Hyde and T v Tasmania

[2010] TASCCA 14

[2010] TASCCA 14

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

CITATION:                 Hyde and T v Tasmania [2010] TASCCA 14

PARTIES:  HYDE, Daniel Edward
  v
  TASMANIA (STATE OF)

T, J M
v
TASMANIA (STATE OF)

FILE NO/S:  CCA 582/2010

CCA 581/2010

DELIVERED ON:  29 September 2010
DELIVERED AT:  Hobart
HEARING DATE:  13 August 2010
JUDGMENT OF:  Evans, Blow and Porter JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference - Sentence manifestly excessive or inadequate – Parity between co-offenders – Assault.

Postiglione v R (1997) 189 CLR 295; Lowe v R (1984) 154 CLR 606, followed.
Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, referred to.
Aust Dig Criminal Law [3521], [3522]

REPRESENTATION:

Counsel:
             First Appellant:  K Cuthbertson

Second Appellant:  P A Warmbrunn

Respondent:  A Shand
Solicitors:
             First Appellant:  Mackie Crompton
             Second Appellant:  No instructing solicitor
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2010] TASCCA 14
Number of paragraphs:  47

Serial No 14/2010
File Nos CCA 582/2010

CCA 581/2010

DANIEL EDWARD HYDE v STATE OF TASMANIA
T, J M v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J
BLOW J
PORTER J
29 September 2010

Order of the Court

Appeals dismissed.

Serial No 14/2010

File Nos CCA 582/2010

CCA 581/2010

DANIEL EDWARD HYDE v STATE OF TASMANIA
T, J M v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J

29 September 2010

1. Arising from a series of events involving Daniel Hyde, T, Brent Oates and R on the night of 31 October 2009, each was charged with assault, pleaded guilty and sentenced.  Daniel Hyde and T have appealed against their sentences.

1. Oates was 22 years of age at the time of the crime.  He was sentenced by Porter J on 30 April 2010 to five months' imprisonment, wholly suspended on condition that he was of good behaviour for a period of two years.  He was also fined $500 and ordered to pay compensation of $396 in respect of damage done to a door in the course of the incident. 

1. The other three offenders were sentenced by Tennent J on 2 July 2010.

1. R was 15 years of age at the time of the crime.  He was sentenced under the Youth Justice Act 1997 to 6 months' detention, wholly suspended on condition that for a period of one year he commit no offence involving violence.

1. Hyde, who was 21 years of age at the time of the crime, was sentenced to five months' imprisonment.

1. T, who was 17 at the time of the crime, was sentenced to eight months' imprisonment, two months of which were suspended on condition that he was of good behaviour for a period of three years. 

1. Sentencing these offenders was an unusually difficult exercise as, although each had pleaded guilty to the same assault, there were inconsistencies between the facts upon which each plea was entered and accepted. In result the facts on which each offender fell to be sentenced were somewhat different and at times in conflict.

1. The starting point in relation to each offender was broadly the same; the facts as put to the court by the prosecutor.  Subject to the difference noted in italics in the second paragraph below, the facts put at the sentencing hearing of Oates on 28 April 2010, and the sentencing hearing of the other three offenders on 15 June 2010, were broadly the same.  On the later date, what was said by the prosecutor included the following:

"On the 31^st of [October] 2009 the complainant Christopher Michael Edge, who is 42 years of age was at his home at unit 2, 15 Wilmot Road in Huonville ... He lives alone and his unit is on the second storey of the complex.  His front door opens to a rear common balcony and is accessed from the ground by a set of stairs.  At approximately 1.00am on the aforementioned date whilst watching a movie the complainant heard shouting outside his unit followed by a bottle which appeared to have been thrown through his open bedroom window.  He immediately rang police and locked his front door.  Approximately a minute later he heard people bashing at his door, laughing, swearing and yelling threats including 'We're going to kill you'.  He could see the door flexing as it was being kicked from the outside.  The door was kicked approximately 10 times before it came loose from its hinges and collapsed inwards.  As the door was being kicked the power to the complainant's flat was switched off and he was left in total darkness.  He armed himself with a hammer and as the door collapsed inwards he could see the faint outline of four people standing in his doorway.  …

Fearing for his safety he ran at the accused swinging the hammer.  He managed to strike Mr T in the rib area and was placed in a headlock by that accused. [This statement differs from what was said to Porter J on the Oates sentencing hearing.  His Honour was then told that the complainant did not make any contact with an accused.]

