R v Campbell [2010] ACTCA 20

Court of Appeal (ACT)|2010-08-31|Before: Gray P, North JJ

2. The conviction be confirmed but the sentence set aside.

3. In lieu of the sentence imposed on 4 November 2009, the respondent be sentenced to imprisonment for six months to be wholly suspended forthwith from that date and a good behaviour order be made with the same conditions as were made on the original sentence.

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. On 4 November 2009, Ms Campbell pleaded guilty to an indictment containing one count that she recklessly inflicted grievous bodily harm on Mr Ransley, an offence against s 20 of the Crimes Act 1900 (ACT) which carries a maximum penalty of 10 year's imprisonment. On 17 December 2009, she was sentenced in the Supreme Court and convicted with the Court making a good behaviour order for a period of two years on conditions that she accept the supervision of ACT Corrective Services and obey all reasonable directions of such officer or officers as may from time to time be appointed for that purpose. In the course of that supervision, she be assessed for the ACT Corrective Services Cognitive Self-Change Program and, if found suitable, to participate in and fully complete that program and if found suitable and directed to do so, to participate in the ACT Health Effective Weed Control Program. In the sentence it was also suggested it may be desirable for Ms Campbell to undertake anger management and/or counselling.

3. It is from this sentence that the Crown appeals.

4. On 4 May 2010, this Court ordered that the appeal be allowed, the conviction confirmed but the sentence set aside and in lieu Ms Campbell be sentenced to imprisonment for six months which was wholly suspended forthwith and a good behaviour order made with the same conditions as imposed on the original sentence.

5. The Court indicated that it would publish its reasons later. These are those reasons.

6. The Crown appealed from the sentence imposed on Ms Campbell on the following grounds:

(a) The sentences imposed were manifestly inadequate;

(b) His Honour erred in failing to give sufficient weight to deterrence and punishment in relation to the respondent;

(c) His Honour erred in failing to give sufficient weight to the objective seriousness of the crime;

(d) His Honour erred in giving undue weight to the respondent's lack of intention to injure the victim;

(e) His Honour erred in holding that the victim had been violent towards the respondent;

(f) His Honour erred in failing to take into account an additional offence in making a sentence order for the principal offence.

7. The submissions of the appellant state that a list of additional offences under Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) was handed up and complains that it was not properly taken into account. It was said to contain one offence, namely possession of a knife without reasonable excuse. There is a reference in the transcript to the handing up of the list.

8. Section 55 of the Sentencing Act applies where an offender "has been convicted or found guilty" of the principal offence or offences before the Court. It seems to have been filed before Ms Campbell had been convicted. However, she had pleaded guilty and this may be sufficient for the purposes of the section. No sentence had been imposed so there can be said to have been substantial compliance with s 55(1)(b).

9. Despite the reference to the list in the transcript in the Appeal Book and in the submissions of both the appellant and Ms Campbell, unaccountably, no copy was included in the Appeal Book but a copy was handed up at the hearing of the appeal and received by this Court.

10. The Crown sought that a sentence be substituted requiring Ms Campbell to serve a term of immediate imprisonment.

11. The restraints on Crown appeals against sentence are well known and not in doubt. The law is that on a Crown appeal, the appellate court should exercise restraint before interfering with a sentence imposed at first instance and then only where a principle of sentencing or the objectives for which such appeals are established is made out.

12. This was well set out in R v Lappas [2003] ACTCA 21; (2003) 152 ACTR 7 where Weinberg and Cooper JJ said (at [120]-[123]):

In Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 Brennan, Deane, Dawson and Gaudron JJ said 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. 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 CJ, in Griffiths v The Queen:

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 '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 CJ saw as constituting 'error in point of principle.' (Footnote omitted)

Moreover, appellate courts have generally recognised that the element of double jeopardy in such appeals should be reflected by providing that on a successful Crown appeal, the sentence imposed should not be as severe as that which the Court would have imposed at first instance: see R v Cobb [1999] FCA 158; (1999) 84 FCR 450 at 453.
The next matter to be noted is that an appeal against sentence involves a challenge to the exercise of a discretionary judgment. The principles governing appeals against such judgments are well known: see House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-672 and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 334. The same point was made by McHugh J in Everett v The Queen at 306 where his Honour said, in relation to whether a sentence was manifestly inadequate:

Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence.

More recently in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Gaudron, Gummow and Hayne JJ observed at par [58]:

Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residual category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.

