R v Lewis[2022] QCA 14

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of Morrison JA.
2. [2]
   MORRISON JA:  The respondent (Lewis) had a troubled relationship with his girlfriend (PAM) in about 2016.  Each were users of methylamphetamine and whilst they had been in an intimate relationship for about two years, that relationship was characterised by domestic violence involving physical fights.
3. [3]
   Two incidents, in particular, preceded the events of 27 May 2016.  The first was at the start of 2016.  Lewis and PAM were both affected by methylamphetamine and became involved in an argument.  Lewis told her he was going to set her on fire.  He threw a jerrycan of petrol at her during that argument.  The lid of the can was not properly secure and as a result petrol landed on her shirt.
4. [4]
   The second occurred about one week prior to 27 May 2016.  Lewis and PAM were involved in an argument over the fact that Lewis had possession of her wallet and would not give it to her.  PAM wanted it so she could use her bankcard to get some money out of her bank account.  During the argument Lewis picked up a flat head screwdriver and threw it at her.  The screwdriver struck PAM in her left hip and became embedded in her skin.  Lewis came over and pulled the screwdriver out.  That incident was not reported to police at the time.
5. [5]
   The events with which this appeal is concerned occurred on 27 May 2016.  Lewis arrived home with a friend late in the afternoon.  They commenced working on PAM’s car.  Lewis was using a beer bottle full of fuel to strip paint from the outside of the car.  He was using the fuel from the bottle to wet a rag, then rubbing the paint off.  PAM came outside and asked Lewis to give her the shared mobile telephone they used, as she needed to call Centrelink.  At that time both she and Lewis had recently used methylamphetamine.
6. [6]
   Each time PAM asked for the phone, Lewis would tell her “No, go away”, and “Do you want to start a fight?”  Notwithstanding, PAM continued to ask for the phone, and Lewis continued to refuse to give it to her.
7. [7]
   PAM was standing near the boot of the car when she pushed Lewis with both hands.  In response he pushed her back into a brick pillar.
8. [8]
   Lewis then walked around to the driver’s seat and sat down.  PAM followed and they continued to argue.  The argument became more and more heated.  That was witnessed by a second friend of Lewis, who had arrived at the house.
9. [9]
   Lewis made a comment that if PAM kept arguing in front of his mates, he would put petrol on her and set her on fire.  PAM did not believe the threat and told him “Whatever. Just give me the phone”.
10. [10]
    Immediately upon her saying that, Lewis threw the beer bottle containing the fuel with his right hand, causing fuel from the bottle to splash over the front of PAM.  She put her hands up in front of herself.  Lewis extended his left hand and flicked a lighter.  The fumes in front of PAM ignited and the front of her body became engulfed in flames.
11. [11]
    PAM jumped back and tried to extinguish the flames.  Lewis ran forward and grabbed PAM, trying to extinguish the flames by hugging her.  She told him to go away and moved away from him.
12. [12]
    PAM was screaming and waving her arms in an attempt to put the fire out and keep it away from her face.  She ripped her shirt off.  PAM was severely burned.  One of Lewis’ friends stated that he could see her skin on her chest and upper arms peeling off her body.  PAM ran to the rear of the house, screaming and crying.  A group of neighbours came to her aid.  A number of those people were Lewis’ relatives who also lived in the same street, including his grandmother.  Multiple people called emergency services.
13. [13]
    PAM continued to scream in pain while crying.  People assisted her by taking her into the bathroom where they sprayed water over her with a shower nozzle.
14. [14]
    Lewis fled on his motorcycle when confronted by a neighbour about what had occurred.
15. [15]
    When ambulance officers arrived, they administered pain medication and put PAM in the shower.  She was crying and moaning in pain.  Police managed to ask her what had happened and she said, “my boyfriend threw petrol on me”.  When asked why they were arguing she said, “I don’t know it was an accident”.  She then told the questioning police officer that she could not tell her what happened.
16. [16]
    PAM was taken to the Royal Brisbane and Women’s Hospital burns unit in a serious condition with severe burns to her torso, both her arms and top of her thighs.  When police called the hospital to ask about her condition, they were advised that she had been placed in an induced coma (intubated and ventilated) but would survive her injuries.  She required surgery.
17. [17]
    Whilst police were at the scene of the incident, Lewis called his grandmother and other people at the scene on a number of occasions enquiring about PAM’s condition, and if he was “in trouble”.  He would not disclose his whereabouts.  He was encouraged to come back to the scene to have any injuries treated and support PAM, but he failed to do so.  It was apparent that he was concerned that he would be placed in custody as a result of the events.
18. [18]
    Police utilised Lewis’ grandmother’s mobile telephone to speak with Lewis, and arrangements were made for him to attend a police station at 7.00 pm that evening.  Lewis did not attend the station, which led investigators to commence further enquiries as to his location.
19. [19]
    The next day police attended another address nearby, in relation to threats by an unknown person against that property and the property where the attack on PAM took place.  The front door of the house was open.  Police saw Lewis asleep on the lounge and arrested him.
20. [20]
    Whilst in custody Lewis declined to be interviewed in relation to the matter.  He was subsequently charged with malicious act with intent and transported to the watchhouse.
21. [21]
    PAM was so seriously burned that police were not able to speak to her until 17 June, about three weeks later.  She told them she did not think Lewis meant to set her on fire.  At his trial she gave evidence that she said this because she could not believe that someone who loved her would do such a thing, and at that stage she did not want him charged as she still loved him.
22. [22]
    PAM was not discharged from hospital until 30 June 2016, more than a month after the injuries.  She had a number of skin grafts and commenced physiotherapy to help with her movement.  After leaving hospital she required daily physiotherapy appointments and weekly doctor appointments.  She took daily medication for pain relief and nerve damage, and underwent counselling.

