Director of Public Prosecutions v King

[2020] TASCCA 8

[2020] TASCCA 8

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

CITATION:                Director of Public Prosecutions v King [2020] TASCCA 8

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v

KING, Joshua Phillip John

DIRECTOR OF PUBLIC PROSECUTIONS
v
WEBB, Jhye John

FILE NOS:  3173/2019

3174/2019

DELIVERED ON:  11 June 2020
DELIVERED AT:  Hobart
HEARING DATE:  19 May 2020
JUDGMENT OF:  Blow CJ, Wood and Estcourt JJ

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Custodial orders – Home detention orders – Sentencing principles.

Sentencing Act 1997 (Tas), ss 42AC, 42AD, 42AE, 42AF.

R v Filipponi [2016] SASCFC 148, 126 SASR 464; R v Dell [2016] SASCFC 156; R v Lean [2017] SASCFC 101, 128 SASR 451, referred to.

Aust Dig Criminal Law [3349]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Aggravated burglary, wounding and assault – Man struck with weapons, punched, kicked, and stomped on by group of men – Wholly suspended sentence of 15 months' imprisonment, plus 18 months' home detention and probation for ringleader – 15 months' home detention with 175 hours' community service for abettor – Neither sentence manifestly inadequate.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  D G Coates SC
             Respondent King:  G Stevens
             Respondent Webb:  S Taglieri SC
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent Webb:  Blissenden Lawyers

Judgment Number:  [2020] TASCCA 8
Number of paragraphs:  141

Serial No 8/2020

File Nos    3173/2019                3174/2019

DIRECTOR OF PUBLIC PROSECUTIONS v JOSHUA PHILLIP JOHN KING
DIRECTOR OF PUBLIC PROSECUTIONS v JHYE JOHN WEBB

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
WOOD J
ESTCOURT J
11 June 2020

Orders of the Court (19 May 2020)

1. Appeal 3173/2019 dismissed.

1. Appeal 3174/2019 dismissed.

Serial No 8/2020

File Nos    3173/2019                3174/2019

DIRECTOR OF PUBLIC PROSECUTIONS v JOSHUA PHILLIP JOHN KING
DIRECTOR OF PUBLIC PROSECUTIONS v JHYE JOHN WEBB

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
11 June 2020

1. On the afternoon of 2 April 2017 five men went to the home of a man in Glenorchy, mistakenly believing that he had indecently assaulted a woman.  One man was armed with a small tomahawk and another with a two-pronged metal implement.  The victim was attacked in his home and seriously injured.  The group included Jhye Webb and Joshua King, the respondents in these proceedings.  They were both charged with aggravated burglary, wounding and assault. Mr Webb pleaded guilty to the three charges the day before his trial was due to commence.  Mr King stood trial, and was found guilty of all three charges by the jury.  They were both sentenced by Porter AJ on 26 November 2019.  His Honour did not send them to prison, but imposed home detention orders, as well as making other orders in relation to each of them.  The Director of Public Prosecutions ("the DPP") instituted appeals in relation to the sentences of both Mr Webb and Mr King, contending that their sentences were manifestly inadequate. He submitted that they both should have been sent to prison. On 19 May 2020 this Court dismissed both appeals, reserving its reasons for publication at a later date.  These are my reasons for concluding that each appeal should be dismissed.

The home invasion and its consequences

1. Mr Webb led the attack at the victim's home.  He was armed with the tomahawk. Mr King was unarmed.  Mr Webb kicked the front door a number of times in an attempt to gain entry.  Then Mr King kicked the door a number of times.  The victim had armed himself with a hammer.  He opened the door, but then tried to push it and close it.  He did not succeed.  Mr Webb swung the tomahawk around the door at him several times.  Apparently the tomahawk connected only once. It caused a wound to the palm of the victim's left hand.  The man with the forked implement also swung it at the victim, causing a wound to his right arm.  Mr Webb then punched the victim to the face, pulled him to the door, and pushed him outside.  He was thrown to the ground and kicked a number of times by Mr Webb and some of the others, but not by Mr King.  Some kicks were delivered before he fell to the ground and others after he was on the ground.  Someone stomped on his head while he was on the ground.

2. By virtue of s 245 of the Criminal Code, the crime of aggravated burglary is committed by any person who enters a place as a trespasser with the intention to commit a crime in that place if the person has an offensive weapon, or if the place is ordinarily used for human habitation.  The respondents were charged with aggravated burglary both on the basis that members of their group were armed with the tomahawk and the two-pronged implement, and on the basis that the place they entered was their victim's home.  The wounding charge related to two wounds – the wound Mr Webb inflicted to the victim's left hand with the tomahawk, and a wound to his right forearm inflicted by the man with the two-pronged implement.  The assault charge related to members of the group punching the victim, kicking him to the head and body, stomping on his head, and striking him with the two-pronged implement.

3. Mr Webb was sentenced on the basis that he was a participant in a joint criminal enterprise, and therefore criminally responsible for all the violence that occurred.  He clearly acted as the leader of the group at the time of the attack.

4. Mr King was sentenced as an abettor.  The learned sentencing judge was not persuaded that Mr King was unaware of the prospect of violence before the weapons were produced, but was not satisfied beyond reasonable doubt "that violence with weapons was in his mind from an earlier point".  His Honour sentenced him on the basis that he abetted the three crimes by being present, intending to encourage, and in fact encouraged the commission of the crimes by kicking the door.  The DPP did not contend that he should have been sentenced on the basis of any greater culpability than that.

5. The victim was able to stand up after his assailants left, but his right forearm was broken, he had lost his dentures, he had defecated, he was bleeding from the mouth, and he was dazed.  The police arrived.  He was taken to hospital by ambulance. Apart from the injuries I have mentioned, he had bruising to his left thigh, his head, and his back, and a graze to his forehead.  His two wounds were washed and closed with stitches. His forearm was placed in a cast. He provided a victim impact statement in September 2019, about 29 months after he was attacked. He reported ongoing pain, particularly in his left hand, an inability to pick things up, and weakness to the right arm.  He was suffering from a heart condition before the attack and was due to have surgery for it.  The operation was brought forward because of his injuries.  He has not been able to resume wearing his dentures because of damage to his lower jaw.  He is troubled by sleeplessness, nightmares, flashbacks, and anxiety when he goes out.  It is fortunate for him and for the respondents that his injuries were not far worse.

6. These crimes involved a number of aggravating features.  They involved a cowardly attack by five men against a single victim. The victim was attacked at his home. It was an attack that was planned by some of the men, including Mr Webb.  Dangerous weapons were brought to the victim's home and used to injure him.  The attack continued after the victim had been wounded, after he had been disarmed, and when he was on the ground, defenceless and vulnerable. 

The sentences

1. On the aggravated burglary charge, Mr Webb was sentenced to 15 months' imprisonment, wholly suspended on condition that he commit no offence punishable by imprisonment for three years.  On the wounding and assault charges, he was sentenced to home detention for 18 months.  The learned sentencing judge also made a community correction order for a period of 12 months, requiring Mr Webb to submit to the supervision of a probation officer.  I note that in Mr Webb's case the learned sentencing judge imposed two sentences, not one.  In substance the DPP argued that the penalties imposed, in the aggregate, were manifestly inadequate.

2. His Honour imposed a global sentence on Mr King in relation to all three charges. It comprised a home detention order for an operational period of 15 months, and a community correction order, to operate for 18 months, which included a condition requiring him to complete 175 hours of community service.

3. I have had the advantage of reading the reasons for judgment of Estcourt J in draft form, for which I am grateful.  Those reasons include significant extracts from the sentencing comments of the learned sentencing judge, as well as summaries of the parties' contentions, which I need not repeat.

Mr Webb's personal circumstances

1. Mr Webb was 35 years old when he was sentenced.  He had a very unpleasant childhood.  He left his parents' home when he was 13, dropped out of school after completing grade 8, and started getting into trouble in his late teens. In 2003, when he was 19, he committed three assaults. The following year, for the first two assaults, a judge gave him a suspended sentence of three months' imprisonment and placed him on probation.  For the third assault, a magistrate gave him a suspended sentence of 28 days' imprisonment.  Over the next few years he was dealt with by magistrates for a large number of driving, family violence and drug offences.  He committed a fourth assault in 2006. From 2004 to 2008 he received suspended sentences on five occasions, but he did not ever go to prison. He had a long history of drug use.  At times he was using cannabis, ecstasy and amphetamines daily. 

2. Then in 2007 he started to change his life.  He had been married for a few years.  His wife had become pregnant.  He started to reduce his drug use.  At some stage in 2008 he stopped using illicit drugs altogether.  He has not used them since.  From that time on he led a responsible life, maintaining steady employment, and focussing on his family. His wife is still with him. They now have two children. He resumed his education, and completed grades 11 and 12.

3. Mr Webb has some further convictions for minor offences committed since 2008.  The most serious were a drink driving conviction in 2012, relating to a breathalyser reading of 0.059, and some firearms offences in 2017, relating to possession of an air rifle. 

4. In 2016 Mr Webb was involved in a motor vehicle accident which left him with an acquired brain injury.  He was working as a driver, and lost control of a truck in wet weather. He suffered brain damage and other injuries.  He has not been able to work since then. He and his wife reversed their roles.  She now works full-time, while he stays at home and looks after himself and the children as best he can.  He has an IQ of 61.  He is barely literate.  He now has severe memory problems.  He does not remember things that he has been told.  Prompts do not help him. He misplaces items. He loses track of what he is saying.  His physical symptoms, related to the accident, include constant neck pain radiating at times to his left arm and hand, low back pain sometimes radiating to the back of his left leg, dizziness on standing, double vision, paraesthesia affecting the left hand, sleep disturbance, fatigue, and balance disturbance. The psychological consequences of his injury include depression, anxiety, increased irritability, low frustration tolerance, and social withdrawal. He suffers from post-traumatic stress disorder as a result of the accident.

5. His wife has to assist him with daily living. She has to help him keep track of appointments using his mobile phone and a calendar.  She has to help him with cooking because he forgets basic steps like turning the oven on or turning it off.  He has problems remembering where he has parked his car, or remembering what he needs to buy at a supermarket. 

6. The learned sentencing judge received reports about Mr Webb written by a consultant neurosurgeon, a neuropsychologist, and a forensic psychologist, as well as the usual home detention assessment report.  There is no suggestion that Mr Webb's impaired mental functioning contributed to him committing the crimes for which he was sentenced.  However it is very clear from these reports that he is a man with a very serious disability as a result of his acquired brain injury. 

