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[2001] TASSC 73
appellant. Both appeals allowed. Robert Mansell's five-year sentence, commencing 7 June 2000, was quashed and a sentence of four years from that date substituted. Rohan Mansell's five-year sentence,...
The Court of Criminal Appeal concluded that the five-year sentences were too long in light of the sentencing experience for comparable offences and the appellants' early guilty pleas, even though the attack was very serious and both men had significant records. It replaced Robert Mansell's sentence with four years and Rohan Mansell's with three years and nine months. The Court did not decide the general question of whether an unforeseeable consequence can be considered in sentencing.
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Robert Dean Mansell and Rohan Gregory Mansell appealed sentences imposed after each pleaded guilty to one count of causing grievous bodily harm under s 172 of the Criminal Code. The sentencing judge imposed five years' imprisonment on each, running from the date each was first taken into custody. The Court of Criminal Appeal allowed both appeals. Its formal orders substituted four years for Robert Mansell and three years and nine months for Rohan Mansell.
No linked legislation citations have been extracted yet.
The offending took place near Ritchie's Mill in Launceston on the evening of 5 June 2000. The men had been drinking with the victim and two other co-offenders, Coad and Evans. Rohan made an unfounded allegation that the victim had raped a girl years earlier. Coad began punching the victim, and all four men took turns assaulting him. The attack continued for about 20 minutes. Robert punched and head-butted the victim; Rohan punched him in the face several times. The victim suffered multiple fractures to his face and a fracture to the neural arch of the second thoracic vertebra. He was left unconscious and bleeding outdoors on a winter evening.
The facts presented at sentencing were that the victim moved short distances before falling into the Tamar River. Passers-by heard his calls for help and rescued him. He was taken to hospital hypothermic, with a body temperature of 33 degrees Celsius, and remained in hospital for 16 days. The medical report described his injuries as serious and life-threatening.
The appellants pleaded guilty early. Rohan admitted striking the victim and expressed remorse. Robert made no admissions in interview, but pleaded guilty at his first court appearance. Both had extensive criminal records. Robert's included earlier convictions for grievous bodily harm, rape, aggravated assault and wounding. Rohan's record included numerous offences, including assault convictions and a 15-month prison sentence for an assault in similar circumstances.
The appeal concerned whether five years was manifestly excessive; whether the victim's fall into the river and hypothermia could be considered; and whether Rohan had wrongly been characterised as the instigator. The judges agreed that the appeals should succeed, but their explanations were not identical. Cox CJ considered the instigator description erroneous but immaterial. Slicer J considered the description supportable in the sentencing context. Both declined to disturb the outcome on the river and foreseeability point. The formal orders set the different sentences.
The Court did not treat a historic sentencing range as a fixed ceiling. It treated the range as relevant context for assessing consistency and whether the sentences revealed error. At the same time, the seriousness of the individual offending remained central.
Slicer J recorded that sentencing statistics for s 172 offences showed no sentence above three years in the cited period from 1978 to 1989, and that the Court's database for 1989 to 2000 showed no longer sentence and an average range between 14 and 20 months ([25]). Those figures did not rule out a longer sentence. Slicer J said, however, that a significant departure required special reasons before the existing range could be exceeded without notice or incremental change ([25]). The reasons also referred to the principle that consistency matters in criminal administration, while emphasising that sentencing remains an assessment of the particular case ([26]).
On the facts, the offending warranted a substantial term. The judges described the assault as vicious, prolonged and grave. The victim was seriously injured, left helpless, and exposed to the elements. Both appellants had relevant criminal histories. Deterrence and denunciation were significant considerations, as Cox CJ explained ([9]). Slicer J highlighted Robert's previous convictions for grievous bodily harm and wounding, and the difference between his record and Rohan's ([21], [29]).
The decisive sentencing error was that the five-year terms did not adequately reflect the early guilty pleas. Slicer J concluded that the sentences exceeded the existing parameters and failed to reflect cooperation and immediate pleas ([27]). Evans J likewise considered that the sentences did not appear to include an appropriate reduction for the pleas ([30]). Evans J compared the sentences with the recorded sentencing history and concluded that the history, combined with the entitlement to a reduction for the pleas, made the terms manifestly excessive ([37]).
The Court therefore did not hold that a sentence above three or three and a half years could never be imposed for grievous bodily harm. It held that these particular five-year sentences, considered against the offence, the sentencing experience described in the reasons, and the early pleas, were excessive. The replacement terms remained lengthy, reflecting the seriousness of the attack and the offenders' backgrounds.
The different substituted sentences reflected differences in criminal history, not different views about the gravity of the assault. Slicer J considered that Robert's more serious record justified four years, while Rohan's record and character supported three years and nine months ([28]-[29]). Evans J reached the same sentencing distinction ([38]). The reasons also state that no parity issue arose between the appellants and Coad and Evans because there were appropriate reasons for distinguishing between those co-offenders ([18]).
The judgment addresses the relationship between sentencing ranges and individualised sentencing. Before this decision, the sentencing experience described by the Court included relatively modest terms for s 172 offences. Slicer J recorded that the available statistics showed no sentence above three years in the earlier period and none longer in the later database period, while Evans J described the highest relevant post-1989 sentence after appeal as 3½ years, apart from the exceptional Solia case ([25], [31], [36]-[37]).
The judgment does not turn those figures into a formal tariff. Cox CJ referred to Dowie for the proposition that statistical information may assist, but cannot displace the sentencing judge's evaluation of the offence's gravity and circumstances ([7]). Evans J quoted Dowie's discussion of the risks of treating a perceived tariff as a constraint on judicial discretion, particularly for violent offences that vary substantially in their details and seriousness ([34]). The court's approach therefore recognises both consistency and individual assessment.
