Hales v Tasmania

[2009] TASSC 100

[2009] TASSC 100

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

CITATION:      Hales v  Tasmania [2009] TASSC 100

PARTIES:  HALES, Shaun Daniel
  v
  TASMANIA, State of

FILE NO/S:  CCA 4/2009
JUDGMENT
DELIVERED ON:  13 November 2009
DELIVERED AT:  Hobart
HEARING DATE:  10 August 2009
JUDGMENT OF:  Crawford CJ, Blow and Porter JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Whether sentence for manslaughter manifestly excessive.

Aust Digest Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  T Jago
             Respondent:  C Rheinberger, S Nicholson
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2009] TASSC 100
Number of paragraphs:  54

Serial No 100/2009

File No CCA 4/2009

SHAUN DANIEL HALES v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD CJ
  BLOW J
  PORTER J
  13 NOVEMBER 2009

Orders of the Court

1. Appeal against sentence allowed.

1. Sentences quashed.

1. The appellant is sentenced on the first count of manslaughter to imprisonment for 7 years from 21 May 2008 and it is ordered that he is not to be eligible for parole until he has served 4 years 6 months of the imprisonment.

1. The appellant is sentenced on the second count for wounding to imprisonment for 12 months, cumulative on the imprisonment imposed for manslaughter, and it is ordered that he is not to be eligible for parole until he has served 7 months of the imprisonment.

1. The appellant is sentenced on the third count for wounding to imprisonment for 1 year 6 months, cumulative on both of the other sentences, and it is ordered that he is not to be eligible for parole until he has served 11 months of the imprisonment.

Serial No 100/2009

File No CCA 4/2009

SHAUN DANIEL HALES v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD CJ
  13 NOVEMBER 2009

1. Following a trial for one count of murder and two counts of wounding, the appellant was convicted of manslaughter and the two counts of wounding.  He was sentenced to imprisonment for 9 years for manslaughter, imprisonment for 12 months for one of the counts of wounding, and imprisonment for 18 months for the other count of wounding.  Each period of imprisonment was cumulative to the others, so that he faces an overall period of 11 years 6 months in prison.  A single non-parole order was made, in terms that he was not to be eligible for parole before the expiration of 8 years.  It was expressed as applying "to the cumulative sentence of 11 years and 6 months".

1. He appealed against the sentence on two grounds.  They were that the sentence was manifestly excessive and that the learned sentencing judge failed to give sufficient weight to the so called totality principle. 

The parole eligibility order

1. Although not a ground of appeal, the learned judge erred by imposing a single non-parole period in respect of the three sentences of imprisonment in total.  The Sentencing Act 1997, s17(2), provides that a court that imposes a sentence of imprisonment on an offender may order that the offender is not eligible for parole in respect of that sentence, or that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order.

1. A power is given by s11(1) to impose one sentence for all of the offences, to impose one sentence for two of them and one sentence for the remaining offence, or to impose a separate sentence for each of the offences. If the learned judge had imposed one sentence of 11 years 6 months' imprisonment for all of the offences, the parole order that was made would have been authorised by s17(2). However, as three separate sentences of imprisonment were imposed, separate non-parole orders were required if it was intended that there be eligibility for parole in respect of each. One order in respect of the three sentences of imprisonment was not authorised.

1. If the learned judge had made separate parole orders, the Corrections Act 1997, s71(2), would have governed the relationship between each and the calculation of the total minimum term required to be served.

The circumstances of the offences

1. No ground of appeal attacks any finding of fact that was made by the learned judge or asserts that a finding should have been made but was not. 

1. On the night of 21 December 2007, Jenna Rowley hosted a school leaving party at her home.  The party was attended by Anthony Barnett, the person whose death was the subject of the murder charge.  He attended with his friends Luke Matthews, the subject of the wounding charge in count 2, David Eaton, the subject of the wounding charge in count 3, and Zac Galpin.  Rowley and the deceased were in the early stages of a relationship.

