Cordwell v Tasmania
[2017] TASCCA 14
•5 September 2017
[2017] TASCCA 14
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Cordwell v Tasmania [2017] TASCCA 14
PARTIES: CORDWELL, Brent Anthony
v
STATE OF TASMANIA
FILE NO: 15/2017
DELIVERED ON: 5 September 2017
DELIVERED AT: Hobart
HEARING DATE: 23 August 2017
JUDGMENT OF: Estcourt J, Martin and Porter AJJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Appellant found guilty by a jury of causing grievous bodily harm under s 172 of the Criminal Code – Group attack on victim causing serious injury including loss of sight in one eye – Appellant sentenced on the basis of common purpose liability by virtue of s 4 of the Code – Sentencing judge unable to be satisfied beyond reasonable doubt that the appellant was personally responsible for the infliction of grievous bodily harm and unable to be satisfied beyond reasonable doubt that whoever inflicted the harm did so intentionally – Sentence of six years' imprisonment with a non-parole period of four years not manifestly excessive.
Barron v Tasmania [2010] TASCCA 3, 20 Tas R 114, considered.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: F Cangelosi
Respondent: M Wilson
Solicitors:
Appellant: Simmons Wolfhagen
Respondent: Director of Public Prosecutions
Judgment Number: [2017] TASCCA 14
Number of paragraphs: 36
Serial No 14/2017
File No 15/2017
BRENT ANTHONY CORDWELL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
MARTIN AJ
PORTER AJ
5 September 2017
Order of the Court
Appeal dismissed.
Serial No 14/2017
File No CCA 15/2017
BRENT ANTHONY CORDWELL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
5 September 2017
The appeal
The appellant, Brent Anthony Cordwell, appealed against a sentence of six years' imprisonment with a non-parole period of four years imposed on him by Blow CJ on 19 December 2016. On 23 August 2017 this Court dismissed the appeal. These are my reasons for joining in the order of dismissal.
The sole ground of appeal was that the sentence is manifestly excessive. No specific error was asserted in the notice of appeal.
The sentence was imposed consequent upon the appellant being found guilty by a jury of a single count of causing grievous bodily harm contrary to the Criminal Code, s 172. For sentencing purposes the learned sentencing judge was satisfied that the basis of the appellant's criminal liability was common purpose pursuant to s 4 of the Code.
The law as to manifest excess in sentencing
As I have observed in the past in such cases, Professor K Warner in her book Sentencing in Tasmania, 2nd ed, The Federation Press, 2002, at 440, writes on the subject of appellate review of sentences for manifest excess or inadequacy as follows:
"The Court of Criminal Appeal has consistently followed the approach suggested by the High Court in House [(1936) 55 CLR 499 at 504] Cranssen [(1936) 55 CLR 509 at 519] and Harris [(1954) 90 CLR 652 at 656] and these cases are cited ad nauseum in sentencing appeals."
And, as I have remarked in the past in appeals such as the present, where the sole ground is manifest excess or manifest inadequacy, I bear Professor Warner's admonition in mind, and content myself with setting out what Porter J said in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]–[34]. His Honour there observed:
"31 For the purposes of this case, I think it is desirable to traverse some well-travelled territory, and to again note the role of this Court on an appeal against sentence. 'The Court of Criminal Appeal has no charter to tinker with sentences. It sits to rectify genuine error'; Aherne v R 20/1982 per Nettlefold J at 3. In accordance with the traditional formula as set out in House v R (1935) 55 CLR 499, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to give rise to the inference that there has been a failure to properly exercise the discretion. As Kourakis J said in A, MC v Police (2008) 102 SASR 151 at [88], 'An appeal ground that a sentence is manifestly excessive is really a convenient alternative expression of the complaint that the sentence is by reason of its severity, unreasonable or plainly unjust.'