The original charges

23. [23]
    Arising out of those events Lewis faced four counts, each of which was a domestic violence offence:

    1. (a)
       Count 1 – unlawful assault;
    2. (b)
       Count 2 – unlawful assault causing bodily harm, whilst armed with an offensive instrument;
    3. (c)
       Count 3 – causing grievous bodily harm with intent to do so;
    4. (d)
       Count 4 (an alternative to count 3) – causing grievous bodily harm.
24. [24]
    Those counts were brought to trial in May 2018.  Lewis entered a guilty plea to count 1 and count 2, not guilty to count 3 and guilty to count 4.  The trial continued in respect of count 3 and the jury found him guilty.
25. [25]
    In September 2019 the Court of Appeal allowed his appeal against the conviction for the offence of malicious act with intent.  A retrial was ordered.
26. [26]
    When he had been originally sentenced on 8 June 2018 for the offence of malicious act with intent, Lewis was also sentenced for a further 12 offences in respect of which he had pleaded guilty.  Those offences included the charge of common assault in early 2016 when he threw petrol onto PAM’s shirt, and the charge of assault causing bodily harm when he threw the screwdriver at her and it became embedded in her hip.
27. [27]
    The sentence also included a third assault charge, (assault occasioning bodily harm, but not a domestic violence offence).  That involved Lewis having a verbal altercation on a street with a 16 year-old girl.  He told the girl she was “not going anywhere”.  When she turned and commenced walking away, he grabbed her, turned her around, and punched her twice, once over the right eye and once to the right cheek bone.  The girl blacked out momentarily and had an ongoing headache for a number of weeks.  Lewis later commented that he had hit her “because she deserved it”.

The 2018 sentence

28. [28]
    Lewis was sentenced to an effective sentence of 11 years’ imprisonment, imposed on the offence of malicious act with intent, with the consequence that he was declared to have been convicted of a serious violent offence.  The result was, of course, that he was required to serve 80 per cent of that term before being eligible for parole.
29. [29]
    As a result of the conviction for malicious act with intent being set aside in 2019, the sentence was reopened and varied.  The consequence was that on the counts other than count 3 (malicious act with intent) Lewis was sentenced to 12 months’ imprisonment, commencing on 2 April 2019, with a court ordered parole release date after serving four months of that term.
30. [30]
    When count 3 was brought back before the court, Lewis elected to plead guilty.  On 14 January 2021 he was sentenced to a period of nine years and six months’ imprisonment, with 1,560 days of presentence custody being declared.  No serious violence offence declaration was made.

History of the court proceedings

31. [31]
    Lewis was committed for trial on 7 September 2016, following a full hand-up committal.  An indictment was presented in 2017 charging him with the two earlier assaults on PAM.  As well, the offence of malicious act with intent was charged, with the alternative count of causing grievous bodily harm.
32. [32]
    The trial ultimately commenced on 29 May 2018.  At the commencement of that trial Lewis pleaded guilty to the earlier assaults; that is to say, count 1 (common assault) and count 2 (assault occasioning bodily harm whilst armed).  He also entered a plea of guilty to the alternative offence of causing grievous bodily harm.  The Crown did not accept the plea to the alternative offence in discharge of the indictment.  As a consequence, the primary issue at the trial was the state of Lewis’ intention at the time of causing grievous bodily harm to PAM.
33. [33]
    His conviction on count 3 was set aside on appeal, and the matter was listed for retrial in the week commencing 5 May 2020.  Because of restrictions in place in response to the COVID pandemic, the trial was delisted.  It was listed for trial again in January 2021 but on 8 January 2021 it was delisted because of the COVID lockdown in the greater Brisbane area.  That day Lewis indicated he would no longer be contesting the charge of malicious act with intent and wished to proceed to sentence.

