Director of Public Prosecutions v Fletcher-Jones
[2019] TASCCA 18
•12 November 2019
[2019] TASCCA 18
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Director of Public Prosecutions v Fletcher-Jones [2019] TASCCA 18
PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS
v
FLETCHER-JONES, Jesse Leigh
FILE NO: CCA 1208/2019
DELIVERED ON: 12 November 2019
DELIVERED AT: Hobart
HEARING DATE: 11 October 2019
JUDGMENT OF: Pearce J, Geason J, Martin AJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Assault and stealing – Man kicked and struck with weapon by two men – Sentence imposed when offender already serving long sentence – Totality principle – Head sentence of 15 months with 12 months to be served concurrently with another longer sentence not manifestly inadequate.
Aust Dig Criminal Law [3521]
Criminal Law – Sentence – Relevant factors – Totality – General principles.
Mill v The Queen (1988) 166 CLR 59; Nguyen v The Queen [2016] HCA 17, 256 CLR 656, applied.
Aust Dig Criminal Law [3284]
REPRESENTATION:
Counsel:
Appellant: L Pennington
Respondent: B Clark
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Legal Aid Commission of Tasmania
Judgment Number: [2019] TASCCA 18
Number of paragraphs: 60
Serial No 18/2019
File No CCA 1208/2019
DIRECTOR OF PUBLIC PROSECUTIONS
v JESSE LEIGH FLETCHER-JONES
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
GEASON J
MARTIN AJ
12 November 2019
Order of the Court
Appeal dismissed.
Serial No 18/2019
File No CCA 1208/2019
DIRECTOR OF PUBLIC PROSECUTIONS
v JESSE LEIGH FLETCHER-JONES
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
12 November 2019
This a Crown appeal against sentence. At the conclusion of oral submissions the Court ordered that the appeal be dismissed. These are my reasons for joining in that order. It is the second Crown appeal concerning this respondent within a relatively short time: Director of Public Prosecutions v Fletcher-Jones [2018] TASCCA 9. On 4 July 2018 this Court allowed an appeal against a sentence imposed on the respondent for an armed robbery committed on 25 September 2017. He was re-sentenced to imprisonment for 5½ years from 25 September 2017, with eligibility for parole after having served half of that sentence. He will be eligible to apply for parole on 24 June 2020.
The sentence which is the subject of this appeal was imposed by Estcourt J on 15 May 2019. The respondent pleaded guilty to one count of assault and one count of stealing. Those crimes were committed by the respondent on 27 July 2017, two months before the armed robbery. His Honour sentenced the respondent to imprisonment for 15 months. He made no provision for parole, the effect of which is that the respondent is not eligible for parole in respect of that sentence: Sentencing Act 1997, s 17(2)(a) and (3A). However, his Honour ordered that 12 months of the 15 month sentence be served concurrently with the sentence for armed robbery. As his Honour expressly recognised, the effect of that order was to add three months to the term the respondent was already serving.
The sole ground of appeal is that the sentence is manifestly inadequate.
Crown appeals against sentence
The principles to be applied in appeals on the ground of manifest excess or inadequacy are well established and need not be re-stated at length. The appellant must establish material error in the sense that the sentence is unreasonable or plainly unjust. An appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different manner. Crown appeals serve to lay down principles for the governance and guidance of sentencing courts and to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence. The appellant must also negate any reason why this Court's residual discretion not to interfere should be exercised: Director of Public Prosecutions v Swan [2016] TASCCA 9, citing R v Hernando [2002] NSWCCA 489, 136 A Crim R 451 at [12]; CMB v Attorney-General (NSW) [2015] HCA 9, 256 CLR 346, per French CJ and Gageler J at [34], and Kiefel J (as she then was), Bell and Keane JJ at [66].
