CRIMINAL LAW - General matters - where injuries sustained are incongruent with offence to which the offender has pleaded guilty - where injuries may amount to actual bodily harm but offender pleaded guilty to common assault

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), s 47

Magistrates Court Act 1930 (ACT), s 216, Pt 3.10, Div 3.10.2

Anderson v The Queen [1993] HCA 59; (1993) 177 CLR 520

Ex parte Bowen [1917] NSWStRp 3; (1917) 34 WN(NSW) 41

Ex parte Normanby; Re Britliff (1954) 54 SR(NSW) 299

Ex parte Porter (1902) 19 WN(NSW) 37

Licciardello v McPherson [2012] ACTSC 31

Ludeman v The Queen (2010) 208 A Crim R 298

Nikro v O'Sullivan [2013] ACTSC 129

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

R v Birks (1990) 48 A Crim R 385

R v Bloomfield (1998) 44 NSWLR 734

R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398

R v Edwards [2012] QCA 117

R v Freestone [2009] QCA 290

R v Lambeth Metropolitan Stipendiary Magistrate; Ex parte McComb [1983] 1 QB 551

R v Malcolm [1908] NSWStRp 4; (1908) 8 SR(NSW) 6

R v Munro (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 14 May 2013)

Saga v Reid [2010] ACTSC 59

Shoard v Van Der Zanden [2013] WASC 163

Smith v Tasmania [2012] TASCCA 3

Watson v Metropolitan Reception Centre (1971) 1 NSWLR 67

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The conviction of Mr Grimshaw of common assault on 2 June 2012 be confirmed.

4. Mr Grimshaw be sentenced as ten months imprisonment to commence on 28 May 2013 and that sentence be suspended for two years from 27 August 2013.

5. Mr Grimshaw be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act, for a period of two years with the following conditions:

(a) that Mr Grimshaw be subject to the supervision of the Director-General or her delegate for two years or such lesser period as the person delegated to supervise him considers appropriate, and obey all reasonable directions of the person delegated to supervise him.

(b) that Mr Grimshaw comply with the conditions of any personal protection order for which [redacted for legal reasons] or her children are aggrieved persons under the Domestic Violence Protection Orders Act (2008).

(c) that Mr Grimshaw attend such assessments, rehabilitation programs, or counselling in relation to the use of alcohol or illicit, as to anger management, domestic violence prevention, or parenting skills, as the person delegated to supervise him may direct.

(d) that Mr Grimshaw provide a sample of breath, saliva or urine for the purpose of alcohol or other drug testing, reasonably required to do so by the person delegated to supervise him.

1. On 2 June 2012, the appellant, Garret John Grimshaw, was involved in an altercation with a woman with whom he had been in an intimate relationship for about seven years, and with whom he had three young children. The altercation took place outside a late night convenience store in Civic and Mr Grimshaw struck the woman, the complainant, in the face three times with his closed fist. The complainant fell to the ground hitting her head. She reported the assault the next morning to police at City Police Station. Mr Grimshaw was ultimately arrested and charged with an offence of assault occasioning actual bodily harm. Proceedings were adjourned a number of times.

2. On 29 April 2013, Mr Grimshaw appeared before the Magistrates Court and the prosecution proffered a fresh charge of common assault, to which Mr Grimshaw then pleaded guilty. The charge proceeded to sentence on 29 May 2013 and the charge of assault occasioning actual bodily harm was dismissed when the prosecution offered no evidence. After hearing submissions from the representatives of Mr Grimshaw and the prosecutor, the learned Magistrate sentenced Mr Grimshaw to ten months imprisonment, three months of which were to be served by full-time custody, three months by periodic detention, and the balance suspended and a two year good behaviour order was made.

3. Mr Grimshaw has appealed against the order. The grounds of the appeal, notice of which were clearly prepared by Mr Grimshaw himself, are a little confusing. The respondent is the informant, that is, the police officer assigned to the case. The respondent, though represented by the Director of Public Prosecutions, is not the Crown (cf Nikro v O'Sullivan [2013] ACTSC 129 at [2]).

4. The grounds in the Notice of Appeal are stated as follows:

I wish to change my plea to what I feel was an unjust decision by the prosecution not to adhere to certain conditions of a plea bargain. I feel I was not represented to a standard I expected, and I feel the penalty is too severe.

5. It appears that this is an appeal against conviction and sentence. The appeal against conviction is to be dealt with by withdrawal of the plea. As I said in Licciardello v McPherson [2012] ACTSC 31 at [6]- [8], "[a] person who pleads guilty in the Magistrates Court may appeal against conviction."

