, and left unresolved the question of taking into account consequences that were neither foreseen nor ought to have been foreseen.

40. R v Webb [1971] VicRp 16; (1971) VR 147 was referred to by Gowans J in Boyd. This was a case of an appeal against a sentence for rape. One of the grounds of appeal was that error occurred in imposing sentence in that the sentencing judge took into account the fact that a child was conceived as a result of the intercourse between the applicant and the complainant. Winneke CJ, delivering the judgment of the court, said at 150 - 151:

"It is always open to a judge to have regard to the fact

that no evil effect resulted from the crime to the victim.

That is a common occurrence and a fact properly taken into

account. (I interpolate that this is so regardless of

whether that was entirely fortuitous) But conversely, a

learned judge is equally entitled, in our view, to have

regard to any detrimental, prejudicial, or deleterious

effect that may have been produced on the victim by the

commission of the crime."

41. Boyd was referred to in McCormack and Ors v R [1981] VicRp 11; (1980) 2 A Crim R 405. The judgment of the Court of Criminal Appeal in Victoria was delivered by Young CJ. At 409 the learned Chief Justice referred to Wise and Boyd and held that in the case under consideration the relevant consequence was foreseeable and thus was an aggravating feature in the sentencing process. I have been unable to find a subsequent case in Victoria in which the court has directly dealt with the relevance of a consequence that was neither foreseen nor foreseeable.

42. This overlong excursion into this issue leads me to conclude that in Tasmania at least, it has long been held that the consequences of a criminal act are relevant in the sentencing process regardless of whether they were foreseen or ought to have been foreseen. They are relevant to the issue of deterrence and denunciation. However, what weight such consequences have in the sentencing process will depend on the facts of each case. Obviously, an unforeseen consequence will have less weight than a foreseen consequence and, a consequence that was neither foreseen nor ought to have been foreseen, will have even less weight.

43. In this case I conclude that it was appropriate for the learned sentencing judge to take into account the death of the deceased as a consequence of the applicant's crime even though that crime was not the cause of death within the meaning of the Code, s153(2). First, the violence was of such ferocity that injury was caused to the mouth and nose and the resultant impact with the roadway caused a laceration to the parietal bone and a complex fracture to the skull. The victim was immediately rendered unconscious. In these circumstances death ought to have been foreseen as a real likelihood, albeit not as a result of the conduct that in fact caused it. Second, the circumstances surrounding the criminal act were such that deterrence and denunciation loomed large in the sentencing process so that even if death was neither foreseen by the applicant nor reasonably foreseeable, it was a relevant consideration in the sentencing process.

44. The learned sentencing judge's reasons for sentence make it clear that he placed great weight on deterrence and retribution in the sentencing process. He was told by the learned prosecutor with respect to the crimes committed by all three men:

"It would not be overstating the matter to assert that the

circumstances surrounding and the events culminating in, the

death of Mr Stephens generated outrage and revulsion in the

Burnie community. Mr Stephens was a well liked and

respected member of that community. This sense of outrage

was exacerbated by the withdrawal of the murder charges

against the accused and the substitution of lesser charges

prompting the circulation of a petition calling for changes

to the Criminal Code. The petition was circulated widely on

the North West Coast and attracted 7.5 thousand signatures.

The existence of the petition prompted a decision by the DPP

to accede to the request of Defence Counsel for a change of

venue from Burnie to Launceston."

45. With respect to this submission the learned sentencing judge said:

"The call for a change to the law governing the crime of

murder is not relevant to the determination of penalty for

crimes which we as a society have defined and proscribed.

Regard is had to the expression of community concern about

the death of a citizen insofar as it relates to the crimes

for which the offenders have been convicted but not for that

which some members of the community believe should be the

law.

Regard is had to the understandable community concern that

the crimes were committed against a person who was walking

in a public street and had not intruded in any way into the

activities of the offenders."

46. With respect to the "tariff" argument I venture to repeat what I said in R v O'Brien A43/1987:

"As part of the process of review, an appellate court can

and should have regard to comparative sentences imposed

within its jurisdiction. Adam and Crockett JJ in

Williscroft [1975] VicRp 27; (1975) VR 292 said at 301:

'So, too, a judgment as to what is appropriate by way of

sentence must depend upon knowledge of sentences for the

same or similar offences which is derived from personal

experience or any other source'."

Barwick CJ said in Griffiths v R (1976 - [1977] HCA 44; 1977) 137 CLR 293

at 310: "Gross departure from what might in experience be

regarded as the norm MAY be held to be error in point of

principle." (My emphasis)

47. On the other hand, having regard to the range of sentences imposed for a crime does not mean that every sentence must fall within that range. As Wright J said in R v Dowie (supra) at 186:

"I find the so called 'tariff' approach to sentencing of

little value, particularly where cases supposedly

illustrative of the tariff are few, or the relevant facts

are not directly comparable. A court may frequently be

aided by the provision of statistical data as to sentences

previously imposed in this State, especially if it

illuminates the dispositions made where a particular type of

relationship exists (see Tracey and Ors v The Queen (1987) Tas

R 108), but in my view, it cannot allow such material to

overshadow or displace its own evaluation of the gravity of

the offence before it in light of all the known facts and

circumstances."

48. This Court has frequently held that denunciation of criminal conduct is a relevant factor in the sentencing process. See for example, Austin v R (1971) Tas SR 227; R v Hancox A46/1980; George v R A19/1986; McGhee v R (No 2) A69/1994 (unreported, available on SCALE). The same view is taken in other jurisdictions. See, eg, R v Valentini [1980] FCA 133; (1980) 48 FLR 416 at 420; R v Dixon (1975) 22 ACTR 13 at 17; McKenna v R (1992) 63 A Crim R 452 at 461; Channon v R (1978) 20 ALR 1 per Brennan J at 5; R v Williscroft and Ors [1975] VicRp 27; (1975) VR 292. In the last mentioned case, Adam and Crockett JJ said at 299:

"The purposes of punishment are manifold and each element

will assume a different significance not only in different

crimes but in the individual commission of each crime.

General deterrence and retribution are elements that must

assume greater importance when the crime in question is a

serious one, has been committed in a particularly grave

form, and its contemporary prevalence is the cause of

considerable community disquiet."

49. Those observations are all apposite to the present application.

50. In assessing the weight that ought be given to denunciation, regard may be had to informed public opinion. See R v Hancox (supra); R v Causby (supra) at 59; R v S A73/1990 (unreported, available on SCALE). It seems to me that "informed opinion" in this context means rational balanced opinion based upon all the material put to the court for the purpose of imposition of sentence and an awareness of the range of penalties imposed in the past in like cases. Analogy is to be found in the field of administrative law. In cases concerning apparent bias the courts have formulated the "informed bystander" or "fair minded observer" test. It is settled law that this notional person has "attribute(d) to him or her knowledge of the actual circumstances of the case" per Mason CJ, Brennan J in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 87. It follows from the foregoing that the prosecutor's statement about the public outrage that had in fact occurred was immaterial. On the issue of denunciation or retribution, the community delegates to the Court the task of identifying, assessing and weighing the outrage and revulsion that an informed and responsible public would have to criminal conduct. The Court's duty is to take that into account in the sentencing process. If the Court fails to responsibly discharge the duty that has been entrusted to it by the community, public confidence in the system of justice will be eroded. Lawton LJ put it this way in Sargeant v R (1974) 60 Cr App R 74 at 77:

"I will start with retribution. The Old Testament concept

of an eye for an eye and tooth for tooth no longer plays any

part in our criminal law. There is, however, another aspect

of retribution which is frequently overlooked: it is that

society, through the courts, must show its abhorrence of

particular types of crime, and the only way in which the

courts can show this is by the sentences they pass. The

courts do not have to reflect public opinion. On the other

hand courts must not disregard it. Perhaps the main duty of

the court is to lead public opinion. Anyone who surveys the

criminal scene at the present time must be alive to the

appalling problem of violence. Society, we are satisfied,

expects the courts to deal with violence. The weapons which

the courts have at their disposal for doing so are few. We

are satisfied that in most cases fines are not sufficient

punishment for senseless violence. The time has come, in

the opinion of this Court, when those who indulge in the

kind of violence with which we are concerned in this case

must expect custodial sentences."

