Re R v Troy Edwin Preston [1992] FCA 12 (24 January 1992)

FEDERAL COURT OF AUSTRALIA

Re: THE QUEEN
And: TROY EDWIN PRESTON
No. ACT G41 of 1991
FED No. 53
Criminal Law
(1992) 58 A Crim R 328

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson(1), O'Loughlin(2) and Higgins(3) JJ.

CATCHWORDS

Criminal Law - Crown appeal against sentence - Intentionally inflicting grievous bodily harm - Order suspending execution of sentence and bond set aside - Head sentence of three years confirmed - Sentence to date from date upon which respondent is taken into custody - Non-parole period of ten calendar months to run from same date.

Interference by appellate court - Review of discretion to suspend sentence - Principles.

R v J (1982) 45 ALR 33

R v Steich [1985] FCA 55; (1985) 5 FCR 518

R v House and Thorne [1991] FCA 126; (1991) 28 FCR 194

R v Trenholme (unreported; 20/9/88; Federal Court)

HEARING

CANBERRA
24:1:1992

Counsel for the Appellant: Mr K. Crispin QC with Mr M. Chilcott

Solicitors for the Appellant: Director of Public Prosecutions

Counsel for the Respondent: Mr T. O'Donnell

Solicitors for the Respondent: Legal Aid Office

ORDER

1. The appeal be allowed for the purpose of setting aside the order suspending the execution of the sentence and the bond into which the respondent entered.

2. In lieu, the head sentence of three years be confirmed but to date from the date upon which the respondent is taken into custody.

3. There be a non-parole period of ten calendar months to run from the same date.
Note: Settlement and entry of orders is dealt with in Oder 36 of the Federal Court Rules.

DECISION

I agree with the reasons for judgment of O'Loughlin J. and with the orders which he proposes.

The respondent pleaded guilty in the Magistrates' Court on 3 May 1991 to the charge of having, on 10 December 1990, intentionally inflicted grievous bodily harm: contrary to the provisions of s.19 of the Crimes Act 1900 in its application to the Territory. On the same day he was committed for sentence at the next sittings of the Supreme Court.

2. The respondent and his victim, who were strangers, had both attended a tavern in Greenway for the greater part of the day and the evening of the offence. They had spent some time together playing pool. As the respondent was leaving, the victim asked the respondent to drive him home; the respondent agreed.

3. The victim has no recollection of what happened after leaving the tavern that night; indeed, most of the facts were provided to the Crown by the respondent. In brief, the respondent claimed that the victim made homosexual advances and that he (the respondent) retaliated by striking and kicking him. His Honour expressly found that the respondent genuinely believed that the victim was making homosexual advances and concluded that the respondent had "behaved excessively and inappropriately in repelling those advances. Simply and plainly, he lost his temper".

4. Because of the seriousness of the victim's injuries, of which more must be said later, his Honour considered that a term of 3 years imprisonment was called for. However, because of the respondent's youth and other mitigating factors, the sentence was suspended upon the respondent entering into a recognisance in the sum of $2,000 to be of good behaviour for a period of three years.

5. The Crown has appealed against the sentence claiming that it is manifestly inadequate, that the learned sentencing Judge failed to have due regard to the seriousness of the offence and that he failed to incorporate adequate deterrent and retributive factors in the sentence.

6. It is now necessary to make a detailed assessment of the facts, bearing in mind that most of the material comes from the respondent.

7. Having entered the respondent's car, the victim put his hand on the respondent's leg; the respondent pushed the hand away. The victim put his hand back again saying words to the effect that the respondent was beautiful and that he would like to undress him. At this stage it is sufficient to quote from his Honour's sentencing remarks:
"He stopped the car on an oval in Calwell and turned off

the lights to ensure that no one would see what was going to
happen. He told M... to get out of the car, he walked
around the passenger's side of the vehicle where M... was
standing. He described M...'s condition as 'totally drunk,
slurring his words, couldn't shut up'. M... told the
accused that he had been 'on the piss for two days
straight'. The accused told police however, that M... was
walking normally and could stand on his feet.
When they were both out of the car, it's the accused's
version that M... stood up as if to make another homosexual
advance to the accused. The accused retaliated by punching
M... in the face with his right closed fist as hard as he
could. M... fell to the right and the accused punched him
again with his left fist, causing M... to go to the ground
and roll down a slight incline. When M... tried to get up
the accused kicked him in the face and M... went down again.
M... was screaming for the accused to stop, he tried to get
up again and was kicked in the face again and again with
considerable force.
By this time, M... was bleeding from the face and was
unconscious. Noticing that M... was having difficulty
breathing, the accused moved his head to one side to ensure
that M... didn't choke on his own blood. The accused left
M... in that desperate condition and did nothing about
getting him any medical assistance."

