Brooks v Lane [2014] TASSC 2

Justices Act 1959 (Tas), s110.

KAREN MAREE BROOKS, FELICITY KATE MEDHURST, BENJAMIN JOHN NASH, STUART PETER McMAHON v RICHARD LANE

1 On 27 March 2013, each of the applicants was convicted and sentenced by Chief Magistrate Hill in respect of offences arising out of an incident at the Mustard Pot Hotel on 1 September 2012. Each applicant has appealed against the sentence imposed. The wording of the grounds of review in each notice to review is identical. Ground 1 was that the sentence imposed was manifestly excessive. Ground 2 was that the learned magistrate erred in law in sentencing each of the applicants in respect of acts of others with whom an applicant had not been jointly charged. In the alternative, it was asserted the learned magistrate erred in law by imposing a sentence in respect of each applicant which was not disparate from that imposed on the other applicants. That alternative ground was abandoned at the hearing.

2 It is necessary to look at what each of the applicants pleaded guilty to.

By pushing, punching, throwing two punches, taking hold of the complainant and pushing him back several metres

Assault - s7(f) undertaking without conviction

Failing to comply with the direction of a police officer

By pushing the complainant to the chest and punching him to the face

By pushing the complainant a number of times to the chest, striking to the face using a forearm, striking his arm, shoulder and face, pushing him back several metres, putting her left arm round his neck, pushing him into a wall and biting his arm

2005 - abuse police - s7(h) no conviction

2007 disorderly conduct -s7(h) no conviction

Fail to comply with the direction of a police officer

By slapping twice to the face and punching to the face

By pulling arms away, trying to break free and removing herself from a police vehicle by opening the door

By placing hands on an officer, trying to push him, trying to intervene when he was attempting to deal with someone else and putting a finger in his face

3 The charges against each applicant were contained in individual complaints. There were no joint charges. Before the learned magistrate, a single counsel appeared for all of the applicants. The charges were not read, all pleas being taken through counsel. The facts read by the prosecutor were not divided as between the applicants. One set of facts was read, detailing a sequence of events and the part each applicant played. Prior matters were tendered. Counsel then provided a plea in mitigation. He did that by dealing with the events of the night generally, and what each accused remembered of their role. He then dealt with the personal circumstances of each applicant separately. After pleas in mitigation were completed, the learned magistrate asked counsel:

"You're not seeking to differentiate between their respective roles?"

The learned magistrate then sentenced each applicant. In respect of the counts of common assault, he sentenced each applicant to eight weeks' imprisonment wholly suspended. For the applicant McMahon, who was facing an additional charge of assault police, the learned magistrate ordered a term of four weeks' imprisonment to be served concurrently. The learned magistrate then imposed fines or recorded convictions in respect of the remaining charges. No issue is taken with any part of any sentence, save that relating to imprisonment.

4 It is clear from the way the hearing before the learned magistrate was conducted that everybody, including the prosecutor, defence counsel and the magistrate, treated this matter as one incident. That, and the exchange between the learned magistrate and counsel at the end of the plea in mitigation, clearly led to the way in which the learned magistrate sentenced the applicants.

5 The facts as read by the police prosecutor were in the following terms:

"MS JERRIM: The complainants in this matter are a Mr Gerard Carte, and he is a crowd controller; also Constable Chris Allen. The facts are at approximately 10.30 in the evening on Saturday, the 1st of September last year all four defendants enter the Moonah Bar and Café, Main Road, Moonah. Working as a crowd controller that night was Mr Carte and a Mr Lakos who is a witness.

All four have consumed alcohol. At approximately 11.20 defendant McMahon is spoken to by Mr Lakos the security officer at the Keno bar in relation to his behaviour as he had been leaning over the bar handling the beer taps. A few minutes later crowd controller Mr Carte has approached another staff member, Mr Levies, and asked him to stop serving defendant Nash any more alcohol due to his intoxication level.

One minute later defendant McMahon attempted to purchase some alcohol from the bar near the dance floor. Defendant Nash who had just previously been told about not being served alcohol was present with him. Staff member Mr Levies has had a conversation with defendants McMahon and Nash explaining his intention to not serve Mr Nash any more alcohol.

