Joyce v Clark [2012] ACTSC 74

2. The May 2011 assault offences were extremely unpleasant. Mr Joyce's 15-year-old daughter had come from Queensland, where she had been living with her mother and stepfather, to stay with her father.

3. On 29 May 2011, the daughter was at the home of a Ms Cascone, who subsequently provided a reference for Mr Joyce in her capacity as his former partner. It is not clear whether that relationship had already terminated at the time of these offences, but that would not seem to be relevant. Mr Joyce came into the house and said, apparently in reference to his daughter, "Is that dog cunt here?". When his daughter approached him, he said, "I said you aren't allowed in this house". Mr Joyce's daughter walked away from him, at which point he struck her in the back of her head and pushed her in the back, causing her to fall forward over a couch. Mr Joyce continued to assault his daughter and, in doing so, knocked over a highchair in which his three-year-old daughter was sitting, causing the three-year-old to fall and hit her head. The complainant kicked out at the defendant in an attempt to protect herself, and a short time later Mr Joyce left the house.

4. Mr Joyce returned to the house the next morning, 30 May. After a brief conversation with Ms Cascone, he approached his daughter, the complainant, and said, "Is your face sore from the other day?". When his daughter attempted to push past him, Mr Joyce said "Do you want another one?" and hit her on the right side of her head, behind the ear. Mr Joyce asked her whether she liked that, and was told to "fuck off", to which he replied, "I'll smash your fucking head in". Mr Joyce's daughter ran out of the house in fear, to a bus stop where she stopped and vomited.

5. Later that day Mr Joyce's daughter reported the matter to police, and on 1 June Mr Joyce went to Woden Police Station where he took part in a record of interview in which he admitted hitting his daughter. Later that afternoon he was arrested, and charged with the two offences for which the Magistrate sentenced him in February this year. Mr Joyce was initially charged with two other offences allegedly committed during the same series of events, but these did not proceed to hearing.

6. The offence for which Mr Joyce was re-sentenced was committed on 1 May 2010. About 8 o'clock that morning, Mr Joyce took exception to the actions of a Mr Townsend, who was using a bobcat to excavate the front garden of the residence next door to Mr Joyce's home in preparation for landscaping work. Mr Joyce complained that the noise of the bobcat would wake his children, and when Mr Townsend pointed out that he was permitted to conduct this kind of work after 7.00 am, Mr Joyce pushed Mr Townsend backwards twice and then punched him with a closed fist on the left side of his face, knocking him to the ground.

7. Relevant to Mr Joyce's sentencing was the fact that his criminal record, while not particularly long, includes three previous assault offences, one involving actual bodily harm, and a prison sentence of four years, with a non-parole of 21 months that expired in 2003, for a sexual offence.

8. The sentencing hearing in the Magistrates Court took a somewhat unusual course. Evidence and submissions were dealt with on 1 February this year. At the end of the hearing the sentencing Magistrate said that she would give her decision on 3 February, and remanded Mr Joyce in custody, refusing to continue his bail. On 3 February the defence was permitted to adduce further evidence, being three new documents consisting of:

(a) a reference for Mr Joyce prepared by a step-daughter; and

(b) letters from Mr Joyce's current partner and his former partner, Ms Cascone, describing Mr Joyce's contribution to their respective households and the care of their children.

9. None of the information set out in this material had been mentioned on 1 February. It seems a reasonable inference that her Honour's indication, by remanding Mr Joyce in custody, that she was intending to impose a term of full-time custody, was the catalyst for the defence to make these new claims about Mr Joyce's family responsibilities.

10. Next I should comment on the timing of these appeal proceedings.

11. After Mr Joyce lodged his Notice of Appeal, he applied for bail on the basis that he was likely to serve a considerable part of his sentence before his appeal could be heard. On 23 March, the appeal was listed for an expedited hearing on 23 April and bail was refused. Despite the month's notice, when the appeal came on for hearing on 23 April, counsel indicated that he had only very recently been briefed, and that the effect of expediting the appeal was that affidavit evidence that might otherwise have been tendered was not available. However, he did not seek any kind of adjournment with a view to obtaining that evidence.

12. In the circumstances of this case, I think it unlikely that any adjournment would have provided for any useful extension of the appeal brief. However, I note that appellants, and their legal representatives, should not assume that an appeal against a Magistrates Court sentence will necessarily result in a grant of bail for an appellant in full-time custody, followed by a long-delayed appeal hearing. In fact, an appellant who applies for bail risks obtaining not bail but an expedited hearing, which may be a problem for an appellant whose appeal is not in fact ready to proceed.

13. Next, it is necessary to respond to comments made by counsel for Mr Joyce to the effect that comments made during the sentencing hearing by the sentencing Magistrate may have conveyed an impression of bias or prejudice on the part of her Honour. The submission is based on various matters recorded in the transcript.

