Belbin v Bennett [2011] TASSC 23

Attorney-General for Tasmania v B [2010] TASCCA 6, followed.

R v Singh [2006] QCA 71; R v Slack [2004] NSWCCA 128; R v Berg [2004] NSWCCA 330; R v Wilson [2005] NSWCCA 219; Wilmot v R [2007] NSWCCA 30; referred to.

Magistrates - Jurisdiction and procedure generally - Procedure - Orders and convictions - Sentencing - Procedure on Sentencing - Fact-finding and evidence - Use of victim impact statement to make a finding of fact.

Attorney-General for Tasmania v B [2010] TASCCA 6, followed.

R v Singh [2006] QCA 71; R v Slack [2004] NSWCCA 128; R v Berg [2004] NSWCCA 330; R v Wilson [2005] NSWCCA 219; Wilmot v R [2007] NSWCCA 30; referred to.

Judgment Number: [2011] TASSC 23

1 The applicant appeared before a magistrate, Mr Brett, without legal representation. He pleaded guilty to a single charge of common assault, contrary to the Police Offences Act 1935, s35(1). On 2 December 2010, he was convicted and sentenced to five months' imprisonment, all of which was suspended for two years on conditions that he be of good behaviour, not commit any offence involving personal violence, and comply with the conditions of a community service order made at the same time. It required him to perform 140 hours of community service.

2 In the course of the hearing, the prosecutor tendered victim impact statements from the victim of the assault and his father. In comments on passing sentence, the magistrate drew from the contents of the victim's statement to make a finding that he had suffered psychological damage. Three grounds of the motion attack the use of that material. A fourth ground asserts that the sentence was manifestly excessive.

3 The facts stated to the magistrate by the prosecutor included the following. During June 2010, the complainant, a 17-year old, met two girls, P and C, through a mutual friend. From then until the day of the assault, 29 June 2010, he received several threatening text messages. The prosecutor did not make the nature of the messages clear. It was said that one of the messages "related to" the applicant.

4 At 10.30pm on 29 June, the complainant was at home with his father when he heard his dogs bark and then a knock on the door. His father answered. The applicant was at the door. He was unknown to those inside. He asked to speak to the complainant, whose father called him from his room.

5 When they met, the applicant asked the complainant if he knew P, who he named. The complainant replied that he did and that he had met her several weeks earlier. The applicant immediately struck him in the face, causing his nose to bleed extensively. The applicant then dragged the complainant by his shirt outside, where three male companions could be seen.

6 The complainant's father yelled out he was calling the police. The applicant responded that if he did so, "you're dead". The complainant tried to run away but was struck several more times to the head. His father tried to stop the assault and was assaulted himself by one of the applicant's companions, being struck twice in the left eye. Both father and son received substantial cuts to their faces.

7 Subsequently, the applicant openly admitted and boasted on his Facebook site about belting the complainant and stated, "I snapped and just bashed his head in".

8 Police spoke to the applicant on 12 July with the intention of interviewing him. He admitted that he had punched the complainant in the face and said that he deserved it. He agreed to be interviewed the following day, but when the time came he refused to participate. He became offensive and when asked for the names of his mates who were in his company at the time of the assault, said he did not know what the police were talking about.

9 The applicant's record was tendered. It showed that he was 20 years old at the time of the offence and that he had committed a number of traffic offences that were of no significance. Relevant were offences of disturbing the peace and injuring property committed two years earlier on 30 August 2007, for which he was formally cautioned by a police officer but with which he was not charged, and a common assault for which on 5 February 2008, without conviction, he undertook to a court of petty sessions that he would be of good behaviour for 12 months and not commit a crime or offence involving violence, and that he would appear for conviction and sentence if called upon during that time.

10 The prosecutor produced to the magistrate two printed victim impact statements in the names of the complainant and his father respectively. They were not read aloud. In summary, the statement of the complainant said that the events had changed things for him and his family. He said that he felt violated, afraid, sick to his stomach and frightened for his family. He felt that he could no longer feel safe out in public. He could not continue his studies at Don College and his sports career "had to be thrown out the window" because he was too afraid to venture out in public, adding that he "had a chance at State rugby" and was rowing for the Tasmanian Institute of Sport. To feel safe, he had moved to Melbourne. He concluded by saying that the lives of his parents and 10-year-old sister would never be the same again.