A short time later defendant Brooks has approached Mr Carte, defendant McMahon had turned away from the bar towards Mr Carte and Mr Lakos and stuck his middle finger up at them. Whilst defendant Brooks continued to talk with the security officer Mr Carte defendants McMahon and Nash approached - has then spoke with the witness - the security officer Mr Lakos near the front door.

As this occurred defendant Brooks has begun to yell abuse and shout at the security officer Mr Carte. As she did this she stood a short distance from him and began pointing her finger at him. Defendant Brooks then left Mr Carte and joined the other defendants McMahon and Nash who were continuing to speak with the other security officer Mr Lakos.

At this point defendant Medhurst has then joined in the group. Mr Carte has been approached by the defendant Nash, the assistant manager has moved in to assist Mr Carte. Defendant Nash has pushed the assistant manager Anthony and punched him once to his head with a right fist. Security officers Carte and Lakos have moved in to assist Anthony.

As defendant McMahon has charged at the assistant manager Anthony and attended to punch him with his right fist without success. Defendant McMahon has then pushed Mr Carte once to his chest using his left hand. Security officer Mr Lakos has taken hold of McMahon and Nash to prevent them from a further attack. Defendant Brooks has then pushed Mr Carte once using two hands to his chest and then struck the right side of his face using her right forearm.

She has then pushed Mr Carte again using two hands to the chest area. Mr Lakos continued to hold on to the defendants McMahon and Nash. Mr Carte has attempted to remove the defendant Brooks from the venue. Once outside she has struck the right arm of Mr Carte before pushing him again, the force pushing him back inside the front entrance.

Inside the premises defendants McMahon and Nash have pushed Mr Lakos towards the front door. Mr Carte has continued to struggle with the defendant Brooks and he attempted to remove her again by taking hold of her right arm. Defendant Brooks provided assistance by grabbing hold of the door with her left hand and not letting go. She has then struck Mr Carte with her right elbow to his shoulder and again - and struck him again with her left elbow to the right side of his face.

Mr Carte - the security officer has re-entered the hotel via the front entrance and Mr Laos has stood in the doorway to prevent the defendants from moving back into the hotel. Defendant Nash attempted to push past Mr Lakos. He failed to gain entry and punched a hotel window once with a clenched fist and then twice with the right fist which has caused it to shatter.

Defendant Medhurst has managed to re-enter the hotel. She has approached Mr Carte and slapped him twice with an open hand to the left side of the face; defendants McMcMahon and Nash have also managed to re-enter the hotel. Defendant McMahon has approached Mr Carte and punched him once to the left side of his face with a closed fist.

The defendant Nash then punched Mr Carte once to the left side of his face with a right clenched first. Defendant Nash has attempted to punch Mr Carte on two more occasions without success. Defendants Nash and Brooks have then pushed Mr Carte by taking hold of him and pushing him backwards several metres into the Keno area.

Defendant Brooks has then put a left arm around the neck of Mr Carte and then pushed him into a wall. She has proceeded to bite the right arm of Mr Carte with her teeth. Mr Lakos and other staff members assisted Mr Carte who has then left the bar area and gone outside the hotel. The police had arrived at the scene; Mr Lakos was holding back the defendant McMahon in the front entrance.

Constable Rosendorf has walked into the front area, as he did this defendant McMahon has moved towards him and attempted to strike Constable Rosendorf with a right clenched first that narrowly missed. As Constable Allen approached defendant McMahon he has punched Constable Allen once to the face with a left clenched fist. Defendant McMahon was arrested and continued to resist by struggling and pulling his arms away and wrestling with police.

During the arrest defendant Medhurst obstructed police by placing her hands on Constable Allen and pointing a finger in his face and attempted to push him away. Both she along with defendants Nash and Brooks are held back as they attempted to intervene. Defendant Medhurst then moved in behind Carte who was standing at the front of the hotel and punched him once to the right side of the face with a clenched right fist.

After approximately two minutes of struggling with police defendant McMahon was handcuffed, defendant Medhurst was placed under arrest and resisted by pulling her arms away from her body and trying to break free. She was handcuffed and placed in the police vehicle. Police spoke with defendant Nash who was issued with a formal direction to leave the area. He acknowledged the direction however refused to leave stating he did not have to and was not going to.

