Director of Public Prosecutions v Harwood (No 2)
[2019] TASCCA 13
•30 August 2019
[2019] TASCCA 13
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Director of Public Prosecutions v Harwood (No 2) [2019] TASCCA 13
PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS
v
HARWOOD, Emilia Olive
FILE NO: 3350/2018
DELIVERED ON: 30 August 2019
DELIVERED AT: Hobart
HEARING DATE: 7 June 2019
JUDGMENT OF: Pearce J, Brett J, Porter AJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or manifestly inadequate – Crown appeal – Causing grievous bodily harm – Respondent involved in argument with a young woman about her age and known to her – Reacted to verbal taunt by hitting complainant in the face with a glass – Complainant lost the sight of one eye and was severely disfigured – Respondent with no significant history of offending– Sentence of 12 months' imprisonment with 9 months suspended on conditions including performance of 80 hours of community service – Sentence held to be manifestly inadequate – Discussion of relevant factors.
Aust Dig Criminal Law [3521]
Criminal Law – Appeal and new trial – Appeal against sentence – Appeals by Crown – Fresh evidence and events occurring after sentence – Respondent served operative period of term of imprisonment and completed community service before appeal heard – Actual stress and anxiety arising from the delay relevant factors to be taken into account on re-sentence.
Criminal Code (Tas), s 402(4A).
Director of Public Prosecutions v Chatters [2011] TASCCA 8, 21 Tas R 26; Director of Public Prosecutions v Karazisis [2010] VSCA 350, 31 VR 634, applied.
Aust Dig Criminal Law [3531]
Criminal Law – Sentence – Nature and circumstances of offender – Mental disorder – Offender with anxiety disorder and depression – Reacted to verbal taunt from complainant by hitting her in the face with a glass causing serious injury – Evidence that anxiety disorder contributed to offending – Mental impairment not the primary causal factor nor the only factor at play – Sentencing judge held that moral culpability reduced as a consequence – Finding reasonably open on the evidence – Weight to be attributed to the reduction in moral culpability a different question.
R v Verdins [2007] VSCA 102, 16 VR 269; and Director of Public Prosecutions v O'Neill [2015] VSCA 325, 47 VR 395, considered.
Aust Dig Criminal Law [3264]
REPRESENTATION:
Counsel:
Appellant: L Mason SC and M Allen
Respondent: K Cuthbertson and C Flockhart
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Butler McIntyre & Butler
Judgment Number: [2019] TASSC 13
Number of paragraphs: 56
Serial No 13/2019
File No 3350/2018
DIRECTOR OF PUBLIC PROSECUTIONS
v EMILIA OLIVE HARWOOD (NO 2)
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
BRETT J
PORTER AJ
30 August 2019
Orders of the Court
Appeal allowed.
Sentence of imprisonment of twelve months with nine months suspended imposed 3 December 2018 set aside.
In substitution for that sentence, the respondent is sentenced to imprisonment for two years and six months from 30 May 2019, the balance of which is suspended for two years from 30 August 2019 on condition that the respondent does not commit another offence punishable by imprisonment during that period.
The respondent must perform 80 hours of community service. It is directed that the community service performed by the respondent pursuant to the order made 3 December 2018 is taken to satisfy this order.
[Note: The 12 month probation order made on 3 December 2018 is not affected by this order.]
Serial No 13/2019
File No 3350/2018
DIRECTOR OF PUBLIC PROSECUTIONS
v EMILIA OLIVE HARWOOD (NO 2)
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
BRETT J
PORTER AJ
30 August 2019
This is a Crown appeal against sentence. The respondent was found guilty by a jury of causing grievous bodily harm contrary to s 172 of the Criminal Code. On 3 December 2018 she was sentenced by Geason J to imprisonment for 12 months, nine months of which was suspended for three years on conditions which included that the respondent perform 80 hours of community service. His Honour also made a probation order for a period of 12 months.
It followed from the verdict that the jury was satisfied beyond reasonable doubt that on 30 September 2017, the respondent caused grievous bodily harm to the complainant by striking her face with a glass. The complainant is a female who, at the time of sentence, was aged 20. A brief summary of the evidence, and issues arising from the evidence relevant to sentence, was set out in a previous decision of this Court, DPP v Harwood [2019] TASCCA 2, as follows:
"[3] The prosecution case was largely reliant on the evidence of the complainant. The crime had been committed on 30 September 2017, which was AFL grand final day. The complainant, the respondent, their respective partners, and several other persons had gathered in a shed in the backyard of the respondent's mother's house to watch the grand final. According to the complainant's evidence, during the course of the function, she became involved in a verbal altercation with the respondent. After a brief verbal exchange, at the suggestion of her partner, the complainant decided to leave the shed in order to extricate herself from the argument. She was almost at the door when the respondent made a further comment to her. The complainant turned around and responded verbally. Her evidence was that the respondent then walked towards her quickly and hit her in the face with her hand. Although the complainant did not see anything in the respondent's hand, the evidence established that the respondent was holding a wine glass when she hit the complainant. The glass broke on impact and caused significant injuries to the complainant's face, including her left eye.
[4] As a result of these injuries, the complainant suffered permanent loss of sight from that eye and suffered other permanent facial disfigurement. The complainant's evidence was that she felt pain in her eye immediately, and reacted by putting her hand to her eye, screaming and dropping to the ground on her knees. She said that the respondent then took hold of her and punched her to the face and head. The clear import of her evidence was that she was punched more than once.
[5] The complainant's partner was already outside the shed when this happened and did not see the initial blow. However, he immediately returned to the shed when he heard a smashing sound. He saw the complainant against the door 'with [the respondent] just punching her directly in the face ... while she had hold of her hair'. The complainant was bleeding from her head and eye.
[6] The respondent did not give or adduce evidence. However, a recorded interview between police and the respondent was admitted into evidence in the prosecution case. In the interview, the respondent agreed that she had hit the complainant with her hand while it contained a wine glass, but claimed that the complainant had attacked her physically by grabbing her hair and slapping her in the face. She asserted that the blow that struck the complainant's face was in self-defence, and suggested that she had not realised that the glass was in her hand when she delivered the blow. She said nothing about continuing to punch the complainant after the first blow. The respondent's partner gave evidence in the prosecution case which supported the version that she had been attacked first by the complainant. Self-defence was left to the jury by the trial judge.
[7] In sentencing submissions, prosecuting counsel submitted that the evidence established that the respondent had deliberately hit the complainant to her face with the wine glass. It was submitted that the respondent's actions in walking the length of the shed demonstrated a degree of premeditation, and that the respondent's purpose was to inflict serious violence upon the complainant. It was submitted that the court should accept that the respondent had continued to attack the complainant by delivering several further punches to her injured face, and that she did so after having realised that the complainant was seriously injured. The prosecutor submitted that the court should reject any claim that the respondent was acting in purported self-defence or that she was remorseful for her actions.
