Jenkins v Tasmania - [2019] TASCCA 12

[2019] TASCCA 12

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

CITATION: Jenkins v Tasmania [2019] TASCCA 12

PARTIES:  JENKINS, Christopher
  v
  STATE OF TASMANIA

FILE NO:  CCA 2258/2018
DELIVERED ON:  29 August 2019
DELIVERED AT:  Hobart
HEARING DATE:  4 March 2019

Written submissions – 1, 4 July 2019

JUDGMENT OF: Geason J, Marshall AJ and Porter AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Parity between co-offenders – Justified sense of grievance shown where no reasonable grounds for the differentiation – Appellant sentenced to imprisonment for crimes of violence – Appellant with lengthy record of offending giving rise to terms of imprisonment – Co-offender a young offender with no significant record and played lesser role – Appellant sentenced for additional crime while co-offender liable as accessory for appellant's acts – Appellant not sentenced for those acts – Co-offender sentenced to lesser term of suspended imprisonment coupled with community service – Reasonably open to sentencing judge to differentiate between offenders.

Barbarov The Queen [2012] VSCA 288, 226 A Crim R 354; DPP (Commonwealth) v KMD [2015] VSCA 255, 254 A Crim R 244, followed.
Aust Dig Criminal Law [3527]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Other matters – Error of fact – Need to establish material error – Error must be one capable of having affected the outcome.

Kentwell v The Queen [2014] HCA 37, 252 CLR 601, considered.
Harding v Western Australia [2015] WASCA 27, followed.
Aust Dig Criminal Law [3525]

REPRESENTATION:

Counsel:
             Appellant:  P Monk
             Respondent:  M Allen and M Figg
Solicitors:
             Appellant:  Legal Aid Commission
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASCCA 12
Number of paragraphs: 156

Serial No 12/2019
File No CCA 2258/2018

CHRISTOPHER JENKINS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

GEASON J (Dissenting)
MARSHALL AJ
PORTER AJ
29 August 2019

Orders of the Court

Appeal dismissed.

Serial No 12/2019

File No CCA 2258/2018

CHRISTOPHER JENKINS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J

29 August 2019

Brett J sentenced the appellant to two years and six months' imprisonment upon his pleas of guilty to two counts of assault and a single count of wounding. He imposed a non-parole period of 18 months.
Leave was granted by the Court to bring an appeal against that sentence out of time, and, in turn, to amend the notice of appeal.
There are two grounds of appeal:
"(i)That the learned sentencing judge erred by failing to adequately take into account the parity principle; and
(ii)That the learned sentencing judge based the sentence on erroneous material regarding the appellant's prior convictions, namely by finding that the appellant had 'most recently in New South Wales … received a term of imprisonment of three years for the offence of robbery whilst armed with an offensive weapon'."

Ground 1

On a number of occasions it has been said that a ground of appeal expressed in terms of a failure to adequately consider something, or to give sufficient weight to some principle, is not a proper ground of appeal: TAP v Tasmania [2014] TASCCA 5 per Porter J at [30]; Mulholland v Tasmania [2017] TASCCA 2, 25 Tas R 313, per Pearce J at [17]; Butt v Tasmania [2018] TASCCA 3 per Pearce J at [53]; Kelly v Pensalfini [2019] TASSC 2 per Porter AJ at [44].
Properly construed, this ground asserts that error is manifest by reason of the disparity in sentence between the appellant and his co-offender, Nicholas Wallner.
This amounts to a contention that it was not reasonably open to the learned sentencing judge in the circumstances of the case to differentiate between co-offenders in the way he did: Hilder v The Queen [2011] VSCA 192 at 37.

Facts

Nicholas Wallner and Christopher Jenkins jointly participated in an unprovoked physical attack on another man. Wallner was charged on an indictment alleging a single count of assault and wounding. The latter count was put on the basis of accessorial liability for that offence, and for which the appellant was charged as a principal. He pleaded guilty.
Wallner was aged 21 at the time of sentence. The appellant was aged 32 years.
Before a differently constituted court, Wallner was sentenced to 12 months' imprisonment wholly suspended for two years. He was ordered to perform 105 hours of community service.
The difference in the term of imprisonment was 18 months, all of which the appellant was required to serve.

Nicholas Wallner

The State's case was that Wallner and the appellant were involved in a joint criminal enterprise in that they followed the complainant to his house with a shared intention of being violent towards him. There were differences however in the involvement of each accused in the single episode that led to the charges. The appellant's counsel summarised the factual differences in the involvement of each accused.
Adopting that summary as an accurate statement of the salient features of the offending, Wallner was sentenced on the basis that:
(i)He instigated the appellant's actions urging him to follow the complainant.
(ii)He punched and kicked the complainant whilst the complainant was on the ground, and after he had been hit by the appellant with the pipe.
(iii)He took possession of the pipe and gestured as if he was going to hit the complainant with it.
(iv)He continued to punch the complainant.
(v)He was acting in a joint criminal enterprise with Jenkins, and he aided and abetted the wounding on the basis he was indifferent to whether a wound was caused.
In sentencing Wallner, the learned sentencing judge noted that it was Wallner who had suggested to the appellant that they go after the complainant, later telling police that he was "pissed off and wild". His Honour found that Wallner and the appellant followed the complainant whilst the appellant was holding a metal pipe. The Crown alleged that one of them yelled at the complainant a threat to kill him, and to inflict damage on his motor vehicle. One of them had also said they wanted money. The court found that when Wallner took the pipe from the appellant, he gestured to the complainant as if he was going to strike him with it.
Wallner made admissions to police, including a claim that he had struck the complainant with the pipe, a claim which was not accepted by the State.
The Court found that in respect of the intention to wound, the material before it did not permit a finding beyond reasonable doubt that Wallner had intended that a wound be caused, and that the plea of guilty encompassed acceptance of criminal responsibility by way of aiding and abetting the wounding.
The Court noted the absence of any significant offending history; that Wallner was 21 years old; that he had been drinking on the night in question, and was angry about the damage to the appellant's car. Wallner had been swept up in the appellant's actions. Account was taken of Wallner's pleas of guilty and remorse.

