Bell v Tasmania

[2019] TASCCA 14

[2019] TASCCA 14

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

CITATION:                 Bell v Tasmania [2019] TASCCA 14

PARTIES:  BELL, Robert John
  v
  STATE OF TASMANIA

FILE NO:  CCA 216/2019
DELIVERED ON:  11 September 2019
DELIVERED AT:  Hobart
HEARING DATE:  20 August 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 – Assault, stealing and wounding – Two incidents – Partner's fingers jammed in door and neck attacked with taser – Woman stabbed to hand when protecting stomach – Global sentence of 4 years' imprisonment with non-parole period of 2½ years not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  M Truong
             Respondent:  A Shand
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2019] TASCCA 14
Number of paragraphs:  51

Serial No 14/2019

File No CCA 216/2019

ROBERT JOHN BELL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
GEASON J
MARTIN AJ
11 September 2019

Order of the Court (20 August 2019)

Appeal dismissed.

Serial No 14/2019

File No CCA 216/2019

ROBERT JOHN BELL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
11 September 2019

1. This is a sentencing appeal. The appellant pleaded guilty to charges of assault, stealing and wounding. Wood J convicted him, imposed a global sentence of 4 years' imprisonment, and ordered that he not be eligible for parole until he had served 2½ years of that sentence. She also made a community corrections order requiring supervision for 2 years after his release from prison. The appellant filed a notice of appeal, contending that the penalty imposed by each of the sentencing orders was manifestly excessive. 

2. At the hearing of the appeal, his counsel applied to amend the grounds of appeal so as to introduce other contentions. That application was refused, for reasons that were stated during the hearing and need not be repeated. At the conclusion of the hearing, the Court dismissed the appeal, reserving its reasons for publication at a later date. 

3. I have read the reasons for judgment of Martin AJ in draft form.  I joined in the dismissal of the appeal for all of the reasons stated by him.

4. I wish to add a little about the non-parole period of 2½ years.  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 he [the offender] must serve having regard to all the circumstances of his offence": Power v The Queen (1974) 131 CLR 623 per Barwick CJ, Menzies, Stephen and Mason JJ at 629. It was reasonably open to the learned sentencing judge to impose the non-parole period of 2½ years, which was five eighths of the head sentence, in this case, particularly in view of the appellant's record of prior convictions.

File No CCA 216/2019

ROBERT JOHN BELL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

GEASON J
11 September 2019

1. On 11 January 2019 Wood J sentenced the appellant, Robert John Bell, to 4 years' imprisonment for assault and wounding, with eligibility for parole after 2½ years of that sentence had been served.  In relation to a charge of stealing her Honour made a community corrections order which was to operate for a period of two years commencing upon the appellant's release from prison.

2. The appellant challenges his sentence on the single ground that it is manifestly excessive.

   Relevant legal principles

3. An appellate court sits to correct material error: Dinsdale v The Queen [2000] HCA 54, 202 CLR 321, per Kirby J at [57]–[60]. When a court concludes that a sentence is manifestly excessive, it has determined that there has been some misapplication of principle "even though where and how is not apparent from the statement of reasons": Wong v The Queen [2001] HCA 64, 207 CLR 584 at [58].

4. In Obeid v The Queen [2017] NSWCCA 221, 96 NSWLR 155 at [241], the Court of Criminal Appeal in New South Wales set out the relevant principles derived from House v The King (1936) 55 CLR 499 at 505; Lowndes v The Queen [1999] HCA 29, 195 CLR 665 at [15]; Dinsdale v The Queen [2000] HCA 54, 202 CLR 321; at [6]; Wong v The Queen [2001] HCA 64, 207 CLR 584; at [58]; Markarian v The Queen [2005] HCA 25, 228 CLR 357; at [25], [27]; and Hili v The Queen; Jones v The Queen [2010] HCA 45, 242 CLR 520; at [59] as follows:

   "Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

   It is not to the point that this Court might have exercised the sentencing discretion differently.

   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

   It is for the applicant to establish that the sentence was unreasonable or plainly unjust." 

5. It is well to keep these principles in mind before an appeal is brought. Frequently they are not. The "manifestly excessive" ground is too often advanced on the basis of little more than an impression that a sentence is harsh in the circumstances, shored up by a few carefully selected cases where lesser sentences have been imposed. The submissions on the appeal are a restating of the plea in mitigation buttressed with these cases. However error of principle is required to be demonstrated before appellate intervention is permitted. 

