Shee v Jennings
[2013] WASC 162
•6 MAY 2013
SHEE -v- JENNINGS [2013] WASC 162
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 162 | |
| Case No: | SJA:1159/2012 | 23 APRIL 2013 | |
| Coram: | CORBOY J | 6/05/13 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant to be re-sentenced | ||
| B | |||
| PDF Version |
| Parties: | ANPING STEVEN SHEE ROBERT ALAN JENNINGS |
Catchwords: | Criminal law Appeal against sentence Whether sentence manifestly excessive Whether relevant considerations were taken into account |
Legislation: | Criminal Appeals Act (WA), s 8 Criminal Code (WA), s 284 |
Case References: | Abeyakoon v Brown [2011] WASCA 63 Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87 Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567; 135 ALR 128 Cameron v The Queen [2002] HCA 6; 209 CLR 339 Chivers v The State of Western Australia [2005] WASCA 97 Clarkson v The State of Western Australia [2006] WASCA 250 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Gazeley v Segers [2006] WASC 76 House v The King [1936] HCA 40; 55 CLR 499 Keating v The State of Western Australia [2007] WASCA 98; 35 WAR 1 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Moody v French [2008] WASCA 67; 36 WAR 393 The State of Western Australia v Gibbs [2009] WASCA 7 Vagh v The State of Western Australia [2007] WASCA 17 Voysey v Whyatt [2011] WASC 305 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
ROBERT ALAN JENNINGS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE HEENEY
File No : PE 45113 of 2012
Catchwords:
Criminal law - Appeal against sentence - Whether sentence manifestly excessive - Whether relevant considerations were taken into account
Legislation:
Criminal Appeals Act (WA), s 8
Criminal Code (WA), s 284
(Page 2)
Result:
Appeal allowed
Appellant to be re-sentenced
Category: B
Representation:
Counsel:
Appellant : Ms J Fordham
Respondent : Ms S Markham
Solicitors:
Appellant : Fordham & Roast
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abeyakoon v Brown [2011] WASCA 63
Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87
Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567; 135 ALR 128
Cameron v The Queen [2002] HCA 6; 209 CLR 339
Chivers v The State of Western Australia [2005] WASCA 97
Clarkson v The State of Western Australia [2006] WASCA 250
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Gazeley v Segers [2006] WASC 76
House v The King [1936] HCA 40; 55 CLR 499
Keating v The State of Western Australia [2007] WASCA 98; 35 WAR 1
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Moody v French [2008] WASCA 67; 36 WAR 393
The State of Western Australia v Gibbs [2009] WASCA 7
Vagh v The State of Western Australia [2007] WASCA 17
Voysey v Whyatt [2011] WASC 305
(Page 3)
- CORBOY J:
The appeal and the result
1 The appellant was charged that on 9 December 2011, he culpably drove a conveyance, namely a powered vessel, which was involved in an incident that caused grievous bodily harm to Kaitlin Louise Matthews contrary to s 284(3) of the Criminal Code (WA). The appellant pleaded guilty to the charge on his first appearance in the Magistrates Court on 17 October 2012.
2 The appellant had been earlier convicted in the District Court on a charge of conspiring with another to commit an offence (the Commonwealth Offence). He was sentenced to a term of imprisonment of 3 years. He was ordered to be released on a good behaviour bond after 12 months. Accordingly, he was due to be released on 19 April 2013. The Commonwealth Offence was committed after the offence of causing grievous bodily harm.
3 The learned magistrate sentenced the appellant on the charge of causing grievous bodily harm to a further term of imprisonment of 18 months commencing on 19 April 2013, with eligibility for parole. He ordered that the appellant, who is from Singapore and is not an Australian citizen or permanent resident, should not be released or deported until the sentence imposed had been satisfied.
4 An appeal may be made by a person aggrieved by a decision of a court of summary jurisdiction on any of the grounds specified in s 8 of the Criminal Appeals Act 2004 (WA) (CAA). Those grounds include that the court of summary jurisdiction imposed a sentence that was excessive or made an error of law.