The appellant

Again adopting counsel's summary, the appellant was sentenced on the basis that:
(i)He exited a motor vehicle carrying a pipe.
(ii)He threw four punches at the complainant, whilst the complainant was seated in his motor vehicle.
(iii)He said words to the effect "I'm going to kill you".
(iv)He struck the complainant to the top of the head with the pipe and continued to do so until the complainant fell to the ground.
(v)When the complainant stood up he hit him with the pipe another time resulting in a laceration to the complainant's head.
(vi)Towards the end of the incident, and whilst the complainant was returning to his house, the appellant said "you can have another one" and punched him again.
The State maintains that the differences in the conduct of the appellant and Wallner explain the sentencing disparity, contending that the sentencing differential was reasonably open to the learned sentencing judge. It also points to the differences between the two accused's prior convictions.
The appellant had prior convictions in Tasmania for a single count of common assault for which a conviction was recorded in 2002. He was a youth at the time. In April 2006 he was sentenced in New South Wales for a single count of robbery armed with an offensive weapon, for which he received a term of imprisonment of 36 months with a non-parole period of 18 months. On 9 December 2009 he was sentenced in New South Wales for one count of demanding property with menaces with intent to steal, a crime committed on 11 October 2008. He was sentenced to 3 years' imprisonment with a non-parole period of 12 months. (It is conceded that his record was incorrectly described by the learned sentencing judge at the time of sentence, such as to suggest that he had a more recent prior conviction for an offence involving violence.)
The State points to the fact that each accused was tried on separate indictments, but that fact alone has no bearing on the matter, save to explain the circumstance whereby the appellant and his co-accused were sentenced by different courts. The principle is not avoided by that approach, but perhaps rendered vulnerable to differences of approach, and weight. As a matter of practice, it is desirable that co-offenders be sentenced by one judge: Postiglionev The Queen (1997) 189 CLR 295 at 320. Echoing this view in Dwayhi v The Queen [2011] NSWCCA 67, 205 A Crim R 274 at [44]–[45], the Court said that co-accused should be dealt with, so they are sentenced by the same sentencing judge, preferably at the same time. In my view that approach ought to have been followed here (and generally).
The sentence on Wallner is not the subject of review. Its relevance in sentencing the appellant (and for this appeal) is as a point from which to consider the application of the parity principle to the appellant's sentence. It is not submitted that the sentence imposed on Wallner was unduly lenient, but even if it was so viewed, the task of sentencing the appellant could not be undertaken free from the influence of that sentence because marked disparity renders a sentence vulnerable on appeal; Lowe v The Queen (1984) 154 CLR 606. Indeed, if necessary, in sentencing the appellant the court was required to err on the side of leniency and eliminate or diminish the appearance of injustice "by reducing the more severe penalty …": Lowe (above) per Mason J at 612. The proper method of correcting discrepancy in the first sentence is not to increase the co-offender's penalty: Lowe (above).
Disparity is not simply a question of the imposition of different sentences, but is a question of due proportion between those sentences, determined by reference to the different circumstances of the co-offenders and their different degrees of criminality: Postiglione (above) at 401 per Dawson and Gaudron JJ.
In Lowe v The Queen (above) at 609, Gibbs CJ identified the "true positon" in these terms:
"It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offences, have to be taken into account."
His Honour said at 610 that the very existence of disparity may reveal error, but he preferred to "acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance …". The decision about whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal. In DPP (Commonwealth) v KMD [2015] VSCA 255, 254 A Crim R 244 at [109], the Court said that the notion of a justifiable sense of grievance is no more than a statement to the effect that the sentencing differential was not reasonably open to the court.
In Lowe (above), Mason J, at 611, after noting that the authorities on the question "did not speak with one voice", determined that as a matter of general principle it was important for the court to declare "unequivocally" that marked disparity is itself a ground for appellate intervention.
And as to when such intervention was appropriate, Dawson J said, at 624, that intervention is called for when the difference between the sentences is manifestly excessive. Wilson J agreed at 616.
In Postiglione (above), the High Court once again considered the issue of disparate sentencing responses to co-offenders engaged in like criminal activity. In a joint judgment, Dawson and Gaudron JJ identified the parity principle as one of "equal justice", a principle requiring that "like should be treated alike", but which required relevant differences to be the subject of due allowance.
The approach of an appellate court to the question is an objective one: Lowe (above) per Mason J at 613; Postiglione v The Queen (above), Kirby J at 342.
In sentencing the appellant, the learned sentencing judge summarised his assessment of the differences between each accused, stating that Wallner, had a "lesser role in relation to these crimes", a proposition supported by the facts. The court stated that the weapon had not been in Wallner's possession and that he came into possession of it during the course of the confrontation. His Honour observed that the real difference was that Wallner did not directly inflict the same amount of violence as did Jenkins, and "it is clear that [Mr Wallner] had a lesser role in relation to the crimes that were committed". It was noted that he was not armed with a weapon although he did come into possession of a weapon during the course of the confrontation. This assessment was a necessary step in the court's consideration of the issue of parity.
The State's submissions to the Court in the matter of Wallner, as recorded in the comments on passing sentence in that case, appear to portray something different about each accused's involvement. There it was put, that "the Crown case is that the defendant and his brother were involved in a joint criminal enterprise in that they followed [the victim] with the shared intention of being violent to him. On that basis it is said they are each responsible for all the relevant acts". That appears to me to suggest that, at least in respect of the charges that were common to both men, each was criminally responsible to the same degree. In fact in a joint criminal enterprise each will be responsible for all the acts that are a probable consequence of that enterprise: Criminal Code, s 4. Counsel for the State did not take the Court to those comments in this appeal, or attempt to clarify them in dealing with the differences in the offending behaviour relied upon here. The parity principle is not displaced merely because co-offenders who participated in a joint criminal enterprise, have not been convicted for precisely the same offences; Jimmy v The Queen [2010] NSWCCA 60, 240 FLR 202; DPP (C'wlth) v Gregory [2011] VSCA 145, 250 FLR 169.
Whether one approaches the matter on the basis that manifest excess in the difference in sentences between co-offenders is an indicia of error in the application of the parity principle; or prefers to ask "was it reasonably open to the court to differentiate between co-offenders in the way it did", the point is, in substance, the same: manifestly excessive differences in sentence between co-offenders are differences not reasonably open to the Court.
On appeal it is for the appellant to show that the learned sentencing judge has made an error in the exercise of his discretion: House v The King (1936) 55 CLR 499 at 505. That involves identifying specific error, such as having regard to irrelevant matters, or some error of principle, or mistake of fact. Or if specific error is not shown, establishing that the result is unreasonable or plainly unjust. This sort of error is engaged in cases alleging "manifest excess" or inadequacy.
The question in the appeal is whether it was reasonably open to the sentencing judge to differentiate between the co-offenders in the way he did if proper weight were given to the similarities and differences between them as regards culpability, criminal record and personal circumstances: Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288, 226 A Crim R 354 at [63]. A proper comparison requires a consideration of all components of the sentence: Postiglione at [208] per Dawson and Gaudron JJ. The head sentence is "but one component of the sentence". The totality of the penalty will not be the correct comparator in all cases, but rather the sentences imposed on the offences common to both (or all) offenders: Postiglione (above) at [207], [208], [210], [230]. That is not possible here because the sentence was expressed as a global one (though on one view, perhaps simplistic, all the difference in penalty is attributable to the extra charge against the appellant, his prior matters and age).
In sentencing the appellant, the Court was entitled to have regard to the differences of age and antecedents between the two defendants. Wallner's youth was relevant to rehabilitation as a sentencing consideration in his case: Lahey v Sanderson [1959] Tas SR 17 at 21, but the appellant's circumstances did not attract that consideration in the same way. And in terms of prior convictions, the appellant was not to be punished twice for his record, but those matters required weight in fixing sentence as evidence of character: Veen (No 2) (1988) 164 CLR 465 at 477.
But in respect of participation in the offending behaviour, this is not a case where the appellant's co-accused stood by, or merely encouraged the offending. He instigated the initial engagement with the complainant and became an active participant in the course of conduct which followed, including punching and kicking the complainant whilst he was on the ground.
Acknowledging those matters, is the disparity explained? Sentencing is a process of instinctive synthesis: Wong v The Queen [2001] HCA 64, 207 CLR 584; Markarian v The Queen [2005] HCA 25, (2006) 228 CLR 357. It is not a mathematical exercise, and care needs to be taken to avoid an approach on review which ignores those factors, and the discretion vested in the sentencing court. I am mindful of those matters.
However, as I have said, the question is not "was the sentence imposed on the appellant an appropriate one?" The focus is upon the disparity between the co-offenders' sentences. A difference of 18 months' imprisonment, all of which was required to be served, is a substantial one. The matter of the suspension of sentence, was not emphasised in the appellant's submissions as much as it might have been, but it is relevant. Since drafting my reasons, I have had the advantage of reading the decision of Porter AJ who has identified some cases pertinent to this aspect. In one of those cases, Earle v Tasmania [2011] TASCCA 16, Wright J, at [29], having said of that case, that he could see no reason for distinguishing between co-offenders as to suspension of sentence, held that "an objective assessment of the failure to suspend three months of the sentence imposed on the appellant gives rise to a justifiable sense of grievance and an appearance of injustice on his part". In Postiglione (above) Dawson and Gaudron JJ at 303 identified the proper course as one which had regard to the total effect of the sentences imposed, not merely the period by which a co-accused's sentence was increased. Their Honours considered relevant the way in which the respective sentences operated, comparing the total time to be spent in prison by each offender.

