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[2014] ACTSC 101
Supreme Court of the ACT
2014-05-21
Penfold J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Appeal against sentence imposed in Magistrates Court for assault on wife - appeal against recording of conviction - whether presence of offender's daughter aggravated the offence - whether appellant provoked by complainant's treatment of daughter - whether presence of daughter could be aggravating factor if treatment of daughter was mitigating factor - seriousness of assault to be assessed against other assaults, not against other domestic violence offences - offender unrepresented and with limited English - whether Magistrate gave offender adequate opportunity to tender evidence about possible consequences of conviction - opportunity to tender evidence on appeal not taken up - alternative sentence available but not warranted in this case - appeal dismissed.
Acuthan v Coates (1986) 6 NSWLR 472
Carpenter v Purcell [2008] ACTSC 34
Elson v Ayton [2010] ACTSC 70
Keen v Tither [2010] ACTSC 130
Lumby v Cooper [2008] ACTSC 53
2. The parties will be heard on the necessary orders.
3. Jakir Hossen was charged with one count of assault. In the Magistrates Court he was convicted and ordered to sign a good behaviour undertaking for two years.
4. Mr Hossen has appealed the sentence, to the extent that it involved the recording of a conviction.
5. Mr Hossen has come from Bangladesh to undertake a PhD at ANU. His family lives in Canberra with him.
6. The circumstances of the offence were set out as follows in the statement of facts prepared by police officers:
Mr Jakir Hossen born [in 1975] ... is currently married to [the complainant]. They have a nine year old daughter ... and an infant child together. They reside together ... in the Australian Capital Territory.
About 8:15am, Wednesday 4 September 2013, [Mr Hossen] returned to his [unit] after exercising. At this time, [the complainant] was in the kitchen of the premises, preparing a meal. [The complainant's] attention was drawn to [the daughter], who was complaining as she was not satisfied with the lunch which [the complainant] was in the process of preparing.
[The complainant] subsequently picked up a plastic doll and struck [the daughter] in the left hip with the doll to chastise her for her behaviour. Seeing this, [Mr Hossen] became angry and slapped [the complainant] to the right side of her face. [The complainant] subsequently retreated into a bedroom of the Unit and called the Domestic Violence Crisis Service, who in turn contacted the Police.
About 8:35am, Police arrived at the location and were met at the door by [Mr Hossen] who allowed Police to enter the premises. [Mr Hossen] was cautioned at this time.
[Mr Hossen] said, "I slapped my wife, and said, 'Why you hit her?'"
[Mr Hossen] informed Police that he "slapped" his wife with his right hand. He stated that the amount of force he used on a scale of one to ten was a four.
[Mr Hossen] said, "I could not control my temper as she hit her."
Police observed redness to [the complainant's] right ear.
A short time later, Police observed a gold-coloured earring laying [on] the ground of the lounge room in the premises. Police noticed [the complainant] was wearing a matching earring in her left ear, but no earring in her right ear. [The complainant] indicated to Police that the earring fell out of her ear when she was hit by [Mr Hossen].
About 8:55 am, [Mr Hossen] was arrested. He was cautioned again at this time.
In subsequent conversation, [Mr Hossen] informed Police that he is a Bangladeshi National in Australia on a temporary student visa studying towards a Doctorate at the Australian National University. [Mr Hossen] advised that he has been in Australia for over two years.
[Mr Hossen] further said, "I do not think I did anything wrong. In my culture, I did not do anything wrong."
About 9:20 am, [Mr Hossen] was transported to the ACT Watch House where he was lodged.
[The complainant] consented to Police photographing her injuries.
[The complainant] subsequently participated in a Taped Record of Conversation (TROC) with Police. During the TROC she informed Police that [Mr Hossen] hit her in the ear and cheek area of the right side of her face with an open hand. After being hit, [the complainant] stated that she was unable to hear anything for a short period of time, and she had "ringing" in her ears.
7. Mr Hossen pleaded guilty at the first opportunity.
8. He expressed remorse in a letter to the court, and provided a reference from his academic supervisor.
9. Mr Hossen was unrepresented in the Magistrates Court, although a Bangladeshi interpreter had been arranged for him. He asked the Magistrate to make a s 17 order in the following exchange:
HIS HONOUR: Now, I understand that Ms Saikal, the prosecutor, has indicated you want to make a section 17 application, is that right, Mr Khan [sic]?
HIS HONOUR: And he understands what a section 17 application is?
HIS HONOUR: You want to make one, but you don't know what it's for?
