R v Marshall
[1990] TASSC 71
•7 December 1990
Serial No 70/1990
List "A"
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: R v Marshall [1990] TASSC 71; A70/1990
PARTIES: R
v
MARSHALL, Timothy John
FILE NO/S: CCA 50/1990
DELIVERED ON: 7 December 1990
DELIVERED AT: Hobart
JUDGMENT OF: Green CJ, Wright and Zeeman JJ
Judgment Number: A70/1990
Number of paragraphs: 64
Serial No 70/1990
List "A"
File No CCA 50/1990
R v TIMOTHY JOHN MARSHALL
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ
WRIGHT J (Dissenting)
ZEEMAN J
7 December 1990
Order of the Court
Application for leave to appeal refused.
Serial No 70/1990
List "A"
File No CCA 50/1990
R v TIMOTHY JOHN MARSHALL
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ
7 December 1990
The respondent was convicted upon his own plea of one count of causing grievous bodily harm contrary to s172 of the Criminal Code and was sentenced to imprisonment for what was expressed to be a period of 1½ years. This is an application by the Crown for leave to appeal against that sentence. The grounds of the application are as follows:
1That the learned Judge erred in fact and in law in failing to give sufficient weight to the aspect of general deterrence when imposing sentence.
2The learned judge erred in fact and in law in that he misdirected himself as to the ingredients essential to establish guilt of the crime of causing grievous bodily harm under s172 of the Criminal Code thereby precluding from his consideration of the facts an intention of the respondent to cause grievous bodily harm and fettering the exercise of his sentencing discretion.
3That the sentence was manifestly inadequate having regard to all the circumstances of the case.
The factual materials presented to the trial judge appear in the reasons for judgment of Zeeman J
The circumstances of this application are not such as to require a detailed examination of the principles which should guide this court in the exercise of its discretion to grant leave to the Crown to appeal against sentence. It is sufficient for present purposes to make the following observations:
1The question of whether leave should be granted is distinct from the question of whether the appeal should be allowed although upon hearing the application for leave to appeal against sentence it is not inappropriate for the court to hear full argument on the appeal as well: Malvaso (1989) 43 A Crim R 451 at pp455 and 456.
2The determination of an application for leave to appeal against sentence involves the exercise of a discretion whereas, although it might involve the exercise of a judgment or the formation of an opinion, the determination of the appeal itself does not involve the exercise of a discretion in the sense in which that expression is usually employed of a process requiring the court to have regard to broad considerations of fairness and justice.
3It should not be overlooked that the observations appearing in the reasons for judgment in Griffiths v The Queen (1977) 137 CLR 293 and in R v Tait (1979) 46 FLR 386 at pp388 and 389 which was applied by this court in R v Dowie 41/1989 ([1989] Tas R 167) about some of the policy considerations which should inform the way in which courts of appeal approach Crown appeals against sentence were made in cases in which the Attorney General had a right to appeal against sentence without the necessity of obtaining leave. However that is not to say that those observations may not also be relevant to the way in which the discretion to grant leave to appeal against sentence should be exercised which it appears was the view taken by Deane J and McHugh J in Malvaso (supra) at p456.
4It is obvious that the principles governing the determination of the issue of whether the exercise of a sentencing discretion has been vitiated by error must be the same irrespective of whether the appellant is the accused or the Crown.
I turn to consider the application.
Ground 1
That the learned Judge erred in fact and in law in failing to give sufficient weight to the aspect of general deterrence when imposing sentence.
Nothing put to the court suggests that the learned trial judge overlooked this objective of sentencing. In order to sustain this ground the applicant would therefore have to show that it was manifest from the sentence itself that insufficient weight was given to general deterrence. The sentence imposed was a sentence of actual imprisonment for a not insubstantial period. Nothing put to the court has persuaded me that the deterrent effect which this sentence would have upon potential offenders was such that it could be said that the learned trial judge erred in either of the respects alleged in this ground.
Ground 2
The learned judge erred in fact and in law in that he misdirected himself as to the ingredients essential to establish guilt of the crime of causing grievous bodily harm under s172 of the Criminal Code thereby precluding from his consideration of the facts an intention of the respondent to cause grievous bodily harm and fettering the exercise of his sentencing discretion.
When imposing sentence the learned trial judge said:
"You have pleaded guilty to the crime of causing grievous bodily harm. ... It is clear that you intentionally took the knife and went outside the house to seek him out for the purpose of injuring him with it. But, you cannot be sentenced as if you had been convicted for a crime against s170 of the Criminal Code, which is the crime of committing an act with the specific intention of causing grievous bodily harm, because that is not the crime of which you have been convicted. However, it is clear that you knew that you might well cause grievous bodily harm to him and notwithstanding that knowledge you chased him with the knife and inflicted a most grievous injury."
That statement is on its face quite unexceptionable. The respondent was not convicted of a breach of s170 of the Criminal Code and plainly it would have been wrong to have sentenced him as if he had. However it does appear that the learned trial judge was also holding that as the respondent was convicted of a breach of s172 of the Code it would not have been open to him to sentence the respondent upon the basis that he had intended to cause grievous bodily harm. As a statement of law that was with respect an incorrect statement. The mental element of the crime of which the respondent was convicted may be either that he intended to cause grievous bodily harm or that he foresaw that it was likely that grievous bodily harm would result: Vallance v The Queen (1961) 108 CLR 56; R v Bennett 17/1990 ([1990] Tas R 72). I turn to consider the question of whether the trial judge's statement constituted a material or vitiating error.
The plea of guilty constituted an admission that the respondent had one or other of the mental elements of the crime created by s172 to which I have referred. In the course of presenting the facts to the trial judge counsel for the Crown asserted that it was the Crown case that the respondent "did intend to inflict some injury upon" the complainant. Counsel also relied upon the record of an interview which had been had with the respondent as part of "the history of the matter" and in particular placed reliance upon the following question and answer:
Q"Did you also believe that if you did connect with the knife on Burton's body that you would cause serious injury or harm to him bearing in mind you knew how sharp the knife was?"
