Young v Director of Public Prosecutions
[2004] TASSC 137
•26 November 2004
[2004] TASSC 137
CITATION: Young v Director of Public Prosecutions [2004] TASSC 137
PARTIES: YOUNG, Kimberley Heidi
v
DIRECTOR OF PUBLIC PROSECUTIONS
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 96/2004
DELIVERED ON: 26 November 2004
DELIVERED AT: Hobart
HEARING DATES: 3 November 2004
JUDGMENT OF: Underwood, Slicer and Evans JJ
CATCHWORDS:
Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial - Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – Generally – Wounding – Whether manifestly excessive.
Aust Dig Criminal Law [1009]
REPRESENTATION:
Counsel:
Appellant: R Mainwaring
Respondent: P Jones
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2004] TASSC 137
Number of Paragraphs: 31
Serial No 137/2004
File No CCA 96/2004
KIMBERLEY HEIDI YOUNG v DIRECTOR OF PUBLIC PROSECUTIONS
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
SLICER J
EVANS J
26 November 2004
Orders of the Court
Appeal allowed.
Sentence of 2½ years' imprisonment from 6 September 2004 quashed.
In lieu thereof order a sentence of 15 months' imprisonment to take effect from 6 September 2004. Execution of the last 10 months of that sentence suspended upon condition that the appellant be of good behaviour for a period of 2 years from the date of her release from prison.
Serial No 137/2004
File No CCA 96/2004
KIMBERLEY HEIDI YOUNG v DIRECTOR OF PUBLIC PROSECUTIONS
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
26 November 2004
Introduction
The appellant was convicted upon her plea of guilty to one count of wounding. The learned sentencing judge ordered a sentence of 2½ years' imprisonment. He also ordered that the last 12 months of that sentence be conditionally suspended for 2 years after her release from prison and that she be ineligible for parole until she has served 9 months of that sentence. The appellant has appealed against that sentence upon the ground that it is manifestly excessive.
The facts
In the early hours of the morning, the appellant, her brother and her boyfriend were at a Hobart nightclub. The two males were asked to leave and the appellant accompanied them outside. Just outside the door the appellant spoke to security employees about the eviction. At that time, the male complainant was standing in a queue waiting to get into the nightclub. The appellant's sister walked up the street towards the club so the appellant broke off her conversation and walked towards her sister. At that stage, the complainant said something about the eviction of the appellant's brother and her boyfriend from the nightclub which the appellant believed was racist in character. There was some dispute about this at the sentencing hearing, but the learned sentencing judge found that, "possibly incorrectly [the appellant and her sister] interpreted this remark as a racist remark". There is no complaint about that finding of fact so the appeal will be determined in accordance with that, and the other facts found by the learned sentencing judge.
Immediately upon hearing the remark, the appellant went up to the complainant. She did not know him personally but recognised him as a regular customer at the Men's Gallery, an establishment where she and her sister had worked. In the past, the complainant's behaviour towards her sister in the Men's Gallery had been the subject of complaint, and as the learned sentencing judge found, the appellant and her sister "had grievances concerning his past conduct".
The appellant, who had been drinking, became enraged. Her sister hit the complainant with her handbag. The appellant took off one of her high heeled shoes and tried to hit the complainant on the head with it. He defended himself by covering up his head and face with his arms. He fell to the ground. Whilst he was on the ground, the appellant attacked him and bit off a very large portion of one of his ears. She then spat out the severed ear and left the scene in a taxi with her companions.
It was a very bad wound. The complainant lost more than 50 per cent of his ear. He underwent a major surgical operation and requires two more surgical procedures to reconstruct the ear. In addition to the pain and physical impairment, the complainant is very conscious of his disfigurement and wary when in crowded places. The learned sentencing judge correctly categorised the appellant's crime as a "very serious case of wounding" and one "that has left an innocent man disfigured for life".
At the time of sentencing, the appellant was, and still is, 23 years of age. She has no prior convictions. There was evidence that she was extremely remorseful. She was not spoken to by police about this crime until approximately three months after the event, but then made an immediate confession. She pleaded guilty in a magistrates court at a very early stage in the proceedings. She told the police that she had had a considerable amount to drink and became enraged when she heard what she believed to have been a racist remark directed towards her brother. Her rage was fuelled when she recognised the complainant as a man who had behaved inappropriately towards her sister.
The learned sentencing judge was handed a psychiatric report written by Dr Sale. In it he described how the appellant was born in New Zealand, one of 10 children born to her mother, only one of the other 9 being a full sibling. She had an appalling start in life which the learned sentencing judge described as "an unfortunate background". Her biological father was mentally ill and violent. The household moved frequently, staying in shelters on several occasions, in order to avoid him. At age 16, the appellant came to Australia with her younger siblings. The appellant stayed in Sydney with a sister while her mother came to Tasmania to live.
The appellant dropped out of school and started to use drugs. Dr Sale wrote:
"Her lifestyle over the past seven years has been characterised by frequent changes of abode and short-term work positions. She has worked in cafes and bars, and a gaming lounge, and as an exotic dancer. There has been occasional prostitution.
