James v Turner [2006] TASSC 54

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, applied.

Judgment Number: [2006] TASSC 54

1 On 17 May 2006 the applicant appeared before a magistrate in the court of petty sessions, pleaded guilty to a charge of common assault and was thereupon sentenced to three months' imprisonment. He has filed a notice to review appealing against that sentence.

2 The particulars of the charge are that on 10 April 2006, the applicant unlawfully assaulted Emma Watson by approaching her in a threatening manner whilst holding a crowbar above his head.

3 The prosecutor provided the learned magistrate with the following information:

* At 6.30pm on 10 April 2006, the applicant was driving his vehicle along Cameron Street, Launceston towards its intersection with George Street when the complainant, Emma Watson, her mother, brother and sister walked across Cameron Street against a red light in the path of the applicant's vehicle.

* The complainant did not notice the applicant's vehicle until she was half way across Cameron Street. She and her family had to run in order to avoid his vehicle. The complainant said its speed increased as it passed through the intersection. (The applicant did not indicate whether he disputed this assertion.)

* The complainant made a rude gesture towards the applicant as his vehicle passed.

* The applicant stopped his vehicle, reversed back to the intersection and alighted holding a crowbar above his head. His explanation for taking the crowbar with him was concern for his safety when confronting four people.

* The complainant's mother and brother fled, but the complainant did not. The learned magistrate was not told whether the complainant's sister also fled.

* The applicant approached to within 2 metres of the complainant and when he saw she was a teenage girl, he lowered the crowbar to his side and said, "Why the fuck did you cross the road when it was red?" Apparently the complainant did not respond. The applicant returned to his vehicle and left. During the confrontation the complainant was terrified and tried to dial 000 on her mobile phone.

* Later that night the applicant participated in a video interview with police in which he admitted what had occurred.

4 The applicant was not represented by a lawyer. The applicant told the learned magistrate that what he had done was stupid, he should have kept driving and not worried, but he had "just sort of snapped". He said he was remorseful. This was all that he said by way of a plea in mitigation.

5 The applicant is 39 years of age. The learned magistrate noted that the applicant had no prior convictions for an offence involving violence, but had convictions in 1987 for threatening police and resisting a police officer, convictions in 1989 for breaching a restraining order and a conviction in 2001 for destroying property. Before imposing a sentence of three months' imprisonment on the applicant, the learned magistrate said:

"I note that you say it was a stupid act, you just snapped, you should have driven off and not worried about it and wish it hadn't happened. They're expressions of remorse. On the other hand the assault consisted of you approaching this 17-year-old girl who had been with her family crossing the road in a threatening manner with a crow bar raised above your head. She was terrified, not surprisingly so and you showed your aggressive spirit to her by saying, 'Why the fuck did you cross the road when it was red?' She attempted to call Triple 0 apparently. You were interviewed and admitted the essential ingredients of the offence and here today you have pleaded guilty. I can't say that an offence of this nature is not worthy of imprisonment. In my view it is. It was a completely fortuitous act of threatened violence towards this young girl and you were armed with a crow bar. Now apparently you said that you armed yourself with that because of the number of people you were going to confront. Nonetheless, it was your choice to confront those people and it was your choice to arm yourself as you did and it was your choice to threaten this girl in the way in which you did."

6 The first ground of appeal is that the learned magistrate erred in approaching the question of penalty on the basis that imprisonment was appropriate unless he was satisfied otherwise. The genesis for this ground is the learned magistrate's comment: "I can't say that an offence of this nature is not worthy of imprisonment. In my view it is." On one reading, this comment suggests that when sentencing the applicant the learned magistrate's approach was that unless he was persuaded that the applicant's offence was not worthy of imprisonment, then imprisonment should be the penalty. That would amount to a presumption that imprisonment was the appropriate penalty unless the contrary was established. Such an approach would be wrong as it runs counter to the fundamental principle that imprisonment is the punishment of last resort, to be imposed only when no other punishment is appropriate. As to that principle, see Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 296 and James v R (1985) 14 A Crim R 364 at that page, and as to the applicability of that principle in this jurisdiction, see for example Bell v Lowe [1988] Tas SR (NC 2) and Underwood v Schiwy [1989] Tas R 269. Solely on the basis of the comment of the learned magistrate referred to above, I would be dubious about concluding that he erred in his approach to the sentencing of the applicant. However, other aspects of the sentencing process satisfy me that he did.

