R v Dowie [1989] TASSC 44

"1 STATEMENT OF CRIME

First Count

AGGRAVATED BURGLARY - Contrary to Section 245 of the Criminal Code.

PARTICULARS

RODERICK BUCHANAN DOWIE at Reedy Marsh in Tasmania on or about the 28th day of February, 1989 entered as a trespasser a building namely a dwelling house occupied by Ashley David Hallam with intent to commit the crime of assault therein and whilst committing that burglary he offered violence to the said Ashley David Hallam by pointing a shotgun at him and saying the words 'I am going to kill you' and by moving towards the said Ashley David Hallam and pushing the end of the barrel into his stomach.

2 STATEMENT OF CRIME

Second Count

ASSAULT - Contrary to Section 184 of the Criminal Code.

PARTICULARS

RODERICK BUCHANAN DOWIE at Reedy Marsh in Tasmania on or about the 28th day of February, 1989 at a time subsequent to that in Count 1 unlawfully assaulted Ashley David Hallam by pointing a shotgun at his forehead and by saying the words 'I am going to kill you. You ripped me off you bastard', by pushing the shotgun into his cheek near his eye, and hitting him on the head with it, by prodding him on the head and neck with the shotgun, by discharging the shotgun in the near vicinity of his head, and pushing the shotgun into his neck, by hitting him around the head with the shotgun, and by saying 'who did it', by pushing the shotgun into his cheek near his eye and saying 'if you don't tell me, you're a dead man', by pointing the shotgun at his head and saying 'right, this one's for you' by pointing the shotgun into his cheek, by moving the shotgun from his cheek to near his ear, by discharging the shotgun, by pushing the shotgun into his neck and saying 'stay still your time is up', by jabbing him in the chest with the shotgun and saying 'anything else happens, and it's instant death'."

3 The Attorney-General applied for leave to appeal against the sentence upon the single ground that it was "manifestly inadequate having regard to all the circumstances of the case".

4 The right of the Crown to appeal against sentence is provided for by the Code, s401(2):

"The Attorney-General may appeal to the court -

5 Section 402(4), applicable to the determination of every application for leave to appeal against sentence whether made by a convicted person or the Attorney General, provides:

"On an appeal against sentence, the court, if it is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor and in any other case shall dismiss the appeal."

6 The above provisions have not been amended since they were first enacted in the Criminal Code on the 4 April 1924. In the same year, legislation giving the Crown a right of appeal against sentence was enacted in New South Wales. See the Criminal Appeal Act 1912 (NSW) s5D. At that time, apart from Tasmania and New South Wales, Crown appeals against sentence were unknown in Australia. However, since then, each State and Territory has enacted legislation providing for Crown appeals against sentence. In New Zealand, such appeals were introduced by legislation in 1961. Until the passage of the Criminal Justice Act 1988 (UK) there was no Crown right of appeal against sentence in the United Kingdom. It appears that there was considerable opposition to that legislative change which came into force only in February this year. See "Do We Need a Prosecution Appeal Against Sentence" JR Spencer [1987] Crim LR 724.

7 Despite the fact that a Crown right of appeal against sentence has existed in this State for over 60 years, I have been unable to discover any reported case in which this Court has examined in detail the principles governing the exercise of the court's discretion on the determination of such an appeal. In R v West CCA 31 March 1958, Crisp J said at p1 of his reasons for judgment:

"Appeals of this description are rare and properly so, but happily there is no doubt as to the principles which should be applied. Subject perhaps to some difference in emphasis whether the appeal be by the Crown or by the person convicted against severity, the principles are the same. They were stated by the High Court in House v The King 55 CLR 505 and repeated in Cranssen v The King 55 CLR 518 and in Harris v The Queen 90 (CLR) 654. [His Honour then cited a passage from Harris's case.] Where, however, the court is asked to review an exercise of clemency while the principles remain unchanged there is likely to be some reluctance in their application in accordance with the general principle of resolving doubts in favour of one whose liberty is at stake". [My underlining]

8 His Honour's reference to "difference in emphasis" and reluctance to apply the principles applicable on a review of an exercise of discretion in the case of an application by the Attorney General, find expression in later judgments from other jurisdictions. In his reasons in West's case, the learned Chief Justice (Gibson J concurring) drew no distinction between Crown appeals and convicted persons' appeals against sentence and applied the principles expressed in Cranssen and Harris.

9 In R v Timbs CCA 11/1974 the only member of the court to refer to the proper approach to a determination of an Attorney General's application for leave to appeal against sentence was Neasey J At p5 he referred to West's case and the passage from Harris v The Queen cited by Crisp J in that case. His Honour then said that the principles set out in the cited passage apply "when the Court of Criminal Appeal in Tasmania is considering an appeal against sentence whether by a convicted person or by the Crown". His Honour made no reference to "difference in emphasis" or a reluctance to apply the principles on a review of an exercise of the discretion in the case of an application by the Crown.

10 In R v Thomas, CCA 201975 Chambers J, with whose reasons for judgment the other members of the court concurred, said at p4:

"It is clear that the principles to be applied by the court in determining whether or not leave should be granted to appeal against a sentence are the same whether the applicant be a convicted person or the Crown. In R v West, an unreported judgment of this Court delivered on 31st March 1958, Crisp J (at p1 of his judgment) said:

'Appeals of this description are rare and properly so but happily there is no doubt as to the principles which should be applied. Subject perhaps to some difference in emphasis, whether the appeal be by the Crown or by the person convicted against severity, the principles are the same.'

See also R v Butler [1971] VicRp 109; (1971) VR 892 where the Full Court of the Supreme Court of Victoria held that on an appeal by the Crown against sentence, the established principles applicable on appeals against sentences by convicted persons are to be applied in resolving the question whether the court thinks a different sentence should have been passed. See also R v Liekefett [1973] Qd R 355."

11 In R v Percy [1975] Tas SR 62 Neasey J was the only member of the court to consider the principles relevant to the determination of a Crown appeal against sentence. His Honour said at p70:

"The principle upon which decision in this application for leave to appeal must turn has been stated time and again by this Court and many others. The principle is the same whether the applicant be a convicted person or the Crown - R v Butler (supra); R v Liekefett (supra); R v West (infra); R v Thomas (supra).

