Director of Public Prosecutions v Vincent - [2020] TASCCA 16

[2020] TASCCA 16

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

CITATION: Director of Public Prosecutions v Vincent [2020] TASCCA 16

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  VINCENT, Corey

FILE NO:  CCA 2158/2020
DELIVERED ON:  24 November 2020
DELIVERED AT:  Hobart
HEARING DATE:  11 November 2020
JUDGMENT OF:  Blow CJ, Pearce J, Martin AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Three assaults – Gratuitous attacks on young men walking in city at night – Significant rehabilitation prospects – Wholly suspended sentence of 18 months' imprisonment and community correction order for 12 months not manifestly inadequate.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  L A Mason SC and E Stone
             Respondent:  P Morgan
Solicitors:
             Appellant:  Director of Public Prosecutions

Judgment Number: [2020] TASCCA 16
Number of paragraphs: 47

Serial No 16/2020
File No CCA 2158/2020

DIRECTOR OF PUBLIC PROSECUTIONS v COREY VINCENT

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
PEARCE J
MARTIN AJ
24 November 2020

Order of the Court (11 November 2020)

Appeal dismissed.

Serial No 16/2020
File No CCA 2158/2020

DIRECTOR OF PUBLIC PROSECUTIONS v COREY VINCENT

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
24 November 2020

The respondent pleaded guilty to three counts of assault. Estcourt J sentenced him to 18 months' imprisonment, wholly suspended that sentence, and made a community correction order for a period of 12 months. The Director of Public Prosecutions appealed, contending that the sentence was manifestly inadequate. The appeal was heard on 11 November 2020. At the conclusion of the hearing this Court dismissed the appeal, reserving its reasons for publication at a later date. My reasons for joining in the dismissal of the appeal accord with those now published by Martin AJ. There are some additional comments that I would like to make.
A chronology may assist in demonstrating why, in my view, it was neither unreasonable nor unjust for the respondent not to be sent to prison. The relevant events were as follows:
·     The first two assaults were committed on 21 December 2018.
·     The third assault was committed on 28 April 2019.
·     In or about February 2020, according to information contained in a home detention assessment report, the respondent took LSD for the first and only time, saw "what a dark place he was in" and made significant changes to his life. He ceased using illicit substances. He ceased consuming bourbon. He ceased going out and partying on weekends. He changed the people he spent time with "to more pro-social people". He changed his attitude to life. He developed ambitions to gain stable employment and purchase a house. The author of the report, a probation officer, confirmed these changes by speaking to a female friend of the respondent. The probation officer said that the respondent used LSD and then started to make these changes about six months before the time of her report, which was dated 11 August 2020.
·     The sentencing orders were made on 31 August 2020. There was no suggestion that the respondent had been in any trouble since the time when he made the major changes outlined in the report.
The respondent had stable employment. He had not been to prison before. The suspended sentence gave him a very strong incentive not to go back to his old ways. If he re-offends within two years after the date of the sentencing, the suspended sentence will have to be fully activated unless a judge considers that course unjust: Sentencing Act 1997, s 27(4B) and (4C). If that happens, the respondent will deserve to go to prison. On the other hand, if he does not re-offend within the two years after the date of his sentencing, that will be a very strong indication of rehabilitation, and he will deserve to be excused from serving his sentence. It is in the public interest that he not commit any further crimes, and the suspended sentence should help to achieve that objective.

File No 2158/2020

DIRECTOR OF PUBLIC PROSECUTIONS v COREY VINCENT

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
24 November 2020

I joined in the order dismissing the appeal for the reasons now published by Martin AJ. I wish to add that I endorse the comments from [43] of his Honour's reasons about the seriousness of crimes of this nature. In my respectful opinion, it would have been well within the proper exercise of the sentencing discretion to order that the respondent actually serve all, or a significant part, of the term which was imposed. However, in an appeal on this ground, that is not to the point. For the reasons expressed by Martin AJ, and in the additional comments of Blow CJ, I was persuaded that the approach taken by the learned sentencing judge was not unreasonable or plainly unjust.