After this decision, its immediate effect was to set aside the two five-year terms and impose shorter terms on the facts before it. The reasons support the proposition that a marked departure from the sentencing experience may require explanation, while not preventing a longer sentence where the particular case warrants it. They also illustrate the importance of considering a plea of guilty in the final sentence.
The decision did not settle the general law on whether a consequence must be reasonably foreseeable to be considered in sentencing. Cox CJ expressly left the question undecided because the issue did not arise on the accepted facts ([6]). Slicer J stated a view on the competing approach in Inkson, but did so conditionally and also relied on the seriousness of the injuries and the aggravating feature of leaving a helpless victim ([16]). The decision should therefore not be read as resolving that broader question.
Nor does the judgment establish that a particular sentence is the correct result for all cases under s 172. Its reasoning is tied to the facts, the sentencing information then available, the pleas, and the records of these appellants. The Court's analysis stresses comparison and context rather than a universal numerical rule.
At [25], Slicer J said statistics do not themselves prohibit a higher sentence, but that a significant departure from a permitted range calls for special reasons. In plain English, prior sentencing practice matters, but it is not an absolute cap. A sentencing court should be able to explain a substantial departure by reference to the case before it.
At [27], Slicer J concluded that the sentences were beyond existing parameters and did not adequately reflect cooperation and immediate pleas. The practical point is that a sentence can be too high even where the offence is grave and the offender has a poor record, if a relevant mitigating factor has not been sufficiently reflected in the result.
At [34], Evans J reproduced Dowie's warning that statistics should not overshadow the court's own evaluation of the offence. The passage also recognises that violent offences can vary greatly in seriousness and circumstances. The court's task is not simply to select a number from a table; it must assess the actual conduct and the people affected.
At [37], Evans J relied on the relevant sentencing experience and the appellants' entitlement to a reduction for early guilty pleas. That was the combined basis for concluding the sentences were manifestly excessive. The comparison with prior sentences mattered, but it operated together with the mitigation and the particular facts.
At [38], Evans J explained that Robert's more serious antecedents justified a longer sentence than Rohan's. This illustrates the individualised nature of sentencing between co-offenders: participation in the same offence does not require identical penalties where relevant personal circumstances differ.
The decision is most relevant where an appeal challenges a sentence for causing grievous bodily harm as manifestly excessive and relies on a substantial departure from the sentencing experience for comparable offences. The judgment shows how a court may consider sentencing data, but also stresses that the data must be applied cautiously and not treated as a binding tariff.
It is also relevant where a person convicted after an early guilty plea argues that the sentence did not adequately recognise that plea. Both appellants pleaded guilty early, and the Court's reasoning expressly treated that mitigation as material ([27], [30], [37]).
The case may assist analysis of group assaults involving serious injury, leaving a victim helpless, and offenders with prior convictions for violence. The outcome demonstrates that those aggravating features can justify long sentences, while still leaving room for appellate intervention where the sentence as imposed does not properly account for mitigation or is manifestly excessive in the relevant context.
The decision has limited assistance on foreseeability. It involved a victim who fell into a river after being severely beaten and left near it, but the Court did not decide the general legal question about unforeseeable consequences. It is therefore relevant as an example of how the issue arose, not as a definitive rule resolving it.
The decision also addresses different sentences for co-offenders with different records. It is pertinent where the sentencing comparison concerns offenders whose participation was broadly similar but whose criminal histories differ materially. It does not establish that differences in records always require different sentences; it shows that the differences were relevant here.
The supplied judgment contains no decisions after 10 July 2001 discussing or applying Mansell. It is therefore not possible, from the material provided, to describe how later courts have treated this case. No later history should be inferred from the decision's own discussion of earlier authorities.
The judgment itself explains its use of earlier cases. It distinguishes Inkson on the facts: Inkson involved a single punch by a young offender with no serious history and favourable rehabilitation prospects, while the Mansell appellants participated in a prolonged group assault and had significant records ([8]). Evans J also compared the case with Solia, describing Solia as exceptional because of the calculated and deliberate use of fuel to set fire to the victim ([31], [36]).
The reasons refer to Dowie for the caution that sentencing statistics must not displace an assessment of the particular offence ([7], [34]). They cite Griffiths in relation to consistency in sentencing ([7], [26]). These are the authorities the Court used to frame its analysis; they do not establish how later courts treated Mansell.
The most explicit open question is whether consequences must be foreseen or reasonably foreseeable before they may be considered in sentencing. Cox CJ declined to decide the issue, noting that the prosecution's account of the victim's fall was not disputed and that the circumstances could support a finding that the offenders foresaw, or were recklessly indifferent to, the possibility of further harm ([6]). Slicer J preferred Underwood J's view in Inkson if the issue was significant, but his reasoning also relied on the injuries themselves and on leaving the victim helpless ([16]). The judgment does not resolve the question as a general rule.
The decision also leaves the threshold for a significant departure from an existing sentencing range dependent on the facts. Slicer J said special reasons were required before the existing range could be significantly exceeded without notice or incremental change ([25]), but the judgment does not define a precise numerical threshold or a comprehensive list of circumstances that qualify as special reasons.
The relationship between historical sentencing data and changing assessments of offence seriousness remains fact-sensitive in the reasons. Dowie's warning, quoted by Evans J, says that statistics can inform but must not displace evaluation of the particular case ([34]). The judgment does not prescribe a method for weighing different periods of sentencing data, changes in practice, or a small number of comparators.
