Sentencing Act 1995

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

R v Liddington (1997) 18 WAR 394

1 WALLWORK J: I agree with the reasons for judgment of Olsson AUJ.

3 PARKER J: I have had the advantage of reading in draft the reasons now to be published by Olsson AUJ.

4 Those reasons well reflect the considerations which persuaded me to concur the orders made in this matter and I would not wish to add any further observations.

5 OLSSON AUJ: At the conclusion of the hearing of the application for leave to appeal in this matter, the Court announced that it was unanimously of the opinion that leave should be granted and the appeal allowed for the purpose of suspending the terms of imprisonment imposed on the appellant for a period of 2 years. An order to that effect was made forthwith. The Court intimated that it would publish reasons for its decision at a later stage.

6 The appellant was presented for trial jointly with three other persons (Blasco, Grimshaw and Norton), at the sittings of the Supreme Court in April 2001 on an indictment containing the following counts:

"(1) On 18 May 2000 at Burswood JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW and ROBERT MICHAEL NORTON stole from ANDREW BURY with actual violence, a set of car keys, the property of ANDREW BURY

AND THAT at the time JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW and ROBERT MICHAEL NORTON were armed with offensive weapons, namely batons, a bat, a garden stake, sticks and branches

AND THAT at the time JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW and ROBERT MICHAEL NORTON were in company with each other and with others.

(2) AND IN THE ALTERNATIVE to Count 1 that on 18 May 2000 at Burswood JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW

and ROBERT MICHAEL NORTON unlawfully assaulted ANDREW BURY and thereby did him bodily harm

(3) AND FURTHER that on the same date and at the same place JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW and ROBERT MICHAEL NORTON assaulted MICHAEL DONALD D'ARCY with intent to steal and then and there used actual violence, in order to obtain the thing which they intended to steal

AND THAT at the time JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW and ROBERT MICHAEL NORTON were armed with offensive weapons, namely batons, a bat, a garden stake, sticks and branches

AND THAT at the time JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW and ROBERT MICHAEL NORTON were in company with each other and with others.

(4) AND IN THE ALTERNATIVE to Count 3 that on the same date and at the same place JARRAH MILLER, ANTHONY BLASCO, DANIEL JAMES GRIMSHAW and ROBERT MICHAEL NORTON unlawfully assaulted MICHAEL DONALD D'ARCY and thereby did him bodily harm."

7 Each accused pleaded not guilty to all counts. At the conclusion of the trial, the jury returned unanimous verdicts of guilty as to counts 1 and 3 in respect of all four accused.

8 However, they returned some differential findings as to the circumstances of aggravation averred in the indictment. All four accused were found to have committed the offences in company with each other and with others; but only the appellant and the accused Norton were found to have been armed with an offensive weapon at the time of the offences.

9 Consequent upon their respective convictions, the four offenders were sentenced as follows:-

10 In each instance the two sentences were ordered to be served concurrently, with eligibility for release on parole. Norton was given credit for 15 days in custody.

11 The Crown case was that, on the evening of 18 May 2000, a group of seven persons congregated at Norton's unit in Lathlain.

12 They consisted of Miller, Blasco, Grimshaw, Norton, another man referred to by the learned trial Judge as F and two juveniles respectively referred to by him as X and Y. As the outcome of a discussion in which the active participants were found to be Norton, Blasco, F, X and Y, a common intention was formed by those persons to go to nearby Burswood Park to assault gay men and possibly rob them. Miller and Grimshaw overheard what was being said. The Crown's contention, accepted by the jury, was that they elected to go along and join in the enterprise with the others.

13 The group of seven walked to the park. Norton was carrying a metal pole (which the Crowns says may have been a metal baseball bat) X had a wooden stake, Y had a branch of a tree, and Miller was holding what was referred to as a wooden bat. The so-called "bat" was a round segment of wood, upwards of 60 centimetres in length, of the nature of a thick wooden baton.

14 It was alleged that some time after arrival at the park, the members of the group other than Miller, Grimshaw and F confronted and surrounded two men, Bury and D'Arcy, who were homosexuals and came walking up across the park from the direction of the oval. At least two of the group began abusing Bury and D'Arcy, calling them faggots and poofters. Miller, Grimshaw and F remained near some trees 20 - 30 metres distant and were able to observe and hear what was occurring. At some stage F seems to have joined those having immediate contact with the victims.

