Supreme Court of SA|2000-08-04|Before: Gray JJ

R v AGIUS No. SCCRM-00-79 [2000] SASC 259 (4 August 2000)

Criminal - leave to appeal - appeal by Crown against sentence - leave of Court of Criminal Appeal required - consideration of principles governing grant of leave - whether sentence imposed was manifestly inadequate - whether sentence ought to have been suspended - whether sentence imposed was so disproportionate to the seriousness of the offending as to shock the public conscience - whether, for sentencing purposes, the extent of actual harm sustained by a victim can be relied upon as a circumstance of aggravation - consideration of relevance of consequences of offending conduct which would not have been foreseen by any reasonable person at the time as an aggravating factor in the sentencing process - consideration of obligation imposed upon a sentencing judge by the Criminal Law (Sentencing Act) 1988 to consider the practical consequences of an offender's actions upon a victim.

Counsel: MR P J ROFE QC - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (STATE)

Judgment No. [2000] SASC 259

On Appeal from DISTRICT COURT (HIS HONOUR JUDGE SULAN)

(Court of Criminal Appeal: Olsson, Wicks and Gray JJ)

Court of Criminal Appeal: Olsson, Wicks & Gray JJ

1 OLSSON J This is an application by the Director of Public Prosecutions ("the Director_"_) for leave to appeal against a sentence imposed on the respondent by a District Court Judge. It is complained that the sentence imposed was manifestly inadequate and that it ought not to have been suspended. The Director asserts that the sentence imposed was so disproportionate to the seriousness of the offending as to shock the public conscience.

2 The respondent was originally committed for trial on three separate charges namely, robbery with violence, unlawfully and maliciously causing grievous bodily harm with intent to resist or prevent lawful apprehension, and assault with intent to resist or prevent lawful apprehension.

3 When the matter came before the District Court on 16 November 1999, the respondent pleaded guilty to the first and third counts. The Director thereupon entered a nolle prosequi on the second count.

4 The facts giving rise to the charges against the respondent are not in dispute.

5 At about 1.30 p.m. on 9 February 1999 an elderly woman went to an automatic teller machine at the Tea Tree Plaza shopping centre and there withdrew $400 cash from her bank account. She then went to a nearby telephone booth, with the money in her right hand and her purse and the receipt in her left hand. As she reached the telephone booth the money was suddenly ripped out of her hand. She tried to hang on to it and struggled with a person in dark clothing, wearing a back to front baseball hat. It is not disputed that that person was the respondent.

6 In the course of the struggle the victim was knocked to the ground and the money taken from her. She was later conveyed to the Modbury Hospital and there treated for mild soft tissue damage to the right elbow. The money was subsequently recovered and returned to the victim.

7 That incident founded the charge of robbery with violence.

8 A number of members of the public observed the robbery and gave chase to the respondent, as she sought to flee from the scene. One of those persons was a young man named Mr Lewis. He pursued the respondent out into the car parking area and there grappled with her. There seems to be no doubt that the respondent vigorously assaulted Mr Lewis in an attempt to escape from him. According to one eyewitness, the respondent appeared to be stronger than Mr Lewis. She was seen by that witness to kick him in the groin and punch him in the chest and stomach. A slightly different account was given by another witness. Eventually Mr Lewis fell backwards and landed on the ground on his back. Other bystanders restrained the respondent and held her in custody until the police arrived.

9 The evidence established that, following or during the assault upon him, Mr Lewis sustained a cardiac arrest. He was rendered first aid and evacuated to hospital. It ultimately proved possible to resuscitate him, but, as a result of his cardiac arrest and its consequent anoxia, he suffered a degree of brain damage, which has resulted in serious permanent disability. It has never been ascertained precisely why the cardiac arrest occurred, or whether Mr Lewis had some particular susceptibility. It was a most unusual and unexpected occurrence.

10 The incident involving Mr Lewis founded the second and third counts originally presented against the respondent.

11 When the proceedings came before the learned sentencing judge it was submitted, on behalf of the respondent, that the details relating to the injury sustained by Mr Lewis should not be disclosed, because those injuries were not relevant to the charges to which the respondent had pleaded guilty. They were, it was contended, essentially relevant to the charge which had not been proceeded with. Similarly, it was contended that, in so far as the victim impact statements spoke of the injuries sustained by Mr Lewis and the effect that they had had upon him, those portions of the statements ought not to be read.

12 Having heard detailed argument on the point, the learned sentencing judge published written reasons for the conclusions to which he came (R v Agius [2000] SADC 29). He ruled that the evidence of the injuries sustained and the consequential effect of those injuries upon Mr Lewis was admissible and relevant in the sentencing process. In essence, his reasoning was that that, having regard to the provisions of the Criminal Law (Sentencing) Act 1988, the general principle is that the harm that a crime causes the victim will be a relevant factor for consideration, even if those exact consequences were unforeseen. It was his view that, when dealing with culpability of the respondent, if the court concludes that the respondent could not have foreseen the consequences, then this would be reflected in the sentence that was finally imposed. In other words, it becomes a question of the weight to be given to the circumstances surrounding the relevant incident and its consequences. The fact that an offender did not foresee (and possibly could not reasonably have foreseen) those consequences would be an important factor to be taken into account.

13 The sentencing process accordingly went forward on that basis. Having received detailed submissions as to sentence, the learned sentencing judge elected to impose a single sentence in respect of both offences, pursuant to the provisions of s 18A of the Criminal Law (Sentencing) Act. After allowing an appropriate discount for the pleas of guilty, he imposed a sentence of two years and four months imprisonment, with a non parole period of one year and three months. He took, as his notional commencement point, a sentence of three years; and made the point that the non-parole period was set on the basis that the respondent was a young first offender. It was, therefore, less than would normally be the case in other circumstances.

