Criminal Law - Appeal and new trial - Appeal against sentence - Appeal by convicted persons - Applications to reduce sentence - When refused - Particular offences - Offences against the person - Assault of female partner by punching and biting - Offence committed in presence of young children - Whether two months' imprisonment manifestly excessive.

Criminal Law - Judgment and punishment - Sentence - Miscellaneous matters - Other matters - Generally - Procedure - Procedural fairness - Obligation of court to raise important considerations - Possibility of actual term of imprisonment - Whether obligation arose.

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, considered.

Ho v Director of Public Prosecutions (1995) 37 NSWLR 393; James v Turner [2006] TASSC 54; Maney v White [2007] TASSC 7, referred to.

Judgment Number: [2009] TASSC 10

1 This motion to review concerns a sentence of two months' imprisonment imposed on the applicant by a magistrate on 7 January 2009. The applicant had pleaded guilty to a charge of common assault under the Police Offences Act 1935, s35.

2 The sole ground contained in the notice to review is that the sentence imposed was manifestly excessive having regard to all the circumstances of the case. The applicant was bailed by this Court pending the determination of the motion.

3 The applicant pleaded guilty on the day he was arrested for the offence, the incident having occurred two days previously. The facts presented to the magistrate were as follows:

"[T]he victim is [a female] and she'd been in a relationship with ... the defendant, for approximately three years. They have one child together who is a boy born in 2007 and the victim has another child from a previous relationship born in 2000. Both of these children were present during the incident. On Monday, 5 January 2009, the victim picked up the offender from his mother's house and took him home. The victim immediately became aware that the offender was intoxicated. At home the offender pulled a lawnmower from the back of the car and threw it into the driveway swerving [sic] swearing [at the victim] who was trying to unlock the front door of the house. The offender took the keys from her and told her to go inside. The victim became scared and stood on the front lawn. At this time the offender gave her back the keys and told her to leave in the car. The victim got into the car and immediately the offender went to the car, kicked the driver's side door and smashed the driver's side door window. He then opened the door, leaned inside and punched the victim twice to the face and four or five times to the back of the head. He then bit her on the back of both hands and on her right upper arm where he drew blood and caused a large bruise. The offender then left in the victim's car doing multiple burnouts in the street outside the house. The victim went to a neighbour's house where she called the police who arrived shortly after."

4 The magistrate was also told that when arrested the applicant had declined to be interviewed and made no comment in relation to the assault. In addition to the charge, the police also made application for a family violence order. Prior to his plea of guilty to the charge, the applicant, through his counsel, consented to a final order to operate for a period of 12 months, but made no admissions as to the content of the application.

5 The applicant has quite an extensive record commencing in 1996, relating to a range of offences. It should be immediately said though, that none of them are offences of, or involve, violence. In 1998, the applicant was made the subject of a community service order for drug offences. On about seven occasions prior to 2008, he was sentenced to suspended terms of imprisonment for driving offences and offences of dishonesty. The applicant has been in prison for offences of dishonesty and driving whilst disqualified; the first time was in 1998. The most recent instance was a sentence of a total of three months' imprisonment imposed on 21 May 2008 for various driving offences. At that time he was also made the subject of a probation order for a period of 12 months with special conditions relating to alcohol and drug use and educational and other programs.

6 On 11 September 2008 the applicant was sentenced on a further charge of driving whilst disqualified to one month's imprisonment, the execution of which was wholly suspended on condition he be of good behaviour. The date of that offence predated some of those offences for which he had previously been imprisoned. On 11 November 2008, for an offence of dishonesty, he was sentenced to three months' imprisonment, the execution of which was wholly suspended on condition he be of good behaviour for a period of two years. It can be seen then, that at the time of the commission of this offence, the applicant was the subject of a probation order and two separate sentences of imprisonment suspended on the condition that he be of good behaviour.

7 The following is a summary of the matters put by the accused's counsel to the magistrate:

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The applicant was 28 years old and had been in a relationship with the complainant for about five years. They had been living together, but the applicant would be returning to live with his father.

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The applicant was currently unemployed but was a qualified plasterer. He had a break over the Christmas period and had been helping his mother with home renovations. Once that was done he could return "to his contract work as soon as possible".

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Whilst he had 11 pages of convictions, he had no convictions for assault, and whilst the particulars of this assault were "fairly significant", it was out of character.