32 In Dinsdale v The Queen (2000) 202 CLR 321, Kirby J (with whom Gummow and Gaudron JJ agreed) stated at [58]:
'The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence. Indeed, it is commonly referred to by the Court of Criminal Appeal of Western Australia. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.' [References omitted.]
33 Later, in Wong v The Queen (above) at [58] Gaudron, Gummow and Hayne JJ said:
'Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.'
34 In Dinsdale (above) at [6], Gleeson CJ and Hayne J said that: 'inadequacy or excess is, or is not, plainly apparent'. … ."
In Griffiths v The Queen (1977) 137 CLR 293 at 310, Barwick CJ said:
"Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle."
More recently in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, a case involving a sole ground of appeal that the sentence was manifestly inadequate, Pearce J, with whom Blow CJ and Porter J agreed, most succinctly and comprehensively, if I may once again say so with respect, summarised the relevant principles at [8] as follows:
"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."
The facts
On passing sentence the learned sentencing judge set out the circumstances of the crime and the impact upon the complainant. His Honour observed as follows:
"On the night of 28 July 2014 he led a group attack on an innocent young man who was walking through Glenorchy to his mother's home. As a result of the attack, the victim, Tristan Sproule, suffered severe facial fractures and lost the sight in his left eye …
When interviewed by the police within hours after the attack, Mr Cordwell admitted that he had asked Mr Sproule for a cigarette, intending to bash him if he refused, and expecting that that would egg others on to join in an attack on him. He admitted that, after his request for a cigarette was refused, he threw Mr Sproule to the ground, kicked him to the head, and punched him. I am satisfied that he understated his involvement. Evidence as to the attack and Mr Cordwell's participation in it was given by Mr Sproule and by an eye-witness, Melinda Berry. On the basis of their evidence, I am satisfied that Mr Cordwell kicked Mr Sproule more than once, and that he bashed him to the head using a paling that an accomplice tore from a nearby fence. However there were other attackers kicking Mr Sproule and attacking him with palings or fragments of palings. It was very dark. There came a time when Mr Sproule could see very little because blood from a wound was entering his eyes. Whilst Mr Cordwell was the instigator of the attack and the most vicious attacker, it could well have been somebody else that inflicted the grievous bodily harm. I am therefore not satisfied beyond reasonable doubt that Mr Cordwell did that personally.
The evidence of an intention to cause grievous bodily harm was strong. At the outset, Mr Sproule was told by one of his attackers, 'You're going to die tonight.' However I cannot rule out the possibility that the grievous bodily harm was inflicted by an individual who, rather than intending such harm, was recklessly indifferent to the possibility that he would inflict grievous bodily harm. The crime of causing grievous bodily harm is committed if the offender either intends to cause grievous bodily harm or foresees such a consequence as a likely result of his conduct: Vallance v The Queen (1961) 108 CLR 56; R v Bennett [1990] Tas R 72. I am not satisfied beyond reasonable doubt that the offender who inflicted the grievous bodily harm had a positive intention to inflict such harm, as distinct from foreseeing such a consequence as a likely result of his conduct. Unless there was a positive intention to inflict such harm, then Mr Cordwell could not be criminally responsible for the conduct of another assailant on the basis of participation in a joint criminal enterprise or on the basis of abetting.
However, given the severity of the attack on Mr Sproule from its outset, I am satisfied beyond reasonable doubt that the causing of grievous bodily harm by means of a serious head injury was a crime of such a nature that its commission was a probable consequence of the prosecution of the vicious group assault on Mr Sproule. It follows that every participant in that assault was guilty of that crime by virtue of s 4 of the Criminal Code. I am satisfied beyond reasonable doubt that the assailant who inflicted the grievous bodily harm must either have intended that result or foreseen it as likely.
The attack on Mr Sproule was vicious, unprovoked, pointless and cowardly. Mr Sproule was walking alone. He was attacked by several people in conjunction with one another. None of his attackers knew him. He was on an unlit footpath between the back fences of some houses and a rivulet. He happened to be carrying a Smith & Wesson 26 inch extendable baton in a backpack, but he was very quickly disarmed when he produced it, and was then beaten with palings and abandoned, bleeding, on the path.
