Brown v Tasmania
[2006] TASSC 103
•30 November 2006
[2006] TASSC 103
CITATION: Brown v Tasmania [2006] TASSC 103
PARTIES: BROWN, Clinton Edward
v
TASMANIA, STATE OF
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 60/2006
DELIVERED ON: 30 November 2006
DELIVERED AT: Hobart
HEARING DATE: 1 November 2006
JUDGMENT OF: Crawford, Slicer 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 – Five counts of creating a nuisance – Whether sentence manifestly excessive.
Aust Dig Criminal Law [1018]
REPRESENTATION:
Counsel:
Appellant: K L Baumeler
Respondent: P Jones
Solicitors:
Appellant: Butler McIntyre & Butler
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 103
Number of paragraphs: 97
Serial No 103/2006
File No CCA 60/2006
CLINTON EDWARD BROWN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
SLICER J (Dissenting)
TENNENT J
30 November 2006
Orders of the Court
Appeal dismissed.
Serial No 103/2006
File No CCA 60/2006
CLINTON EDWARD BROWN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
30 November 2006
The appellant pleaded guilty to five counts of creating a common nuisance contrary to the Criminal Code, s141(1). In each case he committed the crime by letting out the contents of an LPG gas cylinder, thereby endangering the lives and safety of members of the public. On 9 August 2006 he was convicted and sentenced to 12 months' imprisonment commencing on 13 July 2006, the execution of the last three months of which were suspended upon condition that he be of good behaviour for a period of 18 months of his release from prison. In addition, a probation order was made for the same period of 18 months. He has appealed to this Court.
In summary, the facts were the following. On 29 August 2005, the family of the appellant contacted Mental Health Services out of concern for his mental welfare. At about 7.25pm, a team from Mental Health Services went to his unit, the doors of which were locked. Despite persistent knocking, he would not open the door or speak. A strong smell of gas was coming from the unit, along with the sound of a gas cylinder being turned on and off. Police were called and they immediately evacuated two nearby units where elderly persons lived. Police negotiators and fire service personnel attended and the immediate area was closed off to members of the public. That involved closing off sections of Long Point Road, Fisher Avenue and Sandown Avenue in Sandy Bay. Eventually, communication with the appellant was established and negotiations resulted in him coming out of the unit at about 9pm. It was found that he had been expelling LPG gas from an 8.5 kilogram cylinder for the purpose of inhaling the gas. Fire service personnel cleared the room and the appellant was taken to hospital and placed on some form of mental health order. However, he was released within a day.
Next day, 30 August 2005, police returned to his unit because of a report by a concerned member of the public about a smell of gas coming from it. Police officers evacuated the same residences as on the day before and also a doctor's surgery and hairdressing shop on either side. Communications with the appellant could not be established, but the sound of a gas bottle being turned on and off could be heard. Fire service and ambulance personnel were called to the scene. Police and fire service personnel closed off the immediate area to public access because of the risk of explosion. Long Point Road was closed. Eventually, he was heard to ask fire service personnel to "leave me alone, I'm not doing anything wrong". Access was gained and he was found lying on his couch holding another 8.5 kilogram LPG gas cylinder with the outlet approximately 1 centimetre from his mouth. The unit was ventilated and he was again taken to hospital.
A month later, on 30 September 2005, he checked into the MidCity Hotel in central Hobart. On 5 October guests reported a strong smell of gas coming from his room. He opened the door slightly to a staff member and claimed that he was using the gas to clean up an asthma pump. He refused to fully open the door. Access was gained with a pass key and he was required to settle his bill and check out, which he did. Another 8.5 kilogram LPG gas cylinder was found in his room with its tap turned on, expelling gas.
A little over three weeks later, he checked into Woolmer's Inn in Sandy Bay. On or about 29 October 2005 he was observed carrying another 8.5 kilogram LPG gas cylinder into the motel. At about 9.45am a guest from a room above his room reported a strong smell of gas. A staff member could hear a hissing sound and a strong smell of gas was coming from the room. The appellant did not respond to knocking on his door. Eventually, his seemingly distorted voice was heard. Police were called at about 11am. He was removed from the room and left the premises.
Later that same day, he checked back into the MidCity Hotel. At about 5.30pm staff received reports from guests about a strong smell of gas coming from his room. He did not respond to knocking on his door. On it being opened with a pass key he was found lying on the bed with a large LPG gas cylinder on his chest. He was observed to have severe burns to his right arm that were caused by the frigid gas emanating from the bottle. Ambulance and fire personnel were called. Staff members returned to the room and noticed that the gas cylinder's outlet was very close to the appellant's face with a constant trickle of gas emanating from it. He was required to turn it off. The air in the room was cleared of gas and ambulance officers treated him for severe burns to his right arm and chest. Because of the potential for explosion that was revealed by gas level tests, about 12 guests from level 2 of the motel were evacuated. The appellant was again taken to hospital and placed on a mental health order.
On being interviewed by police two weeks later, he admitted possession of the gas cylinders and to having been responsible for turning them on, but claimed to be unsure as to why he did that. He said that he hugged the cylinders because they were a comfort to him.
The appellant admitted that after the first incident he was aware of the potential seriousness of his actions. The learned judge was informed that LPG is heavier than air and tends to pool, so that it will not dissipate quickly. A mixture of LPG in air becomes flammable when the concentration of LPG reaches two percent by volume. At that low concentration, ignition may be effected by a flame (cigarette, match, pilot flame), spark (electrical equipment and appliances, power tools, power outlet or light switch being activated) or static (clothing, furnishings, carpets) resulting in a fire of short duration but of very high temperature. As the concentration of LPG increases the likely fire damage also increases, and a large fire, with a "flash" or "explosion", will occur. A flammable mixture of LPG and air can result in fire and "explosion" damage and personal injury and asphyxiation can result if the LPG concentration increases to the point where air is removed from the environment. Prosecuting counsel pointed out that the consequences of the appellant's crimes could have been devastating with a number of people injured and property destroyed, and that could have been brought about merely by someone switching on a light.