The application is from the exercise of a discretion and the sentence may only be set aside if it can be shown that the primary judge made an error in exercising the discretion - if, for example, he 'acts upon wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts ...' per Dixon, Evatt and McTiernan JJ in House v The Queen (supra); Cranssen v The King (supra) and Harris v The Queen [1954] HCA 51; (1954) 90 CLR 652."

12 His Honour did not advert to any additional consideration relevant to the exercise of the discretion in the case of a Crown appeal but, from the report of the case, it does not appear that there was occasion to argue the matter. The other members of the court made no reference to this question.

13 So far as I am aware, this Court has not discussed the principles applicable upon the determination of an application by the Attorney General for leave to appeal against sentence since Percy's case although the question was raised in a judgment of mine in R v O'Brien CCA 43/1987.

14 Restraint on intervention by a Court of Criminal Appeal on a Crown Appeal against sentence was referred to by Barwick CJ in Peel v The Queen [1971] HCA 59; (1971) 125 CLR 447 at p452 where the learned Chief Justice described such appeals as "[cutting] across honoured concepts of criminal administration". After acknowledging Parliament's undoubted right to make provision for Crown appeals against sentence his Honour went on to say:

"But, in considering whether general words of an enactment are so apt [to give the Crown a right to appeal against sentence] that unusual nature and the singularity of the particular right of appeal ought, in my opinion, to be borne in mind."

15 In a later decision, Griffiths v The Queen [1977] HCA 44; (1976) 137 CLR 293 the learned Chief Justice said at p310:

"On my view of the proper meaning of s5D in the context of the Criminal Appeal Act, 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."

16 A Crown right of appeal against sentence was introduced in Victoria in 1971. The first reported decision of the Victorian Full Court to discuss the statutory provision is R v Butler (supra). The court held that the established principles applicable to appeals against sentence by convicted persons applied to the determination of appeals against sentence brought by the Crown. This initial proposition has been affirmed in Victoria. See for example, R v Mitchell [1974] VicRp 75; [1974] VR 625 at p630; R v Dole [1975] VicRp 75; [1975] VR 754 at pp760-761; R v Tutchell [1979] VicRp 24; [1979] VR 248 at pp250-252. However, it should be noted that the Crown right of appeal in Victoria is constrained by the provisions of the Crimes Act 1958 (Vic), s567A which provides:

"Where sentence is passed on a person convicted on indictment ... and the Director of Public Prosecutions considers that a different sentence should have been passed and is satisfied that an appeal should be brought in the public interest the Attorney General, on behalf of Her Majesty, may appeal to the Full Court against the sentence passed on the conviction unless the sentence is one fixed by law."

17 In Western Australia, the Chief Justice said in R v Peterson [1984] WAR 329 with reference to the Criminal Code (WA) s688(2)(d) at p330:

"The principles to be applied on an appeal brought by the Crown against sentence under that provision can now be taken to be settled by the decisions of this Court. They are in all respects identical to the principles which other courts in Australia apply under like provisions. A clear statement of those principles is to be found in the reasons of the Federal Court of Australia in R v Tait (1979) 46 FLR 386 at 387-88 (Brennan, Deane and Gallop JJ) as follows:-

'The relevant provisions of the Federal Court of Australia Act do not provide any basis for distinguishing between the general principles to be applied by the court on a Crown appeal against sentence and the principles to be applied on an appeal against sentence by a defendant. The principles which limit the exercise by an appellate court of its jurisdiction with respect to a discretionary sentence apply in each class of case. Those principles were expressed in Harris v R [1954] HCA 51; (1954) 90 CLR 652, which was followed by this court in Kovac v R (1977) 15 ALR 637, and which (at 642-3) contains a citation from Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 at 519-20: "...the appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority."

An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in which the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v R [1913] HCA 32; (1913) 16 CLR 336 at 339-40; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at 249; Griffiths v R [1977] HCA 44; (1977) 137 CLR 293).

Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across "time-honoured concepts of criminal administration" (per Barwick CJ, Peel v R [1971] HCA 59; (1971) 125 CLR 447 at 452). A Crown appeal puts in jeopardy "the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal" (per Isaacs J, Whittaker v R, supra at 248). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court'." [My emphasis].

See also R v Morley [1985] WAR 65; R v Jones [1984] WAR 175.

18 In New South Wales, since the first curial consideration of the principles applicable to a determination of a Crown appeal against sentence (R v King (1925) 25 SR (NSW) 218), the Court of Criminal Appeal has consistently held that in Crown appeals and appeals by convicted persons alike, the test for detection of error is the same. See R v Whittaker (1928) 28 SR (NSW) 411 at p418; R v Geddes (1936) 36 SR (NSW) 554; Griffiths v The Queen (supra); R v Holder [1983] NSWLR 245 at pp253-254. However, this court has also held that in the case of a Crown appeal against sentence the proper exercise of the discretion sometimes requires consideration of an additional factor. In R v Holder (supra) Street CJ said at p255:

"An important element in determination of a Crown appeal is the exercise of the residual discretion to dismiss an appeal notwithstanding that error of one or other of the categories mentioned above may have been established by the Crown. This discretion is a real and live discretion. In practice, it is exercised not infrequently. It enables the court to keep an ultimate control by protecting a convicted person against unfairness or injustice if that would flow from an adverse appellate decision. It is in this ultimate discretionary field that considerations of what has been called double jeopardy are of particular relevance. Within this field, also, the court's understandable reluctance to detect manifest inadequacy may be given, so to speak, a second opportunity of operating in the convicted person's favour. I forbear from citing examples of the exercise of this discretion in favour of a convicted person lest in so doing they could be thought to have some controlling significance in a general sense. The discretion, where it is exercised, necessitates an immediate and highly subjective assessment of the circumstances of the case in hand."

19 In R v Hayes (1987) 29 A Crim R. 452, Kirby p referred to the passage from Tait set out earlier in these reasons and said at p469:

"At the heart of the suggested difference between prisoner and Crown Appeals is the notion that, in a Crown Appeal, a prisoner suffers a species of 'double jeopardy' by reason of having twice to face the prospect of sentencing and possible loss of liberty. This is the way it was ultimately put in Tait (supra) drawing on the remarks of Isaacs J in Whittaker (supra). Of course, what is involved is not a true 'double jeopardy' (for the reasons analogous to those given by Cockburn CJ in Charlesworth (1861) 9 Cox CC 44 at p53): see also D O'Connor "Criminal Appeals in Australia Before 1912" (1983) 7 Crim LJ 262 at 272. If the sentence was 'wrong' in the first place, it is upon the appeal that the only 'true' sentence according to law is passed. But in a practical sense, there is a species of double jeopardy. The prisoner's liberty, pocket and reputation are put in jeopardy both before the sentencing judge and before the appellate court; cf. Wilton (1981) 28 SASR 362 at 367. In addition, the prisoner suffers the anxiety and stress caused by the situation of uncertainty arising from the delay in resolving his or her position. cf Carngham [1978] HCA 48; (1978) 140 CLR 487."