1. The appellant also attended the party, along with his friends, Aiden Girrard and Justin Scotney.  They were not invited initially because of aggression and hostility they had demonstrated towards the deceased, to which I will refer in the next paragraph.  Eventually they were permitted to attend on the basis that there would be no trouble. 

1. There was evidence that for some months the appellant and his group of friends, which included Girrard and Scotney, had demonstrated extreme hostility towards the deceased for reasons which were obscure at the trial, but probably involved the end of a relationship between another member of the appellant's group and Rowley.  Evidence of the hostility included the following:

·     The appellant made a number of abusive and aggressive telephone calls to the deceased, in which he called him a dog and threatened to kill him, smash him, kick his guts in and stab him.

·     On 31 August 2007, the appellant was with two males.  They were armed with poles and behaving aggressively.  They were looking for the deceased and referred to him in a derogatory manner.  The incident culminated in the deceased being struck in the back by one of the males and receiving marks on his back. 

·     The appellant was in a vehicle that drove past a group of young people which included the deceased.  The appellant was abusive.  A brick was thrown from the car.  Two of the witnesses identified the appellant as the one who threw it.  The appellant and another male confronted a friend of the deceased at a service station. 

·     The appellant issued a threat to the deceased by saying to the friend that he did not want him, he only wanted the deceased, and by pulling a knife out of his trousers and saying "this is what he's going to get if he keeps going". 

1. The appellant, Girrard and Scotney, arrived at the party before the deceased, Matthews, Eaton and Galpin.  At first, the party proceeded without incident, but with time tensions escalated.  The following incidents were noted by witnesses:

·     Matthews spoke to a female in an offensive manner.  Scotney became upset about that and there was a verbal altercation between Matthews and Scotney. 

·     Scotney was accused of taking alcohol that did not belong to him and he became upset as a result.

·     Galpin taunted Scotney by saying "do you want to fight me, do you" and there was some pushing and shoving between Scotney and Galpin.  A female intervened and stopped the incident from progressing further.

·     Eaton punched the appellant several times in the face and body while he was in the garage, causing him to fall to the ground.  Eaton then kicked the appellant in the head while he was on the ground.

·     Scotney ran down the driveway and delivered a "king" hit to Matthews.  Matthews and Scotney wrestled and there was an exchange of punches between them.  Scotney got away from the exchange, jumped a side fence and ran from the property.

1. The learned judge found that the appellant stabbed the deceased twice, in the chest and the back, causing near instantaneous death.  In what the learned judge described as the same event, the appellant wounded Matthews by stabbing him twice, to the shoulder and upper arm.  Within minutes he wounded Eaton who, in trying to disarm the appellant, was stabbed in the back with such force that the knife remained embedded in his back until its removal at a hospital.  The design and nature of the knife rendered it difficult to remove without causing additional injury. 

1. Concerning the events leading to the commission of the crimes, there was conflicting evidence which made precise fact-finding difficult.  The learned judge made the following findings, which included some of the incidents referred to above as having been noted by witnesses:

"There were two initial arguments involving claimed missing alcohol and an untoward comment directed to a young woman.  Mr Scotney was involved in both confrontations, Luke Matthews in one, and at some stage, they involved relatively minor physical altercations which probably included Mr Eaton and Mr Hales.  Another guest at the party, Jack Joughin, accompanied Mr Scotney away from the party area and attempted to pacify him.  Suddenly Scotney ran down the side of the house and 'king hit' Matthews.  The two commenced to fight in the backyard.  Mr Matthews got the better of the exchange and Scotney went over the fence to return home, intending to return with a baseball bat to exact retribution or gain advantage whilst armed.  He did not return.  Mr Barnett, who had just come downstairs with the hostess, became involved.  Earlier, probably one hour previous, Hales had armed himself with a knife obtained from Girrard  who had returned home to collect it at the behest of Hales.  The knife, double bladed, obtained interstate, can only be described as one designed to cause harm.  Its possession by Hales is an aggravating matter.  Mr Hales was aware of its nature when he requested it from Mr Girrard.

