JUDGMENT OF: Crawford CJ, Tennent and Porter JJ

Criminal Law - Sentence - Sentencing procedure - Factual basis for sentence - Generally - Plea of guilty - Resolution of factual differences between State and accused where conflict relevant to sentence.

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, considered.

Judgment Number: [2011] TASCCA 2

2 That the sentence imposed on the appellant on 16 November 2010 is quashed.

3 That, in lieu of that sentence, it is ordered that the appellant serve a period of six months' imprisonment backdated to 30 March 2011. The execution of that sentence is suspended as from today on condition that for a period of three years the appellant commit no offence punishable by imprisonment.

4 That there be a community service order requiring the appellant to perform 100 hours of community service.

1 I agree with the reasons for judgment of Tennent J and the orders she proposes.

2 It may be inferred from the sentencing remarks of the judge that he sentenced the appellant upon the basis that the complainant did not provoke the assault, certainly not to the extent claimed by the appellant.

3 Provocation was an issue between the parties. It was a material one and it should not have been ignored. If the assault was not provoked by the complainant, the sentence should have been more severe than if the assault was provoked by him. It would have been an aggravating factor if it was unprovoked. It would have been a mitigating factor if it was provoked.

4 If there is a factual dispute between the prosecution and the defence, the sentencing officer need not resolve it if its resolution will not affect the sentence. But if its resolution will affect the sentence, the dispute must be addressed with the parties, rather than ignored.

5 In this case, the judge's duty was clear. He should have inquired of counsel what the parties wanted to do about resolving the dispute. If the Crown sought to have the appellant sentenced upon the basis that he was not provoked by the complainant, and the appellant did not accept that version of the events, the Crown would have had to support its version of the facts with evidence and prove that version beyond reasonable doubt in accordance with R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. If, on the other hand, the appellant sought to be sentenced on the basis that he was provoked by the complainant, and the Crown did not accept that version of the events, he would have had to give or adduce evidence for the purpose of proving his version on the balance of probabilities, also in accordance with Olbrich.

6 If it transpired that although neither party conceded the issue, neither wished to call evidence, or instead, they called evidence but neither satisfied the relevant standard of proof, it would have been in order for the judge to sentence the appellant on the basis that the issue was unresolved. In other words, the judge would have had to sentence the appellant upon a factual basis that did not include that he was provoked by the complainant, nor that he was not provoked.

7 In November 2010, the appellant was convicted on his plea of guilty of one count of assault and sentenced to serve a term of eight months imprisonment, two of which were suspended. He has appealed that sentence. The grounds of appeal as drawn were that the sentence imposed was manifestly excessive and that the learned sentencing judge, Blow J, did not consider an alternative to imprisonment.

8 In the course of the hearing of the appeal, it became apparent that there seemed to have been a degree of conflict between the facts as stated by the Crown to the sentencing judge and those stated in mitigation. That conflict did not appear to have been resolved. As a consequence of a number of questions asked of counsel for the appellant, counsel sought, during the hearing, to amend the grounds of appeal to include a ground 3. The application was not opposed, and that ground became as follows:

"That the Trial Judge erred in that he ought to have proceeded on the factual basis as put in the plea in mitigation in respect of the circumstances leading to the assault."

9 The new ground of appeal as worded focused on an asserted failure by the sentencing judge to sentence on the basis of facts put in mitigation by the appellant's counsel. Implicit in the ground was the assertion that, unless those facts were challenged by the Crown, if they were more favourable to the appellant than those put by the Crown, they should have formed the basis for the sentence and not the facts put by the Crown. The issue the ground raised was whether a sentencing judge had any obligation to resolve a dispute on the facts which might become apparent in the course of plea, before proceeding to sentence, where that dispute might relate to a material issue.

10 Professor Warner in her text Sentencing in Tasmania, 2nd ed, deals at chapter 2 with procedure as it relates to sentencing. In par2.310, she provides a summary of principles applicable in Tasmania in relation to fact finding by a judicial officer for the purpose of sentence. As the learned author points out:

• A judge has an independent duty to be satisfied of the factual basis for sentence;

• The Crown is not obliged to challenge an assertion made by an offender before a judge may reject it;

• An offender who wishes a favourable fact to be taken into account must satisfy the judge of that fact on the balance of probabilities if it is contraverted, or if the judge is not initially willing to act upon it;

• The Crown has an obligation to prove beyond reasonable doubt any facts adverse to an offender which he does not admit, or the judge expresses an unwillingness to accept. In the absence of sworn evidence about such facts, the judge must expressly exclude them from consideration.