File No 2158/2020

DIRECTOR OF PUBLIC PROSECUTIONS v COREY VINCENT

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARTIN AJ
24 November 2020

Introduction

The respondent pleaded guilty to three counts of assault charged on two indictments. On 31 August 2020 Estcourt J imposed a single sentence of imprisonment for 18 months, and suspended the sentence for a period of 2 years. In addition, the learned sentencing judge made a community correction order for a period of 1 year, which included conditions involving supervision by a probation officer and submission to various assessments, counselling and treatment.
The Director of Public Prosecutions (the Director) appealed against the sentence on the sole ground that the sentence was "manifestly inadequate in all the circumstances of the case".
At the conclusion of the oral submissions the Court dismissed the appeal. I now set out my reasons for agreeing that the appeal be dismissed.

Facts

At the time of the offending the respondent was aged 23 years. Two of the crimes were committed on 21 December 2018 when the victims were both aged 21. Prior to the occasions in question, the respondent and the victims were not known to each other.
During the evening of 21 December 2018 the first victim, Mr S, had been socialising with friends. Shortly after midnight he and his friends were walking near the Salamanca taxi rank when he was approached by the respondent and a group of male persons. Mr S heard racist remarks being directed at him from the group, and believed that they were trying to provoke a fight.
The second victim, Mr K, asked Mr S what was happening and was told that the group were trying to provoke a fight. Another racist remark was directed at both victims and a verbal altercation ensued.
The assault upon Mr S then occurred when the respondent approached Mr S from behind and threw him to the ground. While Mr S was on his knees, the respondent kicked Mr S in the face with sufficient force to render Mr S unconscious and lying face down on the ground.
Mr K went to the aid of Mr S and crouched down next to him. The respondent walked up to Mr K and punched him to the right side of the face. Mr K moved in an attempt to get away from the respondent, but the respondent continued to punch Mr K. He struck Mr K multiple times to the head with both fists and pulled Mr K's shirt off, after which he walked away.
A further altercation broke out between Mr K and the respondent, but was quickly broken up by attending police officers and bystanders.
A witness filmed the assaults on his mobile phone. The sentencing judge and this Court viewed the footage. The entire incident occupied approximately 16 seconds.
The victims did not receive medical treatment. Mr S suffered a sore right jaw, bruising to the left side of his face and an abrasion above his right eye. Mr K did not report any injuries. Neither victim provided a victim impact statement.
The victims identified the respondent through the use of Facebook. The respondent first appeared in the Magistrates Court on 24 April 2019 when he entered a plea of not guilty to assaulting Mr S, and the charge relating to Mr K was adjourned sine die. After committal to appear in the Supreme Court on 14 October 2019, in November 2019 counsel indicated a plea of guilty.
When the respondent appeared in the Magistrates Court on 24 April 2019, he was granted bail. Only four days later he committed the third assault. The victim was Mr M. The offending occurred at about 4.30am on 28 April 2019 outside the front entrance of The Observatory bar where Mr M was in the company of three friends. The respondent and a group of male persons were gathered inside the front entrance of the bar.
The respondent spoke to a friend of Mr M, and Mr M told the respondent to leave him alone, after which the respondent walked away towards the waterfront. The respondent then removed his jacket/jumper, which he handed to an unknown male, obviously with the intention of confronting Mr M. The respondent approached Mr M and punched him to the side of the head, causing him to fall backwards onto the ground. The fall caused Mr M to strike his head on the ground and he was rendered unconscious for approximately 5 minutes.
Mr M sustained a bruise to his left temple and suffered concussion which left him without a memory of most of the night. In addition, Mr M suffered severe headaches for a month and required pain medication for approximately 6 weeks to assist with the headaches.
In the fall after being punched, Mr M's ankle twisted underneath him, causing a fracture dislocation of his right ankle which required surgery on 30 April 2019 to relocate the ankle. Mr M remained in hospital for 5 days and was released with a cast on his ankle which remained in place for a month, after which Mr M was required to wear a moonboot for another 5 months. At the time of sentencing on 31 August 2020, the injury to Mr M's ankle was not completely resolved. Mr M is from New Zealand and, at the time of being assaulted, was working as a diver in Tasmania. As at 31 August 2020, Mr M had not been able to return to his occupation and had suffered considerable financial loss. Mr M's mental health was adversely affected and he suffered from depression over the last 2 months of his recovery.
As to matters personal to the respondent, the trial judge summarised the relevant circumstances from the respondent's early life:
"The most significant event of his formative years occurred when he was 12 years old. His step-father was stabbed to death in front of him. He describes hiding in bushes in close proximity to where it occurred, and watching as his step-father died.
The defendant suffered constant physical abuse in the care of his mother from as far back as he can remember, one of his first memories of her smashing his face so hard into a plate of vegemite sandwiches that it smashed. He had not started school at that time and that was simply for not wanting to eat vegemite.
I have had the benefit of a FMHS report from Clinical psychologist Dr David Tuck. He advises me that:
'With reference to Your Honour's requested area of focus, it is evident that Mr Vincent likely meets the diagnostic criteria for post-traumatic stress disorder. However, given his tendency to exaggerate psychopathology and his efforts to manage the impression that he gives in interview, the exact intricacies and magnitude of his symptoms is difficult to articulate with any clinical certainty.
In any event, the symptoms of post-traumatic stress disorder that are experienced by Mr Vincent do not offer a causal explanation for the offending behaviour for which he is currently before the Court.
As stated in his interview, the material events were consistent with a trajectory of self-destructive behaviours, resulting from his effective hyperreactivity and hyperarousal, and his exposure to and familiarity with violence, exacerbated by significant alcohol and stimulant intoxication.'
Mr Tuck noted that it was unfortunate that Mr Vincent does not see any merit in engaging with a suitably qualified mental health professional."