HIS HONOUR: A section 17 application is for me not to record a conviction against you in relation to the offence that you're charged with.
10. As mentioned, his Honour went on to record a conviction.
11. Mr Hossen lodged the initial notice of appeal himself, and the stated appeal ground was that the sentence was manifestly excessive. He also indicated that he wanted to put further evidence before the court, being evidence of the potential consequences for him of receiving a conviction.
12. In due course Mr Hossen engaged a solicitor, and an amended notice of appeal was filed. The new grounds were:
The learned Magistrate's discretion to dismiss the charge under s.17 of the Crimes (Sentencing) Act 2005 miscarried as follows:
13. A wish to put further evidence to the court was again indicated, that evidence being described as related to "the likely impact of the conviction on his employment prospects, and ability to travel abroad".
14. The prosecutor put to the sentencing Magistrate that:
A further aggravating feature of this offence is that there were two young children present. The infant is of less concern, but the fact there was a nine-year old girl present and witnessed her father slap her mother in this way aggravates the offence, and to that end I refer your Honour to a case in the ACT Supreme Court ... . The citation is Elson v Ayton [2010] ACT SC 70 (15 July 2010). Refshauge J says at paragraph 69 into paragraph 70:
It is clear that the courts have a duty to express the community's particular interest in denouncing family violence, especially by appropriately severe sentences, where it is aggravated by being committed in the presence of children. Where this occurs, it not only increases the humiliation and sense of powerlessness of the victim, but it is also likely to cause real psychological damage to the children and risk creating offenders of the children themselves. The courts must show that this is unacceptable and to be condemned.
15. In his remarks, the sentencing Magistrate referred to the prosecutor's submissions, and said that:
the courts have no tolerance, or very limited tolerance, for people who engage in domestic violence, and certainly in the presence of children.
16. On appeal, counsel for Mr Hossen made the following written submission:
The sentencing Magistrate treated the presence of the appellant's daughter during the assault as an aggravating factor ... .
Whilst it is conceded by the appellant that ordinarily such would be an aggravating factor for an assault involving domestic violence, it is contended that it was an error for the sentencing Magistrate to treat same as an aggravating factor in this matter when the victim's excessive chastisement of her daughter by hitting her with an implement (i.e. a plastic doll) in the appellant's presence immediately prior to the assault ... provoked the assault ... .
Such provocation was clearly a mitigating factor: s.33 (1) (q) of the Act. Whilst some subjective circumstances, e.g. an offender's mental illness, may both increase the need for protection of the community, whilst also requiring less emphasis be placed upon general deterrence, thereby "cutting both ways" in the sentencing process, an objective circumstance of the offence itself cannot be both a mitigating and aggravating factor.
17. This submission rests on the following propositions:
(a) that the victim's action in hitting the child provoked the appellant's assault;
(b) that the presence of the child was therefore an objective circumstance of the offence;
(c) that the provocation was a mitigating factor in relation to sentencing the appellant;
(d) that an objective circumstance of the offence itself cannot be both a mitigating and an aggravating factor.
18. It is not clear that these propositions are necessarily correct.
19. Accepting that the victim's action in hitting the child was the precursor to the appellant's assault of the victim, the victim's action may have been the explanation for the appellant's assault, but this does not necessarily render it provocation within the meaning of s 33(1)(q) of the Crimes (Sentencing) Act 2005 (ACT). Many offences are, on one view, committed in response to the actions of the victim: a thief may steal a handbag that has been left unattended in a shopping trolley, or a driver may ram a car that has cut in front of him in merging traffic. In most such cases (including the two examples given), the victim's conduct would not be accepted as having provoked the offence so as to provide a mitigating factor.
Was the child's presence an objective circumstance?
20. The child's presence was certainly part of the actual circumstances of this offence. However, even if the victim's action in hitting the child explained the appellant's assault, there was no reason why that assault should have been committed in the presence of the child. There is no suggestion that the assault was committed in order to remove the child from attack by the victim. There is no reason why Mr Hossen's response to the victim's action should not have been made elsewhere, in the absence of the child. That is, the presence of the child was in fact a circumstance of the assault, but there was nothing in the nature of the assault that meant that the child's presence was an inherent part of the circumstances (as it would have been, for instance, if the assault had been committed in the course of removing the child from the victim).
21. Mr Hossen's explanation for his action might be seen as reducing his culpability for the assault, by excluding the possibility that it was a gratuitous assault, but I am not convinced that it is properly described as a mitigating factor. Apart from anything else, responding to violence towards a child by using violence against her mother does not seem to send the right message to anyone.