Mr Sproule suffered complex fractures of the bones on the left side of his face. His fractures were surgically repaired using two titanium plates and eight titanium screws. He suffered minor injuries to the left shoulder, the left knee, and the little finger of the left hand. There was a laceration above his left eyebrow that was four centimetres long and two centimetres deep. His vision in the left eye deteriorated in the weeks following the attack as scarring developed at the back of the eye. When his vision was tested on 30 December 2014 he could see light through that eye, but could not see shapes. Subsequent testing indicated that on some days he was able to detect movement with that eye, and that on his best days he was able to count the number of fingers that a person was holding up at a distance of two metres from his eye. For all practical purposes, he has become blind in that eye as a result of this crime.
He has also experienced continuing psychological symptoms and severe headaches. He has no feeling in the left side of his face. He was only 22 years old at the time of the attack."
The comments on passing sentence
On passing sentence upon the appellant the learned sentencing judge said:
"Mr Cordwell was 19 years old at the time of the attack and is now 22. He has a long criminal record. Before committing this crime he had been dealt with by magistrates for seven assaults, two of them on police officers. In May 2013 a magistrate imposed on him a wholly suspended sentence of one month's imprisonment. On 3 June 2014, only eight weeks before the commission of this crime, a magistrate activated that sentence, and imposed a fresh wholly suspended sentence of two months' imprisonment. On 5 July 2014, he committed an eighth assault. The two-month suspended sentence was hanging over Mr Cordwell's head on the night that he attacked Mr Sproule. It appears from his record of prior convictions that he was also on bail on various charges that night.
Mr Cordwell was arrested shortly after midnight on the night in question. He has spent over 13 months in custody since then. The periods that he has spent in custody have been as follows:
• from 29 July 2014 to 27 November 2014;
• from 22 February 2016 until 28 April 2016; and
• from 20 May 2016 to date.
According to his record of prior convictions, a magistrate sentenced him on 7 August 2014 to 20 days' imprisonment, backdated to 29 July 2014, in relation to several charges. Otherwise none of the time spent by him in custody since the night in question has been related to any other offences. Because of the time that he has spent in custody, I will backdate his sentence to 3 December 2015.
To his credit, Mr Cordwell agreed to take part in a police interview on the night of his arrest, and made limited admissions, though not full admissions. He was originally charged with assault under the Criminal Code, and pleaded guilty to that charge in the Magistrates Court in August 2014. Before that charge could be dealt with, Mr Sproule's sight deteriorated, and Mr Cordwell was charged with causing grievous bodily harm. Whilst in custody he has participated in an anger management program, and received a good report as to his participation. He comes from a disadvantaged background. He can read but not write. He has a reasonable employment history. He has never had a drug problem, but he does have an alcohol problem. He was intoxicated when he committed this crime. In the past he has complied with probation orders and community service orders. He has a supportive partner, who has a young child. He wants to overcome his alcohol problem and lead a stable productive life with his partner.
It is not his fault that it has taken over two years to bring him to trial.
In my view the only appropriate penalty in this case is a substantial sentence of imprisonment. Although Mr Cordwell was young, he was by no means a first offender. He instigated a ferocious group attack on an innocent young man. He stood out as the most prominent and most aggressive participant in the attack. The victim suffered terrible facial fractures and lost the use of one eye. Because Mr Cordwell is young and has shown some prospect of rehabilitation, I will make provision for parole, but I will impose a non-parole period well above the minimum.
Brent Anthony Cordwell, I convict you and sentence you to six years' imprisonment with effect from 3 December 2015. You will not be eligible for parole until you have served four years of this sentence. I order you to pay your victims of crime compensation levy of $50 within 28 days after your release from prison."