14. At the beginning of the defence case, counsel for the appellant sought to call the informant to give evidence about what she described as the "surrounding circumstances" of Mr Joyce's life, claiming that this would be highly relevant to the incidents for which Mr Joyce was to be sentenced. When defence counsel referred to Mr Joyce's concerns about the behaviour of his daughter, her Honour immediately said that she would not hear evidence that amounted to an attempt to blame the victim, and declined to permit this evidence to be called (on grounds to which I shall refer later). Defence counsel made further submissions including referring to "the context in which my client lost control", at which point her Honour said that Mr Joyce could go into the witness box and give evidence himself if he wished to do so, going on:

The statement of facts is here, and if he wants to explain why he called his daughter "Is that dog cunt here?" then he can do that. He can get into the witness box and give that evidence. I'll be very interested to hear it, can I tell you? I'll be interested to hear why a father says to his 15-year-old child "Is that dog cunt here?".

15. It is possible that her Honour's comment that I have just quoted influenced Mr Joyce's decision not to give evidence at the sentencing hearing, a matter to which I shall return.

16. Defence counsel then noted that Mr Joyce's daughter had come to live with him as a result of difficulties between the child and her mother and stepfather in Queensland, and that, because Mr Joyce had not previously been involved in the daughter's upbringing, he did not have "appropriate strategies for parenting a teenager". Her Honour recalled this submission when, two days later, in circumstances I have already described, the defence tendered a reference for Mr Joyce prepared by a step-daughter who had lived with him between the ages of 14 and 19, and expressed scepticism about the earlier claim that Mr Joyce lacked strategies for parenting a teenager.

17. The tendering of Mr Joyce's step-daughter's reference, together with letters from Mr Joyce's current partner and his former partner Ms Cascone, led to questions from her Honour about how many relationships Mr Joyce had had and how many children he had fathered. It emerged, in her Honour's words, that Mr Joyce had "had three relationships, and children with three different women". Her Honour then responded with some sarcasm to Mr Joyce's claim that he loved all his seven children dearly, suggesting that that was why he was before the court, to which Mr Joyce said, "yes, I didn't want them to get on drugs".

18. It is fair to say that her Honour's comments suggested a poor opinion of Mr Joyce. However, to the extent that her opinion of Mr Joyce arose from the contents of the agreed Statement of Facts, I cannot see that this amounted to inappropriate prejudice rather than simply a view of two very unpleasant incidents to which Mr Joyce had apparently admitted and for which her Honour was about to sentence him.

19. Clearly, at some point, her Honour had to form a view about the offences that Mr Joyce agreed he had committed. I cannot see that it was inappropriate for her to form a provisional view after reading the agreed Statement of Facts. There is an argument that the expression of her Honour's initial views might desirably have been deferred until after she had heard any evidence called by the defence, and possibly also defence submissions, and was in a position to express concluded views. On the other hand, it may be fairer for a sentencing officer to convey any preliminary views early, so that the defence can make an informed view about how much and what kind of evidence should be called in the sentencing hearing. Indeed it seems that, in this particular case, the defence did take note of the impression given by her Honour on the day of the sentencing hearing (whether by her general comments or by remanding Mr Joyce in custody in anticipation of sentencing him); by the day set for her Honour to sentence Mr Joyce the defence had, as mentioned and despite having previously closed its evidence, obtained and tendered several references clearly aimed at dissuading her Honour from her apparent intention to impose a period of full-time custody.

20. I accept that it would have been desirable for her Honour not to express such clear distaste for Mr Joyce's approach to relationships and to fathering children. On the other hand, I note in this context that Mr Joyce's parents, whom the Pre-Sentence Report author described as generally supportive of Mr Joyce, did not apparently agree with Mr Joyce's claim that his relationships were "complicated", and were quoted as saying that Mr Joyce was simply "a womaniser". I see nothing in the transcript, or in the contents of the sentencing remarks, that suggests that her Honour was distracted from her task by her views about Mr Joyce's relationships, or that she in any way sentenced Mr Joyce for having multiple relationships or for having children with too many different women.

22. Mr Joyce's counsel submitted that her Honour had erred in failing to give a plea of guilty discount for Mr Joyce's pleas of guilty on the morning of the scheduled hearing of the charges against Mr Joyce. I am not convinced, for reasons that I shall mention, that a failure to give a plea of guilty discount as such can be an error, but I propose first to consider the argument that her Honour fell into error in her decision, explicitly stated and explained, not to give a plea of guilty discount.

23. The first matter mentioned by her Honour in declining a plea of guilty discount was the fact that the plea of guilty was late, coming as it did on the day of the hearing and after the prosecution witnesses had come to court.

