Supreme Court of Tasmania|2009-05-11|Before: Crawford CJ, Tennent JJ, Slicer J

Trueman v Tasmania [2009] TASSC 29 (11 May 2009)

CITATION: Trueman v Tasmania [2009] TASSC 29

JUDGMENT OF: Crawford CJ, Slicer and Tennent JJ

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - Other matters - Whether a failure to give sufficient reasons a ground of appeal.

Tame v Fingleton (1974) 8 SASR 507; Shrubsole v Rodriguez (1978) 18 SASR 233; Massey v Muir unreported A37/1976; Bastick v Cochrane unreported 77/1997; R v Thomson (2000) 49 NSWLR 383, referred to.

Judgment Number: [2009] TASSC 29

FABIAN JAMES ACKERLEY TRUEMAN v STATE OF TASMANIA

1 The appellant appealed against a sentence of 6 months' imprisonment for one count of assault. The grounds of appeal include inadequate reasons, inadequate and improper methods of reasoning and failure to take into account relevant matters or to give them any weight.

2 It is not a ground of the appeal that the sentence was manifestly excessive. In my view it was the appropriate and correct sentence, so that even if the grounds of appeal were made out, I would dismiss the appeal.

3 The appellant pleaded guilty to the charge. He admitted punching the complainant to the head and face a number of times and causing him to fall to the ground as a result. However, he disputed the State's assertion that he stomped on the complainant's head a number of times. As a result, a hearing was conducted to enable the sentencing judge to determine the facts in issue. Evidence was given by six witnesses, including the appellant and the complainant, following which the learned judge made findings of fact.

4 At about 5am on Sunday, 22 June 2008, the appellant was on the street outside the caged area at the front of the Isobar nightclub. The complainant was in the same area, waiting for a taxi with his brother, his brother's girlfriend and a friend. The accused was aged 21 and the complainant 24. They did not know each other.

5 The appellant walked past the complainant with a number of others. As he did so, the complainant asked if any of the appellant's group had a cigarette lighter he could use. The appellant replied, "Fuck off mate, I don't smoke". The complainant turned his back to walk over to his companions, and as he did so he said something to the effect of "I was only asking". His reaction annoyed one of the appellant's group, who walked back to the complainant and confronted him. On seeing this, the appellant also walked back to the complainant. According to the appellant's evidence, which appears to have been accepted by the learned judge about this, he grabbed hold of the complainant's shoulder and punched him in the side of the head or jaw. The appellant accepted that it was a king hit. He said that the complainant fell back a bit and he still had hold of him. He hit him again and dazed, the complainant was down on his knees. The appellant then grabbed him by the collar and kept hitting him, probably two or three times. The appellant said that he ended up on his knees over the top of the complainant when he was on the ground and hit him again.

6 The learned judge found that the majority of the punches were deliberate after it was apparent to the appellant and others that the complainant was dazed and not defending himself. It was found that after the complainant went to the ground, the appellant punched him to the head several times and stomped on his head at least twice. After the second stomp the complainant lost consciousness.

7 He was taken to hospital by ambulance. He suffered a fracture to the jaw. He required surgery and was hospitalised for three days. He also sustained a swollen left eye, bruising to the left side of his head and a swollen right ear. In a victim impact statement he said that he did not sleep properly, suffered from bad dreams and woke in a cold sweat, suffered from constant headaches, could not chew on the left side of his jaw, which sometimes locked, tended to forget things and became depressed at times due to the impact of the incident on his life.

8 Apart from driving offences, the appellant had no record. His driving offences included dangerous driving and an offence against the Road Safety (Alcohol and Drugs) Act 1970 that were both committed on 25 July 2004. His counsel submitted to the sentencing judge that having regard to his record, the assault was out of character.

9 It was stated that he was shocked by his actions and that he was extremely remorseful, demonstrated by his plea of guilty at the earliest opportunity. It was claimed that when he attended for a police interview he admitted to all that he was able to recall. The learned judge appeared to accept that, but pointed out that the appellant had said in evidence that he initially refused to be interviewed because he did not think the matter was very serious. His counsel responded that the appellant gave some consideration to that and upon doing so, realised the seriousness of the matter and attended for the interview.

10 He was 21 years old at the time of sentencing. His counsel said that he lived with a partner and had the strong support of his family. He was educated to Year 10 and had since been employed on a full-time basis. He commenced work for Aurora as a labourer and then commenced an apprenticeship, with about 14 months yet to be completed. His income was about $500 net each week. Recently he had entered into a contract to purchase a house and the contract had become unconditional on the day of sentencing because of a loan approval. His counsel asserted that there was a serious risk that his employment would be terminated and that he would be unable to meet the loan repayments if a custodial sentence was imposed.