There followed a verbal confrontation between Mr Barnett and Mr Hales, with the hostess standing between them. Mr Barnett, a trained boxer, was not the initiator of the original violence.  His intervention was responsive and not intended to escalate the trouble.  Mr Hales told the hostess that he was able to deal with the situation as he had a knife in his pocket.  The confrontation escalated into physical exchanges between the two, during which Mr Hales twice stabbed at the chest and back of the other, causing death within minutes.  The use of the knife and the force used was unjustified and unjustifiable.  It might have been a product of anger, bravado and fear, but anything other than an exchange of blows with the fist was unforgivable.  In the course of the stabbing, Mathews, also present, was stabbed, again unjustifiably.

Mr Matthews and Mr Barnett left the scene and Mr Barnett subsequently collapsed.  Mr Eaton, who had been at the side of the house, returned and was attacked by Hales and, in attempting to disarm his assailant, was stabbed in the back before others intervened."

1. The learned judge made no other findings concerning whether the appellant initiated violence, or was the victim of violence, prior to his use of the knife.  It seems that his Honour did not do so because of conflicting evidence.  However, there was evidence that the deceased had been punching the appellant and that two of his friends may have done the same, very shortly before he used the knife.  I will refer to some of that evidence. 

1. Rowley gave evidence that at the time Scotney jumped the fence, she saw the appellant in the backyard of the house with blood on his cheek and his top was ripped.  She did not see what caused him to be in that state.  She then saw Matthews yelling at the appellant about a prior incident.  The appellant was standing with his back to the wall of the house, surrounded by the deceased, Eaton and Matthews.  Rowley was yelling for everyone to leave and to stop.  She heard the appellant say that he had a knife in his pocket, but she did not see it.  She was standing between the appellant and the other three men, but was moved by her shoulder from that position by Matthews.  She then saw the deceased, Matthews and Eaton punching into the appellant approximately 20 times.  She was screaming for everyone to stop and go home.  She observed the deceased and Matthews move away from the appellant.  The deceased said that he had been stabbed.  Eaton and the appellant moved away from each other to a distance of about three or four metres and were yelling at each other.  Rowley walked towards Eaton and told him to leave and then went to the deceased, who was lying in the driveway.

1. Galpin described an incident in the backyard before Scotney jumped the fence, in which he observed the appellant as up against the back wall of the house with Rowley standing between him and the deceased and Matthews.  He described the deceased and Matthews verbally abusing the appellant and saw Matthews slap the appellant, who did not respond.  Galpin then described Scotney running down the driveway and hitting Matthews, followed by an exchange of punches between Matthews and Scotney and Scotney running off and jumping the fence.  Galpin said that he then observed the deceased punching the appellant to the head and body approximately 15 times.  He did not see anyone else punching the appellant at that time.  Galpin said that he moved away up the driveway and did not see what happened next until he observed the deceased coming up the driveway, saying that he had just been stabbed.

1. Matthews described the incident between him and Scotney, at the end of which Scotney ran off and jumped the fence.  He said that occurred about half an hour before he saw any incident between the deceased and the appellant.  He also described the appellant with his back to the house.  He said that the deceased was standing in front of the appellant and that Rowley was between them.  He said the deceased punched the appellant seven or eight times and the appellant was stumbling backwards.  He heard Rowley screaming.  He heard someone say "He's got a knife".  Matthews said that at that point, he stepped in to the altercation between the appellant and the deceased, and punched the appellant.  Thereafter the knife was swung at him in a round arm action, striking him on the left upper arm.  He stumbled backwards and grabbed hold of the appellant, and was stabbed on the right shoulder.  He then walked up the driveway.

1. Eaton also described the altercation between Matthews and Scotney and Scotney running away and jumping the fence.  Eaton said that he was talking for a time and then saw the deceased and the appellant having an altercation which he described as pushing and shoving near the back wall of the house.  He did not see any punches thrown, but could hear much yelling.  He said that he saw the deceased walk away.  He then went to walk away himself when someone came at him with a knife, swinging it in a haymaker action.  However the knife did not connect with Eaton.  He said that he walked up the driveway with the deceased, who was bending over, holding his stomach and collapsing.  He then saw the person with the knife running at him.  He tackled that person to the ground and they wrestled.  It was after that that he realised that he had been stabbed in the back.