13. Ms Campbell and Mr Ransley had been in a relationship over a two year period until January 2008. It was described as an "on-again, off-again relationship". Mr Ransley had since entered into a new partnership with another woman.

14. On the day of the offence, Ms Campbell walked by Mr Ransley's residence where he and his new partner were. Ms Campbell was shouting, though there was no evidence of what she was shouting.

15. Mr Ransley left his home and ran after Ms Campbell. As he approached Ms Campbell she produced a knife and turned towards him with her arm stretched out, holding onto the knife. The knife entered Mr Ransley's chest as he simultaneously hit out at Ms Campbell connecting with her mouth, causing a tooth to dislodge.

16. Mr Ransley, then bleeding, returned home and an ambulance attended. He was taken to the Canberra Hospital where he underwent an operation, being an urgent laparotomy and sternotomy with an oversew of his sternal vessels and right ventricular. Blood was found in his pericardium. A small laceration was found over the antero-inferior wall of the right ventricle. The injuries he suffered were serious.

17. In an interview with police who arrested her at the scene, Ms Campbell admitted that she "stabbed" Mr Ransley. During the interview she said:

When I hear really loud footsteps, like running footsteps coming up behind me, I'm either going to get a fist ready, which - oh yeah, that is really going to help, or I get a knife out.

And I chose a knife because I knew that it was Tim, I know he is at least that much taller than me.

I turned around with the knife poking out, because he was walking, he was running up with a fist out.

When Police asked the accused if she intended to stab Mr Ransley, she said:

She was then asked if she thought it dangerous to point a knife at Mr Ransley to which the accused responded:

I stabbed him, I did it. The wound on him, I did it. Do I feel bad about it? Yes. Did I do it intentionally? No. All I wanted to do was to be left alone, I've been putting up with threat from these people for so long_._

He's running around. I've turned a little bit, he's in front of me, right? I've got the knife in my hand and I don't think he's even seen it yet, he goes to punch me, and I pull the knife out, extend it.

19. The accused told the author of the presentence report that Mr Ransley and his partner had been "making nasty threats on [her] life, I felt threatened and scared as they only live a little way up the street from me".

20. There is no doubt that there are some significant subjective circumstances concerning Ms Campbell which must be taken into account.

21. Ms Campbell was adopted as a very young infant and had a stable home life until her parents separated. Her mother, however, continued to be supportive and she described her mother's new husband as "the best dad in the world".

22. Unfortunately, however, she was subject to significant sexual abuse by an older cousin and the response of the family was to ignore it. She reported her father's response as, "It happened, get over it". She was also raped by her brother when she was 18.

23. She left home at age 16, when relations with her mother deteriorated, and she did not complete her Year 10 education.

24. She supported herself initially "by performing sexual favours for men" and worked for a time in brothels, though she has not engaged in this kind of work for about nine years.

25. She has been a user of cannabis, amphetamines and heroin but claims now to be drug free. She is currently on a methadone program. That assessment was supported by her general practitioner, whose letter of reference was tendered on sentencing.

26. Ms Campbell has health problems, especially with her liver and kidneys and has had poor dental health resulting in all her teeth recently being extracted.

27. She has a criminal record from 1998 but mainly for shoplifting and without any offences of violence of any kind.

28. Ms Campbell expressed to the author of the presentence report "her abhorrence of her offending behaviours, insight into enduring [sic] impact of the offence on the victim and a claimed commitment to implementing positive change in her life". The author of the report did, however, comment that "[h]er resolve to change has yet to be demonstrated".

29. Ms Campbell lives in an ACT Housing flat and is the only female resident in the block of seven flats. She said that she felt concerned for her personal safety, particularly as other residents have serious mental health issues and many use illicit drugs rendering their behaviour unpredictable. She said she carried a knife when leaving home as protection when she needs to defend herself.

30. Mr Ransley prepared a Victim Impact Statement under Pt 4.3 of the Sentencing Act which was also tendered on sentencing.

31. It was clear that the wound inflicted was serious. He was in an induced coma and hospitalised for over a week. Mr Ransley took many months to recover. He recounted how his life had changed significantly, losing contact with many friends, many of whom still feel reluctant to visit him. He feels nervous when leaving his home and feels unsafe outside. He has recently been diagnosed with depression for which he is receiving medication. His relationship with his partner has been disturbed. He is presently seeing a counsellor.