11 In his statement, the complainant's father, who was assaulted by one of the applicant's companions, spoke of an emotional, physical and financial toll. He no longer regarded his home as a place of comfort and had listed it for sale and he had done the same with his pizza business. It had "torn me apart" to have his son live away from home. He said that his wife had given up work as a sales representative and they had resorted to living on benefits.

12 There was an unresolved discussion between the prosecutor and the magistrate concerning whether receipt of the victim impact statements by the magistrate was authorised by the Sentencing Act 1997, s81A. The magistrate said that he would "accept the material anyway". The statements were given to the applicant to read. Asked if he wanted time to do so, he said that he did, and the magistrate retired to enable him to read them, indicating that the hearing would resume once he had finished doing so.

13 When the hearing resumed, the prosecutor informed the magistrate that the applicant had read both statements. Thereupon, the magistrate requested the applicant to stand and asked, "what do you want to say about this matter?" The applicant did not address the victim impact statements, largely confining his submissions to the offence, the circumstances leading to its commission and his personal circumstances.

14 The applicant said that he was the only boy in his family and that P was his little sister by a different father. He had heard that "something had happened" concerning the complainant. He spoke to P about it. She was 12 years old. She broke down in tears "and said that she did consent to it after a bit of pressure". He did not say what "it" was. He said that he had a little talk to her and she showed him that she had cut her wrists. He continued:

"... and like it was hurting and, you know, I did, I drove up there and I'll accept any punishment that's given to me because I did make the decision and that's why I didn't get a lawyer ... I did do the wrong thing and I made that decision."

15 The applicant said that he had no intention that the complainant's father would be assaulted. As to his assault on the complainant, he said:

"I was half intending to go up there and do something and the other half of me was against it and when I did see him and seen the 17 year old boy that - well you can really say young man that was the size of me, if not broader in the shoulders, and just picturing me little sister who comes up just below me shoulder line, a petite little girl, it just made me sick and that's what happened, yeah, so I hit him. I'm not proud of what I done."

16 He agreed that he struck the complainant in the face and then several times in the head. Later, to a probation officer, he said that he punched the complainant 10 to 15 times.

17 He claimed to the magistrate that he was "not a bad kid" and was trying to do the right things in life with working. He said he was the only person in his family who owned a house, having bought one when 20 years old, and he was proud of that. He was about to commence his third year as an apprentice painter, he said.

18 Asked if there was anything else he wanted to say, he said:

"I'm sorry for what happened and stuff like that, but it's just one of those things that you can't take back and it's been done."

19 The magistrate adjourned the hearing and called for a pre-sentence report from a probation officer. The hearing resumed following its receipt. The applicant confirmed that he had seen it. Asked by the magistrate whether he wanted to correct or comment about anything in the report, he made no material comment. Asked if there was anything else he wished to say, he answered "no". The report stated that in June, he had purchased a home with his partner. He spent his time renovating it, motor cycle riding, socialising with friends and playing football. He had a somewhat troubled upbringing and suffered up to 40 suspensions from school. He said he hated school and had regular school fights. At that time, physical aggression was commonplace.

20 He earned $1,200 per fortnight. His expenses included mortgage payments of $540 per fortnight and $260 off a personal loan of $25,000. His partner's income assisted him.

21 He had started drinking at the age of 14 and his drinking level was described as steady.

22 Concerning the circumstances surrounding the offence, the report stated what he had been informed had occurred between his 13-year-old sister and the complainant. The applicant became enraged by that, obtained the complainant's address, and arranged to have three mates accompany him there. He said that he instructed his mates not to become involved in the altercation. Upon arriving at the address, he identified the complainant and proceeded to punch him approximately 10 to 15 times.

23 He told the probation officer he felt nothing for the complainant, describing him as a "worthless person". However, he further stated that had he not immediately obtained the complainant's address he would not have gone there and committed the offence. On the day of it he had felt raw emotion. He stated that if he was to see the complainant again, he would be able to walk away rather than react in a negative manner.

24 The probation officer assessed the applicant as requiring a low level of intervention from the Department of Community Corrections and therefore, unsuitable for a supervision order. However he was suitable for community service.

Should the magistrate have had regard to the victim impact statements?