At this point defendant Medhurst has proceeded to jump across into the front passenger seat of the police vehicle and then remove herself by opening the door. She was held by police until additional units arrived. A short time later another unit arrived and McMahon and Medhurst were placed in the rear of the divisional van.

Defendant Nash failed to leave the area after repeated instructions and was arrested. Defendant Brooks was issued with a formal direction to leave the area. She was given several opportunities but refused and she was arrested and being arrested she stated to Constable Jodie Kenny, 'You're just a fucking cunt.' All four defendants were conveyed to Hobart where they were detained for further investigation.

Both statutory declarations and witnesses were obtained, all four were charged, processed and bailed. As a result of the assault Mr Carte received a swollen upper lip, sore teeth, a swollen cheekbone and marks on his right shoulder. Constable Allen received a bruise and soreness to his right eye, arm and left knee and soreness to his right cheekbone. All four were under the influence of alcohol. The majority of the incident was captured on surveillance. There were other people in the bar at the time. The value of the damage was five hundred dollars. I would seek damages be adjourned sine die in relation to that."

6 The general submissions of counsel for all applicants were then as follows:

"Your Honour, as of the 1st of September last year on the evening of the incident Mr McMahon and Ms Medhurst were a couple and Mr Nash and Ms Brooks were a couple. The day in question started out quite innocuously. That afternoon Ms Medhurst rang Ms Brooks to see what her and her partner were doing that evening. They wanted to catch up for a drink.

They agreed to meet at the Club Hotel where Mr Nash and Mr McMahon were employed. They met up around about 9 pm. Ms Brooks actually drove her car there because she wasn't staying out for long that evening. All four were drinking and socialising and watching a game of football on the TV. Each was drinking their alcohol of choice.

Around about 10 pm the hotel closed, there was talk of heading to Ms Brooks and Mr Nash's house at Montrose. It was agreed that they would go to the Mustard Pot hotel at Moonah and they travelled there by cab. There each of them consumed vodka and Red Bull. The effect of this alcohol on top of the previously consumed alcohol had a deleterious effect on each of them. The girls were drinking at their own pace and the men were in a shout.

In my submission, your Honour, what should have been patently obvious to the bar staff and to security that at the time that they were still being served, that they were under the influence of alcohol, they weren't thinking clearly and they weren't making rational decisions even though they thought they were. I am instructed that they didn't appear to be doing anything out of the ordinary when a decision was made to stop serving the men.

Their perceptions were distorted, Ms Brooks went over to a nearby bouncer to ask why that had occurred; in her mind they hadn't done anything wrong. There was a long and involved talk with that particular bouncer. All the security guards that evening were dressed in high visibility vests similar to the police which - my clients' recollections and instructions thereafter are grossly affected by alcohol.

Their recollections of what occurred are blurred and in some cases vague but by their pleas they fully accept their responsibility for each of the charges to which they have pleaded guilty to. Their reasoning was also faulty no doubt due to the impact of the alcohol on them. Ms Medhurst instructs that she was drinking the vodka and Red Bull which is not her drink of choice. She is only five foot tall and the alcohol had a dramatic effect on her.

She recalls going to the toilet and coming back and seeing Brooks and the security in a long and involved conversation and then an incident occurred between the security guard and Ms Brooks. She recalls the bouncer trying to remove Ms Brooks from the building and he succeeded. She then recalls approaching the security guard a short time later and slapping him twice to the face with an open hand saying, 'You don't do that to a woman,' and was then grabbed by the bouncers to be ejected.

She recalls standing outside the hotel. There were some people in fluoro vests who were taking Mr McMahon to the ground and they were obviously police. There were several people over him, she was concerned for his welfare, there were lots of hands and knees going in all directions. She tried to get closer to him to calm him down, the police wouldn't let her get close and she was then charged with subsequent offences.

She was then placed in a police vehicle and recalls getting out but can't say why. Ms Brooks recalls talking to a bouncer for a long time. She recalls this bouncer nodding his head to another bouncer in a notion to have Mr Nash and Mr McMahon leave the building. She recalls being asked to leave and she was grabbed and she started hanging on to some of the furniture. She was trying to stay inside. He kept pulling at her, she reacted and acted in the way that has been described to get into the (indistinct words) she recalls seeing Ms Medhurst inside, and in a headlock with the bouncer.