…

He was punched and repeatedly kicked to the head, body and legs and whilst in the headlock the complainant found the grip so tight that he struggled to breathe and lost consciousness for brief periods of time.  He screamed for help from his neighbours while the attack continued for approximately five minutes.  During the attack he was thrown to the ground and continually kicked.  He escaped by crawling down the stairs and onto the road but one of the accused followed him kicking him and verbally taunting him. 

Police arrived at 1.05am to find the complainant lying on the roadside diagonally opposite his unit.  His upper body was bare and his head and face were covered in blood. 

…

The complainant [stated] to police that … because of the darkness during the assault, he was not able to identify any of his attackers.

…

Later that morning the complainant was taken by ambulance to the Royal Hobart Hospital where he was diagnosed as having severe subconjunctival bleeding in his left eye, a less severe subconjunctival bleeding in his right eye, a fractured left eye socket, a cut to his left brow, bruising to the right side of his ribs and to the top of his back, bruising and swelling to his left and right eyes and a grazing to his elbows.

Preceding this assault …on the 27^th of October 2009 [two females who occupied] units 3 and 4, 15 Wilmot Road, reported to police the complainant was outside their units banging on the metal railing with an axe and yelling at them to keep the noise down and demanding that they stop bashing at his door.  This incident appears to have been the motivation for the attack by the accused against the complainant.  The accused are friends of the aforementioned [females]."

1. Brent Oates was sentenced on the basis that the following facts applied in his case.

·He, together with the other offenders, travelled to the complainant's unit to confront the complainant.  Initially, violence towards the complainant was not intended.

·At the unit one of the others threw a bottle through the open window of the complainant's bedroom.

·Oates kicked the door of the complainant's unit, along with the others.

·Violence directed at the complainant was initiated by one of the others and they all joined in.

·Oates kneed the complainant in the face and this was the only force he applied to the complainant.

1. R was sentenced on the basis that the following facts applied in his case.

·He and the others went to the block of units in order to go to a party in the unit of female friends.

·On arriving at the block of units T and Oates went to the door of the complainant's unit and initiated what then followed.

·R joined the others in "slamming" at the door a number of times.

·T kicked the door off its hinges, and, at this point, R realised that T intended to assault the complainant.

·When the complainant came out of his unit, T started hitting him, and, at that point, R and Hyde fled.

·R had no involvement in the physical assault on the complainant.

1. T fell to be sentenced on the basis that the following facts applied in his case.

·He and the others went to the block of units to visit female friends who resided in the block.

·When they arrived at the block of units, R threw a bottle through an open window in the complainant's unit.

·The other three offenders began kicking on the complaint's door.

·He was with Oates when Oates turned off the power to the unit.  The power box was a few metres from the side of the door to the unit. 

·The door did not come off its hinges until Hyde knocked it down after telling the others to get out of the way as he would show them how to do it.

·     After the door was knocked down, the complainant tried to lift it back into place, but T stepped on it, again knocking it down. 

·     When the complainant came out of the door swinging the hammer, T remained near the door but the others retreated.  The complainant hit T in the chest with the hammer, and T grabbed him in a headlock.

·As T held the complainant in a headlock, R punched the complainant and Oates kneed him in the face once or twice, which caused the complainant's nose to bleed.

·T released the complainant from the headlock when the complainant dropped the hammer, whereupon T threw the complainant to the balcony floor. 

·As the complainant lay on the balcony, T kicked him.

1. Daniel Hyde was sentenced on the basis that the following facts applied in his case.

·He went with the others to the block of units to visit girls.  He knew nothing about the incident a few days previously that had involved the complainant and the girls.

·When they got to the block of units he followed the others to the door of the complainant's unit and one of the others kicked the door.  He then kicked the door on two occasions.  He pleaded guilty on the basis that this amounted to an unlawful act, and he conceded that the subsequent assault was a probable consequence of that unlawful act.

·He made no threat to the complainant but did not dispute that threats were or may have been made in his presence.

·After the complainant came out of the unit, he saw T kicking the complainant and he, Hyde, then left. 