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The prosecution facts were not contested. The applicant was intoxicated and overreacted. In relation to the assault "there was an argument between the two, it was very much two sided, [sic] he remembers trying to remove himself from the situation and he recalls [the complainant] spitting at him which hit him in the face which led then to his actions".

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He consented to the making of the final family violence order containing extensive terms acknowledging that the relationship was definitely over.

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He pleaded guilty on his first appearance.

8 The plea in mitigation concluded with counsel again making the submission that the applicant's actions were out of character. The magistrate immediately proceeded to pass sentence. His Honour said:

"I take into account what's said for you, this is a particularly serious assault and even though you don't have a history for matters of violence you do have a history of various matters in which you have served imprisonment and you've also had suspended imprisonment. I take into account particularly the fact that you've pleaded guilty to this charge, I think that's a very relevant matter, and particularly seeing as you've done so on your first appearance of those relevant matters, [sic] I'll give you credit for that. I'll also give you credit for the fact that at least you've conceded that the relationship is at an end. I'm not told of any lasting injuries but the assault is also aggravated pursuant to the Family Law Act by the presence of the children and the stress level in relation to that must have been significant in my view. So I'm going to give you the credit for pleading guilty, I'm going to sentence you to 8 weeks' imprisonment. I would have thought 12 weeks would have been appropriate; I'm giving 4 weeks off for the plea of guilty."

9 The reference to the "Family Law Act" is undoubtedly a mistaken reference to the Family Violence Act 2004, s13. That section provides (inter alia) that when determining the sentence for a family violence offence, a court or a judge may consider to be an aggravating factor, the fact that the offender knew, or was reckless as to whether, a child was present at the time of the offence.

10 The role of this Court on motions to review and the approach to complaints of manifestly excessive sentences is well established and understood. This Court is a "... court of review. There will be no interference with orders made in the court below unless a clear case of error is shown"; Richardson v Maguire 63/1998 at 2. To succeed on this particular ground, an applicant must show that the sentence is so obviously excessive that the sentencing discretion must have miscarried; or to put it another way, the sentence is plainly outside the proper limits of the wide discretion vested in the magistrate.

11 The existence of prior convictions should not be given such weight so as to result in a sentence disproportionate to the gravity of the offence. "The history is relevant to show whether the offence is an uncharacteristic aberration or whether in it the offender has manifested a continuing attitude of disobedience of the law [in which] case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted"; Veen v R (No 2) [1988] HCA 14; (1979) 164 CLR 465 at 477. A record of offences may justify a sentence at the higher end of the appropriate range; Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186 per Green CJ at 190; Lynch v Turner [1999] TASSC 88 at [7]. At the very least, the existence and nature of a record is relevant to whether the circumstances of the case permit any leniency being shown; see K Warner, Sentencing in Tasmania, 2nd ed (2002) at 90 and the cases cited at footnote 244. In some circumstances offences of a different nature can be disregarded, but the extent of the record and the penalties previously imposed may make the history relevant in the second sense referred to in the passage quoted from Veen's case. In particular, the record may show that non-custodial options and suspended terms of imprisonment have not deterred further offending.

12 Undoubtedly there were matters put to the magistrate and were otherwise evident which operate substantially in the applicant's favour. They are:

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The assault was not planned or premeditated. It seems to have arisen from his state of intoxication and more acutely, his anger at being spat at.

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The act of the complainant in spitting in the applicant's face was a provocative act of a rather gross nature; indeed, it is an assault in itself, (an instance of which has been dealt with in this Court as an assault under the Criminal Code; Devine, 28 November 2006).

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No weapon, at least in the usual sense of that word, was involved.

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There was no suggestion of any lasting injury.

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The conduct was said to be out of character and there was no material to suggest that the applicant had been previously violent.

13 On the other hand, there were matters of significant aggravation. As I see it, those matters are:

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The nature of the assault. The applicant smashed the driver's side door window of the vehicle in which the complainant was sitting. That made it very difficult for her to escape or avoid the attack. She was punched twice to the face and four or five times to the back of the head. The applicant has persisted with the attack by biting her on the back of both hands and on her right upper arm causing a large bruise. The biting is particularly significant. This was a serious and somewhat sustained (almost frenzied) onslaught, carried out with the obvious intention of doing harm.