The sentencing judge noted that the respondent has no prior convictions for assault and that his prior offending is "reflective of his use of alcohol from a young age and his tendency towards poor decision making under the influence of alcohol". The appellant does not challenge his Honour's conclusion in this regard, but contended that the numerous breaches of court orders and repeated minor offending during the period 2016-2019 were demonstrative of the need for a sentence which would act as an effective personal deterrent.
The respondent is a qualified carpenter and his Honour accepted that the respondent had an excellent work history with a "strong work ethic and pride in his achievement". He was in good physical health. The respondent had a partner of approximately 18 months, but at the time of sentencing was living independently. He intended to move back with his partner at the end of the lease of the premises in which he was residing.
Significantly with respect to the prospects of rehabilitation, the sentencing judge appears to have accepted that the respondent was taking steps to address his problems and had come to an understanding of the impact of his crime upon Mr M:
"With reference to the principles of Verdins[1], Dr Tuck is of the view that in his clinical opinion, none of the limbs are enlivened by Mr Vincent's psychopathology.
Dr Tuck also notes that the statements made to him by the defendant, in some respects, are inconsistent with 'feelings of shame and regret' expressed in the draft mitigation submissions.
As against that the defendant's counsel Ms Morgan informs that the defendant recently recognised that he needed to come to terms with his past, and accept the limitations of his parents, and their failure to protect him as a child, and young adult. He instructs that he has now found the capacity to forgive his mother and to recognise that he is responsible for his own healing.
Ms Morgan informs me that the defendant describes an understanding and acceptance that he will have a life time of managing his mental health and working on his emotional regulation, and that his own trauma responses should not put others at risk. He is confident that he has made some significant improvements in his emotional regulation. He has reduced his alcohol consumption. He has been medicated for his insomnia and his sleep has improved markedly, and this in turn has improved his mood. He has been working on finding another psychologist with whom he can develop a long term therapeutic relationship.
I am informed that the defendant has read the Victim Impact Statement of the complainant, [M], and describes feeling terrible that his overreaction to a situation he did not need to involve himself in resulted in such a complex and drastic effect on the life of the person hit. He describes feelings of shame and regret for what has happened to [M].
I sought a report on the defendant's suitability for home detention. He is not considered suitable. Nor is he suitable for community service.
He is in employment and is taking steps to address his problems, as I have indicated."
[1] R v Verdins [2007] VSCA 102, 16 VR 269
In support of the appeal, the Director pointed to the absence of mitigating circumstances accompanying the offending, and highlighted the following matters:
·     The respondent committed serious acts of unprovoked violence on two separate occasions in the public area of the Hobart waterfront. Such violence undermines "the community's feeling of safety and security".
·     The crimes involved significant force and were focussed on violence to the head. Violence of this nature "ought to have attracted weighty consideration of general deterrence and denunciation".[2]
[2] Director of Public Prosecutions (Acting) v Morgan [2015] TASCCA 11, 28 Tas R 365 at [39].
·     None of the victims had an opportunity to protect or defend themselves.
·     There was an obvious risk of more severe injury to each of the victims.
·     Mr K was assaulted while he was attempting to assist Mr S, who was lying face down unconscious on the ground having been kicked in the head by the respondent.
·     Mr M suffered a serious injury with the facture dislocation of his right ankle and the adverse impacts of that injury have been significant.
·     The crimes committed on 21-22 December 2018 were committed while the respondent was subject to a 12 month probation order which contained a condition that he undergo assessment and treatment for alcohol and drug dependency.
·     When the respondent committed the crimes, he was significantly under the influence of alcohol and illicit substances. Further, the respondent was already on notice about the impact of alcohol and illicit drugs on his behaviour and was aware that consumption might cause him to lose control and act violently and aggressively.
·     At the time the respondent assaulted Mr M, he was on bail for the offences against Mr K and Mr S, having been released on bail only 4 days earlier. The respondent was also the subject of an undertaking to be of good behaviour. His crimes demonstrated a contempt for the law and authority.
·     "The seriousness of the [respondent's] crimes required the imposition of a sentence that served the needs of general deterrence, punishment and denunciation. A wholly suspended sentence in the circumstances does not adequately serve those needs."[3]
·     As to the prospects of rehabilitation, the appellant's written submissions were as follows:
"55      With respect to prospects of rehabilitation, the respondent initially demonstrated a poor attitude and unwillingness to cooperate with Community Corrections in relation to his home detention assessment, although it is conceded that he complied when given a second opportunity. Relevantly, he had also previously had the benefit of community based orders, namely a probation order aimed at addressing his alcohol and illicit substance use in addition to a community service order (AB 30). The respondent was subject to the probation order at the time of the crimes against [Mr K] and [Mr S].
56       While it was submitted in mitigation that the respondent was working on finding a psychologist with whom he could develop a long-term therapeutic relationship (T 14-15) and that 'he [was] very keen to continue to work with professionals to improve himself' (T 15.3-4) this was not borne out by the contents of either of the court ordered reports. He indicated to both Dr Tuck and Ms Dance that he already knew everything he needed to in relation to his mental health and expressed an unwillingness to seek professional help.
57       While there was an assertion of shame and regret advanced by the respondent's Counsel at the time of the sentencing hearing, this was inconsistent with remarks made by the respondent in relation to the crimes when interviewed by both Dr Tuck and Ms Dance and was a matter that was highlighted by Counsel for the State prior to the respondent being sentenced (T 27)."