5 The appellant was granted leave to appeal from the sentence imposed by the learned magistrate on the following grounds:
1. The learned sentencing magistrate erred in law in that he imposed an excessive sentence in the circumstances including
(a) the applicant's early guilty plea
(b) the applicant's relatively good character and
(c) the applicant's lack of prior relevant convictions.
(Page 4)
- 2. The learned sentencing magistrate erred in law in that he took into account as an aggravating factor an element of the offence, namely that grievous bodily harm was caused.
3. There was a miscarriage of justice in that the learned sentencing magistrate failed to give adequate reasons for the exercise of his sentencing discretion.
6 I have concluded that the sentence imposed was manifestly excessive. The appeal will be allowed. The appellant is to be re-sentenced under s 14(5) CAA.
The offence
7 Section 284(3) of the Criminal Code provides that:
If -
(a) a person culpably drives a conveyance; and
(b) the conveyance is involved in an incident that directly or indirectly causes the death of, or grievous bodily harm to, another person,
the person is guilty of a crime and is liable to imprisonment for -
(c) if death is cause, 10 years; or
(d) if grievous bodily harm is caused, 7 years.
Summary conviction penalty: imprisonment for 3 years and a fine of $36,000.
8 Section 284(1) defines the term 'drive' to include navigating a vessel. Section 284(2) provides that 'for the purposes of this section a person culpably drives a conveyance if the person drives the conveyance in a manner (including at a speed) that, having regard to all of the circumstances of the case, is dangerous to any person'.
9 The offence was created by amendments made to the Criminal Code in 2008. I was not referred to any past cases in which sentences had been imposed for the offence.
The facts of the offence
10 The facts of the offence as alleged by the prosecution and admitted by the appellant were that:
(a) The appellant was the owner of 4.25 m dinghy. He held a recreational skipper's ticket.
(Page 5)
- (b) The appellant took his boat to the Belmont water ski area in the company of Ms Matthews and two others. The ski area was marked by yellow buoys. A speed limit of 15 km per hour applied outside the ski area.
(c) The appellant towed Ms Matthews on a kneeboard behind the boat. He proceeded outside the ski area. Witnesses estimated the boat to be travelling at between 40 and 50 km per hour.
(d) The appellant's boat appeared to be on a collision course with another ski boat. The appellant was observed by witnesses to be looking back towards Ms Matthews on the kneeboard. The other ski boat was moving slowly towards the beach, side on to the appellant's boat. The appellant turned his boat sharply to the left, away from the other boat. At that point, the appellant's boat was only a few metres from the other boat. The sharp movement of the appellant's boat caused the kneeboard on which Ms Matthews was riding to be whipped around and into the other ski boat.
(e) Ms Matthews was knocked unconscious as a result of striking the boat at speed and with force. She sustained fractures to both of her arms and her elbow and a laceration to her chin. Her injuries required surgery and she was subjected to a lengthy period of rehabilitation.
11 That summary was taken from the facts read to the court by the prosecutor. However, the statement of material facts also contained allegations about statements made by the appellant to the police following the incident. Those allegations were not read to the court and therefore, they were not formally accepted by the appellant. However, the learned magistrate referred to the allegations in his sentencing remarks in a way that was unfavourable to the appellant.
12 The statements allegedly made by the appellant to the police were to the following effect: the appellant could not estimate the speed of the boat, but he admitted that he had applied half to three-quarter throttle; he had not appointed the third person in the party to keep a look-out; he had not seen the other ski boat until Ms Matthews had struck the boat; he had not given a safety instruction to Ms Matthews before she commenced kneeboarding and no hand signals had been discussed; he did not offer Ms Matthews a life jacket as he believed that the wetsuit she was wearing provided sufficient buoyancy; he was aware that Ms Matthews suffered
(Page 6)
- from impaired eyesight and that she was not wearing her glasses while kneeboarding and he could have 'acted safer' in the circumstances.
