Director of Public Prosecutions v Greely - [2019] TASCCA 10

[2019] TASCCA 10

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

CITATION: Director of Public Prosecutions v Greely [2019] TASCCA 10

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  GREELEY, Andrew Nathan

FILE NO:  8908/2019
DELIVERED ON:  6 June 2019
DELIVERED AT:  Hobart
HEARING DATE:  6 June 2019
JUDGMENT OF:  Estcourt J, Geason J, Marshall AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Pleaded guilty to one count of causing grievous bodily harm – Sentence of 12 months' imprisonment with 10 months suspended and 210 hours of community service manifestly inadequate.
Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, referred to.
Director of Public Prosecutions v Harington [2017] TASCCA 4, referred to.
R v Allen [1999] TASSC 112, referred to.
Barron v Tasmania [2010] TASCCA 3, referred to.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  A Shand
             Respondent:  P Monk
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2019] TASCCA 10
Number of paragraphs: 41

Serial No 10/2019
File No CCA 8908/2019

DIRECTOR OF PUBLIC PROSECUTIONS v ANDREW NATHAN GREELEY

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
GEASON J (Dissenting)
MARSHALL AJ
6 June 2019

Orders of the Court:

Appeal allowed.
Sentencing order of 3 April 2019 quashed and a term of 2 years' imprisonment with the last 12 months of that sentence suspended substituted.

File No CCA 8908/2019

DRIECTOR OF PUBLIC PROSECUTIONS v ANDREW NATHAN GREELY

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  ESTCOURT J
  6 June 2019

The appeal

The respondent, Andrew Nathan Greeley, pleaded guilty to a charge of causing grievous bodily harm contrary to the Criminal Code, s 172. On a night in November 2016 he became angry with another man and punched him to the face a number of times, breaking his jaw in two places.
Blow CJ sentenced him to 12 months' imprisonment with 10 months of that sentence suspended on conditions that he (a) not commit any offence punishable by imprisonment for a period of two years; and (b) perform 210 hours of community service within a period of 18 months.
The Director of Public Prosecutions appealed against that sentence on the sole ground that it is manifestly inadequate, and that appeal was upheld after the hearing of the appeal on 6 June 2019. The following are my reasons for joining in the order upholding the appeal.
In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, Pearce J set out 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 his comments on passing sentence the learned sentencing judge set out the circumstances of the appellant's offending as follows:
"Mr Greeley is 30 years old. He earns his living as a musician and promoter. He is highly regarded in the music industry in Tasmania and other States. In particular, he has been involved in promoting local Tasmanian Hip Hop performers. Over the years he has encountered a lot of reluctance on the part of managers of live music venues who have been concerned about vandalism by some of the audience members who attend Hip Hop shows. As a consequence, he has come to feel very strongly about that sort of vandalism.
On the night in question he had been drinking, apparently to excess, at the Republic Bar in North Hobart. Shortly after 1am a mutual friend introduced him to the complainant in this case, who was visiting from Victoria. While they were talking on the footpath outside the hotel, the complainant took a marker pen from his pocket, walked away from the other people, and wrote 'Form 1 Planet' on a brick on the exterior wall of the Republic Bar. This angered Mr Greeley. He argued with the complainant and punched him to the face. Others intervened, but Mr Greeley continued to argue. He punched the complainant a few more times. At some stage they shook hands, but Mr Greeley continued to remonstrate with the complainant and punched him at least two more times to the left side of his face. The complainant was taken away in a taxi."

