R v Lutze - [2014] SASCFC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LUTZE
[2014] SASCFC 134
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Parker)
10 December 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - TO ADMIT NEW EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
Application for permission to appeal against sentence for aggravated causing harm with intent - sentence of three years imprisonment with non-parole period of one year imposed - whether sentence manifestly excessive - whether judge erred in failing to suspend sentence - no specific error alleged - whether nature of error such as to justify intervention of an appellate court - whether submission that inadequate weight was given to a matter is, even if made good, sufficient to amount to House v The King error. Application to admit new material – whether new material satisfies the requirements of fresh evidence.
Held per Gray, Vanstone and Parker JJ: application for permission to appeal refused - sentence imposed was in the range of sentencing discretion available to the judge. Application to admit new material refused – the material does not satisfy the requirements of fresh evidence.
Held per Gray J:
1. The sentence was well within the sentencing discretion of the judge.
2. No error of sentencing principle on the part of the judge was identified.
3. The judge had regard to all material matters and did not have regard to any immaterial matters.
4. The offending was too serious to allow for a suspension of the sentence.
5. The judge appropriately reflected the defendant’s personal antecedents in the setting of a merciful non-parole period.
6. The character references sought to be tendered on the application could have been obtained by the defendant with reasonable diligence and do not shed new light on matters before this Court or the sentencing judge.
7. The judge had regard to the primary psychological report and it was not clear how a supplementary report, which was not available on the hearing of the application for permission, would satisfy the requirements of fresh evidence.
Held per Vanstone and Parker JJ:
1. Where it is sought to enliven the appellate court's authority to intervene on sentence the principle in House v The King requires either an identifiable error of fact or law or demonstration of manifest excess or inadequacy.
2. A submission that too little weight was given to a factual matter does not, standing alone, justify appellate intervention.
3. A complaint about the decision not to suspend a sentence must be subjected to the same process as applies where the length of the sentence is in issue.
4. The question for the court is: Was it open to the court to suspend the sentence?
5. Only if the decision to suspend fell outside the range of permissible dispositions would it be open to the appellate court to intervene.
Criminal Law Consolidation Act 1935 (SA) sections 24(1), 359, referred to.
Robinson v Police [2014] SASC 155; House v The King (1936) 55 CLR 499; Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621; Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274; Skinner v The King (1913) 16 CLR 336; Noble v Police [2014] SASC 156; Police v Chilton (2014) 120 SASR 42; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Dinsdale v The Queen (2000) 202 CLR 321; Bugmy v The Queen (2013) 249 CLR 571; Kentwell v The Queen [2014] HCA 37; AB v The Queen (1999) 198 CLR 111; R v Horstman (2010) 269 LSJS 42; Markariam v The Queen (2005) 228 CLR 357; R v Dorning (1981) 27 SASR 481; R v Liosatos [1964] SASR 40; R v Many (1990) 51 A Crim R 54; R v McIntee (1985) 38 SASR 432; R v Goodwin (1990) 51 A Crim R 328; R v Rostom (1995) 83 A Crim R 58; R v Sladic (2005) 92 SASR 36; R v Pickard [2011] SASCFC 134, considered.

R v LUTZE
[2014] SASCFC 134
Court of Criminal Appeal: Gray, Vanstone and Parker JJ
GRAY J.

This is an application for permission to appeal against sentence.
Background
The defendant and applicant, Kynan Craig Lutze, was charged on Information with aggravated causing harm with intent to cause harm.[1] It was alleged that, on 6 January 2013 at Glenelg, the defendant caused harm to CJS intending to cause him harm. It was further alleged that this offence was aggravated by the defendant’s use of an offensive weapon, namely a glass object. The defendant pleaded not guilty to aggravated causing harm with intent to cause harm but pleaded guilty to causing harm with intent to cause harm.
[1] Criminal Law Consolidation Act 1935 (SA) section 24(1).