Discussion
In Director of Public Prosecutions v Blackaby [2013] TASCCA 4, I said at [18], with Blow CJ and Wood J agreeing:
"There is no doubt that counsel for the appellant was correct in submitting that because specific intent is required for the commission of a crime contrary to s170 of the Criminal Code it is generally regarded as a more serious crime than that of grievous bodily harm under s172 of the Code. In Director of Public Prosecutions v Blyth (supra), Blow J (as he then was), with whom Porter and Wood JJ agreed, said, unambiguously at [8]:
'8 A crime against s170 involving a specific intent to do grievous bodily harm is generally regarded as worse than one against s172, which does not necessarily involve such an intent: R v Allen [1999] TASSC 112 per Cox CJ at par [2]; Barron v Tasmania [2010] TASCCA 3 at par[21].'"
In Barron (above), Wood J, with whom Blow J (as he then was) and Porter J agreed, said at [21]:
"21 It is worthwhile to take some time to focus on the nature of the crime under consideration and some well settled sentencing principles that apply to the Code, s172. A specific intention to cause grievous bodily harm is not an element of this crime. The crime of causing grievous bodily harm requires a mental element involving either an intent to cause grievous bodily harm or subjective recklessness, ie foresight of the likelihood of that kind of harm (R v Bennett [1990] Tas R 72). By contrast an essential element of a crime against s170 is the intention to cause some kind of serious bodily harm (R v Allen [1999] TASSC 112, per Cox CJ at par2)."
It has been repeated by a number of judges in this State that a crime under s 170 "ordinarily" carries a penalty within the range of three to seven years.
In R v Allen [1999] TASSC 112, Wright J observed at [13]:
"13 Count 1 in the indictment alleged a breach of the Criminal Code, s170. The seriousness of such criminal conduct has been reviewed in a number of previous decisions of this Court (see Lovegrove v R [1961] Tas SR 106; Brown v R (supra); Bennett v R [1990] Tas R 72; R v Marshall 70/1990; Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1). In Papazoglou v R 9/1963, the Court of Criminal Appeal refused to dissent from comments made by the Chief Justice when imposing sentence upon the appellant for an offence against the Code, s170 that:
'Ordinarily I would think that this crime would require a sentence of from three to seven years.'
When these comments are considered alongside the current practice of the Court in sentencing violent criminals, they do not appear to me to be out of place, even now, some 36 years later. Sentences for rape commonly fall within a similar range and there appears to me to be no sound basis for suggesting that a deliberate crime of violence which inflicts severe trauma with long term disability upon another human being is any less serious than a case of serious sexual assault."
These comments were re-affirmed recently in Jay v Tasmania [2016] TASCCA 12, and in Price v Tasmania [2016] TASCCA 22, in which cases sentences of seven years' imprisonment with a non-parole period of five and a half years, and ten years' imprisonment with a non-parole period of six years were held not to be manifestly excessive and were upheld by this Court, albeit in cases involving injuries somewhat more severe than those suffered by the victim in the present case.
In Director of Public Prosecutions v Rogers [2011] TASCCA 17 at [16], where Evans J, with whom Porter and Wood JJ agreed, observed at [16]:
"16 The crime that is the subject of count 2 is committing an unlawful act intended to cause bodily harm in breach of the Code, s170. It is a serious crime. An element of it is a specific intent to disable or do grievous bodily harm. In DPP v Blyth [2010] TASCCA 10, Blow J, agreed with by Porter and Wood JJ, reviewed a number of authorities on the sentencing range that was appropriate for a contravention of s170. The effect of that decision and the authorities to which it refers is that subject to the unimpaired discretion of a sentencing judge to impose a sentence that is reasonable, ordinarily a contravention of s170 should attract a sentence of imprisonment of between three to seven years. The decision also refers to the importance, when sentencing for this crime, of the severity of the victim's injuries and the extent of any permanent disability or incapacity … ."