The complainant's injury

The learned sentencing judge described the complainant's injuries and their sequelae as follows:
"He sought medical attention at the Royal Hobart Hospital a few days later. Investigations revealed that his jaw was broken in two places, and that he had developed a rare and life-threatening form of infection known as Ludwig's angina. He was admitted to the hospital and spent 18 days there. The fractures were repaired using a metal plate and screws. The infection site was drained in the same surgical procedure. He spent about a fortnight in an induced coma during which further surgical procedures were performed. He discharged himself against medical advice three days after regaining consciousness. I was told that at that time he refused to take antibiotics, and expressed a preference for self-medicating using cannabis oil.
His decision to refuse antibiotics appears to have been an unwise one. In May of the following year he presented at the Royal Melbourne Hospital with an infection in the area of the metal plate. He underwent emergency surgery to remove that plate and two teeth. He provided a victim impact statement describing the physical and psychological consequences of his injury and the associated infections. He lost a lot of weight and strength as a result of the weeks he spent in hospital. He has ongoing psychological problems, particularly anxiety and nightmares. His earning capacity was affected by his medical problems. His mother flew from Cairns to Hobart to be with him for the duration of his original hospitalisation. He has moved to Cairns to be with his family, and feels he has been a burden to them."
The complainant's own decisions as to his medical treatment appear to have contributed to medical complications, and some were unforeseen, but it is clear that the initial injury was a serious one requiring hospitalisation, surgery and the insertion of a metal plate and screws.

The sentence

The learned sentencing judge made the following remarks on passing sentence:
"Mr Greeley has three prior convictions for assault.  In December 2011 he incorrectly accused another man of pushing into a queue in a bakery, and later assaulted that man by pushing him in the back, which caused him to stumble, punching him, which caused him to fall to the ground, and punching him three more times before he got up.  A magistrate fined him $750 as a global penalty for that assault and some firearms offences.
In July 2012, seven months after the first assault, Mr Greeley encountered a man whom he apparently did not like when they were walking in opposite directions along a Hobart street at about 3am on a Sunday.  He attacked the other man without provocation, punching him to the face a number of times, knocking him down, punching him a number of times to the head and body before he got up, and kneeing him to the head a number of times. He began to walk away, but returned and assaulted the same man again, punching him to the face another two or three times.  That man did not fight back at all.  For those two assaults, a magistrate imposed a wholly suspended sentence of two months' imprisonment.  Mr Greeley did not re-offend until the occasion that I am concerned with.
However there is a very strong positive side to Mr Greeley's character.  I was told that he lived on the streets and couch surfed from the age of 15, having decided to get away from family violence.  He was using speed and ecstasy from the age of 16. However he changed his life for the better.  He obtained stable accommodation, and obtained work as a Hip Hop performer and a rapper. He has been doing that sort of work for 15 years.  For the last 10 years he has been performing all around Australia.  He has his own record label.  He publishes his own music and that of other artists.  He has tens of thousands of subscribers to his Facebook and YouTube pages.
Mr Greeley's counsel provided me with several extremely impressive character references.  In one of them, a youth worker from Western Australia stated that Mr Greeley has worked on many projects in that State, volunteering his time to speak with disengaged youth in relation to issues that include suicide prevention, the reduction of recidivism, and at-risk high school programs. In another, a youth support worker from South Australia stated that over approximately 10 years he had seen Mr Greeley facilitate workshops and events that provided disengaged youth with opportunities to become engaged in positive community events and programs that assisted in helping them reach their full potential.  In another, a youth counsellor from the Geelong area wrote of Mr Greeley being a great support to the often disadvantaged young people who attend and perform at music shows by presenting opportunities and a genuine care.  He said he had observed him on several occasions defuse conflict and potentially violent altercations, doing so in a respectful and well-ordered manner.  A youth worker from Hobart stated that Mr Greeley has played an important role in providing many young people with a positive outlet for them to direct their energies, and stopped many from following a different, more troubled path. That referee also mentioned Mr Greeley raising awareness regarding Tasmanian suicide rates, and lobbying for greater attention and resources for suicide prevention.  He said that Mr Greeley regularly communicates the dangers of hard drug use through his music, and that that has had a positive influence on many young people.  The licensee of a Hobart hotel provided a reference in which he spoke of Mr Greeley "helping the youth through their daily struggles" and of his involvement in raising awareness and reducing youth suicide.
On the day after the night in question, Mr Greeley contacted the mutual friend who had introduced him to the complainant, and asked whether the complainant was all right.  He was told that the complainant was all right. At that stage no one knew that the man's jaw was broken.  Mr Greeley heard no more about the complainant until about a month later, when he was contacted by the police.  He co-operated with them, took part in an interview, and admitted repeatedly punching the complainant.  He said that he had been stupid and that he regretted it.  He has pleaded guilty.  It was indicated long ago that there should be no need for the complainant to give evidence. It is clear that Mr Greeley is very remorseful and very embarrassed.
By pleading guilty, Mr Greeley has acknowledged that he foresaw that punching the complainant could well result in really serious injury.  That is consistent with the fact that he punched the man so hard that his jaw broke in two places.  The infection that developed in the days following the punching was an unintended and unforeseen result of the crime that Mr Greeley committed.  The same can be said of the infection that necessitated surgery in May 2017, but that infection may additionally be attributable to the victim's refusal to take antibiotics and poor dental hygiene.  The consequences of a crime are always relevant in sentencing, but they carry less weight when they are unintended and unforeseen, or largely the result of other causative factors.
Because of Mr Greeley's prior convictions and the seriousness of the injury that he inflicted, I think that the only appropriate course is to send him to prison. However, because of the enormous contribution that he has been making for the benefit of disengaged young people in several States, I will suspend most of his sentence and instead require him to perform a substantial amount of community service.
Andrew Nathan Greeley, I convict you and sentence you to 12 months' imprisonment with effect from 22 March 2019.  I suspend 10 months of that sentence on conditions that (a) you are not to commit any offence punishable by imprisonment for a period of two years from today; and (b) you are to perform 210 hours of community service within the next 18 months."

