Director of Public Prosecutions v Rogers

[2011] TASCCA 17

[2011] TASCCA 17

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

CITATION:                 Director of Public Prosecutions v Rogers [2011] TASCCA 17

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  ROGERS, Luke

FILE NO/S:  162/2011
DELIVERED ON:  9 November 2011
DELIVERED AT:  Hobart
HEARING DATE:  1 June 2011
JUDGMENT OF:  Evans, Porter and Wood JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Crown appeal alleging manifest inadequacy – Course of conduct involving one count of committing an act intended to cause bodily harm and three counts of assault – Sentence of two years' imprisonment with parole eligibility after 18 months manifestly inadequate.

DPP v Blyth [2010] TASCCA 10, referred to.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  J Hartnett
             Respondent:  G T Stevens
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  E R Henry Wherrett & Benjamin

Judgment Number:  [2011] TASCCA 17
Number of paragraphs:  25

Serial No 17/2011
File No 162/2011

DIRECTOR OF PUBLIC PROSECUTIONS v LUKE ROGERS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J
PORTER J
WOOD J
9 November 2011

Orders of the Court

1. Appeal allowed.

1. Sentence of two years' imprisonment to commence on 30 October 2010 with an order that the respondent not be eligible for parole until he has served 18 months of that sentence, quashed.

1. Respondent sentenced to four years three months' imprisonment to commence on 30 October 2010.

1. Respondent not to be eligible for parole until he has served 2½ years of that sentence.

Serial No 17/2011
File No 162/2011

DIRECTOR OF PUBLIC PROSECUTIONS v LUKE ROGERS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J
9 November 2011

1. The appellant, the Director of Public Prosecutions, contends that a global sentence imposed on the respondent of two years' imprisonment, subject to parole eligibility after serving 18 months of the sentence, is manifestly inadequate.  The sentence was imposed by Tennent J upon the respondent's plea of guilty to the following charges in respect of his conduct on a night in September 2010:

·     Count 1 – assault by punching and/or kneeing Mark Siggins to the head and body.

·     Count 2 – committing an unlawful act intended to cause bodily harm in that, with intent to disable or do grievous bodily harm to Mark Siggins, he caused actual bodily harm to him by stabbing him with a knife to the neck and back.

·     Count 3 – assault by way of a threatening gesture in that he waved a knife in the direction of Maddison Cave and said words to the effect of, "You're next". 

·     Count 4 – assault by punching Levette Reynolds to the face.

Facts

1. On 16 September 2010 one of the complainants, Mark Siggins, and his daughter, Roxanne, then aged 14, were residing in a unit in a complex of units at Bridgewater.  Michelle Cave and her children were staying with Mr Siggins.  The respondent's brother, Jonathon Rogers, resided in the same complex.  Mr Siggins and Jonathon Rogers were friends.  On the night of 16 September 2010 Jonathon Rogers and Mr Siggins were drinking together in Mr Siggins' unit.  They had also been drinking together at a hotel earlier that day.  At about 11pm, they were joined in Mr Siggins' unit by the respondent.  Others present included Mr Siggins' daughter, Roxanne, Michelle Cave and Levette Reynolds, who resided in a unit in the same complex.  Something Levette Reynolds said to Jonathon Rogers precipitated an argument that involved Roxanne.  When Jonathon Rogers screamed at Roxanne, her father, Mr Siggins, intervened.  Jonathon Rogers turned on Mr Siggins verbally and punched Roxanne in the face.  The respondent scruffed Mr Siggins and he and his brother Jonathon punched and kneed Mr Siggins to the face and upper body causing his face to bleed.  Jonathon Rogers at times tried to restrain the respondent, only to join in again when he was unsuccessful.  This conduct is the basis of the respondent's conviction on count 1.

1. The respondent moved away from Mr Siggins, went to a kitchen drawer in the unit and returned armed with a knife.  Whilst holding the knife the respondent punched Mr Siggins causing five wounds.  Jonathon Rogers restrained the respondent, and Mr Siggins fled from his unit.  Roxanne Siggins witnessed some of the incident before fleeing the unit.  The entire incident was witnessed by Michelle Cave.  It is this conduct that is the subject of the respondent's conviction on count 2 for committing an unlawful act intended to cause bodily harm.

