Director of Public Prosecutions v Broad - [2018] TASCCA 5

[2018] TASCCA 5

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

CITATION: Director of Public Prosecutions v Broad [2018] TASCCA 5

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  BROAD, Paul Lance

FILE NO: CCA 3344/2017

DELIVERED ON:  18 April 2018
DELIVERED AT:  Hobart
HEARING DATE:  9 April 2018
JUDGMENT OF:  Wood, Estcourt and Geason JJ

CATCHWORDS:

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference – Sentence manifestly excessive or inadequate – Three months’ imprisonment for assault – multiple blows to head involving headbutting, punches and a kick – Cumulative effect of sentence and totality principle - Discount on sentence for plea of guilty – Sentence manifestly inadequate.

REPRESENTATION:

Counsel:
             Appellant:  D Coates SC
             Respondent:  K Abercromby
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2018] TASCCA 5
Number of paragraphs: 41

Serial No 5/2018
File No CCA 3344/2017

DIRECTOR OF PUBLIC PROSECUTIONS v PAUL LANCE BROAD

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
ESTCOURT J
GEASON J
18 April 2018

Orders of the Court

Appeal allowed.

Sentence of 3 months' imprisonment, imposed on 13 November 2017, quashed.

Respondent sentenced to 12 month's imprisonment, to be served cumulatively to a period of 5 months' imprisonment imposed on 13 November 2017.

Respondent not to be eligible for parole until he has served 6 months of that sentence.

