Maddox v Tasmania
[2017] TASCCA 25
•24 November 2017
[2017] TASCCA 25
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Maddox v Tasmania [2017] TASCCA 25
PARTIES: MADDOX, Joel Matthew
v
STATE OF TASMANIA
FILE NO: CCA 2336/2016
DELIVERED ON: 24 November 2017
DELIVERED AT: Hobart
HEARING DATE: 17 November 2017
JUDGMENT OF: Blow CJ, Wood and Geason JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Committing an unlawful act intended to cause bodily harm – Householder beaten unconscious with letterbox – Permanent brain damage and loss of one eye – Sentence of ten years' imprisonment with non-parole period of five years – Not manifestly excessive.
Criminal Code (Tas), s170.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: R Mainwaring
Respondent: J Hartnett
Solicitors:
Appellant: Legal Aid Commission
Respondent: Director of Public Prosecutions
Judgment Number: [2017] TASCCA 25
Number of paragraphs: 32
Serial No 25/2017
File No CCA 2336/2016
JOEL MATTHEW MADDOX v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
WOOD J
GEASON J
24 November 2017
Order of the Court
Appeal dismissed.
Serial No 25/2017
File No CCA 2336/2016
JOEL MATTHEW MADDOX v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
24 November 2017
This is a sentencing appeal. At about midnight on the night of Monday, 14 December 2015 the appellant, Joel Maddox, attacked a man with a letterbox, beating him unconscious and causing dreadful permanent injuries. He pleaded guilty to a charge of committing an unlawful act intended to cause bodily harm, contrary to s 170 of the Criminal Code. Estcourt J sentenced him to ten years' imprisonment, with a non-parole period of five years. The appellant contends that that sentence was manifestly excessive.
The appellant was 20 years old on the night in question. He was extremely drunk. He was walking with friends through the streets of New Norfolk when he stopped to urinate on the back fence of a house in Talina Place. In an episode of senseless vandalism, he pulled a number of palings from the fence and threw some of those palings at the front window of the house, smashing the glass. The sole occupant of the house, a man named Keith Hatton, woke to the sound of breaking glass, and went outside to investigate. He was the victim of the appellant's crime. He was 48 years old. He and the appellant did not know one another.
Apparently Mr Hatton armed himself with a metal pole. The appellant later told police officers that Mr Hatton had a bat of some kind, but a metal pole was found at the scene after the attack, and no bat was found. In the circumstances, arming himself with a metal pole was a reasonable precaution for Mr Hatton to take.
At the front of the house there was a letterbox on a metal pole. The appellant, on seeing Mr Hatton, pulled the letterbox and its pole out of the ground. He held the lower end of the pole and swung the letterbox from his right to his left, hitting Mr Hatton to the head with it. Mr Hatton fell to the ground. The appellant continued to swing the letterbox over his shoulder and bring it back down, apparently wielding it like a club, striking Mr Hatton at least 10 times to the head, face and shoulder. Mr Hatton lay motionless on the ground.
It was alleged in the indictment that the appellant acted "with intent to cause grievous bodily harm". By pleading guilty, he acknowledged that he intended to cause serious injury to Mr Hatton. Some hours after the attack he was asked by a police officer why he pulled the letterbox out of the ground. He replied, "So I could hit him before he hit me." He admitted that he wanted to hurt Mr Hatton. He said, "I didn't want him to get back up."
Three neighbours were woken by the disturbance and saw the attack. They included a teenage boy and a teenage girl. The boy yelled at the appellant. One of the appellant's friends yelled at him to stop. As a result of those interventions, the appellant stopped striking Mr Hatton, dropped the letterbox, and ran away.
The appellant met up with his friends again. He told them that he had killed someone, and that he had "fucked up". They walked to a vantage point at the tip, and watched an ambulance and the police arrive. They then continued to their intended destination, where they had something to eat. The appellant told his friends that he would hand himself in to the police in the morning.
The neighbours found Mr Hatton on the ground, covered in blood, and making gurgling noises. His facial injuries were so bad that he was unrecognisable. They placed him on his side and phoned for an ambulance.