1. Examples of conflicting evidence are easy to find.  It was Rowley's evidence that she saw the deceased, Eaton and Matthews punching the appellant.  It was Eaton's evidence that he was not present at that time, and he was supported in that by the evidence of Sarah Jones.  It was the evidence of Matthews and Galpin that only the deceased was attacking the appellant.  In any event, there was a substantial body of evidence that immediately prior to the use of the knife by the appellant, he was being punched by the deceased, in circumstances found by the learned judge to be a physical exchange between the two.

1. Following the crimes, the appellant had a number of bruises and abrasions over his face, a number of bruises over his shoulder and back, and a couple of bite marks on his upper arms.  The learned judge found that most of his injuries occurred after the stabbing and were inflicted by two other men in a combination of subduing and retaliation.  As I said earlier, none of the findings of the learned judge are attacked by the grounds of appeal. 

1. The State's case was that the appellant should be found guilty of murder because by a voluntary and intentional act he stabbed the deceased and caused his death and at that time he either intended to cause the death of the deceased, or he intended to cause the deceased bodily harm which the appellant knew to be likely to cause death in the circumstances, even though he may not have wished to cause it, or he knew, or ought to have known, that it was likely to cause death in the circumstances.  See Criminal Code, s157(1)(a), (b) and (c).

1. As to self-defence, the State argued that if the appellant had a belief there was a need to defend himself, his actions went far beyond what was reasonable.  By virtue of the Criminal Code, s46, a person is justified in using, in defence of himself, such force as, in the circumstances as he believes them to be, it is reasonable to use. The State argued that he made a conscious decision to arm himself with a knife and possess it at a party in circumstances where he must have anticipated the possibility, at least, of some hostility or trouble, and he used the knife without warning to stab the deceased in the chest. The State argued that the force he used in defending himself, and the use of the knife against an unarmed person or persons, was excessive and did not equate to lawful self-defence. In the light of the verdict, the learned judge found that anything other than the use of fists was unjustified in the eyes of the law. I note that the State relied on the evidence of Matthews, Eaton and Galpin, and suggested to the jury that they should reject the evidence of Rowley as unreliable or mistaken.

1. The defence case was that at the time of the stabbing the appellant was acting in lawful self-defence.  His case was that the jury should accept the evidence of Rowley and conclude that when he used the knife he was being attacked by three people, the deceased, Matthews and Eaton, after having been punched 15 to 20 times to the head and upper body.  He claimed that he was cornered by those persons against the back wall of the house and was unable to run or punch his way out.  It was argued for him that he had been subjected to considerable aggression until, at the very end, he had no choice but to be aggressive himself.  It was argued that the jury should conclude that undoubtedly he was scared, with no time for calm reflection or careful weighing up of exactly what was occurring and what he needed to do to repel the attack, and that the jury should not be satisfied beyond reasonable doubt that he was not acting lawfully in defence of himself. 

1. The crime of manslaughter, as an alternative to murder, was left for the jury to consider upon the basis that the appellant's act of stabbing the deceased caused his death and was intended to cause bodily harm, or was commonly known to be likely to cause bodily harm, and it was not justified by the law as an act of self-defence.

1. The learned judge said that separate sentences for the three crimes would be imposed and that the sentences for wounding would be cumulative to the sentence for manslaughter.  His Honour said that "a distinction will be made between those sentences because of the separate and subsequent attack on Mr Eaton which differed from the more reflexive stabbing of Mr Matthews and the more serious harm caused to the former".  His Honour added that he had taken into account the so-called principles of totality, adding that imprisonment for wounding would be less than would have been the case otherwise. 