On 23 May 2014, following a trial before a jury in the District Court, the defendant was convicted of aggravated causing harm with intent to cause harm.
On 1 August 2014, the defendant was sentenced in the District Court to a period of imprisonment of three years with a non-parole period of one year. On 29 September 2014, permission to appeal against that sentence was refused by a Judge of this Court.
The circumstances of the offending may be summarised as follows. At approximately 1.30 am on 6 January 2013, the defendant, then aged 25 years, was at the Jetty Bar in Glenelg with friends. He had consumed around eight imperial pint glasses of beer and two glasses of Irish whiskey. The defendant knew one of the women at the venue. He became jealous when he saw her interacting with CJS, a man aged in his late twenties, who was not known to him. Within a matter of minutes, the defendant approached CJS and smashed a pint glass into his face. The defendant then fled.
As a result of the attack, CJS sustained multiple lacerations to the left side of his face and neck. He attended at the Royal Adelaide Hospital emergency department, where his wounds were treated. 28 stiches were required. In addition, further wounds to his face, including wounds to his nose and left eye lid, were closed with glue.
CJS has been left with permanent disfiguring scarring, although some possible improvement may result from further plastic surgical revision. He is now wary of attending at hotels, bars and clubs. He suffers occasional flashbacks of the attack, which has been described by his general practitioner as a mild anxiety state.
The Application for Permission to Appeal
The defendant’s notice of appeal contends that his sentence was manifestly excessive and that the Judge erred in the exercise of his discretion by failing to suspend the sentence of imprisonment.
The Defendant’s Criminal Antecedents
In 2006, the defendant was at a suburban hotel when an incident occurred on a crowded dance floor. The defendant was accidentally bumped into by another young man. A short time later, the defendant threw a glass bottle at this young man, striking him on the head. The bottle also struck a female patron on the head. The blow to the male victim was severe, causing lacerations that required five stiches. The defendant pleaded guilty to the offence of intentionally causing harm. When sentencing, the Magistrate remarked:
I am sure you have learnt from this incident. You come to court with no prior offending history. You are a young man making your way in life. I am not going to let this incident spoil your future, but I need to underline the seriousness of the charges.
I note that you are working and so I am going to impose a hefty fine on you which I hope will deter you from any future misconduct. Without conviction you will be fined $750 with court costs, levy and prosecution costs.
Can I say this, if in the future there is a sniff of trouble in clubs, hotels or any place you are at, I urge you not to play the “man” but pack your bags, leave and get out of there as soon as you can.
The defendant’s antecedent report also records that, in 2005, the defendant pleaded guilty to the offence of carry an offensive weapon. On this occasion, no conviction was recorded and the matter was dismissed without penalty.
Having regard to these antecedents and the Magistrate’s warning about avoiding trouble in clubs and hotels, the defendant could not expect, in respect of the present offending, the leniency that might be afforded to a first offender.
The Defendant’s Personal Antecedents
When sentenced, the defendant was aged 27 years. He was described by the sentencing Judge as an intelligent and talented man with much to offer the community. The Judge in his remarks noted the good character references tendered on behalf of the defendant. The Judge considered that the defendant had the potential to achieve much in his life and to be successful, providing that he could address his shortcomings. The defendant was employed as a pilot at the Wilpena Pound Resort.
The Judge in his remarks drew attention to the defendant’s problems with alcohol abuse and problems with anger management. The Judge noted that the defendant had taken steps through counselling from the Drug and Alcohol Service to address the problem of alcohol abuse. Further, the defendant had undertaken and engaged in psychological treatment to develop techniques to control his anger. The Judge took into account that the risk of the defendant re-offending was to be considered as low having regard to the manner in which he had addressed his shortcomings.
As the Judge pointed out, the defendant’s criminal conduct was very serious. He attacked, without warning, a complete stranger and did so by using a glass as a weapon. The Judge rejected the defendant’s evidence at trial that he did not realise he had a glass in his hand when he attacked CJS, that he was in a relationship with the woman who was speaking to CJS and that CJS had provoked the attack by pointing and laughing at him. The Judge said:
The jury’s verdict means that you deliberately and knowingly used the pint glass to strike your victim with, intending to cause him harm. Having deliberately used the glass to strike the victim, you were not going to hang about and in doing so you put your own safety ahead of his.
