Kirkwood v Tasmania

[2017] TASCCA 7

[2017] TASCCA 7

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

CITATION:              Kirkwood v Tasmania [2017] TASCCA 7

PARTIES:  KIRKWOOD, Joshua Allan
  v
  STATE OF TASMANIA

FILE NO:  2886/2016
DELIVERED ON:  26 April 2017
DELIVERED AT:  Hobart
HEARING DATE:  13 April 2017
JUDGMENT OF:  Wood, Pearce and Brett JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Unlawful act intended to cause grievous bodily harm – Sentence of 5½ years' imprisonment with non-parole period of three years not manifestly excessive.

Criminal Code (Tas), s 170.
Barron v Tasmania [2010] TASCCA 3; Director of Public Prosecutions v Blyth [2010] TASCCA 10; Director of Public Prosecutions v Rogers [2011] TASCCA 17; Director of Public Prosecutions v Blackaby [2013] TASCCA 4; Jay v Tasmania [2016] TASCCA 12; Price v Tasmania [2016] TASCCA 22, referred to.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  Unrepresented
           Respondent:  D G Coates SC
Solicitors:
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2017] TASCCA 7
Number of paragraphs:  12

Serial No 7/2017

File No 2886/2016

JOSHUA ALLAN KIRKWOOD
v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
PEARCE J
BRETT J
26 April 2017

Order of the Court

Appeal dismissed.

Serial No 7/2017

File No 2886/2016

JOSHUA ALLAN KIRKWOOD
v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
26 April 2017

1. I agree that the appeal should be dismissed, for the reasons stated by Pearce J.

File No 2886/2016

JOSHUA ALLAN KIRKWOOD
v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PEARCE J
26 April 2017

1. The appellant, Joshua Kirkwood, pleaded guilty to an unlawful act intended to cause bodily harm and aggravated burglary. On 2 September 2016 he was sentenced by Estcourt J to imprisonment for 5½ years from 12 February 2016. His Honour ordered that the appellant not be eligible for parole until he had served three years of the sentence. The single ground of appeal is that the sentence is manifestly excessive. For the following reasons I would dismiss the appeal.

2. Just before 3am on 21 October 2015 the appellant went to the home of the complainant in Ulverstone, having driven there from Devonport. She was his estranged partner. They had been in a marriage-like relationship for about two years but had separated in the latter part of 2014. The appellant wore a balaclava and a hooded jumper, and took with him a metal baseball bat. He broke into the house by smashing a window and went into the complainant's bedroom. Her 7 year old daughter was asleep in another bedroom. The appellant repeatedly struck the complainant around the lower body and legs with the baseball bat. He yelled, "Look what you've turned me into you fucking dog." She ran into her daughter's bedroom screaming and covered in blood. The appellant followed her and again repeatedly struck her with the bat to her lower body. Her daughter woke and saw what was happening. She screamed at the appellant to "stop beating mummy" and was so scared she wet herself. The appellant did not stop. He dragged the complainant off the bed and continued to beat her in front of the child. He struck the complainant with the bat, mostly to the legs and lower body. He then struck her upper body. Throughout the attack the complainant was also struck to the hands. She believed that she would be killed. She remained conscious throughout but was in so much pain that her recollection of all the events is reduced.

3. The appellant eventually desisted and left the house. The complainant was covered in blood and could not walk. She managed to drag herself to another room and call an ambulance. When she arrived at the hospital she was hysterical and screaming in pain. She was admitted to hospital and remained an in-patient for 15 days. She had multiple injuries. Her left leg was deformed. Her hands were lacerated, bruised and severely swollen. Her legs and buttocks were covered in serious bruises. Investigations disclosed multiple fractures of bones in both her hands. There was a mid-shaft tibia fracture of the complainant's left leg. Surgery was required involving open reduction and external fixation of the fracture. A rod was inserted. Surgery to her left hand was required to insert a plate and to fix a fracture to her left ring finger with screws. Further surgery was later required to correct the fixing of that finger.

4. The complainant's victim impact statement is to be treated with circumspection for the reasons explained by Crawford CJ in Attorney-General v B [2010] TASCCA 6, 20 Tas R 277 at [55]-[63], and repeated in Belbin v Bennett [2011] TASSC 23, 218 A Crim R 42. However there was no challenge to its truth: Sentencing Act 1997, ss 81A(7) and 81(4). The statement indicates that she has been profoundly affected by the appellant's crimes. She was 26 at the time. She and her daughter have since moved away from Tasmania. Her left hand has reduced movement and function, likely to be permanent, and is disfigured. She cannot use it to pick up small objects and cannot make a closed fist. She is embarrassed about its appearance. The rod in her leg runs from her knee to her ankle. There are no plans for it to be removed and it is likely to remain in place permanently. It restricts her movement when kneeling or climbing stairs and causes pain. The complainant is conscious of how it affects her gait. She has areas of numbness in both her legs as well as residual marks from the bruising. She developed post-traumatic stress disorder, anxiety and depression for which she receives counselling. She has less trust and confidence in men, and reduced interest in sex. Her daughter has nightmares and is anxious, and is receiving counselling from a psychologist.