These authorities make it clear that, subject to the unimpaired discretion of a sentencing judge to impose a sentence that is reasonable, a contravention of s 170 should ordinarily attract a sentence of imprisonment of between three to seven years.
I should add that the range of three to seven years referred to is by no means a hard and fast rule. Indeed, the contrary is the case. So much is clear from the judgment of Blow J in Director of Public Prosecutions v Blyth (above) at [10]-[14], with Porter and Wood JJ agreeing:
"10 Counsel referred us to a number of cases where offenders were sentenced for contravening s170 or s172, including several appeals. All of those cases turned on their own facts. Most of them do not warrant discussion.
11 Papazoglou v R (unreported, 9/1963, Court of Criminal Appeal) concerned a sentence of two years' imprisonment imposed by Burbury CJ. The appellant was convicted under s170 on the basis that he hit a man on the head with a piece of wood intending to do grievous bodily harm. Burbury CJ provided the Court of Criminal Appeal with a report which concluded as follows:
'These circumstances induced me, with some hesitation, to impose only a two years sentence. Ordinarily I would think that this crime would require a sentence of from three to seven years.'
12 At 3, Gibson J said:
'In the case before us I would agree that if the Chief Justice had said, without qualification, that an offence against section 170 should be punished by a sentence of imprisonment between the limits of three and seven years, he would be unduly fettering his discretion and especially so as to the lower limit. But he qualifies this by prefacing his remark with the word, 'ordinarily' which leaves the discretion unimpaired within the bounds of what is reasonable. I do not think, therefore, that it has been shown that we should infer that he proceeded on any wrong basis in approaching the task of sentencing the applicant.'
13 Crawford J, at 4, said the following:
'It is one's common practice and the only proper one, whether sitting as a trial judge imposing a sentence, or sitting in this Court reviewing a sentence, to commence by thinking of the approximate standards of penalty (set by judges and Court of Criminal Appeal) for the crime committed and then by taking into account the many other factors which may be taken into account, including any variations from the typical case and he circumstances leading up to an surrounding the commission of the particular offence being dealt with. This applies particularly to the serious crimes involving personal violence where the deterrent aspect is relevantly more important than it is in the consideration of sentences for the more usual crimes involving dishonesty.
In using the words complained of, the learned Chief Justice was doing no more than this. His standard is a wide one and for ordinary cases it is approximately appropriate.'
14 Cox J expressed a similar view." (My emphasis.)
I have set out the foregoing passages to make it clear that when considering the sentence of six years' imprisonment in the present appeal it must be borne in mind firstly, that a crime against s 170, involving as it does a specific intent to do grievous bodily harm, and which ordinarily attracts a sentence of three to seven years' imprisonment is generally to be regarded as worse than a crime against s 172 for which the appellant was sentenced, and secondly, that while s 172 requires a mental element involving either an intent to cause grievous bodily harm or foresight of the likelihood of that kind of harm, the appellant should in my view be regarded as sentenced on the latter basis and not on the former (that latter basis being the least culpable of the two possible states of mind found by the learned sentencing judge as capable of attribution to the actual perpetrator of the grievous bodily harm). As was pointed out however by counsel for the State, Ms Wilson, in her written submissions, some instances of crimes contrary to s 172 can be more serious than some instances of crimes contrary to s 170, see Barron v Tasmania (supra) per Wood J at [21]-[26].
In the present case, whilst perhaps not the worst such case imaginable, the vicious nature of the group attack on the complainant and its ferocity; the fact that it was led by the appellant who stood out as the most prominent and aggressive participant; the learned trial judge's finding that the severity of the attack from its outset was such that grievous bodily harm must have been a probable consequence of the group assault, and the fact that the victim suffered terrible facial fractures and lost the use of one eye, place the appellant's offending, in my view, at the upper end of the range of seriousness for offences of its kind.