Finally, the two judgments differ in their treatment of Rohan's alleged role as instigator. Cox CJ considered the sentencing judge's description erroneous but immaterial ([5], [10]). Slicer J considered the allegation to have created the atmosphere that gave rise to the assaults, so that the term could describe Rohan's role for sentencing purposes ([23]). Both approaches led to no further reduction. The decision thus demonstrates that sentencing descriptions of an offender's role may be assessed contextually, but does not settle a universal definition of “instigator” for sentencing.
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CITATION: Mansell & Anor v R [2001] TASSC 73
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - General principles - Whether sentence was manifestly excessive - Factors justifying a departure from the general range of sentences for a single count of causing grievous bodily harm.
Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1, distinguished.
R v Dowie [1989] TASSC 44; [1989] Tas R 167, referred to.
Judgment Number: [2001] TASSC 73
2 Sentence of five years' imprisonment from 7 June 2000 quashed and a sentence of four years' imprisonment from that date substituted.
2 Sentence of five years' imprisonment from 6 June 2000 quashed and sentence of three years nine months from that date substituted.
1 Both appellants were convicted on their plea of guilty of one count of causing grievous bodily harm contrary to the Criminal Code, s172, and were sentenced to imprisonment for a term of five years from the date each was first taken into custody. The circumstances were that together with two other co-offenders, Coad and Evans, and the complainant Hanson, they had been drinking near Ritchie's Mill in Launceston adjacent to the Tamar River on 5 June 2000 at about 6.15pm when the appellant, Rohan Mansell, made an unfounded suggestion to one of the others that the complainant had raped a girl some years earlier. As a result of the allegation being made, Coad then repeatedly punched the complainant in the head and thereafter all four took turns in assaulting him. The appellant, Robert Mansell, punched and head butted him to the head. Rohan Mansell punched him in the face on a number of occasions and the other two men punched and kicked him to the head and body. The assault went on for some 20 minutes, for it was only then that the fourth man Evans joined in. The complainant was beaten to the point where he lay unconscious on the ground and his assailants left him lying in a pool of blood. Forensic examination of the scene indicated that he had been lying in four different locations over a two hour period, suggesting that he only moved a short distance before again collapsing. He managed to get himself to his feet, but as Crown counsel put it to the learned sentencing judge without contradiction from any of the four prisoners or their counsel, due to his injuries he fell over an embankment into the river. At about 8pm, three passing male persons heard his cries for help and assisted him from the river before summoning an ambulance and the police.
2 The complainant, who was aged 33 years and was a mentally retarded man with a bipolar psychiatric disorder, was brought to the Launceston General Hospital hypothermic with a temperature of 33 degrees Centigrade and with obvious facial injuries and swelling. At the time of his extraction from the river, his eyes were completely closed up and he was extremely disorientated. The medical report contained the following information:
"Examination showed that he had regained mental clarity and was well oxygenated, his facial swelling and deformity with palpable fracture of both maxillary bones and major swelling in the face. CT scanning showed fracture of the anterior and lateral medial walls of both maxillary sinuses and fractured nasal bones and ethmoid cells and fractured right zygoma, fractured left mandible and a fractured right frontal sinus external wall and a fractured neural arch of the second thoracic vertebra. He was admitted to the intensive care unit and stabilised until he could return to the orthopaedic ward. It was planned for him to have fascio-maxillary surgery when the swelling had settled enough to permit it. In due course he had open reduction and internal fixation of maxillary facial fractures. He was admitted from 5.6.00 to 21.6.00 and discharged for follow up to the facial surgeon's outpatient clinic. This was indeed a serious, life-threatening injury and he was fortunate to have survived. His body was harmed grievously."
In the course of Crown counsel's presentation of the facts, the learned sentencing judge said of the medical opinion that the complainant was lucky to have survived:
"I get the impression that the greatest danger to him occurred as a result of his falling into the river and that he would not have fallen into the river but for these injuries but that it was the falling into the river that was life threatening. Is that an accurate impression from the report?"
"Yes, it is in my submission your Honour, and I think that is also clear from the first paragraph that the doctor indicates that he had body temperature of 33 degrees - four under what would normally be expected."
There was no dispute about this exchange when counsel for the prisoners addressed in mitigation.
3 The two appellants were interviewed by police a day or so later. Rohan Mansell admitted to having hit the complainant about four times but denied kicking him and said that when the group left, the complainant was still conscious, "but a bit delirious, sort of - I think he was pretty hurt". Rohan Mansell said that he was drunk and that he did not know what he was doing. He denied that the assault was his idea. He expressed sorrow for what he did and on his first appearance in court, pleaded guilty to the complaint which charged all four with causing grievous bodily harm. Robert Mansell made no admissions, but likewise pleaded guilty on his first appearance in court and his position, as stated by his counsel, was that he was very intoxicated at the time and could remember only sitting drinking with the complainant and his co-offenders and nothing of the assault itself.