The circumstances and impact of the offences
The respondent's crimes were committed not long after midnight on 26 July 2017. The victim, who I will call the complainant, was a man then aged 18. He and the respondent had met a few times and were known to each other. He was employed as a baker and was due to commence work in the early hours of the morning, but had visited a friend in Lenah Valley on the way. At about 1.40 am he returned to his motorcycle parked in the driveway of his friend's home. He started the motorcycle and, as he put on his helmet and gloves, he noticed a person wearing dark clothing and a balaclava walking down the driveway towards him. The complainant got onto his bike, but a second person, also wearing a balaclava, approached. The respondent was one of those two men. They pulled the complainant onto the ground and assaulted him. He rolled himself into a ball on the ground but was struck with an implement and kicked. He was still wearing his helmet, but was hit about ten to fifteen times to the back of his head and ribs while the men made threatening comments to him. The complainant eventually managed to find the opportunity to get up and escape. He ran down the road and called the police on his mobile phone. One of his assailants rode away on the bike. When the police searched the area they found a dumbbell rod which later returned a high grade DNA match to the respondent. The motorcycle was discovered some days later with damage to it. A swab of the handles returned a high grade DNA match to the respondent.
After he was attacked, the complainant was taken to hospital by ambulance. His right shoulder blade was found to be fractured. No surgery was necessary but he was required to wear a sling. In his victim impact statement the complainant said that his injuries were painful and ongoing. They had caused him to lose his job, resulting in financial hardship for him and his children. He could not ride his motorcycle and had difficulty finding other employment. He described the type of psychological impact which might be expected to result from a crime of this nature, including flashbacks, depression and social isolation.
The personal circumstances of the respondent
At the time of the crimes the respondent was aged almost 19. At sentence he was aged 20. He was brought up with his parents and three siblings. He left school in Grade 11. He was a talented sportsman, but was badly affected by the separation of his parents in 2015, when he was 16. In the following year he was introduced to methylamphetamine and things deteriorated for him quickly. He fell out with his family, kept bad company and started to offend. Between early 2016 and February 2017, driven by addiction, he committed 46 offences including, on my count, ten counts of motor vehicle stealing or attempted motor vehicle stealing, five counts of stealing, six counts of burglary or attempted burglary, two counts of possessing a firearm, possessing, using and selling a controlled drug, evading police and eight counts of breaching bail. He spent time remanded in youth detention. On 25 May 2017 he was sentenced to detention for six months from 25 February 2017, with the balance suspended for 18 months, and community service.
The complainant was assaulted and his motorcycle stolen only two months after those sentencing orders were made. The respondent's involvement was only detected as a result of the forensic evidence. When he was interviewed about the incident by the police in January 2018 he denied having anything to do with it.
The sentencing judge was informed by the respondent's counsel that the crimes were committed when the respondent was estranged from his parents, living with drug users and in debt for drugs. His offending was to attempt to obtain money to pay off the debt. By the time of the sentencing hearing the respondent was in custody for the armed robbery. He was finding prison difficult. He was being kept in protective custody in the maximum security unit as a result of having been targeted by particular groups in the prison. It was submitted that his mental health had deteriorated although no expert evidence of his mental health was produced.
There were some sentencing considerations personal to the respondent which were in his favour to some extent. He was at the time of the crime, and at sentence, a young man. He had no prior convictions for violence. The armed robbery for which he was serving a sentence was not committed until later. Although the respondent did not co-operate with the police, he was entitled to mitigation from his plea of guilty. The sentencing judge was entitled to regard the plea as an early one, even though the proceedings did not resolve until almost two years after the crime. The respondent was not charged until 6 March 2018, and was initially charged with aggravated armed robbery. On 4 June 2018, before his first appearance in court, the respondent offered to plead guilty to the alternative charges of assault and motor vehicle stealing. The Crown did not accept the proposed plea until 22 February 2019 and he pleaded guilty to assault and stealing soon thereafter. Apart from the plea there was nothing which pointed to any remorse.
Overview of the respondent's offending
There are a number of aspects of the assault committed on 27 July 2017 which, as the sentencing judge correctly recognised, make it a serious example of that crime. It was an unprovoked, aggressive and terrifying attack. The assault was committed in company, in the sense that the victim was confronted by the combined force of two men, at least one of whom used a weapon. Both assailants were wearing a disguise which indicated pre-planning and added to the terror of the victim. The complainant was in a vulnerable location late at night. He suffered repeated strikes with a heavy metal bar and kicks, all inflicted when he was on the ground, overpowered and unable to defend himself other than by crawling into a ball. Even though he was wearing a motorcycle helmet, which reduced the risk of serious head injury, the physical injury and psychological and financial impact were significant. The risk of more serious injury is obvious. Dishonesty motivated by a need for money for illicit drugs is a matter of concern to the courts and the community. Although the stolen motorcycle was recovered, it was damaged.