[8] Defence counsel submitted that the court should proceed to sentence on the basis that the respondent's actions 'were reckless rather than intentional'. It was also submitted that the respondent was genuinely remorseful."
One of the grounds of appeal is that the sentence was manifestly inadequate. Subject to the verdict, the trial judge was required to assume the responsibility of making all findings of fact necessary for the proper exercise of his sentencing discretion. On 26 March 2019, after the appeal first came on for hearing, this Court agreed that the "comments on passing sentence do not sufficiently express findings in respect of various material matters relevant to the factual basis of sentencing and the personal circumstances of the respondent": DPP v Harwood at [13]. Only when the factual basis of sentence is properly determined can a judgment be made about whether the sentence is manifestly inadequate. At trial, there was considerable conflict on the evidence, particularly as between the complainant and the respondent, about the circumstances of the crime and other facts relevant to sentence. The issues not resolved by the verdict or the trial judge's findings included:
· whether the complainant attacked the respondent first, and whether the respondent was therefore acting in purported self-defence when she struck the complainant with the glass. The complainant's version was that she had exhibited no physical violence or threat to the respondent prior to being struck, and that she had not provoked the respondent in any other way;
· the respondent's state of mind when she struck the complainant with the glass. The verdict left open two possibilities, that the respondent had intended to cause grievous bodily harm or, alternatively, was subjectively reckless about that consequence. The jury's verdict established that the respondent knew that she had a glass in her hand when she hit the complainant in the face, but was consistent with either state of mind; and
· whether the respondent formed a premeditated intention to inflict violence, or reacted spontaneously, in self-defence, or at least under provocation.
Utilising the power conferred by s 409(1) of the Code, read together with s 39(5) of the Supreme Court Civil Procedure Act 1932, the Court stood over the hearing of the appeal and directed the trial judge to "determine and report to the Court on the factual basis upon which he sentenced the respondent, so as to enable the Court to assess the severity of the respondent's crimes and her degree of culpability". His Honour complied with that direction by publishing amended comments on passing sentence which included the following:
"Tensions simmered between you and the complainant throughout the day. Your boyfriend, and hers, who is your brother, were involved in some exchanges but the uneasiness was principally between the two of you.
Shortly prior to matters escalating, the complainant made to leave the garage, (following her boyfriend). About a metre away from the door she turned back into the room and she called you 'a hypocrite', a remark which upset you and made you angry. You crossed the room towards her. I do not think you had any particular plan in mind when you did that. Your action was driven by anger but your purpose could just as easily have been to shout at her from close range.
I am not satisfied that you planned physical violence, and I do not sentence you on the basis that you crossed the room intending to strike her.
At some point shortly after you got near to her, your anger exploded, and you struck out at her with the hand that was holding the glass, hitting her to the face and causing serious injury to her eye. I find that it was that act that caused the grievous bodily harm for which the jury has found you guilty.
At the time you struck her, the complainant posed no physical threat to you; there is no element of self-defence involved in this act. Yours was an action delivered in anger, a split-second action, inflicted without any thought for what might follow. I accept that you did not intend to cause the complainant grievous bodily harm. I am satisfied that when you struck her in the way you did, you were reckless as to that consequence."
Those findings are not challenged in this appeal. As a result, the parties agree that it is no longer necessary to deal with another original ground of the appeal which complained that the sentencing judge erred by "not making and/or stating his finding of facts". However, his Honour's further findings have resulted in the addition, with leave, of two additional grounds of appeal. There were two other issues in respect of which this Court required the trial judge to provide further findings and reasons, namely:
· whether the respondent continued to strike the complainant after the initial blow which constitutes the crime, and, if so, the extent and nature of any such ongoing violence; and,
· the significance to sentence of psychological evidence relating to the respondent.
The additional grounds challenge the trial judge's findings and reasoning concerning both issues. Both grounds are relevant to determination of the correct factual basis for sentence. Thus, it is necessary to first address those grounds before returning to the remaining ground pressed by the appellant, that the sentence is manifestly inadequate.
Ongoing violence
The finding to which this ground relates was expressed by the trial judge in his supplementary comments:
"I am not satisfied that the verdict of the jury incorporates any finding with respect to the evidence given by the complainant and your brother that you continued to strike the complainant to the face on multiple occasions after that act. The evidence supports a finding that you both fell to the ground, that you had hold of one another's hair and that others attempted, to separate you. Anything felt by the complainant in that short period could as easily be explained by those attempts. The evidence as to this aspect is sufficiently uncertain to preclude a finding as to whether you punched her after the initial striking. Furthermore it is wholly unclear whether you continued to hold the broken glass after you had struck her, and there are no injuries consistent with it being used after the initial striking. Accordingly I am not satisfied beyond reasonable doubt that your conduct extended to the infliction of punches or other violence towards the complainant after the initial strike."
The ground of appeal is expressed as follows:
"The learned trial judge erred in fact and/or in law:
(a) by failing to provide adequate reasons as to why he found the evidence was 'sufficiently uncertain to preclude a finding as to whether (the respondent) punched her after the initial striking'; and
(b) such finding was not reasonably open on all the evidence."
As argued, this ground is inaccurately framed. The issue upon which this Court required a finding was "the existence and extent of any ongoing violence delivered by [the respondent] after the initial blow to the face with the glass". His Honour's determinative finding in relation to this question is clearly expressed in the last sentence of the above paragraph, that is that he was not satisfied beyond reasonable doubt that the respondent's conduct "extended to the infliction of punches or other violence towards the complainant after the initial strike". However, the ground incorrectly attacks a comment which is in fact only a reason for the determinative finding. His Honour's observation that the evidence in relation to that question was "sufficiently uncertain to preclude a finding" as to whether the respondent had punched the complainant after the initial blow, was his assessment of the evidence relevant to the determinative issue and hence part of the reasoning process which provided the basis for his finding on that issue.
However, on the hearing of the appeal, the appellant's argument was effectively confined to the contention that the evidence did not permit the trial judge to reach any conclusion other than one of satisfaction beyond reasonable doubt that the respondent had continued to punch the complainant in the face after the initial blow with the glass. It was accepted by both parties that, as the only relevance of the ongoing violence was to aggravate the respondent's culpability, the judge could not take such violence into account unless satisfied beyond reasonable doubt of the existence of that violence. See R v Storey [1998] 1 VR 359; R v Olbrich [1999] HCA 54, 199 CLR 270. Notwithstanding the high level of satisfaction required by this test, the appellant argued that the evidence about this question was far from uncertain, and to the contrary was overwhelming as to the existence of ongoing violence. The appellant's argument was that there was no room for any reasonable doubt about the infliction of further violence by the respondent after the initial blow.