4 In sentencing the two appellants, the learned sentencing judge said:
"All four prisoners have pleaded guilty to one count of causing grievous bodily harm. Their victim was drinking with them behind Ritchie's Mill in Launceston when Rohan Mansell falsely accused him of once having raped a girl, and Coad began punching him repeatedly to the head. All four took turns in assaulting him. Robert Mansell punched and headbutted him. Rohan Mansell punched him to the face on a number of occasions. Coad and Evans kicked and punched him to the head and body. Evans was not involved initially, but arrived about 20 minutes after the attack started, and willingly joined in. They left their victim lying unconscious in a pool of blood in the open air on a winter night. The police found four different pools of blood, indicating that he had managed to move a short distance on a few occasions, but he was not able to move far. A couple of hours after the attack, he fell into the Tamar River. His calls for help were heard. He was rescued and taken to hospital. He was suffering from hypothermia. His body temperature was only 33 degrees. He is lucky that he did not die. He had multiple fractures of his facial bones. He remained in hospital for 16 days, underwent surgery, and needed further treatment, including further surgery, after he was discharged. The attack on him was unprovoked, cowardly, and extremely vicious. He was mentally retarded and mentally ill, suffering from bipolar disorder, but apparently his attackers did not know these things. Nevertheless, it is significant that he was more vulnerable than an ordinary person.
Rohan Gregory Mansell, you are 31 years old, and have been to prison several times. You have been imprisoned for assault once in 1995, and four times in 1998. The worst of those assaults earned you a sentence of 15 months' imprisonment. That crime also involved a drunken, cowardly and brutal attack, in company, on a man who was punched and kicked until he passed out. I acknowledge that you have had difficulties with alcohol since you were a teenager, that you were co-operative with the police, and remorseful, and that you pleaded guilty at the first opportunity. However, this was a very vicious crime, you were its instigator, and your victim came close to death. A heavy sentence is needed to deter you from further crimes of violence. I sentence you to five years' imprisonment, commencing from 6 June 2000, the day you were taken into custody.
Robert Dean Mansell, your record is appalling. You have been sent to prison on 12 previous occasions. In 1986, you were sentenced to 12 months for causing grievous bodily harm. In 1993, you tied your de facto wife to a bed with a ball and chain, pointed a gun towards her head, helped cut off her clothes, encouraged another man to rape her, which he did, and subsequently cut her hand with a knife. For the assaults upon her, rape and wounding, you received a sentence which, after reduction on appeal, was five years' imprisonment. You had been out of prison for less than 12 months when you committed the crime for which I am about to sentence you. You were so drunk when you committed this crime that you have no recollection of it. I accept that you have had difficulties with alcohol, and a lack of family support, and that you were finding it difficult to re-establish yourself after your last release from prison. I take into account that you pleaded guilty at the first opportunity, and that you have made efforts towards rehabilitation whilst you have been in prison. But because of the extreme seriousness of this crime and your appalling record, I am sentencing you to five years' imprisonment also, in your case commencing on 7 June 2000, the day you were taken into custody."
5 Rohan Mansell challenges the finding that he was the instigator of the crime and this is the subject of a specific ground of appeal. I think the learned sentencing judge was in error in respect of this finding for there was no evidence that Rohan Mansell urged his co-offenders to offer any violence towards the accused. I suspect it was a slip of the tongue and that his Honour meant to use the word "initiator" which would have more accurately described that appellant's involvement. How material the error was will be addressed later.
6 Both appellants claim that their sentences of five years' imprisonment are manifestly excessive having regard to all the circumstances; and in Rohan Mansell's case, in addition to that ground and the complaint about being called the instigator, he claims that his Honour erred in taking into account the fact of the complainant having fallen into the river and his subsequent hypothermia. Such consequences, it is claimed, were not reasonably foreseeable by the appellant and should not therefore have been taken into account in the sentencing process. There is some difference of opinion as to whether the consequences of a criminal act are relevant in the sentencing process regardless of whether they were foreseen or ought to have been foreseen. In Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1, some members of the court discussed the matter in detail and referred to the authorities. Underwood J expressed the view that such consequences were, Zeeman J expressed doubt as to that point and the third member of the court, Crawford J, did not decide it. In the circumstances of this case, I, too, consider it unnecessary to decide the point. As I have said, Crown counsel asserted without issue being taken by any of the prisoners that due to the injuries sustained by the complainant, he had fallen into the river. The facts showed that he had been severely beaten over a period of some 20 minutes and left in an unconscious condition on a winter's evening near the river. If the learned sentencing judge proceeded on the basis that the appellants and their co-offenders foresaw, or were recklessly indifferent to the consequence that in his disabled state he might sustain further injury such as hypothermia by being left on the ground or by falling into the river, there was ample material for him to make such a finding. It is not open to this Court to make a factual finding to the contrary. There is nothing in his Honour's comments which persuades me that he considered any particular consequence one which was not reasonably foreseeable by the appellants. In my view, the issue does not arise.
7 Counsel for the appellants argue that the general range of sentences for a single count of causing grievous bodily harm does not exceed three years' imprisonment (see Professor Warner, Sentencing in Tasmania, Federation Press (1991) at 322). I know of no later case in this State in which that term has been exceeded, save that of Solia referred to by Evans J. For the reasons he gives, it should be regarded as exceptionally grave.. Reliance is placed on the dictum of Barwick CJ in Griffiths v R (1976 - [1977] HCA 44; 1977) 137 CLR 293 at 310, where he said:
"No doubt, consistency in the sentences imposed by the judges of the District Court is a desirable feature of criminal administration. Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle. Thus, in an appropriate case, the Court of Criminal Appeal may exercise its influence towards such consistency of sentence."
Equally, however, counsel acknowledge that not every sentence must fall within the range (R v Dowie [1989] TASSC 44; [1989] Tas R 167 at 186, per Wright J, where he said:
"A court may frequently be aided by the provision of statistical data as to sentences previously imposed in this State, ... but in my view, it cannot allow such material to overshadow or displace its own evaluation of the gravity of the offence before it in light of all the known facts and circumstances."