6. At the hearing of the appeal, however, Mr Grimshaw abandoned the appeal against conviction and only pursued the appeal against sentence. He did not continue with the ground which suggested incompetence of counsel (see R v Birks (1990) 48 A Crim R 385 at 391) but only the ground of severity of the penalty, that the penalty was manifestly excessive.

7. This Court has power under Pt 3.10 of the Magistrates Court Act 1930 (ACT), to hear and determine appeals from the Magistrates Court. Division 3.10.2 regulates appeals in criminal matters such as this appeal.

8. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles surrounding such appeals. I apply them in this case.

9. The sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate, and that I am not merely tinkering.

10. Specific errors may be errors of law, errors of fact, taking into account irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find a specific error but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal, and re-impose the same sentence. Even if I cannot identify a specific error, I may uphold the appeal, and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust, or plainly wrong.

11. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.

12. It appears that, after his arrest, Mr Grimshaw was granted bail and the proceedings were adjourned from time to time. I do not have details of the adjournments or why they were sought or granted until 29 April 2013, which seems a long time after the arrest. On that day, however, it became clear that there had been discussions between the prosecution and Mr Grimshaw's then legal advisors and the fresh charge of common assault was proffered. Mr Grimshaw pleaded guilty to it, as I have referred to above (at [2]).

13. There was some argument on the appeal about whether the statement of facts was in evidence at the sentencing hearing. On the material I have before me I am satisfied that on that day, namely 29 April 2013, a statement of facts was tendered. It had been partly redacted and some manuscript additions made. I am satisfied that this meant that it was an agreed statement of facts.

14. Though tendered, it was not, as it would have been desirable to have been, marked as an exhibit. It was the evidence on which the court was being asked to proceed and therefore was important to be identified as having been admitted.

15. The proceedings were adjourned to 5 May 2013. The annotation by the learned Magistrate on that occasion showed that Mr Grimshaw was to be sentenced on the charge of assault, to which he had already pleaded guilty, and that the charge of assault occasioning actual bodily harm was to be discontinued. It is not clear why, when this was the public and announced position, and when Mr Grimshaw had already entered a plea of guilty to common assault which had been accepted by the court, the other charge was not then dismissed. It seems to me it should have been resolved in this way on that occasion.

16. In fact, it was not resolved until after Mr Grimshaw had been sentenced which led to the incorrect, but perhaps not entirely unexpected, view that Mr Grimshaw came to, that he had been sentenced as though that offence was still available to the Magistrate. Technically that may have been so. I have not had the opportunity to consider that matter carefully.

17. In any event, the High Court has said in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 that he could not be punished twice for the same culpability, but nevertheless he felt that the continuation of that offence as being available to the Court, was inappropriate. I agree. It is desirable that offences that are not to proceed are dismissed once a plea of guilty has been entered to any other charge that is to be proffered and accepted in its place.

18. The proceedings came on for sentence on 29 May 2013, very nearly a year after the offence. A Pre-Sentence Report, which had earlier been ordered on 29 April 2013, was available.

Desirability of marking exhibits in the Magistrates Court

19. Mr Grimshaw's counsel tendered some material from various agencies.

20. It was not mentioned in the Magistrates Court that the documents were formally admitted into evidence and they were not marked as exhibits. That may be why they were not, in fact, retained on the court file. When the appeal was being prepared the documents were not included in the papers provided by the Magistrates Court. That is of some concern.

21. There is old authority, Ex parte Porter (1902) 19 WN(NSW) 37 at 38, that documents not marked as exhibits cannot be regarded as having been admitted into evidence. That is no longer the law. See, for example, R v Malcolm [1908] NSWStRp 4; (1908) 8 SR(NSW) 6, though Cohen J was less than enthusiastic about a general rule that effect.

22. In Ex parte Bowen [1917] NSWStRp 3; (1917) 34 WN(NSW) 41, Gordon J said, "[t]he failure to mark as an exhibit a document which admissible as evidence and which is properly before the Court and used in the trial, does not prevent the document being treated as evidence." Maxwell J, with whom Herron and Maguire JJ agreed, said in Ex parte Normanby; Re Britliff (1954) 54 SR(NSW) 299 at 304, that, for evidentiary material other than oral testimony, there is "the necessity of tendering or otherwise making known to the court [a] document or its contents." See also Ex parte Madsen; Re Hawes (1960) SR(NSW) 550 at 553-4. I do note, however, that in Watson v Metropolitan Reception Centre (1971) 1 NSWLR 67 at 71, Isaacs J referred to the desirability of ensuring the admission and marking of documents tendered and admitted into evidence.

