//
[2021] TASSC 58
General information, not legal advice.
Supreme Court of Tasmania
2021-11-22
Porter AJ
Original judgment source is linked above.
Criminal Law - Appeal and a new trial - Appeal against sentence - Sentence manifestly excessive - Family violence offence - Assault by pulling hair, choking and punching to legs - Prior conviction for assault but no history of family violence - Complainant supportive - Sentence of three months' imprisonment with two months suspended not manifestly excessive - Relevance of attitude of victim.
Hardwick v Tasmania [2020] TASCCA 2, 32 Tas R 62, applied.
Director of Public Prosecutions v Chatters [2011] TASCCA 8, 21 Tas R 26; Menichelli v Tasmania [2009] TASSC 111, 19 Tas R 299, followed.
Judgment Number: [2021] TASSC 58
1 This is a motion to review a sentencing order. On 13 July 2021 the applicant pleaded guilty to a charge of assault under the Police Offences Act 1935. He also pleaded guilty to four "storage" offences under the Firearms Act 1995, and the matters were adjourned for sentence to 16 July 2021. The assault was a family violence offence. The victim was the applicant's partner of some six years. On the assault charge he was sentenced by Magistrate Brown to three months' imprisonment the execution of two months of which was suspended on condition he commit no offence punishable by imprisonment for a period of 18 months. He was fined in respect of the firearms offences.
2 The motion to review only relates to the assault charge. The sole ground in the notice to review is that the sentence is manifestly excessive. At the hearing of the motion on 16 November 2021 I dismissed it, and said I would later publish reasons. These are those reasons.
3 It is relevant to set out what has occurred in relation to the hearing of the complaint. The incident that led to all matters of complaint happened on 16 February 2021. The complaint was filed on 15 March 2021 and the applicant's first appearance was on 23 March 2021 when, unrepresented, he pleaded guilty before a different magistrate. That magistrate ordered a pre-sentence report and adjourned the matter to 4 May 2021.
4 At that time the applicant was represented and a plea in mitigation was made. A sentence was immediately passed, with the applicant being sentenced on the whole of the complaint to four months' imprisonment the execution of two months of which was suspended on condition he commit no offence punishable by imprisonment for 12 months, and on condition that he comply with the terms of a community corrections order. There were special therapeutic conditions of that order including that he attend, participate and complete the EQUIPS domestic abuse program as directed.
5 Immediate steps were taken to secure his release on bail pending the filing of a notice to review in this Court. The orders were stayed and the applicant was bailed.
6 That motion came before me on 24 June 2021. I then raised with counsel an issue in respect of one of the firearms offences. In short, the drafting of the charge was not entirely comprehensible, and the facts as had been put to the magistrate did not support the charge as particularised. I adjourned the matter so that counsel could consider the course to be adopted.
7 On 28 June the notice to review was amended to allege an error in accepting a plea of guilty to the particular charge on the complaint and convicting the applicant of that count when there was no evidence to support it. The respondent conceded the new ground. Because a global penalty had been imposed, it meant setting aside the order. In the end, after discussions with counsel, I set all orders of sentence aside and remitted the matter to be heard by a different magistrate.
8 The complaint came before Magistrate Brown on 13 July 2021. The problematic charge was amended, and the applicant pleaded guilty to the amended complaint. As can be seen, in all of this nothing happened that altered the charge of assault, or effectively detracted from the applicant's initial plea of guilty to it. The motion came back to me purely as matter of coincidence. Neither party had any difficulty with me hearing it.
9 The prosecutor told the learned magistrate the following:
"The defendant and the complainant have resided together in a de facto relationship for approximately six years, and out of that relationship, they have two children. On Tuesday, the 16th of February of this year, the defendant attended his cousin's funeral. He attended Kendall's Hotel for drinks and then a friend's house for more drinks. He later arrived home at approximately 8 pm that night.
