Allen v Tasmania - [2019] TASCCA 7

[2019] TASCCA 7

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Allen v Tasmania [2019] TASCCA 7

PARTIES:  ALLEN, Robert Michael
  v
  STATE OF TASMANIA

FILE NO:  1499/2018
DELIVERED ON:  18 June 2019
DELIVERED AT:  Hobart
HEARING DATE:  30 May 2019
JUDGMENT OF:  Blow CJ, Geason J and Martin AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Manslaughter – Intentional stabbing to leg severing artery – Sentence of eight years' imprisonment with non-parole period of five years not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  K Baumeler, A McKenzie
             Respondent:  M Wilson, L Pennington
Solicitors:
             Appellant:  McLean, McKenzie and Topfer
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASCCA 7
Number of paragraphs: 20

Serial No 7/2019
File No 1499/2018

ROBERT MICHAEL ALLEN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
GEASON J
MARTIN AJ
18 June 2019

Order of the Court

Appeal dismissed.

Serial No 7/2019
File No 1499/2018

ROBERT MICHAEL ALLEN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ

18 June 2019

This is a sentencing appeal. Early on the morning of 11 April 2016 the appellant, Robert Allen, killed a man named Justin Tonner by stabbing him to the right leg with a knife, severing the popliteal artery. Mr Tonner bled to death. The appellant was tried on a charge of manslaughter, found guilty, and sentenced by Brett J to eight years' imprisonment, with a non-parole period of five years. He contends that that sentence was manifestly excessive.
The verdict of the jury was a majority verdict, not a unanimous verdict. That is to say, either 10 or 11 of the jurors agreed upon a verdict of guilty. In accordance with s 383 of the Criminal Code, the learned trial judge asked the jury a question as to the basis of the verdict, and was told that all the jurors who had joined in the majority verdict had concluded that the appellant committed the crime of manslaughter by an intentional act, rather than by culpable negligence. The learned trial judge said that he took the same view of the evidence, and sentenced the appellant accordingly.
His Honour made findings of fact for sentencing purposes. In his sentencing comments he stated his findings as to the circumstances in which the crime was committed as follows:
"Prior to Mr Tonner's arrival at Ms Knowles' house, you were seated in the kitchen with her, your former partner Ms Gearman, and another man who lived there. This group had spent the night in conversation. You and some of the others had consumed some drugs, in particular, in your case, methylamphetamine and cannabis. You had just started to consume some alcoholic drinks. The conversation had been pleasant, the mood was peaceful, and there is nothing to suggest that you were other than in good spirits.
All of this changed very abruptly just after 6am, when Mr Tonner arrived at the house. His arrival was unexpected. It also seems to have been unlawful because it was in breach of a family violence order, which had been made for the protection of Ms Knowles. Mr Tonner was clearly angry and agitated. The toxicology results suggest that he had also consumed some drugs that morning. These include methylamphetamine. I have no doubt that the drugs he had consumed contributed to his agitated state and his subsequent behaviour.
It is clear that he had an issue with you. He had obviously concluded, probably because he had seen your motorcycle parked outside, that you were present in the house. Those of you in the kitchen became aware that he had arrived when he burst into the house and said, 'Where the fuck is Cindy.' Ms Knowles attempted to placate him, and was almost successful in having him leave. However, he changed his mind and forced his way past her into the house. On his way, he assaulted her and then Ms Gearman and he then entered the kitchen. When he entered the kitchen, he immediately physically attacked and assaulted you by punching you, causing an injury to your mouth. I am satisfied that you attempted to defend yourself, grappled with him, and you and he eventually ended outside. I am satisfied that you deliberately forced him outside because you were concerned about the safety of the women and other occupants of the house, including your own young child and Ms Knowles' children. Your actions to this point were defensive and completely justified.
By the time you reached the outside of the house, you were in possession of a large foldout knife. I am satisfied that you already had the knife with you and that you did not pick it up on your way out the door, as you claimed to the police. Although I do not accept your explanation to the police, the manner in which you came to be in possession of the knife, in my view, has no significant relevance with respect to your culpability for what happened later. I am prepared to accept that you initially produced the knife as a defensive measure, in the hope that its production would cause Mr Tonner to retreat and leave the property. However, I am also satisfied that very shortly after producing the knife, and while you were still outside 30 Annear Court, you stabbed Mr Tonner with the knife at least once. I am satisfied that you did not inflict the fatal wound at that time, but you probably inflicted one of the other wounds then. I will accept that at this point in these events, that is, when you first used the knife to inflict injury on Mr Tonner, you were still acting defensively in a struggle with him, a struggle which he had initiated by his attack on you in the house.
However, I am also satisfied that your production and use of the knife, and the causation of injury to Mr Tonner did then cause a significant change in his attitude to the struggle. I am satisfied the Crown assertion that 'the tables quickly turned' is accurate and occurred at this point in time. Thereafter, you had the upper hand and he was either attempting to extricate himself from the engagement or attempting to persuade you to do so. The fighting outside 30 Annear Court did not go on for very long. I am satisfied that Mr Tonner retreated in the direction of 31 Annear Court, with you, in possession of the knife, close behind him.