23. I referred in Grooms v Toohey (2012) 7 ACTLR 1 at 6; [24] to the highly desirable practice of marking documents received in evidence so that an appeal court can be clear as to what has been before a Magistrate and what is not. In this case, documents clearly before the Magistrate were not kept on file for reasons not disclosed. It is the responsibility of the court to preserve and retain exhibits: R v Lambeth Metropolitan Stipendiary Magistrate; Ex parte McComb [1983] 1 QB 551. This was not done in this case. Whether the fact that the documents were not marked as exhibits caused this I cannot tell, but it may be so. Mr Grimshaw's criminal record, which consisted of appearances in courts in Queensland only, was also tendered, though it, too, was not marked as an exhibit.

24. The facts of the offence are as follows. The complainant and two female friends were in a Civic nightclub at about 12:30 am on Saturday, 2 June 2012, when she came across Mr Grimshaw. He approached the complainant and she asked what he was doing there, to which he answered "Where are my kids? I wanna to see my kids." As a result of the intervention of a member of the security staff of the nightclub, Mr Grimshaw was asked to leave the premises, which he did. He waited for the complainant outside the nightclub, however.

25. At about 4:00 am, the complainant and her friends left the nightclub and went to a convenience store to purchase some cigarettes. Mr Grimshaw followed them and approached the complainant outside the store. They argued and Mr Grimshaw hit the complainant in the face three times with his closed fist. She fell to the ground and hit her head on the pavement. Mr Grimshaw stood over her as if he was going to kick her, but one of her friends stopped him from doing so and called out to the store staff member to call the police.

26. The complainant's friend helped the complainant into the store, but Mr Grimshaw came up to the doorway and the complainant threw a glass soft drink bottle at him. It missed, but she picked up another glass bottle and broke it over his head. As a result Mr Grimshaw was cut requiring four stitches to his head. The complainant left before police arrived. She suffered a large cut to the inside of her lower right lip and bruising to her face. She reported the matter to police later and police tried to locate Mr Grimshaw without success. Two days later, however, he presented himself to police, and was arrested and charged with assault occasioning actual bodily harm.

27. The complainant had previously applied for two protection orders against Mr Grimshaw which had been issued by Queensland courts; the most recent one expired in March 2012.

28. Mr Grimshaw said that the complainant entered into a relationship with his brother, and the two moved to Canberra together. The complainant said that she had moved to Canberra to get away from Mr Grimshaw and his attentions. The Pre-Sentence Report records that Mr Grimshaw had been drinking with friends on the night in question, and was intoxicated when he confronted the complainant.

29. Mr Grimshaw was born in Charleville, Queensland, 31 years ago. He identifies as Aboriginal, and although now having a good relationship with his parents, he knew little of them when he was growing up. His mother was an alcoholic and he and his eight siblings were taken into State care. He was lucky enough to be cared for in three foster homes by families with whom he remains close, and whose foster parents have been positive influences in his life. As a result, he had a good upbringing and gained a good education.

30. He has recently gained a forklift driver's licence and is undertaking a certificate in warehousing. He enjoyed school and boarded at Ipswich Grammar School where he secured good grades, was active in sport and socialised with his peers. He left school part way through Year 12 to take up employment. Since then, he has been consistently employed in the construction, oil rig, and farming industries. His most recent employer described him as "a good reliable worker." He ceased work in January 2013 when he suffered a workplace injury in Canberra, where he fell two metres and broke the heel of his foot. He is still recovering from that. He has been on crutches and still requires physiotherapy.

31. At age 20, he and the complainant commenced a relationship. As noted above (at [1]), the relationship lasted for seven years and they had three children. Mr Grimshaw says it was a "love/hate" relationship, marred by alcohol and other drug use and domestic violence.

32. Mr Grimshaw started drinking alcohol with his peers at boarding school when he was seventeen. This led him to a negative peer group with whom he would often binge drink. He also started using speed, cocaine, and cannabis. It is not clear what level his drug and alcohol use reached, but it led to the breakup of his relationship in 2010. Since then he has not seen his children.

33. In about May 2012, he moved to Canberra to be closer to his children, and he has commenced proceedings in the Family Court of Australia for access to them. It appears that there has been a recommendation in the comprehensive family assessment report for the Family Court that he have contact with his children. An Alcohol and Tobacco and Other Drugs worker in Queensland, who had known Mr Grimshaw for twenty years, described him as a "hard worker" who can "achieve what he puts his mind to". He contacted the worker in February 2013 to seek assistance with his alcohol and drug issues as a result of which he is now receiving counselling. The worker expressed confidence that Mr Grimshaw would be able to sustain his efforts and change and be a responsible father.