It is also recognised that an offence against s170, which requires the infliction of some bodily harm accompanied by a specific intention of bringing about grievous bodily harm, is generally regarded as worse than one against s172 (R v Allen 112/1999). In Lovegrove v R [1961] Tas SR 106, Burbury CJ, at 107, said:
"... the crime under s 172 is a much less grave crime than the charge under s 170. In England the crime of wounding with intent is a felony which may be visited by life imprisonment; the crime of unlawful wounding is a crime which even in the year 1891 when the maximum punishment was fixed was only punishable by a term of imprisonment not exceeding five years. But for the very reason the court does have that flexible discretion under our Code in imposing punishment, the court must ever be on its guard to make sure, when it is considering for itself the circumstances relating to the commission of the crime, that it only sentences the convicted man in respect of the actual crime of which he is convicted."
Neasey J, in R v Bennett [1990] Tas R 72 at 83, pointed out that in Tasmania, the progenitor of s172 proscribed the offence of unlawfully and maliciously causing grievous bodily harm as a misdemeanour punishable by imprisonment for four years. In Papazoglu v R 9/1963, the Court of Criminal Appeal accepted that ordinarily a range of sentence between three and seven years' imprisonment for a crime against s170 would not be inappropriate.
8 That a departure from an upper limit of three years for a single count of a crime against s172 in this case was appropriate can be seen by a comparison with the sentence imposed by the Court of Criminal Appeal in Inkson v R (supra). There the offender had pleaded guilty to causing grievous bodily harm by punching a passing stranger in the face twice without warning or provocation and causing him to fall to the ground where he struck his head on the roadway. The blows caused injuries to the mouth and nose, while the impact of the fall resulted in serious injury, which was life threatening, to the skull and brain. The offender then moved the unconscious victim onto the footpath and sat him against the adjoining wall, leaving him there. He was subsequently attacked by another person whose actions caused his death and who pleaded guilty to manslaughter. Inkson was 18 years of age, had never been in serious trouble and had good prospects of rehabilitation. His behaviour was quite out of character. His plea of guilty, however, was regarded by the court as one engendered by a recognition of the inevitability of conviction. One member of the court regarded the initial sentence of 4½ years' imprisonment as unattended by error, but the majority regarded it as excessive and reduced it to an effective one of 3 years' imprisonment. In the present case, the two appellants participated in an attack which lasted for some 20 minutes, did very serious injury to the victim's face and head and left him unconscious on a winter's night exposed to the elements. In his helpless condition as the result of the beating he received, he fell in the nearby river and suffered hypothermia. It was a much graver and more prolonged attack than that inflicted on the victim in Inkson. Both appellants were over 30 years of age and had long records which included offences of violence. In addition to numerous crimes of dishonesty and street offences, Rohan Mansell had a conviction for robbery with violence when he was still only 13 years old, and 13 prior convictions for assault, including one of 15 months' imprisonment for an assault in similar circumstances committed in late February 1998. Robert Mansell also had numerous convictions for dishonesty and street offences, one for causing grievous bodily harm in 1986 and convictions for rape, three assaults and wounding in respect of which he received a sentence of five years' imprisonment and he had been released from prison, having served it, less than 12 months earlier. There was no material in either case arguing for rehabilitative measures. Notwithstanding the plea of guilty by each, a sentence well in excess of that imposed on was fully justified.
9 Nevertheless, the question remains whether one of five years' duration is demonstrative of error. As their plea of guilty made virtually immediately after arrest and maintained throughout the proceedings undoubtedly entitled them to some discount in sentence, if the sentence in fact imposed is unassailable an even greater one could have been justified had they proceeded to trial and been found guilty. With respect, I think a sentence of five years' imprisonment, assuming it has been arrived at by some reduction for their plea of guilty is manifestly excessive in the circumstances. Their crime was grave, their circumstances and antecedents dictated the imposition of a sentence of strong personal deterrence in each case, as well as of denunciation, and in my view a sentence beyond the so-called tariff was fully justified. Making due allowance for their plea, I would substitute a sentence of three years and nine months' imprisonment in each case.
10 I have mentioned the apparent error, in Rohan Mansell's case, of his being described as the instigator of this crime. Putting that suggestion to one side, I can see no basis for differentiating between him and Robert Mansell so far as penalty is concerned. Their ages, background and antecedents are not significantly different, nor was their level of participation in the crime. In my view, the error is immaterial in the sense that it does not require to be corrected by any further reduction in Rohan Mansell's sentence.
11 These appeals involving joint offenders have been heard together. Both appellants were convicted following pleas of guilty of the crime of causing grievous bodily harm contrary to the Criminal Code, s172, and sentenced to a term of imprisonment for five years.
12 On 5 June 2000, the appellants were in the company of three other persons, including the victim, at a location near the Tamar River. All men had been drinking and intoxication played a significant part in the events giving rise to the prosecution. At some stage Rohan Mansell claimed that the victim had been guilty of sexual misconduct some years previous, an assertion which inflamed one of the group, Peter Coad, to attack the victim. He was joined at various times by the other three in a vicious prolonged attack which included repeated punches and kicks to the head and body of an unresisting man. The four men left their victim injured, unconscious and helpless. Later forensic examination showed that the victim, over a period of two hours, had moved a short distance to four locations before falling over an embankment into the Tamar River. His cries were heard by others and he was rescued and taken to hospital.
