Langlands v Burnell
[2018] ACTSC 272
•5 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Langlands v Burnell |
Citation: | [2018] ACTSC 272 |
Hearing Date(s): | 5 February 2015 |
DecisionDate: | 5 October 2018 |
Before: | Penfold J |
Decision: | 1. The appeal will be dismissed. 2. The parties will be heard about: (a) costs; and (b) whether any further orders are required in relation to the sentence imposed in the Magistrates Court. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – Criminal law – Interference with Discretion of Court Below – appeal against sentence imposed in Magistrates Court – correct pleading of appeal grounds – whether specific error established – whether sentence manifestly inadequate – whether manifest inadequacy appeal useful in establishing principle – appeal dismissed. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 17 and 33 Magistrates Court Act 1930 (ACT) s 219B(1)(f) |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cao v Regina [2010] NSWCCA 109 |
Parties: | Heath Langlands (Appellant) Ben Burnell (Respondent) |
Representation: | Counsel Mr J White SC (Appellant) Mr K Archer (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Kamy Saeedi Law (Respondent) | |
File Number(s): | SCA 87 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Dingwall Date of Decision: 30 September 2014 Case Title: R v Burnell Court File Number(s): CC14/3254 |
Introduction
The Crown has appealed against orders made after Ben Burnell was dealt with in the Magistrates Court for an offence of common assault. The appeal is a review appeal brought under s 219B(1)(f) of the Magistrates Court Act 1930 (ACT).
The notice of appeal says that the appeal is against both the conviction recorded and the sentence imposed by the Magistrate. Appealing against the recording of a conviction is an odd approach for the Crown, and this may explain why the only orders sought on appeal relate to the other orders made by the Magistrate.
The assault
In the early morning of 19 July 2013, Mr Burnell and a friend were walking along Mort Street in Civic. The victim, Nicholas Hall, was also walking along Mort Street. There was no suggestion that Mr Burnell was affected by alcohol or any other drug (although the Forensic Mental Health Report (FMHR) ordered by the Magistrate notes Mr Burnell’s advice that he had had about three drinks before the incident).
Mr Hall, however, was affected by alcohol. He was described in the police statement of facts as “acting in a jovial, non-aggressive manner and … dancing along the street”. At some point he walked in front of Mr Burnell and his friend, and shortly afterwards was hit on the left side of his head by Mr Burnell’s friend. It seems that Mr Hall might have made a “jovial remark” about Mr Burnell’s friend’s hair, but his Honour made it clear that he found no provocation on Mr Hall’s part. The alleged remark, as recalled by Mr Burnell in discussion with the author of the FMHR, was “Nice hair”, and was made in the context that Mr Burnell’s friend was wearing a ponytail.
Mr Hall tried to push Mr Burnell’s friend away, but Mr Burnell struck Mr Hall, causing him to stumble onto the roadway. Mr Burnell then punched Mr Hall several times, causing him to fall to the ground, where Mr Burnell’s friend stood over him, preventing Mr Hall getting up while Mr Burnell continued to punch him. Shortly afterwards, Mr Hall managed to stand up, and tried to move away from Mr Burnell and his friend, but Mr Burnell grabbed him and pulled his shirt off. Mr Hall backed away, followed by Mr Burnell who was still throwing punches, until Mr Hall fell over in the middle of the street. Mr Burnell kicked him in the face and walked away, leaving him unconscious on the ground.
The police statement of facts, agreed by Mr Burnell after some amendment, said that CCTV footage showed Mr Burnell and his friend high-fiving each other as they walked away from Mr Hall, but on the basis of his viewing of the CCTV footage, his Honour declined to find this conduct on Mr Burnell’s part. His Honour did however find that, as Mr Burnell walked away, he attempted to change his appearance by, among other things, removing his beanie and pulling up his hood.
Proceedings in the Magistrates Court
Charge and plea
Mr Burnell was first charged on 27 March 2014. On that day he indicated a willingness to plead guilty, while disputing some aspects of the alleged facts, and after negotiations and an amendment of the statement of facts, the plea was confirmed on 10 July 2014. As mentioned, the Magistrate ordered that a FMHR be prepared for the sentence hearing. That report was discussed in court at some length on 29 August 2014. The matter returned to court on 25 September 2014, when there was discussion about the two victim impact statements and about the possibility of a non-conviction order being made under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (possibly coupled with some kind of compensation order), and further discussion about general deterrence. Mr Burnell was finally sentenced on 30 September 2014.
It is notable that the Magistrates Court transcripts identify four different prosecutors as having appeared during the sentencing hearing, although it seems more likely, given the content of the transcripts, that this reflects errors in the transcripts and that only two different prosecutors in fact appeared.
Evidence
Apart from the agreed statement of facts, the following material was in evidence in the Magistrates Court:
(a)CCTV footage of the latter stages of the July 2013 assault and of Mr Burnell’s behaviour in the few minutes after he walked away from the scene.
(b)A court duty report prepared in April 2014.
(c)The FMHR prepared in August 2014.
(d)Victim impact statements from Mr Hall and his father.
(e)A letter from Mr Burnell’s general practitioner reporting Mr Burnell’s visit to her in April 2013, referring him to a psychologist, and attaching a Mental Health Care Plan.
(f)A letter in support of Mr Burnell from his mother, written in March 2014.
(g)A reference for Mr Burnell dated March 2014, from the manager at the fitness centre where he had been working around the time of the assault and since then.
(h)Material relating to Mr Burnell’s May 2014 interest in a position as a disability support worker with Woden Community Service, and the significance of a conviction for his capacity to obtain the necessary clearance to work with vulnerable people.
Sentence orders
10. As well as recording a conviction, his Honour made a good behaviour order (GBO) for a period of 12 months, with a probation and supervision condition, and a condition requiring Mr Burnell to complete 80 hours of community service during that 12-month period. Mr Burnell was also ordered to pay court costs of $71 and a Victims of Crime levy of $50.
Reasons for sentence
11. The Magistrate began by mentioning the matters to which he was required to have regard, being the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act and the matters mentioned in s 33 of that Act. In referring to s 7, his Honour mentioned general and specific deterrence as well as the other specified purposes, and noted that all the purposes “applied” in Mr Burnell’s case, with the possible exception of the purpose of protecting the community; his Honour said that there was no evidence that Mr Burnell “represents any significant danger to members of the community in future”.
12. His Honour found that Mr Burnell’s assault of Mr Hall was “not necessarily in the worst case scenario”, but that it was “very much the top end of the range of seriousness for the nature of the offence”. He then described the incident in terms set out in the police statement of facts, and later in his remarks summarised the incident as “a prolonged and … continuous assault on a defenceless man who was obviously intoxicated to a point where a person is left unconscious and left lying on the road without any sort of assistance whatsoever [from Mr Burnell]”.
13. The Magistrate noted that no injury, loss or damage was alleged to have resulted from the offence despite Mr Hall having been unconscious for some minutes after the assault. His Honour noted the contents of the two victim impact statements, the “emotional impact” on Mr Hall and his family, and his Honour’s expectation that “this incident would have greatly affected Mr Hall and his confidence and his concern for being present in areas like Civic in the future”. Mr Hall’s victim impact statement recorded that he had no recollection of the assault, but referred to him feeling “emasculated” after the assault, and having a tendency to approach certain situations “with a sense of trepidation”.
14. His Honour also referred to the absence of intoxication on Mr Burnell’s part and his disproportionate response to Mr Hall’s “jovial comment”, and emphasised that Mr Hall had not provoked the assault.
