Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Plea of guilty to three counts of assault and one count of committing an unlawful act intended to cause bodily harm - Act of dousing partner in petrol and setting it alight resulting in burns to 25% of her body - Sentence of 10 years' imprisonment with non-parole period of 6 years not manifestly excessive.

Judgment Number: [2016] TASCCA 22

1. Michael Price, the appellant, was sentenced by Porter J on 7 April 2016 in respect of three counts of assault (contrary to the Criminal Code, s 184) and one count of committing an unlawful act intended to cause bodily harm (contrary to s 170). The offences were committed between August 2014 and June 2015. The victim of all the offending was the appellant's then partner. All the offending occurred in the course of their domestic relationship. The appellant was sentenced by Porter J in respect of all the offending on a global basis to 10 years' imprisonment. There was an order the appellant be eligible for parole after he had served six years.
2. The appellant's appeal against the sentence imposed by Porter J was heard and dismissed by the Court on 8 November 2016. These are my reasons for joining in the dismissal of that appeal.
3. I have had the benefit of reading in draft form the reasons of Estcourt J. In substance, I agree with those reasons. I specifically adopt the summary of the grounds of appeal and the law relating to the appeal, and those paragraphs containing an outline of the circumstances of the offending, the victim impact and the sentencing remarks of Porter J as they appear at [2]-[9] of his Honour's reasons.
4. I would like to add some further comments. This was a serious case involving instances of escalating domestic violence over several months. The acts culminated in the most serious act which involved the appellant, when under the influence of alcohol, pouring petrol over the complainant and lighting it. She suffered horrific injuries and will be disfigured for life.
5. Counsel for the appellant focused his submissions on that final act. He made a number of submissions both in writing and orally about what he described as the accepted sentencing range. He emphasised that the accepted range for a crime pursuant to s 170 was between three and seven years. He referred to a number of cases, and submitted that the circumstances in those cases, particularly the injuries caused, were far worse than in the appellant's matter, and yet the offenders received shorter sentences. What appeared to escape counsel, and Estcourt J has referred to this at [20] of his reasons is that, as his Honour said:

"These authorities make it clear that, subject to the unimpaired discretion of a sentencing judge, to impose a sentence that is reasonable, a contravention of s 170 should ordinarily attract a sentence of imprisonment of between three to seven years."

1. This case was by no means an ordinary one. It did not, as almost all the matters to which counsel referred, involve a single violent act or series of acts on one day. As I said, it involved a number of violent acts of increasing severity over nearly 10 months. For example, in the incident which preceded the final act by about two months, the appellant bent the complainant's wrist back so far he fractured it.
2. In his comments on passing sentence, Porter J expressly referred to the three specific matters identified as relevant on this appeal, namely the pleas of guilty, the good character of the appellant and his prospects of rehabilitation. There can be no suggestion his Honour failed to take those matters into account. Counsel's argument appeared to be that those factors could not have been sufficiently taken into account having regard to the fact that his Honour had gone so far outside what counsel asserted was the accepted sentencing range for a crime pursuant to s 170.
3. The starting point in dealing with this appeal is whether it could be said this case is one which falls within that category of case which should, in respect of the contravention of s 170, "ordinarily" attract a sentence of imprisonment of between three and seven years. If that question is answered in the negative, then such a sentencing range does not, in my view, assume any status as a starting point for an appropriate global sentence for a number of offences of violence. Such a range may of course be had regard to as a range which might ordinarily be imposed for one such crime, but only with the clear caveat that a sentencing judge has a discretion to be exercised according to the facts of a particular case.
4. In the appellant's case, the sentencing judge was considering four crimes of violence committed over nearly 10 months, not just the final most horrific act. He was also, in my view, considering a case in which, as far as the s 170 crime was concerned, fell into the category which ordinarily might have attracted a sentence of between three and seven years. As I have already said, this case was not an ordinary one. The final act committed by the appellant could not, and should not have been, the sole focus of this appeal.
5. When it was pointed out to counsel for the appellant that the appeal related to four distinct crimes and not just the s 170 matter, counsel submitted that had, for example, the three counts of assault been dealt with in isolation, it was unlikely the appellant would have received any more than a short term of imprisonment, and it would most likely have been suspended. That approach was used to support an argument that, if that short term of imprisonment was notionally added to the top end of the accepted sentencing range for a s 170 crime, the notional sentence would still have been well below what Porter J imposed, and therefore the global sentence his Honour did impose was manifestly excessive. Counsel, with respect, did not have an appreciation of what the likely sentence might have been for the three assaults in isolation, and underestimated such a sentence. However, that exercise was irrelevant because Porter J was dealing globally with four crimes and that exercise would not involve imposing an individual sentence for each crime and simply adding them up.
6. To succeed on this appeal, the appellant had to satisfy the Court that the sentence imposed upon him was unreasonable or plainly unjust. I accept that the sentence was a heavy one. However, that does not satisfy the relevant test. The sentencing judge had a discretion as to the weight he accorded the various factors he had to consider. It is not suggested he failed to consider matters, only that he did not give certain factors sufficient weight. It has not been shown that his Honour's sentencing discretion miscarried such as to produce a sentence which could be said to be unreasonable or plainly unjust.