Serial No 5/2018
File No CCA 3344/2017

DIRECTOR OF PUBLIC PROSECUTIONS v PAUL LANCE BROAD

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
18 April 2018

I agree with the reasons of Estcourt J that the sentence imposed was manifestly inadequate. Estcourt J identified a significant and obvious need for personal deterrence in this particular case and I wish to add some remarks in agreement with that need, and also to make a brief comment with regard to the application of the totality principle.
This crime of violence was the fourth occasion the respondent had committed a crime of violence in two years. As noted by Estcourt J, at the time of sentencing the respondent was already serving a sentence. That was a sentence of five months' imprisonment which included an activated suspended sentence of four months for various offences including two offences of common assault committed on 13 September 2015 and 5 January 2016. The sentence activated by Slicer AJ was a suspended term of five months' imprisonment for assault, contrary to the CriminalCode, committed on 17 June 2015.
By 31 May 2017, when the respondent committed the crime of assault the subject of this Crown appeal, he had already received the benefit of a wholly suspended term of imprisonment and a partially suspended term. He had served a period of four months imprisonment and evidently had not been deterred from reoffending. He committed the crime at a time when he was subject to two sentences of suspended imprisonment (in one case, partially, and in the other, wholly suspended) which, if activated in total as cumulative terms, would have resulted in nine months of imprisonment. Of course such a term would be in addition to any period of imprisonment which he must have known was inevitable if he assaulted someone in any serious way. Plainly, in my respectful view, there was a particular need for a sentence which was effective as a personal deterrent, and which made plain the court’s intolerance for his violent crime.
In fixing the sentence for the assault, the sentencing judge noted he was, at the same time, also activating a suspended sentence of five months, and his Honour expressly referred to the totality principle of sentencing. This principle requires a judge who is sentencing an offender for a number of offences to have regard to the total effect of the sentences, the final penalty, to ensure it is a just and appropriate measure of the totality of the criminal behaviour: Mill v The Queen (1988), 166 CLR 59 at 63; Postiglione v The Queen (1997), 189 CLR 295. The principle reflects the need for mercy and that the sentence should not crush an offender's hope for rehabilitation. This principle also operated so as to require the learned sentencing judge to have regard to the term of imprisonment (five months from 30 August 2017) that the respondent was already serving: Postiglione v The Queen at 308, Rae v State of Tasmania [2010] TASCCA 8 [20]-[21]. The learned sentencing judge expressly referred to the principle stating: "The totality principle being that the penalty ought not be crushing and ought to take into account the fact that he is already in custody." Giving effect to this principle, his Honour allowed the sentence he activated to be partly concurrent with the sentence being served. The appellant acknowledged that the totality principle had application; the argument was that although the sentencing court may legitimately adjust the length of the sentences downward to ensure that the overall period was not excessive, the sentence of three months for the assault was manifestly inadequate.
There are limits to the operation of the sentencing principle and the extent to which aggregate sentences should be reduced to take account of totality. It does not permit an adjustment of a penalty downward to a point where it fails to adequately reflect the gravity of the crimes, and the penalty is not justly proportionate to the totality of the criminal offending. In my view, notwithstanding the sentence the appellant was serving, and the additional activated period, the sentence imposed for the assault of three months' imprisonment as a cumulative term, fell far below what was required to reflect the criminality involved in this serious act of violence and the harm caused to the victim.
I agree with the sentence proposed by Estcourt J of 12 months' imprisonment for the assault as one that is just and appropriate and that reflects a genuine reduction in the penalty for the matters in mitigation. The proposed sentence is further tempered by an order allowing the earliest possible opportunity to apply for parole. In my view, that order is appropriate having regard to the respondent's youth, the incentive it will provide for reform and, as his time in prison will be the longest period of time he will have spent incarcerated, it allows for the prospect that it may prove to be an effective deterrent.
I take this opportunity to mention the additional comments of Geason J with respect to the approach of quantifying a discount for a plea of guilty. His Honour's analysis identifies the advantage that results from sentencing judges giving a "discount" for an early plea of guilty or assistance to authorities and the principle that it is permissible to express a discount for this utilitarian purpose in quantitative or percentage terms. As can be seen, the course of quantifying a discount provides a tangible reward to an individual offender, encourages pleas of guilty and benefits the administration of justice. The majority judgments of this Court in Pavlic v The Queen (1995) 5 Tas R 186, must be read in light of clear authority allowing a discount in quantitative terms for the utilitarian value of a plea of guilty (by contrast, the judgment of Slicer J, dissenting on this point, is prescient of the approach taken by the High Court in Markarian v The Queen [2005] HCA 25, (2006) 228 CLR 357).
I wish to point out that in acknowledging the correct identification of principle which permits a sentencing judge to specify a quantified discount, I do not endorse a prescriptive approach or one that curtails the sentencing discretion to reason to a sentencing outcome in a particular way. The principle drawn from Markarian v The Queen at [74] that allows a quantified discount, permits, not dictates, that approach. Instead, a sentencing judge may reason by taking into account the utilitarian and pragmatic benefit of a plea of guilty as one of a multiple of factors in reaching the 'single result' described in Wong v The Queen [2001] HCA 64, 207 CLR 584 at [75]. The sentencing judgment is a discretionary judgment; what is required of a sentencing judge is that the sentence must take into account all relevant considerations in forming the conclusion reached: Markarian v The Queen at [27], [37]. Moreover, there is importance in allowing "as much flexibility in sentencing as is consonant with consistency of approach as accords with the statutory regime that applies": Markarian v The Queen at [27], see also [39]. The flexibility spoken of is as to the reasoning path in arriving at the sentence, not just the width of discretion in terms of sentencing outcomes.
As for whether the benefit should be articulated by sentencing judges as a quantified discount, the gain to be derived from promoting the administration of justice is plain, but again, there is merit in the proposition that it is best left to the discretion of the sentencing judge. The sentencing judge in the particular case is best positioned to assess the desirability of doing so with reference to the circumstances of the particular case.
In undertaking the task of re-sentencing the respondent, in the circumstances of this case, I respectfully agree with the approach of Geason J in quantifying the discount for the new sentence, and I also agree with the discount that his Honour has specified. I see real benefit in quantifying the discount in a case such as this where the sentence to be imposed as a substituted sentence is a heavy sanction. If the effect of the plea of guilty is not articulated, it may be thought by the respondent that the Court is only paying lip-service to the mitigatory value of a plea of guilty. To make my position plain, I agree with the approach taken in this case, as an exercise of this Court's discretion in re-sentencing the respondent.