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The incident was one of "domestic violence". Violence of that kind constitutes a breach of trust; Parker v R 57/1994 per Underwood J at 11.

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There were two young children present at the time of the attack. It is not clear, but presumably they were in the vehicle with the complainant. In any event, it was not disputed that they were present throughout the incident. One was about 8 years old, the other about 1 year old. The Family Violence Act, s13, reflects the common law, but it is of some significance that Parliament has seen fit to expressly recognise the presence of children as an aggravating factor in the case of family violence offences. The reasons that the presence of children is an aggravating factor of some significance are largely self-evident. Violence witnessed by children in the domestic environment not only is distressing (usually the victim is a parent or someone in the place of a parent), but it also serves to desensitise impressionable minds to violence, and to encourage the notion that resort to violence is acceptable.

•

The applicant showed a degree of contempt for the complainant after the assault by taking her car and by his manner of driving it. (It is not clear how the complainant came to leave the vehicle.) The applicant was described as "doing multiple burnouts in the street outside the house" immediately afterwards. Driving the car in such a way as to cause much noise and smoke immediately after the assault and directly outside the house, can in my view properly be described as contempt directed towards the victim. As such it aggravates the offence; Lowe v Marshall B63/1993.

14 Although not the subject of a separate ground in the notice to review, the applicant's counsel submitted that the magistrate's reasons demonstrated that no real consideration had been given to alternative measures to actual imprisonment; in particular, a suspended term of imprisonment. Moreover, it was submitted that the magistrate ought to have alerted counsel for the applicant to the fact that he was considering an actual term of imprisonment, and afforded an opportunity to specifically address that issue and to attempt to dissuade him from that course. Counsel relied on the decision in Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, and the application of that decision in two decisions of this Court. They both involve motions to review sentences of imprisonment for assault. They are James v Turner [2006] TASSC 54 and Maney v White [2007] TASSC 7.

15 In James v Turner, the applicant moved to review a sentence of three months' imprisonment imposed by a magistrate on a charge of common assault. The applicant had appeared unrepresented and said very little, if anything, as to his personal circumstances and very little as to the circumstances of the offence. At [6], Evans J noted the fundamental principle that imprisonment was the punishment of last resort, to be imposed only when no other punishment is appropriate. Parker's case was cited as one of the authorities for the proposition. So much is unexceptionable. At [8], his Honour went on to say:

"Imprisonment being an option the learned magistrate was contemplating, consistent with the principle that imprisonment is a sentence of last resort, it was necessary for the learned magistrate to consider whether the sentence should be wholly suspended or whether other sentencing options would be appropriate. Patently this was a case where a wholly suspended sentence of imprisonment was a real sentencing option. In these circumstances, the applicant should have been given the opportunity to dissuade the learned magistrate from imposing an immediately effective sentence of imprisonment. In Parker v Director of Public Prosecutions (supra), Kirby P, agreed with by Handley and Sheller JJA, said at 296:

'There is a particular reason why, where a judge is contemplating a custodial sentence ... he or she should indicate the contemplation to the accused or the accused representatives. Both by statute and by common law a custodial sentence is conserved to cases where the relevant alternatives have been exhausted. Such a sentence is apt as it is often said, where no other course is appropriate and where the most serious penalty now known to the law, loss of liberty, is required by the application of applicable sentencing principles: cf Justices Act, s 80AB. Although s 80AB is expressed in terms of what a justice (or justices) shall do, it simply restates the common law and the principle of commonsense that a full-time custodial sentence is only a last resort: see R v James (1985) 14 A Crim R 364; Weetra v Beshara (1987) 46 SASR 484 at 492f. It used to be said that "silence" in a judge was "a counsel of perfection": see, eg, R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 294. However, at least in the case of a trial judge sitting without a jury, that view has now been disapproved by the High Court of Australia: see Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571. Respectfully, I strongly endorse the view there expressed. Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view'." (My emphasis.)

16 Evans J held that having regard to the paucity of the information given, the magistrate ought to have made inquiries, particularly as the applicant was unrepresented. His Honour said:

"Dependent upon the applicant's financial circumstances and capacity to work, the sentencing options included a fine and a community service order. ... The learned magistrate did not have the information he needed in order to assess these options. His failure to seek the information he needed in order to do so leaves me in no doubt that he erred in his approach to the sentencing of the applicant."

