Richardson v Tasmania

[2017] TASCCA 16

[2017] TASCCA 16

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

CITATION:              Richardson v Tasmania [2017] TASCCA 16

PARTIES:  RICHARDSON, William Henry
  v
  STATE OF TASMANIA

FILE NO:  1257/2017
DELIVERED ON:  8 September 2017
DELIVERED AT:  Hobart
HEARING DATE:  22 August 2017
JUDGMENT OF:  Blow CJ, Brett J and Slicer AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Committing an unlawful act intended to cause bodily harm – Attack on wife with tomahawk in supermarket in front of children – Sentence of seven years' imprisonment with non-parole period of 4½ years not manifestly excessive.

Criminal Code (Tas), s 170.
R v Kilic [2016] HCA 48, 339 ALR 229; R v Allen [1999] TASSC 112; Director of Public Prosecutions v Blyth [2010] TASCCA 10; Jay v Tasmania [2016] TASCCA 12; Price v Tasmania [2016] TASCCA 22; Kirkwood v Tasmania [2017] TASCCA 7, referred to.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  In person
           Respondent:  L Mason, M Allen
Solicitors:
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2017] TASCCA 16
Number of paragraphs:  22

Serial No 16/2017

File No 1257/2017

WILLIAM HENRY RICHARDSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
BRETT J
SLICER AJ
8 September 2017

Order of the Court

Appeal dismissed.

Serial No 16/2017

File No 1257/2017

WILLIAM HENRY RICHARDSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
8 September 2017

1. On 6 March 2016 the appellant, William Richardson, unexpectedly encountered his estranged wife and their children at a shopping centre.  He purchased a tomahawk and attacked his wife with it in a supermarket aisle in front of their children.  At a trial before Estcourt J, he was found guilty of committing an unlawful act intended to cause bodily harm, contrary to s 170 of the Criminal Code.  His Honour sentenced the appellant to seven years' imprisonment, with a non-parole period of 4½ years.  He has appealed.  He contends that the sentence was manifestly excessive.

2. I agree with Slicer AJ that the sentence was not manifestly excessive, for the reasons stated by him.

3. The appellant was charged not just with a crime contrary to s 170, but also with attempted murder.  The jury found him not guilty of attempted murder, but guilty of the lesser charge.  His wife gave evidence.  At the conclusion of her evidence-in-chief, the appellant instructed his counsel to tell the prosecutor that he was willing to plead guilty to the s 170 charge if the attempted murder charge was not proceeded with. That offer was made and immediately rejected.  The learned sentencing judge declined to take the making of that offer into account for sentencing purposes.  In my view he erred in taking that approach. The making of the offer was something that should have been taken into account but, in the circumstances, its significance was minimal. Section 402(4) requires this Court to dismiss the appeal unless "it is of the opinion that some other sentence … is warranted in law and should have been passed". The error that I have identified was a very minor one.  I am not of the opinion that some other sentence is warranted in law and should have been passed.

4. For these reasons I would dismiss the appeal.

File No 1257/2017

WILLIAM HENRY RICHARDSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BRETT J
8 September 2017

1. I have read the reasons for judgment of the Chief Justice and Slicer AJ. I agree with those reasons and the conclusion expressed by their Honours. I would dismiss the appeal.

File No 1257/2017

WILLIAM HENRY RICHARDSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

SLICER AJ
8 September 2017

1. The appellant has appealed against a sentence of imprisonment for a period of seven years with a non-parole period of four years and six  months upon his conviction of an unlawful act contrary to the Criminal Code, s 170(1) (the Code).