15. His Honour gave Mr Burnell credit for a “relatively early plea”, noting specifically that this had removed the need for Mr Hall to relive his experience by giving evidence.
16. In considering Mr Burnell’s personal circumstances, his Honour noted:
(a)That Mr Burnell was well regarded by “those who know him, by those he works for” as a person who “is generally well behaved, has cared for other people and does contribute to the community in a voluntary capacity from time to time”, and that those who know him see this incident as out of character.
(b)That Mr Burnell was 26 years old and had no criminal history.
(c)That before the assault Mr Burnell had consulted his general practitioner about anxiety, and what may have been symptoms of post-traumatic stress disorder (PTSD), after an incident in Sydney in December 2012 when a friend of his was badly assaulted; that he had been offered medication and referred to a psychologist, but had not pursued the suggestion of seeing the psychologist; and that the FMHR author “was quite clear that in her view any past anxiety or conditions had no impact and no bearing on his offending behaviour on this particular night”.
(d)That the account of the incident that Mr Burnell had given the FMHR author had differed from that described in the police statement of facts, but that his Honour did not regard that as involving Mr Burnell “trying to minimise his behaviour, but perhaps his inability to clearly recall what occurred”; his Honour noted that, having seen the CCTV footage, “[Mr Burnell] had no compunction in agreeing to the facts alleged against him … and he didn’t seek to further challenge that”.
(e)That Mr Burnell had ongoing employment which he was not at risk of losing, but also had an interest in obtaining work as a disability support worker, and that a conviction for a violent offence might make this significantly more difficult for him, but that convicting him of the assault offence would not cause Mr Burnell any particular hardship.
(f)That the reasons for the assault remained a mystery, but that:
the best [his Honour could] come up to is that [Mr Burnell] took offence [at] what Mr Hall had said, perhaps or that when Mr Hall [and] the co-defendant got into grapple that his friend was in some sort of danger and responded in a very disproportionate way.
(g)That although the prosecutor said that Mr Burnell had demonstrated no remorse, remorse was reflected in his plea of guilty, and had also been recognised by the author of the court duty report (the Court Duty Officer), who referred to him not minimising the serious nature of the offence or the effects on the victim; his Honour also referred to Mr Burnell’s willingness, expressed to the /Court Duty Officer, to engage in counselling to help him to better manage his psychological symptoms, and to apologise to the victim in court.
Explanation for the offence
17. His Honour’s comments about why the offence was committed are not particularly definitive. Certainly they do not amount to an acceptance of Mr Burnell’s claim to the Court Duty Officer and the FMHR author that his violent actions were associated with, or triggered by, post-traumatic stress arising from the Sydney incident, but they do seem to accept that Mr Burnell might have reacted disproportionately, out of a sense of danger, to the encounter between Mr Hall and Mr Burnell’s friend.
General deterrence
18. Except as described at [11] above, his Honour did not refer to general deterrence in his sentencing remarks. However, in the course of sentencing submissions on 29 August 2014, there had been discussion between his Honour and the prosecutor as follows:
MS NAIDU: … certainly the principle of rehabilitation is still relevant, but I’d submit that issues of general deterrence, in particular, with this circumstance and denunciation ---
HIS HONOUR: Well a lot of weight is continuously put on the concept of general deterrence the more and more I start to wonder about … that aspect of the theory of it working. Let’s take today there’s no one here who’ll report this case, other than perhaps by word of mouth to some friend. So I have some difficulty seeing it – there’s so much in my view sometimes too much weight placed on general deterrence. And also the loss of (indistinct) fact that actually being charged, charged before a court in a public forum dealt with publicly itself is some deterrence one would think, both general and specific. But I understand what you put there is still the recognition of the legislation of the need for general deterrence. … and yet it doesn’t seem to work in some jurisdictions. There’s more and more murders every year in the United States notwithstanding they execute people. So one wonders about general deterrence, but go on I understand what you’re saying.
MS NAIDU: It is and I mean that’s one of the statutory principles your Honour has to take in to consideration (indistinct) his denunciation and protection of the community. And at the last occasion the prosecution to hand up the case of R v Loveridge and they referred to a number of principles dealing with general deterrence and ---
…
HIS HONOUR: Yes, I don’t think I saw R v Loveridge, but I don’t need to read authorities … on general deterrence. I know well enough what general deterrence means.
MS NAIDU: Your Honour, and I mean that case was handed up in terms of the relevance of unprovoked assaults that was committed in public in the middle of the night in the city, and they referred to a number of principles to do with general deterrence and about how groups of young people behave in this antisocial manner. And rightly so the community feels the need for condign punishment, particularly when you’ve got victims such as this, an unsuspecting victim going about his ordinary activities and being set upon suddenly and in an unprovoked fashion.
19. His Honour did not respond to this last submission of the prosecutor, but turned to a different topic, being whether there was a victim impact statement. General deterrence was not mentioned again that day.
20. There was also some discussion of general deterrence on 25 September 2104, when the matter was next back in court. After an extended discussion of the availability of a non-conviction order, there was the following exchange:
MR WILLIAMSON: In any event, your Honour, with respect to section 17, we would respectfully say that if your Honour was to exercise that discretion, then that would mean that a number of the sentencing purposes in section 7 of the Act would not have been afforded any meaningful weight, namely general deterrence and denunciation. To make that order would - - -
HIS HONOUR: Well, denunciation is probably one where I can be more effective. Courts often speak about general deterrence, and there’s this notional view that there are people wandering around out there drunk on a Friday night who would even turn their mind to the possibility that they’d even go to gaol,
MR WILLIAMSON: The reality is - - -
HIS HONOUR: Certainly the public denunciation of it perhaps has that wider effect of general deterrence.
MR WILLIAMSON: The reality though is, your Honour, that sentencing law in this territory in Australia works on the assumption, perhaps - - -
HIS HONOUR: It works - - -
MR WILLIAMSON: Nonetheless on the assumption that it works and will have an effect. So we say respectfully - - -
21. Again, the discussion was inconclusive, with his Honour returning abruptly to the question of a non-conviction order.
Evidence relevant on appeal
22. It is unnecessary to recite all the evidence before his Honour, but evidence relevant to the current appeal grounds is described below.
Court duty report
23. The Court Duty Officer mentioned Mr Burnell’s April 2013 diagnoses of PTSD and Anxiety Disorder, and described Mr Burnell’s attitude to the offences as follows:
Mr Burnell agreed with the police statement of facts and did not minimise the serious nature of the offence and/or its effects on the victim, who was a person not known to him. Mr Burnell denied he is a person who ordinarily acts in a violent manner and as mentioned previously, he attributed his actions to his feelings of panic at the time. As such, he does not believe he requires any anger management related interventions. He has however, indicated a willingness to engage in counselling to assist him better manage the symptoms he experiences as a result of his psychological conditions.
Mr Burnell stated he is regretful for his behaviour and informed he wishes to convey his remorse to the victim by way of a public apology in the Court.
24. It seems that no public apology was made in court, but the Crown conceded that the mention in the court duty report “was I suppose a form of making the apology”.
Forensic Mental Health Report
Contents
25. The FMHR author, psychologist Ms Gillian Sharp, noted Mr Burnell’s report that he had no prior history of contact with mental health professionals or services, but had contacted his general practitioner in April 2013 “seeking assistance for anxiety and low motivation” after witnessing a serious assault on his friend during a group fight about four months earlier. It seems that in late 2012, after a cruise on Sydney Harbour, a group of about 15 men had attacked Mr Burnell’s smaller group, and one of his friends had been kicked in the head, which rendered him unconscious and caused him to have a seizure (the Sydney incident).