7. One of his brothers died whilst imprisoned at Risdon a few years ago, apparently as a result of an epileptic fit. The DPP conceded that he would find imprisonment there more onerous than an ordinary prisoner because of that association.  He also conceded that he would find imprisonment more onerous than an ordinary prisoner because he suffers from post-traumatic stress disorder. However it is clear that imprisonment would be unusually onerous for him not just for those reasons, but also because a period of imprisonment would be likely to undo a great deal of hard work that he and his wife have put in since 2016 in overcoming the consequences of his brain injury and helping him to lead a normal life.  It is clear that his post-injury rehabilitation has taken a lot of work and that removal from the home environment, where he still needs assistance for daily living, would almost certainly be devastating for him.

8. Mr Webb's home detention assessment report, written by a probation officer, contained information as to the opinions of his treating psychologist, as follows:

   "Dr Dobber advised she had been treating the accused since 30 November 2016 and stated the accused's consistent presentation is depressed and anxious. 

   The accused advised his self-identity as a father and husband is significant to him, as it has been pivotal in his recovery from his previous pro-criminal lifestyle and remains to be how he defines himself. Without it, both the accused and his wife have stated he will feel he is nothing more than his criminal and traumatic past, and risks a dire regression in his mental health. 

   Communications with Dr Dobber indicate the same, she stated 'imprisonment might involve reassociation with persons whom he has previously actively avoided in his efforts to lead a more pro-social life with his wife and children.  Mr Webb (with his wife) is trying hard to give his children a better start in life than he has had' and 'a Home Detention Order would enable continuity of psychological therapy under his Mental Health Care Plan'."

   The learned sentencing judge quoted those opinions in his sentencing comments.

9. The principles that apply when impaired mental functioning is relevant to sentencing were listed by the Victoria Court of Appeal in R v Verdins [2007] VSCA 102, 16 VR 269 at [32]. The fifth and sixth of those principles were relevant to the sentencing of Mr Webb. They read as follows:

   "5The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

   6Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment."

   In the circumstances, it was not appropriate to impose a heavy sentence on Mr Webb with a view to deterring others from offending.

10. Two other mitigating factors need to be mentioned – Mr Webb's plea of guilty and remorse.  The pleas of guilty on the day before the trial must be taken into account as a mitigating factor since they made the trial against the other accused a little shorter and less complicated, and since they involved an acknowledgement of his wrongdoing.  His counsel told the learned sentencing judge that he regarded what happened to the victim as shocking, that he accepted that something like that should not happen to anyone, and that he knew that there was no justification for what happened.  He told the probation officer who prepared his home detention assessment report that he could not remember the incident, and that that distressed him, but made it clear that he felt very sorry for the victim and understood that the attack was something that should never have happened.

Mr King's personal circumstances

1. Mr King was 37 years old when he was sentenced. He has a lot of minor prior convictions including three for drink driving offences in 2004, 2005 and 2006. He received a short suspended sentence in 2008 on his second conviction for driving whilst disqualified.  However he has never been to prison, and has only committed less serious offences since then. He was convicted on a charge of disorderly conduct in 2013. He has had full-time employment ever since leaving school. When sentenced he was in the second year of his employment as an apprentice glazier.  He lives with his parents.  He has an 18 year old stepson and a 16 year old daughter.  He reduced his alcohol consumption after 2008.  He had a drug problem in the past, but he attended fortnightly counselling sessions for 12 months and was successful in ceasing his use of illicit drugs.

2. Some common mitigating features are absent in Mr King's case. He was not a youthful offender.  He did not plead guilty.  However his prior convictions do not include any for offences involving violence.

3. He deserves a little credit for remorse, but not much. After the trial his counsel told the learned sentencing judge that he was "genuinely sorry".  He told the probation officer who prepared his home detention assessment report that he was extremely remorseful, that he was "caught up in the moment" on the day of the attack, that his actions were very wrong, and that they were something he is not proud of. He said he felt very sorry for the victim.

Home detention orders

1. Home detention orders were introduced in this State with effect from 14 December 2018, upon the commencement of the Sentencing Amendment (Phasing Out of Suspended Sentences) Act 2017. This Court has not previously had to consider contentions as to the inadequacy or excessiveness of any sentences that included home detention orders. In his reasons for judgment, Estcourt J discusses the principles relevant to the sentencing of offenders to home detention in this State, with reference to the reasons for the introduction of such orders and the case law from South Australia. Generally speaking I agree with his Honour's comments as to the relevant principles. There are some comments that I would like to add.

2. At the hearing of this appeal, questions arose as to whether a home detention order should be regarded as a heavier punishment than a suspended sentence of imprisonment, or vice versa. It was suggested that s 7 of the Sentencing Act 1997 sets out the penalties available to a sentencing court in a strict descending order of harshness. The recent amendments inserted home detention orders into that section in s 7(c). The same amendments removed the previous s 7(c), which related to community service orders. Community service can now be ordered as something additional to a home detention order, or as a condition of a community correction order: ss 8(2)(a), 42AP(1)(d). Community correction orders are now the subject of s 7(d), which used to provide for probation orders.

3. Section 7 now reads as follows:

   "A court that finds a person guilty of an offence may, in accordance with this Act and subject to any enactment relating specifically to the offence ¾

   (a)record a conviction and order that the offender serve a term of imprisonment; or

   (ab)if the court is constituted by a magistrate or is the Supreme Court or the Court of Criminal Appeal, record a conviction and make a drug treatment order under Part 3A in respect of the offender; or

   (b)record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended; or

   (c)record a conviction and make a home detention order under section 42AC in respect of the offender, if the offender has attained the age of 18 years; or

   (d)with or without recording a conviction, make a community correction order under section 42AN in respect of the offender, if the offender has attained the age of 18 years; or

   (e)with or without recording a conviction, order the offender to pay a fine; or

   (ea)in the case of a family violence offence, with or without recording a conviction, make a rehabilitation program order; or

   (eb)adjourn the proceedings, grant bail under the Bail Act 1994 and, by order, defer, in accordance with Division 1 of Part 8, sentencing the offender until a date specified in the order; or

   (f)with or without recording a conviction, adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender; or

   (g)record a conviction and order the discharge of the offender; or

   (h)without recording a conviction, order the dismissal of the charge for the offence; or

   (i)impose any other sentence or make any order, or any combination of orders, that the court is authorised to impose or make by this Act or any other enactment."

1. In some Australian States, including South Australia, the equivalent legislation provides for a two-stage process, whereby an offender is first sentenced to imprisonment, and may subsequently be permitted to serve his or her term of imprisonment on home detention.  In that context, Doyle J observed in R v Dell [2016] SASCFC 156 at [58] that "serving a term of imprisonment on home detention ... is a more onerous form of punishment than a suspended sentence of imprisonment". In the course of his comments on passing sentence in this case, the learned sentencing judge said, "Home detention is imprisonment, but is to be regarded as less onerous than being in gaol."

2. Because of the restrictions that a home detention places on the liberty of an offender, it is certainly appropriate to regard home detention as a type of imprisonment. Home detention is obviously less onerous than being in prison. However there is no easy comparison between a suspended sentence of imprisonment and a home detention order because a suspended sentence might be activated, wholly or in part, or might never be activated at all. Whether a particular suspended sentence is more onerous than a particular home detention order will depend on whether the suspended sentence is suspended wholly or in part, the length of any unsuspended component of the sentence, whether it is ever activated wholly or in part, the length of the head sentence, and the length of the operational period of the home detention order. It simply cannot be said that suspended sentences are or are not more harsh than home detention orders. However the provision for home detention orders clearly belongs where Parliament has put it, in s 7(c), below sentences of imprisonment simpliciter, below drug treatment orders, which are essentially suspended sentences with onerous requirements, and below wholly or partly suspended sentences.

3. The Sentencing Act does not permit a court to impose both a suspended sentence of imprisonment and a home detention order in respect of the same offence. Section 8(2) lists the other penalties and orders that may be imposed by a court that makes a home detention order, but that list does not mention suspended sentences. It is limited to community service orders, community correction orders, fines, rehabilitation program orders, and driving disqualifications. Further, s 42AC(1)(b) permits a court to make a home detention order only if it considers that it would otherwise have "sentenced the offender to a term of imprisonment in relation to the offence or offences, whether or not it would have ... suspended all or part of the sentence".

4. In this case of course, the learned sentencing judge sentenced Mr Webb to 18 months' home detention, as well as imposing a wholly suspended sentence of 15 months' imprisonment. He was able to do that because Mr Webb had committed more than one crime. The suspended sentence was imposed on the aggravated burglary charge. The home detention order was imposed on the other charges. That was a course that s 11(1) of the Sentencing Act permitted his Honour to take. However that was a course that should not normally be taken by a sentencer in relation to a single escapade because it is clear from s 8(2) and s 42AC(1)(b) that home detention is meant to be an alternative to a sentence of imprisonment, suspended or otherwise, rather than as a form of penalty that might be combined with a suspended sentence.

5. In considering home detention as a sentencing option, I think it is important to bear in mind that home detention is likely to be much more onerous for some offenders than it is for others.  Mr Webb's circumstances illustrate this point well.  He has a loving wife who has been with him for many years, he has two children to whom he is dedicated, and he does not manage well if he leaves the house and goes out by himself for any reason.  He is likely to find home detention much less onerous than most single men, with the exception of recluses.

6. However it must be borne in mind that by its very nature home detention is very onerous.  An offender sentenced to home detention may of course receive visitors, but he or she is not permitted to see friends or relatives anywhere but at his or her home. An offender can be checked on by the police at any hour of the day or night, and has to wear an electronic monitoring device which can be conspicuous, particularly in the summer.  An offender with a family is unable to go on family outings.  The restrictions are likely to be a continuing source of personal embarrassment, which of course is part of the punishment.

7. Under s 42AE(1)(c) of the Sentencing Act, a home detention order can include a special condition requiring the offender not to consume alcohol.  No such condition was imposed on Mr Webb or Mr King.  Mr Webb gave up drinking alcohol after his accident in 2016.  Mr King is a moderate drinker.

8. Under s 42AF(2) of the Sentencing Act, the operational period of a home detention order may not be longer than 18 months.  No legislation as to parole or sentencing remissions applies to home detention orders in this State.  At the hearing of the appeal, in answer to a question from me, Mr Coates SC, the DPP, submitted that it would not be appropriate to sentence an offender to home detention when, if that offender were to be sentenced to imprisonment, a sentence greater than 18 months would be warranted.  Counsel for the respondents did not comment on that proposition. In his reasons for judgment, Estcourt J has expressed the view that, in the circumstances of this case, a home detention order would be inappropriate if the appropriate sentence of actual imprisonment, were one to have been imposed in the case of either respondent, should have been a period in excess of 18 months.  With respect, I do not adopt that part of his reasoning. In my view any attempt to assess the appropriateness of a sentence of home detention by reference to the length of an appropriate hypothetical prison sentence for the same crimes is so problematic that the exercise should not be attempted, for a number of reasons.  There can be no arithmetical equivalence between the two forms of sentence because imprisonment is subject to the conditional availability of parole and remissions, unlike home detention orders.  Also, as I have said, the impact of a home detention order will vary from offender to offender according to their domestic circumstances.  Some judges may find it useful to contemplate what period of imprisonment would be appropriate in a particular case if the offender were considered unsuitable for a home detention order through no fault of that offender.  That can only be a factor, though perhaps sometimes an important factor, in determining whether a home detention order is appropriate, or what will be an appropriate operational period for a home detention order, or whether a home detention order was a manifestly inadequate or manifestly excessive penalty. 