11 In conclusion, his counsel pointed out that the appellant was still a young person with no relevant prior convictions. It was submitted that it was extremely unlikely that he would reoffend and that there were strong factors which suggested that the interests of specific and general deterrence would be served without the need for a custodial sentence having to be served.

12 At the conclusion of the plea in mitigation, the learned judge adjourned for about 20 minutes and then sentenced the appellant. In the course of his comments on passing sentence, his Honour made findings of fact based upon the evidence he had heard the previous day. In the course of doing so, he noted that the appellant had given evidence that the complainant had not hit him other than a "sort of a jumper punch". After noting that the appellant had initially refused to be interviewed because he did not think it was much of a matter and did not think it was serious, the learned judge said that upon thinking about it the appellant thought it might be a bit serious and that he should put his side of the story in an interview with the police. A little later in the comments, the learned judge said:

"As I understand the defendant it was not until after he was told that his sentencing would be referred to this Court that he appreciated the seriousness of the charge, engaged a lawyer and indicated that some of the facts of the alleged assault, primarily those in relation to stomping, were disputed. It is to say the least alarming that the defendant could have initially thought that his criminal conduct was not serious."

13 After referring to the impact of the assault on the complainant, the learned judge concluded his sentencing comment as follows:

"The defendant is 21 years of age and has no relevant prior convictions. He pleaded guilty at the earliest possible opportunity and he has to an unusual degree been open and honest about his criminal conduct. He has been in regular employment since leaving school and is well along the way to completing his apprenticeship as an electrician. Notwithstanding the soundly based reasons for the extreme reluctance of courts to impose an immediately effective sentence of imprisonment on a comparatively young first offender and the affect of such a penalty on the defendant's employment and related matters, I consider that the needs of deterrence, both personal and general, require the imposition of a sentence of this nature. The defendant is sentenced to six months' imprisonment."

Whether the judge failed to take into account mitigating factors

"1 The sentencing Judge erred in law in failing to take into account or give any weight to:

(i) the factors raised on behalf of the Appellant in mitigation;

(ii) the desirability for the sentence to assist in the rehabilitation of the Appellant.

2 In the alternative to ground 1, if the sentencing Judge gave weight to and took account of the mitigation and need to rehabilitate then he provided no or no adequate reasons as to whether and to what extent those matters were taken into account."

15 There is no merit in the first ground. The factors in mitigation had been raised by counsel with the learned judge only 20 minutes earlier. His Honour took a little time before sentencing, no doubt to consider what had just been said to him. He referred to most of it in his comments.

16 Counsel for the appellant pointed to the failure of the learned judge to specifically refer in his comments to the submissions that the appellant's actions amounted to an isolated lapse of judgment, that he came from a good family with strong family support and that he had demonstrated remorse by his plea of guilty at the earliest possible opportunity. There is no rule of law that a sentencing judge must repeat everything said by defence counsel in mitigation or say that everything that has been said has been taken into account. There is no reason to think that the learned judge failed to take into account or give any weight to any of the mitigating factors. That is particularly so if the sentence was a correct one, which is the view I take of it.

17 Nor is there any cause for concluding that the learned judge failed to take into account or give any weight to the question of rehabilitation. When referring to the soundly based reasons for the extreme reluctance of courts to impose an immediately effective sentence of imprisonment on a comparatively young first offender, the learned judge demonstrated that he had that in mind.

18 The second ground asserts that the learned judge failed to explain, adequately or at all, whether and to what extent the mitigating factors and the desirability for the sentence to assist in the rehabilitation of the appellant were taken into account. I will return to the need for reasons in due course. I think that the learned judge demonstrated the way in which he dealt with the matters to which the ground refers, although I accept, with all respect to his Honour, that he could have done better. All the learned judge said directly was that the need for personal and general deterrence required the sentence he imposed, but he did not explain why he was of that view. I think the reasons may be inferred. I expect that the view that there was a need for both personal and general deterrence was based, at least in part, on the degree of unprovoked violence that was administered by the appellant in a public place, for in that regard this was a bad case, and the significant injuries that the victim sustained. It is because of what the appellant did and those injuries that I regard the sentence to be a correct one. Further, one of his Honour's reasons for concluding that a sentence of personal deterrence was required can be found in the earlier expression of alarm that the appellant had not realised initially that his criminal conduct was serious.

19 The principle that prison should be avoided for young offenders may need to be put aside in the case of a crime of considerable gravity, such as a crime of violence in a public street committed without provocation against a stranger. See for example, Lahey v Sanderson [1959] Tas R 17 at 21 and R v Mather [1962] Tas R 25 at 26, where Burbury CJ made the point that the crimes of a youthful offender may be so serious that the court may have a clear duty to impose a gaol sentence as a deterrent both to the offender and to others who may be minded to commit similar crimes. No doubt that very point was in the mind of the learned judge in this case.