Crown appeal – principles

[3] Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, 20 Tas R 399 at [11], approved in Director of Public Prosecutions v Chatters [2011] TASCCA 9, 21 Tas R 26 at [67].

The principles governing Crown appeals against sentence are not in doubt. They were helpfully summarised by Pearce J, with whom Tennent and Wood JJ agreed, in Director of Public Prosecutions v Harington [2017] TASCCA 4, 27 Tas R 128 at [94]-[96]:
94       In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, I summarised the principles to be applied by this Court in appeals on the ground of manifest excess or manifest inadequacy in the following terms:
'As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be "accorded a wide measure of latitude": Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539.'
95       This is a Crown appeal. The principles to be applied were reviewed in Director of Public Prosecutions v Swan [2016] TASCCA 9 at [24] and following. Those principles derive from the underlying principle that a primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465-466 [1]- [2]. They also serve to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]- [116]. In Everett v The Queen, McHugh J said at 306:
'Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.'
96       The appellant's right of appeal derives from the Code, s 401(2)(c). The appellant must persuade this Court that a more severe sentence is warranted in law and should have been passed in substitution for the original sentence. In any other case, the Court must dismiss the appeal. Thus, the appellant must not only establish appealable error in the exercise of the sentencing judge's sentencing discretion, but also negate any reason why this Court's residual discretion not to interfere should be exercised: R v Hernando [2002] NSWCCA 489, 136 A Crim R 451 at [12]; CMB v Attorney-General (NSW)[2015] HCA 9, 317 ALR 308, 89 ALJR 407; 243 A Crim R 282, per French CJ and Gageler J at [34], and Kiefel J (as she then was), Bell and Keane JJ at [66]."

