‘Smith, John’ v Tasmania (State of) [TASCCA]

• Jurisdiction: Tasmania
• Judge: Tennent J,Porter J,Wood J
• Judgment Date: 28 February 2012
• Date: 28 February 2012
• Court: Court of Criminal Appeal
• Docket Number: 805/2011

[2012] TASCCA 3

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Tennent, Porter and Wood JJ

805/2011

‘Smith, John’

and

Tasmania (State of)

Green v The Queen (2011) 86 ALJR 36 , followed.

Aust Dig Criminal Law [3522]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Disparity — Co-offenders — Equal culpability but differences in personal circumstances — Whether marked disparity.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Tennent J

1 I have had the benefit of reading draft reasons of Porter J. I agree with those reasons and the outcome he proposes.

Porter J

Introduction

2 This is an appeal against sentence. The appellant pleaded guilty before Crawford CJ to two counts of assault contained in an indictment dated 16 August 2011. The counts arose out of the one incident on 1 April 2010. The first count was a joint charge alleging that the appellant, together with AB and CD assaulted X by punching and kicking him to the head, knocking and dragging him to the ground, and by pushing him into a window. The second count was brought solely against the appellant, and it alleged that he assaulted X by kicking him to the head.

3 On 25 August 2011, the appellant was sentenced to 15 months' imprisonment cumulative to a sentence of three months which he was then serving. That sentence expired on 5 October 2011. It was ordered that he not be eligible for parole until he had served nine months of the sentence. AB and CD pleaded not guilty to the first count. Following a jury trial before Crawford CJ, AB was acquitted but CD was convicted. On 8 September 2011 CD was sentenced to six months' imprisonment to date from 31 August 2011, with the execution of the last three months of that sentence suspended on condition that for two years following his release, he not commit an offence punishable by imprisonment.

4 In this appeal, the appellant was initially unrepresented, but on 9 November 2011 the Court made an order under theCriminal Code, s410, directing that he be given assistance under the Legal Aid Commission Act 1990. When the matter came back before us, an amended notice of appeal had been filed, and the appellant was represented by counsel. There are three grounds of appeal. Those grounds allege a specific failure to take into account a matter raised in the sentencing hearing, unjustifiable disparity with the CD sentence, and manifest excessiveness.

The facts of the assaults

5 The following is a summary of the facts taken from the respondent's written submissions. It seems to accurately summarise the facts put before the sentencing judge, and it is convenient to adopt it with some modifications.

• •On 1 April 2010 at 1l.20pm the appellant (aged 40) and two friends AB (aged 35) and CD (aged 24) were in the carpark at the rear of the Waratah Hotel. The appellant and the other two men were members or associate members of a motorcycle club.

• •At about the same time the complainant, X, was waiting in a line of about 20 people at the Waratah Hotel Bottle Shop, which operates from an external window at the rear of the hotel adjacent to the carpark.

• •CD and the appellant walked to the front of the line of people and stood in front of the next person waiting to be served. A short time later the appellant walked back to their taxi.

• •The appellant yelled out to CD to buy some drinks for the girls standing in line behind them. CD ordered some alcohol. This prompted the complainant to yell out a comment. CD yelled back at the complainant.

• •The appellant got out of the taxi and walked to where CD was standing at the bottle shop. The appellant and AB walked up to the complainant and started arguing with him. CD remained at the bottle shop window and finished purchasing alcohol. Afterwards he walked to where the appellant and AB were and stood behind them.

• •A fourth unknown male moved away from the taxi and stood behind the appellant, AB and CD. The appellant had an open stubby in his hand. He turned and handed his beer to someone. He turned back and stood next to AB and CD and continued to argue with the complainant. After a short time the appellant, CD and AB and the fourth unknown male walked back towards the taxi. As they walked away the appellant continued to argue with the complainant and the complainant argued back.

• •This caused the appellant, CD and AB to all walk back to the complainant. AB argued with the complainant. Initially the appellant tried to remove AB. However within a short timeframe the appellant pushed his face right into the complainant's face and started yelling,‘Who the fuck do you think you are, fuck off shut up and fuck off or I'll stab you’.