51. Jordan CJ said in R v Geddes (1936) 36 SR (NSW) 554 at 555:

"The judge should impose such judgment as, having regard to

all the proved circumstances of the case, seems, at the same

time, to accord with the general moral sense of the

community in relation to a crime committed in such

circumstances and to be likely to be a sufficient deterrent

both to the prison and to others."

52. The learned sentencing judge quite correctly placed great emphasis on denunciation in this case. The crime and the aggravating circumstances were horrific. Informed and restrained public opinion would point out that violent criminal conduct is very frequently committed by youthful offenders and sentences must be imposed that will act as a deterrent to that category of offenders. If the submission of senior counsel for the applicant that assaults of this kind are not uncommon is correct, greater emphasis needs to be placed on the elements of general deterrence and denunciation in the sentencing process. The learned sentencing judge did this. He acknowledged that youth and absence of prior serious conviction weighed heavily in the sentencing process, but held that the circumstances of, and surrounding the commission of the crime were so serious and would so outrage informed public opinion that this aspect of the sentencing process weighed even more heavily than youth and absence of serious prior conviction. In my opinion this approach was appropriate.

53. Absent specific error, appellate review of a sentence does not involve mathematical formulae or rules for the measurement of human behaviour. It is a matter for the exercise of judgment after giving appropriate weight to all the relevant factors. However, appellate review on the ground of general error calls for the exercise of a judgement different from that exercised by a sentencing judge. On appeal, the issue is whether the appellate court is of the view that in all the circumstances, the sentence, in this case eighteen months longer than that imposed for a single count of causing grievous bodily harm over the last seventeen years, is so long that in some undefined way the sentencing discretion must have miscarried. On this application, the heinous nature of the crime, its consequences and the importance of denunciation leaves me unpersuaded that there has been general error in the exercise of the sentencing discretion. I would grant leave but dismiss the appeal.

CRAWFORD J The applicant has applied for leave to appeal against a sentence of 4 years, 4 months' imprisonment imposed following his plea of guilty to one count of causing grievous bodily harm contrary to the Criminal Code, s172. He was jointly indicted with Ivan Allan Thomas and Damien David Sutton for crimes committed against the late Mr Kerry Stephens. Thomas pleaded guilty to robbery and assault and was sentenced to 2 years, 10 months' imprisonment. Sutton pleaded guilty to manslaughter and was sentenced to 5 years, 4 months' imprisonment. The learned judge took into account that each man had spent about 2 months in prison immediately following arrest. Effectively therefore the sentences of imprisonment were for 4.5 years, 3 years and 5.5 years respectively.

2. Counsel for the applicant formally abandoned two of the proposed grounds of the appeal and argued only two grounds, they being that the judge erred in law by failing to pay regard or sufficient regard to the applicant's plea of guilty and by imposing a sentence that was manifestly excessive.

3. The facts of the case are largely contained in the reasons for judgment of Underwood J and I will not repeat all of them. The assault by the applicant on Mr Stephens could not be proved to have caused death. If it could, the applicant might have been convicted of manslaughter and sentenced for that crime. The assault by Sutton on Mr Stephens did cause death and as a result he was guilty of manslaughter and was sentenced accordingly. None of the three offenders acted in concert with another.

4. Without warning or provocation the applicant struck Mr Stephens twice in the face. Mr Stephens fell backwards, struck his head on the road and was rendered unconscious. The blows caused injuries to the mouth and nose, while the impact of Mr Stephens' head on the road when he fell resulted in serious injuries to his skull and brain, including an abrasion and laceration over the parietal bone and a complex fracture of the skull together with a contracoup injury causing bilateral peri-orbital haematomas, fractures to the roof of the orbit and contusions to the inferior surfaces of the anterior lobes and temporal lobes of the cerebral hemispheres. The head injuries were described by a pathologist as life threatening and as injuries which could have led to death. But, as I have already indicated, death could not be proved to have been caused by them. The applicant lifted the unconscious Mr Stephens under his arms and dragged his body onto the footpath where he left him in a semi-sitting position against a wall. Thomas and Sutton subsequently played their criminal parts in the events and Mr Stephens died as a result of being kicked by Sutton, in the sense that Sutton's actions at least accelerated the time of death.

5. I deal first with the ground which complains that the learned judge failed to pay sufficient regard to the applicant's plea of guilty. In the course of sentencing, the judge said that "little regard is paid to his plea of guilty. I regard the plea as an acceptance of the inevitability of a conviction for the crime with which he is charged". No other mention was made of the effect of the applicant's plea of guilty on the sentence which was imposed. Counsel for the applicant accepted that the plea amounted to acceptance by the applicant that it was inevitable that he would be convicted. It was firstly submitted on behalf of the applicant that his Honour paid no regard to the plea in this case, an assertion which had no basis. "Little regard" is what his Honour said he paid and that is more than no regard. Alternatively, it was submitted for the applicant that insufficient regard was paid to the plea, an assertion of specific error which can only succeed if "little regard" was insufficient.

6. In R v Shannon (1979) 21 SASR 442 all five members of the South Australian Supreme Court were of opinion that if an accused pleads guilty simply because he realises that a conviction is inevitable he has no entitlement to have his sentence reduced. In the Full Court in R v Gray [1977] VicRp 27; (1977) VR 225 at 232, it was the majority view that a judge has a very wide discretion which should not be defined or prescribed. The judges considered that there would be cases where the circumstances in which a plea of guilty is made and which is not made out of remorse, may in a particular case persuade a judge to reduce the sentence, but a judge is not obliged to do so simply because the plea has been made. In this Court in R v Lyons A66/1993 (unreported, available on SCALE) the plea of guilty was regarded as no more than acceptance of the inevitable. At one point at 3, Cox J did not think the plea entitled Lyons to any credit although he later said it "entitled him to little mitigation of penalty". Wright J at 3 pointed out that a plea of guilty may have different weight in individual cases and in Lyons' circumstances it was entitled to "little, if any, weight". Zeeman J at 2 regarded the plea as having no operation by way of mitigation. Leave to appeal to the High Court was rejected in that case.

7. Last year a differently constituted bench of this Court considered the mitigatory effect of a plea of guilty in Pavlic v R A51/1995 (unreported, available on SCALE). It was a much different case than here, for not only did Pavlic plead guilty to a considerable number of crimes but he was also extremely co-operative with police officers to the extent that if he had not volunteered information to them he would not have been charged with a number of the crimes. Nevertheless the members of the Court expressed some views which are of assistance. The Chief Justice at 3 said that Pavlic's remorse, the fact that he pleaded guilty and the fact that he volunteered information which would not otherwise have been known to the police, were mitigating factors but his Honour rejected a suggestion that the Court endorse a formalised approach which would require applying nominated percentage "discounts" to the "head sentence". The Chief Justice said:

"Considerations of this kind are no different in kind from

and should be treated in the same way as all the other

considerations which are relevant to the exercise of the

sentencing discretion. It is not regarded as appropriate to

reflect the other aggravating and mitigating circumstances

relevant to sentence in a list of premiums or discounts each

expressed as a percentage and I can see no reason why

mitigating circumstances arising out of remorse, a plea of

guilty or assistance given to the police should be treated

differently".

