Criminal Law - Appeal and new trial and enquiry after conviction - Appeal against sentence - Appeal by convicted persons - Applications to reduce sentence - When refused - Particular offences - Offences against the person - Assault and unlawful act intended to cause grievous bodily harm.

Wise v R [1965] Tas SR 196; Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1, followed.

Papazoglou v R 9/1963; R v Allen 112/1999; Hyde v R [2001] TASSC 50, referred to.

Judgment Number: [2007] TASSC 39

1 The appellant pleaded guilty to one count of assault against the Criminal Code, s184, and one count of committing an unlawful act intended to cause bodily harm against s170. He was sentenced to imprisonment for four years from 19 July 2006 with a non-parole period of three years. He appealed on a single ground of manifest excessiveness.

2 The events occurred at Queenstown on 29 December 2004. He and his co-accused, Lance William Jenkins, had heard rumours that the complainant, a man aged 62 years, had sexually assaulted a five-year-old girl. They lived in the same community and the appellant and the girl's mother were on friendly terms. At the local post office he asked the girl's mother about the matter. She said she knew nothing about it. At the time, the complainant was living with the mother and the girl. Prosecuting counsel said that later in the day, the appellant and Jenkins went to the mother's home to look for the appellant. They were told that he was at the house next door. However, the appellant's counsel said, with much vagueness, that on that occasion, "there was some confusion as to the mother's knowledge" and "there was a suggestion that she didn't know what to do about the situation, which Mr Parker took to mean that something perhaps had occurred and he wanted to question the child directly". Counsel said that the appellant approached the child in a room in the house and asked if the appellant "touched you in a bad way" and the child's response confirmed his suspicions that the appellant had done so in a sexual way. However, counsel did not articulate what that response was. With regard to that conversation, prosecuting counsel directed the attention of the learned judge to the appellant's police interview, in which he said that "I just asked her if anyone has touched her in a bad way" and she told him "yes", without identifying the complainant as the responsible person. The appellant's counsel said that "he simply snapped" and went directly to the house next door to confront the complainant with an assault in mind, and that he went "overboard in his actions" because "he has extremely fixed views about the treatment of children" which may have stemmed from ill-treatment he suffered as a child. The learned judge accepted that the appellant had no doubt in his mind that the complainant had sexually assaulted the girl.

3 The two men went next door and entered the house. The complainant was sitting in a chair. Both the appellant and Jenkins assaulted him by punching him in the body and head. He did not fight back or get up. When interviewed by police, the appellant said that he asked the complainant a question relating to the rumours but received no answer and that he took that as an admission because if it had been him, he would have protested if accused of behaving in that way. At some unspecified time subsequent to that, the appellant punched the complainant again, causing him to fall to the floor and the appellant then kicked him in the head. In his interview, he admitted to punching the man three or four times, once in the back of the head and a couple in the front, causing him to fall, and then to kicking him twice in the head, once in the upper body and a little later, once in the groin. Jenkins admitted to punching the man in the face when he was still sitting in the chair. After the appellant had kicked the complainant, Jenkins dragged him through the house to the porch and kicked him once in the stomach.

4 Later that evening, the appellant approached police officers, told them about the allegations against the complainant and said that he had given him a bit of a touch up and that there were a couple of hits involved. He made no mention of kicks or of the serious condition of the complainant as a result of the crimes. Police went to the scene and the complainant was found in a badly injured state. The girl's mother told them that he had fallen from a wall, because the appellant had told her not to say anything about what had happened. Police interviewed the girl in relation to the rumours and she told them that the complainant had not touched her inappropriately.

5 After initially understating, to a significant extent, what he had done to the complainant, the appellant made full admissions when interviewed by the police a short time later. Nevertheless, he did not demonstrate remorse, for he said, "I know I've done the wrong thing but like, to tell you the truth, I'd do it all again because no one was to protect these children".

6 The injuries suffered by the complainant were grievous. Agreed facts were the following. He was initially treated at the Royal Hobart Hospital. On 8 February 2005 he was transferred to the Acquired Brain Injury Unit at the Royal Talbot Rehabilitation Centre in Melbourne. On 1 April 2005 he was transferred to the Rehabilitation Unit at the Queen Elizabeth Centre in Ballarat for further rehabilitation. On 23 May 2005 he was transferred to Hailey House for long-term care. As a consequence of the crimes he was no longer able to live independently. He sustained a severe head injury with consequent problems with cognition, speech and mobility and psychological trauma. He has significantly impaired speech and his gait and balance have been badly affected. The most serious of his injuries and the most serious of his disabilities were caused by the appellant, who had intended to cause "grievous bodily harm" at the time of the second attack. By definition in the Code, s1, that expression means bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause serious injury to health.

