In this published version of the judgment, the appellant has been given the pseudonym of "John Smith". References in the judgment to the names of others have been replaced with letters.

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Disparity - Co-offenders - Equal culpability but differences in personal circumstances - Whether marked disparity.

Green v The Queen [2011] HCA 49; (2011) 86 ALJR 36, followed.

Judgment Number: [2012] TASCCA 3

1 The appeal against sentence is allowed and the sentence imposed on the appellant on 25 August 2011 is quashed.

2 In lieu of that sentence, the appellant is sentenced to serve nine months' imprisonment to commence on 5 October 2011.

1 I have had the benefit of reading draft reasons of Porter J. I agree with those reasons and the outcome he proposes.

2 This is an appeal against sentence. The appellant pleaded guilty before Crawford CJ to two counts of assault contained in an indictment dated 16 August 2011. The counts arose out of the one incident on 1 April 2010. The first count was a joint charge alleging that the appellant, together with AB and CD assaulted X by punching and kicking him to the head, knocking and dragging him to the ground, and by pushing him into a window. The second count was brought solely against the appellant, and it alleged that he assaulted X by kicking him to the head.

3 On 25 August 2011, the appellant was sentenced to 15 months' imprisonment cumulative to a sentence of three months which he was then serving. That sentence expired on 5 October 2011. It was ordered that he not be eligible for parole until he had served nine months of the sentence. AB and CD pleaded not guilty to the first count. Following a jury trial before Crawford CJ, AB was acquitted but CD was convicted. On 8 September 2011 CD was sentenced to six months' imprisonment to date from 31 August 2011, with the execution of the last three months of that sentence suspended on condition that for two years following his release, he not commit an offence punishable by imprisonment.

4 In this appeal, the appellant was initially unrepresented, but on 9 November 2011 the Court made an order under the Criminal Code, s410, directing that he be given assistance under the Legal Aid Commission Act 1990. When the matter came back before us, an amended notice of appeal had been filed, and the appellant was represented by counsel. There are three grounds of appeal. Those grounds allege a specific failure to take into account a matter raised in the sentencing hearing, unjustifiable disparity with the CD sentence, and manifest excessiveness.

5 The following is a summary of the facts taken from the respondent's written submissions. It seems to accurately summarise the facts put before the sentencing judge, and it is convenient to adopt it with some modifications.

•

On 1 April 2010 at 1l.20pm the appellant (aged 40) and two friends AB (aged 35) and CD (aged 24) were in the carpark at the rear of the Waratah Hotel. The appellant and the other two men were members or associate members of a motorcycle club.

•

At about the same time the complainant, X, was waiting in a line of about 20 people at the Waratah Hotel Bottle Shop, which operates from an external window at the rear of the hotel adjacent to the carpark.

•

CD and the appellant walked to the front of the line of people and stood in front of the next person waiting to be served. A short time later the appellant walked back to their taxi.

•

The appellant yelled out to CD to buy some drinks for the girls standing in line behind them. CD ordered some alcohol. This prompted the complainant to yell out a comment. CD yelled back at the complainant.

•

The appellant got out of the taxi and walked to where CD was standing at the bottle shop. The appellant and AB walked up to the complainant and started arguing with him. CD remained at the bottle shop window and finished purchasing alcohol. Afterwards he walked to where the appellant and AB were and stood behind them.

•

A fourth unknown male moved away from the taxi and stood behind the appellant, AB and CD. The appellant had an open stubby in his hand. He turned and handed his beer to someone. He turned back and stood next to AB and CD and continued to argue with the complainant. After a short time the appellant, CD and AB and the fourth unknown male walked back towards the taxi. As they walked away the appellant continued to argue with the complainant and the complainant argued back.

•

This caused the appellant, CD and AB to all walk back to the complainant. AB argued with the complainant. Initially the appellant tried to remove AB. However within a short timeframe the appellant pushed his face right into the complainant's face and started yelling, "Who the fuck do you think you are, fuck off shut up and fuck off or I'll stab you".