A"Yes."
The difference between the culpability of a person who commits a breach of s172 recklessly and that of a person who does so with the intention of causing grievous bodily harm is significant. It follows that in order to ensure that the sentencing discretion is exercised properly and the accused is fairly apprised of what is being alleged against him it is essential that if the Crown case is that an accused person charged with a breach of s172 intended to cause grievous bodily harm counsel should assert that that is the case explicitly and unequivocally. In this case the statement by counsel that the Crown case was that the respondent "did intend to inflict some injury" and his reference to the respondent's bald assent to a very leading argumentative question which did not precisely raise the critical issue of whether the respondent stabbed the complainant with the intention of causing him grievous bodily harm did not constitute a sufficiently explicit and unequivocal assertion by the Crown to justify the learned trial judge acting on the basis that the respondent stabbed the complainant with the intention of causing him grievous bodily harm.
In my view the learned trial judge was correct in declining to sentence the respondent on the basis that he stabbed the complainant with the intention of causing him grievous bodily harm and his incorrect statement of the law was not therefore a vitiating or material error.
Ground 3
That the sentence was manifestly inadequate having regard to all the circumstances of the case.
This was a serious crime which was committed with a degree of persistence and deliberation and which involved the use of a lethal weapon and the infliction of serious injuries. However the learned trial judge was also required to take into account the following factors:
1The initial altercation between the respondent and the complainant was provoked by the complainant when he said to the respondent that he wanted to talk to him and then grabbed him by the throat causing some injury.
2Both before and after he was initially approached and assaulted by the complainant the respondent sought to avoid any conflict or further conflict with the complainant and made arrangements to leave the house.
3The respondent was a youthful offender with only one prior conviction for an offence of violence.
4The sentence was within the range of sentences usually imposed in Tasmania for breaches of s172.
In my view bearing in mind the above factors I am not persuaded that the Crown has discharged the burden which it has assumed of showing that it is "manifest" that the sentence "is out of all proportion to any view of the seriousness of the offence which could reasonably be taken" or that "the nature of the sentence itself when considered in relation to the offence and the circumstances of the case (is) such as to afford convincing evidence that in some way the exercise of the discretion has been unsound"—per Dixon J, Evatt J and McTiernan J in Cranssen v The King (1936) 55 CLR 509 at p520.
I am not persuaded that any of the grounds relied upon can be sustained.
I would refuse the application for leave to appeal.
File No CCA 50/1990
R v TIMOTHY JOHN MARSHALL
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WRIGHT J
7 December 1990
On 20 June 1990 the respondent Timothy John Marshall, pleaded guilty to one count of causing grievous bodily harm contrary to s172 of the Criminal Code. This charge arose out of an incident which occurred on 15 December 1989 when the respondent armed himself with a sharp boning knife, sought out the complainant, pursued him around a motor vehicle which was parked outside a house and, leaning across the bonnet of the vehicle, inflicted a significant wound to the left rib area of the complainant. The injuries inflicted were very severe indeed and the complainant almost died as a consequence.
The respondent was interviewed and admitted the offence. In stating the facts on behalf of the Crown the Director of Public Prosecutions said this:
"The accused was taken to the police station he was spoken to prior to the interview and some of that pre–interview discussion is relevant because it is not part of the Crown case that the accused intended to kill the complainant but rather that he did intend to inflict some injury upon him."
Later in the course of referring to the facts he referred to the record of interview and in particular to a number of questions and answers relating to the respondent's intent.
Counsel for the respondent, in the course of his plea in mitigation did not seek to suggest that his client's state of mind was other than as expressed in the record of interview. The learned Director of Public Prosecutions submits that in light of the material contained in the record of interview it is plain that the Crown was putting its case on the basis that the respondent actually intended to inflict grievous bodily harm upon the complainant.
Counsel for the respondent however submitted that in choosing to rely upon the respondent's own words the Crown had not made it clear that it was putting the case on this basis. Mr Porter, counsel for the respondent pointed out that in questioning the respondent about his belief in question 110, the interviewing police officer had failed to advert to the question of the respondent's "intent" rather than his "belief" at the time that the incident occurred.
In my opinion this is a distinction without substance in the circumstances of this case. The evidence as to the incident and the whole of the respondent's narrative as to how the injury was inflicted upon Burton indicates that the respondent intended to cause him serious injury. In my opinion no other inference would be reasonable in the circumstances.
The learned Director of Public Prosecutions submits that the learned sentencing judge, erred both in fact and in law in misdirecting himself as to the ingredients essential to establish guilt of the crime of causing grievous bodily harm under s172 of the Code in that he failed to give proper recognition to the fact that since R v Bennett 17/1990 ([1990] Tas R 72) it is plain that under the Criminal Code, a s172 offence of causing grievous bodily harm may be proved where the Crown establishes either an actual intent to cause that degree of bodily harm or proves that such a degree of bodily harm had been adverted to by the offender who went ahead regardless of that prospect. The learned Director of Public Prosecutions also submitted that much of what had fallen from the Court of Criminal Appeal in Lovegrove's case [1961] Tas SR required qualification or review and that the learned sentencing judge had wrongly precluded himself from considering that on the facts an intention had been demonstrated on the part of the respondent to cause grievous bodily harm. He said that the learned sentencing judge had therefore improperly fettered the exercise of his sentencing discretion.
