Director of Public Prosecutions v The Queen - [2018] TASCCA 10

[2018] TASCCA 10

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

CITATION: Director of Public Prosecutions v R [2018] TASCCA 10

PARTIES:  Director of Public Prosecutions
  v
  R, K D

FILE NO:  CCA 736/2018
DELIVERED ON:  11 July 2018
DELIVERED AT:  Hobart
HEARING DATE:  1 June 2018
JUDGMENT OF:  Wood and Geason JJ, Marshall AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Conviction and 18 months' probation for wounding – Youthful offender – Intellectual impairment – Demonstrated successful efforts at rehabilitation – Sentence not manifestly inadequate.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  J Hartnett, L Ogden
             Respondent:  B Clark
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2018] TASCCA 10
Number of paragraphs: 76

Serial No 10/2018
File No CCA 736/2018

STATE OF TASMANIA v K D R

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
GEASON J
MARSHALL AJ
11 July 2018

Order of the Court (1 June 2018)

Appeal dismissed.

Serial No 10/2018
File No CCA 736/2018

STATE OF TASMANIA v K D R

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
11 July 2018

This is a Crown appeal with respect to a sentence that was imposed on 2 March 2018 for one count of wounding. The learned sentencing judge, Slicer AJ, recorded a conviction and imposed 18 months' probation. It is submitted by the appellant that the sentence was manifestly inadequate. It is acknowledged by the appellant that there were considerations that allowed the Court to give significant weight to rehabilitation, but, nonetheless, a heavier sentence than probation was required. It was contended that the Court should have imposed a suspended term of imprisonment or a community service order or both. After hearing the argument, the Court made an order dismissing the appeal. These are my reasons for joining in the making of that order.

The offending

The respondent turned 18 years of age on 13 July, a few months before the commission of the crime. The complainant was aged 14 and was in grade 8 at high school. The respondent and the complainant had been friends until the complainant started "seeing" the respondent's ex-girlfriend. The respondent sent the complainant some threatening messages on Facebook. He told the complainant that he wanted to fight him. The complainant agreed. On 16 October 2017 the respondent sent the complainant a text message and they arranged to meet after school at one of the school ovals to fight. The complainant assumed that it would be a fist fight and told some of his friends. The complainant was with friends at a school oval at about 1.30pm when the respondent attended the school alone. He walked across the oval to the complainant and threw his right fist towards the complainant's neck. The complainant moved out of the way, punched the respondent to the face and grabbed him in a headlock. The pair fell to the ground. While the complainant had the respondent in a headlock, the respondent drew a knife that he had taken with him. The complainant heard someone say "he's got a knife". Holding the knife in his right hand the respondent struck the complainant to the knee area in a downwards motion. It caused a wound which bled. The complainant realised he had been stabbed, pushed the respondent away, got up and walked away.
The respondent took the knife to the fight for his own "protection". He understood from exchanges with the complainant that he was going to bring a group of friends with him for support. While older than the complainant, the respondent is small in stature and was worried about going to the fight on his own. He had only been in one minor fight before. It was said on the respondent's behalf in mitigation that "he wasn't thinking when he stabbed the complainant and that it just happened". This is to be understood in the context of his plea of guilty to wounding, which involved an admission that at the time he made the stabbing action and inflicted the wound, he either intended to inflict a wound, or, at least, adverted to the risk that he would cause a wound, but proceeded regardless.
The complainant's wound was superficial and did not require stitches. He attended a doctor and the wound was cleaned and dressed. The complainant has found that since the incident he has been a bit more anxious than before and has had trouble sleeping. He did not provide a victim impact statement.
The respondent was later arrested at his home and taken to the Hobart Police station where he was interviewed. He told police that when he takes his medication it makes him feel calmer, but that he had not taken his medication for three days. He described the knife as having a 15 cm blade with a curve at the end. He described it as being like a fish gutting knife.
After he was interviewed and charged, he was remanded in custody overnight and appeared in court the following day. He was admitted to bail and the matter was adjourned until 31 October when the respondent pleaded guilty to wounding and was committed to the Supreme Court for sentence.

Past offending

The responded committed a spate of offences between February and August 2017 and which relevantly included three offences of "common assault" and one offence of "recklessly throw a missile to the danger of another person" committed on a single date in February. Other offences included: driving offences, possess controlled plant, 11 offences of stealing, one offence of burglary and one offence of unlawful possession of property. He was sentenced for all of his past offending on 5 December 2017 in the Magistrates Court (Youth Justice Division). He received a probation order as well as community service of 40 hours. Special conditions of his probation order were that he was to attend educational and other programs as directed by a probation officer, and that he was "to attend, participate in and complete the Equips Addiction Program". This was the only occasion the respondent had been sentenced by a court other than the occasion now subject to appeal.