If one considers the principles applicable to disparity in sentencing, as speaking to notions of equal justice, and the language used by Mason J in Lowe (above) at 613, of "an appearance of injustice to that impassive representative of the community, the objective bystander", suspension of sentence for one offender but not another, other things being equal, may engender in that objective bystander, a sense of the appearance of injustice. Such difference may amount to a breach of the principle of equal justice. This aspect is a material matter as between co-accused when questions of parity in sentencing are raised, and relevant here.
Weighing the relevant matters related to the offending, the involvement of each accused, their age and antecedents, I consider that disparity exceeds that which is attributable to the unequal antecedents and personal circumstances of the co-offenders, and the level of participation of each in the offending behaviour.
The Community Service Order component of the sentence imposed on Wallner does not alter that conclusion.
In the language of Dawson J in Lowe (above) the difference is manifestly excessive, because it is unreasonable. In the language of Dawson and Gaudron JJ in Postiglione, there has not been "equal justice".
That is error of the second type identified in House v The King (above). It justifies appellate intervention.
I uphold ground 1.

Ground 2

Ground 2 asserts that the learned sentencing judge's sentencing proceeded upon an erroneous basis regarding the appellant's prior convictions.
In sentencing the appellant the Court said "… [He] has been sentenced to imprisonment on a number of occasions. The most recent occasion was in New South Wales, where he received a sentence of imprisonment of three years for an offence of robbery while armed with an offensive weapon. He has committed a variety of other crimes, both in New South Wales and here, many of them crimes of dishonesty. They indicate, at the very least, a general disregard and disrespect for the law and a refusal to be bound by the law. Of course, the crime for which he was sentenced in New South Wales involved violence with the use of a weapon and this has significance in relation to the circumstances of these crimes …" [my emphasis].
The Crown concedes that when sentencing the appellant, his Honour was incorrect when he referred to the appellant's most recent term of imprisonment as being in New South Wales "where he had received a sentence of three years for the offence of robbery while armed with an offensive weapon". In fact the most recent offence for which the appellant had been sentenced to a term of imprisonment was not an offence involving violence, and it was not the crime of robbery. (Demanding property with intent to steal does not involve the use of a weapon, nor does it involve violence.)
The Crown submits that the factual error "cannot sensibly be seen as leading his Honour to a false impression" that the appellant's history of criminal violence "exceeds that which is proved" or led to the imposition of a sentence "far greater than that of Mr Wallner".
In a case where the appellant relied upon the effect, and cumulative effect, of every proposition that could be put in his favour, that submission is somewhat glib. The learned sentencing judge placed emphasis on the appellant's criminal history, particularly for crimes of violence. Whilst an offender may not be punished twice for prior convictions, an apparent failure of past sentences to bring about a change in behaviour will be relevant to sentencing, as his Honour correctly observed in referring to the appellant's prior record. The content of that record meant the appellant could not claim to be a person of good character, and that is a matter informing the need for personal deterrence. The nature of the prior offending and the gap in offending of a type exhibiting violence are thus relevant sentencing considerations: Veen (No 2) (above). An erroneous reference to those matters, is therefore capable of influencing the sentencing judge's assessment of a relevant consideration in formulating sentence.
Whether this was merely a misstatement of the appellant's history, or a misapprehension of it, it is not possible to say. The appellant would rightly question a conclusion by this Court that it was merely a misstatement, when the public record does not expose that to be so, nor reveal an objectively reasonable basis for drawing such inference. If the error relates to a matter which is a sentencing consideration, as is the case here, it is, by that very fact, material error. No amount of contextualising such error can expunge it. Appellate intervention is required. This is so because "it cannot be said with confidence" that the error "did not affect the exercise of the sentencing discretion": Turnbull v The Queen [2019] NSWCCA 97 at [38] per Simpson AJA, in respect of an error her Honour described as "all but inconsequential".
It is not necessary to reach any conclusion about the way in which the error influenced the sentence which was imposed. In Kentwell v The Queen [2014] HCA 37, 252 CLR 601, French CJ, Hayne, Bell and Keane JJ said at [42]: "When a judge … mistakes the facts or does not take into account some material consideration the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing …". It is not a matter of adjusting the sentence actually passed, but exercising the discretion afresh; Kentwell (above) at [40] referring to Baxter v The Queen [2007] NSWCCA 237, 173 A Crim R 284, per Spigelman CJ at [19].
I uphold ground 2.
The error vitiates the sentence. I consider in those circumstances the duty to exercise the sentencing discretion afresh in accordance with Kentwell (above), supplants any consideration of the operation of the proviso, a course the Crown urged. I would not apply the proviso in any event. It cannot fairly be said that no substantial miscarriage of justice occurred: the Code, s 402(2).
I quash the sentencing order made on 10 July 2018. This Court should resentence the appellant.
The Court invited the parties to make submissions with respect to the factual basis upon which resentencing should occur.
The respondent contends that it is open for this Court to conclude that the learned sentencing judge mistook the extent of the conduct that was the subject of count three on the indictment. After referring to a single punch to the complainant's head, his Honour said "that would appear to constitute count 3". It submits that the particulars of the charge and the facts presented to the court are inconsistent with that summary. The facts presented to the court included the following narrative: "Mr Hallam's wife came outside to try and calm the accused and Wallner down, but both Wallner and the accused continued to punch the complainant. Mrs Hallam pulled the accused away …".
The appellant does not accept that his Honour made any such error, submitting that if his Honour's remarks are considered in context, it is apparent that the full extent of the conduct the subject of that count was considered.
Since I have already determined that the court proceeded to sentence on a wrong factual basis, I do not need to resolve the question of whether his Honour included those additional aspects within his sentencing considerations.
It is uncontroversial that those additional punches formed a part of count three and were required to be taken into account. The court should resentence on the basis that on count 3 the appellant threw a punch whilst saying "you can have another one" and continued to punch the complainant until the intervention by the complainant's wife.
Counsel agree that the appellant should be sentenced only on the basis of his actual conduct constituting that count and not on the basis of any conduct by his co-accused.
I have identified the matters relevant to arriving at a sentence, and acknowledged the relevant disparities between the appellant and his co-offender. I have regard to the matters put in mitigation upon the plea of guilty. That plea of guilty did not come at an early stage in proceedings. I accept that it has obviated the need for the complainant to give evidence, but accord it minimal weight in fixing penalty. The appellant's antecedents show him not to be a person of good character. His conduct and his circumstances warrant a significant custodial sentence. In the result I would impose a sentence of 2 years' imprisonment, with a non-parole period of 14 months.