Although her life has been itinerant, she has maintained a steady relationship with her boyfriend who is currently working as a restaurant manager."
It must be said that it is very much to the appellant's credit that notwithstanding her upbringing and lifestyle over the last seven years, she has not been convicted of any offence at all.
Dr Sale reported that about three years ago the appellant was treated by a psychiatrist for depression but was of the opinion that she was not depressed at the time the crime was committed. The learned sentencing judge was told that the appellant has had a steady relationship with her boyfriend for the last five years. He flew from Sydney to be with her at the sentencing hearing and also for an earlier court appearance. The appellant remained in Hobart with her mother between June and September this year, awaiting finalisation of the proceedings. During this period, she took employment in a North Hobart café. Finally, the learned sentencing judge was told that the appellant was supporting a child through Oxfam, using her own earnings to do so.
Thus, it is clear that the crime was committed on an impulse in an alcohol fuelled emotional upset and was out of character. It is also clear that, remarkably, the appellant had, until this crime, not committed any offence, notwithstanding her lifestyle and upbringing. She clearly was a good prospect for rehabilitation, something I infer the learned sentencing judge acknowledged by his order conditionally suspending the execution of one third of the sentence of imprisonment.
Was the sentence manifestly excessive?
Reference to the Court's sentencing records and Professor Warner, Sentencing in Tasmania 2nd ed, par11.305, shows that sentences of two to three years are at the top of the range for the crime of wounding. Ms Jones, who appeared as counsel for the respondent, acknowledged that this sentence of 2½ years' imprisonment was at the "top end" of the range of sentences.
In my respectful opinion, although it was a serious case of wounding, the circumstances surrounding the commission of the crime and the personal circumstances of the appellant together, were such that the imposition of a sentence at the top end of the range reflects general error in the exercise of the sentencing discretion.
In the last five years, this Court has imposed one sentence of five years' imprisonment for a single count of wounding. That offender was later declared a dangerous criminal. The sentence in that case has no relevance to the present case. Three sentences of 18 months' imprisonment were imposed. In each of the three cases, the offender had a prior conviction or convictions for offences of violence. In two of those cases, execution of part of the sentence of imprisonment was conditionally suspended. During the same period, three sentences of 15 months' imprisonment were imposed. Again in every case the offender had a prior conviction or convictions for offences of violence. In two cases, execution of part of the sentence was conditionally suspended. During the last five years the remaining sentences for a single count of wounding were less than 15 months' imprisonment.
This brief survey shows that the impugned sentence was very much at the top end of the range of sentences imposed for a single count of wounding. The personal circumstances of the appellant that I have already outlined are strongly mitigatory. The seriousness of the wound and its consequences to the complainant must be offset by the personal circumstances of the offender, her remorse, the fact that the crime was committed on the spur of the moment and was completely out of character.
I would allow the appeal and set aside the orders of the learned sentencing judge. I accept that the seriousness of the crime calls for a period of immediate custody, but having regard to the personal circumstances of the appellant, that period should be kept to a minimum. Bearing in mind the comparative sentences that have been imposed by this Court, I would order a sentence of 15 months' imprisonment to take effect from 6 September 2004. Execution of the last 10 months of that sentence should be suspended upon condition that the appellant be of good behaviour for a period of 2 years from the date of her release from prison. The fixing of a non-parole period is not appropriate in these circumstances.
File No CCA 96/2004
KIMBERLEY HEIDI YOUNG v DIRECTOR OF PUBLIC PROSECUTIONS
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
26 November 2004
The appellant was sentenced to a term of imprisonment for a period of two years and six months upon her conviction for the crime of wounding. The ground of appeal is that "the sentence … was manifestly excessive in all the circumstances of the case".
Central to the appellant's ground is the requirement of consistency in the assessment of penalty. That requirement was stated by the High Court in Lowe v R (1984) 154 CLR 606, when Mason J stated, at 610 – 611:
"Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."
Here the crime requiring sanction was that of a wounding with a serious consequence. The appellant had been to a nightclub with friends and was outside the premises when an altercation commenced. The appellant's brother and male companion had earlier been required to leave the club by security officers. It would appear that the appellant had become annoyed by the making of a "racist remark" by the complainant, who was recognised by the appellant as an attendee at a different club. Counsel for the prosecution, quite properly and fairly, referred to the matters in the following terms:
"There is a suggestion that the accused heard a racist comment, it is denied by the complainant that that comment was made and perhaps I may leave that to my learned friend to deal with"
but later added:
"On Wednesday, 16th June 2004 police interviewed the accused on video at the Hobart Police Station. She admitted committing the offence and was very remorseful for her actions, which she said were totally out of character for her. She said that the reason for committing the offence was because the victim had made a racial comment about her brother and, as I've indicated, the complainant denies that however a witness statement does indicate that the accused said, 'Why are you making a racist remark', or words to that effect, so it may be that – well the Crown doesn't dispute she may have thought she heard a comment."
