B The Application for Leave to Appeal Against Sentence

3 Sentence of 4½ years' imprisonment quashed and in lieu thereof the applicant is sentenced to 3½ years' imprisonment to date from 27 January 1989. It is ordered that the execution of the last twelve months of that sentence be suspended upon condition that the applicant commits no offence involving violence to the person for a period of two years from the date of his release from prison. Further, a probation order for the same period is made and it is ordered that during its currency the applicant be placed under the supervision of a probation officer and obey his reasonable directions.

1 Pursuant to s401(2) of the Criminal Code, the Attorney-General has applied for leave to appeal against the respondent's acquittal on a count of unlawfully causing grievous bodily harm, contrary to s172 of the Code. The respondent at the same time applies for leave to appeal against the sentence of four and one half years imprisonment imposed upon him as a result of his conviction on a number of counts on the same indictment. The respondent was charged on four counts - first, aggravated burglary; second, unlawfully causing grievous bodily harm; third, unlawful wounding; and fourth, stealing a video cassette recorder. He was convicted on the first count, acquitted on count two of unlawfully causing grievous bodily harm, but on that count convicted in the alternative of unlawful wounding; and convicted on counts three and four.

2 The essential facts of the Crown case were largely undisputed at the trial. The respondent and another man had entered the home of Mr A as trespassers. The other man had removed a video cassette recorder and left the house, but the respondent was confronted by A in the kitchen. A gave evidence that the respondent rushed him, and he felt a jab in the chest. This "jab" turned out to be a substantial knife wound, and was the subject of the second count. A chased the respondent outside and apprehended him on the lawn, where a struggle ensued and A sustained two further minor wounds. Both sides gave evidence at the trial, that the respondent at the time was affected to a marked degree by liquor and drugs. As part of his directions to the jury, the learned trial judge gave them a written memorandum which in relation to count two stated:-

"To convict the accused of causing grievous bodily harm, the jury would have to be satisfied beyond reasonable doubt

(a) That he, by a voluntary and intentional act caused to (A) bodily injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause serious injury to health.

and

(b) That at the time he performed that act he intended to cause bodily harm of that kind or he foresaw the likelihood that such harm may be caused.

and

(c) That such act was unlawful i.e. not justified by law."

3 This part of the memorandum contained one of the two alleged misdirections in law of which the Attorney-General complains. He argues that it was wrong to direct the jury that in order to convict it had to be satisfied beyond reasonable doubt that one of two states of mind existed, namely that the accused intended to cause bodily harm of that kind, or that he foresaw that such harm may be caused. It was argued that a correct direction would have been that if the Crown could not prove intention it would be sufficient for it to prove that an ordinary person would have foreseen the likelihood that such harm would be caused. The other direction claimed to be erroneous in law was that the learned trial judge told the jury that the crime of unlawfully causing grievous bodily harm was a crime of specific intent, and that in accordance with s17(2) of the Code they could take into account the state of intoxication of the accused in order to determine whether he was capable of forming an intention to cause grievous bodily harm, or whether he was capable of foreseeing the likelihood that such harm may be caused.

4 In discussing with counsel during argument the preliminary question whether there had properly been an acquittal in this case so as to make it possible for leave to appeal to be given, it was pointed out that the present might not in any event be a suitable case for leave, because of the fact that there had been the alternative conviction on count two, and because the sentence of imprisonment had been a composite sentence based upon the convictions on the whole indictment. I propose to pay some attention to these points first.

5 The alternative conviction could only have been based upon s341 of the Criminal Code, because there is no specific section which otherwise made it possible. Section 341 states:-

"Every count in an indictment shall be deemed to be divisible, and in any case in which the commission of the crime charged, as defined in the enactment creating such crime, involves the commission of any other crime, and any such other crime is proved to have been committed by the accused person, he may be convicted of any such crime so proved."

