R v Allen [1999] TASSC 112

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other Crown Law Officer - Applications to increase sentence - offences against the person - Grievous bodily harm.

R v Bennett [1990] Tas R 72; Lovegrove v R [1961] Tas SR 106; Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1, referred to.

Judgment Number: [1999] TASSC 112

3 Substitute a sentence of three years' imprisonment from 13 December 1998.

1 The respondent was convicted of the crime of committing an unlawful act intended to cause bodily harm contrary to the Criminal Code, s170. He was also convicted of assaulting a second complainant. The detailed facts are contained in the learned sentencing judge's comments on passing sentence, which my brother Wright J has incorporated in his Reasons for Judgment which I have had the advantage of perusing.

2 An essential element of a crime against s170 is the intention to cause one of various forms of serious harm, including grievous bodily harm, but the crime can be established by the doing of actual bodily harm short of harm meeting the Code definition of grievous bodily harm. Hence a person could be convicted under s170 if it is proved that with intent to cause grievous bodily harm, he did an act which caused any hurt or injury calculated to interfere with health and comfort which was not necessarily permanent but which was more than trifling. On the other hand, the circumstances may show that with such an intent, he inflicted "bodily injury of such a nature as to be likely to endanger life, or to cause or be likely to cause serious injury to health" (Criminal Code, s1).

3 While the crime of causing grievous bodily harm under s172 requires the unlawful causing of harm of that kind, it does not require as an essential element the specific intention of bringing about that result. It does require, however, either an actual intent to cause grievous bodily harm or subjective recklessness, that is, foresight of that kind of harm and going on to take the risk of it (R v Bennett [1990] Tas R 72, per Neasey J at 83 - 84). Because such a specific intent is required for the commission of a crime against s170, that crime is generally regarded as worse than one against s172. In the hierarchy of crime, the offence of attempted murder is generally regarded as worse still, even though no bodily harm may be suffered by the complainant. As Burbury CJ said in Lovegrove v R [1961] Tas SR 106:

"The court has for itself placed the various crimes under the Code into different categories of gravity and for itself as guided by the collected wisdom of judges here and elsewhere has set ranges of sentences appropriate to various crimes according to their gravity."

4 The present case not only falls into that more serious category of crime than an offence against s172, but is a particularly serious instance of it, having regard to the fact that the injury sustained by the complainant could scarcely be regarded as other than amounting to grievous bodily harm. When one adds to those skeletal facts the further details that the attack was premeditated, was committed in the company of two other armed young men, involved forceful blows with a club-like weapon and was carried out in flagrant disregard of a police officer's attempt shortly beforehand to discourage the use of violence, one is faced with a very serious crime indeed.

5 The respondent was 23 years old at the time and admittedly had a reasonable industrial record and no previous conviction for a crime of violence. But the offence under s170 deserved severe punishment and it should not be overlooked that there was a second offence of assaulting a youth of 17 on the arm with the same weapon when he came to the aid of his father, the first complainant. With respect, I consider that a sentence of two years six months' imprisonment, the execution of nine months of which was suspended, was a manifestly inadequate penalty in all the circumstances. I agree with Wright J that this is an appropriate case in which this Court should intervene to correct it and that paying due regard to the double jeopardy principle, a sentence of three years' imprisonment should be substituted. I agree with the orders he proposes.

6 On 21 April 1999, the respondent was convicted and sentenced to two years', six months' imprisonment (nine months suspended) upon an indictment charging him with two criminal offences, viz:

(1) that on 13 December 1998 he, James William Chapman and Kenneth Patrick Mayne, with intent to do grievous bodily harm to Christopher Lloyd George, did actual bodily harm to Christopher Lloyd George by striking him to the head and body with a baseball bat; and

(2) that on the same date and at the same place, he unlawfully assaulted Daniel Lloyd George by striking him to the arm with a baseball bat.

7 The respondent and both of his co-accused pleaded guilty to the second count. Mayne was sentenced to 21 months' imprisonment (7 months suspended) and Chapman was sentenced to 12 months' imprisonment (6 months suspended).