Ms Mason SC for the appellant submitted that the complainant and the complainant's partner, Thomas Goodluck, provided clear and detailed testimony that the respondent had continued to punch the complainant in the face after the initial blow. Ms Mason argued that there was no proper basis on which to distinguish between the credibility and reliability of the complainant's evidence with respect to the events before the relevant blow and her evidence as to the ongoing violence, particularly as this violence was an integral and connected part of the sequence of her narrative. It was further argued that her evidence as to the ongoing punches was corroborated by Mr Goodluck's evidence and there was no room for mistake on his part. His evidence was that he was just outside the shed when he heard the glass smashing, which must have been the immediate consequence of the blow which constituted the crime. When he returned to the shed, he saw the complainant against a sliding door with the respondent "just punching her directly in the face … while she had hold of her hair". He said he could not count the number of punches and that he could hear the complainant screaming for help.
In addition to the complainant and Mr Goodluck, there was evidence from four other persons who were in or near the shed at the relevant time. The appellant submitted that there was nothing in the evidence of these witnesses that contradicted or cast doubt upon the version of the complainant and her partner as to the ongoing violence. None of the witnesses claimed to see the respondent strike the complainant with the glass, but each heard or noticed something consistent with the commencement of the physical conflict. The effect of the evidence of each was that when he or she reached the women, they had hold of and were struggling with each other. None saw any further blows inflicted by either woman. The evidence of each witness was variously criticised by Ms Mason on the basis that he or she was not in a position to see the alleged punches. Further, the reliability of some was questioned on the basis that his or her version included elements which were consistent with the respondent's version, which had been rejected by the trial judge.
His Honour did not canvas this evidence in detail in his supplementary comments, beyond that contained in the above quoted passage. His assessment of the version of each witness is summarised by his conclusion that the evidence "is sufficiently uncertain to preclude a finding" as to the ongoing violence. However, in our view, the following considerations are relevant to an assessment of the evidence on this question:
· Although the complainant gave firm evidence about feeling the punches, she did not see them, and her evidence suggested that she was acting defensively at the time of their delivery. She had just been struck in the face with a glass and was severely wounded. It was possible, if not probable, that she was experiencing shock and disorientation. It was open as a reasonable possibility that although she believed that there were ongoing blows, she was mistaken about this. This observation is consistent with the learned trial judge's conclusion that what the complainant felt and thought were punches, were in fact the efforts of others to separate the women.
· As already noted, the evidence of the complainant's partner was clear and detailed as to the existence of ongoing punches. However, there were some significant discrepancies between their respective versions. For example, the complainant said that she had dropped to the ground on her knees and was in that position as the further blows were delivered. Mr Goodluck said that the complainant was being held against the sliding door as she was being punched.
· Mr Goodluck's version was that after re-entering the shed and witnessing the respondent punching the complainant, he tried to pull the respondent away from the complainant. He was unable to do so, but in the process, the women "ended up on the ground". He was somewhat unclear as to how this happened. However, he said that the respondent was on top of the complainant and was still hitting her in the face when they were on the ground, and at that time Scott Barrow, one of the other witnesses, came into the shed and took hold of the respondent. He also said that at least two of the other witnesses were nearby and observing these events. Although the testimony of these witnesses was subject to the criticism described above, if Mr Goodluck's evidence was accurate, at least some of them would have seen the punches delivered by the respondent while the women were on the ground. However, none of these witnesses said in evidence that they saw any punches. Each said that the women were on the ground struggling and clutching each other's hair, which was consistent with Mr Goodluck's version, but none saw either woman strike the other.
· The trial judge noted that it was unclear as to whether the respondent kept hold of the glass after the initial blow, and that there was no evidence consistent with any further injury being occasioned by the further violence. The prosecution case was that the glass had fallen to the ground out of the respondent's hand after the initial blow. The complainant did give evidence of this, but his Honour was entitled to have regard to the absence of any further injury in determining whether or not he was satisfied that there had been further blows.
An appellate court should be slow to disturb a finding of fact made by a trial judge, particularly where that judge has had the advantage of observing the relevant witnesses. In Bresnehan v The Queen (1992) 1 Tas R 234 (26 October 1992), Underwood J (as he then was) said the following in respect of this question:
"[23] Finally, there is the question of appellate review of findings of fact made for the purpose of imposing sentence. In R v Parker (1984) Crim LR 763, the Court of Appeal concluded that, provided the trial judge directed himself in accordance with correct principle, the Court of Appeal would be slow to disturb any finding of fact as the trial judge had had the advantage of seeing and hearing the witnesses. This approach was applied in R v Ahmed (1985) Crim LR 250. In Halden (supra) at 35-36 Lush J said:
'Turning to the Crown argument concerning the role of an appellate court in reviewing findings of fact relevant to sentence, I would reject the argument that the appellate court cannot depart from the finding if there is some evidence to support it. The finding must be subject to review upon the same basis as a finding of a judge sitting without a jury. Where the judge has seen and heard the witnesses, the appellate court will be conscious of the fact that it has not had that advantage. If the judge was working from the same papers as the appellate court has before it, the appellate court can substitute its own finding in accordance with the principles expounded in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, and Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212 at 219-224.'
[24] In R v Gandy (1989) 11 Cr App R (S) 564 the court said at 569 that it was only in 'the most exceptional case that this Court will differ from the findings of fact made by a judge at a Newton-type hearing (taking evidence upon a plea of guilty) because this Court does not have the advantage of seeing and hearing the witnesses who have given evidence."
In this case, the learned trial judge did not positively find that ongoing violence had not taken place. He merely concluded that he could not be satisfied beyond reasonable doubt of the existence of such violence. Although the evidence in support of a finding of ongoing violence was relatively strong, the learned trial judge was not compelled to make such a finding. His Honour was entitled to entertain a reasonable doubt about this allegation, and, in that event, was not entitled to sentence the respondent on the basis that she had continued to punch the complainant. It follows that this ground should be rejected.
Impaired mental functioning
The ground relevant to this issue is as follows:
"The learned trial judge erred in fact and/or in law in finding that 'principles one and two, as articulated in R v Verdins [2007] VSCA 102, 16 VR 269 [were engaged]' when such finding was not reasonably open on the evidence."
This ground is exclusively concerned with the evidence of a clinical psychologist, Damien Minehan, and the findings of the trial judge arising from that evidence. A general summary of this evidence was contained in the earlier decision of this Court:
"[9] The defence also presented two reports from a psychologist, Damian Minehan. Mr Minehan gave evidence in the sentencing proceedings and was cross-examined extensively by prosecuting counsel. Mr Minehan's assessment of the respondent was that she had 'a mental health condition, in the form of social and generalised anxiety that had been present since adolescence'. She had also experienced panic attacks and periods of depression. Mr Minehan was asked to specifically comment upon the relevance of 'the Verdins principles'. He expressed the opinion that her 'Heightened state of anxiety may have contributed to her perceiving higher levels of threat, losing control of her emotions and acting impulsively and violently. The court may wish to consider principles 1 and 2 in this context.'
