Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Factual basis for sentence - Generally- Specific error - Reliance on material not referred to by counsel.

R v Causby [1984] Tas R 54, applied.

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Circumstances of offence - Culpability for consequences neither foreseen nor foreseeable.

Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1; Feldman v Samuels [1956] SASR 55; R v Teremoana (1990) 54 SASR 30, R v Agius [2000] SASC 259; (2000) 77 SASR 469, discussed.

Judgment Number: [2007] TASSC 10

3 In lieu thereof a sentence of six months' imprisonment to date from 5 December 2006.

4 An order that the execution of the balance of that sentence be suspended upon condition that the appellant be of good behaviour for a period of two years from this date.

1 The appellant was charged with three counts of assault. The complainant was the appellant's partner and all the assaults were alleged to have been committed at her home within a short space of time. The appellant was found not guilty on count 1 but guilty on the other two counts. He was convicted and sentenced to 12 months' imprisonment. An order was made that he not be eligible for release on parole until he had served one-half of that sentence.

2 The appellant has appealed upon the grounds that a specific error tainted the exercise of the sentencing discretion and/or that the sentence was manifestly excessive.

3 In his comments on passing sentence, the learned sentencing judge made no detailed findings with respect to the actus reus of the three crimes. He referred to the relationship between the appellant and the complainant as "turbulent", the crimes as "not an isolated act committed out of character" and said that the appellant showed no remorse. Although the learned sentencing judge did not say he accepted the complainant's account of the relevant events, an inference can be drawn from the comments on passing sentence that he did, except with respect to count 1, and the appeal proceeded on that basis.

4 The complainant said in evidence that she and the appellant entered into a relationship in early 2000 and it continued until early 2004, but it was an unstable relationship marked with arguments, assaults and periods of absence on the part of the appellant. The crimes charged were committed on 30 September 2002, but not reported to the police until September 2004. During the intervening two years, the relationship had continued on an "up and down" basis.

5 The complainant gave evidence that about lunchtime on 30 September 2002, she was at her home and the appellant "turned up". There was an argument. The complainant was crying and the appellant shouted that he was leaving. The complainant said that she wanted to "sort it out once and for all" and stood in the doorway, preventing the appellant from leaving the house. The appellant said that at this stage the appellant punched her in the arm (count 1), but the jury was not satisfied that that happened. The argument continued. The complainant remained in the doorway. The appellant punched her in the arm and then "grabbed [her] and threw [her] backwards out of the way onto the floor" (count 2). The complainant said that her head hit the floor and she heard a loud crack. She told the appellant that he had broken her back and he said not to be silly because if he had done that she would not be able to move.

6 The complainant was able to get up and walk into the bathroom. The appellant followed her. He was carrying his motor cycle helmet. The argument continued. In the bathroom the appellant shoved his helmet into the complainant's chest, knocking her to the floor. He then knelt on her chest and shouted in her face (count 3). The appellant then got up and left the house.

7 The complainant was upset, crying and in pain. She "crawled" to the bedroom and lay on her bed. A short time later, the appellant returned to the house and took her a glass of water. She told him to leave. He said he was not leaving until he knew she was "okay". The appellant then left the bedroom and a female friend of the complainant's arrived at the house.

8 Following the assaults, the complainant had a sore neck, back, arms and chest. Medical advice from her general practitioner, given two days after the crimes were committed, was that the complainant had suffered a fractured rib. She was referred to Dr Liddell, a neurosurgeon, and he discovered that the complainant suffered from a condition known as os odontoidium. Dr Liddell described this condition as one where, "... a part of the C2 vertebrae is not fused to the main body of the vertebrae, and as a result of that there is a potential instability in the upper cervical spine, which could, in a worse case scenario, lead to quadriplegia". Dr Liddell's opinion was that the condition was likely to have been present since birth, but came to notice as a result of the assaults which caused instability and pain. Neither the complainant nor the appellant was aware of this long-standing potential for instability arising from the os odontoidium.

9 As a result of the instability caused by the assaults, the complainant had to undergo extensive surgical procedures and suffered both temporary and permanent disablement. The following extracts from her victim impact statement illustrate the extent of the consequences of the assaults:

"Following the attack I had more than six months off work. I have had to have two major surgical operations on my neck involving bone grafts from my hip each time. I also had screws and wire grafted into my neck to prevent my spinal cord from severing which would paralyse me, and potentially leave me a quadriplegic or dead. These will have to remain permanently. Following surgery I had to wear a metal neck brace and was not able to live and function normally for months.

I had to be cared for by Community and Health Services and required Meals on Wheels.

Pain has been my constant companion. I have suffered from headaches and neck pain since the incident. I still cannot feel part of my head as it remains numb.

My whole life has changed; my mobility has been reduced by 30%. I feel I have paid with my heart, my soul, health and the loss of a normal family life. I have had to learn to live with the changes caused by the assault. This is something that will be part of me for the rest of my life both emotionally and physically."