Discussion

There is no tariff for the crime of causing grievous bodily harm contrary to s172 of the Code. In Barron v Tasmania [2010] TASCCA 3 Wood J, with whom Blow and Porter JJ agreed, said at [27]-[29]:
"27      In this appeal there has been reliance on comparative sentences by both counsel to support their contentions that in the case of the Crown, the sentence is within the range of penalties established by those comparable cases, or, in the case of the defence, is excessive, given the circumstances of this case, and outside the sentencing range. As will be seen in the analysis below, the submissions have focused on a few sentences imposed in Tasmania with reference to comments on passing sentence for crimes committed contrary to the Code, s 172, and also some decisions of this Court reviewing sentences for this crime.
28        The submissions for the appellant focus on the notion of the current sentencing range and require the range to be identified and then considered in light of the sentence in this case. Essentially, the submission is that, as a fact, all sentences for the crime of s 172 have been lower than five years, and that any sentences approaching the five year mark are more serious than this case. The submission on behalf of the appellant that his sentence exceeded the sentencing range involves two propositions. The first proposition is the simple assertion of fact that the sentence in this case falls outside the sentencing range because it is the longest sentence imposed by the Supreme Court of Tasmania. The second proposition is that the sentence is outside the sentencing range because it is disproportionately high, compared to other sentences imposed in other comparable cases.
29        This method of analysis, and a comparison between the appellant's sentence and a few sentences at the top of the range of sentences imposed in the past, tends to create an impression that an upper limit has been set that cannot be exceeded unless justification for a longer sentence is established. This method involving the notion of an upper limit or ceiling may be appropriate in cases where there is a well-established pattern arising from a significant number of sentences imposed for the same kind of conduct over a long time. However, that is not the case here. This is a crime that captures a diverse range of conduct and there is not a substantial number of sentences that fall at the upper end of the range."
Although heavier sentences have been imposed in respect of crimes against s 170 of the Code cases such as Jay v Tasmania [2016] TASCCA 12, and Price v Tasmania [2016] TASCCA 22 (in which sentences were imposed, respectively, of seven years' imprisonment with a non-parole period of five and a half years, and ten years' imprisonment with a non-parole period of six years were upheld), there is a generally accepted range of sentences of three to seven years for s 170 offences, where the mental element is an intention to cause some kind of serious bodily harm (R v Allen [1999] TASSC 112, per Cox CJ at par [2]). The crime of causing grievous bodily harm contrary to s 172 of the Code on the other hand, requires a mental element involving either an intent to cause grievous bodily harm or subjective recklessness, see (R v Bennett [1990] Tas R 72). Thus there can be overlapping between the two crimes, and some cases of crimes against s 172 can be as serious as, or more so than, those against s 170.