Approach of the learned sentencing judge

34. [34]
    The sentencing judge noted that the maximum penalty for causing grievous bodily harm with intent was a term of life imprisonment.  His Honour then reviewed the history of the proceedings, much in the same way set out above.
35. [35]
    His Honour then set out the facts of the offending, adhering to the agreed statement of facts.  His Honour then turned to the impact on PAM, observing that it was “both devastating and life changing”.^[1]  His Honour then detailed the permanent disfigurement she suffered, the impact of significant scarring and skin grafts and the fortuitous event that she did not suffer any facial scarring of any particular moment.  His Honour noted the report that she was assessed by the burns team as having suffered 21 per cent total body surface area burns.
36. [36]
    Having noted the period of time in hospital, the surgical procedures and PAM’s struggles to endure the physical therapy required in the aftermath, his Honour turned to the impacts revealed upon her in other ways, including:

    1. (a)
       physical, mental and emotional impacts which required that she move in to live with her mother;
    2. (b)
       social dislocation causing her to become depressed and anxious;
    3. (c)
       self-consciousness about her scars and appearance;
    4. (d)
       her fears when in the vicinity of petrol;
    5. (e)
       the counselling that she had attended for the last four and a half years, trying to deal with the physical, mental and emotional impact; and
    6. (f)
       the fact that she suffered from recurring nightmares.^[2]
37. [37]
    Noting the change of plea to guilty, his Honour observed that the “background … suggests a utilitarian approach to sentence in respect of this matter, particularly when one has regard to the likely impact of the element of intent upon the overall sentence, including regard to the way in which it would impact parole eligibility and the extension thereof”.^[3]
38. [38]
    His Honour found that the plea, albeit late, did deserve some recognition because it had spared the complainant the ordeal of a retrial, and saved the expense of a second trial.
39. [39]
    Dealing with the late plea, his Honour held that some allowance had to be made for it.  In so finding his Honour rejected a contention that the late plea, of itself, demonstrated a lack of remorse.  Dealing with that and another contention, which was to the effect that Lewis lacked insight, his Honour referred to the fact that there were other factors which explained the plea.  They included:

    1. (a)
       the delay which would have been the consequence of the COVID lockdown;
    2. (b)
       Lewis’ age and maturity at the time of offending, “which, no doubt, would have informed his approach to matters”;
    3. (c)
       the fact that Lewis was drug-addled at the time of the offending;
    4. (d)
       his post-offending conduct which indicated he had some appreciation of the impact;
    5. (e)
       his later behaviour which “can to some extent be interpreted as a reaction of someone who lacks maturity”;
    6. (f)
       his letter of remorse; recognising that it was written two years after the event and could be seen as self-serving, nonetheless allowance had to be made for the fact that at the time of writing it Lewis was in a drug-free state; and
    7. (g)
       however, “his remorse is not something that either diminishes the impact or severity of his offending”.
40. [40]
    His Honour ultimately concluded that Lewis did have insight into the fact that he intended to do harm, and his expressions of remorse could be accepted as authentic.  That conclusion was based upon this analysis:^[4]

“In the cold light of day, induced by an extended period of custody, developing maturity and an appreciation of the seriousness of the offending, the defendant, of course, has written a letter of apology, sincerely apologising for the offending and recognising the detrimental effect that it had upon the victim, his family and the community.  He recognises there is no excuse to justify his behaviour.  He notes that he has had time, obviously, to reflect upon his actions and that he wishes to be proactive in other ways and to advance forward in the community.  He appreciates that there must be consequences for his conduct, and he appreciates that the offending conduct had an emotional and physical impact upon the victim.

In addition, I note the psychologist reports improvement in his insight since receiving intervention through psychological services whilst in custody.  It follows that on balance, I am satisfied the defendant does have insight into this aspect of count 3 – that is, the aspect, in particular, of the intent – and his expressions of remorse can be accepted as authentic.”

