Balmer v Tasmania
[2006] TASSC 97
•16 November 2006
[2006] TASSC 97
CITATION: Balmer v Tasmania [2006] TASSC 97
PARTIES: BALMER, Liam James
v
TASMANIA, State of
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 50/2006
DELIVERED ON: 16 November 2006
DELIVERED AT: Hobart
HEARING DATE: 1 November 2006
JUDGMENT OF: Slicer, Evans and Tennent JJ
CATCHWORDS:
Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – When refused – Particular offences – Offences against the person – Generally – Failure to suspend a portion of the sentence or to impose a lesser parole period.
Sentencing Act 1997 (Tas), s17.
Siganto v R (1998) 194 CLR 656; Carr v R (2002) 11 Tas R 362; Hawkins v R [2004] TASSC 55; Power v R (1974) 131 CLR 623, referred to.
Aust Dig Criminal Law [1015]
REPRESENTATION:
Counsel:
Appellant: K L Baumeler
Respondent: A R Jacobs
Solicitors:
Appellant: Butler, McIntyre & Butler
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 97
Number of paragraphs: 29
Serial No 97/2006
File No CCA 50/2006
LIAM JAMES BALMER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J (Dissenting in Part)
EVANS J
TENNENT J
16 November 2006
Order of the Court
Appeal dismissed.
Serial No 97/2006
File No CCA 50/2006
LIAM JAMES BALMER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
16 November 2006
The appellant was sentenced to a three year term of imprisonment upon his conviction of causing grievous bodily harm, contrary to the Criminal Code, s172. A non-parole period of two years was fixed.
The amended grounds of appeal claim that the sentence imposed was manifestly excessive in that:
"1…
i His Honour gave insufficient weight to the appellant's personal circumstances and placed too much weight on the gravity of the offence.
ii His Honour erred in not considering whether a portion of the sentence should be suspended.
iii His Honour erred in imposing a non-parole period which was greater than half the sentence.
iv The sentence imposed was manifestly excessive in all the circumstances."
The appellant was aged 25 at the time of the imposition of the sentence. He had one previous conviction by a court of petty sessions for destruction of property committed in June 2000. A conviction was recorded and a compensation order made.
The indictment alleged that the appellant had caused grievous bodily harm to another man "by striking him to the face on numerous occasions with his fists and/or with his feet and/or with an inanimate object". The complainant, aged 50 at the time of the assault, has suffered the loss of an eye, has difficulty in carrying out common tasks such as pouring liquid into a glass, use of tools and general dexterity. He had been employed in the building industry at the time of his injuries and had lost considerable time and money from his employment. He continues to suffer psychological trauma.
Earlier in the evening there had been an exchange between the complainant and his eventual attacker. The exchange, a result of alcohol included the irrational statement of the appellant that he also had grandchildren. The learned sentencing judge dealt with this matter in his finding:
"During the course of the evening you went to the toilet. The complainant, a fifty year old male, was also in the toilet. He said something which caused you to take offence and strangely though the evidence did not disclose what this slight was. But at all events, I find that when you emerged from the toilet, you threatened the complainant and he apologised to you and said that he did not mean to cause any offence.
During the course of the rest of the evening, however, you nursed a grievance against the complainant about what he had said."
Later in the evening the appellant followed the complainant from the premises and the complainant was severely beaten. The complainant has no memory of the events, simply that of waking up with severe injuries to his face and head.
According to a barman, the appellant had made some further comment to the complainant just before closing time. The barman attempted to persuade the complainant from leaving the premises until after the appellant and his companions had departed from the area. He next saw the appellant running back through the club. At that stage the barman approached the appellant and recounted the exchange in the following terms:
"The only thing that was said, I said, 'Look', I said, virtually, 'What's going on', or, I said, you know, 'Come on get out of it'. And the, the only thing that was said, he said, 'He grabbed me by the throat'."
The complainant, found lying in a street near the club premises, was taken to hospital in a comatose state. Due to eye damage, an urgent transfer to the intensive care unit of the Royal Melbourne Hospital was arranged. Mechanical ventilation was necessary. On 25 June the offender was interviewed by police. When interviewed, the appellant was evasive and attempted to transfer responsibility for the confrontation to the complainant. On his version he struck the complainant some four or five times and had walked off.