Discussion

The sentencing judge did not misapprehend the facts or relevant principles. Although the written submissions impliedly challenged his Honour's findings as to the respondent's prospects of rehabilitation, notwithstanding the respondent's contradictory statements identified in the Director's written submission, the Director conceded it was open to his Honour to make the findings to which I have referred. That concession was properly made. In addition to the matters specifically identified by the sentencing judge in his remarks, in the home detention assessment report the probation officer provided material which strongly supported a view that the respondent had turned his life around and was making good progress with his rehabilitation. The probation officer reported:
· "He [the respondent] claims approximately six months ago he tried LSD for the first time and it 'opened his mind to his life' making him see what a dark place he was in. He claims it was a life changing moment for him and he has not used any illicit substance nor consumed bourbon since. He has never received treatment or support for his abuse of illicit substances nor does he feel he needs any."
· "The [respondent] reported he has completely turned his life around over the past six months. He stated he stopped using all illicit substances and drinking bourbon; he has stopped going out and partying on weekends; he has changed the people he spends time with to more pro-social people; and finally, he has changed his attitude to life, stating he now has ambitions to gain stable employment and purchase a house. A collateral check with his friend [Ms D], confirmed this change in attitude and lifestyle."
In view of contradictory statements made by the respondent, it might be said that the respondent was fortunate that the sentencing judge reached a view generous to the respondent. However, his Honour was well aware of the contradictory statements and had regard to all the relevant material, including the assertion that the respondent had turned his life around, an assertion which was supported by his friend. The Director has not identified any specific error by the sentencing judge, and his Honour's view was plainly open to him.
As to the length of the sentence, the Director's written submissions referred to statistical material which demonstrates that during the period 1990-2000, the median for a global sentence, including assault, was imprisonment for 12 months.[4] Statistics provided by the Sentencing Advisory Council demonstrate that during the period 2001-2014, sentences of imprisonment ranged from 2 to 42 months, with a median sentence of 12 months.
[4] Professor Kate Warner – Sentencing in Tasmania 2^nd ed, The Federation Press 2002 [11.321].
There is no "tariff" or "standard range of imprisonment" for the offence of assault. It is an offence committed in an infinite variety of circumstances, and each sentence must be assessed according to the particular circumstances of the offending, and of the offender.
In oral submissions, senior counsel for the Director did not challenge the adequacy of the single head sentence of imprisonment for 18 months. Counsel accepted that such a sentence was within the range of the sentencing judge's discretion, and not manifestly inadequate. I agree with that position. Although there were a number of features which demonstrate that the offending was serious, particularly in respect of the second occasion when Mr M was injured, those features were to be weighed against the nature of the relatively minor offending on the first occasion, the respondent's youth and absence of prior offences of violence, the good work record of the respondent and his prospects of rehabilitation. Having regard to the totality of the offending and matters personal to the respondent, in my opinion the single sentence of imprisonment for 18 months was well within the range of the sentencing judge's discretion.
The challenge to the adequacy of the sentence was based upon suspension of the sentence which counsel urged resulted in a sentence that was manifestly inadequate. The substance of the challenge to suspension was found in the following passages from the Director's written submission:
"[48]The seriousness of the accused's crimes required the imposition of a sentence that served the needs of general deterrence, punishment and denunciation. A wholly suspended sentence in the circumstances does not adequately serve those needs. As stated by Evans J in Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASSCA 13; (2010) 20 Tas R 399 at [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 sentence 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.'
[49]The above passage was approved by the Court in Director of Public Prosecutions v Chatters [2011] TASCCA 8; (2011) 21 Tas R 26 at [67] and the Court stated that 'a wholly suspended sentence is a severe sentence, and a more severe sentence than many members of the public might realise.' The Court also highlighted at [67] that since Director of Public Prosecutions v Broadby, Cockshutt and Woolley (supra) the Tasmania legislation concerning suspended sentences has become stricter. Notwithstanding this, in some cases a more tangible form of punishment is required to reflect the serious nature of the crimes."