13 The victim suffered from mental retardation with a bi-polar disorder. Medical examination showed:
"... facial swelling and deformity with palpable fracture of both maxillary bones and major swelling in the face. CT scanning showed fracture of the anterior and lateral medial walls of both maxillary sinuses and fractured nasal bones and ethmoid cells and fractured right zygoma, fractured left mandible and a fractured right frontal sinus external wall and a fractured neural arch of the second thoracic vertebra."
14 When admitted to intensive care the victim was suffering from hypothermia "with a temperature of 33 degrees Centigrade". In the opinion of the examining physician:
"This was indeed a serious, life-threatening injury and he was fortunate to have survived. His body was harmed grievously."
15 The report caused some confusion as to what constituted the most significant risk to life. In the course of the sentencing hearing the learned primary judge commented:
"HIS HONOUR: Well, I get the impression that the greatest danger to him occurred as a result of him falling into the river and that he would not have fallen into the river but for these injuries but that it was the falling into the river that was life threatening. Is that an accurate impression from the report?"
16 Some criticism was directed towards this comment and counsel for Rohan Mansell contended that it demonstrated error in that the sentence reflected an unforeseeable consequence, namely, that of falling into the river. It was contended that since the eventuality could not reasonably have been foreseen the sentence was a product of error. It may be that his Honour interpreted the report as meaning that immersion and hypothermia posed the greatest risk to life, although such does not appear in his comments in passing sentence. It matters little since the injuries inflicted on the victim were in themselves severe and life threatening. The act of leaving a helpless victim was, in itself, an aggravating factor (R v S [1991] TASSC 18; [1991] Tas R 192). That the specific form of consequence was not foreseen, especially given the level of intoxication, was of little consequence. There were a number of ways, including non-immersed hypothermia, bleeding or asphyxiation, which could have brought about death. If the questions of specific consequence and foreseeability are significant in the assessment of penalty, I would prefer the conclusion reached by Underwood J to that of Zeeman J in Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1. This was not a case of different actors inflicting separate injuries, the last of which brought about or hastened death. Here the acts were committed in concert and each was criminally liable for the course of conduct.
17 On 6 June Rohan Mansell was interviewed by police and admitted his involvement in the attack. It is apparent from his account that alcohol played a significant part in the events of the previous evening. He pleaded guilty to the complaint on 7 June and was committed for sentence. He was entitled, as mitigating matters, to the factors of co-operation and early plea, Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186. Robert Mansell was interviewed on 7 June, but made no admission. He pleaded guilty at his first court appearance and was likewise entitled to the benefit of an early plea.
18 The co-offenders, Coad and Evans, were sentenced to three years' imprisonment of which, in the case of Evans, 18 months was suspended. No question of parity arises as between the appellants and the co-offenders. There were appropriate reasons for distinguishing between the offenders.
19 The learned primary judge stated in sentencing the appellant:
"... your record is appalling. You have been sent to prison on 12 previous occasions. In 1986, you were sentenced to 12 months for causing grievous bodily harm. In 1993, you tied your de facto wife to a bed with a ball and chain, pointed a gun towards her head, helped cut off her clothes, encouraged another man to rape her, which he did, and subsequently cut her hand with a knife. For the assaults upon her, rape and wounding, you received a sentence which, after reduction on appeal, was five years' imprisonment. You had been out of prison for less than 12 months when you committed the crime for which I am about to sentence you. You were so drunk when you committed this crime that you have no recollection of it. I accept that you have had difficulties with alcohol, and a lack of family support, and that you were finding it difficult to re-establish yourself after your last release from prison. I take into account that you pleaded guilty at the first opportunity, and that you have made efforts towards rehabilitation whilst you have been in prison. But because of the extreme seriousness of this crime and your appalling record, I am sentencing you to five years' imprisonment also, in your case commencing on 7 June 2000, the day you were taken into custody."
20 Robert Mansell aged 32 has an extensive record of previous convictions, commencing in 1978. He has numerous convictions for the crimes of burglary, stealing and violence. An examination of his record discloses the following:
Forgery and Uttering Damage to Property Assault
Grievous Bodily Harm Aggravated Assault Wounding
He has breached three suspended sentences and been convicted of breach of bond and escape.
His character and continued harm to the community are to be assessed in the light of the principles stated by the High Court in Ryan v R [2001] HCA 21.
21 Greater significance attaches to his history of violence. In 1996 the offender was sentenced to a twelve month sentence for grievous bodily harm and in 1994 for eight years (reduced to five years on appeal) for the crimes of rape, aggravated assault and wounding. He has other convictions for resisting arrest, assault, disorderly conduct and insulting language.
"1 The sentence was in all the circumstances of the case manifestly excessive.
(i) The sentence of five (5) years was well in excess of the range of penalties previously imposed for like offences and there was nothing in the facts of the case to justify a departure from such range.
(ii) The complaint against the Appellant included no particulars of grievous bodily harm and there was nothing in it to indicate that the falling into the river would be relied upon.
(iii) His Honour did not give any consideration to the fact that the Appellant's plea of guilty was made at the earliest possible moment and that the Appellant never denied his participation in the crime.
(iv) His Honour was wrong in fact in treating the Appellant as the instigator of the assault.
(v) His Honour failed to make a proper comparison of the relevant backgrounds and circumstances between Rohan Gregory Mansell and his co-accused Robert Dean Mansell.
2 His Honour erred in taking into account the fact of the victim's falling into the river and his subsequent hypothermia. Such consequences were not reasonably foreseeable by the Appellant and only such consequences as are reasonably foreseeable should have been taken into account in sentencing.
