Criminal law - Appeal and new trial - Appeal against sentence - Appeals by Crown - Principles applied by Appellate Courts to Crown appeals.

Magistrates - Appeals and review - Tasmania - Motion to review - The hearing - Generally.

Wisniewski v Tasmania [2007] TASSC 25; Her Majesty's Attorney-General v O [2004] TASSC 53, referred to.

Judgment Number: [2009] TASSC 67

1 On 6 March 2009, Dwayne Grant Seabourne ("the respondent") was sentenced by a magistrate in respect of numerous offences described in a number of complaints. The offences were of different types and the learned magistrate dealt with the offences in batches, imposing different sentences for different batches of offences. The State seeks a review of those sentences on the ground that they are manifestly inadequate. The review is, however, confined to two batches of offences, in respect of which a suspended sentence was imposed.

2 There were three global sentences imposed. Global sentence 1 related to the following offences:

A global penalty of a $750 fine was imposed for the above offences. No complaint is made in respect of that sentence.

3 Global sentence 2 related to the following offences:

The respondent was sentenced to serve a period of five months imprisonment in respect of this batch of offences. The whole of the sentence was suspended. This sentence is the subject of review.

4 Global sentence 3 related to the following offences:

A global sentence of four months imprisonment was imposed for these offences. The whole of the sentence was suspended. In addition, the respondent was made subject to a probation order for 12 months. This sentence, insofar as it relates to the suspension of the term of imprisonment, is the subject of the review.

5 There were eight other offences on six complaints. The learned magistrate either imposed a single penalty on each complaint or imposed none at all. These sentences are not the subject of review. The offences were however as follows:

6 On the same date the respondent was sentenced in respect of all the matters listed above, he was re-sentenced in relation to a number of driving matters following a breach of a community service order. Those offences were five counts of driving while disqualified and other minor traffic matters. A suspended sentence was imposed for that offending. That sentence is not the subject of any review.

7 The offending, the subject of this penalty, occurred over the period 2/10/06 to 18/11/08, that is over a period of just over two years. The first offence in October 2006 involved the respondent, then aged 18, and an older male, booking accommodation under a false name and leaving the establishment without paying for the accommodation or a quantity of alcohol and food used. The unpaid account was for $1,728. Between 14 November 2006 and February 2007, the respondent stole a pump valued at $330. On 4 February 2007, the respondent was found with $273 worth of stolen alcohol. On 11 March 2008, the respondent found a car, partially stripped, unattended and took it. Two days later, he was charged with having received stolen property to a value of $5,000 over the preceding two days, and with obstructing police when they attempted to intercept him. On 15 April 2008, the respondent entered a property and stole $300 worth of fuel. On 18 October 2008, the respondent was found in possession of three chainsaws believed to have been stolen. On 18 November 2008, the respondent was found in possession of stolen property to a value of $1,148.99. At the time some of these offences were committed, the respondent was on bail in respect of other matters.

8 On 12 December 2005, a police family violence order was made for the protection of a Cassandra Deering. On 12 May 2006, the respondent breached that order by head-butting Cassandra Deering to the head and punching her to the stomach. He was charged with that breach and assault. He was found guilty following a hearing. On 5 January 2007, a second police family violence order was made for Ms Deering's protection. The respondent breached it on 19 January 2007 by approaching her. At the same time, the respondent smashed the rear window, head lights and tail lights of a car belonging to Ms Deering's new partner. The respondent breached the order again on 6 February 2007 by approaching Ms Deering. At the time of this breach, he was on bail following that on 19 January. On 5 June 2007, the respondent breached the order yet again by sending a threatening text message to Ms Deering. At the time, he was on bail for both the January and February breaches.

9 On 2 October 2008, a police family violence order was made for the protection of Dana Elisa Smith. On 26 October 2008, the respondent breached that order twice. The first was by assaulting Ms Smith by kicking her to the head, and the second was by abusing her by telling her she was lucky he did not slit her throat. He also told her he should have snapped her neck. He was charged separately with assault arising from the first breach, and with abusing police when they intercepted him. On 27 October 2008, an interim family violence order was made which required the respondent to immediately surrender firearms. On 2 November, the respondent breached the order by failing to surrender a firearm he had in his possession.