6 The crime charged, as described in the enactment creating that crime, i.e. unlawfully causing grievous bodily harm as described in s172, does not necessarily involve the crime of unlawful wounding, because grievous bodily harm may be caused without necessarily causing a wound. Therefore if the alternative conviction was possible, it would have to come under the second limb of s341, which requires that the first crime "as charged in the count" involve commission of the alternative crime. It was held in Bauer v The Queen [1987] TASSC 14; [1987] Tas R 166 that in order to come within the second part of s341 the commission of the alternative crime must of necessity, which is to say, regardless of the evidence, be involved in the commission of the first. Another way of saying this is that if the prosecution proves the commission of the crime "as charged in the indictment", it must of necessity also have proved the commission of the alternative crime. Thus in this case, the crime as charged was "causing unlawful grievous bodily harm to (A) by stabbing him in the abdomen with a knife". If the Crown proved this, it must also have proved unlawful wounding, assuming the mental element is the same in each. If unlawful in the one case it must be so in the other, and a stab in the abdomen with a knife would of necessity cause a wound. The alternative conviction was therefore prima facie lawful under s341.

"Where pursuant to this chapter a person may, on indictment for any crime, be convicted of any other crime it is intended that, if the jury find him not guilty of the crime with which he is charged, he may be convicted of that other crime if it is established by the evidence to have been committed by him."

8 This subsection applies to s341 as well as to the sections creating specific alternatives, in my opinion, and so there must be an acquittal of the crime charged before there can be a conviction on the alternative. Therefore the first condition of leave being given to the Attorney-General under s401(2)(b) to appeal, that there be an acquittal, has been satisfied. If leave were given and the appeal succeeded, it would be necessary before there could be any new trial, if that should be ordered, to set aside the alternative conviction and the sentence, since the conviction was dependent upon the acquittal as a pre-condition, and the sentence was based partly upon the conviction; but I do not think those considerations should necessarily preclude a grant of leave. It will be convenient I think to consider the arguments advanced by the Crown before deciding whether leave should be given. Undoubtedly the issues raised by the application involve serious questions of law.

9 In support of its first argument, that a correct direction to the jury would have included the proposition that a sufficient mental element for the Crown to prove would have been that an ordinary person would have foreseen that harm of the kind caused was likely to ensue from the conduct of the accused, learned counsel for the Crown advanced an elaborate set of propositions, which are set out in its written submissions. It is not necessary to reproduce these in full, but one line of argument is to the following effect :-

1 The only one of all the judgments in Vallance v The Queen, [1961] HCA 42; (1961) 108 CLR 56 "which bears scrutiny and is still supportable in the light of subsequent authority" is that of Kitto J, who held that unlawful wounding within the meaning of s172 assumes a state of mind extending to the injury as well as the act, and thus requires at the least foresight of the injury as a possible consequence of the act, and assent to its being caused by the act.

2 This reasoning of Kitto J which enabled him to ascribe a mental element to the crime of wounding is not applicable to the crime of causing grievous bodily harm.

10 I certainly do not accept the first of these propositions, and am of opinion that the "subsequent authority" cited by counsel for the Crown in no way bears it out.

11 It has never been thought easy to assess the overall result of Vallance's case; but as counsel for the Crown pointed out, all five of the judgments delivered in the High Court agreed on what the directions to the jury should have been in respect of the required mental element. The difficulty in interpreting the case arises from the fact that the judgments arrived at that result in the main by different lines of reasoning. Various judges of this court have expressed their understanding of that which the case is authority for - eg Burbury CJ and Cox J in their joint judgment in Snow v The Queen [1962] Tas SR 271, at pp278-279; Crawford J in the same case, ibid at p293; myself in Williams v The Queen [1978] Tas SR 98, at pp100-102, and in Arnol v The Queen [1981] Tas SR 157, at pp167-170; Cosgrove J in the same two cases, at p112, and pp173-174; Cox J in Hodgson v The Queen [1985] Tas SR 75, at pp99-100. These may not be all. But nevertheless it appears to be necessary in this application to traverse again some of this well-trodden turf.

12 Dixon CJ and Windeyer J held that the "act" which s13(1) refers to was the whole punishable act; that is, the wounding, and this must therefore be intentional. Their Honours further held, as did all five of the justices, that the state of mind necessary for intentional wounding was either actual intent to wound or foresight of likelihood of wounding and assent nevertheless to the risk. The other three justices, Kitto, Taylor and Menzies JJ, held in substance that the "act" was the physical act or acts only, which did not extend to the wounding; and thus they constituted a majority on this point. These three justices also held that "intentional" wounding had to be proved, but they arrived at this conclusion by a different route from that taken by Dixon CJ and Windeyer J, and also by different paths as between themselves.