20 In R v Anderson (1987) 32 A Crim R. 146, at p151, the learned President said:

"Furthermore, in Crown appeals against sentences said to be inadequate, special considerations have been said to apply. Amongst other things, this is because such appeals expose the respondent to a form of 'double jeopardy' in punishment. In approaching its task, the appellate court should keep in mind the reasons for restraint which have marked the approach to Crown appeals of appellate courts in Australia, New Zealand, Canada and elsewhere. Above all, it should not ignore the legitimate scope of mercy where the sentencing judge's sympathies have been reasonably attracted by the particular circumstances involving the prisoner and his offence. The particular advantages which the trial judge has in this connection must not be overlooked."

21 Slattery CJ at CL at p160 also held that a legitimate consideration in the exercise of the court's discretion on a Crown appeal against sentence was the so called element of double jeopardy.

22 In an article, "Dismissal of Crown Appeals Despite Inadequacy of Sentence" by F. Rinaldi (1983) 7 Crim LJ 306, the author reviews a number of largely unreported decisions in New South Wales on Crown appeals against sentence and at p306, refers to the circumstances in which, despite identification of error, the court has refused to interfere.

"For convenience of exposition factors which courts have invoked to justify their refusal to disturb lenient sentences can be divided into five overlapping groups: (1) where there has been delay; (2) where an unappealed sentence imposed on a co-offender is seen to create a penalty ceiling; (3) where imposition of an appropriate sentence would offend the so called 'totality' principle; (4) where the inadequate sentence is seen to have a significant prospect of 'rehabilitating' the offender; (5) where imposition of the inadequate sentence was contributed to by lack of challenge by the Crown of sentencing facts submitted by the offender or seen to exist by the trial judge."

23 The proposition that a Crown appeal against sentence involves considerations not present on the determination of a convicted person's appeal against sentence has found favour in other jurisdictions. In South Australia, where the right of the Crown to appeal against inadequacy of sentence was introduced in 1980 (Criminal Law Consolidation Act, Amended Act 1980), the question was first considered in R v Bitter (1981) 27 SASR 183. The judgment of the court referred to the long standing rule of construction that criminal statutes are to be construed in favorem libertatis. See also R v Flaherty (1981) 28 SASR 105; R v Drewett (1983) 35 SASR 344. In R v Wilton (1981) 28 SASR 362 this early expression of the proper approach on a Crown appeal against sentence was developed by King CJ (with whose reasons the other members of the court concurred) when he referred to the passage from Tait set out earlier in these reasons for judgment and said at p363:

"An appeal against sentence by the prosecution, moreover, raises considerations which are not present in an appeal by a convicted person. These are expressed by the Full Court of the Federal Court of Australia - General Division in R v Tait and Bartley (supra) in a passage with which I respectfully agree."

24 In R v Osenkowski (1982) 30 SASR 212 his Honour said at pp212-213:

"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

25 In R v Drewett (supra) the learned Chief Justice said at pp345-346:

"Mere disparity, however, even great disparity between the sentence imposed and the sentence which the appellate court would regard as appropriate, does not of itself justify allowing a prosecution appeal against sentence. I think that it is clear that appeals by the prosecution against sentence cannot be decided on the same basis as defence appeals against sentence: Griffiths v The Queen (supra); R v Bitter (supra); R v Osenkowski (supra). An appellate court should be cautious about allowing a prosecution appeal against sentence, thereby taking a second bite at the sentencing process for the purpose of imposing a more severe penalty on a prisoner. It seems to me that it should only be done where it is necessary to achieve one of the legitimate purposes of prosecution appeals against sentence to which I referred in R v Osenkowski."

See also R v Weinman (1987) 49 SASR 248.

26 The same approach to Crown appeals against sentence has been adopted in the Northern Territory. See R v Ireland (1987) 29 A Crim R. 353 at p371; R v Hogan [1987] NTCCA 6; (1987) 30 A Crim R. 399 at pp412-413; R v Bird (1988) 91 FLR 116. In New Zealand, the Court of Appeal said in R v Wilhapi [1976] 1 NZLR 422 at 424:

"The amendment [giving the Crown a right of appeal against sentence conferred by statute in 1966] does not lay down any controlling principles. The wide powers which the court has under it have been discussed in R v Bustard (unreported, Wellington 2 July 1971) and R v Pue [1974] 2 NZLR 392. It is unquestionably free to increase a sentence when it appears that the sentence is manifestly inadequate. But we think it correct to say that in practice the court requires the considerations justifying an increase to speak more powerfully than those which ordinarily might justify a reduction. In other words, the court is more reluctant to increase than it is to reduce a sentence. Moreover, this court must always be careful that it does not discourage the exercise of the fundamental right and responsibility of a trial judge, in appropriate cases, to allow the promptings of mercy to operate and, even in cases which normally call for a deterrent sentence, to conclude that the State is best served by taking a form of action calculated to encourage reformation."

27 In Queensland, Crown appeals against sentence appear to be treated in a somewhat different manner. Prior to 1975 the Criminal Code (Qld) s669A, provided:

"The Attorney-General may appeal to the court against any sentence pronounced ... and the court may in its discretion vary the sentence and impose such sentence as the court seems proper."