The appellant was 35 years old at the time. He had some convictions associated with alcohol and drinking/driving prior to his 20th birthday and when 18 years old a conviction for committing a nuisance. In June 2004 he was convicted of having driven a motor vehicle, on 23 May 2004, with alcohol in his body when he was not the holder of a licence. He had a blood/alcohol analysis of .166. He was also convicted of driving while unlicensed and failing to stop at the scene of an accident. He was fined and disqualified from driving. Within less than two months of those convictions, that is on 6 August 2004, he drove while disqualified and was convicted of that in December 2004. On 24 April 2005 he committed an offence described as returning to licensed premises. Presumably it was consequent upon him being required to leave licensed premises. See Liquor and Accommodation Act 1990, s80(2). He also committed the offence of failing to give his name. On 30 May 2005 he committed the offence of breaching bail. He was convicted and fined for those three offences on 15 September 2005, which was between the second and third of the crimes that are the subject of this appeal.
On 15 April 2005 he twice breached a restraint order and between 22 and 29 July 2005, only about a month before the first of these crimes, he breached a family violence order. (For those offences, on 21 December 2005, he was convicted and sentenced to two months' imprisonment, all suspended on a condition of good behaviour for two years, and a probation order for 12 months was made.) On 16 September 2005, between the second and third of these crimes, he breached a family violence order. On 29 September 2005, he committed that offence again, and on 2 October 2005, between the third and fourth of these crimes, he committed that offence once more. (He was convicted of those three offences on 7 June 2006 and sentenced to 28 days' imprisonment, all suspended for two years on a condition of good behaviour.) The family violence offences did not involve actual physical violence but arose from the making of telephone calls. It was not made clear by his counsel, but it appears likely that his breaches of a family violence order and breaches of a restraint order were directed at his previous partner.
The appellant was educated to Year 10. He worked in the hotel and restaurant industry for about eight years and in the retail industry for about 11 years. He ceased to be employed in about late 2004 and, according to a report of a Forensic Mental Health Service psychologist, Damien Minehan, dated 20 December 2005, he was in receipt of a disability support pension. Mr Minehan reported that the appellant had been unable to continue employment due to a back injury. At the sentencing hearing on 4 August 2006, his counsel said she was instructed that he had been looking for employment at some unstated time, but indicated that he had decided not to continue doing so until after the Court proceedings had been completed. He played soccer from boyhood until 2003 and had represented Tasmania and South Australia at various levels. In recent years he had been captain of his club.
He commenced a relationship with a woman in 1988. They had two sons born in 1990 and 1994. There was a history of conflict in the relationship and there had been three separations for up to a year at a time. Eventually they separated permanently in about 2003. According to his counsel, he had not seen his sons for three years.
At an unspecified time he suffered a back injury upon lifting at work. From time to time it immobilised him. He was on a waiting list for a spinal operation. In 2001 he was assaulted and suffered what his counsel referred to as a fractured blow-out to the left eye. She said that he became terrified of going out in public and commenced to attend a clinical psychologist, Dr Andre De Clerck, to assist him with that. However, Mr Minehan reported in December 2005 that issue had been resolved.
His counsel said that in 2003 his mother died and he finally separated from his partner, whereupon his health deteriorated further. She did not explain that. She also said that it was then that he "turned to the use of gas". I will return to that aspect shortly.
It appears that as a result of his family violence offences, he participated in and completed a family violence offender intervention program over four full days between March and May 2006, presumably at the direction of his probation officer.
The circumstances of the crimes were referred to by his counsel and by Mr Minehan in his report. His counsel made two particular assertions that are difficult to accept and to understand. They were that the crimes were "simply a cry for help, it was an attempt to hurt himself". She explained neither assertion.
Far more detail concerning his inhalation of gas and the crimes is to be found in Mr Minehan's report, notwithstanding that the purpose of it was to provide information to the magistrate who was about to sentence the appellant on 21 December 2005 for the two breaches of a restraint order and the breach of a family violence order committed the previous April and July. Mr Minehan reported that the appellant had used cannabis as a teenager and had consumed large amounts of alcohol at times of stress, such as after his mother died, but not at the time of the report. He denied the use of any other substances except for LPG. He told Mr Minehan that, as an adolescent in South Australia, he inhaled a gas his friends had "found" outside a dentist's surgery and, believing that it was the same substance, he began abusing LPG. Mr Minehan reported that the immediate effects of LPG when inhaled can include euphoria, confusion, restlessness, slurred speech, weakness, nausea, unconsciousness and, in extreme cases, sudden death. The appellant's "hugging" of the gas bottle allowed him to open the valve and inhale its contents, even after becoming disorientated or passing out. As a result of his behaviour he received "cold burns".
Mr Minehan found that the appellant presented as being keen to make a good impression on others, particularly in the context of a report for a court. His tendency was to deny his use of LPG and to minimise and justify his own behaviour in relation to his former partner. However, when confronted and presented with evidence as to what he had done he fully admitted his abuse of LPG. It appeared that his use of it began during a period when he was experiencing considerable distress, in an attempt to cope with his situation. Mr Minehan concluded that his abuse of LPG was an attempt by the appellant to cope with his situational difficulties that included his relationship breakdown, difficulties relating to access to his children and chronic pain from his back injury.
The detailed report of Mr Minehan did not support counsel's bald assertion that the crimes were "simply a cry for help" if what counsel meant was that he wanted others to help him. The circumstances of the crimes as stated to the learned sentencing judge did not support that conclusion either. The appellant made it clear that he did not want the assistance or intervention of others and that all he wanted was to be left alone and allowed to inhale the gas in peace. The other assertion of his counsel that his crimes amounted to an attempt to hurt himself, was not borne out by the facts of the case or Mr Minehan's report either, notwithstanding that as a result of his conduct that constituted the fifth count, he suffered third degree burns that required hospital treatment.
Mr Minehan reported that the appellant did not have symptoms of a major mental illness and that it was very unlikely that his recent offending behaviour was related to a mental illness. He had a number of personality characteristics that placed him at risk of future unstable relationships, conflict and impulsive or reckless behaviour. He did not have a personality disorder. He had a strong tendency to deny, minimise and/or justify his behaviour. Cognitive testing did not suggest any gross impairment in his functioning, although if he continued to abuse LPG he would be at great risk of permanent brain damage. As stated earlier, his abuse of the gas appeared to have been an attempt to cope with his situational difficulties. He was at a risk of misbehaving similarly again if placed under similar stress and no intervention was attempted.