Victim impact

1. The learned judge said that the deceased was a champion sportsman and admired by his mentors and young persons alike.  The effect of his death on his family and friends had been devastating, both physically and emotionally.  The consequences to the lives of the two men wounded were significant. Eaton's injuries required 42 stitches, 30 of which were internal.  His injuries extended to his lung, which had impaired breathing, and impacted on physical ability.  Matthews, who was stabbed twice, undoubtedly suffered both physical and psychological harm as a result of the events and their outcome. 

Circumstances of the offender

1. The appellant was 19 years old at the time of the sentence and 18 at the time of the crimes.  He had previous convictions for dishonesty, breaches of court orders and traffic-related offences, commencing in March 2005.  He served periods of youth detention imposed in July 2006, February 2007 and June 2008.  In October 2008 he was sentenced to a term of imprisonment following his conviction for further offences of burglary and stealing committed in August 2007.  He had a good family upbringing, although his parents separated in 2000.  At the time of the crimes, he was living with his father in a southern rural environment.  His conduct while in youth detention had been good.  In a Youth Justice report prepared in June 2008 for a different matter, he was assessed as having moderate needs with high risk, with an overall assessment that he required high supervision.  The learned judge said that some allowance in the sentence should be made for the youth of the offender.  It was found that there was no evidence of remorse, except as expressed through his counsel during the sentencing hearing. 

1. His Honour added that the prior convictions for dishonesty and antisocial conduct, the failure of the appellant to take advantage of previous orders of probation and opportunities afforded by courts, and the nature and consequences of his conduct, were cogent matters relevant to the fixing of a non-parole period. 

The seriousness of the act of manslaughter

1. The learned judge made two statements in the course of his comments on passing sentence that indicated that he regarded a sentence at the higher end of the scale should be imposed for the manslaughter.

1. His first statement was that “the act of manslaughter ought be considered in the light of other cases involving serious acts of violence resulting in death", and his Honour cited Zsebe-Takacs v R unreported 15/1960 and Lyons (1993) 69 A Crim R 307, presumably as examples.

1. The comparison with Zsebe-Takacs is understandable to an extent but not, I think, the comparison with Lyons. 

1. The facts of Zsebe-Takacs are to be found in the oral judgment of Burbury CJ in the Court of Criminal Appeal.  The jury found the offender not guilty of murdering a man, but instead guilty of manslaughter, and he appealed against a sentence of imprisonment for eight years.  He had armed himself with a heavy, sharp knife, and went to a house, where the victim was asleep.  He entered the bedroom, turned on the light and roused the man.  What happened then was difficult to determine.  The offender's evidence was that the victim abused him and came towards him with his arm raised, a reaction which Burbury CJ referred to as very likely.  The victim only had pyjamas on and he was hampered because there was no cord in the pyjama pants.  The offender claimed that the victim was stabbed in self-defence.  Burbury CJ said that the use of a knife in the circumstances was clearly a use of grossly excessive force — the deliberate stabbing of an unarmed man in the chest — a man who, accepting the offender's statement, only threatened him by abuse and coming towards him with his arm raised.  The Chief Justice considered the offender to be very fortunate to escape a verdict of murder, and described it as a very bad case of manslaughter because the offender "has taken a life by a deliberately inflicted mortal wound with a deadly weapon".  His Honour said that the blow would have had to have been delivered with considerable force.  He was inclined to the view that the sentence of eight years' imprisonment was inadequate, but concluded, after being "gravely concerned", that it was not manifestly inadequate.

1. Lyons was an altogether different case.  He was intoxicated and acting obnoxiously and aggressively at a hotel.  He started and lost a fight at the hotel and after that, unjustifiably punched the licensee's 16 year old son in the nose.  He was ejected from the hotel, it taking four men to do so using only reasonable force.  There was no suggestion they caused injury other than to his pride.  He went home and armed himself with a baseball bat.  He went to his brother's home and solicited his support, falsely asserting that four men had given him a bad time.  He took possession of a small Samurai sword.  He returned with his brother to the hotel, which had closed.  The licensee, his son, and the man who was killed, a resident odd-job man, were the only ones inside.  The offender and his brother burst into the hotel, the offender with the sword and his brother with the baseball bat.  The brother struck the licensee several blows with the bat, rendering him unconscious.  The offender held the deceased with a vice-like grip on his arms, pinning them behind his back, whilst his brother struck him at least four blows on the head with the bat and a number of blows on the body.  The blows to the head caused severe brain damage which resulted in death a few days later.  The two brothers then left the hotel.  An hour or so later, the respondent telephoned the hotel and said, "Did you get the message not to give us a hard time?  Are we still invited to drink there?" 