•

The appellant pushed the complainant to the chest. The complainant felt intimidated and started swinging punches at AB and the appellant. AB and CD punched the complainant to the head and body. CD grabbed the back of the complainant's singlet, which came off. The appellant, CD and AB and a fourth man closed in on the complainant while he was on the ground and the appellant kicked the complainant to the body on a number of occasions.

•

AB repeatedly punched the complainant to the head and body while the appellant and CD intermittently kicked the complainant to the body. AB and CD kicked and kneed the complainant to the body. The appellant menaced others in the area to stop them from providing assistance and stayed in the area to aid and assist the others assault X.

•

CD and AB placed the complainant in a headlock and he was pushed into a glass window. After this point the complainant CD and AB went around the corner. At this point the appellant moved away from the area. It was not asserted that he was a party to what had occurred around the corner.

•

Around the corner, CD and AB assaulted the complainant by punching and kicking him until he was motionless.

•

Persons unknown dragged the complainant back from around the corner, and the appellant walked directly to the complainant and kicked him to the head.

6 The sentencing judge was told that much of the incident was captured on CCTV footage. His Honour was told that after the complainant had been pushed into the glass window, the assault by the CD and AB occurred around a corner out of the view of the camera. The sentencing judge was not shown the CCTV footage in the sentencing hearing. His Honour was further told that the complainant received a fracture to the eye socket with multiple bruises and cuts to the face and body. By way of a victim impact statement his Honour was told that the physical injuries have all resolved, with the apparent exception that there is some altered sensation at the end of the complainant's nose.

7 The sentencing judge was also told that the appellant was first committed to the Supreme Court on 20 September 2010, but he failed to appear on 7 March 2011. A warrant for his arrest was executed in New South Wales whence he was extradited on 6 July 2011. On 19 July he was sentenced in the Magistrates Court to imprisonment for three months, backdated to 6 July 2011. That sentence was the one to which the sentence of 15 months was made cumulative, and was for an offence of dishonesty committed on about 3 February 2011; apparently as the appellant was leaving the State to go to New South Wales.

8 The appellant's prior convictions from a number of States were put before the sentencing judge. These included offences of dishonesty, drug and firearm offences, in particular, he had convictions for armed robbery and attempted robbery (apparently the one event) when he was 16 years old. The appellant has convictions for assault in Victoria in 1990 and 1992, and one in Western Australia in 1999. That last one was dealt with in a court of petty sessions, with the appellant apparently being released on a $1000 recognisance. It was the last offence of violence before these crimes, although on 19 July 2011 he was also convicted in the Magistrates Court of assault and breach of a family violence order committed on 11 December 2010, and a further breach of a family violence order on 7 January 2011. (For those matters, along with a breach of bail relating to when he absconded, the appellant was sentenced to one month's imprisonment wholly suspended on conditions.)

9 The principal matters which were put on the appellant's behalf in mitigation were as follows.

•

The appellant was the least active participant of the three offenders in relation to the first count of assault, he not being a party to that aspect of the assault which happened around the corner of the building out of CCTV range and at a time when he had left the immediate area.

•

The appellant had been experiencing personal difficulties at the time of the assault, including the breakdown of a relationship from which there was a young child; there had been difficulties in him maintaining contact with that child.

•

His co-accused were members of the motorcycle club, but he has since ended his association with that "gang".

•

The distancing himself from the club has caused, and will continue to cause difficulties for him. His life was threatened and on one occasion, when answering his front door, he was shot at and later admitted to hospital after suffering a heart attack.

•

As a result of all of that, he left the State fearing for his life, and established a new life for himself within a relatively short period of time, finding both employment and stable accommodation.

•

Upon his extradition he had indicated his intention to plead guilty to the charges.

•

A "letter of comfort" dated 15 August 2011 signed by a Detective Inspector was tendered to the sentencing judge. This outlined information provided by the appellant to police, some of which had resulted in "positive operational results", and stated that the appellant should be given some credit for what he has done. (In the course of submissions, the sentencing judge noted that he had not been asked to make no reference to the contents of the letter in his comments.)