6. Save in circumstances where the sentence manifests error because it is a "gross departure" from the established norm: Griffiths v The Queen (1977) 137 CLR 293 at 310 per Barwick CJ, an appellant must do more than show that a sentence falls outside the range of comparable sentences. That is because comparable sentences do not establish that a particular range is correct and nor do they establish that upper or lower limits to the range are the correct upper or lower limits; Hili v The Queen (above). This is the inevitable consequence of the fact that sentencing occurs in the context of objectively different circumstances and subjectively different offenders, from one case to the next; Wong v The Queen (above) at [59]; Hili (above) [54]-[55].

   Discussion

7. With that in mind the appeal can be disposed of. The relevant facts and comments on passing sentence appear in the judgment of Martin AJ.

8. The separate episodes of offending involved the infliction of sustained physical and emotional harm with continuing effects upon the appellant's victims.  

9. In sentencing her Honour noted the conduct involved in each of the incidents of assault and wounding exhibited a complete lack of control. She considered that the gravity of the conduct, necessitated a stern sentencing response. That was correct.

10. Her Honour regarded the fact that the crime of wounding was committed whilst the appellant was on bail for the assault on his other victim, and while he was subject to a suspended sentence for other offences of violence, as aggravating matters. That was correct.

11. Her Honour identified the relevant sentencing considerations required to be applied. Having done so she observed that a heavy sentence was required to properly reflect the gravity of the appellant's offending. That was correct.

12. Her Honour gave appropriate deference to the appellant's personal background and the harmful effects it had had upon him.  That was correct.

13. In relation to the non-parole period, the appropriate period is the minimum period of imprisonment that justice requires to be served in the circumstances of the offending: Power v The Queen (1974) 131 CLR 623 at 627–628; Deakin v The Queen (1984) 11 A Crim R 88 at 89; Lowe v The Queen (1984) 154 CLR 606 at 615.

14. Having regard to the appellant's antecedents and the objective seriousness of the offending, a non-parole period which exceeded the minimum was a course open to the sentencing judge. In all the circumstances a minimum non-parole period of half the head sentence, as stipulated in the Sentencing Act 1997, s 17(3), would have been insufficient. Her honour so concluded. That was correct.

15. Sentences for crimes against women must reflect their insidious nature which increases the risk of it going undetected. That increases the risk of serious harm because undetected it can continue and even escalate. The considerations referred to in Director of Public Prosecutions v Karklins [2018] TASCCA 6 are relevant to sentence for offences of the type which occurred in this case.

    Disposition

16. The appeal is utterly without merit.  No error of principle is exhibited. Her Honour's approach is invulnerable to legal challenge.

17. For these reasons I joined in the order dismissing the appeal.

ROBERT JOHN BELL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

MARTIN AJ
11 September 2019

Introduction

1. The appellant pleaded guilty to the crimes of assault and stealing committed on 15 February 2017.  He also pleaded guilty to the crime of unlawful wounding committed on 18 July 2018.  For the crimes of assault and wounding, Wood J imposed a total sentence of imprisonment for four years which was determined on the basis of ten months for the assault and three years and two months for the wounding.

2. For the crime of stealing her Honour imposed a community corrections order with conditions.

3. The appellant appealed against each of the sentences on the basis that each was manifestly excessive.  At the conclusion of the oral submissions the Court dismissed the appeal. I now set out my reasons for dismissing the appeal.

Facts – assault and stealing – February 2017

1. There is no suggestion that the learned sentencing judge erred in respect of the facts.  I take the facts as described by her Honour in her sentencing remarks.

2. At the time the appellant committed the crimes of assault and stealing, he and the female victim were in a relationship which the learned sentencing judge described as "relatively casual". On 15 February 2017 the appellant went to the victim's house and asked her to look after a young child while the child's father went with police for a blood test. The appellant and the child had been passengers in the vehicle being driven by the child's father when it was intercepted by police and the father had recorded a positive roadside breath test.

3. The sentencing judge summarised the subsequent offending in the following terms:

   "The defendant returned about an hour later agitated and angry.  He asked the victim who she had been texting.  About a week before he had seen some Facebook messages which suggested she may have been interested in another person.  He asked for the return of jewellery which he had given her several months before.  She handed him the earrings and ring she was wearing and went to a cupboard in her bedroom where her jewellery was kept.  When she opened the cupboard door and reached in, the defendant slammed the door against her fingers causing them to bleed. He punched her to the head and pushed her onto the bed.  He yelled at her and produced a taser capable of emitting an electrical charge.  He put it to her collar bone area and discharged it causing her to receive an electric shock."