File No CCA 3344/2017

DIRECTOR OF PUBLIC PROSECUTIONS v PAUL LANCE BROAD

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
18 April 2018

The appeal

The respondent, Paul Lance Broad, pleaded guilty to one count of assault contrary to the Criminal Code, s 184, committed on 31 May 2017. On 13 November 2017 he was sentenced by Slicer AJ to imprisonment for three months. That sentence was ordered to be served cumulatively to a period of five months' imprisonment which was imposed on the same day by the learned sentencing judge in activating a suspended sentence imposed on 29 April 2016 for an assault contrary to s 184 committed on 17 June 2015. The activated suspended sentence was a period of five months' imprisonment which was ordered to be served from 13 November 2017. At the time of sentencing, the respondent was already serving a sentence of imprisonment, and his latest release date, ignoring any possible remissions, was 25 January 2018. Thus, that part of the activated suspended sentence to be served between 13 November 2017 and 25 January 2018, or any earlier release date due to remissions (potentially as early as 4 December 2017), was to be served concurrently with the respondent's existing sentence, and the balance of the five month period after 25 January 2018 was to be served cumulatively to that existing sentence.
The Director of Public Prosecutions appeals the sentence of three months' imprisonment. The sole ground of appeal is that the sentence is manifestly inadequate.

The principles governing the appeal

In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, Pearce J concisely adumbrated the principles relevant to appeals against sentence on the basis of manifest excess or inadequacy. His Honour said at [8]-[9]:
"8 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) 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) 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) 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) 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) 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) 242 CLR 520 at 539.
9 It is opportune to refer again to the oft quoted passage from the joint decision of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen(No 2) (1988) 164 CLR 465 at 476:
'However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.'"
In Director of Public Prosecutions v Harington [2017] TASCCA 4, Pearce J summarised the considerations where the appeal is brought by the State on the ground of manifest inadequacy. His Honour said at [95]-[96]:
"95 This is a Crown appeal. The principles to be applied were reviewed in Director of Public Prosecutions v Swan [2016] TASCCA 9 at [24] and following. Those principles derive from the underlying principle that a primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465-466 [1]-[2]. They also serve to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence: Everett v The Queen (1994) 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]-[116]. In Everett v The Queen, McHugh J said at 306:
'Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.'
96 The appellant's right of appeal derives from the Code, s 401(2)(c). The appellant must persuade this Court that a more severe sentence is warranted in law and should have been passed in substitution for the original sentence. In any other case, the Court must dismiss the appeal. Thus, the appellant must not only establish appealable error in the exercise of the sentencing judge's sentencing discretion, but also negate any reason why this Court's residual discretion not to interfere should be exercised: R v Hernando [2002] NSWCCA 489, 136 A Crim R 451 at [12]; CMB v Attorney-General (NSW) [2015] HCA 9, 317 ALR 308, 89 ALJR 407; 243 A Crim R 282, per French CJ and Gageler J at [34], and Kiefel J (as she then was), Bell and Keane JJ at [66]."