His counsel accepted that it was not a case of diminished responsibility due to a psychiatric disorder and that the appellant's undoubtedly dangerous actions were performed in the course of satisfying his own impulses or urges, although she repeated what she had said before, but which is impossible to understand, that the intention of the appellant was to self-harm. She said that he had since apologised to the MidCity Hotel and Woolmer's Inn and had "taken every possible step to turn his life around". She said that he was attending Dr De Clerck "on a monthly basis to assist him with his management". That was not explained. His counsel referred to his attendance and completion of the Family Violence Offender Intervention program referred to earlier, and said that it had helped him with his decision-making. She said that the appellant was "looking forward to moving his life on" and wanted "to set a good example for his sons ... (and) to have further contact with them", to recommence employment and "to get his life back on track". I note that at the time of the sentence, the appellant was the subject of a probation order that operated from 12 months from 21 December 2005.
In his comments on passing sentence the learned judge summarised the facts concerning the crimes and continued:
"It appears that as a teenager you inhaled from a cylinder used by a dentist and decided to inhale LP gas in the same way. Although you were experiencing some personal problems at the time, including a marriage break-up, lack of access to your children and an injured back, you were suffering from no psychiatric illness. You simply decided to inhale the gas just as one might sniff petrol. You knew, at least after the first occasion, that the discharge of gas caused a high risk of explosion and therefore a high risk of injury and damage, together with inconvenience to the general public, yet you persisted in your criminal conduct.
Your counsel described your crimes as a cry for help, but that view is not supported by the psychologist's report that I was given. You are 36 years old and have some convictions for breaches of a recently imposed family violence order, but I am told that they did not involve actual violence. It is encouraging to see that you have taken steps on the road to rehabilitation by pleading guilty and by completing a 100 hour family violence offender intervention program. I see punishment, but not general deterrence as important in the sentencing process, coupled with a need to encourage your rehabilitation."
The grounds of appeal are:
"1His Honour made an error in fact in rejecting the submission that the criminal conduct was a 'cry for help', a finding which was not substantiated by the psychologist's report tendered. Further, His Honour made an error in not requesting a pre-sentence report or updated forensic mental health report.
2His Honour erred in failing to give sufficient weight to the appellant's personal circumstances and attempts at rehabilitation.
3His Honour erred in failing to consider whether a wholly suspended sentence was sufficient in the circumstances and/or to impose a wholly suspended sentence.
4 The sentence was manifestly excessive in all the circumstances."
Ground 1 has two parts. The first complains that the learned judge made an error of fact when he rejected counsel's submission that the crimes were "a cry for help". The learned judge did not reject that submission. What he did was point out that such a description was not supported by the psychologist's report. If my understanding of what amounts to a cry for help is correct, the observation was correct. As the report was relied on by the appellant's counsel, the learned judge was obliged to consider its contents and his comment was an appropriate one. There was no error in it. The second part of the first ground complains that the learned judge erred when he failed to obtain a pre-sentence report or an updated forensic mental health report. I am satisfied that no error occurred. The appellant was represented by counsel who made comprehensive submissions and presented and relied on a forensic mental health report that was prepared for a court after these crimes were committed and which dealt extensively with the circumstances of his use of LPG and his mental and psychological state. Counsel for the appellant did not suggest that a further report be sought by the learned judge or that it might be of assistance in the sentencing process. Further, the appellant was not in the category of a young offender for whom pre-sentence reports are more often sought. It is ironic that it was counsel's submission that if any of the grounds of appeal are upheld and the appeal succeeds, this Court should immediately proceed to re-sentence the appellant. It was not suggested that the Court should first obtain a pre-sentence report.
The second ground raises no specific error that can be identified. Counsel for the appellant conceded that his personal circumstances and attempts at rehabilitation are factors to be considered when the Court comes to consider, under ground 4, whether the sentence was manifestly excessive.
The third ground complains, in effect, that the learned judge failed to consider adequately whether a wholly suspended sentence of imprisonment should have been imposed. There is no reason to think that the learned judge did not adequately consider whether that was appropriate. What is clear is that his Honour determined that a wholly suspended sentence was inappropriate in this case. He did, however, suspend three months of the imprisonment, thereby reducing by three months the length of time the appellant would spend in prison for his crimes provided that he was of good behaviour for 18 months following his release.
The fourth ground of appeal raises manifest excessiveness in the sentence. A consideration of it requires that regard be had to all of the matters to which I have referred, including the personal circumstances of the appellant, the circumstances of the crimes, his reasons for committing them and his attempts at rehabilitation since doing so. However, in that last regard, his counsel's assertions that the appellant intended to look for employment, to move on with his life, to set a good example to his sons and to get his life back on track had little if any value by way of mitigation. Such statements are easy to make. For a Court to accept that rehabilitation has taken place, it must be demonstrated with actions.
Counsel were only able to refer to three sentences of judges for creating a nuisance since 1990. There was in fact a fourth in a case of Weston on 17 October 1991. The circumstances of those cases were very different to those in this case and because of that, and the very low number of sentences for the crime, no acceptable sentencing range for the crime can be identified.
The circumstances of the crimes were bizarre. No-one connected with the case has claimed to have heard of a person using LPG as if it was a drug. Nevertheless, it was made clear to the learned sentencing judge that the crimes did not originate from any mental or psychological disorder. The appellant turned to gas in the way others might turn to alcohol or some other drug. In doing so, he created a very grave risk of death or serious injury to many and of considerable damage to property and, as was observed by the learned judge, that was particularly so when he committed the crimes at the MidCity Hotel and Woolmer's Inn. He persisted with his crimes, resenting interference from others, notwithstanding that, certainly after the first of them, he knew of the potential seriousness of his actions. The learned judge had every right to consider punishment (I presume that his Honour was using that word in the sense of denunciation) as an important factor in the sentencing process. There was no error in imposing 12 months' imprisonment and suspending three months of it for such dangerous and criminal conduct committed on five occasions, notwithstanding his pleas of guilty and the other mitigatory factors I have discussed.
I would dismiss the appeal.
File No CCA 60/2006
CLINTON EDWARD BROWN v DIRECTOR OF PUBLIC PROSECUTIONS
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
30 November 2006
The appellant was sentenced to a term of imprisonment for 12 months following his plea and conviction to five counts of creating a common nuisance, contrary to the Criminal Code, s141(1). Three months of the sentence were suspended, although that portion of the order would do no more than replicate the appellant's entitlement to remission if he were to remain of good conduct within the prison. I would not therefore regard the suspension of portion of the sentence as a term ameliorating its effect. The sentence was 12 months' imprisonment.