The approach of the learned sentencing judge

The learned sentencing judge heard the facts on 15 December 2017, 10 days after the respondent had been sentenced in the Magistrates Court. His Honour noted that sentence. After hearing the Crown statement of facts, his Honour observed that he could see an escalation in offending and that he thought the respondent had "come to the end of the line and deserves custody", but that he did not want to get in the way of probation diversion. His Honour canvassed a report from Community Corrections to see the response to the order. In an exchange with the learned sentencing judge, the respondent's counsel stated that she was content with an adjournment for that purpose and that it provided the respondent with an "opportunity to demonstrate to the court that he can comply with that order in the meantime." After questioning the surety, the respondent's mother, to reinforce the importance of strict supervision and the importance of notifying the authorities if her son breached his bail conditions, his Honour remanded the respondent on bail. In doing so, his Honour explained to the respondent that he had to comply with bail conditions saying, "I don't give chances lightly and I don't give people second chances lightly if they disobey." Then there was the following exchange:
"His Honour: 'You've got two months to turn your life around.'
Accused: 'I understand'."
The matter was adjourned to a date in early February 2018, and then to 23 February. By then it was approaching three months since the respondent had been sentenced in the Magistrates Court. On 23 February, the learned sentencing judge was provided with a number of reports and heard the respondent's plea in mitigation.
The learned sentencing judge had made it plain to the respondent that he was in jeopardy of a term of imprisonment, and indeed, at one point in jeopardy of being remanded in custody pending sentence. He was given an opportunity to prove himself, almost three months, to demonstrate that he would comply with the probation order imposed by the Magistrates Court.

The offender

The learned sentencing judge had reports that had been made available to the Magistrates Court in December 2017, including:
·     The National Disability Insurance Scheme (NDIS) plan for the respondent, commencing on 19 July 2017, and to be reviewed by 16 April 2018. The plan allocated money for speech therapy, improved daily living, increased social and community participation, co-ordinating services by a support provider, and transport.
·     A report of assessment of fitness to stand trial by Clinical Psychology Registrar, Matthew Wade, dated 23 August 2017. The purpose of the report was to assess whether the respondent was fit to plead and instruct counsel, in accordance with the Criminal Justice (Mental Impairment) Act 1999, s 8. The report had been prepared in response to a request from Chief Magistrate Geason regarding the matters before the Magistrates Court. The report noted:
"4   [The respondent] is an 18 year old man of Aboriginal descent. He was born following full term pregnancy but was not breathing at birth and required resuscitation and treatment in the Neonatal Intensive Care Unit. At 6 months he was found to be deaf in both ears and had corrective surgery which restored functional hearing. He displayed some minor developmental delays and from an early age began exhibiting challenging behavioural problems. Speech pathology assessment in 2008 revealed severe speech and language auditory processing difficulties.
5    [The respondent] was diagnosed with brain injury secondary to foetal distress and Attention Deficit Hyperactivity Disorder (ADHD) around age 5. He commenced stimulant medication with minimal improvement. There is a family history of mental illness and genetic abnormality with a variety of medical and behavioural problems. [The respondent's] mother reported that she exhibited similar ADHD symptoms as a child and suffers depression, and reported that [the respondent's] father has a diagnosis of schizophrenia and history of severe violence.
6    [The respondent] attended special education ... where his behaviour was reported to be oppositional and destructive resulting in frequent suspension. He was unable to read or write at the end of his primary years. His behavioural difficulties continued into high school where he completed grade 10.
7    [The respondent] has no ongoing relationship with his father, who left the family home around one week after his birth. Ms Szoka reports that [the respondent's] father was violence [sic] and continued to stalk and threaten the family for years after he left the home, resulting in frequent changes of address and name. [The respondent] was raised in the family home alongside his brother ... who is 10 years his senior. Due to his mother's difficulty coping, family support services were involved at various times to provide assistance. When [the respondent] was around age 6, his mother took care of a foster child ..., who lived with the family. Ms Szoka reports that [the respondent's] behavioural problems and violent outbursts in the home escalated following ... death by suicide in 2014. Due to an escalation in his behavioural problems, such as punching and kicking walls and violence toward his mother, [the respondent] has been under the residential care of Langford services since 2014."
Mr Wade conducted an assessment of the respondent's cognitive ability on 3 August 2017. The assessment revealed that his general intellectual functioning is in the extremely low range, lower than 99% of his peers, and his overall adaptive functioning was in the same range. He has impairments of a magnitude consistent with Mild Intellectual Disability (DSM-5; 319). In relation to the purpose of the report it was concluded that he was fit to stand trial with appropriate support from counsel.
In addition, the learned judge was provided with reports regarding the respondent's recent progress, for the period since the Magistrates Court had sentenced the respondent.
Langford Support Services, as a support provider for the NDIS plan, provided a Support Co-ordinator Progress Report, from Ms Morgan Hughes. It noted:
·     The respondent had been referred to Hobart Speech Pathology.
·     He was attending a clinical psychologist via a Medicare health plan.
·     "Since the majority of [the respondent's] court matters have resolved, he has shown more willingness to engage with relevant professionals including, and especially his psychologist". The reference to court matters was a reference to matters resolved in the Magistrates Court by probation and community service orders.
·     He was attending appointments with a forensic psychologist, Beatrice Webb.
·     Ongoing support co-ordination was required to "negotiate the requirements" of his court orders over the next 12 months and assist him to build his capacity to live independently and maintain a prosocial lifestyle.
There was information about a program called "Project Booyah" co-ordinated by the Police Citizens Youth Club (PCYC), in conjunction with Tasmania Police, TasTAFE and Save the Children. The Project is a 20-week course which requires two full days per week and is offered to 15-18 year olds; "young people disengaged from education, motivated and committed to completing the course". It "incorporates vocational engagement in local community projects, functional literacy/numeracy support, skill development, adventure based learning and mentoring".
An email from Ben Hughes, a police officer working with the PCYC, dated 22 February 2018, provided information about the respondent's participation in that program. It stated:
"We are week 3 of the 20 week course.
[The respondent] has attended every session, 100% attendance. He has approached every tasks [sic] with enthusiasm and completed everything we have asked of him.
He is very shy but has shown in the right environment he can be a leader to other boys his age and also a supportive team member.
He has not been aggressive in the slightest, in fact the opposite and has been looking after other course members with a caring nature.
Although it is early in the course we could not be happier with the way [the respondent] is going and we think he will be a great employee in whatever line of work he chooses to follow as long as he continues to work hard."
There was an email from Kevin Follett, Youth Justice Worker, dated 22 February 2018, which stated:
"[The respondent] has been cooperative with Youth Justice supervision. He is polite, respectful and makes an effort to engage in conversation with the supervisor."
Further it was noted he had completed 20 of 40 hours of community service and was well on track to complete his hours in the next 1-2 months. He is to complete the balance of the hours through the Booyah program, which he attends two days per week.
A report from the respondent's probation officer, dated 22 January 2018, noted he was engaging well and had attended his appointments and accepted referrals for literacy assistance and counselling for drug use and psychological issues. He was deemed suitable for a further probation order. A period of 18 months supervised probation was recommended.