In Barron v Tasmania [2010] TASCCA 3, 20 Tas R 114, Wood J, with whom Blow and Porter JJ agreed, whilst accepting that comparable sentences imposed for this crime are useful as setting a broad sentencing range, made the following observations at [28]–[30]:
"28 The submissions for the appellant focus on the notion of the current sentencing range and require the range to be identified and then considered in light of the sentence in this case. Essentially, the submission is that, as a fact, all sentences for the crime of s172 have been lower than five years, and that any sentences approaching the five year mark are more serious than this case. The submission on behalf of the appellant that his sentence exceeded the sentencing range involves two propositions. The first proposition is the simple assertion of fact that the sentence in this case falls outside the sentencing range because it is the longest sentence imposed by the Supreme Court of Tasmania. The second proposition is that the sentence is outside the sentencing range because it is disproportionately high, compared to other sentences imposed in other comparable cases.
29 This method of analysis, and a comparison between the appellant's sentence and a few sentences at the top of the range of sentences imposed in the past, tends to create an impression that an upper limit has been set that cannot be exceeded unless justification for a longer sentence is established. This method involving the notion of an upper limit or ceiling may be appropriate in cases where there is a well-established pattern arising from a significant number of sentences imposed for the same kind of conduct over a long time. However, that is not the case here. This is a crime that captures a diverse range of conduct and there is not a substantial number of sentences that fall at the upper end of the range.
30 In Allen, at par14, Wright J made observations about the assistance that can be gained from comparable cases and that often they were useful only to a limited extent in order to obtain a broad sentencing range:
'Ever since Dowie v R [1989] TASSC 44; [1989] Tas R 167, I have maintained that whilst a sentencing judge should strive to achieve consistency in sentencing, this is not a process which involves the close comparison of one case with another to ensure that the new sentence being contemplated coincides closely with that passed on an earlier occasion by another judge. The facts and circumstances of one crime are rarely, if ever, identical to those of another. The injuries sustained by the victim of one crime of violence are usually very different from those sustained by another. The relationships between the victim and the offender are frequently different. The antecedents of the offenders are always different. I find that whilst the definition of a broad sentencing range will often be useful, any attempt to distil a tariff for a particular crime or a particular type of offender is usually illusory.'"
I have considered the seven comparable sentences to which we have been referred by the appellant's counsel, Mr Cangelosi, in a table attached to his written submissions. Essentially his argument is the same as that advanced by the appellant's counsel in Barron. Mr Cangelosi contends that, viewed as a whole, the circumstances of the appellant's case do not make it distinctly more serious than the circumstances in Wilkinson (27 August 2008) (four years and three months), Clay (13 October 2009) (five years), or Barron (above) (five years), and that the proportional limits appropriate to the appellant's crime can be discerned by comparison with those cases. I am unable to embrace that submission as dispositive of this appeal. As Wood J said in Barron, this is a crime that captures a diverse range of conduct, and there are not many sentences that fall at the upper end of the range.
There were no mitigating factors of any significance in the present case. The appellant had a bad record of prior convictions for violence including seven assaults, two of them on police officers, and the victim suffered serious injuries. The learned sentencing judge gave the appellant credit for co-operating with police to the limited extent to which he did. A lengthy prison sentence was called for and the learned sentencing judge's wide discretion must be recognised (Lowndes v The Queen [1999] HCA 29, 195 CLR 665 at [15]; Wong v The Queen [2001] HCA 64, 207 CLR 584 at [77]). Appellate intervention is not justified simply because the appellate court would have exercised the sentencing discretion differently than the sentencing judge
As to the appellant's youth, I adopt with respect the comments of Pearce J in Kirkwood v Tasmania [2017] TASCCA 7 at [9], albeit his Honour was there dealing with an offence against s 170. He observed that for a grave crime any entitlement to lenience arising from the appellant's age and the prospect of his reform is to be subordinated to the dominant sentencing considerations of general and specific deterrence, denunciation, punishment and vindication of the victim. I also note that the learned sentencing judge in the present case made provision for parole to take account of the fact that the appellant was, at 22 years of age, still a young man, and had shown some prospect of rehabilitation.