1. After fleeing from his unit Mr Siggins found Roxanne and together they walked to a nearby home.  He was having difficulty breathing and an ambulance was called.

1. As the respondent and his brother departed from Mr Siggins' unit, the respondent waved the knife he was holding in the direction of Michelle Cave's daughter Maddison, then aged 12, and said, "You're next".  This conduct is the basis of the respondent's conviction on count 3 for assault by a threatening gesture.

1. After leaving Mr Siggins' unit, the respondent went straight to the unit of Levette Reynolds.  She heard banging on the front door of her unit and a male voice asking for her flatmate.  She opened the door and was surprised to find that it was the respondent.  He entered the unit and asked where her flatmate was before punching her twice to the face.  She sustained a minimally depressed fracture of the anterior right maxilla.  She ran and hid in her room.  This conduct is the basis of the respondent's conviction on count 4 for assault.

1. When police arrived at the complex, the respondent and his brother were located in his brother's unit and a broken knife was located on the floor.  The respondent was intoxicated. 

Submissions on the sentencing hearing

1. In the course of the sentencing hearing the submissions made by the respondent's counsel to the learned sentencing judge included the following.  The respondent had no recall whatsoever of the events of the night in question, but accepted that he was criminally responsible for that which had occurred.  He did not know why it had happened.  He was intoxicated, having consumed alcohol throughout that day.  The alcohol included beer, whisky and "some fruit wine".  He had not knowingly consumed any drugs of an illicit nature.  He considered Mr Siggins to be a good bloke and was deeply remorseful for what he had done to him.  The respondent had not been violent prior to the altercation precipitated by his brother shouting at Roxanne.  The threat made to Maddison Cave, as the respondent and his brother were leaving, was of the nature of an aside. This threat was the only violence she was subjected to.  The respondent had indicated that he would plead guilty at the earliest opportunity. 

1. The learned sentencing judge was told that for a number of months prior to the crimes in question, the respondent had attended counselling in relation to his abuse of drugs, and psychological problems.  Initially he had attended the counselling pursuant to a term of his bail and, subsequent to 2 July 2010, he attended pursuant to the terms of a drug treatment order that had been imposed on him.  During this period the respondent attended every appointment and had passed every random drug test.  He had found this structured arrangement to be beneficial.  He was now fully aware of the benefit of the counselling opportunities and resources available to someone in his circumstances and he intended to take advantage of them upon his release.  Her Honour was also told that the respondent was essentially functionally illiterate.

1. Counsel for the respondent requested that the learned sentencing judge grant the respondent early parole eligibility and submitted that it was desirable that the respondent be subject to the supervision of a parole officer when released.  Counsel submitted that this support would be vital to the respondent overcoming his problems and made the point that prior to the respondent's last lapse he had been on the road to rehabilitating himself.  Counsel submitted that the respondent was not beyond redemption.

Prior record

1. As observed by the learned sentencing judge, the respondent has an appalling record which began when he was 14 years of age.  It contains many traffic-related offences, including ten convictions for driving whilst disqualified, 8 convictions for motor vehicle stealing and attempted motor vehicle stealing, 18 convictions for aggravated burglary and burglary, about 30 convictions for stealing and other offences involving dishonesty, and 14 convictions for offences involving destroying or injuring property, threatening or resisting police, disorderly conduct or abusive language.  Of particular relevance are the following offences committed on the dates indicated:

26 December 2004 – common assault – sentenced to imprisonment for this, the below assault and other offences.

31 December 2005 – common assault – as above.

26 September 2005 – common assault – fined $250.

12 February 2007 – assault – three months' imprisonment.

30 August 2007 – wounding (2) – 14 months' imprisonment.

29 January 2009 – common assault – two weeks' imprisonment.

1. The two convictions for wounding are important.  As with the crimes under consideration, those crimes were committed on what started out as a social occasion.  At the time he was intoxicated from alcohol and amphetamine.  The respondent and a relative got into a fight with the victim, in the course of which the respondent struck the victim to the head with a large knife or meat cleaver some four to five times, and then sliced his forearm.