4. When police searched the appellant's residence two days later, the appellant produced the jewellery saying "they're mine".  He denied assaulting the victim and confirmed that the taser was his, telling police "you can get them off the Internet".

5. The sentencing judge found that the appellant intended to harm the victim.

6. As a consequence of the assault, the victim sustained cuts to her fingers from being jammed in the door, and a red mark on her collar-bone where the taser was discharged causing her to receive an electric shock.

7. Although she did not require medical assistance and her injuries healed, the victim suffered stress and is now distrustful of people, particularly men.  Following the incident she was evicted from the premises because of strict rules about visitors, and her stress was compounded because she was only able to find temporary or emergency accommodation.

Facts – wounding – July 2018

1. The victim of the crime of wounding, committed on 18 July 2018, was also a female known to the appellant.  However, her relationship with the victim was described by the sentencing judge as "acrimonious". The appellant's son was going out with the victim's daughter and concerns were held about drug taking.

2. On the day in question, the victim was helping a family member move premises. The appellant attended at the address to speak to the landlord, the victim's mother-in-law. Apparently he held a grievance about her selling items which belonged to him when his son was renting the premises.  A verbal exchange occurred during which the victim became heated.  A female neighbour took umbrage after hearing the appellant call the victim names.  She asked him to cease.  The appellant became irate and yelled at the neighbour.  He verbally abused the victim and threatened to assault her.

3. The victim asked the neighbour to go inside.  The appellant yelled at her in foul language, and ran towards her.  He took a fold-up knife from his pocket, opened it and exposed the blade.  The appellant knocked the victim to the ground and tried to stab her in the stomach region.  As a consequence of putting her hand in front of her stomach to protect herself, the victim received a laceration to her finger.  The appellant attempted to stab the victim again and, as he swung the knife, the victim grabbed hold of it causing a cut to her hand.

4. In a finding plainly open to her, the sentencing judge found that the appellant intended to wound the victim and cause her harm.  Her Honour observed that had it not been for the intervention of others, the appellant's attack upon the victim with the knife could have resulted in grave or fatal injury. 

5. The attack by the appellant was brought to a halt by other persons who grabbed and kneed the appellant, and took up a shovel to protect the victim.  The appellant left, yelling, "next time I see you, I will finish the fucking job". Police found the appellant nearby and observed an injury to his hand.  He had blood on both hands.  The appellant told the police where he had left the knife, under a house, and police located it.

6. As a consequence of the appellant's attack, the victim sustained a deep laceration to the webbing between her left thumb and index finger, and a second laceration to her ring finger.  They were full thickness wounds.  The laceration to the webbing was three centimetres in length and the other was a one centimetre laceration on the side of the interphalangeal joint, with the ligament visible at the base of the wound.

7. The victim's injuries required surgery and stitches.  The victim was required to wear a splint for eight weeks and a mitt for six weeks. She suffered intense pain for approximately two months and needed physiotherapy. At the time of sentencing the victim had lost strength in her hand and lacked feeling in her ring finger and thumb. At times she was experiencing pain. The victim has been advised that she will never regain the full use of her hand.

8. The psychological effects on the victim were described by the sentencing judge:

   "She has suffered emotionally and psychologically to a significant extent.  She had to have her wedding and engagement rings cut off.  They cannot be fixed.  She blames her husband for not being there to protect her and her marriage has broken down.  She is resentful of her daughter for bringing the defendant into her life. She was subjected to a terrifying experience and memories of the event stay with her.  She now distrusts people, she does not socialise anymore and is reluctant to be outside her house. Her sleep is adversely affected and she has nightmares.  She felt so unsafe in her home that she has moved house."

Matters personal

1. At the time of the offending in February 2017, the appellant was aged 57 years.  He was 58 at the time of the wounding.  The sentencing judge described the appellant's background as follows:

   "His personal background was indeed harmful.  He ran away from home at the age of 14 to escape his mother's partner who was abusive and predatory.  He lived in Kings Cross with other runaways and was immediately introduced to amphetamines.  He has battled drug addiction all his adult life.  He has sought help from time to time and had some periods of success but relapsed.  He relapsed whilst on the recently ordered court mandated drug program. He commenced using methamphetamines (Ice) approximately 12 years ago. He has some serious health concerns resulting from his drug use such as hepatitis C, and lung and nerve damage. It seems he has not attended a residential drug program but is willing to do so. 

   The defendant has managed to pursue various forms of employment from time to time. He moved to Tasmania in 2011 to follow his adult children and to spend time with them."