26. Mr Burnell told Ms Sharp that although he did not blame himself for the Sydney incident, he had felt guilty about not helping his friend more, and had suffered “significant anxiety and hyper vigilance in similar social situations thereafter, increased sleep, fatigue and low motivation”.
27. Mr Burnell’s general practitioner had diagnosed anxiety and possible PTSD, prescribed an anti-anxiety medication and referred Mr Burnell to a psychologist for cognitive behaviour therapy. Mr Burnell reported to Ms Sharp that he had not followed up on the referral because he was about to go overseas, and by the time he returned he felt better. He also told her that after his return, and for the same reason, he had reduced his medication, but without consulting his general practitioner.
28. Mr Burnell initially gave Ms Sharp an account of the assault on Mr Hall that she described as “markedly discrepant” from the police statement of facts. She challenged him about the CCTV footage of the incident, which he said showed actions that were “out of character” for him; when pushed, he agreed that his account was not apparently consistent with aspects of the incident shown in the CCTV footage, and also accepted that Mr Hall’s alleged insult to Mr Burnell’s friend “was not wholly proportionate” with the responses of Mr Burnell and his friend (I note, however, that the understated nature of that concession might owe as much to the form of Ms Sharp’s questions as to Mr Burnell’s answers).
29. Mr Burnell told Ms Sharp that:
he did believe there to be a link in that the situation had triggered guilt he felt about not doing more to protect his friend in the brawl incident of December 2012 and his personal affirmation after the event that he would “always protect his friends”.
30. Ms Sharp, however, was not entirely convinced, and noted:
His insight into his mental health was sound, however, his insight into his offending behaviour was limited by a tendency to minimise the seriousness of his actions and his degree of personal responsibility.
31. Ms Sharp concluded:
It is my professional opinion that the symptoms suffered by Mr Burnell were unlikely to have directly caused or contributed to his behaviour on the night of the offence in the way that he has indicated, due to the absence of delusional ideation or dissociative symptoms that might have impaired his reality testing at the time.
I can find no evidence from either his own account, or that of the statement of facts and CCTV footage, to suggest that his symptoms of anxiety contributed to impair his ability to exercise appropriate judgment as he was able to provide a logical account of his thinking to justify his actions, primarily by placing blame on the victim as the aggressor, and an objective assessment of his behaviour at the time suggests that it was sufficiently controlled to reject the hypothesis that he was disinhibited at the time.
Whilst his past traumatic experience could potentially have had the effect of impairing his ability at the time to make calm or rational choices, for example by causing him to overestimate the risk of serious physical harm the victim posed and therefore to feel justified in acting in an aggressive manner, the evidence available from the CCTV footage suggests that this account of fearing for his physical safety and that of his friend was probably not reliable. In addition, I deem it to be unlikely that a person suffering from active symptoms of PTSD, who was in a highly aroused state of anxiety or fear for their personal safety would then flee into an environment that presented an even higher risk of triggering further trauma-related anxiety (i.e., Honkytonks nightclub).
Mr Burnell indicated at interview that he was aware at the time of the criminal nature of his behaviour, a fact that led to him leaving the scene and masking his identity. In addition, he gave a clear account of his intent to disable the victim and thus I would conclude that his symptoms likely did not impair his ability to appreciate the wrongfulness of his conduct, nor did they obscure his intent to commit the offence.
… Mr Burnell’s symptoms may have had the effect of making him more hyper vigilant to potential threat; however, the available information suggests that it is unlikely that either Mr Burnell or his co-defendant were likely to have perceived a significant risk to their safety from the victim. In addition, it would appear that these difficulties have largely resolved with time and medication such that at the time of this assessment, he reported only mild problems with anxiety and hyper-vigilance.
It appears most likely that Mr Burnell’s experience in Sydney and his subsequent guilt at his perception that he failed to help his friends may have had the effect of encouraging him to adopt a more aggressive stance towards perceived antagonism. In addition, his involvement in the bodybuilding social milieu in which machismo and the gaining of respect through physical dominance is central, and the attitude within that milieu that violence is an acceptable response to perceived slights or challenges to one’s authority, likely contributed to him choosing the course of action he eventually took, albeit one that was out of character for him.
32. I note that the psychologist’s capacity to give evidence about the “bodybuilding social milieu” was indirectly challenged by counsel for Mr Burnell, who asserted that his use of steroids was a “one-off”. He further said that “it’s not exactly clear” where Ms Sharp’s comment about the characteristics and attitudes of the “bodybuilding social milieu” had come from, that it seemed to be a lay opinion, and that it was not conceded by Mr Burnell.
33. In response to the prosecutor’s submissions, his Honour said that he didn’t give much weight to the psychological assessment.
34. In her recommendations, Ms Sharp said:
Mr Burnell appears to have good intentions for the future and has already made some positive steps towards preventing further offending, but continues to struggle with shame and reduced self-confidence as a result of his behaviour in addition to any symptoms of anxiety that may persist. I would recommend that he pursue psychological intervention aimed at developing more adaptive anxiety management strategies, self-confidence and assertiveness.
… any such intervention could be equally conducted in custody or the community; however, the options and accessibility of psychological intervention is likely to be greater in the community due to the easy availability of private Medicare-funded psychological intervention (via referral from his GP).
Matters addressed in FMHR
35. In this matter, both in the Magistrates Court and before me, the Crown places considerable weight on the FMHR author’s rejection of Mr Burnell’s explanation, relying on that rejection to justify the complete rejection of Mr Burnell’s claims about the offence and his attitude to it. It is necessary to make some general comments about the FMHR.
36. The FMHR specifies that it has been prepared pursuant to a request that consideration be given to the sentencing principles outlined in R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins) at [32]; however, under the heading “Summary and Opinion”, the report seems to address only matters relevant to the first of those principles, being whether the offender suffered from impaired mental functioning at the time of the offending that could reduce the offender’s moral culpability. That, as explained in Verdins at [26], would be relevant if the impaired mental functioning had the effect of:
(a) impairing the offender’s ability to exercise appropriate judgment;
(b) impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d) impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.
37. Ms Sharp’s rejection of the proposition that Mr Burnell suffered impaired mental functioning that reduced his moral culpability in any of the ways set out at [36] above does not exclude the sincerity of Mr Burnell’s claim that he was affected by anxiety symptoms and hyper-vigilance (a claim apparently accepted by Ms Sharp in the material set out at [31] above) and that this could have explained his behaviour without reducing his moral culpability.
38. This distinction may be important, because the opinions expressed in the FMHR seems to be relied on not just to exclude any claim of impaired mental functioning of the kind recognised in Verdins but also as the basis for submitting:
(a)that Mr Burnell has been dishonest in the explanation he provided, and that this is evidence of a lack of remorse and a failure to accept responsibility; and
(b)that the assault therefore remains unexplained, leaving open the possibility that the assault involved nothing but unmitigated gratuitous violence.
Letter from general practitioner
39. In the letter referring Mr Burnell to a psychologist, Dr Griffiths reported Mr Burnell’s consultation in April 2013 in which he had sought help for “increasing anxiety following a number of stressful life events” including the Sydney incident. She noted a possible combination of anxiety and PTSD symptoms, attached a completed “Kessler Psychological Distress Scale” form that appeared to show a moderate level of psychological distress, and suggested that Mr Burnell would benefit from seeing the psychologist. Mr Burnell’s visit to Dr Griffiths took place four months after the Sydney incident and three months before the assault.
