R v Matthew William Riddle [2010] ACTCA 8

Court of Appeal (ACT)|2010-05-25|Before: Gray P, Lander JJ, Kirby J

1. This is an appeal by the Crown against a sentence of imprisonment imposed upon the respondent in respect to a charge of assault occasioning actual bodily harm.

2. The respondent pleaded guilty, on the first day fixed for the trial, to the charge of assault occasioning actual bodily harm which carries a maximum penalty of five years' imprisonment.

3. On 14 December 2009 the respondent was sentenced to imprisonment for a term of three months in full-time detention. The respondent was also ordered to make a payment by way of reparation of $492.83 to the victim. He has served the term of imprisonment and was released on 12 March 2010.

4. The Crown complains of that part of the order which sentenced the respondent to three months' imprisonment on the ground that the sentence was manifestly inadequate. It seeks the following orders:

5. ...

(a) That the orders of His Honour be substituted by a sentence requiring the Respondent to serve a term of imprisonment, as full-time detention, which is greater than that imposed by his Honour; and

(b) Such further or other orders as considered appropriate by this Honourable Court.

(Footnotes omitted.)

5. In its submissions the Crown contended that, if this Court were of the opinion that the Court should impose a period of imprisonment longer than that which was imposed by the sentencing Judge, the sentence be suspended from 12 March 2010.

6. A Crown appeal in this jurisdiction is as of right. However, a Crown appeal should be brought only where it is necessary to establish a matter of principle or where it is necessary for the maintenance of the proper administration of justice. A Crown appeal should not be brought for the purpose of having the appeal court disagree with the sentence actually imposed by the sentencing Judge: Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 310.

7. In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Kirby J said at 341:

When first introduced, Crown appeals were considered to cut across "time-honoured concepts" of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a "matter of principle", such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced. The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate "tinkering" with sentences.

8. Thus on this appeal the Crown must demonstrate with clarity that the sentence imposed by the sentencing Judge was manifestly inadequate. It is not enough for the Crown to persuade this Court that this Court would have imposed a different sentence. The Crown must establish an error of principle on the part of the sentencing Judge, which may be demonstrated by a sentence of manifest inadequacy.

9. The respondent was born on 6 August 1984 and was at the time of commission of the offence, which occurred on 19 January 2008, 23 years of age. Notwithstanding his comparative youth, the respondent has an unimpressive history in the criminal justice system.

10. On 18 November 2003 he was convicted and fined $1,000 for assault occasioning actual bodily harm.

11. On 10 August 2007 the respondent was convicted of aiding and abetting an assault occasioning actual bodily harm and sentenced to six months' imprisonment, but was released on entering into a good behaviour bond.

12. On 2 October 2008 he was convicted of breaching that good behaviour order and sentenced to four months' imprisonment to be served by way of periodic detention. He has been convicted of a number of traffic offences, including driving whilst disqualified. He also has a number of convictions as a juvenile.

13. The respondent's parents separated when he was 15 years of age as a consequence of which he lost contact with his father until more recently. He has been unemployed for the vast majority of the time since he left school at the age of 15. He receives a Centrelink pension in the form of Newstart payments.

14. The respondent has a long history of drug and alcohol abuse. He commenced using cannabis at the age of 12 and at the age of 15 progressed to alcohol and amphetamines. He has also experimented with most other illicit drugs.

15. The respondent claims that he stopped using illicit drugs when his partner became pregnant with their first child. He was then aged 20. He lives with his partner and they have two children aged 2 and 4. They separated in 2008 for a period of nine months due to his behaviour of "partying".

16. The respondent claims that after he served the periodic detention sentence he stopped associating with his former peer group and, as a result, has stopped binge drinking and smoking large amounts of cannabis. He claims that his more recent conduct has improved his relationship with his partner.

17. The Crown and the respondent agreed upon a statement of facts relating to the offence. On 19 January 2008 the victim, Mr David Collins, stopped his vehicle in Brookes Street, Mitchell for the purpose of obtaining money from an automatic teller machine (ATM). The victim noticed a car travelling towards him with its lights on high beam so he decided not to use the ATM until the car had passed. The respondent and Brett Collins were both passengers in the back of that vehicle. The vehicle slowed and someone in the car yelled abuse at the victim who attempted to ignore the occupants of that vehicle. One or some of the occupants of the vehicle continued to yell abuse at the victim. The victim telephoned '000' because he feared for his safety. He gave details of the vehicle. The victim ran away from the vehicle which drove in front of him and cut him off. He turned and ran in the opposite direction but the vehicle drove past him and stopped again. The respondent and Collins, his co-offender, emerged from the vehicle, grabbed the victim and pulled him to the ground. The two offenders punched him with closed fists while he was being held on the ground. During the assault someone took the victim's phone and wallet containing $10.00. The victim was left lying on the ground. He suffered bleeding and bruises to his face, including his right eye. He was taken by ambulance to the Calvary Hospital for medical treatment.