This ground of appeal has now been incorporated in the amended ground 2. It was amended without objection during the course of proceedings before this court. A query was raised as to whether or not the factual foundation for the allegation contained in the amended ground was established. In my opinion it was. It is quite plain from what Crawford J said at p66 of the Appeal Book that he regarded himself as precluded from looking at the crime as though it had been accompanied by an actual intention to cause serious injury and was constrained to look at it as though there was only a possibility that the accused was conscious that grievous bodily harm may be caused to Burton. I think this is the correct conclusion to be drawn from what is stated in the first paragraph of the learned judge's comments upon passing sentence and is based upon what was said by Neasey J in Bennett. Whether Neasey J was correct in saying that the intention in s172 was not a "specific" intention perhaps does not need challenge or clarification at the present time because it is clear that Crawford J was regarding himself as precluded from considering an intent of any kind to cause grievous bodily harm. The genesis of this attitude may be seen in what he said at p3 of his own judgment in Bennett where he suggested that there would be a necessity to adopt "an artificially restricted view of the facts".
Accepting as I do that it is one of the alternative ingredients in the charge of causing grievous bodily harm that the offender may be shown to have had an actual intent to bring about that consequence, I do not regard anything that was said in Causby, DiSimone or Lovegrove as fettering a sentencing judge in the way that his Honour seems to have considered that he was fettered. I think it is entirely proper, indeed essential, for a sentencing judge to consider the way in which the evidence establishes that the crime was committed, although, clearly, he may not then inflict a penalty which is out of range with the penalties which may be imposed under the particular section of the Code pursuant to which the offender is convicted. This is the only substantial way in which a distinction between s170 and s172 should be maintained.
Counsel for the respondent argued that the question of special leave required particular consideration in the instant case. Reliance was placed upon what was said by this court in The Queen v Dowie (1989) 42 A Crim R 234 and by Deane and McHugh JJ in the High Court of Australia in Malvaso v The Queen (1989) 168 CLR 227 at p234. It was put to us that a Crown appeal against sentence, of itself exposes an offender to an unfair species of double jeopardy, but in my opinion, there is no warrant for regarding this as a factor to be accorded disproportionate weight or separate evaluation in deciding whether or not to grant leave to the Crown in an application of this kind. In Davern v Messel (1984) 53 ALR Gibbs CJ said, at p9:
"The rule against double jeopardy is not a mere fetish, an empty formula to be applied blindly in all circumstances. It exists, as I have said, to ensure fairness and prevent oppression."
There is no doubt that considerable room exists for the exercise of discretion by an appellate court before which a review of sentence is sought, and leave should not be granted to the Crown to appeal where its conduct may be seen as oppressive or unfair in the individual circumstances of the case. It seems to me that the Federal Court said no more than this in The Queen v Tait and Bartley (1979) 24 ALR 473 at p476–477. Furthermore it is the conclusion reached by Underwood J in Dowie at p244 after a lengthy review of those recent cases in which the double jeopardy principle has been discussed in relation to Crown appeals. His Honour said:
"Should there arise on a Crown appeal against sentence a real prospect of unfairness or injustice by allowing an appeal from a sentence imposed as a result of an erroneous exercise of the sentencing discretion, that fact should be taken into account and the appeal dismissed."
This however represents a far cry from accepting the existence of some general principle that to seek a review in itself creates oppression or injustice to an individual offender, which in turn invests him with a legitimate interest in retaining the benefit of an inadequate sentence. An uncritical acceptance of the obiter dicta of Deane and McHugh JJ in Malvaso (1989) 64 ALJR 44 at p47 may tend to suggest this, but it seems to me that if a sentence is indeed manifestly inadequate, it will be a rare case in which leave to appeal should be refused to the Crown on the basis of unfairness to the respondent.
The most important and effective source of control over a plethora of Crown appeals is, in my opinion, to be found in giving full recognition to the principle that a sentencing judge has a wide discretion and choice in the penal sanctions which he may implement, and it is for this reason that it may properly be said that Crown appeals should only succeed in "clear" or "rare" cases (see The Queen v Hancox 46/1980).
In my opinion, recognition should also be given to a further principle which should guide this court in considering whether or not to allow Crown appeals in cases of the present kind. In my view, allowing a plainly inadequate sentence to stand has a severely detrimental effect upon good order and public confidence in the criminal justice system. Such a process also has an insidious secondary result by adding to the general data base of sentences. An inadequate penalty encourages lighter and lighter sentences to be imposed as the years go by, particularly if resort is had to the so called "tariff principle". A weakly merciful or inappropriately lenient sentence saps public respect for the criminal justice system, and in addition, it has a demeaning effect upon the victim of crime. The criminal victim, already an individual much neglected by the legal system, is encouraged to foment discontent with the legal process, and in extreme cases, to take the law into his own hands and exact a personal vengeance. In my opinion, victims of crime are entitled to expect vindication from the sentence of the court. Their feelings of hurt and violation should not be aggravated by inadequate punishment, and the penalty imposed should not encourage them to seek their own retribution upon the offender. Additionally, an inadequate sentence tends to reinforce upon a traumatised victim the notion that he or she is a worthless individual, and this can greatly fetter the recuperative process which is so necessary after an incident of severe shock or injury.
These factors are often given too little weight in the imposition of sentence whereas, in my opinion, they need to be steadfastly borne in mind. It is already generally perceived, and in some cases with considerable justification, that the parole system enables the premature release of serious offenders. Indeed, many would say that the purpose of supposedly deterrent sentences is considerably undermined and neutralised by the parole system. If a deterrent or denunciatory sentence is to achieve the desired effect upon potential offenders, it must be seen to be implemented rather than circumvented by subsequent semi–secret processes which are not subject to public scrutiny. In the face of these considerations, undue reliance should not be placed upon vague and ill defined notions of "fairness" or "decency" towards the offender which had their roots in history when draconian punishments were the norm.
I return therefore to consider whether or not leave to appeal should be given in this case. It is plain that the learned sentencing judge misdirected himself as a matter of law. Furthermore, I think that he fell into error as a result of what was said in Bennett's case rather than as a consequence of any shortcoming in the presentation of the case for the prosecution. In these circumstances, I can see no unfairness or injustice to the respondent in reviewing his sentence and I would therefore grant leave to appeal.