34. He also had made contact with the Aboriginal Justice Centre; the Men's Group co-ordinator described him as "a quiet Aboriginal man." He has participated in the Centre's Men's Group. His work injury has not stopped him from attending courses and trying to find work. The Co-ordinator from the Aboriginal Justice Centre described Mr Grimshaw as "a fine young man" for whom "violence or other disrespect is certainly out of character." That is perhaps not entirely true from the record of his offending, but I accept that it is an assessment that is made in the circumstances.

35. Mr Grimshaw enrolled in the Canberra Men's Centre men's anger program in February 2013. He has attended five counselling sessions, though four of them were between his appearance in court for the offence for which he is now being sentenced.

36. The counsellor for the Canberra Men's Centre reported that he had expressed regret and remorse for his actions, and hoped that the counsellor and men's anger program will help him to avoid offending again. He has expressed a wish to fully appreciate the nature of what constitutes domestic violence and avoid it. The Pre-Sentence Report recorded that he was sorry for what happened, made no excuses and was deeply ashamed. A series of pathology reports showed, from urinalysis in January 2013, no illicit drugs being detected.

37. Mr Grimshaw has a criminal history of some significance. It discloses 33 offences dealt with in 14 court appearances. The offences, however, all occurred between 2002 and 2009, the most recent offences being breaches of bail undertakings in September and October 2009, apparently in respect of offences committed in 2005 and 2006. Most of the offences are street offences and breaches of bail or other court orders. There are four offences of entering premises with intent to commit an indictable offence, four of dishonesty and two of damaging property. There are two offences of assaulting police and one offence of assault occasioning actual bodily harm, the latter committed in 2005. The assault police offences were committed in 2002.

38. This analysis shows that he cannot be classed as having a bad record for violence, though, of course, any violence is unacceptable. It certainly does not justify the comment in the Pre-Sentence Report that his "history of violent offending ... is of great concern." He was assessed by the author of the Pre-Sentence Report as lacking some insight into his actions and the effect of them on the complainant.

39. A lengthy Victim Impact Statement was tendered. It disclosed the traumatic effect of the offence on the complainant and her children. Some of the effects she described were the result of the discovery that Mr Grimshaw had come to Canberra, which is not a consequence of the offence itself and not strictly relevant in a Victim Impact Statement. The statement showed that the offence led to serious interference with the complainant's work. It appears that Mr Grimshaw also made some attempts to contact the complainant and this caused further distress. The complainant's distress following the offence also led to the breakdown of her then current relationship. The complainant has felt unsafe at home and this led her to change her accommodation.

40. While the matters are of concern, there is, clearly included, fear and distress arising from Mr Grimshaw's presence in Canberra, rather than related to the offence itself, though it would be difficult to analyse the exact contributions. No doubt, the offence enlivened her memories of the domestic violence of the relationship.

41. There was, unfortunately, a good deal of irrelevant and inadmissible material in the Victim Impact Statement. Allegations of further serious offending cannot come within the definition of "harm suffered by the victim [as a result of, or in the course of, the commission] of the offence": s 47 of the Crimes (Sentencing) Act 2005 (ACT). While defence counsel may be wary of exercising their rights to cross-examine a victim on a Victim Impact Statement, discussions with prosecutors should result in an appropriate response from responsible prosecutors about inadmissible material and such statements. Without that proper approach, it is likely that such statements will lose their value and that the courts will have to intervene to ensure that the legislation is respected to ensure inadmissible, and often inflammatory, material is not included in such statements.

42. The complainant has, however, ongoing discomfort from the injuries that she received.

43. After referring to Mr Grimshaw's subjective circumstances and the circumstances of the relationship, which I have summarised above, Mr Grimshaw's counsel in the Magistrates Court referred to a number of relevant matters. She noted that the Victim Impact Statement was written in the context of contested Family Court proceedings for access. That may have accounted for some of the content of the report.

44. She also referred to a curious comment Mr Grimshaw made to the author of the Pre-Sentence Report that his actions "don't require much of a sentence." She said,

I've had the opportunity to discuss that with him, your Honour, and, your Honour, there are times when a Pre-Sentence Report is written and things are taken out of context. That was in the context of him discussing all of the programs that he'd undertaken and that he was wanting to undertake and had made contact with people. So when he was saying he didn't require much of a sentence, it wasn't from the point of view that he didn't deserve to be sentenced appropriately for this matter.