"A judge or magistrate may act on a mitigating assertion that has been challenged by the prosecution without requiring sworn evidence to be given by the offender, provided he or she is satisfied of the matter on the balance of probabilities. A judge who has not been persuaded by a mitigating assertion may reject it after having given the offender the opportunity to support the assertion with evidence, but an offender may not be forced into the witness box."

The principles summarised by the learned author have been taken largely from R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, a decision of the High Court which has been referred to on numerous occasions in cases before this Court.

11 The allegation to which the appellant pleaded guilty was that he unlawfully assaulted the complainant by punching him to the left side of the face with his fist. The relevant facts put to the learned sentencing judge were as follows:

"On Wednesday, the 23rd of December 2009, the complainant, Andrew Cripps,. Was drinking with work mates at Irish Murphy's. The 20 year old apprentice carpenter was drinking at a table near the corner of Salamanca Place and Gladstone Streets with his employer, a co-worker and an off duty police officer. As the males were seated at the table the accused approached the group and accused one of the males of perving on his female companion. The accused was very agitated and stood over the off duty police officer, who tried to calm him down. The complainant returned to the table with some drinks and made a comment to one of his workmates along the lines of, 'What's this bloke up,' whereupon the accused marched over to the complainant, the complainant stood up and the two men faced each other, they were about one foot apart. The accused remained verbally aggressive. The complainant's hands were by his side.

The accused's companion was yelling at him to come away. The accused then punched the complainant once to the face with his right fist. The two men then scuffled. They moved onto the road before their respective friends were able to pull them apart. The accused paced over to the side of the road before running off. The complainant then went inside Irish Murphy's to clean himself up. Initially the complainant believed the assault to be minor and noted only numbness to his cheekbone. However, subsequently he noticed there to be movement in his cheekbone and jaw.

...

The accused declined to be interviewed but made a statutory declaration under caution, in which he claimed that he believed his female companion was upset at the unwanted attention she had received, and that he had approached the males and stood between the men and her. He admitted telling the men, 'To get fucked and not be so sleazy.' He claimed that the complainant asked him what he was going to do about it, and he said, 'It's on,' before he hit the complainant once in the face. The two had then scuffled before he wriggled free.

...

Your Honour, there are prior convictions that you will find at page 16 of the Crown papers. The accused has prior convictions for anti-social behaviour, including resisting arrest and obstructing police and disturbing the peace by fighting."

Facts put by counsel for the appellant in the course of the plea in mitigation

12 In mitigation, then counsel for the appellant told the learned sentencing judge:

"Mr Roberts is 22 years of age and lives at 520 Sandfly Road, Sandfly. He lives there with a family friend he has known for approximately 10 years. The property is owned by the friend's parents and Mr Roberts contributes to rent to the premises. He also secures full-time employment as a self-employed carpenter. On the afternoon in question, Mr Roberts, his girlfriend, with whom he had a long-distance relationship with, as she was studying law in Victoria and was down for the Christmas holidays, and another male and female were sitting outside Irish Murphy's in Salamanca.

Mr Roberts had consumed approximately three beers that afternoon and was not intoxicated. He had met the group there after work. At the table directly next to them were four males. One of the older males in the group began making sleazy, unwanted comments towards the defendant's girlfriend. The other three males began to laugh at the older man's jokes and a couple of the group began to laugh and point at the defendant's girlfriend. The defendant's girlfriend was visibly upset and uncomfortable by the comments made. Mr Roberts, angered by the situation, walked over and confronted the males.

He did tell them to stop making sleazy comments and causing trouble. At that point the younger of the males stood up. He was slightly taller than the defendant. The complainant almost stood chest to chest with Mr Roberts and said words to the effect of, 'What are you going to do about it,' and, 'To piss off.' As he was saying this he moved slightly towards Mr Roberts.

HIS HONOUR: Just a moment. Yes?

MRS SKILADIS: At that point the defendant reacted and hit the complainant to the face with a single right fist. The decision to hit the complainant was made on impulse in the midst of a tense situation. It was a single punch to the complainant. In ordinary circumstances one would expect that a matter of this nature would be dealt with in the lower court, however, as a result of the single punch the complainant suffered fractures requiring medical treatment. There are prior matters, however they are minor matters, and that is evidenced by the penalty recorded.