Plea in mitigation

The plea in mitigation referred extensively to information from the reports and some additional details. Presently, because of the respondent's disabilities, he is not able to live independently. He was living with his mother who is supportive. She provides him with a great deal of assistance. His parents separated when he was a young child and he was raised by his mother. She suffered depression and found it difficult to cope generally. Throughout his childhood notifications were made to Child Safety Service, relating to concerns about his physical and emotional neglect. She fostered another child who committed suicide at a young age, and the respondent had been significantly affected by his death.
He attended high school, but found those years very difficult, having been "bullied relentlessly due to his disabilities". He found it very difficult to form friendships and spent a lot of time on his own. He is illiterate.
He is vulnerable to negative peer influences, and his past offences of assault were carried out with such a peer group, and arose from an incident involving throwing objects at customers of [shop], and setting deodorant cans alight.
Despite his learning difficulties, "he can proficiently dismantle and rebuild a motor bike and is very good at fixing engines." Ideally that is something he would like to pursue in an employed role.
He is now linked in with a range of support services. He has a mental health plan and is attending frequent appointments with a psychologist. He has the assistance of two social workers with whom he has developed a very good relationship and is making progress. He is pursuing positive recreational activities such as basketball and camping. He is attending appointments with a speech pathologist. His engagement with Project Booyah was at his initiative. He had to advocate to be able to participate in that program, as initially there were concerns that it may interfere with his speech pathology schedule. He is also engaged with a youth worker from Save the Children. There has been no allegation of offending since the commission of offences in October.
It was contended that with the net of services and direction and guidance, that the respondent was not just doing well, but "thriving". Counsel informed the Court that the respondent wants to create a positive future for himself, free from crime. He is developing his skills with a view to being able to work in the future and live independently.
It was noted that the plea of guilty was entered at a very early stage. He is shocked about what he did and extremely sorry. His night in custody had been a "harrowing" experience. He was highly distressed by his actions in stabbing the complainant. He was not used to being away from his mother and that was difficult in itself. When remanded in custody he had been so distressed that his counsel spent some time with him in an attempt to calm him.