Conclusion

1. As I have said, the DPP submitted to this Court that the sentencing orders in respect of each respondent were manifestly inadequate, and that the only appropriate penalty for each of them was a sentence of actual imprisonment, as distinct from a wholly suspended sentence.

2. I accept that crimes like these should ordinarily require offenders to be sent to prison.  I accept that there are crimes of violence that must be considered too serious for home detention orders to be appropriate.  I accept that the sentences imposed on these two respondents were lenient.  However the critical question, when it is asserted that a sentence is manifestly inadequate, is whether the sentence is "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505. The relevant principles are set out in the cases referred to by Estcourt J. In this case I concluded that the sentences imposed on both respondents were not manifestly inadequate, particularly having regard to the personal circumstances of each respondent and, in Mr King's case, the minor role that he played in the attack.

3. Because of Mr Webb's acquired brain injury, the likely effect of imprisonment on his post-injury rehabilitation, and the rehabilitation that he achieved in 2007 and 2008, I think it was appropriate for the learned sentencing judge to decide not to send him to prison, despite the seriousness of the crimes committed and the prominence of his role in their commission. Constructing a suitable package of sentencing orders that did not include actual imprisonment presented his Honour with a difficult sentencing task. Mr Webb was considered unsuitable for a community service order because of his physical disabilities. He was considered suitable for a home detention order but, under s 42AF(2), such orders cannot be imposed for longer than 18 months. By itself, 18 months' home detention, in my view, would not have been a sufficient penalty for such serious crimes. However his Honour combined the maximum possible period of home detention with a wholly suspended sentence of 15 months' imprisonment. That combination, in my view, adequately reflects the seriousness of Mr Webb's criminal conduct. As a sentencing package, I consider the suspended sentence, the home detention order, and the 12 month community correction order, in the aggregate, to have been lenient, but not too lenient.

4. The wholly suspended sentence of 15 months' imprisonment on the aggravated burglary charges was not manifestly inadequate.  It would have been an appropriate sentence if the criminal conduct had stopped at the moment of entry, and no violence had been inflicted.  The sentence of home detention should be evaluated bearing in the mind the totality principle, as discussed by the High Court in Mill v The Queen (1988) 166 CLR 59. Taking into account all the circumstances and that principle, I do not consider that it was manifestly inadequate.

5. In Mr King's case, it is significant that he was not just sentenced to 15 months' home detention, but also required to perform 175 hours of community service. Under s 31 of the Sentencing Act, an offender may not be ordered to perform more than 240 hours of community service.  Having regard to the limited role that Mr King played as an abettor, his good employment record, and the fact that his prior convictions were old and not very serious, I think that the penalties imposed upon him were within the range of penalties that was reasonably open to the learned sentencing judge.

6. For these reasons, I decided to join in the orders dismissing both appeals.

File Nos  CCA 3174/2019

CCA 3173/2019

DIRECTOR OF PUBLIC PROSECUTIONS v JOSHUA PHILLIP JOHN KING
DIRECTOR OF PUBLIC PROSECUTIONS v JHYE JOHN WEBB

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J

11 June 2020

1. The Crown appeals sentencing orders imposed upon the respondents which, in each case, included a home detention order.

2. The Director of Public Prosecutions' contention on appeal was that the criminal offending demanded a term of immediate imprisonment and that the sentencing orders were manifestly inadequate.  This appeal raises a question of principle regarding the nature of home detention orders as punishment, intrinsically and also comparatively with imprisonment. I have had the considerable advantage of reading the reasons of the Chief Justice and Estcourt J. In view of those reasons, there are matters I do not need to traverse, and I confine my consideration to the question of principle raised by this appeal.  The key aspects of the sentencing comments and summaries of the arguments on appeal are usefully set out by Estcourt J, and the facts of the offending and personal circumstances of the appellants are set out by the Chief Justice. I agree with the reasons of the Chief Justice in his consideration of home detention orders and in his Honour's reasoning for dismissing these appeals. They accord with my reasons for concluding that the appeals should be dismissed, together with my additional reasons set out below. I agree generally with Estcourt J but respectfully part company with him on his formulation of the dispositive question arising on this appeal.

3. The Sentencing Amendment (Phasing out of Suspended Sentences) Act 2017, introduced two new sentencing orders, home detention orders and community corrections orders, while removing probation orders and community service orders as stand-alone orders (they may now be incorporated as conditions of community corrections orders). These two new orders were recommended by the Tasmanian Sentencing Advisory Council in its report, Phasing out Suspended Sentences, Final Report No 6, March 2016.  

4. The second reading speech of the Attorney-General provided that:

   "Home detention orders may be a suitable sentencing option in a broad range of circumstances. These orders allow for the punishment of an offender through restrictions on their liberty while incorporating conditions to protect the public and aid an offender's rehabilitation."

   These comments are borne out by a consideration of the legislation.

5. The applicability of home detention orders to a broad range of circumstances is evident from the legislation. A home detention order may be imposed if the Court would have sentenced the offender to a term of imprisonment whether or not it would have suspended all or part of the sentence: s 42AC(1)(b) of the Sentencing Act 1997. The Court needs to be of the opinion that it is "appropriate" to make such an order: s 42AC(2)(a) of the Act. There are no legislative restrictions on the sort of crimes they may apply to. Orders are precluded under the circumstances in s 42AC(3)(a) or (b) if:

   (a)any one of the offences in relation to which the offender is being sentenced by the court is a family violence offence, a violent offence, or a sexual offence, and the premises at which the offender would reside during the intended operational period of the order are premises at which a victim of the offence is to, or is likely to, reside during all or part of that period; or

   (b)the court is of the opinion that there is a significant risk that the offender may commit a violent offence, or a sexual offence, during the intended operational period of the order.

   Clearly, Parliament envisaged that home detention orders may be made in some cases of violent offences or sexual offences providing that there is not a significant risk of reoffending.

6. As noted, the making of home detention orders is contingent on the court being satisfied that, were it not to make the home detention order, a term of imprisonment would be appropriate, whether immediate or suspended. But in making a home detention order, the court does not set a custodial component.

7. By comparison, under the legislation in South Australia, courts impose a sentence of imprisonment, suspend it and order that it be served on home detention (discussed in R v Dell [2016] SASCFC 156, 126 SASR 571 at [41]-[42] per Doyle J). The Tasmanian scheme of providing for home detention as a stand-alone order explains why in s 7 of the Sentencing Act, home detention orders are ranked in terms of severity after imprisonment, drug treatment orders and wholly or partly suspended imprisonment.  In the case of suspended imprisonment and drug treatment orders, a term of imprisonment is set as part of the sentence and may have to be served in the case of non-compliance.  

8. The Tasmanian statutory scheme with respect to home detention orders as stand-alone orders, follows the New Zealand regime introduced by an amendment to the sentencing legislation in 2007.  Under the New Zealand regime, home detention is only available as an alternative to imprisonment of not more than two years. In R v Iosefa [2008] NZCA 453 at [41], the sentence of home detention was described by the New Zealand Court of Appeal as providing a "real alternative to imprisonment" and as carrying with it in considerable measure, the principles of deterrence and denunciation.

9. The Tasmanian legislation stipulates that the duration of home detention orders is capped at 18 months, even if more than one home detention order is imposed. This factor may dictate whether a home detention order is an appropriate sentence. The question for a sentencing court in a particular case is whether a home detention order for a stipulated period of no more than 18 months would be an appropriate penalty for the offending.

10. I agree with the Chief Justice that there can be no arithmetical equivalence between the length of home detention and imprisonment. The learned sentencing judge was of the same view, describing it as problematic to arithmetically correlate periods of imprisonment and home detention given the substantive differences in the orders. The learned sentencing judge in the passage set out in the reasons of Estcourt J at [86], noted that lengthy sentences of imprisonment may allow eligibility to apply for parole. Home detention must be served in full but, on the other hand, is less onerous than imprisonment.  Significantly, the legislative scheme allows the court to make a home detention order if imprisonment, immediate or suspended, wholly or in part, would otherwise have been imposed, but does not fix a maximum period for this hypothetical term of imprisonment. Rather, Parliament has only dictated a ceiling for the operational period of home detention orders. As Blow CJ has said at [34], while it may be useful to contemplate what period of imprisonment would be appropriate in a particular case, that can only be a factor, though sometimes an important factor, in determining whether a home detention order is appropriate.

11. The relative severity of a penal sanction can be assessed by reference to the extent to which it impacts on an offender's rights and interests, particularly fundamental rights such as freedom of movement and privacy: Boulton v The Queen [2014] VSCA 341, 46 VR 308, 248 A Crim R 153 at [90].

12. Home detention has obvious punitive aspects. The core conditions which are attached to all home detention orders materially encroach on an offender's ordinary liberty and freedom of movement.  Some of the conditions are also intrusive and affect an offender's privacy. 

13. The core conditions include:

    · The offender must be at the home detention premises during the times, and days of the week specified in the order, except for a prescribed reason (urgent medical treatment or serious risk of death or injury) or a reason approved by a probation officer in s 42AD(4) (such as employment or education).

    ·     The offender must permit a police officer or probation officer to enter their home to conduct  a search of the premises, conduct a frisk search of the offender at the premises or take a sample found at the premises or on the offender. 

    ·     The offender must comply with any reasonable and lawful directions of a probation officer or prescribed officer.

    ·     Must submit to electronic monitoring including by wearing a device unless the court determines that there are suitable reasons not to require monitoring.

    ·     Must submit to a breath test, urine test, or other test for the presence of an illicit drug.

    ·     Must engage in a personal development activity, counselling or treatment if directed by a probation officer.

14. The Sentencing Act provides for special conditions the court may impose: that the offender must appear at court as specified in the order (providing supervision by the court), must take medication as required by a psychiatrist or a medical practitioner, that the offender must not consume alcohol, and any condition the court considers appropriate for the purpose of reducing the likelihood of the offender reoffending. For this purpose, the court could make a wide range of orders such as prohibiting an offender from having any contact with a particular person.  Clearly, the home detention order may be fashioned to the offender's particular circumstances. Some of the special conditions may add to the punitive burden of the order.

1. Further, a contravention of a core condition or special condition may result in an application for breach, and the court may vary the order, confirm the order or cancel the order and deal with the offender in any manner in which the court could deal with the offender had the court just found the offender guilty: s 42AI.  If the offender commits an offence during the operational period of the order the court has power to vary or cancel the order and re-sentence the offender.  However, if the new offence is punishable by imprisonment, and most offences are, the court must cancel and re-sentence the offender unless there are exceptional circumstances: s 42AJ(5) and (6). Essentially, if the offender commits a new offence while subject to home detention, it is most likely the order will be cancelled and the offender re-sentenced with the prospect of a term of immediate imprisonment.