28 Until 1973, the Queensland Court of Criminal Appeal, in purported reliance on statements in Whittaker v The King (supra), held that the court's discretion on a Crown appeal against sentence was truly unfettered and that the section required the court to decide what is a proper sentence bearing in mind the sentence imposed in the court below. See R v McKeown [1940] St R Qd 100; R v Beevers [1942] St R Qd 230. In R v Liekefett ex parte the Attorney-General [1973] Qd R 355 the court re-examined this approach and the statements in Whittaker's case upon which it was based. The court held that the reasoning of the earlier Queensland decisions did not bind the court to any particular view as to the circumstances in which the discretion should be exercised. The court held at p366:

"That the most satisfactory approach in an appeal by the Attorney-General is that which the High Court said should be adopted in an appeal by a convicted person in the passage we have cited from House v The King (supra). So to hold, is in accordance with the views expressed by Isaacs J in Whittaker v The King (supra) at p250, and by the Court of Criminal Appeal in New South Wales in R v Cuthbert. Both appeals are from the exercise of a discretion and there is no reason why the same principles should not apply."

29 It appears that the court recognised that in Crown appeals against sentence error in the imposition of sentence was not the only factor to be taken into account for the following appears after the passage cited above:

"With this approach in mind, and also having regard to the time which has elapsed since sentence and the conduct of the respondent during that time, we have decided that the appeal in the present case should be dismissed. Delay both in lodging and hearing of the appeal must always be a relevant factor."

See also R v Saunders [1973] Qd R 532.

30 By the Criminal Code and Justice Amendment Act 1975 (Qld) the word "unfettered" was inserted in s669A before the before the word "discretion". In R v Adams (1980) 2 A Crim R. 207 the court held that the legislative intent manifested by the 1975 amendment was to "impose a standard of comparison less stringent than that involved in a consideration of whether a sentence was manifestly inadequate." (pp208-209).

31 In R v Osmond ex parte the Attorney-General [1987] 1 Qd R 429 Andrews CJ agreed observing that (p434) "the discretion to vary it rests upon disagreement as a matter of judgment for reasons of substance reflected in a variation which is not merely trivial or arbitrary". McCrossin J adopted the same approach but said at pp437-438:

"My conclusion then is that there is no statutory restriction whatsoever imposed upon the court's discretion in the case of attorneys' appeals against sentence but, nevertheless, certain considerations are inevitably involved in the feature that the court is exercising a discretionary power to interfere and is considering in the appeal the way in which another fully discretionary power has been exercised below. The court is left as the sole judge of whether to interfere and nothing compels it to do so, but in the absence of manifest misapplication of principle below, it will be disposed not to interfere unless the quantum of sentence already imposed calls, in an obvious way, for correction."

32 The court made no observations about "double jeopardy" or "reserve power" in Crown appeals against sentence but on the facts of the case there appeared no occasion to do so.

33 On the determination of a Crown appeal against sentence brought pursuant to the Code, ss401(2), 402(4) there seems no good reason to depart from the principles expressed in Tait's case (supra at pp387-388). The statements made in that case are based on sound principle and are of wide application in jurisdictions which entertain Crown appeals against sentence. Although the Code, s402(4) draws no distinction between a convicted person's appeal against sentence and a Crown appeal against sentence this court has always recognised the need to protect an accused person or a respondent to a Crown appeal against unfairness or injustice. Should there arise on a Crown appeal against sentence a real prospect of unfairness or injustice by allowing an appeal from a sentence imposed as a result of an erroneous exercise of the sentencing discretion, that fact should be taken into account and the appeal dismissed. An attempt to exhaustively define the considerations which will result in the dismissal of a Crown appeal against sentence notwithstanding the existence of error in the court below is inadvisable for each case will involve different considerations although the article by Ms Rinaldi (supra) provides some useful illustrations of the occasions on which the court will not interfere with a sentence shown to be manifestly inadequate. I turn to the facts in the present appeal.

34 The respondent was a mature, intelligent man aged 42 and without previous conviction. He was married and lived with his wife on a small farming property at Reedy Marsh. During the fortnight before the commission of the crimes the respondent had been living alone as his wife had been called to South Australia following the death there of her father. The learned sentencing judge was told by then counsel for the respondent that the respondent had found his wife's absence stressful. He said that the respondent worked very long hours, slept badly and resorted to the use of alcohol and Serepax as relaxants. However, the latter drug affected the respondent's capacity for work and accordingly, he had planted 26 cannabis plants intending to use the crop instead of alcohol and prescribed drugs to provide relief from tension and the headaches from which he was prone to suffer.

35 Early in the morning of the day on which the crimes were committed he discovered that 19 of the 26 plants had been stolen. He concluded that the only person who knew of their existence and therefore the likely thief, was Mr Hallam, then a friend who lived nearby. At 7.15am that morning he went to Mr Hallam's house to challenge him about the missing plants but found he was not there. He went unarmed. During the day his anger mounted and as he worked he started to drink alcohol. At 3.15 that afternoon he again went to Mr Hallam's house but found it unoccupied. He returned home and drank more alcohol. Towards evening he fell asleep. He awoke about 8.45pm and decided to go again to Mr Hallam's house. On the way out he saw that he had forgotten to turn on the electric fences and the possums had got into his garden. Taking his shotgun he fired two shots to frighten them away. Counsel for the respondent then put to the learned sentencing judge:

"He was on his way to Mr Hallam's, he had left the house for that purpose, he then had the gun and regrettably and tragically he decided to take that to Mr Hallam's house. And that was the first occasion he'd ever thought of doing that. He is not sure specifically why he did that, but it was, he felt that he would frighten Mr Hallam for what he done and that was his state of mind that evening. He wanted to tell him what he thought and he went there with the gun to scare Mr Hallam."

36 There was no dispute about what occurred on the respondent's arrival at Mr Hallam's house. The following is taken from the statement of facts put by counsel for the Crown:

"At approximately 10.15pm the complainant, Mr Ashley Hallam, was at his home at Farrell's Road Reedy Marsh. He was there watching television when he heard a car approach his house and heard knocking on the front door. He answered the door to a person known to him who was at the door pointing a shot gun towards him. ... At that time that the accused pointed the shot gun at Mr Hallam, he stated, 'I'm going to kill you' and he took three paces towards Mr Hallam pushing the end of the barrel into his stomach. Mr Hallam stated, 'What are you doing' and the accused yelled out, 'Sit down'. The accused then pointed the gun at the right side of Mr Hallam's forehead. At that time the accused was approximately half a metre away from Mr Hallam. The accused then said, 'I am going to kill you. You ripped me off you bastard.' Mr Hallam replied, 'I did not I don't know what you're talking about'. The accused then said 'Don't lie to me, you cunt' and pushed the barrel into his right cheek, near his eye. Mr Hallam said, 'Please, don't shoot me.' The accused then demanded a whisky and Mr Hallam got a bottle of Bacardi. At that time the accused hit Mr Hallam on the head with the barrel of the gun and said 'Crouch down.' The complainant then did so, crouched down and said, 'Please I don't want to die' and the accused prodded Mr Hallam in the head and neck with the barrel of the gun. At that time Mr Hallam was in a crouched position on his knees.