All matters were dealt with in the lower court and did not involve charges of assault, and all matters, as you mentioned, were dealt with by way of fine. I do not plan to go into detail in relation to those unless your Honour requires further information.

HIS HONOUR: No, I'm not asking you to.

MRS SKILADIS: Thank you, your Honour. With the benefit of hindsight, the defendant acknowledges that he did not make the best decision on the night in question, and despite attempting to defend his girlfriend's honour, he realises the better option would have been to simply ignore the rowdy group of males and their unwanted attention towards his girlfriend, and simply walk away and move to another venue. He does regret his actions and the injury caused to the complainant.

I note that the Crown's facts refer to a secondary encounter where Mr Roberts said to the complainant, 'Yeah, I got you a good one.' Mr Roberts denies saying that and when this actual incident did occur and the complainant said to him, 'do you remember me,' he, at that point in time he did not recall who he was and after he'd taken a few further steps he then realised that it was the complainant. The defendant did not turn around, and kept on walking.

I submit that at the time of the offence Mr Roberts did not fully appreciate the severity of his actions as he was not aware of the complainant's injuries resulting from the single punch. Since being charged, Mr Roberts is now aware of the impact his decisions have made, especially with the matter proceeding to the Supreme Court. A situation he has not been faced with in the past. Mr Roberts is self employed and works full-time as a carpenter. He has secured a three year contract with Jakomskie Homes. He has a very good rapport with the company and is a valued member of their team.

He has been working in the carpentry industry for five years, having last year completed his four year apprenticeship. Mr Roberts ahs been employed since leaving school in year 11, where he was offered a carpentry apprenticeship with Hansen and Yuncken through a VET course at Hobart College. Prior to that he completed high school at Taroona High. Mr Roberts earns approximately eight hundred dollars per week. Of that, eighty dollars goes towards rent; one hundred and fifty towards food; one thirty five towards a personal loan for car repayments; sixty towards petrol; fifty towards mobile phone, internet and Aurora bills; forty towards tools required for his employment, and approximately one hundred dollars on general expenses. That leaves a surplus of approximately one hundred and eighty five per week.

Your Honour, in summary, the defendant acknowledges he made a very poor decision in the heat of the moment, and if given the time again he would have simply turned his back and walked away from the situation. I ask that your Honour take into consideration the defendant's good employment prospects, and the circumstances that led to this offence. Unless I can be of further assistance to your Honour, that concludes my submission."

Differences between statement of facts and plea and discussion

13 It is apparent from the above that there were factual differences between the matters put before the Court by the Crown and those put by the appellant. It is also apparent that those differences related to matters which could impact on sentence. In the first paragraph of his sentencing comments, the learned sentencing judge summarised the facts surrounding the assault. Those remarks were as follows:

"You were drinking at a table on the footpath outside a bar in Salamanca Place when you became angry with some men at another table. You confronted one of them, stood face-to-face with him and punched him once to the face with your right fist. He was no threat to you. His hands were by his side. You punched him so hard that you caused multiple small facial fractures. You continued to fight this man and stopped fighting only when other people pulled you apart."

"You believed your victim and his companions had been behaving badly towards your girlfriend."

14 It was open to find from the facts put by the appellant and the Crown that the complainant was aware of the remarks being made by another in his group about the female who was with the appellant, that the remarks were in some way offensive, and that the complainant had joined in making light of them. It was also open to find that the appellant felt compelled to approach the group containing the complainant, and remonstrate with them about the remarks, to appease his upset girlfriend. That remonstration initially took the form of a verbal approach to the man actually making the remarks. It was only after that, that the appellant approached the complainant and words were said.

15 It was further open on the facts put by the appellant to find that, by his standing up and moving, even by a step or two towards the appellant, and saying words to the effect, "What are you going to do about it?", the complainant may have, on top of the aggravation resulting from the offensive remarks to the female, caused the appellant to become even more agitated than it was accepted he already was. The tenor of his Honour's remarks was that the appellant simply walked up to the complainant, stood close to him and immediately punched him.

16 Had the findings I have identified been made and used as the basis of the sentence, it would have cast a somewhat different light on the circumstances giving rise to the assault. Rather than perhaps being perceived as a completely unprovoked attack, it would have been open to the sentencing judge to conclude that this was an impulsive act committed under some provocation.

