CITATION: Jay v Tasmania [2016] TASCCA 12

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Unlawful act intended to cause grievous bodily harm - Sentence of seven years' imprisonment with non-parole period of five and a half years - Vicious and sustained attack involving at least 25 applications of force to female - No error demonstrated.

Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1; Director of Public Prosecutions v Rogers [2011] TASCCA 17; Director of Public Prosecutions v Blyth [2010] TASCCA 10, considered.

Judgment Number: [2016] TASCCA 12

1. I have had the opportunity to read in draft form the reasons of Estcourt and Pearce JJ. I agree with their reasons for dismissing the appeal in this matter against sentence.

1. The appellant, Jason Ralph Jay, has appealed against a sentence of seven years' imprisonment with a non-parole period of five and a half years imposed on him by Blow CJ on 8 September 2015.
2. The sole ground of appeal is that the sentence is manifestly excessive. No specific error is asserted in the notice of appeal.
3. The sentence was imposed consequent upon the appellant's plea of guilty to a single count of committing an unlawful act intended to cause grievous bodily harm contrary to the Criminal Code, s 170.

1. As I have observed in the past in such cases, Professor K Warner in her book Sentencing in Tasmania, 2nd ed, The Federation Press, 2002, at 440, writes on the subject of appellate review of sentences for manifest excess or inadequacy as follows:

"The Court of Criminal Appeal has consistently followed the approach suggested by the High Court in House [(1936) [1936] HCA 40; 55 CLR 499 at 504] Cranssen [(1936) [1936] HCA 42; 55 CLR 509 at 519] and Harris [(1954) [1954] HCA 51; 90 CLR 652 at 656] and these cases are cited ad nauseum in sentencing appeals."

1. And, as I have remarked in the past in appeals such as the present, where the sole ground is manifest excess or manifest inadequacy, I bear Professor Warner's admonition in mind, and content myself with setting out what Porter J said in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]-[34]. His Honour there observed:

"31 For the purposes of this case, I think it is desirable to traverse some well-travelled territory, and to again note the role of this Court on an appeal against sentence. 'The Court of Criminal Appeal has no charter to tinker with sentences. It sits to rectify genuine error'; Aherne v R 20/1982 per Nettlefold J at 3. In accordance with the traditional formula as set out in House v R [1936] HCA 40; (1935) 55 CLR 499, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to give rise to the inference that there has been a failure to properly exercise the discretion. As Kourakis J said in A, MC v Police [2008] SASC 279; (2008) 102 SASR 151 at [88], 'An appeal ground that a sentence is manifestly excessive is really a convenient alternative expression of the complaint that the sentence is by reason of its severity, unreasonable or plainly unjust.'

32 In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Kirby J (with whom Gummow and Gaudron JJ agreed) stated at [58]:

'The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence. Indeed, it is commonly referred to by the Court of Criminal Appeal of Western Australia. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.' [References omitted.]

33 Later, in Wong v The Queen (above) at [58] Gaudron, Gummow and Hayne JJ said:

'Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.'

34 In Dinsdale (above) at [6], Gleeson CJ and Hayne J said that: 'inadequacy or excess is, or is not, plainly apparent'. ... ."

1. In Griffiths v The Queen (1977) 137 CLR 293 at 310, Barwick CJ said:

"Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle."

1. More recently in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, a case involving a sole ground of appeal that the sentence was manifestly inadequate, Pearce J, with whom Blow CJ and Porter J agreed, most succinctly and comprehensively, if I may say so with respect, summarised the relevant principles at [8] as follows:

"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."

1. On passing sentence the learned sentencing judge set out the circumstances of the crime and the impact upon the complainant as follows:

"The victim of this crime was a 35 year old single woman. She got to know Mr Jay through a group of depression sufferers who communicated with one another using Facebook. She and Mr Jay had an online relationship for some months before he flew to Hobart and met her for the first time on 17 March 2015. He went to her unit with her, spent the day there, had consensual sexual intercourse with her, stayed the night, asked her to have sex with him again the following afternoon, and became angered by her refusal. He attacked her mercilessly. He kicked her, punched her, hit her repeatedly to the face, head and abdomen, and dragged her by the hair around her unit. She tried in vain to protect herself. She was crying for him to stop. At one point Mr Jay left the room briefly. Although badly injured, the victim tried to get to the front door, but he stopped her, dragged her back, got on top of her, placed his hand around her throat, and commenced to strangle her with one hand, holding his other hand over her mouth and nose. He told her he was going to kill her. She went limp. He got off her, and resumed kicking her, punching her, and pulling her by the hair. He kicked her to the mouth, head and rib area. He repeatedly told her that he wanted to kill her. The Crown accepts that he was only saying that, and did not truly intend to kill. His victim however did not know that, and expected to die.