•

Any period of imprisonment would be more onerous for the appellant than might normally be expected, because of being held in a restricted area due to concerns for his safety. (His Honour was not told precisely what that meant.)

The sentencing judge's comments on passing sentence

10 After setting out a brief summary of the facts, and immediately before passing sentence, his Honour said:

"The accused was 40 years old. His record includes in Victoria an armed robbery and attempted robbery when he was 16 years old and assaults in 1990 and 1992. In Western Australia he committed an assault in 1999. Subsequent to the two assaults for which he is to be sentenced today, he committed another assault in this State in December 2010, and twice breached a family violence order. His record in other respects has general relevance. It includes firearm offences, offences of dishonesty and drug offences. He has served imprisonment before.

He has fallen out with his previous associates and appears to be trying to start a new life interstate.

[John Smith], these were appalling assaults against a man you and your friends had offended by your rudeness and attitude. Not only was he punched, but he was kicked, including a number of times by you. Because there were four of you, he was easy to overwhelm. No doubt you and your friends found pleasure in dealing with him. Having regard to your record, the sentence should contain elements of personal as well as general deterrence, and also condemnation for such appalling violence in a place to which the public has access."

11 When (then) counsel for the appellant tendered the letter of comfort to the sentencing judge, the accompanying submission was made that the letter was a "clear indication of him turning his back on his previous associates" and that "it really couldn't be a clearer indication ... of his intention not to associate with those sorts of groups any further". An issue arose about the use of the letter. Although it has played no real part in this appeal, I think it should be explored. In her reply to the sentencing judge, Crown counsel noted that the material in the letter had not been referred to in open court and said that "it's the Crown's position that handing up a letter that contains matters that are relevant to sentencing and that are guarded and kept secret is not a course that we would ask your Honour adopt and that it should be mentioned in the open court process". She said that she had been "asked to put the submission". The concern seemed to be that the judge was being asked "to secretly take account" of what was contained in the letter. When specifically asked, Crown counsel did not have any submissions to make in relation to the proposition that the appellant's assistance supported the fact that the appellant had turned his back on his prior life.

12 I think it is appropriate to make some comments about the Crown's position and what was said to be the need for "open and transparent justice". The concern seemed to be that the Crown was unable to make submissions about what weight should be given to the appellant's assistance, but I have a little difficulty in understanding the proper basis for what was said. First, why much weight should not be given to the assistance in this case, was explained to this Court without difficulty. Second, it is very often the case that written materials are handed up to a sentencing judge without the contents being read out in open court, either verbatim or in summary form. Common instances are victim impact statements under s81A of the Sentencing Act 1997, references, and medical or psychiatric reports. As the sentencing judge commented, the issue was raised in open court with him being handed the letter, and it would certainly not be the first time that courts had been asked to take into account something that is not stated publicly. Discussion is often not openly had about the contents of the types of documents I have mentioned. Further, the contents are often only very briefly or obliquely mentioned in the comments on passing sentence.

13 With reference to letters of comfort, the circumstances will vary from case to case, but it would be often at least unwise to publicly reveal the full extent of assistance provided to the authorities by an offender. I would have thought that it was in the interests of justice not to deter assistance to authorities by offenders even though the motives for it might be selfish, and not to trigger acts of revenge, or inflame vengeful emotions. Very often the physical safety of the offender and of his family and associates is put at risk. By their nature, letters of comfort would be handed up without complete revelation of the contents. The practice of exercising care when discussing or revealing the contents beyond the judge and prosecution seems to be a universal one. The act of putting a letter of comfort in a sealed envelope was noted without adverse comment in JMS v R [2010] NSWCCA 229 at [25], notwithstanding that it had been lost. I see no reason submissions cannot be made about the impact of the content of a letter of comfort simply because of its tender as a document. No doubt in any given case, the judge or magistrate would take whatever steps were appropriate to deal with the material in order to limit any unwise public disclosure.