As was explained by this Court in the earlier appeal, the armed robbery committed by the respondent on 25 September 2017 was a serious example of that crime, and involved significant risk of physical harm to persons in the vicinity. The respondent planned and executed the robbery of a hotel in the early hours of the morning. He went to the hotel in a car he had stolen, armed with a loaded rifle. He approached the gaming counter. The duty manager was in the office behind the counter with the till from the gaming lounge. The respondent pointed the rifle at him from less than a metre away and demanded money in a highly aggressive and menacing way. While the money was being put in a bag, he fired the gun in the direction of the counter while telling another staff member to "hurry up". He left with the bag containing about $2,500 in cash. Apart from the two staff, three patrons were present and observed what happened. On the day of the robbery, the respondent had consumed 1 gram of Ice, which was five times his normal daily consumption. That was not mitigating. Rather, use of the drug likely added to the unpredictability of his behaviour and the risk he posed.
By committing these crimes the respondent spurned the opportunity for reform which had been offered to him by the magistrate on 25 May 2017. It was an aggravating factor for both crimes that they were committed in breach of the sentencing orders made on that day.
The issue on appeal
The appellant, properly in my respectful view, does not assert error in the 15 month head sentence imposed by the sentencing judge. Rather, the appellant contends that the decision of the sentencing judge to order that 12 months of the 15 month sentence be served concurrently with the sentence already being served resulted in a sentence which was, in effect, manifestly inadequate. Whether the sentence was to be concurrent or cumulative, or partly concurrent and partly cumulative, was a matter for his Honour's discretion: Sentencing Act, s 15(1). The sentencing judge's remarks indicate strongly that he regarded the principle of totality, when combined with the respondent's age, as the predominant reason for formulating the sentencing order as he did. In the course of the sentencing hearing his Honour commented to counsel:
"But it's really the second limb of the totality principle in this case isn't it, because his sentence was increased on appeal to five and a half years … The totality principle, second limb, says that one should avoid a crushing sentence and that's approaching that stage for someone so young."
His Honour then proceeded immediately to sentence and said:
"The sentencing principles that need to be balanced in this case are general deterrence and the vindication of the victim, with the defendant's youth and the totality of any prison sentences added together against the background of his present incarceration."
The totality principle requires a judge who is sentencing an offender for a number of offences, or when the offender is already serving or is liable to serve other sentences of imprisonment, 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; R v Gordon (1994) 71 A Crim R 459; Rae v State of Tasmania [2010] TASCCA 8 per Crawford CJ at [18]; Director of Public Prosecutions v Broad [2018] TASCCA 5 per Wood J at [4]. As Hunt CJ at CL in R v Gordon pointed out at 466:
"When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable."
The totality principle applies to the non-parole period as well as the head sentence: Mill v The Queen at 66.
It seems to me that the issue in this appeal can be stated as follows. Does a sentence which requires the respondent to spend only a further three months in custody for the crimes committed on 27 July 2017 amount to an erroneously lenient response? Put in the context of the totality principle, does the sentence imposed by the learned sentencing judge fail to the point of error to take the total of the sentences imposed on the respondent to a just and appropriate measure of his total criminality? All of the circumstances of all of the offending are to be taken into account, including the circumstances of the respondent.
With particular regard to totality, another way of putting the question is to ask whether, if the respondent had been sentenced for both the assault and stealing, and the armed robbery, at the same time, would an aggregate sentence of imprisonment for five years and nine months, with eligibility for parole after having served three years, be a manifestly inadequate response to his total criminality. In my view, that question must be answered in the negative.
The appellant submits that a sentencing order, different to the one made by the sentencing judge, was required so as to sufficiently recognise that the assault and stealing involved quite separate and distinct criminal conduct. As an example, the appellant submits that imposition of a suspended sentence, rather than a substantially concurrent sentence, would have had more practical impact, imposed a more tangible disadvantage on the respondent, and provided a stronger disincentive to re-offending. Reliance is placed on the statement of Wood J in DPP v Broad at [5]:
"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."