8. Wright J, at 3, said that the most which can be said is that, in general, irrespective of remorse or altruistic purpose, a plea of guilty per se justifies some reduction in an otherwise appropriate sentence. At 4 Wright J said that the weight of the plea may vary greatly in the evaluative process undertaken by a court. Like the Chief Justice he rejected the suggestion that the appropriate "head sentence" should be determined and an identifiable percentage or fraction should then be discounted upon considering the plea of guilty. His Honour said that "in my opinion there is no justification for treating the guilty plea in this specialised way. It is a factor deserving weight, but it is not weight which can or should be assessed as a separate secondary process. All mitigating features must be considered but none justifies or requires a specific quantified discount". Slicer J, at 5, considered that a plea of guilty without more, was a matter going to mitigation of penalty but the quality of the mitigating effect fell to be assessed on a consideration of a number of matters including what his Honour referred to as "the quality of the evidence available to the prosecution", which I think would embrace a consideration that the plea of guilty was made solely or mainly because conviction was regarded as inevitable. Like the other members of the Court, Slicer J rejected a mathematical approach to the question of what discount ought to be given in a particular case.

9. Having regard to these authorities I am of the opinion that the paying of "little regard" to a plea of guilty made out of recognition that a conviction was inevitable, did not amount to an error of law.

10. I next deal with the other ground of appeal which complains that the sentence of imprisonment, which was effectively one for 4.5 years, was manifestly excessive. The crime committed by the applicant was causing grievous bodily harm. The injuries caused by the applicant's assault on Mr Stephens amounted to "grievous bodily harm" as that expression is used in the Code, s1 because they amounted to "bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause serious injury to health". The Crown accepted that he did not intend to cause grievous bodily harm. In his submissions to the learned judge the applicant's counsel said that the assault was not premeditated but was a spontaneous act and added that the applicant "had no idea that his actions would have the serious consequences that they had". Later, the same counsel submitted that the applicant "must be dealt with on the basis that he neither intended nor foresaw bodily injury of such a nature as to endanger or (be) likely to endanger life nor that he intended to maim, disable or disfigure". Counsel relied on a passage to that effect in my judgment in the Court of Criminal Appeal in R v Bennett 17/1990 at 4, a reliance which was misplaced for Bennett was a case of wounding and not of causing grievous bodily harm.

11. The effect of a plea of guilty is a solemn confession of the essential ingredients of the crime (R v Tonks [1963] VicRp 19; (1963) VR 121 at 127; R v Causby (1984) Tas R 54 at 61) and an admission of all the facts essential to the offence (Di Camillo v Wilcox (1964) WAR 44 at 46). The necessary mental state for the commission of the crime of causing grievous bodily harm, contrary to Code, s172, is either intention to cause such harm or foresight of the likelihood that it would be caused. Vallance v R [1961] HCA 42; (1961) 108 CLR 56; R v Bennett (1990) Tas R 72. As the Crown disclaimed asserting that the applicant intended to cause grievous bodily harm, the case was therefore one of subjective recklessness in the causing of such harm and the applicant had to be sentenced on that basis. That is particularly how this Court must regard the case. Notwithstanding the assertion by the applicant's counsel to the learned judge which was suggestive of the required mental element not being present, there was no appeal from the conviction of the applicant for the crime and the plea of guilty must be regarded as amounting to a formal admission that he assaulted Mr Stephens reckless of the likelihood, which he foresaw, that he would cause grievous bodily harm.

12. The unprovoked punching of another twice in the face is an outrageous act, more so when it is done with foresight that grievous bodily harm might result. There is of course no reason to think that the applicant had foresight that Mr Stephens would sustain fractures and brain damage as severe as resulted when his head hit the road, but nevertheless a court is entitled to have regard to those serious consequences which flowed naturally and ordinarily from his criminal conduct. Counsel for the applicant did not suggest the contrary. However, notwithstanding these comments, I have no hesitation in concluding that 4.5 years' imprisonment for the applicant's crime was a manifestly excessive sentence.

13. The sentence was a long way above the usual sentence imposed for the crime of committing an unlawful act intended to cause bodily harm contrary to the Code, s170, a crime which is generally regarded as worse than the applicant's crime. Professor Warner in Sentencing in Tasmania at 320 - 321 reveals that in the twelve years to 1989 no longer term of imprisonment than three years was imposed for that crime. I can find no relevant record of a sentence since 1989 and prior to the sentencing of the applicant which was longer than three years for it. Since 1978 however there have not been a great number of sentences for it, but the sentence was also well above the usual range of sentences imposed during the previous eighteen years for the crime of wounding or causing grievous bodily harm contrary to s172, being the section under which the applicant was convicted. Based on a consideration of twelve years to 1989, Professor Warner, at 322, concluded that sentences of four years' imprisonment for multiple counts, and three years for a single count, were clearly at the top of the range, and sentences in excess of eighteen months were quite rare. Statistics available to me for the period from 1990 until the applicant was sentenced confirm that a sentence above three years is extremely rare.

14. Although the applicant's criminal conduct on this occasion was reprehensible it was nowhere near as bad as that seen by courts in many other cases under s172. Worse examples include cases involving the use of knives, firearms and baseball bats, preceded by planning and preparation. Two blows with a fist to the face delivered with effectively no planning and preparation, is a far cry from cases such as those, so far as criminality and culpability are concerned. Also I agree with what was said by Green CJ in R v Marshall 70/1990 at 5 that the difference between the culpability of a person who commits a breach of s172 recklessly and that of a person who does so with the specific intention of causing grievous bodily harm, is significant. Courts should reflect that difference in sentences they impose.

15. Courts properly and frequently refer to the range of penalties imposed in other cases. The reason for doing so is to be found in the need for consistency in punishment, a concept referred to by Mason J in Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610 - 611:

"Just as consistency in punishment a reflection of the

notion of equal justice is a fundamental element in any

rational and fair system of criminal justice, so

inconsistency in punishment, because it is regarded as a

badge of unfairness and unequal treatment under the law, is

calculated to lead to an erosion of public confidence in the

integrity of the administration of justice. It is for this

reason that the avoidance and elimination of unjustifiable

discrepancy in sentencing is a matter of abiding importance

to the administration of justice and to the community."

16. Notwithstanding the justifiable concerns of Wright J in R v Dowie [1989] TASSC 44; (1989) Tas R 167 at 185 - 186 that the application of the so called tariff principle must not shackle the exercise of the discretion of the sentencing judge, it is nevertheless a valuable tool, and one which is frequently applied, when assessing whether a particular sentence is manifestly excessive. It must of course be kept in mind that it is the seriousness of the criminal conduct, more than the category of the crime, which is of paramount importance in the assessment of punishment under the Criminal Code which prescribes, for almost every crime, a maximum sentence of imprisonment of 21 years. However applying a "yardstick" graduated with the known range of sentences for crimes against s172 over the previous eighteen years, I have no hesitation in concluding that the length of the sentence of 4 1/2 years' imprisonment imposed with respect to the applicant was far greater than sentences usually imposed for crimes committed in breach of that section in circumstances where the criminal conduct involved was more reprehensible and deserving of greater condemnation than the criminal conduct of the applicant. On its face the sentence offended the "fundamental element in any rational and fair system of criminal justice" of consistency in punishment. Lowe v R (supra) at 610. In the circumstances the applicant has a sense of grievance which, it may be argued with some force, is justified.