8 In pronouncing sentence, the learned sentencing judge reviewed the circumstances surrounding the crimes in the following terms:

"You are each convicted on your plea of guilty to a charge of committing an unlawful act intended to cause grievous bodily harm. Mr Allen, you are in addition convicted on your plea of guilty to a charge of assault.

The victim of your joint crime was a 43 year old man, Mr C L George.

Mr Allen resides with Rachel, a daughter of Mr C L George. Rachel has two children, one of whom was fathered by Mr Allen.

On the night of Saturday, 12 December 1998, Mr C L George and his wife, Deborah, called at the residence of Mr Allen and Rachel to collect Rachel's children. The children were to return the next morning. The Georges have a son, Christopher, who was present when they collected the children. There was tension between many of those who became involved in the events that ensued. There had been differences between the Georges and Mr Allen about the children. Mr Mayne is the brother of Mrs Deborah George. At the time of their mother's death in early 1998, something occurred which caused Mr Mayne to become hostile towards his brother-in-law, Mr C L George, and resulted in him making threats directed at Mr George.

When the Georges called to collect the children, Mr Allen and Mr Mayne were not at the residence, they were some distance away down the road. They were told of Christopher George's presence at the residence, and Mr Mayne, who had "had a few beers", borrowed a bicycle and rode there in considerable haste. Upon arrival he applied the front handbrake so forcefully that he was propelled over the handlebars to the ground. Christopher George thereupon assaulted Mr Mayne. The Crown acknowledges that the assault was quite significant. No clear explanation for the assault has been put forward. Mr Allen, who had been following Mr Mayne on foot, arrived in the course of the assault. As he went to the aid of Mr Mayne, Mr C L George flung Mr Allen against a wall. Mr Allen suffered a bad gash to his forehead and black eyes.

The Georges left the scene, taking the children. They left behind the seeds for resentment and confusion. Mr Allen was irate about being slammed into the wall, and annoyed because the children had been taken without his permission and he believed without the permission of Rachel. Mr Mayne was incensed about being assaulted. Both he and Mr Allen believed that Mr C L George had been participated in Christopher's assault upon Mr Mayne.

It is clear that Mr Allen and Mr Mayne were most resentful about what had occurred and harboured considerable animosity towards Mr C L George and his son, Christopher. Mr Allen and Mr Mayne were intent on getting back at them, and to that end they waited at Mr Allen's residence the next morning to confront the Georges when the children were returned.

Mr Chapman lived near the residence occupied by Mr Allen and Rachel, and is a casual acquaintance of Mr Allen. Mr Chapman had no direct involvement in the events of that Saturday night, although he was in the vicinity when they occurred. He did not know the Georges or the basis for the animosity between the Georges, Mr Allen and Mr Mayne. He joined Mr Mayne and Mr Allen in their wait for the Georges, although he had no personal reason for any enmity towards them.

The Georges were alert to the situation and prior to returning the children on the morning of Saturday, 13 December 1998, they arranged for Constable Bond to be present to keep the peace. They drove to Mr Allen's residence, followed by Constable Bond. As Mr and Mrs George's vehicle pulled up in the driveway of the residence, the defendants emerged. Mr Allen was carrying a baseball bat, and Mr Mayne had an axe. Mr Chapman was not armed. The defendants yelled and shouted abuse and threats at the Georges. Constable Bond approached the defendants, who backed off. The children were returned and the Georges left the scene. They drove to the home where their daughter Rebecca and son Daniel were residing.

After Constable Bond left Mr Allen's residence, the defendants set off in pursuit of the Georges. Mr Allen had anticipated where they would go. The defendants travelled in Mr Allen's vehicle. They took with them the baseball bat and axe, as well as an iron bar, about three feet in length, which Mr Chapman picked up at the residence.