14 He noted that the respondent had spent some three weeks in custody, and that it had been urged upon him by counsel for the respondent that, having regard to her antecedents and the mitigating factors personal to her which had been identified, the sentence imposed ought to be suspended. As to this, the learned sentencing judge said:-

"... You could not have foreseen the consequences. Although your offending was serious, I have had regard to your age and the fact that you have no previous court appearances. I accept you are truly sorry for what has happened. I am confident that you will not re-offend again in the future. I also accept that this has affected your life for ever. You are an intelligent young woman and you do have a future. You have also shown that you have ability, given the opportunity, to further your education and to make a success of your life. I hope that you will be in a position to recommence your tertiary studies in the future. In your case I consider it is appropriate to suspend the sentence. I intend to release you upon you entering into a bond in the sum of $100 to be of good behaviour for three years. During that time you are to be under the supervision of a probation officer and to accept his directions as to your place of residence. I also direct that during that time you undergo psychological or psychiatric counselling and treatment as directed by your probation officer."

15 It is the contention of the Director of Public Prosecutions that, even given those mitigating circumstances which had been identified on behalf of the respondent, such was the seriousness of the offending and its consequences, that both the length and the suspension of the sentence constituted an unwarranted departure from proper sentencing standards, which shocked the public conscience. He argues that the sentencing strategy adopted fails to maintain adequate standards of punishment for the serious offences of robbery with violence and assault with intent to resist lawful apprehension; adequately reflect the totality of the criminal conduct; adequately reflect the element of deterrence; and give adequate weight to the consequences of the respondent's conduct.

16 The proper conceptual approach to an application such as that now before the court is well settled.

17 The relevant principles were summarised by Doyle CJ in R v Mangelsdorf and Ors (1995 - 96) [1995] SASC 5328; 66 SASR 60 at 62. The learned Chief Justice there said:-

"The High Court has held that the jurisdiction to grant leave to the Director of Public Prosecutions to appeal against sentence "should be exercised only in the rare and exceptional case": Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299. The court went on to explain why that is the case, and when leave might be granted, in the following passage (at 299- 300):

'An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed [citations omitted]. That being so, a 'court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney General to appeal against sentence is justified': Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 at 234-235. In determining whether that question should be answered in the affirmative, a Court of Criminal Appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 310:

"an appeal by the Attorney General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons."

The reference to 'matters of principle' in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting 'error in principle' (at 310).' "

18 The learned sentencing judge had the benefit of a good deal of information concerning the respondent, in relation to the sentencing process. Moreover, he carefully canvassed detailed submissions of counsel as to the manner in which he ought, properly, to view the evidence as to the consequences of the assault on Mr Lewis.

19 At the time of the offences the respondent was a single woman of Aboriginal descent aged 20 years. Prior to the events of 9 February 1999 she had no previous convictions and, despite some problems related to her family background, had done quite well. She was educated at Port Augusta to year 11 level and moved to Adelaide with her mother while studying year 12. Unfortunately, her parents separated at about that time and this caused some interruption to her studies. She resumed her education in March 1996 through the TAFE College in Point Pearce, when she completed a Certificate in Land Management. Having embarked on a bridging course in 1997, she commenced studies towards a Bachelor of Environmental Management at the Roseworthy Campus at the University of Adelaide in 1998. She completed first year, but her course was interrupted by the events related to the present offences. Having returned to Point Pearce, she has resumed TAFE studies.

20 According to a psychological report before the learned sentencing judge, the respondent began resorting to drugs to help her cope, after her parents separated. Over time she became addicted to marijuana, commenced to abuse alcohol and also took "pills". It appears that, on 5 February 1999, the respondent came to Adelaide from Point Pearce to attempt to resolve a domestic crisis which had arisen between her mother and her twin sister. On the night prior to the offences she had stayed up late and consumed both marijuana and Tamazepan. The next morning she ingested more marijuana and what appears to have been something of a cocktail of various forms of medication.

21 She later went to a doctor near Tea Tree Plaza, obtained a further prescription for medication and procured it from the chemist. She professed little memory of the events constituting the offences.

22 A psychologist conducted a quite comprehensive testing and interview of the respondent. He concluded that she had a number of psychiatric problems, including some symptoms characteristic of a "Schizophrenic disorder". In effect, he felt that, at the time of the offences, she may well have been in a state of diminished responsibility. It was his assessment that her drug abuse was a form of compensation for a series of psychological symptoms which were, in some measure, the product of her abuse as a child. She was clearly in need of rehabilitative treatment from an appropriate mental health service.

"Your client does not report any previous history of criminal behaviour. Your client's general background also does not suggest she is oriented towards anti-social acts. Overall, your client reports a lifestyle of compliance and relative conformity within the tertiary education system. These factors all indicate the potential for a positive prognosis for future behaviour. On the negative side, your client has reported extreme clinical symptomatology which in part may be related to her earlier experiences of abuse, but may have been exacerbated both by the use of drugs and/or mental illness. From a rehabilitation perspective, it is strongly recommended that your client be referred to an appropriate Mental Health Service, where the full range of her problems can be assessed and treated. While your client's mental state remains dysfunctional, with significant suicide ideation, your client's prognosis for the future is uncertain."

24 Against that background the learned sentencing judge, whilst recognising the inherent seriousness of the offences and the disastrous impact upon the victim of the appellant's assault on him, was nevertheless constrained to give considerable regard to various mitigating circumstances related to the respondent. He particularly adverted to these features:-

. the young age of the respondent and her lack of prior convictions;

. her psychological problems, triggered, in significant measure, by early childhood abuse;

. her likely condition of diminished responsibility at the time of the offences, as indicated in the psychologist's report;

. her obvious penitence and the unlikelihood that she would re-offend; and

. the fact that she had already spent three weeks in custody.

[It should here be mentioned that we are informed that the respondent is now 5 months pregnant.]

25 He decided to impose the sentence earlier referred to in recognition of the overall seriousness of both offences. However, he was persuaded that it was proper to suspend that sentence, on her entry into a bond to be of good behaviour for three years and be subject to the supervision of a probation officer.