Porter J in Braslin and Cowen v Tasmania (above) at [31]-[34] considered the principles relating to the role of an appellate court on an appeal against sentence. It needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to show a miscarriage of the sentencing discretion. I discern no miscarriage of the learned trial judge's sentencing discretion in the present case. As Underwood J (as he then was) observed in Inkson v The Queen (1996) 6 Tas R 1 at [47], having regard to the range of sentences imposed for a crime does not mean that every sentence must fall within that range and, as Wood J noted in Barron (above) at [52], it remains that even if the sentence fell outside the current range for this crime, that would not necessarily mean that the sentence should be regarded as manifestly excessive for that reason.
In my view the sentence of six years cannot be said to be unreasonable or plainly unjust. No error is apparent to my mind. The sentence was a heavy one, but it is trite to say that it is not enough on an appeal based on manifest excess to demonstrate that the sentence may have been harsh.
Disposition
For the foregoing reasons I joined in the order of the Court dismissing the appeal.
File No CCA 15/2017
BRENT ANTHONY CORDWELL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARTIN AJ
5 September 2017
I agreed that the appeal be dismissed because I was of the view that the sentence was not manifestly excessive. Subject to the qualification explained by Porter AJ as to the basis of sentencing, with which I agree, I agree with the reasons of Estcourt J.
File No 15/2017
BRENT ANTHONY CORDWELL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER AJ
5 September 2017
Subject to what I will later say about the basis on which the appellant was sentenced, I agree with the reasons of Estcourt J.
Counsel for the appellant referred to the range of sentences for crimes of causing grievous bodily harm under s 172 of the Criminal Code, and to some specific sentences. I venture to repeat what I said in TGW v Tasmania [2017] TASCCA 10 at [38]:
[38]The limitations on the value of sentencing statistics have often been noted. To be of any value, the number of cases must be such as to provide a discernible established range, and the sentences must be for comparable offending. Difficulties are created when the offence can be committed in various ways, and by the wide variation in circumstances from case to case. An established range does not mean that the range is correct, nor that its lower and upper limits are correct. Where a sentence is outside the range of comparable offending, it is not determinative of the issue; that merely serves to increase the level of scrutiny. An appeal court must make its own evaluation of the gravity of the offence in light of all the facts and circumstances. See Director of Public Prosecutions v Harris [2013] TASCCA 5 per Wood J at [15], Estcourt J at [51]-[52]; Director of Public Prosecutions (Acting) v Poole [2015] TASCCA 10 at [28]; Connelly v Tasmania [2015] TASCCA 15 at [5]; Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 at [24], [26]."
It is true that, at least since 1978 from when records are readily available, the sentence imposed on the appellant is the longest term of imprisonment imposed in respect of a single count of causing grievous bodily harm, contrary to s 172 of the Code. The previous highest was a sentence of five years' imprisonment: see K Warner, Sentencing in Tasmania, 2nd ed at 287; Sentencing Advisory Council (Tasmania) Statistics to December 2014; Court sentencing database. But that fact has to be put in the context of the established principles that I have set out above. Even accepting an established range for comparable offending, a sentence beyond that established range is not determinative of the issue of manifest excess: Inkson v The Queen (1996) 6 Tas R 1 per Underwood J (as he then was) at 15; Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 at [24].