Upon arrival at the home of Rebecca and Daniel, Mr Allen parked his vehicle nose to nose with the George's vehicle. Mr C L George was out of his vehicle. As the defendants exited Mr Allen's vehicle, Mr Allen was carrying the baseball bat, Mr Mayne the axe and Mr Chapman the iron bar. The defendants moved towards Mr C L George and Mr Allen, and, without any warning or provocation, struck Mr George in the side of the head with the baseball bat. Mr George fell to the ground and Mr Allen struck him again with the baseball bat in the area of his knee and in the upper body. When Mr Allen delivered the blow to Mr George's head, he was holding the bat with both hands and he used significant force. He used one hand when he struck the last two blows, which were delivered when Mr George was on the ground and bleeding. Whilst Mr Allen was assaulting Mr George, Mr Mayne and Mr Chapman were standing nearby with their weapons in hand, yelling threats and abuse at Mr and Mrs George and their children, Rebecca and Daniel, who had come out of their home. Threats were also made in relation to the George's son, Christopher, who was not present.

When Daniel endeavoured to intervene to protect his father, Mr Allen struck him on the left arm with the baseball bat.

The defendants returned to Mr Allen's vehicle. Mr Chapman drove. He did a U-turn, and, as they returned to the scene, Mr Allen hung out of the car window, brandishing the baseball bat at Mr George. At this time Mr George was in a semi-conscious state. Mrs George and Daniel were endeavouring to get him off the road.

Whilst being transported to the Department of Emergency Medicine at the Launceston General Hospital, Mr George suffered a seizure. Upon admission to the hospital he had a decreased level of consciousness and was incomprehensible. He was intubated. He had a depressed left temporal bone fracture. An operation was performed to raise the left temporal bone flap and drain his intracranial bleeding. Mr George was transferred to the Royal Hobart Hospital neuro-surgical unit, where it was noted that he also had a fracture of the lateral wall of the left orbit extending across the orbital plate and into the medial orbital wall. He subsequently underwent an operation to re-instate the bone flap, a left frontal craniotomy. He was discharged from hospital eleven days after the assault.

Mr George suffers from paralysis down the left-hand side, mainly affecting his leg, and he has needed to use a walking stick. He presently cannot drive. He is unable to perform general labouring work as previously and has not been able to return to work. He suffers from memory loss and has a number of other problems linked to his injuries. He is most apprehensive about his future safety. A little over four months have passed since the attack. At this stage, his prognosis is uncertain.

Mr George's wife and two of their children, Rebecca and Daniel, witnessed the attack on him. It is inevitable that this was extremely distressing for them and will impact on their lives in various ways. These effects are adverted to in the impact statement reports which were tendered. I should say that I find the impact statements to be of little assistance insofar as they deal with problems arising from long-standing and ongoing tension within the George's family and between the members of the George's family and the participants. What is of assistance to me is information on the extent of Mr George's injuries and the consequences of them generally, as well as the effect on his wife, Rebecca and Daniel of witnessing the attack.

Mr Allen's attack on Daniel caused him soft tissue injuries to his arm from which he has recovered."

9 His Honour then reviewed the principles discussed by the Court of Criminal Appeal in R v Meers and Moles 32/1998 and continued:

You are 20 years of age. You have no prior conviction for a crime of violence. Notwithstanding that you suffer from a reading and writing disability, you had a reasonable work record until you developed contact dermatitis. You are the parent of one child and another child is expected in four months. When approached by a police officer shortly after the attack you acknowledged your involvement and you have pleaded guilty.

You bear prime responsibility for what occurred. You were intent on vengeance. Heedless of Constable Bond's endeavour to defuse the situation, immediately he left your residence, you led your co-offenders in pursuit of the Georges. You were the one who anticipated where they would go, and you drove your car in pursuit of them. Without apparent hesitation, you walked straight up to Mr George and hit him forcefully in the head with a baseball bat. You hit him again twice after he had fallen to the ground. Daniel sought to defend his father and you struck Daniel with the baseball bat. You showed no remorse. As you were driven from the scene you were hanging out of the window of the car brandishing the baseball bat at Mr George.