File No CCA 2258/2018

CHRISTOPHER JENKINS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARSHALL AJ
29 August 2019

I agree with the reasons for judgment of Porter AJ.

File No CCA 2258/2018

CHRISTOPHER JENKINS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PORTER AJ
29 August 2019

Introduction

I have had the advantage of reading the draft reasons for judgment of Geason J. His Honour has set out the amended grounds of appeal, and commented on the wording of ground 1 which relates to the parity principle; comments with which I respectfully agree. But with respect, I am not able to agree that either ground is made out. In my view, for the following reasons, the appeal should be dismissed.
On 10 July 2018, Brett J sentenced the appellant for two counts of assault and one count of wounding. The sentence was a global one of two years and six months' imprisonment – appropriately backdated – with a non-parole period of 18 months. On 19 December 2017, the offender with whose sentence comparison is to be made, Nicholas Wallner, was sentenced to 12 months' imprisonment, the execution of which was suspended on conditions that he perform 105 hours of community service, and not commit an offence punishable by imprisonment for a period of two years. He was sentenced in relation to one count of assault and one count of wounding.
This Court is not concerned with whether the appellant's sentence is manifestly excessive as such; there is no ground of appeal to that effect. Nor is it concerned with questions as to comparison and intervention that may arise when the sentence of the co-offender is said to be inadequate: see Lowe v The Queen (1984) 154 CLR 606 at 612 per Mason J; R v Wilson [2000] VSCA 202 at [19]-[22]. As Geason J has mentioned, the State does not assert inadequacy; both parties take the position that Wallner's sentence was lenient but not erroneously so. It is a matter of public record, but for the sake of transparency I should state in these reasons that I was the judge who sentenced Wallner. I will, of course, confine myself in anything I say about that sentence to things which appear in my comments on passing sentence, or which can reasonably be drawn from those comments.