1. Lyons was sentenced to imprisonment for six years.  The Court of Criminal Appeal regarded the sentence as manifestly inadequate and increased it to ten years.  Although noting that a sentence of six years was towards the top of the range of sentences for manslaughter in the previous 12 years or so, the Court considered that a very substantial sentence was called for, having regard, among other things, to the gravity of the case, the lack of spontaneity of the offender's actions, and the lack of any significant mitigatory factor. 

1. In this case, the sentencing judge considered that matters of aggravation included prior hostility, an opportunity to leave the party or withdraw following the initial confrontation, the force of the blows and their form of execution, and the obtaining of the knife and subsequent use. 

1. The second statement made by the learned judge that a sentence at the higher end of the sale should be imposed for the manslaughter was the following:

"The range of penalties appropriate for the crime of manslaughter is, given the nature and circumstances of its commission, wide and comparison difficult. Here penalty ought be determined at the higher range with some allowance made for totality. Here it accords with cases such as Shanks (05/12/2006), McLennan (6/9/2006), Brunsden (20/12/2005), Wells and West ([2003] TASSC 78) and Branch (20/02/2002), rather than ones at the lower end, although the Court recognises that some of those abovenamed reflected composite sentences. Regard is had to the general statement of the Court of Criminal Appeal in Lyons (supra)."

1. Shanks was an appalling example of the crime, far more serious than here.  The offender was sentenced to ten years' imprisonment upon his plea of guilty to manslaughter.  He had battered and tormented his 4 year old son, who was in his care, over a period of about two weeks.  The boy died from a combination of head injuries, an injury to a part of his small intestine, and very extensive superficial bruising.  A forensic pathologist recorded 79 separate or composite signs of violence or injury to many parts of his head, neck, body and limbs.  When it was plain that the boy needed medical treatment, the offender decided not to seek it for fear that his abuse would come to the attention of authorities.

1. Following a trial, McLennan was found guilty of arson and manslaughter.  He also pleaded guilty to two counts of stealing.  For the arson and manslaughter, he was sentenced to imprisonment for eight years cumulative upon a sentence of imprisonment for one year for the two counts of stealing.  He was the night manager at a backpackers' hostel.  He stole $1,159 from a safe and about ten days later, stole another $4,036 from the safe.  With the intention of destroying evidence of the second theft, which he realised would be discovered, he lit a fire in an area below stairs near the safe at about 3.40am.  At that time there were 60 guests asleep in the hostel.  The sole exit for about 24 guests who were sleeping upstairs was via the stairs.  One of the guests died as a consequence of the offender's actions.  About 20 years earlier, when he was a youth, he was convicted of two counts of arson and four counts of setting fire to property, concerning the premises of his employer. 

1. Brunsden pleaded guilty to seven assaults and a manslaughter and was sentenced to seven years' imprisonment.  Several alcoholics were drinking together.  Over a period of some hours, the offender brutally bashed and kicked a man, and pushed his head violently into a concrete wall on one occasion.  Three others joined with him, but not to the extent he did.  The man eventually died from a sub-dural haematoma.  Brunsden's conduct was described by the sentencing judge as callous, violent and amounting to torture.  He had many previous convictions for crimes.