2. The punitive impact of a home detention order and the extent to which it curtails the behaviour and lifestyle of an offender will vary depending on the offender's particular circumstances. If the offender is in employment, or is permitted to leave his or her home for an approved purpose, it allows scope for mobility and community interaction, and ameliorates the burden of home detention: R v Filipponi [2016] SASCFC 148, 126 SASR 464 at [31]. The sentence of home detention will also impact differentially on offenders depending on their economic circumstances and home environment.

3. By contrast to the experience of the prison environment, there is little comparison with the freedom an offender is able to enjoy within their own home: R v Lean [2017] SASCFC 101, 128 SASR 451 at [65]; R vJurisic (1998) 45 NSWLR 208 at 248-249 per Sully J.

4. While home detention involves a substantial burden and material deprivation of liberty, it is qualitatively different, and significantly so, to immediate imprisonment: Lean at [54] per Hinton J. Home detention is a substantially less onerous sentence: Jurisic at 215.

5. In Boulton, five judges of the Victorian Court of Appeal provided a guideline judgment for sentencing courts on community correction orders. The Court said of imprisonment:

   "[104]  Imprisonment is uniquely punitive because of that feature which distinguishes it from all other forms of sanction, namely, the complete loss of liberty. But imprisonment has a number of other punitive features, apart from the loss of physical freedom.

   [105]    There is the loss of personal autonomy and of privacy, and the associated loss of control over choice of activities and choice of associates. The prisoner is subject to strict discipline, restriction of movement, forced association with other prisoners and — for a substantial part of each day — confinement in a small cell (in many instances, a cell shared with a cellmate not of the prisoner's choosing). There is, moreover, exposure to the risks associated with the confinement of large numbers of people in a small space — violence, bullying, intimidation."

6. Imprisonment is severe punishment (Powerv The Queen (1974) 131 CLR 623 at 627) and should be the last available punitive resort in any civilised system of criminal justice (Mainwaring v The Queen [2009] NSWCCA 207 at [71]). It is a fundamental principle of sentencing that a custodial sentence is a punishment of last resort and should not be imposed unless it is "necessary", and when no other punishment is appropriate: Underwood v Schiwy [1989] Tas R 269 per Nettlefold J; James v Turner [2006] TASSC 54, 15 Tas R 375 at [6] per Evans J; Parker v Director v of Public Prosecutions Public Prosecutions (1992) 28 NSWLR 282 at 296.

7. The harm to the offender and the community associated with imprisonment, and the loss of liberty, provide reasons why imprisonment is considered a penalty of last resort: Lean at [58] per Hinton J.

8. The disadvantages and cost to the individual and the community associated with imprisonment were referred to in Boulton:

   "[107]  Importantly for present purposes, these features of the restrictive prison environment also have the consequence that the opportunities, and incentives, for rehabilitation are very limited. For example, there is no access to sustained treatment for psychological problems or addiction. Access to anger management and sex offender treatment programs is rationed, and such programs are often unavailable to those sentenced to short prison terms.

   [108]    In addition, imprisonment is often seriously detrimental for the prisoner, and hence for the community. The regimented institutional setting induces habits of dependency, which lead over time to institutionalisation and to behaviours which render the prisoner unfit for life in the outside world. Worse still, the forced cohabitation of convicted criminals operates as a catalyst for renewed criminal activity upon release. Self-evidently, such consequences are greatly to the community's disadvantage."

9. Home detention orders provide the option of a sentence which is both punitive and also promotes rehabilitation and enables the offender to maintain the continuity of personal, employment and family relationships. It avoids the harm of incarceration and promotes the best interests of the community and the offender.

10. It is reasonable to expect that home detention will have efficacy as a general deterrent. Home detention is a tangible sentence with consequences that are visible, especially if the detail of the conditions are known, such as electronic monitoring. Home detention is likely to be perceived by the community as a real punishment although, correctly, seen as significantly less punitive than imprisonment. The Sentencing Advisory Council in its Phasing out Suspended Sentences, Final Report No 6, March 2016 at 62-68 noted that home detention does have appropriate deterrent effect and is not a "soft" option.

11. The determination of what in the way of penalty is necessary to achieve the purposes of punishment is, in part, a function of the sentencing options that are available to a court.  The expansion of sentencing options will involve "a degree of recalibration of sentencing approach": Lean at [59] per Hinton J. See also, Boulton at [113]. Not only will there be cases which previously would have attracted a suspended sentence but which will now attract a home detention order, there will be cases that would have previously been dealt with in a more punitive fashion by the imposition of immediate imprisonment that will now be dealt with by home detention orders, perhaps coupled with other orders such as community correction orders. Indeed, this is the point of these new orders for "appropriate" cases: s 42AC(1)(b), (2)(a).

12. However, some offending is so serious as to require that the offender be imprisoned. This question will be decided by sentencing judges or magistrates on a case by case basis. The seriousness and culpability of the offending in a particular case may demand a term of imprisonment. Sentencing goals such as need for adequate punishment, community protection, general deterrence, and denunciation may not be met in a particular case by a home detention order. This is well recognised by the courts in jurisdictions where home detention orders are available: R v Rudd [2015] NTCCA 3, 34 NTLR 131 at [45]; Dell at [57]-[58] per Doyle J; Filipponi at [37]–[38]; Jurisic at 215 per Spigelman CJ. So, while home detention orders carry a considerable measure of deterrence and denunciation, the seriousness of the particular crime may have reached a level that only imprisonment can be effective as a deterrent and in achieving other sentencing goals.

13. A home detention order was only one of the sentencing orders imposed on the respondents. The respondent, Mr King, was sentenced to a global sentencing order on the three crimes of aggravated burglary, wounding and assault. A home detention order of 15 months and a community correction order for 18 months incorporating a condition that he perform 175 hours of unpaid community work was imposed.

14. Mr Webb was sentenced on the count of aggravated burglary to a term of 15 months' imprisonment wholly suspended on condition he not commit an offence punishable by imprisonment for a period of three years. On the counts of wounding and assault, he was sentenced to a home detention order for the maximum period of 18 months and a community correction order for 12 months, incorporating supervision by a probation officer and a condition that he submit to medical, psychological or psychiatric assessment or treatment. 

15. Both defendants received a community correction order. These orders fulfil a number of sentencing objectives, including deterrence and rehabilitation, and impose significant burdens on the offender: DPP v Edwards [2012] VSCA 293, 44 VR 114 at [123] and [242]; Boulton at [85]-[98], (noting the Victorian legislative scheme in relation to community corrections orders is broadly similar to the Tasmanian scheme). These orders are intended to be onerous for offenders while allowing the court to have the flexibility to tailor the sentence to address the offender's rehabilitative needs. Mr King's order was particularly onerous because it incorporated a community service order. Mr Webb was assessed for community service but was unsuitable, not due to any fault on his part but due to his physical and psychological injuries.

16. Mr Webb received a suspended sentence which added a more significant punishment to his sentence. It pronounced the Court's denunciation and highlighted that it was criminal conduct which required imprisonment. The learned sentencing judge was mindful of, and drew attention to, the fact that a wholly or partly suspended sentence had been the penultimate sentence in the hierarchy of sentencing orders in s 7 of the Sentencing Act, until 2017 when drug treatment orders were added.  The order fixed the maximum period of suspension of three years and thus, the maximum period of time that a defendant could be in jeopardy of an immediate sentence of imprisonment. All in all, the combination of orders created a loaded, multi-faceted sentence which made it perfectly plain to Mr Webb and the community that his criminal conduct was very serious and the sentence was as close as it could be without imposing an immediate term of imprisonment.

17. The Sentencing Act makes provision for combined sentencing orders in relation to a single offence but is not prescriptive in the case of more than one offence being dealt with at the same time.  A court that imposes a home detention order in relation to an offence may also, for the same offence, impose a community correction order and other penalties but not a suspended sentence: s 8(2). A court that imposes a term of imprisonment may impose a community correction order but not a home detention order: s 8(1). A home detention order is intended to be an alternative to immediate or a wholly or partly suspended terms of imprisonment. However, I want to make it clear that I do not suggest that a home detention order combined with a suspended sentence should not have been imposed here across multiple counts. Mr Webb's case is an exceptional case and called for an exceptional order. It was fashioned to be as punitive as it could be without imposing imprisonment. I can think of other examples where a court may impose two sentencing orders, which present a similar tension in their purpose, but which, in a particular case, may achieve a just outcome. One example is where a court imposes an immediate term of imprisonment on one offence but a wholly suspended sentence on another. Ultimately, the wider the range of sentencing orders and the more flexibility in fashioning sentencing orders to achieve the objectives of sentencing, the greater the scope for producing a just sentence in an individual case. In this case, the capacity to combine sentences across different offences allowed that scope. 

18. Generally speaking, crimes of this kind involving a home invasion by a number of men who use weapons to inflict violence demand an immediate custodial sentence.  The criminal offending in this case was very serious, as described by the learned sentencing judge.  However, it was not at a level of gravity in terms of violence and harm that an immediate term of imprisonment was the only just sentence, regardless of the individual offender and their circumstances.  In the case of both respondents there were factors, identified in the reasons of the Chief Justice, that warranted an exceptional course, including Mr Webb's compelling personal circumstances, and in the case of Mr King, his limited and passive role in the commission of these crimes. The sentence imposed upon each of the respondents was not manifestly inadequate taking into account these factors, the combination of orders that were made and the nature of those orders as discussed. 

Serial No 8/2020

File Nos  3173/2019              3174/2019

DIRECTOR OF PUBLIC PROSECUTIONS v JOSHUA PHILLIP JOHN KING
DIRECTOR OF PUBLIC PROSECUTIONS v JHYE JOHN WEBB

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

ESTCOURT J

11 June 2020

The appeals and the background

1. These are two Crown appeals against sentence on the single ground of alleged manifest inadequacy.

2. The principles relevant to Crown appeals were adumbrated recently by Pearce J in Director of Public Prosecutions v Fletcher-Jones [2019] TASCCA 18 at [4]. Their application was recently considered in Director of Public Prosecutions v J S P [2020] TASCCA 3.

3. The principles relevant to appeals against manifest excess or inadequacy were also set out by Pearce J in Director of Public Prosecutions v Swan [2016] TASCCA 9, 26 Tas R 32 at [10]. The role played by specific errors alleged in conjunction with a claim of manifest excess was explained by his Honour in Mulholland v Tasmania [2017] TASCCA 2, 25 Tas R 313 at [17].