13 Kitto J held as a matter of statutory construction that the expression "unlawfully wounds", "read in its setting in a statute defining criminal offences", means an intentional wounding, and that the meaning of intention includes subjective recklessness. His Honour also examined the meaning of the word "act" in s13(1), and said he agreed with the judges of the Court of Criminal Appeal that it referred to "the physical action of the person charged", and so did not extend to the wounding - ibid, at p64_._ His Honour then considered the expression "by chance" in the second limb of s13(1), and concluded that it described an event both unforeseen by the doer and not foreseeable by an ordinary person - ibid, at pp63-65. (This opinion as to the meaning of "by chance" was also stated in similar terms by Dixon CJ, ibid, at p61, and by Windeyer J at p82).

14 The opinion expressed by Kitto J, that "unlawful wounding" means intentional wounding, was essential to his conclusion as to what constituted a correct direction to the jury because, first, it has the effect that the Crown must prove as an essential element that the accused had one of the two states of mind involved in "intention"; and second, it means that the Crown, by proving the existence at the relevant time of either of the alternative elements of intention, also proves thereby that the "event" did not, by his Honour's definition, happen by chance; which the Crown must do in order to prove the crime. The completeness of his Honour's reasoning in this regard, if one may say so respectfully, is perhaps a reason why his judgment is often cited as an expression of what the case decides.

15 Taylor J also examined the meaning of "unlawful wounding" in s172, and concluded, by calling in aid s8 of the Code, which preserves in force "all rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to a charge upon indictment", that for the purposes of s172 a wounding would be unlawful unless it was justifiable according to the rules and principles of the common law. This in turn meant, his Honour in effect said, that a wounding would be unlawful even without an actual intent to wound, if done with reckless or wanton indifference to a result foreseen as a not unlikely consequence - ibid, at pp67-68. Taylor J then discussed whether that conclusion would be affected by the first limb of s13(1). Having done so, his Honour held that the "act" referred to the "essential character of the act itself"; that is, the physical act, and so did not affect the earlier conclusion. That left his Honour with an opinion, based upon his interpretation of "unlawful wounding", as to what the correct direction would have been. He did not find it necessary to discuss the meaning of the expression, "by chance".

16 Menzies J first gave reasons for holding that the "act" was the physical act or acts of the accused, namely the shooting - that is, the aiming and firing of the rifle - ibid, at p71. His Honour then concentrated upon the meaning of the expression, "by chance". After discussing that matter, he held that those words "refer to the occurrence of an event that the doer of an act does not foresee as a possible consequence". "The section as a whole", his Honour said, "is clearly enough concerned with the state of mind of the person doing or omitting to do something and is, in a general way, directed towards associating guilt with foreseen consequences" - ibid, at p73. Menzies J went on to say that his conclusion that "by chance" referred to an event which the doer of it did not foresee was in line with the well established position at common law that an intention to do an injury of the kind done is an essential element of "maliciously wounding", and that whatever the doer of an act foresees as likely to result from it is within the ambit of his intention - at p73. Therefore the correct direction would have been that "the jury should convict only if they were satisfied that the accused had fired the rifle deliberately either intending to hit Pauline or, foreseeing as a likely consequence of firing as he did, she might be hit" - p74.

17 Thus that which results from the judgments overall in Vallance may be stated as follows:-

1 There was a consensus among all five justices as to what the correct direction would have been - that is, it was necessary for the Crown to prove actual intent to wound or subjective recklessness.

2 There was a majority of three to two as to the meaning of "act" in s13(1) - namely, that it means the physical act or acts of the accused alleged to have brought about the occurrence of "the event".

3 A further combination of three justices (Dixon CJ, Kitto and Windeyer JJ.) held that the words "by chance" refer to an event both unforeseen by the doer and unforeseeable by a reasonable person.

