Lyons v Bakes [2015] TASSC 37

Judgment Number: [2015] TASSC 37

1. On 10 February 2015 the respondent pleaded guilty to one count of common assault contrary to the Police Offences Act 1935, s 35. He was convicted and sentenced by Magistrate McKee to imprisonment for 28 days, wholly suspended for two years. The applicant moves this Court to review the sentence on the sole ground that it is manifestly inadequate.

1. At about 1.30am on 13 July 2014 the complainant, Lawrence Chick, was outside his brother's unit in Burnie, where he was visiting. The respondent had been inside the unit but walked past the complainant as he left. He approached the complainant and said to him "you raped my missus and you think you can just say sorry and everything will be okay". The complainant replied that he did not want any trouble. The respondent then stepped towards the complainant and punched him twice to the right side of his face. He said to the complainant, "this isn't over; this is not the last of this".
2. The only information given to the learned magistrate about the impact of the assault on the complainant was that he "received a broken eye socket and required corrective surgery".

The applicant's record and personal circumstances

1. Submissions were made to the learned magistrate on behalf of the respondent on 10 February 2015. His Honour also properly took into account matters put to him in mitigation on behalf of the respondent on 13 January 2015 concerning other offences. At the time of this offence the respondent was 23. He is now 24. He has five children. His childhood was marred by the suicide of his father, and violence and alcohol abuse at home. Remarks by other sentencing courts have described his upbringing as dysfunctional. He is of low intelligence. He suffered a brain injury in a motor cycle accident when he was 8. He lived on the streets from about age 12. Since then his life has been characterised by abuse of alcohol and illicit drugs, including morphine and methylamphetamine. His abuse of drugs is reflected in his bad record of offending. As a youth he committed many offences, including common assaults, for which he was given actual and suspended detention. As an adult his offending continued. On 30 April 2010 he was sentenced to imprisonment for eight months, partly suspended, together with community service and probation, for numerous summary offences including three counts of common assault. On 18 May 2010 he was sentenced to a further eight months' imprisonment, to be served cumulatively, for a Criminal Code assault committed on 6 July 2009. When sentencing the respondent on that occasion the learned sentencing judge referred to the respondent's tendency for violence. Imprisonment did not deter the respondent from continuing to offend. On 20 March 2013 a magistrate made a drug treatment order with a custodial part of 12 months for more than 50 summary offences, including six common assaults committed between January 2009 and June 2012. It is not clear how a drug treatment order came to be made for offences of violence having regard to the Sentencing Act 1997, s 27B(1)(a)(ii). I can only assume that the magistrate concluded that none of the common assaults involved the infliction of actual bodily harm which was not minor. In any event, it appears that there were problems with his compliance with the order because a fresh drug treatment order was made for the same offences in the same terms on 21 August 2014. That order did not remain in place for long. He re-offended and the order was cancelled on 15 October 2014. He was required to serve seven months of the custodial part of the sentence as well as a cumulative period of two months for the new offences. Then, in February 2015, the respondent was found guilty by a jury of unlawfully setting fire to property. I have not been told of the date of that crime but it must have been before 15 October 2014. He was sentenced by Estcourt J on 4 February 2015 to imprisonment for five months wholly suspended for two years. At the time of this crime the respondent was subject to a warrant for his arrest
2. In the course of his sentencing remarks, Estcourt J said of the respondent that "he made good progress under the drug treatment order until his personal life became unstable in April 2014, and being unable to cope he returned to his prior heavy drug use". The offence which is the subject of this appeal was also committed during the period between April 2014 and October 2014 when the respondent had returned to heavy drug use. The sentences imposed by the learned magistrate were imposed only a week after the order made by Estcourt J. On both dates the respondent was still serving the sentence which had been imposed in October 2014. The magistrate also sentenced the respondent for other offending. He imposed a concurrent sentence of imprisonment for 28 days for driving offences and was fined for breaches of a family violence order and disorderly conduct.

1. I stated the principles to be applied by a court determining a motion to review a sentence imposed by a magistrate on the grounds of manifest excess or inadequacy in Barrett v Wilson [2015] TASSC 3; (2015) 69 MVR 333. Error must be demonstrated. For appeals based on manifest inadequacy, it must be established that, whilst recognising that magistrates have a wide sentencing discretion, the sentence imposed is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion. An appeal court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. I respectfully agree with Crawford J (as he then was) when he stated, in Visser v Smart [1998] TASSC 151:

"An appellate court must not interfere with the exercise of the sentencing discretion except in a clear case of error. A magistrate is vested with a very wide discretion. Whittle v McIntyre [1967] Tas SR 263 (NC6). It is not sufficient to set aside a sentencing order just because a more severe sentence would have been imposed by the appellate court. In the circumstances of this case, the motion must fail unless the Court is satisfied that the sentence was manifestly wrong in its inadequacy, as to amount to a clear error in the sentencing process. Such principles have been stated by courts of this State on a great many occasions and come from the High Court in cases such as House v R [1936] HCA 40; (1936) 55 CLR 499, Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 and Harris v R [1954] HCA 51; (1954) 90 CLR 652. Notwithstanding the wide sentencing discretion in the court below, it is the duty of the appellate court to interfere where it is necessary to do so to avoid such manifest inadequacy in sentence or inconsistency in sentencing standards that the error is of such gravity that it is essential in the administration of justice that the error be corrected. It is not necessary to identify any particular error of law made. The error can be implicit in the excessive leniency in the sentence imposed."