Letter from mother
40. Mr Burnell’s mother’s letter noted that her son had shown no tendency to violence, did not enjoy violent movies, and had never been involved in fights when he went out. She said that after the Sydney incident, Mr Burnell had not gone out at night for months, until a friend took him to the city for a drink in July 2013. She reported Mr Burnell’s description of the incident in Civic:
During that night Ben’s friend became involved in a fight. Ben told me that he became very anxious and panicked, he intervened when he thought his friend was in trouble. The rest of the incident is a bit of a blur.
41. She went on:
Ben is very aware of the seriousness of this charge and regrets and is ashamed of nothing more in his life than his acts on that night”.
Letter from supervisor
42. In her letter, Mr Burnell’s manager at the fitness centre said that the assault is “out of character” for Mr Burnell by reference to his behaviour at the fitness centre, and mentioned that he “always remains calm under pressure”. She also described Mr Burnell being “obviously embarrassed and regretful of the situation that he was involved in”, and went on to say:
He has made me aware that he has not been involved in anything else of this kind nor will be again.
Was the assault out of character?
43. As well as the explicit comments made by Mr Burnell’s manager, the facts reported by his mother suggest that Mr Burnell’s act of violence was inconsistent with his normal behaviour and beliefs, and the FMHR author in the last paragraph quoted at [31] above also described Mr Burnell’s course of action as “out of character for him”.
The appeal
44. The grounds of appeal were specified as follows:
a.His Honour applied a mistaken view of the facts
Particulars:
i. His Honour erred in finding that the respondent had not lied or attempted to downplay his culpability for the offence;
ii. His Honour erred in finding that the respondent was remorseful.
b.The sentence imposed was manifestly inadequate
Particulars:
i.His Honour mischaracterised the objective seriousness of the offence, which resulted in a manifestly inadequate sentence;
ii.His Honour placed excessive weight on the respondent’s subjective circumstances;
iii.The sentence imposed failed to reflect the need for general deterrence.
45. The appeal grounds can be re-framed so that they more closely reflect the proper way to set out challenges to a discretionary decision, as explained in the High Court case of Bugmy v The Queen [2013] HCA 37; 249 CLR 571, and in ACT Court of Appeal cases since at least 2014 (see, for instance, The Queen v Ang [2014] ACTCA 17 and more recently Ghoubriel v The Queen [2016] ACTCA 66 at [7]), and conceded as appropriate by counsel for the Crown. An adequate re-statement would be as follows:
(a)His Honour made errors of fact in finding:
(i)that Mr Burnell had not lied or attempted to downplay his culpability for the offence; and
(ii)that Mr Burnell was remorseful.
(b)The sentence imposed was manifestly inadequate, having regard to:
(i)the objective seriousness of the offence;
(ii)Mr Burnell’s subjective circumstances; and
(iii)the need for general deterrence.
46. That is the version of the appeal grounds that I propose to address. I note in passing that counsel for Mr Burnell initially complained about the inappropriate formulation of the appeal grounds, and seemed to suggest that this had caused problems in working out how to respond to the appeal. However, counsel declined my offer of an adjournment to enable consideration of revised appeal grounds.
Specific errors
Crown submissions
47. Counsel for the appellant Crown prefaced his specific submissions by saying that Mr Burnell’s offence was as serious as could be imagined “for a common assault without any lasting consequences for the victim”. It was, he said, of the “utmost seriousness”, involving 12 separate blows to Mr Hall, and then a kick in the head. He also mentioned Mr Burnell’s attempt to change his appearance as he left the scene. The Crown agreed with his Honour’s conclusion that the offence fell into the “top end of the range of seriousness”.
48. The Crown points to extracts from his Honour’s sentencing remarks that are said to indicate the two errors of fact asserted by the Crown.
The first error of fact
49. First, noting that the author of the FMHR, Ms Sharp, had remarked on “the discrepant nature of [Mr Burnell’s] account to her when compared to the statement of facts and the CCTV coverage”, his Honour said:
I do not regard it as the defendant trying to minimise his behaviour but perhaps his inability to clearly recall what happened. Having seen the CCTV footage, he had no compunction in agreeing to the facts alleged against him …
50. The Crown did not dispute his Honour’s comment about Mr Burnell’s willingness to agree to the facts alleged against him, and said that Mr Burnell had pleaded guilty to the amended police statement of facts. However, the Crown said that his Honour had made a factual error in finding that Mr Burnell had not tried to minimise his behaviour but perhaps could not clearly recall what had happened. This was the error described in the appeal ground as finding that Mr Burnell had not lied or attempted to downplay his culpability for the offence.
51. In the appeal, the Crown did not identify, nor attempt to establish, any particular lie by Mr Burnell, although during one of the three days of hearing in the Magistrates Court, counsel for the Crown did point out discrepancies between what Mr Burnell told the FMHR author and what in counsel’s view was actually shown in the CCTV footage.
52. In support of this claim of error, the Crown relied heavily on the FMHR to make out the claim that Mr Burnell had tried to downplay or minimise his culpability, referring in particular to Ms Sharp’s comment quoted at [30] above and to “the lack of any credible explanation for the offending”.
The second error of fact
53. His Honour also said:
I am satisfied that he has shown genuine remorse and it is not remorse specific but based on his predicament he is now in, but a genuine remorse of the harm he has caused the complainant.
54. Counsel for the Crown said that his Honour’s rather obscure (or perhaps inadequately transcribed) comment was intended to convey his view that Mr Burnell wasn’t only remorseful because he now found himself before the court, but genuinely remorseful.
55. However, counsel said of what Mr Burnell had told the Court Duty Officer (quoted at [23] above):
there's a formulaic quality to those words; a regret for behaviour and a wish to convey remorse to the victim in circumstances where he has very notably to the author of the pre-sentence report blamed this sense of uncontrollable panic which he says that he experiences.
56. Counsel again relied on Mr Burnell’s discrepant account of the incident, his suggestion to Ms Sharp that the victim had been the aggressor, and what counsel described as the lack of any credible explanation for the assault, to challenge his Honour’s finding of remorse.
57. In short, counsel for the Crown says that his Honour made a factual error in accepting that Mr Burnell was genuinely remorseful.
Respondent’s submissions
58. Counsel for Mr Burnell said that his Honour was entitled to make the findings he made about whether Mr Burnell was attempting to minimise his behaviour or downplay his culpability, or was remorseful. Counsel referred to:
(a)Mr Burnell’s plea of guilty;
(b)the comments in the court duty report that Mr Burnell had not tried to “minimise the serious nature of the offence and/or its effects on the victim”, had said that he was “regretful for his behaviour”, and had expressed a wish “to convey his remorse to the victim by way of a public apology in the Court” (at [23] above);
(c)Ms Sharp’s comments in the FMHR about Mr Burnell’s “shame and reduced self-confidence” (at [34] above);
(d)Mr Burnell’s mother’s letter about the shame Mr Burnell feels about his conduct on the night of the assault (at [41] above).
59. Counsel for Mr Burnell noted that there had been no cross-examination in the Magistrate’s court on any of that evidence.
60. Counsel drew my attention to Cao v Regina [2010] NSWCCA 109 (Cao), in which an offender challenged her sentence, among other things by challenging the sentencing judge’s rejection of some of her evidence. The NSW Court of Criminal Appeal (RA Hulme J with whom Macfarlan JA and Johnson J agreed) said at [48]:
Findings of fact by a primary sentencing judge will not be disturbed by this Court unless they are findings not open to be made: Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 per Simpson J at [86].