2. The sole ground of appeal was that the sentence was manifestly excessive in all the circumstances.

3. The appellant was self-represented and, given that status, this Court has carefully examined and considered his submissions and attempted to deal with his arguments and delivery of his case in a manner which takes into account his difficulty in the formation and structure of his written material and presentation in a manner most favourable to him. He presented his case in a coherent and helpful form and in a calm and respectful manner. The Court attempted to redress any imbalance created by his status as an unrepresented party. It notes that he had been represented by competent counsel and no complaint can be made of the fairness of his trial. The jury had acquitted him of the more serious crime of attempted murder. Had the victim died, the prosecution may well have been able to rely on the provisions of the Code, s 157(1)(c), of an act which "he knew, or to have known, to be likely to cause death in all the circumstances" (Boughey v The Queen [1985] Tas R 1).

4. The main critique advanced by the appellant was that the learned sentencing judge failed to take into account his previous good conduct and character, the observations and opinions of others, and his deep attachment for his children. The last factor is weakened by the fact that his attack on their mother, in a public place, occurred in their presence and has caused them intense and long-lasting turmoil. This Court, as did the learned sentencing judge, rejected any suggestion, explicit or inferred, that he had in any way harmed the children in the past. The Court accepts that there had been some tension created by a failure for him to have some contact with the children after the making of a non-violence order issued shortly before his criminal conduct, but such was of little import given the manner and nature of the violent attack on their mother in a public place and in their presence. The Court notes that the appellant had been the subject of violence when young, and his claim that at the time of the attack he suffered from depression and anxiety, which were factors at the relevant time and were of some import having been factors considered by the learned sentencing judge.

5. The factors of remorse and his informal offer to plead to the alternate charge under s 170 will be separately considered.

History of events

1. There had been a history of tension and discord between the appellant and his wife since 2014 involving a business failure and ensuing financial difficulties. Those tensions had, according to the complainant, often led to aggression and volatile conduct and exchanges. By the end of 2015 the parties "ceased to share the same bed" and they lived separately in the same house. In January 2016 the complainant commenced to seek alternative accommodation, a matter which enraged the appellant. There had been a violent outburst concerning an unpaid account, noted by the learned sentencing judge in his reasons. On 24 February the complainant left the family home with her children and went to her mother's house. This led to a violent confrontation ending with a threatening statement by the appellant.

2. On 26 February 2016 the complainant sought a family violence order with interim orders being made on 4 March. Following that order, the appellant, in a conversation with his brother-in-law, stated, "if I do breach the conditions it will be to kill her". The subsequent attack leading to these proceedings occurred on 6 March 2016.

Events of the attack

1. On 6 March the appellant unexpectedly saw his wife and children at a supermarket. There is no suggestion by the prosecution that he was "stalking". His attempt to communicate with them was ignored. Videotaped security images of the sequence of events was relied upon by the prosecution at trial and have been viewed by this Court. They show the initial contact and the appellant leaving the shopping complex. Shortly thereafter he returned to a different complex, and some minutes later, went with an appearance of purpose, to a section which contained various implements. He paused, examined a precise area, and selected a tomahawk axe, before seeking out the family in the nearby supermarket. His manner of selection and general conduct suggest contemplation and purpose rather than spontaneous rage. That rebuts any claim of uncontrollable or responsive conduct during an argument or general discord.

2. The appellant approached the complainant and children and, without warning, stuck her several times to the upper part of the body and head. She attempted to move away and was knocked to the ground where the appellant continued to strike her with the tomahawk. The complainant was struck five times to the head and body, suffering bruising, abrasions, lacerations and a large haematoma to the left parietal region. Any of the blows to the head was capable of causing death. The appellant desisted only upon the approach of another male. He made no attempt to escape.

Consequences of the attack

1. The complainant was treated for physical injuries, post-concussion syndrome and an overlapping post-traumatic stress disorder, and continues to suffer the psychological effects which will continue for a significant period and require ongoing treatment. The children present with significant syndromes of post-traumatic stress disorder requiring ongoing therapeutic support. The victim impact statement shows the devastating effect of the attack. It is not necessary for this Court to recount the details, except to acknowledge its severity, especially so in the case of the use of an axe in a public place. This was not a reactive or split-second response undertaken by mere bodily conduct. Luck alone ameliorated the physical harm. The nature of the attack, the contemplation in the choice and purchase of the weapon, the risk to life, and its performance in front of young children bring this case into the most serious nature of crimes involving the Code, s 170.