15 The learned trial Judge found that X demanded money in a threatening manner on behalf of the group.

16 Bury had his car keys snatched from his hand and his pockets were searched. He was hit on the leg with what he said was a weapon, metal or wooden, fell to the ground and was again struck with a weapon on his back and legs. Later medical examination and photographs indicated that Bury had a large area of bruising to the left flank and a large swollen, bruised area on his posterior left thigh. Following the incident he was conveyed by ambulance to hospital for treatment.

17 It was found that Blasco felled D'Arcy with a punch to the head, after which he was hit with a piece of wood and some other weapon. He was then struck with a length of timber and another weapon. Later medical examination and photographs indicated injuries consistent with a blow with a fist to the left ear and blows to the right chest and left leg from a length of timber. He also subsequently required medical treatment for his injuries.

18 The learned trial Judge found that there was positive evidence to indicate that Norton used the metal pole which he was carrying during the incident.

19 There was no evidence that Miller used the bat. Indeed, it seems clear that Miller and Grimshaw did not, at any stage, directly participate in the actual physical assaults on Bury and D'Arcy. They simply remained in their original locations near the trees and watched.

20 Immediately following the assaults on them, the two victims ran away from the scene. Each of them was chased for a short distance by their assailants, during the course of which Grimshaw was found to have lunged at Bury whilst the latter was running away from him, causing Bury to apprehend further violence towards him. It seems that Grimshaw's action was simply designed to frighten Bury and that Grimshaw had no intention of doing him any actual harm.

21 The Crown contended that the actions and demeanour of all seven members of the group were such as to indicate that they were either directly involved in the assaults, or were at least encouraging them. The jury verdicts indicated an acceptance of the proposition that all seven were participants in a common purpose.

22 Shortly after the attack, steps were taken by Blasco and Miller to hide the wooden stake and the bat in the park. Grimshaw was present at that time.

23 The evidence indicated that X and Y used Bury's car keys to leave the scene in the latter's car. Some damage was occasioned to that vehicle by their activities.

24 Blasco, Miller and Grimshaw went back to Norton's flat for a time, after which they left.

25 Norton, Miller and Grimshaw were separately interviewed by the police on the following day. Each admitted involvement in the incident, albeit in varying degrees. When interviewed some two months later, Blasco admitted punching D'Arcy.

26 The prosecution evidence indicated that, earlier on the day of the incident, Miller and Grimshaw had been drinking at a tavern. They were friends from school days. When the two of them returned to where Miller was living, they encountered Y, a friend of Miller. He was in company with F and Blasco. Y persuaded them to accompany him, F and Blasco to Norton's flat. They travelled there in a Ford Falcon driven by Y.

27 Miller and Grimshaw were not well acquainted with other than Y. They would not have gone to Norton's flat had it not been for the suggestion of Y. However, they went along with the others and, whilst they were not active participants in the actual assaults, they certainly did nothing to dissuade their co-offenders. Miller was at all relevant times, holding the bat.

28 The evidence was not entirely clear as to how it was that Miller came to be holding the bat at the park. The evidence indicated that it originally came from Miller's home. He told the police that another member of the group took it to Norton's house, from which he must have later picked it up. Grimshaw testified that it was, in fact, Y who picked it up and put it in the Ford Falcon.

29 Grimshaw gave sworn evidence to the effect that neither he nor Miller ever came closer than about 20 - 30 metres from where the other members of the group were assaulting Bury and D'Arcy. That evidence was not controverted.

30 Grimshaw also testified that Norton and the other members of the group were quite intimidating and, in retrospect, "wrong people to hang around with". He said, in effect, that the appellant and he were told by the others to go with them to the park and that they were afraid not to do so. As he put it, they [referring to Norton and Blasco in particular] "are big boys, you know. You can't really say no to them because they can turn on you, you know. They're not very nice people to hang around with". Certainly neither he nor Miller were, seemingly, able to resist the peer group pressure and, as it was said, they "went with the flow".