18. The sentencing Judge described the attack upon the victim as "unprovoked". He said that the community was entitled to feel moral outrage at the behaviour of the respondent and his co-offender. The sentencing Judge said:

If innocent citizens cannot go about their business free from the threat of unprovoked violence from people who may be described as hooligans, our free society will be put at risk.

19. The sentencing Judge considered s 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Act) which identifies the purposes of sentencing. He considered s 33(1) of the Act which details the matters to which the Court must have regard in sentencing an offender. The sentencing Judge said that the sentence which he had to impose had to be proportionate to the gravity of the offence committed and that he should not impose a sentence that was greater than warranted by the objective circumstances of the crime. He said:

Having considered all the specified matters, it seems to me that the offender and his co-offender were equally responsible for the conduct constituting the offence; that conduct was inexcusable; the injuries sustained by the victim were quite severe (see Exhibit B) but not the worst imaginable. But no injury or threat of violence should be condoned or seem to be condoned in the circumstances. The offender was probably affected by alcohol at the time of the offence, but that cannot exonerate him for loutish behaviour warranting extreme censure.

Whilst he pleaded "guilty" at the end and says that he should "cop something for" his conduct, the offender did not show any real remorse even though in recent weeks he may have acknowledged his wrongdoing to his father.

20. The sentencing Judge would have, but for the respondent's guilty plea, imposed a term of imprisonment of four months but, because of the plea, imposed a term of imprisonment for three months. He ordered the respondent to make a reparation payment of $492.83.

21. The respondent's co-offender, Brett Collins, was also convicted of the offence of assault occasioning actual bodily harm when he pleaded guilty to that offence on 11 November 2009 in the ACT Magistrates Court. He was sentenced to six months' imprisonment which was suspended on his undertaking to enter into a good behaviour bond for a period of 12 months. The co-offender was also ordered to pay reparation in the sum of $133.60.

22. In its written submissions the Crown said that it could point to no specific error in the sentencing proceeding by the sentencing Judge. It described the sentencing remarks as a "paradigm of the sentencing process". Having made that concession, the Crown contended that the sentencing Judge should not have imposed a penalty of imprisonment of three months having regard to the fact that his co-offender was sentenced to six months' imprisonment. The Crown's contention was that the sentencing Judge failed to have regard to the parity principle which provides that there should not be a marked disparity between sentences imposed upon co-offenders which might give rise to a justifiable sentence of grievance on the part of the offender who receives the heavier sentence: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.

23. The Crown contended that the sentence imposed on the co-offender was harsher than that imposed on the respondent, even though the sentence imposed on the co-offender was fully suspended. It contended that although the sentence imposed upon Brett Collins was fully suspended, the Magistrate must have approached the sentence by considering what the appropriate immediate custodial sentence to be imposed was and then, having imposed it, by considering how that sentence should be served.

24. We do not think that this sentence could be overturned upon the basis that his Honour had failed to have regard to the parity principle. We do not think the co-offender in this case would be aggrieved by the sentence which was imposed upon the respondent.

25. This appeal must be determined by reference to the sole ground of appeal and that is whether the sentence is manifestly inadequate.

26. The proposition of manifest inadequacy is the conclusion which, as the Crown recognised on this appeal, does not depend on the identification of any error of principle, but is determined by reference to the sentence itself and by further reference to the norm for sentences of that kind of a person with a similar history to the offender: Dinsdale at 325-326.

27. In our respectful opinion this sentence was manifestly inadequate. The respondent has an unimpressive criminal history. He has twice been convicted of offences relating to assault occasioning actual bodily harm. He has a long history of abuse of alcohol and illicit drugs. This was an unprovoked and outrageous attack on a person unknown to the respondent and his co-offender who happened to be, unfortunately, in a street in Canberra at the wrong time. The respondent has shown no remorse and his plea entered on the first day of this trial did not indicate remorse or contrition. In considering the appropriate sentence to be imposed, in our respectful opinion the sentencing Judge had to have regard to both elements of deterrence, personal and general. Having regard to the respondent's criminal history, the sentence should have included an aspect of personal deterrence. The respondent has been treated mercifully by the courts until now, but there is nothing in his more recent history which would indicate that any further mercy ought to be extended to him. Moreover, any like-minded offender needed to be told by way of the example of an appropriate sentence that any conduct of the kind that this respondent admitted engaging in would not be tolerated by the Court. Of course, regard has to be had to the respondent's claim that he had changed his lifestyle consequent upon serving a sentence of periodic detention.