1. Manifest excess or inadequacy must be plainly apparent: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, per Gleeson CJ and Hayne J at [6]. The expression of manifest excess or manifest inadequacy is a conclusion formed by giving regard 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. In this case the impugned sentence is for common assault. The offence is punishable by a penalty not exceeding 20 penalty units or to imprisonment for a term not exceeding 12 months: Police Offences Act, s 35(2). The conduct which may constitute a common assault may range from the most trivial but unlawful application of force to the application of force so serious that, subject to prosecutorial discretion, it may have justifiably been charged as a crime under the Code. For that reason, appeals against sentences for common assault are rarely suitable vehicles for appellate courts to establish principles of general application for the guidance of sentencing courts. A range for sentences for the offence cannot be established and little guidance is to be obtained, in general terms, from sentences imposed for Code assaults. Even so, in this case, manifest inadequacy is plainly apparent. It is a clear case of error. That is so because the sentence was so disproportionate to the seriousness of this particular offence. A wholly suspended sentence of imprisonment for 28 days fell well short of the sentence that this offence demanded. The respondent committed an unprovoked assault by repeated blows which caused facial fractures to the victim which required surgery. But for his plea of guilty, there was little else to be said in mitigation. A submission was made to the learned magistrate that the respondent reacted as a result of a belief that the complainant had engaged in inappropriate sexual relations with the respondent's partner. Any such belief provides no mitigation for the infliction of the type of violence he used. If the offence was causally related to the respondent's drug addiction, and there was little to suggest it was, it was not a mitigating factor: Director of Public Prosecutions v CSS [2013] TASCCA 10 at [29]. Given the respondent's bad record for violence over a long period, and the severity of this assault, the prospect of rehabilitation was not such as to displace deterrence and punishment as the principal sentencing considerations. He had already had the benefit of suspended sentences. He had been to prison before and was in prison at the time of sentence. He was not entitled to the lenience extended to youthful offenders, especially those not previously sentenced to imprisonment. At the time of sentencing, the only suggestion that rehabilitation was possible was that the respondent had been drug free since having been in prison. No material was given to the learned magistrate indicating how the respondent's low intelligence may have affected his behaviour. Even if it was such as to make the respondent an inappropriate subject for a sentence of general deterrence, a sentence protecting the public from his ongoing violence was required.
2. The adequacy of the sentence imposed by the learned magistrate is to be considered in light of the so-called totality principle, which was reviewed by me in Hall v Tasmania [2015] TASCCA 6 and by Wood J in Young v Wilson [2015] TASSC 16. The principle applies here because the respondent was sentenced at a time when he was already serving another sentence of imprisonment and was, by then, also subject to the suspended sentence imposed by Estcourt J a week earlier. As Hunt CJ at CL in R v Gordon (1994) 71 A Crim R 459 pointed out at 466:

"When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable."

1. All that need be said here is that the view I have reached about the inadequacy of the sentence imposed by the learned magistrate is not altered when the sentence he was already serving for other, quite separate, offending is taken into account. I have some sympathy for the position the learned sentencing magistrate found himself in. He had just delivered a reserved decision about a family violence complaint. He had been asked to sentence the respondent for other offending. He was asked to deal with this matter at short notice and had little time to consider it. In all of those circumstances it is easy to see how the serious nature of this offence may not have been fully appreciated. It was, in my respectful view, more serious than the crime for which he was sentenced by Estcourt J to a five-month wholly suspended sentence. The learned magistrate's sentence failed to meet the required objectives of punishment and specific deterrence, even when the total effect of all sentences was taken into account.

1. Counsel for the respondent submitted that I should, in determining whether to allow the motion, apply the circumspection applicable to consideration of Crown appeals explained in Attorney-General for the State of Tasmania v McDonald [2002] TASSC 120; (2002) 11 Tas R 221. Before legislative intervention, the principles applying to Crown appeals against sentence were settled: Director of Public Prosecutions v Chatters [2011] TASCCA 8; (2011) 21 Tas R 26 at [5] and following, referring to R v Allpass (1993) 72 A Crim R 561 at 562-563 and R v Clarke [1996] VicRp 83; [1996] 2 VR 520 at 522. Crown appeals against sentence were less readily allowed than defence appeals against sentence and a higher threshold for error was applied: Chatters at [11]. That is because it has been regarded as unfair, and a type of double jeopardy, to put the liberty of a defendant in jeopardy before a sentencing court and again, for a second time, before an appellate court. In addition, a defendant is exposed to additional anxiety and stress: R v Hayes (1987) 29 A Crim R 452 at 469, Kirby J. This issue first arises when considering whether to allow or reject an appeal. In R v Osenkowski (1982) 30 SASR 212, King CJ at 212-213 said:

