Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - Whether sentence was manifestly excessive - Imposition of a parole eligibility period of greater than half of the sentence.

Sentencing Act 1997 (Tas), s17.

Judgment Number: [2008] TASSC 60

1 I have read in draft form the reasons for judgment of Evans J and agree with both his reasoning and conclusion.

2 Upon being convicted of aggravated robbery, each appellant was sentenced to four years' imprisonment, and it was ordered that each appellant not be eligible for release on parole until he had served three years of his sentence. Each appellant has appealed against the parole eligibility aspect of his sentence on the sole ground that it is manifestly excessive, as the learned sentencing judge imposed a non-parole period that was greater than half of the sentence.

3 The way in which this ground of appeal is expressed reflects a failure to appreciate the significant legislative changes that have been made over the years in relation to an offender's eligibility for parole. Prior to amendments made to the Parole Act 1975 by the Parole Amendment Act 1987, subject to an offender having served six months of a sentence, the offender was automatically eligible to apply for parole after serving one-third of the sentence. The 1987 amendments gave the sentencer the option of specifying a non-parole period, ordering that an offender be not eligible for parole, or doing neither. If the latter, the offender was automatically eligible to apply for parole after serving half of the sentence. With effect from 1 October 2002, the Sentencing Act 1997, s17, was amended by the Sentencing Amendment Act 2002 with the result that in the absence of a court order that an offender is eligible for parole after serving a specified period of the sentence (which period cannot be less than the greater of six months or half of the period of the sentence), the offender is not eligible to be released on parole. So, in the absence of an order as to eligibility for parole, prior to 1 October 2002, the default position was that the offender was eligible for parole, but since that date the default position has been that the offender is not eligible for parole. The legislation no longer provides any basis for an expectation on the part of an offender to be eligible for parole after serving half of a sentence. Even before the changes that came into effect on 1 October 2002, it was recognised that persistent offenders should not expect to be eligible for parole after serving half of a sentence. In Gill v R A34/1990, Crawford J (as he then was) said at 9 of his decision:

"In this case ... important considerations are those of punishment and deterrence. The removal of or delay in obtaining parole eligibility is a greater punishment and can be regarded as having greater deterrent value. Almost all prisoners desire early release. It can validly be said that some persistent offenders, and some who seriously offend on a number of occasions, should not expect that the usual half term eligibility for parole consideration will automatically come their way if they offend again."

4 Since 1 October 2002 it can validly be said that no offender is automatically eligible for parole and that the bad record of an offender may impact adversely on an offender's prospects of being made eligible to apply for parole and the period, if any, fixed for that eligibility.

5 The intention that underpins legislation as to parole eligibility is the mitigation of punishment in favour of rehabilitation through conditional release, once an offender has served the minimum time that the sentencer determines justice requires that the offender must serve, having regard to all the circumstances of the offence: see Deakin v R [1984] HCA 31; (1984) 58 ALJR 367 and Power v R [1974] HCA 26; (1974) 131 CLR 623 at 629.

6 The Sentencing Act, s17(4)(a) and (b), specifies that the nature and circumstances of the offence and the offender's antecedents or character are relevant to a sentencer's exercise of the discretion as to parole eligibility. As to the circumstances of each appellant's crime, the learned sentencing judge said:

"On the night of Saturday 12 January 2008, Patrick Pettit went from his home at Kingston into the city for a drink. He began drinking at about 10.00pm. After drinking for a time, he walked down to a night club near the wharf where he continued to drink for about 2 hours, leaving the club at about 4.00am. At that time he was reasonably intoxicated but by no means drunk. He intended to get a taxi and go home. He began walking up Murray Street and ran into you two. He did not know you.

You, Mr Coad, suggested the three of you go to the Waratah Bottle Shop to buy some more to drink. Mr Pettit was reluctant, but kept walking with you. At the Waratah, you, Mr Coad, gave Mr Pettit $20 towards the purchase of a carton of beer. After buying the beer, the three of you walked to the skate park on the corner of Tasma and Murray Streets. It was suggested to Mr Pettit that this was a short-cut to where you lived.