1. I have had the advantage of reading the reasons for judgment of Tennent J and Estcourt J and I respectfully agree with both their Honours' reasons. They reflect my reasons for joining in the order of the Court made on 8 November 2016 dismissing the appeal and it is unnecessary for me to add much more. I mention my agreement with Estcourt J that the learned sentencing judge would have been entitled to have regarded a global sentence of 12 years' imprisonment or upwards as a "starting point" for the crime of committing an unlawful act intended to cause bodily harm and the three counts of assault. It was a grave example of a crime contrary to s 170 of the Criminal Code. The comments of the learned sentencing judge fully exposed the gravity of the crime and the need for a heavy sanction: "Factors of general deterrence and denunciation ... are very prominent in the sentencing exercise ... Domestic or family violence is particularly unacceptable because of its insidious nature, the difficulty in detection and the impact on the victim, broad family units, and the wider community ... [the appellant's] actions have consigned Ms Jacobs to a lifetime of pain and suffering, physically and emotionally." It may be noted that in Kilic v The Queen [2015] VSCA 331 at [31], the Victorian Court of Appeal considered similar conduct involving a charge of intentionally causing serious injury and stated: "The intentional setting on fire of any person with ensuing and entirely predictable life-threatening burns to a large part of the body, clearly places the case within the worst category of this offence."
2. I wish to make some brief remarks about two aspects of the appellant's submissions which were relied upon in contending that the sentence he received was manifestly excessive and the crime he committed contrary to s 170 deserved to be treated as at the upper end of the range for "ordinary cases" of three to seven years. It was highlighted that, unlike other examples of this crime, the attack was not sustained. However, this submission invites a comparison with conduct involving a repeated application of force, often numerous punches or other blows. Of course, in such cases, whether the attack was sustained bears on the prospect of harm to the victim and an assessment of the harm intended by the defendant. In this case though, the harm caused by the conduct of dousing the complainant in petrol and ignition was catastrophic without any further action_._ Moreover, that conduct was accompanied by an intention to do grievous bodily harm and disfigure the complainant. A more suitable comparison is with conduct involving similarly devastating singular acts, such as aiming a firearm and discharging it at close range intending to cause grievous bodily harm or disfigurement, or detonating an explosive device in the nearby vicinity of a victim with that intention. Just as it would be artificial or beside the point to place significant weight on the fact that pulling the trigger or detonating the device was not sustained conduct, the same can be said for igniting the petrol.
3. Further, in arguing that the sentence was manifestly excessive, it was emphasised that the crime contrary to s 170 was not premeditated or calculated, but rather was highly impulsive. That is a legitimate consideration regarding the appellant's culpability and indeed it was specifically noted by the learned sentencing judge that the conduct was unplanned. However, notwithstanding this feature of his offending, overall, the appellant's moral culpability was significant; if his conduct had been calculated and premeditated, his culpability would have been even greater. His conduct is to be contrasted with that of an offender who acts with uncharacteristic violence and who was unaware of the prospect that he may respond with aggression. The appellant knew he had an impulse to harm the complainant, and that he had acted on that impulse in the past, and he also knew that he had previously harmed her, resulting in visible injuries, and on one occasion caused her significant injury by fracturing her wrist. He was aware that instrumental factors in his past violence towards the complainant were his excessive consumption of alcohol and situations involving conflict with the complainant. These factors were present on this occasion. An angry and violent response of some kind towards the complainant was, in the circumstances, predictable and he must have known, particularly once the argument began, that he posed a danger to the complainant. These matters bear on an assessment of his moral culpability for the crime contrary to s 170.
4. I agree with Tennent J in rejecting the submission that if the three counts of assault had been dealt with in isolation, it was unlikely that the appellant would have received any more than a short term of imprisonment, with the prospect that it would have been suspended. It was maintained in oral submissions that an actual term of imprisonment of less than six months would have been expected. In my view that would have been an inadequate sentence. I am mindful of the appellant's lack of prior convictions, but nevertheless there was a particularly strong need for personal deterrence, as well as general deterrence. There were two incidents which gave rise to three counts of assault, the first incident in August 2014 and the second in April 2015. The learned sentencing judge was informed that the assaults were part of a violent course of conduct towards the complainant and were not isolated occasions. The violence had commenced before the first incident and continued in the period between the first and second incident. As noted by the learned sentencing judge, whilst the appellant was not to be punished for additional uncharged acts of violence, he was to be sentenced on the basis that the three counts of assault were not isolated lapses. Those three counts were individually serious acts of domestic violence and necessitated a sentence that gave real weight to personal and general deterrence.
5. In light of these matters and the reasons of Tennent J and Estcourt J, I hold the view, contrary to the submission of the appellant, that the global sentence of 10 years' imprisonment suggests in fact that a meaningful discount for the appellant's plea of guilty and the principle of totality was applied by the learned sentencing judge. The sentence was not so heavy that it is indicative of excess or implicit error.