24. Counsel noted, referring to the majority judgment in the High Court case of Cameron v The Queen (2002) 209 CLR 339 (Cameron), that the timing of a plea of guilty should be considered, and submitted that her Honour had treated Mr Joyce's pleas of guilty as being made at the last possible opportunity. Without any information before me about how long the hearing was listed for, it is not unreasonable to suggest that the plea of guilty did in fact come at effectively the last possible opportunity. The issue raised by counsel was that it might also have been the first possible opportunity arising out of negotiations between the prosecution and the defence, given that when the pleas of guilty were entered to the two charges under consideration, two other assault charges were dropped.

25. Despite discussion during the appeal hearing, there was no attempt from either party to suggest to me that there had been negotiations about a plea of guilty before the Magistrates Court hearing date, and the circumstances seem to point in the opposite direction. Those circumstances were, in particular:

(a) the fact that the prosecution had come to court for the hearing with all witnesses, and apparently prepared for the matter to run; and

(b) the fact that counsel for Mr Joyce, in the context of submissions about his pleas of guilty, simply pointed out to the Magistrate that there were other matters that had not been proceeded with and that agreement had been reached on an amended Statement of Facts.

26. The prosecutor submitted at appeal that since Mr Joyce had admitted the conduct constituting the offences in his police interview, there was no reason why he could not have pleaded guilty at any time after making that admission. However, I note:

(a) that in admitting the conduct, that is, hitting his daughter, Mr Joyce had not necessarily admitted the circumstances in which that conduct constituted an offence;

(b) that the Statement of Facts had needed amendment, albeit possibly fairly minor amendment, before it was agreed (Cameron at [23] to [25]); and

(c) that Mr Joyce might have lost a forensic advantage in pleading guilty to two charges while two other charges, apparently related to associated events, remained outstanding (Cameron at [20] to [22]).

27. For these reasons, I reject the proposition that the pleas of guilty were late because they could have been entered at any time after the police interview. On the other hand, as indicated above, there was no basis on which her Honour could have made a specific finding that the pleas had been entered at the earliest possible opportunity.

28. Pleas of guilty are significant in sentencing for several reasons. In Ross v Mothersole [2010] ACTSC 125, Refshauge J made the following comments about the significance of a plea of guilty:

1. A plea of guilty has, of course, a number of aspects: it may indicate acceptance of responsibility, it is usually evidence of remorse, and it facilitates the course of justice saving the community the costs of a trial: Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656 (at 663-4 [22]); Cameron v The Queen (2002) 209 CLR 339 (at 343 [11]-[12]).
2. Clearly s 35(4) of the Sentencing Act limits the discount that can be given for evidence of remorse and, perhaps, acceptance of responsibility. That a case against an accused is overwhelming justifies that limit, for the accused is then just bowing to the inevitable. There are good policy grounds for that.
3. Insofar, however, as the plea facilitates the course of justice, it will achieve this no matter how overwhelming the case is against the accused. There is no policy reason to justify the removal of the common law discount on this basis. See the carefully reasoned and logically compelling account of Spigelman CJ in R v Thomson (at 411- 3). Of course, the later the plea is entered the less its value and, if entered at trial, may have no value: R v Riddle (at [28]).

29. In this case, the sentencing Magistrate's comments about the lateness of the plea imply a conclusion that the late plea had not noticeably facilitated the course of justice. This appears to be an available conclusion given the comments by Refshauge J, which seem to mean, first, that there may be value in "facilitating the course of justice", even when a prosecution case is overwhelming, but secondly, that even the "facilitation of the course of justice" value of a plea of guilty may disappear entirely if the plea does not come before the scheduled trial.

30. Her Honour then made an explicit finding that there was no remorse, relying on the Pre-Sentence Report, which contained the following material about Mr Joyce's view of the offences:

Mr Joyce does not dispute that he hit the victim although he maintains he did so in order to prevent her violent behaviour. In that explanation he is given moral support by his parents and his current partner and as such, he finds it easy to justify his behaviour. Mr Joyce sees himself as the victim in these matters.

31. Although counsel told the sentencing Magistrate that Mr Joyce had expressed remorse in his police interview, there was no evidence, either from the transcript of the interview or from Mr Joyce himself, of that expression of remorse or of any remorse as such, nor was any claim made on appeal that her Honour's finding of no remorse was an error of fact.

32. As to the taking of responsibility, I note that the reference I have already mentioned, that was given for Mr Joyce by his step-daughter, refers to Mr Joyce wanting to "take full responsibility" and "move on", and also to the writer's belief that Mr Joyce "sincerely and completely regrets" the charge, and has displayed "intense regret and embarrassment" about "the event".