The respondent's crimes were separated in time by about two months and were discrete and independent criminal acts. Adequate recognition of the respondent's criminality necessitated recognition of the separate victims of each crime and the impact the crimes had on them. The appellant submits that an additional effective sentence of imprisonment for three months fails to meet the need for denunciation in the sense of "appropriate vindication and to assuage public outrage": DPP v NOP [2011] TASCCA 15 per Evans J at [4]. It is as if to create the perception, it is submitted, that the crime committed against the complainant does not warrant much of an increase in the overall sentence. As Wood J pointed out in Director of Public Prosecutions v Harington [2017] TASCCA 4 at [29]:
"In giving effect to the principle of totality the court must ensure that the sentence gives recognition to the separate harm caused to a victim by the commission of separate crimes, and in the case of the commission of crimes affecting more than one victim, the harm that individual victims have suffered: R v Wilson [2005] NSWCCA 219 at [38] per Simpson J. This ensures that victims are not reduced to 'meaningless statistics': Director of Public Prosecutions v Solomon [2002] VSCA 106, 36 MVR 425 at [19] per Winneke P. The need for recognition of individual victims arises from the proper role of the criminal law: Munda v Western Australia [2013] HCA 38, 249 CLR 600 at [54]."
There is merit in the appellant's contention. The need for vindication of the complainant and recognition of the harm caused to him are factors of considerable importance. The community expects that sentencing and appellate courts treat the interests of victims and the harm that may be caused by crime as key factors in sentencing. Nothing in these reasons should suggest to the contrary. However, those sentencing aims must also be balanced with other relevant sentencing factors. In this case, the seriousness of the crime which was committed against the complainant, and the impact on him, is marked by imposition of a head sentence of 15 months and the absence of a parole order. Although the result of the sentencing order is to extend the term the respondent is required to serve by only three months, aggregating sentences have a compounding effect on the severity of the total sentence: Director of Public Prosecutions v Harington per Wood J at [27]. The severity of a prison sentence is not simply proportionate to its length. As the New South Wales Court of Criminal Appeal pointed out in R v MAK [2006] NSWCCA 381, 167 A Crim R 159 at 164:
"The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in Clinch v The Queen [1994] WASC 57; (1994) 72 A Crim R 301 at 306:
'... the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years my be (sic) appropriate for another set of offences, each looked at in isolation. Where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences'."
In Rae v State of Tasmania [2010] TASCCA 8, Crawford CJ, with whom Tennent J and Wood J agreed, cited with approval the following statement in the judgment of Anderson J in the Court of Criminal Appeal of Western Australia in Vlek v The Queen [1999] WASCA 1038:
"I think it is also recognised (and this may be simply another aspect of the totality principle) that when a second sentencing court is considering the imposition of a cumulative sentence, there are mitigating factors arising out of that circumstance itself. When a sentence is to be cumulative on sentences already being served there is usually a discount, and the reasons for this include, no doubt, the instinctive acceptance by sentencing courts that a cumulative sentence is, in itself, a harsher sentence than one of the same length which is to take effect immediately. Jarvis v The Queen unreported, CCA SCt of WA, 14 June 1993, especially per Ipp J. Furthermore, as was pointed out in Mill [1988] HCA 70; (1988) 166 CLR 59, the second sentencing court may see (or assume) that the prisoner has made progress towards rehabilitation during the term of the first sentence. In addition, there is not the same demand for retribution where the prisoner has already suffered loss of liberty and where there has already been an 'emphatic denunciation by the community' of his or her criminal behaviour and attitude. See Cross: 'The English Sentencing System' (Butterworths 1971) at page 104. Neither is there the same requirement in the second sentence for personal deterrence because that most likely will already have been achieved in large measure by the first sentence. In other words, not as much emphasis is required in passing the second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case. Therefore, the conventional sentencing objectives may be able to be achieved by a cumulative sentence which is shorter than the sentence that must properly be imposed when the sentence is not to be cumulative."
The considerations referred to by Anderson J in Vlek have equal force when a sentencing court is considering whether a sentence should be concurrent or cumulative to a term already being served. The principles have obvious application in this case. Both crimes were committed by the respondent during the same period of offending and were driven by the same underlying factors. The demand for retribution, denunciation, protection of the public and personal deterrence for the criminal conduct was substantially met by the first sentence. Not as much emphasis on those factors was required of the second sentence.