13 There may be a question of procedural fairness where a judicial officer in sentencing an offender relies on material not forming part of the facts read to the court and admitted by the offender. However, the appellant's counsel addressed in his plea in mitigation those matters stated in the statement of material facts that were not read to the court and which were not accepted or which the appellant sought to qualify. The grounds of appeal do not allege that the learned magistrate erred by taking into account matters stated in the statement of material facts that had not been relied on by the prosecution for the purpose of sentencing.
The appellant's plea in mitigation
14 The appellant accepted that he did not see the other boat through inattention. He also stated that he had given a safety instruction to Ms Matthews prior to when Ms Matthews commenced kneeboarding, but he accepted that the instruction could have been more extensive.
15 It was submitted in mitigation that:
(a) The appellant had taken responsibility for the accident. He had filed an accident report and had visited the complainant in hospital on several occasions.
(b) There were no aggravating factors such as alcohol or drugs involved.
(c) The appellant was 30 years of age. The offence had occurred prior to the appellant's conviction for the Commonwealth Offence and so he was entitled to be sentenced as a first offender.
(d) The appellant had pleaded guilty at the first available opportunity and was remorseful.
Ms Matthews' victim impact statement
16 It is apparent from his sentencing remarks that the learned magistrate placed considerable weight on the victim impact statement provided to the court by Ms Matthews. The statement was detailed and complained of injuries and complications following surgery that were not referred to in the facts alleged by the prosecution for the purpose of sentencing. The prosecution referred to fractures to both arms and the right elbow and to a laceration to her chin. That accorded with a medical report by Dr Mooney
(Page 7)
- dated 17 February 2012. He noted that Ms Matthews presented at Royal Perth Hospital with three injuries: bilateral femoral fractures; right olecranon fracture and a laceration to her chin. He considered the injuries to have been life threatening if not treated because of 'oxygen desaturation likely relating to femur fractures' and likely to cause permanent injury if not treated due to a 'mis-union' of the femoral fractures.
17 However, in a part of her victim impact statement that was read by the learned magistrate into his sentencing remarks, Ms Matthews stated that her right knee had been 'smashed' in the incident. That appeared to be her primary complaint. According to her victim impact statement, 'learning to walk again has been a slow and agonising journey' and that 'without being able to walk I was confined to bed for over two months, and confined to the house for several more weeks until I was physically and legally able to drive again'.
18 Ms Matthews' victim impact statement also suggested that she had suffered from significant depression prior to and subsequent to the incident and her emotional state had been, and continued to be, fragile.
The learned magistrate's sentencing remarks
19 The learned magistrate commenced his sentencing remarks by observing that 'in the course of this exercise of sentencing, I was very careful not to overlook the fact - when I was reading all the facts relating to Mr Shee, I was very careful not to overlook the fact that the victim in this case suffered grievous bodily harm'. His Honour then referred to the admissions allegedly made by the appellant to the police that were referred to in the statement of material facts but which had not been read to the court by the prosecutor. He also read extensively from Ms Matthews' victim impact statement and identified the other documents that he had read (medical report, pre-sentence report and character references).
20 His Honour noted that Mr Shee was aged 31 years and stated that the pre-sentence report had outlined his background. He further noted that the appellant had pleaded guilty at the first available opportunity but only said, in relation to the plea, that the appellant had 'thereby avoided the victim having to go through the necessity of a trial'. He referred to the Commonwealth Offence, noting that the appellant was due to be released from custody on 19 April 2013.
21 His Honour then stated:
(Page 8)
- I am required to give consideration to the full range of penalties available to me. His present state of imprisonment is limiting in the feasible dispositions. Regardless of that fact, I feel that the circumstances of this offence, and to again reiterate that his driving of that speedboat caused grievous bodily harm to the victim, the circumstances are so serious that an immediate sentence of imprisonment is the only appropriate sentence. I have considered the principles enunciated in Dinsdale's case and having done so, remain of the opinion that the imprisonment sentence I propose to impose should be immediate and not suspended.