The sentencing comments

After setting out the details of the crime, his Honour noted that the respondent's life seemed to spiral out of control between February and October 2017. His Honour noted the terms of the sentencing order imposed by the Magistrates Court and went on to say:
"Much is said about the prospects of rehabilitation, with differing views on its efficacy in youthful male offenders and their ongoing conduct and criminal behaviour, especially between the ages of 16 to mid or late 20s. All too often the prospects of rehabilitation are complex and/or unsuccessful, especially when there has been a turbulent and harsh upbringing. Perhaps, all too often, many think, to misquote the Jesuits, 'show me the 18 year old youth and I can predict the man', a misconception held by many, including this judicial officer. Perhaps this misconception is reinforced because we often only hear of the failures.
In this case there is cause for optimism."
His Honour then made detailed reference to the reports and the respondent's progress, noting:
"This case shows that the outcome is not inevitable. There has been a break in the spiral."
After making reference to Mr Hughes' concluding remarks that he "could not be happier with the way he is going …" with Project Booyah, his Honour went on to note:
"Imprisonment would destroy all of the work undertaken to help a youth with a life of turmoil, hardship and despair. It would ignore a key object of the criminal justice system of rehabilitation, and run contrary to the statements of Burbury CJ in Lahey v Sanderson [1959] Tas R 17, and King CJ in Vartzokas v Zanker (1989) 44 A Crim R 243. There are many other cases consistent with the above referred to in Sentencing in Tasmania 2 ed, Warner, at 3.407.
The defendant will do well to regard Mr Hughes as a role model. Here there is the added factor of mental disability, discussed by Warner at 3.515 to 518, including the decision of Gilchrist v The Queen A82/1982, [1982] Tas R 309 (NC 22), which was referred to by Gibbs CJ when he refused to grant leave for an appeal against a decision of the Tasmanian Court of Criminal Appeal.
I have made prior reference to the fact that the defendant was of aboriginal descent. Royal Commissions, governments, courts and academics have long attempted to deal with the large number (proportional to the general population) of aboriginals in custody. This Court is not attempting to address the wider questions, but seeks to take into account the social, economic and mental health disadvantages suffered by the defendant whose life thus far has been beset by events and disabilities outside of his control. Here it has been the court process which led to the remedial steps taken by government and non-government institutions and individuals, especially those already named, in attempting remedy which in turn might provide full rehabilitation.
In some instances balance can be achieved by the imposition of a suspended sentence. In this case, rehabilitation is intended to remedy harm previously suffered (Vartzokas (above) at 279), rather than attempting to achieve the same result through fear of future consequence (Warner at 3.217, esp n66). The Court is attempting to assist in rehabilitation rather than using a potential consequence of imprisonment as a vehicle for change.
The recommendation of the probation service is for an order of supervised probation of 18 months which would extend current period of supervision by approximately eight months and permit ongoing case management. That recommendation is followed."

The discussion below encompasses the principles referred to by Slicer AJ in relation to youthful offenders and mental disability. The passage from Warner, Sentencing in Tasmania at 3.407 is meant, it seems, to be a reference to 3.507. In that paragraph the learned author refers to Lahey v Sanderson [1959] Tas SR 17, and principles of sentencing regarding youthful offenders, including that a young offender should be given every reasonable opportunity to reform, and that there can hardly ever be any conflict between the public interest and that of the offender. In the passages referred to at 3.515 to 518, there is discussion about the ways in which mental disorder is mitigating or aggravating. The passage at 3.217 addresses the goal of rehabilitation and relevantly provides:
"Rehabilitation, like deterrence, seeks to prevent future offending but it does so by reforming the offender. It is aimed at the renunciation by the offender of wrong-doing and establishment or re-establishment of the offender as an honourable law-abiding citizen.(Vartzokas v Zanker (1989) 51 SASR 277, King CJ at 279.) It differs from specific deterrence which may achieve the same result through fear. "
In terms of the respondent as a person of Aboriginal descent, as I read those comments, that was noted as coinciding with difficulties and disadvantage, but it was those individual circumstances and particular difficulties, rather than his identity as an Aboriginal person, which were accorded mitigatory weight.

Intellectual difficulties

A significant factor in this case was the respondent's intellectual impairment. It is well established that psychiatric illness or impaired mental functioning may be mitigating and relevant to sentencing in various ways. These have been set out in R v Verdins [2007] VSCA 102 and include that impaired mental functioning or disorder can result in a diminished moral culpability which may, in turn, moderate or eliminate general or specific deterrence as a consideration. The existence of a mental impairment at the time of sentencing may mean that a particular kind of penalty would be more burdensome for an offender and may lead to the court imposing another kind of penalty.
If there is an assertion that by reason of impaired mental functioning, the moral culpability of an offender is reduced, the court has to make an assessment of matters, such as the nature and severity of the impairment, and whether there is a causal link between the impairment and a reduction in moral culpability: Verdins and Director of Public Prosecutions (Vic) v O'Neill [2015] VSCA 325, 47 VR 395.
This is not a case where the Court was provided with a report detailing the way in which the respondent's intellectual disability directly impacted upon his criminality or reduced his moral culpability. Rather, it was asserted in mitigation that the nature of the conduct was not purposeful, and that the knife was taken to the fight because of the respondent's fear and concern for his own protection. The knife was used as a response to being in a headlock and at a time when the respondent was "not thinking". Those assertions were not disputed by the appellant. This is not a case involving premeditated conduct and the knife being taken by the respondent with the purpose of using it to stab someone in a fight. It was a case that intrinsically involved a relatively low level of culpability compared with some other wounding cases before the courts. Additionally, there was unchallenged material that the learned sentencing judge was entitled to take into account about the respondent's intellectual impairment in terms of abstract or consequential thinking generally. It provided some insight and background to his poor judgment and decision-making in taking a knife to a fist fight, and yet his distress at having used the knife and stabbed the complainant.
The implications of his intellectual disability were significant as an explanation, in myriad respects, outside the Verdins principles. It provided background to his friendship with the complainant as a 14-year old, and showed the lack of any advantage he had over the complainant in terms of maturity or sophistication. Information about his distress at being kept in custody overnight and his relative dependence on his mother, despite his age, could be taken at face value. It provided ample and important information about his vulnerability to negative peer influences as context for his past offending in their company, and highlighted the importance of support and guidance.
The respondent's intellectual impairment had a bearing on the kind of sentence that was appropriate: Verdins. It provided information about the limited life opportunities that he would have if the guidance and support provided under the current and successful court order was jeopardised. It also provided information about his vulnerability if exposed to negative or criminal influences through sentencing outcomes. It indicated the appropriateness of a sentencing order which did not expose him to those influences and indicated the desirability of highly supervised sentencing outcomes.