It was open to the learned sentencing judge to impose a harsher sentence. In my respectful view, the respondent was fortunate to have been sentenced as he was. However, as Crawford J (as he then was) pointed out in R v Jones [1999] TASSC 30 at [15], it is not the function of this Court to overturn sentences just because they are light. The sentencing order was not one which was beyond the proper exercise of the sentencing judge's broad sentencing discretion. The respondent's eligibility to apply for parole is delayed by three months. By the time he becomes eligible to apply he will have served three years. It will be a matter for the Parole Board to consider and determine his application at the relevant time. If granted parole, he will remain subject to supervision for two years and nine months from his release. The threat of revocation of parole will be a strong disincentive to re-offending.
The breadth of the sentencing discretion was emphasised by the plurality in Markarian v The Queen [2005] HCA 25, 228 CLR 357 at [27]:
"The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." [Citations omitted.]
For those reasons I concluded that the appeal should be dismissed.
File No CCA 1208/2019
DIRECTOR OF PUBLIC PROSECUTIONS
v JESSE LEIGH FLETCHER-JONES
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J
12 November 2019
Jesse Leigh Fletcher-Jones, pleaded guilty to a charge of assault contrary to s 184 of the Criminal Code, and a charge of stealing contrary to s 234 of the Code.
The sentencing proceeding was conducted in accordance with s 81 of the Sentencing Act. Immediately after the statement of facts and the plea in mitigation, Estcourt J imposed a global sentence of 15 months' imprisonment, 12 months of which was ordered to be served concurrently with a sentence of 5½ years the respondent was serving for an armed robbery which post-dated this offending. His Honour did not stipulate a non-parole period. The non-parole period on the sentence being served at the time was 2 years 9 months.
The Director of Public Prosecutions appeals on the single ground that the sentence is manifestly inadequate in the circumstances of the case.
That conclusion relies upon the proposition that making 12 months of the sentence concurrent with the earlier sentence, amounted to an error in the application of the totality principle. The head sentence itself was accepted as an appropriate one.
On the hearing of the appeal the Court determined that no error was established, and the appeal was dismissed. The respondent was not called upon. My reasons for joining in that order follow.
The appeal
The principles applicable in appeals alleging manifest inadequacy (or excess) are settled. An appellate court sits to correct material error: Dinsdale v The Queen [2000] HCA 54, 202 CLR 321, per Kirby J at [57]–[60]. In House v The King (1936) 55 CLR 499 at 505, the court identified two categories of error: specific errors of principle, and cases in which there has been some misapplication of principle "even though where and how is not apparent from the statement of reasons": Wong v The Queen [2001] HCA 64, 207 CLR 584 at [58]. This appeal engages the considerations relevant to the second category: a conclusion that a sentence is manifestly inadequate does not depend upon the identification of specific error: Dinsdale v The Queen at [6].
The appellant's right of appeal derives from s 401(2)(c) of the Code. Of Crown appeals Spigelman CJ said in R v Baker [2000] NSWCCA 85 at [19]:
"The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred".
If error is demonstrated, an appellant must persuade the court that its residual discretion not to interfere should not be exercised: CMB v Attorney-General(NSW) [2015] HCA 9, 256 CLR 346, per French CJ and Gageler J at [34] and Kiefel J (as she then was), Bell and Keane JJ at [66
In the exercise of the residual discretion the purpose of Crown appeals is the prevailing consideration. That purpose is to lay down principles for the governance and guidance of courts in sentencing convicted persons: Griffiths v The Queen (1977) 137 CLR 293 at 310 per Barwick CJ. Whilst the reference to principles is to be understood as encompassing the avoidance of manifest inadequacy or inconsistency in sentencing standards: Everett v The Queen (1994) 181 CLR 295 at 300, it is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges: Green v The Queen [2011] HCA 49, 244 CLR 462 at 477. "That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases": Green (above) per French CJ, Crennan and Kiefel JJ, at 1.
That object can be achieved by the judicial pronouncements and statements of principle in a judgment, even if the Crown fails to persuade the Court that it should not exercise its discretion not to interfere: R v Miller [2019] ACTCA 25.