17. I turn to other considerations. The applicant was 18 years of age at the time of the crime and had never been in serious trouble. He came from a good supportive family and was well regarded by others. He had been diligent in his studies and was well regarded by his employer. There was nothing in his life or background to explain his conduct. These considerations, particularly the applicant's youthfulness and good character, would commonly suggest a sentence of less severity than might otherwise be the case. However, violence of the nature and consequences of his crime, committed in a public place without provocation, clearly demands a sentence of substantial imprisonment by way of general deterrence, and considerations of youth and good character must take second place. See Lahey v Sanderson (1959) Tas SR 17 at 21. Nevertheless, the age of the applicant is a mitigating factor, albeit not to the extent which might apply in a case of a crime not regarded as so heinous. See R v Bennett (supra) per Underwood J at 2 and my judgment at 6; Jeffrey v R 69/1979 per Green CJ at 2.

18. On the hearing of the appeal it was suggested that the sentencing judge was entitled to have regard to Mr Stephens' death being a consequence of the applicant's crime. With respect to counsel I find the suggestion offensive to principles of fairness and justice and one which ought be attractive only to unreasoning emotion. On the evidence the assault by Sutton caused Mr Stephens' death. It was not open on the evidence to find that the violence administered earlier in the evening by the applicant caused death. If the contrary was the case he would have been convicted of murder or manslaughter and sentenced accordingly. He was not to be sentenced for a crime more serious than that of which he was convicted. Lovegrove v R (1961) Tas SR 106 at 107; R v Causby (supra) at 65; R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. He was not to be sentenced because he was suspected of having committed a murder or a manslaughter, for that would offend the same principle, nor was he to be sentenced for almost committing a murder or a manslaughter.

19. Subject to those considerations it is undoubtedly a correct statement of principle that the actual consequences of conduct constituting a crime may be taken into account (although, as will be seen, the validity of that statement must not be regarded without exception). It was so stated in Wise v R (1965) Tas SR 196 at 202 and 209. In Hardy v R 8/1980 at 1, Green CJ included even fortuitous circumstances:

"... the consequences of a criminal act may properly be

taken into account in considering sentence, notwithstanding

that those consequences may be fortuitous and

notwithstanding that they may not have any direct

correspondence to the extent of the moral turpitude of the

accused's act see Wise v R (1965) Tas SR 196."

20. A contrary view, also based on Wise v R, was expressed by Gowans J in R v Boyd [1975] VicRp 16; (1975) VR 168 at 172:

"If the consequences of the prisoner's acts are not such as

would reasonably have been foreseen by him, then such

consequences ought not to be used against him; but if they

ought to have been foreseen by him they are relevant

circumstances; the consequences, however, should not be

allowed to take over from all other considerations. (I

refer to what was said by Crisp, J, in Wise v R, supra.)"

21. There was nothing in Wise v R to support either of the conclusions of Green CJ and Gowans J with regard to fortuitous consequences, but the view of Gowans J was shared by Napier CJ in Feldman v Samuels (1956) SASR 55 at 57 who said that "if I could regard it as a fortuitous event something unintended and unforeseeable then I should think that it ought to be ignored". In R v Teremoana (1990) 54 SASR 30, Cox J, with whom Jacobs J agreed, thought that foreseeable harm would normally be taken into account but he refrained from expressing an opinion as to consequences not foreseen nor reasonably foreseeable. I conclude that there is no satisfactory line of authority on the point in question.

22. Whether the test of a consequence which is foreseen or which is reasonably foreseeable is the correct one may, I think, be safely left for determination in another case on another day. In this case, although death was a foreseeable consequence of the applicant's conduct and although death did in fact result from his conduct in the sense that, but for it death would not have resulted, it cannot be said that Mr Stephens' death was caused in a manner which was reasonably foreseeable, not that it was caused by the applicant's conduct in a legal sense, that is to say, in the sense of a real or effective cause, a causa causans. The applicant is to be punished for assaulting Mr Stephens in circumstances where he had foresight that grievous bodily harm was a likely result and it in fact resulted. Further, the serious head injuries suffered by Mr Stephens as a result of being punched by the applicant and his head striking the road, were life threatening and might in fact have led to death if the intervening acts of Thomas and Sutton had not occurred. The applicant deserved to be sentenced for causing injuries of that nature, injuries which gave rise to the possibility of death as a consequence. The injuries and that possibility were reasonably foreseeable and were directly caused, in a legal sense, by his actions. But to increase his term of imprisonment because death in fact resulted, at the hands of someone else, in the circumstances of this case, offends all senses of fairness and justice. Death caused in that way was not foreseeable nor in any legal sense may it be said to have been caused by or to be a consequence of the applicant's crime. The chain of causation was broken by the intervening actions of others, particularly those of Sutton who the law holds criminally responsible for the death and who was punished for it. The act of Sutton which caused death must be regarded in the sense of a novus actus interveniens (or nova causa interveniens).

23. In obiter dicta in Smee (1985) 19 A Crim R 261 at 263, Thomas J, with whom McPherson J concurred, referred with disapproval to the taking into account of circumstances that are too remote from the facts that constitute the offence. That perhaps encapsulates my thoughts about taking into account Mr Stephens' death in this case. It was a consequence which, by reason of what caused it, was too remote to the extent that it would be unfair and unjust to have regard to it as a consequence of the applicant's crime. The contrary may well have been the case if, for example, he had left Mr Stephens lying unconscious on the road and a motor vehicle had subsequently run over him causing his death. He might of course have become liable for conviction of manslaughter in that circumstance, but putting aside that consideration it might then fairly have been said that he deserved to be punished having regard to the consequence of death because it was reasonably foreseeable and because he caused it in a legal sense.

24. I respectfully agree with the views of Underwood and Zeeman JJ that the sentencing judge was required to identify, assess and weigh the outrage and revulsion that an informed and responsible public would have in response to the applicant's crime but the actual reaction of the community in this case was not a relevant matter. Counsel for both parties agreed and I have nothing to add to the discussion.

25. The conclusion I have come to is that a sentence of imprisonment effectively for 4.5 years was manifestly excessive and one which ought to be regarded as having given rise to a justifiable sense of grievance on the part of the applicant. It was substantially greater than I would intuitively have imposed and, as I have explained, was far greater than sentences usually imposed for crimes committed in breach of s172 in circumstances where the criminal conduct involved was more reprehensible and deserving of greater condemnation than the criminal conduct of the applicant. For these reasons I would grant leave to appeal, allow the appeal and set aside the sentence imposed by the learned sentencing judge. The extent of the grievous injuries in fact suffered by Mr Stephens as a direct consequence of the criminal conduct of the applicant persuade me that a sentence of two years, ten months' imprisonment commencing on 15 June 1995, a sentence at the top end of the usual range, should be substituted in lieu of the sentence actually imposed. Having regard to the period of two months previously spent in prison following arrest, the sentence is effectively one of three years' imprisonment.

ZEEMAN J On 4 July 1995 the applicant was sentenced to imprisonment for a term of four years and four months on his plea of guilty to one count of causing grievous bodily harm, contrary to the Criminal Code ("the Code"), s170. The particulars of that count contained in the indictment are that the applicant at Burnie, on or about 23 October 1994, caused grievous bodily harm to one Kerry Jack Stephens ("the deceased") by punching him twice to the head, thereby causing him to fall backwards and strike his head on the roadway. It should be observed that those particulars are deficient in that they are silent as to the grievous bodily harm caused by the applicant as distinct from the means by which he inflicted it.