Eventually Mr Jay stopped, told the victim he did not want to get caught by the police, and asked for something to eat. She told him there was no food, but gave him her bankcard and a false PIN, whereupon he went on his way. The attack appears to have lasted for about 20 or 30 minutes.

The victim called an ambulance and was taken to hospital, very seriously injured. She had a laceration to her forehead, associated with a fracture of the skull, which exposed the frontal lobe of her brain. There was bruising to the brain at that point. She had particularly bad fractures of both eye sockets. She had fractures to many other facial bones, a fracture to the base of the skull, and two black eyes. Her right eyeball had dropped vertically within its socket, resulting in double vision. The bridge of her nose had caved in. Her right cheek, her gums, and the top of her right jaw area were numb. Her face was extremely swollen. Her brain damage included a traumatic subarachnoid haemorrhage and a frontal lobe contusion. Her eleventh rib on the left side and a number of ribs on the right side were fractured. Her right lung had collapsed. She had bruising to her nose, the right cheek, the right side of her mouth, the lower lip, the left temple, the left chin area, her left cheek, her right wrist, one of her knuckles, the upper left arm, and the left forearm. She had abrasions to the left side of her forehead, the left and right sides of her neck, her left cheek, and her left thumb.

A forensic pathologist examined the victim's medical records and photographs of her injuries. He concluded that her injuries were caused by at least 25 separate applications of force, probably more.

After the swelling to her face had subsided to a degree, the victim underwent surgery to repair her facial fractures. She was in hospital for about two weeks. She subsequently needed a lot of attention as an outpatient. She has been left with some facial scarring. The psychological impact of the attack has been enormous. She was a vulnerable individual in the first place. She only met Mr Jay because of her participation in an internet chat room for people suffering from depression. She may well have long term psychological difficulties as a result of the attack. She has been suffering from severe levels of anxiety and some mood disturbance. Her psychological problems have been managed by her general practitioner and a clinical psychologist. She has made a good recovery from her brain injuries, but there may still be some impairments in relation to verbal recall and higher level attention. These problems could well resolve over time, but might not." (Emphasis added.)

1. On passing sentence upon the appellant the learned sentencing judge said:

"Mr Jay was arrested at the Hobart airport some hours after the attack and has been in custody ever since. He is 33 years old. He has been to prison for a similar attack on a woman in Victoria. In January 2009 he met a woman whom he had got to know through Facebook. They had sex in a hotel when they first met. On the night of their second meeting, he got angry with that woman, attacked her, punched her to the face repeatedly, grabbed her by the neck with both hands, and started to choke her. He continued his attack for some time, alternately punching and choking her. He left her with her face swollen, bruised and bleeding. One of her eye sockets was fractured. He stole her mobile phone, cash and other items. He pleaded guilty in the County Court of Victoria to charges of recklessly causing serious injury and theft. He was sentenced to a total of 2 years and 3 months' imprisonment, with a non-parole period of 12 months.

Mr Jay has been dealt with by magistrates on a number of occasions in relation to other, less serious assaults. In June 2004 a magistrate in Queensland convicted him and placed him on probation for 18 months in relation to charges of 'assaults occasioning bodily harm' and 'wilful damage'. In March 2009 a magistrate in Melbourne convicted and fined him on a charge of unlawful assault and a criminal damage charge. In Sunshine, Victoria, in March 2010 a magistrate imposed a wholly suspended sentence of three months' imprisonment on another charge of recklessly causing injury. In the Melbourne Magistrates Court in May 2011, on a third charge of recklessly causing injury, he was sentenced to six months' imprisonment, which was ordered to be served by way of an intensive correction order. The cases in 2010 and 2011 both related to attacks on women. This case therefore concerns Mr Jay's fourth serious attack on a woman in about six years.