It's there that the defendant and complainant began arguing about him reinstalling the app Snapchat on his phone and after showing him a deleted email confirming that he had downloaded it. It's then the defendant grabbed the complainant by the hair at the top of her head and pulled her head forward causing her chin to touch her chest and leaned over to the victim. The children were observing this and began screaming.
The defendant shouted at the complainant calling her a 'piece of shit.' She tried to wrestle him off her to stand up, so she wrapped his arms around her legs causing her to stumble backwards so that her back was up against the lounge. The defendant then placed his hands around the complainant's throat, squeezing and pushing downwards against her. The complainant felt like she couldn't breathe and his hands were covering her throat and under her ears, her jaw and her collarbone.
She couldn't move her head. She was being pushed back into the lounge. She did not lose consciousness, but was terrified that he wouldn't let go. It's there that their son jumped on the defendant's back hitting him and saying, 'Mum's going to die,' and, at the time, their daughter was screaming. There, the complainant hit the defendant to the groin and that ... stopped him from choking her. She kept attempting to stand up, but the defendant would punch her to the outside of her knees preventing her from getting up. ...
... This occurred approximately six times. The defendant then picked up a set of keys and the complainant told him not to drive due to his intoxication. She asked him if that makes him feel tough to put his hands on a woman, and he said, 'Suck my dick and go and get fucked and I'll smash your fucking face in.'
He then walked inside and picked up another set of keys that she believed to be his gun safe keys. The complainant told the defendant that she was taking the kids and leaving, and he said, 'It doesn't matter 'cause you won't be seeing me again.' It's there that the defendant then entered the rear shed and secured it from the inside. The complainant believed that the defendant was going to shoot himself so she called police and her family members.
She then heard a loud bang and the sound of smashing glass, which she thought was a firearm discharge. It's there that the complainant's father and cousin attended and attempted to negotiate with the defendant out of the shed, however, he refused. Police attended and negotiated the defendant out of the shed where he was taken into custody, your Honour. Then a search of the shed was conducted and no ejected bullet casings were located by police." [The prosecutor then stated the facts in relation to the firearms offences.]
10 The prosecutor put before the magistrate a record of the applicant's prior convictions. There is a number of traffic matters, but of significance, a conviction in relation to a summary assault committed in January 2015, in respect of which, on 24 March 2015, the applicant was fined $1,300.
11 Magistrate Brown had the pre-sentence report dated 16 April 2021 that had been ordered by the first magistrate. The author reported that the applicant said he and the complainant wished to continue the relationship, and that the complainant was in the process of seeking a variation to the police family violence order to allow him to return home. The applicant spoke to the author of his inability to control his anger at times, which he would like to address. The applicant's father reported that his son was currently struggling as a result of the court matters and not being able to return home.
12 As to the offending, the applicant reported that he had been to the local hotel for drinks and had shared a "joint" with a family member. He said that he had no recollection of the events that followed other than the arrival of police. Community Corrections identified the applicant as requiring a medium level of intervention, the author believing the applicant would benefit from intervention such as counselling to address the factors that led to his offending. The applicant was assessed as unsuitable for community service notwithstanding an express desire to undertake it. This was because of the significant hours of his employment together with his remote location. He was assessed as being at medium risk of future family violence, and was assessed as eligible for referral to the EQUIPS domestic abuse program, but was unsuitable due to his employment and remote location.
13 The following is a summary of the matters put in mitigation:
14 Counsel noted that the applicant was assessed as unsuitable for community service due to his work commitments, but was eligible for referral to the EQUIPS domestic abuse program, and he would undertake that. Counsel told the magistrate that the applicant had moderated "to an extreme level" his use of alcohol, and with the referral to the psychologist, anger management counselling was being considered. It was accepted that the presence of the children was an aggravating factor; the applicant had spoken to them and apologised for his very bad behaviour.
15 Counsel submitted that a wholly suspended sentence would be appropriate as a deterrent, and it would enable him to rehabilitate himself with his family; alternatively it was submitted that home detention could be considered. Both options would allow him to maintain his employment.