Can a circumstance be both mitigating and aggravating?
22. Even if Mr Hossen's explanation for his action could be accepted as a mitigating factor, this does not mean that the child's presence when that action was taken cannot be regarded as an aggravating factor. Counsel did not offer any authority for the proposition that a particular circumstance cannot be both a mitigating and an aggravating factor, and I would not be prepared to accept that proposition without more careful consideration than could be justified in this case.
23. Furthermore, as already noted, in this case the victim's action in hitting the child is a different circumstance from the child's presence when Mr Hossen assaulted the victim - there is no single circumstance that is said to be both mitigating and aggravating, but two separate circumstances, one possibly mitigating (the precursor to the assault) and one said to be aggravating (the presence of the child at the time of the assault).
24. There was no error in the Magistrate's approach to the presence of the child, and I reject this ground of appeal.
Ground (ii): Failure to treat assault as at lower end of range for domestic violence
25. Counsel made few submissions directly relating to the claim that his Honour erred in not treating the assault as at the lower end of the range for an offence of domestic violence. Instead, he focussed his argument on the claim that his Honour's asserted failure to give adequate reasons for refusing to make a non-conviction order made it difficult to determine whether the assessment of the assault had been erroneous.
26. However, I note that Mr Hossen was charged with common assault. Many domestic violence offences are common assaults, but some are more serious, up to and including murder. The seriousness of a domestic violence offence charged as common assault needs to be assessed by reference to the range of common assaults, not the range of domestic violence offences. On the basis of the facts as indicated in the police statement of facts and accepted by his Honour (including the police observations of redness to the victim's right ear and the dislodged earring, and the victim's claims of temporary hearing loss followed by ringing in her ears), there is no basis that I can see for a claim that this assault was at the lower end of the range of common assaults. Even if there were an argument to the effect that the assault was less serious than his Honour judged it to be, this difference of views about a matter of degree would not of itself make his Honour's assessment of the assault a sentencing error.
Ground (iii): Failure to give sufficient reasons for refusing non-conviction order
28. It is apparent from the sentence imposed in this case that the sentencing Magistrate did accept this as an appropriate case for leniency. The sentence in fact imposed, being a conviction and a good behaviour order, was only one step up from a non-conviction order and a good behaviour order. Having regard also to Mr Hossen's explicit application for a non-conviction order, I consider that the Magistrate was obliged to provide some explanation for declining to make such an order.
29. In Lumby v Cooper [2008] ACTSC 53 I said:
When a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.
30. Although Mr Hossen was not young by comparison with Mr Lumby (whose offence was committed on his 19th birthday), it seems clear that he was inexperienced in the ways of Australian courts. Furthermore, English was not his first language, and an interpreter had been provided for him. In fact, Mr Hossen seemed to have a reasonably adequate command of English; this is suggested by the transcript, which identifies what Mr Hossen said in English and what he said through the interpreter (although it is not clear whether, before replying in English to his Honour's questions, Mr Hossen had the questions translated by the interpreter). On the other hand, even people who are fluent in English can have difficulties dealing with legal English and its jargon.
31. In my view, two questions arise from these circumstances. First, did his Honour give sufficient consideration to the basis on which he might exercise the s 17 power as sought by Mr Hossen, and secondly, did he give an adequate explanation for declining to exercise that power?
32. It is convenient to deal with the second question first.
Explanation of failure to make non-conviction order
33. After hearing submissions, his Honour made the following sentencing remarks:
Okay, Mr Hossen, please stand up. You are charged with an offence contrary to section 26 of the ACT Crimes Act, in that you assaulted on 4 September 2013 your wife ....
In the statement of facts, which are not objected to, and to which I specifically asked you to have a reference to, whether or not those facts have been relayed to you by your interpreter, recount a moment in time where, having returned from a run on about 8.15 on 4 September, you had - or formed the view that your wife should be dealt with by way of physical action from you, and that is by slapping her across the right-hand side of her head. And in doing so you caused her pain, and you felt that that was an appropriate course of action for you to adopt.
Now, I note that the cultural differences may be in play here, but I don't accept them on the base that you've been here for two years, you've acknowledged in your own statement to me today that you understand what you did was wrong, and the - what you did attracts certainly from - as you've heard from the prosecution in this matter, from the Supreme Court of the ACT in the authority referred to me of Elson v Ayton, is that the courts have no tolerance, or very limited tolerance, for people who engage in domestic violence, and certainly in the presence of children.