26 There seems little doubt that, in part, the present application for leave to appeal, to some extent, reflects a quite natural sense of outrage on the part of Mr Lewis and those supportive of him that, stemming from a perception that, despite having been a cause of a situation whereby he has become significantly disabled and dependent on others, with little job prospects and a greatly diminished and isolated lifestyle, the respondent, seemingly, has escaped with little in the way of punishment. That is an entirely understandable response.

27 However, from a legal point of view, it is one which does not, necessarily, reflect a proper appreciation of the statutory sentencing principles which the learned sentencing judge was bound to apply.

28 Although that may seem illogical to the victim (and, for that matter, the public generally), the catastrophic consequences of the offending behaviour in this case cannot, as a matter of law, constitute a determinant factor in relation to the imposition of sentence on the respondent in a situation such as that now before the court. She may only be sentenced for the actual offences of which she has been convicted; and her sentence must be proportionate to those offences, viewed in an objective sense.

29 There is an undeniable weight of authority to the effect that, where, as here, the commission of an offence produces an outcome which is totally unforeseen and was unforeseeable by a reasonable person, then, at common law, such outcome is not relevant for sentencing purposes, other than as general historical background and as evidencing the infliction of some degree of harm to the victim. It should otherwise not be accorded undue weight in the sentencing process. (See Feldman v Samuels (1956) SASR 55 at 57, The Queen v Mayne (1987) 137 LSJS 100 at 101, R v Boyd [1975] VicRp 16; (1975) VR 168 at 172. Cf R v McCormack & Ors [1981] VicRp 11; (1981) VR 104 at 108 and R v Teremoana (1989-90) 54 SASR 30 at 39 ("Teremoana").)

30 This is particularly so in cases in which an accused might have been convicted of a more serious offence reflecting the actual physical outcome; and was not. The conduct of the Crown in accepting a plea to a lesser offence and the concessions implicit in that acceptance must be given due significance (The Queen v De Simoni (1980-1981) 147 CLR 383 at 392, R v Overall (1993-1994) 71 A Crim R 170 at 179).

31 It is not to be forgotten that the respondent was originally charged with the offence of unlawfully and maliciously causing grievous bodily harm with intent to resist or prevent lawful apprehension. That charge was, quite realistically, not proceeded with by the Crown, because there would have been obvious difficulty in proving the requisite malice or intent. A point made in the above authorities is, in effect, that an offender cannot, by an indirect means, be dealt with as if he or she had been convicted of a more serious offence. Moreover, the concession implicit in the acceptance of the plea to the lesser offence must, in the circumstances, have been taken to be that the infliction of grievous bodily harm was not an issue by way of aggravation (cf R v Overall (supra)).

32 A perusal of the transcript of argument before the learned sentencing judge in relation to his preliminary ruling renders it clear that counsel for the Crown was somewhat coy as to precisely what factual concessions were being made by it in relation to the sentencing process (see AB 181-186 in particular). It was certainly conceded that the respondent did not foresee the physical consequences of her actions. However, when the learned sentencing judge put it to counsel that a reasonable person in her position would also not have foreseen them, counsel hedged somewhat and said that she was simply not in a position to give a positive response.

33 When pressed, counsel for the Crown ultimately confined her stance in this way (AB 185):-

"MS McDONALD: I can tell your Honour what I will be putting to the court in terms of features of aggravation, or the circumstances of the offence that should be taken into account that would warrant a custodial sentence. One is obviously the seriousness, firstly, of the first offence; that is, the robbery on the elderly lady. Secondly, the seriousness of the second offence, in the circumstances in which it occurred. It is a serious assault, with an intent to resist lawful apprehension, which makes it all the more serious. The Crown would submit that principles of general deterrence, in the circumstances, would require a custodial sentence being imposed for that sort of opportunistic, violent crime."

34 That statement had been preceded by the following exchanges between the learned sentencing judge and Ms McDonald at p AB 182:-

"HIS HONOUR: If we get to the point, and assuming your argument is right, if we get to that point, the highest position the Crown could take in this case is that I should sentence Ms Agius on the basis that she did an act on the spur of the moment, that she, and no reasonable person in her position could have foreseen the consequences of that act, and that it had the most horrendous consequences but which are quite exceptional. MS McDONALD: Yes, and I wouldn't argue contrary on that. HIS HONOUR: In those circumstances, culpability and criminality in respect of the consequences of this act must be at the very lowest end of the scale. MS McDONALD: I accept that too. HIS HONOUR: Assuming for a moment that the consequence of this act that one would normally expect, perhaps some injury to someone who had fallen over or been pushed over, this prisoner, placed in that position, if the consequences had been such, would the Crown be saying an immediate custodial sentence is appropriate? MS McDONALD: Bearing in mind the robbery that occurred prior to that, it may well be."

35 It will, at once, be observed that, following a series of interchanges between counsel and the learned sentencing judge, the Crown implicitly eschewed any specific reliance on the grievous bodily harm occasioned to the victim, as a positive circumstance of aggravation. It is patent that the learned sentencing judge subsequently proceeded upon that footing and on the premise that a reasonable person in the respondent's position would not have foreseen the nature and extent of the unfortunate consequences which flowed from the assault on Mr Lewis. He said so in his ruling on 1 March 2000 at p 10. That being so, he was bound to proceed on the basis of the authorities which I have cited. In my opinion, the effect of them is that the extent of the actual harm sustained by the victim cannot be relied upon as a circumstance of aggravation, for sentencing purposes.

36 During the course of submissions in this matter a good deal of discussion focused on the issue, which Cox J specifically left open in Teremoana at 38-39, as to the extent to which evidence of consequences of offending conduct which would not have been foreseen by any reasonable person at the time is relevant.

37 For myself, I do not find the authorities bearing on causation, which are applicable to considerations of criminal liability, decisive for present purposes. (See, for example, Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 448-451.)