The circumstances of the offending

In sentencing the respondent the learned sentencing judge did not describe the circumstances of the respondent's offending in great detail. It is useful therefore, and in any event, given the nature of the appeal, to set out the relevant extract from the statement of facts read to his Honour by counsel for the State on the hearing. It is as follows:
"1        On Wednesday the 31st of May 2017, the accused, Paul Lance Broad (DOB 13/1/1995), the complainant, Stewart Yost (DOB 29/12/1988) and another male, Steven Dunne, were all drinking at Club 54 Night Club at Cameron Street in Launceston.
2         The complainant met the accused for the first time that night.
3         At approximately 2am on the 1st of June 2017 the three men agreed to catch a taxi together to Mr Dunne's residence in Youngtown.
4         The three men arrived at Mr Dunne's residence at 6 Sisson Street in Youngtown around 2:30am. The three men were intoxicated. At the time the accused's partner, Mr Dunne's partner and two younger children, who were in bed asleep, were all present inside the address. On arrival, the three men were loud and disruptive.
5         The accused and Mr Dunne left the address to go to a nearby address. Whilst this occurred the complainant, in his intoxicated state, entered the children's bedroom. One of the females inside the address became extremely upset and moved the complainant from the children's bedroom into the hall.
6         The accused returned to the address and was confronted by the female who was very upset and told the accused what had occurred.
7         The accused grabbed the complainant and forced him to the ground in the hallway/entry way of the address. The accused then dragged the complainant into a nearby main bedroom where he punched, head-butted and kicked the complainant to the head several times. This caused the complainant to become unconscious on the bedroom floor. When the accused realised that the complainant was unconscious he stopped.
8         After a few minutes, the complainant was removed from the address and let out the front of the property in a dazed state.
9         At approximately 4am police responded to a disturbance on Hobart Road near Sisson Street. Police located the complainant who was conscious but incoherent and bleeding heavily from the head with facial injuries. Police also located the accused on Hobart Road. He had fresh blood on his clothing, boots and right hand.
10        The accused was arrested for assault and conveyed to the Launceston Police Station.
11        The complainant was taken by Ambulance to the Launceston General Hospital in a semi-conscious state for treatment, where he was admitted.
12        On 1 June 2017, police executed a search warrant at 6 Sisson Street in Youngtown. Inside the address police located smeared dry blood on the entrance door frame, and blood at a number of locations on the floor in the entry hall and main bedroom.
13        The accused participated in an electronically recorded interview with police at the Launceston Police Station. Under caution he said the following:
(a)       He met the complainant that evening at Club 54. Mr Dunne knew the complainant and invited the complainant and the accused back to his house for a few more drinks.
(b)       The three men caught a taxi back to Mr Dunne's house at 6 Sisson Street. Everything was good when they arrived.
(c)       He and Mr Dunne left the address to pick something up and he came back to the house a little bit later. When he came back to the address the two females were at the children's door crying their heads off stating that the complainant had been trying to get his way into the children's bedroom.
(d)       He flipped out. He forced the complainant against a wall and to the ground, and then he dragged him into the main bedroom where he punched him with his right fist about 4 to 5 times, head butted him twice and then kicked the complainant to the head with his right boot once.
(e)       When he hit the complainant with his fist he hit him hard; 'full on 100%' to the top of the head; indicating to the complainant's forehead.
(f)       He had to pick the complainant up to head-butt him then he laid him back down.
(g)       When he kicked the complainant to the head the complainant was lying on the ground.
(h)       There was a lot of blood. There was blood on his clothes, his boot and his fist. His fist is a bit sore and bruised.
(i)        The complainant wasn't giving any resistance to what was happening.
(j)        The complainant wasn't a strong person. He came across as 'being gay' due to the way he looked with his high heeled shoes.
(k)       The complainant was out cold; as soon as he saw this he stopped and walked away.
(l)        He did it due to being good mates with Mr Dunne and he treats his kids as his own.
(m)      It was the worse night of his life because he assaulted someone. He was sorry for what he did …".