The appellant had been convicted, on his plea, of five counts of creating a common nuisance on 29 and 30 August 2005 and 5 and 29 October 2005. On each occasion he had endangered the lives and/or safety of the public at his unit in Sandy Bay or at two hotels within the city. On each occasion, he had released the contents of an LPG cylinder whilst remaining in a closed room. On each occasion, the potential for danger caused by the appellant required the attendance of police, fire and ambulance officers. The learned sentencing judge correctly identified the conduct in the terms:
"LP gas is, of course, a highly volatile and flammable substance and your criminal conduct exposed the general public to very grave risks of death or serious injury, as well as substantial property damage."
The sentencing hearing occurred on 9 August 2006 and sentence was imposed on 9 August.
The grounds of appeal state:
"1His Honour made an error in fact in rejecting the submission that the criminal conduct was a 'cry for help', a finding which was not substantiated by the psychologist's report tendered. Further, His Honour made an error in not requesting a pre-sentence report or updated forensic mental health report.
2His Honour erred in failing to give sufficient weight to the appellant's personal circumstances and attempts at rehabilitation.
3His Honour erred in failing to consider whether a wholly suspended sentence was sufficient in the circumstances and/or to impose a wholly suspended sentence.
4The sentence was manifestly excessive in all the circumstances."
The learned sentencing judge had before him the record of prior and subsequent convictions of the appellant. They disclosed that he had been before the court of petty sessions on 21 December 2005 and been sentenced to a two month period of imprisonment, wholly suspended. That conviction related to a breach of a family violence order and the conduct appears to have been between 22 July and 29 July 2005 and two breaches of a restraint order said to have been committed on 15 April 2005. The record also shows that on 7 June 2006, the appellant pleaded guilty to three breaches of family violence orders said to have occurred on 16 September 2005, 27 September 2005 and 2 October 2005.
In the course of her plea in mitigation, counsel for the appellant told the learned sentencing judge matters which included the following:
"My submissions today will demonstrate a deterioration of a community like man, a strong family member, to a man who has seen a severe deterioration in his mental health, and to a point today where he has taken every active step to remedy those problems.
… in 2001 he was severely assaulted … and suffered major injuries … It was at this time that he became terrified of going out into the public and it was at this time that he attended Dr André De Clerk to assist him with his difficulties as a result of the assault.
…
[His] health … deteriorated further following the death of his mother from cancer in 2003 and the final separation of his relationship. It was at this point that the accused's behaviour turned to the use of gas."
Counsel then referred to the convictions for family violence or breaches of those orders and indicated to the learned sentencing judge that they referred to "phone calls only" and did not involve actual physical violence. She then told the court that the appellant had attended a course connected with the Family Violence Intervention Program, and then stated:
"While this issue - the safety of the public was at issue, it's my instructions that it certainly wasn't - the accused was simply a cry for help, it was an attempt to hurt himself, he realises that his actions could have placed the pub - can - or sorry, will place the public in danger, but it was certainly a cry for help. On the first two counts that he is faced before the Court today, he was admitted to the Royal Hobart Hospital, where he was immediately released rather than kept for a period of time. During the five - over the five counts that the accused is before the Court, he voluntarily checked himself into the Royal Hobart Hospital on no less than three occasions. It was not until the final occurrence where the accused was severely hurt with third degree burns, which required daily changing of bandages that led him to being admitted to the hospital for an extended period of time. I note that he has spent twenty two days in custody before being granted bail. That period was primarily spent in the prison hospital receiving treatment for the severe third degree burns that he received. I note that this was his first time in custody, that he - another person who is use[d] to this jurisdiction or use[d] to rather the court procedures, and it was a very eye opening experience."
His Honour referred to the example of petrol sniffing and observed:
"So this isn't a case of diminished responsibility due to psychiatric disorder engaging in bizarre conduct, not to minimise his problems as reflected in there, this is a case of somebody doing something dangerous in the course of satisfying their own impulses or urges or something like that?"
Counsel appears to have agreed, but then stated, "… my instructions are that it was an intention to self harm".
The following exchange then occurred between the learned sentencing judge and counsel:
"his honour: … Petrol sniffing, of course, is well known. So this isn't a case of diminished responsibility due to psychiatric disorder engaging in bizarre conduct, not to minimise his problems as reflected in there, this is a case of somebody doing something dangerous in the course of satisfying their own impulses or urges or something like that?
ms williams: Certainly, your Honour, and perhaps further to that, it was - my instructions are that it was an intention to self harm, there was - there's no -
his honour: And I accept, perhaps, that on the first occasion a lack of awareness of the danger caused, but after the first he couldn't help but be aware of the trouble he caused.
ms williams: Yes, and certainly, if I may, your Honour, refer to count 4, the police in fact escorted Mr Brown away with the gas bottle.
his honour: I did notice that.
ms williams: And at no stage did they remove that from his -
his honour: No. Anyway, he probably would have bought another one had they done that. But - yeah, I was just - I must say when I saw the Crown facts I was proceeding upon the assumption that this - not on the assumption, with the thought that this might be a case of diminished responsibility by reason of psychiatric illness, but it's not that sort of case, is it? I understand.
ms williams: Thank you, your Honour. My instructions are that since this time, since the last incident that Mr Brown has taken - well the accused has taken every possible step to turn his life around. He attends Dr Andre De Clerk on a monthly basis to assist him with his management. He attended the family violence program, an arduous program, which helped with his decision making, and he's certainly, from reaching the most lowest point in someone's life, has turned that around for positive steps and is looking forward to moving his life on. He wants to set a good example for his sons, he wants to have further contact with them, he wants to recommence employment and he wants to get his life back on track. These are the final matters he has before the Court and he's looking to move on with his life. Not only did he have the third degree burns from these - from the gas, which is a daily reminder of the extent - hurt that he caused himself, but is also the daily reminder of having to attend court, having to - sorry, withdraw that.
In conclusion, your Honour, this is a man who had a strong employment history and was an active member of the community. The death of his mother, the end of the relationship, and the lack of contact with his two sons, has led to a deterioration of his mental health and has seen him brought before the Court. There have been no subsequent offences and there was - and the burns he suffered are everlasting memories of the effects of his actions."