"3 The sentencing Judge erred in law in that he failed to follow the common law of first deciding whether taking all relevant matters into consideration a term of imprisonment of a particular length was required and then proceeding to decide whether its suspension was appropriate.

4 The sentencing Judge erred in law in that he grouped all non-custodial options together and displaced all those options on the basis of deterrence rather than concluding that a sentence was required and then engaging in a further decision as to whether such a sentence could be wholly or partially suspended.

5 The sentencing Judge erred in law in failing to act in accordance with section 25(1) and (2) of the Sentencing Act 1997 by giving undue weight to incarceration and failing to recognise the principle that a suspended sentence or partially suspended sentence was 'for all purposes' to be taken as a sentence of imprisonment or 'for all the purposes of all enactments' taken to be a sentence of imprisonment."

21 The proposition in the third ground of appeal has its basis in what was said by Kirby J in Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 346. Kirby J made it clear that before deciding to impose a suspended sentence of imprisonment, the judge should first decide whether a sentence of imprisonment is called for at all, rather than some lesser one. Once that determination has been made it is then necessary to determine whether any of the imprisonment should be suspended. His Honour emphasised that the question of suspension does not arise unless it has first been determined that a sentence of imprisonment should be imposed.

22 No breach of those principles occurred here. It is plain that the learned judge made a determination that a sentence of imprisonment was required and it is obvious that his Honour did not consider that any of it should be suspended, or he would have said so. Instead, he rejected the application to the case of "the soundly based reasons for the extreme reluctance of courts to impose an immediately effective sentence of imprisonment on a comparatively young first offender" and imposed the immediately effective sentence of six months' imprisonment.

23 It was submitted for the appellant that the learned judge "should have firstly justified his decision that incarceration was necessary and then in a further and separate process of reasoning justified the displacing of a suspended sentence with actual incarceration in the context of a relatively youthful offender with no prior relevant convictions". There is no rule of law that the learned judge should have expressed himself in that way in his comments nor is there any rule of law that having decided that a sentence of imprisonment is necessary, a judge is obliged to justify a decision not to suspend any of the imprisonment. It is common for courts to sentence offenders to imprisonment with no mention at all of the question of suspension in the sentencing comments. Obvious examples are to be found in sentencing comments for murder, rape and other serious crimes. It is clear in this case that the learned judge considered the question of suspension and rejected it for reasons that he stated or may be inferred.

24 In the Sentencing Act, 1997, s7, there are to be found nine separate sentencing options that were open to the learned judge, ranging from imprisonment to much less severe forms of sentence such as recording a conviction and discharging the offender and ordering a dismissal of the charge without recording a conviction. There is no rule of law that in sentencing comments, a judge or magistrate must address all or any of them.

25 For similar reasons, there is no merit in ground 4. It was not an error of law for the learned judge to reject all non-custodial options as a group.

26 Ground 5 must be rejected and I do not understand that counsel for the appellant sought to maintain it in the end. The Sentencing Act, s25(1) and (2), provide that a partly suspended sentence of imprisonment is to be taken for all purposes to be a sentence of imprisonment, and that a wholly suspended sentence of imprisonment is to be taken to be a sentence of imprisonment for the purposes of all enactments other than enactments providing for disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits. Those provisions are designed to assist the interpretation of other legislative provisions. The learned judge committed no error with regard to them.

27 Much of the argument of counsel for the appellant had as its basis an assertion that the comments on passing sentence were inadequate because they did not explain the reasoning process of the learned judge for not suspending all or any of the imprisonment. Since the hearing of the appeal, the Court has received, pursuant to leave given, supplemental written submissions from counsel concerning the duties of judges to give reasons and whether a failure to give sufficient reasons amounts to an error of law and a ground of appeal.

28 In the appellant's supplemental submissions it is argued that the Sentencing Act, s93, affirms the proposition that a failure to provide adequate reasons is a basis for an appellate court to review such a sentence. That is not so. In subs(1), it provides that a sentence is not invalidated if there is a failure to give reasons. What that means is that in such a circumstance the sentence is a valid one, but it does not mean that it may not be set aside or quashed for error. Obviously that may happen. In subs(2), it is provided that nothing in subs(1) prevents a court on an appeal against sentence from reviewing the sentence where there has been a failure to give reasons. There is nothing in the section that provides that a failure to give reasons is a ground for appeal. Such a rule has to be found elsewhere.