18 Otherwise, there was no coincidence in lines of reasoning except as between the two minority justices, Dixon CJ and Windeyer J However, the view has been taken in this State with virtual uniformity since Vallance's case, I believe rightly, that it is authority for the three propositions just mentioned - namely that unlawful wounding under s172 requires proof of actual intent to wound or subjective recklessness; that the "act" in s13(1) means the relevant physical act or acts of the accused; and that "by chance" in s13(1) refers to an event both unforeseen by the doer and unforeseeable by a reasonable person.

19 It may be noted that the judgment of Gibbs J (as he was then) in Kaporonowski v R [1973] HCA 35; (1973) 133 CLR 209, with which Stephen J agreed, in its discussion of Vallance's case (ibid, at pp288-9) substantially accords with and confirms the view taken in this State about the effect of Vallance; and there is nothing in the other judgments in the High Court in Kaporonowski which would disturb the Tasmanian consensus about the effect of Vallance. (I am assuming, I think rightly, that "accident" in s23 of the Queensland Code means the same as "chance" in our s13(1)).

20 Further, it has been assumed in Tasmania since Vallance that the mental element in unlawfully causing grievous bodily harm is the same as in unlawful wounding, since they are allied in s172; and trial judges have in practice so directed juries. The trial judge of course did so here. The Crown contends he was wrong. Kaporonowski (supra) does not assist on this issue because it was not necessary to deal with it in that case, but the Crown relied upon an earlier Queensland decision in Reg v Knutsen [1963] Qd R 157. There, the Court of Criminal Appeal held that in the corresponding section of the Queensland Criminal Code dealing with "doing grievous bodily harm", s320, the test as to foreseeability of harm of the kind in fact caused is objective. That is, it is enough to prove that an ordinary person would have foreseen the likelihood that such harm would be caused. In my opinion the case is distinguishable, for similar reasons to those given there for holding that Vallance's case (then recently decided) did not assist them - that is, the relevant provisions of the two Codes are too disparate in arrangement and wording to be closely compared in this respect. In any case, the reasoning adopted by the members of the court for holding that the test is objective follows widely varying lines, and there does not exist in Queensland the binding decision of the High Court in Vallance's case that the cognate half of s172, dealing with unlawful wounding, requires actual intent or subjective recklessness. In my opinion it almost follows from the latter fact alone that the mental element of the two offences is the same. It would produce an irrational, illogical and asymmetric result if the second offence, clearly more grave in content than the first, could be established without showing the subjective mental element necessary to prove the first.

21 Furthermore, the present is a case where, from the absence of any clear indications in the language of the provision (s172), it is legitimate to look at the relevant law existing at the time the Criminal Code was enacted, to see what it was then (as several of the High Court justices in Vallance's case did). At that time the corresponding offences in Tasmania were almost exact copies of sections of the Offences Against the Person Act 1861 of England, namely ss18 and 20. (See Halsbury's Statutes of England, Vol 4, p605.) These had been translated into ss6 and 18 of the Offences Against the Person Act 1863 of Tasmania (27 Vic No5), which had not been amended when the Code was promulgated. In the Code, s16 of the local Act became, with some extensions and some tidying of language, s170, and s18 became, subject to similar comments, s172. Section 18 of the Tasmanian Offences Against the Person Act provided as follows -

"18 Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, or present any kind of firearms at any other person, shall be guilty of a Misdemeanor, and being convicted thereof shall be liable to be imprisoned for Four years."

22 In s172 of the Code the word "maliciously" has been removed, doubtless for the same reasons as Sir Samuel Griffith stated in his letter to the Attorney-General concerning his draft for the Queensland Code - see eg per Stanley J in Knutsen's case (supra, at p172). In Reg v Cunningham [1957] 2 QB 936, the Court of Criminal Appeal, citing Professor Kenny's Outlines of Criminal Law, stated that in a statutory definition of a crime, malice must be taken to require either an actual intention to do the particular kind of harm that was done, or foresight of that kind of harm and going on to take the risk of it. See also the judgments of Dixon CJ in Vallance, (supra), at p59; and of Windeyer J in the same case, at p77.

