The Queen v Tracey Campbell [ACTCA]

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Gray P,Refshauge,North JJ
• Judgment Date: 04 May 2010
• Docket Number: No. ACTCA 1 of 2010
• Date: 04 May 2010

[2010] ACTCA 20

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judges:

Gray P, Refshauge and North JJ

No. ACTCA 1 of 2010

No. SCC 105 of 2009

Between:

The Queen

Appellant

and

Tracey Campbell

Respondent

Counsel for the Appellant: Mr J White

Counsel for the Respondent: Dr B Boss

R v Lappas (2003) 152 ACTR 7

Hawkins v Hawkins (2009) 3 ACTLR 210

R v Thorn [2010] ACTCA 10

R v Ellis (1993) 68 A Crim R 449

R v Morse (1979) 23 SASR 98

R v Thawer [2009] NSWCCA 158

R v Derich [2009] VSC 160

R v Doorey [2000] NSWCCA 456

R v Griffiths (1932) 23 Cr App R 153

R v Marquis (1951) 35 Cr App R 33

R v Johnson (unreported CCA (Vic), 4 November 1982)

R v Barton (2001) 121 A Crim R 185

Mill v The Queen (1988) 166 CLR 59

R v Bloomfield (1998) 44 NSWLR 734

Henderson v McKenzie [2009] ACTSC 39

Crimes Act 1900 (ACT), s 20

Crimes (Sentencing) Act 2005 (ACT), ss 7, 51(1), 55, 56, 57, Pts 4.3, 4.4

CRIMINAL LAW — SENTENCING — Crown appeal — sentence manifestly inadequate — additional offence to be taken into account — conviction confirmed — appeal allowed — sentence of six months imprisonment suspended upon court making a good behaviour order.

ORDER

THE COURT ORDERED THAT:

• 1. The appeal be allowed.

• 2. The conviction be confirmed but the sentence set aside.

• 3. In lieu of the sentence imposed on 4 November 2009, the respondent be sentenced to imprisonment for six months to be wholly suspended forthwith from that date and a good behaviour order be made with the same conditions as were made on the original sentence.

REASONS FOR JUDGMENT

THE COURT:

1 On 13 November 2008, the respondent, Ms Tracey Campbell, was involved in an altercation with another person, Mr Timothy Ransley, in which Mr Ransley was seriously injured by a knife being held by Ms Campbell.

2 On 4 November 2009, Ms Campbell pleaded guilty to an indictment containing one count that she recklessly inflicted grievous bodily harm on Mr Ransley, an offence against s 20 of the Crimes Act 1900 (ACT) which carries a maximum penalty of 10 year's imprisonment. On 17 December 2009, she was sentenced in the Supreme Court and convicted with the Court making a good behaviour order for a period of two years on conditions that she accept the supervision of ACT Corrective Services and obey all reasonable directions of such officer or officers as may from time to time be appointed for that purpose. In the course of that supervision, she be assessed for the ACT Corrective Services Cognitive Self-Change Program and, if found suitable, to participate in and fully complete that program and if found suitable and directed to do so, to participate in the ACT Health Effective Weed Control Program. In the sentence it was also suggested it may be desirable for Ms Campbell to undertake anger management and/or counselling.

3 It is from this sentence that the Crown appeals.

4 On 4 May 2010, this Court ordered that the appeal be allowed, the conviction confirmed but the sentence set aside and in lieu Ms Campbell be sentenced to imprisonment for six months which was wholly suspended forthwith and a good behaviour order made with the same conditions as imposed on the original sentence.

5 The Court indicated that it would publish its reasons later. These are those reasons.

The appeal

6 The Crown appealed from the sentence imposed on Ms Campbell on the following grounds:

• (a) The sentences imposed were manifestly inadequate;

• (b) His Honour erred in failing to give sufficient weight to deterrence and punishment in relation to the respondent;

• (c) His Honour erred in failing to give sufficient weight to the objective seriousness of the crime;

• (d) His Honour erred in giving undue weight to the respondent's lack of intention to injure the victim;

• (e) His Honour erred in holding that the victim had been violent towards the respondent;

• (f) His Honour erred in failing to take into account an additional offence in making a sentence order for the principal offence.

7 The submissions of the appellant state that a list of additional offences under Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) ( Sentencing Act) was handed up and complains that it was not properly taken into account. It was said to contain one offence, namely possession of a knife without reasonable excuse. There is a reference in the transcript to the handing up of the list.

8 Section 55 of the Sentencing Act applies where an offender ‘has been convicted or found guilty’ of the principal offence or offences before the Court. It seems to have been filed before Ms Campbell had been convicted. However, she had pleaded guilty and this may be sufficient for the purposes of the section. No sentence had been imposed so there can be said to have been substantial compliance with s 55(1)(b).

9 Despite the reference to the list in the transcript in the Appeal Book and in the submissions of both the appellant and Ms Campbell, unaccountably, no copy was included in the Appeal Book but a copy was handed up at the hearing of the appeal and received by this Court.

10 The Crown sought that a sentence be substituted requiring Ms Campbell to serve a term of immediate imprisonment.

Crown appeals

11 The restraints on Crown appeals against sentence are well known and not in doubt. The law is that on a Crown appeal, the appellate court should exercise restraint before interfering with a sentence imposed at first instance and then only where a principle of sentencing or the objectives for which such appeals are established is made out.

12 This was well set out in R v Lappas (2003) 152 ACTR 7 where Weinberg and Cooper JJ said (at [120]-[123]):

120. In Everett v The Queen (1994) 181 CLR 295 Brennan, Deane, Dawson and Gaudron JJ said at 299-300:

… An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified'. In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ, in Griffiths v The Queen:

an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.

The reference to “matter of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting “error in point of principle.” (Footnote omitted)

121. Moreover, appellate courts have generally recognised that the element of double jeopardy in such appeals should be reflected by providing that on a successful Crown appeal, the sentence imposed should not be as severe as that which the Court would have imposed at first instance: see R v Cobb (1999) 84 FCR 450 at 453.

122. The next matter to be noted is that an appeal against sentence involves a challenge to the exercise of a discretionary judgment. The principles governing appeals against such judgments are well known: see House v The King (1936) 55 CLR 499 at 505; Lowndes v The Queen (1999) 195 CLR 665 at 671-672 and Dinsdale v The Queen (2000) 202 CLR 321 at 334. The same point was made by McHugh J in Everett v The Queen at 306 where his Honour said, in relation to whether a sentence was manifestly inadequate:

Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence.

123. More recently in Wong v The Queen (2001) 207 CLR 584 Gaudron, Gummow and Hayne JJ observed at par [58]:

Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residual category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.

The facts

13 Ms Campbell and Mr Ransley had been in a relationship over a two year period until January 2008. It was described as an ‘on-again, off-again relationship’. Mr Ransley had since entered into a new partnership with another woman.

14 On the day of the offence, Ms Campbell walked by Mr Ransley's residence where he and his new partner were. Ms Campbell was shouting, though there was no evidence of what she was shouting.

15 Mr Ransley left his home and ran after Ms Campbell. As he approached...