45. She also referred to the comment recorded that he said he had "ruined" the complainant's life, inconsistent with the Pre-Sentence Report author's assessment that he showed no insight. That clearly was an insight. She submitted that he was motivated to see his children. She submitted that a suspended sentence or periodic detention was appropriate.

46. The learned Magistrate then asked about a statement in the Victim Impact Statement that said that the complainant's best friend was contacted the day after the assault on her Facebook page and stated that Mr Grimshaw knew where the complainant lived. The precise terms of the message were not in evidence so the context is, at best, ambiguous. It is not at all clear what the relevance to this matter was on sentencing. If it was a threat, then it could be relevant, but the learned Magistrate could not be satisfied of that to the requisite standard, namely beyond reasonable doubt.

47. Given the complainant's partner was Mr Grimshaw's brother and that he was involved in Family Court proceedings, there are a number of explanations as to how he may have known the address. Indeed, the explanation given by Mr Grimshaw's counsel was one that was entirely anodyne. The explanation was not threatening to any extent.

48. The prosecution submitted, quite reasonably, that the three punches made the offence serious. It was less clear that the fact that Mr Grimshaw had been - nearly three and a half hours earlier - asked to leave the nightclub aggravated the offence, as was suggested. The prosecutor also referred, quite correctly, to the fact that it was aggravated by being a domestic violence type offence, with violence by a man against a woman with whom he had been in an intimate relationship and arising out of that relationship.

49. The prosecution referred to the aggravating factor that the assault "took place in a public place." I have some difficulty with that factor as an aggravating one. It implies that an assault in private is less serious. I am not sure that this follows.

50. Most family violence occurs in private yet is regarded as very serious. Indeed, privacy can emphasise the vulnerability and helplessness of the victim.

51. However that may be, intermediate Courts of Appeal have regularly referred to the fact that violent offences committed in public are more serious. See, for example, R v Freestone [2009] QCA 290 at [30], Ludeman v The Queen (2010) 208 A Crim R 298 at 321; [132], Smith v Tasmania [2012] TASCCA 3 at [32], R v Edwards [2012] QCA 117 at [23], Shoard v Van Der Zanden [2013] WASC 163 at [41]. This is the not the place to consider the rationale for such an approach; that will have to wait for another day. It is enough that the reliance by the learned Magistrate on the fact that the assault occurred in public as an aggravating factor was not an error.

52. The prosecution was asked about a domestic violence order currently in place. After some investigation, it appears that an order was made on 26 September 2012 for 12 months. It is not clear why it took three months after the assault for it to be made. There may have been an interim order made earlier.

53. The domestic violence order had not been breached since it was made some eight months earlier.

54. The prosecution submitted that no disposition other than imprisonment would be appropriate in the circumstances. She repeated the rather inflated assessment of Mr Grimshaw's criminal record in the Pre-Sentence Report.

55. Curiously, the prosecutor then submitted that because Mr Grimshaw had not been taking any illicit drugs since the breakdown of the relationship in 2010, rehabilitation need not feature in the sentence. That cannot be accepted, as it is a very narrow view of rehabilitation. In the first place, alcohol, rather than illicit drugs, is a far more common facilitator of domestic violence and Mr Grimshaw was clearly still using alcohol. Indeed, on the evening in question, he was using alcohol to the extent of intoxication. Secondly, he clearly had an anger problem and had enrolled in the Canberra Men's Centre men's anger program which is a very relevant and appropriate rehabilitation.

56. The prosecutor submitted that the offence was toward the higher end of objective seriousness. Mr Grimshaw's counsel put it at mid-range.

57. Although the injuries sustained by the complainant would at least amount, arguably, to actual bodily harm, as described in the Victim Impact Statement, Mr Grimshaw ultimately pleaded guilty to the offence only of common assault. There is always a problem for sentencers in such circumstances where the injuries are more serious than the offence charged. How the sentencer is to deal with that is always a problem. In R v Munro (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 14 May 2013), I said:

There is no doubt that the level of injury and damage done in an assault is a very relevant factor in sentencing for such offences: see R v Bloomfield (1998) 44 NSWLR 734 at 737. The difficulty here is that the injuries are clearly more severe than are to be described as 'actually bodily harm' and clearly appear to me to amount to grievous bodily harm. To assault occasioning grievous bodily harm is a different offence and the High Court has made it clear in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, that a sentencing court cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

In Overall (1993) 71 A Crim R 170, Mahoney JA had to deal with a situation very similar to that confronting me. His Honour pointed out (at 174) that in that case, where the charge on which the offender had been acquitted was a somewhat different one of maliciously inflicting grievous bodily harm, that the sentencer must '[put] aside the fact that what the accused has done was done with malice'. That may be readily accepted. His Honour, however, went on to say (at 174-5):

But there is, in my respectful opinion, a more difficult process required if the harm that had been caused by the assault is plainly and obviously grievous, but the judge is required to assess a sentence appropriate only to the actual harm.