Ground 1 - disparity

The most recent High Court discussion on the parity principle is contained in Green v The Queen [2011] HCA 49, 244 CLR 462. In a joint judgment, French CJ, Crennan and Kiefel JJ observed that the principle is an expression of a notion of equal justice; it requires that like offences be treated in a like manner, and allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances; see [28]. At [31] their Honours noted Lowe v The Queen (1984) 154 CLR 606 per Gibbs J at 609-610, as authority for the proposition that the reason for a court interfering in the case of marked disparity is that it considers the disparity such as to give rise to a justifiable sense of grievance, or in other words, to give the appearance that justice has not been done.
At [32] their Honours continued [omitting references]:
"A court of criminal appeal deciding an appeal against the severity of asentence on the ground of unjustified disparitywill have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. ... [D]iscrepancy is a ground for intervention in itself. Unjustifiable disparity ... is an appealable error, although it may not always lead to an appeal being allowed."
As noted in Green, the discrepancy must be "marked". Adjectives used in other cases have included "manifestly excessive", "gross", "glaring" and "manifest": Lowe (above) at 610 per Gibbs CJ, at 613 per Mason J, at 623-624 per Dawson J; Postiglione v The Queen(1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ, at 323 per Gummow J; Sinkovich v The Queen [2011] NSWCCA 90 at [62].
In Green, their Honours observed that the sense of grievance necessary to attract appellate intervention is to be assessed by objective criteria, and does not involve a judgment about the feelings of the person complaining of disparity: "The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant conduct or enterprise."
I will say something more about the approach to an appeal on the ground of disparity, and the factors to be taken into account in assessing whether disparity in a particular case is justified. As is evident from what I have set out above, their Honours in Green endorsed the question in terms of whether there was an objectively justifiable sense of grievance, but at the same time spoke of "unjustifiable disparity" being an appealable error. In Smith v Tasmania [2012] TASCCA 3, this Court summarised the operation of the parity principle in accordance with Green, and posed the central question in terms of whether a "marked disparity is justified": see [1], [31] and [34].
In this case, Geason J has posed the question as whether it was reasonably open to the sentencing judge to differentiate between the co-offenders in the way he did, if proper weight were given to the similarities and differences between them as regards culpability, criminal record and personal circumstances. His Honour has done this by reference to Hilderv The Queen [2011] VSCA 192, Barbarov The Queen [2012] VSCA 288, 226 A Crim R 354, and DPP (Commonwealth) v KMD [2015] VSCA 255, 254 A Crim R 244. I agree. I think the preferable approach is that a justifiable sense of grievance is determined by whether there are reasonable grounds for the differentiation. It is worth exploring this point a little further.
In R v Lewis [2008] VSCA 202, Maxwell P took the "respectful view" that the 'sense of grievance' formulation had the disadvantage that it encouraged appellants to urge a review on the merits: "The question, on appeal, is whether the sentencing relativity was outside the range reasonably open to the sentencing judge in the circumstances."
In R v Wolfe [2008] VSCA 284 at [9], his Honour returned to this theme. His Honour, with whom Weinberg JA and Hargrave AJA agreed, said [omitting references]:
"… [T]he question which according to the authorities must be addressed when dealing with a parity ground is whether the appellant could be said to have a 'justifiable sense of grievance' about the relativity between the appellant's sentence and the sentence of the co-offender. I do not understand the test thus formulated to require any departure from the conventional approach to appellate review of sentences. That is, the question whether the appellant's sense of grievance is justifiable is to be determined by asking whether there were reasonable grounds for the differentiation – or lack of differentiation, as the case may be – between the appellant and the co-offender. If it was reasonably open to the sentencing judge, on the material before the court, to differentiate – or fail to differentiate – between the co-offenders in the way he/she did, then there is no warrant for appellate intervention, and the appellant's grievance about the sentencing relativity cannot be said to be justifiable."
That passage was quoted in a joint judgment of Maxwell P, Ashley JA and Lasry AJA in R v Teng [2009] VSCA 148, 22 VR 706 [17]. Then followed Hilder (above) at [37], and Barbaro (above) per Maxwell P at [63], (Harper JA and T Forrest AJA agreeing), where his Honour said that the question is whether it was reasonably open to the judge in the circumstances of the case to differentiate – or fail to differentiate – between the co-offenders in the way in which he or she did: "The answer to that question determines whether – in the accepted terminology – the person making the complaint has a 'justifiable sense of grievance'." In KMD (above) at [109], by reference to Teng and Wolfe, the Court said the expression "justified sense of grievance" was simply a way of expressing the conclusion that a sentencing differential was not reasonably open to the judge given the relevant similarities and differences between the offending and the offenders.
In terms of what differences between co-offenders may justify an obvious disparity, there is, of course, a range of matters beyond the examples given by their Honours in Green at [31] (above). In addition to those examples, special mitigating or aggravating factors may also contribute to justifiable disparity; for example, guilty pleas, evidence of contrition or a willingness to give evidence against others. The very wide range of matters which influence the exercise of the sentencing discretion, and the nature of that discretion, has an impact on the approach of a court of criminal appeal to a ground asserting unjustified disparity: Green at [32] (above). In Rees v The Queen [2012] NSWCCA 47 at [50], Garling J, with whom Macfarlan JA and R J Hulme J agreed, said:
"Because the function of imposing a sentence on an individual has a discretionary character, an appellate court will ordinarily be reluctant to intervene. There is no such thing as perfect consistency in sentencing. A search for perfect consistency is to look for the unattainable and will frequently be an exercise of academic abstraction: Postiglione at 336-7 per Kirby J, R v M (CA) (1996) 105 CCC (3d) 327 at [92] per Lamer CJ."[1]

The facts

[1] This statement was expressly approved by the Court in Arenilla-Cepeda v The Queen [2012] NSWCCA 267 [85].

The appellant and Wallner are half-brothers. The appellant was 30 years old at the time of the offending on 13 July 2016; Wallner was 20.
The background to the offending of the two men was an incident involving the complainant about six days before the date on which the crimes were committed. These facts were put by State counsel in both proceedings. The men were in Wallner's vehicle, at that time being driven by Wallner. The complainant was also driving a vehicle. The two vehicles converged at the intersection at which the complainant was obliged to give way to Wallner. The complainant stopped and yielded to some cars, before pulling out in front of Wallner's car, believing it was safe to do so. Wallner had to brake to avoid a collision. With both vehicles stopped, the appellant got out and went to the complainant in his car. He yelled at him; "You want to fucking slow down mate". All persons then left the area.
On 13 July 2016, the appellant and Wallner were again in Wallner's car; this time with the appellant driving. They saw the complainant in front of them. The appellant drove close behind and flashed the car's lights. The complainant stopped, as did the appellant. The appellant went to the complainant's car, and through the open window, immediately punched him to the face three times and said words to the effect of "You fucking cunt, you pulled out in front of us last week", then hit the complainant a fourth time. The complainant suffered a cut to his forehead, later seen to be bleeding profusely, and a bleeding nose.

Rather oddly, the complainant then reversed his car into Wallner's, later claiming that he did so in order to "mark" the car for later identification. He then drove off towards a friend's house. The appellant and Wallner followed. (In the Wallner proceedings, the State informed the court that Wallner later told police he had said to the appellant, "Let's go", and agreed he meant for the appellant "to follow" the complainant; adding he was "pissed off" and "wild": "I just lost me shit". In the appellant's proceedings, the State did not assert any discussion between the two men before the appellant followed the complainant.) The complainant parked in his friend's driveway; the other two stopped in the street nearby. The complainant's friend (H) came outside and went towards the two offenders. The appellant was holding a metal pipe. H tried to calm things down but when the complainant appeared, the appellant said "I'm going to kill you, you cunt". H tried, but was unable to, keep the two offenders away from the complainant.
In short, what then happened can be summarised as follows. I will note the differences in the facts asserted to the respective sentencing courts.
·     The appellant hit the complainant on the top of the head with the pipe.
·     He continued to strike the complainant (Wallner proceedings) or strike at the complainant (the appellant's proceedings) until the complainant fell to the ground.
·     One or other of the appellant or Wallner said words to the effect of "We're gunna fucking kill, gunna take the car and rip that apart", and "We want money".
·     H pulled the appellant away but Wallner punched and kicked the complainant while he was on the ground.
·     In the Wallner proceedings, but not in the appellant's, it was asserted that the appellant then punched and kicked the complainant.
·     Wallner went to the complainant's car to look for the keys. The complainant got up, pulled Wallner from the car, and threw the keys into the garden.
·     The appellant then again hit the complainant to the top of the head with the pipe, and H again tried to pull the appellant away.
·     Wallner grabbed the pipe and gestured as if going to strike the complainant, but did not.
·     The complainant pushed Wallner against his (the complainant's) car, and told his friend to grab the pipe.
·     The complainant was able to walk away towards the house at which time the appellant moved in front of him, and said "You can have another one", then punching the complainant to the face with his fist.
·     Other people emerged from the friend's house, and during the attempts to calm things down, both the appellant and Wallner continued to punch the complainant.