This however, is not an end of the matter. It is necessary now to consider grounds 1 and 3 of the Notice of Appeal which raise the question of whether or not the sentence appealed from was manifestly inadequate.
The respondent had a bad record but mainly for offences of dishonesty. His prospects of rehabilitation were very poor and he was no stranger to gaol. In these respects he may be contrasted with Bennett. Furthermore, Bennett was convicted of wounding and not of causing grievous bodily harm and in addition he was convicted of a number of other crimes. Bennett was entitled to no discount for pleading guilty, whereas the present respondent was. Bennett was under the influence of liquor and drugs at the time that he acted as he did and he acted spontaneously, whereas there was an element of premeditation in the present case. The cases can therefore be seen to be not directly comparable although up to a point the learned Director of Public Prosecutions is correct when he says that some of the adverse circumstances of one case tend to cancel out the favourable aspects of the other and vice versa. However Bennett is only one case amongst a number in recent years which could be used for comparative purposes in assessing an appropriate sentence for the respondent.
I believe that the sentence actually imposed upon the respondent was considerably less than I would have imposed in the circumstances. In my experience it is frequently young offenders who commit serious crimes involving the use of a lethal weapon such as a knife and it is therefore plainly consistent with what was said in The Queen v O'Brien, No 43/1987 to impose a sentence involving a strong element of personal and general deterrence. Notwithstanding this factor the learned sentencing judge had a wide discretion open to him and there were a number of factors, including the previous relationship between the complainant and the respondent and his mother, which made this a somewhat difficult sentencing exercise.
Therefore, although satisfied that the sentence imposed was at the lower end of the appropriate range I am not persuaded that it was manifestly inadequate in all the circumstances.
I would grant special leave to appeal but I would dismiss the appeal.
File No CCA 50/1990
R v TIMOTHY JOHN MARSHALL
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ZEEMAN J
7 December 1990
This is an application on the part of the Attorney–General for leave to appeal against a sentence of eighteen months' imprisonment imposed upon the respondent for the crime of causing grievous bodily harm.
The grounds upon which the application is made (as amended) are in the following terms:
1That the learned Judge erred in fact and in law in failing to give sufficient weight to the aspect of general deterrence when imposing sentence.
2That the learned Judge erred in fact and in law in that he misdirected himself as to the ingredients essential to establish guilt of the crime of causing grievous bodily harm under s172 of the Criminal Code thereby precluding from his consideration of the facts an intention of the Respondent to cause grievous bodily harm and fettering the exercise of his sentencing discretion.
3That the sentence was manifestly inadequate having regard to all the circumstances of the case.
The respondent was presented on an indictment whereby he was charged with the crime of attempted murder and in the alternative with the crime of causing grievous bodily harm. The respondent pleaded guilty to the crime of causing grievous bodily harm, which plea was accepted by the Crown in discharge of the indictment.
It is appropriate to reproduce the provisions of the indictment relating to the crime to which the respondent pleaded guilty. It was in the following terms:
"STATEMENT OF CRIME
First Count
CAUSING GRIEVOUS BODILY HARM – Contrary to Section 172 of the Criminal Code.
PARTICULARS
TIMOTHY JOHN MARSHALL at Launceston in Tasmania on or about the 15th day of December 1989 did cause grievous bodily harm to Timothy James Burton by stabbing him in the chest with a knife thereby wounding and causing serious internal injuries to him."
As developed in argument, the second ground seeks to maintain the following propositions:
(a)that the learned judge should have taken into account in the sentencing process the fact that there had been an actual intention on the part of the respondent to cause grievous bodily harm to the complainant;
(b)that the learned judge did not take that into account, but expressly excluded it from his consideration;
(c)that therefore the discretion of the learned judge miscarried.
It was submitted that the error contended for is to be found in certain of the comments made by the learned sentencing judge upon passing sentence upon the respondent. Those comments were in the following terms:
"You have pleaded guilty to the crime of causing grievous bodily harm. Your victim was lucky not to die. He stopped breathing three times and he almost bled to death. It is clear that you intentionally took the knife and went outside the house to seek him out for the purpose of injuring him with it. But you cannot be sentenced as if you had been convicted for a crime against s170 of the Criminal Code, which is the crime of committing an act with the specific intention of causing grievous bodily harm, because that is not the crime of which you have been convicted. However, it is clear that you knew that you might well cause grievous bodily harm to him, and notwithstanding that knowledge, you chased him with the knife and inflicted a most grievous injury.
......
Despite your relative youth, you must be sentenced to a term of imprisonment reflecting the serious injury caused by you and the intentional use of the knife as a weapon, knowing that grievous bodily harm might result."
It was implicit from the respondent's plea of guilty to the crime of causing grievous bodily harm that he was admitting either that at the time he committed the act relied upon that he intended to cause bodily harm of that kind or that at that time he foresaw the likelihood that bodily harm of that kind might be caused. His plea did not carry with it a necessary admission that he had one such state of mind rather than the other. The applicant's complaint is that the learned sentencing judge proceeded upon the basis that the plea of guilty necessarily admitted the latter state of mind to the exclusion of the former.
In his written submissions, counsel for the respondent submitted that it was not open to the learned sentencing judge to sentence the respondent on the basis that the respondent had intended to do grievous bodily harm as that would have constituted a crime under s170 of the Criminal Code. As I understand the oral submissions made by counsel such a proposition was not sought to be maintained. I consider that such a proposition would be untenable. In this context the decision of this court in Lovegrove v R [1961] Tas SR 106 was the subject of some discussion during argument. I do not consider that case to create any difficulty. It appears that the applicant in that case was presented upon an indictment containing two counts, a first charging attempted murder and a second charging the causing of grievous bodily harm contrary to s172 of the Criminal Code, and that he was acquitted on the first count and convicted of wounding on the second count, presumably upon the basis of s341 of the Code which was capable of being relevant (see Bauer v R [1987] Tas R 166, at p176). It is apparent that the same act of wounding formed an ingredient of each of the crimes charged. Lovegrove is authority only for the propositions that a sentencing judge cannot proceed upon a basis which is inconsistent with the verdict of the jury or upon a basis of importing an element which is not an element of the crime of which the accused person stands convicted. Neither proposition has application in the present case.