In reply, counsel for the respondent stated:
"Just in relation to the - my learned friend indicated that it was a cry for help in as much, but I suppose when - a cry for help to a certain degree, but by enlarge [sic] help was on hand, the family were getting the CAT team around and trying to offer help. I'd be submitting that perhaps it was also someone satisfying - call it an addiction, call it a very strong substance abuse problem, satisfying that regardless of the risk or consequences involved to himself or to anyone else. So whilst there's a certain degree of cry for help there's a certain degree of, I'll satisfy, for want of a better term, the itch that I've got and I'll do it regardless of what it's going to do to anyone else."
It would appear from the above that the plea had advanced through distinct bases as an explanation for the conduct, namely:
(1)Some attempt of self-harm or at least its component.
(2)A cri du coeur associated with mental disturbance, perhaps originating from his initial injury and exacerbated by the course of the break-up of his family relationship.
(3)Substance abuse as a form of escape, in the sense that inhalation of the gas altered the mental state or state of consciousness and could be regarded as a form of self indulgent escapism.
It is difficult to discern from the submissions made by counsel what precisely was advanced on behalf of the appellant.
The learned sentencing judge dealt with those submissions in the following way:
"It appears that as a teenager you inhaled gas from a cylinder used by a dentist and decided to inhale LP gas in the same way. Although you were experiencing some personal problems at the time, including a marriage break-up, lack of access to your children and an injured back, you were suffering from no psychiatric illness. You simply decided to inhale the gas just as one might sniff petrol. You knew, at least after the first occasion, that the discharge of gas caused a high risk of explosion and therefore a high risk of injury and damage, together with inconvenience to the general public, yet you persisted in your criminal conduct.
Your counsel described your crimes as a cry for help, but that view is not supported by the psychologist's report that I was given. You are 36 years old and have some convictions for breaches of a recently imposed family violence order, but I am told that they did not involve actual violence. It is encouraging to see that you have taken steps on the road to rehabilitation by pleading guilty and by completing a 100 hour family violence offender intervention program. I see punishment, but not general deterrence as important in the sentencing process, coupled with a need to encourage your rehabilitation."
In my opinion, his Honour erred in approaching the sentence on that basis. He had been led to do so by the contents of a report dated 20 December 2005 and submitted to the court of petty sessions during the sentencing hearing conducted on 21 December 2005. The report was prepared with respect to the family violence matters, but specifically addressed the questions of inhalation of gas and its use on these occasions. The report recorded historic use of nitrous oxide as a teenager and that such substance abuse led to later use of LPG. The report indicated that his:
"'hugging' of the gas bottle allows him to open the valve and inhale its contents, even after becoming disoriented or passing out."
The report continued:
"There was no evidence of suicidal or self harm ideation or intent at the time of this assessment, although there is little doubt that his previous behaviour has placed him at considerable risk, perhaps intentionally at times."
The report continued in relation to the use of the gas:
"Mr Brown presents as an individual who is keen to make a good impression on others, particularly in the context of a report for the court. His tendency was to initially deny his use of substances (LPG) and minimise and justify his own behaviour in relation to his former partner. When confronted and presented with evidence as to what he had done he fully admitted his abuse of LPG. It appears that during a period during which he was experiencing considerable distress his use of LPG began. As stated earlier he recounted an experience in which he had inhaled a gas previously (nitrous oxide) as a teenager. Mr Brown reports that he believed that LPG may have been the same substance and began abusing this in an attempt to cope with his situation.
He also claims that he had little understanding of the risk he placed others at with his behaviour in the hotels. Since this time he feels that he has a greater understanding of this and would not repeat these acts. He also stated a desire to address his poor coping skills and substance abuse by attending an appointment with the drug and alcohol service and re-commencing contact with his previous psychologist."
The psychologist concluded that the appellant did "not present with symptoms of major mental illness" although he had a "number of personality characteristics that place him at risk of future unstable relationships" but which had not reached a level "that would allow a diagnosis for personality disorder". The report concluded:
"His abuse of LPG appears to have been an attempt by Mr Brown to cope with his situational difficulties that include his relationship break down, access difficulties in relation to his children and chronic pain from a back injury."
In one sense the report contradicted the submissions made by counsel. In another respect, the submissions made by counsel were confusing. They relied in part on the material contained in the report, but on instructions, advanced as a mitigating matter, the psychological condition of the appellant.
On 21 December 2005, the court of petty sessions had ordered the appellant to undertake assessment and treatment for his condition. It would appear that he had successfully completed some of the rehabilitation program suggested by those orders. He had taken part in a program between 20 March and 23 May 2006. The learned sentencing judge was aware that the appellant had again appeared in the court of petty sessions on 7 June 2006 in relation to earlier acts consistent with a troubled mental state, which had occurred in September and October 2005. The sentence of imprisonment represented rejection of the claim that the conduct, at least, included that caused by psychological distress evidenced through a cri du coeur. The circumstances whereby the appellant went to hotels on three occasions in order to carry out gas inhalation would themselves suggest that he was engaged in more than escapist substance abuse.
In my opinion, grounds 1 and 2 of the amended grounds of appeal are made out. The appellant's personal circumstances and attempts at rehabilitation had altered since the date of the psychological report of 20 December 2005. He had undertaken forms of treatment or counselling. Change had been put forward by counsel for the appellant but, with respect, the sentence reflected punishment for the danger caused, rather than a balanced accommodation of the psychological state of the offender and steps taken since the conduct to minimise future risk.
I would uphold the appeal.
Counsel have agreed that this Court should substitute its own sentence rather than remitting the matter back. I would re-impose the original sentence of 12 months' imprisonment as a reflection of the nature of the conduct. At the time of sentence the appellant had served an effective period of 22 days in custody and accordingly his Honour backdated the sentence to 13 July. It is not necessary for the purpose of this appeal to consider whether such a course is permitted by the legislation. I would re-impose the original sentence and suspend its further operation as and from the date of the disposition of this appeal.
File No CCA 60/2006
CLINTON EDWARD BROWN v DIRECTOR OF PUBLIC PROSECUTIONS
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
30 November 2006
On 9 August 2006, the appellant was convicted on his plea of guilty of five counts of common nuisance, breaches of the Criminal Code Act 1924, ("the Code"), s141. He was sentenced to a period of 12 months' imprisonment, three of which were suspended on condition he be of good behaviour for 18 months. He was also made subject to a probation order for that 18-month period.