8. Certain aspects of these findings of fact are most serious. First, the respondent was not content to stop his car and bundle his drunken passenger out into the street; instead he deliberately turned off into an oval where the risk of being seen was less. Next, he "turned off the lights to ensure that no one would see what was going to happen". Then there were the two hard punches to the face and the repeated and sickening series of kicks to the face. The obvious premeditated and calculating action of the respondent was exceeded only by his brutality and his callous and total disregard for the well-being of his victim.

9. Understandably, there were aspects of the respondent's conduct and antecedents that had to be taken into account to his credit when assessing the correct sentence. He is a young man; he had just turned 19 at the time of the commission of the offence and he was entitled to feel threatened by his victim who was aged 42. He contacted the police voluntarily a few days after the attack and made a full and frank confession. He co-operated with the police, the probation and parole officer and the consulting psychiatrist who examined him. The respondent has maintained a defacto relationship for a period in excess of four years and he is the father of two young children from that union. Although he has some convictions for minor drug offences (which the learned sentencing Judge did not take into account) he has never been convicted of any offence of violence.

10. His Honour went on to say:

"He lives with (his) family in a government house and
supports them. He is in regular employment in the bakery
industry and the evidence is that he has good long term
prospects. He lives close to his own family, all of whom
see each other daily and are mutually supportive. He is
very concerned about what harm might come to his family as a
result of this offence. These are very relevant matters and
highly persuasive matters as to leniency. He has expressed
his regret but apparently not in respect of the victim."

11. This last remark appears to have been made as a consequence of a report on the respondent from the Adult Corrective Services, the relevant section of which states:-

"PROBLEM BEHAVIOUR
Mr Preston acknowledges that he uses violence often and sees
this related to how he deals with his anger what he believes
to be his 'rights'. Mr Preston was not able to acknowledge
the severity of his offence nor see the consequences of his
behaviour upon the victim of the crime. Despite this, Mr
Preston does believe he needs to learn how to deal with
violence and his anger in a different way and indicated
interest in receiving assistance to this end."

12. The victim suffered extensively; he had facial bone fractures to the nose and upper jaw, injuries to his chest and bruising and lacerations around his eyes. No fracture of the head was observed but a cat scan revealed extensive haematoma to the head. He was hospitalised for almost four weeks and when examined by a neuro-surgeon on 26 February 1991, it was noted that there was impairment of speech and impairment of memory. The medical assessment was that his overall memory functioning and frontal lobe functioning had been mildly to moderately impaired.

13. The following extract from the record of conversation between the investigating police officer and the respondent is illuminating; on the one hand, it shows candour and honesty on the part of the respondent for which he is entitled to credit, but on the other hand, it shows a callous disregard for the well-being of his victim which is very disturbing in one so young:

"Q85. Do you believe he required medical attention following
this assault.
A. Yes I do, he would have needed at least some.
Q86. Do you believe that this medical attention was needed
on an urgent basis.
A. Yes I do.
Q87. Did you make any efforts to seek any such medical
attention for M....
A. No I did not.
Q88. Is there any reason for this.
A. Like I said I was scared about everything and I did
not want anyone to know that I was the person who
assaulted M....
Q89. Do you believe that it was reasonable to seek medical
attention for M....
A. Yes I do.
Q90. Do you agree that you earlier told me that you
believed M... was choking on his own blood.
A. Yes I do.
Q91. How did you come to this conclusion.
A. By the way he was breathing, finding it hard to
breathe and I could hear a choking sound.
Q92. What do you believe would have happened if in fact
M... had choked on his own blood.
A. Stopped breathing and died.
Q93. Did you take any steps to ensure M... was not choking
on his own blood.
A. Yeah, I did I moved his head to the side to a side
position to make sure that the blood could run freely.
Q94. Did this action assist M...'s breathing.
A. I would not have a clue. I just moved his head and
walked off."