She thought that Ms Medhurst was being attacked. She re-entered the hotel to come to her aid and she again hit the bouncer to free her friend. She recalls being outside on the pavement and being asked to move on but wanted to see what was happening with her friend and decided to stay. She was arrested and she was also charged with abusive language.

Mr McMahon recalls being removed from the premises and being outside the hotel. He recalls looking in the hotel and saw Ms Medhurst being manhandled by security. He wasn't thinking clearly, he pushed past security guards to get back into the hotel to come to their aid. He recalls pushing a bouncer to get his girlfriend free. He recalls throwing a punch and missing but he concedes he could have also hit that particular bouncer.

He recalls being outside, he recalls seeing a male in a high-visibility vest rush towards him. It was dark; he thought it was a bouncer. He was hitting thinking that the altercation was continuing. He accepts that it was a police officer and he recalls being on the ground and he recalls being confused and disorientated and struggle and ultimately gave up that struggle and was arrested.

Mr Nash, he was outside, he saw a man manhandling Ms Brooks, his partner, he went to assist to get the man away from her. He recalls being outside. He has no explanation for damaging the window. He saw Mr McMahon rush back inside and he followed. He saw he had hit the bouncer - that was holding Ms Medhurst, he did the same. He was stopped, he was taken outside where police were with Mr McMahon.

He was told to move on. He wanted to know what was happening with Mr McMahon and he was arrested for failing to leave. I am instructed that all four were taken to the remand centre and all four were detained for approximately eight hours in custody and that was a very salutary lesson to all four of them. Their perceptions were distorted by too much alcohol, their reasoning was faulty (indistinct words) to each other became the catalyst to becoming involved in the altercation. As I say, they all drank too much on the night in question."

It was a feature of these submissions that each applicant was significantly affected by alcohol and had only a patchy memory of the events of the night.

7 Counsel for the applicants then proceeded to deal with the personal circumstances of each applicant, following which the learned magistrate proceeded to sentence. His sentencing remarks were as follows:

"DECISION - HIS HONOUR: Each of the defendants, just stand up thanks. Well, these are very, very serious offences to which you have pleaded guilty. Mr Nash has a matter in his history which was dealt with without conviction but it's the only real matter of relevance in an assorted collection of some mainly traffic-type offences. There's some other - Mr McMahon has a couple of matters of seriousness traffic-wise but nothing of any nature like this.

Ms Brooks I think has a - some traffic matters, some disorderly conduct matters. These are the sorts of offences which generally would result in imprisonment. They are offences which result in injury, they are offences which are fuelled by alcohol, lack of judgment and chaotic behaviour and people who are in the vicinity become involved, the whole thing gets out of hand and it becomes incredibly serious.

That was the start of it, and I'm going to deal with each of you equally, I'm not going to try and differentiate one from the other. I think that would be artificial and your counsel has indicated he is not asking me to take that course. It's a joint exercise, you all joined in and having assaulted the complainant originally, the security officer who was simply doing his job, you then failed to comply with the lawful directions of police and also committed an assault upon the police officer.

So I can say to you that if you had a history of offences like this there would be no doubt that you would go to prison. There would be no doubt in my view that you would go to prison. The community simply doesn't tolerate this sort of drunken, violent behaviour. I have listed to what has been put in relation to what happened and I've heard what has been said for you and I have looked at the references and they are impressive ones.

The pleas of guilty are matters to which - to take account. I am entitled to give you credit for the pleas of guilty. So you have saved the time in the disposition of this matter and you have accepted responsibility. You are each in good employment and I don't know, I expect that you have reflected upon this evening since that time and I'm not going to give you a lecture about it save and except to say that they are imprisonable offences.

I am going to impose upon each of you periods of suspended imprisonment and impose fines. You have the capacity to pay fines and the matters are worthy of imprisonment but because of your records, your lack of history and your employment you won't be going to prison. Mr Nash, on the first count of common assault in relation to your complaint you are sentenced to eight weeks' imprisonment.

The execution of that sentence is wholly suspended for two years on condition that you are of good behaviour and commit no similar offences during that time. On the charge of resisting police you will be fined five hundred dollars. On the third count of failing to comply with a direction I record a conviction. Costs on the complaint are sixty dollars forty eight, there are victim of crime levies of twenty dollars on counts 1 and 2. Do you understand that? 28 days to pay. Take a seat there.