"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

1. Crown appeals should be brought only in limited circumstances, such as where a sentence reveals such manifest inadequacy as to constitute an error in principle, or where a sentence is so disproportionate to the seriousness of the crime as to shock the public conscience. A Crown appeal against sentence should be allowed only if there is manifest inadequacy, or if it is shown that the sentencing judge fell into material error of law or fact: R v Clarke (above) at 522.
2. The Court of Criminal Appeal in Chatters also made reference to the notion of a "residual discretion", a notion also recognised in R v Dowie [1989] Tas R 167. An appeal court has a residual discretion to dismiss a Crown appeal, even if it concludes that the sentence is manifestly inadequate, on a basis other than double jeopardy. See also Chatters at [17]-[18] referring to the decision of Spigelman J in the NSW Court of Criminal Appeal in R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7. The residual discretion is described in Allpass in the following terms:

"An appellate court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection the conduct of the Crown at the original sentencing proceedings may be a matter of significance".

1. The second occasion for consideration of issues of double jeopardy arises, if an appeal succeeds, in re-sentencing. At common law, an appellate court re-sentences in light of the facts and circumstances as at the time of the original sentencing. Events which have occurred after the original sentence may be taken into account: Allpass at 563.
2. The operation of the principles to which I have referred is now affected by legislation. The powers of the Supreme Court in determining a motion to review are contained in the Justices Act, s 110. The powers include to set aside or quash the order reviewed and to exercise any power that might have been exercised by the magistrate in relation to whose order the motion to review is made: s 110(2)(b) and (i). On 1 September 2013, the Justices Act was amended to insert s 110(2AA) and (2AB) in the following terms:

"(2AA) The court, on hearing a motion to review in relation to an order imposing a sentence on a person in relation to a matter, may, whether the person who filed the notice of review in respect of the order was the person or the prosecutor, take into account any matter, relevant to sentencing, that has occurred between when the justices who made the order dealt with the person in relation to the matter and when the court hears the motion to review.

(2AB) Despite subsection (2AA), the court, in exercising in relation to an order a power under subsection (2), the effect of the exercise of which is that the person to whom the order relates is being sentenced again for an offence, must not take into account any element of double jeopardy involved in the person being sentenced again so as to impose a less severe sentence than the court would otherwise consider appropriate."

1. Those provisions are similar, although not the same, as those in s 402 of the Code in the form considered by the Court of Criminal Appeal in Director of Public Prosecutions v Chatters (above). At the same time that the amendments to the Justices Act were made, the Code was also amended. Again, the provisions in the Justices Act and the amended Code provisions are similar but not the same. Section 110(2AA) does not, to my mind, prohibit a court from taking account of double jeopardy type considerations in a decision whether to allow or reject an appeal. Counsel for the applicant did not submit to the contrary. The provision does not, unlike the New South Wales and Victorian provisions referred to in Chatters at [15] and [24] respectively, expressly extend to the issue of whether an appeal should be allowed or dismissed. It does not contain the words which appear in the Western Australian provision described in Chatters at [31] as indistinguishable from Tasmania's Code provision in s 402(4A) (in its terms before the most recent amendment) which led the Court of Criminal Appeal to determine that the double jeopardy principle has no operation to the detection of error in Crown appeals to which that provision applied. The terms of s 110(2A) expressly provide that a court determining a motion to review may take into account matters occurring between the original sentencing and determination of the appeal. However, in my opinion, the terms of the restriction in s 110(2AB) on taking into account "any element of double jeopardy" have no application other than where a person is being "sentenced again". Counsel for the applicant did not submit to the contrary. Section 110(2AB) does mean, however, that the court, on re-sentencing after a successful appeal, is not to take into account any element of double jeopardy so as to impose a less severe sentence. An appellate court may, nevertheless, take into account matters relevant to rehabilitation and specific deterrence occurring between the original sentence and re-sentencing.
2. The view I have just expressed does not alter my conclusion about the disposition of this motion. The respondent was released on 10 April 2015 after having served the sentences in place when sentenced after remissions were taken into account. At the time the motion was heard the respondent had not been in custody since his release, had gained employment and not offended further. Those are matters relevant to the determination of the appeal, both as to double jeopardy and the exercise of the residual discretion. However, even taking into account a higher threshold for Crown appeals and the unfortunate circumstance whereby the respondent's liberty is in jeopardy for a second time after a period of release, this is a very clear case where the sentence is so disproportionate to the seriousness of the crime that appellate intervention is required. The motion must be allowed and the sentencing order quashed.

1. The motion to review is allowed. The sentencing order of the magistrate on complaint 52634/14 is quashed. I will re-sentence the respondent after hearing from the parties.