Your actions can be described as cowardly and callous, brought about by intense feelings of jealousy. Your victim did not see you coming, nor did he see the blow you struck him. He had no chance to take defensive action. Your victim did absolutely nothing to you that night to warrant your attacking him in the manner you did.
As the Judge pointed out, unprovoked attacks of violence at hotels, bars and nightclubs are too common. General deterrence is a very important sentencing consideration for this type of offence. In particular, the Judge considered that a strong message should be sent throughout the community that, if a person acts violently in a public place, imprisonment is likely to follow.
The Judge considered that a term of imprisonment should be imposed. As noted earlier, although the defendant denied committing the offence charged, he pleaded to the basic offence of causing harm with intent to cause harm. The Judge considered it appropriate to make a reduction of six months on account of this acknowledgement by the defendant when fixing a term of imprisonment of three years. When addressing the appropriate non-parole period, the Judge said:
I fix a non-parole period of 12 months, which, in the circumstances, I consider to be extremely lenient. I note your personal circumstances, your contrition and remorse for your actions, the fact that you have never been to prison before and, importantly, your commendable efforts at rehabilitation through the treatment you have received from the Drug and Alcohol Services and your psychologist, all justify or merit a merciful approach to the fixation of the non-parole period.
The Judge declined to exercise his discretion to suspend the sentence and in that respect remarked:
However, as I have already remarked, your offence is extremely serious such that, in my view, I am afraid good reason does not exist to justify suspending the sentence I have passed upon you.
On the topic of general deterrence, the Judge said:
Persons like [CJS] are entitled to go out of a night, have a few drinks and enjoy themselves in the company of others without having to worry about someone taking things the wrong way and then acting aggressively and dangerously, as you did.
Unprovoked acts of violence at hotels, bars and nightclubs are becoming far too common. The community is rightfully sick of it and the community deserves protection from those who are not willing or able to control their anger. General deterrence is, therefore, a very important sentencing consideration for offences of this nature. This means sending a strong message throughout the community that if you act violently in a public place, you will be imprisoned.
Further Evidence
Before this Court, the defendant sought to tender evidence not put before the Judge. This evidence consisted of further character statements and a yet to be received addendum medical report from Dr Pam Carroll, the defendant’s psychologist.
Counsel for the Director of Public Prosecutions opposed the receipt of the fresh evidence. It was submitted that the character references could have been obtained with reasonable diligence prior to sentencing and that any report would not shed new light on the material before the sentencing Judge. In regard to Dr Carroll’s addendum report, it was submitted that this was an “update” and did not meet the test for fresh evidence.
This Court may receive further evidence on an appeal “if it considers it necessary or expedient in the interests of justice”.[2] The principles concerning the receipt of fresh evidence were set out in Dorning in the following terms:[3]
In order to justify the reception of fresh evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be apparently credible, but the Full Court will not necessarily decide whether the witness from whom the new evidence is sought is telling the truth: Orchard v. Orchard. See also Reg. v. Parks, cited in In re van Beelen. It was pointed out in In re van Beelen that applications under s 359 to lead fresh evidence are never lightly granted.
[Citations omitted.]
[2] Criminal Law Consolidation Act 1935 (SA) section 359.
[3] R v Dorning (1981) 27 SASR 481, 485-6. See also R v Liosatos [1964] SASR 40; R v Many (1990) 51 A Crim R 54; R v McIntee (1985) 38 SASR 432; R v Goodwin (1990) 51 A Crim R 328; R v Rostom (1995) 83 A Crim R 58; R v Sladic (2005) 92 SASR 36; R v Pickard [2011] SASCFC 134, [41]-[42] (Gray J); [105] (Blue J).