14. The principles pursuant to which this Court will consider a Crown Appeal on the grounds that the sentence was manifestly inadequate were stated by a Full Court of this Court in R v Tait and Bartley (1979) 24 ALR 473 at p 476:

"An appellate court does not interfere with the sentence
imposed merely because it is of the view that that sentence
is insufficient or excessive. It interferes only if it be
shown that the sentencing judge was in error in acting on a
wrong principle or in misunderstanding or in wrongly
assessing some salient feature of the evidence. The error
may appear in what the sentencing judge said in the
proceedings, or the sentence itself may be so excessive or
inadequate as to manifest such error (see generally Skinner
v R [1913] HCA 32; (1913) 16 CLR 336 at 339-40; R v Withers (1925) 25 SR
(NSW) 382 at 394; Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at 249;
Griffiths v R [1977] HCA 44; (1977) 15 ALR 1 at 15-17).
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 C.J., Peel v
R [1971] HCA 59; (1971) 125 CLR 447 at 452; (1972) ALR 231 at 233). 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, Whittaker v R, supra
at 248). 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."

15. A few years later King C.J., in R v Osenkowski (1982) 30 SASR 212, made the following comments which Gallop J., as a member of a Full Court in R v Boudelah [1991] FCA 124; (1991) 100 ALR 93 at p 103, described as "powerful observations":

"It is important that prosecution appeals should not be
allowed to circumscribe unduly the sentencing discretion of
judges. There must always be a place for the exercise of
mercy where a judge's sympathies are reasonably excited by
the circumstances of the case. There must always be a place
for the leniency which has traditionally been extended even
to offenders with bad records when the judge forms the view,
almost intuitively in the case of experienced judges, that
leniency at that particular stage of the offender's life
might lead to reform. The proper role for prosecution
appeals, in my view, is to enable the courts to establish
and maintain adequate standards of punishment for crime, to
enable idiosyncratic views of individual judges as to
particular crimes or types of crime to be corrected, and
occasionally to correct a sentence which is so
disproportionate to the seriousness of the crime as to shock
the public conscience." (pp 212-213)

16. The starting point in a consideration of this appeal is the respondent's youth and the fact that he has no previous convictions for offences of violence. It is well settled that a custodial punishment should not be imposed upon a young man except as a matter of last resort; see, for example, the remarks of Mitchell J. in McGregor v Steel (1973) 5 SASR 222 at p 223. In The Queen v Weaver (1973) 6 SASR 265 the Full Court of the Supreme Court of South Australia (comprising Bray C.J., Mitchell and Sangster JJ.) said of a young offender that "his rehabilitation should be a prominent consideration in fixing the sentence" (p 267). However, those same three Judges also said in a later case:-

"Nor do we want to give countenance to the idea that
imprisonment is never proper for a first offence. There are
many cases in which it is proper, particularly when the
crime is marked by unprovoked violence or other
circumstances tending to indicate that the offender should
be removed from society for a time for the protection of the
public..."

The Queen v Locke (1973) 6 SASR 298 at p 301.

17. Cases of assault require individual assessment; it is difficult, and quite often impossible, to take a general approach. So much depends upon the particular circumstances of the offence as well as the personal circumstances of the offender and the victim. Nevertheless, the sentence imposed by Miles C.J. in the matter of Watmough (23 March 1990) has a particular relevance to this case as Watmough was also a young offender who engaged in a brutal assault. Watmough was found guilty by his jury of the lesser charge of maliciously inflicting grievous bodily harm; actual intent was not found against him. He had formed the drunken (and mistaken) view that his victim had molested a young girl; he pushed his victim who fell hitting his head. Watmough then repeatedly brought the heel of his boot down on the face of the prostrate victim. The victim suffered shocking facial injuries, but made a remarkable recovery after surgery. Watmough, who was also 19 at the time of the offence, and who had no relevant previous convictions, received a head sentence of three years and six months imprisonment (unsuspended) with a non-parole period of eighteen months.