The respondent's circumstances

The learned sentencing judge did not describe the respondent's personal circumstances in great detail. The following account of them is taken from the transcript of the plea in mitigation put on the respondent's behalf at the sentencing hearing:
"My client is 22 years old. Before being remanded in custody on his lower court matters he was residing with his father in Young Town . He instructs that he has a positive relationship with his father and upon release instructs he will likely be residing with him once again.
He instructs that he's been in a relationship with his partner for nearly a year. They have remained together while he's been serving his time in custody and I'm instructed that she is completely supportive of him and they have every intention of continuing that relationship. Certainly until he is released. They have no children together and at the time of being brought into custody he was unemployed and was in receipt of a New Start allowance.
At the time of being sentenced by the lower court he was, on my instructions, looking for employment as either a mechanic or a labourer – both areas, on my instructions, he has experience in in his younger years.
He instructs that he grew up in Tasmania and attended Kings Meadows High School until Year 7. I'm instructed he didn't complete that year in school. He was ejected from his mother's house at that time. It was at that point that he moved in with his father in Rocherlea and he instructs that he didn't return to school and that it was an extremely difficult and turbulent period in his life.
He instructs that it was at that time that he began using cannabis and his offending commenced around that general time. He instructs that he has been a regular user of cannabis until June last year at which point he gave up his habit of – which was approximately two to three grams a day and instructs that he hasn't used cannabis since then.
I am instructed he's not medicated for any mental health or general health issues and he instructs he suffers from neither.
With respect to the offence itself, my client indicates that, as in indeed your Honour has heard from my learned friend, the parties were intoxicated. When he returned to the address of Mr Dunn which your Honour has heard in the Facts he was met by what he describes as a scene that was difficult to comprehend. His own partner was in tears as was Mr Dunn's partner and they relayed to my client that the children were scared as the complainant in this matter had been trying to get into their rooms.
He acknowledges that his reaction was extreme. Even in the circumstances as be believed them to be he believed the children to be in danger. He accepts that his reaction was excessive to say the least. He instructs that that reaction has come about as a result of not only his intoxication but he instructs he is very close with Mr Dunn. His children – Mr Dunn's children – my client treats as his own and he was concerned for their welfare. He concedes that at the time he was so intoxicated that he didn't properly stop to assess the situation.
My submission to your Honour is that he expressed significant remorse to police in his interview and in fact he told them that that night was one of worst in his life because he assaulted someone. He was honest with police about his actions. He described them frankly and my submission is that much of the Crown Facts are based off what my client has said to police in his interview. He instructs that he is remorseful for his actions. He accepts what is contained in the victim impact statement. I'm not instructed to make any submissions with respect to that and he instructs that – he describes himself in his owns as down in the dumps since the assault occurred.
With respect to his prior matters I note that there is a matter for which your Honour has been presented with an application breach of suspended sentence for the code assault. Just to make things perfectly clear my client doesn't instruct me to make or rather he doesn't instruct that he opposes that application. I'm not instructed to make any submissions with respect to unjust and unreasonable. He accepts that he is squarely in breach of that sentence and he doesn't instruct me to resile from that. With respect to that particular assault he instructs that it occurred as a result of animosity between neighbours and that it is also a matter which he sincerely regrets.
With respect to his age, my submission is that at 22 he is still a youthful offender. I accept that he has a serious prior matter for assault and two prior matters for common assault but my submission is that he remains a youthful offender. Regard should be had for the need to emphasis rehabilitation. My submission is that there is no – there is nothing to prevent your Honour from imposing the maximum non-parole period with respect to Mr Broad.
I can't submit to your Honour that he hasn't any employment to attend to when he leaves but he has an employment history which makes him an employable character in my submission. He instructs that he's had various jobs as a mechanic and a labourer in his past and he fully intends to investigate employment upon his release and further my submission is that he has the support of his father and his partner. Support that, in my submission, many defendants are not lucky enough to benefit from when they become your Honour. He does have family support in that respect.
I also note that the plea of guilty was entered in the Magistrates Court which, in my submission, is at an early stage. The matter was committed for sentence on the 30th August and I ask your Honour to take that into account as a sign of his remorse.
My final submission is that the total effect of the activation of the suspended sentence and the period of imprisonment that your Honour will impose in addition to that must not, in my respectful submission, be crushing. His current sentence – and just to pick up on something that my learned friend was discussing with your Honour, my instructions are that my client is entitled to remission on his current sentence even though it is a suspended sentence. He has sought from the prisons information as to his earliest release date. Obviously not taking into account this matter. His instructions are that in fact he would be eligible for release if he were granted the benefit of remissions on the 4th December. Those are my instructions with respect to that matter. I don't – …".
His Honour then proceeded to make the following comments:
"The offender has a long history of anti-social conduct, many being a breach of bail conditions, but he does have prior convictions for assault. The Court is told that he is due for release with remissions on 4 December 2017.
The offender is young and may be able to make a fresh start, although his anti-social conduct makes this more unlikely than likely. The prosecution asked me to activate a sentence and I will have regard to the totality principle. The totality principle being that the penalty ought not be crushing and ought to take into account the fact that he is already in custody."