·He did not touch or physically assault the complainant. 

1. In the course of the sentencing hearing the prosecutor asserted that T had kicked the complainant.  T disputed this assertion and for the purposes of his sentencing her Honour heard evidence on this issue from Oates and T.  Her Honour found against T on this dispute and explained her reasons for doing so in the course of his sentencing.  When sentencing him, Hyde, and R her Honour also detailed the applicable facts and circumstances, including those relating to the sentencing of Oates, and relevantly continued:

"I will deal with each accused separately. What should not be overlooked when sentencing these offenders is that, despite their varying levels of involvement, they were each a party to an incident which involved a vicious assault on the complainant and which has seen him with long-term consequences and a significant disruption to his life. He did nothing to deserve the type of attack to which he was subjected.

I will deal with R first.  He is now 16 and lives with his mother, her partner and some half siblings. At the time of the offending, he had no prior convictions. On 27 May 2010 he was dealt with in the youth justice court for minor offending and released without penalty, save an undertaking to appear. A pre-sentence report for the purpose of that appearance noted R's attitude had improved and that court interventions had acted as a deterrent as far as further offending was concerned. The Court was told his father identifies as aboriginal and lives in Victoria. R has had little or no contact with him save for relatively recent attempts to reconnect with him which have failed. He completed schooling only to part way through year 10, but was expelled. He wants to resume his schooling.

At the outset I should note that the evidence of Oates and T on the disputed facts hearing relating to T is not admissible on the sentencing of R. I make that comment because the evidence from Oates suggests that R's involvement was far more than R has admitted to.  I am however bound by the fact that facts have been asserted and the Crown does not dispute them. He is to be sentenced on the basis of the facts the Crown has accepted in relation to him which do not include that he had any role in physically assaulting the complainant.  Having regard to his age, I propose to deal with him under the Youth Justice Act 1997. Given his age, lack of history and limited involvement balanced against the severity of the attack and its consequences, he will be convicted of one count of assault. He is to serve a period of six months detention. That will be wholly suspended on condition that for a period of one year he commit no offence involving violence.

As to Hyde, at the time of the incident, he was 21 years old. He is now 22 and unemployed. He lives with his partner and their young daughter near Huonville. His counsel submitted he was not proud of his conduct, his involvement was less than that of the others, he was intoxicated and had some prospects. Hyde's record of prior offending was more extensive than that of Oates.  He had convictions for drink driving, motor vehicle stealing and driving while disqualified. He was convicted on 21 August 2007 of assaulting a police officer and common assault. He was convicted on 19 June 2009 of breaching a family violence order. On that occasion he was given a suspended sentence, still current at the time of this offending. Another suspended sentence was imposed a few weeks before this incident for a driving offence. Hyde has also been given the opportunity in the past to perform community service but has breached the terms of those orders.

Despite his lesser involvement on the night, Hyde was older than R and T and he had prior convictions for assault. Previous attempts by the courts to impose community based sanctions had failed. At the time of the offending he was subject to suspended sentences imposed very recently. Despite the existence of what would be hoped was the deterrent factor inherent in a suspended sentence, on this night Hyde got drunk and was a party to a vicious assault. He is convicted of one count of assault. He is sentenced to serve a term of five months imprisonment ...

As to T, he has no prior convictions for assault. His prior record is short. On 5 February 2010, he was convicted of some serious driving offences and served a term of detention which was partially suspended. He was disqualified from driving and placed on probation. T lives with his parents at Cradoc and has been working as required on a cray boat since March this year. I have been provided with a reference from his employer which indicates that he has done his job exceptionally well and found to be reliable and honest.  He had previously worked for 2½ years as an apprentice chef but lost that employment when he was remanded in custody last November.  From the facts supplied to me it did not appear that he particularly liked that work in any event, finding it and other work he was doing particularly hard.  He remains a young offender.  I have been urged by his counsel to make use of the Youth Justice Act provisions, as I have just done in relation to R.  His role in the events of the night, as I have found it to be, was greater than that of the other offenders. His age and personal circumstances and his plea of guilty are all factors to be taken into account to his credit.  I am also mindful he has never been to prison, although he has spent time in custody as a youth. However, the nature of the offending, his involvement in it and the consequences are all factors which persuade me that he should serve a custodial sentence. In the circumstances, he is convicted of one count of assault. He is to serve a period of eight months imprisonment. Two months of that is to be suspended on condition that for three years he is of good behaviour …"

T's appeal

1. The grounds of T's appeal against the sentence imposed on him are that the learned sentencing judge:

·erred in finding that T kicked the complainant;

·imposed a sentence that was manifestly excessive;

·failed to adequately consider the issue of parity as between the sentence imposed on T and those imposed on his co-offenders; and

·erred in failing to exercise her discretion in favor of sentencing T under the Youth Justice Act 1997.