It is clear that no one person saw all of the events which took place from this time on. At least no one person among the witnesses. It is impossible for me to be satisfied of the precise sequence of these events. The various neighbours who gave evidence, in my view, gave truthful testimony but no one had the events under continuous view. Further, the ability of each to observe these events was affected by poor light, distance and the frenetic nature of what they were seeing. I think that Ms Gearman was probably present during more of what took place than she was prepared to concede at the trial. However, on the basis of the combination of the witness testimony and the forensic evidence, in particular the presence and location of blood and the nature and number of the wounds inflicted on Mr Tonner, I am satisfied of the following matters. You pursued him to 31 Annear Court, continued to struggle with him and, during the struggle, stabbed him a number of times, thereby inflicting the various wounds which were identified at the autopsy. The struggle took place initially outside the gate to that house on the footpath and then moved to inside the fence on the front yard. The wound to the back of the right knee was caused by a deliberate stabbing to that area, which penetrated his body to a considerable extent, and thereby severed the popliteal artery. This caused immediate and significant blood loss. It was this wound and the consequent blood loss which led to Mr Tonner going into hypovolemic shock, and it was this which led to his death. I am satisfied that this wound was inflicted towards the end of your struggle with him and at a time when he had been significantly weakened as a result of the other wounds. Your attack upon him came to an end when he managed to grab hold of the blade of the knife and only let it go after you had promised on the life of your grandmother not to pursue any further attack upon him. I have no doubt that at this time, he believed that he had been badly injured, and that his life was under threat. In arriving at these factual conclusions, I have accepted the evidence of Julie Allie and Ms Gearman, that they saw you use a stabbing motion towards the leg area of Mr Tonner. I have also had regard to the fact that large amounts of his blood were found in the front yard area of No 31, and none outside No 30 except for the unrelated transfer stain on the road.
After he let go of the knife, you then left him and ran to your motorcycle. Your intention was to leave the scene. I accept that you probably did not realise how badly he was hurt, and you have probably also heard police sirens. However, you still left him to his fate and made no attempt to render assistance to him.
I am satisfied that, at the least by the time that you left him, he was aware that he was seriously hurt. The neighbours could hear him groaning in pain and he was calling for help. It was still partly dark and he must have been in fear and uncertain as to whether he would receive any assistance. As events transpired, police and then ambulance officers provided him with prompt assistance, but by then, of course, it was too late. He had lost too much blood and his death was inevitable."
None of his Honour's findings of fact were disputed at the hearing of the appeal.
In those comments, the learned trial judge referred to the fatal wound and other wounds without going into detail as to the other wounds. There was uncontroversial evidence that the deceased had suffered six stab wounds, comprising two wounds to the left upper arm, one to the posterior right upper arm, one to the anterior lateral right knee, the fatal wound to the posterior right knee, and one to the anterior medial right knee.
During the hearing of this appeal, counsel for the State asserted that Mr Tonner was lying face down when the appellant inflicted the fatal wound. However the learned trial judge made no finding to that effect. It appears from the transcript of the trial that one witness, Ms Gearman, said that Mr Tonner was face down, but that another witness, Ms Allie, during her cross-examination, accepted that Mr Tonner was on his back, and that he stayed on his back for the whole of the time that she saw him on the ground. It is clear that this Court is not in a position to make a finding as to whether Mr Tonner was lying face down when the fatal wound was inflicted. For the purposes of this appeal, the Court must proceed on the basis that no such finding was made.
His Honour received seven victim impact statements. They were provided by the deceased's mother, father, four sisters, and one brother. His Honour summarised the impact on the family as follows:
"Mr Tonner's death has understandably devastated and caused significant ongoing grief and a sense of loss to his large family. I have received and read the victim impact statements from his mother and father and his five siblings. Apart from the initial shock of learning of his death, they have each suffered ongoing emotional and psychological effects as a result of his loss. These effects have extended, of course, to the wider family, which includes his nieces and nephews and the partners of some of his siblings. More than one of his siblings has required psychological care and medication in order to deal with these consequences. In one case, the impact has been serious enough to lead to hospitalisation, and that person is still receiving daily treatment. All of these consequences are consistent with the understandable impact of the unexpected and sudden loss of a brother, son and uncle, particularly when the loss has occurred in such a violent and traumatic way."