Mr Hatton was taken to the Royal Hobart Hospital. His left eye was damaged so badly that it had to be removed. He had multiple complex facial fractures, including a ruptured orbit. A CT scan of the brain showed multiple contusions and bilateral skull fractures. He had deep lacerations to his forehead, scalp and cheek. His upper and lower denture plates were broken. He had an abrasion to the right shoulder. He underwent a series of emergency operations.
He suffered permanent brain damage. He has been left with a very significant intellectual impairment. He will require full-time care for the rest of his life. He needs prompting for daily activities including eating, drinking and maintaining hygiene. He has permanent post-traumatic amnesia.
In a victim impact statement, his son told the Court the following things:
· Mr Hatton cannot make his own decisions, prepare meals, walk, or go to the toilet without assistance.
· He sometimes calls his son by the wrong name, and confuses him with his grandson, thinking that he is still a little boy. He thinks that it is 1999 and that he is about 27 years old. He utters words that make no sense, and then gets frustrated and upset.
· He is reluctant to brush his teeth, shower, or go to the toilet. He would like to stay in bed 24 hours per day, seven days per week.
· At the time of the sentencing proceedings, in August 2016, Mr Hatton was still in hospital. It was planned that he would be moved to a residential care facility where he would have his own room. His family were hoping that his attitude would improve after moving into a room of his own.
Obviously this crime had a significant impact not just on Mr Hatton, but also on his son and other family members. At one stage, shortly after Mr Hatton's admission to hospital, the family were required to discuss the possibility of having to authorise the turning off of Mr Hatton's life support equipment. They will have to live with the consequences of this crime for years to come.
There was a risk that individuals who witnessed the attack on Mr Hatton or its aftermath might have developed significant psychological or psychiatric symptoms as a result of what they saw. Neighbours witnessed the attack, and came to Mr Hatton's assistance after the appellant fled. They, the paramedics, and the police officers who attended must have been confronted by a particularly disturbing scene. There is no suggestion that any of them developed significant psychological problems, but such problems sometimes do not manifest themselves until months or years after the event.
The appellant has numerous prior convictions, but none of them were for crimes or offences involving serious violence. He was brought before magistrates for a variety of offences, commencing when he was 16 years old. Shortly after his 17th birthday he was given a wholly suspended sentence of two months' detention under the Youth Justice Act 1997 for a series of offences including burglary, stealing and destroying property. Four months after that sentence was imposed, he re-offended by committing the crime of unlawfully setting fire to property. He was given another wholly suspended sentence of two months' detention for that crime and a series of other offences. He was also ordered to perform 50 hours' community service. Shortly before his 19th birthday, he was placed on probation for 12 months and ordered to perform 49 hours' community service for a series of offences including motor vehicle stealing, driving with a blood alcohol content of 0.112, and evading police. In June 2015 he committed his second drink driving offence, with a reading of 0.047. For that offence and a number of others, including driving while unlicensed, he was fined and disqualified from driving for nine months. Later in 2015 he was fined for destroying property. He had not been to prison before committing the crime to which this appeal relates.
Until he was arrested for this crime, the appellant had lived all his life in New Norfolk with his parents and his siblings. He is a person of borderline intelligence. That is to say, he has an IQ in the 70s. He has had behavioural problems since his schooldays. Before committing this crime he was aware that he had something of an anger management problem, but he had never behaved as violently before the night in question. He ceased formal schooling during grade 8, but completed years 9 and 10 at a place that he was able to attend in Hobart. He has been employed twice, first by a fertiliser company for a few months, and later with a plaster company for about two months. He had been a regular cannabis smoker since the age of 13. He first got drunk when he was about 13 years old, and was a regular binge drinker from about the age of 15 or 16. He self-medicated with cannabis, using it to make himself feel relaxed and calm. In an attempt to do the right thing, he stopped using cannabis about two weeks before the night in question, but then he increased his consumption of alcohol.