10 Counsel for the respondent put a number of matters to the learned magistrate in mitigation. These were:

- the respondent was a youthful offender, being only 20 years of age,

- he had the shared care of a young child, that is his son with Ms Deering,

- he had not spent time in custody save for a month prior to the date upon which he was ultimately sentenced,

- he had employment available to him on release,

- he had positive social influences in the form of involvement with a darts club,

- he intended to sever his connection with negative influences,

- the complainant, Ms Deering, had instigated the approaches which resulted in some of the breaches of police family violence orders,

- the respondent, having initially fled the State, voluntarily returned and handed himself in to police,

- he intended to seek help for anger management and alcohol and drug issues.

11 Further matters in mitigation were that the respondent had pleaded guilty to most matters for which he was sentenced and, at the time of sentence, almost the entirety of his prior matters were driving matters.

12 Counsel for the State identified a number of aggravating features relating to the respondent's offending.

13 Many of the offences for which the respondent appeared were committed while the respondent was on bail. These included both some of the family violence matters and dishonesty matters. In Wisniewski v Tasmania [2007] TASSC 25, Crawford J (as he then was) said at par10:

"A continuation of criminal conduct after having been charged and bailed is frequently regarded by courts as a matter of aggravation. It shows utter contempt for the law and authority. In R v Devine (No 2) 56/1998, Slicer J at 2 referred to it as being aggravating because it shows persistency of conduct. Professors Fox and Freiberg in Sentencing - State and Federal Law in Victoria, 2nd ed, observed at 289, 'the fact that the offender has repeated the offence previously charged while entrusted to remain in the community adds markedly to the gravity of the offence'. ... If an offender manifests a continuing attitude of disobedience of the law, 'retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted'. Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477."

14 As to the family violence matters, the respondent breached a police family violence order by committing a serious assault upon Ms Deering five months to the day after that order was put in place for her protection. Whether Ms Deering may have approached the respondent on this occasion was quite irrelevant to the seriousness of the breach. As to the offences which followed the making of the second police family violence order for her protection, if indeed Ms Deering approached the respondent and thus instigated the breaches by approaching him, that would be a factor relevant to sentence. However, it could have no relevance favourable to the respondent in the case of a breach involving a threatening message sent by text.

15 As to the family violence offences relating to Ms Smith, these occurred at a time when the respondent had been through the process of there being orders obtained against him, and breaching them, with Ms Deering. Notwithstanding that, the respondent breached another police family violence order by committing a serious assault upon Ms Smith and followed it up with significant abuse to her. That Ms Smith may have continued, at the time of sentencing, to be in a relationship with the respondent, in no way reduces his culpability.

16 As to the offences of dishonesty, again particularly in 2008, the respondent continued to offend on a regular basis, more than once while he was on bail for earlier matters. The overwhelming inference to be drawn from the respondent's behaviour was that he treated police family violence orders and bail orders with contempt. This is further supported by the respondent's attitude to appearing for sentence. The respondent pleaded guilty to a number of offences which involved his failure to appear before the court in respect of both the dishonesty and family violence matters. Notwithstanding that, when he was bailed to appear before the learned magistrate for sentencing in December 2008, he failed to appear. As a consequence, sentencing was delayed for approximately three months.

17 A further factor relied on by counsel for the State as an aggravating factor was the value of the property and services, the subject of the respondent's dishonesty offences. Many thousands of dollars were involved.

18 Counsel for the respondent submitted that the respondent was a young man, who had offended over quite a long period of time and offended in different ways. However, at the time of the offending, he had no relevant prior convictions. She submitted that the dishonesty offences were at the low end of the scale. She also submitted that Ms Deering had instigated the breaches of the not-approach orders and that the assaults committed in respect of Ms Deering and Ms Smith involved no lasting injury. The learned magistrate imposed, in effect, a nine month term of imprisonment having considered the nature of the offending, and then looked at the mitigating factors. He took into account that the respondent had only ever spent a brief time in custody on remand, and that, therefore, in the circumstances of this case, it was entirely appropriate to suspend the entirety of the term of imprisonment imposed. It did not impact adversely on the deterrent effect of that sentence.