38 As Cox J pointed out in Teremoana at 39, once criminal liability is established, then due regard must be paid to the specific provisions of s 10(d) and s 10(e) of the Criminal Law (Sentencing) Act. These require the sentencing judge to "have regard to" both "the personal circumstances of any victim of the offence" and also "any injury, loss or damage resulting from the offence."

39 These provisions must be read together with those of ss 7 and 7A of the same statute. The former imposes on the prosecutor a duty to furnish the court particulars of injury, loss or damage resulting from the offence, for the purpose of determining sentence. The latter empowers a person who has suffered injury, loss or damage resulting from an indictable offence to furnish to the trial court a victim impact statement "about the impact of that injury, loss or damage on the person and his or her family".

40 As I understand the reasoning in Staats v R [1998] NTCCA 13; (1998) 123 NTR 16 ("Staats"), the Full Court was of opinion that the effect of legislation which was somewhat similar to that of the Criminal Law (Sentencing) Act was that unforeseen or unforeseeable consequences of an offender's acts must be given due consideration in the sentencing process, although it remains a question of what weight ought, properly, to be given to them.

41 It must be acknowledged that the headnote to the report of the decision of the Full Court in the case of Inkson [1996] TASSC 13; (1996) 88 A Crim R 334 suggests that the judgments in that case establish the general proposition that it is inappropriate to take into account, in the sentencing process, consequences of an offender's acts which were not foreseen or reasonably foreseeable.

42 However, I am unpersuaded that this is the effect of those judgments. At page 343 of the lastmentioned report Underwood J appears to have accepted the proposition that the outcome of the offender's acts was a relevant consideration, regardless of whether or not it was foreseen or reasonably foreseeable. Zeeman J came to the opposite conclusion, whilst Crawford J expressly left the issue open (see p 351).

43 Moreover, on a reading of the report in Inkson it does not appear that the Full Court was considering the issue in the context of legislation of the nature of the Criminal Law (Sentencing) Act. The learned judges seem to have merely been focusing on common law principles, unencumbered by statutory provisions. The views expressed must therefore be treated with some caution for present purposes.

44 On balance it seems to me that the reasoning in Staats correctly reflects the situation in the South Australian legislative environment. Section 10(d) and s 10(e) (particularly when read in conjunction with ss 7 and 7A of the statute) clearly require the sentencing judge to consider the practical consequences of an offender's actions upon a victim.

45 Of course, as a matter of logic and common sense, the weight properly to be attributed to totally unexpected and unforeseeable physical sequelae of a criminal act will be a world apart from that attaching to results which must clearly have been foreseeable, or at least inherently possible from the nature of the act.

46 In the instant case the learned sentencing judge attributed very little weight to the actual outcome. I consider that he cannot be criticized for so doing. He was required to focus on the inherent, objective criminality of the offending conduct, in relation to which no-one would ever have foreshadowed the tragic result which actually ensued. His approach accords with proper sentencing principles and the reluctance of the common law to permit consideration of facts which, in reality, are pertinent to a more serious offence of which the respondent has not been convicted. As I have earlier pointed out, in the instant case, the learned sentencing judge was, in any event, bound to proceed on the basis upon which the respondent's plea was tendered and accepted by the Prosecution. The tragic consequences were not relied upon as a circumstance of aggravation and the prosecution cannot now be heard to resile from that position.

47 In the present case the respondent was to be sentenced, as a very young first offender, inter alia, for what was, essentially, a common assault, albeit one of some vigour. The assault was not a gratuitous attack, but occurred in the context of an attempt to escape a citizen's arrest. On the evidence it would have been quite wrong, in principle, for the learned sentencing judge to have based his sentencing approach on the disastrous, but unforeseeable, outcome to the victim which actually occurred.

48 Whilst it is natural for the victim and some members of the community to take the stance that a very severe custodial sentence (actually to be served) ought to have been imposed by way of punishment and retribution, having regard to the permanent, serious disabilities sustained as a consequence of the assault, such a course would simply not be in accordance with the law. To be fair, the Director did not really seek to espouse such an approach.

49 In the present context the Crown seeks to ventilate two issues. First, it is said that, on any view, a notional commencement point of three years imprisonment for the two separate offences of robbery with violence and assault with intent to resist or prevent lawful apprehension is so low as to fall well outside of any reasonable sentencing standards - regardless of any outcome so far as Mr Lewis was concerned. Second, it is submitted that, such was the inherent seriousness of the totality of the offences, that, by any proper sentencing standards, a suspension of the sentence imposed was patently out of the question.

50 In cases such as this various minds may reasonably differ as to what precise sentencing strategy was indicated, on a proper balancing of the sentencing factors referred to in s 10 of the Criminal Law (Sentencing) Act. However, it seems to me that one conclusion is clear.

51 Whilst individual circumstances vary significantly from case to case, it is true that armed robbery and robbery with violence are treated by the legislature as offences which can, prima facie, be of equal seriousness. Both an armed robbery and a serious robbery with violence would normally attract a custodial sentence of at least the order of six years - more if a dangerous weapon was involved. Here, there was also the need to factor in an additional sentencing element for the second offence.

52 The important aspect of the present case is that it must firmly be borne in mind that both robbery with violence and assault with intent to resist or prevent lawful detention potentially span a wide gradation of circumstances and degrees of gravity. That is why there is no established tariff in respect of either of them. For example, robbery with violence spans situations which amount to little more than bag snatching, at one extreme, to circumstances involving great brutality and which are inherently more serious than some types of what is, technically, armed robbery at the other. So also, assaults vary in degree enormously. These can, at the lower end, amount to mere technical assaults, involving little application of force, to the infliction of quite strong violence, at the other end of the spectrum.

53 In the instant case the Prosecutor quite properly conceded to the learned sentencing judge that the robbery was, realistically, to be regarded at the very lowest end of the scale.

55 When the circumstances of the robbery are seen for what they were, it is unrealistic to equate the offence with a typical armed robbery in which, by definition, some form of offensive weapon is involved. Viewed realistically, what occurred was, in reality, very much akin to a bag snatching offence.