18. Bad as Watmough's conduct may have been, there were elements of the respondent's behaviour that were worse. The respondent told the police that he was sober at the time when he assaulted his victim whereas Watmough was clearly drunk; there was a degree of calculating deliberation and premeditation which was missing from Watmough's drunken spontaneity. Both assailants inflicted very severe injuries to their victims but, whereas the respondent left his victim in the desolation of some park or oval in the middle of the night, Watmough's attack took place in a tavern and others were present to render immediate assistance. Finally, Watmough's victim has not suffered any apparent residual disabilities.

19. The very apparent difficulty that confronted the learned sentencing Judge in this case was how to balance the respondent's youth, stable home and family environment and his antecedents with such a brutal assault that caused such serious injuries to his victim.

20. One fundamental principle of the criminal law is that it exists for the protection of the community; the community is entitled to expect that severe punishment, extending to custodial sentences where appropriate, will be imposed where the circumstances warrant such action. Furthermore, a Court must in appropriate cases - and this is an appropriate case - have regard to the need to deter others when determining the duration of a sentence. On the subject of deterrence and violence, Bray C.J. said in Sellen v Chambers (1974) 7 SASR 103 at p 106:-

"Violence has increased, is increasing, and ought to be
diminished, particularly violence by young men towards each
other."

21. A year later he added in Birch v Fitzgerald (1975) 11 SASR 114, a case dealing with the imposition of a penalty of imprisonment for assault upon a first offender:

"Nevertheless there are offences in which, as it seems to
me, the deterrent purpose of punishment must take priority.
When people act under the influence of liquor, passion,
anger or the like so as to constitute themselves a physical
danger or potential physical danger to other citizens it may
well be that a sentence of imprisonment will be appropriate,
even in the case of a first offender of good character, in
order to impress on the community at large that such
behaviour will not be tolerated." (pp 116-117)

22. After then referring to his earlier remarks in Sellen v Chambers, he added:

"It may be that the incidence of such violence will be
reduced if it is brought home to those likely to resort to
it that if they do they may very well be punching, striking,
butting or kicking themselves into gaol."

23. In addition, the question of retribution should not be overlooked in a case such as this. The injured feelings of the victim and his family and the moral sense of outrage of those members of the community who know him or know of this crime are entitled to full consideration. It is hardly necessary to add that these factors would have added to the difficult task of sentencing.

24. The learned sentencing Judge concluded without difficulty that a gaol sentence was appropriate and although the period of three years might be regarded by some as lenient, having regard to Watmough's head sentence, it must be acknowledged that it was within the range of penalties that was available to his Honour. The question of suspension however is a more difficult matter. It is clear that this Court, in reviewing the discretion to suspend the sentence, must operate upon the same principles as apply to the review of the judicial discretion to impose the head sentence: R v Prindable (1979) 23 ALR 665.

25. When regard is had to the whole of his sentencing remarks, it becomes apparent that his Honour charitably gave great emphasis to those factors that militated in favour of the respondent whilst giving insufficient attention to matters of deterrence, retribution and protection of the community. This must be classified as perceived error justifying the intervention of this Court. The gravity of the respondent's conduct and the seriousness of the victim's injuries are so gross that an unsuspended term of imprisonment is essential; the many mitigating features to which reference has already been made can be utilized by the imposition of a lower than normal non-parole period. Indeed, if the respondent can learn from this bitter experience to curb his temper and to channel his physical energies into some harmless pursuit he could make an excellent candidate for parole; it would be reasonable to assume that those expectations might not be misplaced.

26. The appeal should be allowed for the purpose of setting aside the order suspending the execution of the sentence and the bond into which the respondent entered. In lieu the head sentence of three years should be confirmed but to date from the date upon which the respondent is taken into custody. There should be a non-parole period of ten calendar months to run from the same date.

I have had the advantage of reading, in draft, the Reasons or Judgment of O'Loughlin J. Accordingly, I will not again set out the facts of the matter.

2. The issue upon the hearing of the appeal is whether it was appropriate to suspend the operation of the sentence of three years imposed.