The Director's written submission also included a contention that there were "no strong considerations in this matter that would justify 'special leniency or special encouragement of rehabilitation'." Implied in this submission was the proposition that "strong considerations" were required to justify fully suspending the sentence. Reliance was placed upon a passage in the judgment of Parker J in Latham v The Queen [2000] WASCA 338, 117 A Crim R 74 at [33], a passage which the Director submitted was cited with approval by this Court in Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, 20 Tas R 399 at [11].
In Broadby, the offenders pleaded guilty to a charge of aggravated robbery and were sentenced to imprisonment for 8 months, the whole of the sentence being suspended on conditions. An appeal by the Director on the basis that the wholly suspended sentence was manifestly inadequate was allowed, and sentences of 8 months' imprisonment to be served were imposed.
In a judgment with which Porter and Wood JJ agreed, Evans J discussed the "marked divergence between the views of the judiciary and the community in relation to the impact of suspended sentences" [9]-[10]. His Honour's judgment continued at [11]-[12]:
"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 [2000] WASCA 338; (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'."
In Director of Public Prosecutions v Chatters [2011] TASCCA 8, 21 Tas R 26, the offender had pleaded guilty to serious charges of aggravated burglary, assault and two woundings. The learned sentencing judge imposed a sentence of imprisonment for 10 months which was wholly suspended. An appeal by the Director on the basis that the sentence was manifestly inadequate was allowed to the extent of varying the sentence to add a condition that the offender perform 210 hours of community service.
It is clear from the judgment in Chatters that a change in the circumstances of the offender between sentencing and the hearing of the appeal persuaded the Court not to interfere with the suspension of the sentence, but to add conditions. As to suspended sentences, the Court said at [66]-[68]:
"[66]In the vast majority of cases, the crime of wounding results in a custodial sentence. See Warner, Sentencing in Tasmania, 2^nd ed, pars11.305–11.306. Given that the respondent's crimes involved a degree of premeditation, the use of a weapon, a home invasion, and a sustained vicious attack, we consider that the head sentence of 10 months' imprisonment was very low, and that a wholly suspended sentence, without more, was a manifestly inadequate penalty, despite all the mitigating factors that we have referred to.
[67]It is true that a wholly suspended sentence is a severe sentence, and a more severe sentence than many members of the public might realise. The nature and status of a suspended sentence was discussed by Evans J in Director of Public Prosecutions v Broadby (above) at [7]–[12]. We agree with that analysis, and need not repeat it. Since that case, the Tasmanian legislation concerning suspended sentences has become stricter. Amendments to the Sentencing Act took effect on 1 January 2011. Now s24(1) makes every suspended sentence subject to a condition 'that the offender does not commit another offence punishable by imprisonment during the period that the order [suspending the whole or a part of a sentence] is in force.' Applications for an offender who has breached a condition of a suspended sentence may now be made orally: s27(4). If a court is satisfied that an offender has been found guilty of a new offence, the court must activate the suspended sentence unless it is of the opinion that that would be unjust: s27(4B) and (4C).
[68]However, despite the serious nature of a wholly suspended sentence of imprisonment, we consider that the respondent's crimes were so serious that some more tangible form of punishment – either a period of actual imprisonment or a condition requiring the respondent to perform community service – was warranted."
The place of suspended sentences in the matrix of sentencing options was also explained by Blow CJ in Director of Public Prosecutions (Acting) v Hawkins [2015] TASCCA 8. The court was concerned with a head sentence of 12 months' imprisonment, wholly suspended, for crimes of demanding property with menaces with intent to steal, robbery and assault. In a judgment with which Porter and Wood JJ agreed, Blow CJ said at [13]:
"[13] Despite the substantial mitigating circumstances, these crimes called for a sentence that would adequately condemn the respondent's conduct, that would deter him from re-offending, and that should act as a general deterrent to others. Unfortunately the perceptions of large sections of the public as to suspended sentences are such that they do not tend to have much effect by way of general deterrence. As Evans J observed in Director of Public Prosecutions v Broadby, Cockshut and Woolley (2010) 20 Tas R 399 at [9], 'there is a marked divergence between the views of the judiciary and the community in relation to the impact of suspended sentences'. There is a tendency for members of the public to regard a suspended sentence as scarcely being any punishment at all. That view is misconceived. For one thing, a criminal record that includes a suspended sentence can disadvantage an offender in a number of ways, particularly in relation to obtaining employment. A suspended sentence involves a denunciation of an offender's conduct, and should provide an offender with a strong incentive not to re-offend. It is always highly likely that a suspended sentence will be fully activated if re-offending occurs. However, the fact that a wholly suspended sentence, without more, has limited effect by way of general deterrence is something that weighs in favour of a harsher package of sentencing orders than those imposed by the learned sentencing judge."[5]