56 The evidence reveals that the money was actually snatched from the victim's hand. When she sought to prevent that happening, there was a contact between the respondent and herself, which resulted in the victim falling to the ground. Whilst it was a clear case of robbery, the "violence" element was not great and was, in a sense, technical. It was the product of the respondent attempting to flee, rather than an offensive assault on the victim. The subsequent offence was also an incident of the attempt to escape.

57 What occurred was, in realistic terms, a single, continuing incident. So far as the assault on Mr Lewis was concerned, it is to be borne in mind that the respondent was a young girl of small stature. The evidence indicates that, apart from the cardiac arrest, he exhibited no other injury as a direct result of any physical assault on him by the respondent, as she struggled to escape.

58 That being so, the head sentence imposed, whilst merciful, can scarcely be said to be grossly outside any reasonable sentencing outcome. Equally, the decision to suspend, made by a very experienced Judge on a carefully reasoned basis, was one which could not be said to be idiosyncratic or outside a logical and reasonable exercise of judicial discretion. Furthermore, as the Director was ultimately constrained to concede, it would be unthinkable, after this time, on a double jeopardy basis, to potentially recall the respondent into custody.

59 Particularly given the significant mitigating factors personal to the respondent, it simply cannot be said, at the end of the day, that this was a rare and exceptional case of the type that demands the intervention of the Court of Criminal Appeal. No breach of sentencing principle can be demonstrated and, in absolute terms, manifest, gross inadequacy of sentence, sufficient to warrant interference on a prosecution appeal, is not apparent, when the relevant factual circumstances are carefully analysed and given due weight. Whilst the Court has very great sympathy for Mr Lewis, the unforeseeable consequence of the offence upon him cannot properly be the determinant sentencing factor, as the learned sentencing judge plainly concluded. It must also be said that the peculiar facts of this case are so out of the ordinary, that the sentence in question could not be said to set an undesirable precedent or send an inappropriate message to the community.

61 The Director has been unable to satisfy the test postulated by the High Court in Everett v The Queen (supra).

61 WICKS J I agree that leave to appeal should be refused for the reasons given by Gray J.

63 GRAY J Introduction On 9 February 1999, in the early afternoon, Mrs Pfeiffer, then aged 71, was at the Tea Tree Plaza Shopping Centre at Modbury. She withdrew $400 from her account at an automatic teller machine and walked to a nearby phone booth. She held the money in one hand. As she reached the phone booth, the defendant tore the money from her. Mrs Pfeiffer felt a hard shove to her left shoulder and fell to the ground. In all probability this occurred as the defendant fled the scene. The violence was not directed towards terrifying Mrs Pfeiffer.

64 The defendant ran from the shopping centre to a nearby carpark and was pursued by members of the public. Mr Lewis, aged 18 years, was the first to apprehend the defendant and a violent struggle ensued. Punches were thrown. At, or shortly after the struggle, Mr Lewis fell to the ground and suffered a cardiac arrest. He was unconscious and had no detectable pulse. The defendant was restrained until the police arrived.

65 The defendant pleaded guilty to robbery with violence and assault with intent to resist or prevent lawful apprehension. These offences carried maximum penalties of life and five years imprisonment respectively. The learned sentencing Judge treated the offending as part of the one course of conduct. It was accepted that he was correct to do so.

66 The learned sentencing Judge imposed one sentence of imprisonment for a period of two years and four months. He directed a non-parole period of one year and three months. He suspended the sentence and released the defendant upon entry into a bond in the sum of $100 to be of good behaviour for three years. He further directed that the defendant be under the supervision of a probation officer and accept directions as to a place of residence. During the term of bond, the defendant was to undergo psychological or psychiatric counselling and treatment, as directed by her probation officer.

67 The defendant had been charged with the further offence of causing grievous bodily harm with intent to resist or prevent lawful apprehension. That charge arose from the incident between Mr Lewis and the defendant. A stipendiary magistrate found no case to answer. To make out this offence, the DPP had to prove that the defendant inflicted grievous bodily harm on Mr Lewis, that the act was malicious and unlawful and that the defendant did so with the intent of preventing or resisting lawful apprehension. The DPP accepted that neither malice nor intent could be proven. The DPP conceded that the learned sentencing Judge correctly recognised that the defendant should not be sentenced on a basis inconsistent with the dismissal of this charge.

68 The Director of Public Prosecutions (the DPP) seeks leave to appeal against the sentence imposed. The grounds for leave are as follows:-

"1. The sentence imposed is manifestly inadequate. In particular:-

(a) it fails to maintain adequate standards of punishment for the offences of robbery with violence and assault with intent to resist lawful apprehension;

(b) it fails to adequately reflect the totality of the criminal conduct;

(d) it fails to give adequate weight to the consequences of the respondent's conduct.

2. The learned sentencing judge erred in suspending the sentence of imprisonment.

3. The learned sentencing judge erred in imposing a sentence that was so disproportionate to the seriousness of the offending as to shock the public conscience."

69 In considering the application of the DPP for leave to appeal against sentence, the approach of this Court is governed by the decision of the High Court in R v Everett[1]. The Court stressed the principle against double jeopardy and the potential unfairness to a defendant in permitting the Crown to review a matter of sentence. The Court held that it was only in the rare and exceptional case that the Crown should be granted leave to appeal against sentence. The principles to be applied were stated by Brennan, Deane, Dawson and Gaudron JJ at (299-300):-

"Such a jurisdiction has become commonplace throughout this country and the common law world. Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognise that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a 'court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified.' In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick C.J. in Griffiths v. The Queen (1977) 137 CLR 293:

'an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper functions in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.'

The reference to 'matter of principle' in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick C.J. saw as constituting 'error in point of principle'."

70 In R v Wilton[2] King CJ (with whom Mitchell and Williams JJ agreed) said:-

"It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when contention was not put in the Court below. The consequences of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what the Federal Court meant in R v Tait and Bartley (14) (1979) 24 ALR 473 by 'double jeopardy'. In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing judge, only in exceptional circumstances which appear to justify that course."