4. The respondents were jointly indicted with a third man, Jordyn Jack Webb, who is the brother of the respondent Jhye Webb. All were charged with aggravated burglary, wounding and assault. On 2 September 2019, one day before his trial was due to commence, the respondent Jhye Webb pleaded guilty to all charges. The trial then proceeded, with a jury finding the respondent King guilty of all charges and finding Jordyn Webb not guilty.

5. The learned sentencing judge, Porter AJ, set out the facts of the crimes in his comments on passing sentence, in considerable detail. They are helpfully summarised by the Director of Public Prosecutions, Mr Coates SC, in his written submissions.

6. On 2 April 2017, the respondent Webb discovered his sister had been indecently assaulted. He was subsequently informed that the complainant was the offender. Shortly after this the two respondents and three other men agreed to forcibly enter the complainant's home and assault him. The respondent Webb took a tomahawk, and another person took a metal object described as a hand mattock. The respondent Webb kicked the complainant's door several times until the complainant opened it. The complainant was struck on the left arm by the tomahawk and on the right arm by the hand mattock. He was punched, thrown to the ground, and kicked a number of times by everyone except the respondent King, and one of the offenders stomped on the complainant's head.

7. The physical injuries to the complainant included wounds to the palm of his left hand and right forearm which was fractured in the attack. In addition, he suffered bruising to his left thigh, to his head and back and a graze on his forehead. At the time of the infliction of these injuries the complainant defecated. He also lost his dentures, and was subsequently unable to wear his lower set due to the damage to his jaw. He has other residual deficits from these injuries and suffered difficulties with sleeping due to pain and discomfort. He also suffered from nightmares and flashbacks.

8. The respondent Webb was sentenced on the basis that he was the "leader of the group" and "played a pivotal role in the attack." He was personally responsible for the infliction of one of the wounds with the tomahawk and also punched, pushed and kicked the complainant. For the crime of aggravated burglary he was sentenced to 15 months' imprisonment, the execution of which was suspended for a period of three years. On the wounding and assault charges, he was sentenced to home detention with electronic monitoring, for the maximum period of 18 months. The learned sentencing judge also made a community corrections order for a period of 12 months. In addition to the statutory core conditions, his Honour made a special condition requiring the respondent to submit to the supervision of a probation officer as required by the probation officer, and submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.

9. The respondent King was sentenced on the basis that he "abetted the crimes as charged by being present, intending to encourage, and in fact encouraged by kicking the door and being present". He was sentenced to a period of 15 months of home detention with electronic monitoring. The learned sentencing judge also made a community corrections order for a period of 18 months. In addition to the core conditions his Honour made a special condition requiring the respondent to complete 175 hours of community service.

The comments on passing sentence

1. The learned sentencing judge noted in his comments on passing sentence that the difference in the degree of culpability on the part of each of the respondents, and their respective records of offending, justified differentiating between the two.

2. The respondent Webb, who was aged 35 at the date he was sentenced, had prior convictions for violence for which he had received short sentences of suspended imprisonment. They were not recent. The respondent King, who was aged 37 at the time he was sentenced, had no recorded history for crimes of violence, but he was described by the learned sentencing judge as having "an unenviable record of driving offences including negligent driving and drink driving" and a conviction for disorderly conduct in March 2013, which his Honour considered of "some, but no great significance."

3. There were also physical and mental health issues which distinguished the respondent Webb from the respondent King, such that in Webb's case there was justification for an individualised approach. In King's case his employment raises considerations confined to him. None of this is the subject of complaint by the appellant, save that the point is made that in King's case his ability to continue attending his employment lessens the impact of punishment by home detention and the public perception of it.

4. The learned sentencing judge was obviously very well aware of the nature of the sentences he imposed. He said:

   "These are very serious crimes. These men were involved in an orchestrated attack on Mr Tucker. Two of the group were armed. They subjected Mr Tucker to a terrifying attack. The violence was significant. Fortunately, he has substantially recovered, but will continue to suffer. This was an episode of 'vigilante justice' and is to be condemned. The community does not tolerate people taking the law into their own hands to address, by means of criminal violence, perceived wrongdoing. That is so irrespective of the circumstances. The Court does not engage in any determination of the wrongdoing of the victims. I have set out the personal circumstances of both men. Mr Webb pleaded guilty but that came at a very late stage and is of no great value, although I note his remarks about what he did. Mr King has expressed extreme remorse. He is not to incur greater penalty because he pleaded not guilty, but his remorse has to be put alongside the fact that he hoped to be able to completely avoid responsibility by putting the Crown to proof that he was present with the requisite state of mind. Home detention was urged on me by counsel for both defendants, and each defendant has been assessed as suitable. Particularly in light of the Crown's opposition to that sanction being adopted in this case, I will say something about such orders."

1. The learned sentencing judge then noted that the Sentencing Act 1997 allows a court to make a home detention order where it considers that, were it not to make the order, it would impose a term of imprisonment, whether immediate or suspended. He observed that the only restraint was the rather self-evident one, that a court must not make an order unless it considers it appropriate. He then said:

   "Home detention is imprisonment, but is to be regarded as less onerous than being in gaol. However, Parliament has imposed a maximum period of 18 months for a home detention order, or combination of orders existing at any one time. That may be a broad indication of the length of a sentence of imprisonment for which a home detention order might properly be an alternative. Clearly home detention orders would be inappropriate for crimes at the more serious end of the scale. However, an attempt to arithmetically correlate periods of imprisonment and home detention is problematic. For instance, many lengthy periods of imprisonment are made subject to parole eligibility which mostly eventuates, although not guaranteed. Parole comes with some restrictions, but generally speaking there is no real impediment to the free movement of the person. That may be contrasted with the home detention order for the whole of the period of which the person is not free to move beyond their home save in limited circumstances. In any event, the Sentencing Advisory Council in its Phasing out Suspended Sentences, Final Report March 2016 at pp 62-68, noted that home detention does have appropriate deterrent effect and satisfies multiple sentencing objectives; it is not a 'soft option'." [Emphasis added.]

The appellant's submissions

1. The appellant accepts that it is recognised that care must be taken when considering statistical data for crimes in sentencing, and that doing so is of limited utility, particularly when considering sentences for the crimes in combination. However "to the extent that these statistics might assist in identifying applicable unifying principles", the Director of Public Prosecutions, Mr Coates, set out, in his written submissions, as to each of the subject crimes, data sourced from the Sentencing Advisory Council of Tasmania statistics database.

2. From that data, it can be seen that between 2001 and 2014, for a single count of aggravated burglary the minimum sentence was 1 month and the maximum 12. Sentences of imprisonment were imposed in 56.3% of cases. For multiple counts during the same period, of which at least one was aggravated burglary, out of 288 cases the minimum was 1.2 months, the maximum was 84 months and the average was 18.4 months. Custodial sentences were imposed in 67.4% of cases.

3. Between 2001 and 2014, for a single count of wounding, the minimum sentence was 2 months and the maximum was 60 months. Sentences of imprisonment were imposed in 48.9% of cases. For multiple counts during the same period, of which at least one was wounding, out of 59 cases, the minimum sentence was 4 months, the maximum was 42 months and the average was 14.7 months. Custodial sentences were imposed in 72.9% of cases.

4. Between 2001 and 2014 for a single count of assault the minimum sentence was 0.13 months and the maximum 24. Sentences of imprisonment were imposed in 48.8% of cases. For multiple counts during the same period, of which at least one was assault, out of 252 cases the minimum sentence was 2 months, the maximum was 42 months and the average was 14.3 months. Custodial sentences were imposed in 62.7% of cases.

5. The appellant also supplied to the Court a table of sentences for "home invasions". That is, crimes of aggravated burglary and wounding and/or assault. The table is annexed to these reasons. As can be seen, of the 10 sentences set out in the table - three were above 18 months and four over 15 months. The longest was 2 years and 9 months, the next longest was 2 years and 5 months and the last, 2 years imprisonment. A sentence of 18 months was a partially suspended sentence (9 months). The range of the other six was between 7 months and 12 months.

6. The appellant submits that the attack on the complainant was an extremely serious example of vigilante justice that called for condign punishment in order to properly denounce the conduct and generally to deter others in the community from such behaviour. The appellant argues that despite the comments on passing sentence referred to above, the learned sentencing judge failed to have sufficient regard for the criminality of the conduct, notably the serious injuries caused to the victim in his home by these men, in part through the use of dangerous weapons and motivated by revenge for a perceived wrongdoing.

7. The appellant submits that consequently the sentences for both men needed to, but did not, give consideration to all of the objectives of punishment, including those of denunciation, vindication of the complainant, retribution and general deterrence. The weight required to be attached to those considerations made orders for home detention, even in combination with other sentencing orders, inappropriate in all the circumstances of the case. In particular, as to the respondent King, it was submitted his continued ability to engage in employment meant that for him any burden of home detention was substantially ameliorated.

8. The submission continues, that the gravity of the conduct was such that "the broader sentencing objectives" foreclosed the exercise of a discretion to impose home detention, even in combination with a suspended sentence and a community corrections order with community service hours. It is submitted that the conduct demanded a punitive response of no less than an immediate term of actual imprisonment. Consequently, the appellant asserts that the sentences imposed on both respondents fell so far below that which was appropriate in all the circumstances as to undermine the administration of justice.

9. The submission concludes that the sentences imposed on both respondents manifestly failed to meet the relevant fundamental sentencing objectives, and it is necessary that this Court correct the error in order to ensure that public confidence in the administration of justice is maintained. 

The respondent Webb's submissions

1. The respondent Webb's counsel, Ms Taglieri SC, points out in her written submissions that the appellant seems to rely heavily on this Court's decision in R v Meers, Simon James and Moles, Leigh John[1998] TASSC 32, 101 A Crim R 329, because of what it describes as "not too dissimilar factual circumstances" is somewhat misplaced because at the time of that decision, Tasmanian sentencing laws were considerably different with home detention not available as an option. Moreover, the offenders in that case were not suffering any physical or mental illness.

2. Counsel submits, as to the quality of the sentence of home detention:

   "1It is true that home detention appears in sub-paragraph (c) of section 7 of the Sentencing Act, but this conveys nothing about the hierarchy of the severity of the orders. Instead, the hierarchy of severity of the order of home detention is correctly informed by:

   a)    Judicial statements about this topic;

   b)   The learned statements of sentencing experts who contributed to the Sentencing Advisory Council's final report;

   c)    The fact that wholly or partially suspended sentences give an offender immediate freedom;

   d)   Parliamentary and community views of suspended sentences; and

   e)    The fact that the amendments enacted by Sentencing Amendment Act No. 51 of 2017, are only part of course of sentencing reforms being phased in and out of the Sentencing Act. Until the final phase of the reforms are enacted, it is dangerous and erroneous to place any significance on what sentencing option appears in a particular paragraph."