7 On the information before the learned magistrate, the following can be said in relation to the applicant and his offence.

* Outrageous as the applicant's conduct was and as disproportionate as it was to that which stimulated it, there was some minimal provocation. The complainant and her companions crossed the road in front of the applicant's vehicle against a red light and the complainant made a rude gesture to the applicant.

* His assault was the threat of force constituted by approaching within 2 metres of the complainant with a crowbar above his head. He desisted upon getting to her. He did not apply force, attempt to apply force or verbally threaten to apply force.

* The complainant was terrified by the applicant's approach with a crowbar. However, in assessing the magnitude of her terror, it is to be noted that it was not sufficient to prompt her to do that which her mother and brother did, flee the scene.

* The applicant had no prior convictions for a crime of violence.

* The applicant had shown remorse. He acknowledged what he had done when interviewed by the police on the night of the offence, he recognised that his conduct was stupid and he pleaded guilty at an early date.

8 Imprisonment being an option the learned magistrate was contemplating, consistent with the principle that imprisonment is a sentence of last resort, it was necessary for the learned magistrate to consider whether the sentence should be wholly suspended or whether other sentencing options would be appropriate. Patently this was a case where a wholly suspended sentence of imprisonment was a real sentencing option. In these circumstances, the applicant should have been given the opportunity to dissuade the learned magistrate from imposing an immediately effective sentence of imprisonment. In Parker v Director of Public Prosecutions (supra), Kirby P, agreed with by Handley and Sheller JJA, said at 296:

"There is a particular reason why, where a judge is contemplating a custodial sentence ... he or she should indicate the contemplation to the accused or the accused representatives. Both by statute and by common law a custodial sentence is conserved to cases where the relevant alternatives have been exhausted. Such a sentence is apt as it is often said, where no other course is appropriate and where the most serious penalty now known to the law, loss of liberty, is required by the application of applicable sentencing principles: cf Justices Act, s 80AB. Although s 80AB is expressed in terms of what a justice (or justices) shall do, it simply restates the common law and the principle of commonsense that a full-time custodial sentence is only a last resort: see R v James (1985) 14 A Crim R 364; Weetra v Beshara (1987) 46 SASR 484 at 492f. It used to be said that 'silence' in a judge was 'a counsel of perfection': see, eg, R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 294. However, at least in the case of a trial judge sitting without a jury, that view has now been disapproved by the High Court of Australia: see Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571. Respectfully, I strongly endorse the view there expressed. Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view."

The only information that the applicant had placed before the learned magistrate by way of mitigation is detailed in par4 above. The learned magistrate had no information about the applicant's personal background or employment history, his capacity for work, his income or his financial circumstances. The learned magistrate should have made enquiries about these matters, particularly as the applicant was unrepresented. The impact of an immediately effective custodial sentence on an offender's employment is a factor that may tip the balance in favour of suspending a custodial sentence. Dependent upon the applicant's financial circumstances and capacity to work, the sentencing options included a fine and a community service order. These penalties alone or in combination may have been a sufficient penalty. If it was thought that a wholly suspended sentence of imprisonment lacked sufficient punitive impact, it may be that it could have been coupled with a community service order. The learned magistrate did not have the information he needed in order to assess these options. His failure to seek the information he needed in order to do so leaves me in no doubt that he erred in his approach to the sentencing of the applicant.

9 The appeal is allowed. After hearing the parties I will re-sentence the applicant.