DNA samples of tissue or blood of the complainant were found at three places on the jeans of the appellant, two places on his boot, one on the driver's door handle of the vehicle, and two places on a jacket inside that vehicle. The attack was prolonged, vicious and irrational. The sentence was not, of itself, manifestly excessive (Meers and Moles (1998) 101 A Crim R 329, Bennett 17/1990, Clark v Tasmania [2006] TASSC 61).
It was not appropriate to suspend portion of the sentence. The sentence was for three years and it was preferable for consideration of factors of risk, rehabilitation, response to sanction, participation in counselling and the like which better enabled future assessment.
But different considerations arise in relation to the question of parole. The Sentencing Act 1977, s17, relevantly provides:
"(2) A court that imposes a sentence of imprisonment on an offender, either on the conviction of the offender or on the determination of an appeal, or, on appeal, confirms the imposition of such a sentence, may order ¾
(a)that the offender is not eligible for parole in respect of that sentence; or
(b)that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order.
(3) The period specified in an order under subsection (2)(b) is not to be less than one-half of the period of that sentence.
(3A) Where a court imposes a sentence of imprisonment and does not make an order under subsection (2), the offender is not eligible for parole in respect of that sentence.
(4) In exercising its discretion under subsection (2), a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have regard to all or any of the following:
(a)the nature and circumstances of the offence;
(b)the offender's antecedents or character;
(c)any other sentence to which the offender is subject."
The amendment to s17 by the insertion of subsection (3A) appears to have been a response to a wider debate, not confined to Tasmania or Australia, loosely called "truth in sentencing". It was said to be a response to a general perception that either courts were too lenient in their determination of penalties, or that administrative decision-makers were permitting the release of offenders too early, or at a time which did not properly reflect the demands of punishment and retribution. The amendment provided that failure by a court to determine a non-parole period resulted in the offender serving all of the sentence, apart from any possible remission. A court was required to give reasons in either refusing to declare any ineligibility for parole, or fixing a period which was not less than one half of the term. A question arises as to whether a court must be affirmatively satisfied that there is good reason to fix a non-parole period at all (or allow the operation of subsection (3A), or is entitled to use the statutory minimum of one half as a commencing point). Subsection (4) provides some guide to the basis on which a discretion might be exercised. As such, its exercise governs a period between one half and all of the head sentence. The longer the sentence the more complex the calculation. Here, the nature and the circumstances of the offence required a sentence of imprisonment of three years. To that extent the nature and circumstances of the offence were subsumed into the head sentence. Here the offender's antecedents or character had greater significance in the determination of the non-parole period. The offender, aged 25, had one conviction only which involved the destruction of a window. He had had a good employment record. He had been in a relationship for some five years and, together with his partner, was responsible for four children aged 7, 6, 2 and 1. He left school at Year 10 and had led a relatively productive life until an industrial accident. It would appear he had proved to be a responsible parent. He had no history of violence.
Given my conclusion that the nature and circumstances of the crime itself and the harm caused had been subsumed into the head sentence, it was appropriate for the learned sentencing judge to give greater consideration to the discretionary matters referred to in the Sentencing Act, s17(4). The learned sentencing judge made little reference to the subjective characteristics of the offender and did not give detailed consideration to the factors relevant to determination of a non-parole period.
Although the difference in the calculation of the minimum period is only that of six months, in my opinion, ground 1 iii has been made out.
I would uphold the appeal, re-impose the sentence of three years, but fix the non-parole period at one half of the sentence. That order does not mean that the appellant is entitled to be released at the expiration of one half of his sentence. It simply means that he is eligible for consideration by the Parole Board.
File No CCA 50/2006
LIAM JAMES BALMER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
16 November 2006
The appellant, having been convicted of a charge of causing grievous bodily harm, was sentenced to three years' imprisonment and an order was made that he not be eligible to apply for parole until he had served two years of that sentence. Whilst the appellant appeals against the sentence on the ground that it is manifestly excessive, it is accepted by the appellant's counsel that the head sentence of three years' imprisonment is within range for an offence of the nature of that committed. The contentions advanced on behalf of the appellant in support of the appeal are that the failure to suspend any portion of the sentence, or to impose a lesser non-parole period, make the sentence manifestly excessive.