25 The comments on passing sentence of the magistrate included the following passage:

"The aggravating factors in relation to this assault include in my view that it was premeditated, it was perpetrated just outside the victim's home in front of members of his family, you were in company with others and the assault was a sustained and brutal one. It's had significant impact on the victim and his father. I've read the victim impact statements that have been tendered. It occurs to me that the physical damage was probably brief but the psychological damage will remain with him for some time and that's a matter that I take into account."

26 Ground 1 of the motion to review asserts that the magistrate erred in law by taking into account, for the purposes of sentencing, the victim impact statements of the complainant and his father. What the applicant's counsel submitted was that the Sentencing Act 1997, s81A, did not authorise the receipt of the statements of the complainant and his father.

27 The section permits a victim of an indictable offence of which an offender is found guilty, to furnish to the court a victim impact statement. The applicant's argument was that he was not found guilty of an indictable offence, but of a summary offence. The offence of which he was convicted was an assault against the Police Offences Act, 35(1), and not an assault against the Criminal Code, s184. Of course, the ingredients of the summary offence of assault against the Police Offences Act and the ingredients of the indictable offence against the indictable offence of assault against the Criminal Code are identical. But notwithstanding that, the argument for the applicant was that in the circumstances, s81A did not permit the receipt of a victim impact statement.

28 The submission was based on a misunderstanding of the effect of s81A. Until it was inserted into the Sentencing Act by the Sentencing Amendment Act 2002, s7, a victim had no legal right to furnish to a sentencing court particulars of his or her injury, loss and damage suffered as a direct consequence of an offence, and the effects on him or her of the commission of the offence. The absence of such a right was partly alleviated by the introduction of s81A, the provisions of which were limited to cases where an offender had been found guilty of an indictable offence. For the first time, victims were given a statutory right to furnish details of what they had suffered as a result of an offence. But it was a right given to victims. The section did not give any relevant rights to a prosecutor.

29 The effect of an offence on a victim has always been a relevant consideration for sentencing purposes. I need not explain the matter further other than by quoting two passages (footnotes included in the text) from Professor Warner's Sentencing in Tasmania, 2nd ed, which was published prior to the enactment of s81A. At par3.406 the author said:

"Culpability is in part determined by the consequences of an offence and whether the offender intended, or foresaw those consequences, or was negligent. Acts with intended consequences will be treated more severely than acts that were unintended although foreseeable."

"The effect of the crime on the victim is clearly important as one of the consequences of the offence (see above at para 3.406) and a penalty will be increased if there is evidence of physical (for example, Tracey Serial No 38/1987) or psychological harm. (McFarlane [1993] TASSC 161; (1993) 2 Tas R 201, Cox J at 203, Zeeman J at 221 (armed robbery causing teller stress and contributing to miscarriage); Roughley v Rigall Serial No A47/1996 (assault of a police officer with a firearm).)"

31 In this case, the prosecutor was entitled to state the effects of the offence on the victim from the bar table, or to tender a written statement of them, whether or not it was written by the victim. The effects on the victim were part of the material the magistrate was entitled to take into account when assessing the sentence appropriate for the offence. It was immaterial that the victim may have had no right under s81A to furnish the statement. Ground 1 fails.

32 I note that none of the grounds of the motion to review the sentence concern the fact that the magistrate received and took into account not only the complainant's statement, but also his father's statement, some of the contents of which were not useable for sentencing purposes against the applicant because he was not the one who assaulted the father.

33 Ground 1A of the motion to review asserts that the magistrate erred in fact and in law by finding that the complainant had suffered psychological damage that would remain with him for some time and by taking that finding into account for the purposes of sentencing.

34 The applicant's counsel submitted that the magistrate should have required a psychiatric, psychological or medical report before making that finding. Counsel referred to my comments in the Court of Appeal in Attorney-General v B [2010] TASCCA 6 and to R v Singh [2006] QCA 71 and R v Slack [2004] NSWCCA 128.

35 Of course, a magistrate may only take into account facts that are adverse to the interests of the defendant if they are established beyond reasonable doubt. R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. However, it is only in exceptional cases in this State that evidence is given on oath following a plea of guilty. Assertions of fact from the bar table are usually accepted unless they are made the subject of contention between the parties or the judicial officer requires some form of evidence. The general rule of the Evidence Act 2001, s4(2), applies to the vast majority of sentencing hearings. That is, the rules of evidence prescribed by the Act do not apply.