2. The applicant has applied for leave to appeal against the sentence imposed upon him on various grounds, the following of which were argued:

"2 That the judge erred in law in paying too great a regard

in the sentencing process to the question of retribution.

3 That the judge erred in law in imposing a sentence that

is in all the circumstances manifestly excessive.

4 That the judge erred in law in failing to pay any or any

sufficient regard in the sentencing process to the

applicant's plea of guilty."

3. Although I say that ground 2 was argued, I note that counsel for the applicant informed the Court that he did not intend to argue it separately but as part of ground 3. By its very nature, the latter ground does not allege any specific identifiable error but an unidentifiable error evidenced by the sentence actually imposed whilst ground 2 alleges specific error. Although the course followed by the applicant has some unsatisfactory aspects, the applicant ought to be taken as having relied on ground 2.

4. Before considering the grounds, it is necessary to refer to the facts which were placed before the learned sentencing judge. At about 2.30am on 23 October, 1994 the deceased was walking home, having attended the annual dinner of his football club. As he was passing by a block of flats, he met a young woman who had been attending a party being held in one of those flats and they engaged in conversation. They sat down to continue their conversation. The applicant and one Thomas, both of whom also had been at the party, were in the vicinity. Thomas approached the deceased and spat at him. The deceased got up to protest. As he did so, the applicant approached him and, without warning or reason, struck him twice to the head. As a result of the force of the blows the deceased fell backwards, struck his head on the pavement and was rendered unconscious. After the deceased had been rendered unconscious, the applicant moved him into a sitting position against a wall adjacent to the footpath.

5. The blows inflicted by the applicant resulted in injury to the deceased's mouth and nose. The force of his head striking the pavement resulted in the deceased suffering a complex fracture of the skull and laceration to the parietal bone. Those injuries were life threatening. It is possible that they would have resulted in the death of the deceased even if no subsequent injury had been inflicted upon him, but that might not have been the result. It is possible that death would not have occurred had it not been for the injuries subsequently inflicted by one Sutton. The other possibility is that the subsequent injuries inflicted by Sutton did no more than to accelerate the death of the deceased. On either view, the acts of Sutton constituted unlawful homicide because of the provisions of the Code, s154(d).

6. Whilst the deceased remained in a sitting position, Thomas once again approached the deceased, who remained unconscious, and removed a wallet from the rear pocket of his jeans and took a sum of money from the wallet. Thomas, with the assistance of at least one other of the persons in attendance at the party, then picked up the deceased and either dropped or placed him in a garden behind the wall. His motive for doing so is apparent from the observation which he made at that time that they "had better hide the guy in case the cops come". He achieved his purpose because police officers who attended in response to a call from a concerned neighbour failed to discover the deceased's presence in the garden. In the meantime, Thomas had changed his shirt, stained with the blood of the deceased, and left to purchase liquor with the money which he had stolen from the deceased.

7. Not long afterwards another man, Sutton, who had observed but not participated in the assaults on the deceased, removed the latter's jacket. At that time the deceased was still alive. Having removed the jacket, Sutton kicked the head of the deceased with considerable force causing bruising to the temporalis muscle beneath the right eye, temporal lobe bruising beneath the left eye and a lateral fracture to the floor of the middle fossa of the brain.

8. At about 3am the deceased had died and his body was discovered in the garden by a passer-by. In the meantime, those who had assaulted and robbed him continued participating in the party at which liquor, purchased with the money stolen from the deceased, was consumed. The actions of the three men can only be condemned in the strongest terms. As to certain of their actions, the learned sentencing judge used adjectives such as sickening, pointless, brutal and callous. Those descriptions were fully justified.

9. The applicant, Thomas and Sutton were presented on one indictment containing five counts. The applicant pleaded guilty to the first of those counts by which he was charged with causing grievous bodily harm. Thomas pleaded guilty to robbery and assault and Sutton to manslaughter. The learned sentencing judge conducted one sentencing hearing in relation to the three men and published reasons for the sentences which he imposed (R v Inkson and ors A38/1995 - unreported, available on SCALE).

10. Ground 2 does not fully or properly articulate the applicant's complaint about the way in which regard was had by the learned sentencing judge to the element of retribution. As the argument was presented, the primary complaints articulated by the applicant were that the learned sentencing judge had erred in taking into account:

(a) the death of the deceased; and

(b) evidence of actual community outrage, as being relevant

to the extent to which retribution should be reflected by

the sentence to be imposed.

11. I propose to consider ground 2 as if it specifically raised those issues. The application was argued on that basis. Before expressly dealing with the question of retribution the learned sentencing judge said, at 4:

"The grief and anguish caused by (sic) those close to the

deceased are factors which can properly be taken into

account. The effect of the Criminal Code, s386(11) and (12)

is to broaden the range of material which the Crown may

place before the Court and the manner which (sic) the Court

may pay regard to the factors which impinge on the

sentencing process".

12. If by that passage the learned sentencing judge was intending to suggest that the Code, s386(11) and (12) have the effect of making relevant in the sentencing process material which otherwise would not be relevant, then that suggestion must be rejected. It may be that those provisions enlarge the role which the Crown may play in the sentencing process, although that may be doubted. I consider the better view to be that those provisions do no more than state in statutory form that which in any event would be the law (see, eg, R v Tait (1979) 46 FLR 386 at 389; R v Acerbi (1983) 11 A Crim R 90 at 92; R v Jamieson (1988) 50 SASR 130 at 133), except perhaps as to the right of the Crown, conferred by s386(12)(c), to submit that a particular type of sentence should be imposed (as to the pre-existing law see R v Gamble (1983) 3 NSWLR 356 at 360).

13. Nothing in s386(11) is capable of being construed as broadening the range of materials to which the court may have regard because it does no more than confirm the right of a prosecutor the right to address the court with respect to sentence. Section 386(12) provides for particular matters as to which the prosecutor may address but there is no suggestion that the subject matter of the address may be anything which would not in any event be relevant to the exercise of the court's sentencing discretion. The provisions of the Code do nothing to affect the nature of the matters to which the court may have regard in exercising its sentencing discretion. It seems that the learned sentencing judge may have taken a contrary view. That contrary view may have led him into error.

14. As to retribution, the learned sentencing judge said, at 4 - 5:

"Retribution is a factor to be considered in relation to the

imposition of sanction. ... To permit direct retribution

would be to allow emotion and blind unreason to hold sway.

That process would, in turn, change the nature of our

society to that of act, payback and ongoing retribution. It

is for that reason that courts are required to impose

sanction in accordance with the law. But that does not mean

that the sentencing tribunal ought not take into account the

need for the sanction to reflect the collective requirement

of a society to exact retribution for harm caused ...

The submission made on behalf of the Crown included the

following:

'It would not be overstating the matter to assert that the

circumstances surrounding and the events culminating in, the

death of Mr Stephens generated outrage and revulsion in the

Burnie community. Mr Stephens was a well liked and

respected member of that community. This sense of outrage

was exacerbated by the withdrawal of murder charges against

the accused and the substitution of lesser charges prompting

the circulation of a petition calling for changes to the

Criminal Code. The petition was circulated widely on the

North West Coast and attracted 7,500 signatures. The

existence of the petition prompted a decision by the DPP to

accede to the request of defence counsel for a change of

venue from Burnie to Launceston.'

