McIntosh v State of Tasmania

[2010] TASCCA 16

[2010] TASCCA 16

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

CITATION:              McIntosh v State of Tasmania [2010] TASCCA 16

PARTIES:  McINTOSH, Gavin Raymond
  v
  STATE OF TASMANIA

FILE NO/S:  346/2010
DELIVERED ON:  15 October 2010
DELIVERED AT:  Hobart
HEARING DATE:  15 October 2010
JUDGMENT OF:  Crawford CJ, Evans and Porter JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  In person
           Respondent:  J Hartnett
Solicitors:
           Appellant:  In person
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2010] TASCCA 16
Number of paragraphs:  8

Serial No 16/2010
File No 346/2010

GAVIN RAYMOND McINTOSH v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD CJ
EVANS J
PORTER J
15 October 2010

Order of the Court

Appeal dismissed.

Serial No 16/2010
File No 346/2010

GAVIN RAYMOND McINTOSH v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD CJ
EVANS J
PORTER J
15 October 2010

1. The appellant appeals against the severity of a sentence imposed on him upon his pleas of guilty to charges of assault, demanding property with menaces with intent to steal, causing grievous bodily harm, stealing, and unlawfully setting fire to property.  He was sentenced to 3½ years' imprisonment and it was ordered that he be eligible to apply for parole after serving three years of the sentence. 

1. The criminal conduct that underpins his convictions is detailed in the comments made by Tennent J when sentencing the appellant on 6 May 2010.  The following is a brief summary of that conduct.  Angela Leahy was a dealer in methylamphetamine.  On the afternoon of 9 October 2008, she, at the appellant's request, called to see him at a residence designated by him.  When she arrived at the residence, the appellant was with two other women, one of whom was Bridget Burton.  One of the women gave Ms Leahy an ultimatum to the effect that she was to buy her speed through them, or stop selling drugs.  Before Ms Leahy left the residence, the appellant gave her some directions and said to her, "Don't think we're not serious, don't make us come looking for you".  As Ms Leahy did not comply with the appellant's directions he, on 14 October 2008, went looking for her at the home of her friend Deborah Challis.  When Ms Challis refused to telephone Ms Leahy, the appellant punched her to the right eye, fracturing her eye socket and cheek bone, and causing nerve damage.  Ms Challis was left in that state with her three year old daughter who was present throughout this confrontation. 

1. Two days later Ms Leahy appeared in the Magistrates Court, Hobart.  She was followed from the court by Bridget Burton.  As Ms Leahy went to get into her car, which was outside the court, the appellant intercepted her.  A friend of Ms Leahy's was looking after her car.  The appellant told that friend to leave, which she did.  He and Ms Burton got into the car and he directed Ms Leahy to drive to an area on the outskirts of Glenorchy.  When they arrived at the destination the appellant took the car keys, led Ms Leahy from the car, demanded money and drugs, and obtained several hundred dollars from her.  He then punched her hard to the face and she fell to the ground in a semiconscious or unconscious state.  She suffered two fractures to the lower jaw and a fracture to the base of her skull.  She was left in that injured state without money or a phone.  The appellant took her car and is responsible for it being burnt out later that night.

1. The sole ground of the notice of appeal is "severity of sentence".  An appeal based on the severity of the appellant's sentence will only succeed if he satisfies this Court that his sentence is manifestly excessive, that is, beyond the range of penalties appropriate for his criminal conduct.  This has not been established.  It is beyond question that a head sentence of 3½ years' imprisonment for his series of serious crimes is well within range. 

1. In an affidavit filed together with his notice of appeal, the appellant said he hoped to obtain a reduction in the length of his minimum sentence.  In the absence of an order specifying that an offender is eligible to apply for parole after serving a specified period of a sentence, the offender is not eligible for parole.  See the Sentencing Act 1997, s17(3A). Accordingly, the default position is that an offender is not eligible for parole. The purpose that underpins legislation that empowers a sentencing judge to order that a prisoner be eligible to apply for parole, is the mitigation of punishment in favour of rehabilitation through conditional release, once an offender has served the minimum time that the judge has determined that justice requires the offender to serve, having regard to all the circumstances of the case. See Deakin v R (1984) 58 ALJR 367 and Power v R (1974) 131 CLR 623 at 629. When addressing the mitigation of punishment in favour of rehabilitation through conditional release, a sentencing judge pays particular regard to an offender's prior convictions. In this case, her Honour correctly observed that the appellant had an appalling record of prior offending and commented that there was little, if any, indication of his imminent rehabilitation. Her Honour ordered that he be eligible to apply for parole after serving three years of his sentence of 3½ years' imprisonment. That her Honour fixed a period of parole eligibility, albeit a modest one, shows that her Honour did not totally dismiss the appellant's rehabilitation prospects.

1. For the purposes of a review of the appropriateness of the parole eligibility period that was fixed, it is necessary to address the appellant's record.  He has many prior convictions for crimes involving dishonesty, and a number of convictions for offences such as resisting, threatening, and obstructing police, and for offences involving injuring or destroying property.  For present purposes, the most significant are his convictions for crimes involving violence.  The following is a list of those convictions, together with the date of the offence and the penalty, which in some instances also relates to other offences. 

25 November 1992	Common assault	Bond
17 April 1995	Armed robbery	15 months' imprisonment, with 9 months suspended
20 August 1996	Common assault	10 weeks' imprisonment
27 August 1996	Common assault	2 months' imprisonment
13 March 1998	Assault a police officer (3 charges)	4 months' imprisonment
30 May 1998	Assault a police officer (2 charges)	1 month's imprisonment
3 August 1998	Aggravated assault	6 months' imprisonment
13 May 1998	Attempted aggravated armed robbery	18 months' imprisonment
15 February 2002	Assault (2 charges) and causing grievous bodily harm	2 years' imprisonment
16 October 2008	Assault	9 months' imprisonment

1. In the light of these prior convictions it would have been open to her Honour to have made no order as to the appellant's parole eligibility, on the basis that there was no good reason for mitigating his punishment in favour of his rehabilitation.  That her Honour in fact gave the appellant an opportunity to apply for parole after serving all but six months of his sentence probably recognises the benefit of providing him with some encouragement to change his ways, albeit that he has hitherto shown himself to be unlikely to do so.  The encouragement offered is relatively modest, in theory it could have been as much as one half of the sentence, that is, 21 months.  The crimes for which the appellant was sentenced involved both violence and dishonesty.  His criminal conduct was extended, premeditated, and caused serious injuries to his two victims.  He has an appalling record of prior convictions.  That the encouragement offered to him by the period of parole eligibility that was imposed is relatively modest does not render this aspect of the sentence manifestly excessive. 

1. The appeal is dismissed.