The sole ground of appeal at the commencement of the hearing was that, in all the circumstances, the sentence imposed was manifestly excessive. During the course of the hearing and as a result of comments made by members of the Court, an amended notice of appeal was filed. There was no objection from the State to the appeal being dealt with in terms of the amended notice.
The amended notice of appeal contained four grounds which were as follows:
"1His Honour made an error in fact in rejecting the submission that the criminal conduct was a 'cry for help', a finding which was not substantiated by the psychologist's report tendered. Further, His Honour made an error in not requesting a pre-sentence report or updated forensic mental health report.
2His Honour erred in failing to give sufficient weight to the appellant's personal circumstances and attempts at rehabilitation.
3His Honour erred in failing to consider whether a wholly suspended sentence was sufficient in the circumstances and/or to impose a wholly suspended sentence.
4 The sentence was manifestly excessive in all the circumstances."
Each of the five acts of nuisance involved the appellant having in his possession an 8.5kilogram LPG cylinder and his letting the gas escape from that cylinder to varying degrees. The acts occurred over the space of two months. The first two occurred in the unit in which the appellant lived and the last three in hotel rooms.
As to the first incident, the appellant's family had been concerned about his mental state and had sought help from mental health services. As a consequence, a mental health team went to the appellant's unit one night. No one would answer the door, but the team could detect a strong smell of gas and could hear the sound of a gas bottle being turned on and off. They called police, who evacuated two neighbouring units. The immediate area and nearby roads were closed off to the public. After about an hour and a half police negotiators persuaded the appellant to come out of his unit. Emergency services established the appellant had been letting gas out of an LPG cylinder. The appellant was admitted to hospital under a mental health order, but later released.
At about 5pm the next day, police were again called to the appellant's unit because a member of the public had smelt gas. Emergency services attended, evacuated nearby premises, closed off roads and negotiated with the appellant. He told them to leave him alone, saying he was doing nothing wrong. Access was gained to the appellant's unit and he was found lying on a couch holding a gas cylinder with the outlet next to his mouth. He was again taken to hospital and the unit was ventilated to disperse the gas.
A month later, on 30 September 2005, the accused checked into a city hotel. On 5 October another guest reported a strong smell of gas. Staff initially checked the hotel's own gas mains and found no fault. They then knocked on the appellant's door. He opened it slightly and was told if he were using LPG the room would have to be ventilated. The appellant said he was, but refused to open the door fully. Another staff member obtained a key, entered the room and told the appellant to check out. Shortly after the appellant did so, and a gas cylinder with the tap on expelling gas into the room was found. Police did not become involved on this occasion.
On 29 October 2005 the appellant checked into another hotel. He was seen a couple of days later to carry an LPG cylinder in. One morning a guest in a room above smelt a strong smell of gas. Staff went to the appellant's room and heard a hissing sound and smelt gas. They knocked and got no response. They eventually heard the appellant speaking in what seemed to be a distorted voice. Police were called and the appellant was removed from the room. He left, taking the gas cylinder with him.
Later on the same day the appellant checked back into the city hotel he had been in the month before. At about 5.30pm guests reported a strong smell of gas on the floor where the appellant was. Staff could get no response from the appellant's room and used a master key to enter it. They saw the appellant lying on a bed with the gas bottle on his chest. He had severe burns to his right arm. Staff shut the door and called an ambulance and emergency services. While waiting, staff returned to the room and saw the gas cylinder outlet close to the appellant's mouth with the gas still coming out. They told the appellant to turn off the gas, which he did, and they then opened windows.
On this last occasion emergency services determined that the gas level was potentially explosive and evacuated a number of residents from the same floor in the hotel. The appellant was taken to hospital and again placed on a mental health order.
On 14 November after his discharge from hospital, the appellant was arrested. At interview he admitted possession of the gas bottle and agreed he must have turned it on. He did not intend to hurt anyone, but realised after the first incident the potential seriousness of his actions. He said he hugged the bottles for comfort. The appellant at this point was charged in respect of all incidents.
The learned sentencing judge was told that LPG was flammable and had the potential to endanger lives and/or safety of the public if used in the manner the appellant did. At very low concentrations it could be ignited by a flame from a cigarette, match, pilot light or spark from electrical equipment, electrical appliances, light switches or static from clothes and carpets. Ignition would result in a rapid fire or flash of short duration but with high temperatures. High levels of concentration of the gas could cause asphyxiation. The cylinders in the appellant's possession were clearly marked as containing a flammable substance.
The appellant had prior convictions. He had a drink driving conviction in June 2004 which involved a high blood alcohol level and the appellant being involved in a crash and failing to stop. He was unlicensed at the time. He had a conviction for driving while disqualified in December 2004 arising from his having driven a matter of weeks after being disqualified by the court in June.
The appellant had other convictions, although they were not strictly prior convictions. They became relevant to this appeal only because the contents of a report prepared for sentencing purposes was relied on before the learned sentencing judge. In December 2005 the appellant was convicted of breaching a family violence order. That offending occurred in the last week of July 2005, that is, about a month before the nuisance matters commenced. When the appellant was sentenced he had been arrested but not dealt with for the present offences. He was ordered to serve two months' imprisonment, which was wholly suspended. He was made the subject of a probation order. It was a condition of that order that he attend such programs as he might be directed to attend by the court or his probation officer, including one relating to family violence and one relating to drug, alcohol or substance abuse. He was also to submit to psychological testing as directed.
On 7 June 2006 the appellant was convicted of three further breaches of a family violence order committed on 16 September, 27 September and 2 October 2005. He was again made the subject of a suspended gaol term.
The learned sentencing judge was provided with a copy of the pre-sentence forensic psychological report prepared for the magistrate who sentenced the appellant on 21 December 2005. He was not apparently provided with a copy of any Community Corrections report, although one appears to have existed. The learned sentencing judge was not asked by counsel for the appellant to order a pre-sentence report or updated forensic report. It was suggested by counsel for the State that the learned sentencing judge might consider a report from Community Corrections but it was not pressed.
Counsel for the appellant told the Court the appellant had had a strong employment history and distinguished sporting career. However, the appellant's most recent separation from the mother of his children had been very traumatic and he had not seen his children for three years. Further, he had had a back injury which could cause him to be unable to move. He was on the waiting list for surgery and required injections every six weeks for pain relief. However, he had no private health insurance and could not afford it. In 2001 he was the victim of a serious assault which resulted in facial injuries. He developed, as a result, a fear of going out and sought help from a Dr Andre De Clerk. No material was put to the Court to say who that was or precisely what help was being provided, although there was a reference in the psychological report to this person, suggesting he was a psychologist.