19 This is, in effect, a Crown appeal against sentence. The sole ground of review is that the sentence imposed by the learned magistrate was manifestly inadequate in all the circumstances of this case. No specific error is relied upon. The complaint is simply that the inadequacy of the sentence alone demonstrated error. In Her Majesty's Attorney-General v O [2004] TASSC 53, Blow J said, commencing at par31:

"31 The principles relating to Crown appeals against sentence are well established: Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 per Barwick CJ at 301; Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 per Deane and McHugh JJ at 234; Everett v R [1994] HCA 49; (1994) 181 CLR 295 per Brennan, Deane, Dawson and Gaudron JJ at 299; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at 340 - 341; R v Harland-White Court of Criminal Appeal, 23/1997 per Crawford and Slicer JJ at 4.

32 In R v Osenkowski (1982) 30 SASR 212 at 213 King CJ made the following observation, with which White J agreed:

'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 crime 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.'

33 In R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522, Charles JA, with whom Winneke P and Hayne JA agreed, reviewed the relevant authorities and derived from them a number of propositions, the first two of which read as follows:

'1 An appeal by the Crown should be brought only in 'the rare and exceptional case' (Everett at 299) to establish some point of principle. The reason is that such appeals "represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy" (Malvaso at 234).

2 Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to law down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski at 213) (f); to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306).'

34 A similar summary of the principles applicable to Crown appeals was formulated by the New South Wales Court of Criminal Appeal (Gleeson CJ, Hunt CJ at CL and McInerney J) in R v Allpass (1993) 72 A Crim 561 at 562. That summary begins as follows:

'1 A Court of Criminal Appeal which is dealing with an appeal against sentence does not simply embark upon the task of sentencing afresh, substituting its own opinion for that of the sentencing judge, and increasing the sentence if it considers it to be inadequate, or decreasing the sentence it if considers it to be excessive. An appellate court will only interfere if it is demonstrated that the sentencing judge fell into material error of law or fact. Such error may appear in the reasons given by the sentencing judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing judges have a substantial discretion, and the appellate court does not intervene simply upon the basis that the members of that court would have exercised their discretion differently from the judge at first instance.

2 Crown appeals against sentence are relatively infrequent. The High Court has said that such appeals "should be a rarity": Griffiths [1977] HCA 44; (1977) 137 CLR 293 at 310; Malvaso [1989] HCA 58; (1989) 168 CLR 227 at 234; [1989] HCA 58; 43 A Crim R 451 at 456. One reason for this is the element of double jeopardy that is involved in such appeals.'

35 The summaries of the principles relating to Crown appeals against sentences in Allpass and Clarke were approved by all seven judges of the High Court in Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 at 671.

36 The authorities to which I have referred make it clear that on some occasions a Crown appeal against sentence should succeed even though there is no need for the appellate court to give guidance to sentencing judges or correct the idiosyncratic views of individual judges."

20 The remarks of Blow J set out above were contained in a dissenting judgment. However, there can be no argument with the principles of law he set out. It was the application of them to the facts of the particular case, which resulted in his dissenting view.

21 Because of the way in which the learned magistrate sentenced the respondent, this review, in effect, is a review of two separate sentences. While many of the factors to which both counsel have referred are relevant to a consideration of whether there was error in relation to each of these sentences, a consideration of that question produces a different result in respect of each sentence.

22 In relation to the family violence matters, the learned magistrate was dealing with six breaches of police family violence orders, two assaults, a breach of an interim family violence order which involved a failure to surrender a firearm, the damaging of property, and abuse of police. The offences were over two different periods, reflecting relationships with two different female partners of the respondent. The respondent committed a serious assault upon the first. When the police family violence order first obtained, which was breached by that assault, apparently expired, a fresh order was obtained which was breached within approximately a fortnight of the date upon which it was made. While the breaches which followed relating to that order may very well have been instigated by the person to be protected by the order, that does not explain the respondent's complete disregard for the terms of the order or his willingness to damage a car of his ex-partner's new boyfriend. Having, as I have already said, gone through all the process of orders being obtained and being breached in relation to Ms Deering, the respondent, when made the subject of a second police family violence order in relation to Ms Smith, breached that by committing a significant assault upon her within a few weeks of the order being made, and then breaching the order further by abusing her.