The call for a change to the law governing the crime of

murder is not relevant to the determination of penalty for

crimes which we as a society have defined and proscribed.

Regard is had to the expression of community concern about

the death of a citizen insofar as it relates to the crimes

for which the offenders have been convicted but not for that

which some members of the community believe should be the

law.

Regard is had to the understandable community concern that

the crimes were committed against a person who was walking

in a public street and had not intruded in any way into the

activities of the offenders.

But the duty of our legal system is to achieve a balance of

competing demands. Insofar as the community wishes to pay

regard to retribution, it should consider the totality of

the penalty imposed rather than the component parts. A

respected citizen, walking the streets as was his right, is

dead. The treatment meted out to him by the three offenders

was cumulative, in that each inflicted a portion of the

totality of harm and indignity on him. So each ought not

individually bear the totality of sanctions imposed with

respect to the cumulative harm caused. The community should

pay regard to the fact that sentences of imprisonment

totally thirteen years have been imposed on three young men

for that sum of harm and anguish. The cumulative penalty is

anguish enough."

15. I have not found it an easy task to determine from those observations the precise basis upon which the learned sentencing judge had regard to retribution. In part, his remarks appear to have been directed to those members of the public who might be minded to criticise the sentences imposed as being an inadequate response to criminal conduct which had resulted in the death of a well liked and respected citizen. However, his observations do indicate that the learned sentencing judge proceeded upon the basis that the fact that the deceased died and actual community concern about the way in which the deceased met his death were relevant to the question of the extent to which the sentence to be imposed upon the applicant should reflect the element of retribution.

16. It is regrettable that the Crown saw fit to put before the learned sentencing judge the facts concerning community outrage referred to by his Honour in the passage from his comments which I have reproduced. The actual reaction of the community was not a relevant matter (R v H (1980) 3 A Crim R 53 at 65) and the reference to it amounted to an invitation to his Honour to attempt, by his sentences, to do something by way of satisfying perceived community demands. It is appropriate to remind oneself of the following observations made by Burbury CJ in Canning v Smith (1969) Tas SR 8 at 14:

"The statements attributed to the learned police magistrate

that if he imposed a fine 'the community would justly be

affronted' and that by postponing sentence he would 'avoid

outraged citizens writing to the paper expressing concern at

the inadequacy of the penalty I would have imposed', cannot

be allowed to pass without comment. I have no doubt that

the learned police magistrate was prompted to say this

because he felt unable to do what would appear to the

community to be justice in the case in the absence of a

power to impose a suspended sentence and felt that it would

be undesirable to provoke public criticism. But it may

often happen that a judge or magistrate has to make a

decision which he knows will be an unpopular one and provoke

criticism perhaps (as in this case) because of the

inadequacy of his own legal powers, or because of anomalies

in the law."

17. The senseless killing of a human being cannot but give rise to outrage. At the same time particular outrage, expressed in large part because of the regard in which a particular deceased was held, is not a relevant consideration. To admit it as being relevant would give rise to the perception that punishment is to be governed by the value placed on a particular life rather than on human life in general. That would be entirely contrary to principle, as was accepted by the Court of Criminal Appeal of Victoria in R v Penn, unreported, 9 May 1994 at 6. Courts uphold the sanctity of human life. They should not put greater value on one life rather than on another or do anything which may be so understood.

18. I turn to the fundamental question of whether the death of the deceased was a matter properly taken into account by the learned sentencing judge in determining the appropriate sentence. It is a necessary inference from his Honour's comments that he considered that the sentence to be imposed ought to reflect an element of retribution for that death, so that it was appropriate to impose a sentence which was more severe than that which would have been proper if the deceased had not died. I consider that to be the inference which must be drawn from the following comments made by the learned sentencing judge:

1 "The reality is that a life has been taken and that harm

warrants sanction." I take that as conveying the view that

the fact that the life of the deceased was taken was a

relevant factor to be taken into account in determining the

proper sentence to be imposed on each of the offenders,

including the applicant.

2 "The grief and anguish caused by (sic) those close to the

deceased are factors which can properly be taken into

account." I take that as intending to convey the view that

the grief and anguish suffered by those close to the

deceased as the result of his death was a relevant factor to

be taken into account in determining the proper sentence to

be imposed on each of the offenders, including the

applicant.

19. Counsel for the respondent made reference to a large number of authorities. Many of them, although helpful in a general sense, are of marginal relevance only to the precise question. They are authority for the following propositions:

1 That retribution is a proper matter to be taken into

account in the sentencing process (Bowden v R (1968) Tas SR

192 (NC 15); Austin v R (1971) Tas SR 227 at 228 - 229; R v

Hancox A46/1980, per Green CJ at 3 - 4; George v R (1986)

Tas R 49 at 62).

2 That an offender should not be sentenced for an offence

more serious than that of which he has been convicted (R v

De Simoni (1980 - [1981] HCA 31; 1981) 147 CLR 383; R v Causby (1984) Tas R

54 at 57 - 58; Lovegrove v R (1961) Tas SR 106 at 107).

3 That an offender should not be sentenced on a factual

basis inconsistent with the verdict of the jury (R v Bennett

A17/1990, per Crawford J at 4).

20. The applicant accepts that retribution was relevant to the sentence to be imposed. Taking into account the death of the deceased would not mean sentencing the applicant for an offence more serious than that of which he was convicted because taking it into account would not be on the basis that he was legally responsible for that death. As the applicant pleaded guilty no question of inconsistency with a jury verdict can arise.

21. Of more particular relevance are the following principles:

1 In assessing an appropriate sentence, a sentencer may not

have regard to the possibility that the offender may have

committed a more serious crime (R v King (1925) 25 SR (NSW)

218 at 222; R v Boyd [1975] VicRp 16; (1975) VR 168 at 172; R v McCormack

[1981] VicRp 11; (1981) VR 104 at 108).

2 Whilst the consequences of a crime are relevant, only

those consequences as should reasonably have been foreseen

by the offender may be taken into account (R v Boyd (supra)

at 172).

22. Provided that the principles laid down in R v De Simoni (supra) are not offended, the results of criminal conduct may be taken into account (R v Wise (1965) Tas SR 196 at 202, 209). But not every state of affairs, which it may be said would not have come about had it not been for the criminal act of an offender, is the result of that criminal act for sentencing purposes. It must be something which should reasonably have been foreseen by the offender. This accords with the principle that a just punishment must be imposed. It was not open to the learned trial judge to sentence the applicant on the basis that his acts resulted in injuries which either resulted in the death of the deceased or would have had that result had Sutton not intervened. Of course his Honour accepted that to be the position. It follows that foreseeability on the part of the applicant of the consequences of his own acts was irrelevant because those acts were not shown to have had the relevant consequences. Foreseeability that Sutton would commit his acts was relevant.

23. The question is to be posed in the following terms: should it have been reasonably foreseen by the applicant at the time that he inflicted injury on the deceased and placed him in a position where he was helpless to defend himself against any further assault, that some other person would then inflict further physical violence on the deceased which might result in death? If the answer to that is in the negative then it can not be said that the consequence of death should have been reasonably foreseen by the applicant. In my view that question cannot but be answered in the negative. It follows that the learned trial judge erred in taking into the account the death of the deceased as a circumstance relevant to the sentence to be imposed on the applicant.

24. On that basis, ground 2 is made out. I add that, even if the learned sentencing judge was correct in the significance he attached to the death of the deceased, ground 2 should succeed on the additional basis that the learned sentencing judge erred in having regard to the actual community outrage about the death of the deceased. It follows that it is unnecessary to consider the other grounds of appeal and that consideration must be given to what substituted sentence should be imposed upon the applicant.