The prisoner then said, 'Don't give me that bullshit, you ripped me off for fifteen grand.' Mr Hallam said, 'Please Rod I don't know anything about it.' Dowie screamed 'Liar' and discharged the shotgun. The shot went through the kitchen window which was opened. He then pushed the hot barrel into the left side of Mr Hallam's neck, which caused a small, circular skin abrasion to his neck.

Mr Hallam again pleaded and as he did so the accused increased the pressure on the barrel, pushing the barrel into Mr Hallam's neck. There was more conversation between the accused and Mr Hallam. The accused abusing Mr Hallam, and accusing him of ripping him off. Mr Hallam again pleading and stating he knew nothing about it. The accused demanded a whisky and Mr Hallam obtained that for him. The accused then hit him around both sides of the head with the gun and told Mr Hallam to lie down on the floor and put his hand (inaudible). Mr Hallam again asked the accused not to kill him and knelt on the floor with his hands flat on the floor. The accused demanded to know who did it, and Mr Hallam said, 'If I knew I would tell you.' The accused said, 'Don't lie' and pushed the barrel of the gun into his cheek near his eye and kept the pressure on the barrel and said, 'If you don't tell me, you're a dead man.' The complainant stating, 'Honestly, I don't know.'

The accused then stepped backwards and fired the gun into the wall to the left of the complainant and then moved the barrel and pointed it straight at Mr Hallam's head, approximately four inches from his head, and said, 'Right, this one's for you.' He reloaded the shotgun with a cartridge from his pocket and pointed the gun into the complainant's left cheek and said 'Tell me who did it.' The complainant said, 'Please believe me, I don't know.' The accused pushed the barrel hard into his cheek and said, 'You're lying' and moved the barrel from his cheek to near his left ear. After that the accused then discharged the shotgun out of the kitchen window when the barrel was approximately six inches from the complainant's left ear.

The complainant in his statement, describes himself as shaking uncontrollably at that time. The accused then demanded another drink, and then pushed the gun into the left side of the complainant's neck and said, 'Stay still, your time is up.' Mr Hallam responded, 'What do I have to do to make you believe me?' The accused said, 'You liar, if one more plant is missing, you're dead, no questions asked.' The accused jabbed Mr Hallam in the chest with the end of the barrel and said, 'Anything else happens and it's instant death.' And he then backed out of the lounge room saying, 'If anything at all happens, you'll be dead, no worries.'

The accused went out of the front door and as he left he pointed the barrel then through the kitchen window from outside the house."

37 The respondent made a full and frank confession to the police following his arrest. He entered an early plea of guilty. The learned sentencing judge was given 16 references from a fairly wide spectrum of people to whom the respondent was well known. These documents corroborated counsel's submission that the respondent was by nature a responsible, honest, reliable and industrious man and that the commission of the crimes for which he appeared for sentence were totally out of character.

38 There is no doubt that the commission of these crimes constituted an extremely violent and unwarranted attack on an innocent person exposing him to a very real risk of death or serious harm even though inducement of fear and not the infliction of harm was the respondent's intention. The violence of the attack, the potential for tragedy and the outrageous anti-social nature of the respondent's conduct clearly called for the imposition of a sentence of imprisonment. The comments of the learned sentencing judge on passing sentence show that his Honour clearly recognised this fact and that the sentence must act as a general deterrent. See Nichols v The Queen CCA 28/79; The Queen v Solberg CCA 44/87. Accordingly he imposed a sentence of six months imprisonment. Whilst it might be said that such a sentence was at the low end of the range of sentences for the commission of such crimes it cannot be said to be manifestly inadequate. The aggravated burglary and assault was particularly violent and terrifying for the victim but can be likened to a serious assault arising out of a domestic confrontation. In this respect the commission of these crimes can be distinguished from those in which the attack with a loaded weapon is perpetrated upon the police or committed in a public place. In such cases the aspect of general deterrence is usually the dominating factor in the sentencing process. In the present case there was no indication that the appellant was generally a person given to commit violent antisocial acts. The crimes were committed without long term planning and constituted aberrant behaviour by the respondent. The learned sentencing judge acknowledged these factors and the unlikelihood of repetition of the criminal conduct by conditionally suspending the execution of the whole of the sentence for three years.

39 Although there is merit in the proposition that a suspended sentence does not have the same deterrent effect as an immediate custodial sentence it is nonetheless a sentence of imprisonment which, but for the special circumstances of a convicted person, would result in immediate custody and may, in the event of a breach of a condition upon which the execution was suspended have that result. See O'Keefe v The Queen (1969) 53 Cr App R 91 at p94; R v Percy (supra) at p73. There were ample reasons for conditionally suspending the execution of this sentence having regard to the respondent's antecedents and future prospects. In my view the learned sentencing judge was entitled to find that rehabilitation carried more weight than personal and general deterrence.

40 Further, in the exercise of the discretion given this court by the Code, s402(4) I consider that there is substance in the following matters:

1 The appeal raises no point of general importance in the criminal law with respect to the exercise of the sentencing discretion either generally or with respect to crimes of this class.

2 The learned sentencing judge's sympathy for the respondent, reflected in the order he made was reasonably attracted by the circumstances of the respondent and the circumstances surrounding the commission of the crime.

3 The respondent, who has not previously been to prison, has been at conditional liberty since 29 April 1989 by virtue of an order of the court. To expose him to the jeopardy of that order being quashed and an immediate custodial sentence substituted seems to me in the circumstances of this case unfair.

41 I would grant leave to appeal but dismiss the appeal.

42 On the 17 April 1989 the respondent entered pleas of guilty upon an indictment containing one charge of aggravated burglary and one charge of assault arising out of incidents which occurred at Reedy Marsh on the 28 February 1989.