Youthful offender

The appellant was only 18 years of age and the principles applicable to young offenders apply to him. There is a strong public interest in the rehabilitation of young offenders: Lahey v Sanderson; Jones v Fleming [1957] Tas SR 1. In Gray v Strickland A44/1978, Nettlefold J referred with approval to the following passage from the Court of Criminal in England in R v Smith [1964] Crim LR 70 , and adopted by this Court in Harris v The Queen A67/1987; Hanson v The Queen A46/1991, and Garcie v Lusted [2014] TASSC 27 at [12]:
"In the case of a young offender there can hardly ever be any conflict between the public interest and that of the offender. The public have no greater interest than that he should become a good citizen. The difficult task of the court is to determine what treatment gives the best chance of realising that object. That realisation is the first and by far the most important consideration".
The courts recognise that imprisonment is likely to expose a young offender to the corrupting influence of criminals and confirm him in a path of crime: Lahey v Sanderson (above) at 21. It is not the case though that youth and the importance of rehabilitation necessarily overwhelm all the other sentencing goals such as general deterrence. It does not mean that young offenders have immunity from terms of imprisonment: Braslin and Cowen vTasmania [2010] TASCCA 1 at [28].
Nonetheless youth is a powerful mitigating factor and rehabilitation is a dominant goal. As stated by Pearce J in Garcie v Lusted (above) at [10]:
"The importance of youth as a sentencing consideration has been emphasised by this Court for more than 50 years. The Courts have long recognised that, generally speaking, the youthfulness of an offender is always a ground for extending leniency."

Manifestly inadequate?