22 Those remarks contained the substance of his Honour's reasoning for the sentence imposed.
The grounds of appeal
23 It was not entirely clear whether par 1 of the grounds of appeal alleged that:
(a) the sentence imposed was manifestly excessive in all of the relevant circumstances including those expressly pleaded; or
(b) the sentence imposed was manifestly excessive because the learned magistrate failed to give adequate weight to the matters pleaded; or
(c) the sentence imposed was manifestly excessive because in fixing the sentence, the learned magistrate had failed to have regard to the matters pleaded.
24 It appeared to me - and it would seem from his submissions, also to the respondent - that the first of those alternatives had been intended. However, the appellant applied at the hearing of the appeal to amend his notice of appeal if that was required to raise the other alternatives identified above. I consider that the appeal can be fairly determined by reference to the allegation, clearly raised by par 1 of the notice of appeal, that the sentence was manifestly excessive for the reasons that follow. The reasons touch on questions concerning whether the learned magistrate gave undue weight to certain considerations or failed to give adequate weight to other relevant considerations in sentencing the appellant. I have identified in the next section of the reasons the relevant principles that apply where it is alleged that the exercise of a discretion has miscarried on that ground to ensure that my reasoning in the appeal is fully explained.
25 I have not found it necessary to separately determine the grounds raised in pars 2 and 3 of the notice of appeal. The matters alleged in those
(Page 9)
- paragraphs provide some context to the primary allegation made in the appeal - that the sentence imposed was manifestly excessive.
The relevant principles
26 The principles to be applied in determining the first ground of appeal were identified and explained by the Court of Appeal in The State of Western Australia v Gibbs [2009] WASCA 7; Vagh v The State of Western Australia [2007] WASCA 17; and Keating v The State of Western Australia [2007] WASCA 98; 35 WAR 1. In summary:
(a) The general principles relevant to an appeal against the exercise of a discretion in sentencing are those stated in House v The King [1936] HCA 40; 55 CLR 499 at 504 - 505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
- And see Gazeley v Segers [2006] WASC 76 and Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87 in which it was recognised that the principles identified in House v The King apply to an appeal on the grounds specified in s 8 of the CAA, including an allegation that a sentence imposed by a magistrate was excessive.
(b) In Lowndes v The Queen [1999] HCA 29; 195 CLR 665, the High Court said:
[A] court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court
- would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.
- (c) It is necessary to distinguish between:
(i) a ground of appeal that alleges that the sentence imposed was so manifestly excessive that an error may be inferred even though it cannot be precisely identified;
(ii) a ground of appeal that alleges that a sentence was manifestly excessive because undue weight had been given to a matter or inadequate weight had been accorded to a relevant consideration - an allegation that the sentencing discretion had not, in substance, been exercised;
(iii) a ground of appeal that alleges that there had been a failure to have regard to a relevant consideration - an allegation of express error.
That distinction should be drawn in the notice of appeal.
(d) A failure to expressly refer to all relevant factors in sentencing reasons does not establish a failure to consider those factors: Keating [27] Steytler P and McLure JA, their Honours referring to Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567; 135 ALR 128, 576 - 577 (see also, Chivers v The State of Western Australia [2005] WASCA 97). In Bienke (an administrative law case), the Full Court of the Federal Court observed that:
There was no direct evidence as to the matters which the Minister took into account in the making of the decision. In the absence of credible evidence to the contrary, we would assume that the Minister complied with the duties imposed upon him.
(e) It is difficult to make out a ground that contends that a sentencing judge placed undue weight on, or failed adequately to take account of, individual considerations. Sentencing is a discretionary exercise and a failure of that kind would not give rise to an express appealable error unless it was so significant that it led to the conclusion that the sentencing judge failed to exercise the discretion entrusted to the court.
(Page 11)
- (f) In determining whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender.