1. On 2 July 2010 the respondent was made the subject of a drug treatment order.  Such an order is an alternative to a custodial sentence, the Sentencing Act, ss27B(1)(c), 27C(a) and 27F(1). In the case of the respondent the custodial component of the sentence was six weeks' imprisonment. In brief, the effect of a drug treatment order is that the offender is not required to serve all or any of the custodial sentence he or she receives unless it is activated because of the offender's failure to comply with a condition of the order, s27F(3). When a drug treatment order is made the offender must agree in writing to comply with conditions that include a condition that the offender not commit an offence punishable by imprisonment, ss27B(3)(c), 27E(3)(a) and 27G(1)(a). When the respondent committed the crimes in question on 16 September 2010, he breached this condition.

Manifest inadequacy

1. The starting point in relation to the adequacy of the respondent's global sentence of two years' imprisonment on counts 1 to 4, is count 2, his primary crime.  Immediately prior to its commission, he and his brother were punching and kneeing Mr Siggins to the head and body.  Mr Siggins was bleeding from the face.  The attack was taking place in Mr Siggins' unit in the presence of others including Mr Siggins' daughter.  Rather than defusing the situation by leaving the unit, the respondent escalated the attack.  He went to the kitchen and obtained a knife, a potentially lethal weapon.  He returned to Mr Siggins and stabbed him five times with the knife.  Four of the wounds were to his back.  One wound, in the centre of his back, narrowly missed his spine.  The other three back wounds were about two centimetres, six centimetres and eight centimetres respectively to the right of his spine.  The fifth wound was to the right side of his neck.  That Mr Siggins was wounded in the back may be because the respondent struck him from behind when Mr Siggins and Jonathon Rogers were confronting each other.  Whatever the then situation, it is clear from the position of the stab wounds that when they were inflicted, the respondent and Mr Siggins were not face-to-face.  In his victim impact statement, Mr Siggins said he did not realise he had been stabbed by the respondent until after he had fled from his unit. 

1. One wound punctured Mr Siggins' right lung.  This injury could have been fatal had it not been treated promptly.  He was hospitalised for about ten days and it took him about eight weeks to recover physically.  The combined impact of the conduct that is the subject of counts 1 and 2 on Mr Siggins and his daughter, Roxanne, has been profound.  Having suffered at the hands of two men he had considered to be friends and he had allowed into his home, Mr Siggins' trust in others has been affected badly.  Roxanne says she does not trust anyone any more.  She and her father constantly worry about each other's safety.

1. The crime that is the subject of count 2 is committing an unlawful act intended to cause bodily harm in breach of the Code, s170.  It is a serious crime.  An element of it is a specific intent to disable or do grievous bodily harm.  In DPP v Blyth [2010] TASCCA 10, Blow J, agreed with by Porter and Wood JJ, reviewed a number of authorities on the sentencing range that was appropriate for a contravention of s170. The effect of that decision and the authorities to which it refers is that subject to the unimpaired discretion of a sentencing judge to impose a sentence that is reasonable, ordinarily a contravention of s170 should attract a sentence of imprisonment of between three to seven years. The decision also refers to the importance, when sentencing for this crime, of the severity of the victim's injuries and the extent of any permanent disability or incapacity. In this case, Mr Siggins' major injury, a collapsed lung, was serious. He has not however been left with any major permanent physical disabilities.