The blow that you caused to your wife on your scale as you reported it was about four out of ten. What that scale means, I'm not sure. I don't know how hard someone hits at level four compared to how hard they might hit at level 10, but certainly by the time police arrived on the scene, your wife having called them immediately - she went back to her bedroom given the concerns she may have had from your conduct. By the time the police got there, she was still - they could still see the mark, red mark, on her face from where she had been struck.
That shows to me there was a certain considerable force applied by you to her. Family violence is simply not acceptable and not tolerated at all as a form of some internal discipline that certainly a husband might apply to his wife.
On the basis of the material before me - I have read the reports you have provided by the ANU. I have had particular regard to the chairman of your council back in Bangladesh, who all say that you are a person who should be treated with some degree of favour, that you're a hard worker, that you're studying hard to do those things. You're an upstanding member of those communities. But all it needs is one act, and you've committed that act, which is unacceptable, and that is engaging in family violence, striking your wife, as a particular aggravating feature of an assault in my view.
I note that you've pleaded guilty on the fist occasion open to you before the court. You first appeared before the court on 4 September, and you pleaded guilty today, 25 September. As I've indicated, I note your referees. I know that you are remorseful, having read your material and what you have said.
It is on the basis of that, however, that the - on the basis of the information which is provided to me that I find that the offence is proved and you are convicted of the assault under section 26 of the ACT Crimes Act.
Then in relation to what remains to be said in that, the - and a common assault, as it's often referred to, carries a term of imprisonment of two years here in within the ACT. I sought particular guidance from the prosecution as to what might be open to me in that regard.
I'm mindful this is only the first time that you have done something, that the strike was only once, that it wasn't pursued, it was stopped. I understand the circumstances to which you say you were possibly provoked because of the incident involving your wife and the daughter which led to, as you say, you striking your wife. But - and having regard to all that, I have determined that you should be on a - that no term of imprisonment will be imposed, but you'd enter a good behaviour order for a period of two years.
34. His Honour concluded by explaining the effect of the good behaviour order, at which point Mr Hossen asked about the non-conviction order:
HIS HONOUR: ... the two year good behaviour order will require you to make sure that you understand what your - what your obligations are, and if you re-offend in those particular regards you'll be brought back before this court. Do you understand that?
MR HOSSEN: (in English) Your Honour, may I request to consider not record the conviction?
HIS HONOUR: I have not accepted the section 17 application for no conviction to be recorded. I have convicted you.
THE INTERPRETER: Sorry, your Honour, you accepted it, is it?
HIS HONOUR: No, I've not accepted it. The terms of the nature of the offence and the circumstances in which I have described it go against me in giving you a section 17 order.
35. That is, his Honour explained, in effect, that he did not feel able to make a non-conviction order having regard to the nature and circumstances of the offence. He had already gone into some detail in the sentencing remarks about his assessment of the nature and circumstances of the offence.
36. In general terms, His Honour had made it clear in his sentencing remarks that he took Mr Hossen's offence seriously and, when asked specifically about his failure to make a non-conviction order, he explained this by reference to the nature and circumstances of the offence. Recognising the demands of a "busy magistrate's court" (see Acuthan v Coates (1986) 6 NSWLR 472 at 479, Kirby P), his Honour's approach seems on the face of it to have been adequate.
37. However, there are two aspects of the Magistrate's approach that cast doubt on the adequacy of his Honour's consideration of the power under s 17 and the application for him to exercise that power. As already noted, Mr Hossen's wish to make a s 17 application was initially brought to the Magistrate's attention by the prosecutor. Questioning from his Honour elicited that Mr Hossen did not in fact know what a s 17 application was, and the Magistrate explained that it was an application for him not to record a conviction against Mr Hossen. There was then the following exchange:
HIS HONOUR: Okay. So you make that application. Is there anything - well, apart from the written material, is there anything that Mr Kanem(?) wants to say about why I should grant a section 17 application?
MR HOSSEN: (in English) Yes, your Honour, I'm concerned for my future. I think it might - if this is recorded, it might affect my future.
HIS HONOUR: Thank you. Ms Saikal, do you want to be heard on the section 17? Please have a seat, Mr Kanem [sic].
38. When his Honour asked Mr Hossen, in effect, whether his statement that the recording of a conviction might affect his future was the complete submission he wanted to make on that matter, Mr Hossen said "no", but instead of inviting him make further submissions, his Honour then invited the prosecutor to make submissions about a s 17 order.