3 That His Honour erred in holding that Rohan Gregory Mansell was the instigator."
23 Ground 2 has been dealt with. Ground 3, even if upheld, would not warrant appellate intervention. There was clear evidence that the appellant's allegation created the atmosphere or discord which gave rise to the assaults. To that extent he can be described as the instigator and the use of the term "instigator" by the learned sentencing judge should be viewed in that light. This was not a trial and the precise meaning of the term "instigation" relevant to an issue of criminal liability ought not be limited in a description relevant to sentence of the role played by each particular person.
24 The appellant is aged 32. He has also amassed a considerable record commencing in 1982. His record includes:
Injury/Damage/Destroy Indecent or Threatening Assault
Resist Police Officer Obstruction Assault Police Officer
Many of his convictions were drink and street related and most assault convictions related to offences against the Police Offences Act 1935. His conviction for robbery with violence was imposed in 1982 and resulted in the offender being declared a ward of the state. In 1998 he was sentenced to a term of imprisonment for 15 months following his conviction for an assault prosecuted under the Criminal Code, s184.
25 The ground central to both appeals is that the sentences imposed so exceeded the range of penalties for the crime of causing grievous bodily harm that error is manifest (Dinsdale v R [2000] HCA 54; (2000) 74 ALJR 1538). Statistics compiled by Professor Warner, Sentencing in Tasmania, show that between 1978 and 1989 no term of imprisonment greater than three years was imposed following conviction for a crime contrary to the Code, s172 and the Court database for the period 1989 - 2000 shows no longer sentence, with the average range coming between 14 and 20 months. Those statistics, of themselves, do not prohibit a greater sentence from being imposed, but they require that special reasons exist before the permitted range can be significantly exceeded without notice or incremental change (Midson v R [1998] TASSC 26, Devine v R [1993] TASSC 121; (1993) 2 Tas R 42.
26 One of the central elements of sentencing is the attempt to achieve consistency. As Barwick CJ said in Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 at 310:
"No doubt, consistency in the sentences imposed by the judges of the District Court is a desirable feature of criminal administration. Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle. Thus, in an appropriate case, the Court of Criminal Appeal may exercise its influence towards such consistency of sentence."
27 The sentence imposed on each appellant was beyond the existing sentencing parameters (Papazoglou 9/1963, R v Bennett [1990] Tas R 72, Inkson v R (supra)). Even if warranted as being at the top end of the range they did not adequately reflect co-operation and immediate plea. In my opinion error has been demonstrated and each appeal ought succeed.
28 The penalty appropriate to the appellant, Robert Mansell, is one of four years' imprisonment. Such will acknowledge the early plea (Vergos v R 89/96, Pavlic v R (supra)).
29 It does not follow that an identical sentence ought be imposed on Rohan Mansell. He had a less significant record and as yet has not shown the same propensity for violence and the level of his conduct thus far does not require the same regard that he had in relation to protection of society (Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465, Ryan v R [2001] HCA 21, McHugh J at 41). Conversely the character of Rohan Mansell can be said to be marginally better than that of his co-offender in that his violence has primarily been limited to street offences. He is entitled to the benefit of that "character" (Ryan (supra) McHugh J at 23, Kirby J at 99 - 112, Callinan J at 174 - 184). I would impose a sentence of imprisonment for three years and nine months.
30 I have had the advantage of reading the reasons for judgment prepared by Cox CJ and Slicer J and am in agreement with them that the appeals should be allowed as the sentences which were imposed are manifestly excessive. They are at the upper extreme of the range of sentences imposed for an offence of causing grievous bodily harm, or an offence of wounding, the latter being an alternative offence to that of causing grievous bodily harm; the Code, s172 and do not appear to me to reflect any reduction for each appellant's early plea of guilty.
31 An examination of the Court's sentencing database reveals that, since its inception in 1989, the only sentence for an offence of causing grievous bodily harm which, after appeal, has exceeded 3½ years' imprisonment was that imposed by Wright J in R v Solia on 25 November 1995. Solia was sentenced to 5 years' imprisonment, 6 months of which was suspended on condition that he be of good behaviour for a period of two years. The circumstances of Solia's conviction are that following an argument with his girlfriend he left their residence and returned with a can of fuel. He splashed fuel over his girlfriend and her bedding and set fire to the fuel causing her to be severely burnt. She was left with lasting cosmetic and psychological damage. His Honour described Solia's conduct as "fiendish and horrifying". It was not suggested that intoxication played any part in Solia's commission of the offence. He was 23 years of age and had no relevant prior convictions.
32 Whilst sentences of more than 3½ years' imprisonment were imposed in R v Bennett and R v Inkson, each sentence was set aside by the Court of Criminal Appeal. Bennett, a 19 year old youth with no significant prior convictions, was convicted of wounding. In the course of perpetrating a burglary he attacked an unarmed householder with a knife, inflicting life threatening injuries. The sentence of 4½ years' imprisonment imposed on Bennett was set aside by the majority of the members of the Court of Criminal Appeal and, in lieu, a sentence of 3½ years' imprisonment was imposed; see Bennett v R A17/1990.
33 Inkson, an 18 year old youth, punched a passer-by in the face causing him to fall and strike his head on the roadway. The passer-by was rendered unconscious and suffered life threatening injuries. Inkson moved his victim to the footpath and left him there. The victim died as a consequence of a subsequent attack by a different assailant. Inkson had no relevant prior convictions and had good prospects. The effective sentence of 4½ years' imprisonment imposed on him was set aside by the majority of the members of the Court of Criminal Appeal and a sentence of 3 years' imprisonment was substituted; Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1.