31 The prosecution seems to have averred that the principal architects of the enterprise were Norton and Blasco, a proposition which does not sit comfortably with the positive evidence. That evidence strongly indicated that the real initiators were Norton and Y. It was apparent from the records of interview that these last mentioned men were well aware that the Burswood Park area was a place where gay persons met; and that they had previously gone to that park for a similar purpose. There was no evidence that the sole motive for the enterprise was necessarily robbery, although that was at least in mind.

32 It seems that the group was partly in search of a thrill; appreciating that it might well be the case that any gay men encountered would be too embarrassed to go to the authorities, even if they received a beating and were robbed.

33 Against that background, Miller ("the appellant") originally sought leave to appeal against both his convictions and also the sentences imposed upon him. However, he ultimately did not pursue the application in respect of his convictions. He complains that the sentences imposed on him were manifestly excessive and that, in all the circumstances, any sentences imposed should have been suspended.

34 Mr Monisse, counsel for Miller, submitted that the sentences imposed and a refusal to suspend them failed, adequately, to recognise the relative degree of culpability of Miller in relation to the incident, having regard to his part in the relevant events, his young age and the mitigating circumstances personal to him. It is convenient to review each of those aspects in turn.

35 As to the issue of culpability, these points were emphasised:

• the appellant was not an active participant in the planning of the expedition to the park and the evidence did not indicate that he directly involved himself in the discussions at Norton's unit, which led to it;

• although the appellant willingly accompanied the group to the park, he did so as a consequence of peer group pressure and did not actively participate in the attack on Bury or D'Arcy - he was not physically involved in any confrontation with, or surrounding of, the victims, nor did he use the wooden bat that he was holding;

• the appellant essentially became involved in the enterprise by chance, when he and Grimshaw encountered Y, F and Blasco on return to his house from the tavern and Y persuaded him to go to Norton's unit;

• the level of the appellant's participation was thus, at highest, no more than that of encouragement of the principal offenders by his presence.

36 It seems to me that such a summation of the situation does accurately express the factual situation. In all fairness to the learned trial Judge, it must be recognised that, in his sentencing strategy, he did set out to draw a very clear distinction between the levels of culpability of Miller and Grimshaw, on the one hand, and those of Blasco and Norton on the other.

37 Attention was next drawn to the fact that, at the time of the incident, the appellant was only 18 years of age and had no relevant antecedent record. I consider that Mr Monisse is correct when he submitted that the evidence suggested a considerable degree of immaturity on Miller's part.

38 It was further said that the material before the learned trial Judge revealed a number of mitigating factors relevant to the appellant.

39 The appellant came from a home in which difficulties arose between his biological parents, with the consequence that he attended no less than 14 different primary schools during his early childhood. He left school after completing year 10, following which he had a variety of jobs. He was employed as a tradesman's assistant as at the time of the offences and described by his employer as an honest and reliable worker, who had not exhibited any aggressive or antisocial behaviour. He has actively engaged in sporting activities, specifically soccer.

40 A pre-sentence report indicated that the appellant had acknowledged that his involvement in the incident was irresponsible and stupid - and may well have been contributed to by consumption of alcohol and drug use on the night. It was said that he sincerely regretted what had occurred.

41 The learned trial Judge expressed the view that the appellant had a positive support system within the community and noted that the author of the pre-sentence report had suggested that, in the 12 months following the incident, he had "made significant changes in [his] behaviour and continues to be gainfully employed". The learned trial Judge also seems to have accepted a submission that the offences were the result of a "one-off occurrence" on the appellant's part.

42 In his sentencing remarks the learned trial Judge pointed out that the offences of which the appellant was convicted (albeit as what had been described as a somewhat "passive" participant) were extremely serious, because they were of the nature of organised mob violence directed at a minority group, because of its sexual preference. The victims had received a severe beating. In such situations the factors of personal and general deterrence necessarily loomed large.

43 He rightly concluded that it was inevitable that a custodial sentence be imposed. He took, as his commencement point, a term of 5 years for count 1 and 4 years for count 2.