10 In addition, the statement speaks of depression, loss of dignity, emotional pain and loss of self-esteem.

11 The learned sentencing judge was told that the appellant was 30 years of age and that he had no relevant prior convictions. He was employed and had been in the same employment for ten years. It was put, but as has been noted, rejected, that the crimes were out of character. During the course of the evidence, the learned sentencing judge heard that in March 2003, subsequent to the commission of these crimes, there was another assault on the complainant and that the appellant was in breach of his bail. Whether the later offence related to the former is not clear from the material in the appeal book.

12 In his comments on passing sentence, the learned sentencing judge referred at some length to the evidence given by Mr Liddell and made some findings with respect to it. He then referred to his refusal to receive a second victim impact statement and said:

"Mr Lambie, aged 30, has one relevant matter, namely the contravention of the terms of a notice, the event occurring on 28 March 2003 and being the subject of a court notation or record made on 6 May 2003. The matter was adjourned."

13 The foregoing is clearly a reference to the appellant's record of prior convictions which was included in the appeal book, inferentially included in the judge's papers at trial, but not referred to the learned sentencing judge by counsel on the sentencing hearing. It contains the following entry:

ADJOURNED FOR: 12 MONTHS : YOU MUST BE OF GOOD BEHAVIOUR AND COMMIT NO CRIME OR OFFENCE INVOLVING VIOLENCE DURING THE PERIOD OF THE ADJOURNMENT. APPEAR FOR CONVICTION AND SENTENCE IF CALLED UPON TO DO SO. (GLOBAL SENTENCE #1)"

14 Although there was evidence at the trial of an assault in March 2003 and a breach of bail, there was no material to identify this entry in the record of prior convictions with those events, and indeed, no material properly before the learned sentencing judge of that entry at all. Further, his Honour gave no indication of what weight that entry was given in the exercise of his sentencing discretion, but presumably it was given some weight as it was singled out for special mention.

15 I am of the opinion that the learned sentencing judge fell into error by taking into account this entry in the record of prior convictions when exercising his sentencing discretion. In R v Causby [1984] Tas R 54, Green CJ at 61 set out the common law with respect to the presentation of material relevant to the exercise of the sentencing discretion. His Honour said that statements in the judge's papers have no evidentiary status and should be disregarded unless they are properly presented in open court. He continued:

"That proposition follows from the fundamental principle that save for statutory exceptions a judge may only act upon materials which have been properly presented to him in open court in the presence of the accused. The statutory relaxation of the rules of evidence and procedure effected by the Criminal Code, s386(7), which provides that before proceeding to sentence 'the judge may receive such information, in oral or documentary form, as he thinks fit, and, in so doing, he is not bound by any rules of evidence' does not carry with it any implication that the judge may so receive such information anywhere but in open court. In many cases the most convenient method of conveying that information to the court is by counsel for the Crown simply stating in narrative form the facts upon which he relies without making any reference to the statements or papers at all. But if counsel does wish to rely upon any materials in the papers it is not sufficient to make vague references to all or some of the papers : he must do so by making express reference to particular statements or particular passages."

16 At 62, Neasey J expressly agreed with those observations as did Cox J (as he then was) at 68. These principles find expression in the Sentencing Act 1997, s81(2), which provides:

"(2) The court must ensure that the offender has knowledge of, and the opportunity to challenge, the information received by the court under subsection (1)."

17 Accordingly, it appears that the learned sentencing judge allowed an extraneous or irrelevant matter to guide the exercise of his sentencing discretion. See House v R [1936] HCA 40; (1936) 55 CLR 499 at 505; Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 at 519 - 520.

18 I would allow the first ground of appeal and quash the sentence. Accordingly, pursuant to the Criminal Code, s402(4), this Court should now pass sentence in substitution for the one from which the appeal is brought, or dismiss the appeal. It is convenient to consider this concurrently with a consideration of ground 2, even though different principles guide each task.

19 The key consideration on this issue is the extent of the appellant's criminal culpability for the consequences of his direct and intentional applications of force. It is clear that the learned sentencing judge sentenced upon the basis that the appellant was culpably liable for all the consequences of the criminal conduct. He said in his comments on passing sentence:

"I find that the blows administered by Mr Lambie brought about the injury and its consequence. Whilst the complainant was more likely to suffer the consequence than another, the offender ought nevertheless be held responsible for it. That this might have occurred at some future time remains a different matter. The sentence will reflect the consequence of the conduct."

20 The reference in the first sentence to injury must be a reference to the consequences of the applications of force and not the pre-existing condition, as the evidence was clear that the appellant did not cause the condition of os odontoidium. The learned sentencing judge also said "... the sentence takes into account the significant physical consequences of the conduct" and that "The consequence of the assaults was significant and of long standing."