17 The learned sentencing judge, in my view, had an obligation to resolve in some way the factual disputes with which he was presented, even though neither counsel submitted there were any. He did not do so, instead effectively sentencing on the basis of the Crown facts. It was perhaps unfortunate that neither counsel in the course of the plea appeared conscious of the fact that there were conflicts, and that those conflicts needed to be resolved if the sentencing judge was to have an appropriate basis for sentencing put before him. Had counsel been conscious of the relevance of the areas of conflict, and specifically alerted the sentencing judge to them, his Honour may not have been led into error.

18 To the extent that ground 3 raises the issue that the learned sentencing judge should have done something to resolve the factual dispute apparent before him, and did not, it should, in my view, succeed.

19 Given the finding above, it is not, in my view, necessary to determine grounds 1 and 2 of the notice of appeal. The issue that therefore arises is how this appeal should be finalised. Counsel for the respondent accepted that, if this Court were to uphold ground 3 on the appeal, then, for the purpose of determining the appeal, this Court could accept the facts stated in mitigation where they were in conflict with those put by the Crown. In those circumstances, it is open to this Court to quash the sentence imposed by the learned sentencing judge and re-sentence the appellant.

20 As to the facts, the appellant was with three others drinking at an outside table of a hotel at Salamanca Place shortly after work on the last working night before Christmas 2009. The complainant was at a nearby table with three friends also drinking. One of his group made offensive remarks about the appellant's girlfriend. She became upset, and the appellant believed he needed to say something to the complainant's group about this. While the remarks were not made by the complainant, he joined in the general laughter about comments being made. The appellant crossed to the group and confronted the male who had been making the remarks. It is unclear whether at the time, the complainant was at the table or away getting drinks. Nevertheless, he did leave the table and when he returned wanted to know what was up with the appellant. He sat down. The appellant then approached him. The complainant stood up and took a step, maybe two, towards the appellant until the two were about a foot apart. He said words to the effect, "What are you going to do about it?" and "Piss off".

21 The complainant made no attempt to hit the appellant. His hands were by his side. The appellant however reacted, apparently impulsively, by punching him to the face. The appellant and the complainant then scuffled until each was pulled away by their respective groups. The appellant then left the scene, but voluntarily went to police when he became aware they wanted to talk to him about this incident.

22 Although the complainant did not realise it at the time, the single punch had caused significant damage. He had several fractures in his facial bones and required surgery. He was unable to eat properly for some weeks and still has numbness and itchiness in certain areas. He takes care to drink from the uninjured side of his mouth to avoid dribbling. He had five days off work. He remains nervous and vigilant when dealing with others.

23 The appellant was 22 years old at the time of sentence in November 2010. In 2009, he completed a four year apprenticeship, and, at the time of sentence, had been working in the carpentry industry for five years. He was in full-time employment, and the company with which he was working considered him a valuable member of their team. He had rental and other financial commitments to meet from his salary. The appellant had prior convictions. In January 2007, he was convicted of wilfully obstructing a police officer and fined. In June 2007, he was convicted of the same offence, resisting a police officer and disorderly conduct, and again fined. In April 2008, he was convicted of disturbing the public peace by fighting and fined. The incident which gave rise to that conviction occurred in 2007. There was no relevant offending between then and this matter.

24 The appellant acknowledged to the court that, with the benefit of hindsight, his decision on the night was not a sensible one. He regretted his actions and the injury to the complainant. He pleaded guilty.

25 The appellant caused a significant injury to the complainant despite there being only one punch. There is no suggestion that anyone involved in this incident was intoxicated. The appellant's actions were rash and, I would accept, not premeditated. They were prompted by the bad behaviour of the complainant's group towards his girlfriend. He has expressed remorse. Despite his offending history, the appellant has not been to prison before. While there needs to be a sentence which reflects both personal and general deterrence, the factors I have identified suggest that a sentence of imprisonment which is suspended, and community service, would meet the need for deterrence. The appellant has already served a period in custody from 15 November 2010 to 29 November 2010.

26 I would, in the circumstances, allow the appeal and quash the sentence imposed on 16 November 2010. In lieu of that sentence, I would order that the appellant serve a period of six months imprisonment. To reflect the time already spent in custody, that sentence should be backdated to a date 14 days prior to the date upon which this Court gives judgment. I would then suspend the execution of the balance of the sentence from the date of judgment on condition that for a period of three years the appellant commit no offence involving violence, and otherwise be of good behaviour. I would also order that the appellant perform 100 hours of community service.

27 I agree with the reasons for judgment of Tennent J, and with the orders which her Honour has proposed.