Mannie v Hibble [2006] TASSC 55

Lahey v Sanderson [1959] Tas SR 17, referred to.

Judgment Number: [2006] TASSC 55

PHILLIP JOHN MANNIE v ACTING SERGEANT KIM HIBBLE

1 On 11 May 2006, the applicant was sentenced in the court of petty sessions upon his plea of guilty to one charge of common assault, in that he unlawfully assaulted Heath Wyatt by punching him to the face. The sentence imposed was six months' imprisonment, with four months suspended on condition that the applicant be of good behaviour for a period of 18 months. The applicant has filed a notice to review, appealing against the sentence.

2 Very little is known of the assault. It occurred on a road at Deloraine at 3am on 1 January 2006. The applicant, who was 19 years of age, had been celebrating New Year's eve at a hotel. He was extremely intoxicated and was walking home. He and the complainant, a man of 29 years of age, were friendly acquaintances. The circumstances of their chance meeting on the road that night are not known. The complainant has no relevant recall. The learned magistrate was not told where the complainant had been earlier that night, whether the complainant had been drinking or why he was on the road at 3am that morning. The learned magistrate was told that when the applicant and the complainant met, there was a verbal argument, it is not known what about, the applicant punched the complainant once to the face, it is not known why, and the complainant fell flat on his back onto the road. The applicant dragged the complainant to the safety of the side of the road because a car was coming and he stayed with the complainant until help arrived. When interviewed by police, the applicant made admissions to the effect of the above and said that he could not recall what the argument was about or why he punched the complainant.

3 The learned magistrate gave comprehensive reasons for the sentence that he imposed on the applicant. He began by noting that the offence was out of character and that there was nothing of a violent nature in the applicant's record of prior convictions. (The record involved offences of dishonesty and traffic offences; the applicant had not previously been imprisoned.) The learned magistrate had before him a pre-sentence report on the applicant and a medical report on the complainant's injuries. The injuries suffered by the complainant were very significant. He was unconscious for nearly two days and was hospitalised for nine days. He was transferred to the neurosurgery department of the Royal Hobart Hospital. The initial finding on a CT scan was a large anterior-inferior left frontal lobe contusion with a moderate mass effect. He suffered post-traumatic amnesia that lasted several days. He was discharged on a combination of anti-epileptic medication as a prophylaxis to reduce the risk of suffering a seizure. Following his discharge from hospital, he required the assistance of members of his family. He was off all work until April, when he returned to work in a low level part time capacity until his endurance improved. A neuro-psychiatric assessment compiled on 28 March 2006 indicates that the complainant has made a remarkable recovery. He has been weaned off the anti-epileptic medication and has not had any seizure, although it will be twelve months before it is known whether he has avoided the complication of post-traumatic epilepsy. He has no detectable neuro-psychological impairment. He must avoid contact sport for a total period of twelve months.

4 As to the significance he placed on the complainant's injuries, the learned magistrate said:

"Now your attack on him which felled him was not, I gather, pursued by you, such as by putting the boots in or anything of that nature. But, nonetheless, where a blow is sufficient to fell a person resulting in injuries such as these the offence is and ought be regarded by these Courts as serious and significant and I so view this offence. Whether or not you have previously suffered a term of imprisonment is a consideration but less of a consideration, quite frankly, than the serious nature of this assault.

Now I think, I am not sure that I've said it, but this is not an offence of specific intent where it need be established that you intended to cause the injuries that he suffered, that's not the case at all here. It's a case of general intent only, where you intended to strike him, not to cause the injuries that resulted. But, nonetheless, those injuries are going to be taken into account."

5 The learned magistrate was quite right in paying regard to the complainant's injuries subject to the limitation that he not do so in a way that involved sentencing the applicant as if he had been convicted of a more serious offence; Lovegrove v R [1961] Tas SR 106 and R v Di Simoni [1981] HCA 31; (1981) 147 CLR 383. The complainant suffered serious injury to his health, which is grievous bodily harm within the meaning of that term as used in the Criminal Code. Accordingly, for the applicant to be sentenced on the basis that when he punched the complainant he either intended to cause him grievous bodily harm or foresaw the likelihood that such might result and proceeded regardless, it would have been necessary for the applicant to have been convicted of causing grievous bodily harm in breach of the Criminal Code, s172. He was not. In result, the learned magistrate could only pay regard to the complainant's injuries as being a consequence of the assault, but not one that was intended or foreseen; Prokopiec v R [1982] Tas R 170, Bennett v R 17/1990 and R v Marshall 70/1990.