Criminal responsibility

The Wallner proceedings

In the Wallner proceedings, the first count on the indictment was one of assault. It is particularised as "punching and/or kicking [the complainant] to the head and/or body". The particulars of the count of wounding are that he "with another, unlawfully wounded [the complainant] by striking him to the head multiple times with a metal pipe."
In putting the State's case, counsel stated that "the State's position is that the accused [Wallner] and Jenkins were involved in a joint criminal enterprise and therefore are both criminally responsible for the acts of the other in punching, kicking and striking the complainant with a metal pipe". That is, Wallner was responsible for his own acts and for those of the appellant.
Wallner was sentenced on the basis that the 'joint criminal enterprise' involved a shared intention of being violent to the complainant. He was not sentenced on the basis that there was a joint criminal enterprise so as to make him an actual perpetrator of all of the conduct of both men, as outlined against him – see s 3(a) of the Criminal Code.[2] Nor was he sentenced on the basis that he was a party to an unlawful common purpose within the meaning of s 4 of the Code, making his liability one for a crime the appellant may have committed with an intention to wound.[3] Wallner was dealt with on the basis that his pleas of guilty encompassed criminal responsibility by way of aiding and abetting. It was found that he was reckless as to whether the complainant was wounded, as distinct from intending that the complainant be wounded.
[2] Clarke v Tasmania [2013] TASCCA 11, 24 Tas R 384; Edwards v Tasmania [2016] TASCCA 7 at [15].
[3] Cordwell v Tasmania [2019] TASSC 14 at [33].
It follows that in relation to the first count he faced, Wallner was dealt with on the basis that he personally inflicted some blows, and was responsible, by way of being an abettor, for the several punches delivered by the appellant. In relation to the second count, he was liable for the wounding by way of abetting the appellant's conduct.

The appellant's proceedings

The first count on the indictment, that of assault, alleges punching the complainant several times to the face. Clearly, that related to the first incident when the appellant punched the complainant four times to the face through the open window of the car. The allegation of wounding contained in the second count alleges wounding by "striking the complainant several times to the head with a metal pipe." The third count, assault, is particularised as "punching [the complainant] several times to the head and/or body".[4]
[4] As a matter of historical interest, the appellant had been charged on an earlier indictment with one count of assault, that coinciding with the first count of the indictment to which he pleaded, and one count of committing an unlawful act intended to cause bodily harm contrary to s 170(1) of the Criminal Code, the particulars being that with intent to disable and/or cause grievous bodily harm to the complainant, he did actual bodily harm to the complainant "by striking him to the head with a metal pipe and by punching and/or kicking him to the head and/or body".
As in the Wallner proceedings, having detailed the facts, State counsel stated that it was the State's position that the appellant and Wallner were involved in a joint criminal enterprise. It was further asserted that the appellant used the metal pipe to strike the complainant to the head with the intention of causing a wound.
Counsel who then appeared for the appellant did not say anything directly in response to the specific assertion of a joint criminal enterprise. What he did say was that the two offenders became incensed after the complainant reversed his car into theirs, "just missing" the appellant, and that is why they followed; they wanted to demand compensation. Counsel said there was no premeditated intention of assaulting the complainant, but "it turned out that way". He explained this to mean that the appellant's initial intention was to "discuss" compensation, but he expected the complainant was going to be uncooperative and that things were going to get nasty, "and that's how he ended up with a pipe in his hand and hitting him with it".
Counsel did not put anything to his Honour about the allegation that the appellant intended to wound the complainant.
In sentencing the appellant, Brett J set out the facts and identified the conduct making up the first and second counts on the indictment, ending that part with a specific reference to the acts constituting count 2. His Honour continued:
"Towards the end of the incident, the friend had been successful in diffusing the situation, and the complainant started to walk back to the house. As he did so, the defendant walked in front of him, said to him, 'you can have another one' and punched him to the head with his right fist, and that would seem to constitute count 3 on the indictment.
All of these acts occurred in the context of an ongoing physical exchange."
I need to comment on three things, about the first two of which the Court sought written submissions after the hearing. The first is whether the sentencing judge overlooked the fact that count 3, as particularised, encompassed the appellant's conduct in continuing to punch the complainant during the final phase of the entire incident. Rather curiously, given the ground of appeal, the appellant contends that his Honour did not overlook that fact, and passed sentence on that basis. The State submits he did not. On a fair reading of the comments, I think it is clear that on count 3 was the appellant was sentenced only in respect of a single blow struck to the complainant's head as he was making his way back to the house. It is difficult to avoid the import of his Honour's clear statement that the single punch seemingly constituted count 3.
Second, again in relation to count 3, the sentencing judge seems to have overlooked the State's assertion that the two men were engaged in a joint criminal enterprise. That, depending on the view taken, could establish criminal responsibility for the blows inflicted by Wallner after the attack with the pipe, at the time count 3 was committed. (Arguably, responsibility could also extend to Wallner's punches during the appellant's attack with the pipe.) The assertion of a joint criminal enterprise could establish criminal responsibility under s 3(a) of the Code, or by way of being an abettor under s 3(c). In my view, that scenario remained open on the submissions of then counsel for the appellant. However, notwithstanding the State's assertion to his Honour, counsel for the respondent has now disavowed any reliance on the existence of a joint criminal enterprise, saying that Wallner's acts were not particularised in count 3.
The third thing is that his Honour did not state any finding as to whether the appellant intended to wound the complainant, or was reckless as to the possible results of his conduct. His Honour did note that what arose out of a traffic interaction effectively became an act of revenge and retaliation, with the violence being brutal and the weapon used being a steel pipe, "which was used to hit another man over the head on a number of occasions [causing] some injuries". In light of the State's assertion on this issue, and the absence of a submission to the contrary by the appellant's then counsel, I think it is reasonable to infer that his Honour proceeded on the basis of a specific intention to wound.