A plea of guilty to the crime of causing grievous bodily harm does not necessarily require the accused to be sentenced upon the basis that he did not intend to cause grievous bodily harm. The crime may be constituted by elements which include such an intention.
In making the observations to which I have referred, his Honour may have had in mind what he said in R v Bennett, Serial No 17/1990 at p3 ([1990] Tas R 72):
"So in this present case, it would not have been correct for the learned trial judge to sentence the respondent under s172 upon the basis that the wound had been administered with intent to maim, disfigure or disable Mr Allie, or to do any grievous bodily harm to him, or to resist or prevent his lawful arrest or detention, because they are elements of the s170 crime with which he was not charged but not necessary elements of the s172 crime."
That observation restated the principle that it is not open to a sentencing judge to sentence an accused person upon a basis which assumes guilt of a more serious offence (R v De Simoni (1980–81) 147 CLR 383). It must be contrasted with the situation, as in the present case, where the crime charged may be constituted by alternative elements, at least in part. Reference might be had to R v Ribas (1976) 63 Cr App R (S) 147 and R v Cooke (1987) 9 Cr App R (S) 116. I have concluded that the comments made by the learned judge, which I have set out, do have the effect of excluding from consideration in the sentencing process the proposition that the respondent, at the time he committed the act particularised in the indictment, intended to cause grievous bodily harm. It proceeds upon an assumption that it was not open to the learned judge to sentence the respondent upon the basis that he had had the specific intention of causing grievous bodily harm. As a matter of general legal principle that was an erroneous assumption.
Nevertheless it is necessary to examine the materials which were before the learned judge. If those materials indicate that the matter was presented to him upon the basis of the respondent having foreseen the likelihood of grievous bodily harm being caused rather than upon the basis of the respondent having had an intention to cause grievous bodily harm, the comments made by the learned judge, whilst being erroneous in so far as they were intended to express legal principle, would nevertheless have been correct as a matter of fact in the circumstances of this case.
In order to analyse what materials were before the learned judge, it is necessary to summarise what he was told as to the circumstances leading up to the relevant incident. At some time prior to the incident and at a time when the respondent was serving a term of imprisonment, a male friend of the respondent's mother was living at a house also occupied by the complainant. The complainant evicted this male friend from the house and in the process of that occurring, the respondent's mother became involved and fell down the back steps of the house as the male friend was evicted. The respondent came to hear of that incident whilst in prison. That knowledge engendered a feeling of anger in his mind, he holding the complainant responsible for his mother's fall. On the day of the incident, the complainant and a female friend arrived at a house occupied by one Dwayne Smith. A short time later, the respondent also arrived at this house in the company of Smith. Some animosity on the part of the respondent towards the complainant became apparent. The respondent decided that he would leave the house and telephoned for a taxi. Prior to the taxi arriving, the respondent decided to go to the toilet in the house and went towards that from the loungeroom through a hallway. As the respondent entered the hallway from the loungeroom, the complainant indicated that he wished to talk to the respondent. The respondent made it plain to the complainant that he did not wish to talk to him. The complainant then grasped the shirt of the respondent, saying that he wanted to talk to him, and some sort of a scuffle developed. Smith intervened and told the complainant to leave. The complainant and his female friend, who was the sister of Smith, went outside the house into the street. The taxi, which had been ordered by the respondent, arrived. There was some discussion about Smith and his friend travelling in the taxi. In the event they did not do so, and the taxi departed. Thereafter, for some short period of time, the complainant and his female friend sat on the fence of a neighbouring property. The friend then returned to the house. As a result it became apparent to the respondent that the complainant and his friend had not left. He went to the kitchen in the house, and in particular to a drawer where Smith kept a number of sharp knives which he had used whilst employed as a slaughterman at abattoirs. The respondent removed one of the boning knives from the drawer and left by the back door. He chose the back door because he believed that if he had gone to the front door, which required him to pass through the loungeroom, he would have been stopped by Smith from going outside. The respondent, taking the knife with him, intended to seek out the complainant and to confront the complainant about the perceived wrong which had been done to the respondent's mother. Initially the respondent could not find the complainant either in the vicinity of the house or in the street. He returned to the house by way of a carport in the vicinity of the back door when he saw the complainant near the carport. The respondent had the knife with him, but he held it in a way which concealed it. He started to chase the complainant around a Valiant station wagon which was parked in the driveway. The respondent revealed the knife during this chase, and lunged across the bonnet of the car at the complainant. In a backhanded motion he stabbed the complainant in the left rib chest area.
Having stated those facts to the learned judge, the learned Director of Public Prosecutions then dealt with certain confessional material, prefacing that reference with the observation that "it is not part of the Crown case that the accused intended to kill the complainant but rather that he did intend to inflict some injury upon him ......." The confessional material consisted of a proof of evidence of Detective Sergeant Patrick Groves and a record of an interview which Detective Sergeant Groves conducted with the respondent.
The proof of evidence, which set forth conversations between Detective Sergeant Groves and the respondent and between Detective Hinds prior to the recorded interview, included the following material:
"I said,'Were you involved in an incident at Clarendon Street in which a person was stabbed?'
He said, 'Yea, he should have gone when he had the chance'.
I then warned the deft and said,
'I want to speak to you about it back at my office at the Police Station'.
He said, 'Yeah I don't care'.
He was then taken to the rear of the Police vehicle and was seated between myself and Det IC Const Cowling.
We then proceeded to the Police Station. On the way the accused said,
'How is Burton anyway, the person who was stabbed?'