1. West and Wells pleaded guilty to aggravated burglary and manslaughter.  Each was sentenced to four years' imprisonment but on appeal, their sentences were increased to imprisonment for seven years.  They believed a 77 year old man kept a large amount of cash in a kerosene tin at his house, where he lived alone.  They broke in, wearing balaclavas and gloves.  They bound and gagged the householder and made an unsuccessful search for money.  They left the house with the householder still bound and gagged.  Not long after he suffered a heart attack and died.  The gag had caused asphyxia which, in turn, reduced the blood supply to the heart and caused the already diseased heart to arrest.  Both offenders had significant records for crime but not significant records for violence. 

1. The reference by the learned judge to Branch (20/02/2002) was no doubt a reference to Breach who was sentenced on that date following a jury's verdict that he was guilty of arson and manslaughter (as an alternative to murder).  He was sentenced to imprisonment for seven years.  In a depressed mood and wanting to commit suicide, he set fire to the house in which he lived with five other people, all of whom were elderly and disabled to a greater or lesser degree.  One of the others, a man over 80 years of age, was burnt to death in his room.  The offender's conduct was not directed at the deceased man.  He had prior convictions for inappropriate sexual behaviour, arson, and two convictions for causing grievous bodily harm when he twice poured boiling water over a drunken companion.  In 2000 he was convicted of unlawfully setting fire to property in very similar circumstances, although without a fatal result.

Discussion

1. The permissible degrees of punishment for manslaughter cover a very wide range.  R v Withers (1925) 25 SR (NSW) 382 at 397; Lyons (1993) 69 A Crim R 307 at 311, 313 and 316. Nevertheless, it can be said that imprisonment for 8 to 10 years for the crime has been reserved for the most serious form of it, and the question that is raised squarely by this appeal is whether the case falls within that description.

1. The learned judge was correct in considering that matters of aggravation included that the appellant obtained the knife with a view to using it should a confrontation arise at the party.  However, a feature of this case that removes it from the most serious range is that in the events leading up to the use of the knife, the appellant was not the aggressor.  He had his back to the wall of the house and was punched a number of times by the deceased.  It is possible that another or others had also punched him.  There was no evidence that he punched the deceased or in any other way was violent to him until he used the knife.  It is clear that he used it in response to the assault on him, although the learned judge was unable to conclude whether his response was a result of anger, bravado or fear.  That he responded to being punched and that it is possible that he did so out of fear, removes the case from one suitable for the higher range of penalties for the crime.

1. For that reason, I think the learned judge erred in his categorisation of the case.  Having regard to the cases to which his Honour referred, it was not as serious as Zsebe-Takacs, Lyons, Shanks or Brunsden. 

1. My assessment is that the sentence of 9 years' imprisonment for manslaughter was manifestly excessive and that one of 7 years imprisonment was all that was required. 

1. Notwithstanding the so-called principles of totality, I am not persuaded that the sentences of 12 months and 18 months' imprisonment for the two counts of wounding were manifestly excessive, even when made cumulative to each other and to the sentence for manslaughter.  The learned judge was justified in adding to the length of the appellant's imprisonment because of his deliberate infliction of the wounds against Matthews and Eaton.  The sentence of 18 months' cumulative imprisonment was particularly warranted in the case of the wounding of Eaton, having regard to the circumstances of the attack and the grievous injuries that were caused. 

1. Since writing these reasons, I have read the comments of Blow J.  I agree with them.

Conclusion

1. I would uphold the appeal and quash the sentences.  In their place I would sentence the appellant for manslaughter to imprisonment for 7 years from 21 May 2008 and order that he is not to be eligible for parole until he has served 4 years 6 months of the imprisonment.  For the conviction for wounding Luke Mathews, I would re-sentence the appellant to imprisonment for 12 months, cumulative to that imposed for manslaughter, and I would order that he is not to be eligible for parole until he has served 7 months of the imprisonment.  For the conviction for wounding David Eaton, I would re-sentence him to imprisonment for 1 year 6 months cumulative to both of the other sentences, and I would order that he is not to be eligible for parole until he has served 11 months of the imprisonment.  In summary, he should be sentenced to imprisonment totalling 9 years 6 months and not be eligible for parole until he has served imprisonment for 6 years. 