21 It was common ground on the hearing of the appeal that those consequences were not foreseen by the appellant at the time of the commission of the crimes, nor reasonably foreseeable at that time. Should he be held culpably liable for those consequences?

22 This Court, differently constituted, looked at this question in Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1. The facts of that case do not bear any resemblance to the facts of this case, but the expressions of principle are relevant. In my reasons for judgment I reviewed a number of early Tasmanian and Victorian authorities and concluded, at 13, the consequences of a criminal act are a relevant consideration in the exercise of the sentencing discretion, regardless of whether those consequences were foreseen or ought to have been foreseen. I added that the weight given to unforeseen consequences would be far less than that given to foreseen consequences. Ms Jago, counsel for the appellant, put her submissions in support of ground 2 on that basis.

23 However, the other members of the court, Crawford and Zeeman JJ, did not share my views on this issue. At 23 - 24, Crawford J referred to Tasmanian authority and to Feldman v Samuels [1956] SASR 55 and R v Teremoana (1990) 54 SASR 30, and concluded that there was no satisfactory line of authority on the question of culpability for consequences that were neither foreseen, nor reasonably foreseeable. However, his Honour held that the legal issue did not arise on the facts of the case.

24 Zeeman J dealt with this question at 31 et seq. He, too, referred to earlier authority and noted in passing, the undoubted proposition, that in assessing an appropriate sentence, the sentencer must not take into account facts that would render the accused guilty of an offence for which he or she has not been charged. See R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. His Honour concluded at 32 that culpability only attached to those consequences "which should reasonably have been foreseen by the offender". He based this proposition on the principle that a just punishment must be imposed.

25 This issue was revisited by the South Australian Court of Criminal Appeal in R v Agius [2000] SASC 259; (2000) 77 SASR 469. At 475, Olsson J referred to what he described as "an undeniable weight of authority" to the effect that the consequences of criminal conduct that were neither foreseen nor reasonably foreseeable were not relevant for sentencing purposes.

26 Gray J (with whose reasons Wicks J agreed) undertook an analysis of the authorities on this point at 484, under the heading "Judicial opinion divided". The competing rationales were expressed by his Honour this way, at 487:

"The issue of causation is complex. Judicial opinion has often been divided. The issue may arise when the Court considers both guilt and penalty. Should there be a different approach to causation or a different test imposed?

It is said that to punish for something not reasonably foreseeable would be unjust as it would offend the concepts of justice and fairness. Unless a statute were to expressly provide, offenders should not be criminally responsible for true fortuities.

Alternatively, it has been contended that those who engage in crime must accept the consequences, foreseeable or unforeseeable. The principles of general deterrence therefore justify punishment for unforeseeable consequences. These two views are diametrically opposed."

27 His Honour dealt with the judgments in Inkson in some detail and referred to Royall v R [1991] HCA 27; (1991) 172 CLR 378, in which case, Brennan J (as he then was) observed, at 398 - 399 with respect to the actus reus of murder that "foresight or reasonable foreseeability marks the limit of the consequences of conduct for which an accused may be held criminally responsible".

28 Gray J concluded that this principle, applicable to criminal liability for conduct, should also be applied to culpability for the consequences of criminal conduct, and held at 488:

"... the Court should not treat an unintended, unforeseen and not reasonably foreseeable consequence as relevant to the issue of sentence. Causal responsibility has not been established."

29 I think that the preponderance of authority now indicates that this Court should adopt the same proposition. However, unfortunately, none of this was the subject of argument on this appeal and this Court should be reluctant to declare the common law on any issue without the benefit of submissions from counsel. Fortunately it is not necessary to do so in this case because:

* the appalling consequences of the appellant's criminal conduct were unforeseen by him and not reasonably foreseeable;

* even if my opinion in Inkson is good law, the exceptional circumstances of this case are such that the consequences should carry little adverse weight in the sentencing process.

30 The violence perpetrated by the appellant was serious. It involved a breach of trust arising out of the relationship between him and the complainant. It was not trivial. The first blow was only a single punch to the arm, but it was immediately followed by the appellant throwing the complainant to the floor where she probably suffered the serious injury. The force then escalated and resulted in the breaking of a rib.

31 I am of the opinion that the nature of the criminal conduct was such that a sentence of imprisonment is called for to mark condemnation of this kind of domestic violence and to punish the appellant. However, the fact that the appellant has no relevant prior criminal conviction indicates that a sentence of 12 months' imprisonment is manifestly excessive. Ms Brown, counsel for the respondent, conceded that the sentence was at the upper end of the range of sentences imposed for assaults of this kind. Were it appropriate to place full weight on the very serious, but unforeseen consequence of the assault, no error in the sentence would be apparent. However it is not appropriate to do that and in the circumstances I would allow the appeal and quash the sentence. In lieu thereof, I would impose a sentence of six months' imprisonment to date from 5 December 2006 and order the suspension of the execution of the balance of that sentence upon condition that the appellant be of good behaviour for a period of two years after his release from prison.