Back in June, Dr Manhattan discussed the Victorian Court of Appeal’s recent decision on glassing sentences, Winch v The Queen [2010] VSCA 141.

In simple terms, the Court held that ‘glassing’ will typically result in a jail sentence.

That case — and many others — was recently considered by the West Australian Court of Appeal in Powell v Tickner [2010] WASCA 224, a sentence appeal for a glassing offence.

The facts

On 22 November 2009 at the Ingelwood Hotel, Perth, Mark Tickner jumped in to help his friend Jacob Stone in a fight with Clinton Theyer.

[22] On 22 November 2009 at about 10.00 pm, the complainant (Clinton Theyer), the respondent and the respondent’s co-accused (Jacob Stone) were at the Inglewood Hotel. The complainant and the respondent had a verbal altercation. Shortly afterwards, the complainant left the hotel. The respondent informed his co-accused about the altercation and identified the complainant to him. As the complainant was about to get into his (the complainant’s) motor vehicle, the co-accused left the hotel, ran up to the complainant and smashed a glass into the left side of his face. The complainant responded by raising his fists as if he was going to strike the co-accused. This action was seen by the respondent who had also left the hotel with a glass. He ran towards the complainant and smashed the glass into the right side of his face. Both glasses shattered upon impact. The respondent and his co-accused then left the scene.

Theyer suffered deep lacerations near both eyes and ear, and needed plastic surgery.

On 20 January 2010, Tickner pleaded guilty at the Magistrates’ Court to one count of unlawful wounding contrary to Criminal Code s 301(1), which provides:

301. Wounding and similar acts

Any person who —

(1) Unlawfully wounds another; or

(2) Unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to or taken by any person;

is guilty of a crime, and is liable —

(a) if the offence is committed in circumstances of aggravation, to imprisonment for 7 years; or

(b) in any other case, to imprisonment for 5 years.

Summary conviction penalty:

(a) in a case to which paragraph (a) above applies: imprisonment for 3 years and a fine of $36 000; or

(b) in a case to which paragraph (b) above applies: imprisonment for 2 years and a fine of $24 000.

The Magistrate’s sentence

The Magistrate spoke about ‘community expectations’ and how that might affect sentencing.

As indicated earlier the maximum penalty that this summary court can impose for unlawful wounding is two years’ imprisonment and a fine of $24,000. Within those parameters … judicial officers must exercise their discretion but this discretion has to be exercised in accordance with community expectations. I appreciate that community expectations are not always easy to determine but one very clear community expectation is that if someone smashes a glass or bottle into another person‘s face and causes [disfiguring] injuries, then that person must be dealt with by way of a prison sentence.

Sentences have two functions: a specific deterrence, and a general deterrence. A specific deterrence is of course the deterrence directed at the individual defendant. The general deterrence is directed at the community in general so that the general community is aware that as in this situation if one smashes a glass or bottle into another’s face and causes [disfiguring] injuries, then that person will be sent to gaol. That is the purpose of a general deterrence and that is what the community expects, and it is the community expectation that must determine the judicial discretion.

Judicial officers don’t have the discretion outside the scope of community expectations and if they do venture outside the scope of community expectations then it is the appellant [sic] court’s duty to amend the penalty back to within the scope of community expectations, and even the appellant [sic] courts have the obligation to be guided by community expectations (ts 12).

The magistrate considered general deterrence was important for ‘glassing’ offences because they were so frequent.

The sentencing magistrate considered he could deal with the charge summarily, and on 11 March 2010 imposed an 18-month jail term, noting that Mr Tickner was entitled to a 25% discount on the sentence he would otherwise have faced because he pleaded guilty to the charge.

Supreme Court appeal

Mr Tickner appealed to the Supreme Court (see Tickner v Powell [2010] WASC 142).

The Supreme Court allowed his appeal, and imposed a conditionally suspended sentence.

The Crown applied for leave to appeal.

Court of Appeal application

Ultimately, the grounds of appeal were, at [47]:

1. The learned Appeal Judge erred in finding that ‘… it was accepted that the blow, although struck deliberately, was not struck, for the purpose of using the glass as a weapon with the intention of causing harm to the victim, although harm was done’.
2. The learned Appeal Judge erred in finding that the learned sentencing Magistrate erred by imposing an immediate term of imprisonment.

In the end, the Crown appeal was allowed: [128] – [134]; [1] & [136]. Mr Tickner was re-sentenced to 15 months jail to be served immediately, eligible for parole after 7½ months including 3 months and 11 days served following the Magistrates’ sentence.