14 I return to the ground of appeal. It complains that the sentencing judge failed to give any, or any sufficient weight to the letter of comfort "and therefore failed to give any or any sufficient weight to the prospect of rehabilitation". It is however, part of the appellant's case that he was entitled to a measure of leniency because of his assistance to the authorities of itself. He relies on Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 per Deane and McHugh JJ at 239 and Ilic v Tasmania [2009] TASSC 94 per Tennent J at [17], [19] quoting the authoritative passage from the joint judgment in R v Cartwright (1989) 17 NSWLR 243 at 252. The respondent submits that the appellant is confined to the basis upon which the issue was put to the sentencing judge; that is, the letter shows assistance to authorities and is thus strong evidence of his rehabilitation.

15 In Australian Sentencing: Principles and Practice, Edney and Bagaric, (2007), the authors identify three "potent reasons" for the recognition of assistance to authorities as a mitigating factor warranting a discount. They are:

•

a utilitarian factor that recognises the substantial benefit to the community of the provision of evidence to assist in the prosecution of other criminal offences;

•

the provision of assistance may place an offender and others connected to them at substantial risk of harm, with a real and tangible benefit needing to be provided to those who are prepared to expose themselves to such risk;

•

the preparedness of the offender to provide assistance may in particular circumstances demonstrate strong evidence of good prospects of rehabilitation.

16 In this case, it is true to say that only the last factor was specifically referred to and relied on by the appellant's counsel at the hearing. That is not to say though, that the other factors were not necessarily implicit in the tender of the letter and its terms. The appellant argues that the sentencing judge made no reference to the letter in his comments and has accordingly failed to give it proper weight. Whilst it is true that his Honour made no specific reference to the letter, he said:

"He has fallen out with his previous associates and appears to be trying to start a new life interstate."

17 It might be said, with respect, that the simple reference to a "falling out" with his previous associates is not an accurate description of what was actually put in submissions, without dissent from the Crown. Counsel for the appellant said that he had "removed himself" from the motorcycle club and had "turned his back on his previous associates", apparently with the result that retributive action was taken in the form of a shot being fired at his head from close range. More particularly, although clearly a reference to rehabilitation, his Honour's brief statement may be inadequate to convey the full import of the submissions. In my view, the assistance as detailed in the letter can quite properly be seen as evidence of his rehabilitation.

18 Comments on passing sentence are not to be treated as though they are reasons for judgment: Trueman v Tasmania [2009] TASSC 29; (2009) 18 Tas R 435 at 444 [32]. The failure to specifically mention a matter does not necessarily and of itself mean that it was overlooked. In the end, I am not persuaded that the ground is made out, in that any failure to give sufficient weight to the appellant's rehabilitation stemmed from the letter being overlooked or given scant regard. But it is plain that the general issue of the weight to be given to the appellant's rehabilitation properly arises in the argument that the sentence was manifestly excessive in all of the circumstances, and also has relevance in the disparity debate.

19 As to CD's involvement in the crime, the sentencing judge noted the following facts in his comments on passing sentence. (By the time his Honour came to sentence CD, he had seen, during the course of the trial, the CCTV footage.)

•

CD had remained at the bottle shop during the initial argument between the complainant, the appellant and AB. He moved to where that was occurring after he had bought alcohol, and was then "merely observing [AB] and [Smith's] fruitless attempts at self-justification in their abuse of [X]".

•

After going back to the taxi, CD along with the appellant, followed AB back to where the complainant was.

•

CD joined in the attack on the complainant, kicking at him without making contact, but shortly after kicking him twice, during which the complainant was unable to defend himself, either because others were on top of him, or AB was holding him.

•

After the complainant was back on his feet and being held by AB, CD kneed the complainant and pushed him. Just before that, the complainant had been punched a number of times by AB and kicked by the appellant.

•

After AB pushed the complainant into a window, smashing it, the complainant was forced out of sight around a corner of the building with CD following. (At this point, the appellant returned to the taxi.)

•

CD then joined in punching and kicking the complainant, although the appellant was not involved.

•

Very shortly after the appellant kicked the complainant (the subject of the second count against him), CD kicked the complainant "while he was lying helpless on the ground".

20 After noting the effects on the complainant, his Honour continued:

"The accused was 24 years old. His only previous offence of any relevance was disorderly conduct four years earlier. He has a good industrial record. He has worked at the Zinc Works for the last six years.

