Read v Tasmania [2016] TASCCA 8

Criminal Law - Particular offences - Offences against the person - Acts intended to cause or causing danger to life or bodily harm or serious injury - Sentence - Wounding with subjective recklessness.

Judgment Number: [2016] TASCCA 8

1. Sentence of 9 months' imprisonment, with 7 months thereof suspended, imposed on 25 February 2016, quashed.

1. Substituted sentence of 37 weeks' imprisonment, wholly suspended on condition that the appellant commit no offence punishable by imprisonment for a period of 2 years from his release from custody on 8 March 2016.

1. On 1 June 2016 this Court made orders allowing this appeal, quashing a partly suspended sentence of imprisonment, and substituting a wholly suspended sentence of imprisonment. Details of the quashed and substituted sentences appear in the judgment of Pearce J. My reasons for joining in the orders made on 1 June are identical with those stated by Pearce J.

1. I agree with Pearce J. The reasons stated by his Honour accurately reflect my reasons for joining in the orders made.

1. This is a sentencing appeal. On 3 February 2016 the appellant, Jack Read, pleaded guilty to wounding. He was sentenced by Tennent J to imprisonment for 9 months, 7 months of which were suspended for 2 years. Her Honour also ordered that the appellant, on his release, perform 100 hours of community service.
2. The sole ground of appeal is that the sentence is manifestly excessive. Following the hearing of the appeal on 1 June 2016, I joined in the making of orders allowing the appeal, quashing part of the sentence, and substituting a new sentence. The orders reflect my view that the learned sentencing judge erred by failing to wholly suspend the sentence of imprisonment she imposed. Apart from taking into account the 13 days the appellant spent in custody after being sentenced, the sentence is otherwise unaltered. These are my reasons.

1. During the night of 19 April 2014, the appellant went with his girlfriend to the home of a mutual friend in Moonah. Other long-term friends were also there. In the course of the evening a lot of alcohol was consumed, including by the appellant. At some stage, a heated argument developed between the appellant and another man. As a result of the argument the appellant left the house with a male friend, leaving his girlfriend still at the party. After retrieving his dog from another nearby house, the appellant and his friend intended to walk home. They walked back past the party house because it was on the way. The appellant asked his friend to go inside to retrieve some alcohol which had been left behind. The appellant waited outside. He was holding a glass bottle of Jack Daniels from which he had been drinking. While he waited the appellant heard raised voices, including that of his girlfriend. He thought that others still at the party were talking about him. He shouted out, "If you've got something to say, come and say it to my face". The complainant, who had been inside, came to where the appellant was standing, followed by another man. The complainant told the appellant to "fuck off". The appellant struck the complainant to the face with the bottle. The bottle smashed, cutting the complainant's lip, under his eye and his forehead, thus wounding him.
2. After this blow was struck, the appellant immediately dropped the remnants of the bottle. He was set upon by others, including the complainant.

1. The principles which limit the circumstances in which intervention of an appellate court is justified on appeals on the ground of manifest excess or inadequacy of sentence are set out in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8]. This Court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 per Kirby J at [57]-[60]. It must be established that, taking all matters relevant to sentence into account, the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the broad sentencing discretion: Bresnehan v The Queen [1992] TASSC 55; 1 Tas R 234 at 242; Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Postiglione v The Queen [1997] HCA 26; 189 CLR 295 per Kirby J at 336; Hili v The Queen [2010] HCA 45; 242 CLR 520 at 539. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6].

1. The appellant did not contend that the learned sentencing judge erred by imposing the sentence of imprisonment. The critical issue in the appeal is whether the decision to not wholly suspend the sentence made it manifestly excessive. This is a case which illustrates the complex nature of the sentencing process: Spaulding v Lowe [1985] TASSC 4 per Underwood J (as he then was). As was stated in the joint decision of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 at 476:

"However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."

1. Sentencing requires the balancing of diverse and often conflicting objectives. It involves the exercise of judicial discretion in which the force of each of those sentencing objectives is weighed against the other, in light of the circumstances surrounding the commission of the crime and the personal circumstances of the offender.