[5] Cited in Director of Public Prosecutions (Acting) v Morgan [2015] TASCCA 11, 28 Tas R 365 at [40].
In Hawkins, the appeal was allowed to vary the suspended sentence by adding a condition requiring that the offender perform 168 hours of community service. However, the sentencing judge faced a difficulty with respect to such a course, or home detention, for the respondent. The probation officer who provided the home detention assessment report stated plainly that the respondent was not recommended for home detention, and was unsuitable for community service, because of the lack of a suitable residence and his complex mental health issues.
It is obvious that in cases of particularly serious offending, the importance of general deterrence, denunciation and punishment might dictate that suspension of a sentence is inappropriate, or justified only if the considerations favouring suspension are particularly strong. However, the authorities do not support the broad proposition that, if the circumstances require a sentence of imprisonment, suspension of the sentence is justified only if there are "strong considerations" favouring such a course.
Each case must be determined according to its particular circumstances, recognising that a suspended sentence is a "severe sentence", and a "more severe sentence than many members of the public might realise", but also recognising that the utility of a suspended sentence "is constrained in circumstances which require that the sentencer pays particular attention to considerations such as general deterrence, punishment or denunciation". In addition, it should not be overlooked that a suspended sentence "publicly condemns and stigmatises the criminal conduct, marking it as sufficiently serious as to warrant imprisonment, and in some cases lengthy imprisonment."[6]
[6] Director of Public Prosecutions (Acting) v Hawkins [2015] TASCCA 8 at [13] per Blow CJ.
The assaults committed by the respondent, particularly the assault upon Mr M, were serious crimes. However, they are not at the higher end of the scale of seriousness for crimes of violence which, unfortunately, too often involve prolonged violence resulting in extensive and life threatening injuries. General deterrence, punishment and denunciation are significant factors, but the circumstances of the offending do not dictate that these factors must necessarily prevail over matters personal to the respondent and his rehabilitation to the exclusion of a suspended sentence. The forensic mental health report and the home detention assessment demonstrate, as the respondent submitted, that the respondent has suffered from complex mental health issues and his personality would make time in prison difficult for him. The sentencing judge reached the view that the protection of the community would best be served by avoiding the detrimental influence of imprisonment, and through suspension of the sentence on conditions involving supervision which would assist the respondent in his rehabilitation. In my opinion this was a view open to his Honour on the material presented to him.
Alcohol and drug fuelled violence by aggressive young men in the early hours of the morning, in public places, is far too common. It is dangerous and possesses the obvious potential of causing serious harm and, on occasions, death. The community is gravely concerned about this type of conduct and expects the Court to respond with appropriate sentences that will act as a general deterrent and reflect the community's denunciation of such conduct. The public is entitled to attend at public places, at any time of the day, without fear of being attacked or caught up in violent confrontations.
In recent years, sentencing judges have reflected the concern of the community by imposing sentences of imprisonment, at times lengthy sentences of imprisonment, to be served entirely, or suspended only in part. Young men should understand that if they engage in violent conduct in public places, they can expect to receive significant sentences of imprisonment. In view of the prevalence of this type of offending, and the community's concern, such offenders can also expect that it will be difficult to persuade a court that suspension, either wholly or partly, of a sentence, is justified.
As the Chief Justice observed when delivering the decision of the Court following oral submissions, in the type of circumstances under consideration offenders should ordinarily expect that they will be required to serve at least some part of a sentence of imprisonment. In more serious cases, they can expect to serve the entire sentence.
In the matter under consideration, as I have said, the respondent was fortunate that the sentencing judge took a generous view of his prospects of rehabilitation and exercised significant leniency in suspending the whole of the sentence. In my opinion, however, the views reached by his Honour were open to him and the suspension of the sentence was not so lenient as to amount to an error justifying interference by this Court. The suspension of the sentence did not result in a manifestly inadequate sentence.
For these reasons, I joined in the order that the appeal be dismissed.