3. As to the need for an individualised approach to the sentencing of the respondent Webb, counsel submits that given that all of the expert evidence before the learned sentencing judge demonstrated prospects of rehabilitation, the need for intensive management of his health conditions and the out of character nature of the offending given his reformed character since 2008, Webb "was not a person to be made an example of to the public."

The respondent King's submissions

1. Counsel for the respondent King, Mr Stevens, submits that the conditions of the home detention order are far more restrictive and intrusive than those of a suspended sentence and points out that the consequences of breaching the home detention order can, and it is submitted would most likely, result in the imposition of a term of imprisonment.

2. He submits that, although the maximum period for the operation of a home detention order is limited to 18 months, an order for 15 months is a significant punishment, particularly when there is no application of the remission or parole provisions.

3. He points out that in addition, the respondent King was sentenced to 175 hours of community service and that the conditions of that order impose further restrictions upon him and impose an immediate punishment to be completed.  He submits that given the number of hours imposed, that alone, addresses the need for punishment and general deterrence.

4. Counsel for the respondent, King, submits that the learned sentencing judge took into account all relevant aggravating features and was alive to the relevant sentencing principles.

5. He submits that, as with most crimes, there is no discernible range of sentences and, in the event that some guidance can be distilled from past sentences imposed for similar matters, the sentence imposed is consistent with previous sentences.

Discussion

1. Home detention became available as a sentencing option in Tasmania on 14 December 2018, with the commencement of the Sentencing Amendment (Phasing Out Of Suspended Sentences) Act 2017. As a result, s 42AC(1) of the Sentencing Act now provides:

   "42AC  Home detention orders

   (1)A court may make a home detention order in relation to an offender if the court–

   (a)convicts the offender of an offence or offences; and

   (b)considers that, were it not to make a home detention order, it would have sentenced the offender to a term of imprisonment in relation to the offence or offences, whether or not it would have, or could have, but for the operation of section 23A , suspended all or part of the sentence.

   (2)       A court may only make a home detention order in relation to an offender if –

   (a)it is of the opinion that, in all the circumstances, it is appropriate to make the order; and

   (b)it has considered a pre-sentence report as to whether the offender is suitable for a home detention order; and

   (c)the offender consents to the order being made; and

   (d)the offender is to reside, during the operational period of the order, at premises in relation to which the court is satisfied it is suitable for a home detention order to be made; and

   (e)each person who has attained the age of 18 years and who resides at the premises (other than group premises) at which the offender is to reside during the operational period of the order has consented to a home detention order being made in relation to the offender; and

   (f)the relevant circumstances do not exist in relation to the offender.

   (3)For the purposes of subsection(2)(f) , the relevant circumstances exist in relation to an offender if –

   (a)any one of the offences in relation to which the offender is being sentenced by the court is a family violence offence, a violent offence or a sexual offence and the premises at which the offender would reside during the intended operational period of the order are premises at which a victim of the offence is to, or is likely to, reside during all or part of that period; or

   (b)the court is of the opinion that there is a significant risk that the offender may commit a violent offence, or a sexual offence, during the intended operational period of the order.

   (4)       A court may make–

   (a)more than one home detention order in relation to an offender, except in relation to the same offence; and

   (b)a home detention order in relation to an offender who is already subject to a home detention order; and

   (c)a home detention order in relation to an offender who is, or is to be, subject to a community correction order; and

   (d)a home detention order in relation to an offender who is subject to a community service order or a probation order.

   (5)A home detention order in relation to an offender must specify the premises (the home detention premises) that are to be the premises at which the offender must, in accordance with section 42AD(1)(b) , reside during the operational period of the order."

2. Legislative action to phase out suspended sentences as a sentencing option in Tasmania commenced following the publication in August 2015 of the Sentencing Advisory Council's Background Paper Phasing out of Suspended Sentences. That paper reviewed the purpose and operation of suspended sentences in Tasmania. At page 12 of the paper the Council noted that one of the criticisms of suspended sentences was that "they do not amount to a 'real' punishment and are viewed by the public and offenders as a 'let-off'."

3. The paper states at pages 71-72:

   "7.3.8 THE COUNCIL'S RECOMMENDATIONS

   Based on its research and the submissions received, the Council's view remains that home detention should be introduced as a sentencing option in Tasmania. Home detention is an effective sentencing option in other jurisdictions with high completion rates and relatively low recidivism rates. It is able to address multiple aims of sentencing and provides an onerous sentencing order that both punishes an offender, deters the offender and others from committing offences, and assists in addressing the offender's rehabilitative needs. It allows the offender to maintain family and community connections and remain in employment. Conditions attached to the order also provide community protection by the supervision requirement and the restrictions placed on the movement and activities of the offender. It is important to note that the sentencing option recommended by the Council is intended to operate as a replacement for a suspended sentence in relation to a cohort of offenders who, typically, are currently unsupervised in the community for the period during which the sentence is suspended. In this way, the purpose of the proposed sentencing order in Tasmania has close similarity with the legislative intent of the New Zealand model of home detention that was established with a view to addressing concerns about increasing prisoner numbers following the abolition of suspended sentences.

   Nature of sanction

   Analysis of the use of home detention and the types of cases where home detention is imposed by courts in Australia and New Zealand reveals that if the sentencing option is introduced in Tasmania as a credible and useful alternative to a FSS [fully suspended sentence], few (if any) restrictions should be placed on the imposition of the order and that the sentence should not be dependent on the court imposing a term of imprisonment (as with New Zealand). It is the Council's view that home detention should not be a substitutional sanction and should be a sanction in its own right. This is intended to remove the disquiet felt by the judiciary in conceptualising home detention as an equivalent of imprisonment, contributing to a reluctance to use the sanction. As indicated at [7.1], this also removes the fiction that an offender is sentenced to imprisonment and will increase the transparency of the order and may improve public confidence in the sentencing process. There was no opposition in the submissions to this approach, which was expressly supported in the submissions of the Law Society and the Synod.

   In the Tasmanian context, home detention would not be a replacement for a sentence of imprisonment but for offenders who currently receive suspended sentences and who live in the community following sentence. For these offenders, home detention is likely to be a more onerous sanction, as offenders who receive home detention do not 'walk free' but are subject to considerable restriction in the community. Accordingly, a home detention order would be suitable for more serious cases where a FSS is currently imposed given that it is considerably more onerous than an unconditional FSS. As a protection against net widening, the Council's view is that (as with the approach in s 15A(1) of the Sentencing Act 2002 (NZ)), there should be a legislative direction that a home detention order is only permitted in circumstances where the court would otherwise have imposed a sentence of imprisonment and only where a less onerous or restrictive sanction would not satisfy the purposes for which the sentence is being imposed. The Council's view is that it should also be made clear that the order is appropriate where a suspended sentence would previously been imposed. As discussed, the Law Society noted that this recommendation would require a change in the current approach to Dinsdale. Although not specifically explained in its submission, it would appear that this is on the basis that Dinsdale dictates that a court must engage in a two-step reasoning process in imposing a suspended sentence: (1) the decision to impose a sentence of imprisonment and (2) the decision to suspend the operation of the term of imprisonment. In contrast, home detention (according to the Council's recommendation) is not a substituted sanction of imprisonment, but a sanction in its own right. However, the Council does not consider that this should cause undue difficulty, given that the proposed sentencing reforms represent a change to the current sentencing hierarchy and sentencing practice, and the recommendation serves the purpose of clarifying that the home detention order is intended to operate as a replacement for suspended sentences (as has been done in Victoria in relation to the CCO). Further, as noted elsewhere, courts have not always strictly applied the Dinsdale approach and the evidence suggests that some sentencers use a suspended sentence as a form of intermediate sanction. The Council's view remains that there should be a clear statement directed to limiting net-widening in order to ensure that home detention is only used in more serious cases where suspended sentences were previously imposed."

4. When the Sentencing Amendment (Phasing Out Of Suspended Sentences) Act was introduced into the House of Assembly, the Attorney-General said:

   "Home detention orders may be a suitable sentencing option in a broad range of circumstances. These orders allow for the punishment of an offender through restrictions on their liberty, while incorporating conditions to protect the public and aid an offender's rehabilitation."

5. The provisions of that Act abolishing suspended sentences in a wide range of cases have not as yet commenced, so that the reference in s 42AC(1)(b) of the Sentencing Act to s 23A may be ignored at the present time. The result is that suspended sentences remain a sentencing option in a full range of cases, unless otherwise precluded by legislation and, so too, home detention orders are available in a full range of cases, unless similarly precluded.

6. The relevant, mandatory limitations on home detention orders are that an order must not be made unless the Court considers such an order to be "appropriate", the operational period of the order must not exceed 18 months and, were it not to make a home detention order, the court would have sentenced the offender to a term of imprisonment, whether or not it would have suspended all or part of the sentence.

7. An obvious common feature between a wholly suspended sentence and a home detention order is that were the court not to make one of those orders it would have imposed a sentence of imprisonment. However, while it may have been intended that home detention orders replace wholly suspended sentences they are quite different sentencing modalities. Whilst there are clear common considerations, not every judicial pronouncement as to suspended sentences translates precisely to home detention orders. Nor, to my mind is the community's perception of, and attitude towards, home detention, necessarily the same as they may be towards a wholly suspended sentence.

1. In Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, 20 Tas R 399, Evans J, with whom Porter and Wood JJ agreed, examined the authorities on the appropriate use of suspended sentences, and added to the jurisprudence on the subject at [8]-[12]:

   "[8]     Although the following passage from the decision of Walters J in Wood v Samuels (1974) 8 SASR 465, relates to the sentencing legislation in South Australia, it is also applicable in this jurisdiction. At 468 – 469, his Honour said:

   'Admittedly there are no comprehensive specific criteria which tell a court when a case is one fit for a suspended sentence.  But the perceived seriousness and the intrinsic character of the particular offence, and any element of persistence, can serve as important restraints on the choice of a suspended sentence. On the other hand, the likelihood that further criminal behaviour cannot reasonably be assumed is a matter which may well bring the offender within the scheme of the legislative policy which enables the rigours of a custodial sentence to be avoided … [T]he considerations governing the choice between a custodial sentence and a suspended sentence cannot be identified by any constant ratio.  The factors to be taken into account must invariably be different in the particular circumstances of each particular case.'

   [9]When addressing considerations such as general deterrence, punishment or denunciation, it is important to keep in mind that there is a marked divergence between the views of the judiciary and the community in relation to the impact of suspended sentences.  The judiciary's view reflects that of Bray CJ in Elliott v Harris (No 2) (1976) 13 SASR 516 at 527, where his Honour addressed a comment made by a magistrate who had said 'I agree with the view currently prevailing in England that a suspended sentence is really no punishment at all'. Bray CJ said of the comment that:

   'It reveals an entirely mistaken and wrong-headed approach to the question of suspended sentences. So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.'