His Honour referred to what Brennan J said in R v De Simoni at 407, that "[u]nless statute clearly compels the adoption of artificiality in sentencing it should be avoided," and said that '[i]t is, to adapt his Honour's description, artificial to require that the serious injury to [the victim] be ignored, to the extent that what occurred is to be reduced merely to actual bodily harm.'

However, his Honour then considered that in that case, the learned sentencing Judge had taken into account "both malice and grievous bodily harm ... factors which would warrant conviction for the higher offence". This was inconsistent with the decision in R v De Simoni.

On the other hand, in R v Hampton [1999] NSWCCA 341, Hulme J, with whom Stein JA and Greg James J agreed, said (at [11]-[12]):

Her Honour did say that the principles in R v De Simoni (1980-81) 174 CLR [383] would be offended if she were to have regard to the extent of the injuries in this case. Those to [the victim] included stab wounds as her Honour mentioned. Those wounds led to [the victim's] hospitalisation and substantial exploratory surgery. In my view, while her Honour was not entitled to have regard to a totality of facts which constituted an offence under s 35 of the Act, she was entitled to have regard to the extent of the injuries suffered by the victim in this case. In R v Overall, to which I have referred, and also to R v Bough [1999] NSWCCA 131, the Court had regard to the brain damage which was suffered by the victims in consequence of the assaults. The fact that the applicant is charged with assault occasioning actual bodily harm does not, in my view, preclude a court having regard to the fact that the bodily harm may be grievous, so long, of course, as it does not also have regard to the question of malice. To take both into account would be to offend the principle for which R v De Simoni stands as the principle authority.

I am not convinced that in Overall, the Court there did take into account the extent of the harm that was actually considered. Later, however, in McIntyre v The Queen [2009] NSWCCA 305; (2009) 198 A Crim R 549, Johnson J, with whom Macfarlan JA and Blanch J agreed, made it clear that on a charge of assault upon a police officer in the execution of his duty, it was impermissible to take into account that the assault resulted in actual bodily harm in sentencing, though it may be taken into account in determining whether the offence had been committed. It was, his Honour held (at 559; [50]), an error to have regard to the injury in that case.

The authorities are unhelpful in this area, and a sentencer must do the best that can be done in the circumstances. I shall accept that the injuries amount to actual bodily harm at the upper end of seriousness for such harm, but not further consider them to be grievous bodily harm for the purpose of this sentence.

58. That is, then, how the sentencer should, and it appears how his Honour did, take the matter into account.

59. The learned Magistrate outlined the facts as I have outlined them above. His Honour noted a number of aggravating factors. He said:

It is an aggravating factor that the assault took place in the context of a former domestic relationship. It's an aggravating factor that the assault was by a man on a woman. It's an aggravating factor that the assault took place by way of punches to the face. It's an aggravating factor that the assault took place in a public place. It's an aggravating factor that the assault took place against the background of the victim having previously had protection orders against you. I assess the seriousness of your offending in the upper middle range of offences of this type.

60. No attack was made on those findings and, with respect, I agree with them.

61. He also referred to the injuries suffered by both the complainant and Mr Grimshaw. He referred to Mr Grimshaw's criminal history, but noted that since 2006, he had not been before the court for offences of violence. His Honour described Mr Grimshaw's subjective circumstances. His Honour quoted the assessment of the author of the Pre-Sentence Report.

62. His Honour also referred to the material tendered on Mr Grimshaw's behalf and said "that material generally gives some basis for optimism about your prospects of rehabilitation."

63. His Honour then made the curious remark that "[w]hat is a cause for concern is what you might do to give effect to your desire to see more of your children." The fact was that Mr Grimshaw had properly commenced proceedings in the Family Court and taken explicit steps to show that he was fit person by undergoing urinalysis. It is entirely unclear to me on what factual basis the Magistrate made those comments which appears to me to be entirely speculative.