The appellant was 46 years old when he committed the crime and 48 when sentenced. He had a bad criminal record, but little in the way of convictions for crimes or offences involving violence. On charges of trespass, assault and destroying property relating to an incident in December 2001, a magistrate imposed a wholly suspended sentence of one month's imprisonment in 2004. In relation to a domestic violence incident in January 2003, a judge sentenced him to 12 months' imprisonment on six charges of assault under the Criminal Code in May 2004. He has been convicted and sentenced for dozens of offences since then, but none of them have involved violence. He went to prison for six weeks in 2006 for driving without a licence, breaches of bail, and twice contravening the conditions of a notice. In 2007, in relation to various crimes of dishonesty and other charges, a magistrate gave him a wholly suspended sentence of 15 months' imprisonment and made a drug treatment order. In July 2009 a magistrate sentenced him to 10 months' imprisonment on a large number of dishonesty, drug and driving charges, as well as imposing some short suspended sentences for other offences. In May 2012 he was sentenced to 14 hours' community service for breaching a family violence order, but that did not involve violence. In January 2014 he was given a suspended sentence of three months' imprisonment for driving whilst disqualified, and an earlier suspended sentence of 28 days' imprisonment for a similar offence was activated.
Some common mitigating factors were absent in this case. The appellant was not a youth, he was not a first offender, and he did not plead guilty.
The relevant mitigating factors, and my comments in relation to them, are as follows:
·     The stabbing of Mr Tonner was not planned, and was precipitated by his violent and unlawful entry into the house and his attacks on Ms Knowles, Ms Gearman and the appellant in the presence of their children.
·     The appellant was injured by Mr Tonner in the course of their fighting. First, he was injured when Mr Tonner punched him to the mouth. Later he suffered a knife wound to one finger when he struggled with Mr Tonner for possession of the knife, but that wound was his own fault.
·     When the appellant decided to leave the scene without doing anything to help Mr Tonner, he did not realise how badly he had hurt him.
·     The appellant suffered post-traumatic stress disorder as a result of the realisation that he had killed a man, and attended 12 counselling sessions for that condition.
·     As a result of Mr Tonner's death, a number of acts of retribution were directed towards the appellant. Before he was bailed, someone broke into his house and stole all the contents. In January 2018, he was run over. That resulted in several injuries. He had to have some teeth removed as a result of hitting his head when he fell to the ground. He suffered a right knee injury resulting in limited movement and constant pain. Knee surgery was expected to go ahead after he was sentenced. He suffered some sort of injury to his lower back, and there was a cut to one ear that required stitches. On another occasion, when his bail conditions were varied to enable him to move to a new address, the occupant of that residence was threatened, and the offer of accommodation was withdrawn. When he moved to another residence, he was threatened there with firearms, and had to move again.
·     The appellant was fearful for his safety in prison, with justification. The learned sentencing judge commented that that would cause the prison authorities to take steps for his protection, and that that might lead to him experiencing a more difficult time in prison, but that that was not unusual in such cases, and that he had to accept that the prison authorities could adequately protect the appellant.
·     The appellant had not been able to see his infant son since the day in question. The mother of that child refused to allow contact when he was on bail.
·     The appellant had not committed any crimes or offences involving violence for over 13 years.
Counsel for the appellant submitted that this was not such a serious case of manslaughter as to warrant a head sentence of eight years' imprisonment. They relied heavily on some comments made by Crawford CJ, with whom the other members of the Court agreed, in Hales v Tasmania [2009] TASSC 100, where his Honour said, at [41]:
"[41] The permissible degrees of punishment for manslaughter cover a very wide range. R v Withers (1925) 25 SR (NSW) 382 at 397; Lyons (1993) 69 A Crim R 307 at 311, 313 and 316. Nevertheless, it can be said that imprisonment for 8 to 10 years for the crime has been reserved for the most serious form of it, and the question that is raised squarely by this appeal is whether the case falls within that description."
Those comments were made by his Honour after an analysis of the circumstances and sentences in seven Tasmanian manslaughter cases over the years from 1960 to 2006. At the hearing of this appeal, counsel provided the Court with information on dozens of Tasmanian manslaughter sentences over the period from 1989 to 2017. From the information provided, I have the impression that sentences for manslaughter in cases involving intentional acts of violence have tended to become somewhat heavier over the years.
Information as to sentencing in other cases is useful in a sentencing appeal, but has its limitations. The proper approach is as stated by Porter AJ in Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1, where his Honour said, at [26]:
"While it is true that consistency in sentencing is something to be strived for, manifest excessiveness or manifest inadequacy is not to be determined by comparing one case with another, and the exercise is not assisted by such comparisons. Consistency is not demonstrated by, and does not require, numerical equivalents. The consistency that is sought is consistency in the application of relevant legal principles: Hili v The Queen (2010) 242 CLR 520 at 535 [48], [49]."
The fundamental principles relating to the determination of sentencing appeals are as stated in House v The King (1936) 55 CLR 499, where Dixon, Evatt and McTiernan JJ said at 504-505:
"But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
From the sentencing comments of the learned trial judge it is not possible to identify any specific error that could have affected his sentencing discretion. It is therefore necessary to determine whether the sentence of eight years' imprisonment, with a non-parole period of five years, was "unreasonable or plainly unjust".