Counsel for the appellant stated her client's version in the following terms:
"On the evening in March 2004 she had been at the – well she was at the Wild West Saloon with her brother, who is part Fijian, and her boyfriend. Her brother was asked to leave by security staff and Ms Young followed with her boyfriend. She was uneasy – she herself had not been asked to leave but left obviously because her brother had been asked to leave. She was uneasy about the request from security staff, fearing that it was racially – the request to leave had been racially motivated and she spoke to security staff in a controlled manner outside the club about perhaps the reason behind the request. At that stage Ms Young's younger sister arrived and it was around this time that Ms Young believed she heard the complaint [sic] state the words, 'Serves him right, the black cunt', and immediately upon hearing that Ms Young has approached the complainant, Mr Flakemore. She didn't know him personally but she recognised him from being a regular attendee at the Men's Gallery, where she and her younger sister had worked.
In the past she had had reason to be upset by his behaviour toward her younger sister and there had been complaints made about his inappropriate conduct towards her sister to the owner and manager of the Men's Gallery. So there was the confrontation, as has been stated in the facts, your Honour. She has said to Mr Flakemore, 'How dare you call my brother a black cunt', and her statement or those words stated by Ms Young were actually confirmed by a Crown witness who was present with the complainant, who was his – a friend who a statement was taken from, he heard her say those words.
The altercation followed, as has been stated ...".
The learned sentencing judge made no positive finding on the matter, but in his comments in passing sentence, stated:
"The prisoner has pleaded guilty to a charge of wounding. One night in March of this year, as she was leaving the Wild West Sports Saloon in Liverpool Street, Hobart, a man who was waiting to enter that place said something to her and her sister. Possibly incorrectly, they interpreted his remark as a racist remark. The knew him and had grievances concerning his past conduct."
For my part, with respect, the learned sentencing judge was obliged to accept the assertion unless challenged. The making of the remark, or even if the appellant believed in good faith that it had been made, were cogent matters of mitigation (R v S [1991] Tas R 192).
The appellant, aged 23, had no prior record. She had a history of emotional and psychological turmoil. Her conduct was responsive, neither planned nor random. When interviewed by police, she admitted responsibility. Then and since, she has shown genuine remorse and entered an early plea. She was in a stable relationship, had a good work record and had recently enrolled in an established theatre company with the intention of pursuing a career in acting. A psychiatric assessment tendered at the sentencing hearing suggested that:
"She was emotionally labile with quick shifts of emotion including periods of tearfulness. There was at times a childlike naivety and vulnerability"
which the psychiatrist suspected was "a reflection of how she has learned to relate to others, eliciting care and concern".
The assessment was that the appellant had suffered episodes of depression, with the diagnosis of a "Personality Disorder and Cluster B traits (borderline and histrionic features)".
Examination of the range of penalties imposed in relation to the crime of wounding shows that sentences of two to three years are at the top of the range for this crime. Although here the injury inflicted was significant, the penalty was disproportionate to the crime pleaded to. Although the learned sentencing judge attempted to ameliorate the effect of penalty by suspending one year of the sentence and fixing a nine month non-parole period, it is the whole sentence which must be considered (Dinsdale v R (2000) 202 CLR 321).
I would uphold the ground of appeal. The components amounted to a sentence of two years and six months' custody and provided, as a minimum, nine months' immediate imprisonment, leaving a further nine months at the discretion of the Parole Board. I do not accept the method to be appropriate.
There is one further matter deserving comment. Counsel for the respondent placed before the Court, as she was required to do, a victim impact statement, which included:
"When in Hayes Prison Farm for a drink-driving offence, found other inmates tried to fight him as they perceived him as a 'hard man' who was into fighting, which made him extremely anxious."
The learned sentencing judge referred to the material in the following terms:
"The victim of this crime has had two surgical operations, and requires two more. Cartilage will have to be taken from his ribs to graft a new ear. That will no doubt leave a scar to his chest. I expect that signs of the injury will be visible, to some degree, after his ear has been reconstructed. He now feels wary of women, does not like being in public, hates people being behind him, is very conscious of his ear, and tries to hide it when talking to people. On occasions, people have tried to fight him because they have wrongly perceived him to be a hard man who would like a fight, and that has made him extremely anxious."
It may be that others perceived the complainant to be "a hard man who was into fighting", but it does not necessarily follow that such is the responsibility of the appellant. Sentencing courts ought be cautious in attributing all of the problems experienced by a victim to a particular identified event or course of conduct.
It is necessary for this Court to determine sentence afresh. I would impose a sentence of 12 months' imprisonment and suspend the remaining portion. However the order proposed by the majority of 15 months, is not outside of the permitted range. Accordingly, I join in the orders proposed by Underwood J.
File No CCA 96/2004
KIMBERLEY HEIDI YOUNG v DIRECTOR OF PUBLIC PROSECUTIONS
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
26 November 2004
I have had the advantage of reading the reasons for judgment prepared by Underwood J. I agree with his reasons for allowing the appeal and the sentence he proposes in lieu of the sentence set aside.
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