[AB] was fortunate to be found not guilty by the jury. [Smith] pleaded guilty to two counts of assault and he was sentenced to imprisonment for 15 months. That he was sentenced for two counts and the accused is to be sentenced for only one is of no consequence. However, that is no justification for sentencing the accused to the same amount of imprisonment. [Smith] was 40 years old and had a long record that included an armed robbery, attempted robbery and three assaults, and after this incident he committed another assault and twice breached a family violence order. He had committed a number of other offences and had served imprisonment before. His conduct precipitated the attack on [X]. On the CCTV footage he can be seen kicking the man four times and punching him.

Aggravating features include that the assault occurred in a public place when many members of the public were present and it was committed in circumstances where the victim was outnumbered by four others. His injuries are relevant to the sentence also. Of course, it is not known who caused the facial fracture but it is an injury for which all of his assailants should share responsibility. Kicking another is a particular nasty form of assault.

I have concluded that the only appropriate sentence is one of imprisonment, but it will be a much more lenient sentence than that imposed on [Smith]. In particular, the accused is entitled to benefit from not having offended similarly before." [Emphasis added.]

21 His Honour said that it was particularly because of CD's record that three months of the six month term of imprisonment would be suspended. CD's record starts in December 2003 and, before this crime, finishes in January 2010. There are 13 instances of him being dealt with for minor traffic offences, with the conviction for disorderly conduct noted by the sentencing judge being in September 2006, for an offence committed in June 2006.

22 For the appellant, it is argued that the circumstances of the offending and of the two offenders did not justify the disparity in sentence. As a starting point, the appellant pleaded guilty, whilst CD did not. It is submitted that although most of the incident is shown on CCTV footage, conviction was not inevitable as shown by AB's acquittal. It is submitted that the culpability of the two offenders is the same, notwithstanding the additional count faced by the appellant, and the sentencing judge's remarks which I have highlighted in the above passage, are relied on in this respect.

23 It is further submitted that whilst CD had no relevant prior convictions, those of the appellant for violence were of some age, and the more serious ones were committed when he was a youth. Counsel also noted that CD would serve an actual period of three months before being released, with a mere possibility of serving further time, that being dependent on his behaviour. On the other hand, the appellant is to serve a minimum of nine months, with the possibility of him being released after that, dependent on the discretion of the Parole Board. It is therefore at least possible that the appellant will have to actually serve the full term of 15 months.

24 The notion of equal justice in sentencing, and the parity principle, were considered and explained by the High Court in Green v The Queen [2011] HCA 49; (2011) 86 ALJR 36. In a joint judgment, French CJ, Crennan and Kiefel JJ summarised the essential features of the principle and of its application. It is appropriate to set out in full the relevant passages of their Honours' judgment.

25 At 44 [28] their Honours explained that equal justice requires, so far as the law permits, that like cases be treated alike, and also requires, again where the law permits, differential treatment of persons according to relevant differences between them: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 608 [65]. Their Honours noted that consistency in the punishment of offences in the criminal law is a reflection of the notion of equal justice. It finds expression in the parity principle which requires that like offenders should be treated in a like manner. At 44 [30], they went on to discuss the practical difficulties: "The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form." Their Honours went on to discuss the practical difficulties in comparing sentences of participants in the same criminal enterprise who have been charged with different crimes and said (omitting references)[1]:

"31 Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may 'reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender'. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen:

'the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.'

The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.

32 A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight."

26 Discussion then turned to an issue which might be said to arise in this case. It is the question of the justification of elimination of disparity where to do so would be to reduce an appropriate sentence, to the level of an inadequate sentence. That such an outcome might be acceptable as a matter of principle, was acknowledged by Mason J (as he then was) in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 613 - 614. In Green, the majority in the joint judgment dealt with the issue as follows [original footnotes]:

"33 There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J[[2]] and less explicitly but to like effect by Dawson J, with whom Wilson J agreed[[3]]. It has also been answered in the affirmative in a number of cases in the Court of Criminal Appeal of New South Wales[[4]]. On the other hand, as Simpson J correctly pointed out in R v Steele[[5]], the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender's sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R v Draper, 'an affront to the proper administration of justice'[[6]]. Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one[[7]]. Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences."