Mr Jay has had behavioural problems all his life. He was diagnosed as suffering from attention deficit hyperactivity disorder late in his primary school years. Since adolescence he has suffered from depression and anxiety. He has had problems with alcohol and drugs. There was a stable period of his life during his twenties when he had a middle eastern woman as a partner, but that relationship broke down, and his old problems involving depression, alcohol and drugs returned. He has been to hospital on occasions because of his depression. He has had various jobs, but was a disability support pensioner prior to his arrest. His disability was the result of his depression. He obviously has a problem with anger management. His counsel told me that he cannot 'get a handle on what happens to him'. He has a tendency to lose his temper suddenly and without warning. His counsel told me that, when the attack in question was over, he was shocked by the extent of the victim's injuries; that he recognises his need for professional help; and that he feels terrible about the extent of his violence and the effect that it had.

It counts in his favour that he pleaded guilty at quite an early stage. Within three months of the attack it was clear that he would be pleading guilty, and that the victim would not need to give evidence. His plea of guilty has saved the State the cost and inconvenience of a trial, and of preliminary proceedings. In assessing the weight to be given to his plea of guilty, it is relevant that the Crown had an extremely strong case.

The only appropriate penalty in this case is a long sentence of imprisonment. I will backdate it to the day of Mr Jay's arrest. Because there is some prospect of rehabilitation, I will make provision for parole, but I think the non-parole period should be a long one."

1. In Director of Public Prosecutions v Blackaby [2013] TASCCA 4, I said at [16]-[22], with Blow CJ and Wood J agreeing:

"There is no doubt that counsel for the appellant was correct in submitting that because specific intent is required for the commission of a crime contrary to s170 of the Criminal Code it is generally regarded as a more serious crime than that of grievous bodily harm under s172 of the Code. In Director of Public Prosecutions v Blyth (supra), Blow J (as he then was), with whom Porter and Wood JJ agreed, said, unambiguously at [8]:

'8 A crime against s170 involving a specific intent to do grievous bodily harm is generally regarded as worse than one against s172, which does not necessarily involve such an intent: R v Allen [1999] TASSC 112 per Cox CJ at par [2]; Barron v Tasmania [2010] TASCCA 3 at par[21].'"

1. In Barron (above), Wood J, with whom Blow J (as he then was) and Porter J agreed, said at [21]-[22]:

"21 It is worthwhile to take some time to focus on the nature of the crime under consideration and some well settled sentencing principles that apply to the Code, s172. A specific intention to cause grievous bodily harm is not an element of this crime. The crime of causing grievous bodily harm requires a mental element involving either an intent to cause grievous bodily harm or subjective recklessness, ie foresight of the likelihood of that kind of harm (R v Bennett [1990] TASRp 6; [1990] Tas R 72). By contrast an essential element of a crime against s170 is the intention to cause some kind of serious bodily harm (R v Allen [1999] TASSC 112, per Cox CJ at par2).

22 There is an overlap in the application of ss170 and 172 so that they are both capable of applying to situations where grievous bodily harm is intended. For this reason, ordinarily when sentencing for the crime of causing grievous bodily harm contrary to s172, the sentencing judge may, without offending the principle in De Simoni [1981] HCA 31; (1981) 147 CLR 383, sentence on the basis that the offender had an intention to cause grievous bodily harm ...".

1. It has been repeated by a number of judges in this State that a crime under s 170 "ordinarily" carries a penalty within the range of three to seven years.
2. In R v Allen [1999] TASSC 112, Wright J observed at [13]:

"13 Count 1 in the indictment alleged a breach of the Criminal Code, s170. The seriousness of such criminal conduct has been reviewed in a number of previous decisions of this Court (see Lovegrove v R [1961] TASStRp 13; [1961] Tas SR 106; Brown v R (supra); Bennett v R [1990] TASRp 6; [1990] Tas R 72; R v Marshall 70/1990; Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1). In Papazoglou v R 9/1963, the Court of Criminal Appeal refused to dissent from comments made by the Chief Justice when imposing sentence upon the appellant for an offence against the Code, s170 that:

'Ordinarily I would think that this crime would require a sentence of from three to seven years.'