36 In Attorney-General for Tasmania v B I made some observations about the use that may be made of victim impact statements with which the other members of the Court of Criminal Appeal agreed. A question raised was whether an assessment of criminal injuries compensation could be based on the contents of an unsworn victim impact statement that asserted a number of psychological and emotional problems as a result of a commission of a crime. Nevertheless, my observations were relevant to this appeal.

"Such statements are regularly tendered to and used by courts when sentencing offenders. ... No doubt it is for that reason that ss81A(7) and 81(2) require that the sentencing court must ensure that the offender has knowledge of, and the opportunity to challenge, the information contained in a victim impact statement. The offender may challenge the truth of any of that information received by the court, and if so, the court may require it to be proved in like manner as if it were received at a trial. See ss81A(7) and 81(4). ... I have no doubt that the contents of many victim impact statements are influenced by the emotional feelings of the victim, his or her dislike for the offender, and a desire for retribution. That comment particularly applies to statements asserting psychological injuries or difficulties as a result of a crime. The statements are never on oath and they require particular caution before they are wholeheartedly accepted.

Offenders rarely challenge them, but that does not mean necessarily that they accept everything contained in them, and I am sure that also applies to judges who receive them, even if they are unchallenged. It is not infrequent that judges feel uncomfortable about accepting everything that is contained in them, for there is usually no way of knowing, or confirming, that what is complained of was in fact caused by the offence. Because they are not on oath and the court will often have no other information about the victim, and the influence that other life experiences have had on him or her, there is a need for pragmatism when dealing with them.

If judges demonstrate a willingness to accept every fact in them that is not challenged, and a readiness to increase the severity of sentences having regard to every one of them, accused persons will be encouraged to challenge much of what is contained in them. As a consequence, victims may be forced to give evidence to support the contents of their statements, and the statements may need to be supplemented and supported with evidence from other witnesses, including medical and other experts. Such a course is not one that is generally desirable for the sentencing process. Victims will be deterred from providing their statements. Many, if not most, will not want to give evidence and to be exposed to the court's processes. Hearings will be prolonged by the dispute.

On the other hand, many offenders may not have the personal or financial resources to be able to mount a comprehensive challenge to a victim impact statement.

I think it true to say that for reasons such as those I have mentioned, sentencing officers tend to treat victim impact statements, when not supported by expert evidence or reports, or other corroborative evidence, with a degree of circumspection when it comes to psychological injuries and the like. That is not to say that they are disregarded, for they are not. But experience shows that they tend to be accepted in an extremely general sense, without resort to detailed fact-finding. Sentencing officers usually avoid making precise findings concerning the adverse effects an offence may have had on a victim. Thus, it is common that in comments on passing sentence judges often make general, non-specific, and extremely brief findings about them."

38 I note that caution was also expressed by the Court of Appeal in R v Singh [2006] QCA 71, where Fryberg J, commented:

"Sentencing judges should be very careful acting on assertions of fact made in victim impact statements. ... If they contain material damaging to the accused which is neither self-evidently correct nor known by the accused to be correct (and this includes lay diagnoses of medical and psychiatric conditions) they should not be acted on. The prosecution should call the appropriate supporting evidence. It is unfair to present the accused with the dilemma of challenging a statement of dubious probative value, thereby risking a finding that genuine remorse is lacking, or accepting that statement to his or her detriment."

39 Caution has also been expressed by the Court of Criminal Appeal of New South Wales. See, for example, R v Slack (supra) per Sperling J at par[62]; R v Berg [2004] NSWCCA 330 per Wood CJ at pars[48] and [49]; R v Wilson [2005] NSWCCA 219 at pars[26] - [28]; Wilmot v R [2007] NSWCCA 30 at par[34].

40 In view of the approval of the Court of Criminal Appeal in Attorney-General for Tasmania v B albeit with an expression of caution, it was open to the magistrate to have regard to the statements for sentencing purposes. The question raised by ground 1A concerns whether the magistrate erred by using the complainant's statement to make a limited finding, that was lacking in detail, that the complainant had suffered psychological damage that would remain with him for some time.