27 These statements confirm that unjustifiable disparity is a ground for appellate intervention. If such an appeal is allowed, re-sentencing an appellant is not designed to achieve identity of punishment. A sentence that would otherwise be appropriate can be reduced to a level which would be regarded as erroneously lenient, but not to the extent that it amounts to an affront to the proper administration of justice, or outside a statutory range of discretion. No statutory constraints arise in this case[8].

28 In this case, there is a marked disparity between the two sentences. The question is whether that disparity is justified. In terms of culpability, there is little to distinguish between the two men. Counsel for the respondent did not argue to the contrary. Ignoring the complainant's continued arguing after the appellant's group had returned to the taxi and the subsequent argument between him and CD (together with AB), it was the appellant who precipitated the violence. This he did by pushing himself close to the complainant, threatening him and then pushing him. However each man was then involved in punching and kicking the complainant, in company with each other and with others. CD continued the assault with AB whilst the appellant retreated although remaining to assist, and both men kicked him when he was motionless on the ground. On one view, CD's role in the actual violence might be seen to be greater.

29 Whilst not a youthful offender, CD was a young man with no significant record, the only item of interest being a conviction for disorderly conduct in September 2006. He had a good work record. On the other hand, the appellant is a mature man with a long history of offending. This offending has ranged across various types, but dishonesty is predominant. His last conviction for any offence of violence before these crimes was a summary conviction for assault in 1999. However, his offending was regular and at the time of these crimes, he was the subject of an order to be of good behaviour for a period of 12 months, which had been made in respect of firearms offences on 10 August 2009. Additionally, he had not been of good behaviour since these crimes. Apart from the dishonesty offence when fleeing the State, there were the convictions for common assault and breach of a family violence order committed in December 2010, and a further family violence order breach in January 2011.

30 Against that history of offending, is evidence of his rehabilitation. Although he left the State and was in breach of his bail ultimately requiring his extradition, he did so in fear of his life as a result of being shot at. The clear inference is that this was because of his ending his involvement with a motorcycle gang. Although committing an offence of dishonesty on his way out of the State, (which later attracted the sentence of three months' imprisonment), he has not offended since, and had established a new life for himself in a relatively short space of time. The facts revealed in the letter of comfort add strong support to the view that he has changed his ways. It should also be noted that because of the history of retribution against him and the assistance given to authorities, his imprisonment seemed to involve more restrictions on him than would ordinarily be the case; a matter which, depending of course on degree, may be taken into account: see Bekink [1999] WASCA 160; (1997) 107 A Crim R 415 per Ipp J at 416 -417.

31 The circumstances of the offending and of the two offenders, do not compel a similar outcome for each man. But in my view, neither do those circumstances justify such a disparity between the head sentences of 15 months in the case of the appellant, and six months in the case of CD, and between the effective immediate terms to be served by each: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 302-304. (Of course, the appellant's sentence was made cumulative to the existing sentence of three months, of which he had about six weeks to serve.) There may well be justification for some moderation of the head sentence in CD's case, as well as suspending the execution of part of that sentence, but I can see no justification for the disparity which exists. That disparity is so marked that it gives rise to an appearance of injustice. The appeal should be allowed on this ground.

32 Because the appeal should succeed on ground 2, in strict terms it is unnecessary to decide whether the appellant's sentence is manifestly excessive in all the circumstances. It is, however, probably desirable to express a view about it. In very general terms, a sentence of 15 months' imprisonment for two counts of assault of this nature, even arising from the one incident and involving the same complainant whose injuries have largely resolved, does not immediately suggest itself as being outside an appropriate range. This was a vicious and rather prolonged group attack in the presence of other members of the public, and regard should be had to the appellant's mature age and record of offending. Whilst he was not to be sentenced for that record, his history meant that no leniency could be extended to him. Against that, his more recent personal circumstances and his rehabilitation should have carried some weight. But I am unable to say that for this appellant the sentence is wholly outside the range open to the sentencing judge, although it is at the very high end of it.