29 It has been held in a number of cases that a failure to give adequate reasons for a sentence does not amount to an appealable error. R v Jackson [1996] 1 WLR 528 at 530; Tame v Fingleton (1974) 8 SASR 507 at 510; Shrubsole v Rodriguez (1978) 18 SASR 233 at 236; Leech v McCall (1986) 41 SASR 96 at 100; R v Capalbo [2005] SASC 47 at par98; Massey v Muir unreported A37/1976 at 3; Bastick v Cochrane unreported 77/1997 ([1997] TASSC 79) at 4. There are two South Australian authorities to the contrary, but their validity is questionable. In Cross v Police [2001] SASC 47 at par26, Olsson J held that a failure to give adequate reasons for a sentence was an error of law, citing the Full Court in Papps v Police (2000) 209 LSJS 407 as authority for that. However, it was only authority for the proposition that a failure by a magistrate to give adequate reasons for finding a charge proved was an error of law. It was not a sentencing case. What was said by Olsson J was simply adopted by way of obiter dicta by Debelle J on an appeal from a magistrate in Moore v Police [2005] SASC 436 at par6. It is difficult to find appellate cases in this country in which a sentence was set aside or quashed only because of a failure to provide adequate reasons for the sentence.

30 Nevertheless, it is well settled that a failure to give sufficient reasons for a judicial decision will often amount to an appealable error. There are well known examples. Pettitt v Dunkley [1971] 1 NSWLR 376 concerned a decision of a judge following a civil trial without a jury. See also Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 particularly at 259. Australian Securities Commission v Schreuder unreported A79/1994 ([1994] TASSC 127) concerned a magistrate's decision that charges had been proved following a defended hearing. Such errors may occur in relation to determinations of questions of fact or law by any judicial authority, including in criminal trials by judge alone and in the course of sentencing hearings. Thus in Nevermann (1989) 43 A Crim R 347 at 350, a trial judge was considered to be in error for not making findings of fact, following a verdict of a jury, before announcing the sentence, although the appeal failed because the sentence was regarded as a correct one.

31 In a guideline judgment in R v Thomson (2000) 49 NSWLR 383 the Court of Criminal Appeal adopted a number of guidelines for the sentencing of offenders for offences against that State's laws. At 394, Spigelman CJ, with whom the other members of the court agreed, said that sentencing judges are under an obligation to give reasons for their decisions and that remarks on sentence are no different in that respect from other judgments. His Honour explained that it was a manifestation of the fundamental principle of the common law that justice must not only be done but must manifestly be seen to be done.

32 I largely agree with what was said by Spigelman CJ but nevertheless there are limits to the reasons that are required. In this jurisdiction, comments on passing sentence should not be treated as if they are reasons for judgment. That was the view for South Australia of Wells J in Shrubsole v Rodriguez (1978) 18 SASR 233 at 235. They are often relatively brief and justifiably so, particularly in the case of magistrates who sentence a great number of offenders, often for offences that are committed in such common ways that many are effectively indistinguishable from others. It is proper that many offenders are sentenced immediately following the hearing of submissions in the interests of expediency, and as was said in this Court by Nettlefold J in R v Sherlock unreported 41/1975 at 6: "I do not think that this Court should analyse a Judge's reasons with too critical an eye. The remarks are often made 'off the cuff'."

33 Another consideration that must not be overlooked is that often the determination of the sentence appropriate for an offence is made by way of an instinctive or intuitive assessment after a consideration of the relevant facts and factors. In some ways it is similar to the assessment of general damages for pain and suffering. As was said by Crisp J in Wise v R [1965] Tas SR 196 at 200, "sentencing is an art and not a science". The subject was discussed by Slicer J in this Court in Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186 at 201-206. His Honour points out in his judgment in this case that in Fox and Frieberg's Sentencing in Victoria, 1 ed, at 442, the authors identify 292 matters that may be relevant to the sentencing process. A judge might take into account a great number of relevant matters and make a determination, which is largely intuitive although assisted by his or her experience as a lawyer and a sentencing officer, that the appropriate sentence is one of effective imprisonment for a particular length of time, but might have great difficulty explaining why the sentence should be for that particular length rather than a longer or shorter one. It is not uncommon for a judge or magistrate to state the most material of the relevant matters that have been considered and to then announce the sentence, without any other explanation as to how it was determined. To do so will not necessarily amount to an error. Each case will depend on its own circumstances.

34 Although the comments in this case may be brief so far as concerns the reasons for imposing the imprisonment without suspending any of it, it is my judgment that they are sufficient for the reasons I have explained. In any event, and as I have already said, the sentence is the correct one.

FABIAN JAMES ACKERLEY TRUEMAN v STATE OF TASMANIA

36 The appellant was charged with the crime of assault, contrary to the Criminal Code, s184. He pleaded guilty to the complaint and was remanded to this Court for sentence. He contested a particular of an ingredient of the assault which required the conduct of a disputed facts hearing. The unchallenged finding of the learned sentencing judge following that hearing was that:

"On the evidence before me I find that in the course of the incident the defendant punched the complainant to the head as the defendant described and that the majority of the punches were delivered after it was apparent to the defendant and others that the complainant was dazed and was not defending himself.