T – finding of kicking

1. As mentioned, for the purposes of the sentencing of T, it became necessary for her Honour to hear evidence in order to resolve a dispute about whether he had kicked the complainant.  The evidence was given by Oates, who was called by the prosecution, and T.  

1. Oates gave evidence that after he kneed the complainant in the face, he moved away and looked back to see T kicking the complainant.  He went back and told T to stop and T did so.  The complainant then fled down the stairs to the roadway.  T gave chase, but he, Oates, went after T and got him back. 

1. T gave evidence that as he held the complainant in a headlock, R punched the complainant and Oates kneed him in the face once or twice.  T said that when the complainant dropped the hammer he, T, released the complainant from the headlock and threw him to the balcony floor and this was the only force that he, T, applied to the complainant.  

1. The learned sentencing judge accepted Oates' evidence and found that T "kicked the complainant during the course of the incident in the doorway and outside the complainant's unit".  The evidence of Oates was the only evidence before her Honour in which T was specifically identified as kicking the complainant.  Oates' evidence was that the kicking occurred as the complainant was on the ground on the balcony.  Accordingly, it was only open to make a specific finding that T kicked the complainant at this point during the incident.  I construe her Honour's finding to be a finding to that effect. 

1. T contends that the learned sentencing judge erred in finding that he kicked the complainant.  When cross-examined by T's counsel, Oates reiterated his evidence–in-chief that after he kneed the complainant in the face, he moved away and looked back to see T kicking the complainant, whereupon he went back and told T to stop.  Oates' evidence on this aspect of T's involvement in the incident was not shaken.  T's counsel on this appeal has referred to a number of matters which she submits demonstrate that her Honour should not have accepted Oates' evidence.  None of the matters raised satisfy me that her Honour erred in accepting this evidence.  I reject this ground of appeal. 

1. When sentencing T, her Honour said that the complainant ran at the offenders swinging a hammer, but he did not hit any of them.  This was not correct.  On the facts put to her Honour by the prosecutor on the sentencing of Hyde, R and T, the complainant struck T with the hammer in the rib area.  T gave evidence to this effect and his counsel also made submissions to this effect.  The facts that had been put to the court on the sentencing of Oates differed in relation to this matter.  Porter J had been told that the complainant did not contact any offender with the hammer and this information was included in the comments his Honour made when sentencing Oates.  It seems that her Honour mistakenly transposed this information.  In addressing T's further grounds of appeal, I do so against a factual background that reflects the above matters.  Insofar as this involves revising the facts, I should say that I do not consider the revision has any relevant consequence.

T – manifest excess

1. T was sentenced to eight months' imprisonment with two months suspended conditional upon good behaviour for three years.  He contends that this sentence is manifestly excessive. 

1. There is no question that, as submitted by T's counsel, the range in the penalties imposed for single counts of assault is extremely wide.  However, this was a particularly bad assault. It had all the hallmarks of a home invasion, absent burglary.  It did not involve one impetuous application of force, but a series of intimidating and violent actions over a period of some minutes.  Those actions include:

·     a bottle being thrown through the open window of the complainant's unit;

·     threats being shouted at the complainant that included threats to kill him;

·     the door to the complainant's unit being kicked down;

·     T accompanying Oates as he turned off the power to the unit;

·     T stepping on the door of the unit so as to stop the complainant from lifting it back into place;

·     T holding the complainant in a headlock whilst R punched the complainant and Oates kneed him in the face once or twice;

·     T throwing the complainant to the balcony floor and kicking him;

·     one of the offenders following the complainant from the balcony and harassing him as he fled. 

1. In the course of the incident a number of injuries were inflicted on the complainant, the worst of which involved a fracture to his eye socket.  He may have permanent eye damage.  The adverse impact of the incident on him, both physically and psychologically, will be long lasting.