7 A statement from the complainant's brother a little over seven months after the crimes further explained the impact of the injuries on him. Prior to the crimes he lived independently in Ballarat. He was able to look after himself and do all domestic chores and banking. He enjoyed driving his car and travelling. He especially liked Tasmania for fishing and camping. He had no serious health problems. Although tending to be slightly slow, he had no difficulty with reading and writing and understanding normal life situations. Following the crimes he was a completely different person. He was unlikely to live independently again. He was living in hostel accommodation and receiving physiotherapy and speech therapy. His speech was difficult to understand, which made it hard for him to keep old friends and to want to contribute at the Ballarat Community Centre where he was an established member. He tended to walk with a type of shuffle and was very slow. His right arm movement was very restricted. It was hard for him to hold things in his right hand and his dexterity was restricted. He lost his balance easily. He was unable to drive a motor car. He needed constant supervision. He tended to become very emotional. His short-term memory was very poor. He needed to use a catheter and was due to have surgery to fix that problem. The hostel, in which he was living, took care of him as he could not do anything for himself.

8 The appellant was 32 years old at the time of the crimes and 34 when sentenced. He had no record for violence, although he had offended by engaging in disorderly conduct when aged 21, resisting a police officer when 22 and destroying property when 22. He had been in a relationship with a woman since 2003. He had three children from a previous relationship. His counsel said that when a child he suffered significant physical and emotional abuse from his father, often suffering severe and visible injuries to his body and head. The abuse continued until he stood up to his father when 17 years old. His education was interrupted from time to time. It extended to the end of Year 11. For a short time he had a drug problem but successfully addressed that, after placing himself at Missiondale near Evandale for rehabilitation. He did not drink alcohol. He had periods of manual employment, with a variety of jobs, over the years. At the time of the crimes he was a subcontractor doing mine exploration work, cutting tracks. Following the crimes he had casual employment with a company that made fruit juice products.

9 In his comments on passing sentence upon the appellant and Jenkins, the learned judge said (inter alia):

"You, Parker, believed that the victim had sexually molested this child. You took it upon yourself to question the mother and the child. As a result of what you were told, which by no means amounted to an unequivocal allegation of sexual abuse, you formed the view that the complainant was the perpetrator of sexual crimes against this child. You decided to take the law into your own hands and punish the complainant. ... There is no excuse for the commission of these crimes. No matter how badly either of you were treated as children, this attack on the complainant was completely unwarranted. If you believed that a child had been abused, you should have gone to the police and made a complaint. I interpolate that when interviewed by the police, the child denied any sexual abuse at the hands of the complainant. These are very serious crimes. You must understand that the community cannot tolerate persons taking the law into their own hands to redress, by means of criminal violence, what they perceive was wrongdoing on the part of the victim. Aggravating features of these crimes include the facts that the two of you committed the first assault together, and that you both invaded a house to do this. ... Neither of you have prior convictions for crimes of violence. I take into account early pleas in the case of both of you. I also take into account periods spent in custody."

10 No attack has been made on his Honour's comments. They were entirely appropriate. A severe sentence of imprisonment was demanded in response to the level and extent of violence and the shocking injuries and permanent disabilities inflicted on a victim who, it appears, was innocent of what the appellant accused him of having done. The administration of kicks to the head of a victim rendered helpless by the appellant deserves to be deplored. The consequences of his criminal acts are material considerations when assessing the severity of the sentence that should have been imposed, certainly where those consequences were foreseeable, as they were here. Wise v R [1965] Tas SR 196; Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1. Vigilante justice must be condemned and a sentence of general deterrence in particular was required to send that message to the community.

11 The sentence was within the range that earlier Courts of Criminal Appeal have thought to be ordinarily appropriate for more serious examples of a crime against s170. See Papazoglou v R 9/1963 (3 to 7 years imprisonment); R v Allen 112/1999 per Wright J at par13; Hyde v R [2001] TASSC 50. It was not excessive by any means. It was consistent with a number of other sentences that have been imposed by judges in the past. The non-parole period reflected the view of the learned sentencing judge that the appellant should spend at least three years in prison before being able to gain conditional freedom. It did not render the sentence manifestly excessive, having regard to the crimes and their consequences.