Community expectations

The Court of Appeal considered the Magistrate was wrong in his view of ‘community expectations’.

McLure P said:

[7] It is not the task of the judicial officer to (try to) identify the sentence the community expects and then impose it. The community is not privy to all of the relevant factual material and principles that a judicial officer is required by law to take into account in sentencing a particular offender for one or more offences. The role of the judicial officer is to make an independent assessment as to the appropriate sentence according to law.

Buss JA provided the main judgment, and gave a detailed examination of community expectations, and what it meant for sentencers and how it should be applied.

[87] The sentence imposed by a court on an offender marks the community’s disapproval of the offender’s criminal behaviour. The sentencing process involves the public denunciation of the offending conduct and the reaffirmation of the community’s fundamental values as embodied in the substantive criminal law. See Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [118] (Kirby J); WCB [2010] VSCA 230.

[88] By s 6(1) of the Sentencing Act, a sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of an offence must be determined by taking into account the matters specified in s 6(2). A sentence that is commensurate with the seriousness of the offence will produce an outcome which is just as between the offender and the community.

[89] In Peterson, Burt CJ referred to the apparent assumption that when an offence becomes prevalent or increasingly prevalent the community demands retribution, and they see increased punishment as being ‘the sure way of reducing the number of such offences and even of persuading persons not to commit them at all’ (332). His Honour expressed considerable reservations about the accuracy of this assumption. He then said that if the assumption were accurate then his response would be, as follows:

[T]he expectation exceeds the capacity of the criminal law as an instrument controlling human behaviour. That is not to say that the idea of deterrence is to be abandoned. It is and it remains an important, and some may say the most important, idea reflected in punishment particularly for offences such as robbery. But it is to say that criminal behaviour is very much the product of factors, and many factors, both personal and social, which are beyond the reach of any court and which have operated and which will continue to operate to produce anti-social behaviour. The need for punishment must be accepted, but it must be accepted with a full appreciation of its limitation (332).

I respectfully agree with those observations.

[90] In R v Nemer [2003] SASC 375, Doyle CJ (Prior & Vanstone JJ relevantly agreeing) made the following comments, with which I respectfully agree, about a sentencing judge’s duty in the context of demands by the public (or a section of the public) for retribution:

The courts administer justice on behalf of the community. But they administer justice according to law. The sentencing process is governed by the Sentencing Act and other relevant laws. A judge cannot simply impose the sentence that the judge would like to impose, or that the judge thinks would satisfy the public. To do either thing would be contrary to law.

The judge can take account of public attitudes to the type of crime in question, and public concern about the prevalence of a type of crime or about its effects. In this general way public opinion is relevant. A sentencing judge can also have regard in a general way to a public expectation that serious crime will attract severe punishment. But it is not lawful for a judge to try to identify and then impose the sentence that the public expect. The judge must sentence according to law, not according to the public expectation. In any event, there is no way of knowing reliably what the public as a whole want or expect in a particular case [13] – [14].

[91] Recently, community expectations in relation to sentencing received detailed consideration by the Court of Appeal of Victoria in WCB [2010] VSCA 230.

[92] As Warren CJ and Redlich JA noted in WCB, the community is very poorly informed about most sentences that are imposed [16]. Their Honours said:

Every day many sentences are handed down across the Magistrates‘, County and Supreme Courts. Only a fraction of these are reported. The Sentencing Advisory Council found that the media reports selectively, choosing stories with the aim of entertaining more than informing, focussing on the unusual, the dramatic, and the violent. The view has been expressed in the United States that economic factors which encourage entertainment increasingly determine the style and content of crime reporting in both television and the print media at the expense of the traditional journalistic criteria of newsworthiness.

The Sentencing Advisory Council also found that the community has very little accurate knowledge of crime and the criminal justice system. Of the cases that are reported, a very small number are newsworthy only because they are considered ‘extreme’ in the sense that they appear on their face to be unusually lenient or stern. Though these sentences are very few by comparison with the large number of sentences that are imposed each year, and about which no criticism could legitimately be made, the bulk of sentences are unknown to the community at large. Whilst the majority of those sentences are concerned with the most commonly committed crimes they receive no public attention or focus. The consequence of all this is the risk of a communal perception that the abnormal sentence is the norm. Too often when a particular case is discussed in the press the mitigating features of the case that led the court to impose the sentence are not identified. Hence there can be no informed public discussion [16] – [17]. (footnotes omitted)

[93] Further, as their Honours noted in WCB, there is a widely held (and erroneous) perception within the community that, in general, sentences imposed by the courts are too lenient [20]. Their Honours elaborated:

In 2008 the Council summarised overseas and Australian research which shows that a combination of the public underestimating the severity of sentencing and over-estimating the severity of offending, builds a grossly inaccurate picture that has had serious implications for levels of public confidence in the criminal justice system.