I would refuse permission to tender the additional character references. This evidence would have been available to the defendant with reasonable diligence – the referees who had not previously been contacted to provide a reference for him at trial were his father and his domestic partner. Further, I consider that the statements do not shed new light on matters before this Court or the sentencing Judge.
The Judge’s remarks demonstrate that he had regard to the psychological report of Dr Carroll tendered during sentencing submissions. In particular, the Judge had regard to the fact that the defendant’s mental health was likely to be destabilised in prison. Although reference has been made by the defendant to the possibility that an addendum report would be provided by Dr Carroll, no further report was forthcoming. No submission was advanced to identify how any further report from Dr Carroll could meet the test of fresh evidence.
I would refuse the application to receive any further evidence on this appeal.
Submissions on the Application for Permission
Counsel for the defendant submitted that the sentence was manifestly excessive having regard to the maximum penalty for the offence of 13 years,[4] the defendant’s lack of prior convictions and the defendant’s guilty plea to the lesser charge, which amounted to acknowledgment of the basic facts of the charge. Counsel further submitted that the Judge had erred in the exercise of his discretion.
[4] Criminal Law Consolidation Act 1935 (SA) section 24(1)(b).
Counsel for the Director submitted that the outcome was neither unjust nor unreasonable and that the Judge’s approach did not disclose a misunderstanding as to the facts of this case or of the relevant legal principles.
In my view, the sentence imposed was well within the sentencing discretion of the Judge. As discussed above, the defendant’s criminal antecedents included a previous incident of violence at a hotel with a clear warning by the Magistrate that such conduct should not occur. It is plain that the defendant’s conduct resulted from his difficulty in controlling his anger and his difficulty in controlling his consumption of alcohol. General deterrence is an important consideration when sentencing for this type of crime. The protection of members of the community engaged in lawful association such as socialising in public venues is an important sentencing consideration. The earlier referred to steps taken by the defendant to address his shortcomings are important considerations and were appropriately reflected by the Judge in fixing a merciful non-parole period.
A review of the sentencing remarks discloses that the Judge had regard to all material matters and did not bring into account any immaterial matters. No error of sentencing principle was identified. I do not consider that any basis has been established on which to criticise the Judge’s exercise of his discretion not to suspend the sentence of imprisonment. It is evident that the Judge paid close regard to the personal antecedents of the defendant and to his steps toward rehabilitation. I agree with the Judge that the defendant’s offending was too serious to allow for a suspension of the sentence.
Conclusion
I would refuse permission to appeal. I would also refuse the application to tender further evidence on the application for permission to appeal.
VANSTONE AND PARKER JJ: After a trial in the District Court before judge and jury the applicant was convicted for aggravated causing harm with intent to cause harm. The offence carries a maximum penalty of imprisonment for 13 years. A sentence of three years imprisonment with a non-parole period of 12 months was imposed. The applicant now renews his application for permission to appeal against that sentence, permission having been refused by a single judge of this Court. He also seeks to place before the Court some additional material, mainly references.
For the reasons which follow we consider that permission to appeal should be refused.
Background
The offence was a particularly serious one of its kind. Briefly stated, the facts as found by the sentencing judge were as follows. The applicant and a friend were at the Jetty Bar at Glenelg in the early hours of the morning of 6 January 2013. A young woman in whom the applicant was romantically interested was also there with other friends. At some point after 1 o’clock in the morning, and after the applicant had taken a good deal of liquor, he noticed that young woman talking to another man. He became jealous and angry. He walked up to the man and, without warning, smashed his pint glass into the left side of that man’s face. A significant injury was caused to the victim. He is left with prominent facial scarring as well as psychological sequelae.