32. In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]):

The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can - and should - draw the relevant conclusion.

See also R v Thorn [2010] ACTCA 10 (at [33]).

33. As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):

What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.

34. It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

35. The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.

36. The appellant submitted that the error was that no custodial element was included in the sentence, either the head sentence or time served. The appellant referred to a number of cases, but they were all somewhat more serious than the circumstances of this case. They do, however, confirm the seriousness with which an offence such as this must be taken by sentencing courts.

37. They are, also, somewhat helpful in identifying some of the issues. Thus, Howie J, with whom Giles JA and Latham J agreed, said in R v Thawer [2009] NSWCCA 158 (at [43]):

Although other factors are obviously relevant to an assessment of the seriousness of an offence of inflicting grievous bodily harm, to a very significant degree the seriousness of the offence will depend upon the degree of harm suffered by the victim particularly where the infliction of harm was intention of and even though the offender did not intend to inflict such serious injuries: R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94.

38. It is clear, too, that courts have often expressed concern about the use of knives. As the learned sentencing judge correctly pointed out:

As I have remarked to other people on other occasions, a knife is worse than a gun in some respects because it is always loaded. It is always loaded. And in this case it went off.

39. As was said by Osborn J in R v Derich [2009] VSC 160 (at [51]):

The penalty [to be imposed for the recklessly causing serious injury] must express the need to provide a general deterrent to such assaults and in particular assaults with knives.

40. To the same effect is the comment of Wood CJ at CL in R v Doorey [2000] NSWCCA 456 (at [26]):

The carriage and use of a knife, of any kind, in the course of an offence is regarded by the community with abhorrence.

41. The use of a knife is, thus an aggravating factor which should be reflected in the sentence imposed.

Failing to take the additional offence into account

42. As noted, the learned sentencing judge was asked to take into account the offence of possess knife without reasonable excuse which was included in a list of additional offences provided for by s 56 of the Sentencing Act.

43. Before that was done, his Honour was required to ask Ms Campbell whether she wanted the Court to take the additional offence into account in relation to the principal offence (see s 57(1) of the Sentencing Act). The answer to such a question must be clear and unequivocal: R v Griffiths (1932) 23 Cr App R 153 at 155.

44. The English practice, set out in R v Marquis (1951) 35 Cr App R 33 requires not merely that the offender has signed the relevant document, here called a List of Additional Offences (even when there is only one), but should be told what they are and himself or herself asked whether he or she admits them and desires them to be taken into account.

45. Following that case, the Victorian courts have adopted a procedure first apparently used in a trial of Mr Johnson in the County Court of Victoria on 27 August 1982 and which was approved as meticulously following the required procedure by the Court of Criminal Appeal in Victoria in R v Johnson (unreported, CCA (Vic), 4 November 1982).

46. Section 57(3) of the Sentencing Act further provides that any penalty imposed for the offence for which Ms Campbell appeared for sentence cannot exceed the maximum penalty for that offence, notwithstanding that the additional offences are taken into account.

47. Spigelman CJ has explained how a court is to take such offences into account in R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185 where (at 195 [64]) his Honour said:

The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.

48. This is, obviously, constrained by s 57(3) of the Sentencing Act and by other relevant principles of sentencing, such as the principle of totality set out in Mill v The Queen (1988) 166 CLR 59.

49. When taking these offences into account, it is not necessary for the court to indicate precisely what effect the taking of them into account has on the sentence that is imposed.

50. When s 57(3) of the Sentencing Act speaks of taking the offences into account, it means taking them into account in the same way as other matters are taken into account for the purpose of sentence. No doubt it will generally have the result of increasing the sentence about to be imposed. It may, in some cases, have the result of altering the nature of that sentence. But apart from those considerations, the additional offences will no doubt be taken into account as part of the sentencing process in assessing the character of the offender and the prospects of rehabilitation. What is clear, of course, is that the offender is not to be sentenced for the additional offences. There may be occasions when it is appropriate for a judge to refer to the effect which he gives to additional offences taken into account in that way, but it is not obligatory for him to do so.

51. The appellant complained that the learned sentencing judge had not taken the offence in the list of additional offences into account presumably because his Honour had not referred to it in the sentencing remarks.

52. There is no reference in the sentencing remarks but it is quite clear that his Honour had regard to it. He made express reference during the hearing of the submissions on sentence and thus had it in mind in assessing the culpability of Ms Campbell.