17 In Maney v White the applicant sought the review of a sentence of imprisonment on two charges of assault. He was unrepresented at the hearing before the magistrate. A pre-sentence report was ordered but the applicant was remanded in custody to a particular date; a period of 26 days. On that date he was sentenced to four months' imprisonment At [7] Evans J said that in Parker v Director of Public Prosecutions, it was explained "... that where a sentencer is contemplating a custodial sentence, he or she should so indicate in order to give the offender a fair opportunity to present contrary argument and persuade the sentencer to take a different course." That had not been done by the magistrate. In the end result, having regard to that issue, the "precipitate decision to remand the applicant in custody for 26 days", and in all the circumstances of the case, the sentence was quashed.

18 In my view the extent of the obligation of procedural fairness identified in Parker v Director of Public Prosecutions needs to be examined. It assists if the case is put in its proper context. It involved an appeal from a decision of a District Court judge. That judge heard an appeal by way of re-hearing, from orders of a magistrate. The magistrate had convicted the appellant and imposed a fine and a good behaviour bond. On the appeal, the appellant was again convicted, and without any reference by the judge to the particular possibility, was sentenced to a term of imprisonment. Kirby P concluded that the judge's failure to disclose his contemplation of a custodial sentence amounted to procedural unfairness such as to warrant relief in the nature of certiorari.

19 At 28 NSWLR 295 - 296, his Honour set out his reasons for doing so in four lengthy paragraphs numbered 1 to 4. The passage quoted by Evans J in James v Turner set out in par[15] above, appears at the start of par4. Paragraph 1 of Kirby P's reasons contains the following:

"1 There is an established practice or convention in District Court appeals ... under s 122 that a judge, contemplating an increase in the sentence under appeal, will signal that possibility to the appellant. This is well-known. Although it is not a rule of law, it is an established practice. It should rarely, if ever, be departed from. The basis of the practice is to be found in a species of the double-jeopardy principle: ... If the second judicial officer knows of the penalty imposed by the first and contemplates a higher penalty, it is proper to indicate this fact so that the appellant can consider whether or not to apply for leave to withdraw the appeal ...".

Following on from the passage quoted in James v Turner, Kirby P went on to say that the judge ought to have exposed his thinking to counsel, and only by doing so would he have received the assistance of submissions concerning other suitable avenues short of a custodial sentence, "invited the normal practice of securing a pre-sentence report which would give consideration to the imposition of alternative penalties", and would he afford the claimant the opportunity, at least, to seek leave to withdraw his appeal.

20 The issue was again raised in Ho v Director of Public Prosecutions (1995) 37 NSWLR 393 At 398 Kirby P explained the principle established in Parker's case as follows:

"Proper indication of an increase in a contemplated penalty

The principle established by this Court in Parker is not rigid. It is one of fair procedure. It is designed to avoid, in appropriate cases in the District Court, unnecessary exposure of an appellant to a risk of a form of double jeopardy. It is established to ensure that, in proper cases, such an appellant is alerted by the judge to the risk that proceeding with an appeal may result, not in relief from the sentence under appeal as sought, but in an increase of the sentence. Once so alerted, the appellant may then seek the leave of the District Court to withdraw the appeal before it is too late to do so ... Being a rule of fairness, it is applied in a way that takes into account the entirety of the proceedings..."

21 There are two matters which arise from that analysis. The first is the restriction, apparently imposed in Ho's case, of the principle to the appeal process. However, I do not think the explanation given should be taken as meaning that the obligation to give notice of certain considerations relating to important and critical decisions as explained in Parker, does not arise in sentencing proceedings at first instance. The comments in Parker are made expressly referable to such proceedings, and have been subsequently applied where the sentencer has indicated a view as to a relevant fact or a particular approach, but proceeded contrary to that indication without notice; R v O'Neill [2005] VSCA 248 (the date of earlier offending) and Baroudi v R [2007] NSWCCA 48 (a non-parole period conceded as appropriate by the Crown). Placing the principle theoretically in the confines of the appeal process does though, provide assistance as to its intended operation.