1. At the time of the crime the appellant was aged 21. He was 23 when sentenced. Had had no prior convictions of any nature. He completed secondary school and held steady employment until commission of the crime. He did not use illicit drugs. During the period leading up to the crime he was experiencing some transitory difficulties in his personal life which led him to begin drinking heavily. He had found out his girlfriend had been unfaithful to him, and he was upset by serious problems his mother was having in her own relationship.
2. The appellant was entitled to mitigation from his plea of guilty. The learned sentencing judge correctly accepted that the appellant was remorseful. Although he left the scene after he had struck the complainant, it was at the urging of his girlfriend and to escape further conflict with those who had set upon him. He presented himself to the police station at Glenorchy at 8am the following day. He was entitled to expect that eventually he would have been contacted, but at that stage the police knew little of what had happened the night before. He was interviewed twice. He admitted his conduct. He told the police that he was immediately shocked at what he had done and said, "I didn't think I was capable of doing anything like that". Since the crime, he had taken real steps to return his life to order. He terminated the relationship with his girlfriend and gave up drinking alcohol. His counsel told the sentencing judge that the appellant was so upset by what had happened that he had been unable to continue with his employment. Although other employment options are available to him, he was given an exemption by Centrelink from looking for other work until these court proceedings are determined. Genuine remorse, when demonstrated, is a mitigating factor: Neal v The Queen [1982] HCA 55; 149 CLR 305 per Murphy J at 314. That is so because it indicates realistic prospects of rehabilitation and a reduced need for specific deterrence: Cameron v The Queen [2002] HCA 6; 209 CLR 339 at [65]; Phillips v The Queen [2012] VSCA 140; 37 VR 594, 222 A Crim R 149; C D v The Queen [2013] VSCA 95.
3. In my opinion, although the appellant had reached adulthood, his age at the time of his crime was still such that the principles applicable to young first offenders should be applied to him. There is a high public interest that young offenders be rehabilitated. The youth of an offender does not necessarily dominate all other relevant matters and does not of itself provide immunity from custodial sentences: Spaulding v Lowe (above). It is not a principle of universal application that actual imprisonment is always inappropriate for young first offenders: Goold v McKenna A4/1980. However, the importance of youth as a sentencing consideration has long been emphasised by sentencing and appeal courts in this State and elsewhere. Courts have long recognised that, generally speaking, the youthfulness of an offender is always a ground for extending leniency. In Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13; 20 Tas R 399 this Court dealt with an appeal asserting that the sentences imposed on offenders aged 20 and 21 for aggravated robbery were manifestly inadequate. The sentencing principles applicable to youthful offenders were applied. Evans J, with whom Porter and Wood JJ agreed, set out the principles at [13]-[18]. The same principles should be applied in this case. Imposition of an actual prison sentence on a young offender is likely to increase, rather than decrease, the chance of re-offending. In Jones v Fleming [1956] TASStRp 20; [1957] Tas SR 1, Burbury CJ said, at 4-5:

"The modern approach to the juvenile offender as recognized by the courts implies the realization that a juvenile offender should be given every reasonable opportunity to reform, rather than that he should be exposed to the possible corrupting influence of other inmates of the gaol and thereby be set on a path of crime ...

In the case of a young man of this age who has had no previous conviction involving dishonesty or previous conviction of a serious crime, he should not be sent to gaol unless the nature of his crime is such that it is clearly the duty of the court to give effect to the deterrent aspect of punishment as outweighing other factors."

1. In Lahey v Sanderson [1959] TASStRp 10; [1959] Tas SR 17 at 21, Burbury CJ returned to the same issue:

"It is because the public interest is best served if an offender is induced to turn from criminal ways to an honest living that a court rarely sends a youth to gaol except in the case of crime of considerable gravity (such as a crime involving violence), or in the case of a persistent offender who has shown himself not amenable to disciplinary methods short of gaol. The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the courts in England, Australia, and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed. It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility."

1. In Gray v Strickland A44/1978, Nettlefold J referred with approval to the following passage from the Court of Criminal Appeal in England in Smith's case [1964] Crim LR 70, a passage also later adopted in 1987 by the Court of Criminal Appeal of this State in Harris v The Queen A67/1987, and which I would also adopt:

"In the case of a young offender there can hardly ever be any conflict between the public interest and that of the offender. The public have no greater interest than that he should become a good citizen. The difficult task of the court is to determine what treatment gives the best chance of realising that object. That realisation is the first and by far the most important consideration."

1. A sentence of actual imprisonment should be a sentence of last resort, particularly for a young first offender, and is to be imposed only where alternative punishment is inappropriate: Williscroft v Hibble [2002] TASSC 88 at [16]; Mannie v Hibble [2006] TASSC 55 at [6].