1. The appellant, Michael John Price, has appealed against a sentence of 10 years' imprisonment with a non-parole period of six years imposed on him by Porter J on 7 April 2016.
2. The gravamen of the appeal are that the sentence was manifestly excessive, specifically in that the learned sentencing judge erred in failing to give reasonable weight to the appellant's early plea of guilty, his prior good character and his prospects of rehabilitation.
3. The sentence was imposed consequent upon the appellant's plea of guilty to three counts of assault and to one count of committing an act intended to cause bodily harm. The crimes were committed against the appellant's then partner between August 2014 and June 2015.

1. I pause to repeat once again the principles governing appeals against sentence on the ground of manifest excess or inadequacy. I do so as, although the appellant alleges error of the first type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, it will become obvious that the learned sentencing judge did not err in the specific ways alleged, and the gravamen of the appellant's appeal must, in truth, be that the sentence is manifestly excessive because his Honour's starting point before reduction for an early plea of guilty, and before taking account of the appellant's previous good character and prospects of rehabilitation, was far too high.
2. The first type of error discussed in House was where it appears an error has been made because the judge acts upon a wrong principle, or allows extraneous or irrelevant matters to guide or affect him or her, or if he or she mistakes the facts, or does not take into account some material consideration.
3. In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, a case involving an assertion of error of the second type discussed in House, Pearce J, with whom Blow CJ and Porter J agreed, succinctly but comprehensively, if I may say so with respect, summarised the relevant principles at [8] as follows:

"[8] As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."

1. The learned sentencing judge set out the circumstances of the appellant's crimes in his comments on passing sentence, relevantly as follows:

"The two people commenced a relationship in about November 2013. Eventually the complainant moved into the defendant's home. Two of the complainant's daughters from a previous relationship, aged 21 and 17, also moved in at about that time. Shortly after, the complainant realised that the defendant was a heavy drinker. They began to have arguments. He started to act violently towards her. The first crime of assault was committed in August 2014. The complainant came home early from work because she was unwell. The defendant was downstairs in the garage and had been drinking. An argument developed during which, without warning, the defendant punched the complainant to the face with his right fist. The blow knocked her to the ground and she struck her head on the concrete floor. She was dazed but able to make her way upstairs. As a result of the blow, she consulted a general practitioner and was treated for ongoing headaches. ...

The second and third counts of assault relate to an incident in April 2015. The defendant was in the garage drinking alcohol after the two had been out to a hotel. The complainant went to speak to him and they began arguing. She pushed him away as he was standing over her and shouting at her. He knocked her to the ground and began choking her with one hand. He was squeezing her throat so hard that she could hardly breathe. He held her for a number of seconds during which he was screaming and yelling at her. He then let go and stood up. She also got up and pushed him away, at which point he took hold of her right wrist and bent it backwards. This caused her immense pain. The next day her right wrist was swollen and sore. Despite the defendant refuting the suggestion she may need to go to the hospital, shortly afterwards the complainant saw a general practitioner and told the doctor she had fallen over. Scans revealed a slightly displaced fracture of the lunate, which essentially is the major bone at the base of the hand adjacent to the ulna and radius. Her forearm and wrist were fully plastered and she was unable to return to work for about 8 weeks. ...