Discussion

Even making genuine discounts on an otherwise appropriate sentence to reflect the totality principle, the respondent's young age, his co-operation with police, his early indication of a plea of guilty and the associated remorse, I am of the view that the learned sentencing judge's sentence was wholly inadequate, and I am persuaded that a more severe sentence is warranted in law and should have been passed in substitution for the original sentence.
In Director of Public Prosecutions (Acting) v Morgan [2015] TASCCA 11, a case involving a series of three quite serious assaults close in time, Wood J at [38]-[39] made the following observations as to a young offender with (unlike the respondent), no relevant prior convictions:
"[38] The seriousness of the conduct highlights that it is not only the offender's rehabilitation which is in the community's interest. As I have said, the sentencing function must fulfil other objectives as well, such as general deterrence and reinforcing the values of the community by denouncing such conduct. In R v Tran (above) at [14], Callaway JA said: 'The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.' In terms of just punishment, it is in the community's interest for sentences to adequately recognise the nature and significance of the wrong that has been done: Director of Public Prosecutions v DJK [2003] VSCA 109 per Vincent JA at [18].
[39] The severity of the attack and the potential for serious injury demanded that weight be given to general deterrence. The crimes required denunciation in the sense of 'appropriate vindication and to assuage public outrage' Evans J in DPP v NOP [2011] TASCCA 15 at [4]. This sentencing objective is to vindicate the rights of victims and reinforce the values of the community: DPP v Neethling (2009) 22 VR 466 per Maxwell P, Vincent JA and Hargrave AJA at [56] and [57]. A community service order and a probation order failed to achieve these objectives."
In my view, the same can be said for a sentence of three months' imprisonment imposed for a serious example of the crime of assault, at the same time as activating a suspended sentence of five months' imprisonment for the same crime, imposed approximately 18 months earlier.
The attack by the respondent on the complainant involved four to five full force punches to the head, two head-butts and a kick to the head. I regard it as particularly abhorrent that the respondent picked the complainant up off the floor where he lay in order to head butt him and then put him back on the floor before kicking him. The complainant was admitted to hospital on the night of the assault and was discharged the next day with a broken nose, severe bruising to his face, swelling to his brain, small cuts to his tongue and lips from his teeth, small cuts to his hands, face and scalp, and bruising all over his body. He also suffered significant psychological and emotional trauma as a consequence of the crime.
In such a case I regard the need for general deterrence and denunciation, as well as the obvious need for personal deterrence in this particular case, as warranting a sentence of imprisonment very significantly greater than a period of three months.

Disposition

I would allow the appeal.
Taking into account the matters to which I have referred, I would set aside that part of the learned sentencing judge's sentencing order, the subject of this appeal. After making the required discounts to which I have earlier referred, I would substitute a sentence of 12 months' imprisonment. I would order that the defendant not be eligible for parole until he has served six months of that sentence.
Since writing these reasons I have had the benefit of reading the reasons of Geason J in draft form. I agree with his Honour's comments concerning the articulation of the quantum of discounts for pleas of guilty. As was noted with approval recently by a Court of five judges in Xiao v R [2018] NSWCCA 4 at [279], McHugh J pointed out in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [74] that specification of such a discount is not inconsistent with the instinctive synthesis approach to sentencing. The Court in Xiao at [280] went on to say that once it is accepted that a sentencing judge is allowed to give a discount to the sentence which would otherwise be imposed; it was desirable that, in the interests of transparency, such discount be specified. The Court added that there was no obligation on the sentencing judge to do so, and a failure to do so would not of itself amount to error.