The learned sentencing judge was entitled to conclude that, having regard to the respondent's age, the nature of his offending and his intellectual impairment, the primary focus of the sentence should be the respondent's rehabilitation rather than wider objectives such as general deterrence.
It was submitted for the Crown that, notwithstanding the importance of rehabilitation, there remained a need for general deterrence, denunciation, and protection of the public. Reference was made to Director of Public Prosecutions v NOP [2011] TASCCA 15, involving a crime of rape and indecent assault of a child committed by a 15-year old youth. The sentencing judge had imposed a probation order without recording convictions. Evans J, with whom the other judges of the Court agreed, noted at [41] that, whilst the needs of general deterrence and denunciation are muted when dealing with a youth, they should not be ignored. His Honour, at [42], recognised the undesirability that the young offender's peers should be left with an impression that the offender had received no penalty. The Court of Criminal Appeal upheld the appeal, and resentenced the respondent, ordering the imposition of convictions and a term of nine months' detention, wholly suspended for two years.
Usually, the crime of wounding results in a custodial sentence: Director of Public Prosecutions v Chatters [2011] TASCCA 26, 218 A Crim R 156 at [66] referring to Warner, Sentencing in Tasmania 2^nd ed, pars 11.305-11.306. Indeed, it is apparent from the learned sentencing judge's comments that a gaol sentence was contemplated, but this case was regarded as exceptional. The courts harbour considerable concern about the crime of wounding, particularly when involving the use of a knife. There is the potential for significant, indeed, grave harm. It is particularly concerning that the respondent took a knife to a fist fight with a student on school grounds in school hours. However, the nature of the offending here is to be distinguished from other more serious cases that are dealt with by the courts. As noted, it was an unpremeditated and a single, spontaneous blow in direct response to the complainant having the upper hand. This is not a case where the nature of the offending is so serious that it demanded an actual or a suspended term of imprisonment.
It is also not the kind of criminal offending which gives rise to distinct concerns about protection of the public. The Court was sentencing an unsophisticated, remorseful offender with a relatively low level of criminal culpability. It has not been demonstrated that he has a propensity for violence. His reform as a responsible citizen will achieve the purpose of protecting the public.
In considering how the sentence would be regarded by others in the community, the perspective must be that of an informed member of the public, aware of the sanction imposed, circumstances of the offender, and the nature of his offending. In this case, the informed community perspective involves awareness that the sanction was imposed after a "deferral" of the sentence to allow the respondent the chance to demonstrate his rehabilitation. Also, that the respondent had taken advantage of that period and demonstrated that he had prospects of reform, and it was in that context that a conviction and probation order were imposed. Given the relevance of that history, I endorse Crown counsel's observation that it is worthwhile for sentencing judges to record in their published sentencing comments a lengthy adjournment imposed for this purpose.
This is not a minimal sentence. While less onerous than other outcomes, a conviction and probation order carries potentially significant consequences. A probation order imposes certain statutory conditions set out in s 37 of the Sentencing Act 1997. If the respondent were to breach any of those conditions while the order is in place, such as committing an offence punishable by imprisonment, or by not complying with any of the directions given to him by his probation officer, then he may be subject to breach proceedings, and the order may be varied or cancelled. He may be resentenced, s 42(6), to any sentencing outcome that could have been imposed initially, which includes the imposition of a term of imprisonment.
As an observation, I note that Parliament has recently provided for a sentencing option of enabling a court to adjourn proceedings in relation to an offender so as to defer sentencing: s 7(eb) of the Sentencing Act. The court may do this for any purpose that the court considers appropriate, including to allow the assessment of the offender's capacity and prospects for rehabilitation, and to allow the offender to demonstrate that he or she is being, or has been, rehabilitated: s 57(2)(a) and (b). These purposes, recognised by Parliament, are closely aligned to the reasoning of the learned sentencing judge for taking the course he did.
It is acknowledged by the appellant that specific deterrence was not a significant sentencing consideration, having regard to his early plea of guilty, significant remorse and attempts at rehabilitation. The respondent's offending was not a repetition of similar offending in the past. To an extent the respondent had already felt the effects of his crime, aside from the sentence imposed by the Court. The respondent's offending had had a salutary effect, he was remorseful and distressed about what he had done. He had felt the punishment in the court process and in being remanded in custody overnight. He was not someone inured to that process and experience. The learned sentencing judge's approach of adjourning sentence as a test period had the potential for a punitive consequence, including a term of imprisonment, which was made plain to him by the learned sentencing judge.
Principally though, the reason why there was little need for specific deterrence was because of the respondent's efforts to rehabilitate, and the success of the order imposed by the Magistrates Court in facilitating his reform. Comprehensive supports were provided, and the respondent had been most co-operative. Moreover he had taken the initiative in enrolling in Project Booyah. It is noteworthy that the concerns about him attending that project were that essentially he may be overcommitted and compromise the success of his speech therapy. His compliance with the order since it had been imposed almost three months before, had been assessed and he was making good progress and engaging well. He had not reoffended since the order imposed by the Magistrates Court, and indeed since the commission of the crime of wounding, some six months before the sentencing date. Having read the reports detailing the respondent's difficulties, and profound challenges that he faces, the gains the respondent has made are particularly significant.
It was open to the learned sentencing judge to regard a more punitive outcome as not a meaningful message for this offender, and that in light of his progress, deterring him by fear of consequences was not necessary. It is noteworthy that the community service order imposed by the Magistrates Court was being carried out by attributing to his order, the hours the respondent was spending engaging in one of the programs, and not by providing work with the mainstream of young offenders. This avoided exposure to negative influences and also meant that the community service order did not detract from his ability to attend therapies and ongoing programs. The sentencing order imposed by the learned sentencing judge would also avoid the respondent's exposure to other offenders and their influence, and it would extend the period of supervised probation that was in place for a further eight months.
This was a merciful sentence which was tailored for the individual, and the objective of his reform. It was imposed at a critical stage of a young man's life in the context of a co-ordinated approach by multiple agencies representing a substantial investment by the community to achieve this purpose. The sentence imposed by the Magistrates Court had provided oversight of the supports and the respondent's compliance, and had proved successful. Given the respondent's positive response to that order it was legitimate for the learned sentencing judge to impose a sentence that would reinforce, and not undermine, the sentencing order imposed by the Magistrates Court. I respectfully agree with the learned sentencing judge that this case called for an exceptional response. A sentence that enabled the rehabilitation of the respondent coincided with the interests of the community.
In most respects a Crown appeal is to be determined in accordance with the same principles as an appeal brought by a defendant. These principles were usefully reviewed by Pearce J in Director of Public Prosecutions v Swan [2016] TASCCA 9 at [24] and following. The Court has a "residual discretion" to decline to interfere with a sentence, but that only arises if there was appealable error by the sentencing court. Here, given the ground of appeal is manifest inadequacy, the discretion is only enlivened if the sentence is shown to be unreasonable or plainly unjust: CMB v Attorney-General (NSW) [2015] HCA 9, 317 ALR 308, per French CJ and Gageler J at [32]-[33]. It is relevant to note that if the appellant had surmounted this hurdle, the appellant would then need to negate any reason why the residual discretion should be exercised: R v Hernando [2002] NSWCCA 489, 136 A Crim R 451 at [12]; CMB v Attorney-General at [34] and [66]. One of the reasons for exercising the discretion may be the circumstances of the case producing injustice to a defendant, such as delay in the appeal process associated with disruption of the offender's progress towards rehabilitation: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at [2]. Here there is no need to draw on the Court's residual discretion to dismiss the appeal, the leniency extended to the respondent fell within the proper exercise of the wide discretion afforded to sentencing judges.
Given all that I have referred to, the approach taken by the learned sentencing judge was warranted. The respondent was worthy of a sentence that acknowledged his progress and sought to further his rehabilitation. It was a just and reasonable sentence.