As was said in R v Allen (above) by Wright J at [14]:
"Ever since Dowie v R [1989] Tas R 167, I have maintained that whilst a sentencing judge should strive to achieve consistency in sentencing, this is not a process which involves the close comparison of one case with another to ensure that the new sentence being contemplated coincides closely with that passed on an earlier occasion by another judge. The facts and circumstances of one crime are rarely, if ever, identical to those of another. The injuries sustained by the victim of one crime of violence are usually very different from those sustained by another. The relationships between the victim and the offender are frequently different. The antecedents of the offenders are always different. I find that whilst the definition of a broad sentencing range will often be useful, any attempt to distil a tariff for a particular crime or a particular type of offender is usually illusory."
However as Wood J said in Barron (above) at [31]:
"Those observations [of Wright J] have force in the context of the crime contrary to s 172. Comparable sentences imposed for this crime are useful as setting a broad sentencing range. With these observations in mind, I turn now to consider the information that is available regarding sentences imposed in this State for the crime of causing grievous bodily harm."
In Barron Wood J then observed at [32]-[34]:
"32      In relation to sentences imposed for the offence of causing grievous bodily harm or wounding for the period 1978 – 2000, Professor Warner in her text Sentencing in Tasmania, 2nd ed, Federation Press 2002, notes at par 11.305:
'The data for 1990 – 2000 collated wounding and grievous bodily harm separately. Predictably, this shows that grievous bodily harm tends to attract more severe sentences than wounding. So sentences of 2 – 3 years were in the top of the range for wounding and 3 – 5 years for grievous bodily harm.'
33        Professor Warner noted that 'home invasions' involving the infliction of serious injuries have attracted sentences in the three year range, and so have serious cases of unprovoked street violence causing grievous bodily harm.
34        Table 6 in par 11.306 shows that from 1990 – 2000, of 33 sentences imposed for a single count of grievous bodily harm, six sentences of four years and above were imposed. Of 97 sentences imposed for a single count of wounding or grievous bodily harm, 14 sentences of four years and above were imposed. It is to be borne in mind that a number of the sentences in the table attracted a discount for an early plea of guilty (the point was made by Evans J in Mabb v Tasmania [2008] TASSC 22 at par 7)."
Professor Warner's data is now some 19 years old and, in my experience and observation, sentences for crime against s 172 have trended upwards and not downwards. I have considered other sentences which tend to bear out my apprehension: Wilkinson (27 August 2008) (four years and three months), Clay (13 October 2009) (five years), Barron (above) (five years), and Cordwell v Tasmania [2017] TASCCA 14 (six years where the assailant who inflicted the grievous bodily harm must either have intended that result or foreseen it as likely). Nonetheless, as Wood J said in Barron, it remains that this is a crime that captures a diverse range of conduct, and there are not many sentences that fall at the upper end of the range. The table of sentences attached to the appellant's written submissions tends to confirm this.
I accept that the learned sentencing judge was entitled to take account of the contribution that the respondent had been making for the benefit of disengaged young people in several States, and that he had pleaded guilty and was embarrassed and remorseful. However the respondent had a poor record of prior convictions for violence, including three assaults, two of which occurred on the one occasion in July 2012 and for which a wholly suspended sentence of two months' imprisonment was imposed.
The complainant suffered a serious injury, quite apart from the sequelae for which he was himself responsible and, in my view, although the learned sentencing judge's wide discretion must be recognised (Lowndes v The Queen [1999] HCA 29, 195 CLR 665 at [15]; Wong v The Queen [2001] HCA 64, 207 CLR 584 at [77]), a lengthy prison sentence was called for, notwithstanding that the respondent was sentenced on the basis of reckless and not intentional conduct.
The respondent's good deeds are admirable but, to my mind, they did not justify a head sentence as short as 12 months, nor the suspension of 10 months of it. The imposition of a condition requiring the performance of, in effect, 30 days of community service did not, in my view, render the sentence an adequate one. The sentence needed to properly reflect the nature of the criminal conduct which involved a sustained series of punches that continued even after others had intervened and then again after the two had shaken hands. Denunciation and deterrence, in particular, personal deterrence, were prominent sentencing considerations.

Disposition

In my opinion error is apparent and the sentence was manifestly inadequate. The appellant has established appealable error in the exercise of the learned sentencing judge's sentencing discretion, notwithstanding that the respondent was released from prison on 21 May 2019 having served the operative part of the sentence imposed by the learned sentencing judge. I am unable to see any reason why this Court's residual discretion not to interfere should be exercised.
For the foregoing reasons I joined in the making of the order allowing the appeal.