41. [41]
    His Honour then turned to Lewis’ antecedents.
42. [42]
    Specifically, his Honour referred to the previous assaults which were counts 1 and 2 on the indictment.  Then his Honour noted that there was an entry in April 2019, relating to an event which occurred in August 2018, about two months after he was originally sentenced.  That was an offence of supplying a dangerous drug within a correctional facility.^[5]  As a consequence he was sentenced to 12 months’ imprisonment with a three-month parole release date.  As his Honour observed, that time was reflected in the presentence custody certificate.  It was his Honour’s observation that that offence^[6] occurred about two months into his 11-year sentence, and “perhaps may reflect to some extent the crushing impact of an 11-year sentence upon a then 20 year old young man”.^[7]
43. [43]
    His Honour then turned to matters revealed by the psychologist’s report, exhibit 15.  There is no need in the present circumstances to rehearse those matters.  It suffices to say that it revealed a prejudicial childhood in a dysfunctional family which led to Lewis truncating his time at school and turning to drugs.  He finished school at grade 10.  He commenced smoking marijuana, and then crystal meth, to which he became addicted.
44. [44]
    Those facts also included the nature of his relationship with PAM.  She was also a drug user and together they lived an itinerant lifestyle, moving from place to place.  In the weeks leading up to the offences in question, Lewis and PAM had been using methylamphetamine heavily and the relationship between them was chaotic and marked by mutual violence.
45. [45]
    His Honour found that Lewis was a person who could be described as having been socially, economically and emotionally disadvantaged.  However, whilst in custody he had sought to address those matters, undertaking various courses and vocational programs with a view to developing skills that might assist him on his release.
46. [46]
    Noting that Lewis was a youthful offender, and that was something which had “some relevance to the way in which the sentence should proceed”, his Honour remarked that whilst Lewis was to be sentenced as an adult, nonetheless youth was a mitigating factor to be taken into account.
47. [47]
    His Honour then set out a recitation of the general principles to be applied:^[8]

“So far as the general principles are concerned, of course, the sentence that is imposed today must be one that is just having regard to all of the circumstances – in particular, that concerning this defendant – but punish him appropriately having regard to those factors.  It is, of course, one to be informed by the need to express the community’s denunciation for this horrendous and disgraceful offending.  It is one that is also to express elements of both general and, to some extent, specific deterrence, although less so specific deterrence given there was no previous history of such serious offending, but there was an element of escalation evident by counts 1 and 2 over the preceding time.  Of course, importantly in a case like this is the element of community protection, a matter I will talk to more in a moment.  Ultimately, of course, particularly having regard to the youth of this offender, even now as a 22 year old, his prospects of rehabilitation.”

48. [48]
    His Honour then focused upon the sentence he intended to impose, observing that the Crown contended for a sentence in the order of eight years, with a serious violent offender declaration.  On the other hand, the defence contended for a sentence in the order of seven years without a serious violent offender declaration.  His Honour then made the following remarks:

    1. (a)
       the starting range was, in his Honour’s view, informed largely by decisions such as R v Williams^[9] and R v Woodman^[10] which suggested a head sentence in the order of 11 years to a base of about nine years (as expressed in R v Wentworth);^[11]
    2. (b)
       there was no element of premeditation in the present case, but merely “puffing statements”; his Honour’s observation was that Lewis was, himself, shocked by the result of what transpired;
    3. (c)
       the comparative cases referred to his Honour suggested the bottom of the sentencing range was nine years;
    4. (d)
       on that basis it was his Honour’s view that “an appropriate sentencing range in this instance is in the order of seven and a-half to nine and a-half years”;
    5. (e)
       his Honour noted that the sentencing was to be an integrated process, but the identified range was “relevant to determining the bottom if a serious violent offender declaration is to be made”; and
    6. (f)
       his Honour rejected the contention that a sentence of seven years was appropriate, describing that as “simply too low”.
49. [49]
    His Honour then turned to consideration of whether to impose a serious violent offender declaration.  That involved a determination of whether “making a declaration is conducive to the fulfilment of the purposes for which sentences may be imposed and is warranted by relevant considerations manifest in the particular case, including the circumstances of the offender”.  In that respect his Honour referred extensively to the decision of this Court in R v Free; Ex parte Attorney-General (Qld).^[12]
50. [50]
    Continuing to refer to the decision in Free,^[13] his Honour noted the adoption of what had been said previously in R v McDougall and Collas:^[14]

“[20] The considerations which may lead a sentencing judge to conclude that there is good reason to make a recommendation apt to bring forward the offender’s eligibility for parole will usually be concerned with the offender’s personal circumstances which provide an encouraging view of the offender’s prospects of rehabilitation, as well as due recognition of the offender’s co-operation with the administration of justice.

[21] The considerations which may lead a sentencing judge to conclude that there is good reason to postpone the date of eligibility for parole will usually be concerned with circumstances which aggravate the offence in a way which suggests that the protection of the public or adequate punishment requires a longer period in actual custody before eligibility for parole than would otherwise be required by the [Penalties and Sentences Act 1992] having regard to the term of imprisonment imposed.  In that way, the exercise of the discretion will usually reflect an appreciation by the sentencing judge that the offence is a more than usually serious, or violent, example of the offence in question and, so, outside ‘the norm’ for that type of offence.”