The final count relates to an incident on 17 June 2015. The pair had been out together in the early evening. When they returned home, the complainant went upstairs to the living area while the defendant went to the garage and continued drinking. Some time later, the complainant went down to the garage to see what he was doing. He was very drunk and they began arguing. He told her that he was going to pour petrol over her and light her up. She said to him that he should not be stupid, but without warning the defendant picked up a petrol container from the floor, undid the cap and threw petrol over her. He took a cigarette lighter, moved his hand towards her and ignited the lighter near her chest area. She immediately became engulfed in flames. Her upper body was on fire. She was screaming while trying to pat the fire out with her hands. At this point the defendant dropped the petrol container which caused more petrol to spill out onto the floor, and the fire spread to the complainant's legs. She became engulfed and the flames reached the ceiling of the garage and began to burn the ceiling beams. At this point, the younger of the complainant's daughters, who had heard the screams, went into the garage. She saw the complainant on fire, trying to put the flames out. The defendant was next to her 'waving his arms around'. The daughter pushed the defendant out of the way and took her mother upstairs. At this point skin was seen to be hanging off the complainant's face and neck. She was distressed and crying. Police and ambulance were called. The defendant put the downstairs fire out with a hose and went upstairs but was told to leave. When police were on the way they saw the defendant walking along the road. They quickly established he was the person of interest and arrested him. When being cautioned, he said to an officer, 'I fucked up real bad'."

1. The learned sentencing judge set out the complainant's injuries and their sequelae as follows:

"When ambulance officers arrived at the house they saw serious burns to the complainant's neck and armpits, superficial burns to her face, chest, flank, hands and legs, with burnt eyebrows and soot in her hair, mouth and teeth. Her clothing had been burnt to her legs and chest. When admitted to the hospital, it was noted that she had major burns, including full thickness, partial thickness and superficial burns to about 25% of her body. Medical opinion was that the injuries were life threatening because of possible respiratory damage, and because, with full thickness burns that require skin grafts, there is a risk of serious infection. The complainant was put in the intensive care unit in an induced coma in order for her to stabilise. She remained in that state for 12½ days. It was confirmed that there was no significant damage to her airways or lungs, but there were complications with an inability to self-regulate temperature and she was treated with fluid resuscitation to ensure proper hydration. The complainant underwent skin debridement and graft surgery on three separate occasions. She developed an infection after the third bout of surgery which required intravenous antibiotics. Other consequential difficulties had to be managed. The pain levels improved over time and she was weaned from strong analgesics. She continued to have other ongoing burns related issues and remained in hospital until 9 September 2015 ...

A lengthy victim impact statement was read to the Court. In it, Ms Jacobs describes her shocking flashbacks of the flames on her body, of the feeling and smell of burning, of her daughter trying to save her, and flesh falling from her with a peculiar image of her clothes melting into her flesh. She refers to the indescribable searing pain of the burns, with a memory revived by the sight of the scars, and she describes the extremely painful and long treatment process. She says she is devastated and furious that the defendant felt the right to bring such trauma into her family. She describes the trauma symptoms suffered by her young daughter. There has been a serious financial impact as the complainant has had much time off work. She now has to protect the wounds and her movement is grossly restricted. She is quickly exhausted. She misses working and needs the money in order to find a permanent home. She says the defendant has ruined her life in so many ways. I have viewed photographs of the complainant during her time in hospital. These graphically show the burn areas to her upper body and the graft sites on her legs. Plainly she is permanently disfigured and there is a very high risk of serious psychological harm. She suffers continuing pain and disability. There is a need for ongoing medical reviews and future surgery on the scarring in an attempt to alleviate the discomfort as it matures. All in all, she has been through a very considerable and painful ordeal, and the long-term consequences known, and likely, are very substantial."