1. Against this background, in my respectful view, it is absurd to suggest that a head sentence of eight months' imprisonment for T's role in this assault is excessive.  The gravamen of T's complaint is that all, or a greater portion of his sentence, should have been suspended because he:

·     was 17 at the time of the crime and when sentenced;

·     had a stable family background;

·     was in employment as a hand on a fishing boat when sentenced and had previously worked as an apprentice chef for 2½ years.  A reference from his employers said he was very reliable and honest and did his work exceptionally well;

·     had no prior convictions for a crime involving violence;

·     had pleaded guilty; and

·     had good rehabilitation prospects.

1. Matters that bear on whether all or part of a sentence of imprisonment should be suspended were canvassed in the recent decision of Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13; I will not repeat them in any detail. Sentencing is an art not a science, and it is not possible to provide anything like a formula for determining the appropriate sentence in particular circumstances. Nonetheless, in assessing whether it is open to suspend all or part of a sentence of imprisonment, a primary consideration is the gravity of the crime, and in the case of a joint offender, the extent of that offender's involvement in the criminal conduct. Where it is open to extend leniency to an offender by subordinating considerations of general deterrence, punishment and denunciation to the offender's prospects of rehabilitation, a first offender is in a far better position to obtain a suspended sentence than an offender with convictions. Where an offender has a record of convictions, the relevance and extent of the convictions is pertinent, as is the offender's past response to sentences that gave priority to rehabilitation over other considerations. That an offender has previously been exposed to the potentially corrupting influences of detention or imprisonment is also a factor that militates against suspension.

1. T's record of convictions is accordingly relevant.  The following is a summary of it.

Date of offence	Offence	Date of conviction	Penalty where extracted
3/10/09	Negligent driving	5/2/10            )   )	Fined $150 and disqualified from driving for 3 months
3/10/09	Exceed speed limit by 50 kph	5/2/10            )
5/12/09	Dangerous driving	5/2/10            )   )   )	105 hours' community service and cumulative disqualification from driving for 9 months
5/12/09	Fail to obey direction of police officers	5/2/10            )
6/12/09	Exceed speed limit by 30 kph	5/2/10            )   )	Fined $150 and disqualified from driving for 3 months
6/12/09	Fail to obey direction of police officer	5/2/10            )
8/12/09	Reckless driving	5/2/10            )
8/12/09	Possess ammunition when not the holder of the appropriate firearm licence	5/2/10            )   )   )   )   )   )   )	9 months' detention from 8/12/09 with the balance suspended on conditions including a condition that he be of good behaviour for 12 months, probation and disqualification from driving for 12 months
8/12/09	Possess firearm when not the holder of the appropriate firearm licence	5/2/10            )   )   )
8/12/09	Resist a police officer	5/2/10	7 hours' community service
3/12/09	Driving with a blood alcohol reading of .016	16/3/10          )   )	Fined $240 and disqualified from driving for 3 months
3/12/09	Driving whilst licence suspended	)
4 traffic infringement notice offences

1. T had no convictions for a crime of violence, but his record demonstrated that over the period of about two months, during which the subject crime was committed, he was at times behaving with little, if any, regard for the safety and wellbeing of others. 

1. T's youth was a significant factor in the assessment of whether all or part of his sentence should have been suspended.  The learned sentencing judge decided that T should serve a custodial sentence, albeit that she suspended two months of it.  In my respectful view, her Honour's decision to impose an immediately effective sentence of imprisonment was quite right.  The seriousness of the crime and the extent of T's involvement in it required the imposition of a sentence that served the needs of general deterrence, punishment and denunciation.  A wholly suspended sentence of imprisonment would not have served those needs.  Moreover, he could not claim in aid the full force of the reluctance of courts to expose young offenders to the corrupting influence of incarceration, as he had already been exposed to that influence.  He had spent just short of two months in detention over Christmas 2009.  In all the circumstances, the sentence imposed on T was well within range and I reject the contention that it was manifestly excessive.