64. I note that Mr Grimshaw was intoxicated at the time that the offence occurred, which is an explanation for them, and unlikely necessarily to be repeated if appropriate rehabilitation is taken into account. The complainant and Mr Grimshaw have been separated for two years without apparent incident and there were no offences of violence on his record for the past six years. Further, there was no suggestion that he had breached any of the domestic violence orders that had been in place.

65. His Honour then referred to the Victim Impact Statement, and especially the significant impact of the offence on the children, as well as on the complainant. He took into account the early plea and considered that no other sentence than a sentence of imprisonment was appropriate.

66. He sentenced Mr Grimshaw to ten months imprisonment, reduced by three months for a plea of guilty, that is, a discount of 23%.

67. He directed that, after three months, backdated by one day to take into account pre-sentence custody, a period of three months periodic detention be set, and that, thereafter, the sentence be suspended with a good behaviour order for two years. Conditions to the good behaviour order were that Mr Grimshaw:

• be on probation subject to supervision for twenty-four months;

• attend such educational, vocational, psychological, psychiatric, or other assessments programs or counselling he is directed to attend;

• provide samples of breath, hair, blood, saliva, or urine for alcohol or drug testing if required; and

• attend any medical assessments or treatments he is directed to attend.

68. The only ground of appeal really was that the sentence was manifestly excessive, though described as "too severe." Mr H Ford who appeared for Mr Grimshaw in the appeal referred to what I had said in Saga v Reid [2010] ACTSC 59 at [44] about the principles relating to appeals from sentences. I have since modified one of those principles, and the principles are set out as I have mentioned above (at [8]) in Cooper v Corvisy (No 2).

69. Mr Ford was under the impression that specific error had to be found. That is one basis for an appeal but it is not necessary where the ground is manifest excess for, as I said in Cooper v Corvisy (No 2) at 154; [8]:

The error may not be a specific error that can be identified but that the sentence is manifestly excessive, unreasonable or manifestly inadequate. In such a case, error may be inferred, giving that the sentence is excessive, unreasonable, inadequate, unjust or wrong. From that inference, of course, there must be able to be drawn the conclusion that a different sentence is appropriate.

70. The Court of Appeal has set out in R v TW (2011) 6 ACTLR 18 at 27-8; [59]-[61], the approach to the ground that a sentence is manifestly excessive or inadequate. I will follow that approach. The offence was objectively serious. The characteristics described as aggravating factors by the learned Magistrate were present, relevant, and, indeed, aggravating.

71. The sentence needed to reflect that, nevertheless, there were some relevant subjective circumstances that also needed to be accounted for in the sentence. These included a period of three years where Mr Grimshaw had been conviction free and that it had been it seven years since he had been last dealt with for an offence of violence.

72. He had also voluntarily presented himself to the police station and voluntarily sought rehabilitative help, though his actual participation in such programs was very proximate to the sentencing. He appeared to be free of illicit drugs, though his use of alcohol appeared still problematic. He was taking his desire to have contact with his children to the proper channels, namely, through the Family Court.

73. He also pleaded guilty at the earliest opportunity; that entitles him to a significant discount.

74. I have had access to the statistics provided by the Judicial Commission of New South Wales for the offence of common assault. They show that of 28,669 cases, 6% were sentenced to imprisonment and, of these, 19% received a sentence of imprisonment of ten months or more. Nine offenders were sentenced to more than twelve months imprisonment and none to more than eighteen months imprisonment. Even on a plea of guilty, only 17% of those sentenced to imprisonment were sentenced to more than nine months imprisonment. I am aware that these are statistics from another jurisdiction, though one with which we share a common heritage in criminal law. I am also aware of the caution expressed by Spigelman CJ, with whom Sully and Ireland JJ agreed, in R v Bloomfield (1998) 44 NSWLR 734 at 739 about the use of such statistics.

75. It appears to me, however, that, in the light of the description by the learned Magistrate of the objective seriousness of the offence which was in the "upper-middle range", the penalty was somewhat higher than that, having regard to those statistics. It is, however, difficult to see whether those statistics show combination sentences, and whether, for example, partially suspended sentences are shown. There is, of course, no provision for periodic detention in New South Wales.

76. Nevertheless, a sentence, even suspended, is a sentence of imprisonment, and a decision must be made as to the fact of imprisonment and the length of the period of imprisonment in those circumstances. There is no doubt that the period of periodic detention and the suspension of 40% of the sentence is a significant amelioration of the ten month period of full time detention that was prima facie imposed, but the whole period is truly a sentence of imprisonment and, potentially, actually to be served as such.