It is true that it was Mr Tonner, not the appellant, who initiated the use of violence on the occasion in question. And it is true that it was reasonable at first for the appellant to use a knife and injure Mr Tonner while acting defensively. However the crime of manslaughter was committed under very different circumstances. The appellant had gained the upper hand. Mr Tonner had begun to retreat. The appellant chased him with his knife. Mr Tonner was then unarmed and vulnerable. The appellant caught up with him and stabbed him six times. He stabbed him with sufficient force for the knife to penetrate his trousers three times and sever the popliteal artery. The learned trial judge found that the fatal wound was inflicted towards the end of the struggle, at a time when Mr Tonner had been significantly weakened as a result of his other wounds. Having regard to the appellant's age, his criminal record, the fact that he did not plead guilty, and all the other relevant circumstances, I am not persuaded that the head sentence of eight years' imprisonment was unreasonable or plainly unjust. In my view it was towards the heavy end of the range of permissible sentences, but not manifestly excessive.
A non-parole period may not be less than one half of the period of the head sentence: Sentencing Act 1997, s 17(3). A non-parole period should be the minimum time that a judge determines justice requires that an offender must serve having regard to all the circumstances of his or her offence: Power v The Queen (1974) 131 CLR 623 per Barwick CJ, Menzies, Stephen and Mason JJ at 629. All of the circumstances of the offending, and all relevant personal circumstances of the offender, should be taken into account in determining a non-parole period, but the seriousness of the offending and the prospects of the offender's rehabilitation are particularly significant. In this case, the appellant's aggressive retaliatory conduct in pursuing and repeatedly stabbing a retreating assailant, his criminal record, and the fact that he did not demonstrate remorse by pleading guilty were all particularly relevant to the fixing of the non-parole period. Having regard to all the circumstances, I consider that the five-year non-parole period was well within the bounds of reasonableness. If the Parole Board thinks fit, the appellant may spend as long as three years in the community under the supervision of a parole officer, and subject to appropriate parole conditions.
For these reasons, I consider that the appellant's head sentence and non-parole period were not manifestly excessive. I would therefore dismiss the appeal.

File No 1499/2018

ROBERT MICHAEL ALLEN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

GEASON J

18 June 2019

I have read the Chief Justice's reasons for decision. I agree with them and have nothing I wish to add.

File No 1499/2018

ROBERT MICHAEL ALLEN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARTIN AJ
18 June 2019

I agree the appeal should be dismissed for the reasons given by Blow CJ.