   [10]For my part, I substantially agree with the following observation made in the Tasmanian Law Reform Institute's Final Report No 11 of 2008 titled 'Sentencing', at par 3.3.6:

   'Suspended sentences are viewed very differently by the legal system and by the general public. From the legal point of view they are the penultimate penalty. In the list of sentencing options in the Sentencing Act 1997 (Tas), they follow a sentence of imprisonment. Moreover, they are a "substitutional sentence". In other words, before a suspended sentence can be passed the court must be satisfied that a sentence of imprisonment and not some lesser sentence is appropriate. … However, the public perception of a suspended sentence is entirely different. When a suspended sentence is imposed, the offender "walks free". The consequences of a suspended sentence appear less than a community service order, a fine or a probation order. Far from being the penultimate sanction, in the public view, it ranks as less severe than probation or a small fine.'

   [11]Whilst suspended sentences are a most valuable sentencing option (the Law Reform Institute recommended their retention), their utility is constrained in circumstances which require that the sentencer pays particular attention to considerations such as general deterrence, punishment or denunciation, as the degree to which a sentence addresses these considerations depends largely upon the community's attitude to it. 

   [12]In Latham (2001) 117 A Crim R 74, Parker J, agreed with by Wallwork and McKechnie JJ, at 82 dealt with a submission that in that case a suspended term of imprisonment would have served the needs of deterrence. After observing that a suspended term of imprisonment was the second most serious sentencing option available to the court in Western Australia, his Honour said that:

   '[31] … the effect of such a sentence is the immediate release of the offender into the community without supervision or restriction and, unless the offender commits a further offence, [breaches a condition of the suspension of the sentence in Tasmania,] … during the suspension period, the offender is discharged entirely from the sentence at the end of the suspension period … In most cases a suspended sentence involves neither custodial nor coercive consequences.

   [32]It is understandable, therefore, that the community's perception and the reality of this sentencing option is quite different from that of a sentence of a term of imprisonment to be served immediately...

   [33]A suspended sentence remains, nevertheless, a valuable sentencing option in some cases and, although there are no confined or restricted circumstances in which the option is available and the full range of sentencing considerations are relevant to its appropriateness or inappropriateness in a particular case, it remains a sentence more often likely to commend itself as appropriate where considerations justifying special leniency or the special encouragement of rehabilitation are strong.

   [34]While it should not generally be concluded that the imposition of a suspended term of imprisonment will have little or no general deterrent value, the nature of this punishment involves inherent limitations on its value as a general deterrent. Where the conduct of the offender is serious and warrants imprisonment and a clear general deterrent element in the sentence is called for, a suspended term of imprisonment may well be considered inappropriate'." [Emphasis added.]

2. As to home detention orders under similar , although slightly different, legislation in South Australia, Doyle J, with whom Kelly and Parker JJ agreed, said in R v Dell [2016] SASCFC 156, at [57]-[60]:

   "[57] I have mentioned that in exercising the discretion to make a home detention order, the full range of ordinary sentencing considerations will be relevant. Whether this so because it is inherent in the discretion conferred by the concluding words in s 33BB(1), or by reason of the requirement in s 33BB(4)(c) that the court take into account any other matter it considers relevant, the effect is the same. Much like the discretion to suspend a sentence of imprisonment under Part 5 of the Sentencing Act, the requirement to take into account the full range of sentencing considerations will in some cases give the court the ability to attach greater weight to the considerations personal to the defendant than is appropriate at the stage of determining the head sentence. On the other hand, and again like with the discretion to suspend in Part 5 of the Act, the requirement that the full range of sentencing considerations be taken into account means that the Court cannot overlook the need to ensure that the sentence ultimately imposed has adequate regard to not only the rehabilitative objective of sentencing, but also the objectives of punishment, denunciation and general deterrence. These remain important objectives at all stages of the sentencing process. Just as the nature and seriousness of certain types of offending, and consequential weight to be afforded to the need for punishment and general deterrence, can go close to foreclosing the discretion to suspend under Part 5 of the Sentencing Act, so too similar considerations may operate in this way in the context of the discretion to make a home detention order under s 33BB (1).

   [58]In this respect, it is important to bear in mind that while serving a term of imprisonment on home detention represents a significant entrenchment upon a defendant's ordinary liberty and freedom of movement, and is a more onerous form of punishment than a suspended sentence of imprisonment, the reality is that it is a significantly less onerous form of punishment than a requirement that the defendant serve an immediate term of imprisonment within a prison. The New South Wales authorities in relation to the similar regime for home detention orders that exists in that jurisdiction make this plain.

   [59]The significance of the less onerous nature of a home detention order is that courts will need to be astute to ensure that the making of such an order – even if it will assist in the rehabilitation of the defendant and provide sufficient personal deterrence – does not inappropriately undermine achievement of the objectives of punishment and general deterrence.  The ultimate sentence imposed must always be appropriate having regard to the criminality of the conduct involved, and the Court's concern to achieve a level of punishment and general deterrence. The greater the weight to be attached to these objectives in an individual case, the less likely it will be appropriate that there be an order for home detention.

   [60]It is notable that the legislature has not chosen to circumscribe the courts' discretion by proscribing a home detention order in respect of any particular category of offence, or in respect of sentences of imprisonment beyond a particular period of length. However, this does not mean that home detention orders will not generally be inappropriate in respect of many types of offences, and in respect of defendants the subject of lengthy terms of imprisonment.  To the contrary, there will be many cases in which the nature of the offending is such that the need to ensure achievement of the broader objectives of sentencing will for practical purposes foreclose any exercise of the discretion in favour of home detention.  The length of the head sentence that has been imposed will often provide some indication of the weight that it is necessary to attach to the objectives I have mentioned."

3. Thus, the first and most obvious common consideration in respect of suspended sentences and home detention orders is that the more serious the criminal conduct, the less appropriate will it be to order home detention. Unlike South Australia, the Tasmanian legalisation does place a restriction on the length of a home detention order, confining the permissible operational period to 18 months. That, to my mind, makes it plain that, absent exceptional circumstances, a home detention order ought not to be made if the sentence of imprisonment that might have been imposed, but for the availability of a home detention order, would have been longer than 18 months. A two-stage reasoning process is required.

4. The learned sentencing judge no doubt had this in mind when he pointed out in his comments on passing sentence

   "Home detention is imprisonment, but is to be regarded as less onerous than being in gaol. However, Parliament has imposed a maximum period of 18 months for a home detention order, or combination of orders existing at any one time. That may be a broad indication of the length of a sentence of imprisonment for which a home detention order might properly be an alternative. Clearly home detention orders would be inappropriate for crimes at the more serious end of the scale."

5. The next question which calls for interrogation is the qualitative nature the punishment inflicted by home detention.

6. This was considered in another South Australian case, R v Lean [2017] SASCFC 101, 128 SASR 451. Hinton J, with whom Stanley and Nicholson JJ agreed said at [65]:

   "[65]    In addition, by contrast to the prison experience, a person subject to home detention, unless the order specifies to the contrary, is able to live with whom they choose, eat at times of their choosing, sleep and exercise at will. They may watch television, listen to music, and search the internet whenever they wish. No restriction is placed on communication with the community or the world at large electronically. The freedom permitted is considerable. On my understanding, a person on home detention is also permitted to access their garden. Further, on my understanding, this would be so even where the detainee is subject to a condition of electronic monitoring provided they remain within the bounds of their home and the range of the electronic equipment. Thus in small to medium sized homes the offender may walk to their letterbox at will, and, standing inside their gate, engage passersby in conversation."

7. In R v Filipponi [2016] SASCFC 148, 126 SASR 464, Kourakis CJ, with whom Vanstone and Nicholson JJ agreed, said at [31]:

   "[31] Be that as it may, it is important to observe that s 33BC of the Sentencing Act contemplates that some home detention orders will allow a great deal of social mobility and interaction with the community. That is particularly so if the defendant is in employment. I take remunerated employment to include self-employment. Much employment is now not confined to a particular workplace. It is not uncommon for employees to travel to public places or to private homes to perform their work. The condition allowing a person to leave his or her home for a purpose approved by a home detention officer also allows much scope for community interaction. The effect of such wide conditions is to substantially ameliorate the burden of home detention. The major part of the day for most working people is taken up by obligations such as work, child-minding and household chores. If permission to leave the home for those purposes is allowed a home detention order may not pose much restriction on movement. That is even more the case if permission is granted to leave the home for important family and social occasions or for the purposes of education. It must also be remembered that people can be received and entertained in the home. Even though deprivation of the freedom to come and go at will, to enjoy the outdoors, other public places and to visit others privately is a substantial burden, if the conditions are too relaxed a home detention order may come to approximate a suspended sentence …".

8. In my respectful opinion, to observe that home detention is not as severe a restriction on a defendant's liberty as imprisonment is to state the obvious. They are different sentencing modalities. And to observe as Kourakis CJ did that if the conditions are too relaxed a home detention order will come to approximate a suspended sentence, overlooks that home detention, even with "liberal" conditions, is unlikely to be perceived by the community as allowing a defendant to "walk free". As the learned sentencing judge observed in his comments on passing sentence:

   "… an attempt to arithmetically correlate periods of imprisonment and home detention is problematic. For instance, many lengthy periods of imprisonment are made subject to parole eligibility which mostly eventuates, although not guaranteed. Parole comes with some restrictions, but generally speaking there is no real impediment to the free movement of the person. That may be contrasted with the home detention order for the whole of the period of which the person is not free to move beyond their home save in limited circumstances."

9. I would venture that a common public perception is that when a defendant is sentenced to a period of imprisonment with a non-parole period, he or she has in reality only been sentenced to the non-parole period. The same cannot be thought of a home detention order. And while the public perception may be that a defendant sentenced to a wholly suspended sentence "walks free", the same cannot be thought of a home detention order with electronic monitoring, even if the defendant is able to continue in employment. The same two-stage reasoning process must be undertaken in the case of either sentencing modality but where a wholly suspended sentence might be ruled out at the second stage, it does not follow that so too must a home detention order.

10. As already noted, the appellant submits that the gravity of the respondents' conduct was such that "the broader sentencing objectives" foreclosed the exercise of a discretion to impose home detention, even in combination with a suspended sentence and a community corrections order. In my view, that submission could only be accepted, in the circumstances of this case, if the appropriate sentence of actual imprisonment, were one to have been imposed, in the case of either respondent, should have been a period in excess of 18 months. If not, then I cannot accept that home detention was foreclosed by the seriousness of the offending. And if not, then I cannot accept that the modality of home detention was foreclosed because of the qualitative nature of the punishment or any community perception of it.

11. Before exploring the question I have just posed, it should be observed that, in my view, a single sentence of 18 months' actual imprisonment would have been inadequate in the case of the respondent Webb, in respect of all three crimes of which he was convicted, namely, aggravated burglary, wounding and assault. However, I am wholly unable to say that the suspended sentence of 15 months' imprisonment for the crime of aggravated burglary alone was outside the learned sentencing judge's wide sentencing discretion. The seriousness of that crime, taken alone, was not such as to preclude a suspended sentence, and to paraphrase what Bray CJ said in Elliott v Harris (No 2) (1976) 13 SASR 516 at 527, a suspended sentence is a sentence of imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called into effect on a breach of its terms during its currency. A liability over a period of three years to serve a term of imprisonment as a consequence of a proved breach, can hardly be described as "no punishment."