The parties' submissions

In this appeal, the bases of Wallner's criminal responsibility were addressed in argument. The appellant asserts that it is relevant that Wallner was sentenced for his acts of punching and kicking during the pipe attack, while the appellant was not treated as liable for that conduct. The relevance is said to be that in the comparative process, this operates in his favour; that is, although Wallner was not involved in the first acts of violence – count 1 against the appellant – he was sentenced for things the appellant was not. The respondent does not take issue with this description of the different sentencing bases.
Further, the appellant noted the limited basis on which the appellant was sentenced on count 3. This was contrasted with Wallner who was sentenced for "punching and kicking" – which extended to punching the complainant after the pipe attack had come to an end – and who was also sentenced on the basis he was liable for the appellant's several acts of punching. As to the limited scope of count 3 as outlined by the sentencing judge, counsel for the respondent submitted that the blow said to constitute that count had to be put in the context of what preceded it. That included a "sustained attack" being the acts constituting the wounding, along with Wallner's acts of punching and kicking between separate acts of the appellant in striking with the pipe.

Personal circumstances

Wallner

As noted, Wallner is 10 years younger than the appellant. He was described as having "no offending history of any significance", a description not challenged in this appeal.[5] The significant features of his personal circumstances are as follows. He is close to his parents and wider family. His (and the appellant's) father was very ill, with his state of health being such that Wallner left school in order to be able to travel with him, that being seen as the last opportunity for the two to spend time together. The father's health was deteriorating in the period before the offending. Additionally, Wallner's mother had long suffered with mental health issues which, in turn, had grave physical consequences. At the time of sentencing she was in hospital seriously ill. These health issues in his family caused him much stress.
[5] The file contains a record showing, at the date of this offending – 13 July 2016 – a traffic infringement notice for speeding that attracted a fine of $110 and two demerit points. In the 12 months or so after this offending, he received another traffic infringement notice for using an unregistered vehicle, and was later fined $400 for a moving vehicle offence, with a conviction being recorded for breaching a condition of bail.
After leaving school he was in regular employment for over four years, but lost his job, apparently because the appellant turned up at his workplace and was responsible for some sort of incident, the detail of which was not revealed. He was a person who was not normally violent, did not go out much and had not drunk alcohol before he was 18. The night of this offending was one of the first occasions he had consumed alcohol to excess, and he was said to be quite surprised about how much his personality changed as a result of drinking. It was put on his behalf that in that situation, and being angry at the damage that had been caused to his car, he became swept up in his brother's actions and his conduct was "fuelled" by that of the appellant. At the time of the sentencing, Wallner lived with his cousin and family in which family there were children with special needs in whose care he involved himself regularly.

The appellant

As the sentencing judge noted, the appellant has a very significant criminal history which commenced when he was a youth and has continued into his adult years, having been sentenced to imprisonment on a number of occasions. He accumulated a very bad record of traffic offending and dishonesty as a youth. That offending included assault, and a later charge of arson for which, in July 2004, he was sentenced to nine months' detention, five months of which were suspended on conditions. As an adult in this State, and before the present offending, there are multiple convictions for offences of dishonesty, including aggravated burglary and stealing. Prominent in his record are convictions in New South Wales. In April 2006, on a charge of "robbery armed with offensive weapon", he was sentenced to imprisonment for 36 months (sic) to commence on the offence date of 13 November 2005, with a non-parole period of 18 months. In January 2008, for offences of dishonesty committed in August 2007, he was sentenced to a total of 12 month's imprisonment with a non-parole period of nine months, backdated to the time of offending.
In June 2009, for offences of dishonesty committed a few months after his release, the appellant was sentenced to three concurrent six month terms, backdated to 12 October 2008. In December 2009, on a charge of "demand property with menaces with intent to steal" committed on 11 October 2008, the appellant was sentenced to three years' imprisonment with a non-parole period of 12 months cumulative to the June 2009 sentence. Very shortly after his release, he committed offences of dishonesty for which, in November 2010, he was sentenced to three concurrent terms of eight months' imprisonment. Lastly, concurrent terms totalling 12 months' imprisonment with a non-parole period of nine (later reduced to eight on appeal) was imposed in August 2012 for recent offences of dishonesty.
The appellant seems to have returned to Tasmania on his release. Back in this State, in March 2014 he appeared in the Supreme Court on a charge of unlawfully setting fire to property, and some lesser charges, all dating back to 2005. He was sentenced to nine months' imprisonment the execution of which was wholly suspended on conditions operable for a period of two years. It follows that the present offending was committed some three months after the expiration of that period. The appellant has not been of good character since the present crimes. Significant offending followed, mostly ones of dishonesty, and in December 2017 on a total of 39 offences, including dangerous driving, evade police, aggravated burglary, burglary, stealing and drug offences, he was sentenced to terms of imprisonment. He was on bail in relation to the present crimes at the time of committing some of those offences.
The sentencing judge observed that the appellant made a decision to use a weapon, and to administer violence, despite having been the subject of a variety of sentencing orders in the past. His Honour said, "Clearly, those orders did not deter him from making the decisions that he made on the day in question. That would indicate that there is also a need to exercise the principle of personal deterrence in respect of the sentence."
Significant features of his personal history are as follows. He was diagnosed with ADHD at the age of 5, and he continued to suffer from that condition until he was about 16. He was sexually assaulted when 8 years old by a family friend. It was said that these matters have caused a failure to regulate his emotions and deal appropriately with matters. He completed grade 10 through one on one tutoring, necessary because of his behavioural problems. He did have some success in sport, representing the State in soccer when a teenager. As noted by the sentencing judge, he "does have something of an industrial record" inasmuch as he completed an apprenticeship as a plumber and had other employment over the years, last working as a carpet layer for about 18 months which ended about 18 months before the sentence date. He has three children, at the date of sentence aged 15, 8 and 7, although he does not see two of the children. It was put that he struggled with the responsibilities of being a father, and evidenced by his history of offending, generally as an adult within the community.

Other considerations

Both Wallner and the appellant pleaded guilty, and in each case, the utilitarian value of that fact was taken into account. However, Wallner was found to be genuinely remorseful, and to have had shown insight into his behaviour. A community corrections report was to the effect that he had "minimum risks/needs" and did not meet the minimum threshold for probation. Those matters were relevant to the question of specific deterrence and what may be required to achieve his rehabilitation. In contrast, the sentencing judge said the appellant's plea of guilty should not be regarded as indicating or arising from remorse or "being some form of indication of a decision to engage in a process of rehabilitation".
In terms of victim impact, the State told both sentencing courts that the complainant suffered a laceration to the forehead that required five stitches, a graze above the right eye, and a laceration to the top of the head that required five staples. It seems clear from the stated facts that the laceration to the forehead relates to count 1 against the appellant, and Brett J was specifically told that the second laceration related to the wounding charge. In the Wallner proceedings, but not in the appellant's, the State said both lacerations were five cm in length, and asserted "a black right eye". In the Wallner proceedings, the State did not tender a victim impact statement, but there was one before the court in the appellant's proceedings. The statement of the complainant was dated 13 June 2018. In it, he said that since the incident, he was hyper-vigilant when he drove, always checking to make sure no one was following him: "I am always wondering if there are any more crazy violent dudes like him around." He has permanent scarring on his face which is a constant reminder of the assault. He has a permanent scar on his scalp that gets irritated and itchy. Generally, he does not feel as safe or secure as he used to "in every sense". A sense of unease about attack by the same person driving around the area has also infected his partner.