51. [51]
    His Honour also referred to what was said in Free concerning the appropriate considerations if a penalty drops below 10 years:^[15]

“As part of the integrated process, consideration must also be given to whether, if the penalty drops below 10 years, the circumstances of the offending are such as to warrant the conclusion that the protection of the public or adequate punishment require a longer period in actual custody before eligibility for parole than would otherwise be required by the Corrective Services Act 2006; in the first instance, whether a serious violent offence declaration should be made and, if not, whether any reduction below the statutory half way point is warranted.”

52. [52]
    Further, his Honour adopted the necessity for the appropriate penalty to have a strong denunciatory element, to reflect the community’s condemnation of the conduct.^[16]  His Honour then adopted two passages in Free which, allowing for the differing circumstances, his Honour considered applied equally to Lewis’ case:^[17]

“[90] On balance, we are not persuaded that there are circumstances here which aggravate the offence in a way which suggests the protection of the public or adequate punishment requires a longer period of actual custody, namely 80 per cent.  As already discussed, this is not a case in which adequate punishment requires a longer period of actual custody; that objective can be achieved by the imposition of a substantial head sentence.  In terms of protection of the public, plainly that is a significant consideration in the case of an offender such as the respondent.  Protection of the community is relevant to both the fixing of the head sentence and the period before the offender becomes eligible for parole.  There may be cases in which the circumstances support a conclusion that a longer period in actual custody is warranted, for the protection of the community, even where the just and proportionate head sentence is less than 10 years.  But implicit in that is a forecast of future behaviour; essentially a finding that the prospects of rehabilitation for the offender are so limited as to require them to serve all, or almost all, of the sentence imposed.

[91] In the respondent’s case, it is not yet known how he will respond to treatment programs undertaken whilst in custody.  The fixing of a date for eligibility for parole does not mean the prisoner will be released on that day; it will be a matter for the Parole Board to determine if the person is suitable for release, and to impose such conditions on their release as are considered appropriate for the protection of the community.  Community protection is not achieved only by actual incarceration, it is also achieved by the oversight of the Parole Board, before a person may be released on parole; and by supervision of the person, on parole, if they are released, for the remainder of their sentence, whilst they make the adjustment from custody and back into the community.  Allowing the possibility of a date for eligibility for parole at an earlier stage (than 80 per cent) has two potential benefits:  first, to provide the prisoner a basis for hope and, in turn, an incentive for rehabilitation; and, in appropriate cases, to enable a longer period of conditional supervision, outside of the custodial environment, which may provide greater community protection in the long term.”

53. [53]
    His Honour then noted the approach reflected in paragraph [93] of Free, where a reduction of the head sentence to a point below 10 years was seen as a just and appropriate way to take account of the positive mitigating factors in the case, as well as balancing punishment, denunciation, deterrence, community protection and rehabilitation.  Having done that his Honour then said:^[18]

“I note these other remarks that his Honour made at paragraph 93 but in terms of this sentence, because they inform the approach that I will take.  His Honour there, when sentencing that defendant, made observations that no earlier recommendation for parole, that is, leaving section 184 of the Corrective Services Act to operate in its terms, may be a just and appropriate way in which to take account of the positive mitigating factors that appropriately balance punishment, denunciation, deterrence, community protection and rehabilitation.  Of course, a further reduction in time to be served before becoming eligible for parole is, in my view, in this case, as it was in the case (of Free), not justified given the very serious nature of the offending, and, of course, the need to send a strong message of denunciation and deterrence against offending of this kind.

Having regard, of course, to the mitigating effects of his plea of guilty, his remorse, his youth and his efforts at rehabilitation, which have been undertaken to date in the limited sense that have been available to a remand prisoner over the last four and a-half years or thereabouts, but, at the same time, of course, recognising that those matters must yield to other factors such as denunciation and community protection.  As I said, those factors in particular of youth, efforts at rehabilitation on remand, positive engagement – particularly in relation to issues of drugs on remand – now demonstrated remorse and a sense of insight in relation to the offending, and the prospects of advantages to be achieved by psychological intervention all augur well for this young offender’s prospects of rehabilitation, however, in that custodial environment.

It follows, having regard to all those factors, the sentence that will be imposed is a sentence of nine years and six months imprisonment.  I will not be issuing a parole eligibility date.”

54. [54]
    Finally, his Honour noted something which might have appeared plain from his sentencing remarks otherwise:

“The object of the sentence, in large part, apart from punishing you for this abominable behaviour, of course, is to assist you in your rehabilitation.”