77. There are some matters which are of concern. Although mentioned, it was unclear how the injuries suffered by Mr Grimshaw were to be taken into account. It is clear, from what the Court of Criminal Appeal said in R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398 at 410-1; [61]- [64], that extra curial punishment is a factor that can be taken into account. Here the facts did not suggest that, at the time Mr Grimshaw was hit over the head with the bottle, he represented an actual threat to the complainant. In my view, his injuries were relevant.

78. Photographs of the plaintiff were tendered by consent in the appeal; they are not good photographs, but they do show injuries of some seriousness, though perhaps less than the seriousness described in the Victim Impact Statement. That is not to say that I minimise the injuries that the complainant suffered. They were serious and properly deserve severe punishment. The sentencing must, however, be based on the facts as disclosed in the evidence.

79. The learned Magistrate referred to Mr Grimshaw's criminal history. He rightly described it as "extensive." He referred to "offences of violence". As is clear, there were three, two committed in 2002 and one in 2005. Any offence of violence is undesirable, but this history does not suggest that Mr Grimshaw has a particular propensity to violence. He admitted, however, to domestic violence. That is, of course, a wide term. No charges appeared to have been laid arising out of such unacceptable behaviour.

80. The complainant was protected by two personal protection orders; one in Queensland and one in this Territory. There is no allegation that he breached any of them. I was concerned by the comment of the learned Magistrate that, "[w]hat is a cause of concern is what you might do to give effect to your desire to see more of your children." Insofar as this is a basis for a deterrent sentence, it must be more than mere speculation and based on evidence proved beyond reasonable doubt: Anderson v The Queen [1993] HCA 59; (1993) 177 CLR 520 at 536.

81. In fact, Mr Grimshaw was using the procedures of the Family Court to gain contact with his children. He had not breached any personal protection orders, and he had not been convicted of any offence of violence against the complainant. It was not clear what evidentiary basis there was for such comment. It was not, so far as I could see, a submission of the prosecution. Indeed, in the twelve months since the proceedings had been on foot, there had been not relevant problems.

82. Mr Ford submitted that the sentence was really one appropriate for an offence of assault occasioning actual bodily harm. Certainly, sentences of less severity than that have been imposed for such offences, but this is not the test. Having given the matter the most anxious and careful thought, I am of the view that the sentence is manifestly excessive and should be set aside.

83. I was not asked to take into account any further material on sentence. I have set out in these reasons the facts of the offence, the subjective circumstances of Mr Grimshaw, and a summary of the Victim Impact Statement. The offence carries a maximum penalty of two years' imprisonment. Objectively, it was a little above the mid-range of objective seriousness.

84. I respectively agree with the learned Magistrate that a sentence of imprisonment was required and that wholly to suspend it would result in inadequate punishment. I do not quite understand why the learned Magistrate started with a sentence of thirteen months imprisonment and reduced it by 23%. I would have started at twelve months and reduced it by 20% given that, while the plea was very early the prosecution case, there was quite a strong case on that charge. That results in the same head sentence and, as a result, I do not propose to disturb it.

85. In my view, three months full time custody with the balance suspended is at the somewhat low end, but within the permissible range, of a proper sentence. Given that it is not appropriate to return Mr Grimshaw to custody, and the minimum period of periodic detention is three months, I consider that the sentence should now be suspended.

86. I will order that the appeal be upheld and that the conviction of common assault on 2 June 2012, be confirmed.

87. I will set aside the sentence of 29 May 2013. In lieu, I will sentence Mr Grimshaw as follows:

(a) to ten months imprisonment to commence on 28 May 2013; to be suspended for two years from 27 August 2013;

(b) requiring him to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act, for a period of two years with the following conditions:

(i) that he will be subject to the supervision of the Director-General or her delegate for two years or such lesser period as the person delegated to supervise him considers appropriate, and obey all reasonable directions of the person delegated to supervise him.

(ii) that he comply with the conditions of any personal protection order for which [redacted for legal reasons] or her children are aggrieved persons under the Domestic Violence Protection Orders Act.

(iii) that he attend such assessments, rehabilitation programs, or counselling in relation to the use of alcohol or illicit, as to anger management, domestic violence prevention, or parenting skills, as the person delegated to supervise him may direct.

(iv) that he provide a sample of breath, saliva or urine for the purpose of alcohol or other drug testing, reasonably required to do so by the person delegated to supervise you.

88. I shall make orders to give effect to these findings and this sentence.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Respondent: Director of Public Prosecutions (ACT)