33 The appeal should be allowed, and the orders of sentence set aside. Taking into account the CD sentence, but exercising care not to fall below an adequate level of punishment, I think a sentence of nine months' imprisonment, to be served cumulatively to the sentence which the appellant was then serving, should be substituted.

34 I agree with the reasons for judgment of Porter J, and with the orders he proposes.

[1] Their Honours drew principally from Lowe v R [1984] HCA 46; (1984) 154 CLR 606 and Postiglione v R [1997] HCA 26; (1997) 189 CLR 295.

[2] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 613-614[PDF][1984] HCA 46; , 58 ALJR 414.

[3] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 623[PDF][1984] HCA 46; , 58 ALJR 414 per Dawson J, Wilson J agreeing at 616. And see R v Diamond (1993) (unreported, Court of Criminal Appeal, NSW, No 60133 of 1992, 18 February 1993) per Hunt CJ at CL, James J agreeing, which so interpreted the observation by Dawson J.

[4] R v Tisalandis [1982] 2 NSWLR 430[PDF] at 435 per Street CJ; R v Anastasio (unreported, 21 November 1986) at 3; R v Smith (unreported, 5 December 1986); R v Draper (1986) (unreported, Court of Criminal Appeal, NSW, No 32 of 1986, 12 December 1986) at 5 per Street CJ, Hunt and Wood JJ agreeing at 5; R v Diamond (1993) (unreported, Court of Criminal Appeal, NSW, No 60133 of 1992, 18 February 1993) at 5 per Hunt CJ at CL, James J agreeing at 11; R v Maslen (1995) 79 A Crim R 199[PDF] at 207-208 per Hunt CJ at CL, Sully and Smart JJ agreeing at 212.

[5] R v Steele (1997) (unreported, Court of Criminal Appeal, NSW, 60738 of 1995, 17 April 1997) at 8-11, Sheller JA and Grove J agreeing. See also Pecora v The Queen [1980] VicRp 47; [1980] VR 499 at 503; R v MacGowan (1986) 42 SASR 580[PDF] at 583 per King CJ, Mohr and von Doussa JJ agreeing at 584; R v Cox (1991) 55 A Crim R 396[PDF] at 401 per Thomas J; R v Reardon (1996) 89 A Crim R 180[PDF] at 182 per Gleeson CJ; at 183 per Sully J; cf 191 per Hulme J; R v Djukic [2001] VSCA 226 at [29]- [30] per Vincent JA, Brooking and Phillips JJA agreeing at [1] and [2]; Newburn v The Queen [2004] WASCA 108 at [44] per EM Heenan J, Templeman J agreeing at [1]; R v Hildebrandt [2008] VSCA 142; (2008) 187 A Crim R 42[PDF] at [51]- [65] per Dodds-Streeton JA, Ashley JA and Lasry AJA agreeing at [1] and [93].

[6] R v Draper (1986) (unreported, Court of Criminal Appeal, NSW, No 32 of 1986, 12 December 1986) at 5 per Street CJ, Hunt and Wood JJ agreeing at 5; R v Diamond (1993) (unreported, Court of Criminal Appeal, NSW, No 60133 of 1992, 18 February 1993) at 5-6 per Hunt CJ at CL, James J agreeing at 11; R v McIvor (2002) 136 A Crim R 366[PDF] at [10] per Heydon JA, Levine J and Carruthers AJ agreeing at [12] and [13].

[7] That proposition seems to have been implicit in the construction placed on s 6(1) of the Sentencing Act 1995 (WA) by Murray J in Goddard v The Queen [1999] WASCA 281; (1999) 21 WAR 541 at [61]. That subsection required that "a sentence imposed on an offender must be commensurate with the seriousness of the offence".

[8] Neither the Criminal Code nor the Sentencing Act (Tas) 1997 requires that a sentence be commensurate with the seriousness of the offence or similar. Compare the Sentencing Act 1995 (WA), s6(1); see Green v R (above) at 45 [33].