When these comments are considered alongside the current practice of the Court in sentencing violent criminals, they do not appear to me to be out of place, even now, some 36 years later. Sentences for rape commonly fall within a similar range and there appears to me to be no sound basis for suggesting that a deliberate crime of violence which inflicts severe trauma with long term disability upon another human being is any less serious than a case of serious sexual assault."

1. These comments were re-affirmed relatively recently in Director of Public Prosecutions v Rogers [2011] TASCCA 17 at [16], where Evans J, with whom Porter and Wood JJ agreed, observed at [16]:

"16 The crime that is the subject of count 2 is committing an unlawful act intended to cause bodily harm in breach of the Code, s170. It is a serious crime. An element of it is a specific intent to disable or do grievous bodily harm. In DPP v Blyth [2010] TASCCA 10, Blow J, agreed with by Porter and Wood JJ, reviewed a number of authorities on the sentencing range that was appropriate for a contravention of s170. The effect of that decision and the authorities to which it refers is that subject to the unimpaired discretion of a sentencing judge to impose a sentence that is reasonable, ordinarily a contravention of s170 should attract a sentence of imprisonment of between three to seven years. The decision also refers to the importance, when sentencing for this crime, of the severity of the victim's injuries and the extent of any permanent disability or incapacity ... ."

1. These authorities make it clear that, subject to the unimpaired discretion of a sentencing judge, to impose a sentence that is reasonable, a contravention of s 170 should ordinarily attract a sentence of imprisonment of between three to seven years. The real issue on this appeal is whether there is anything about the circumstances of the crime committed by the appellant, or in his personal circumstances, that would justify the imposition of a sentence at the very top end of a range of three to seven years.
2. The range of three to seven years referred to is by no means a hard and fast rule. Indeed, the contrary is the case. So much is clear from the judgment of Blow J in Director of Public Prosecutions v Blyth [2010] TASCCA 10 at [10]- [14], with Porter and Wood JJ agreeing:

"10 Counsel referred us to a number of cases where offenders were sentenced for contravening s170 or s172, including several appeals. All of those cases turned on their own facts. Most of them do not warrant discussion.

11 Papazoglou v R (unreported, 9/1963, Court of Criminal Appeal) concerned a sentence of two years' imprisonment imposed by Burbury CJ. The appellant was convicted under s170 on the basis that he hit a man on the head with a piece of wood intending to do grievous bodily harm. Burbury CJ provided the Court of Criminal Appeal with a report which concluded as follows:

'These circumstances induced me, with some hesitation, to impose only a two years sentence. Ordinarily I would think that this crime would require a sentence of from three to seven years.'

'In the case before us I would agree that if the Chief Justice had said, without qualification, that an offence against section 170 should be punished by a sentence of imprisonment between the limits of three and seven years, he would be unduly fettering his discretion and especially so as to the lower limit. But he qualifies this by prefacing his remark with the word, 'ordinarily' which leaves the discretion unimpaired within the bounds of what is reasonable. I do not think, therefore, that it has been shown that we should infer that he proceeded on any wrong basis in approaching the task of sentencing the applicant.'

'It is one's common practice and the only proper one, whether sitting as a trial judge imposing a sentence, or sitting in this Court reviewing a sentence, to commence by thinking of the approximate standards of penalty (set by judges and Court of Criminal Appeal) for the crime committed and then by taking into account the many other factors which may be taken into account, including any variations from the typical case and he circumstances leading up to an surrounding the commission of the particular offence being dealt with. This applies particularly to the serious crimes involving personal violence where the deterrent aspect is relevantly more important than it is in the consideration of sentences for the more usual crimes involving dishonesty.

In using the words complained of, the learned Chief Justice was doing no more than this. His standard is a wide one and for ordinary cases it is approximately appropriate.'