[10] In Mr Minehan's subsequent report he specifically addressed the contribution and/or causality of the respondent's mental condition to the offending behaviour. He noted that 'Ms Harwood experiences a higher level of psychological and physical arousal than a person who does not experience this condition … she entered the situation at a higher level of alertness, vigilance and arousal than a person who does not have an anxiety disorder and is more prone to experiencing an acute stress or 'fight or flight' response, a response that contributed to her behaviour'. He described her anxiety disorder as a contributing factor in her offending. Mr Minehan was cross-examined and prosecuting counsel put to him the complainant's version of events. Mr Minehan's evidence was that it was his belief that on that account the respondent's mental state contributed in some way but that he could not be more specific: 'I don't believe that it was the primary causal factor and I don't believe that it was completely irrelevant to the offending either.' He described the respondent's reaction, if the complainant's version of events was accepted, as 'impulsive' in the sense of behaviour with little thought or control."
In his comments on passing sentence at first instance, his Honour accepted Mr Minehan's evidence, noted that it provided "a partial or qualified explanation for" the respondent's conduct, and indicated that he would have regard to it in determining sentence. He did not make any other comment or finding about the evidence. The further findings sought by this Court from his Honour included those which addressed the relevance of the mental health condition to sentence in the manner explained in R v Verdins, in particular:
· Whether the mental health conditions referred to by Mr Minehan resulted in impaired mental functioning at the time of commission of the crime.
· Whether any such condition reduced the moral culpability of the respondent.
· The extent to which the condition has a bearing on the kind of sentence imposed and the conditions in which it should be served.
His Honour's supplementary comments on this issue are as follows:
"You presented two reports from Mr Minehan. I accept his expertise in the field the subject of his opinion. I accept his opinion. It satisfies me that your anxiety disorder contributed to your behaviour on this day. That condition explains the level of psychological and physical arousal you experienced when confronted by the complainant's presence. The Facebook post is contextually relevant in the sense described by Mr Minehan in his report at paragraphs 26, 27 and 46. It provides a broader setting for the circumstances on this day, affording some explanation for your heightened anxiety. That was a circumstance which tested your strategy for coping with interpersonal conflict and anger. I find that it challenged you in a way you could not manage adequately, when confronted by the complainant's words directed at you.
Because Mr Minehan has expressed the view that the condition contributed to rather than caused your actions it can only partially explain your conduct. You did not lose all power of self-control. Rather, I find that the condition resulted in a reduced ability to control your angry emotions, a result manifest in the impulsivity of your action. It handicapped your ability to control your response to the circumstances as you found them; to respond calmly and rationally to your situation. It did not extinguish your capacities of self-control however, so its effect is to mitigate the criminality of your actions, not to excuse you. It engages principles one and two, as articulated in R v Verdins [2007] VSCA 102, 16 VR 269.
I am satisfied that the moral culpability of your actions is reduced by reason of that condition. That conclusion is a consideration which bears upon sentence because it has contributed to the behaviour for which you have been convicted."
Once again, the formulation of the ground of appeal does not properly express the nature of the appellant's complaint. His Honour's reference to the engagement of the Verdins principles was a component of his Honour's reasoning in respect of his ultimate finding concerning this issue, and was probably expressed as a response to Mr Minehan's invitation to consider those principles. The crucial factual finding which is the true subject of the appellant's complaint is that the anxiety disorder contributed to the commission of the crime. The significance which the trial judge placed on this finding was that it resulted in a reduction in the respondent's moral culpability. The effect of the appellant's submission is that the finding of contribution was not open to the trial judge having regard to all of the evidence, including that of Mr Minehan, and, in any event, it should not have been regarded by his Honour as a basis for reduction of moral culpability. In particular, the appellant argues that the evidence did not permit a finding of a causal link between the condition and the respondent's criminal conduct.
Mr Minehan's evidence consisted of two reports and oral testimony given at the sentencing hearing. He based his opinions on a face-to-face interview with the respondent conducted approximately 12 months after the commission of the crime, as well as documents which set out the allegations made by the prosecution. He expressed the opinion that the respondent had suffered from an anxiety disorder for some years and that it was this disorder which impaired her mental functioning on the day of the crime. The longstanding existence of the condition, and its capacity to result in an impairment of mental functioning, in the sense described in Verdins and Director of Public Prosecutions v O'Neill [2015] VSCA 325, 47 VR 395, is not challenged by the appellant. Ms Mason's argument is that, notwithstanding the conceded existence of the underlying disorder, the evidence does not permit a finding that it resulted in an actual impairment of mental functioning at the time of the commission of this crime which was causally connected to the commission of the crime.
It is clear that Mr Minehan was aware of the requirement for there to be such a connection, and he expressed his opinion about that question in his original report as follows:
"With the above principles in mind Ms Harwood's anxiety and tendency towards emotional overcontrol may have contributed to the offending behaviour in the form of heightened anxiety in the moments leading up to the physical altercation. Ms Harwood's heightened state of anxiety may have contributed to her perceiving higher levels of threat, losing control of her emotions and acting out impulsively and violently. The Court may wish to consider principles one and two in this context."
It is clear from the report that the reference to "principles one and two" is a reference to the list of possible ways in which mental impairment operative at the time of offending may reduce moral culpability (see Verdins at [26]), rather than the list of ways in which impaired mental functioning may be relevant to sentence (the reformulated principles from R v Tsiaras [1996] 1 VR 398 at Verdins [32]). "Principles one and two" relate to a reduction of moral culpability because of the impairment of the offender's capacity to exercise appropriate judgment and make calm and rational choices and to think clearly.
In an addendum report, Mr Minehan confirmed his maintenance of the opinion as expressed in the first report irrespective of the factual basis of the commission of the crime. In particular, he confirmed that he held to this opinion in the event of a finding that the blow with the glass occurred in the circumstances described by the complainant, and that the respondent was not acting defensively.
Mr Minehan maintained these opinions under cross-examination by prosecuting counsel. In particular, in respect of the connection between the disorder and the commission of the offence in the context of the prosecution case, he explained his opinion as follows:
"Yes……- as well. So the formulation is that there was an anxiety disorder, avoidance withdrawal, anxiety related attempts to control her environment, over-control of her emotions is an important point in all of this as well. My view is that the anxiety disorder still contributed, so I'm probably going to have to give a bit of an explanation about what that means in terms of why I think that occurred.