Mr McMahon, on the first count of common assault in relation to your complaint, as I say, I'm not going to differentiate between you, I'm not asked to do that, and I think it's artificial to try and attempt to do that. The first count of common assault, you are sentenced to eight weeks' imprisonment, the execution of that sentence is wholly suspended on the same terms as Mr Nash for two years.

On the second count of assaulting police, it's a separate action but all involved in the one exercise, you are sentenced to four weeks' imprisonment concurrent and suspended on the same terms. You two gentlemen work in the hospitality industry; you should have been aware of the likelihood of this matter getting out of hand. On the charge of resisting police, Mr McMahon, you are fined five hundred dollars. Costs on the complaint are sixty forty eight and there are victim of crime levies on each of the three counts. Take a seat, thank you.

Ms Medhurst, I repeat the comments I made in relation to you, you have got some impressive references and you don't have a history but on the first count of this complaint you are sentenced to the same period of imprisonment, eight weeks suspended on the same terms. On the charge of resisting police I record a conviction on the charge of obstructing police. You are fined five hundred dollars. Costs are sixty dollars and forty eight cents with a victim of crime levy of twenty dollars on each of the three counts. Thank you.

Ms Brooks, once again a person with no history or relevant history. On the first count on the complaint you are sentenced to eight weeks' imprisonment suspended on the same terms as the other defendants. On the charge of failing to comply with a direction you're convicted. On the charge of abusive language, you're fined five hundred dollars. Costs are sixty dollars and forty eight cents. There are victim of crime levies of twenty dollars on counts 1 and 3. 28 days to pay; just take a seat."

8 It is trite to say that magistrates have a broad discretion when sentencing offenders. For any of these reviews to succeed, the applicant must satisfy this Court that, in exercising his sentencing discretion, the learned Chief Magistrate made an error. That error is to be understood in the context of the explanation provided in House v R [1936] HCA 40; (1936) 55 CLR 499, where at 504 Dixon, Evatt and McTiernan JJ said:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

9 The only part of the sentences imposed which is under challenge is that by which a sentence of imprisonment was imposed. Counsel for the applicants submitted that a sentence of imprisonment should only be imposed if it is considered it is the only appropriate sentence. Once that position is reached, only then should a sentencing judge determine if that term of imprisonment should be suspended. Counsel cited Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 and Bell v Lowe [1988] Tas R (NC 2) without referring to any particular passages which were relied upon.

10 Professor Warner in her text, Sentencing in Tasmania, 2nd ed, The Federation Press 2002, at 223, deals with the issue where she says:

"It is a fundamental principle of sentencing that imprisonment is a punishment of last resort, to be imposed only where a non-custodial sentence is inappropriate."

Professor Warner also deals with the exercise of sentencing discretion in relation to suspended sentences. She says at 228:

"The approach enunciated by the English Court of Appeal in O'Keefe is that sentencing courts must first consider and dismiss all non-custodial penalties as inappropriate then decide that a sentence of imprisonment is necessary, fix the length of that sentence and only then go on to ask whether the sentence of imprisonment should be suspended. This has been accepted by the Court of Criminal Appeal of Tasmania in cases such as Percy and by Kirby J of the High Court in Dinsdale. Kirby J explained:

The starting point ... is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of suspended term of imprisonment should not be imposed as a 'soft option' when the court with the responsibility for sentencing is 'not quite certain what to do.'"

11 The facts published by the prosecutor in relation to the role of Nash support all of the particulars alleged in respect of him, save that he pushed the complainant. No issue was taken in relation to this at the sentencing hearing, nor was it relied on to any real extent on the hearing of the review. Mr Nash's counsel's plea in mitigation as to his personal circumstances was as follows:

"Mr Nash is 32, he is single, he lives at 31 Huntley Street, Montrose. He is also a supervisor in the bottleshop at the Club Hotel.

He was born in Hobart, he was educated to a grade 12 level at Elizabeth College. He worked in the baking industry for approximately eight and a half years as a baker; they were difficult hours. Approximately six years ago he was employed as a bottleshop operator at the Club Hotel. He takes home approximately seven hundred dollars a week net. His outgoings are a hundred and ten dollars a week rent, seventy five car loan, thirty Coogan's, twenty five credit card and he has general living expenses.