25. I apprehend that some members of the community will find it difficult to accept the views which I have expressed and may even consider them to be an affront to the memory of the deceased. Any such reaction would be understandable, even though it would proceed from incorrect premises. I consider that the public is entitled to some further explanation rather than being dismissed as merely misinformed or uninformed. The Court has not been called upon to punish the applicant for having unlawfully killed the deceased. Where it has been called upon to do so, it has made clear that manslaughter attended by mindless brutality will be visited with the most severe penalties (eg R v Lyons (1993) 69 A Crim R 307). Legal culpability for the death of the deceased has been established on the part of Sutton only.

26. Any feeling of anger on the part of members of the community at the sentence imposed upon the applicant in reality is a feeling which has as its basis a sense of frustration that the applicant might have killed the deceased but that that cannot be established so that he cannot be punished for it. However, a moment's reflection must make it clear to any rational person that it is entirely impermissible to say that the punishment to be inflicted upon the applicant should be more severe because he might be the person who committed the homicide.

27. Since writing my reasons for concluding that ground 2 is made out, I have had the advantage of reading the reasons prepared by Underwood J and in particular the reasons expressed by him for his conclusion that "in Tasmania at least, it has long been held that the consequences of a criminal act are relevant in the sentencing process regardless of whether they were foreseen or ought to have been foreseen." I would not be prepared to dismiss ground 2 on that basis without affording to the parties an opportunity to address argument as to whether R v Boyd (supra) should be followed by this Court because it was cited by the applicant without any submission from the respondent that it should not be followed. However, with respect to those who hold a contrary view, I am not persuaded that there is any Tasmanian authority for the proposition that the consequences of a criminal act which were neither foreseen or reasonably foreseeable are relevant sentencing considerations. It may be that Boyd inappropriately relied upon Wise v R (supra) but that does not derogate from the validity of the principle which it laid down. It is a principle which conforms to standards of common fairness. A breach of it may lead to injustice.

28. An immediate distinction must be drawn between an offence constituted by ingredients which include the consequences of an act, which consequences may be unintended and unforeseen, and an offence which has unintended and unforeseen consequences which are not ingredients of the crime. In the former case the legislature has seen fit to make punishable conduct which has certain consequences, even if unintended and unforeseen. Where a consequences is an ingredient of an offence it forms part of that which is punishable and therefore must be relevant in the sentencing process. R v Holness A39/1970 and R v Bayley A77/1972 both fall into this category. They were cases of manslaughter where the relevance of the fatal consequences was considered. The same may be said of the cases discussed by Dr Goodhart in his note in 80 LQR 18 which were cases of causing death by dangerous driving. Relevantly, Paynter v R A95/1964, at 5, does no more than approve that note by way of an entirely obiter observation. In that case, no question arose as to the relevance of any particular consequence of the applicant's offence of driving at a speed dangerous to the public.

29. Observations made Hardy v R A8/1980, per Green CJ, at 1, and Bennett v R A17/1990, per Underwood J, at 2, and Crawford J, at 4, are suggested as being to the effect that the consequences of an offence neither foreseen nor reasonably foreseeable by the offender are relevant considerations in the sentencing process. In each case reliance was placed on Wise v R (supra). Whilst that case acknowledges the relevance of the consequences of an offence, it is silent as to the specific question of the relevance of a consequence which is not an ingredient of the offence and which is neither foreseen nor reasonably foreseeable. In Hardy, Green CJ referred to the relevance of fortuitous consequences without specifically mentioning consequences not reasonably foreseeable. Consequences may be fortuitous and yet have been reasonably foreseeable. In any event Green CJ was the only member of the Court to express any view as to the relevance of consequences, so that in any event that case does not amount to binding authority on the question.

30. In Bennett, the question of whether the consequences of the offender's act were reasonably foreseeable, as distinct from actually having been foreseen or intended by him, was not discussed. The offender had been charged with causing grievous bodily harm and acquitted of that crime but convicted in the alternative of wounding. The wounding was in the nature of a substantial knife wound inflicted on the victim when the offender stabbed him in the chest. The wound was life-threatening. In order to give proper effect to the jury's verdict, the Court considered that the proper basis for sentencing the offender for the wounding was that which was expressed by Crawford J, at 4, in the following terms:

"Whilst it was proper to take into account the actual

consequences which flowed from the criminal act of the

respondent (see Wise v R (1965) Tas SR 196 at 201 - 202 and

209), the learned judge was therefore obliged to keep in

mind that, because of the jury's verdict, the respondent had

to be dealt with upon the basis that he neither intended or

foresaw bodily injury of such a nature as to endanger or be

likely to endanger life, or to cause or be likely to cause

serious injury to health (see the meaning of 'grievous

bodily harm' in s1) nor that he intended to maim, disfigure

or disable. Therefore the question on count 2 became one of

the appropriate sentence for this respondent who had not

meant to cause serious injury to Mr Allie's health, nor had

he foreseen it, but he had intended some minor wound with

the knife, or had foresight that a wound might result, and

the consequences of his acts went close to bringing about

the death of the victim."

31. It will be observed that his Honour dealt with the question as to what was actually intended and foreseen by the offender but not with the further questions of what was reasonably foreseeable by the offender and of the relevance of a consequence not reasonably foreseeable. That may be explained by two considerations. In the first instance, the verdict of not guilty of causing grievous bodily harm negated the further proposition that the offender had actually foreseen all the consequences of his act but did not negate the proposition that those consequences were reasonably foreseeable by him. More importantly, on the facts of that case it would have been difficult to have come to a conclusion other than that the actual consequence of the stabbing, namely that it caused a life-threatening wound, was other than reasonably foreseeable. It follows that a conclusion that it was relevant in the sentencing process is unexceptional. I do not consider that anything said in Bennett can be construed as being to the effect that had that consequence not been reasonably foreseeable it still would have been relevant.

32. Although it is unnecessary to consider grounds 3 and 4 as a possible basis for allowing the appeal, some of the argument addressed in support of those grounds is relevant to the re-sentencing of the applicant. Of particular relevance is the question of the weight (if any) which should be attached to the applicant's plea of guilty, a matter which was raised by ground 3. The learned sentencing judge paid little regard to that plea, saying that he considered it to be "an acceptance of the inevitability of a conviction". Before this Court the applicant accepted that the plea was properly so described, but maintained that it should be taken as having substantial mitigatory effect.

33. In the first instance, counsel for the applicant submitted that a plea of guilty should be treated as a matter having significant mitigatory effect in every case. When that proposition was challenged, he resiled from it and submitted that a plea of guilty always is to be taken into account in the sentencing process, although the significance which should be attached to it will vary from case to case. An example of a recent case in this Court, where it was considered that no reduction in sentence should be given by reason of a plea of guilty is R v Lyons (supra). I observe that, speaking for the High Court in refusing special leave to appeal against that decision, Dawson J said that there was no error of principle involved in that decision of this Court (Lyons v R (1994) 1 Leg Rep C1).

34. Principally, the applicant relied on two authorities as to the relevance of a plea of guilty in the sentencing process. The first was R v Shannon (1979) 21 SASR 442 in which the South Australian Court of Criminal Appeal laid down a number of propositions, expressed by King CJ at 452 - 453 in the following terms:

"(1) A plea of guilty may be taken into account in

mitigation of sentence where

(a) it results from genuine remorse, repentance or

contrition, or

(b) it results from a willingness to co-operate in the

administration of justice by saving the expense and

inconvenience of a trial, or the necessity of witnesses

giving evidence, or results from some other consideration

which is in the public interest: notwithstanding that the

motive, or one of the motives, for such co-operation may be

a desire to earn leniency, and where to allow the plea a

mitigatory effect would be conductive to the public purposes

which the sentencing judge is seeking to achieve.