I said, 'I'm not sure but there is an ambulance taking him to hospital'.
He said, 'He deserved all he got for what he did to mum 'n that'
I said, 'We'll talk about all that at the Station'.
He said, 'Please yourself, but he did'.
......
I said, 'What happened?' and reminded him of the earlier warning.
He said,'Went out about half past nine, went to St Leonards got a carton and came home. My sister said Tim Burton was there and not to start anything. I went inside and had a piss then in the bathroom, he wanted to talk to me and I said, fuck off I don't want to talk to you'.
I said, 'What happened then?'
He said,'He got me by the throat and I scruffed him and we were broken up and a taxi was called for him and he pissed off, or he should have'.
I said, 'What then?'
He said, 'He's come back his girlfriend said'.
Det Birk said 'Who's his girlfriend?'
He said, 'Michelle Smith'.
I said, 'What happened then?'
He said,'Got a knife out of the drawer and went outside and down the road and back up and he was in the carport. Told him to fuck off. He wouldn't go so I got him with the knife and everybody jumped on me, then I went back inside'.
......
I said, 'What happened after you got him with the knife?'
He said, 'Got 2 bottles out of the fridge and rang a taxi'.
I said, 'Did you know you had hurt him?'
He said,'They said blood was coming out of him so I went inside. Could have killed him, didn't care, he shouldn't have belted me mum the cunt'.
......
I said, 'Did Burton say anything when you had the knife?'
He said, 'He called me a fucken mad cunt'.
I said, 'Did you say anything to him?'
He said,'I was chasing him and told him to come down here but I had the knife hidden'.
I said, 'Was the knife sharp?'
He said, 'Porky's knives are always sharp, he used to work at the abattoirs'.
I said, 'Did he say anything else to you?'
He said,'He kept calling me a mad cunt, after he was stabbed I went inside'.
......
Det Hinds said, 'How were you holding the knife when you were chasing him?'
He said, 'Still holding it down'.
Det Hinds said, 'Why were you concealing it if you wanted to frighten him?'
He said,'So he couldn't see it. Wanted to get closer to him to get him, and that was it. That's not the first time he's bashed women. He deserved it. You know Michelle came back and went inside. She hung around as she wanted more grog'.
Det Hinds said, 'Was anything said?'
He said, 'She told me sister Tim's gone he's out there'.
Det Hinds said, 'What happened then?'
He said,'Got the knife out and went out the back door, couldn't go out the front or me sister and Porky would have stopped me. He made me wild doing what he did to mum and then scruffing me by the neck the cunt. I showed him the knife when he got close, I held it up that's why he took off around the car'."
The record of interview contained the following questions and answers:
"Q83What did you decide to do?
ATake a knife out of the drawer to go after him.
Q84Where is the drawer located?
ANear the stove in the kitchen where all the sharp knives are kept.
Q85Did you go and get a knife?
AYeah, I went and got Porky's boning knife.
Q86What did Porky use the boning knife for?
AHe was a slaughterman, boner and the lot when he used to work at the abattoirs.
Q87Did you know if the knife was sharp or not?
AYes it was sharp as he always keeps them real sharp and keeps them in a different drawer so my little niece won't cut her hand when she goes to the drawer to get out her knife and fork.
Q88I will now show you a black handled boning knife, is that the knife that you took out of the drawer? (Shown knife).
AYeah.
Q89What did you do when you got the knife?
AWent out the back door to go looking for him.
Q90By that do you mean to go looking for Tim Burton?
AYeah.
Q91Why did you go out the back door and not use the front door?
ABecause I knew that Porky would have stopped me going out and I didn't want that to happen as he had already stopped me having a go at him in the passage.
Q92Why did you take the knife to go after Tim Burton?
ATo have a go at him with it because of what he had been mouthing off about and to show him once and for all.
Q93Do you know if anyone saw you leave the house?
AThere was no–one in the kitchen when I went and if anyone had of seen me I reckon they would have come after and no–one did.
Q94What did you do when you went outside?
AWalked up and down the street looking for him.
Q95Where did you have the knife?
AHidden between me arm and me body like this. (Demonstrated right arm clenched beside body).
Q96Why did you have the knife hidden like this?
AIf I saw him I wanted to get close enough to him before he saw it.
Q97Did you see him at all?
ANot until I was about to go back inside and I saw him in the carport as I was coming up the driveway.
Q98What was in the carport other than him?
APorky's valiant.
Q99How far away was you from Burton when you saw him?
AAbout 5 metres.
Q100Did you still have the knife hidden between your arm and your body at this stage?
AYeah.
Q101Did you say anything to Burton or did he say anything to you?
AI don't know if I said anything I was that bloody wild but I remember him saying to me your fucking mad.
Q102What did you do after he said this.
AI went right off and started chasing him around the car with the knife trying to get him with it.
Q103How was you holding the knife when you were chasing him?
ALike that. (Demonstrated that knife in his right hand with blade pointing out from body).
Q104Were you able to catch him when you were chasing him around the car?
ANo I finished up leaning across the bonnet and getting him with the knife that way.
Q105What do you mean by 'getting him with the knife that way'?
AStabbed him with it that way. (Demonstrated back hand motion with his right hand).
Q106Do you know where you stabbed him?
ASomewhere around the ribs.
Q107How many times did you stab at him?
AOnly the once.
Q108The once that you did stab at Burton did you intentionally stab at his body?
AYes.
..........
Q110Did you also believe that if you did connect with the knife on Burton's body that you would cause serious injury or harm to him bearing in mind you knew how sharp the knife was?
AYes.
Q111How did you know that the knife had connected with his body and stabbed him?
AI seen the blood and he kept saying your fucken mad.
Q112How many times did he say 'your fucken mad'?
AA couple of times.
..........
Q124Do you know how far you stabbed the knife into him?
AWouldn't have a clue.
Q125Do you know how much force you used when you stabbed him?