1. The essential part of the learned sentencing judge's comments on passing sentence is as follows:

"The defendant is now 45. He has a number of convictions for traffic matters but has no recorded history of any serious offending. He had an unremarkable upbringing in what I am told is a close knit family. He has an 11-year old daughter by a previous relationship who the mother prevents him seeing, but not, I am told, because of violence issues. I have a letter from long-term family friends that indicates they regard this behaviour as out of character. He has a good work record, having been employed virtually continuously, when able, since leaving high school. This employment has predominantly been as a truck driver for major transport organisations. He held the same job for three years before the last incident. He was involved in a motor vehicle accident in 2007 which left him with a foot disability, along with depression and other psychological symptoms. It was, however, before that when he started to drink heavily. At the time of the last incident, he was drinking a very considerable amount of beer after work each day. As to his relationship with the complainant, I am told that this was volatile from the start, and that arguments would commence for very little reason, with the arguments initiated by either party. At times blows were exchanged. He found himself in conflict with the complainant's two children, and he took to spending a lot of time in the downstairs areas of both houses away from the living areas, where he would sit by himself drinking alcohol and smoking cigarettes. To some extent he felt alienated in his own home. I am told that he fully accepts the extent of his wrongdoing and does not seek to justify any of the incidents in any way. His alcohol consumption is offered as an explanation as to why he acted as he did. Excessive alcohol consumption is not, of course, an excuse and he does not seek to put it as such. I accept that there was no pre-planning in relation to either incident. It is said that he panicked when the fire occurred on the last incident, and was flailing his arms about in a quite ineffective attempt to do something about it. I am told that he was stunned and shocked to see the effect of the fire on the complainant and has been depressed about what he has done. I am told that he is very remorseful, and it is put that such remorse is shown by his very early plea of guilty to the charges which were initially laid. He resolved to stay in prison and has not made any application for bail. Since his time in prison he has taken on positions of trust and responsibility, and has determined to further his education while serving his sentence. He is conscious of the role alcohol played and has resolved that on his eventual release he will not drink again.

The four crimes make up three specific and separate incidents. The defendant is not to be punished for the additional incidents of violence alleged. They are relevant only to the extent that the three incidents are shown not to be isolated lapsed, but part of a course of conduct. Any level of unlawful violence is unacceptable. Domestic or family violence is particularly unacceptable because of its insidious nature, the difficulty in detection and the impact on the victim, broad family units, and the wider community. The issue is of much community concern. Excessive alcohol consumption and argumentativeness on the part of a victim provide no excuses whatsoever. These incidents are serious examples of domestic violence. They represent an escalation of violence over the period and the last incident in particular, of course, is appalling. It involves an actual intention to disfigure and to do grievous bodily harm, and it is a very serious example of this type of crime. An aggravating factor is that one of the complainant's children was present in the house with a friend. The youngest daughter had to deal with the immediate aftermath of her mother being set alight. The complainant has physical and emotional scarring, and the daughter remains deeply affected. Factors of general deterrence and denunciation of this sort of behaviour are very prominent in the sentencing exercise. On the other side, I take into account the defendant's early pleas, and the pleas of guilty to this indictment. Those please have made a trial unnecessary. I take into account the absence of any recorded history of violence." (Emphasis added.)

1. As can be seen from the above italicised portions of his Honour's comments on passing sentence, he clearly and expressly gave weight to the appellant's early plea of guilty, his prior good character and his prospects of rehabilitation. The only means of discerning whether his Honour gave those matters "reasonable" weight is by interrogating the sentence, absent such factors, for manifest excess.
2. Leaving to one side for a moment the three counts of assault, it is clear from the recent decision of this Court in Jay v Tasmania [2016] TASCCA 12 that a sentence of seven years' imprisonment for a serious example of the crime of committing an act intended to cause bodily harm is not to be regarded as excessive.
3. In Jay the victim of the crime was a 35 year old single woman. She and Jay had an online relationship for some months before he flew to Hobart and met her for the first time on 17 March 2015. He went to her unit with her, spent the day there, had consensual sexual intercourse with her, stayed the night, asked her to have sex with him again the following afternoon, and became angered by her refusal. He attacked her mercilessly. He kicked her, punched her, hit her repeatedly to the face, head and abdomen, and dragged her by the hair around her unit. She was crying for him to stop. Although badly injured, the victim tried to get to the front door, but he stopped her, dragged her back, got on top of her, placed his hand around her throat, and commenced to strangle her with one hand, holding his other hand over her mouth and nose. He told her he was going to kill her. She went limp. He got off her, and resumed kicking her, punching her, and pulling her by the hair. He kicked her to the mouth, head and rib area. He repeatedly told her that he wanted to kill her. The Crown accepted that he was only saying that, and did not truly intend to kill. His victim however did not know that, and expected to die.
4. The attack appears to have lasted for about 20 or 30 minutes. A forensic pathologist examined the victim's medical records and photographs of her injuries. He concluded that her injuries were caused by at least 25 separate applications of force, probably more.
5. The victim called an ambulance and was taken to hospital, very seriously injured. She had a laceration to her forehead, associated with a fracture of the skull, which exposed the frontal lobe of her brain. There was bruising to the brain at that point. She had particularly bad fractures of both eye sockets. She had fractures to many other facial bones, a fracture to the base of the skull, and two black eyes. Her right eyeball had dropped vertically within its socket, resulting in double vision. The bridge of her nose had caved in. Her right cheek, her gums, and the top of her right jaw area were numb. Her face was extremely swollen.
6. In Jay at [11]-[18] I made the following observations with which Tennent and Pearce JJ agreed:

"11 In Director of Public Prosecutions v Blackaby [2013] TASCCA 4, I said at [16]-[22], with Blow CJ and Wood J agreeing:

'There is no doubt that counsel for the appellant was correct in submitting that because specific intent is required for the commission of a crime contrary to s170 of the Criminal Code it is generally regarded as a more serious crime than that of grievous bodily harm under s 172 of the Code. In Director of Public Prosecutions v Blyth (supra), Blow J (as he then was), with whom Porter and Wood JJ agreed, said, unambiguously at [8]:

'8 A crime against s170 involving a specific intent to do grievous bodily harm is generally regarded as worse than one against s172, which does not necessarily involve such an intent: R v Allen [1999] TASSC 112 per Cox CJ at par [2]; Barron v Tasmania [2010] TASCCA 3 at par[21].'"

1. In Barron (above), Wood J, with whom Blow J (as he then was) and Porter J agreed, said at [21]-[22]:

"21 It is worthwhile to take some time to focus on the nature of the crime under consideration and some well settled sentencing principles that apply to the Code, s172. A specific intention to cause grievous bodily harm is not an element of this crime. The crime of causing grievous bodily harm requires a mental element involving either an intent to cause grievous bodily harm or subjective recklessness, ie foresight of the likelihood of that kind of harm (R v Bennett [1990] TASRp 6; [1990] Tas R 72). By contrast an essential element of a crime against s170 is the intention to cause some kind of serious bodily harm (R v Allen [1999] TASSC 112, per Cox CJ at par2).

22 There is an overlap in the application of ss170 and 172 so that they are both capable of applying to situations where grievous bodily harm is intended. For this reason, ordinarily when sentencing for the crime of causing grievous bodily harm contrary to s172, the sentencing judge may, without offending the principle in De Simoni [1981] HCA 31; (1981) 147 CLR 383, sentence on the basis that the offender had an intention to cause grievous bodily harm ...".

1. It has been repeatedly said by a number of judges in this State that a crime under s 170 "ordinarily" carries a penalty within the range of three to seven years.
2. In R v Allen [1999] TASSC 112, Wright J observed at [13]:

"13 Count 1 in the indictment alleged a breach of the Criminal Code, s170. The seriousness of such criminal conduct has been reviewed in a number of previous decisions of this Court (see Lovegrove v R [1961] TASStRp 13; [1961] Tas SR 106; Brown v R (supra); Bennett v R [1990] TASRp 6; [1990] Tas R 72; R v Marshall 70/1990; Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1). In Papazoglou v R 9/1963, the Court of Criminal Appeal refused to dissent from comments made by the Chief Justice when imposing sentence upon the appellant for an offence against the Code, s170 that:

'Ordinarily I would think that this crime would require a sentence of from three to seven years.'

When these comments are considered alongside the current practice of the Court in sentencing violent criminals, they do not appear to me to be out of place, even now, some 36 years later. Sentences for rape commonly fall within a similar range and there appears to me to be no sound basis for suggesting that a deliberate crime of violence which inflicts severe trauma with long term disability upon another human being is any less serious than a case of serious sexual assault."

1. These comments were re-affirmed relatively recently in Director of Public Prosecutions v Rogers [2011] TASCCA 17 at [16], where Evans J, with whom Porter and Wood JJ agreed, observed at [16]:

"16 The crime that is the subject of count 2 is committing an unlawful act intended to cause bodily harm in breach of the Code, s170. It is a serious crime. An element of it is a specific intent to disable or do grievous bodily harm. In DPP v Blyth [2010] TASCCA 10, Blow J, agreed with by Porter and Wood JJ, reviewed a number of authorities on the sentencing range that was appropriate for a contravention of s170. The effect of that decision and the authorities to which it refers is that subject to the unimpaired discretion of a sentencing judge to impose a sentence that is reasonable, ordinarily a contravention of s170 should attract a sentence of imprisonment of between three to seven years. The decision also refers to the importance, when sentencing for this crime, of the severity of the victim's injuries and the extent of any permanent disability or incapacity. ... " (Emphasis added.)