12 The appeal should be dismissed.

13 The appellant and his co-accused, Lance Jenkins, were jointly charged on an indictment dated 13 June 2006, with the crimes of assault and committing an act intended to cause grievous bodily harm, contrary to the Criminal Code, ss184 and 170. On 7 August, the appellant pleaded guilty to the crimes and he was remanded in custody to await the outcome of the trial of Jenkins. Jenkins had pleaded guilty to the crime of assault on 7 August, but stood his trial on the two counts involving the Code, s170. He was acquitted on one count, with the jury unable to reach a verdict on the other. He subsequently pleaded guilty to an amended indictment containing one count of assault.

14 On 14 September 2006, the facts alleged against both men were put to the sentencing court and the respective pleas in mitigation put by counsel. Jenkins was sentenced to 18 months' imprisonment, backdated to 21 July 2006, with a non-parole period fixed at 12 months. The appellant was sentenced to a term of imprisonment of four years, commencing as and from 19 July 2006, with the non-parole period fixed at three years. Neither offender had relevant prior convictions for crimes of violence and the learned sentencing judge took into account the "early pleas" of both. There was reason for the learned sentencing judge to distinguish between the sentences appropriate for each offender and no claim is made on this appeal that there was error by reason of disparity of sentence.

15 The ground of appeal is that the sentence:

"... was manifestly excessive having regard to all the circumstances of the case."

16 The appellant had pleaded guilty to the assault on a 61 year old male by punching him to the head and body and at a later time causing the victim actual bodily harm by kicking him to the head and upper body, whilst the man was lying on the ground.

17 The appellant claimed to have heard rumours "about the complainant having interfered with a five year old girl". He had approached the girl's mother who had stated that she "knew nothing about them". Subsequent inquiry revealed that the child denied "any sexual abuse at the hands of the complainant". On 29 December 2004, the appellant communicated his belief to Jenkins and the two decided to attack the complainant as a form of retribution. The two went to a house which the complainant was visiting where they attacked the complainant, who was sitting in a chair, by punching him to the head and body. The man neither resisted the attack nor attempted to get up from the chair. (It was the appellant who had led the way.) The learned sentencing judge found that:

"A short while later [the appellant] returned to the scene of the assault and committed the crime of committing an unlawful act intended to cause bodily harm. This time [he] punched the complainant about the head knocking him to the ground. There [he] kicked him several times including a number of kicks to the head. This was a very violent attack."

18 The co-offender, Jenkins, subsequently returned to the scene and again assaulted the complainant. But, as the learned sentencing judge found, "... the most serious injuries ... were caused by [the appellant]" who ought be regarded as the more culpable party since on the second occasion he "intended to cause bodily injury".

19 The sentence reflected the principle that:

•

culpability is in part determined by the consequences of the conduct; and

•

whether the offender intended or foresaw those consequences.

Here the consequences were horrendous (R v Bennett [1990] Tas R 72), readily identified (Harland-White v R 1/1998), and the plea itself acknowledged that serious consequences were intended and their extent not too remote (Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1). The belief claimed by the appellant was taken into account by the learned sentencing judge, but given little weight (Meers and Moles v R (1998) 101 A Crim R 329), since even if the belief was held "... the community cannot tolerate persons taking the law into their own hands to redress, by means of criminal violence, what they perceive was wrongdoing on the part of the victim."

20 The sentence reflected two distinct occurrences, commission in company, home invasion and incitement of another. The repetition of conduct caused serious and permanent consequences.

21 The complainant was initially treated at the Royal Hobart Hospital and transferred to the Acquired Brain Injury Unit at the Royal Talbot Rehabilitation Institute Centre in Melbourne in February 2005. In April, he was treated for further rehabilitation at a different special unit and admitted for long term care at Hailey House in May of that year. He is unable to live independently because of cognition, speech inability and psychological trauma, all sequelae of the severe head injury suffered during the attack. It was these consequences, coupled with the intent to cause bodily harm, which governed the assessment of sanction.

22 The sentence, whilst at the higher end of the range, remains appropriate for the crime of this nature. It was not outside the appropriate range.

23 The appeal ought be dismissed.

File No CCA 67/2006

24 I have read the reasons for judgment of Crawford J in draft form. I agree that the appeal should be dismissed, for the reasons stated by him.