AIt didn't take much it was a sharp knife.
Q126Do you remember pulling the knife out of Burton after you had stabbed him?
AIt was just in and out."
At no time did counsel for the applicant tell the learned sentencing judge in express terms what was the Crown case as to the respondent's state of mind at the time that he stabbed the complainant. That issue appears to have exercised his Honour's mind, having regard to the following exchange with counsel who appeared for the respondent before his Honour, which exchange was in the following terms:
"HIS HONOUR: What was his state of mind when he stabbed him? Or don't your instructions go to that?
MR COOPER: They don't go to that your Honour.
HIS HONOUR: So you're not going to tell me what his state of mind was?
MR COOPER: Well no your Honour, other than to say that it was never his state of mind, and the Crown's expressly disavowed this of course, to kill him.
HIS HONOUR: Yes but you seem to be avoiding telling me what his state of mind was but you don't have to tell me, that's a matter for you.
MR COOPER: No it's in the record of interview your Honour.
HIS HONOUR: Well you're not telling me yourself?
MR COOPER: No."
The only answers in the record of interview going in a relevant way to the intention of the respondent are those to questions 108 and 110. Whilst it might be said that those answers whether read separately or in conjunction with one another do not precisely state an intention to cause grievous bodily harm, I consider that in the total context, they might be so construed. The respondent admitted to having stabbed the complainant with a knife which he knew to be particularly sharp. His plea of guilty admitted that the act of stabbing was a voluntary and intentional act on his part. At the time he committed that act, he believed that if it connected with the respondent's body, it would cause serious injury or harm to the complainant. It was open to conclude as a matter of fact that the respondent had intended to cause grievous bodily harm. The statement by the learned Director of Public Prosecutions as to the basis of the Crown case was silent in a critical way as to the state of mind on the part of the accused referring, as he did, only to "some injury". His Honour did not raise this matter except in an indirect way by the exchange with counsel for the respondent to which I have referred. Whilst not relevant to what occurred before his Honour but as being indicative of the Crown not clearly defining what it was that was alleged against the respondent, I observe that in his written submissions the applicant asserts that "[t]his was a serious crime committed when the respondent .... attacked [the complainant] with the knife knowing that grievous bodily harm might result" (my emphasis).
I have earlier expressed my conclusion that the learned sentencing judge erred in proceeding upon the basis that as a matter of law he was precluded from sentencing the respondent upon the basis that the respondent intended to cause grievous bodily harm. I conclude that as a matter of fact that it was open to his Honour to sentence the respondent upon the basis that he intended to cause grievous bodily harm. It does not follow as a matter of course that leave to appeal should be granted to the applicant upon the basis of ground 2. Further considerations arise. The relevant principles were expressed by the Federal Court of Australia in R v Tait (1979) 46 FLR 386. Those principles were adopted by the majority in this Court in R v Dowie (1989) 42 A Crim R 234. In Tait the Court said this (at p388):
"Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time–honoured concepts of criminal administration' (per Barwick CJ in Peel v The Queen (1971) 125 CLR 447, at p452). A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal' (per Isaacs J in Whittaker v The King (1928) 41 CLR, at p248). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court.
It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown's presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error. The Crown has been said not to be concerned with sentence (see eg Lawrence J in Paprika Ltd v Board of Trade [1944] 1 KB 327, at p332, but when a statutory right of appeal is conferred upon the Crown, that proposition must be more precisely defined. It remains true that the Crown is required to make its submissions as to sentence fairly and in an even–handed manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence. The Crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant's case so far as it appears to require it. If the proposition that the Crown is not concerned with sentence was ever construed as absolving the Crown from this duty, it cannot be so construed when a Crown right of appeal against sentence is conferred. The Crown is under a duty to assist the court to avoid appealable error. The performance of that duty to the court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it. A failure by the Crown to discharge that duty may not only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting a case which might ultimately be made on appeal. It would be unjust to a defendant, whose freedom is in jeopardy for the second time, to consider on appeal a case made against him on a new basis – a basis which he might have successfully challenged had the case against him been fully presented before the sentencing court. As McClemens CJ at CL said in R v Jacombe Unreported (New South Wales Court of Criminal Appeal, 19th December 1974), delivering the judgment of the New South Wales Court of Criminal Appeal: '... we would not seem to encourage any system which meant that cases were brought here under s5D of the Criminal Appeal Act on bases which were not argued before the judge below.'
Although the existence of error is the common ground which entitles the appellate court to intervene in appeals by the Crown and by a defendant (cf R v Butler [1971] VR 892; R v Liekefett; Ex parte Attorney–General [1973] Qd R 355 there would be few cases where the appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error, or if the defendant were unduly prejudiced in meeting for the first time on appeal the true case against him."
Reference might also be had to what Deane and McHugh JJ said in Malvaso v R (1989) 168 CLR 227 at p234 in reference to Crown appeals against sentence:
"Nonetheless, it should not be forgotten that it represents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep–rooted notions of fairness and decency which underlie the common law principle against double jeopardy (see, for example, the recent discussion in the judgments of Kirby p in Reg v Hayes (1987) 29 A Crim R 452, at p465 and Cooke v Purcell (1988) 14 NSWLR 51, at p54). So much was made clear by this Court in Griffiths v The Queen (1977) 137 CLR 293, at p310 where, speaking of a statutory provision (Criminal Appeal Act 1912 (NSW), s5D) which conferred a right of appeal against sentence upon the New South Wales Attorney–General, Barwick CJ expressed his agreement with the well–known remarks of Isaacs J in Whittaker v The King (1928) 41 CLR 230, at p248, and added:
'On my view of the proper meaning of s5D in the context of the Criminal Appeal Act, an appeal by the Attorney–General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons'
(and see also, to the same effect per Jacobs J (1977) 137 CLR, at p327 (with whose comments Stephen J agreed) and per Murphy J (1977) 137 CLR, at pp329–330). That statement of the rare circumstances in which an appeal by the Attorney–General against sentence can be justified should, in our view, be expanded by the inclusion of express reference to the need to avoid the kind of manifest disparity or inconsistency in sentencing standards which Barwick CJ saw as being 'error in point of principle' (see Griffiths (1977) 137 CLR 293, at p310). Otherwise, it should be accepted as representing general and authoritative guidance to the Courts of Criminal Appeal of this country. It is of particular importance in a case such as the present where an appeal by the Attorney–General against sentence lies only pursuant to a grant of leave (Criminal Law Consolidation Act 1935 (SA), s352(2)). In such a case, the court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney–General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney–General to appeal against sentence is justified. That is not, of course, to suggest that a Court of Criminal Appeal in such a case is not free to hear full argument on the merits of the proposed appeal before determining whether the circumstances warrant the grant to the prosecution of leave to appeal."