1. These authorities make it clear that, subject to the unimpaired discretion of a sentencing judge, to impose a sentence that is reasonable, a contravention of s 170 should ordinarily attract a sentence of imprisonment of between three to seven years. The real issue on this appeal is whether there is anything about the circumstances of the crime committed by the appellant, or in his personal circumstances, that would justify the imposition of a sentence above the range of three to seven years.
2. The range of three to seven years is by no means a hard and fast rule. Indeed, the contrary is the case. So much is clear from the judgment of Blow J in Director of Public Prosecutions v Blyth [2010] TASCCA 10 at [10]- [14], with Porter and Wood JJ agreeing:

"10 Counsel referred us to a number of cases where offenders were sentenced for contravening s170 or s172, including several appeals. All of those cases turned on their own facts. Most of them do not warrant discussion.

11 Papazoglou v R (unreported, 9/1963, Court of Criminal Appeal) concerned a sentence of two years' imprisonment imposed by Burbury CJ. The appellant was convicted under s170 on the basis that he hit a man on the head with a piece of wood intending to do grievous bodily harm. Burbury CJ provided the Court of Criminal Appeal with a report which concluded as follows:

'These circumstances induced me, with some hesitation, to impose only a two years sentence. Ordinarily I would think that this crime would require a sentence of from three to seven years.'

'In the case before us I would agree that if the Chief Justice had said, without qualification, that an offence against section 170 should be punished by a sentence of imprisonment between the limits of three and seven years, he would be unduly fettering his discretion and especially so as to the lower limit. But he qualifies this by prefacing his remark with the word, 'ordinarily' which leaves the discretion unimpaired within the bounds of what is reasonable. I do not think, therefore, that it has been shown that we should infer that he proceeded on any wrong basis in approaching the task of sentencing the applicant.'

'It is one's common practice and the only proper one, whether sitting as a trial judge imposing a sentence, or sitting in this Court reviewing a sentence, to commence by thinking of the approximate standards of penalty (set by judges and Court of Criminal Appeal) for the crime committed and then by taking into account the many other factors which may be taken into account, including any variations from the typical case and he circumstances leading up to and surrounding the commission of the particular offence being dealt with. This applies particularly to the serious crimes involving personal violence where the deterrent aspect is relevantly more important than it is in the consideration of sentences for the more usual crimes involving dishonesty.

In using the words complained of, the learned Chief Justice was doing no more than this. His standard is a wide one and for ordinary cases it is approximately appropriate.'

14 Cox J expressed a similar view." (Emphasis added.)

1. In any event as Underwood J (as he then was) observed in Inkson v The Queen [1996] TASSC 13, 6 Tas R 1 at [47], that having regard to the range of sentences imposed for a crime does not mean that every sentence must fall within that range.
2. As was noted in Blyth, the severity of the victim's injuries and the extent of any permanent disability or incapacity are important sentencing considerations, and I regard the victim's injuries and their sequelae in the present case as far worse than those of the victim in Jay. Moreover, in the present case the learned sentencing judge was correct to observe that domestic or family violence is particularly unacceptable because of its insidious nature, the difficulty in detection and the impact on the victim, broad family units, and the wider community. As his Honour commented, the issue is of much community concern, and excessive alcohol consumption and argumentativeness on the part of a victim provide no excuses whatsoever. This crime against s 170 of the Code is a very serious example of domestic violence, made all the more egregious by the fact that the immediate aftermath of the complainant being set alight was witnessed by her youngest daughter.
3. I do not accept the submissions of Mr Ayliffe SC, counsel for the appellant, that the "analysis of sentencing instances", set out in his written submissions, suggests that the sentence in this case is "unacceptably out of range". Seven years' imprisonment for a serious example of a crime against s 170 of the Code is not to be regarded as some provisional predetermined outer range for cases that are out of the ordinary. As Fraser JA said in R v Goodwin; Ex parte Attorney-General (Qld) [2014] QCA 345 at [5]:

"It is necessary to mention only Barbaro v The Queen; Zirilli v The Queen, in which the High Court concluded that past sentences do not mark the outer bounds of a sentencing judge's permissible discretion, and that a sentencing judge who is properly informed about the facts, relevant sentencing principles, and comparable sentences 'will have all the information which is necessary to decide what sentence should be passed...'. Comparable sentences assist in understanding how those factors should be treated, but they are not determinative of the outcome and they do not set a 'range' of permissible sentences. Whether or not a sentence is manifestly inadequate or manifestly excessive is not to be decided by reference to a predetermined range of available sentences but by reference to all of the factors relevant to sentence. Because sentencing involves a case-by-case synthesis in which past sentences may be used only as guidelines and are not determinative, there can be no underlying range of available sentences for a particular case which may be narrowed or broadened over time by subsequent sentencing decisions."