(2) A plea of guilty is not of itself a matter of

mitigation where it does not result from any of the above

motives, but only from a recognition of the inevitable, or

is entered as the means of inducing the prosecution not to

proceed with a more serious charge.

(3) In cases falling within (1), the judge is not bound to

make a reduction, but should consider the plea with all the

other relevant factors in arriving at a proper sentence.

(4) In assessing the weight to be attached to a plea of

guilty as a factor making for leniency, it is proper for the

judge to bear in mind that it is important to the

administration of justice that guilty persons should not

cause expense to the public and delay to other cases by

putting forward false stories and on the basis of such false

stories contesting the charges against them.

(5) The above propositions are not to be taken as weakening

in any way the principle that there must be no increase in

the sentence which is appropriate to the crime because the

offender has contested the charge."

35. The second case upon which reliance was placed was R v Gray [1977] VicRp 27; (1977) VR 225, and in particular the following passage appearing in the joint judgment of McInerney and Crockett JJ at 232 and is as follows:

"The sentencing judge possesses a discretion of great

width. It would be improper to seek to define or prescribe

the area in which that discretion is to operate. It is for

the judge to interpret the quality and implications of the

plea. If it is one calculated to serve the public interest

it would be proper to consider whether to allow the plea to

act in mitigation, but not necessary to do so. For example,

the plea may be evidence of remorse, that is, regret as to

participation in the crime. If the Court of Criminal Appeal

in Queensland in R v Cox, (1972) QWN 54 held that a plea of

guilty could operate in mitigation only in so far as it

evidenced genuine remorse, that, in our opinion, would be a

too restrictive view. There are other factors that operate

in the public interest. The plea may operate, and may have

been so intended, to save a prosecutrix the ordeal of giving

evidence in a sexual case. The plea may serve, and may have

been so intended, to save the State a lengthy and expensive

trial. Yet in neither of such cases might the accused feel

genuine remorse. There may be cases in which the only

sorrow felt by him is in the fact that he has been detected.

But, having been detected, he has had to do the best he can

for himself. Weighing the strength of a possible defence

against the likely penalty upon conviction he may elect

deliberately to adopt a course which involves a measure of

public utility in the belief that his own ultimate interest

is best served by doing so. The judge may (not shall) take

such circumstance into account in the accused's favour. If

such action be tainted overmuch by self-interest it probably

will not avail the accused. Professor Sir Rupert Cross in

his book The English Sentencing System (1971), p153 suggests

that it is in the interest of the present judicial system

that provided they are in fact guilty, accused persons

should plead guilty. No doubt great cost to the community

in time, convenience and money is thereby saved. However

expedient this may be from the point of view of the

executive, it is not a matter which requires the sentencing

judge to reduce the sentence below that which he otherwise

believes to be proper in the circumstances.

On the other hand, there may be pleas of guilty which are

not designed to serve the public interest or may do so only

marginally or incidentally. That is to say, the accused's

self-interest is completely predominant in the decision

reached by him. One such case will be when the accused is

quite unrepentant and confesses his guilt simply because the

case against him is overwhelming and, in a practical sense,

unanswerable."

36. I am content to adopt the principles laid down in R v Shannon (supra). Although there may have been slight difference in emphasis in R v Gray (supra), in substance the passage which I have reproduced is to similar effect. Consistently with those principles, I am of the view that the approach adopted by the learned sentencing judge is that which I should adopt. The motivation which led to the plea and the need to emphatically denounce the applicant's criminal conduct are the principle reasons which persuade me of the correctness of that approach.

37. In my view the sentencing discretion is to be exercised largely by reference to the following features of this case.

1 The accused is to be sentenced upon the basis that he was

a youthful offender of previously general good character

who, without premeditation and whilst to some degree was

affected by the consumption of intoxicating liquor,

committed a crime which was entirely out of character.

2 The accused gratuitously and without the slightest

provocation inflicted a series of severe blows upon the

deceased, which blows directly caused substantial injury to

the deceased.

3 As was reasonably foreseeable by the applicant, the force

of those blows resulted in the deceased's head striking the

pavement whereby he suffered further injury, this injury

being of a life threatening nature.

4 The injuries were inflicted upon the deceased whilst he

was going about his lawful business in a public street.

5 The applicant's plea of guilty was entered by him as the

result of an acknowledgment on his part of the inevitability

of conviction.

38. Of relevance is the following observation made by this Court in Bowden v R (supra) at 192:

"There are some crimes which irrespective of the youth and

previous good character of the offender must be visited with

a long gaol sentence, and rape is one of them ... in

considering the appropriate sentence for a crime of violence

of this kind the sense of public outrage as to such actions

cannot and ought not to be left out of account. It is not a

simple matter of looking at questions of deterrence and

reform.".

39. That dictum was approved in Austin v R (supra) at 228 - 229, Bayley v R A77/1972, Hancox v R A46/1980 per Green CJ at 3 - 4, George v R [1986] TASSC 19; (1986) Tas R 49 per Cox J at 62 and R v S A73/1990 at 7 - 10 and is relevant as to the question of the youth and antecedents of the applicant and the question of retribution. The two questions are interrelated because the sense of public outrage which might reasonably be expected to be provoked by a crime of this nature may require that lesser weight should be attached to the youthfulness of the offender and any other matters of a mitigatory nature. Giving effect to reasonably anticipated public outrage does not mean that sentences are determined by reference to what might be demanded by those who are vocal in the public domain. What it does mean is that punishment is fashioned so as to provide a proper but restrained response to the need that punishment is seen to fit the crime and so that it operates as a proper deterrent to conduct which the community rightly abhors.

40. At least in the absence of a significant degree of diminished responsibility on the part of the offender, the infliction of serious and life threatening injury upon a person lawfully using the public street must be condemned by a sentence seen to have a strong deterrent element. Citizens are entitled to expect that when they use the public street in a way which does not interfere with the rights of others, they will not be set upon in the way in which the applicant set upon the deceased. It may be that such an expectation is becoming a less than reasonable expectation. Counsel for the applicant described this case in a way which suggested that what the applicant did was nothing out of the ordinary. If that is correct, I can only express my utter dismay at the level to which the community has sunk. However, no material was placed before the learned sentencing judge as to the prevalence of this type of offence.

41. Accordingly, it is not appropriate to sentence the applicant upon the basis that criminal conduct of the type in which he engaged is becoming substantially more prevalent, although my experience as a sentencing judge suggests that it is not an unusual type of offence. What distinguishes this case from others is the ultimately fatal outcome, but in the circumstances that is not a relevant consideration. I have concluded that notwithstanding the youth and otherwise good character of the applicant the sentence to be imposed upon him must be at the upper end of the range of sentences imposed for the crime of causing grievous bodily harm. I am not persuaded that past sentences have been within an inappropriate range. One must not lose sight of the enormity of the punishment which is inflicted by sending to prison a person who, but for one criminal act, could be described as a person of good character.

42. I would impose a sentence of three years' imprisonment but consider that credit should be given for the period of about two months which the applicant spent in custody following his arrest. Accordingly I would grant the applicant leave to appeal, allow the appeal, set aside the sentence imposed by the learned sentencing judge and in lieu thereof sentence the accused to imprisonment for a period of two years and ten months dating from 15 June 1995.