12. Turning then  to the question of whether the respondent Webb's crimes of wounding and assault ought to have attracted a sentence of greater than 18 months' imprisonment, were a sentence of actual imprisonment imposed, it seems to me that the answer is in the negative.

13. An affirmative answer is not borne out by the Sentencing Advisory Council statistics provided to the Court. Those statistics show that between 2001 and 2014, for multiple counts, of which at least one was wounding, 59 cases were surveyed and the minimum sentence was 4 months' imprisonment, the maximum was 42 months and the average was 14.7 months. Custodial sentences were imposed in only 72.9% of cases.

14. The statistics for the same period for multiple counts of which at least one was assault, show that, of the 252 cases surveyed, the minimum was 2 months' imprisonment, maximum was 42 months and the average was 14.3 months. Custodial sentences were imposed in only 62.7% of cases. A sentence of 15 months' imprisonment is above average and would not in my view have been regarded as inadequate.

15. Nor, on the face of it is an affirmative answer borne out by the sentences set out by the appellant in the table attached to these reasons, and of course they are said to be "Sentences for 'home invasions' - crimes of aggravated burglary and wounding and/or assault." That is to say, the sentences instanced include the crime of aggravated burglary, for which the respondent Webb was separately sentenced. As has already been noted, of the 10 sentences set out in the table - six were between 7 months and 12 months and four were over 15 months. One of those four was a sentences of 18 months' imprisonment with 9 month's suspended. The longest was 2 years and 9 months. I will consider each of the sentences where the head sentence was over 15 months.

Lariena Danielle Cowling

1. The first of those sentences is Lariena Danielle Cowling, 25 March 2011. The 21 year old defendant with no prior convictions, was sentenced by Tennent J for one count of aggravated burglary, two counts of assault, one count of wounding and one count of obstructing a police officer. The defendant was required to serve a period of two years' imprisonment with eligibility for parole after serving one half of that sentence.

1. In retaliation against acts of her ex-boyfriend, the defendant entered a flat looking for him and grabbed a female friend of his by the hair with one hand. Holding a knife in the other hand, she made threats to stab the complainant. The defendant held a knife to the complainant's throat and demanded she call the boyfriend. She tried but could not reach him. A male in the flat heard the complainant screaming and came into the room. The complainant held the knife up at him and told him to stay where he was. She then walked the complainant out of the flat still holding the knife to her throat. She walked her up the drive, led her to nearby bushland and held her there for over an hour and a half. Police found the defendant coming out of the bush. When she saw police, the defendant told the complainant she was going to slit her throat. She walked close beside her with her arm round her neck. A police officer approached and tried to separate the defendant from the complainant but the defendant stabbed the complainant under the arm. In the struggle which ensued, a second police officer suffered minor injuries to his leg from the knife. The defendant was handcuffed but continued to struggle and scream at police until a police van arrived.

Gary Dowling and Danny Ian Cheeseman

1. The next two of the surveyed sentences were co-defendants, Gary Dowling and Danny Ian Cheeseman, 17 September 2015. The defendants were sentenced by Porter J. The defendant Dowling, then aged 34, had pleaded guilty to joint counts of aggravated burglary and wounding, one count of assault against him alone, two joint counts of assault, and one count against him of unlawfully injuring property. The defendant Cheeseman, then aged 23, had pleaded guilty to the joint counts of aggravated burglary and wounding, one count of assault, and the two joint counts of assault. Dowling had a record of offending going back to 1997, showing problems with alcohol and authority. In addition to offences of dishonesty, he had convictions for breaches of family violence orders. Cheeseman had an unenviable traffic record, involving serious offences but no recorded history of violence or similar offending. Dowling was sentenced to two years and six months' imprisonment and given the maximum eligibility for parole. Cheeseman, who was not directly responsible for most of the violence, but fully participated in the attack and was solely responsible for a serious assault, was sentenced to 18 months' imprisonment to commence on 9 September 2015, 9 months of which were suspended, to take account of his age and his prospects of further rehabilitation.

2. This case involved a violent, sustained and repeated revenge attack on two people with a fishing gaff and a piece of wood. The learned sentencing judge characterised it in the following way:

   "This was a violent intrusion in the middle of the night on people who, although perhaps not entirely unsuspecting, were asleep and defenceless. It must have been a terrifying experience and was a prolonged attack. This intrusion by Mr Dowling, assisted by Mr Cheeseman, was so that Mr Dowling could exact some revenge and punish Ms Direen and Mr Henricks, primarily, it seems, Mr Henricks, for their behaviour. It was a grave incident of domestic violence. Violent responses to relationship breakdowns cannot be tolerated under any circumstances. Possessive and obsessive behaviour in relation to estranged partners must be strongly discouraged."

William Craig Simmons

1. The last of the sentences surveyed was William Craig Simmons, 27 February 2018. The defendant was sentenced by Porter AJ for the crimes of wounding, assault, aggravated burglary and stealing, as well as for a summary offence of destroying property. The 20 year old defendant had a poor record, including numerous summary offences comprising destroying property, burglary and stealing, motor vehicle stealing, drug offences, common assault and numerous family violence offences. The crimes for which he was sentenced by Porter AJ occurred not long after the defendant's release from prison and were a breach of a partly suspended sentence.

2. The facts of the offending were that the defendant had gone with two other males and two females to a house at Kings Meadows in order to confront one of the five people who lived in the house, about a debt. The defendant was armed with a Swiss army knife. When they arrived at the house the defendant opened the blade of the knife and, with the two other males, went to the locked front door. He kicked the door from its hinges and entered the house. One of the other occupants went to the door and confronted the defendant but the defendant swung the knife at him, stabbing him in the chest. The defendant broke several windows and kicked and broke a television. He punched another occupant a number of times to the head, causing him to fall to the ground. While he was on the ground the defendant stomped on his knees and ankles and kicked him to the stomach. As the defendant left the house he stole a mobile phone belonging to one of the other occupants. The defendant was sentenced to a term of imprisonment of two years and nine months and was not to be eligible for parole until he had served half of that sentence.

3. Having reviewed both the statistical material I have referred to and to the 10 cases surveyed by the appellant, I remain of the view that the answer to the question of whether the respondent Webb's crimes of wounding and assault ought to have attracted a sentence of greater than 18 months' imprisonment, were a sentence of actual imprisonment imposed, must be in the negative.

4. It follows, to my mind, having regard to the wide latitude that must be afforded to sentencing judges that it was well within the proper exercise of the learned judge's discretion to deal with Webb by way of the imposition of a period of 18 months' home detention. The sentence cannot be regarded as manifestly inadequate or as failing to give effect to the requirements of denunciation, vindication of the complainant, retribution and general deterrence

5. As to the defendant King, the imposition of 15 months' home detention was, of course, in respect of all crimes of which he was convicted, namely, aggravated burglary, wounding and assault. The question of whether those crimes ought to have attracted a sentence of greater than 18 months' imprisonment, were a sentence of actual imprisonment imposed, must therefore be separately addressed.

6. In his comments on passing sentence, the learned sentencing judge, having viewed CCTV footage of the attack captured outside the complainant's unit, said:

   "The footage clearly shows Mr Webb and a number of other men milling around before Mr Webb kicks at the door about a dozen times and striking at what I assume is the door handle with the tomahawk about four times. He then breaks off and returns, again hitting the door about three times. It is at this point that Mr King steps forward, seemingly when beckoned to do so by Mr Webb, and kicks the door about four times. Shortly after, access is gained to the unit at which point Mr Webb partially enters followed closely by the other man carrying a metal implement. Mr King then withdraws. When Mr Tucker is brought outside Mr King can just been seen hovering a short distance away from the melee."

7. His Honour then went on to record his view of Mr King's involvement in the offending. He said:

   "There can be no doubt that Mr Webb was the leader of the group. I am satisfied beyond reasonable doubt that he played a pivotal role in the execution of the attack. What happened in the lead-up and who said what to whom, I am not able to say. As to Mr King, I am told that he joined the search out of loyalty to the Webb family, with a deceased Webb brother, Zane Webb, in mind. I am told that he had no intention of inflicting any violence on anybody at that point, and he had not been made aware of an intention on the part of anybody else to inflict violence. Counsel put that he was not aware of the prospect of violence until the weapons were produced by others. He says his understanding was that the plan was to bring the perpetrator to the attention of police if they were able to find him. As to that, I am not satisfied that he was unaware of at least the prospect of violence before the weapons were produced, but I cannot be satisfied beyond reasonable doubt that violence with weapons was in his mind from an earlier point. His criminal responsibility was left to the jury on the basis that he was party to a plan to break in and wound or injure, alternatively that he was an abettor, or alternatively that he was party to a plan to inflict violence and that the crimes were probable consequences. All in all, I am satisfied that he should be sentenced on the basis that he abetted the crimes as charged by being present, intending to encourage, and in fact encouraged by kicking the door and being present."

8. It is clear therefore that the respondent King was sentenced as an abettor. Moreover he had an excellent industrial record. Having completed grade 10, he had been in full-time work ever since. He had several jobs before taking on an apprenticeship as a glazier which he is due to complete in 2022. The learned sentencing judge had references from two people in managerial positions with his employer, both of whom said that his offending was quite out of character. Both spoke highly of his work ethic, dependability and ability to relate well with fellow workers and clients.

9. In my view, the learned sentencing judge was entirely correct in taking an individualised approach to sentencing King. Given the respondent's level of culpability, his crimes did not call for a sentence of greater than 18 months' imprisonment, and his good record of employment justified his punishment in the community. I do not accept the appellant's submission that the fact of King's employment militated against home detention because it made that punishment less onerous. To my mind there is an inherent illogicality in that submission which denies full efficacy to the notion of the correction of defendants in the community.

10. The period of 15 months' home detention, particularly when coupled with 175 hours of community service, was a sentence sufficient to address general deterrence, and to my mind would not be perceived by the community as "no punishment at all" or "a let off". As the Sentencing Advisory Council said in the extract from its paper that I have set out earlier in these reasons, "home detention is able to address multiple aims of sentencing and provides an onerous sentencing order that both punishes an offender, deters the offender and others from committing offences, and assists in addressing the offender's rehabilitative needs. It allows the offender to maintain family and community connections and remain in employment."

11. It follows from all that I have said, that I am unpersuaded that the respondent King's sentence was manifestly inadequate or that it failed to give effect to the requirements of denunciation, vindication of the complainant, retribution and general deterrence.

Disposition

1. For the foregoing reasons, I joined in the orders dismissing both appeals.