The appellant was found guilty by a jury. It fell to the learned trial judge to determine the facts for sentencing purposes. They are as enunciated in his Honour's comments on passing sentence and were not questioned on this appeal. His Honour said:
"Liam James Balmer, you have been found guilty of one count of causing grievous bodily harm.
During the evening of the 24 June 2005 you and a group of friends were drinking at the Devonport RSL Club. During the course of the evening you went to the toilet. The complainant, a fifty year old male, was also in the toilet. He said something which caused you to take offence and strangely though the evidence did not disclose what this slight was. But at all events, I find that when you emerged from the toilet, you threatened the complainant and he apologised to you and said that he did not mean to cause any offence.
During the course of the rest of the evening, however, you nursed a grievance against the complainant about what he had said. About eleven o'clock the complainant left the RSL Club being the worse for drink. And at that time you were in the car park and also the worse for drink. You demanded an apology from him for the perceived slight, but the complainant walked off to go to his home nearby. You went with him, all the while demanding that he apologise to you. I find that a short distance up the street you attacked him. You punched him and possibly kicked him in the face so badly that he was rendered unconscious. He suffered the most grievous injuries including eight facial fractures that needed plating and the total loss of his left eye. You left him on the nature strip unconscious and walked off with a companion who had come upon the scene. The victim was comatose when the ambulance arrived, and he had to be ventilated to be kept alive. His wounds were so serious that he had to be flown to Melbourne for surgery and he has, of course, been left with the loss of sight on the left side and other residual disabilities.
I find that your criminal conducted amounted to an irrational burst of uncontrolled, vicious violence fuelled by the consumption of too much alcohol. There was absolutely no excuse or provocation for the attack that you unleashed on your victim, and the courts have a duty to impose sentences in cases like this that will mark community condemnation of this kind of irrational violence and serve to deter you and others who might be minded to commit the same kind of violence criminal behaviour. As Mr Jacobs said a moment ago, these kinds of crimes committed in public places strike fear into the local community. Your victim has only just been able to return to work, but his capacity to earn is much reduced with substantial consequential financial losses to him both now and into the indefinite future. He has also suffered, and will continue to suffer, many deficits in his life that he didn't have before you attacked him. Some of those deficits have even spread to his partner and other members of his family. You are only twenty five years of age as Miss Baumeler just told me, and you are without relevant prior conviction. But nonetheless the commission of this crime is so serious that a substantial sentence of imprisonment must be ordered.
The orders of the court are a conviction, a sentence of three years' imprisonment, an order that you be ineligible for parole until you have served two years of that sentence and I order that payment of the Victims of Crime Compensation Levy be postponed until six months after your release from prison."
The assessment of whether a sentence is withinin range involves a consideration of all the components of the sentence, Siganto v R (1998) 194 CLR 656 [51]. An appeal may focus on a component of a sentence other than the head sentence: see, for example, Carr v R (2002) 11 Tas R 362 where the only issue pursued on the appeal against sentence related to parole eligibility. Not infrequently the sole issue on an appeal against a custodial sentence relates to whether all or part of the sentence should have been suspended.
It is not disputed that the appellant's criminal conduct warranted a sentence within the range of that which he received, three years' imprisonment. In general terms this is a relatively long sentence. The appellant's counsel submits that in the light of the appellant's age, 25, lack of any relevant prior convictions and personal circumstances, a portion of that sentence should have been suspended. I do not agree. As I explained in Hawkins v R [2004] TASSC 55 [12]:
"[W]here a long sentence of imprisonment has been imposed, it is rarely appropriate to suspend a portion of the sentence. An order that partly suspends a sentence is made on the assumption that it will be appropriate to release the prisoner after serving what is fixed as the operative period of the sentence. When the time comes to release the prisoner, that assessment may be shown to be quite wrong by intervening events such as the conduct of the prisoner during the operative period of the sentence. For this reason, it is rarely prudent to suspend a portion of a long sentence. When paying regard to matters such as the reform prospects of the recipient of a long sentence, the preferable course is to fix a parole eligibility period. The contingent benefit of a parole eligibility period may be far less attractive to a prisoner than the certainty of the suspension of a period of the sentence; however, the fixing of a parole eligibility period is a significantly more reliable means of resolving the appropriateness of a prisoner's early release, as that determination is made by the Parole Board immediately prior to the proposed release … Whilst substantially different consequences may flow from the suspension of a portion of a sentence than may flow from the fixing of a parole eligibility period, resort may be had to either or both of these sentencing options when recognising a prisoner's reform prospects."