3. It is not in dispute, of course, that a custodial sentence, even if suspended, is a real punishment and a real deterrent. It is also true, as O'Loughlin J has stated, that violence in society should be prevented and deterred. Violence, whether in the home or, as in this case, between chance acquaintances in other places, must be seen to be firmly condemned. It should also be made clear that an unwelcome sexual advance is no reason for violence whether in the making of it or in the rejection of it. It seems clear, in this case, that the appellant merely visited vengeance upon his victim.

4. It was not an enviable task for the sentencing Judge, however, to balance the need for punishment as O'Loughlin J has identified it, with the personal circumstances of, and the impression made on the learned sentencing Judge by the offender.

5. I think, on balance, that, even allowing for the indefinable weight to be accorded the latter factor, it is correct to say that the sentence imposed was lenient.

6. However, there is another consideration. Since the sentence was imposed on 19 July 1991, the appellant has been at liberty. He has, it must be presumed, been conforming to the terms of his recognizance.

7. In R v J (1982) 45 ALR 331, the Crown appealed against the imposition of suspended sentences for incest with a step-daughter. It was recognized by this Court that in a case of incest an immediate custodial sentence would be appropriate and anything less would usually be regarded as inadequate.

8. However, although Toohey J considered the sentences imposed on J to be insufficient, he was not persuaded that it was so insufficient as to be the result of some undisclosed error. Gallop J agreed and in doing so observed that a Crown appeal seeking to increase a sentence, particularly where it seeks to alter it in kind, raises an additional need for restraint on the part of an appellate court. A case for increasing a sentence in those circumstnaces would need to be "compelling" (p 342). In R v J (supra) his Honour also gave great weight to the prima facie advantage enjoyed by, and the great experience of, the sentencing Judge. In this case, those factors add to the need for restraint before it should be accepted that the sentencing discretion has miscarried.

9. In R v Steich [1985] FCA 55; (1985) 5 FCR 518, suspended sentences were imposed for serious sexual offences involving a young boy. The sentences were imposed on 3 August 1984. The Crown appealed on 17 August 1984 but took no steps to expedite the appeal until January 1985. It was heard on 19 and 20 February 1985. In the meantime, the respondent had submitted to psychiatric counselling and otherwise co-operated in keeping the conditions of his recognizance. Bowen C.J. and Beaumont J approached the matter as follows:-

(524) "In our opinion, even if some error in his
Honour's sentencing process could be
demonstrated, given the Crown's delay in pursuing
its appeal in full knowledge of the parole
conditions imposed on sentence, it would be
unfair to the respondent if this Court were now
to order a custodial sentence."

10. In R v House and Thorne [1991] FCA 126; (1991) 28 FCR 194, this Court was of the view that sentences imposed by me on the respondents were inadequate. At the time of the hearing of the appeal, however, the offender Thorne had served the custodial portion of his original sentence. Gallop J said as to that:-

(200) "I am also of the opinion that the
sentence imposed upon the respondent Thorne was
too lenient in all the circumstances. However,
the court indicated on the hearing of the appeal
that as the respondent Thorne had been released,
having served the period of six months
(non-parole period) imposed by the Supreme Court,
and entered into the recognizance ordered, it
would not make such an order as would involve the
respondent Thorne returning to custody."

11. Von Doussa J expressed the matter even more directly.

(202) "The matter of the respondent Thorne
raises a particular difficulty. Although the
sentence imposed on him was in my opinion
inappropriate and inadequate, he has already
served the term of imprisonment which was fixed,
he has entered into a recognizance on the
conditions formulated in the sentence, and he has
commenced to fulfil those conditions. It would
be cruel to return him to gaol."

12. A similar view was taken by this Court in R v Trenholme (unreported; 20/9/88; Federal Court). The principle that an offender should not be subject to punishment which is cruel or unusual (that is, adversely unusual) was recognized in Magna Carta.

13. A Crown appeal already involves a form of double jeopardy for a respondent. Nevertheless, to postpone a release date or to increase a fine or period of community service, whilst unusual, does not profoundly alter the nature of the penalty imposed on the offender. To impose an immediate custodial sentence when one has not been imposed by an experienced sentencing Judge to my mind would shock the community just as much if not more than the leniency of the original sentence.

114 It follows that I would dismiss the appeal with costs.