This was not the applicant’s first appearance in the courts. In February 2007 he came before the Magistrates Court facing a charge of carrying an offensive weapon, that charge dating back to May 2005. The charge was dismissed without conviction. Then in May 2007 the applicant was again before the Magistrates Court when he pleaded guilty to a charge of causing harm. The incident itself had occurred in August 2006. He was again discharged without conviction, but with a fine imposed. The remarks on penalty made by the magistrate in relation to that matter were before the sentencing judge. They revealed that the applicant had thrown a bottle at another man causing an injury which required five sutures. The magistrate said there was an “element of provocation” involved. With some prescience the magistrate warned the applicant to avoid any “sniff of trouble” which might occur in clubs, hotels or other places in the future.
The applicant was 27 years of age at the time of sentence. He worked as a pilot at the Wilpena Pound Resort in the Flinders Ranges. Material before the Court suggested he is an intelligent man with much to offer. That submission was fortified by references provided to the Court.
Immediately following the present offence the applicant took steps to address the infirmities which led him to behave in this way. He attended a police station on the day after the offence, identifying himself as being responsible for the victim’s injuries. As well, he sought assistance in relation to the abuse of alcohol and anger management. Material before the judge showed that the applicant had consulted a clinical psychologist, Dr Carroll, several weeks after the offence and continued to have counselling from her until the date of sentence. He had also undertaken counselling at Drug and Alcohol Services SA and it was said by a community nurse from that organisation that he had developed a more mature and responsible attitude in relation to the use of liquor. He had written an apology to the victim and had paid an amount of several thousands of dollars to be applied to the fees and charges incurred by the victim for medical attention.
Plainly, there was a good deal to be said in favour of the applicant. He had taken significant steps towards rehabilitating himself. He had a responsible job which he valued and he had the support of friends and family in preventing any future transgressions. It should also be noted that he pleaded guilty to the basic form of the offence (disputing that he intentionally used the glass to hit the victim) and was given some credit by the judge for having acknowledged the physical actions which were the basis of the offence.
All these matters were clearly before the judge and were acknowledged by him in his sentencing remarks. The judge observed that the applicant had much to lose if sent to prison and that the task in sentencing was “no easy decision”.
Arguments on appeal
Nonetheless, it was argued in this Court that the judge erred in the sentence he imposed. Most emphasis was placed on the failure to suspend the sentence. Mr MacFarlane, for the applicant, pointed to the extensive efforts made by the appellant since sentence to rehabilitate himself. He argued that the judge failed to give sufficient weight to the applicant’s efforts. He submitted that the judge placed too much emphasis on general deterrence as opposed to the appellant’s rehabilitation. Mr MacFarlane argued that were this Court to accept those submissions it would be justified in interfering with the sentence and substituting its own view. In support of his contention that this alone would justify this Court’s intervention, counsel referred to Robinson v Police [2014] SASC 155, a decision of Gray J on appeal from the Chief Magistrate, in which the seminal case of House v The King (1936) 55 CLR 499 was discussed, along with statements by Kitto J in Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621, 627, Heydon JA in Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274, [45] and Barton ACJ in Skinner v The King (1913) 16 CLR 336. Mr MacFarlane relied on this statement of Gray J at [22]:
These authorities all recognise that a failure to give sufficient weight in appropriate circumstances is a basis on which an appeal court may interfere with a discretionary order. To adopt the language used by Barton ACJ in Skinner v The King, as approved by the High Court in Lacey, if the Judge has undervalued or overestimated some salient feature, a Court of Criminal Appeal may review the sentence imposed at first instance.
In the event, Gray J did not find occasion to disturb the sentence imposed by the Chief Magistrate.
Mr MacFarlane submitted that this conception of the approach to appellate review was accepted by Sulan J in Noble v Police [2014] SASC 156. There, Sulan J determined an appeal against sentence by a man who had pleaded guilty to assault and theft, both being aggravated offences. The sentence imposed in the Magistrates Court was one of 21 months imprisonment with a non-parole period of nine months. On appeal two grounds were agitated, those being that the sentence was manifestly excessive and that the magistrate erred in failing to suspend the sentence. In the result, Sulan J upheld the second ground saying at [61]:
Having regard to the above considerations, I am of the view that the Magistrate gave insufficient weight to the defendant’s youth and prospects of rehabilitation. I have come clearly to the conclusion that, by reason of the failure to give adequate weight to those considerations, the discretion has been exercised wrongfully.