In my view the course adopted by the learned sentencing judge of not suspending any portion of the sentence, but fixing a parole eligibility period, was entirely appropriate and did not result in the sentence being manifestly excessive because no portion of it was suspended.
The learned sentencing judge ordered that the appellant be eligible to apply for parole after serving two years (two-thirds) of the sentence. The appellant's counsel contends that this period is excessive and that he should be eligible to apply for parole after serving one-half of the sentence. In advancing this contention she said:
"The statutory basis for the half non-parole period exists and in my submission there was nothing in what his Honour had before him that required a deviation from that half".
This submission reflects a past phase in the history of parole and is contrary to the statutory provisions that currently apply. Prior to amendments made to the Sentencing Act 1997, s17, by the Sentencing Amendment Act 2002, which came into force on 1 October 2002, in the absence of a contrary order, a prisoner who had served six months of a sentence was eligible to apply for parole after serving one-half of the sentence. The 2002 amendments reversed that situation, a prisoner is now only eligible to apply for parole if the court expressly so orders. In addition, s17(7) requires that a court give reasons for making an order as to parole eligibility.
The question is not, as counsel for the appellant's submissions suggests, was there anything in the material before the learned sentencing judge that required deviation from an order making the appellant eligible to apply for parole after the service of one-half of the sentence? The question is, on the material before the learned sentencing judge, was it appropriate to order that the appellant be eligible to apply for parole and, if so, when should he be eligible to do so? The fixing of a parole eligibility period gives a sentencing judge the opportunity, when appropriate, to mitigate a penalty of imprisonment in favour of the rehabilitation of a prisoner through conditional freedom once the prisoner has served the minimum period the judge determines that justice requires the prisoner must serve, having regard to all the circumstances: Power v R (1974) 131 CLR 623 at 629 and Carr v R (supra) [96].
The appellant's criminal conduct was extremely serious. For no rational reason he followed the complainant and viciously assaulted him so badly that the complainant lost one eye and suffered eight facial fractures. The complainant was left unconscious on the pavement. Ambulance officers found it necessary to ventilate him in order to keep him alive. The complainant had to be flown to Melbourne for the treatment of his injuries. For the rest of his life he will suffer in a variety of ways from the consequences of the appellant's attack. In these circumstances there is no basis for challenging the learned sentencing judge's determination that the minimum time that the appellant should serve before being eligible to apply for parole was two-thirds of his sentence of imprisonment. That period is appropriate in the circumstances of this case and, incidentally, since the 2002 amendments to the Sentencing Act, s17, it is a period that has quite often been specified for parole eligibility.
I would dismiss the appeal.
File No CCA 50/2006
LIAM JAMES BALMER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
16 November 2006
I have had the benefit of reading the draft reasons of Slicer J and Evans J in this matter. I am unable to agree with the conclusion reached by Slicer J but do agree with that of Evans J.
As to the issue of parole, notwithstanding the October 2002 amendments to the Sentencing Act 1997, s17, the Corrections Act 1997, s68, still refers to a statutory non-parole period equal to one-half of an operative sentence. However, s69 was amended contemporaneously with the amendments to the Sentencing Act to provide that a prisoner was not to be released on parole where that prisoner was ineligible for parole by virtue of the operation of s17(3A) of that Act. The only remaining relevance of the "statutory non-parole period" referred to in the Corrections Act would appear to be the restriction placed on a sentencing authority in the Sentencing Act which prevents that authority from permitting parole prior to the prisoner having served one-half of his or her sentence.
The result of the legislation as it now stands is therefore that a prisoner is not automatically eligible for parole, although it is recognised he or she may be after serving one half of their sentence if a court so orders. I agree with Evans J that the correct question is not were there materials which justified the learned sentencing judge in departing from a non-parole period of one-half of the sentence. The question is, was the appellant entitled to parole and, if so, when.
The learned sentencing judge was obliged, when he did make an order for parole, to give reasons. One of the matters he was entitled to consider was the nature and circumstances of the offence. The weight to be given to a particular factor is not prescribed and it was open to the learned sentencing judge to place emphasis on this factor.
I am not satisfied that the grounds of appeal have been made out and would dismiss the appeal.
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