T - parity

1. By a further ground of appeal, T contends that the learned sentencing judge failed to adequately consider the issue of parity as between the sentence imposed on him and those imposed on the other offenders.  The operation of the parity principle is an aspect of equal justice.  "Equal justice requires that like should be treated alike but if there are relevant differences, due allowance should be made for them."  Postiglione v R (1997) 189 CLR 295, Dawson and Gaudron JJ, at 301. As I said in Braslin v State of Tasmania [2008] TASSC 50, at par[8], a discrepancy between the sentences imposed on co-offenders will attract appellate intervention:

·     where the magnitude of the discrepancy is manifestly excessive; Lowe v R (1984) 154 CLR 606, Mason J (as he then was) at 614 – 615 and Dawson J, agreed with by Wilson J, at 624, and Postiglionev R (supra), McHugh J at 309 and Gummow J at 323; and

·     where the discrepancy is such as to give rise to a justifiable sense of grievance and appearance of injustice; Lowe, Gibbs CJ at 610, Mason J at 613 and Dawson J, agreed with by Wilson J, at 623 and Postiglione, Dawson and Gaudron JJ at 301, McHugh J at 309, Gummow J at 323 and Kirby J at 342.

1. The assessment of whether the circumstances of a discrepancy give rise to a justifiable sense of grievance and appearance of injustice must be objective, as a sense of grievance can only be said to be justified if it can be so established.  See Lowe, Mason J at 613 and Postiglione, Gummow J at 323 and Kirby J at 342.

1. T received a sentence of eight months' imprisonment with two months suspended, whilst Hyde's sentence was an immediately effective term of five months' imprisonment.  T's counsel acknowledged that Hyde's extensive prior convictions and poor response to past community based sanctions and suspended sentences justified her Honour's decision not to suspend Hyde's sentence.  However, counsel contends that as these factors were absent in relation to T, his sentence should have been wholly suspended.  There is no question that Hyde's record was far worse than T's, albeit that T had spent time in detention.  T was also four years younger than Hyde.  Nonetheless, there was a marked difference between the facts on which each offender was sentenced.  The extent of T's active involvement in the assault on the complainant was significantly different to that of Hyde.  Hyde left after the complainant came out of his unit, and did not apply any force whatsoever to the complainant.  On the other hand, T, having grabbed the complainant in a headlock when he came out of the unit, held him as R punched him and Oates kneed him in the face once or twice.  After throwing the complainant to the balcony floor, T kicked him.  The marked differences between various matters relevant to the sentencing of T and Hyde explain the differences between the sentences imposed on them and do not provide T with any basis for a justifiable sense of grievance about the difference between the sentence imposed on him and that imposed on Hyde. 

1. The learned sentencing judge sentenced R under the provisions of the Youth Justice Act.  He was sentenced to six months' detention, wholly suspended conditionally upon him committing no offence involving violence for one year.  This was significantly different to T's sentence of eight months' imprisonment with two months suspended.  However, R was the youngest of the offenders.  He was 15 years of age at the time of the crime, and 18 months younger than T.  R's only prior convictions were described by her Honour as minor offending for which he had been dealt with in the Youth Justice Court on 27 May 2010, and for which he had been released without penalty, save for an undertaking to appear.  His record was markedly better than that of T. 

1. Oates was sentenced two months prior to the sentencing of the other offenders.  He was five years older than T.  He received a sentence of five months' imprisonment, wholly suspended on condition that he was of good behaviour for a period of two years.  He was fined $500 and ordered to pay compensation of $396 for damage to the door.  He was sentenced on the basis that when spoken to by police shortly after the crime he had admitted kneeing the complainant, and in a subsequent formal interview he also acknowledged that he had kicked the door to the complainant's unit along with the others.  He was entitled to the full mitigatory benefit of having made admissions at an early stage and having entered an early plea of guilty. 

1. For the purposes of parity it is necessary to address Oates' antecedents. The following is a summary of his record of convictions.

Date of offence	Offence	Date of conviction	Penalty where extracted
9/9/06	Drive with a blood alcohol reading of 0.141	18/5/07	Fined $800 and disqualified from driving for 12 months
28/6/06	Possess controlled plant or its products	18/5/07
14/7/06	Possess thing used for administration of controlled drug	18/5/07
8/3/09	Disorderly conduct	27/4/09	Fined $200
18/7/09	Injure property	6/11/09	Fined $200
7 traffic infringement offences

Oates' record was better than T's and he had not previously been exposed to the corrupting influence of detention or imprisonment. 