I apply what was said in Tait and consider that the following factors militate against granting leave to appeal:
(a)the Crown did not clearly assert before his Honour the basis upon which the case against the respondent was put;
(b)had the Crown clearly asserted that the case was put upon the basis that the respondent had intended to cause grievous bodily harm, counsel for the respondent might have dealt with his Honour's enquiry as to the respondent's state of mind in a different way and in particular might have placed in issue that there was such an intention;
(c)the answer given to Q110 in the record of interview did not sufficiently overcome the failure of the Crown to specifically assert an intention to cause grievous bodily harm in that it did not constitute an unequivocal admission of the relevant element.
In the result I am not persuaded that the applicant should have leave to appeal on the basis of ground 2. Had the Crown clearly told his Honour that it was asserted that the respondent had intended to cause grievous bodily harm, it is unlikely that any relevant appealable error would have occurred. It is incumbent upon the Crown to assert clearly the basis upon which it puts its case on a plea of guilty to a crime which may be committed in two or more different ways. A failure to do this may operate unfairly against an accused person and may lead to error.
I turn to grounds 1 and 3 which conveniently may be dealt with together. In the light of the conclusions I have reached as to ground 2, I would not grant leave to appeal on the basis of either ground 1 or ground 3 unless I was satisfied that such ground was made out upon the assumption that the learned judge was entitled to sentence the respondent upon the basis that the respondent foresaw the likelihood that grievous bodily harm might be caused. The comments which follow proceed upon that assumption.
In sentencing the respondent, the learned sentencing judge had before him the factual material as to the commission of the crime, which I have summarised. The weapon used was a particularly sharp knife of the type in use at abattoirs. The respondent's actions in selecting a knife from a drawer where he knew particularly sharp knives were kept, going outside to seek out the complainant, chasing him and then stabbing him, were entirely premeditated, although at a time when the respondent's state of mind was that the complainant had done a wrong to the respondent's mother. Nothing of significance was put in mitigation of the commission of the crime.
The respondent was born on 17 June 1971, and, by the time he appeared before his Honour, had amassed a long list of prior convictions for numerous traffic offences and offences involving dishonesty. He had previously served various periods of imprisonment, including one term of one month during 1989 in respect of an offence of assault.
The pre-sentence reports before his Honour were not hopeful. On the other hand, the reports disclosed that the respondent had had an unfortunate childhood, which may, at least in part, have been productive of his behavioural problems which appear to date back to 1979 at least.
The learned sentencing judge had a difficult sentencing problem in dealing with the respondent. On the one hand he was dealing with a serious crime of personal violence involving the use of a weapon abhorred by the community committed by a person with a significant criminal history who had not responded to the full range of sentencing options applied from time to time. On the other hand, he had before him a young man who had not previously been sentenced to any long term of imprisonment, with only one prior conviction for an offence involving the use of violence, whose previous criminal conduct may well have been contributed to by his deprived childhood but who did possess the necessary qualities to be a well–adjusted member of society. A crushing sentence was not in the interests of the respondent, nor was it in the interests of the community. A crushing sentence might well have the effect of the respondent finally foregoing any real chance of becoming a useful member of the community.
I do not overlook the fact that the crime committed by the respondent was an extremely violent attack with a vicious weapon exposing the complainant to a very real risk of death. I would agree with the proposition that the sentence imposed by his Honour was at the low end of the range appropriate for crimes of this nature. It was a lesser sentence than I might have imposed. However, I do not consider it to be outside the proper range. I do not disagree with the proposition that the nature of the crime was such that the sentence was required to reflect the need for general deterrence. However, giving due weight to that requirement, I am still not persuaded that the sentence imposed was outside the proper range.
In coming to the conclusion I have given consideration to the cases cited for the applicant, Brown v R Serial No 15/1987 and R v Bennett 17/1990 ([1990] Tas R 72). In Brown a sentence of 4 years' imprisonment imposed in respect of one count of causing grievous bodily harm and one count of wounding was not disturbed. It is trite to say that the fact that that sentence was not disturbed is not authority for the proposition that a different sentence would have been disturbed. In any event the case is distinguishable in a number of respects. The applicant in that case was convicted of two separate crimes committed upon two persons. There was an appreciable interval of time after the commission of the first crime, before the commission of the second. The weapon used was a firearm. In Bennett the court quashed a sentence of 4½ years' imprisonment and substituted a sentence of 3½ years, of which twelve months were suspended. In that case the applicant had been convicted of aggravated burglary, two counts of wounding and stealing. Both the facts and the background of the applicant in that case bore some similarity to the present case. The significant difference was that having stabbed the complainant once, the applicant in that case chased the complainant and stabbed him again. In addition the sentence related not only to the two counts of wounding, but also to the other crimes charged. I reject the submission made on behalf of the applicant that there is nothing to distinguish the present case from Bennett. In any event Bennett is only relevant as an example of the exercise of the sentencing discretion, albeit by this court rather than by a single judge at first instance.
I would refuse leave to appeal.
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