71 This passage was expressly approved by Brennan, Deane, Dawson and Gaudron JJ in Everett.[3]

72 In submissions the DPP made it clear that the consequences referred to in ground 1(d) include the injuries sustained by Mr Lewis. It is convenient to discuss this aspect of the matter immediately.

73 Mr Lewis was admitted to the Intensive Care Unit of the Royal Adelaide Hospital where he remained for seven days, unconscious throughout. On regaining consciousness, a diagnosis was made of severe neurological damage following his cardiac arrest. He suffered no other injury.

"It is possible that the cardiac arrest was spontaneous, however, given the surrounding circumstances, the observations of various witnesses and the opinion of Dr Guha, I do not consider that to be a reasonable possibility. ... I am satisfied beyond reasonable doubt that the assault was the substantial cause of Mr Lewis' cardiac arrest and subsequent loss of consciousness and the damage that flowed therefrom."

75 This conclusion has not been challenged by the defendant.

76 Mr Lewis was later transferred from the Royal Adelaide Hospital to the Julia Farr Centre and ultimately returned to his parents' home. He has made considerable, but incomplete recovery from his injuries. He suffers permanent neurological damage.

77 Prior to the assault, Mr Lewis was an active young man, in full employment, living with his partner away from home. He is now disabled and dependant and has returned to his parents' home. He has little prospect of further improvement. His lifestyle has changed dramatically.

78 The DPP conceded that the assault on Mr Lewis was a spur of the moment act. It was further conceded that the defendant did not intend or foresee, and that no reasonable person in her position would have foreseen, the consequences. This is evident from the following interchange:-

"HIS HONOUR: If we get to the point, and assuming your argument is right, if we get to that point, the highest position the Crown could take in this case is that I should sentence Ms Agius on the basis that she did an act on the spur of the moment, that she, and no reasonable person in her position could have foreseen the consequences of that act, and that it had the most horrendous consequences but which are quite exceptional.

MS McDONALD: Yes, I wouldn't argue contrary on that.

HIS HONOUR: In those circumstances, culpability and criminality in respect of the consequences of this act must be at the very lowest end of the scale.

79 The DPP further submitted to the learned sentencing Judge that regard should be had to the injuries sustained by Mr Lewis as a result of the assault, even though they were unintended, unforeseen and not reasonably foreseeable.

80 The DPP disavowed that the injury sustained was a matter of aggravation and submitted:-

"This here is not a feature of aggravation that the Crown is seeking to prove. What the prosecution says is that, under s.10 of the Sentencing Act, there are a number of factors which your Honour must take into account. Some of them may be aggravating, some of them may be mitigating, they are just factors that are taken into account. It is not like a disputed facts situation where it might be the presence of a knife, or something like that, that is in issue.

What the prosecution here says is that your Honour is obliged, under the Sentencing Act regime, to take into account the effect of this offence on him."

81 The learned sentencing Judge had regard to the injury to Mr Lewis. In doing so His Honour considered a number of authorities including: R v De Simoni[4]; R v Austin[5]; R v Teremoana[6] and R v Overall[7].In Teremoana Cox J said at page 39:

"The fact that an offence of a certain type is sometimes accompanied by a particular serious result - death, say, or injury - will normally be taken into account in determining the proper sentence, at least as a measure of the inherent gravity of the offence, whether or not the risk was actually foreseen by the defendant himself. It may be otherwise whether the result was not reasonably foreseeable."[8]

82 The learned sentencing Judge observed that the very question left open by Cox J arose for consideration and said:-

"Having considered the decisions referred to by Cox J in Teremoana it is my view that the general principle that the harm that a crime causes the victim will usually be a relevant factor, applies to the present case, even if those exact consequences were unforeseen. ... In my view, within the limitations discussed earlier, the consequences of a person's conduct is relevant when penalty is to be assessed. The weight to be given to those circumstances will vary according to the circumstances of the case. If a defendant did not foresee them then that will be an important factor. I rule that evidence of the injuries sustained and the consequential effect those injuries have had upon Mr Lewis is admissible and relevant."

83 If the consequences were not foreseen, and were not reasonably forseeable, they were fortuitous. The remarks of Napier CJ in Feldman v Samuels[9] are apposite:-

"If I could regard it as a fortuitous event - something unintended and unforseeable - then I should think that it ought to be ignored ... ."

84 The DPP challenges the correctness of this proposition.

85 Section 10 of the Criminal Law (Sentencing) Act 1988 (SA) provides:

"(1) A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:

(e) any injury, loss or damage resulting from the offence;

86 It is well established that the Sentencing Act is not a code - R v Adami[10]; Inge v R[11]. Part IB (including section 16A) of the Crimes Act 1914 (Cth) has close parallels to the Sentencing Act. That part has been held not to be a code by the Western Australian Court of Criminal Appeal in R v Sinclair[12], by the New South Wales Court of Criminal Appeal in R v El Karhani[13] and by the Federal Court of Appeal in Tapper v R[14]. The wording of section 10 of the Sentencing Act accords with the common law. In R v Adami, Bollen J (with whom King CJ agreed) said at (233):

"In effect, Mr Borick submitted that s 10(n) produced a change in the law. In my opinion, it does not. For one thing s 10 directs the court that it 'should have regard to such of the following matters as are relevant'. 'Relevant' must mean 'relevant to the case at Bar'. The probable effect of a sentence on dependants is still relevant only in exceptional cases. The section does not change the law on this point. Moreover, s 10 is no more than a section which declares what has always been the law. The Supreme Court of South Australia has always taken into account and had 'regard to' the matters mentioned in s 10 insofar as they or any of them was relevant in a particular case. I cannot think that any part of s 10 changes the law."