1. The variations between the sentences imposed on T, Oates and R are explicable on the basis of the differences between the matters relevant to their sentencing.  Whilst Oates kneed the complainant, his physical involvement was not as extensive as that of T, who both held the complainant in a headlock as he was punched and kneed by co-offenders and then kicked the complainant as he lay on the balcony.  R was sentenced on the basis that he was not directly involved in the application of any force to the complainant.  These differences and the differences between their antecedents readily explain why T received a longer sentence than R and Oates, and why six months of his sentence was made immediately effective.

1. I reject the contention that the learned sentencing judge failed to adequately consider the issue of parity as between the sentence imposed on T and the sentences imposed on the other offenders. 

T – Youth Justice Act

1. When the crime was committed, R was 15 and T 17.  Accordingly, the learned sentencing judge had a discretion pursuant to the Youth Justice Act, s107(2), to sentence each of them under that Act instead of under the Sentencing Act.  Her Honour exercised that discretion in favour of sentencing R under the Youth Justice Act, but declined to do so in relation to T because of the nature of his offending, his greater involvement in the crime, and the consequences of the crime.  Counsel for T submits that in doing so her Honour erred in that insufficient weight was given to T's age, record of convictions, prospects of rehabilitation, the adverse consequences of a period of imprisonment on him, and the reason why he was sentenced in the Supreme Court.  That reason was that the Youth Justice Act, s28, prohibited the Youth Justice Court from hearing the charge against T as he was charged jointly with an adult. I am not persuaded that her Honour gave insufficient weight to any of these matters. Save for the last of them she referred to them expressly or by inference in the last paragraph of her comments on passing sentence set out in par[13] above. T's counsel had canvassed the effect of s28 with the learned sentencing judge in the course of the sentencing hearing and there was no occasion for her Honour to refer to that provision in her comments. This ground of appeal could only succeed if it was established that her Honour erred in deciding as she did. I am unpersuaded that she did so.

1. I would dismiss T's appeal.

Hyde's appeal

1. Hyde appeals against his sentence on the grounds that it is manifestly excessive and the learned sentencing judge failed to adequately consider the issue of parity as between his sentence and those imposed on the others. 

1. Hyde's counsel explained his plea of guilty to the learned sentencing judge as being on the basis that kicking the door was an unlawful act, and Hyde conceded that the subsequent assault was a probable consequence of it.  This was noted by her Honour when passing sentence.  The facts peculiar to Hyde, upon which he fell to be sentenced were that: he kicked the door on two occasions; he left when the complainant came out of his unit, although he saw T kick the complainant; and, he did not touch or physically assault the complainant.

1. The head sentences imposed on the offenders were: five months' imprisonment for Hyde, five months detention for R, six months' imprisonment for Oates and eight months' imprisonment for T.  On the basis of the facts on the involvement of each offender on which each was separately sentenced, those referrable to Hyde and R were the most similar.  Neither, on the facts referrable to them, applied any force to the complainant.  Both participated in kicking the door to the complainant's unit, and both left after the complainant came out.  However, as already explained, what followed their involvement to this point was a very serious assault.  By joining in kicking the door to the complainant's unit, Hyde and R participated in putting in train the events that culminated in the assault.  Neither took any action to deflect others from what ensued.  Nevertheless, it is understandable that they received a lesser head sentence than those imposed on Oates and T.  Against the background of the involvement of Hyde and R in the crime, head sentences of five months' imprisonment or detention were plainly within the range that was appropriate for them.

1. Central to Hyde's complaint about his sentence is the fact that it was not wholly or partly suspended as were the sentences imposed on the other offenders.  It is clear from what her Honour said that she did not suspended any portion of Hyde's sentence because of his antecedents.  His record of convictions for a person of any age, let alone a person who was 21, was very poor.  The following is a summary of it. 