5. Although the appellant was represented by counsel before the sentencing judge, he appeared at the hearing of the appeal unrepresented. The substance of his contention is reflected in the ground of appeal, namely that his sentence is too harsh when taking into account the absence of serious prior convictions, his age and good prospects and remorse. The respondent was 24 at the time of the crimes. He is now almost 26. He had a record for some driving offences and anti-social offending, but not for anything as serious as this. He was given a number of short sentences of imprisonment in 2011 and 2012, all of which were wholly suspended, for summary offences including abusing and resisting police. He was not subject to a suspended sentence at the time of these crimes. He left school during grade 11 to take up employment and has a good industrial record. He has a range of employment options available to him on his release. He comes from a stable and supportive family. He is a talented sportsman and made contributions to the community in other ways. He required surgery himself for injuries he sustained, presumably when climbing through the broken window. He said his actions were out of character and he acted through loss of control. He repeated the assertion made to the sentencing judge that he desisted when he noticed that the complainant's child was present.

6. Mitigation arose from the appellant's plea of guilty. It was not particularly early but it avoided the need for a trial and spared the complainant from having to give evidence and the consequent additional trauma of having to recall and relive the crime committed against her. The appellant's claim to the type of remorse a court looks for is a limited one. He was first interviewed by the police on 23 October 2015, three days after the attack. He denied any involvement. He was interviewed again five days later on 28 October 2015. Even though admitting he had gone to the house he advanced a false account, asserting the presence of another man at the house, a falsehood he maintained until after preliminary proceedings were conducted.

7. I do not agree that, when taking all matters relevant to sentence into account, the sentence is harsh to the point of error. To succeed in this appeal the appellant must demonstrate that the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 at 505. It must be demonstrated that the sentence is so excessive as to indicate error or departure from principle: Griffiths v The Queen (1977) 137 CLR 293 at 310.

8. For a crime of such gravity, any entitlement to lenience arising from the appellant's age and the prospect of his reform are to be subordinated to the dominant sentencing considerations of general and specific deterrence, denunciation, punishment and vindication of the victim. Violence within, or arising from, relationships is to be strongly condemned. The objective circumstances of this crime involve a high level of moral culpability. It involved considerable violence. It was not spontaneous. The appellant drove some distance in the middle of the night to get to the complainant's house, which he entered intending to commit the crime of assault. The learned sentencing judge correctly described the appellant's crime as a "vicious and sustained attack … upon a defenceless woman". There were a number of aggravating factors:

   ·    The appellant used a weapon. He told the police that he took the baseball bat intending only to use it to break into the house. Counsel for the Crown did not dispute the assertion put to the sentencing judge in mitigation that he did not take the bat intending to use it against the complainant. However, once inside the house, the appellant then used the bat to mercilessly and repeatedly beat the complainant, inflicting serious injury.

   ·    During the crime the appellant wore a balaclava. The complainant recognised the appellant as her attacker, but the balaclava would have added to her terror.

   ·    At the time of the crimes the appellant was subject to a family violence order made by a magistrate on 30 September 2015 to protect the complainant. The order included a condition that he not threaten or assault her. That order followed other orders made under the Family Violence Act 2004 to protect the complainant, starting with a police family violence order made on 1 November 2014.

   ·    The crimes violated the safety and security the complainant and her daughter were entitled to expect in their own home.

   ·    The crime was committed in the presence of the complainant's child. The potential for adverse impact on the development of children by exposure to family violence is well known. The appellant's conduct risked a lasting and damaging impact on the complainant's daughter. His claim that he ceased the attack on the complainant when becoming aware of the presence of the child was not challenged by the Crown before the sentencing judge. However, he went to the house knowing that the child lived there and continued the attack on the complainant when in the child's bedroom, although she was shouting for him to stop.

   ·    I have already described the serious injuries to the complainant and the impact on her and her daughter.

9. A plea of guilty to the crime under s 170 of the Code involves admission that the appellant intended to disable, disfigure or do grievous bodily harm to the complainant. Before the learned sentencing judge, counsel for the State asserted, without dispute by counsel for the appellant, that the appellant intended to cause the complainant grievous bodily harm. Thus, the appellant was to be sentenced on the basis that, when applying force to the complainant, he intended to cause injury of such a nature as to endanger or be likely to endanger her life, or to cause or be likely to cause serious injury to her health. Sentences for crimes contrary to s 170 have been reviewed in a number of recent decisions of this Court: Barron v Tasmania [2010] TASCCA 3, Director of Public Prosecutions v Blyth [2010] TASCCA 10; Director of Public Prosecutions v Rogers [2011] TASCCA 17; Director of Public Prosecutions v Blackaby [2013] TASCCA 4; Jay v Tasmania [2016] TASCCA 12 and Price v Tasmania [2016] TASCCA 22. Those cases apply the statements in Lovegrove v The Queen [1961] Tas SR 106 at 107, and R v Allen [1999] TASSC 112 per Cox CJ at [3], to the effect that because specific intent is required for the commission of a crime contrary to s 170 it is generally regarded as a more serious crime than grievous bodily harm under s 172. The decisions of this Court to which I referred also repeat and adopt the proposition that a crime under s 170 "ordinarily" carries a penalty within the range of three to seven years.

10. I think that the learned sentencing judge's description of the appellant's crime as a serious example of a crime against s 170 is without error. His Honour was not bound to sentence within the ordinary range of sentences for the crime. However, nothing has been advanced by the appellant which persuades me that imposition of a sentence within that range is nevertheless erroneous. Nor do I think that the imposition of a non-parole period of just over half the sentence made the sentence manifestly excessive. Error has not been demonstrated. In my view, the sentence is well within the proper exercise of the sentencing judge's discretion.

File No 2886/2016

JOSHUA ALLAN KIRKWOOD
v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BRETT J
26 April 2017

1. I agree with the reasons of Pearce J and would dismiss the appeal.