44 Having regard to the appellant's young age and the mitigating circumstances personal to him, as above outlined, coupled with the lesser role of the appellant and Grimshaw; the fact that the involvement of the appellant may have been affected by a sense of bravado; and that he may not have fully appreciated the consequences of his actions, the learned trial Judge opted to impose concurrent terms of 3 years' imprisonment in respect of each count.

45 In considering a possible suspension of the sentences, the learned trial Judge recognised that the applicant and Grimshaw did not, as he put it, "play an active part in formulating the unlawful purpose and, at the scene of the attack, neither made any threatening demands or struck a blow". Nevertheless, he was of the view that proper weight had to be given to the facts that they were found by the jury to be parties to the unlawful purpose and that what happened at the scene was a probable consequence of the purpose.

46 Ultimately, he concluded that the seriousness of the offences outweighed the countervailing considerations such as the appellant's youth, lack of prior record, and lesser role. He felt unable to accede to the submission for suspension.

47 On the present appeal, counsel for the appellant stressed the mitigating circumstances above summarised and argued that:

• the commission of the offences was plainly out of character;

• due allowance should have been given for the appellant's ultimate co-operation with the police in his second and third frank records of interview, which, it was said "set the stage" for the trial to occur;

• it was well nigh inevitable that the matter go to trial as to intent and no significance should be attached to any failure to enter a guilty plea;

• the prognosis for rehabilitation is good and there is a low likelihood of reoffending; and

• given his young age, lack of antecedents and general good character, a requirement actually to serve a prison sentence would necessarily have a profound adverse effect on the appellant and not serve the community interest.

48 The attention of this Court was invited to what fell from the Court of Criminal of Appeal in Etrelezis v The Queen [2001] WASCA 327.

49 The principles expressed by Malcolm CJ in that case are no less applicable to the instant case.

50 As the learned Chief Justice there pointed out, the Court is required to respect the injunction of s 39(3) of the Sentencing Act 1995 (WA) - a term of imprisonment to be served immediately is not to be imposed unless the Court is first satisfied that a sentence of suspended imprisonment is not appropriate.

51 It is an error in principle to consider how long a period of incarceration (immediate or suspended) an offender's conduct warrants and then search for reasons "in mercy" to suspend that term. (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321).

52 The same considerations that are relevant for the imposition of a term of imprisonment must be revisited in determining whether to suspend that term. What is required by a proposal that a term of imprisonment should be suspended is reconsideration of "all the circumstances". That necessitates the attribution of "double weight" to all of the factors relevant to both the offence and the offender - whether aggravating or mitigating - which may influence the decision to suspend. (Dinsdale (supra) per Kirby J at par [85]).

53 As Malcolm CJ commented in Etrelezis at par [22], Kirby J made it clear that, in relation to the issue of a possible suspension, it is appropriate to consider all of the circumstances and information available, including the nature of the particular offence, the low likelihood of the offender's reoffending, the impact which a prison sentence immediately to be served would have on the offender, the "social stigma" which necessarily followed the conviction - quite apart from a prison term - and the offender's previous good character.

54 In the instant case, Mr Monisse, counsel for the appellant, did not seek to identify any specific error of principle in the expressed approach of the learned trial Judge. Rather, he argued that, on a fair balancing of the relevant considerations above summarised, the failure to suspend was plainly wrong, to the point that this Court ought to infer that the sentencing discretion has miscarried. (Dinsdale (supra) per Kirby J at par 59).

55 Whilst Mr Stone, counsel for the respondent, acknowledged that the appellant's level of culpability in respect of what occurred and that of Grimshaw was clearly less than that of their co-offenders - a fact which the learned trial Judge had recognised by the differential sentences imposed - he contended that the intrinsic seriousness of the offences, a concomitant need for public condemnation and recognition of the factor of general deterrence all combined to demand imposition of a sentence of immediate imprisonment in all cases.

56 There was a suggestion in his submissions that both the appellant and Grimshaw had actually acted as "lookouts" for those members of the group who had perpetrated the assaults on Bury and D'Arcy. However, not only was the evidence as to that somewhat equivocal, but, also, it was not accepted by the learned trial Judge - who made no finding that those two offenders had acted in that role.