Mr Nash has a prior matter and in relation to that I can explain that as follows. In 2009 he had been at work with one of his work mates, they had knocked off, they were consuming alcohol outside the hotel. His work mate became intoxicated, he became a pest, he started pinching Mr Nash on occasions when it wasn't expected.

Mr Nash walked away, Mr Nash returned, his friend still continued to pinch him on odd occasions. Mr Nash told him to stop, he didn't so he hit him once to prevent him from continuing and he stopped that particular matter."

12 As counsel for the applicants on the hearing of these reviews also submitted, a general explanation of regret was put. It was:

"Your Honour, in closing all four people, I submit, are intelligent people in responsible occupations with a good educational background.

They all deeply regret what occurred that evening, they're all stressed by the current proceedings. The shame of being charged is quite ingrained in all of them. All four have changed their behaviour as a result of the incident. They don't go out socially unless it's very special occasions such as a wedding. I submit given their antecedents, their reactions to the incident, their pleas of guilty, it would be unlikely that an incident such as this would re-occur. They're not the type of people who act like this on the weekends, it's a one-off matter which is out of character for all of them. They want to put all of this behind them and get on with their lives. Subject to any questions, your Honour, they are my submissions."

13 References were tendered to the court in relation to the applicants. They were not available on this review but there is no dispute with the learned magistrate's characterization of them as impressive.

14 It is clear from the comments of the learned magistrate at page 30 of the court book that he took the view that all four applicants had been involved in an alcohol-fuelled situation in a public place which got out of hand, and involved a lack of judgment resulting in offences involving violence and injury. As such, he took the view that a deterrent sentence was warranted and, were any of the applicants to have a history for offending of a similar nature, there would be no doubt they would go to prison. It must follow from that, that, as an experienced magistrate, he had given thought, though he did not enunciate it, to other lesser sentencing options, and considered they were not adequate for the circumstances. It is also clear that, while he considered the offending to be worthy of imprisonment, he considered there were matters which justified any sentence of imprisonment being suspended. I am not satisfied that any error has been established relating to the learned magistrate's approach in this regard.

15 However, ground 1 asserts manifest excessiveness. Counsel's submission was to the effect that the imposition of a term of imprisonment in the circumstances of each of the applicants in itself demonstrated such excessiveness. He further submitted that there was no requirement for specific deterrence. Clearly, general deterrence however had to be a factor.

16 Mr Nash had a relevant prior matter. Its circumstances were explained by his counsel, and obviously the sentencing court on that occasion considered the matter relatively minor, given the penalty imposed. However, what that prior matter demonstrated was that the applicant had used violence before in an alcohol-related environment. In the present case, the particulars indicated this was not a one off punch, but an incident which involved a number of actions. The applicant had also flouted police authority by refusing to leave the area when told to do so and had smashed a window. While those last matters underpinned separate charges for which separate penalties were imposed, the facts giving rise to them are relevant as background to the assault. Otherwise, the applicant had secure employment and his position involved responsibility. He was single. He regretted his actions on the night and had changed his behaviour. The court was told the events were unlikely to be repeated.

17 While I accept that the penalty imposed by the learned magistrate for the common assault was a significant one, it must be looked at in the context of what this applicant did, and the need for at least general deterrence in relation to alcohol-fuelled violence in a public place against a person whose role was to ensure good order prevailed. Given those circumstances, a short custodial sentence was not beyond the appropriate sentencing range. The learned magistrate has clearly, and appropriately, recognized the mitigating factors by suspending the entirety of the sentence. I am not satisfied, insofar as Mr Nash is concerned, that the sentence of imprisonment imposed upon him in relation to the assault was manifestly excessive.

18 As to the second ground, the asserted error is identified as arising from the learned magistrate's enquiry to defence counsel as set out in par[3] of these reasons. Counsel submitted that exchange indicated that the learned magistrate treated each applicant, for the purpose of sentence, as if they were jointly charged. He further submitted that the learned magistrate was bound to assess the criminality of the acts of each applicant independently from the acts of each other applicant.