File No CCA 4/2009

SHAUN DANIEL HALES v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  BLOW J
  13 NOVEMBER 2009

1. I have read the reasons for judgment of the learned Chief Justice in draft form.  I agree with those reasons, and with the orders proposed.  There are some comments that I would like to add. 

The manslaughter verdict

1. The jury were not satisfied beyond reasonable doubt that the appellant was guilty of murder on the basis of the Criminal Code, s157(1)(a), (b) or (c). That is to say, they were not satisfied beyond reasonable doubt of any of the following:

·     That the appellant intended to cause death.

·     That he intended to cause bodily harm which he knew to be likely to cause death.

·     That he knew that the fatal acts were likely to cause death in the circumstances.

·     That he ought to have known that the fatal acts were likely to cause death in the circumstances.

1. The appellant killed the deceased by stabbing him twice, to the chest and the back, with a dangerous double-bladed knife.  Under normal circumstances, any ordinary person would know that such conduct was likely to cause death.  The jury must have accepted that, because of the nature of the confrontation in which the appellant was involved when he produced and used his knife, they could not be satisfied beyond reasonable doubt that he foresaw, or even ought to have foreseen, that stabbing a man to the torso might cause his death, even though that possibility would ordinarily have been obvious.  However their verdict indicates that they were satisfied beyond reasonable doubt that the fatal acts were voluntary and intentional, and were not lawful acts of self-defence. 

Some mitigating factors

1. To my mind it is very significant that the appellant was just 18 years old at the time of this killing, and that he had no prior convictions for any crimes or offences involving violence. 

Backdating of sentences

1. It should not be overlooked that the appellant has been in custody since 22 December 2007, the day after the killing, whereas the sentences imposed by the learned sentencing judge, and the substituted sentences proposed by the learned Chief Justice, are sentences taking effect as from 21 May 2008, about five months after he went into custody.  The reason for not backdating the first of the sentences for these crimes to the date of the appellant's arrest is that, on two occasions while the appellant was awaiting trial for these crimes, he received custodial sentences from magistrates for earlier, less serious offences.  On 11 June 2008, a magistrate sentenced him to eight months' detention with effect from 22 December 2007.  Had he not been remanded in custody in relation to the crimes we are now concerned with, he would have been released after serving four months of that sentence: Youth Justice Act 1997, s109(1), and see the definition of "earliest release date" in s3(1). Subsequently, on 31 October 2008, a magistrate imposed a cumulative sentence of one month's imprisonment on a stealing charge. The effect of ordering that the sentence for manslaughter take effect on 21 May 2008, in practical terms, is that it is cumulative with the two sentences imposed in the Magistrates Court.

Non-parole periods

1. It was evidently the intention of the learned sentencing judge to impose sentences totalling 11 years 6 months for these crimes, and to order that the appellant was not to be eligible for parole until he had served 8 years of those sentences, or just under 70 per cent of the total of the head sentences.  The effect of the orders proposed by the learned Chief Justice is that the appellant's head sentences for these crimes would total 9 years 6 months, and that he would be eligible for parole after serving 6 years of those sentences, or just over 63 per cent of the total of the head sentences.  If he were required to serve 70 per cent of the total of the head sentences, consistently with the approach taken by the learned sentencing judge, he would have to serve about 6 years 8 months of the sentences before becoming eligible for parole.  The orders proposed by the learned Chief Justice involve not just a reduction of the head sentence for the crime of manslaughter, but also a significant reduction in the proportion of the total of the sentences required to be served before becoming eligible for parole.  But I agree that that is appropriate, particularly because the appellant is so young. 

   File No CCA 4/2009

SHAUN DANIEL HALES v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  PORTER J
  13 NOVEMBER 2009

1. I respectfully agree with the reasons for judgment of the learned Chief Justice.  I have also had the advantage of reading the reasons for judgment of Blow J, and the additional comments his Honour makes.  I wish to record my concurrence with those remarks, for which I am grateful.  I agree with the orders proposed by the Chief Justice.