23 The other main change made in s172 is that the word "inflicts" has been replaced by "causes". A similar change was made when the Queensland code was enacted, but there, the expression "inflict bodily harm" was changed to "do bodily harm". The effect of the change was discussed by Mack J in Reg v Knutsen (supra) at pp185-6. While of course in no way questioning the conclusion his Honour reached, I would not apply his reasoning to our different statutory context. The use of "causes" instead of "inflicts" in s172 appears to me to avoid some problems of interpretation likely to flow if "inflicts" were used, such as deciding upon the mental element involved, by substituting the blander but more inclusive "causes".

24 That being the state of the law in Tasmania immediately before the Code came into force, it is apparent that a construction of s172 which requires the same mental element for both its offences would have effected no material change in the existing law; which is likely to have been what the legislature intended.

25 Counsel for the Crown also placed some reliance upon the House of Lords' decision in Alphacell Ltd v Woodward [1972] UKHL 4; [1972] 2 All ER 475, but it is distinguishable and gives no guidance in the present case. The House was dealing with a statutory offence which their Lordships held was absolute once causation in fact, intentional or not, was established. The decision depends on its statutory context.

26 Accordingly, this ground of the application would fail.

27 The second ground may be dealt with shortly. In my opinion the direction that unlawfully causing grievous bodily harm is a crime of specific intent was clearly wrong. A crime of specific intent is one in which an intention to bring about a particular result is an essential element of the crime - Reg v O'Connor (1980-81) [1980] HCA 17; 146 CLR 64 at p91; Snow v The Queen (supra) at p283; Vallance v The Queen [1960] Tas SR 51 at p65; Palmer v The Queen [1985] TASSC 53; [1985] Tas.R. 138, at pp148-9, 154-5. Section 170 of the Code is an example. The crimes under s172 are not. The direction concerning a possible defence of extreme intoxication was therefore too favourable to the accused, and resulted in no injustice to him; but this ground of the Crown's application should succeed.

28 It is necessary now to revert to the question whether as a result of the Crown succeeding on this ground there should be an order for a retrial, or any other consequential order. I have already referred to some of the difficulties which would appear to arise if there should be an order for a new trial. During the discussion of these with Counsel, the Director of Public Prosecutions, Mr Bugg, at first indicated to the Court that he proposed to seek an extension of time under s388AA(5) of the Criminal Code to arrange for a reference by the Attorney-General to the Court of Criminal Appeal under that section of the points of law being discussed. After further discussion, however, Mr Bugg withdrew that indication, and informed the Court that the Crown would be content, if it succeeded on this ground, to have the appeal dismissed under s402(2) of the Criminal Code. In my view, the latter would be an appropriate course to take, and I would accordingly give leave to the Attorney-General, but dismiss his application.

The application for leave to appeal against sentence.

29 The respondent was sentenced to four and one half years' imprisonment for the combination of crimes set out at the beginning of these reasons. The learned trial judge when imposing sentence said that he was satisfied that the respondent, having been found guilty of the alternative crime of unlawful wounding, intended to wound; that is, struck at the householder deliberately, intending to injure him by that means. His Honour said he took into account the fact that the victim had nearly died from his injuries, and expected to die, and that this was an unprovoked attack on an unarmed householder in his own home. He might have added the comment that the respondent was in the house as a burglar at the time, and had attacked the householder when the latter sought to detain him whilst in the act of burglary. His Honour further observed that the respondent, a young man 19 years of age, without any significant previous convictions, and affected by drink and drugs at the time, had searched through the home before these events occurred, had assisted to steal the video cassette recorder, and made some effort to evade police detection afterwards.

30 One of the grounds of the respondent's application for leave is that the sentence was manifestly excessive, and did not give sufficient attention to the need for rehabilitation, but I agree with the trial judge that the combination of crimes was extremely serious and called for a severe penalty. The aspects of physical attack causing severe injuries upon a householder surprising and tackling a burglar in his house in the act of burglary were obviously the most serious features of the crimes. In my opinion the offences overall did indeed call for a substantial sentence of imprisonment notwithstanding the youth of the offender, and I am not persuaded that in fixing the term he did the judge fell into any error in exercising his discretion.