28. In our opinion, the sentence does not adequately address the objective facts of the matter and the need for deterrence in the imposition of this sentence. In our opinion, an appropriate sentence for the offence to which the respondent pleaded would have been a term of imprisonment of nine months. We would not have allowed any deduction for his plea which was entered on the day of his trial because, in the circumstances, it has not been shown to have any significant utilitarian value. We would not have suspended the sentence or any part of it and we would have required the respondent to serve the sentence by way of full time detention. The sentence which we would have imposed means that we are of the opinion that the sentence was manifestly inadequate. The sentence that we suggest should have been imposed would not offend the parity principle. The respondent's criminal history is much more extensive than his co-offender's. The respondent also has previously had the benefit of a suspended sentence for a similar offence.

29. That however does not mean that this appeal must be allowed. The respondent was sentenced to imprisonment and has served that sentence. He was released on 12 March 2010. It would be inappropriate now to require the respondent to serve a further six months by way of imprisonment. So much was recognised by the Crown in their submissions.

30. The Crown suggested that the appeal should be allowed and that any longer term of imprisonment should be suspended from 12 March 2010, being the date he was discharged. However, we cannot accept that submission. It would seem to us inappropriate now to impose a sentence of imprisonment to date from the date when this sentence was imposed with that part of the sentence of imprisonment after 12 March 2010 suspended. That would be inappropriate because this Court has no information as to whether or not any good behaviour order which might be required as a consequence of the order sought might have been breached by any conduct on the part of the respondent since 12 March 2010. The Crown did not contend for any other sentence to be imposed.

31. In our opinion, the maintenance of the administration of justice will be served by the indication in these reasons that this Court would not have imposed the sentence which was imposed, but would have imposed a sentence of nine months' imprisonment and an order that the appeal be dismissed.

I certify that the preceding thirty two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Hon Justice Gray and the Hon Justice Lander.

IN THE SUPREME COURT OF THE ) No. ACTCA 34 - 2009

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

33. I agree with the order proposed by Gray P and Lander J, with the sentencing indication that they give (subject to my comment at [35] below), and in general with their reasons. There are several qualifications I need to make to that agreement.

34. First, I consider that the parity principle could appropriately be called in aid by the Crown in attempting to demonstrate the manifest inadequacy of a sentence even if there is no claim made that the sentencing Judge erred in his application of that principle; the same can be said for any other matter which, while not apparently dealt with erroneously by the sentencing judge, might be relevant in determining what Gray P and Lander J describe as "the norm" for the sentence in question.

35. Secondly, I consider that some sentencing discount is generally available, even for a guilty plea on the day set down for trial, because even such a plea has utilitarian value, at least in a jurisdiction in which court resources are stretched; a trial vacated at the last moment, as well as reducing the burden on potential jurors and court staff, provides a valuable opportunity for hard-pressed judges to work on reserved judgments, at least to the extent that vacated court time is not in any case absorbed by bail and other applications listed at short notice as soon as such an opportunity presents itself. However a discount of 25% for such a late plea would generally be far too much.

36. Finally, I reserve my position on the question, which was not argued before us, whether imposing a longer sentence of imprisonment but suspending so much of the sentence as has not already been served in custody would in fact raise the difficulty envisaged by Gray P and Lander J in the operation of the good behaviour undertaking that would be required by the suspension. I agree that making a retrospective good behaviour order, even if available, would be undesirable. However, I am not persuaded that, in implementing a sentence of the kind proposed by the Crown, there would be any need to backdate the sentence imposed by the Court of Appeal to the date on which the original sentence commenced (rather than to a new date reflecting time served), nor any resulting need to purport to suspend the rest of the sentence retrospectively or to make a retrospective good behaviour order.

I certify that the paragraphs numbered thirty-three to thirty-six (33-36) are a true copy of the Reasons for Judgment herein of her Honour Justice Penfold.

Solicitor for the Appellant: Director of Public Prosecutions

Solicitor for the Respondent: Diana Burns Solicitors

(Sentencing) Act 2005

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