16 It is appropriate to set out what the magistrate said. After outlining the facts, his Honour continued:
"I take into account that you have pleaded guilty to all of these matters, both the assault and the firearm offences.
The relationship being questioned between you and the complainant is one of about six years duration and obviously the two of you have lived in a de facto relationship for quite some time and, as I say, there are two young children from the relationship who were present during the episode. As I understand it, you have two older children from an earlier relationship as well.
The relationship with the complainant, I am told continues. A police family violence order was made either that night or the following morning, and as a result of that you now reside with your father although the relationship with the complainant, subsists and the two of you wish to cohabit again. As I understand it, [the complainant] has made application to vary the police family violence order in place to permit you to return home, a desire that you share with her.
You are 30 years of age. You are in steady, permanent employment. Indeed it seems that you work on 12 days out of 14 each fortnight at Scottsdale Pork and it seems and I accept and I sentence you on the basis that you are well respected and liked by your employer.
Your counsel has advised, of course, that you were extremely drunk at the time of this terrible episode and that you have little recall of events but despite that you pleaded guilty to these matters and have admitted what you did from an early juncture.
As I understand it, following your arrest you were kept in custody over night before being bailed. You pleaded guilty before my colleague Mr Stanton some time ago. He ordered a pre-sentence report and of course that report is now before me. As I say, you continue to currently live with your father as a result of the conditions of the police family violence order in question.
I note the pre-sentence report. I've read obviously all of it and note all its comments. I do note there amongst other things it is noted that you accept that you have some anger management issues which are something of a longer term issue.
I also note in mitigation that in that report you have accepted that I think to quote you 'that you scared the hell out of all of them' on the night in question. So there is, it seems, an element of insight into how serious this was. The report indicates because of your living circumstances, that is, where you live, the amount of work you do and the like that community service would create obvious practical difficulties.
Your counsel has also advised me that following this episode you have moderated your consumption of alcohol. Of course this occurred when you were drunk, and that you are seeking a referral to a psychologist.
Mr Tucker has conceded that the assault here particularly is very serious and he has submitted that it is the sort of matter which might attract a term of imprisonment or perhaps a home detention order, but certainly in terms of a term of imprisonment it is one which he submits to me I should wholly suspend.
I have been given some prior matters of yours. Those are generally relatively minor or driving type matters and are of really very little relevance. However, you were convicted of an assault in March 2015, that offence having occurred in January 2015. In that matter - for the matter you were fined a total of $1,300 and ordered to pay court costs. That was not, of course, a family violence offence. I am told that it was an assault which followed a motor vehicle accident. Nevertheless I simply observe that that must have been a matter of some seriousness bearing in mind that at the time you were about 24 years of age only and at that point you had virtually a complete lack of any prior convictions at all save really a couple of very minor matters which were, even by 2015, even then quite old. So that must have been a matter of some seriousness to warrant a fine of well over a $1,000. However, save for that matter, your prior matters are of really I think little relevance to the matter of sentence today.
I accept your counsel's submission and it is undoubtedly the case that this assault is a very serious offence. I simply make the following observations about it. It is, of course, a family violence offence. Family violence is very often, as here, a grave, social evil. Sadly family violence offences are extremely common. Frankly barely a day goes by in the court and I'm sure many others around the State where family violence offences usually committed by men on women are before courts.
Obviously family violence matters such as this adversely affect not just complainants, nearly always women I simply observe, but also they adversely affect and have the potential to adversely affect anybody who witnesses such behaviour, or those who feel the indirect consequences of that sort of behaviour.