The facts
The facts were these:
(1)At the time of the offending the respondent was aged 18. The assault was committed in the company of another person.
(2)The complainant was a baker. He started work in the early hours of the morning. He called to see a friend on the way to work. He went there on his motorbike. He arrived at 1am. He parked in the driveway. He stayed there for about 40 minutes.
(3)When he left he walked to his motorbike, which he started, and he prepared himself to ride off. He put on his helmet and motorbike gloves.
(4)He observed a person walking on the driveway towards him. That person was wearing a balaclava and dark clothing.
(5)He got onto his motorbike at which point he noticed a second person walking along the driveway.
(6)The first person he had seen, grabbed the handle bars of the motorbike and the front hand brake, stopping the motorbike rolling backwards. The other man grabbed the complainant and pulled him backwards causing him to fall. The bike fell on the complainant.
(7)Both men then assaulted the complainant whilst he was on the ground. The respondent was holding an implement. It was used to hit the complainant ten to fifteen times to the back of his head and to his ribs. He had his helmet on at the time. The assault was accompanied by threatening comments.
(8)At some point, whilst the respondent and the other male were standing back, the complainant ran away. He called police.
(9)His bike was stolen. One of the attackers drove it away.
(10)An ambulance was called and the complainant was taken to hospital. He was suffering pain to his right shoulder, and neck. An x-ray showed a fracture to his right scapular which was managed with a sling.
(11)The bike was swabbed for DNA. Thereafter the respondent was interviewed. He denied involvement in the incident. He admitted that he knew the complainant. He could offer no reasonable explanation for the presence of his DNA on the bike.
At the time he was sentenced, the respondent was serving a sentence of 5½ years' imprisonment. The sentencing judge was told that the respondent found prison difficult, because he had been targeted by groups within the prison. He was housed in protective custody, in maximum security. This had endured "for quite some time". His mental health was said to have deteriorated, and he suffered auditory hallucinations and paranoia. He had been diagnosed with situation depression and anxiety. He exhibited suicidal ideation, was medicated, and receiving ongoing treatment. The plea in mitigation emphasised the respondent's personal circumstances, drug abuse, his estrangement from his family and his general indebtedness as a result of his drug use. The offences were committed to pay off that debt. It was put to the Court that premeditation was minimal; that the offending was opportunistic and not targeted. It was described as unsophisticated, that characteristic exhibited by the fact that the respondent left his cap at the scene and did not wear gloves whilst riding the motorbike.
The respondent's co-offender was never identified. As a result, parity of sentence with another sentence did not arise as a sentencing consideration.
Sentencing considerations
The appellant points to the following matters as relevant considerations in sentencing:
(1)The severity of the attack.
(2)The fact that the respondent was in company.
(3)The use of a weapon.
(4)The infliction of actual injury.
(5)The respondent's use of a disguise.
It was submitted on the sentencing hearing that the episode was a terrifying experience for the complainant, a proposition which was borne out in a victim impact statement. He suffered loss of employment as a result of the incident, "flashbacks" and was reluctant to leave his home.
These matters were relevant to the objective seriousness of the offending: Veen v The Queen (No 2) (1988) 164 CLR 465.
In sentencing the respondent, the learned sentencing judge said:
"The defendant, Jesse Fletcher-Jones, has pleaded guilty to one count of assault and one count of motor vehicle stealing. On 26 July 2017, the complainant Jaiden Harris, was leaving 200 Lenah Valley Road, Lenah Valley where he had been visiting, before going to his work as a baker. He had started his motorcycle and was standing next to it while he put his helmet on and his motorcycle gloves. He noticed a person of slim build and wearing dark clothing walking down the driveway wearing a balaclava. He got onto his motorbike, but at that time he noticed a second person walking up the driveway also wearing a balaclava. The person he first noticed walking down the driveway grabbed the handlebars of the motorbike and the front break, and the other person grabbed the complainant and pulled him backwards causing him to fall. The motorbike fell on top of the complainant. Both persons then assaulted the complainant whilst he was on the ground. The complainant rolled himself into a ball and felt a number of hits from an item, and some kicks. He saw an implement in the hands of one of them, the complainant recalls being hit ten to fifteen times to the back of his head and to his ribs. He was still wearing his bike helmet at the time. At some point the complainant found the opportunity to run away down the road. He ran towards John Turnbull Park where he used his mobile phone to call police. Police attended and an ambulance was called and he was taken to hospital. As he was waiting at the John Turnbull Park for police to arrive he saw his motorcycle being driven away. At the hospital an x-ray was taken which showed a fracture to the complainant's right shoulder-blade. He was treated with a sling.