The Attorney-General’s submissions

55. [55]
    The submissions made by Ms Wooldridge QC and Ms Kovac of Counsel on behalf of the Attorney-General included these matters:

    1. (a)
       the acceptance by Lewis of the consequences of his actions needed to be viewed in the context of there being an overwhelming case against him, that he had caused PAM grievous bodily harm and was liable for those consequences; the late plea of guilty having been entered for “utilitarian purposes” did not alone provide a basis for a finding that there was remorse or insight;^[19]
    2. (b)
       the letter of apology could not properly be viewed as indicative of sincere remorse given that it had been tendered originally at the first sentencing proceedings in June 2018 following a conviction at trial;^[20]
    3. (c)
       the psychological report did not provide compelling evidence of remorse or insight; it contained responses that indicated Lewis sought to minimise his criminality, and stated that Lewis “had reported some improvements in mood, insight and coping skills since receiving intervention through psychological services in custody”; that self-reporting by Lewis was the sole basis for the sentencing judge’s conclusion that Lewis had insight and that his expression of remorse should be accepted as authentic;^[21]
    4. (d)
       the objective circumstances of the offence, particularly the method of inflicting the violence and the consequences, outweighed matters personal to Lewis in the determination of what was a just sentence;^[22]
    5. (e)
       whilst the head sentence of nine years and six months was higher than that which had been the subject of submissions by the Crown Prosecutor, those submissions were predicated upon the imposition of a serious violent offence declaration, and were also made having regard to Lewis’ undoubted youth and his attempts to assist in the aftermath;^[23]
    6. (f)
       the learned sentencing judge reviewed Woodman and Williams in a way which made it evident that the “elements of premeditation” present in those cases were not seen to be evident in the case of Lewis, and that was of significance in his Honour’s conclusion that the range for the sentence was between seven and a-half years to nine and a-half years; however, Lewis deliberately set fire to PAM thereby causing her grievous bodily harm, and intended that she would suffer that harm; to sentence on the basis that Lewis, to some extent was shocked by the result of what transpired, did not properly recognise the gravity of the offending conduct;^[24]
    7. (g)
       whilst the learned sentencing judge correctly referred to the principles from R v Free; Ex parte Attorney-General (Qld) and R v McDougall and Collas, the circumstances of the offending “presented a constellation of features which supported the conclusion that a longer period of time in actual custody before eligibility for parole was warranted in order to adequately meet the purposes of sentencing”;^[25] and
    8. (h)
       by contrast, matters in mitigation were limited beyond the fact of Lewis’ acknowledged youth; the sentencing judge’s approach “involved too great a focus on the respondent’s circumstances and an unduly favourable assessment of the respondent’s level of remorse and suggested insight into his offending”.^[26]
56. [56]
    In oral submissions before this Court Ms Wooldridge QC framed the central submission as being that the sentencing judge’s view of remorse and insight was too favourable on the available evidence.  She candidly conceded that the submission was one of error of fact.^[27]
57. [57]
    However, it was also contended that even if that issue was determined against the appellant, the submission of manifest inadequacy would be maintained because the question of remorse had to be viewed in the context of when the plea of guilty was entered and the circumstances otherwise of that plea.  Put more directly, Ms Wooldridge QC accepted that the established principles governing an Attorney-General’s appeal were that the general purpose was to lay down principles for governance and guidance of courts, rather than to challenge individual cases on the basis that there was particular judicial error in a particular case, especially an error of fact.  Nonetheless, the submission was that the sentence ultimately imposed against Lewis was manifestly inadequate, that is unjust, because it indicated there had been an error in the application of sentencing principle, even if that particular error could not be identified.
58. [58]
    The three aspects of evidence which were highlighted in that regard were:

    1. (a)
       the relevance of the plea of guilty in light of its timing and circumstances;
    2. (b)
       the letter of apology tendered at the initial sentencing hearing; and
    3. (c)
       the psychological report which was also tendered at the initial sentencing proceedings.
59. [59]
    The difficulty for the Attorney-General’s position was that the learned sentencing judge dealt with all of those three elements in the course of his sentencing comments,^[28] but nonetheless concluded that Lewis had insight and his expression of remorse was authentic.  When asked whether it was to be submitted that it was not open to make those findings, the answer was “Not expressly”.^[29]  Ms Wooldridge QC continued:^[30]

“What I wish to communicate in my submission is that such matters may still be relevant to significance or weight that would be placed on that conclusion.  There might be some evidence of remorse, but there’s not significant evidence of remorse.”