22 That leads to the second matter. Plainly the principle is not rigid. Its application will be flexible depending on the case. Rather self evidently, there must be something in the case which makes it unfair if the relevant matter is not raised. Although no attempt should be made at delineating the circumstances in which the obligation will arise, it will most likely do so where, in general terms, the outcome may not reasonably have been anticipated; examples being the appeal scenario highlighted in Parker and Ho, and the case of a defendant (not always unrepresented) who appears not at all to understand the seriousness of the predicament; see Szewczuk v Police [2001] SASC 223. It is also likely to arise where there has been some expectation created as to a particular outcome or basis on which the court is to proceed; the type of case of which O'Neill and Baroudi are instances.

23 I have no doubt that in a particular type of case, it might be procedurally unfair not to indicate that an actual term of imprisonment is being considered. That is more likely, but not exclusively, to arise where the defendant is unrepresented. Such a failure may also lead to, or be associated with, a failure to make inquiries to ensure that there is sufficient information to make a reasoned decision as to whether imprisonment is the only appropriate penalty. That latter failure, as recognised in James v Turner, may of itself be an error vitiating the exercise of the discretion; see also Murray v Harris 33/1974. However, as I have attempted to demonstrate, all of this depends on the circumstances of the case. In my view, any contention that there is an invariable rule of universal application that a sentencer who is considering imposing a term of actual imprisonment, ought to expressly raise that issue and to invite submissions, should be rejected. I do not see Parker v Director of Public Prosecutions as establishing such a rule, nor do I see that Evans J, in the two cases referred to, embraced the existence of such a rule.

24 In the present case I do not think there was any need for the magistrate to give notice of the fact that he was contemplating imposing an actual term of imprisonment. Counsel for the applicant did not identify any particular factual reason for the obligation to have arisen. In relation to this, the relevant circumstances as I see them, are that the applicant was represented by counsel, the penalty prescribed by the section creating the offence was a maximum of 20 penalty units (currently $2,400) or 12 months' imprisonment, the applicant's record of offending (albeit not for violence), and the particular circumstances of the assault. The prospect of actual imprisonment ought reasonably to have been contemplated. In those circumstances, I do not regard it as procedurally unfair for the potential for actual imprisonment not to have been expressly raised by the magistrate before proceeding to sentence. The material put on behalf of the applicant was rather sparse (perhaps intentionally so), but I do not think that it was insufficient to enable the magistrate to take the course he did.

25 Lastly, I do not see any merit in the submission that the reasons showed that the magistrate had not given any proper consideration to alternatives to imprisonment. It seems to me that what was said by Lee CJ at CL in R v Salameh (1991) 55 A Crim R 384 at 394 and adopted by the Court of Criminal Appeal in R v Majors (1991) 27 NSWLR 624 at 628 is applicable to this case. After referring to the fact that judges of the District Court deal with a vast number of criminal cases with an enormous workload, his Honour said:

"They can in one day be called upon to sentence a dozen or more different persons in all sorts of circumstances, and it is impossible to expect that they will refer in minute detail to every feature of evidence or sentencing principle which might come into play.

Before this Court imputes error because of the absence of words in the remarks on sentence ... this Court should be quite satisfied that allowing for the experience of the judge and the words he has used, and the sentence he has passed, the matter has not been present in the sentencing judge's mind and not simply that it might not have been."

26 I have already referred to the maximum penalty presently prescribed by Parliament for the offence of common assault. In December 2003, this maximum was increased from $500 or six months' imprisonment. That step can be properly taken as a reflection of the community's intolerance towards offences of violence. At the same time, it remains true that although immediate custodial sentences are appropriate for serious cases of assault, there is no prima facie position that the offence of common assault should be punished by an immediate gaol term; Fruin v White [2005] TASSC 25 at [23].

27 I do not think there can be any quarrel with the magistrate's characterisation of the assault as "a particularly serious" one. I have set out what I see to be the aggravating factors. The magistrate's reference to the applicant having served imprisonment and having been the subject of suspended terms of imprisonment, can be fairly taken as an observation that such measures have not deterred the applicant from offending. General deterrence in relation to offences of violence is a weighty factor.

28 Although the assault, in the immediate sense, was apparently triggered by the complainant spitting in his face, the behaviour of the applicant leading up to the assault should not be disregarded. It can be said that the penalty was a relatively severe one. However, I am not able to say, paying due regard to the applicant's circumstances, that it is so disproportionate to the seriousness of the offence that it demonstrates error. I am not satisfied that in all of the circumstances the sentence is plainly outside the proper limits of the discretion available to the magistrate.