1. This was not an ordinary case, and the learned sentencing judge's wide discretion was emphasised, not constrained, by the observation of Burbury CJ in Papazoglou (above) that ordinarily the crime of committing an act intended to cause bodily harm would require a sentence of from three to seven years. In my view the learned sentencing judge would have been well entitled, before taking account of the totality of the sentence for the offence against s 170 of the Code, as well as the three separate counts of assault, to have regarded a sentence of up to 12 years or upwards as a starting point. His Honour would then have needed to consider a merciful reduction of such a sentence to take account of the principle of totality, and to consider the mitigating factors of the appellant's prior good character and his prospects of rehabilitation by addressing his alcohol problem. Finally, his Honour would have needed to have made a discount on the otherwise appropriate sentence to reflect the appellant's early plea of guilty.
2. As to that latter consideration, whilst I was in dissent in Director of Public Prosecutions v Harris [2013] TASCCA 5, I venture to repeat what I said in my reasons in that case at [41] about discounts for early pleas of guilty. My comments remain applicable whether the decision to plead guilty was a bowing to the inevitable, or, as the learned sentencing judge appears to have accepted here, was born of remorse. I observed as follows:

"41 I digress to observe that, even were it otherwise and the early plea of guilty was born of nothing other than acceptance of the inevitable, it would nonetheless have had the effect of saving the State the expense and inconvenience of a trial and of saving the victims of the crime, particularly the employee who required additional counselling as a result of the crime, from any concern about having to give evidence. The relevance of those matters in the context of an overwhelming case was discussed by the English Court of Appeal (Criminal Division), in December last year, in R v Caley [2012] EWCA Crim 282 at [23] - [24] (see also the earlier case of R v Paul Wilson [2012] EWCA Crim 386 at [29]). In the criminal jurisdictions of England and Wales legislation requires courts to take into account the fact of a plea of guilty. Consequent moderation of any sentence is expressed as a quantified discount, based on a sliding scale dictated by the Sentencing Guidelines Council guidelines. The maximum discount for an early plea of guilty of about a one-third reduction in sentence drops only to a suggested reduction in the order of one-fifth, however overwhelming the evidence may be. It must however be noted that the English reduction principle derives from the effective administration of justice and not purely as an aspect of mitigation (see R v Caley (supra) at [4] and [13]). This Court held in Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186 that a plea of guilty is a mitigating factor like any other and should not be assessed as a separate secondary process, or as justifying a specific quantified discount." (Emphasis added.)

1. As to prospects of rehabilitation and prior good character, it is trite that even in the case of a youthful offender who has had no previous convictions, which is not the present case, the nature of the crime may be such that it is the duty of the Court to give effect to the deterrent aspect of punishment as outweighing other factors. As the learned sentencing judge said, the four incidents were serious examples of domestic violence. They represented an escalation of violence over a period of time, and the last incident in particular involved an actual intention to disfigure and to do grievous bodily harm. That crime of committing an unlawful act intended to cause grievous bodily harm was an appalling and egregious example of an offence against s 170 of the Code, and the appellant's actions consigned the complainant to a lifetime of pain and suffering, physically and emotionally. It should be regarded as in the worst category of seriousness. Additionally however, it must be remembered that there were three other crimes of assault contrary to s 184 for which the appellant was sentenced.
2. Giving what I regard as "reasonable" weight to the appellant's early plea of guilty, and to his prior good character and prospects of rehabilitation, I do not regard a single sentence of 10 years' imprisonment as demonstrating any specific error or manifest excess. In my view neither the head sentence nor the non-parole period can be said to be plainly unreasonable or unjust. As was submitted by Ms Mason, counsel for the State, although the sentence may be regarded as a heavy one, it is not so harsh as to be manifestly excessive.

1. In my view the appellant's appeal was without merit and for that reason I joined in the order that it be dismissed.