19 It must be accepted that the learned magistrate did not, when sentencing each applicant, identify any similarities or differences in their behaviour. He described it as a joint exercise in which all four applicants joined in, which involved assaulting the security officer, failing to obey the directions of a police officer, and assaulting a police officer. While the learned magistrate sentenced each applicant separately and in relation to each separate charge, he flagged before doing so that he intended to treat each applicant largely in the same way.

20 It must follow that his Honour made an error in that the applicants were not jointly charged, the events were not put by the prosecutor as a "joint exercise", and not all of the applicants committed the offence of assaulting a police officer and failing to obey the direction of a police officer. With respect, however, the learned magistrate was clearly led into approaching the matter as he did by the concession sought from and given by the applicants' counsel.

21 As to this ground as it relates to Mr Nash, he did not commit the offence of assault police and yet appears to have been sentenced on the basis he was criminally responsible for that offence. Ground 2 should therefore succeed in relation to him.

22 Mr McMahon pleaded guilty to common assault, assault police and resist police. He had no prior matters which involved violence. His personal circumstances were described in the following way by his counsel:

"Mr McMahon is 29, he is married, he also lives at 8 Arunta Crescent, Chigwell. He is a bar supervisor at the Club Hotel. He was born in Hobart. He attended Guilford Young College to grade 12. Since then he has been involved in hospitality. He worked at the Carlyle Hotel for five years, he worked at the Waratah Hotel for three years and he has worked at the Club Hotel for the past three years principally in a supervisory role which is a position of responsibility.

He takes home about eight hundred dollars a week. He provides three hundred and forty for the mortgage and three hundred and twenty eight a fortnight for a loan on the car of twenty seven thousand dollars and the balance is spent on general living expenses."

23 The particulars of the charge of common assault in respect of Mr McMahon also involved the use of punching, particularised as being to the chest and face. The charge of assault police involved punching to the face. Mr McMahon had prior matters which, while not directly relevant, involved problems with alcohol and compliance with court orders. He also had employment and there was an indication he would not repeat his behaviour. He had recently married, I infer, Ms Medhurst.

24 Notwithstanding the mitigating factors, I repeat in respect of Mr McMahon my comments which appear at pars[14], [15] and [17] of these reasons. I am not satisfied that manifest excess has been demonstrated either in relation to the common assault or the assault police matters. Ground 1 should therefore fail in respect of Mr McMahon.

25 As to this second ground, Mr McMahon is in a different position. The learned magistrate correctly identified the matters for which this applicant was being sentenced. There was no indication he was sentencing this applicant for anything he had not done. This ground can therefore not succeed in respect of Mr McMahon.

26 Ms Brooks pleaded guilty to one count of common assault, one count of failing to obey the direction of a police officer, and one count of using abusive language to a police officer. Her personal circumstances were stated as follows:

"Ms Brooks is 36, she is single, she resides at 2 Hardman Court, Rosetta. She is a training coordinator at Hazell Bros. She was born in Hobart, educated to grade 12 level at Rosny. She had a daughter at age 19. In 1999 she returned to the workforce as a medical receptionist at doctor surgeries in the greater Hobart area.

She then worked as a personal assistant for the manager of (indistinct words) in the past couple of years she has worked at Hazell Bros at Derwent Park as a receptionist. She is currently working in human resources as a trainee supervisor for the younger staff. She takes home eight hundred and forty dollars a week. She pays rent of three hundred a week and one hundred dollars school fees. The balance is spent on cost of living expenses and she has a dependent daughter.

27 This applicant had two relevant prior matters. Neither involved a conviction. On 2 May 2005, she appeared before a magistrate on one count of using abusive language to a police officer. It was dismissed by reference to the Sentencing Act 1997, s7(h). On 10 September 2009, she appeared before a magistrate on one count of disorderly conduct. Again, that matter was dismissed by reference to s7(h).

28 Looking objectively at the particulars of the charge of common assault against her, it might be said it did not involve punching as did the charges against Mr Nash and Mr McMahon. Further, she was not charged with assaulting a police officer, nor was she criminally responsible for what might be viewed as the more serious actions of the two men. The charge against her needed to be considered individually.

29 Having regard to the above, and the matters considered in respect of this ground relating to the applicants Nash and McMahon, I would accept that the sentence of imprisonment imposed in respect of this applicant was manifestly excessive.