1. In any event as Underwood J (as he then was) observed in Inkson v The Queen [1996] TASSC 13; 6 Tas R 1 at [47], that having regard to the range of sentences imposed for a crime does not mean that every sentence must fall within that range.
2. In my view, whilst not perhaps the worst case imaginable, the vicious and sustained nature of the appellant's attack on the complainant, and the nature and extent of her injuries caused by at least 25 separate applications of force, place the present case at the very top end of the range of "ordinary cases" for which the range of three to seven years is "approximately appropriate". Apart from the utilitarian benefit derived from the appellant's plea of guilty there were no mitigating factors of any significance.
3. In my view the head sentence of seven years cannot be said to be unreasonable or plainly unjust. No error is apparent to my mind. The sentence was a heavy one, but it is trite to say that it is not enough on an appeal based on manifest excess to demonstrate that the sentence may have been harsh.
4. In view of the nature of the appellant's crime and (while keeping in mind the observations of the plurality in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477), his woeful prior record, including a sentence of two years and three months' imprisonment for an alarmingly similar attack on a woman in Victoria in 2009, I do not regard the sentence as manifestly excessive, or the non-parole period of five and a half years as excessive or as rendering the sentence excessive overall.

1. In my view the appellant's appeal was without merit and for that reason I joined in the order that it be dismissed.

1. I have had the advantage of reading the reasons for judgment of Estcourt J. His Honour states the principles to be applied in the determination of appeals on the grounds of manifest excess or inadequacy and sets out in full the Chief Justice's statement of the facts and comments when passing sentence. I need not repeat them. I agree with Estcourt J. My reasons for joining in the order dismissing the appeal are the same as those given by his Honour. I would make a few additional comments.
2. The sentence of 7 years' imprisonment with a non-parole period of 5½ years imposed on the appellant was not manifestly excessive. As has been stated on a number of occasions in this State, a crime under s 170 ordinarily carries with it a sentence within the range of three to seven years.[1] In my opinion, this was such a serious example that an even longer sentence would not have revealed error. There are a number of particular aspects of the appellant's crime which led me to that view:
   • the level of moral culpability of the appellant is very high. He demonstrated the utmost cowardice and cruelty. He used his physical advantage over a vulnerable complainant to beat her savagely in her own home. He inflicted a prolonged and terrifying attack which lasted between 20 and 30 minutes. For almost all of the time the complainant lay completely defenceless on the ground. At one point she attempted to escape, but he dragged her back and inflicted further violence;
   • the plea of guilty acknowledged the fact that the appellant intended to cause grievous bodily harm to the complainant. Although the appellant was not to be sentenced on the basis that he intended to kill, he repeatedly told the complainant he was going to kill her, and she believed she was going to die;
   • the attack involved at least 25 applications of force. There were probably more because some of the injuries were likely to have required multiple blows. There were a large number of injuries to the complainant's face and head caused by a combination of punches and kicks. There was evidence of strangulation injury to her neck. There were multiple blows to her torso. The nature of the injuries, especially the fractures of the facial bones and skull and to her ribs, disclosed the application of considerable force;
   • the appellant caused grievous bodily harm. The complainant suffered terrible physical injuries to her head, face and body. Although, very fortunately, she made what seems to be a substantial recovery from those injuries, she has facial scarring and there is a possibility of continuing impairments arising from brain injury. There are profound psychological effects likely to be very long lasting.
3. Mitigation arose from the plea of guilty which saved the complainant the trauma of having to give evidence. Otherwise, there are no mitigating factors of any weight. The personal circumstances of the appellant indicate little or no prospect of reform or rehabilitation. He is not a youthful offender. He demonstrated no remorse. The dominant sentencing considerations are retribution, protection of the public, punishment, denunciation, vindication of the dignity of the victim, and deterrence. The appellant had a very bad record of similar offending. In 2009 he was imprisoned in Victoria for an attack on a female he met and assaulted in similar circumstances. Following his release he committed other offences of violence against females. In Veen (No 2) [1988] HCA 14, 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ, at 477, explained that while an offender may not be punished again for past offending, criminal history is relevant:

"... to show whether the instant offences is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

1. The following comment from reasons of the majority of the High Court in Munda v Western Australia [2013] HCA 38, 249 CLR 600, apply with particular force in this case:

"First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence."

[1] See for example Inkson v The Queen [1996] TASSC 13, 6 Tas R 1; R v Allen [1999] TASSC 112; Hyde v The Queen [2001] TASSC 50; DPP v Blyth [2010] TASCCA 10; DPP v Rogers [2011] TASCCA 17; Director of Public Prosecutions v Blackaby [2013] TASCCA 4.