... I find that after the complainant went to the ground the defendant punched him to the head several times and stomped on his head at least twice. After the second stomp the complainant lost consciousness."

The appellant was sentenced to a term of imprisonment for six months, none of which was suspended.

37 This appeal primarily concerns the weight to be given to mitigating factors, including rehabilitation and the extent of the duty of a sentencing judge to disclose reasoning. Grounds 6 - 9 of the amended notice of appeal were either abandoned or not argued.

38 The assault occurred at about 5am on 26 June 2008 outside a nightclub in Hobart. The complainant was waiting for a taxi with his brother and two friends. He asked the appellant, who was a member of a passing group, whether any had a cigarette lighter he could use. The appellant replied rudely and, following the innocent reply, "I was only asking", returned to the complainant and commenced an attack in the manner described above. The complainant was taken to hospital and admitted. The appellant was interviewed some three weeks later and admitted the assault. He provided no explanation for his conduct and claimed that although he had been drinking, he was not "drunk" and said, "I suppose I just spat it".

39 The complainant, who had been knocked unconscious, suffered a fractured jaw requiring surgery and hospitalisation, and bruising and swelling to his left eye, head and right ear. The injuries required ongoing medical treatment and he continues to suffer headaches, physical discomfort, sleep disturbance and associated psychological sequelae.

40 The appellant, aged 21, came from a stable family and was living in a relationship. He possessed a good work record and at the time of sentencing had completed three years of a four year apprenticeship. The Court was told that he had just purchased a home, the mortgage repayments of which would be imperilled if he were to lose his employment as a result of imprisonment.

41 There were good reasons to impose a sentence of six months' imprisonment. There were matters which permitted the learned sentencing judge to suspend, at least in part, a significant portion of that sentence. The "disputed facts" hearing had been conducted on the day prior to the plea in mitigation and imposition of sentence, so that the outcome was not necessarily a product of an unconsidered response. The appellant's early plea entered in the court of petty sessions, although weakened through his partially unsuccessful dispute concerning the particulars, was noted with a slight qualification, stated by the learned sentencing judge in the following terms:

"In yesterday's evidence the defendant said he pleaded guilty to the charge including those particulars as he thought it was just a common assault and he would cop a fine for it. At a different point he said his thinking was -

I've given this bloke a hiding, I'll take it, I'll cop the fine.

As I understand the defendant it was not till after he was told that his sentencing would be referred to this court that he appreciated the seriousness of the charge, engaged a lawyer and indicated that some of the facts of the alleged assault, primarily those in relation to stomping, were disputed. It is to say the least alarming that the defendant could have initially thought that his criminal conduct was not serious."

42 The sentencing remarks continued after the recounting of the events and their consequences for the complainant in the following terms:

"The defendant is twenty one years of age and has no relevant prior convictions. He pleaded guilty at the earliest possible opportunity and he has to an unusual degree been open and honest about his criminal conduct. He has been in regular employment since leaving school and is well along the way to completing his apprenticeship as an electrician. Notwithstanding the soundly based reasons for the extreme reluctance of courts to impose an immediately effective sentence of imprisonment on a comparatively young first offender and the affect of such a penalty on the defendant's employment and related matters I consider that the needs of deterrents, both personal and general, require the imposition of a sentence of this nature."

"The sentencing Judge erred in law in that he failed to follow the common law of first deciding whether taking all relevant matters into consideration a term of imprisonment of a particular length was required and then proceeding to decide whether its suspension was appropriate."

44 The ground, if intended to require the process as stated in R v Percy [1975] Tas SR 62, unaffected by Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321, is misconceived. A sentencing tribunal is first required to determine whether a sentence of imprisonment, rather than a lesser penalty, is warranted and, if so, whether all or a portion ought be suspended. A suspended sentence ought not reflect a soft option. The Sentencing Act 1997 ("the Act"), s25, provides:

"25 Effect of suspended sentence

(1) A partly suspended sentence of imprisonment is taken for all purposes to be a sentence of imprisonment for the whole term stated by the court.

(2) A wholly suspended sentence of imprisonment is taken to be a sentence of imprisonment for the purposes of all enactments other than enactments providing for disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits."

45 Although there were differences between the justices in Dinsdale, the outcome is the same, namely: that an appellate court is required to consider the sentence as one, not a product of two disparate processes. To that extent, the observation of Neasey J in Percy at 73 that: "... I should have thought it rare that a sentence of imprisonment would be suspended on account of mitigating circumstances" has been weakened by the import of Dinsdale. Irrespective of that difference, the process does not permit "double use" of mitigating factors for sentence and suspension. Some mitigating factors such as provocation, incitement by, or responsibility of, others, voluntary cessation, restitution and the like might impact on the assessment of the appropriate penalty. Others such as age, prior record or its absence, rehabilitation and other characteristics subjective to the offender impact on suspension. Suspension on restricting conditions provided for by the Act, s24, which permits future powers of search, testing and undertaking of treatment over a long period, might depend on the length of the original sentence, or more significantly, on the period of supervision or the compliance with those conditions.

