Attorney-General v McIntosh

[2002] TASSC 97

[2002] TASSC 97

CITATION:              Attorney-General v McIntosh [2002] TASSC 97

PARTIES:  ATTORNEY-GENERAL

FOR THE STATE OF TASMANIA

v
  McINTOSH, Gavin Raymond

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 60/2002
DELIVERED ON:  13 November 2002
DELIVERED AT:  Hobart
HEARING DATES:  5 November 2002
JUDGMENT OF:  Underwood, Slicer and Evans JJ

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other Crown Law officer - Applications to increase sentence - Offences against the person - Grievous bodily harm - Whether sentence manifestly inadequate.

Aust Dig Crim [1023]

REPRESENTATION:

Counsel:
           Appellant:  L A Mason
           Respondent:  K L Baumeler
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Butler McIntyre & Butler

Judgment Number:  [2002] TASSC 97
Number of Paragraphs:  18

Serial No 97/2002
File No CCA 60/2002

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
v GAVIN RAYMOND McINTOSH

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

UNDERWOOD J
SLICER J
EVANS J
13 November 2002

Order of the Court

Appeal dismissed.

Serial No 97/2002
File No CCA 60/2002

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
v GAVIN RAYMOND McINTOSH

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

UNDERWOOD J
SLICER J
EVANS J
13 November 2002

1. The sole ground of this Crown appeal is that the sentence imposed was:

"… manifestly inadequate in all the circumstances."

1. The notice of appeal seeks:

"… Order quashing the sentencing order of two years imprisonment … upon the Respondent's conviction in respect of two counts of assault … and one count of causing grievous bodily harm … and substituting such greater sentence …".

1. The terms of the notice are, strictly speaking, correct.  However the actual sentence imposed was one of two years and five months but its formulation was designed to accommodate certain provisions of the Corrections Act 1997, including s79(3). The learned sentencing judge took into account time spent in custody and:

"… reduced[d] what [he] considers[d] an appropriate sentence by five months to take into account that period of time."

Circumstances of crime

1. The respondent pleaded guilty to assaulting Steven Leonard Maxwell (the "first complainant") and to assaulting his friend David Gregory Bannister (the "second complainant").  He was found guilty of causing grievous bodily harm to Steven Renata Maxwell, the first complainant's father, "by stabbing him in the face, neck and twice in the abdomen with a knife".

1. The respondent and the first complainant had known each other for some years and there was no evidence of a history of personal animosity between the respondent and Steven Renata Maxwell.  During the course of the evening of 15 February 2002, a number of people were drinking near a youth centre and under a bridge at Glenorchy.  The first complainant was significantly affected by alcohol and has no memory of what was said before the first assault.  But it appears that the respondent made some pointless derogatory remarks about the first complainant's father and suddenly punched and struck the first complainant.  A third man, David Bannister, attempted to intervene and was struck, chased and assaulted for his trouble.  Those two series of acts were the subject of the first two counts comprised in the indictment.

1. The first complainant left the scene and some of the group moved to the nearby bus mall.  Steven Renata Maxwell (who had been told of the attack), accompanied by his wife, daughter, and one or two others, went to the mall to find his son and confront the respondent about the incident.

1. Mrs Maxwell approached the respondent and demanded to know where her son was and what had been done to him.  She had brought a baseball bat with her, for protection, and had it beside her when she accosted the respondent, who possessed a knife.  When he moved towards Mrs Maxwell, Steven Renata Maxwell grabbed the respondent around the head and shoulder.  The respondent stabbed Mr Maxwell to the face, neck, and twice to the abdomen.  Mr Maxwell then grabbed the baseball bat from his wife and chased the respondent away from the scene.  The following day the respondent went to police, admitted involvement, and claimed that he had struck the blows in self-defence.

1. The respondent pleaded guilty to the two acts of assault and was found guilty of the act of stabbing.

1. Consistent with the jury verdict, the learned sentencing judge found:

"A confrontation took place.  In the course of it, you stabbed the unarmed complainant four times.  You made no effort to avoid the confrontation.  While Mr Maxwell, Snr was not entitled to accost you in the way he did and to use or threaten to use force, your reaction to whatever threat you perceived was grossly disproportionate to it.  Mr Maxwell, is, in my view, extremely lucky to be alive having regard to the number of blows you struck, the force you used and the area at which you directed those blows.  Your whole attitude that evening was one of belligerence and it was only after you had stabbed Mr Maxwell and realised the seriousness of your position in causing him such grievous wounds that any kind of panic or regret set in."

He further found that the respondent had shown no genuine remorse and that the impact on Mr Maxwell had been very severe.

1. This is a Crown appeal (Everett v R and Phillips v R (1994) 181 CLR 295; Griffiths v R (1989) 167 CLR 372 and although the sentence imposed could be said to be at the lower end of the range, it does not follow that it was "manifestly inadequate".

1. The effective sentence of two years' and five months' imprisonment related to a series of events which formed part of the one escalating incident.  Although the respondent remained the aggressor, the fact that the stabbing followed the approach by a person holding a baseball bat and while he was being held in a headlock, were matters relevant to any assessment of the degree of culpability.  The components of the sentence, namely two and three months, and two years respectively, recognised the different degrees of culpability, but nevertheless it is the overall sentence which requires consideration.  It is not sufficient to identify and isolate one component and claim "inadequacy" since the question of totality remains relevant to the assessment.

1. The respondent has an extensive record for violent and other forms of antisocial conduct, and the crimes were committed whilst he was on parole.  At the time of sentencing, it would appear that the respondent was subject to another sentence and the order of the learned sentencing judge that:

"These offences were committed while you were on parole and the sentence I impose on you today is to be served after you have completed the sentence or sentences in respect of which you were paroled.  As the time in custody between 16 February and today will not count as part of that sentence, I will reduce what I consider an appropriate sentence by five months to take account of that period of time.  Although you did breach parole, it was only on one occasion - unlike another prisoner whose eligibility for parole I restricted earlier today.  So I will not make any special order about eligibility for parole in your case"

took into account the principles of totality and the effect of breach of parole.

1. The first assault, might not in itself, have warranted the imposition of a custodial sentence.  Taken with the escalating course of conduct, it formed part of the series of events and the allocation of two months' imprisonment can be seen, in part, as an attempt to accommodate the parole complication.

1. The findings of "disproportionality" and "perceived threat" took into account the fact that the respondent saw himself liable to physical retaliation and the presence of the baseball bat, whilst recognising that the jury had not accepted the conduct to be reasonable in the circumstances.  Material tendered during the course of the sentencing hearing certainly showed a violent disposition, but it also contained material suggestive of a drug related impairment to personality.

1. This was not a case involving home invasion (Bennett v R 17/1990) or entry in order to exact revenge (Meers and Moles v R (1998) 101 A Crim R 329) or serious domestic violence (Brown v R 15/1987).  The case of Inkson v R (1996) 6 Tas R 1 involved an unprovoked attack in the street which rendered the victim helpless and defenceless against further acts of violence which cumulatively led to his death. In that case, the Court of Criminal Appeal reduced the sentence to three years' imprisonment. The attack here, whilst unjustified, contained elements of fear, retaliation and response to confrontation.

1. We are not persuaded that the length of imprisonment is indicative of error, either by comparison to the permitted range of sentences or by reference to the internal reasoning shown in the comments on passing sentence.

1. This is a Crown appeal which ought not succeed simply because we believe that it is at the lower permitted range.

1. In our opinion, the appeal ought be dismissed.