Very often, as here, serious family violence offending means that the factors as to sentence particularly those being both general and personal deterrence must be given very significant weight in the sentencing process. Specifically cases involving choking or grabbing around the throat with force and restricting breathing require, in my view, significant weight to be given to those factors. I also observe that sadly offences of that sort to a greater or lesser degree of seriousness including, of course, the amount of force and the length of time that such choking or grabbing might occur, that that sort of offending is common, perhaps even increasingly so. That sort of offending is especially concerning because of the danger which is inherent in such behaviour, even if it occurs over a relatively brief period of time. Also, even if there is no particular physical harm or sequelae to that sort of behaviour, that type of behaviour is particularly demeaning and disempowering and, of course, frightening for any complainant or those who witness it, particularly children and young children. So, as I say, that sort of offending is also common - a common variety of family violence offending and perhaps increasingly so.
You are now, Mr Brown, a mature man. I accept that you have no history of family violence. Your employment record is a good one and on the basis of those factors and your desire to cut back your drinking and seek some help, it must be accepted that your prospects for reformation are real ones. As I say, I accept your counsel's submissions about the seriousness of this matter and I accept that this assault is one which is worthy of imprisonment. It was, as I say, family violence. It was serious family violence. A serious assault. The assault was a sustained one and no doubt utterly terrifying for the complainant and the children. Your intoxication explains it to an extent, of course, but it is not mitigatory. I am mindful in relation to these proceedings that you have pleaded guilty and did so unrepresented at an early stage and you are to be given credit for that.
I am also mindful of the fact that I have been advised that you were previously sentenced by one of my colleagues and that you have been through the process of making application for appeal bail getting before the Supreme Court - the appeal being successful and the matter being sent back to this court albeit in short order for me to resentence you. So that is a factor which, in my view, is relevant to the matter of sentence.
At the end of the day Mr Brown the real question for me, bearing in mind the fact that imprisonment in my view is appropriate for these matters, the real question here is whether I should suspend some or all of the sentence of imprisonment which I believe this matter - the assault I'm talking about - the assault deserves. I simply observe for completeness that I do not accept that a home detention order is appropriate for a matter such as this in your circumstances.
[His Honour dealt with the Firearms Act matters and continued:]
In relation to Count 1, in my view, taking into account all the matters that I've referred to, and the fact that, in my view, prison is appropriate, I have formed the view that I should suspend a very significant portion of the term of imprisonment I am going to impose in recognition of the mitigatory factors that I've referred to as being present here. However, in my view, there is also a need to demonstrate the community's abhorrence for this sort of behaviour; that is, to denounce it and also to give very significant weight as I have said, not just to denunciation but also to personal, and perhaps more importantly, general deterrence.
In those circumstances on Count 1 you are convicted on that. You are sentenced to three months imprisonment, two months of that period of imprisonment is suspended for a period of 18 months from your release from custody on condition that you commit no imprisonable offence over that period of 18 months.
The matters of Count 1 can be recorded as a family violence offence for the purposes of the record."
17 It is trite law that the applicant needs to demonstrate the sentence is unreasonable or plainly unjust. It does not matter that the sentence may be regarded by some as too harsh, it must be established that the order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion. Further, an appellate court may not substitute its own opinion for that of the sentencing officer: Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]- [34]; Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, 28 Tas R 1 at [8].
18 The notion of what amounts to an "unreasonable or plainly unjust" sentence has more recently been conveyed in terms of whether the sentence is outside the range of sentences that were available to the sentencing officer in the exercise of a sound discretionary judgment: R v Demaria [2008] VSCA 105 at [18]; TGW v Tasmania [2017] TASCCA 10, 26 Tas R 106 at [33]. Or, as Hayne J said in AB v The Queen [1999] HCA 46, 198 CLR 111 at [130], a manifestly excessive sentence is one that "lies outside the permissible range of dispositions."
19 The respondent relies on a number of aggravating factors. First, as to the assault itself, it concerns multiple acts that included grabbing the complainant by the hair and pulling her head downwards so that her chin touched her chest, choking her while pushing downwards, so that the complainant could not move her head and was terrified, and punching her to the outside of her knees to prevent her from getting up after she had hit him in the groin to put an end to the choking. As such, it was an assault that was persisted in.