I'm inviting you to……Yep, so in terms of anxiety disorders there are two components, the psychological component, which is the worries, the thoughts, the psychological components that fuel the anxiety. The second part is the physical symptoms that I think everybody's experienced, perhaps at a lower level, butterflies in the stomach and so on when you're nervous about something, when somebody gets into the realm of having an anxiety disorder or even a panic attack that's quite a different response. So most people have heard of the fibre [sic] flight response before, that's an automatic response that our body makes when we perceive danger or threat and occurs in a situation where we might have a near-miss in a car accident or somebody threatens us or we step out in front of a bus or whatever it might be. For somebody with an anxiety disorder those kinds of reactions can occur in all sorts of places, so supermarkets, lifts, all of those kinds of things, someone might have a panic in those kinds of environments have that full flight – fight or flight response, adrenalin into the system, heart rate picks up, blood diverts from the limbs to the bigger muscles in the body to prepare you to do something. In either scenario with Ms Harwood my opinion is that that state contributed in some way. So in the scenario that you've presented to me that same thing occurs, so she's – at the state that they're having a discussion and some things are said, the comment about the hypocrite is made, which I think has some historical – a couple of weeks before there was some perception that there'd been another comment about hypocrite being made, -
Yes…..Yep. That's where I'm saying the response started to occur, that heightened physical arousal, that's then contributed to the lack of judgment and the impulsive decision making and the rush of emotions and other things that have contributed to the offence.
So are you saying it did or it might have?.....I'm saying it – it has contributed in some way, so as I was trying to clarify in that second report, I'm certainly not saying it is the primary or causal factor, I cannot say that, I – my belief is that it contributed in some way but I cannot – I cannot give you a one percent or a ninety nine percent on that, it is difficult, but I believe it contributed in some way."
Notwithstanding this expression of opinion by Mr Minehan, the appellant argues that a proper consideration of his evidence, taken together with other factors, precluded a finding on the balance of probabilities of a causal connection between mental impairment arising from the condition and the offending conduct. In particular, it is argued that the particular circumstances and the respondent's intoxication, adequately explain her actions, and that the trial judge could not, therefore, have been satisfied on the balance of probabilities of the contribution of the underlying mental health condition. Ms Mason relied on the following aspects of the evidence:
(a)The equivocal nature of Mr Minehan's opinion and his inability to quantify the extent of any relevant contribution.
(b)His limited opportunity to assess the existence and relevance of the mental health condition at the time of offending, given that he did not see the respondent for the first time until 12 months after the commission of the crime.
(c)The respondent's statements to police during the course of a recorded interview which included that, at the time of the offending, she had the condition under control, that she did not lose control, and that she had the capacity to not overreact and to keep her emotions under control.
(d)The evidence that the respondent had consumed a considerable amount of alcohol, and the probability, according to Ms Mason's argument, that her conduct resulted from simple rage fuelled by intoxication.
Ms Mason conceded that the underlying anxiety disorder had the capacity to result in impaired mental functioning, but argued that many people live with such disorders, and that the existence of such a disorder should not reduce moral culpability when the evidence demonstrates nothing more than that a person affected by alcohol lost her temper and acted violently in a fit of rage. Ms Mason submitted that a rigorous assessment of the evidence would have determined that the case did not reach the threshold required by Verdins and O'Neill for a reduction in sentence to take account of the underlying disorder.
Ms Mason is quite correct about the need for a rigorous evaluation of the evidence in light of the claim of impaired mental functioning. It is indisputable, having regard to the principles explained in Verdins, O'Neill and other cases, that before the respondent's underlying condition could be taken into account in reduction or moderation of sentence, it was incumbent on the trial judge to rigorously evaluate the evidence in order to determine whether at the time of offending the respondent was suffering from an impairment of mental functioning and, if so, whether there was, at least, a realistic connection between that impairment and her conduct. The obligation of a sentencing court to conduct such an evaluation was explained in some detail in O'Neill, as summarised by Porter J in Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 at [38]-[39]:
"[38] ... At par [68], their Honours said that it was clearly inappropriate to apply a mechanistic approach that, because an offender is said to suffer from impaired mental functioning, the Verdins principles are thus attracted; 'Such an approach is overly simplistic, and erroneous.' Their Honours said that careful consideration needs to be given as to whether the evidence establishes that mental capacity has been impaired and whether which of the circumstances set out in Verdins are engaged. That required a rigorous evaluation of the evidence.
[39] Further observations included the following. Notably, at par [71], the court stressed that the principles set out in Verdins are enlivened only where the offender suffers from an impairment of mental functioning. The consequences will depend on the nature and severity of that impairment. For the second, third and fourth principles enunciated in Verdins to have application, there must be a connection between the impairment to mental functioning and the appellant's moral culpability or the need for general and specific deterrence. If the mental impairment exists at the time of the offending, it must have some 'realistic connection' with the offending, or have 'caused or contributed' to the offending, or be 'causally linked' to the offending: [74]. Next, to show the necessary connection to the offending and to enliven limbs 1 to 4 of the Verdins principles, the offender must establish that the mental impairment affected his or her ability to appreciate the wrongfulness of the conduct, or obscured the offender's intent to commit the offence, or impaired the offender's ability to make calm and rational choices or to think clearly at the time of the offence: [75]. Careful consideration needs to be given to whether the evidence establishes mental impairment, with the Crown having an important role in identifying any inadequacy in expert opinion, and challenging it if necessary: [80]-[81]."
The aspects of the evidence referred to by Ms Mason were, of course, relevant considerations. However, it is clear from Mr Minehan's reports and his oral testimony that he had taken into account in the course of formulating and then expressing his opinion, the limitations arising from those considerations. Despite these limitations, Mr Minehan was clear in his reports, and in his oral evidence, that he was certain that the mental health condition contributed to the commission of the crime, notwithstanding he was not able to express an opinion as to the extent of that contribution.
It is apparent from his Honour's comments that he also was cognisant of the limitations of the expert evidence. However, while acknowledging same, his Honour accepted the existence of the underlying condition, and also accepted Mr Minehan's opinion that this condition resulted in some impairment of mental functioning at the time of the offending conduct. In particular, he found that the disorder "resulted in a reduced ability to control … angry emotions" and "to respond calmly and rationally". While it was open to the learned trial judge to find, as asserted by the prosecution, that the violent conduct was simply a product of alcohol fuelled rage, he was not bound to do so. He was entitled to accept Mr Minehan's opinion that the anxiety disorder also contributed to the respondent's violent response.
The criticism that the trial judge did not rigorously evaluate the evidence is unfounded. His Honour considered two reports from the psychologist, who was also subjected to extensive cross-examination. Mr Minehan went into considerable detail, particularly in his oral evidence, to explain the connection between the anxiety disorder and the violent response. This was particularly evident in his detailed discussion of the aberrant capacity for emotional response and impulsivity, which is a characteristic of the anxiety disorder.
Having determined that the mental impairment had contributed to the criminal conduct, the question which then arose was the extent to which this impairment should appropriately affect the sentence. Beyond making a general observation that the existence of the mental impairment mitigated but did not excuse the criminality of the respondent's conduct, and resulted in a reduction of moral culpability, the trial judge did not attempt such a quantification. This was consistent with Mr Minehan's asserted inability to quantify the extent of that contribution.
However, his Honour did clearly express the way in which he considered the mental impairment to be relevant to sentence. His Honour's reference to the engagement of "principles one and two, as articulated in Verdins", must be taken to reflect Mr Minehan's evidence, that is, as a reference to the list of possible ways in which mental impairment operative at the time of offending may reduce moral culpability, in particular because of the impairment of the offender's capacity to exercise appropriate judgment and make calm and rational choices and to think clearly. This was entirely consistent with the expert's opinion and the trial judge's findings. His Honour referred expressly to a reduction in moral culpability but said nothing which indicated that he had concluded that the impaired mental functioning was relevant in any other way.