41 The nature of a motion to review a magistrate's order based on a finding of fact is relevant. It is not an appeal by way of rehearing in which it is open to an appellate court to simply disagree with a finding of fact. The question that is raised concerns whether the challenged finding was reasonably open on the material before the magistrate. Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117; Hrycyszyn v Groves 27/1982.

42 I am not persuaded that the finding was not reasonably open. It is to be expected that a person who is bashed by a stranger at the door of his home at night will suffer psychological injury for some time, as well as physical injury. As the finding was consistent with what would be expected it was not erroneous.

44 Ground 1B of the motion asserts that the magistrate erred in law by not ensuring that in accordance with the Sentencing Act, s81(2), the applicant had an opportunity to challenge the information contained in the victim impact statements. The effect of s81(1) and (2) is that before passing sentence, a court must ensure that the offender has knowledge of, and the opportunity to challenge, the information received by the court, whether it be in oral or documentary form.

45 Based on the terms of the ground, it fails. The statements were given to the applicant to read and it is apparent that he read them. It follows that he had knowledge of them. Further, he had an opportunity to challenge what they said. He had that opportunity with regard to everything that was put before the magistrate by the prosecutor. In response to a question from the magistrate concerning what he wanted to say "about this matter", he addressed the magistrate about the circumstances of the commission of the offence and his own circumstances. During the later course of the hearing he was asked twice whether there was anything more he wanted to say.

46 What was submitted by the applicant's counsel was not in accordance with the terms of the ground. He submitted that the magistrate should have expressly invited the applicant to make any comment he wanted to make in relation to the contents of the statements and that it should have been made clear to him he was entitled to challenge them.

47 The only authority referred to by the applicant's counsel was Richardson v White [2005] TASSC 57 at par[9], where Tennent J commented that a magistrate had not asked a defendant if she accepted what was stated in a victim impact statement, adding that the magistrate "did not give her an opportunity to challenge its accuracy". Although that comment was made, there are three things to be said about it. First, her Honour was in fact referring to a psychologist's report about the effect on the victim of an assault and not to a victim impact statement. Second, her comment was made in the context of a magistrate treating a defendant in what arguably was an overbearing manner. Third, the comment was not material to her Honour's decision to uphold the motion to review a sentence.

48 I am not persuaded that the ground has been made out. Of course a judicial officer should ensure that an unrepresented litigant has an opportunity to put his or her case and to challenge or comment about anything that is part of the case for the prosecution. In this case, the magistrate did not expressly invite the applicant to make submissions about any particular matter other than his record of offending, a prior conviction for assault and the contents of the pre-sentence report. But in addition, the applicant was invited a number of times to say anything he wished to say about the matter in general. The applicant availed himself of the opportunity to do so and addressed at some length about the offence, the circumstances leading to its commission and his personal circumstances.

49 There is no reason to think that he was ignorant of the fact that he could challenge or comment on anything in the victim impact statements. The magistrate had adjourned to give him an opportunity to read them and it was only after that he was invited to make submissions about the matter in general.

50 I add that there is no material before me to suggest that the applicant was unaware of his rights to challenge or comment about the contents of the statements or that he would have availed himself of the opportunity to do so if he had been specifically invited.

52 Ground 2 of the motion is that the sentence was manifestly excessive. In support of the ground, counsel's submissions included the following. The applicant was emotionally upset concerning his sister when he lost control and assaulted the complainant. Although he went to the house with three others, he told police that he directed the others to stay out of it. Although he refused to be interviewed by police, he pleaded guilty to the charge at his first court appearance. He was a relatively young offender at the time, aged 20. He was engaged to marry and was buying his home. It was submitted that repeat offending was unlikely.

53 It is not sufficient that I would have imposed a lighter sentence. Before I uphold the motion to review, I must be persuaded that the sentence was manifestly excessive. I am not so persuaded. It was a relatively serious case of assault. The applicant went to a stranger's home at night with three others intent on having a confrontation. On his own admission he punched the man 10 to 15 times and boasted about it afterward on Facebook. Although not to be sentenced for it, his actions incited an assault on the complainant's father by one of his companions. Further, he had committed another assault only two years before, so a sentence of personal deterrence was required, as well as one of general deterrence. In all the circumstances, the sentence was within an acceptable range.