46 The required process is subsumed within a different judicial analysis of a "two stage approach" as against that by way of the "intuitive synthesis model" (R v Williscroft [1975] VicRp 27; [1975] VR 292; Verschuren (1996) 17 WAR 467; R v Shannon (1979) 21 SASR 442; R v Young [1990] 2 VR 951; Pavlic v R (1995) 5 Tas R 185; Bugmy v R [1990] HCA 18; (1990) 169 CLR 525; AB [1999] HCA 46; (1999) 198 CLR 111; Wong [2001] HCA 64; (2001) 207 CLR 584 and Punch v R (1993) 9 WAR 486).

47 In Markarian v R [2005] HCA 25; (2005) 228 CLR 357, the High Court revisited the issue of the differing models. The majority, Gleeson CJ, Gummow, Hayne and Callinan JJ, regarded the "staged sentencing process" as unhelpful. They stated at pars36 - 37:

"[36] No universal rules can be stated in those terms. As was pointed out earlier, much turns on what is meant by a 'sequential or two-tiered' approach and, likewise, the 'process of instinctive synthesis' may wrongly be understood as denying the requirement that a sentencer give reasons for the sentence passed. So, too, identifying 'instinctive synthesis' and 'transparency' as antonyms in this debate misdescribes the area for debate.

[37] In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed."

and following an analysis of Wong (supra), stated:

"In R v Thomson (2000) 49 NSWLR 383, Spigelman CJ reviewed the state of the authorities in Australia that deal with the 'two-stage' approach of arriving at a sentence, in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach."

48 McHugh J repeated his reasons stated in AB (supra) for "preferring the instinctive synthesis approach". Kirby J, whilst agreeing with much of the approach taken by the majority, considered the developments in State jurisdictions, including Pavlic (pars113 - 123) and concluded at 124:

"[124] Where so many judges in Australia, experienced in criminal trials and in sentencing, have expressed their disagreement with the approaches derived from Williscroft and Young, it is undesirable, in my respectful opinion, for this Court (even in the present watered-down version) to impose those authorities on sentencing judges throughout the Commonwealth."

49 Here the learned sentencing judge acted as permitted by the Act (Langridge v R [2004] TASSC 97; (2004) 12 Tas R 470). He determined the need for a term of imprisonment and its length, and rejected the plea of the appellant for its suspension.

51 Central to the judicial and academic considerations of the "two phase" and "instinctive synthesis" models lies the problem of challenge to the outcome and the need to disclose reasoning in its determination. If allowance ought be made for an early plea or co-operation for reasons of public utility, should it be identified and quantified? In the United Kingdom the commencing point for a plea is stated as being approximately 25 per cent. That practice has not been adopted in Tasmania (Pavlic v R (supra); Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1). More encouragement has been given in other jurisdictions and the practice within jurisdictions usefully summarised in R v Thomson (supra). But if the plea is but acceptance of the inevitable, should that "discount" be reduced and its basis explained? The converse is whether any judicial officer could ever, without the medieval debate concerning pins and angels, properly state the formulae for the conclusion (Pavlic (supra)). Fox and Frieberg in Sentencing in Victoria, 1 ed, at 442, par11.101 identify some 292 matters relevant to the sentencing process. English academics have identified but 229 (see Burton v R [2002] TASSC 64). Over the last five years 2,114 sentences have been passed in Tasmania, and in the twelve months to 31 December 2008, 481.

52 Many of those involved multiple offences, often for disparate events. Each raised differing life histories, effect on victims, prior criminal records and subjective characteristics. Within the confines of consistency are many variables. It is for that reason that this Court discourages comparison with individual sentences rather than a range in its appellate review (R v Franklin [1991] Tas R 54). The Act, s93, precludes vitiation of sentence through failure to provide reasons.

53 Ground 2 of the notice of appeal claims as an alternative to ground 1:

"2 In the alternative to ground 1, if the sentencing Judge gave weight to and took account of the mitigation and need to rehabilitate then he provided no or no adequate reasons as to whether and to what extent those matters were taken into account."

54 This ground is interdependent with grounds 1 - 4 which claim failure to take into account identified matters or apply a correct methodology.

55 The provision of reasons is in part required to permit proper appellate review (Conlan v Arnol [1969] Tas R (NC 9) 194), enable the offender to understand the seriousness of the conduct and inform the community of the basis of the outcome (Shrubsole v Rodriguez (1978) 18 SASR 233). The publication of the comments on passing sentence on a dedicated website by this Court has enhanced public awareness and lessened uninformed criticism. Here there has been a clear and unchallenged statement of the factual basis for the sentence following the disputed facts hearing. But they should not be read as if they were reasons for judgment (Shrubsole (supra); Sherlock [1975] TASSC 41). In the latter case, Nettlefold J observed:

"I do not think this Court should analyse a judge's reasons when passing sentence with too critical an eye. The remarks are often made off the cuff".