34 In R v Dowie [1989] TASSC 44; [1989] Tas R 167, Wright J addressed the regard which should be paid to the range of sentences imposed for a particular offence when considering whether a sentence is manifestly excessive or inadequate, and said, at 185 - 186:
"For my part I have considerable difficulty with the notion that to enable sentencing consistency, which is of course one of the primary aims of a sentencing judge (see Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, at pp610, 611 per Mason J), the parameters apparently indicated by sentences actually imposed in previous cases for similar crimes constitute some sort of a framework within which the impending sentence must fit or be seen to be manifestly inadequate or excessive, as the case may be. I subscribe to the view enunciated by Adam and Crockett JJ in Reg v Williscroft [1975] VicRp 27; [1975] VR 292, at p299, where they accepted that it is the seriousness of the criminal conduct, rather than the category of crime of which the offender has been convicted, which is of paramount importance. This view is not inconsistent with the approach taken by the Court in Lovegrove v The Queen [1961] Tas SR 106, and Reg v De Simoni [1981] HCA 31; (1981) 147 CLR 383. Rather, it places emphasis upon the fact that conduct giving rise to liability for prosecution and conviction for a particular crime, may vary greatly in its seriousness if proper account is taken of all the circumstances, including those of the offender and his victim (if any), and the public interest. For these reasons I find the so called 'tariff' approach to sentencing of little value, particularly where cases supposedly illustrative of the tariff are few, or the relevant facts are not directly comparable. A court may frequently be aided by the provision of statistical data as to sentences previously imposed in this State, especially if it illuminates the dispositions made where a particular type of relationship exists (see but in my view, it cannot allow such material to overshadow or displace its own evaluation of the gravity of the offence before it in light of all the known facts and circumstances. Indeed, in some cases the very multiplicity of the examples placed before it may convince the court that the offence has become one of great prevalence in respect of which lenient sentences have had an inadequately deterrent effect."
"It may well be that in cases of crimes which fit into a repetitive format and which are comparatively frequent, such as burglary and stealing, a tariff may be discerned fairly readily but in cases of violence, particularly those of assault which frequently vary tremendously from each other in quite major respects, a distortion can occur in the sentencing process if a perceived tariff is applied to shackle the discretion of the sentencing judge I respectfully agree with the observations made by the Court of Criminal Appeal in Victoria in Reg v Glickman (Unreported, 9 December 1979) where they said:
'It is sometimes appropriate to speak of a "tariff" or "going rate" in the case of relatively simple and common crimes, but crimes of the kind with which we are presently concerned vary so greatly in their details, vary so greatly in heinousness, and vary so greatly in the circumstances of their commission that the development of a rate or range could only be achieved, if at all, alter the close examination of a very large number of sentences indeed. We doubt even then if it would be possible.'"
35 Whilst I pay heed to the views canvassed and expressed by Wright J, for my part, in my consideration of these appeals, I derive considerable assistance from the information which is available on the range of penalties which have been imposed in this State for the offence of causing grievous bodily harm and the offence of wounding. As to sentences imposed for these offences over the period from 1978 to 1989, Professor Warner says in her text, Sentencing in Tasmania (1991) at 332:
"Sentences of four years imprisonment for multiple counts, and three years for a single count of s172 are clearly at the top of the range, and sentences in excess of 18 months were quite rare."
36 I have examined the sentences contained on the Court's sentencing database since 1989. Of the 53 sentences recorded on the database in relation to offenders whose primary crime was that of causing grievous bodily harm, after review by the Court of Criminal Appeal where there was an appeal, only one exceeded 3½ years, that is the sentence imposed on Solia to which I have referred. Solia's case was quite exceptional. He soberly and calculatedly set fire to fuel he had poured on his victim. It was not an impetuous act. Before setting fire to his victim, he left his residence to obtain the fuel, returned and poured the fuel over her. As the sentencing judge observed, his conduct was fiendish. Whilst the conduct of each appellant in this case was vicious and appalling, in my view it cannot properly be compared with that of Solia's.
37 The sentences imposed upon the appellants must be viewed against the background that the upper limit of the range of sentences that have been imposed by this Court since 1989 for conduct which can be loosely equated with that of the appellants is 3½ years' imprisonment. This factor, coupled with each appellant's entitlement to receive a reduction in his sentence as a consequence of his early plea of guilty, satisfies me that the sentences are manifestly excessive.
38 The conduct of each appellant calls for a long sentence of imprisonment. As is apparent from Slicer J's analysis of each appellant's record of prior convictions, Rohan Mansell has a less serious record than Robert Mansell. Robert Mansell has prior convictions for causing grievous bodily harm and wounding, whereas Rohan Mansell does not. The differences between the appellants' antecedents warrant the imposition of a lesser sentence upon Rohan Mansell. I would sentence Robert Mansell to 4 years' imprisonment and Rohan Mansell to 3 years 9 months' imprisonment.
Mansell & Anor
R [2001] TASSC 73
(1996) 6 Tas R 1
(1995) 5 Tas R 186
(2000) 74 ALJR 1538
(1993) 2 Tas R 42
(1977) 137 CLR 293
(1988) 164 CLR 465
(1984) 154 CLR 606
(1981) 147 CLR 383
Both appeals allowed. Robert Mansell's five-year sentence, commencing 7 June 2000, was quashed and a sentence of four years from that date substituted. Rohan Mansell's five-year sentence, commencing 6 June 2000, was quashed and a sentence of three years and nine months from that date substituted.