O'Brien v R [2000] TASSC 117

Lahey v Sanderson [1959] TAS SR 17; Veen v R [No 2] [1988] HCA 14; (1988) 164 CLR 465, referred to.

Judgment Number: [2000] TASSC 117

1 The appellant, on his conviction for one count of aggravated burglary and one count of attempted aggravated armed robbery committed by him at the age of 18 years and 2 months, was sentenced to imprisonment for four years three months, backdated to the date on which he was taken into custody. He appeals on the basis that the sentence was, in the circumstances, manifestly excessive, that the learned trial judge made an error of fact in the sentencing process and that he failed to properly apply the principles laid down by the High Court in Veen v R [No 2] [1988] HCA 14; (1988) 164 CLR 465.

2 The crime itself was a particularly serious one. Three other men met in the appellant's flat and together with the appellant, decided to invade the home of the complainant and to steal drugs and money believed to be there. The other men were older and one, the instigator and ringleader, physically stronger. That person appears to have been quite deranged and has not been brought to trial because of his mental condition. Neither of the other two men has been brought to trial. One of them, being known to the complainant who was selected as a victim because he was only 18 years of age and was regarded as weak, did not go to the scene of the crime, but the appellant and the other two did. All donned balaclavas to conceal their identity and the other two, to the knowledge of the appellant, armed themselves with knives and a wrench. Although prior to departure from the appellant's flat there is evidence that one of the other men spoke of scaring the complainant and robbing him, rather than of assaulting him, the three, on arrival at the victim's premises, burst in and the ringleader and the appellant each offered violence to him. He was stabbed with a knife by someone other than the appellant and suffered a penetrating injury to the abdomen, which had to be sutured. He received a fracture of the left elbow joint, which was fixed surgically with pins and wiring. He suffered abrasions to the face, a scalp wound and a superficial scratch on his abdomen.

3 In the course of this home invasion, the appellant seized hold of a baseball bat in the complainant's home and brought it to where the complainant was. He approached in an apparent attempt to strike him with it. The bat did not connect and the complainant managed to get hold of it himself in the course of a struggle with the appellant and to inflict some blows on the appellant before losing consciousness himself. Eventually the intruders left, empty handed. Prior to losing consciousness, the complainant had been stomped on by the appellant, the complainant's evidence in this respect being that a person identified as the appellant was "head stomping me, kicking me in the head". It appears from his evidence that he was, at that stage, lying on the floor.

4 Notwithstanding that most of the violence was perpetrated by the ringleader, the appellant took an active role in subjecting the complainant to violence. Notwithstanding that he was persuaded by the others to join in the enterprise, the evidence does not show him to be anything other than a willing participant.

5 In my view, the learned trial judge was in error in making a finding in the course of his comments on passing sentence that the complainant was beaten with a metal baseball bat. Miss Mason attempted to justify the finding as one circumstantially open, but in my view, that is not the case. The learned trial judge did not find that the appellant had beaten the complainant with the bat, but even if he had, that was not, in the circumstances, a matter which materially magnified the seriousness of the appellant's conduct. He attempted to achieve that result and in the course of overcoming the complainant, inflicted other kicks and blows no less serious. In any event, the seriousness of the combined assault in terms of result can be seen in the injuries specifically alluded to by the learned trial judge rather than in the means whereby they were sustained. In my view, the error was an immaterial one.

6 This was clearly a very serious crime. It was committed in concert on a defenceless victim; it involved a significant invasion of private premises; the wearing of masks to disguise the offenders tends to arouse added fear in a victim; and not inconsiderable physical injuries were inflicted. The attack was for personal gain and was prolonged and vicious. The learned trial judge remarked, and there is no challenge made to this, that the offenders left the home "laughing and animated", showing no signs of regret or remorse at their actions. A substantial actual prison sentence was clearly called for. The learned trial judge took into account the youth of the appellant as a mitigating factor. In Lahey v Sanderson [1959] Tas SR 17, Burbury CJ said at 21:

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

The present case differs markedly from the situation referred to by the former Chief Justice. In the first place, this was a crime of considerable gravity involving violence. The appellant's previous record showed him to be a young man who had been in almost continuous trouble with the law for the past five years. He had 29 convictions or findings of guilt for stealing, 28 for burglary, eight for other crimes of dishonesty, five for assault and one for breach of a restraining order. He had been remanded to a Youth Detention Centre, been declared or re-declared a Ward of the State on some 20 occasions and had been subject to suspended sentences in relation to 13 offences. This criminal episode took place on 14 June 1999. Although he had not served a sentence in an adult prison, he had been incarcerated in the Remand Centre between the end of February 1999 and 11 May 1999, part of which time being deemed, by the process of backdating sentences imposed in April and May 1999, to have amounted to serving or expiating those sentences. It may be (the record is not clear) that he was released for some part of that time; but be that as it may, he committed these crimes barely a month after his release on 11 May from several weeks of custody, thereby clearly demonstrating an unwillingness to learn from the experience of incarceration. His prospects of rehabilitation were bleak, to say the least.

7 Although he had an unfortunate personal background and a disrupted education, this was clearly not a case where the deterrent aspects of punishment, both general and individual, should have given way to the notion of an individually tailored reformatory penalty. The appellant, so the learned trial judge noted, had shown no signs of remorse for his actions. There was no plea of guilty, which usually justifies some amelioration of the penalty.

8 I am not satisfied that the penalty, though heavy for a young man, was manifestly excessive. Unfortunately, stern measures were necessary in this offender's case. Nor do I regard the sentence as involving any departure from the principles expressed in Veen v R [No 2] (supra). Society is entitled to protection from persistent law-breakers, whether they are 18 years old or much older. This is an aspect of punishment which can validly be taken into account. The vice is to allow concerns for the protection of society to give rise to sentences which are disproportionate to the gravity of the offence. In my opinion, the sentence imposed in this case cannot be said to be disproportionate to the gravity of these offences. I would accordingly dismiss the appeal.

10 I also agree and I also do not wish to add anything.