1. There are, undoubtedly, some crimes which are so serious that an immediate sentence of imprisonment is required despite an offender's youth and lack of prior convictions. As was suggested by Burbury CJ in Lahey v Sanderson, serious offences of violence are an example. In the vast majority of cases, the crime of wounding results in a custodial sentence: Director of Public Prosecutions v Chatters [2011] TASCCA 8; 21 Tas R 26; 218 A Crim R 156 at [66] referring to Warner, Sentencing in Tasmania, 2nd ed, pars11.305-11.306. Conviction requires proof that an accused person either intended to wound, or subjective recklessness; that is, foresight by the accused of the likelihood that wounding might be caused: R v Bennett [1990] TASSC 23; Tas R 72 at 81; Vallance v The Queen [1961] HCA 42; 108 CLR 56; Standish v The Queen [1991] TASSC 83 at [22]; 61 A Crim R 364 at 372; Hurst v Tasmania [2011] TASCCA 12. In such cases, deterrence of the individual offender, deterrence of others who might be minded to commit similar crimes, retribution or denunciation of criminal conduct, and the safety and security of the public, are important sentencing considerations. Sentencing courts frequently refer to the need to impose sentences of deterrence for alcohol fuelled violence, especially involving the use of weapons.
2. As the sentencing judge pointed out, sentencing courts commonly see cases involving infliction of wounds as a result of blows struck by persons holding a glass or a bottle. In such cases, the potential for serious physical and psychological injury is great. However, crimes of wounding of this nature do not necessarily require a sentence of actual imprisonment in every case. Professor Warner points out in her text that, on the material then available to her, most cases of wounding by striking with a glass, bottle or stubby attract a sentence of 3 to 6 months, and are often wholly suspended. The need for general deterrence is not such as to make a sentence of actual imprisonment inevitable, particularly in the case of a young person with no record for violence or any other form of serious offending. Examples offered by the appellant, and other sentencing data available to me, include many examples of sentences for similar cases, some more serious than this, which involve the imposition of wholly suspended sentences.
3. Of course, the approach taken in some other cases does not mean that the sentencing judge erred by not wholly suspending this sentence. Previous sentences give some pointer towards excess or inadequacy but do not fix a boundary within which the sentencing judge must sentence: Munda v Western Australia [2013] HCA 38; 249 CLR 600 at 615 [39]. There are many instances of the imposition of sentences of actual imprisonment for wounding. For example, in Griffith v Tasmania [2010] TASCCA 19, this Court upheld a sentence of imprisonment of 18 months with a non-parole period of 12 months imposed on a man aged 22 with a poor record for violence who struck another with a glass stubby. Professor Warner's text makes clear that while sentences are often wholly suspended, some are either not suspended or only partially suspended.

1. In this case, the sentencing judge was aware of the competing sentencing objectives. Her Honour referred to the appellant's youth and lack of prior convictions, but also to the need for a sentence of general deterrence and protection of the public. In her sentencing remarks, she said:

"Drunkenness is no excuse where criminal behaviour is concerned although it is an explanation for what might otherwise be viewed as irrational behaviour. Assaults with bottles or glass objects, often resulting in serious injury, are becoming more commonplace and sentences must be imposed to try to deter people from that sort of violence."

1. Counsel for the Crown submitted that by suspending 7 months of the 9 month sentence, the sentencing judge struck an appropriate balance between the need for deterrence and the reform and rehabilitation of the appellant.
2. There is some force in the Crown's submission. Nevertheless, after earnest consideration, I concluded that the circumstances of this crime and the circumstances of the appellant required that considerations of general deterrence, punishment and denunciation were subordinated to the appellant's prospects of rehabilitation. Despite her Honour's wide sentencing discretion, the relative objective seriousness of the appellant's crime distinguishes it from a case which justifies the imposition of an immediately effective sentence of imprisonment on a remorseful young first offender with good prospects. In simple terms, and with respect to the sentencing judge, the decision to send this young man to prison for this crime was an error justifying appellate intervention. Many of the aggravating factors which commonly accompany commission of a crime of this nature were absent in this case:
   • The appellant's act was a single, spontaneous, unplanned and unpremeditated blow. The appellant did not return to the house looking for trouble or intending violence. The blow was an instantaneous reaction in anger. The Crown did not assert that the appellant intended to wound. His plea thus carries an admission that he foresaw the likelihood of wounding. It is hard to imagine that a person who strikes another forcefully to the head or face with a bottle or glass would not foresee the risk that the victim would suffer a cut. Spontaneous angry reactions of this nature are to be discouraged, but this is not a case where the appellant acted after the opportunity for reflection.
   • The appellant did not go inside the house. The blow was inflicted after the complainant, a bigger and stronger man, had come from inside the house to where the appellant was standing, aggressively approached the appellant and told him to "fuck off". The appellant may have made a pest of himself, but was not the initial aggressor. He did not claim that he believed that force was necessary to defend himself, but the Crown did not dispute that the blow was struck as a response to the appellant feeling threatened. The submission of his counsel to the sentencing judge was that the appellant "did feel threatened" but "accepts that he acted in a way which far exceeded the bounds of self-defence if that defence had been open to him ...".
   • Once the blow was struck the appellant immediately desisted. There was no sustained attack.
   • Even though the blow was struck with enough force to break the bottle, the wounds suffered by the complainant were not particularly serious. The cut below his eye required two stitches. The cut to his lip required four stitches. The cut to his forehead required no further treatment. All the cuts healed with "minimal scarring". There was no evidence to suggest that the complainant suffered any other ongoing impact. He chose not to make a victim impact statement. I do not intend to understate the seriousness of the injuries suffered by the complainant. No doubt the incident was traumatic for him. Nor do I overlook that a single blow with a weapon like a glass or bottle could cause serious and disabling injuries. Fortunately, however, that did not occur in this case. The complainant recovered and suffered no serious or long-term harm. The level of harm caused was not significantly greater than the minimum necessary to constitute the offence. The sentencing judge correctly pointed out that this was "more as a result of good luck than by design", but the results of a crime are a relevant sentencing consideration.