In particular, his Honour's restriction of the relevance of the impaired mental functioning to the question of moral culpability, implied that he had concluded that this was not a case where the nature and severity of the symptoms of the respondent resulted in a determination that general deterrence should be moderated or eliminated as a sentencing consideration. This distinction in relevance was discussed in DPP v O'Neill. In that case, the offender had murdered his partner in an explosive fit of rage. There was expert evidence that the offender was subject to a personality disorder which was said to have relevance to his commission of the crime. The Court of Appeal rejected the proposition that a personality disorder has the capacity to result in an impairment of mental functioning, for the purpose of the applicability of Verdins. In particular, the court held that the condition "could not provide a basis for a moderation of the principles of general deterrence. That condition did not play any relevant role in diminishing the respondent's capacity to understand the nature and gravity of his offending". Hence, it did not render him unsuitable "to be a vehicle for general deterrence".
The court then discussed the relevance of the underlying personality disorder in respect of the offender's moral culpability for the crime. The judge had determined that the personality disorder had played some, albeit undetermined, role in his offending, and in that sense "operated to reduce his moral culpability". In respect of this question, the court said:
"[96] The respondent's complex personality matrix was not, however, irrelevant to the sentencing synthesis. The evidence of Dr Barth was relevant and of substantial importance in explaining why the respondent, in response to the humiliating remarks made to him by his partner, exploded in a fit of rage in the course of which he murdered his partner. That explanation was of central importance in making an informed assessment of the respondent's moral culpability for his offending conduct.
[97] The determination of an offender's moral culpability does not depend, solely, on an objective assessment of the actions and conduct of the particular offender. Such an assessment necessarily involves a careful consideration of matters personal to the offender, which may provide an appropriate explanation as to how, particularly in a case such as this, a hitherto law-abiding person has, in an outburst of uncontrolled anger, committed such a serious crime."
The court went on to observe that the psychological makeup of the respondent, combined with the circumstances of the particular case, contributed to his "uncontrolled outburst of violence in which he murdered his partner". The court noted that this was relevant to moral culpability because it explained why he had committed the crime and, in that sense, the case could be distinguished from one involving a crime committed in circumstances which might imply greater moral culpability, for example if the crime was premeditated, vindictive or gratuitous.
These comments have relevance to the circumstances of this case. Mr Minehan's evidence concerning the anxiety disorder and its likely operation in the circumstances which confronted the respondent, in particular the contribution it made to her lack of judgment and impulsive reaction to the comment made by the complainant, was relevant to explain her violent reaction. As was conceded by Mr Minehan, it was not a primary causal factor, nor was it the only factor at play. Mr Minehan conceded that the effect of the alcohol which the respondent had consumed had also played a role in her reaction. However, it is a reasonable assessment of the evidence that the anxiety disorder contributed to a complex emotional and psychological matrix, which in turn contributed to the respondent's reaction. The significance of the anxiety disorder was not because it explained something which would not otherwise have happened, but that it assisted the trial judge to identify the act as spontaneous and impulsive. It supported the judge's conclusion that the violence was not premediated, that the respondent's anger "exploded", and that it was "an action delivered in anger, a split second action, inflicted without any thought for what might follow". All of these matters were relevant to the proper assessment of moral culpability. It was open to the trial judge, on the basis of Mr Minehan's evidence, to conclude that the anxiety disorder had some, albeit unquantified, role to play in the respondent's violent reaction.
His Honour's evaluation and use of the respondent's mental condition went no further than this and was consistent with the evidence and the principles discussed above. In particular, the assessment of the respondent's moral culpability did not depend solely on an objective assessment of the respondent's actions and conduct. His Honour could not ignore the potential contribution of the condition identified by Mr Minehan. This ground is not made out and should be rejected.
The question of the weight attributed by the trial judge to the reduction in moral culpability because of the anxiety disorder, in the formulation of sentence, is a different question. However, it is not a question that falls to be answered in respect of this ground. It must be accepted that his Honour arrived at the sentence, as would normally be the case, as a result of an intuitive synthesis of all relevant considerations. The existence of an error in the attribution of weight with respect to the role of the anxiety disorder and moral culpability generally, can only be established by a consideration of whether the ultimate sentence was within the reasonable exercise of the sentencing discretion of the learned trial judge. This question is therefore subsumed within the ground alleging manifest inadequacy.
Manifest inadequacy
The appellant contends that the sentence is, in the circumstances of the case, manifestly inadequate. The test to be applied in respect of a prosecution appeal on such a ground is well settled. The Court must not interfere unless persuaded that error can be inferred from a sentence which is "unreasonable or plainly unjust". In the case of an appeal by the prosecution, such error must be apparent because the leniency of the sentence renders it manifestly inadequate. A further consideration relevant to a prosecution appeal is that the primary purpose of such an appeal is to lay down principles for the governance and guidance of trial courts, and to maintain public confidence in the administration of justice by the correction of manifestly inadequate sentences. These principles were summarised by Pearce J in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 and Director of Public Prosecutions v Harington [2017] TASCCA 4 at [94]-[96].
It is clear from the trial judge's comments that his Honour accepted that the rehabilitation of the respondent was a significant sentencing consideration. The respondent was 22 years of age at the time of the commission of the crime. The only matter contained in her criminal history was a formal caution for the summary offences of assault and instigating the commission of a simple offence, which was administered when the respondent was 17 years of age. She had no other prior convictions whatsoever, and there was no suggestion that she had committed any other offences since the commission of this crime. She had had a difficult upbringing, which included violence inflicted on her by her mother's partner, had played an important part in the upbringing of her younger brothers, and had suffered bullying at school. Her long-standing anxiety disorder identified and explained by Mr Minehan was an important feature of her personal circumstances. These circumstances supported his Honour's comment that "it is important to have regard to your prospects and to give weight to rehabilitation". This comment was clearly appropriate.
Further, although she had not pleaded guilty, the learned trial judge accepted that the respondent was remorseful for her conduct, and that the consequences of her conduct would have an effect on her future behaviour. His Honour accepted that it was unlikely that she would re-offend. Although there is no direct challenge to these findings, the appellant argues that the respondent's claims of remorse are not borne out by the evidence. Counsel for the appellant relies on the lack of a plea of guilty, and asserts that there was no conduct by her following the crime consistent with immediate remorse. Before the trial judge, the prosecution had submitted that any claim of remorse was in fact a reference to self-pity rather than genuine remorse.