31 An attack was also mounted upon the sentence on legal grounds. It was submitted, if I understand the argument correctly, that since the respondent was charged under s172 with causing grievous bodily harm, and convicted under that section of the alternative crime of unlawful wounding, he could not lawfully be sentenced on the basis that he intended to wound the victim. The basis for that proposition was put as being that s170 of the Code is the appropriate section under which to lay a charge if it is sought to prove an actual intent to cause grievous bodily harm, and since he was charged under s172 which does not lay down actual intent as an essential ingredient, the respondent could not lawfully be sentenced as for actual intent. That is to say (again, if I understand the argument correctly), the two sections are mutually exclusive in respect to an actual intent to cause grievous bodily harm.

32 There is no substance in these submissions. The two provisions are not mutually exclusive in that regard. The crimes set forth in s170, which involve proof of specific intents of very serious kinds, are much more serious crimes than those dealt with by s172. This is illustrated in the clearest way by looking at their progenitors, referred to earlier herein, namely ss16 and 18 respectively of the Offences Against the Person Act, 1863. The first of these sections proscribed felonies for which the maximum penalty was imprisonment for life, and the second, misdemeanours for which the maximum penalty was 4 years' imprisonment. This aspect is of course obscured by a Code which has abolished the distinction between felonies and misdemeanours and prescribes only one penalty for all offences under it. However, the distinguishing feature between the two sections in this regard is that in s170 the grave intent is specifically laid down as an essential ingredient, whereas under s172 no specific intent is prescribed, but the offence may be committed with a less culpable state of mind.

33 I would give leave to appeal against sentence, but dismiss the appeal.

34 With respect to the application for leave to appeal against acquittal on one count of unlawfully causing grievous bodily harm I am in complete agreement with the reasons for judgment of Neasey J to which there is nothing I can usefully add.

35 With respect to the appeal against sentence I am of the opinion, for the reasons expressed by Neasey and Crawford JJ. that the learned trial judge did not err in finding and proceeding to sentence on the basis that the applicant intended to cause the wound referred to in count 2 of the indictment. However, I have reached the conclusion that the sentence of 4½ years' imprisonment was manifestly excessive in all the circumstances.

36 I agree with the observation of the learned trial judge that these crimes were very grave. The applicant attacked an unarmed householder who had apprehended him committing the crimes of aggravated burglary and stealing. After the commission of these crimes, the applicant again wounded the householder in an attempt to make good his escape. I should say at once that had the jury convicted the accused of causing grievous bodily harm the sentence could not be said to reflect an error in the proper exercise of the sentencing discretion. Whilst it was appropriate to take into account the consequences of the applicant's criminal conduct it must be borne steadfastly in mind that the jury were not satisfied on count 2, that the applicant intended or foresaw "bodily injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause serious injury to health" (the Code, s1). Consequently, the applicant fell to be sentenced on the basis that the very serious consequences of his violence were neither intended nor foreseen.

37 The learned trial judge was correct when he observed that the applicant's criminal behaviour required "severe punishment" to act as a personal and general deterrent. However, with great respect to his Honour, I have come to the conclusion that in the circumstances as determined by the verdict of the jury and the findings made on passing sentence, insufficient weight appears to have been placed on the matters put in mitigation and the material which clearly indicated that the applicant's prospects of rehabilitation were very good. These are set out in some detail in the judgment of Crawford J In summary:

1 The applicant was aged 18 at the time of the commission of the crimes.

2 He had no significant prior convictions.

3 All the crimes were committed on the spur of the moment and whilst the applicant was substantially affected by the consumption of liquor and drugs, although I should observe that I consider the last factor has little mitigatory effect but serves to explain the absence of premeditation.

4 The applicant was of average intelligence and in stable, long term employment as an apprentice butcher.

5 Since his arrest the applicant has come to the realisation that continuation of his former life style and choice of associates must be abandoned and there appears to be every prospect of that applicant rehabilitating himself on release from prison.