The seriousness of the offence and the appellant's offending
27 The learned magistrate concluded that the only appropriate sentence was an immediate term of imprisonment (he referred to but rejected the possibility of suspending the sentence, but he could not have suspended the sentence in any event - see s 76(3) of the Sentencing Act). His Honour expressed his reason for that conclusion in the following terms:
I feel that the circumstances of this offence, and to again reiterate that his driving of the speedboat caused grievous bodily harm to the victim, the circumstances are so serious that an immediate sentence of imprisonment is the only appropriate sentence (ts 4).
28 The following points can be made about his Honour's conclusion:
(a) The offence comprised driving the speedboat so as to cause grievous bodily harm. Any offence involving the doing of grievous bodily harm is a serious offence. However, the effect of the learned magistrate's observation may have been to suggest that the only appropriate sentence for the offence is a term of imprisonment regardless of the circumstances in which it was committed. That is obviously not so, as s 284(3) of the Criminal Code expressly provides that a fine may be imposed on a summary conviction.
(b) The circumstances in which an offence of this type is committed will differ. Consequently, there will be a spectrum of seriousness for any particular offence. The learned magistrate did not expressly identify where the appellant's offending fell within the scale of seriousness for the offence other than by reference to the offence itself.
(c) The 'other circumstances of the offence' relevant to the seriousness of the offence and the appellant's offending were not identified but plainly, the primary fact alleged by the prosecution was that the appellant failed to keep a proper lookout while driving the speedboat. Although not entirely clear, it appears that the appellant's inattention was not just momentary. It is also not clear
- whether the appellant's boat was speeding at the time of the incident or some time before it occurred. However, the evidence of speed would, in any event, be an aggravating circumstance, as would the appellant's failure to have the third person present to act as a lookout.
- (d) As previously noted, Ms Matthews complained of injuries that were not referred to in the medical report. The learned magistrate was entitled to have regard to the matters stated by Ms Matthews in her victim impact statement. However, it must be kept in mind that the grievous bodily harm alleged by the prosecution and admitted by the appellant concerned the fractures to the arms that were suffered by Ms Matthews.
(e) No range of sentences has yet been established for the offence. However, there is an analogy to cases involving grievous bodily harm caused by the driving of a motor vehicle. The sentencing pattern for dangerous driving causing grievous bodily harm (s 59 of the Road Traffic Act 1974 (WA)) was not referred to by the prosecutor or the appellant's counsel and was not considered by the learned magistrate.
29 As to the last of those points, the circumstances of the appellant's offending were, in my view, less serious than those considered by EM Heenan J in Voysey v Whyatt [2011] WASC 305. However, the personal circumstances of the appellant in that case were similar to the appellant in this appeal: an early plea of guilty, full admissions, a deep sense of remorse, no prior record and good prospects. EM Heenan J allowed an appeal against a sentence of 12 months' imprisonment. His Honour re-sentenced the appellant to a term of imprisonment for 12 months, suspended for 18 months. A suspended term of imprisonment was also imposed by the Court of Appeal in Abeyakoon v Brown [2011] WASCA 63.
The early guilty plea
30 The learned magistrate acknowledged the appellant's early plea of guilty but, in doing so, referred only to the fact that the complainant was spared the stress of giving evidence at a trial. It may be that his Honour focussed on that aspect of the plea because of the statements made by Ms Matthews in her victim impact statement about her psychological wellbeing. However, the significance of a plea of guilty is not confined to just that aspect. As the High Court explained in Cameron v The Queen [2002] HCA 6; 209 CLR 339, a plea of guilty may indicate remorse, a
(Page 13)
- willingness to accept responsibility for the consequences of the offending and desire to facilitate the course of justice.
31 At the time that the appellant was sentenced, s 8(2) of the Sentencing Act 1995 (WA) provided that:
A plea of guilty by an offender is a mitigating factor and the earlier in the proceedings that it is made, or an indication is given that it will be made, the greater the mitigation.