There is no question that the respondent was not entitled to the benefit that might flow from an early plea of guilty. However, the trial judge's findings as to the existence of remorse and the unlikelihood of re-offending, are not the subject of specific challenge and were clearly open to his Honour. The respondent did not give evidence at the trial, but his Honour had viewed her interview with police, and was entitled to have regard to her lack of prior convictions, her youth, and the general impression gained from the evidence presented at trial and during the sentencing proceedings, in making those findings.
On the other hand, the objective seriousness of the respondent's criminal conduct was high and there were a number of aggravating factors. She had attacked the complainant by striking her in the face with a wine glass. The operative mental element was that she consciously averted to the risk of serious injury but proceeded with the attack notwithstanding that risk. In the particular circumstances of this case, there is very little distinction in culpability between committing such an act with that mental state, and doing so with the intention of causing such injury. This is because of the extremely high risk of serious injury inherent in the act of pushing a relatively fragile glass into the complainant's face with force. It was a dangerous and brutal act. The mitigatory effect of the impaired mental functioning was limited. The real significance of this factor was that the respondent's conduct could be distinguished from more serious cases of premeditated or vindictive violence. The judge's finding that there had not been ongoing punches was also a point of distinction from more serious cases which might involve a prolonged attack. However, the fact remained that such an attack had the potential to produce catastrophic consequences, and did actually result in grievous bodily harm with serious and permanent impact on the complainant.
The level of that harm and impact is of itself a relevant sentencing consideration. That the respondent was reckless in relation to causing grievous bodily harm relates to criminal liability. The level of culpability flows from that, but that is not the end of the matter. The question of culpability needs to be assessed in light of the actual consequences of the criminal conduct. Offenders are to be sentenced on the basis of the result caused by their criminal conduct except where that result is unintended, unforeseen or not reasonably foreseeable: R v Agius [2000] SASC 259, 77 SASR 469; Lambie v Tasmania [2007] TASSC 10; Josefski v The Queen [2010] NSWCCA 41, 217 A Crim R 183. In this case, the trial judge made no finding beyond saying that the respondent was reckless in relation to causing grievous bodily harm. However, it is undeniable that the respondent ought to have foreseen the likelihood of a loss of eyesight from stabbing the complainant in the face with a glass.
As far as the impact is concerned, the complainant, who at the time of sentence was 20 years of age, was blinded permanently in one eye and suffered permanent facial disfigurement. The impact on the complainant was more particularly described by the trial judge as follows:
"As a result of your conduct, your victim who is aged 20 years, is now blind in one eye and she is disfigured for life. She describes the injuries she has sustained as ruining her looks and on the rare occasions she ventures out, she wears sunglasses to cover her injury. She describes feeling the discomfort of others who have to look at her and talk to her. She describes an uncertain future and the loss of any prospect for pursuing a career in the Navy. Others have encouraged her to try modelling, but she considers this is no longer a possibility. She described how she was skilled in make-up, but she has given up on that because it is more difficult for her to do having sight in only one eye. She describes having no perception of depth. She will have to learn to drive again. She described fearing for her well-being and having developed anxieties, the biggest anxiety is that her other eye will deteriorate. She fears that as she ages she could go completely blind. She has lost weight and self-confidence."
The Court was provided with some statistical information concerning past sentences imposed for crimes contrary to s 172. The appellant referred to Sentencing Advisory Council statistics which demonstrated a sentencing range of between 2 and 60 months, for sentences imposed between January 2000 and December 2014, over 53 cases of single counts of crimes contrary to that section. As to cases which have been previously dealt with by this Court, at the more serious end of the range, head sentences of imprisonment of 5 years (Barron [2010] TASCCA 3) and 6 years (Cordwell [2017] TASCCA 14), were held to not demonstrate manifest excess. On the other hand, in DPP v Pearce, the Court rejected a prosecution appeal against the adequacy of a wholly suspended sentence of 12 months' imprisonment in a case in which the offender had stabbed his brother in the back twice with a kitchen knife. The victim required surgery and hospitalisation but made a full recovery. Pearce J, with whom Blow CJ and Porter J agreed, said at [13]:
"The crime of causing grievous bodily harm does not necessarily require a sentence of actual imprisonment in every case. The sentencing data available to me lists numerous examples of the imposition of wholly suspended sentences for the crime, commonly with terms between six and twelve months and sometimes longer."
The Court was also provided with details of sentences imposed between 2006 and 2017 for such crimes where the grievous bodily harm included an injury to an eye. These sentences fall within a range from wholly suspended sentences to a sentence of six years' imprisonment. The most comparable to this case in terms of the objective facts is Goss, in which a sentence was imposed on 6 July 2017, after a plea of guilty, of two years' imprisonment with parole eligibility after one year. The offender had smashed a glass into his victim's face, causing a cut through the left eye and down the side of the face, which resulted in loss of vision in that eye.
Care must, of course, be taken with the use of such information. It is apparent that the crime contrary to s 172 is one which "captures a diverse range of conduct", see Barron per Wood J. While statistical information of this nature is of general assistance in identifying the approach of the courts to such crimes, the wide and varied nature of conduct and circumstances applicable in respect of this crime render it impossible to derive anything more than general guidance from such information in respect of any particular sentence.
When regard is had to all the circumstances of this case, and the statistical information discussed above, it is apparent that the sentence imposed by the learned trial judge is manifestly inadequate. The head sentence of 12 months' imprisonment does not adequately reflect the need for the sentence to respond to the requirements of denunciation and general deterrence, particularly having regard to the objective seriousness of the crime and the terrible consequences suffered by the victim. The manifest leniency of the sentence is exacerbated by the suspension of a substantial part of the sentence, but it is the leniency of the head sentence, in particular, from which the existence of undefined error in the sentencing process can be inferred. This ground must succeed.
Determination of the appeal
The manifest inadequacy of the sentence establishes the existence of error. However, the outcome of the appeal is governed by the provisions of s 402 of the Code. Section 402(4) provides that if the Court, "is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed", it "shall quash the sentence and pass such other sentence in substitution therefor". Section 402(4A) provides that on hearing an appeal against sentence, the court "may take into account any matter relevant to the sentence that has occurred between when the court of trial dealt with the person and when the appeal is heard". However, s 402(4B) prohibits the court from taking into account the element of double jeopardy involved in the person being sentenced again in order to reduce the sentence from that which is otherwise considered appropriate.
In this case, the following matters are relevant to sentence and have occurred between sentence and the hearing of the appeal:
· The sentence was imposed on 3 December 2018. The respondent served the immediate custodial term of three months and was released from custody on 1 March 2019. Since her release, she has satisfactorily completed the 80 hours community service which was imposed as a condition of suspension of the balance of the sentence. She has also been engaging satisfactorily with a probation officer pursuant to the probation order made by the trial judge.
· While in custody, she undertook counselling and commenced an employment-related course. She has continued that course since her release. She has also remained engaged with her psychologist pursuant to a mental health care plan.
· The respondent is seeking paid employment but in the meantime has continued to work voluntarily at the community house where she undertook community service. She is living with her partner and remains close to her immediate family.