The learned sentencing judge was also told the appellant's mother had died from cancer in 2003 and that this had impacted on the appellant's health. A personal reference was provided, dated 20 July 2006. In that reference the writer indicated that in the last six months he had observed a marked improvement in the appellant's outlook, his health was improving and he was back playing soccer. That was somewhat at odds with the information about back pain put to the court.
It was further put to the court that the appellant had completed a family violence intervention program which had required him to attend 100 hours of the program between March and May 2006. Counsel put to the court that her instructions were the course assisted the appellant in that it helped with his decision-making processes and his reactions to certain situations. The inference was that his reactions were now different in some way.
At the sentencing hearing, the appellant's behaviour was put to the court as a cry for help and an attempt to hurt himself and not others. He had indeed suffered severe third degree burns during the last incident. It was put that this was not a case of diminished responsibility due to a psychiatric disorder. It was conceded by counsel that perhaps on the first occasion of this behaviour the appellant may not have been aware of the danger, but after that he must have been.
In substance what was put to the court was that this man had been brought low by a number of situations in his life, but that he had not re-offended and he had turned his life around and taken steps to ensure this sort of thing would not happen again.
The pre-sentence report prepared in December 2005 was a comprehensive report by a psychologist. The psychologist had available to him the appellant's correctional services health file, discharge summaries from the Royal Hobart Hospital, the appellant's criminal record, a Community Corrections pre-sentence report dated 16 November, a family violence order intervention program report dated 11 November and the material relating to the allegations of breach of family violence orders. In the report, the author said that it related to the family violence matters and he would not discuss the appellant's behaviour with the LPG cylinders. However, he went on to do so in the next section of the report.
Under the heading "Drug and Alcohol History" he said:
"He does not believe that he consumes excessive alcohol at the present time and denied the use of any substances other than LPG.
Mr Brown reported that, as an adolescent in South Australia, he had tried inhaling a gas that his friends had 'found' outside a dentist's surgery. He believes that this is the reason why he began abusing LPG, as he thought that this was the same substance.
LPG is predominantly propane with some butane also added. Its immediate effects when inhaled can include euphoria, confusion, restlessness, slurred speech, weakness, nausea, unconsciousness and (in extreme cases) sudden death. During the period of intoxication judgement is significantly impaired and sustained long term abuse can lead to brain and other organ damage.
Mr Brown's 'hugging' of the gas bottle allows him to open the valve and inhale its contents, even after becoming disoriented or passing out. As a result of this behaviour he received his 'cold burns'.
He has displayed a willingness to engage in treatment once released, although it is difficult to establish how compliant he will be."
Under the heading "Assessment & Clinical Impressions", he said in relation to the appellant's cognitive functioning:
"At this point there do not appear to be any gross deficits in cognitive functioning as a result of his a use of LPG. Some subtle deficits may be present and would require detailed neuropsychological assessment to identify or discount fully."
The author of the report went on to say:
"Mr Brown presents as an individual who is keen to make a good impression on others, particularly in the context of a report for the court. His tendency was to initially deny his use of substances (LPG) and minimise and justify his own behaviour in relation to his former partner. When confronted and presented with evidence as to what he had done he fully admitted his abuse of LPG. It appears that during a period during which he was experiencing considerable distress his use of LPG began. As stated earlier he recounted an experience in which he had inhaled a gas previously (nitrous oxide) as a teenager. Mr Brown reports that he believed that LPG may have been the same substance and began abusing this in an attempt to cope with his situation.
He also claims that he had little understanding of the risk he placed others at with his behaviour in the hotels. Since this time he feels that he has a greater understanding of this and would not repeat these acts. He also stated a desire to address his poor coping skills and substance abuse by attending an appointment with the drug and alcohol service and re-commencing contact with his previous psychologist."
In summary he then said:
"At this point in time Mr Brown does not present with symptoms of major mental illness. It also appears very unlikely that his recent offending behaviour was related to a mental illness at that time. He does have a number of personality characteristics that place him at risk of future unstable relationships, conflict and impulsive or reckless behaviour. The assessment conducted suggests that he has not reached a level that would allow a diagnosis for personality disorder, although this may change in the future. Mr Brown has a strong tendency to deny, minimise and/or justify his behaviour in relation to these matters. He did eventually make some admissions after being confronted with the evidence of what occurred and admitted his wrong doing.
… His abuse of LPG appears to have been an attempt by Mr Brown to cope with his situational difficulties that include his relationship break down, access difficulties in relation to his children and chronic pain from a back injury. In terms of risk, Mr Brown may well return to his previous behaviours if placed under similar stress and no intervention is attempted. Mr Brown would likely benefit from attempts to teach him more adaptive coping strategies when under stress, counselling to address his substance abuse, and supervision by Community Corrections."
It is apparent from a careful consideration of the report that the author was dealing not only with the appellant's family violence issues but also with those related to the LPG substance abuse.
Grounds of appeal
It is somewhat difficult to know precisely what submissions related to what ground, given that counsel had embarked on submissions to a significant degree before filing amended grounds. Further, while counsel had provided written submissions, the subheadings of the initial overall ground in those submissions did not wholly match the ultimate grounds. I will, in the circumstances, simply deal with the issues raised and then the specific grounds.
Counsel submitted that the appellant was not charged with any offence until after he had committed the last one and that it was therefore not brought home to him his actions were criminal. Therefore his repeated offending was not as aggravating as it might have been had he been charged and then continued to offend. The failure to charge the appellant, she then submitted, took this offending out of the category of blatant continued offending. While there is some logic in the submission, it is a factor which, in my view, carries minimal, if any, weight in favour of the appellant.
The relevant factor was not the appellant's awareness of whether or not he was committing a crime but his awareness of the potential danger he was creating for himself and other members of the community. That was a very real danger. The learned sentencing judge accepted, following a concession from the appellant's counsel, that the appellant knew, at least after the first occasion, that the discharge of the gas caused a high risk of explosion and therefore a high risk of injury and damage, together with inconvenience to the general public. Counsel on the appeal suggested this finding went beyond counsel's concession. With respect, the finding was entirely open to the learned sentencing judge. He was faced with a person of reasonable intellect with no discernable mental illness who had seen what resources were brought to bear at the time of the first incident.