39. Possibly more significant was that, having regard to the disadvantages under which Mr Hossen was labouring (at [30] above), the Magistrate did not ask him whether he had any evidence to offer about any particular effects on his future that were concerning him. Although it is clear that someone had alerted Mr Hossen to the existence of non-conviction orders, it was not clear that he was aware of either the need or the scope for articulating particular grounds for the making of such an order, or of the process by which particular grounds could be established.
40. Subsections 17(3) and (4) of the Crimes (Sentencing) Act are as follows:
(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a) the offender's character, antecedents, age, health and mental condition;
(c) any extenuating circumstances in which the offence was committed.
(4) The court may also consider anything else the court considers relevant.
41. An alternative approach by his Honour might have involved referring to the matters identified in s 17 as relevant to the exercise of the power to make a non-conviction order. His Honour might usefully have drawn Mr Hossen's attention to the factors mentioned in s 17(3) and the scope for other matters to be considered under s 17(4), and invited him to raise any specific matters he wanted the court to take into account. If Mr Hossen had been aware of any particular implications of the recording of a conviction on, for instance, his position as a PhD student in Australia, his ability to travel to places relevant to his study, or even his career options, this would have given him an opportunity to explain this to the Magistrate.
42. It is accordingly, in my view, arguable that his Honour fell into error in dealing with Mr Hossen's application for a s 17 order, by failing to give proper consideration to the application, having regard to the particular difficulties faced by the defendant in dealing with the Magistrates Court proceedings. However, whether this failure is identified as having led the Magistrate into an error of law or of fact in applying s 17, or into an error constituted by failing to take account of relevant considerations that might have been raised by Mr Hossen if his indication that he had not completed his submissions had been acted on, does not seem to matter in this case, for several reasons.
43. On an appeal against sentence, a finding of some kind of error is only one of the pre-requisites for upholding the appeal; the other is that the appeal court must consider that re-sentencing is appropriate (Carpenter v Purcell [2008] ACTSC 34 at [24] and [25]; Keen v Tither [2010] ACTSC 130 at [44] and [45]). In this case, however, while I can, as indicated, see an argument that there was error in the sentencing process, I am not convinced that imposing another sentence is warranted.
44. I note the matters identified by counsel for Mr Hossen as justifying considerable leniency in sentencing, being:
45. In his sentencing remarks, his Honour mentioned Mr Hossen's good character and apparently (by his comment that "this is only the first time you've done something") alluded to his clean record, mentioned his early plea of guilty and his remorse, and even noted the "possible" provocation.
46. I note Mr Hossen's suggestion that the recording of the conviction would affect his life in some unspecified way, and have already noted that he was not invited either to articulate his concerns or to provide evidence of them. Mr Hossen was legally represented in this appeal and had from the filing of the original notice of appeal flagged the possibility that further evidence would be tendered. Despite this, Mr. Hossen has at the hearing of the appeal indicated through his counsel that he does not have any evidence he wishes to tender about the possible future effects of the recording of a conviction.
47. Having regard to the material that was available to the Magistrate, I consider that:
(a) Mr Hossen's character, antecedents, age, health and mental condition (s 17(3)(a)), where relevant at all, would not have excluded the making of a non-conviction order;
(b) the seriousness of the offence, as assessed by the sentencing Magistrate, would not necessarily have excluded the making of a non-conviction order, but the arguments in favour of making such an order would have had to be compelling to outweigh the seriousness of the offence;
(c) the extenuating circumstances pointed to by counsel (which as far as I can see could only have been the alleged "provocation" constituted by the complainant's hitting of the child) did not reduce Mr Hossen's culpability enough to outweigh the seriousness of the offence;
(d) absent any properly explained, let alone substantiated, claim that a conviction would have a significant negative effect on Mr Hossen's future prospects, there is no basis to find that a non-conviction order was not only an available sentencing option but a more appropriate sentencing option in all the circumstances.
48. In summary, if the Magistrate fell into any error in sentencing Mr Hossen, it arose from his Honour's failure to offer Mr Hossen an explicit opportunity to put before him information or evidence about the possible effect on Mr Hossen of the recording of a conviction. That opportunity would have been available in the current appeal but was not taken up. On the basis of the material available both to the Magistrate and to me, I cannot see that some other sentence, specifically the making of a non-conviction order, is warranted on appeal (notwithstanding that it might have been available in the exercise of the sentencing discretion).
49. Accordingly, and despite the possible sentencing error, the appeal must be dismissed and the sentence imposed by the Magistrate must be confirmed. I shall hear the parties on the necessary orders.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.
Hossen
Hughes [2014] ACTSC 101
(1986) 6 NSWLR 472