53. So long as it is clear that the offence has been taken into account, it is not necessary for the particular effect, even if it can sensibly be identified, to be expressed in the sentencing remarks.

54. In this case, the learned sentencing judge was confronted with a serious offence which had very severely injured the victim and left him with ongoing problems set out in the victim impact statement and an offender who had had a traumatic life but had shown significant remorse and insight and taken steps to bring her life under control. The author of the presentence report had also offered a positive assessment, though a cautious one, because some of the elements of that were still intentions that had not been implemented.

55. The degree of violence and the injuries caused are a very relevant factor in determining the seriousness of offences of personal violence. As was noted in R v Bloomfield (1998) 44 NSWLR 734 (at 739) even a single blow can cause substantial injuries and the offender must bear the consequences of those injuries.

56. The injuries and their consequences have been set out above (at [16] and [31]). These rendered the offences serious and deserving of a sentence that reflected this and the need for general deterrence and denunciation.

57. In addition, it is necessary to take into account the offence in the list of additional offences and this means, in this case that a somewhat greater weight should be given to general and personal deterrence and denunciation of the criminality.

58. It is true that Ms Campbell did not intend to inflict the injuries she did inflict, that would have constituted another offence, but her plea of guilty meant that she was taken to have been aware of the risk of serious injury and nevertheless proceeded to produce the knife and hold it out, stabbing the victim.

59. It is also relevant that Ms Campbell deliberately put herself in a position to come into conflict with Mr Ransley. She walked by his house, shouting.

60. The community requires that the courts do what they can to protect against violence that puts its members at risk of serious injury by sentences that denounce, deter and punish.

61. Of course, the whole circumstances of the offence must be considered, including the fact that Mr Ransley did punch Ms Campbell and dislodge a tooth. It must also be accepted that Ms Campbell did not actively attack or seek to attack Mr Ransley nor seek to stab him; as his Honour rightly said in argument during the sentencing proceedings, the gravamen of the offence was the production of the knife and the manner in which it was produced.

62. Nevertheless, whilst the conviction imposed in this case is a part of the punishment imposed by a sentence (see Henderson v McKenzie [2009] ACTSC 39 (at [49])) and is a denunciation by the Court of the offending conduct, it does not mark out the serious nature of this offence sufficiently and generally is inadequate as a reflection of the seriousness of the offence.

63. It is clear from these considerations that no sentence other than a sentence of imprisonment is appropriate.

64. Whilst it may be said that Ms Campbell had significant subjective factors that were entitled to be taken into account, the sentence imposed by the learned sentencing judge seems to have allowed the subjective factors to overshadow the need for a sentence that clearly marked the Court's disapproval of the offence and the conduct constituting it.

65. However, there are some aspects of the subjective facts that should be noted.

66. Whilst Ms Campbell has a significantly long criminal history, it included no offences of personal violence although she had experienced past relationships characterised by violence. This offence clearly shocked her and she expressed abhorrence of it to the author of the presentence report.

67. Most importantly, there was evidence from her general practitioner of a high level of motivation to live a drug-free life and to gain employment. She appeared to the author of the presentence report to be motivated and also to undertake counselling, seek alternative accommodation and to engage in appropriate programs. While she had not yet demonstrated much achievement at the date of sentencing, she had made some effort, such as having certain dental procedures which were a first step to recovering her health and enhancing her appearance so as to advance her employment prospects.

68. These were important; for the assessment in the presentence report was that she was at a high risk of further offending which may be lowered by a focused and committed effort to implement change. The report noted her resolve.

69. These matters, combined with her substantial remorse and the insight into her offending behaviour justify a finding that it is not necessary for her to serve a period of full-time custody.

70. The seriousness of the offence must be reflected in the sentence, though with regard to the principle of double jeopardy applicable to Crown appeals. The sentence must, however, also reflect the individual circumstances of the offender and pay due regard to all the purposes of sentencing set out in s 7 of the Sentencing Act.

71. For these reasons, the Court set aside the sentence and substituted it with a sentence of imprisonment to be wholly suspended with a good behaviour order which required Ms Campbell to undertake appropriate rehabilitative programs to strengthen and extend the efforts and commitment she had made.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: ACT Director of Public Prosecutions

Solicitor for the Respondent: Legal Aid Office (ACT)

(Sentencing) Act 2005

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