Police conducted a crime scene examination at 200 Lenah Valley Road, and a dumbbell handle found on the roadway in front of the address and a blue baseball cap located further along the road returned DNA matches to the defendant. Some days after the incident the complainant's motorcycle was located at Gant Street in New Town. There was some damage to it including a bent gear lever, scratched fairings, broken front indicator and worn front and rear sprockets. Swabbing was conducted and a high grade DNA match to the defendant was returned.
The defendant was interviewed in January 2018 but denied any involvement in the incident. He was later charged. The Crown asserts that the defendant was one of the males who attended 200 Lenah Valley Road and participated in the assault, and that each male was criminally responsible for the injury caused to the complainant and the ultimate stealing of the motorbike. All that is true and is accepted by the plea of guilty that has now been entered.
I have seen the victim impact statement by Mr Harris, and as I have said, he suffered a fractured shoulder-blade, he lost his transport as a result of the theft of the motorcycle and, as a result of his injury he lost his employment as a baker. He suffers from flash-backs and is reluctant to leave his home.
The defendant is serving a sentence of 5½ years' imprisonment for armed robbery, and is not eligible for parole until 24 June 2020. He has numerous other prior convictions for offences of dishonesty but no prior convictions of violence as an adult. The sentencing principles that need to be balanced in this case are general deterrence and the vindication of the victim, with the defendant's youth and the totality of any prison sentences added together against the background of his present incarceration.
He was 18 years of age at the time. His parents separated when he was 16 and he was devastated by the breakdown. At 17 he was introduced to the drug Ice, and things deteriorated for him from there. He lost the support of his family, he increased his use of Ice and began to associate with older, more experienced poor company who were also heavy users of the drug Ice. He incurred a drug debt and the present offending can be attributed to that fact. He has now rekindled his relationship with his family, and will live with his father on his release from prison at Campbell Town. He is finding prison particularly difficult, he is in protective custody, has had suicidal ideation and is medicated. He has pleaded guilty and is entitled to a genuine discount on an otherwise appropriate sentence for that fact. His earliest release date at the moment is December 2022. As I have said, his earliest parole date is 24 June 2020. I need to avoid a crushing sentence when adding any sentence today to the sentence he is presently serving.
The Crown seeks a compensation order in favour of Jaiden Harris, and I note the application, make the order and adjourn the application to a date to be fixed for damages to be assessed.
The defendant is convicted of both counts and is sentenced to 15 months' imprisonment, 12 months of which is to be served concurrently with the sentence he is currently serving. The nett effect of my sentence is to add three months to his existing sentence. I make no provision for parole."
It is the extent of the concurrent operation of the sentence alongside the sentence imposed for the armed robbery that is the gravamen of the appellant's complaint.
The concurrency is the result of the application of the totality principle. The totality principle requires that where an offender is sentenced for a number of separate offences, the judge must ensure that the total effective sentence does not exceed that which is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 per McHugh J at 307-308; Gummow J at 321 and Kirby J at 340.
In Mill v The Queen (1988) 166 CLR 59 at 63, the High Court described the principle by quoting from D A Thomas, Principles of Sentencing, 2nd ed (1979) at pages 56–57 as follows:
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
In Mill, (above) McHugh J described the principle as one requiring the sentencing judge to ensure that the aggregation of the sentences appropriate for each offence, results in a just and appropriate measure of the total criminality involved. The effect of the principle is to require courts to adjust sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences: Postiglione at 308. In R v Holder (1983) 3 NSWLR 245 at 260, Street CJ described the principle thus:
"The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. …"
In this State it has been the subject of consideration in many cases: Devine v The Queen [2003] TASSC 52; Director of Public Prosecutions v Farmer [2005] TASSC 15, 13 Tas R 418; Hall v The State of Tasmania [2015] TASCCA 6.