57 Mr Stone properly emphasised the need for public condemnation and condign punishment of offenders in a situation in which a substantial group of persons, some of whom were armed, went to the park with the express intention of assaulting persons of a particular minority group in the community and, potentially, of robbing them. He pointed to the vicious beating which had actually been administered to the victims and invited the attention of this Court to the graphic photographs of the injuries sustained by them. He also underlined the problem that crimes of the nature here in contemplation are often difficult to detect and resolve, because of the reluctance of gay victims to come forward.

58 All that need be said concerning those submissions is that they undoubtedly focus on very important considerations which, in the present case, the learned trial Judge properly recognised by imposition of substantial custodial sentences on the appellant and Grimshaw.

59 There can be no doubt that, in its totality, the learned trial Judge was confronted with an extremely difficult sentencing task - having to deal with a variety of juveniles and adults; and offenders with varying backgrounds and degrees of culpability.

60 In my view, there cannot reasonably be any criticism of the terms of imprisonment awarded. They were necessary to mark the inherent gravity of the offences arising out of the common purpose.

61 At the end of the day it seems to me that, in the case of Miller, the obvious commencement point is the dictum of Kirby J in Dinsdale, noted above.

62 We here have the situation of a very immature, young man who was foolish enough to succumb to peer group pressure from a rather dominating and unpleasant group of persons, with whom he became associated. Whilst he may have lent moral support to them by his presence, he took no active part in the assaults and simply stood and watched. He has no significant antecedent record, has had to cope with a difficult and destabilising childhood and has a good work record. He is well regarded by his last employer. In short, he has done much to overcome many of his earlier deprivations. The pre-sentence report records that he has made significant changes to his behaviour in the last 12 months.

63 That report also discloses that he now has a realistic appreciation of and insight into the enormity of what occurred on 18 May 2000 and is truly remorseful for his part in relation to it. There is every reason to believe that, given another chance, he will not reoffend. It is also to be borne in mind that he has now been in custody for almost seven months.

64 Whilst I well understand the reasoning of the learned trial Judge, I was nevertheless driven to the conclusion that a requirement for this young man to serve an immediate substantial sentence of imprisonment was far too severe, having regard to a realistic appraisal of his personal level of culpability. The community interest is better served by a sentencing strategy which promotes his rehabilitation.

65 As was repeated in Dinsdale and has often been said, a suspended custodial sentence is a substantial penalty (see Wood v Samuels (1974) 8 SASR 465 at 468) and constitutes the penultimate punishment in the hierarchy of sentencing options provided for by s 39 of the Sentencing Act 1995 (per Kirby J in Dinsdale at 1552 - 1554). Its practical effect is to provide a very effective guarantee of good conduct of the offender during the period of suspension, thereby promoting rehabilitation.

66 Moreover, in the case of a young offender such as the appellant, there is much to be said for the approach espoused by Mullighan J in Paterson v Stevens (1992) 57 SASR 213 at 216 - 217, where he reiterated what had earlier been said by the Full Court in R v Weaver (1973) 6 SASR 265 at 267 that, where a young person is before the Court upon his first appearance as an adult, rehabilitation should be a prominent consideration. Moreover, the Court should, in such circumstances, avoid imposing a sentence which could well ruin the life of such a young person, unless there are truly compelling reasons which mandate the immediate service of a custodial sentence. (See also Lahey v Sanderson [1959] Tas SR 17 at 21 and Waye v The Queen, unreported; CCA SCt of WA; Library No 960049; 14 February 1996)

67 In Paterson Mullighan J took the view that it was not unimportant to note that the young appellant in that case, who had received a sentence of imprisonment for the first time, had, pending the hearing of the appeal, been taken to prison and actually served a short period and must, already, have learnt a very salutary lesson. There is a very distinct parallel with such a situation in the present case.

68 With all due respect to the learned trial Judge, I consider that his conclusion that, in the case of the appellant, the seriousness of the offences necessarily outweighed the countervailing considerations such as his youth, lack of prior record and lesser role, cannot be supported. That generalization and characterization of the situation necessarily failed to accord due weight to the true degree of criminality of the conduct of the appellant and the importance of the aspects personal to him, which have above been identified. I think that there is much to be said for the proposition that these offences were very much out of character so far as the appellant was concerned.

69 For the above reasons I concurred in the orders made in this matter.