By way of comparison, counsel for the appellant referred s 170 of the Code, and to the range of sentences that such a crime "ordinarily" attracts; that is, three to seven years, as discussed in cases such as Director of Public Prosecutions v Rogers [2011] TASCCA 17 and Price v Tasmania [2016] TASCCA 22. An essential point made was that a form of this crime, and one often arising, involves commission of a relevant act done with a specific intention to cause grievous bodily harm. It is well accepted that this element generally puts s 170 crimes higher in the hierarchy of violent offending than s 172 crimes of causing grievous bodily harm: Director of Public Prosecutions v Blackaby [2013] TASCCA 4 at [18]. Although accepting that the consequences of the appellant's crime were very serious, counsel sought to highlight the fact that the s 172 crime can be made out on the basis of foresight as to the likelihood causing grievous bodily harm (recklessness), as well as an intention to do so. In this respect, counsel referred to the sentencing judge's findings. These were that his Honour could not be satisfied, firstly that it was the appellant who actually caused the harm, and secondly that the person who caused the harm intended to do so. However, the sentencing judge's approach needs to be carefully examined. Before doing so, I should note the obvious overlap in the operation of the two sections: Barron v Tasmania [2010] TASCCA 3, 20 Tas R 114 per Wood J at [22].
In my respectful view, it is not strictly correct to say that the appellant was sentenced on the basis that his state of mind was one of recklessness. This was an attack by a group. The sentencing judge was not satisfied beyond reasonable doubt that the appellant was personally responsible for the infliction of grievous bodily harm. His Honour was not satisfied beyond reasonable doubt that whoever inflicted the harm did so intentionally. On that basis, his Honour said that the appellant's criminal responsibility for the conduct of another could not lie in being part of a joint criminal enterprise or in being an abettor. The sentencing judge went on to say that, given the severity of the attack, he was satisfied beyond reasonable doubt that the causing of grievous bodily harm was a crime of such a nature that its commission was a probable consequence of the prosecution of a group assault; an unlawful purpose. Every participant in the assault was therefore guilty of the crime by virtue of s 4 of the Code. His Honour said he was satisfied beyond reasonable doubt that the assailant who inflicted the grievous bodily harm must either have intended that result or foreseen it as likely.
That the sentencing judge was not satisfied that it was the appellant who personally caused the harm, of course does not amount to a positive finding that it was not the appellant. If it was the appellant, he should be treated as being reckless, and not as having the specific intention. But it follows from the sentencing judge's remarks that the appellant's criminal liability was for a crime which may have been committed by someone with the specific intention to cause grievous bodily harm, or may have been committed by someone acting recklessly. The sentencing judge can be taken to have proceeded on that basis. Given his Honour's findings, that approach must be correct. It is an inevitable consequence of common purpose liability.
The appellant's moral culpability flows from the means by which his criminal responsibility was established. He was a party to a common intention to prosecute an unlawful purpose. He was directly (and primarily) involved in the prosecution of that purpose. The crime of which he was convicted was objectively a probable consequence of the prosecution of the purpose, irrespective of which required state of mind the person who inflicted the harm possessed. To that extent, the state of mind of the actual perpetrator is not relevant.
The appellant bears full responsibility for the crime committed, whether the grievous bodily harm was inflicted intentionally or recklessly. On the basis of the sentencing judge's findings, the only relevant state of mind of the appellant is that related to being part of the common purpose and his participation in the prosecution of it. It is the appellant's involvement in the common purpose, the nature of the attack and the appellant's role in it, and the outcome that are important. I should add that even if, for some reason, it is necessary to attribute to the appellant a state of mind directly relevant to s 172, and that state of mind is one of recklessness, my view about the outcome would not change.
The aggravating features of the appellant's crime are apparent from Estcourt J's reasons, and there is no need to repeat them. I would simply highlight that this was a vicious unprovoked attack on a stranger by about six men, about four of whom were using fence palings. The injuries sustained by the victim were serious and permanent. As his Honour has also noted, there were no mitigating factors of any significance. At the time of this offence, the appellant was the subject of a suspended sentence of imprisonment for violent behaviour, and was on bail on various charges. I joined in the dismissal of the appeal as I took the view that the sentence imposed was not outside the range of sentences reasonably available to the sentencing judge, and that in all of the circumstances, the sentence was not shown to be manifestly excessive.
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