The appellant contends that the respondent was not entitled to any significant reduction in the effective sentence by application of that principle. Whilst it concedes that the respondent was a youthful offender, it contends that the commission of these crimes so soon after the imposition of a suspended detention order imposed on 25 May 2017, evidences a continuing attitude of disobedience to the law: Veen (above) at 477. It also points to prior convictions which, though not for offences involving violence, meant the respondent was not entitled to the mitigation of coming before the Court for the first time. It argues that the only justification for a reduction in the sentence was to ensure that the overall sentence was not crushing. It contends that the extant sentence of imprisonment of five and a half years, imposed for the aggravated armed robbery was "imposed for a quite separate and different act of criminality that was separated in time by one month from the act of assault and stealing". As discrete and independent criminal acts cumulation of sentence was necessary for the "adequate recognition of the … criminality" and the separate victims of each crime: Hall (above) at [49].
The fact that the offending was separated in time did not render the principle inapplicable. Indeed, in Mill (above), the court was concerned with a situation where two armed robberies had been committed in Victoria and one in Queensland over a period of about six weeks. Whilst the offending in Mill was of the same type, the separation in time was not considered to be a disqualifying matter. Similarly, the proposition that discrete and independent criminal acts necessitate recognition of the separate victims of each crime, does not make the principle inapplicable: Director of Public Prosecutions v Marino [2011] VSCA 133 at [53]:
"It is understandable that, in relation to death and serious injury involving multiple victims, ordinarily, some cumulation is required in respect of the offences relating to each victim. The cases, however, are not authority for the proposition that, where the offending results in any injury to more than one victim, a sentencing judge must provide for some cumulation in respect of the offences relating to each victim. Cumulation may well be appropriate in many such cases. However, as I have already stated, cumulation must be applied in the light of the principle of totality." [My emphasis.]
The question is simply whether concurrency to the extent ordered resulted in a sentence which was so inadequate as to exhibit error. The appellant's case is that cumulation of the sentence for a much longer period was required to satisfy the relevant sentencing considerations: the objective seriousness of the offending, the need for general and personal deterrence, vindication of the victim and so on. The State's submission is no more than that in its operation the sentence is too light.
It has been held that a determination of the extent to which a sentence is to be served cumulatively, if at all, with another sentence is an exercise of discretion upon which minds might differ, though the discretion is circumscribed by a proper application of the principle of totality: R v Hammoud [2000] NSWCCA 540, 118 A Crim R 66; Pannowitz vThe Queen [2016] NSWCCA 13 at [40]; Majzoub v The Queen [2019] NSWCCA 94 at 20.
In Nguyen v The Queen [2016] HCA 17, 256 CLR 656 at [64], Gageler, Nettle and Gordon JJ said:
"Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong."
In Mill (above) the High Court proposed an approach which involves asking what is likely to have been the effective sentence imposed if the applicant had committed the offences at the one time. This is a useful approach to the appellant's contentions in this appeal. That is so, even though as McHugh J said in AB v The Queen [1999] HCA 46, 198 CLR 111, 120 at [13] exactness is not possible because of the inherently multi-faceted nature of the sentencing activity.
The task is a quintessentially discretionary one, constrained by principle, but susceptible in its operation and application to differences of result.
The general nature of the second category of error referred to in House (above) does not avoid the obligation to identify an error of principle. So much is clear from cases like Hili v The Queen [2010] HCA 45, 242 CLR 520. The State has not established that the sentence exhibits some misapplication of principle, or evidences a gross departure from an applicable sentencing standard: Griffiths v The Queen (1977) 137 CLR 293 at 310 per Barwick CJ.
A sentence of 5 years 9 months, having regard to the age of the offender, is a sentence falling within the bounds of the sentencing discretion.
In my view the sentencing judge has arrived at a sentence which is a "just and appropriate measure of the total criminality involved": Postiglione (above). His Honour approached the matter wholly in accordance with principle, and no error is demonstrated. There is thus no need to consider the residual discretion not to interfere.
File No CCA 1208/2019
DIRECTOR OF PUBLIC PROSECUTIONS
v JESSE LEIGH FLETCHER-JONES
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARTIN AJ
12 November 2019
I agreed that the appeal by the Crown should be dismissed, and I agree with the reasons of Pearce J.
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