1. There was not a lot to be said in mitigation of the respondent's penalty.  He could not claim in aid youth or the absence of relevant prior convictions.  It could be said for him that over the past few years his relationship with the mother of his three children had been much more stable than previously.  He had responded well to the drug treatment order imposed on him on 2 July 2010, and taken some positive steps towards overcoming his abuse of drugs and related problems, although his commission of the crimes under consideration breached a condition of that order and the breach occurred only ten weeks' after the making of the order.  He was remorseful and at an early date he had indicated that he would plead guilty.  However, his pleas of guilty were not a lot more than an acknowledgement of the inevitable, save insofar as it was open to him to put in issue the specific intent required for a s170 conviction.  He could have contended that his responsibility for the conduct that is the subject of count 2 arose from recklessness and, on this basis, was a breach of s172, not s170.  A conviction for the former crime is ordinarily of less gravity than a conviction for the latter. 

1. My assessment of the serious aspects of the respondent's conviction on count 2, his inability to claim in aid the absence of any relevant prior convictions, and the modest nature of the matters upon which he could rely in mitigation of penalty, satisfy me that the global sentence of two years' imprisonment imposed on the respondent was manifestly inadequate for this conviction, let alone his conviction on all four counts.

The substituted sentence

1. Consistent with DPP v Chatters [2011] TASCCA 8 and the Code, s402(4A)(b), in determining the sentence that is appropriate for the respondent's criminal conduct, the fact that he is being re-sentenced for this conduct must not be taken into account, and nor can the distress and anxiety which he is presumed to be subject to in consequence of this appeal. In the absence of any communication from counsel to the contrary, for the purposes of the Code, s402(4A)(a), it is to be assumed that no noteworthy matter relevant to the re-sentencing has occurred since the date of the initial sentencing on 4 March 2011.

1. I turn to the sentence that is warranted for the respondent's criminal conduct.  A short sentence of imprisonment is appropriate for his role in the events that led to his conviction on count 1.  The conduct of the respondent's brother virtually obliged Mr Siggins to step in to defend his daughter.  That Mr Siggins did so provided the respondent with no justification for joining his brother in punching and kicking Mr Siggins.

1. The conduct of the respondent that is the subject of his conviction on count 3, an assault by a threatening gesture, is largely incidental to the conduct that is the subject of his convictions on counts 1 and 2, and I would not measurably increase his sentence in consequence of it.

1. The respondent's conviction on count 4 is linked to his convictions on counts 1, 2 and 3 insofar as a comment by Levette Reynolds precipitated that which occurred in Mr Siggins' unit, and count 4 relates to the last of the respondent's crimes in the course of a period of mindless and gratuitous violence which encompasses all his criminal conduct on that night.  Nonetheless, the respondent's assault on Ms Reynolds was a serious, separate and distinct crime.  Having left Mr Siggins' unit, the respondent went to Ms Reynolds' unit, banged on the door and called for her flatmate.  When she opened the door he entered and punched her twice to the face.  His conduct was of the nature of a home invasion.  There is no explanation, let alone justification, for what he did.  A bone in her right cheek was broken and a tooth was loosened.  Her young daughter, who has epilepsy and is blind, was terrified by the incident.  As a result of the insecurity and anxiety that this attack has caused Ms Reynolds she has moved interstate.

1. Were I to impose separate sentences on the respondent for his crimes they would be a sentence of three months' imprisonment for count 1, a sentence of three and a half years' imprisonment for counts 2 and 3, and a sentence of twelve months' imprisonment for count 4.  With totality in mind, coupled with the fact that all the crimes were committed in the course of one period of criminal conduct, I would re-sentence him to an in globo sentence of four years' three months imprisonment and order that he be eligible to apply for parole after serving two and a half years of this sentence. 

File No 162/2011

DIRECTOR OF PUBLIC PROSECUTIONS v LUKE ROGERS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PORTER J
9 November 2011

1. I have read the reasons for judgment of Evans J.  For the reasons which his Honour has given, I agree that the appeal should be allowed.  I also agree that an in globo sentence of four years three months' imprisonment with a parole eligibility after 2½ years, is an appropriate sentence for the whole of the conduct represented in the four counts on the indictment.

File No 162/2011

DIRECTOR OF PUBLIC PROSECUTIONS v LUKE ROGERS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
9 November 2011

1. I agree with the reasons for judgment of Evans J and with the proposed orders.