23 While it is accepted that, at the time the respondent was dealt with for all of this offending, he was still a young man with no relevant prior history, the legislation pursuant to which he had been charged was enacted to protect members of the community, and in particular to protect persons in close relationships with offenders. Deterrent sentences were required to give effect to that legislation. Counsel for the respondent referred to passages from the text of Professor Warner, Sentencing in Tasmania, 2nd ed. in relation to the way in which suspended sentences should be regarded. I accept the passages quoted as being the correct approach. However, in practical terms, it is impossible in my view to argue that the deterrent effect of an actual term of imprisonment is the same as that of a suspended term of imprisonment. Counsel for the respondent, in her plea in mitigation, pointed to the impact the short period spent in custody had had on the respondent in support of her submission that he should not be further imprisoned.

24 However, with respect, the respondent was a repeat offender. He had risked imprisonment with the first set of offences and yet, before they were resolved, he had re-offended in a very similar manner. In my view, he showed a complete disregard for the orders made to restrict his behaviour and should have felt the full effect of a deterrent sentence, notwithstanding his age and lack of prior history. I would accept that, had his offending extended only to breaching not-approach requirements potentially instigated by the person to be protected, the situation would have been different. However, the respondent's offending went far beyond that, extending to physical assaults of two separate female partners.

25 I am of the view in the circumstances that the sentence imposed by the learned magistrate in relation to the batch of offences incorporating the family violence offences was manifestly inadequate in all the circumstances. I am of the view that the respondent should have been ordered to serve the period of four months imprisonment ordered.

26 The question does arise as to whether the respondent should be ordered to serve that sentence given the time that has passed since the suspended sentence was imposed. As at the date upon which the respondent was sentenced, he had been in custody for a month. That had occurred because he failed to appear before the court for sentence in December 2008. The court records show that a warrant was not immediately issued for the respondent's arrest when he failed to appear. The matter was adjourned to another date in January, I infer, to give the respondent's counsel time to have the respondent voluntarily present himself. That did not occur, and a warrant was issued, resulting in the respondent's arrest and incarceration. The respondent's actions at that time tend to reinforce the view that he showed little regard for court orders.

27 In a somewhat disjointed plea in mitigation offered over different dates, it appeared that the respondent had some work with family. While he shared the care of a child, during any period which he worked, his mother cared for that child. It was intended that, following sentence, the respondent would return to live with his parents. The learned magistrate was told that the respondent also had a continuing relationship with Ms Smith and that they planned to buy land to build a home. It can be inferred from the exchange between counsel and the learned magistrate that, at the time that information was provided to the magistrate, a family violence order of some description still remained outstanding against the respondent in respect of Ms Smith.

28 Although the submission was not made by his counsel, it might be argued that it would be unfair in all the circumstances to return the respondent to custody several months after his release. However, there can be no doubt in my view that an error was made in respect of this particular sentence. If that error is not corrected by the imposition of an actual term of imprisonment, the perception remains that a sentence was imposed for certain offending which lacked the requisite deterrent effect.

29 As to the sentence imposed upon the respondent in relation to dishonesty offences, I am of the view that the situation is different. I accept that the offending was at the low end of the scale, that the respondent was a youthful offender, and that he had no prior relevant convictions. It was appropriate in the circumstances, and within the range of the learned magistrate's sentencing discretion, to impose a sentence of imprisonment by way of a deterrent, but to reflect the mitigating factors in a suspension of that sentence.

30 The notice to review is to succeed insofar as it relates to the sentence imposed for the offences identified in par4 of these reasons. The sentence imposed for those offences, insofar as the learned magistrate suspended the operation of the term of imprisonment imposed, is quashed. As a consequence, the respondent is to serve a period of four months imprisonment. The respondent has already served a period of a month from 8 February 2009 to 6 March 2009. To take that period in custody into account, the respondent is ordered to serve a period of three months' imprisonment commencing from the expiry of any sentence that he is currently serving.

31 Insofar as the notice to review has not been finalised by the above orders, it is dismissed.