Consideration
The first error of fact
61. As noted (at [51] above), the Crown did not on appeal identify any lie that his Honour should have found Mr Burnell to have told. It is also clear that, as well as Ms Sharp’s reference to Mr Burnell’s “tendency to minimise the seriousness of his actions and his degree of personal responsibility”, there was other evidence from which his Honour could have concluded that Mr Burnell did not attempt to minimise his culpability (mentioned at [58] above). In those circumstances, it is hardly surprising that his Honour did not feel able to conclude beyond reasonable doubt that Mr Burnell had attempted to minimise his culpability (as required by R v OIbrich [1999] HCA 54; 199 CLR 270 at [27]).
The second error of fact
62. As to the Crown’s submission that Mr Burnell’s claim of remorse should not have been accepted because Mr Burnell’s apparent expression of regret and remorse “has a formulaic quality” (at [55] above), several comments may be made.
63. First, few offenders have the extensive vocabulary and command of the subtleties of language possessed by the average judge, magistrate or barrister (and there is no reason to believe that Mr Burnell is one of those who do).
64. Secondly, in many cases, an offender’s attitude to his or her offence is put to the court not by the offender in person but by the author of a pre-sentence report of some kind (as in this case), or occasionally by the offender’s lawyer. In such cases the expression of the offender’s remorse may well have a “formulaic quality”, but it is not necessarily fair to assume that this reflects the insincerity of the offender rather than the use of a stock phrase by a professional, whether a pre-sentence report author or a lawyer, who routinely reports on, or speaks for, relatively inarticulate offenders in sentencing proceedings.
65. Of course, an offender can always choose to give evidence of his or her attitude to the offence, but unless the offender is significantly more articulate than most, this is also unlikely to rise above fairly clichéd references to “feeling really bad” and “wishing I could take it back”. The fact that an offender’s direct or reported expression of remorse does not show any particular originality does not in my view prove that little or no remorse is felt.
66. Finally, the Crown’s submissions at [55] and [56] above seem to imply that it is inconsistent with remorse for Mr Burnell to have attempted to explain, by reference to “uncontrollable panic”, behaviour which seems to have been generally accepted, including by Ms Sharp, as out of character (at [43] above).
67. I cannot see the logic of this proposition: if Mr Burnell’s behaviour was in fact out of character, it is only to be expected that he would feel very guilty (even “remorseful”), and that he would try hard to find an explanation of that behaviour, for his own peace of mind as well as for the purposes of his sentencing. I cannot see that an attempt by Mr Burnell to find an explanation for his behaviour in his own mental condition rather than in anything in the external circumstances of the incident is inconsistent with feelings of remorse about his behaviour.
Conclusion
68. The Crown may be correct that the Magistrate could easily have made the factual findings it asserts should have been made (that Mr Burnell had tried to minimise his culpability and that he was not genuinely remorseful). However, there was also evidence for the findings that were made by the Magistrate, and I cannot conclude that those findings were not open to be made.
69. Accordingly, by reference to Cao, I cannot find that the Magistrate made any factual error in relation to Mr Burnell’s attitude to the offence.
Manifest inadequacy
70. The submissions made about this ground of appeal did not really engage with each other, for reasons that will become apparent.
Crown submissions
Maximum penalty
71. First, Crown noted that Mr Burnell’s offence was in the top range of seriousness for the offence charged, and that his Honour should in determining the sentence have directed himself to the maximum penalty of two years imprisonment (as his Honour in fact did at the beginning of his sentencing remarks).
Factors said to show manifest inadequacy
72. The Crown said that the factors which, taken as a whole, show that the sentence was manifestly inadequate, included:
(a)that the offence was committed in a public place;
(b)that it was wanton, unprovoked, and committed against an unsuspecting stranger;
(c)that it was committed in company;
(d)that it was not a momentary aberration but consisted of a sustained assault involving a number of blows to the head of the victim, and a kick to the victim’s head while he was on the ground, and resulted in the victim remaining unconscious for several minutes, as is apparent from the CCTV footage;
(e)that Mr Burnell showed no concern for his victim after the assault ended, leaving him lying on the ground, and then tried to conceal his identity when he left the scene;
(f)that there was no explanation for the assault if Mr Burnell’s explanation is rejected, as it was by the FMHR author; and
(g)that Mr Burnell had shown no remorse and had attempted to shift the blame for the assault, which seems in context to be an alternative description of trying to minimise one’s own culpability.
73. Since I have concluded that it was open to his Honour to make the findings he did about remorse and about whether Mr Burnell tried to minimise his culpability, I cannot treat a lack of remorse, attempted blame-shifting, or an attempt to minimise culpability as aggravating features of the assault.
74. For reasons set out at [35]–[38] above, I am also not persuaded that Ms Sharp’s conclusions about the Sydney incident means that the assault is unexplained, merely that the proffered explanation was not accepted as satisfying the Verdins criteria for reduced culpability due to impaired mental functioning.
General deterrence
75. The Crown initially asserted that the Magistrate did not mention general deterrence at all, but in the appeal hearing it emerged that there had been discussions about general deterrence on two occasions before the day on which sentence was handed down (at [18] and [19] above). The Crown then submitted that this previous discussion made it more significant that the Magistrate didn’t mention general deterrence in his sentencing remarks (except as noted at [11] above).
76. Counsel submitted that violence in public places, especially involving random, unprovoked attacks, is a serious problem, that the protection of the public is important, and that, therefore, general deterrence must play a significant role in sentencing in such cases. Counsel noted that the importance of general deterrence in sentencing for such acts of violence, whether involving relatively minor assaults or more serious ones such as those resulting in the victim’s death, is supported by authorities from NSW, Victoria and Western Australia, referring in particular to R vLoveridge [2014] NSWCCA 120; 243 A Crim R 31 (Loveridge); Director of Public Prosecutions v Russell [2014] VSCA 308; 44 VR 471; and Gray-Herewini v Lee [2013] WASC 200.
77. Counsel also submitted that the need for general deterrence in relation to assaults of this kind was another factor pointing to the sentence being manifestly inadequate.
78. Counsel for the Crown pointed specifically to the fact that in Loveridge, the offender was sentenced not only for manslaughter but also for several common assaults, and that he had received separate prison sentences for those common assaults.
Respondent’s submissions
Aggravating features
79. Counsel for Mr Burnell made brief submissions about some of the matters relied on by the Crown as pointing to manifest inadequacy, noting:
(a)that the original summons served on Mr Burnell included a charge of affray (an offence involving conduct in a public place), which was subsequently abandoned; the implication of counsel’s brief submission seemed to be that in those circumstances, the fact that the common assault was committed in a public place should not be accepted as an aggravating feature of that offence; and
(b)that although it was agreed that the victim had been unconscious for some period, the charge did not include any allegation of any kind of injury.
Crown appeals – scope and nature
80. Counsel for Mr Burnell’s main submission was, in summary, that this case was not a case in which a Crown appeal was appropriate, or could succeed.