File No CCA 3344/2017

DIRECTOR OF PUBLIC PROSECUTIONS v PAUL LANCE BROAD

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

GEASON J
18 April 2018

I have had the advantage of reading in draft form, the reasons for judgment of Estcourt J. I agree with them. I would like to make some additional comments about one aspect of this matter.
When a court accepts a plea of guilty, as it did in this case, certain advantages accrue to the administration of justice. Recognition of that fact has resulted in courts conferring a discount on the sentence it would otherwise impose.
This is so even if the Crown case is so strong that conviction is inevitable. As Estcourt J observed in Director of Public Prosecutions v Harris [2013] TASCCA 5 at [41]:
"I digress to observe that, even were it otherwise and the early plea of guilty was born of nothing other than acceptance of the inevitable, it would nonetheless have had the effect of saving the State the expense and inconvenience of a trial …".
The discount for the benefit to the administration of justice is frequently described as a utilitarian discount. A utilitarian discount is one intended to further an identified policy consideration. That policy consideration is the encouragement of early pleas of guilty. In that respect it is a discount for a non-sentencing purpose: Markarian v The Queen [2005] HCA 25, (2006) 228 CLR 357, per McHugh J at [74].
A utilitarian discount does not have regard to the strength of the prosecution case: R v Sutton [2004] NSWCCA 225; and nor does it relate to the issue of remorse; R v MAK, R v MSK [2006] NSWCCA 381. That is because the benefit to the administration of justice occurs by reason of the plea, simpliciter. It accrues whether the offender is remorseful or not. Thus when it is said that a plea of guilty attracts a discount, it is in terms of the benefit to the administration of justice; the utilitarian benefit. That benefit is applied after the process involved in arriving "at a single result" described in Wong v R [2001] HCA 64, 207 CLR 584 at 611 [75]. It is applied for a non-sentencing purpose: Markarian v The Queen (above).
Remorse, on the other hand, is a matter taken into consideration for a sentencing purpose. It can be evidenced by a plea of guilty: Cameron v The Queen [2002] HCA 6, 209 CLR 339 at 350. When it is relied upon as evidence of remorse, that remorse is distilled from the fact of the plea. It is a relevant matter in that respect: Singh v R [2018] NSWCCA 60, per Payne JA at [25]-[30]. It is taken into account as a matter evidencing contrition in arriving at a sentence that is proportionate to the facts: Veen [No 1] (1979) 143 CLR 458 and Veen [No 2] (1987) 164 CLR 465, within the process involved in arriving at "a single result" described in Wong v The Queen (above).
The distinction respects the "instinctive synthesis" approach to sentencing required by the High Court: Wong v The Queen (above); Markarian v The Queen (above).
McHugh J in Markarian v The Queen succinctly explains the point:
"[74] Nor is the instinctive synthesis approach inconsistent with awarding a discount for some factor, provided that discount relates to a purpose distinct from a sentencing purpose. The distinction between permissible and impermissible quantification of 'discounts' on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice."
In consequence of his early plea of guilty the respondent was entitled to a discount to the penalty which was otherwise appropriate for the utilitarian benefit it conferred.
The State conceded that an administrative benefit had resulted from the respondent's early plea of guilty. It acknowledged, for example, that it was not necessary for a police file to be prepared, and that court time was saved. But it also said that the respondent showed little remorse, and his plea of guilty was an acknowledgment of the inevitable.
This conclusion, invites consideration of whether such discount should be quantified by the sentencing judge. Whilst I am mindful of the Court's decision in Pavlic v The Queen (1995) 5 Tas R 186, I note that in Director of Public Prosecutions v Farmer [2005] TASSC 15, 13 Tas R 418 at [39], Evans J quantified a sentencing discount at 20%, as did Wood J in Director of Public Prosecutions v Harington [2017] TASCCA 4. Her Honour said at [36]:
"I accept that the respondent's plea of guilty is a significant mitigatory factor. In determining an appropriate discount, the timing of the plea is important, an early plea attracts a greater discount than a late plea. Here, the respondent's pleas of guilty were entered at a very late stage but saved the victims from giving evidence. His pleas of guilty may, in the circumstances of this case, result in a discount of up to 20%."
In Butt v Tasmania [2018] TASCCA 3, Estcourt J at [27] agreed with her Honour's approach in that case.
I favour an approach which articulates the benefit of an early plea. To do so evidences recognition of the administrative benefit in a tangible way. That in turn encourages pleas of guilty, benefitting the administration of justice.
The assault which occurred in this case has been described in the reasons for judgment of Estcourt J. I do not need to repeat that detail. The assault was a serious one which had serious physical and psychological consequences for the victim. Having regard to the matters relevant to penalty, including the offender's circumstances, the need for personal and general deterrence, and denunciation of the offending behaviour, I have concluded that a term of imprisonment of 15 months was required in this case. In recognition of the early plea of guilty I would discount that penalty by 20%. This results in a term of imprisonment of 12 months.
I have fixed the non-parole period in accordance with the principles articulated in Carr v The Queen [2002] TASSC 60, 11 Tas R 362 at 389; Richman v Tasmania [2011] TASCCA 18 at [47]; Director of Public Prosecutions v Harris (above) at [10] per Blow CJ, and in Devine v The Queen [2003] TASSC 52 by Evans J. I would impose a non-parole period of six months.
I would make an order substituting a sentence of 12 months' imprisonment. I would further order that the defendant not be eligible for parole until he has served six months of that sentence.