Dare v Tasmania

[2018] TASCCA 13

[2018] TASCCA 13

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

CITATION:             Dare v Tasmania [2018] TASCCA 13

PARTIES:  DARE, Andrew
  v
  STATE OF TASMANIA

FILE NO:  CCA 1921/2019
DELIVERED ON:  3 September 2018
DELIVERED AT:  Hobart
HEARING DATE:  30 August 2018
JUDGMENT OF:  Wood J, Estcourt J, Martin AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Unprovoked assault – History of violence – Assault committed in prison environment – Necessary to deter prisoners from violence – No error in sentence of nine months' imprisonment.

Aus Dig Criminal Law [3521] 

REPRESENTATION:

Counsel:
           Appellant:  In person
           Respondent:  Jackie Hartnett
Solicitors:
           Appellant:  In person
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2018] TASCCA 13
Number of paragraphs:  15

Serial No 13/2018

File No 1921/2018

ANDREW DARE v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
ESTCOURT J
MARTIN AJ

3 September 2018

Order of the Court (30 August 2018).

Appeal dismissed.

Serial No 13/2018  

File No 1921/2018

ANDREW DARE v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
ESTCOURT J
MARTIN AJ
3 September 2018

1. The appellant pleaded guilty to one offence of assault, contrary to s 184 of the Criminal Code.  On 27 June 2018 Pearce J imposed a sentence of imprisonment for nine months to be served cumulatively upon any sentence the appellant was presently serving or liable to serve.  His Honour ordered that the appellant not be eligible for parole until he had served half of the sentence.

2. Although represented by counsel before the sentencing judge, on appeal the appellant was unrepresented.  He has appealed against the sentence on the basis that it is manifestly excessive.  For the reasons that follow, on 30 August 2018, the Court dismissed the appellant's appeal.

3. The offending occurred on 1 August 2017.  The appellant was aged 34 years. Both the appellant and the victim were serving sentences of imprisonment at the Ron Barwick Minimum Security Prison and engaged in a game of 8-ball for a bottle of Coke.  The learned sentencing judge summarised the facts as follows:

   "They each won one game, but the defendant irrationally pressed a claim that [the victim] owed him two bottles of coke.  [The victim] walked away, but the defendant persisted and followed him into the prison yard, repeatedly making his claim.  When [the victim] started to walk away again, the defendant, without warning, punched him to the side of his jaw.  The single blow caused a fracture to each side of [the victim's] lower jaw.  He required surgery to insert plates to his jaw, and to remove the roots of the two lower front teeth.  It is not asserted that the teeth were lost as a result of the assault. Despite the apparent seriousness of the injury I was informed that [the victim] has made a good recovery and there is no victim impact statement.  That does not mean that there is no impact.  The injury must have been painful and incapacitating for him, but I assume that there is no other serious or lasting impact."

4. The appellant has a long record of prior offending commencing in 1998. Many of the convictions relate to driving offences and crimes of dishonesty but, significantly, the appellant committed serious crimes of violence in 2006 and 2014 for which he received sentences of five years and four and a half years' imprisonment.  It is unnecessary to canvas the details of those crimes.  It is sufficient to observe that Pearce J was correct in saying that the appellant's crime attracted "the strong need for punishment, condemnation and general and personal deterrence".

5. In brief written submissions, the appellant complained that he had been unfairly treated by reason of his previous convictions.  There is no substance in this complaint. The appellant was concerned that because of what he described as the shocking nature of his prior crimes of violence, he was being punished twice, or at least prejudiced. There is absolutely no indication of that in the learned sentencing judge's comments on passing sentence, and the Court's conclusion that the sentence under appeal was a fair, if not lenient sentence makes it clear that the appellant was in no way impermissibly sentenced for his record.

6. Next the appellant complained that the CCTV footage shown to the sentencing judge had been shortened and this was prejudicial "to the actual true events".  In oral submissions the appellant suggested that there were exchanges not shown in the shortened footage. However, these do not alter the essence of the appellant's violent reaction to a petty dispute.

7. The appellant submitted in his oral submissions that the "overfull" prison environment contributed to his pent up anger. This is not a matter that mitigates the appellant's violent outburst, although it might provide some insight into the trigger for it. It should be noted in this regard that the appellant pursued his appeal to make this point, amongst others, notwithstanding that at an earlier directions hearing he had been warned in accordance with Neal v The Queen (1982) 149 CLR 305 that it was quite possible that his sentence would be increased on appeal.

8. In his written submissions, the appellant had also drawn attention to the fact that the crime was committed in a prison environment rather than out in the wider community.  Implicit in this submission was the suggestion that the act of violence was less serious because it occurred in a custodial setting.

9. Violence in any locality is unacceptable and causes great disquiet throughout the community.  In a prison environment, the maintenance of order and the safety of inmates and correctional officers are threatened by the type of violence committed by the appellant over a petty dispute.  Deterring prisoners who might be minded to resort to violence as a means of settling disputes was an important factor in the determination of the sentence in this case.

10. The appellant referred to punishment in the form of his transfer to maximum security for some six months after the assault, and for the almost 12 months after he was charged, and before his sentence, in what he described as an "over packed" court system. He said he had wanted to plead guilty on his first appearance in court.  The sentencing judge acknowledged that the appellant had suffered "some punishment" as a result of being transferred to maximum security, but correctly observed that the appellant had "brought that on himself".

11. The principles governing appeals against sentence on the basis of a complaint that the sentence is manifestly excessive are not in dispute: Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1. There is no error of fact or law apparent in the remarks of the sentencing judge and, bearing in mind the wide sentencing discretion available to his Honour, this Court can only interfere if it is satisfied that the sentence is so unreasonable or plainly unjust, or so manifestly wrong, that it could only have been imposed as the result of some error by the sentencing judge which is not apparent.

12. The appellant was also concerned that the time taken to finalise proceedings impacted on his application for parole in circumstances where he had taken positive steps towards his rehabilitation.  However, it can be seen that the learned sentencing judge took into account that he had been eligible to apply for parole on 10 May 2017 in respect of the term of imprisonment he was serving at the time he committed the assault, and also the progress he had made. Indeed, the fact that an order was made for parole eligibility by the learned sentencing judge reveals that it was accepted that the appellant had some prospects of reform. 

13. The appellant's violent conduct was a serious example of assault.  There was no provocation by the victim who attempted to walk away. The appellant followed the victim and struck him forcefully without warning.  The victim suffered a serious injury.  There were no circumstances of mitigation in relation to the offending and, for the reasons explained, the features of general and personal deterrence were particularly important in the exercise of the sentencing discretion.

14. In these circumstances, the sentence of imprisonment for nine months was well within the range of the sentencing discretion.  Further, in our view, a longer sentence would have been justified.

15. For these reasons, the Court dismissed the appeal.