20 It is also relevant to note that immediately afterwards, when the complainant confronted the applicant about what he had done, he verbally abused her in a highly demeaning way, and threatened further violence. He said "suck my dick and go and get fucked; I will smash your fucking face in". In my view, such abuse immediately following the attack is an aggravating factor, notwithstanding that it was prompted by a challenge from the complainant about his behaviour, and possibly more so because of that.
21 Next, the assault happened in front of the two very young children, with one child feeling the need to intervene. The applicant's conduct was such that both children began screaming, and the young boy felt compelled to jump on the applicant, saying "Mum is going to die". Section 13(a) of the Family Violence Act 2004 provides 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 or on the premises at the time of the offence.
22 Counsel for the applicant before the magistrate accepted that the presence and involvement of the children was "obviously" an aggravating factor. It caused great upset and no doubt ongoing anguish. Living arrangements were altered and the children's routine no doubt disrupted. As to this factor, I venture to repeat what I said in Allen v Kerr [2009] TASSC 10, 19 Tas R 132 at [13]:
"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."
23 Next, the magistrate rightly referred to the significance of assaults involving choking. The prevalence of assault by choking, and the inherent dangers in such conduct were discussed by Martin AJ (with whom Blow CJ and Pearce J agreed) in Hardwick v Tasmania [2020] TASCCA 2, 32 Tas R 62 at [49]- [53]. The conduct in that case was not dissimilar in some respects to that in this case. At [52], his Honour said that the dangers attached to choking have been well documented over many years, particularly in homicide cases.
24 At [53], his Honour concluded that in recent years, criminal courts in Australia have come to understand the choking of female victims by male offenders is a prevalent and dangerous feature of violence perpetrated in domestic circumstances. His Honour said a comment by the sentencing judge that the application of the pressure to the throat "can easily result in death or serious injury" was said to be appropriate, and that it was necessary to have regard to the dangers attached to that type of conduct.
25 The nature of family or domestic violence needs to be noted and steadfastly borne in mind. "Family violence must always be regarded as a serious matter": Bonde v Ellery [2016] TASSC 43 per Brett J at [27]. In Director of Public Prosecutions v Karklins [2018] TASCCA 6, 29 Tas R 373 at [92], Geason J (with whom Blow CJ and I agreed) said:
"Domestic violence is properly regarded as a most serious form of offending, frequently hidden from view, and thus difficult to detect. The court has a symbolic function. Censure for domestic violence should be communicated through the sentences which are imposed. Community attitudes to it are changing: R v Kilic [(2016) [2016] HCA 48; 259 CLR 256]. Strong denunciation is called for, and general deterrence is a primary consideration. For crimes which are difficult to detect, the consequences of discovery must be severe enough to counter the perception that their commission is a risk worth taking."
26 The applicant argues that, while not resiling from the fact that the offending was of a serious nature, the magistrate put too great an emphasis on factors of general deterrence and denunciation, to the exclusion of mitigatory factors. The applicant says the matter could properly have been resolved by options that did not involve immediate imprisonment. It was accepted that the applicant was not a young offender, but it was pointed out he had not been previously sentenced to imprisonment. It was also pointed out that he had insight into his actions, realised the unacceptability of family violence, and acknowledged the need to address his issues of alcohol consumption and anger management.
27 Counsel acknowledged that the applicant was intoxicated, but submitted it shows a lack of pre-meditation and that in light of his history, the offence was "out of character". It seems that by the last point, counsel was not suggesting intoxication as a mitigatory factor. It will rarely be so; it may reduce culpability if the offender was not aware that intoxication would cause him or her to behave in a criminally aberrant way: Vergados v The Queen [2011] VSCA 438 at [47], Morrison v The Queen [2012] VSCA 222 at [20]. As an explanation, it is relevant to remorse, to rehabilitation and thus to specific deterrence. I should add - although there was no suggestion of it in this case - that intoxication can also be an aggravating factor in cases of violence to the person where it makes the offence more frightening for the victim: R v Groom [1998] VSCA 146, [1999] 2 VR 159 at [24].