The 2006 paper found that in ‘the abstract the public thinks sentences are too lenient’, and that people have ‘very little accurate knowledge of crime and the criminal justice system’, such that the mass media is ‘the primary source of information’ on those subjects. Selective publicity creates an unwarranted loss of confidence in the administration of criminal justice. Worse still, such publicity undermines the principle of deterrence. It creates the risk that offending will increase, because of the false perception that offenders will not be punished. None of this is intended to suggest that there should not be public discussion in the media about individual cases. The public have a right to criticise and hear the criticism of others through the media. That is a legitimate and important function of the media. But it should be informed and balanced discussion [22] – [23]. (footnotes omitted)

[94] The seriousness with which the community regards an offence is reflected by the Parliament in the maximum available penalty, as amended from time to time. Also, the seriousness with which the community regards particular anti-social behaviour may be reflected by the Parliament in the creation of a new offence. See R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209, 223 (Spigelman CJ, Wood CJ at CL & BM James & Adams JJ agreeing).

[95] The courts must take into account the seriousness with which the community regards an offence or particular anti-social behaviour as reflected in Parliamentary enactments; notably, by taking into account the maximum available penalty, and any increases in it, and any admissible extrinsic evidence in relation to the creation of an offence or any increases in the maximum available penalty.

[96] Also, the courts may take into consideration, in a general way, community attitudes to particular types of crime, and community concerns about the prevalence or increasing prevalence of particular kinds of offending, if the existence of these attitudes or concerns is able reliably to be established and the attitudes or concerns are reasonable and properly informed. For example, community attitudes to particular types of crime may be inferred from:

(a) the nature of the criminal conduct in question and the extent to which it departs from generally accepted norms of behaviour (for example, the sexual abuse of children); and

(b) the general experience of the courts, derived from expert and other evidence, in relation to the social and economic damage caused by certain types of crime (for example, commercial drug trafficking).

Obviously, this is not an exhaustive list.

[97] Sometimes a sentencing court refers to community expectations in the course of expounding upon the egregiousness of the transgression by the offender against the community’s fundamental values. The notion of community expectations has also been employed by appellate courts, in the context of State or Crown appeals against sentence, in formulating the question of whether the sentence imposed at first instance was so disproportionate to the seriousness of the offence as to ‘shock the public conscience’. See R v Clarke [1996] 2 VR 520, 522 (Charles JA, Winneke P & Hayne JA agreeing). Also, sentencing courts refer occasionally to community expectations to denote the importance of general deterrence in relation to a particular offence or kind of offending.

All members of the Court agreed this particular case warranted imprisonment, but they shied away from saying that ‘glassing’ always required immediate imprisonment.

McLure P said:

[12] …However, the use of glass as a weapon causing injury is not itself a discrete offence. The use of glass as a weapon causing injury can be a circumstance of a wide variety of different offences, the seriousness and maximum penalty for which vary greatly.

[13] As the seriousness of the potential offences involving the use of glass as a weapon causing injury and the seriousness of the circumstances of the offending are so highly variable, it cannot be said that ordinarily a term of immediate imprisonment should be imposed.

Buss JA didn’t expressly say anything on this point, but by virtue of his review of ‘glassing’ cases and the facts in this case it seems he agreed that the sentencer must consider a variety of factors. Nonetheless, prevalence of the of the offence, and need for general deterrence would usually result in an immediate jail term.

[125] Eighthly, although the proper sentencing disposition in any case depends on the facts and circumstances of the particular offending and offender, the apparent frequency of glassing attacks, and the necessity to give greater weight to general deterrence, indicates that a term of imprisonment to be served immediately will ordinarily be required where:

(a) the glass has been used intentionally as a weapon and has been used intentionally to harm the victim (even if there was no intention to cause harm to the degree actually inflicted);

(b) the offender has not reacted instinctively to a serious provocation (for example, a provocation of or comparable to the kind which occurred in Etrelezis); and

(c) seriously disfiguring injuries (or other serious injuries) have been caused to the complainant,

despite the relative youth of an adult offender or the existence of generally good personal antecedents.

It seems appellate courts agree that jail can’t be set in stone as the only sentence for such serious offences, but it’s almost inevitable as the final result.