81. In support of this submission, he pointed to the following explanation in R v Duffy [2014] ACTCA 53; 297 FLR 359 (Duffy) of the general principles relating to Crown appeals against sentence, and relied in particular on the propositions set out at [60] of that judgment. Before setting out that explanation, I note in passing that although the extract from Duffy refers to appeals to the Court of Appeal, the Crown did not suggest that these propositions did not apply in review appeals from Magistrates Court sentencing decisions. In Duffy, the Court said:
General principles on Crown appeals
52. An appeal to the Court of Appeal against a sentence imposed by a single judge lies under s 37E(2)(ii) of the Supreme Court Act1933 (ACT) (Supreme Court Act). On an appeal against sentence (whether by the Crown or an offender), the Court’s wide powers include the power to increase or decrease the sentence and to substitute a different sentence: s 37O(7).
53. On such an appeal, the Court of Appeal will intervene only if it is satisfied that there has been an error of the type referred to in House v The King (1936) 55 CLR 499. There must be a specific error of fact or law, or an implicit error that is discernible because the sentence is so plainly wrong (so “manifestly excessive” or “manifestly inadequate” or “outside the range of available sentences” or “dramatically inappropriate”) as to compel the conclusion that there has been an error in the exercise of the sentencing discretion, although no specific error can be identified: Dinsdale v The Queen (2000) 202 CLR 321 per Gaudron and Gummow JJ at [22]; Wong v The Queen (2001) 207 CLR 584 at [58]; Hili v The Queen (2010) 242 CLR 520 (Hili) at 58-59.
54. There is a narrow class of case in which it is appropriate for the Crown to appeal against the inadequacy of a sentence. Additional principles that have been accepted in relation to Crown appeals against sentence were set out in R v Eisenach [2011] ACTCA 2 at [8] and were summarised by Refshauge J in R v TW (2011) 6 ACTLR 18 (TW), and by Ross J in R v Hutchinson [2014] ACTCA 29 at 21–24, in all cases drawing on the analysis by Charles JA in R v Clarke (1996) 85 A Crim R 114, at 116-117. In TW at [4], Refshauge J said:
(i) An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle.
(ii) Occasions may arise for the bringing of a Crown appeal: (a) when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle; (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person; (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience; and (f) to ensure, as far as the subject matter permits, that there will be uniformity of sentencing.
55. In Green v The Queen (2011) 244 CLR 462 (Green) at [1] the majority (French CJ, Crennan and Kiefel JJ) said (citing Barwick CJ’s statement in Griffiths v The Queen (1977) 137 CLR 293 (Griffiths) at 310):
The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”.
(Citations omitted)
56. Similarly, in R v Riddle (2010) 4 ACTLR 153 at [6], the Court referred to Barwick CJ’s statement in Griffiths, affirming that a Crown appeal should be brought only when a matter of principle arises or where it is necessary to maintain the proper administration of justice.
57. Point (ii) made by Refshauge J in TW does no more than provide examples of the ways in which courts have expressed the principle set out in (i) and they must be read in that context. In relation to sub point (e) (the sentence is so grossly disproportionate to the crime as to “shock the public conscience”), the phrase has been frequently used by appellate courts but may be apt to mislead and suggest a more populist influence on sentencing than is intended or appropriate. The phrase has been subject to recent criticism (see, for example, R v McPartland & Polkinghorne [2014] SASCFC 84 at [22]‑[29]) which, if accepted, may reduce the usefulness of the phrase as a description of one of the particulars of the purpose of the Crown appeal against sentence.
58. In any event, on this appeal, the Crown did not resort to the argument that the sentences “shocked the public conscience”, but properly advanced arguments that the sentences were contrary to principle.
59. In R v Baker [2000] NSWCCA 85 Spigelman CJ (with whom Grove and Hidden JJ agreed) dismissed a Crown appeal in which the court had been “asked to infer a legal error from the mere inadequacy of the sentence” (at [12]). His Honour said at [19]:
The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred.
60. It will be very difficult for the Crown to succeed on an appeal where it relies solely on “manifest inadequacy” and seeks to infer an error of principle from the length and/or nature of the sentence. Whereas offender appeals are concerned with the correction of error in particular cases, prosecution appeals are brought to establish matters of principle. In prosecution appeals, the focus must remain firmly on the question of whether there has been an error of principle.
82. Counsel for Mr Burnell also referred to Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili), in which the plurality (French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ) said of the manifest inadequacy ground of appeal:
59. As was said in Dinsdale v The Queen, "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion". And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases". Rather, as the plurality went on to say in Wong, "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons". But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that "the sentence imposed in these matters is so far outside the range of sentences available that there must have been error".
60. The Court of Criminal Appeal also said that "manifest error is fundamentally intuitive". That is not right. No doubt, as the Court went on to say, manifest error "arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it". But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.
(citations omitted)
83. Counsel for Mr Burnell also noted Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80, in which the ACT Court of Appeal at [84]–[89] commented on the value, and the limitations, of information about sentencing statistics and “comparable” cases.
84. In response to the Crown’s reliance on Loveridge, counsel for Mr Burnell submitted that the point of principle sought to be established in the Loveridge appeal was to fill “a vacuum” in the guidance available to sentencers in NSW dealing with “one-punch manslaughters” and, by implication, that Loveridge was therefore not relevant to (or authoritative in) sentencing for common assaults in the ACT.
85. Counsel for Mr Burnell also submitted that an argument about the importance of general deterrence to a particular kind of offence needed to be supported by evidence of prevalence, and noted that the Crown had offered no evidence that the prevalence of this kind of common assault required the giving of any particular guidance to the Magistrates Court. However, counsel rejected my invitation to suggest what level of prevalence would need to be shown in relation to a particular offence to give a special significance to general deterrence in sentencing for that offence.
86. Counsel for Mr Burnell also noted that the Crown had not referred to comparable cases or to sentencing statistics available from the ACT sentencing database, and had not identified any basis on which this court could find that the sentence imposed in this case was “out of the range of sentences that could have been imposed” [Hili at [60]].
Submissions in reply – Crown appeals
87. Counsel for the Crown conceded that in Duffy the ACT Court of Appeal had suggested that the Crown should rarely bring sentence appeals, and generally should only do so when it seeks to establish a point of principle. However, said counsel, the necessary principle emerges from a finding of manifest inadequacy, which is a finding that although no specific error can be identified, there must have been an error of principle in the sentencing. This submission alludes to comments such as were made in Hili, in which the High Court at [59] affirmed the comment of the plurality in WongvThe Queen [2001] HCA 64; 207 CLR 584 at [58] that intervention in the sentence challenged:
is warranted only where the difference [between the result arrived at below and other sentences that have been imposed in other cases] is such that, in all the circumstances the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.
88. Pressed about what was the content of the principle to be established in this appeal, the Crown proposed the principle that “general deterrence is very important for random common assaults (not just random manslaughter)” and submitted that Loveridge was authority for this principle. In short, the Crown wants “guidance” about the importance of general deterrence in sentencing for common assaults given to the Magistrates who, except in unusual circumstances, are the only judicial officers who deal with all such offences.
Consideration
Crown sentencing appeals
89. As already adverted to, much has been said by the courts about appeals based on inferred error, that is, appeals based on claims that the sentence concerned is “plainly wrong or unjust” or, as it is usually described in the notice of appeal, that it is “manifestly excessive” or “manifestly inadequate”. This basis of appeal amounts to a claim that because the sentence can be identified as plainly wrong or unjust, or as manifestly excessive or inadequate, and despite the fact that no specific error can be identified, it can be inferred that some kind of error of principle must have been made by the sentencer.
90. Much has also been said by the courts, and referred to above, about Crown appeals specifically, to the general effect that, while offender appeals are concerned with the correction of error in particular cases, Crown appeals are brought to establish matters of principle.