Resentencing

I also joined in the order quashing the sentencing order of 3 April 2019, and imposing a term of 2 years' imprisonment backdated to 6 April 2019 (to take account of the time the respondent had been at liberty since 21 May 2019), with the last 12 months of that sentence suspended on condition that the respondent commit no offence punishable by imprisonment for a period of 2 years after his release from prison and with parole eligibility after serving six months of the operative period of imprisonment from 6 April 2019.

File No CCA 898/2019

DIRECTOR OF PUBLIC PROSECUTIONS v ANDREW NATHAN GREELEY

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

GEASON J (Dissenting)
6 June 2019

The facts which give rise to this appeal are set out in the reasons for judgment of Estcourt J.
I set out my reasons for not joining in the order upholding this 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]. A conclusion that a sentence is manifestly inadequate does not depend upon the identification of specific error: Dinsdale v The Queen at [6]. 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.
If error is shown, the appellant is required to persuade the court that its residual discretion not to interfere with a sentence should not be exercised: Director of Public Prosecutions v Harington [2017] TASCCA 4 at [96] per Pearce J.
The appellant's arguments focus on sentences imposed in other cases for this type of offending. Upon the basis of sentences imposed in other cases it is submitted that the sentence imposed in this case reveals error.
In imposing sentence, the learned sentencing judge, having acknowledged the seriousness of the offending, including the unprovoked nature of the attack, noted that "there is a very strong positive side to Mr Greeley's character". His Honour noted the defendant's personal history was characterised by homelessness, born of the need to remove himself from family violence. His Honour recorded the defendant's use of speed and ecstasy, but noted that he had "changed his life for the better". His Honour recorded that the defendant had obtained stable accommodation, obtained work, and had worked on many projects in Western Australia, volunteering his time to speak with disengaged youth.
The respondent had prior convictions for crimes of violence, including three assaults. While criminal history is relevant to the determination of the sentence to be imposed, it cannot lead to the imposition of a penalty which is disproportionate to the gravity of the matter before the court: Veen (No 2) (1987) 164 CLR 465 at 477. The High Court observed in Veen, that antecedent criminal history is relevant to the matter of whether the offence before the Court is an uncharacteristic aberration, or evidence of a continued attitude of disobedience.
In my view, the length of time which had elapsed since that prior offending, coupled with the positive contribution made by the respondent in the community work he had undertaken, qualified the relevance of the prior offending to the extent that this offence could not fairly be characterised as evidence of continued disobedience of the law. I consider that it was open to the learned sentencing judge to regard it as an aberrant departure from the positive behavioural standards the respondent had exhibited over a period of relevant duration, prior to its occurrence.
The positive character references before the Court further reinforced that proposition, and justified the learned sentencing judge affording weight to the "enormous contribution that he has been making for the benefit of disengaged young people in several States".
It cannot be doubted that the length a sentence may of itself disclose an error in the application of principle, where there is “gross departure” from what experience establishes “as the norm”; Griffiths v The Queen (1977) 137 CLR 293 at 310 per Barwick CJ. This is not such a case. The review of the sentence must be considered in the context of relevant sentencing principles. As to those I referred to two High Court decisions, in MAC v State of Tasmania [2018] TASCCA 19 at [12]-[13]:
"[12] Ultimately it is a matter which requires advertence to the particulars of the case, which includes the circumstances of the offending, the need to vindicate the victim, to punish the offender and deter others. It is not detached from the circumstances of the offender: Elias v The Queen [2013] HCA 31, 248 CLR 483. In that case French CJ, Hayne, Kiefel, Bell and Keane JJ said 'the administration of the criminal law involves individualised justice'. And again in Dalgliesh (above) at [49]: 'the imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case'." (my emphasis)
This amounts to requiring a sentencing court to mould a sentence to the particular circumstances of the offending and the offender “in that case”. Thus in appropriate cases a sentencing court is entitled to give greater weight to rehabilitation than to principles of personal and general deterrence; see for example R v Dowie [1989] Tas R 167. Proceeding on the basis of achieving numerical equivalency with other sentences imposed for the same offence, or in accordance with a generalised tariff, amounts to ignoring this principle.