The result of your pre-meditated crime is that Mr George has suffered grave injuries."

At the time he was sentenced, the respondent was 23 years of age, not 20 as stated by the learned sentencing judge but, in all other respects, the learned sentencing judge accurately and comprehensively stated the relevant facts.

10 The Director of Public Prosecutions has now appealed against the sentencing order made against the respondent upon the ground that the sentence was manifestly inadequate, having regard to all the circumstances of the case.

11 In support of the appeal, Crown counsel emphasised that the respondent's attack upon Mr George was premeditated and persistent. It took place shortly after the respondent and his criminal colleagues had been spoken to and warned against using violence by Constable Bond. The respondent was armed with a weapon capable of inflicting severe physical damage and was accompanied by two others who were also armed with dangerous weapons, an axe and an iron bar. The attack occurred in a public place in the presence of the complainant's family who were traumatised and distressed by the occurrence. The attack caused very serious, life threatening injuries to the complainant, resulting in chronic physical and emotional disability.

12 Mr George was struck three blows by the baseball bat, one to the head, one to the knees and one to the body. The initial disabling blow was to the head. The subsequent blow to Mr George's knees was struck by the respondent to prevent him getting back to his feet and defending himself. Mr George's son, Daniel, aged 17 years, was struck on the arm by the respondent when he attempted to come to his father's aid. To use the words of Nettlefold J in Brown v R 15/1987, this was "a conspicuously bad example of arrogant lawlessness".

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] Tas SR 106; Brown v R (supra); Bennett v R [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.

14 Mr Ellis, counsel for the respondent, drew the Court's attention to a number of recent sentences in broadly comparable cases where the offender was charged with intentionally causing grievous bodily harm. Ever since Dowie v R [1989] TASSC 44; [1989] Tas R 167, I have maintained that whilst a sentencing judge should strive to achieve consistency in sentencing, this is not a process which involves the close comparison of one case with another to ensure that the new sentence being contemplated coincides closely with that passed on an earlier occasion by another judge. The facts and circumstances of one crime are rarely, if ever, identical to those of another. The injuries sustained by the victim of one crime of violence are usually very different from those sustained by another. The relationships between the victim and the offender are frequently different. The antecedents of the offenders are always different. I find that whilst the definition of a broad sentencing range will often be useful, any attempt to distil a tariff for a particular crime or a particular type of offender is usually illusory.

15 In the cases referred to by counsel I can see no such tariff, but on the basis of four decades as a legal practitioner, magistrate and judge, I am constrained to say that I consider that the sentence actually imposed upon the respondent was surprisingly light. This was an arrogant and vicious attack by any standards. Grave injuries were caused. The offender deserved condign punishment. A sentence of three years' imprisonment would have been very low but, arguably, not out of range and therefore not appealable. Two and a half years, with nine months suspended, was too low. It was manifestly inadequate. Mr Ellis argues that to increase the sentence on appeal would provide the respondent with a justifiable sense of grievance that his punishment was disproportionate to the penalties inflicted on his co-offenders in respect of whom the Crown has not sought to challenge the sentences imposed. I reject this argument. Neither of the respondent's co-offenders struck Mr George or his son Daniel. They were charged as principal offenders in respect of count 1, but their liability was, in substance, accessorial. They each received a custodial sentence of significant duration.

16 Mr Ellis also argued that the double jeopardy principle, acknowledged by this Court in cases such as R v Harland-White 23/1997, should be recognised by our declining to increase the respondent's sentence. In R v Harland-White (supra) I said, at 1:

"Once the merits of the appeal have been considered, the Court has a residual, but limited, discretion which appears to me to have been appropriately summarised by Charles JA in R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522 in the two following propositions:

'4 When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.