43 At approximately 10.15pm that day Mr Ashley Hallam was at his home at Farrell's Road, Reedy Marsh. He was watching a television programme when he heard a car approaching the house and, soon after, knocking on the front door. He answered the door, and found the respondent standing there, pointing a shot gun towards him. The gun was loaded at the time. The respondent said, "I'm going to kill you". He took three paces towards Mr Hallam and pushed the muzzle of the gun into his stomach. Mr Hallam asked, "What are you doing?", and the respondent yelled out, "Sit down!". He then pointed the gun at the right side of Mr Hallam's forehead. He said, "I'm going to kill you. You ripped me off you bastard." Mr Hallam replied, "I did not I don't know what you're talking about." The respondent then said, "Don't lie to me you cunt", and pushed the barrel of the gun against Mr Hallam's right cheek. Mr Hallam pleaded, "Please don't shoot me". The respondent demanded whisky and Mr Hallam supplied him with some liquor. The respondent then hit Mr Hallam on the head with the barrel of the gun and said, "Crouch down". The blow on the head was apparently not a forceful blow. Mr Hallam did as he was told and said, "Please I don't want to die". The respondent then prodded Mr Hallam in the head and neck with the barrel of the gun. At that time Mr Hallam was in a crouched position on his knees. The respondent said, "Don't give me that bullshit, you ripped me off for fifteen grand". Mr Hallam said, "Please Rod I don't know anything about it". The respondent screamed, "Liar" and then discharged the shotgun. The shot went through the kitchen window which was open. The respondent then pushed the hot barrel of the gun into the left side of Mr Hallam's neck causing a small circular skin abrasion. Mr Hallam again pleaded for his life and as he did so, the respondent increased the pressure on the barrel, forcing the muzzle into Mr Hallam's neck. There was further dialogue between the respondent and Mr Hallam, the respondent abusing Mr Hallam and accusing him of "ripping him off" and Mr Hallam continuing to deny any knowledge of the matter being referred to by the respondent. The respondent demanded another whisky and that was obtained for him. The respondent then assaulted Mr Hallam by striking him around both sides of the head with the gun. These were not heavy blows. He then told Mr Hallam to lie down on the floor and to put his arms out. Mr Hallam again begged the respondent not to kill him and knelt on the floor with his hands flat on the floor. The respondent demanded to know, "Who did it?", and Mr Hallam said, "If I knew I would tell you". The respondent said, "Don't lie", and pushed the barrel of the gun into Mr Hallam's cheek near his eye. Keeping the pressure on the barrel, he said, "If you don't tell me, you're a dead man". Mr Hallam said, "Honestly, I don't know". The respondent then stepped backwards and fired the gun into the wall to the left of Mr Hallam and then moved the barrel around so that it pointed straight at Mr Hallam's head, a few inches away from his head. The respondent then said, "Right this one's for you". He reloaded the shot gun with a cartridge from his pocket and pointed the gun into Mr Hallam's cheek and said, "Tell me who did it". Mr Hallam said, "Please believe me, I don't know". The respondent pushed the barrel hard into Mr Hallam's cheek and said, "You're lying", and moved the barrel from his cheek to near his left ear. The respondent again discharged the shot gun out the kitchen window at which time the barrel of the gun was only a short distance from Mr Hallam's ear. Mr Hallam was shaking uncontrollably at this time. The respondent demanded another drink and pushed the gun into the left side of Mr Hallam's neck saying, "Stay still your time is up". Mr Hallam responded, "What do I have to do to make you believe me". The respondent said, "You liar, if one more plant is missing you're dead no questions asked". The respondent then jabbed Mr Hallam in the chest with the end of the barrel and said, "Anything else happens and it's instant death". He then backed out of the lounge room saying, "If anything at all happens you're dead, no worries". The respondent then left the house through the front door and as he walked away he pointed the barrel through the kitchen window from outside the house.

44 Mr Hallam contacted the police and the respondent was arrested at his home in the early hours of the following morning. He was interviewed by the police during which he admitted his involvement in the incidents detailed above. He said that he had not intended to harm Mr Hallam, only to frighten him. He apparently believed that Mr Hallam had stolen a number of marijuana plants which the respondent had been cultivating. He expressed some contrition for what had occurred. It is plain from the matters put in mitigation by defence counsel that the respondent was heavily affected by intoxicating liquor at the time of the offences and had been brooding on his loss of the marijuana plants since early the same morning. He had visited Mr Hallam's home on two occasions during the day but Mr Hallam was not there when he called. The visit when the offences occurred was the third visit. The respondent claims that he had not taken the shot gun with him on the occasion of the first two visits. The accused, through his counsel, again expressed contrition and regret for the offences. The respondent had no prior convictions and references were tendered to the court from a number of local residents and other acquaintances of the respondent in which it was stated inter alia that he was a hardworking, well regarded individual, and that the offences committed were completely out of character for him. Some of these references also provided corroboration for the respondent's claim that he had been under pressure as a result of his involvement with their family business during a prolonged absence by his wife who was a partner in the business.

45 On 24 April 1989 the sentencing judge imposed a single sentence of six months imprisonment but wholly suspended the execution of the sentence for a period of three years. The sentence was imposed in respect of both crimes in the indictment. The Crown now seeks leave to appeal against that sentence on the basis of its manifest inadequacy having regard to all the circumstances of the case.

46 It is plain from many decisions of this court that in serious cases of violent behaviour, particularly where that behaviour is of a kind which may be fairly described as outrageous, the prior good character and the potential for rehabilitation inherent in a lesser sentence, is of little importance when the public interest requires the imposition of a deterrent sentence to mark the court's strong condemnation of such behaviour. See for example Sheldrick v The Queen [1960] Tas SR (NC) 3; Paynter v The Queen 951964.

47 Whilst a suspended sentence is nonetheless a sentence of imprisonment, (O'Keefe v The Queen (1959) 53 Cr App R 91 at p94), the imposition of a short term of imprisonment followed by its total suspension is, "virtually of no value as a deterrent to others who might be disposed to commit similar offences" per Neasey J in Reg v Percy [1975] Tas SR 62 at p74.

48 Nothing which I have heard from respondent's counsel in the course of this application for leave to appeal has caused me to resile in any way from what I said in The Queen v Solberg No 44/1987. I venture to repeat what I said on that occasion:

"The extreme danger attendant upon an assault with a loaded firearm is obvious. When such conduct is present as a factor in some other offence, such as robbery, it is always regarded as a matter of substantial aggravation (see Osborn v The Queen 58/1970; The Queen v Smith and Hinds 78/1984). It is well recognised that violence of this kind may result in as much trauma to people threatened as a direct physical assault and battery.