28 Further, counsel highlighted the fact that the applicant had pleaded guilty at the first available opportunity while unrepresented, and had pleaded guilty when the matter was first relisted. That conduct, it was put, could be taken as evidence of remorse. While not suggesting that the applicant's intoxication was mitigating, counsel put that the offending was not premeditated and suggested that it was out of character. While having no recollection of the events, he chose not dispute the complainant's version of events.
29 It was asserted that as the applicant was the sole provider for the family they would suffer hardship, but there was no direct evidence of this and in the absence of a finding of exceptional circumstances the factor is generally given no weight: RDA v Tasmania [2021] TASCCA 4 at [4], [116]-[117]. As to the consequences for his employment, there was no direct evidence before the magistrate about the issue. Counsel argued that it would not be unreasonable to assume that a period of imprisonment would result in the applicant losing his job. But it seems to me to be speculation as to whether the applicant's employment would be permanently lost to him if imprisoned for one month. In any event, it is one factor to be considered with all matters, including competing considerations.
30 Counsel for the applicant also relied on the fact that the applicant's partner had been supportive throughout, in fact being in court with him on previous occasions As noted above, the pre-sentence report made reference to the fact that the two wished to continue their relationship. The report also noted that the complainant was then in the process of applying for a variation to the police family violence in order to allow the couple to live together, but I was told during the hearing of the motion that nothing had been progressed in that regard.
31 As to the attitude of the complainant, to the extent it was suggested it was one of forgiveness, it carries little weight: Director of Public Prosecutions v Chatters [2011] TASCCA 8, 21 Tas R 26 at [60], Menichelli v Tasmania [2009] TASSC 111, 19 Tas R 299 at [16]. In both cases reference was made to R v Palu [2002] NSWCCA 381, 134 A Crim R 174 in which the New South Wales Court of Appeal said the attitude of the victim cannot be allowed to interfere with the proper exercise of the sentencing discretion. The Court went on to say that sentencing proceedings are not a private matter between the victim and the offender, and that a serious crime as a wrong committed against the community at large and the community itself is entitled to retribution. See also R v Burton [2008] NSWCCA 128 at [102]-[106].
32 That matter of established principle has particular application in cases of family violence. I would respectfully agree with the following comments of Pearce J (with whom Blow CJ and Tennent J agreed) in Director of Public Prosecutions (Acting) v JCN [2015] TASFC 13 at [20]:
"The response to family violence is often complex. Family violence offences are not uncommonly accompanied by support of a perpetrator by a victim and reluctance on the part of the victim to assist a criminal prosecution. That is so for a range of possible factors including fear and a wish to preserve relationships, even dysfunctional and violent ones, for the sake of loyalty, affection, companionship, economic and domestic support. Sometimes those motivations are misguided but persist nevertheless. As a result, victims sometimes act in a way that seems to an objective observer to be incongruence and difficult to understand."
33 Plainly enough, as accepted by the applicant, this was a serious incident of family violence. The assault was made up of physical acts of a domineering, controlling and risky nature. Given the nature and circumstances of the assault, the magistrate was entitled, if not obliged, to pay particular regard to the factors of general deterrence and denunciation. The magistrate was also entitled to have regard to the fact of the prior conviction for assault in 2015. His Honour noted that it was an assault following a motor vehicle accident, the inference reasonably arising that this also involved an anger management issue.
34 It is true that there were mitigating factors such as the early acceptance of responsibility, insight into the offending and remorse, and steps taken towards rehabilitation by the significant moderation of alcohol consumption. However, as can be seen from the magistrate's comments, the relevant personal circumstances and mitigating factors were taken into account. Given the nature of the offending, and the need for emphasis on general deterrence and denunciation, it cannot be said that the outcome demonstrates that these matters were not given sufficient weight.
35 In my view, all things considered, the sentence is not shown to be manifestly excessive.
Brown
Jones [2021] TASSC 58