30 For the reasons expressed in relation to this ground as it related to the applicant Nash, the ground must succeed in relation to this applicant.

31 As to this applicant's personal circumstances, her counsel said as follows:

"... Ms Medhurst is 25, recently married and lives at 8 Arunta Crescent in Chigwell at mortgaged premises. She is an enrolled nurse. She was born in Hobart, attended Hobart College to grade 12. She has always wanted to be a nurse. She enrolled at the Launceston campus and underwent studies to be a registered nurse for one and a half years.

She also worked at the time, she deferred her university, she did a diploma course for being an enrolled nurse at the TAFE at Rosny, she received her certification in 2009. In 2010 she was employed at the Glenview Nursing Home. She then spent some time in Alice Springs with Aboriginal Aged Care. She held a graduate position at the Royal Hobart Hospital as a theatre nurse in the neurology department. She was then employed full-time at the Red Cross blood bank.

She currently works part-time at the Red Cross blood bank, and she is also employed at the Royal Hobart Hospital in the casual nursing pool where she is called in to cover nurses' absences. Her income net is about sixteen fifty a fortnight. Her fortnightly outgoings are six hundred and fifty five for her mortgage, two hundred for credit card, seventy for insurances and then there's the cost of living."

32 The particulars of the common assault to which she pleaded guilty were that she slapped the security officer twice to the face and also punched him to the face. She had no relevant prior matters and held a responsible position. While her actions involved punching and slapping, she was a first offender with no relevant history of any description. Counsel for Ms Medhurst submitted that no sentence of imprisonment at all could be justified, suspended or otherwise. With respect, I do not agree with that submission given the circumstances in which the offending occurred. However, I would accept that a sentence for this applicant of exactly the same length as that imposed on Mr Nash and Mr McMahon was excessive in all the circumstances.

34 For the reasons I have already given in relation to Mr Nash, this ground should succeed.

35 As to Mr Nash, I have determined that ground 1 should fail and ground 2 should succeed. As to Mr McMahon, I have determined that neither ground of review should succeed. As to Ms Brooks and Ms Medhurst, I have determined both grounds should succeed.

36 Counsel for the applicants submitted that, in circumstances where any ground of review succeeded, a miscarriage of justice would have occurred, and the relevant notice to review must be upheld. On the other hand, counsel for the respondent submitted that, if any ground of review should succeed, the Court should have regard to the Justices Act 1959, s110(2)(ab), on the basis that no substantial miscarriage of justice had occurred. Section 110(2)(ab) provides that, in a case where this Court considers that no substantial miscarriage of justice has occurred, even though the cause or matter raised by the motion might be decided in favour of the applicant, the Court may dismiss the motion.

37 Dealing with the motions to review in respect of each applicant, that relating to Mr McMahon is dismissed as neither ground has succeeded. As to Mr Nash, I have determined that the sentence imposed on him in respect of the assault was not manifestly excessive. While I have concluded also that, on the face of the learned magistrate's sentencing remarks, it appears Mr Nash was sentenced for an offence he did not commit, as a consequence of my finding in respect of ground 1, it cannot be said that a miscarriage of justice has occurred. This case is one to which, in my view, s110(2)(ab) should apply. I am not satisfied that a substantial miscarriage of justice has occurred. The motion to review in respect of Mr Nash is therefore dismissed.

38 That leaves Ms Brooks and Ms Medhurst. Both grounds of review have succeeded in respect of each. The only issue which arises, given the submissions of counsel, is whether it could be said that, notwithstanding the grounds of review have been made out, no substantial miscarriage of justice has occurred and it is appropriate to have regard to s110(2)(ab). The situations of Ms Brooks and Ms Medhurst do not, in my view, allow for a conclusion that no substantial miscarriage of justice has occurred. If each of the motions to review were to be upheld, and they were to be re-sentenced, any such re-sentence would not be mere tinkering. The notices to review in respect of each should succeed.

39 Neither counsel addressed the question of re-sentence should any review succeed, and s110(2)(ab) not be appropriate to consider. It would seem to me that I am in a position to re-sentence and that any delay would be minimised were I to do so. However, I am mindful of the possible impact of amendments to s110 which took effect on 1 September 2013, and will need to hear further from counsel.