5 An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance.'

It is obvious that an application of these principles may result in a degree of amelioration of the outcome for the prisoner which might not be justifiable on logical grounds. For my part, I have always regarded the 'double jeopardy' argument as being one of doubtful validity in modern society where the discretion of the sentencing court is, or should be, guided by a substantial body of clear authority as to the appropriate course to be followed in the various kinds of situations which come before it. To me it seems inappropriate that an offender may escape his just desserts when error has occurred merely because, like other litigants, he may have to withstand the challenge of an appeal. I tend to think that current societal values would not regard such an outlook as lacking decency or fairness.

However, the 'double jeopardy' principle has become too well established in recent years to be denied and, if applied in the limited way suggested by Charles JA's formulation, I have no difficulty with it."

17 I think that a conscientious application of those principles in the present case leads to a conclusion that, although an appropriate sentence for the respondent upon both counts in the indictment would have been four years' imprisonment, that sentence should be ameliorated to some degree. In my opinion, the appeal should be allowed, the sentence imposed on the respondent should be quashed and in lieu thereof, a sentence of three years' imprisonment should be imposed.

18 The Crown has appealed against a sentence of imprisonment of two years and six months, of which nine months was suspended, imposed on the conviction of the respondent for the crimes of the intentional causing of grievous bodily harm and assault, contrary to the Criminal Code, ss170 and 184. The crimes were committed during the course of an extended domestic conflict involving the appellant and the grandparents of his children. The conduct of the appellant was vicious, prolonged and endangered the health and safety of others. Two co-offenders, Mayne and Chapman, received respectively, sentences of imprisonment of 21 months (seven suspended) and 12 months (six suspended). No appeal has been brought by the Crown in respect of these penalties.

"The sentence was manifestly inadequate having regard to all the circumstances of the case."

20 No challenge is made to the summary of the facts as found by the learned sentencing judge and stated in his comments on passing sentence.

21 Counsel for the appellant contended that the penalty did not adequately reflect the aggravating features associated with the commission of the crime and was below the range of penalties appropriate for crimes of the nature committed. The aggravating features included premeditation, commission in company, the use of a weapon, absence of immediate remorse and the long term effects on the victim. The learned sentencing judge took these matters into account, but the Crown contends that the penalty did not adequately reflect these aggravating features.

22 An examination of the range of penalties imposed in relation to crimes involving breach of the Code, s170, shows a range which places the more serious cases within a time frame of between three - four years' imprisonment. An appeal, if made by the respondent, against a sentence of imprisonment of between three and four years, would have little chance of success if the sole ground was that the sentence was manifestly excessive. Nevertheless, a sentence of two years and six months is not a trifling penalty. It did not depart substantially from the relevant principles discussed by this Court in cases such as Brown v R 15/1987, Bennett v R [1990] Tas R 72 and Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1.

23 However, this is a Crown Appeal and, notwithstanding the amendment to the Code, s401(2)(c), a different approach is required in the determination of such an appeal. It is not necessary to revisit the issue of double jeopardy as discussed by this Court in R v Harland-White 23/1997, or the matters stated by the High Court in Everett v R [1994] HCA 49; (1994) 181 CLR 295, since there remains a necessity to show "manifest disparity or inconsistency in sentencing standard" before an appellate court ought intervene (Malvaso v R [1989] HCA 58; (1989) 168 CLR 227, Deane and McHugh JJ at 234). The amendment to the Code, s401, designed to confer greater freedom upon the Attorney-General to challenge particular sentences, does not negate principles such as those consistently applied by the High Court in cases such as Griffiths v R [1977] HCA 44; (1977) 137 CLR 293, Malvaso (supra) and Everett (supra)). I do not accept that proper regard can be had to those principles by the imposition of a lesser sentence once the ground of "manifest inadequacy" is made out.

24 Nothing contained in these reasons for judgment ought be taken as approval that, in circumstances such as those considered in this appeal, an appropriate penalty would be a sentence of two years six months' imprisonment. A higher sentence would not have been inappropriate. But the sentence was within range and, in my opinion, has not been shown, on a Crown appeal, to be manifestly inadequate.