This court has consistently emphasised that resort to firearms as a means of overbearing the will of others, solving disputes or seeking attention will attract a significant gaol sentence (see Nichols v The Queen 281979; King v The Queen 19/1979 and Prokopiec v The Queen 71/1982).

It is only in the most exceptional circumstances that such punitive consequences may be avoided by the offender (eg Sutcliffe v The Queen 44/1979). As Burbury CJ said with the concurrence of his learned colleagues in Pullen v The Queen 15/1972 at p2:

'It must be borne in mind that notwithstanding modern principles of individualisation of punishment, that there are still many serious crimes which come before the court in which the principle of deterrence overweighs the personal circumstances of the offender'."

49 It was submitted by counsel for the respondent that leave should not be granted to the Crown to appeal against a sentence as a matter of course. In my opinion, the correct approach was expressed by Neasey J in Percy at p70 when he said:

"The principle upon which decision in this application for leave to appeal must turn has been stated time and again by this Court and many others. The principle is the same whether the applicant be a convicted person or the Crown - Reg v Butler [1971] VicRp 109; [1971] VR 892; Reg v Liekefett [1973] Qd. R. 355; Reg v West Unreported (CCA, Tas, 31st March, 1958); Reg v Thomas [1975] Tas SR (NC) 2_._

The application is from the exercise of a discretion and the sentence may only be set aside if it can be shown that the primary judge made an error in exercising the discretion - if, for example, he 'acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or effect him, if he mistakes the facts ...' per Dixon, Evatt and McTiernen JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499, at p505. See also Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509 and Harris v The Queen [1954] HCA 51; (1954) 90 CLR 652."

50 Counsel for the respondent submitted that the court nonetheless had a residual discretion to refuse leave to the Crown to appeal even if a manifest inadequacy of the sentence imposed is established because, in undertaking a review of a sentence imposed, the respondent is being exposed to a form of double jeopardy. See The Queen v Holder (1983) 3 NSWLR p245. Whilst not disputing the validity of this view, I should record my agreement with Street CJ at p256, who said that this consideration should not be seen as having "some controlling significance in a general sense".

51 There are no doubt cases in which the Crown, whilst able to demonstrate manifest inadequacy in a sentence will be held disentitled to succeed on an application for leave to appeal on one or more of the grounds canvassed by Ms Rinaldi in her paper "Dismissal of Crown Appeals Despite Inadequacy of Sentence" (1983) 7 Crim. LJ 306. However no such grounds exist in the present case in my opinion. Even if one subscribes to the views expressed by King CJ in R v Osenkowski (1982) 30 SASR 212 at pp212-213, the criteria which he proposes have been met, in my opinion, in the case before us. Accordingly if the Crown can demonstrate manifest inadequacy in the sentence imposed I would grant leave. I turn now to the merits of the appeal.

52 Firstly let me say, I would accede to the proposition that a plea of guilty entitles the sentencing court to reduce an otherwise appropriate sentence, not only because such a plea is a concrete illustration of a genuine remorse, but also because it normally enables a considerable saving in public expense in the disposition of the case, and furthermore, on occasions it shields the complainant and other witnesses from the undoubted trauma of participation in a protracted trial.

53 I am conscious that in expressing this view I am not in accord with some of the views which fell from the South Australian Supreme Court (in banco) in The Queen v Harris [1967] SASR 316. There is, however, a line of authority expressing views inconsistent with that approach many of which cases were discussed by King CJ in The Queen v Shannon (1979) 21 SASR 442.

54 To my mind, it is distasteful and contrary to generally held notions of fairness and balance to contend that genuine contrition and remorse can and should be taken into account in mitigation, but at the same time to claim that the bare fact of a guilty plea is of neutral effect. A prisoner rarely speaks for himself and usually engages counsel to do so. Are we to give weight to the persuasive oratory of counsel expressing regret on behalf of his client, but to ignore the indisputable fact that by pleading guilty a prisoner has entirely relinquished all prospect of acquittal? In these days of legal aid and lengthy trials, acquittals are by no means uncommon, even in seemingly hopeless cases. For my part, I believe that actions speak louder than words. Furthermore, it is not without relevance to consider that an offender's regret is often born from self reproach following apprehension, rather than from genuine contrition for the crime itself. If, however, it is more comforting to justify mitigation on the basis of contrition and remorse I think such subjective attitudes of mind are more readily inferred from a plea of guilty than from protestations from the dock or the bar table. This is not to say that the effect of a guilty plea may not have different weight in individual cases.

55 Accordingly, I find myself in substantial agreement with the proposition enunciated by Wells J in Shannon (supra) at p455 as follows:

"A plea of guilty traditionally is taken into account and prima facie should incline a judge to look for grounds for leniency. But the weight that that plea has upon a consideration of possible leniency will vary enormously from case to case. At one end of the scale, it may take its place with other material that justifies substantial leniency. At the other end, it may represent a reluctant acknowledgement that no other course is open, wrung from a prisoner who is defiant of all authority and who is a confirmed misanthrope with a dangerous proclivity towards violence, cruelty, or the misappropriation of the property of others. In particular, the effect of a plea of guilty may be reduced virtually to nothing where the facts are so outrageous that the unmistakable duty of the trial judge is to make an example of the prisoner by imposing a strongly deterrent sentence."

56 In the present case I would not doubt that the respondent's plea of guilty was a manifestation of genuine repentance. Nonetheless, giving full weight to this and other relevant considerations, I am of the clear opinion that the imposition of a six months suspended sentence was manifestly inadequate in the circumstances. The respondent's unlawful conduct was not fleeting or transitory as it extended over a period of time estimated to have been between twenty and thirty minutes. It involved the deliberate subjection of Mr Hallam to a sustained period of terrorism, during which, as was intended by the respondent, he quite plainly believed that he was about to die. There is no hyperbole involved in characterising such conduct as "outrageous".

57 Whilst the respondent may have reasonably entertained some suspicion of Mr Hallam's involvement in the loss of his marijuana plants, he had nothing concrete to go on and there was nothing which Mr Hallam did when the respondent arrived at his home which could in any way be regarded as provocation for the attack.