Sulan J then ordered the suspension of the sentence.
Discussion
The issue of an appellate court’s jurisdiction to intervene on appeals against sentence was examined recently by the Full Court in Police v Chilton (2014) 120 SASR 42. The Full Court, by majority, set aside the orders of a single judge of this Court and restored the sentence of imprisonment imposed by a magistrate.
The offences there were driving whilst disqualified and speeding. The defendant was driving himself from his home in the Onkaparinga Hills to the Riverland, where he was to undertake 14 days work. He said he had arranged for his girlfriend to drive him to work that morning, but she had become unwell on the evening prior. The appellant was stopped by police on the Karoonda Highway. He had a bad driving record which included two offences of driving with an excess blood alcohol level and two offences of driving under disqualification, all offences resulting in convictions recorded during the years 2007 and 2008. The last driving under disqualification had resulted in a sentence of imprisonment of six weeks, but the defendant had apparently been released on a bond after serving 14 days of it. The magistrate imposed a sentence of six weeks imprisonment. The single judge to whom the defendant appealed set aside the sentence and, in its place, imposed a fine and a community service order.
In his reasons for allowing the appeal the Chief Justice referred to a statement of the judge under appeal to the effect that too much emphasis had been placed by the magistrate on the repeated nature of the defendant’s offending and too little weight given to factors of mitigation. The Chief Justice said at [17]:
[If this were] meant literally, the Judge exceeded the bounds of appellate review of exercises of the sentencing discretion. It is not an appealable error, in accordance with the principle in House v The King that a sentencing Judge has placed too little or too much weight on one or more of the applicable sentencing considerations. It is in the very nature of a discretion that different judges will evaluate the considerations relevant to its exercise in different ways.
The Chief Justice likened the grounds upon which the exercise of a discretion could be set aside to the grounds of judicial review, making the point that in neither instance could the decision be vitiated by giving a factor more or less weight than would the reviewing judge: [18]. In this comparison the Chief Justice echoed observations made by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] to [75]. The Chief Justice went on at [20] to observe that neither was it an error such as to attract appellate intervention that the magistrate appeared to “focus almost solely” on one form of sentence over another. The Chief Justice observed:
Of course, it is an error not to consider all of the properly available sentencing options but it must be remembered that a judicial officer’s failure to mention them all does not, of itself, make out that error.
Gray J, in dissent, would have dismissed the appeal from the single judge. At [62] he said it was relevant that the magistrate made no reference to the explanation the defendant gave for driving, that explanation bearing on whether the offence was contumacious. For that reason, Gray J said the magistrate’s “discretion was exercised without having regard to all material facts”.
The High Court has elucidated the principle discussed in House on several occasions, including recently. It is sufficient for our purposes to refer to Dinsdale v The Queen (2000) 202 CLR 321, Bugmy v The Queen (2013) 249 CLR 571 and Kentwell v The Queen [2014] HCA 37.
In Dinsdale the appellant had been convicted for two sexual offences on a child under 13 years. The trial judge imposed concurrent terms of imprisonment which he suspended. Upon a prosecution appeal the Court of Criminal Appeal set aside the sentence and imposed a longer term which was not suspended. The High Court allowed Dinsdale's appeal and restored the original sentence on the basis that the Court of Criminal Appeal had proceeded without identifying House error.
In their reasons for joining in the orders Gleeson CJ and Hayne J remarked at [5] that the grounds agitated in the Court of Criminal Appeal asserting that the judge had “failed to pay proper regard” to sentencing principles and placed “undue emphasis” on personal factors, and that the sentence “failed to adequately reflect the seriousness of the offences” were little more than particulars of the ground that the sentence was manifestly inadequate. Gaudron and Gummow JJ, citing House at [22], identified the question for the Court of Criminal Appeal as: “Was the sentence ‘manifestly wrong’?”