32 The Court of Appeal held in Moody v French [2008] WASCA 67; 36 WAR 393 that:
There is no doubt that, by a combination of s 8(1) and s 8(2), a plea of guilty will always decrease the culpability of the offender or decrease the extent to which the offender should be punished. However, that does not automatically translate into a reduction in sentence, as s 8(4) appears to recognise. It is open to a court to find that, although a particular factor (such as a plea of guilty) decreases the culpability of the offender or the extent to which the offender should be punished, that factor is so outweighed by other factors that it is necessary to impose the maximum sentence because, even allowing for the mitigating effect of that factor, the offence falls within the worst category of offences of its type [33].
33 However, the Court of Appeal further observed that:
Although it might consequently be accepted that it is not mandatory to reduce a sentence on account of a plea of guilty, it is well established that, in all but the most exceptional of cases, a plea of guilty will have that result. One need go no further, in this respect, than the provisions of s 8(1) and s 8(2) of the Sentencing Act. If a plea of guilty is a mitigating factor (as it always will be by virtue of s 8(2)) then, as we have said, it must (because of s 8(1)) decrease culpability, or the extent to which the offender should be punished, and it will necessarily be a very rare case in which, notwithstanding the mitigating effect of the plea, the circumstances of the offending behaviour are so serious that nothing less than the maximum sentence can be justified [35].
- And at [37]:
Ordinarily, in this State, fast-track pleas of guilty attract a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances: H [9] and the cases there cited. In particular cases the reduction might be less (where, for example, there is a late plea and an absence of any real remorse) or more, although a reduction should not be so excessive as to undermine the accusatorial feature of the criminal justice system: R v Shannon (1979) 21 SASR 442 at 449 (King CJ); and Cameron [65(3)] (Kirby J). The amount of the reduction is discretionary. Sentencing judges 'must be accorded a wide measure of latitude which will
- be respected by appellate courts': Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, 336 (Kirby J); Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 [15].
34 The learned magistrate did not expressly state that he had reduced the sentence that he would have otherwise imposed on account of the appellant's plea of guilty. However, I accept that his Honour must have done so given his reference to the plea.
35 His Honour was not obliged to state the amount by which he had reduced the sentence on account of the appellant's plea: see Clarkson v The State of Western Australia [2006] WASCA 250 [31] (McLure JA). However, the circumstances suggested that the reduction ought to have been within the range identified by the Court of Appeal in Moody v French - the plea was entered on the appellant's first appearance and was consistent with his evident remorse and acceptance of responsibility for what had occurred (evidenced by, among other things, the admissions he made to the police following the incident).
The appellant's personal circumstances
35 The learned magistrate did not refer in any detail to the appellant's background and the submissions made on his behalf concerning his prior good character and absence of a criminal record at the time that the offence was committed. He simply acknowledged that he had read the pre-sentence report and heard the submissions made by the appellant's counsel. However, I do not consider that it can be concluded that the learned magistrate failed to have regard to the appellant's personal circumstances given that acknowledgement. It is not possible, nevertheless, to discern the extent to which those circumstances were taken into account from his Honour's reasons; indeed, there was no express reference to any matter in mitigation.
35 The appellant's character and his lack of a criminal history were relevant considerations to be taken into account in mitigation of the sentence to be imposed.
Conclusion
36 Gleeson CJ and Hayne J observed in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 [325]:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the
(Page 15)
- sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion.
37 I have concluded that the sentence imposed by the learned magistrate was excessive. The reasons for the conclusion have been identified above - the penalty prescribed, the seriousness of the appellant's offending, the sentencing pattern for the broadly analogous offence of dangerous driving causing grievous bodily harm and the matters in mitigation to which I have referred.
38 I have not found it necessary to determine whether the discretion exercised by the learned magistrate miscarried because of the weight he may or may not have accorded to relevant sentencing considerations. The principles to be applied recognise that an appellate court may review and substitute its own discretion for a sentence that is 'unreasonable or plainly unjust'. In my view, the sentence imposed by the learned magistrate was unreasonable or plainly unjust in all of the circumstances.
39 I will hear further submissions from the parties on the sentence to be imposed on the appellant. The considerations relevant to re-sentencing the appellant have substantially been canvassed in these reasons.
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