87 Parliament has not spelled out all of the factors which should be considered by a judge when determining whether a resulting injury is relevant. The common law fills the gap. By implication, it does this from the subject matter, scope and purpose of the legislation.[15]

88 If an injury results from an offence but was neither intended, foreseen, nor reasonably foreseeable can it be said that it is a relevant matter?

89 Reference has been made to Feldman v Samuels. Napier CJ was of the view that when sentencing, regard should not be had to a purely fortuitous consequence; in that case, death.

90 In R v Boyd[16] the Victorian Full Court considered the issue saying:-

"... If the consequences of the prisoner's acts are not such as would reasonably have been foreseen by him, then such consequences ought not to be used against him; but if they ought to have been foreseen by him they are relevant circumstances; the consequences, however, should not be allowed to take over from all other considerations."

91 A detailed analysis of this issue is to be found in R v Inkson[17]. The offender had struck the victim a severe blow to his face, he fell backwards and fractured his skull on the roadway. Had nothing further occurred, the injuries sustained may have led to death. However, the offender then moved the victim from the roadway to the footpath. Another person came upon the scene and took the victim's wallet and moved him behind the garden wall. Later a third person came upon the scene, removed the victim's coat, and kicked him about the head, inflicting fatal injuries. Zeeman J said at (358):

"The question is to be posed in the following terms: should it have been reasonably foreseen by the applicant at the time that he inflicted injury on the deceased and placed him in a position where he was helpless to defend himself against any further assault, that some other person would then inflict further physical violence on the deceased which might result in death? If the answer to that is in the negative then it cannot be said that the consequence of death should have been reasonably foreseen by the applicant. In my view that question cannot but be answered in the negative. It follows that the learned trial judge erred in taking into the account the death of the deceased as a circumstance relevant to the sentence to be imposed on the applicant."

"Whether the test of a consequence which is foreseen or which is reasonably foreseeable is the correct one may, I think, be safely left for determination in another case on another day."

92 However, His Honour then proceeded to reason in a manner consistent with the view that it would be unjust to punish for a consequence that was not reasonably foreseeable:

"In this case, although death was a foreseeable consequence of the applicant's conduct and although death did in fact result from his conduct in the sense that, but for it death would not have resulted, it cannot be said that Mr Stephens' death was caused in a manner which was reasonably foreseeable, not that it was caused by the applicant's conduct in a legal sense, that is to say, in the sense of a real or effective cause, a causa causans. The applicant is to be punished for assaulting Mr Stephens in circumstances where he had foresight that grievous bodily harm was a likely result and it in fact resulted. Further, the serious head injuries suffered by Mr Stephens as a result of being punched by the applicant and his head striking the road, were life threatening and might in fact have led to death if the intervening acts of Thomas and Sutton had not occurred. The applicant deserved to be sentenced for causing injuries of that nature, injuries which gave rise to the possibility of death as a consequence. The injuries and that possibility were reasonably foreseeable and were directly caused, in a legal sense, by his actions. But to increase his term of imprisonment because death in fact resulted, at the hands of someone else, in the circumstances of this case, offends all senses of fairness and justice. Death caused in that way was not foreseeable nor in any legal sense may it be said to have been caused by or to be a consequence of the applicant's crime. The chain of causation was broken by the intervening actions of others, particularly those of Sutton who the law holds criminally responsible for the death and who was punished for it. The act of Sutton which caused death must be regarded in the sense of a novus actus interveniens (or nova causa interveniens)."

Underwood J reviewed the authorities and then concluded at (343):

"This overlong excursion into this issue leads me to conclude that in Tasmania at least, it has long been held that the consequences of a criminal act are relevant in the sentencing process regardless of whether they were foreseen or ought to have been foreseen. They are relevant to the issue of deterrence and denunciation. However, what weight such consequences have in the sentencing process will depend on the facts of each case. Obviously, an unforeseen consequence will have less weight than a foreseen consequence and, a consequence that was neither foreseen nor ought to have been foreseen, will have even less weight."

93 These authorities concerned common law sentencing principles.

94 The issue was addressed in a statutory context by the Northern Territory Court of Criminal Appeal in Staats v R[18]. The Court considered the particular circumstances to be reasonably foreseeable, however Angel J also addressed the question of whether a sentencing court should have regard to consequences that were not reasonably foreseeable. Martin CJ noted that the Crown had conceded that no regard should be had to consequences not reasonably foreseeable. Thomas J did not address the issue.

95 As the matter had not been argued, Angel J did not hold a concluded view but His Honour inclined towards the views of Underwood J (referred to above). Both Angel and Underwood JJ considered the commentary of Goodhart (1964) 80 Law Q Rev 18 to be supportive of that view. A review of Goodhart discloses that the issue of consequences not reasonably foreseeable was not specifically addressed. The cases discussed were consistent with unintended but reasonably foreseeable consequences.

96 In Royall v R[19] the High Court considered causation in relation to the actus reus of murder. Brennan J said at (398-399):

"... an accused cannot be held criminally responsible for a death that has been caused in fact by his conduct if the final fatal step taken by the victim was neither foreseen nor reasonably foreseeable. Foresight or reasonable foreseeability marks the limit of the consequences of conduct for which an accused may be held criminally responsible."

97 McHugh J would appear to share this view as he concluded that a person should not be deemed morally culpable for harm which was neither intended nor reasonably forseeable. His Honour said at (451):

"... even though the victim's act is not a novus actus interveniens, to hold that the accused was criminally responsible for harm which was not intended and which no reasonable person could have forseen was likely to result from his or her conduct would be an onerous imposition of the criminal law."

"On occasions foreseeability may play some part in a jury's inquiry into the cause of death but, in directing a jury, it is, for practical purposes, desirable to keep causation and intent separate as possible and to avoid the introduction of questions of foreseeability in relation to causation. It is, we think, going too far to say, as the Full Court of the Supreme Court of South Australia did in Reg v Hallett that '[f]oresight by the accused or the possibility or probability of death or grievous bodily harm from his act, though very relevant to the question of malice aforethought, has nothing to do with the question of causation' ".