91. When those two propositions are juxtaposed, it is apparent that there is a problem for the Crown: almost by definition, a conclusion that “there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”, does not identify the principle that must have been misapplied. If it is impossible to identify the principle that is said to have been overlooked or misapplied, and that is sought to be established by means of the appeal, that principle is not readily established through the medium of a Crown sentence appeal.
92. This is presumably the problem that underpins comments such as that made in Duffy at [60] that:
It will be very difficult for the Crown to succeed on an appeal where it relies solely on “manifest inadequacy” and seeks to infer an error of principle from the length and/or nature of the sentence.
Significance of Loveridge
93. In order to deal with the Crown’s submissions properly, it is necessary first to consider Loveridge in more detail.
94. Loveridge was a particularly tragic case involving five assaults (in each case a single blow to the victim’s head), in the course of a single evening, by an intoxicated offender who was on conditional liberty, having been released only a month earlier, on a probation order requiring him to be of good behaviour for 18 months, after being sentenced for another offence involving drunken violence. Three of the assaults were charged as common assaults, and one as an assault occasioning actual bodily harm. The other assault caused the death of the victim, who as a result of a single punch fell and hit his head on the pavement, sustaining fatal head injuries. The offender pleaded guilty to manslaughter in relation to the death of that victim. He was sentenced to prison terms for all the offences; for the three common assaults he was sentenced to three 4-month terms of imprisonment, with some concurrency so that the three sentences gave a total sentence of 10 months imprisonment.
95. The Crown appealed the sentences imposed on the offender. The notice of appeal identified seven grounds, six pointing to specific errors and the final ground asserting that “the sentences, individually and in total, are manifestly inadequate”.
96. The NSW Court of Criminal Appeal allowed the appeal. It upheld four of the specific errors, and also found that the “manifest inadequacy” ground had been made out. The three 4-month sentences for common assault were replaced with prison sentences of 9 months, 11 months and 13 months respectively, again with some concurrency, giving a total sentence for the three offences of 26 months imprisonment.
97. In determining the first ground of appeal, which asserted the error of “failing to take into account the additional need for general deterrence due to the prevalence of alcohol-fuelled offences of violence”, the Court referred to a number of previous judicial statements about the importance of general deterrence in protecting the public from street violence, and said:
103. Other decisions of this Court have emphasised that violence on the streets, especially by young men in company and under the influence of alcohol and drugs, is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence. Even in the case of juvenile offenders (which the Respondent is not), this Court has emphasised that, in relation to crimes of violence committed in the streets by groups of young persons, general deterrence should be given substantial weight notwithstanding the youth of the offenders.
104. This Court has emphasised that the principles of general deterrence and denunciation of crimes serve as a means of protection of the public.
…
108. … this was a case where it was necessary for the sentencing Judge to emphasise the substantial role of general deterrence on sentence, and then to give effect to that important sentencing principle in the sentences actually imposed.
109. … A passing reference to general deterrence did not meet the requirements of sentencing principles in this case. Nor did the sentences actually imposed reflect that general deterrence had been taken into account in accordance with the law.
(citations omitted)
98. In relation to the claim of manifest inadequacy, the Court said at [241]:
We are satisfied that each of the sentences imposed upon the Respondent, and the total effective sentence imposed, were manifestly inadequate. Consideration of the objective circumstances of the offences, and the subjective circumstances of the Respondent, and proper application of principles concerning accumulation, concurrency and totality ought to have resulted in the imposition of substantially greater sentences than those actually imposed.
99. The Court did not, however, address at all the issue raised in this case of the constraints on Crown appeals that appear to have been recognised not just by the ACT Court of Appeal but also by the High Court, at least in relation to NSW (Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462, in which the majority (French CJ, Crennan and Kiefel JJ) said at [1]:
The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions ("Crown appeals") under s 5D of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act") is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the "residual discretion".
(citations omitted)
The NSW Court of Criminal Appeal did refer at [247] to the residual discretion mentioned in Green, and in the course of considering appeal grounds asserting specific errors, did explicitly refer to certain principles for the governance and guidance of sentencing courts (at [97] above). It did not, however, identify any such principles in finding that the sentences in Loveridge were manifestly inadequate. This is consistent with the suggestion at [91] above that a Crown appeal brought to correct an error of principle, or to establish a principle, is unlikely to be effective to the extent that it depends on a finding that the sentencing judge has fallen into an unidentified and unidentifiable error of principle.
The Crown, by reference to Loveridge, proposed the principle that “general deterrence is very important for random common assaults (not just random manslaughter)”. That principle, as explained by the NSW Court in Loveridge, could be rendered in a form relevant to the current case as:
General deterrence is a particularly important sentencing purpose in dealing with random acts of violence by young men, especially in company, in public places.
This appears to be a reasonable proposition, and on its face one that might legitimately be adopted in the ACT (if it is not already an accepted principle). On the other hand, in contrast to Loveridge, its significance in the ACT has not been established by the Crown in this case, either by reference to earlier ACT decisions or by any kind of substantiated claim of prevalence or community concern. In Loveridge, having reviewed several United Kingdom decisions about “manslaughter arising from violence in public places” (at [208] to [213]) the Court said at [215] to [219]:
214. Two particular points emphasised in the United Kingdom cases have currency in this State as well.
215. Firstly, it is not meaningful to speak of one-punch or single-punch manslaughter cases as constituting a single class of offences. The circumstances of these cases vary widely and attention must be given to the particular case before the sentencing court.
216. Secondly, the commission of offences of violence, including manslaughter, in the context of alcohol-fuelled conduct in a public street or public place is of great concern to the community, and calls for an emphatic sentencing response to give particular effect to the need for denunciation, punishment and general deterrence. The United Kingdom decisions involve statements of serious concern by the courts of the type expressed in this State in Hopley v R, R v Carroll and Pattalis v R concerning a similar form of violent offending.
217. General deterrence and retribution are elements that must assume greater importance when the crime in question is a serious one, has been committed in a particularly grave form and its contemporary prevalence is the cause of considerable community disquiet: R v Williscroft at 299.
218. Additional considerations arise where an offender has a history of alcohol-fuelled violence, and where further offences of this type are committed whilst the offender is subject to conditional liberty. In such circumstances, specific deterrence is magnified as a factor to be taken into account on sentence.
219. Although the youth or relative youth of offenders who commit offences of this type remains a relevant factor on sentence, particular significance is to be given to general deterrence in sentencing young offenders who commit serious crimes of violence on a public street or in a public place. So much is clear from existing decisions of this Court, including AI v R and R v Carroll.
(citations omitted)
In my view, those comments too could properly be taken into account in sentencing in ACT cases.
It must be noted, however, that many of the points made by the Court in Loveridge are not in fact directly relevant in this case:
(a)This case does not involve a “one-punch” assault, although it is arguable that it involves a more serious assault to the extent that it was sustained. It does not appear to have involved “alcohol-fuelled violence”.
(b)Although this case involves a serious example of the common assault offence, that offence is at the bottom of the hierarchy of personal injury offences, and for that reason may not fit the description of “the crime in question” being “a serious one”.
(c)Mr Burnell had no history of violence, whether alcohol-fuelled or otherwise, and no other criminal history, and nor was he on any form of conditional liberty when he committed the assault in question.
(d)Finally, as noted by counsel for Mr Burnell, the Crown has provided no basis for any assertion that Mr Burnell’s offence falls into a class of offending that is “the cause of considerable community disquiet”, and thus calls for an emphatic sentencing response.