38 Balancing all these matters I consider that a sentence of 4½ years, the execution of the whole of which was put into immediate effect, was manifestly excessive. I would grant the applicant leave to appeal, allow the appeal and quash the sentence imposed. In lieu thereof I would impose a sentence of 3½ years to date from 27 January 1989 and I would order that the execution of the last twelve months of that sentence be suspended upon the condition that the applicant commits no offence involving violence to the person for a period of two years following his release from prison. I would also make a probation order for the same period of two years and order the applicant to be placed under the supervision of a probation officer and obey his reasonable directions during the currency of the order.

39 I agree with the reasons for judgment of Neasey J and the orders he proposes.

The application (by the respondent, Bennett) for leave to appeal against sentence.

40 The respondent was sentenced on the indictment to 4½ years' imprisonment. That sentence was therefore imposed in respect of his convictions for aggravated burglary, unlawful wounding (2 counts) and stealing a video set recorder. On the second count in the indictment of causing grievous bodily harm contrary to s172 of the Criminal Code, the jury found him not guilty but instead guilty of wounding under the same section.

41 The victim plainly suffered grievous bodily harm and nearly died from his injuries, but it is appropriate to interpret the verdict on count 2 as meaning that the jury were not satisfied that the respondent intended to cause grievous bodily harm, nor that he foresaw it as a likelihood, but instead they were satisfied either that he intended to wound or foresaw the likelihood of a wound resulting from his voluntarily and intentional acts. The learned trial judge had to decide upon which of those states of mind he should proceed as a basis for sentencing and found that the respondent had deliberately struck at the victim with the knife with an actual intention to wound.

42 One of the grounds of appeal is that the learned judge erred in law in that he found proven and sentenced upon facts which were inconsistent with the jury's verdict and against the evidence and weight of evidence. This has not been made out. The jury were directed that they might convict of wounding if they were satisfied that the respondent either intended to wound Mr Allie or foresaw the likelihood that a wound might be caused. Because of the verdict it is clear that the jury found one or other of those states of mind. The learned judge sentenced upon the basis of an intention to wound. That was not inconsistent with the jury's verdict, nor was it in my view against the evidence or its weight. The only detailed evidence of what occurred at the time of the wounding was given by Mr Allie and a conclusion that he was intentionally wounded by the respondent was appropriate.

43 Although not a ground of appeal, the respondent's counsel submitted that the learned judge should not have found an intention to wound as a basis for sentencing, for to do so was to assume the commission of a crime under s170, a crime with which the respondent had not been convicted nor charged. The law in this regard appears to be settled. In Lovegrove v The Queen [1961] Tas SR 106, the appellant had been found guilty of causing grievous bodily harm contrary to s172. This court held that it was not open to the trial judge to sentence upon the basis that grievous bodily harm was intended. Specific intent was not a necessary ingredient of the offence under s172 (although foresight of the consequence was) as it might have been if the appellant in that case had been charged under s170. Not having been charged with the more serious offence in s170 (more serious in the circumstances of the case) it was not open to the judge to sentence upon a basis which would impliedly have assumed guilt of the more serious offence. (See also The Queen v De Simoni (1980-81) [1981] HCA 31; 147 CLR 383; R v Wyllie [1989] VicRp 3; [1989] VR 21; R v Boney, Ex Parte Attorney-General [1986] 1 Qd R 190; R v Bright [1916] 2 KB 441 and Kingswell v The Queen [1985] HCA 72; (1986) 60 ALJR 17).

44 So in this present case, it would not have been correct for the learned trial judge to sentence the respondent under s172 upon the basis that the wound had been administered with intent to maim, disfigure or disable Mr Allie, or to do any grievous bodily harm to him, or to resist or prevent his lawful arrest or detention, because they are elements of the s170 crime with which he was not charged but not necessary elements of the s172 crime. Accordingly, it was proper for the sentencing judge to find an intention to wound provided that he did not extend that intention to include any of the intentions expressed in s170. What the learned judge said was that he found that the respondent actually intended to wound Mr Allie and that he deliberately struck at him with the knife intending to injure him. There was nothing expressly said by the learned judge to indicate that such an intention included any of the kinds of intention required for conviction under s170, although for myself I find it difficult to accept, in the circumstances of this case, that if the accused intended to wound he did not also intend to at least maim, disable or prevent his lawful arrest or detention. But an artificially restricted view of the facts may be required of the sentencing judge as a necessary consequence of the principle applied in cases such as Lovegrove v The Queen (supra).