98 Ultimately, their Honours expressed the view (as did Mason CJ) that the issue should be put to the jury as to whether the event was a "natural consequence". This expression has been considered by others to be imprecise and may carry with it an element of reasonable foreseeability. Gaudron and Toohey JJ were of the view that juries would be confused by the introduction of foreseeability into a direction on causation and they preferred the concept of proportionality.

99 The issue of causation is complex. Judicial opinion has often been divided. The issue may arise when the Court considers both guilt and penalty. Should there be a different approach to causation or a different test imposed?

100 It is said that to punish for something not reasonably foreseeable would be unjust as it would offend the concepts of justice and fairness. Unless a statute were to expressly provide, offenders should not be criminally responsible for true fortuities.

101 Alternatively, it has been contended that those who engage in crime must accept the consequences, foreseeable or unforeseeable. The principles of general deterrence therefore justify punishment for unforeseeable consequences. These two views are diametrically opposed.

102 In my opinion, the approach to causation should where possible, be consistent, whether dealing with an issue going to guilt or penalty. The common issue is one of causal responsibility.

103 The provisions of the Sentencing Act reinforce the fundamental principle that a just punishment is to be imposed. All sentencing rules, requirements and guidelines are subservient to this fundamental principle. In my view, it is unjust to punish for unintended, unforeseen and not reasonably forseeable consequences. Sentencing principles of general deterrence do not require such a result. To be relevant to general deterrence, the assumption would have to be made that conduct will be moderated by the risk of the not reasonably foreseeable consequence. To so reason involves an internal contradiction. No basis has been demonstrated for concluding that behaviour would be moderated by having regard to that which cannot be reasonably foreseen. I respectfully adopt the remarks of Napier CJ in Feldman v Samuels[20]; the Victorian Full Court in Boyd[21] and the remarks of Zeeman J in Inkson[22]. I draw support from the reasoning of Brennan and McHugh JJ in Royall[23].

104 This is a most unusual and unfortunate case. Nevertheless the Court should not treat an unintended, unforeseen and not reasonably foreseeable consequence as relevant to the issue of sentence. Causal responsibility has not been established.

105 The crime of robbery with violence is undoubtedly a serious crime.

106 The learned sentencing Judge had regard to the victim impact statements and noted that lives had been severely and tragically affected. He concluded:-

"Your conduct has affected the lives of many, and permanently affected them. A young man has now lost his quality of life permanently. He will rely on his family for assistance, and he will always require counselling and assistance. The lives of his family have been deeply affected. He has lost a relationship with a woman with whom he lived, and her life has been affected significantly.

All of this occurred because of an act on your part of stealing from an older person who could not defend herself against you, and then trying to escape from those who took chase. The results of your actions have had tragic and permanent consequences."

107 I observed earlier, that in my opinion, the learned sentencing Judge should not have had any regard to the injuries sustained by Mr Lewis. But, even if regard was properly had to those injuries, I do not consider that error has occurred.

108 Before the learned Sentencing Judge, the DPP submitted that the consequences to Mr Lewis were not matters of aggravation but were matters that the Court was obliged to have regard to by reason of provisions of section 10 of the Sentencing Act. However, the learned sentencing Judge rejected this submission and concluded:

"It is my view that the consequences of your conduct are matters which are properly to be taken into account and are matters of aggravation. On the other hand, it is appropriate for me to take into account the fact that no reasonable person could have foreseen that your struggle with Lewis would result in the horrendous injuries that he suffered. A young man such as Lewis would not normally have suffered from a heart attack, and the severity of his injuries is quite exceptional and unforeseen. I accept your actions were not planned or premeditated."

109 At the same time, the DPP also specifically agreed that as the consequences to Mr Lewis were not foreseen and not reasonably foreseeable the learned sentencing Judge should approach that circumstance on the basis that:

"... culpability and criminality in respect of the consequences of this act must be at the very lowest end of the scale."

110 It is implicit that the learned sentencing Judge gave the consequences some although little weight.

111 Before this Court the DPP changed his position and contended that the injury to Mr Lewis was a matter of aggravation.

112 It was submitted by the DPP, that inadequate weight was given by the learned sentencing judge to the injury to Mr Lewis. In my view, this submission is not fairly open to the DPP on appeal. The learned sentencing Judge did what the DPP said he should have done. He treated this issue as involving culpability and criminality at the lowest end of the scale.

113 The DPP submitted to this Court that the head sentence was so low that an error must have occurred. It was said that the sentence was so disproportionate to the offences that the case was within the rare and exceptional category so as to warrant intervention on appeal.

114 The DPP stressed the prevalence of the offence and the need to protect the public against such crimes, and the need to set appropriate sentencing standards.

115 In my view, this submission should be rejected. It was rightly conceded by the DPP that there was no tariff for robbery with violence because of the wide range of circumstances which can arise. As earlier observed, this was a serious crime. However, violence was not directed towards terrifying the victim but was occasioned in all probability, during flight. This distinguishes the case from more serious robberies with violence.

116 The defendant was aged 20 with no prior record. She came from a broken home and had suffered serious head injuries as a child. Notwithstanding these problems, she had progressed well at school and had only recently, as a result of family disharmony, lost motivation. She had used marijuana on the day of the offences and this probably provides some explanation but no excuse for her conduct. The learned sentencing Judge was confident that she would not reoffend.

117 In the circumstances of this offender's age, good record and other antecedents it cannot be said that the sentence imposed was outside the sentencing discretion of the learned Judge.

118 It was further submitted that the learned sentencing Judge erred in suspending the term of imprisonment. The DPP acknowledged that he had a particularly difficult task in advancing this submission. Again, given the circumstances of age, good record and other antecedents of this offender, the decision to suspend was well within the sentencing discretion.

119 No rare and exceptional circumstance which would justify a grant of leave has been made out. I would refuse leave to appeal.

JUDGMENT CITATED IN ORDER OF APPEARANCE IN JUDGMENT