Counsel submitted other factors given insufficient weight by the learned sentencing judge were that there was no actual injury to any member of the public and that the appellant, by his plea of guilty, had relieved the State of the time and resources which would have been needed for a trial. While the learned sentencing judge referred to the plea of guilty, he did not refer to the point about there being no actual injury. However, it cannot sensibly be incumbent on a sentencing officer to mention every single thing that has passed through his or her mind when determining what is an appropriate sentence. Clearly his Honour formed the view that the potential risk was so grave that, in the face of the obvious, namely that no one had been injured save the appellant, the lack of injury to others did not need to be mentioned.
Counsel further submitted that the court did not give sufficient weight to the appellant's remorse. She referred to the fact that the appellant had written to the hotels where he had caused nuisances on three occasions apologising for his behaviour. The learned sentencing judge described the appellant's behaviour in terms of his being aware of the potential danger after the first incident and yet persisting with the behaviour. It may be inferred from that that he did not consider remorse played a huge part in the appellant's thinking, at least prior to his being brought into the court system.
As to the asserted error in not ordering a pre-sentence report or updated forensic mental health report, as I have already said, counsel for the appellant did not seek at the time of sentence either a pre-sentence report or an updated forensic mental health report. It was conceded on this appeal there was no requirement that such reports had to be obtained. Counsel for the State raised the possibility of a report to see how probation had been going, but did not press the issue. Instead of seeking such reports, counsel for the appellant relied on the contents of the report dated December 2005. The learned sentencing judge had, in addition to that comprehensive report which did in fact deal with the appellant's LPG behaviour, the knowledge that the appellant was subject to probation which had been recommended in the December 2005 report as a means of providing the appellant with support. There was no suggestion the appellant had not abided by directions given to him by probation authorities. In fact, great emphasis was placed on the fact that he had completed the family violence program which he had to have done at the direction of his probation officer since there was no record it was directly ordered by the court.
In those circumstances I am unable to see there is any merit in the assertion the learned sentencing judge made an error in not seeking further reports.
As to the asserted failure to give sufficient weight to the appellant's attempts at rehabilitation, the learned sentencing judge said it was encouraging to see that steps had been taken towards rehabilitation in the form of pleading guilty and completing the family violence program. He had also obviously read the psychologist's report tendered, which referred to the appellant's continued involvement with Dr De Clerk. I am unable to see how it can be argued that the learned sentencing judge failed to give these matters sufficient weight.
As to an asserted error in relation to a suspended sentence, counsel referred to the Sentencing Act 1997, s12, which provides:
"12 (1) In this section,
'custodial offence' means an offence that is created under an enactment and has imprisonment as its only penalty.
(2) If a court that sentences an offender for a custodial offence considers that the justice of the case will be better met by a non-custodial sentence than by imprisonment, the court may, notwithstanding the penalty provided for the offence, make any other sentencing order that it could have made in respect of the offender had the offence not been a custodial offence."
There is no doubt the learned sentencing judge had as an option for sentencing the imposition of a wholly or partly suspended custodial term. As a matter of fact he imposed a partially suspended sentence. Hence he obviously considered such a sentencing option. The fact that he did not wholly suspend the sentence really forms part of the appellant's overarching manifestly excessive ground of appeal.
Manifestly excessive
As to that, counsel referred to the only three sentences able to be found in respect of this particular crime. The first was a matter of Giameous, 17 October 1990. This involved a young man under 18 who, with a group of friends, drove out to South Arm with a rifle and there fired the rifle at a number of objects causing damage. The car was stopped, one of the youths was outside the car and the offender fired the rifle. As he did so, the youth outside moved into the path of the rifle and was shot and killed. This was a case which involved actual terrible harm. The court imposed a probation order recognising the offender's youth and immaturity and his feelings of shock, disbelief and remorse for what he had done.
The second sentence referred to was that of Tuthill, 16 February 2005 which involved an 18 year old who threw smoke bombs into two business premises. No conviction was recorded. With respect, this matter can have little relevance to the present case.
The last matter was that of Tonner, 23 June 2004. This young man, in anger at his girlfriend, pulled out a pistol and in the middle of the street fired five or six shots in the general direction of her car. No one was actually injured. He had, despite his age, a lengthy criminal history. He was sentenced to 12 months' imprisonment, the same head sentence as the appellant. Counsel sought to contrast the sentence in that matter with that in the present case by reference to the significant differences between the offending history of Tonner and the appellant's offending history.
However, what cannot be ignored in that comparison is that on five separate occasions, not just one, the appellant created dangerous situations with no apparent thought for the safety of others.
I should return to what was the first part of the first of the amended grounds of appeal. A careful review of the forensic psychological report referred to shows that it does not describe the appellant's behaviour in terms of a cry for help. It describes it in terms of what the appellant actually said, which was that the use of LPG was "an attempt to cope with his situation". The author of the report said in the summary portion of it that "His abuse of LPG appears to have been an attempt by Mr Brown to cope with his situational difficulties ...". There is nothing in the report which suggests the appellant's use of LPG was an attention seeking mechanism designed to obtain help for him. In those circumstances the finding of the learned sentencing judge that the terms of the report did not support the submission that the appellant's behaviour was a "cry for help" was open to him.
Conclusion
For the foregoing reasons, grounds 1 to 3 inclusive of the amended grounds of appeal must fail. As to the more general ground, namely that the sentence in all the circumstances was manifestly excessive, the learned sentencing judge was dealing with five separate incidents over a two-month period. On each occasion to varying degrees, the appellant's behaviour put others at risk of harm and put property at risk of damage from fire or explosion. On two occasions his behaviour occurred in a hotel in the middle of the city, thus potentially creating an even more widespread risk. Having seen the types of resources required to address the first incident, the appellant repeated the behaviour, not just once but four times.
The appellant did plead guilty and was entitled to credit for that. He was under the supervision of probation authorities and had completed a course at their direction, more specifically directed to family violence issues. He had not offended again. The learned sentencing judge was entitled, given the seriousness of the risk created by the appellant's behaviour, to place significant weight on that. He, however, also took into account steps towards rehabilitation and put in place mechanisms to ensure that was continued, namely a partial suspension of the sentence and a probation order on release.
I am not satisfied in those circumstances that the appellant has demonstrated that the sentence was manifestly excessive.
I would dismiss the appeal.
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