It is for this reason that caution is expressed with respect to the relevance and application of comparable sentences in appeals against sentence. Sentences themselves are not binding precedents; Wong v The Queen (2001) 207 CLR 584 at 605 [57] per Gaudron, Gummow, and Hayne JJ. Hili v The Queen [2010] HCA 45, 242 CLR 520 makes it clear that the history of comparable sentences does not establish that a particular range is correct and nor does it establish that upper or lower limits to the range are the correct upper or lower limits. That is an injunction to appellants to focus upon the question of whether there has been a correct application of sentencing principles in arriving at sentence. It is those principles which affect how the sentencing discretion should be exercised; Wong (above) at 605, [57].
It is not therefore to the point that the sentence imposed in this case was at the lower end of the range according to the sentencing tables produced; the sentencing range is merely "a yardstick"; It will "illustrate (although not define) the possible range of sentences available": R v Pham [2015] HCA 39, 256 CLR 550 at 560 [29]. The appellant is required to show some error in the application of principle. A sentence which is lenient will not, ipso facto, involve some misapplication of principle.
The judgment of Heydon J in Hili (above) at [77]-[78] sets out the relevant principles:
1While sentences must be reasonably consistent, it does not follow that disparities between them may not exist.
2Within the boundaries of reason, it cannot be said that any particular disparate sentence is necessarily wrong merely because it is disparate.
3Even within a single jurisdiction, one court, while bound by whatever the High Court or the intermediate appellate court for that jurisdiction has held to be the correct legal principles (statutory or common law), may arrive at sentencing results in particular cases which are different from those reached by earlier courts in that jurisdiction without being open to appellate reversal or criticism for "error" merely because of those differences.
4Two courts may arrive at different sentences because the later court considers the first to have erred, not in relation to the identification of legal principle, but in relation to factual reasoning or in relation to the exercise of discretionary judgment.
5It is open to a later court (whether an intermediate appellate court or a trial court) to depart from the sentencing conclusion of an earlier intermediate appellate court or trial court even though the circumstances seem indistinguishable.
6It is open for the later court to do this simply because the later court thinks that the earlier court erred in fact.
7It is also open for the later court to do this merely because it thinks the earlier court erred in the exercise of discretionary judgment, arriving at a sentence which the later court, accepting the correctness of the legal principles stated, the facts found and the considerations taken or not taken into account by the earlier court, considers nonetheless to be too high or too low.
8The later court's liberty to differ from the sentencing conclusion reached by the earlier court does not exist only where it thinks the earlier court to be plainly wrong. It exists where the later court thinks the earlier court's conclusion to be merely wrong and even where the later court does not think the earlier court's conclusion to be "wrong", but just disagrees with it.
The appellant's submission ignores these principles, and compromises those articulated in Veen (above), and Dalgliesh (above). The profusion of appeals against sentence, (not just Crown appeals), reflects a failure to apply them.
In R v Osenkowski (1982) 30 SASR 212 at [212]-[213], (referred to by Evans J in Attorney-General for Tasmania v McDonald [2002] TASSC 120 and Blow CJ in Biddle v Applebee [2017] TASSC 7), King CJ said
"it is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judges sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency in that particular stage of the offenders life might lead to reform."
In Postiglione v The Queen (1997) 189 CLR 295 Kirby J said at 336:
"The quest for perfect consistency involves a search for the unattainable. The facts of no two crimes, nor the criminality of any two individual offenders involved in a single crime, will be exactly the same. No two offenders will have precisely the same antecedents and experience of life when they appear for sentence. Inevitably, different judicial officers will respond differently to particular features of the evidence relevant to the offence or the offenders. The independence and individual responsibility of each sentencing judge requires that, subject to appellate supervision, his or her sentence will ordinarily be respected".
The observations in each of these cases are apposite here.
There is no error of principle manifest in the sentence imposed by the learned sentencing judge. Accordingly the sentence should not be disturbed by this Court.

File No CCA 8908/2019

DIRECTOR OF PUBLIC PROSECUTIONS v ANDREW NATHAN GREELEY

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARSHALL AJ
6 June 2019

I agree with the reasons for judgment of Estcourt J.