File No CCA 736/2018

DIRECTOR OF PUBLIC PROSECUTIONS v K D R

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

GEASON J
11 July 2018

I have read the reasons for judgment of Wood J and Marshall AJ.
I agree with their Honours' reasons for dismissing this appeal.
In considering this appeal, I was reminded of something Nettlefold J, a judge of this Court, said many years ago: "Justice shall not regard mercy as a trespasser on her domain." It is a compelling statement. It appears to me that something of the philosophy captured within it emerges in the approach of the learned sentencing judge in this case. In my view such an approach is entirely appropriate in a case like this.

File No CCA 736/2018

DIRECTOR OF PUBLIC PROSECUTIONS v K D R

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARSHALL AJ
11 July 2018

The appeal

The appellant, the Director of Public Prosecutions, appeals against a sentence imposed on the respondent, by Slicer AJ on 2 March 2018.
His Honour convicted the respondent of the crime of wounding contrary to s 172 of the Criminal Code. He sentenced him to a probation order for a period of 18 months. The practical effect of that order was to increase the respondent's period of supervision by eight months. On 5 December 2017, the Hobart Magistrates Court made a probation order for 12 months in respect of unrelated summary offending.
The sole ground of the appellant's appeal is that the sentence was manifestly inadequate.

The law

As Estcourt J said in Armstrong v Tasmania [2017] TASCCA 18 at [6]:
"The frequently stated legal principles applicable to appeals against sentence on the ground of manifest excess or inadequacy are clear and well settled. They can be found succinctly stated in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]–[34], per Porter J, and in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8], per Pearce J."
It must be shown that the sentence imposed is "unreasonable or plainly unjust". See House v The King (1936) 55 CLR 499 at 505. Even if such an error is shown, the appellant is required to persuade the Court that its residual discretion not to interfere with the sentence should not be exercised. See Director of Public Prosecutions v Harington [2017] TASCCA 4 at [96] per Pearce J.

The sentence

The following points emerge from the learned sentencing judge's comments on passing sentence:
·     The respondent and the complainant met at a school oval to engage in a pre-arranged fight. The respondent was aged 18 at the time and the complainant was aged 14.
·     During the fight the respondent stabbed the complainant in his knee. The wound was minor in nature and did not require stitching. The incident occurred on 16 October 2017.
·     The respondent committed a series of offences in the period between February and October 2017, including assault, burglary, stealing and traffic-related offences which were dealt with collectively on 5 December 2017 in the Hobart Magistrates Court. The respondent was placed on probation and ordered to undertake supervised community service.
·     The respondent had a difficult childhood. He was raised by his mother who had health issues and was the victim of family violence after her separation from the respondent's father.
·     The respondent has had health and behavioural issues since a very young age. He was diagnosed at the age of 5 with a brain injury and Attention Deficit Hyperactivity Disorder ("ADHD"). Because of his ADHD, the respondent found school difficult.
·     The National Disability Insurance Agency ("NDIA") caused an assessment to be made of the respondent under the National Disability Insurance Scheme ("NDIS"). A rehabilitation scheme was arranged for the respondent under the NDIS, backdated to operate from July 2017, to be reviewed in April 2018. NDIA implemented a support plan, provided allocated funds for daily living, social community participation, supported co-ordination, transport and care reports. The sentencing judge was provided with a progress report showing the benefits of the support plan.
·     The respondent has complied with his community service order program and has been polite and respectful.
·     The respondent has been accepted into a 20-week program for the period 12 February 2018 until 6 July 2018 called "Booyah", which is a community body supported by the Tasmania Police Community Youth Clubs ("PCYC"). The sentencing judge received a positive report about the respondent from the PCYC after the respondent had completed three weeks of the course.
·     Imprisonment would undermine the progress made by the respondent towards his rehabilitation.
·     The respondent is of aboriginal descent and has suffered social, economic and mental health disadvantages.
·     A suspended sentence is inappropriate in circumstances where rehabilitation is intended to remedy harm previously suffered, rather than to rely on "fear of future consequence". The learned sentencing judge said:
"The Court is attempting to assist in rehabilitation rather than using a potential consequence of imprisonment as a vehicle for change."
·     The probation service recommended an order of supervised probation of 18 months which would extend the period of suspension by about eight months and permit ongoing case management.