In my view, the ground of appeal should fail. What conclusively determines the matter are the conclusions his Honour drew from the appellant's record of offending. They are unassailable. From the whole of the record it is quite clear that the appellant had a general disregard for the law, that he had not made any decision to reform, that despite a variety of sanctions in the past he decided to use a weapon to administer violence, and that all previous orders had had no deterrent effect. Reaching those conclusions formed an important intermediate step between the error in describing the time of the armed robbery conviction, and the formulation of the appropriate sentence. Clearly, it was those conclusions that influenced the outcome.
For those reasons, I am not persuaded that the error had any impact on the sentence imposed. More importantly, nor do I think the error was capable of having any impact. I say that because the capacity of the errors to influence the outcome was completely negated by the proper and correct view taken by his Honour of the effect of the whole of the appellant's record and of what that meant in relation to the relevant sentencing factors. I should add that I would take the same view of things if the sentencing judge's remark is taken literally; that is, he thought the armed robbery gave rise to the most recent term of imprisonment.
Having said all of that, I am prepared to accept that the contrary view about the capability of the error is reasonably open. If I am wrong about materiality, then looking at the whole matter afresh, I would not form the opinion that a different sentence is warranted in law. By way of the further written submissions, the Court was told that since being sentenced, the appellant has engaged in a number of courses in prison. They include an "Aggression Course", a course specifically directed towards anger management. It is said that he has learnt many skills from this. He has also completed some vocational courses in practical skills, and intends to use his completion of those things to assist him to obtain employment upon his release. Additionally, after serving six months in medium security, he was transferred to the minimum security area where he is employed in the kitchen. Whilst all of this is commendable, I do not think the matters are of any particular significance in fixing an appropriate sentence.
In starting the sentencing process afresh, this Court would be obliged to take into account conduct for which the State asserted he was responsible, and for which he was not sentenced. As I have explained, that conduct is made up of the additional blows delivered by the appellant after the single punch to the face said by the sentencing judge to be the extent of count 3. That is more than a mere matter of a number of blows. The assault was persisted in despite attempts by a number of people at this point to "calm things down", bearing in mind the earlier attempts by H to stop the appellant. It was a joint attack committed while Wallner was also punching the complainant. In my view, the sentence passed is appropriate in all of the circumstances.

Observations

As I noted earlier, the respondent has submitted that if the sentencing judge "did erroneously refer to the appellant's conviction for robbery … as his most recent sentence of imprisonment, as no substantial miscarriage of justice occurred, the appeal ought be dismissed: [the Code] s 402(2)". The provision is set out above. As is plain, I decided the ground without reference to the submission. However, I want to say something about the applicability of the s 402(2) proviso in sentencing appeals. As this was not the subject of any argument, I am not expressing a concluded view.
First, I think there is a good argument that the proviso does not apply to sentencing appeals at all. That argument involves questions of statutory interpretation that I do not need to detail. In essence, there are two inter-related propositions. They are that s 402(2) only applies only to appeals against conviction, and s 402 (4) is itself a 'proviso' type provision: O'Neill-Shaw v The Queen [2010] NSWCCA 42 at [31]; Diesing v The Queen [2000] NSWCCA 326 at [55]; AE v The Queen [2010] NSWCCA 263 at [25].
I do not assert that my search was exhaustive, but I have not been able to find any sentencing appeal in which the s 402(2) proviso has been considered in relation to determining the outcome. There is only one case in which there is mention of the application of the proviso to a sentencing appeal. It is Mortyn v Tasmania [2018] TASCCA 2. I was a member of the Court. Pearce J and I agreed with the reasons of Estcourt J who observed that the proviso might have been applied in a hypothetical scenario in that case.[9] The application of the proviso was not argued. Speaking for myself of course, – and with great respect, on reflection I am not now confident the suggested general applicability of the proviso is correct. Whether it is or not can await further consideration.
[9] The grounds of appeal were that the non-parole period was manifestly excessive (making the sentence itself manifestly excessive), and that the sentencing judge erred in failing to state reasons for imposing the non-parole period. The Court held that there was nothing in the Sentencing Act that required reasons for imposing a non-parole period, separate from and additional to the comments on passing sentence. The observation was that even if it were otherwise, if the non-parole period was regarded as not manifestly excessive it would be appropriate to apply the proviso as no substantial miscarriage of justice could actually have occurred. The Court was able to determine the question of manifest excess in the appellant's favour, on all the materials before it.
For present purposes I can limit my remarks. Grounds in sentencing appeals sometimes complain of things other than House type errors or miscarriages of justice that vitiate the discretion. Often they are subsidiary to complaints of manifest excess or inadequacy. Some, such as inadequate reasons or lack of findings of fact, may give rise to orders directed to the sentencing judge: P v Tasmania [2005] TASSC 107; Director of Public Prosecutions v Harwood [2019] TASCCA 2. Confining myself to House type errors, it seems to me an inevitable consequence of what was held in Kentwell, S and S (No 2) that, subject to s 402(4C) of the Code, once material error or a miscarriage of justice is established, the Court is obliged to re-exercise the sentencing discretion, leaving no room for the operation of s402(2). If the discretion has miscarried, the sentence passed is not one warranted in law. The fact that the discretion has miscarried with the sentence consequently not being one warranted in law, and a finding that there has been no substantial miscarriage of justice, are mutually exclusive.
Section 402(4C) is a statutory exception to the requirement to resentence. It provides that despite subs (4), on an appeal against a sentence the Court may, if it thinks it appropriate and in the interests of justice, quash the sentence and remit the matter to the court of trial.
I do not think the Code provisions operate so that where specific error or a miscarriage of justice has been established vitiating the exercise of the discretion, (or manifest excess or inadequacy), there is an additional consideration between that step, and the required re-exercise of the discretion under s 404(4).

Outcome

I would dismiss the appeal.