60. [60]
    The submission was then said to be directed towards “the necessary consideration of the conglomeration of matters in mitigation … which would inform the court in its consideration of whether the ultimate result was unjust in that a serious violent offence declaration was not imposed as it is accepted that matters of remorse and insight on the part of the respondent feed directly into a consideration of the factors that are relevant to a determination”.^[31]
61. [61]
    Ultimately the submission came down to the one reflected in the written outline, namely that the mitigating factor of youth was necessarily diminished to a degree proportionate to the seriousness of the offending.  As to the seriousness of the offending, reliance was placed on R v Williams^[32] and R v Woodman^[33] as being yardsticks to establish that a greater sentence was warranted than was imposed in the case of Lewis.  In Williams and Woodman a sentence of 11 years was imposed on offenders who had caused grievous bodily harm, with intent, by setting their victims on fire in circumstances that were characterised as having some premeditation.  Both were older than Lewis, and both had histories of alcohol or drug use.  Each also had criminal histories which distinguished them from the present case.
62. [62]
    Ultimately, the submission made for the Attorney-General involved these features:

    1. (a)
       reference to Williams and Woodman was not in order to contrast each and every aspect in a mathematical or formulae way, but was part of a submission that notwithstanding Lewis’ particular youth, it was difficult to reconcile or find particular consistency with the approach taken in Williams and Woodman, with that taken in this case;
    2. (b)
       Lewis’ offending was very serious and the consequences for PAM were devastating;
    3. (c)
       the offence was one of domestic violence which, in the context of the objective conduct, required that matters of general deterrence and community denunciation should have been given greater significance than they were;
    4. (d)
       the fact that Lewis committed the offences whilst on bail meant that matters of personal deterrence should have been given greater weight, particularly in the light of his previous offence which involved throwing accelerant onto the same victim;
    5. (e)
       the sentence imposed was indicative of “too much weight having been placed on the matters personal to the respondent in the context of those over significant matters and purposes of the sentencing”;^[34] and
    6. (f)
       mindful of the submissions made at first instance by the Crown Prosecutor, it was contended on a resentencing that the appropriate sentence was one in the order of eight to nine years with a serious violent offence declaration.

Respondent’s submissions

63. [63]
    Mr Hamlyn-Harris and Ms Johnsen, Counsel for the respondent, contended that Lewis had been continuously in prison for just over five years since the day after the offence was committed in May 2016, when he was 17 years old.  The sentence imposed upon him would give him a much more substantial period of supervision on parole in the community than would be the case under the sentence proposed by the Attorney-General’s appeal.  His youth was a very significant factor.
64. [64]
    It was conceded that the facts of this offence of malicious act with intent “would, in most cases, attract a serious violent offence declaration”,^[35] but the sentence imposed was within the sound exercise of sentencing discretion, taking into account all relevant factors.  Central to that was Lewis’ youth.
65. [65]
    Further, it was open to the sentencing judge to make the findings on the issue of remorse and insight which were made.  Finally, the approach taken by the sentencing judge in terms of the imposition of a serious violent offence declaration was orthodox and in conformity with the decision of this Court in R v Free.  There was nothing to suggest any error in the application of principle.
66. [66]
    It was also submitted that this was a case where, even if this Court determined that there had been some error by the learned sentencing judge, it should exercise the residual discretion^[36] to dismiss the appeal.  In that respect it was submitted that Lewis had now been waiting for five years for his sentence to be finally determined and that was a particularly significant period of time in view of his age.

Consideration

67. [67]
    The sentencing judge recognised that the plea of guilty was a late plea.  Of course that was so, given that it followed a trial at which a plea of not guilty had been entered to that charge, an appeal challenging his conviction where the question of intent was in issue, and the subsequent abortive listing of the retrial.  Nonetheless, the sentencing judge considered that he should give the plea of guilty some recognition.  In doing so his Honour rejected a contention that the late plea demonstrated a lack of remorse, and his Honour took into account a number of factors, including:^[37]

    1. (a)
       the fact that the delay caused by the COVID lockdown “would have played significantly into the sentence, perhaps making any victory at trial somewhat the pyrrhic”;
    2. (b)
       the age and maturity of Lewis at the time of the offending which was, in his Honour’s view, “a matter which, no doubt, would have informed his approach to matters”;
    3. (c)
       his drug addicted state at the time of the offending, “which would have impacted his capacity to think clearly about these matters”;
    4. (d)
       the fact that the post-offending conduct “plainly indicated that he had some appreciation of the moment of the event that had just occurred”; and
    5. (e)
       the fact that his later behaviour could, to some extent, be interpreted as the reaction of someone who was immature.
68. [68]
    The sentencing judge also took into account the letter of remorse.  His Honour was well aware that allowance had to be made for the fact that the letter had been written two years after the event, was in some respects self-serving, and written by someone on remand.  Balanced against that, however, was the fact that when it was written Lewis was in a drug-free state, and the response was one which reflected his disadvantaged and inadequate upbringing.
69. [69]
    His Honour carefully noted the contents of the letter of apology and, in the light of the psychologist’s report which indicated an improvement into his insight, formed the conclusion that Lewis did have insight in respect of the aspect of the intent underlying count 3, and the expression of remorse was authentic.^[38]
70. [70]
    In my respectful view, it cannot be maintained that those findings were not open to the learned sentencing judge.  In truth, though her response was couched more carefully, Ms Wooldridge QC effectively conceded that was the case.
71. [71]
    The contest was then whether too much weight had been given to the factors of insight and remorse when compared to the objective seriousness of the offending.
72. [72]
    In my respectful view, there is no doubt that the sentencing judge had firmly in his mind the horrendous nature of the offending in count 3.  Indeed, his Honour rightly described it as “horrendous and disgraceful offending”^[39] and “abominable behaviour”.^[40] And his Honour set out the facts of that conduct in meticulous detail in the course of his sentencing remarks.  Those facts included the devastating consequences upon PAM, including the significant and life-long physical, mental and emotional difficulties.
73. [73]
    However, his Honour then approached the question of sentencing in a way which cannot, in my respectful view, be criticised as involving some error of principle:^[41]