• •The appellant pushed the complainant to the chest. The complainant felt intimidated and started swinging punches at AB and the appellant. AB and CD punched the complainant to the head and body. CD grabbed the back of the complainant's singlet, which came off. The appellant, CD and AB and a fourth man closed in on the complainant while he was on the ground and the appellant kicked the complainant to the body on a number of occasions.

• •AB repeatedly punched the complainant to the head and body while the appellant and CD intermittently kicked the complainant to the body. AB and CD kicked and kneed the complainant to the body. The appellant menaced others in the area to stop them from providing assistance and stayed in the area to aid and assist the others assault X.

• •CD and AB placed the complainant in a headlock and he was pushed into a glass window. After this point the complainant CD and AB went around the corner. At this point the appellant moved away from the area. It was not asserted that he was a party to what had occurred around the corner.

• •Around the corner, CD and AB assaulted the complainant by punching and kicking him until he was motionless.

• •Persons unknown dragged the complainant back from around the corner, and the appellant walked directly to the complainant and kicked him to the head.

6 The sentencing judge was told that much of the incident was captured on CCTV footage. His Honour was told that after the complainant had been pushed into the glass window, the assault by the CD and AB occurred around a corner out of the view of the camera. The sentencing judge was not shown the CCTV footage in the sentencing hearing. His Honour was further told that the complainant received a fracture to the eye socket with multiple bruises and cuts to the face and body. By way of a victim impact statement his Honour was told that the physical injuries have all resolved, with the apparent exception that there is some altered sensation at the end of the complainant's nose.

7 The sentencing judge was also told that the appellant was first committed to the Supreme Court on 20 September 2010, but he failed to appear on 7 March 2011. A warrant for his arrest was executed in New South Wales whence he was extradited on 6 July 2011. On 19 July he was sentenced in the Magistrates Court to imprisonment for three months, backdated to 6 July 2011. That sentence was the one to which the sentence of 15 months was made cumulative, and was for an offence of dishonesty committed on about 3 February 2011; apparently as the appellant was leaving the State to go to New South Wales.

8 The appellant's prior convictions from a number of States were put before the sentencing judge. These included offences of dishonesty, drug and firearm offences, in particular, he hadconvictions for armed robbery and attempted robbery (apparently the one event) when he was 16 years old. The appellant has convictions for assault in Victoria in 1990 and 1992, and one in Western Australia in 1999. That last one was dealt with in a court of petty sessions, with the appellant apparently being released on a $1000 recognisance. It was the last offence of violence before these crimes, although on 19 July 2011 he was also convicted in the Magistrates Court of assault and breach of a family violence order committed on 11 December 2010, and a further breach of a family violence order on 7 January 2011. (For those matters, along with a breach of bail relating to when he absconded, the appellant was sentenced to one month's imprisonment wholly suspended on conditions.)

9 The principal matters which were put on the appellant's behalf in mitigation were as follows.

• •The appellant was the least active participant of the three offenders in relation to the first count of assault, he not being a party to that aspect of the assault which happened around the corner of the building out of CCTV range and at a time when he had left the immediate area.

• •The appellant had been experiencing personal difficulties at the time of the assault, including the breakdown of a relationship from which there was a young child; there had been difficulties in him maintaining contact with that child.

• •His co-accused were members of the motorcycle club, but he has since ended his association with that ‘gang’.

• •The distancing himself from the club has caused, and will continue to cause difficulties for him. His life was threatened and on one occasion, when answering his front door, he was shot at and later admitted to hospital after suffering a heart attack.

• •As a result of all of that, he left the State fearing for his life, and established a new life for himself within a relatively short period of time, finding both employment and stable accommodation.

• •Upon his extradition he had indicated his intention to plead guilty to the charges.

• •A ‘letter of comfort’ dated 15 August 2011 signed by a Detective Inspector was tendered to the sentencing judge. This outlined information provided by the appellant to police, some of which had resulted in ‘positive operational results’, and stated that the appellant should be given some credit for what he has done. (In the course of submissions, the sentencing judge...