6 Had it not been for the gravity of the complainant's injuries, nothing known about the circumstances of the assault warranted characterising it as so significant an offence that an immediately effective sentence of imprisonment was required. Nevertheless, in view of the extent of the complainant's injuries, a sentence of imprisonment was appropriate to mark the seriousness of the offence. The critical issue in this case was whether or not to wholly suspend that sentence. That issue was to be determined by the learned magistrate in accordance with the well-established principle that actual incarceration is a penalty of last resort. See James v Turner [2006] TASSC 54 [6] where I considered the same learned magistrate's failure to apply that principle when sentencing an offender for an assault. As to the issue of the suspension of the sentence, a number of matters were in the applicant's favour. At 19 years of age, he was comparatively young, he had no prior convictions for a crime of violence, had not previously been imprisoned, was living in a stable relationship, was employed, and imprisonment was likely to jeopardise his employment. His offence involved one forceful punch in the course of a drunken (at least on his part) verbal exchange. It was not a planned or sustained attack. He had shown genuine remorse. He had not abandoned the complainant. Had it not been for the applicant's admissions to the police, it was unlikely that he could have been successfully prosecuted for the offence. Against this background and given the applicant's comparative youth, very real attention needed to be paid to the desirability of wholly suspending any sentence of imprisonment that was imposed. In Lahey v Sanderson [1959] Tas SR 17 at 21, Burbury CJ said:

"It is because the public interest is best served if an offender is induced to turn from criminal ways to an honest living that a court rarely sends a youth to gaol except in the case of crime of considerable gravity (such as a crime involving violence), or in the case of a persistent offender who has shown himself not amenable to disciplinary methods short of gaol. The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the courts in England, Australia, and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed. It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility."

7 Whilst the applicant's offence was a crime of violence, the considerations encompassed by the above passage warranted attention. There was good reason to ameliorate the sentence of imprisonment by wholly suspending it and there was scope to couple that suspension with a community service order so as to provide the necessary punitive impact. Curiously, as the applicant was charged with common assault in breach of the Police Offences Act 1935, s35(1), less sentencing options were available to the learned magistrate than are available when a person is charged with assault in breach of the Criminal Code, s184. Because of the way in which the penalty provision in the Police Offences Act, s35(1A), is expressed, a sentence of imprisonment, whether suspended or not, cannot be coupled with a fine; Rosevear v Bonde [2005] TASSC 95 [6]. This, in my respectful view, is an unhelpful and unnecessary limitation. It is well recognised that where the scales are evenly balanced as to whether or not considerations of deterrence require the imposition of an immediately effective term of imprisonment, it may be appropriate to impose a fine, coupled with a wholly suspended custodial sentence; Briant v Bessell A62/1994 at 2 and R v Leigh (1969) 54 Crim App R 169 at 17

8 After referring to the complainant's injuries, as quoted in par4 of these reasons, the learned magistrate concluded his comments on passing sentence as follows:

"I've seen the pre-sentence report which indicates that you're a person who is a reliable worker and a good provider within your family unit. You've a good stable family unit. You are still a young man. There needs to be a balance, it seems to me, to be achieved between what the community can rightly expect for an offender such as you and what reasonabl[e] expectations of yours should be accommodated in order to achieve your ultimate reform.

Now I take into account in a general sense your counsel's submissions and in particular those submission to do with the fact that you've pleaded guilty at an early date. You made clear admissions to police. Any term of imprisonment, I gather, of any length would result in your loss of a job and financial difficulties for your family. That you expressed genuine remorse and I accept that. But in all I cannot escape the conclusion that a term of imprisonment is merited in this case.

You are convicted and sentenced to a term of six months' imprisonment. Having regard to your interests I suspend the execution of four months of that sentence upon the condition that you be of good behaviour that to be for 18 months following upon your release. Upon your release you will also be subject to a probation order. That will contain all the usual conditions which will be explained to you by your probation officer and will continue in force for six months following upon your release. You will pay the victim compensation levy of $20 together with costs of $28.

It ought to be recognised in a case such as this that general deterrence is a real consideration and there are cases of which the Courts are certainly aware that one blow in felling a person to the ground has in various instances been sufficient to kill such a person. So the community needs to be aware of the effects of this sort of behaviour of yours and to know that there will be a penalty of real significance if it's engaged upon. You will serve two months imprisonment. I order that the amounts due to be paid as directed by your probation officer but prior to the expiration of the probation order in any event."

9 The first ground of appeal is that the learned magistrate erred by placing undue weight on general deterrence. Comments made by the learned magistrate that provide some support for this ground are his reference to "what the community can rightly expect for an offender such as you"; his statement "I cannot escape the conclusion that a term of imprisonment is merited in this case"; and his conclusion "So the community needs to be aware of the effects of this sort of behaviour of yours and to know that there will be a penalty of real significance if it's engaged upon".

10 General deterrence is an important consideration when dealing with an offence of violence. In relation to some offences, for example, an employee's theft in a position of trust, the significance of general deterrence has been so elevated that a sentence of immediately effective imprisonment is inevitable except in exceptional circumstances; see Carreras v R (1992) 60 A Crim R 402 at 407, Franklin v R 82/1991, Underwood J (as he then was) at 5 and Jordan v R [2002] TASSC 121 [21]. The needs of general deterrence have not yet been so elevated in relation to an offence of violence and this is particularly so in the case of a young offender, with no prior conviction for a crime of violence, who has not previously been imprisoned. That this is so is well illustrated by the sentencing practice in this jurisdiction in relation to cases of wounding by impetuously striking a person with a glass or the like in a social situation. Whilst a sentence of imprisonment is the normal penalty, where the offender has no prior convictions, the sentence is often wholly suspended; Warner, Sentencing in Tasmania, 2nd ed, Federation Press, par11.309.

11 I am satisfied that in this case the learned magistrate has erred in placing undue weight on the needs of general deterrence and too little weight on the public interest in avoiding exposing a youth to the corrupting influence of prison.

12 The appeal is allowed. I will hear the parties before re-sentencing the applicant.