The sequence of events which led to Bugmy’s appeal to the High Court corresponded with that in Dinsdale. A similar observation to that of Gleeson CJ and Hayne J in Dinsdale was made in Bugmy in the joint reasons of the Court, to the effect that assertions that inadequate weight had been placed on particular facts or principles amounted merely to particulars of the complaint that the sentence was manifestly inadequate. Implicitly, such complaints were, without more, incapable of enlivening the Court of Criminal Appeal’s authority to interfere. The Court said at [24]
Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed by Judge Lerve and favoured a more severe sentence. The difference between the Court of Criminal Appeal’s assessment of the appropriate sentence and Judge Lerve’s assessment may be explained by saying that Judge Lerve gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for Judge Lerve. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by Judge Lerve was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant’s subjective case. The power could only be engaged if the court was satisfied that Judge Lerve’s discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards.
(italics added)
In Kentwell the High Court again examined the nature of the error sufficient to enliven the jurisdiction of the Court of Criminal Appeal to interfere in a sentence. The plurality judgment of French CJ, Hayne, Bell and Kean JJ echoed the analysis of Hayne J in AB v The Queen (1999) 198 CLR 111 at 160, where his Honour posited the distinction between “specific error” of the types identified in House, as against manifest excess or inadequacy. The same dichotomy was referred to by Kourakis J (as he then was) in R v Horstman (2010) 269 LSJS 42, where his Honour compared “process errors” with “outcome error”.
The sort of error referred to as “specific” or “process error” is not merely a perceived failure to give appropriate weight to a particular factor. It is an identifiable error of fact or law, which in all but the rare case will be express. Indeed, it is no part of the task of a sentencing judge to expressly ascribe weight to the myriad factors which inform the sentencing process, that is, the instinctive synthesis referred to by McHugh J in Markarian v The Queen (2005) 228 CLR 357. It is very often impossible to discern the relative weight given to a particular factor; and the exercise is rarely profitable.
A submission that the sentencing judge did not give adequate weight to a factor is not, of itself, capable of enlivening the appeal court’s authority to intervene. Such a submission falls short of an assertion that no account was taken of a material consideration. It is not a complaint of specific error. At most, it can form part of a submission that there was manifest error; that is, that only by failing to give adequate weight to the material consideration could the judge have reached a sentence which is so unreasonable or plainly unjust, or, as the High Court recently put it, “outside the permissible range of sentences for the offender and the offence”: Kentwell at [35] set out above.
In our view a complaint about the decision not to suspend a sentence must be subjected to the same process as applies where the length of a sentence is in issue.
A wrongful decision to suspend is a species of manifest inadequacy: Dinsdale at [6] per Gleeson CJ and Hayne J. Where such a complaint is made the question for the appellate court is: “Was it open to the court to suspend the sentence?” Only if the decision to suspend fell outside the range of permissible dispositions – having regard to the nature of the offending and the characteristics of the offender – would it be open to the appellate court to intervene.
We return to the present appeal. As our brief summary of the facts demonstrates, this was an unprovoked and serious offence with enduring consequences. The applicant had relevant prior court appearances. While the steps taken after the offence were positive and such as to engender hope for the applicant’s future, they did not serve to displace proper focus on the gravity of the offence.
There is no suggestion of any specific error in the approach taken by the sentencing judge. As we have pointed out, the contention that inadequate weight was given to the applicant’s claims for leniency does not, of itself, enliven this Court’s jurisdiction. In our view it was open to the judge to impose the sentence he did and to decline to find good reason to suspend the sentence.
We would not receive the additional material tendered by the applicant. It does not answer the requirements of fresh evidence. In any event, it would not affect our view that the application for permission to appeal should be refused.
Conclusion
The orders we make are:
1.the new material tendered is not admitted; and
2.the application for permission to appeal is refused.