Responses during police interview

1. The appellant was interviewed by police on 6 March. Some of his answers were evasive or ambiguous. He admitted the attack, but at some stages claimed that his intent was only to scare the complainant. He showed some remorse, but many of his answers concerned his claims of unreasonable conduct by his wife. At one stage he claimed, "I didn't mean to hurt her … and I don't remember hitting her." In another response he claimed that he had returned to get some tomatoes. He further claimed that he did not intend to strike her. "… I just intended to threaten her or scare her".

2. There was a mixture of remorse and complaint of his wife's conduct.

Subsequent proceedings

1. The appellant was arrested and charged with the crime of wounding. He pleaded guilty. Given that the events occurred in a public place and in the presence of independent witnesses, the plea could be seen as an acceptance of the inevitable. Following committal an indictment was filed alleging the crime of attempted murder. On 21 March 2017 the indictment was amended by the addition of the alternate crime under s 170. Such was understandable given the need for the prosecution to prove "at trial" specific intent of the death of the victim. The matters went to trial where the appellant was acquitted of the more serious crime. No criticism can be made of the appellant in maintaining his plea of not guilty to the indictment alleging attempted murder. No attempt was made before trial to offer a plea to the less serious crime.

Remorse and plea

1. The trial commenced on 21 March 2017 continuing on 23–29 March. The complainant did not give evidence until 23 March. During the sentencing hearing counsel for the appellant told the judge that at the conclusion of the evidence-in-chief of the complainant, he, as counsel, had informally told opposing counsel that his client would plead to the lesser charge in order to avoid cross-examination and further stress the complainant. The offer was rejected. That offer ought to have been made before commencement of the trial or, even if refused, then made in the presence of the jury as a change of plea during trial.

2. On appeal the question arose as to whether the "informal offer" ought to have been given more weight by the learned judge in his consideration of remorse, or discounted for the fact that acceptance of his plea might have saved the complainant the further ordeal of cross-examination. There is little merit in that question given the acquittal of the appellant on the more serious charge. But in the circumstances of this trial this Court ought give it little weight. The learned judge did refer to the earlier attempted plea to the crime of wounding but regarded it as unrealistic under the circumstances. It might have been preferable for the learned sentencing judge to deal with the matter of the attempted plea to the s 170 matter, but, in my view, any failure did not amount to an appealable ground. The complainant had been put through the ordeal of giving evidence, in which case the informal offer ought to have been made before she had entered the witness box. To wait until she had concluded the evidence-in-chief could be seen as acceptance of the inevitable. I have referred to this matter in passing, given that the appellant was unrepresented at the appeal hearing and this Court has considered the questions raised by him in as much detail as possible.

Sentencing principles

1. The sentence was at the upper end of the range of sentences previously imposed. The learned sentencing judge was conscious of the changes in the manner in which crimes of domestic violence should be dealt with by the judicial arm of governance. Parliament has recognised the concerns of the community in relation to the significance and harm caused by domestic violence through its enactment of the Family Violence Act 2004 and the Family Violence Reforms Act 2017. The judiciary has, in a measured way, paid regard to "changes over time", reflecting changes in community attitudes to some forms of offending (R v Kilic [2016] HCA 48, 339 ALR 229). This Court has applied the principles governing the question of sentencing range in a number of cases (Jay v Tasmania [2016] TASCCA 12, Price v Tasmania [2016] TASCCA 22 and Kirkwood v Tasmania [2017] TASCCA 7). It has also addressed the significance of crimes involving the Code, s 170 (R vAllen [1999] TASSC 112 and DPP v Blyth [2010] TASCCA 10). The learned sentencing judge paid regard to and applied those decisions.

2. I would dismiss the appeal.