    1. (a)
       first the general principles were set out including that the sentence had to be “just having regard to all of the circumstances”, but in particular to punish, express community denunciation, meet general and specific deterrence, provide community protection, but also, in light of the offender’s youth, have regard to his prospects of rehabilitation;
    2. (b)
       by reference to the yardstick cases of R v Woodman and R v Williams, determining that the starting range was between nine years and 11 years;
    3. (c)
       identifying those features of Woodman and Williams by which they were distinguishable from the present case;
    4. (d)
       determining, having regard to those yardsticks, what the bounds of appropriate sentencing discretion was in the present case, namely seven and a-half to nine and a-half years;
    5. (e)
       recognising that the imposition of a serious violent offender declaration was part of an integrated process in respect of which the lower end of the identified bounds of sentences might be relevant;
    6. (f)
       examining in detail what was said by this Court in R v Free as to the approach that should be taken in determining whether to make a serious violent offence declaration;
    7. (g)
       accepting the need to balance, in that process, the competing demands for protection of the public, adequate punishment and denunciation, and circumstances concerning the offender’s prospects of rehabilitation; that included how that balancing might be best achieved in terms of a just sentence, the two approaches being to impose a higher head sentence as opposed to making a discretionary serious violent offence declaration; and
    8. (h)
       recognising that the serious nature of the offending, and the need to send a strong message of denunciation and deterrence, compelled the view that there should be no reduction in time before becoming eligible for parole.
74. [74]
    Having recognised and weighed those factors his Honour’s conclusion was expressed in this passage:^[42]

“Having regard, of course, to the mitigating effects of his plea of guilty, his remorse, his youth and his efforts at rehabilitation, which have been undertaken to date in the limited sense that have been available to a remand prisoner over the last four and a-half years or thereabouts, but, at the same time, of course, recognising that those matters must yield to other factors such as denunciation and community protection.  As I said, those factors in particular of youth, efforts at rehabilitation on remand, positive engagement – particularly in relation to issues of drugs on remand – now demonstrated remorse and a sense of insight in relation to the offending, and the prospects of advantages to be achieved by psychological intervention all augur well for this young offender’s prospects of rehabilitation, however, in that custodial environment.

It follows, having regard to all those factors, the sentence that will be imposed is a sentence of nine years and six months imprisonment.  I will not be issuing a parole eligibility date.”

75. [75]
    It is true to say that another sentencing judge might have done something different, and perhaps imposed a serious violent offence declaration.  Ms Wooldridge submitted that the circumstances of this offending “would, in most cases, attract a serious violent offence declaration”.^[43]  But if that was the case then the head sentence may well have been lower.  However, the fact that another judge might have delivered a different outcome does not determine this appeal.  Manifest inadequacy can only be demonstrated if the outcome is the product of an error in principle, or that the result is so plainly unjust or unfair that it bespeaks error.  In my view, that is not the case here.  There is no demonstrated error of principle, and the sentence imposed was one derived by a careful balancing of competing requirements in an overall integrated sentencing approach.  That included whether to impose a serious violent offence declaration.  As it was, the nine and a-half years imposed was above the level of the sentence suggested by the Crown Prosecutor, albeit that the submission was based upon the imposition of a serious violent offence declaration.  In other words, his Honour’s approach was in accordance with what this Court said R v Free was one of the available approaches, namely to sentence towards the top of the bounds of appropriate discretion and not reduce the parole eligibility date, rather than sentence towards the bottom and impose a serious violent offence declaration.
76. [76]
    For these reasons I joined in the order made on 2 June 2021, dismissing the appeal.
77. [77]
    FLANAGAN J:  I agree with Morrison JA.