The appellant's contentions on the facts

The appellant does not submit that a period of immediate imprisonment should have been imposed. The appellant contends that the sentencing judge should have imposed a wholly suspended sentence, or a community service order, or a combination of each, to mark the objective seriousness of the conduct.
The appellant referred to aggravating factors which included the following:
·     The effect of the crime on the complainant, who became paranoid when he saw the respondent with other people.
·     The respondent's recent criminal history.
·     The age of the complainant, who was at school during school hours.
·     The premeditated nature of the offence and use of a knife, in circumstances where the agreement to fight did not involve the use of weapons.
·     The respondent was on bail at the time of the offence.
·     The respondent, the appellant contended, intended to cause a wound when he used the knife.
The appellant also referred to mitigating factors which included:
·     An early guilty plea.
·     Remorse.
·     The respondent being a youthful offender.
·     The respondent's health issues.
·     Low cognitive function and low adaptive functioning of the respondent.
·     The respondent's difficult childhood and his close relationship with his mother.
·     The respondent being illiterate and bullied at school.
·     The engagement of the respondent with health professionals under the NDIS.
·     The respondent's engagement in Project Booyah.

The respondent's contentions on the facts

Counsel for the respondent contended that the complainant's injury was minor and no disability arose from it. At the time of sentencing, the wound was described as "superficial" with "no ongoing injury".
Counsel referred to the respondent's positive engagement on his existing community service and probation orders. Counsel took issue with the appellant's assertion that the offence was premeditated. The respondent, it was submitted, engaged in an unpremeditated blow in direct response to being put in a headlock by the complainant. There was a lack of evidence of the intention to actually use the knife in the fight.
The respondent accepts that he was on bail at the time of the offence, but says there were no conditions that restricted his movements at the time of the offending, nor any specific bail conditions breached by his offending.
Counsel for the respondent emphasises the respondent's early guilty plea, his remorse, youthfulness, impaired cognitive functioning, rehabilitation and aboriginality.

Discussion

It is common ground that the majority of sentences for wounding have resulted in a custodial sentence. Counsel for the appellant submits that past sentences can stand as a yardstick by which a sentencing court can achieve consistency in sentencing and the application of relevant sentencing principles. However, both counsel acknowledge that the crime of wounding covers a wide range of conduct.
Counsel for the appellant has set out a table in written submissions which shows that, in the overwhelming majority of cases involving wounding, a wholly or partially suspended sentence has been imposed. Counsel contends that the sentence imposed on the respondent fell so far short as to constitute appealable error.
There is no issue between the parties that specific deterrence does not loom large as a consideration in this matter. That is because of the respondent's early guilty plea, his significant remorse and rehabilitation efforts.
Counsel for the respondent submits that general deterrence is not an important factor in the current case because of the youth and mental impairment of the respondent. Counsel referred to the judgment of Hunt CJ at CL in R v Harrison (1997) 93 A Crim R 314 at 320, where the following was said:
"Except in well-defined circumstances such as the youth or the mental incapacity of the offender … public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed."
A sentencing judge has a wide measure of latitude in determining an appropriate sentence: Postiglione v The Queen (1997) 189 CLR 295 at 336 per Kirby J. Sentencing involves an intuitive process in which a discretion is exercised within wide parameters, proportionate to the circumstances of the offence and the offender: Daley v Tasmania [2016] TASCCA 10 at [42], per Brett J.
A suspended sentence can result in a criminal record which disadvantages an offender, particularly in relation to finding employment: see Director of Public Prosecutions (Acting) v Morgan [2015] TASCCA 11 at [40] per Wood J, citing Blow CJ in Director of Public Prosecutions (Acting) v Hawkins [2015] TASCCA 8 at [13].
The respondent has good prospects of rehabilitation. The extension of his probation period by the learned sentencing judge enhanced the respondent's prospects of rehabilitation. The extension of the probation period was not, as counsel for the appellant suggested, the equivalent to the imposition of no penalty. There was no evidence that the crime was premeditated, as distinct from a response to being put in a headlock. It is incorrect to say, as the appellant asserts in written submissions, that the crime was part of a spate of offending that ceased only when the respondent was incarcerated. The respondent spent one night in custody in relation to the charge on 16 October 2017. He was bailed on 17 October 2017 and not sentenced until 2 March 2018. He has not re-offended.
The mitigating factors in this matter were powerful considerations in support of the sentence arrived at by the learned sentencing judge. They were "well defined circumstances" (to use the language of Hunt CJ at CL in Harrison) which limited the relevance of general deterrence. At the time of sentencing, the respondent was progressing well in his rehabilitation. The sentence imposed was designed to aid in that progression. In all the circumstances, whilst a fully suspended sentence may have been an option open to the sentencing judge, I do not consider that the sentence imposed was unreasonable or plainly unjust. For these reasons I joined in the making of the order dismissing the appeal.