1. I am persuaded that, when all matters relevant to sentence are taken into account, manifest excess is plainly apparent. It is a case which demanded a sentence giving priority to rehabilitation of the appellant. A sentence no more than a suspended sentence, combined with community service, was all that was necessary to meet the need for a sentence of denunciation and deterrence.
2. As to the contention that a wholly suspended sentence is not sufficient deterrent or punishment, I again respectfully adopt the passage in the reasons of Evans J in Director of Public Prosecutions v Broadby, Cockshutt and Woolley at [16]. His Honour remarked on the imposition of a suspended sentence on a young offender in the following terms:

"Whilst I appreciate the reality of and the significance to the sentencing process of the community's perception that an offender who receives a suspended sentence 'walks free', I am in no doubt whatsoever that when such a sentence is appropriate it is the community that benefits. As explained by Crawford J (as he then was) and Slicer J in Attorney-General (Tas) v Blackler [2001] TASSC 27; (2001) 121 A Crim R 465, at 470 par[15]:

'If leaving out of prison a young person who has not previously appeared in a court for offences results in the offender not re-offending, then the public will have been well served by the sentence which was selected. If, in breach of a sentence of imprisonment suspended on a condition of good behaviour, the offender re-offends within the period of suspension ..., then the offender is likely to serve the imprisonment which was suspended, in addition to suffering punishment for the subsequent offence or offences. In such a case, what the public may regard as a "real" punishment, has not been avoided'."

1. The Sentencing Act 1997, s 24(1), now makes every suspended sentence subject to a condition "that the offender does not commit another offence punishable by imprisonment during the period that the order [suspending the whole or a part of a sentence] is in force." If that condition is breached, then a court to which an application for breach is made must activate the sentence held in suspense unless of the opinion that it would be unjust. It is not to be overlooked that her Honour also ordered performance of 100 hours of community service. In this case there is every reason to believe that remission from actual imprisonment, combined with the requirement for community service and the expectation that the sentence will have to be served if the appellant re-offends, will have sufficient deterrent effect, while allowing the appellant the opportunity for reform and rehabilitation: R v Percy [1975] TASStRp 5; [1975] Tas SR 62, per Neasey J at 73.

1. Upon making the order allowing the appeal, it fell to this Court to re-sentence the appellant. I concluded that the 9-month sentence of imprisonment imposed by her Honour is for the appropriate term, but should have been wholly suspended. To provide for sufficient specific and general deterrence, I would also have substantially increased the number of hours of community service the appellant was required to perform. However, between the imposition of the sentence and determination of the appeal, the appellant spent 13 days, near enough to two weeks, in custody. The appellant was taken into custody on 25 February 2016, the day of sentence, but admitted to bail pending this appeal on 8 March 2016. Thus, it was appropriate to take account of that period of custody by reducing the head sentence by 2 weeks from 9 months (39 weeks) to 37 weeks, and by not increasing the number of community service hours.
2. For those reasons I joined in orders quashing the sentence of imprisonment and re-sentencing the appellant to imprisonment for 37 weeks, wholly suspended for 2 years from 8 March 2016, subject to the condition imposed by law that during that period the appellant not commit any offence punishable by imprisonment. The order originally made by the sentencing judge requiring the appellant to perform 100 hours of community service, some of which has already been performed by the appellant since his release, is not disturbed.