After some drinking Mr Pettit attempted to leave because he perceived he was in a threatening situation. At that point the two of you savagely attacked him. His legs were kicked out from under him and he was then kicked repeatedly to the head, face, back and stomach. He was knocked unconscious. When he regained consciousness he was covered in blood and his wallet, containing about $80 in cash, credit cards, driver's licence and other personal documents had been stolen, as had his mobile phone and a set of keys.

A passing taxi driver found Mr Pettit and called an ambulance. He sustained significant injuries at your hands. These included multiple facial fractures, bruising to, and bleeding, in the brain. He suffered blurred vision. In addition he suffered severe bruising to the left side of his body and left arm and leg, and bruising to the back, together with multiple grazes to his head and face. He was in hospital for 8 days. Repairs to the fracture of his facial bones required the insertion of titanium plates. He also underwent a reduction of the nasal bone fracture.

Physically, Mr Pettit has largely recovered from his injuries. The titanium inserts in his face, however, cause problems in cold weather, resulting in a dull ache, leading to difficulty with sleeping. The psychological impact upon him has been severe. As a result of this incident and the extended period of sick leave he required to recuperate, he lost his job as a welder and has been unemployed since. He has significant debts. He was prescribed sleeping pills for several months after the attack and although not now taking them, he remains troubled by abnormal sleep patterns, bad dreams and flashbacks."

The learned sentencing judge described the crime as a savage and unprovoked attack on a victim who had no chance of defending himself against two attackers working together, said that the appellants played an equal part in the commission of the crime and, having adverted to differences between each appellant's record of convictions, concluded that the same sentence should be imposed on each appellant.

7 The head sentence of four years' imprisonment has not been appealed and is plainly appropriate. When sentenced, Adam Moore was 27 years of age and Peter Coad was 30 years of age. Each appellant had many prior convictions. On the one hand Mr Coad's record for crimes of violence was significantly worse than that of Mr Moore. It included a conviction for causing grievous bodily harm for which he was sentenced to three years' imprisonment and a conviction for assault for which he was sentenced to ten months' imprisonment. On the other hand Mr Moore's record for crimes that involved dishonesty or a disregard for the safety of others was significantly worse than Mr Coad's. By way of illustration, the following is the number of their respective convictions for the crimes referred to:

8 In these circumstances I have no hesitation in concluding that the learned sentencing judge did not err in concluding that the minimum term that each appellant should serve before being eligible to apply for parole was three years. The sentences were not manifestly excessive because a non-parole period which was greater than half of each sentence was imposed.

9 I turn to one matter adverted to in the course of the hearing of Mr Moore's appeal that relates solely to him. He was sentenced on 8 August 2008. On 14 March 2008 he had been convicted of a number of crimes committed in July 2007 for which he was sentenced to 12 months' imprisonment from 8 February 2008. According to his record of convictions, he was not made eligible to apply for parole in relation to that sentence. His final release date on that sentence was 7 February 2009. Pursuant to the Sentencing Act, s17(4)(c), any other sentence to which an offender is subject is a circumstance to be addressed when considering parole eligibility. Consistent with this provision, the learned sentencing judge considered the 12 month sentence when imposing the sentence of four years' for aggravated robbery that is the subject of this appeal. It was necessary to commence the four year sentence 15 days prior to 7 February 2009 in order to give Mr Moore the benefit of a period of 15 days when he was held in custody on the aggravated robbery charge. In addition, having regard to the potential of remissions of three months on the 12 month sentence, the learned sentencing judge brought the commencement of the four year sentence forward a further three months to 24 October 2008. In result Mr Moore will be eligible to apply for parole three months and 15 days earlier than he would have been had the sentence been made wholly cumulative upon the 12 month sentence. See the Corrections Act 1997, s71(2)(a). By bringing the commencement date of Mr Moore's four year sentence forward in this way, the learned sentencing judge took appropriate account of the 12 month sentence when determining the period of his eligibility for parole.

11 I agree that for the reasons given by Evans J, the appeal in each case should be dismissed.