It is true that the appellant's crime was not premeditated or planned, and that he acted impulsively and spontaneously. It is also true that his attack on Mr Hatton did not last very long. However those factors are of little significance because of the extreme seriousness of the injuries suffered by the victim. As the learned sentencing judge observed, "Mr Hatton's former life has been taken away from him at quite an early age." This was a particularly serious case because of the vicious nature of the appellant's attack, the number of blows struck, and the permanent incapacitation of the victim. It is significant that the appellant used a weapon that was capable of inflicting terrible injuries, that he committed the crime in the view of others, that he attacked the victim in the yard of his own home, and that he continued his attack when the victim was motionless on the ground.
In Hards v The Queen [2013] VSCA 119 at [13], Maxwell ACJ, with whom Buchanan JA agreed, said, "There is, in my opinion, something particularly shocking about an attack which persists after the victim has been rendered unconscious. That in itself pushes a case like this into a higher level of gravity, because of the evident determination to cause really serious harm, and the cowardice of attacking someone who is unable to defend himself." Those comments were cited with approval by Wood J, delivering the principal judgment of this Court, in Director of Public Prosecutions (Acting) v Morgan [2015] TASCCA 11 at [37].
A number of common mitigating factors were absent in this case. The appellant was not a first offender. He was not mentally ill. Although he was of low intelligence, he was not intellectually impaired. He did not voluntarily desist from the infliction of injuries.
I accept that the appellant armed himself with the letterbox and used it as a weapon only because he anticipated that Mr Hatton might strike him with his metal pole. From the appellant's point of view, he was acting in self-defence at first. However that was not a mitigating factor because the situation was one of the appellant's own making. He attacked Mr Hatton's house, smashing a window with a paling. It was reasonable for Mr Hatton to go outside to try to get him to stop. Mr Hatton was a small man. He weighed only 56 kilograms. It was reasonable for him to arm himself with a metal pole for his own protection. If the appellant feared for his safety, the only appropriate course was for him to go somewhere else, preferably very quickly.
The fact that the appellant desisted from his attack is not a mitigating factor either. His crime would have been more serious if he had continued his attack for longer, or if he desisted only upon someone else physically intervening. The most that can be said is that he could have inflicted worse injuries than he did.
The injuries that the appellant inflicted were life threatening. It is lucky for him that they did not prove fatal, and that he did not get charged with murder.
The relevant mitigating circumstances, and my comments in relation to them, are as follows:
· The appellant was only 20 years old. However he was not too young to understand the likely consequences of his actions. Youthfulness is not a significant factor in sentencing for crimes involving considerable physical violence: R v Pham (1991) 55 A Crim R 128 at 135; R v AEM [2002] NSWCCA 58 at [97]-[98]; KT v The Queen [2008] NSWCCA 51, 182 A Crim R 571 at [25]-[26]; Braslin and Cowen v Tasmania [2010] TASCCA 1 at [29].
· He had no prior convictions for offences involving violence. However he had some fairly serious prior convictions.
· The appellant gave himself up to the police. Initially he told his friends that he would do so "in the morning". Police officers visited his mother at about 4am, with the result that she telephoned him. The police then spoke to him and, by arrangement, met him at a park where they arrested him.
· He was remorseful from an early stage. In an interview with police officers that commenced at 11.15am, about 11 hours after the attack, the appellant acknowledged that he could have walked away. When the interviewing officers discussed the victim's condition, the appellant appeared to cry. A psychologist reported that the appellant had thought about how he would feel if his father had suffered a similar attack.
· He had facilitated the administration of justice by participating in a police interview, confessing to what he had done, and pleading guilty at an early stage. However the evidence against him was overwhelming. One of the neighbours had recognised him during the attack.
· In the months prior to the commission of this crime, the appellant sought the assistance of his general practitioner in relation to problems that he had been having with depression and unstable moods. He had been taking anti-depressants for about a month before committing the crime. He had given up cannabis because he got too angry when he did not have any.
· There were prospects of rehabilitation. The appellant told the psychologist that his offending as an adolescent had been stupid. He had been on bail for about five months before he was sentenced. There was no suggestion that he had re-offended during that period.