Accordingly, it is not clear to me that this case is a proper vehicle for the explicit adoption in the ACT, in relation to sentences for common assault, of the conclusions in Loveridge about the significance of general deterrence in relation to cases of the kind described by the NSW Court of Criminal Appeal.
More particularly, I do not consider that the principles to be found in Loveridge require, or justify, accepting the Crown’s submission that “a sentence of imprisonment was certainly called for in this case”. Counsel’s statement that “That's emphasised by the conclusions of their Honours in Loveridge” must be rejected.
The general propositions adopted by the Court in Loveridge emphasising the need for proper attention to general deterrence in sentencing for offences involving street violence do not include a proposition that terms of imprisonment are therefore necessary for every violent offence committed in public; presumably even the Crown would concede that there are some common assaults that do not necessarily require a sentence of imprisonment.
Nor could the sentences imposed on the offender in Loveridge for the three common assaults establish that Mr Burnell’s particular offence requires a sentence of imprisonment: first, as a matter of principle and with the possible exception of cases in which parity may be an issue, a particular sentence imposed in one case can never require a particular sentence or type of sentence to be imposed in another case (see, for instance, Heydon J in Hili at [79]), but secondly, the details of Mr Loveridge’s common assaults, and Mr Loveridge’s subjective circumstances, arguably have more differences from those of Mr Burnell than similarities with them. As well as the distinctions drawn at [104] above:
(a)Mr Burnell’s offence was a single offence, whereas the NSW Court found at [202] that Mr Loveridge’s three common assaults and the other two assaults were committed in a context where there was:
an interrelationship between [the five] offences which served to magnify their seriousness in a number of respects. This was an unusual and highly aggravating feature of the Respondent's offences.
(b)During the evening of the assaults, Mr Loveridge had expressed an intention to “bash someone”.
(c)Mr Loveridge seemed to have far less in the way of prospects of rehabilitation than did Mr Burnell.
Even if it should be accepted (which is by no means clear) that general deterrence had the same importance in sentencing Mr Burnell as in sentencing Mr Loveridge, it could not be said that the sentences of imprisonment imposed on Mr Loveridge for his three common assaults required a sentence of imprisonment to be imposed on Mr Burnell for his common assault.
More relevantly given the Crown’s arguments, it is not possible to extract from the judgment in Loveridge a principle that common assaults committed by young men in the streets require prison sentences including immediate custodial time.
It is useful at this point to return to the way in which the NSW Court of Criminal Appeal expressed its conclusion about manifest inadequacy in Loveridge at [241], as follows:
We are satisfied that each of the sentences imposed upon the Respondent, and the total effective sentence imposed, were manifestly inadequate. Consideration of the objective circumstances of the offences, and the subjective circumstances of the Respondent, and proper application of principles concerning accumulation, concurrency and totality ought to have resulted in the imposition of substantially greater sentences than those actually imposed.
In this case, involving only one offence, the principles of accumulation, concurrency and totality are of course irrelevant, but even if principles of general deterrence were mentioned as in the revised appeal ground set out at [45(b)] above, it would be necessary to be able to conclude that:
consideration of the objective circumstances of the offences, and the subjective circumstances of Mr Burnell, and the application of the principles of general deterrence, ought to have resulted in the imposition of a substantially greater sentence than that actually imposed.
This would be an effective finding of manifest excess, but it would not be a finding that was useful to establish any particular principle of general deterrence, and for that reason would not, as such, seem to justify a Crown appeal.
Conclusion – was the sentence manifestly inadequate?
For the reasons set out above, the decision in Loveridge cannot be relied on to establish the proposition that the sentence imposed on Mr Burnell was “manifestly inadequate”. The objective features of the offence identified by the Crown certainly mark the offence out as a particularly cowardly one. However, Mr Burnell had a number of subjective features in his favour, including his lack of any criminal history or any other history of violence and his good prospects of rehabilitation, and there were also objective circumstances distinguishing this case from Loveridge, as noted at [104] and [108] above. Furthermore, I have found that the Magistrate was entitled to make the challenged factual findings about Mr Burnell’s attitude to the offence, in particular the finding that Mr Burnell was remorseful.
There is no doubt that the Magistrate’s sentence was lenient having regard to the facts of the assault. However, taken as a whole, the circumstances of the offending, the personal circumstances of the offender, and the purposes of sentencing in general (including but not limited to general deterrence), do not in my view render the sentence “manifestly inadequate”. In the absence of any material justifying a conclusion that the sentence imposed on Mr Burnell was “markedly different from other sentences that have been imposed in other cases" or was “out of the range of sentences that could have been imposed”, I cannot conclude that the sentence is manifestly inadequate.
Conclusions
Since I have rejected the Crown’s claims of specific error and of manifest inadequacy, none of the appeal grounds has been made out, and the appeal must accordingly be dismissed.
Further comments about Crown appeal
It seems that this Crown appeal was misconceived or, at least, was framed in a way that did not enable it to achieve the Crown’s asserted aims.
The claim of specific factual errors by his Honour, especially given the subject-matter of those asserted errors, was not framed so as to identify any error of principle on the part of the Magistrate, and the claim of manifest inadequacy, if made out, would have suggested that there had been some error of principle which was, however, unidentifiable.
I accept that Loveridge attaches great importance to general deterrence in sentencing for random acts of public violence, and consider that the NSW approach articulated in that decision may well be generally appropriate in the ACT. However, as explained above, the principle that general deterrence is particularly important in sentencing for random acts of public violence, including common assaults, does not by itself establish that Mr Burnell’s sentence was manifestly inadequate, and nor could a finding that the sentence was manifestly inadequate establish that general deterrence is particularly important in sentencing for random acts of public violence (as already explained, any such manifest inadequacy could have resulted from any kind of error of fact or law, about which all that can be said is that it cannot be identified from the sentencing process).
It may be that, having regard to his Honour’s comments about the relevance and efficacy of general deterrence (at [18] – [21] above), a case could have been made that his Honour had rejected general deterrence as a sentencing consideration, and had fallen into specific error in sentencing Mr Burnell. I do not suggest that even if his Honour had explicitly focused on, and emphasised, general deterrence, he should have concluded that the only appropriate sentence was a term of imprisonment to be served in part by immediate full-time custody, but he might well have increased the length of the GBO and the amount of CSO to be performed, or even imposed a suspended prison sentence.
A principle-based appeal ground that might have justified a Crown appeal would have been a claim, for instance, that the Magistrate had overlooked, or misdirected himself, about the significance of general deterrence in Mr Burnell’s case or in cases of that kind, but his Honour’s approach to general deterrence was not identified as a specific error. It would not have been appropriate for me to treat the appeal as raising such an error, since the respondent had no opportunity to respond to such an appeal ground.
Other matters
At the hearing, counsel for Mr Burnell indicated that if I concluded that the appeal should be dismissed, he would wish to make submissions about costs (which may be available under div 3.10.3 of the Magistrates Court Act).
There is no provision in div 3.10.3 of the Magistrates Court Act explicitly staying a sentence appealed against by the Crown, and at the hearing counsel for Mr Burnell said that he had completed his community service, and was serving the remainder of his GBO; that should now have been completed. Unless Mr Burnell has breached that GBO, there should be no further orders required in relation to the sentence handed down in the Magistrates Court and confirmed by the dismissal of the appeal.
Accordingly, I shall hear the parties about costs, and about whether any further orders are required about the sentence handed down in the Magistrates Court.
| I certify that the preceding one hundred and twenty-four [124] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 5 October 2018 |
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