Date of offence	Offence	Date of conviction	Penalty where extracted
13/9/03	Drive with a blood alcohol reading of 0.121	15/12/03	14 hours' community service and disqualified from driving for six months
13/9/03	3 convictions for motor vehicle stealing	15/12/03	14 hours' community service in respect of each conviction
13/9/03	Attempted motor vehicle stealing	15/12/03
21/9/05	Driving whilst disqualified	2/3/06	49 hours' community service and disqualified from driving for three months
8/3/06, 24/5/06, 4/7/06	3 convictions for breaching a community service order	21/7/06	7 hours' community service
18/5/07, 15/6/07	2 convictions for failing to appear	1/8/07	14 days' imprisonment wholly suspended on condition that he be of good behaviour for 12 months and commit no offences against the Bail Act
25/3/07	Fail to identify driver of vehicle	1/8/07	Cumulative disqualification from driving for six months
9/6/07	Resist a police officer	1/8/07            )
8/6/07	Use abusing language to police officer	1/8/07            )   )
9/6/07	Assault a police officer	1/8/07            )   )   )   )	6 months' imprisonment commencing 22/7/07, 3 months suspended on condition that he be of good behaviour for 3 years
17/9/06	Common assault	1/8/07            )
8/6/07	Escape	1/8/07            )
7/6/07	Drive a vehicle under the influence of intoxicating liquor	1/8/07	3 months' imprisonment cumulative on the above sentence imposed on this date, and cumulative disqualification from driving for 2 years
16/6/07	Breach of bail conditions	1/10/07	14 days' imprisonment concurrent with current term of imprisonment wholly suspended on condition that for 12 months he be of good behaviour and not commit any offence against the Bail Act
14/3/08	Fail to comply with a demand and forthwith and with reasonable diligence take steps to identify driver and to report such information	15/8/08          )   )   )   )   )   )	Disqualified from driving for 6 months from 15/8/08
14/3/08	Fail to disclose identity of driver of motor vehicle	15/8/08          )
1/1/09	Drive whilst disqualified	15/5/09	6 weeks' imprisonment wholly suspended on conditions including that he be of good behaviour for 12 months
4/3/09	Breach of family violence order	19/6/09	14 days' imprisonment wholly suspended on condition that for 12 months he commit no offence of family violence
3/9/08	Breach a condition of community service order	4/9/09
9/5/09	Drive whilst disqualified	6/10/09	3 months' imprisonment wholly suspended on condition that for 3 years he not drive a vehicle whilst disqualified, fined $300, and cumulative disqualification from driving for 6 months
22 further traffic and traffic infringement notice offences, including a disqualification from driving because of an accumulation of demerit points

1. In summary, Hyde has been fined on numerous occasions; been made subject to probation; been ordered to perform community service, and, on four occasions, been convicted of breaching such orders; been disqualified from driving on seven occasions; received wholly or partly suspended sentences of imprisonment on six occasions; and served a sentence of imprisonment.  His commission of the subject crime breached a condition that he be of good behaviour that applied to the  suspension of a sentence of three months' imprisonment imposed on 1 August 2007.  That sentence was for offences that included common assault and assaulting a police officer. It breached the same condition on the suspension of a sentence of six weeks' imprisonment on 15 May 2009.  When sentenced by her honour, Hyde was subject to a sentence of 14 days' imprisonment imposed on 19 June 2009, but wholly suspended on condition that he commit no offence of family violence, and a sentence of three months' imprisonment imposed on 6 October 2009 but wholly suspended on condition that he not drive a motor vehicle for three years.

1. It was because of Hyde's antecedents that his sentence was neither wholly nor partly suspended.  He had on many occasions benefited from the leniency that the court extends to young offenders but had continued to offend.  In the circumstances, there was no occasion for her Honour to again extend leniency to him.  Insofar as the others obtained the benefit of leniency, that was explicable on the basis of the very marked difference between their antecedents and those of Hyde.  I am quite unpersuaded that by reason of the failure to suspend all or part of his sentence, it was manifestly excessive, or provides him with any justifiable sense of grievance on the grounds of parity. 

1. I would dismiss Hyde's appeal.

   File Nos CCA 582/2010

   CCA 581/2010

DANIEL EDWARD HYDE v STATE OF TASMANIA
T, J M v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW J
29 September 2010

1. I agree that both of these appeals should be dismissed for the reasons stated by Evans J.

   File Nos CCA 582/2010

   CCA 581/2010

DANIEL EDWARD HYDE v STATE OF TASMANIA
T, J M v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PORTER J
29 September 2010

1. I agree with the reasons for judgment of Evans J and would also dismiss each appeal.