A crime against s 170 that involves a specific intent to do grievous bodily harm is generally regarded as more serious than a crime of causing grievous bodily harm, contrary to s 172, which does not necessarily involve a specific intent: R v Allen [1999] TASSC 112 per Cox CJ at [2]; Barron v Tasmania [2010] TASCCA 3, 20 Tas R 114 at [21]; Director of Public Prosecutions v Blyth [2010] TASCCA 10 at [8]; Director of Public Prosecutions v Blackaby [2013] TASCCA 4 at [18]; Cordwell v Tasmania [2017] TASCCA 14 at [10]. The mental element for the crime of causing grievous bodily harm can be either an intent to cause grievous bodily harm or subjective recklessness: R v Bennett [1990] Tas R 72.
For many years, a crime against s 170 has ordinarily been punished by a sentence of from three to seven years' imprisonment: Papazoglou v The Queen 9/1963; R v Allen (above) per Wright J at [13]; Jay v Tasmania [2016] TASCCA 12; Price v Tasmania [2016] TASCCA 22; Cordwell v Tasmania (above) at [13].
The recognition of an ordinary range of sentences for a particular crime does not mean that every sentence for that crime must fall within that range: Inkson v The Queen (1996) 6 Tas R 1 per Underwood J (as he then was) at 15; R v Allen (above) per Wright J at [14]; Barron v Tasmania (above) per Wood J at [28]-[30]; Groenewege v Tasmania [2013] TASCCA 7 at [50]; Cordwell v Tasmania (above) per Estcourt J at [17]-[20]. It follows that a particularly bad contravention of s 170 can justify a sentence significantly longer than seven years.
For crimes of great gravity, "any entitlement to leniency arising from … age and the prospects of reform are subordinate to the dominant sentencing considerations of general and specific deterrence, denunciation, punishment and vindication of the complainant": Kirkwood v Tasmania [2017] TASCCA 7 per Pearce J at [9].
At least in recent decades, no head sentence of longer than seven years has been imposed for a single count of contravening s 170. However it does not follow that a substantially longer head sentence can never be appropriate in such a case. It must of course be borne in mind that inconsistency in punishment can erode public confidence in the integrity of the administration of justice: Lowe v The Queen (1984) 154 CLR 606 at 610. "What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range": R v Ellis (1993) 68 A Crim R 449 per Hunt CJ at CL at 461; Groenewege v Tasmania (above) at [16].
It is always possible to identify aggravating factors that are absent in a particular case. In this case the appellant did not act in concert with anyone else, did not encourage anyone else to offend, did not invade the victim's house, as distinct from his front yard, did not plan his attack in advance, and desisted before anyone physically intervened to stop him. The case did not involve family violence or racial hatred. However there is no reason why a head sentence of more than ten years' imprisonment could not be appropriate if an offender inflicted similar catastrophic injuries in a situation that involved aggravating circumstances that were not present in this case.
Having regard to the fact that the victim of the appellant's attack lost an eye and has been permanently incapacitated as a result of brain damage, and having regard to the circumstances of the attack, it is clear that a head sentence significantly longer than seven years was appropriate in this case. In my view the head sentence of ten years was not disproportionate to the seriousness of the appellant's offending. The non-parole period, which was equal to half of the head sentence, was the shortest that could have been imposed: Corrections Act 1997, s 68(1). It gave appropriate weight to the mitigating factors and the appellant's personal circumstances. In my view neither the head sentence nor the non-parole period was manifestly excessive.
For these reasons I would dismiss the appeal.
File No CCA 2336/2016
JOEL MATTHEW MADDOX v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
24 November 2017
I agree with the Chief Justice. This appeal should be dismissed, for the reasons given by his Honour.
File No CCA 2336/2016
JOEL MATTHEW MADDOX v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J
24 November 2017
I have had the advantage of reading the Chief Justice's reasons in draft. There is nothing I can usefully add to his Honour's reasons. I would dismiss the appeal.
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