· On the other hand, there has been continued and intensified impact of this crime on the complainant. Ms Mason informs us that she has become increasingly socially withdrawn and is struggling to come to terms with the physical consequences of the crime. She is no longer pursuing plans formulated immediately after the crime.
It is asserted on behalf of the respondent that she has suffered actual stress and anxiety at the prospect of having to return to custody, in the event that the appeal is successful. She found her time in custody difficult. The stress and anxiety has been exacerbated by the drawn out nature of the appeal proceedings. Much of that delay is a consequence of this Court referring the matter to his Honour to make further findings of fact. The precise history of the proceedings is as follows. As already noted, sentence was imposed on 3 December 2018, and the respondent commenced to serve the custodial portion of the sentence on that day. The notice of appeal was filed by the appellant on 17 December 2018. The appeal initially came on for hearing on 2 March 2019. At that time, the Court provided brief oral reasons indicating that it intended to refer the matter to the trial judge to determine and report on the factual basis of sentence, but would set out the matters to be included in the report in formal published reasons. Those reasons were published on 12 March 2019. His Honour provided supplementary comments on sentence on 8 April 2019. The appeal was then listed for further hearing on 7 June 2019. In the circumstances, it is accepted that the respondent has suffered actual and considerable stress and anxiety at the prospect of being returned to custody, and her experience of this has been exacerbated by the prolonged nature of the proceedings, which is, of course, not her fault.
It was not suggested by either counsel in this appeal that the Court is precluded from having regard to actual stress and anxiety, including that arising from the delay, when determining whether some other sentence is "warranted in law". This position is consistent with authority. In Director of Public Prosecutions v Chatters [2011] TASCCA 8, 21 Tas R 26, this Court held that a provision under the law as it then stood, which is identical in effect to s 402(4A), operates "so as to allow this court to take into account any actual stress and anxiety established in the usual way, and which has occurred after sentence has been imposed at first instance". It was further held that the Court was not precluded from taking such a consideration into account by the provision which was the precursor of what is now s 402(4B). In Director of Public Prosecutions v Swan [2016] TASCCA 9, Pearce J expressed doubt as to whether the amendments which resulted in the insertion of s 402(4B) had altered the law as expressed in Chatters, but declined to determine the point. In this case, as already noted, it is accepted that the actual stress experienced by the respondent is relevant to the question of resentencing, and to that extent, the conclusion reached in Chatters is applicable. In any event, the impact of delay and developments in the respondent's personal circumstances have never been regarded as matters falling under the concept of "double jeopardy". Such circumstances can include the completion of components of the sentence imposed at first instance, including a period of actual imprisonment. This point was made by Ashley, Redlich and Weinberg JJA in Director of Public Prosecutions v Karazisis [2010] VSCA 350, 31 VR 634:
"[103] However, as one learned commentator has pointed out, there remain many reasons, apart from double jeopardy, why, as a matter of discretion, this Court would conclude that, despite error having been established and being satisfied that a different sentence ought to have been passed, a Crown appeal should be dismissed.
[104] Among the factors that might be relevant to the exercise of the Court's discretion to dismiss an appeal, despite inadequacy of sentence having been demonstrated, are delay, parity, the totality principle, rehabilitation, and fault on the part of the Crown.
[105] It is not difficult to see how factors such as these, and perhaps a number of others, might be regarded as justifying such a course in any given case. It is important to note that they are all far removed from double jeopardy, certainly in the sense in which that term is now understood in the context of the new provisions.
[106] Where there has been a significant delay between the sentencing of an offender, and the hearing of the Crown appeal against that sentence, the Court will generally take that into account in determining both whether to allow the appeal and, if so, in re-sentencing. There are sound reasons for this.
[107] Circumstances may have changed to such a degree as to warrant leaving even a sentence that may be viewed as manifestly inadequate to stand. When an offender is given a non-custodial sentence and has complied with its terms for a significant period, there may be powerful reasons why that sentence should not be disturbed. A similar point can be made in situations where an offender, who received a short custodial sentence, has served the entirety of that sentence and been released by the time the Crown appeal is heard.
[108] Delay is generally regarded as an important mitigating factor, particularly in cases where it has been brought about through no fault of the respondent. If the evidence is that a convicted person has taken advantage of a lenient disposition by removing himself or herself from a previously unsatisfactory environment, and has found employment and stability in his/her personal life, the Court will be reluctant to disturb that situation. The same is true where there has been a significant deterioration in the respondent's health, or mental well-being, in the period between his/her having been sentenced and the hearing of the appeal. Particularly, in a case not involving criminality of the highest order, the Court may take the view that it would be unfair and inappropriate, to intervene merely to mark the Court's disapproval of the sentence originally imposed." [Footnotes omitted.]
These comments confirm that the factors in question can, in an appropriate case, result in the Court not interfering with a sentence, despite the existence of error. However, they are also applicable to the question of resentencing. In this case, it is possible to achieve a sentence "warranted in law" which takes proper account of matters which have arisen since the sentence at first instance was imposed, but also addresses the concern of this Court as to the maintenance of sentencing standards. In our view, this crime warranted the imposition of a head sentence of two years and six months. Had such a sentence been imposed at first instance, it would have been appropriate to suspend part of the sentence, or at least impose a minimum non-parole period, in order to take account of the respondent's personal circumstances and potential for rehabilitation. It would also have been appropriate that the respondent serve a substantial portion of the sentence in actual custody. This would have resulted in her being in custody for a term longer than that imposed by the learned trial judge. However, having regard to what has transpired since the sentence was imposed at first instance, in particular, the delay in the determination of the appeal and the fact that the respondent has now completed the period of actual imprisonment as well as the community service, a sentence which requires the respondent to return to prison would now be unduly punitive. Further, such an outcome would disrupt and jeopardise her efforts at rehabilitation. Because of these considerations, a sentence imposed by this Court which contains a further term of immediate imprisonment would not be "warranted in law". Accordingly, while the head sentence will be increased to two years and six months, it is appropriate that the balance of the sentence beyond the three month period already served be suspended on the same terms as those imposed by the trial judge. It is not necessary to interfere with the probation order. Although this sentence will provide the respondent with an opportunity to avoid serving the balance of the term, a strong punitive element is still contained within the sentence, because the respondent will become liable to serve that balance if she does not comply with the conditions of suspension and, in particular, if she commits a further imprisonable offence during the period of suspension.
Accordingly, the appeal is allowed. With the exception of the probation order, the sentence imposed by the trial judge is set aside. In its place, the respondent is sentenced to imprisonment for a term of two years and six months. To take account of the three months the respondent has already served in custody, the sentence will be expressed to commence on 30 May 2019. The balance of the sentence, two years and three months, is suspended for a period of two years from today on the conditions that the respondent is not to commit an offence punishable by imprisonment during that period, and that she is to perform 80 hours of community service. The community service already performed by the respondent will be regarded as satisfying this condition. The probation order made by the trial judge will remain in place.
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