2. The sentencing judge observed, correctly, that the two episodes displayed a "complete lack of control".  Counsel for the appellant suggested in submissions that the appellant suffered from a bi-polar condition and that a lack of medication may have contributed to his behaviour.  Her Honour ordered a preliminary mental health assessment which reported that such a condition was very unlikely and out of step with the appellant's symptoms and current knowledge of that disorder.  The sentencing judge accurately summarised the relevant findings:

   "A report from Forensic Mental Health Services refers to his responses as reactive, explosive and as overreacting to perceived or real slights, and as 'emotional dysregulation'.  This trait is consistent with a harmful upbringing and the chaos of his criminogenic background. His drug abuse, particularly amphetamines and cannabis, increases instability of emotion.  It is thought that there is evidence of substance use disorder and his behaviour is a product of his personality vulnerabilities, arising from his personal background, and his substance abuse and offending history.  It is plain that his drug abuse and problems with anger management require intervention involving psychological assessment and treatment and drug rehabilitation."

3. The appellant has a long record of prior offending.  The relevant matters were summarised by the sentencing judge as follows:

   "Thirty-eight years ago he was sentenced to a term of 12 months' imprisonment for break and enter dwelling house.  Notable other prior convictions include unlawful assault in 1993, steal with actual violence whilst armed with a dangerous weapon and using personal violence in 1993 which attracted a 4 year gaol term, in 1997 convictions for two offences of going armed so as to cause fear, four charges of common assault and entering a dwelling house, serious assault in 2004 dealt with in the Mount Isa District Court, crimes dealt with in the Townsville District Court in 2007 including assaults occasioning bodily harm which attracted a 3 year gaol term.  His Tasmanian record commences in 2012 and relevantly includes three offences of common assault committed in November and December 2017 and January 2018 and breaches of police family violence order and an interim family violence order. The assaults involved punching, hitting and striking the same individual, a woman.  He received a nine week term of imprisonment, part of which was suspended. His history of offending includes other types of offending such as driving offences, numerous instances of driving whilst disqualified, drug offences, and firearms offences.  In May 2018 he received a drug treatment order involving six months imprisonment suspended on condition he comply with the order.  He failed to comply with the order, it was cancelled and together with sanction days and the activation of the suspended portion of the sentence of imprisonment for the three common assaults I mentioned, he has been in custody serving sentences from 18 July 2018 until 9 January this year."

1. At the time of the wounding, the appellant was on bail for assaulting the first victim and in respect of three other offences of assault.  He was also the subject of a suspended sentence for other offences of violence.

Conclusion

1. These crimes were serious.  The appellant was carrying weapons and used them.  The female victims were vulnerable. The appellant intended to harm both victims. He intended to stab the second victim.  That attack was sustained and ended only because others intervened.

2. The sentencing judge correctly observed that protection of the community was an important consideration and that there was a "strong need" for a sentence that would amount to an effective personal deterrent.  Her Honour also referred to sending a message to others that violence inflicted upon women will not be tolerated by the criminal courts: Gregson v Tasmania [2018] TASCCA 14 at [37]. These factors were particularly important in the exercise of the sentencing discretion.

3. In reaching a global sentence of 4 years' imprisonment for the assault and wounding, the sentencing judge began with a sentence of 14 months for the assault which she would have imposed had it not been for the appellant's plea of guilty.  After allowing for the plea of guilty, her Honour reached a period of 10 months.  In addition, in reaching the period of 10 months, her Honour took into account the principle of totality.

4. In respect of the crime of wounding, the sentencing judge indicated that, had it not been for the appellant's plea of guilty, she would have imposed a sentence of imprisonment of 4 years. After allowing for the plea, her Honour reached a period of 3 years and 2 months as the appropriate period.

5. In this way, her Honour reached the total sentence of 4 years' imprisonment for the assault and wounding, and directed that the appellant be eligible for parole after serving 2½ years.

6. In respect of the crime of stealing, the sentencing judge initially imposed a probation order, but in view of the recent amendments to the Sentencing Act 1997 she later substituted a community corrections order with appropriate conditions concerning supervision and treatment.

7. The principles governing appeals against sentence on the basis that the sentence is manifestly excessive are well settled: Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8]. There was no error by the sentencing judge. Her Honour did not overlook any material fact and her approach to the determination of the sentences was appropriate. The insurmountable difficulty facing the appellant was the fact that the sentences were well within the range of the sentencing discretion.

8. In my opinion, this appeal was devoid of merit.