45 Whilst it was proper to take into account the actual consequences which flowed from the criminal act of the respondent (see Wise v R [1965] Tas SR 196 at pp201-202 and 209), the learned judge was therefore obliged to keep in mind that, because of the jury's verdict, the respondent had to be dealt with upon the basis that he neither intended or foresaw bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause serious injury to health (see the meaning of "grievous bodily harm" in s1) nor that he intended to maim, disfigure or disable. Therefore the question on count 2 became one of the appropriate sentence for this respondent who had not meant to cause serious injury to Mr Allie's health, nor had he foreseen it, but he had intended some minor wound with the knife, or had foresight that a wound might result, and the consequences of his acts went close to bringing about the death of the victim. The attack was unprovoked and perpetrated upon an unarmed householder within his own home. The knife belonged to the householder and presumably was taken up by the accused while in the kitchen. The evidence was insufficient to justify a finding that the respondent took hold of the knife for the purpose of attacking the householder.

46 At the time of the commission of the crimes the respondent was aged 18 years and at the time of sentencing he was 19. He had no significant prior convictions. At the time of the crimes he was substantially affected by alcohol and drugs and had excessively used those substances over a significant period before.

47 A pre-sentence report contained mitigatory aspects and signs of encouragement for his future. He was a pupil of average ability at high school. Generally, his school records were positive, notwithstanding that he did on occasions manifest some disruptive and attention seeking behaviour. Shortly after leaving school at the end of 1985, he obtained Christmas employment at a city retailing store and early in 1986, commenced work for a company as an apprentice butcher, completing about 2½ years of his indentures until his custodial remand for these crimes caused the suspension of the apprenticeshi p It is anticipated that he will be able to complete his apprenticeship when released from custody. He had a reasonable work record with his employer.

48 He abused alcohol and drugs from the age of 16 and some guidance and supervision under probation might assist him in this regard. According to the probation officer, he "is quite philosophical about his time in custody and seems able to make the best of it. He intends to complete his apprenticeship although he realizes that upon his eventual release it may not be possible to complete his time in the Hobart district. Whilst he acknowledges the support by his family during his present predicament, he has come to the realization that continuation of his previous life style and choice of associates would be bound to lead him into further trouble. He seems to have the capacity to make the changes required to be successful in pursuing his chosen goals. Certainly his present demeanour whilst in prison would indicate this to be the case". There is much encouragement in the probation officer's conclusion.

49 The learned trial judge described these crimes collectively as being very grave. Notwithstanding the matters which were mitigatory, his Honour stated that he was convinced that severe punishment was required both as a general and personal deterrent. He decided that it would be inappropriate to suspend any part of the sentence, but did not explain why.

50 Youthfulness alone does not provide immunity from custodial sentences, nor indeed substantial ones. The very nature of some crimes requires imprisonment, even for the youthful offender; Gray v Strickland, unreported 44/1978, R. v Weaver (1973) 6 SASR. 265 and Goold v McKenna, unreported 41/980. But taking into account that it must be assumed that the respondent did not intend to cause, nor did he foresee, that serious injury to health would result, and that he should be treated as a virtual first offender, and also taking into account the other mitigatory aspects to which I have referred, I am of the opinion that the sentence of 4½ years' imprisonment was excessive, notwithstanding the near fatal consequences. I am also persuaded that taking into account his good employment record, the prospects of him completing his apprenticeship, his young age and prior good record, and the encouraging views of the probation officer in his pre-sentence report, that he should be encouraged to rehabilitate himself by providing a suspension of part of the appropriate sentence of imprisonment and by assisting him with supervision on his release from prison. For these reasons I conclude that the sentence was manifestly excessive and should be set aside.

51 I would grant leave to the respondent to appeal against sentence and allow his appeal, substituting for the one imposed by the learned trial judge a sentence of 3½ years' imprisonment to date from 27 January 1989, the last twelve months of which should be suspended upon condition that he commits no offence involving violence to the person for a period of two years following his release from prison. I would also make a probation order for that period of two years, requiring him to be under the supervision of a probation officer and to obey his reasonable directions.