58 The respondent is a mature man of sound intelligence. No doubt he was substantially affected by liquor, but this is a factor common to many crimes and is entitled to little if any weight as a mitigatory circumstance in respect of an offence of this kind. Indeed, it cannot be left out of account that a drunken man, wielding a lethal weapon such as a shot gun, greatly enhances the potential for disaster, particularly if the victim of the assault sees his only hope of salvation in attempting to wrest the weapon from his assailant.

59 As Bray CJ said in The Queen v Thompson (1975) 11 SASR 217 at p222:

"... there are offences where the deterrent principle must take priority and where sentences of imprisonment may properly be imposed, even on first offenders of good character, to mark the disapproval by the law of the conduct in question and in the hope that other people will be deterred from like behaviour."

60 I regard the present case as falling within this principle.

61 For my part I have considerable difficulty with the notion that to enable sentencing consistency, which is of course one of the primary aims of a sentencing judge, (see Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at pp610-611 per Mason J), the parameters apparently indicated by sentences actually imposed in previous cases for similar crimes, constitute some sort of a framework within which the impending sentence must fit or be seen to be manifestly inadequate or excessive, as the case may be. I subscribe to the view enunciated by Adam and Crockett JJ in R v Williscroft & Ors [1975] VicRp 27; [1975] VR 292 at p299, where they accepted that it is the seriousness of the criminal conduct, rather than the category of crime of which the offender has been convicted, which is of paramount importance. This view is not inconsistent with the approach taken by the Court in Lovegrove v The Queen [1961] Tas SR p106, and The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383. Rather, it places emphasis upon the fact that conduct giving rise to liability for prosecution and conviction for a particular crime, may vary greatly in its seriousness if proper account is taken of all the circumstances, including those of the offender and his victim, (if any) and the public interest. For these reasons I find the so called "tariff" approach to sentencing of little value, particularly where cases supposedly illustrative of the tariff are few, or the relevant facts are not directly comparable. A court may frequently be aided by the provision of statistical data as to sentences previously imposed in this State, especially if it illuminates the dispositions made where a particular type of relationship exists (see Tracey & Ors v The Queen 38/1987), but in my view, it cannot allow such material to overshadow or displace its own evaluation of the gravity of the offence before it in light of all the known facts and circumstances. Indeed, in some cases the very multiplicity of the examples placed before it may convince the court that the offence has become one of great prevalence in respect of which lenient sentences have had an inadequately deterrent effect.

62 In The Queen v Barber (1976) 14 SASR p388, when presented with a schedule of comparable sentences Wells J said at p392:

"With profound respect to those who think otherwise, I am constrained to say that such a schedule must usually be unhelpful, and may be positively misleading:".

63 This may be going too far. But whilst I agree that "the only tenable course for a judge is generally to keep his sentences reasonably in line with prevailing levels" (per Cook J R v B [1986] NZCA 22; (1986) 2 NZLR 751 at p753), in my view, the generally preferable approach is that to be discerned in what Neasey J said in Bridges v Quarrell 35/1976 at pp4-5 in dealing with a challenge to an award of damages in a civil case.

"Some endeavour was again made to persuade this Court notwithstanding the very firm observations on the point by the High Court in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR at p125 that we should look at particular awards of damages where there were injuries of a generally similar kind to those sustained by the appellant, in order to form some basis for comparison of the award in the instant case. This submission must be firmly rejected. In the Planet Fisheries case Barwick CJ, Kitto and Menzies JJ, in a joint judgment dealt in a considered way with similar submissions which had been made in that case. Their Honours said (p.125):-

'The judgment of a court awarding damages is not to be over borne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet's counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand.'

That is a very important expression of principle in this context, and we should be in error if we acted otherwise than in accordance with it. I think that it is a proper implication from that general statement that a judge is under an obligation to familiarize himself on a continuing basis with what the courts are doing in the field of damages awards, both here and elsewhere, not for the purpose of comparing the facts and circumstances of other cases and awards with a case for decision, but in order by absorption of 'current general ideas of fairness and moderation' to maintain and improve that distillation of experience which is to be applied in the resolution of any given case."

64 It may well be that in cases of crimes which fit into a repetitive format and which are comparatively frequent, such as burglary and stealing, a tariff may be discerned fairly readily but in cases of violence, particularly those of assault which frequently vary tremendously from each other in quite major respects, a distortion can occur in the sentencing process if a perceived tariff is applied to shackle the discretion of the sentencing judge.

65 I respectfully agree with the observations made by the Court of Criminal Appeal in Victoria in R v Glickman (unreported 19 December 1979) where they said:

"It is sometimes appropriate to speak of a 'tariff' or 'going rate' in the case of relatively simple and common crimes, but crimes of the kind with which we are presently concerned vary so greatly in their details, vary so greatly in heinousness, and vary so greatly in the circumstances of their commission that the development of a rate or range could only be achieved, if at all, after the close examination of a very large number of sentences indeed. We doubt even then if it would be possible".

Counsel for the respondent submitted to this Court that the Crown, having failed to address the sentencing judge in relation to the proper sentence to be imposed, was precluded from seeking the intervention of this Court, notwithstanding the provisions of s386(13) of the Criminal Code. I regard this submission as without merit. Whilst a prosecutor, who places before the court factual material bearing upon the circumstances of the crime and the offender, may in a sense be said to be addressing the court with respect to sentence, this is not the sense in which that phrase is used in s386(11) or (13). This conclusion is fortified by consideration of the matters mentioned in subs(12). The thrust of these subsections is to permit Crown counsel to do that which was previously frowned upon by the court, namely, to urge the court to impose upon the offender a sentence of a particular kind or duration, by reference to particular standards or principles. At the same time it is provided that a failure to do this is not to prejudice the Crown on appeal for any reason, (including such reasons as found favour with the Court of Criminal Appeal in Western Australia in The Queen v Jones [1984] WAR 175). In my opinion, s386(13) of the Code represents a deliberate attempt by the legislature to obviate the dilemma which may confront the Crown in some jurisdictions as manifested by cases such as The Queen v Jermyn [1985] 2 NSWR 194.

66 In my opinion, a sentence of six months imprisonment suspended for three years, was manifestly inadequate in the present case. Not only was the duration of the sentence itself insufficient, its total suspension substantially robbed it of any deterrent effect it may otherwise have had. I would give leave to appeal, allow the appeal and quash the sentence imposed. In substitution therefor I would impose a sentence of twelve months' imprisonment.