See also White v R [1962] HCA 51; (1962) 107 CLR 174.

56 Modern developments in legal practice require more detailed analysis and exposition. In P v Tasmania [2005] TASSC 107 and P v Tasmania (No 2) [2006] TASSC 35, this Court referred a matter back to the sentencing judge for a report, although there had been detailed reasons published as a judgment, (Tasmania v P [2005] TASSC 31) because counsel complained that the Court could not be satisfied as to which of the factual questions identified in detail had been determined adverse to the appellant. The Court stated in the former ex tempore judgment at pars7 - 8:

"Under the Criminal Code, s409(1), the Court has power to exercise any of the powers of the Supreme Court on appeals and applications in civil matters. Under the Supreme Court Civil Procedure Act 1932, s39(5), the Full Court has the power, if it is of the opinion that it has not sufficient materials before it to enable it to give judgment, to direct that the application before it be stood over for further consideration, and to direct that such issues or questions be determined as it thinks fit. That is a sufficient power to resolve the present problem on this appeal.

Accordingly, the Court directs that the further consideration and hearing of the appeal is stood over until first term next year and that the learned sentencing judge determine and report to the Court on the factual basis upon which he sentenced the appellant, so as to enable the Court to assess the severity of the appellant's crimes and his degree of culpability. The report is to state, as to each particular of counts 1, 2 and 6, what parts of the relevant evidence of each complainant were accepted for sentencing purposes."

"An order was made that the learned sentencing judge determine and report to the Court upon the factual basis on which he sentenced the appellant, so as to enable the Court to assess the severity of the appellant's crimes and his degree of culpability. The ex tempore reasons for making that order were reduced to writing and published. See [2005] TASSC 107.

The learned sentencing judge duly reported to this Court. In his report, he identified the witnesses whose evidence he accepted, the evidence that he did not accept, and the pleaded particulars of ill-treatment that he found had been established by the evidence."

57 In Victoria, the Court of Appeal may require the sentencing judge to provide a report under the Crimes Act 1958 (Vic), s573 (see generally; Rinaldi, The Role of a Trial Judge's Report in Sentence Appeals, (1980) 4 Crim LJ 28). In Newlands 6/4/75, the Court of Appeal said:

"... where on the face of it there appears to be little or nothing either in the nature of the offences or in the antecedents of the offender to justify departure from the primary rule prescribed by the section [Community Welfare Services Act, s192] it would be of great value to this Court if in their reports the learned trial judges indicated the reasons which induced them to exercise their discretion not to impose a minimum term."

58 In South Australia, the courts have followed the same practice as, in my experience, does this jurisdiction. In Napper v Samuels (1972) 4 SASR 63, Bray CJ observed at 68:

"I cannot think that a sentencing tribunal is bound to name all the courses that it might have taken and its reasons for not taking any of them, except the one actually adopted, under pain of being held to have overlooked some or all of the others."

59 The pressure on primary courts and an intentional omission of certain matters which, if published, would cause future harm to the offender was regarded by Wells J in R v Reiner (1974) 8 SASR 102 as appropriate reasons to limit the extent of disclosure of reasons. The fact that a trial judge does not spell out all the alternate penalties available does not imply that he or she did not consider them (R v Ciccone (1974) 7 SASR 110). The position is aptly summarised by Walters J in Tame v Fingleton (1974) 8 SASR 507 in his statement at 510:

"It is my view that the convicted person has, at least, a natural right to know the reasons for imprisoning him, not only as an assurance that he has been fairly dealt with, but to enable him or his legal advisers to determine whether he has good grounds for appeal."

60 Accepting that modern practice requires greater exposition, the basic principles remain sound. New South Wales appears to have adopted a more stringent approach (see generally, Potas, Sentencing Manual, Law, Principles and Practice in New South Wales, Judicial Commission of New South Wales, Law Book Company, 2001). In part, that is a product of the development by the Court of Criminal Appeal of guideline judgments (R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209; Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1991) 175 CLR 218; R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346) which are said to perform the functions of consistency (Romanic v R [2000] NSWSCA 524 and R v Wong [1999] NSWCCA 420; (1998) 48 NSWLR 340). Whilst consistency does not require mathematical precision (Bicheno v R [1999] NSWCA 148) where they are not applied, the Court of Appeal will expect the reasons for that departure to be articulated (Horne v R [1999] NSWCCA 391; R v Henry (supra)). In part, it is because of the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW), s5(1) and (2). With regard to that provision, Fitzgerald JA in R v JCE [2000] NSWCCA 498 stated at [19]:

"A sentencing judge must explain his or her decision. That might require discussion of some other sentencing options with reasons why those options were not adopted. For example, that is implicit in s 5(1) and expressly provided for by s 5(2) of the Crimes (Sentencing Procedure) Act. However, it is obviously unnecessary for every possibility to be discussed in every case. For example, it is unnecessary to explain why community service is not an appropriate sentence for a murderer. Further, the ultimate decision, for example, whether a term of imprisonment should be eight years or nine years, frequently involves a subjective judgment, based on experience as well as information, which cannot be precisely and comprehensively articulated."

61 The Court of Appeal requires from the sentencing judge:

(1) findings of fact and exposition of the reasoning process supporting those findings (Duffy [1999] NSWCCA 321);

(2) discussion of why other sentencing options were not taken (R v JCE (supra));

(3) to state findings in mitigation or aggravation (Hoadley, New South Wales Court of Criminal Appeal, 14 September 1990);

(4) to identify special circumstances (see Sentencing Manual (supra) 1B, Ch1);

(5) to specify any non-parole provisions (Crimes (Sentencing Procedure) Act 1999 (NSW)); statutory non-parole provisions apply.

62 In Tasmania failure to state a non-parole period by statute results in a grant of remission only (Sentencing Act, ss17, 18).

63 Those general principles apply to most jurisdictions. These reasons do not deal with the complexities in Commonwealth matters which require consideration of the regime required by the Crimes Act 1914 (Cth), Pt1B, Divs1 - 10.

64 The practice in this Court can be summarised as requiring:

(1) the making of clear findings of fact, especially if disputed;

(2) exposition of reasoning process and purpose in brief form;

(3) statement of reasons for departing from ordinary principles;

(4) identification of mandatory statutory provisions and their application in Commonwealth prosecutions.

The requirements differ significantly from those involving trial by judge alone (AK v Western Australia [2008] HCA 8; (2008) 82 ALJR 534). The comments of the learned sentencing judge will be considered in accordance with the above analysis.

"1 The sentencing Judge erred in law in failing to take into account or give any weight to:

(i) the factors raised on behalf of the Appellant in mitigation;

(ii) the desirability for the sentence to assist in the rehabilitation of the Appellant.

4 The sentencing Judge erred in law in that he grouped all non-custodial options together and displaced all those options on the basis of deterrence rather than concluding that a sentence was required and then engaging in a further decision as to whether such a sentence could be wholly or partially suspended.

5 The sentencing Judge erred in law in failing to act in accordance with section 25(1) and (2) of the Sentencing Act 1997 by giving undue weight to incarceration and failing to recognise the principle that a suspended sentence or partially suspended sentence was 'for all purposes' to be taken as a sentence of imprisonment or 'for all the purposes of all enactments' taken to be a sentence of imprisonment."

66 Ground 5 is readily rejected. The Act, s25, equates a suspended sentence with an immediate one. It requires no explanation as to why one should be preferred over the other.

67 The learned sentencing judge identified the early plea, good record, and history of the offender. He had previously made clear findings on the factual basis for the purpose of sentence. He then stated:

"Notwithstanding the soundly based reasons for the extreme reluctance of courts to impose an immediately effective sentence of imprisonment on a comparatively young first offender and the affect of such a penalty on the defendant's employment and related matters I consider that the needs of deterrents, both personal and general, require the imposition of a sentence of this nature."

68 In referring to "extreme reluctance", he encapsulated the principles of youthful offenders, prospects of reform, and the problems associated with incarceration. These problems are well known and the decisions of this Court are replete with their restatement. His Honour stated the detriment to the employment and prospects, but regarded the nature of the crime as warranting immediate imprisonment. That exercise was well within the discretion entrusted to him as a sentencing judicial officer. (See, Sentencing Reform: Help in the "Most Painful" and "Unrewarding" of Judicial Tasks, Kirby (1980) 54 ALJ 732). It did not offend consistency, the need for punishment, the protection of the community or general and personal deterrence. His reasoning is readily discernable. Notwithstanding modern complexity and demands "sentencing remains an art not a science" (Crisp J in Wise v R [1965] Tas SR 196 at 200).

69 The appellant has not established these grounds of appeal. I would dismiss the appeal.

FABIAN JAMES ACKERLEY TRUEMAN v STATE OF TASMANIA

70 I have had the benefit of reading the reasons of his Honour the Chief Justice in this matter with which I wholly agree. I would also dismiss the appeal.

Trueman v Tasmania [2009] TASSC 29

At a glance

Court

Decision date

Before

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Judgment (122 paragraphs)

Trueman v Tasmania [2009] TASSC 29 (11 May 2009)

Trueman v Tasmania [2009] TASSC 29 (11 May 2009)

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Cases Cited (27)