33. This reference was challenged by the prosecutor in the Magistrates Court on the grounds that, given its claim that Mr Joyce's actions were "completely out of character", it could not have been written by anyone who was aware of his criminal record. It must be said that the reference actually claimed that it was out of character for Mr Joyce to physically abuse a minor, and it may well be correct that none of the previous offences of violence involved a minor. However, whether the writer did not in fact know about Mr Joyce's record, or whether she did know and was intentionally distinguishing between Mr Joyce's willingness to offer violence to adults and to minors, I consider that her Honour was justified in placing little weight on the reference in general. Furthermore, none of the comments in the reference that I have quoted, even if taken at face value, make a convincing case that Mr Joyce genuinely accepts responsibility for the assaults in the sense of accepting that he was at fault. Rather, the general impression conveyed is that Mr Joyce would prefer that the incidents had not happened, and the reference to taking responsibility and moving on suggests to me only a wish to have the matter disposed of so that it no longer affects him. There is no sign in any of the material tendered in the Magistrates Court, or any other evidence given, that Mr Joyce was sorry for his actions or that he felt bad about what he did to his daughter. This is all consistent with Mr Joyce's interjections during the sentencing hearing in the Magistrates Court, when he repeatedly tried to justify his actions.

34. In these circumstances, I am not convinced that her Honour's conclusion - explicitly reached by reference to the lateness of the pleas of guilty and the absence of remorse - that there was nothing in Mr Joyce's pleas of guilty on the morning of trial that justified a plea of guilty discount, could be said to be in error.

35. Secondly, my view of the operation of the Crimes (Sentencing) Act 2005 (ACT) is not that an offender is entitled to a plea of guilty discount (such that failure to give one might be an error), but that:

(a) he or she is entitled to have the plea of guilty considered in the sentencing process (Crimes (Sentencing) Act s 35(2)); and

(b) if he or she is given a plea of guilty discount, that discount should be specified in the sentencing remarks (Crimes (Sentencing) Act s 37; Carpenter v Purcell [2008] ACTSC 34 at [18]; Cotter v Corvisy [2008] ACTSC 64 at [56]; Ross v Mothersole [2010] ACTSC 125 at [63]).

36. The combination of those two requirements means that a failure to mention the plea of guilty in sentencing remarks may permit an inference of error consisting of a failure to consider the plea of guilty (R v Thomson; R v Houlton (2000) 49 NSWLR 383 at [52], Spigelman CJ).

37. On the other hand, since there is no entitlement to a plea of guilty discount as such, if the sentencing remarks make it clear that the sentencing court has fulfilled its obligations to consider the pleas of guilty, and contain an explanation why no discount is to be given, then I cannot see that the failure to give a discount would of itself amount to error of law. If her Honour had reached her conclusion on a mistaken assumption of fact (for instance that the plea of guilty was a late plea of guilty), that might have permitted a finding of error, but in this case, for reasons explained above, there was no error in her Honour's view that the plea of guilty had come on the morning set down for hearing, and no basis on which her Honour could or should have inferred, from the submissions made to her, an intention to plead guilty earlier that was frustrated by the prosecution or in any other circumstance.

38. I am, accordingly, not satisfied that there was error in her Honour's approach to Mr Joyce's pleas of guilty.

39. The next appeal ground to be considered is her Honour's refusal to hear evidence from the informant in the Magistrates Court.

40. In the sentencing hearing, defence counsel sought to call evidence from the informant in the matter, but was not permitted to do so by the Magistrate. It seems that counsel's aim was to elicit from the informant evidence about what was said by Mr Joyce during his police interview about the circumstances of the assaults on his daughter. Her Honour said that this evidence would be hearsay and that, if counsel wanted the evidence on the record, she should call Mr Joyce to give evidence himself of what he had said. At the request of counsel, she stood the matter down briefly (for four minutes according to the transcript), for counsel to take instructions from Mr Joyce. When the matter resumed, it was apparent that Mr Joyce was not to be called, and counsel did not renew her request to call the informant. Her Honour's indication that she might be sceptical about Mr Joyce's evidence, which I have previously quoted (at [14] above), might have influenced the final decision whether he would give evidence, although presumably, given Mr Joyce's counsel's attempt to call the informant, the initial defence plan also involved Mr Joyce not giving evidence.

41. Counsel for Mr Joyce submitted that her Honour's approach was a breach of procedural fairness, and pointed out that, as in a trial, an accused person is not required to give evidence. Counsel is correct that an offender is not required to give evidence in a sentencing hearing, but in contrast to the trial situation, there are to my knowledge no specific presumptions operating in the offender's favour in the absence of relevant evidence. It was also conceded at the appeal hearing that counsel for Mr Joyce, having been prevented from calling the informant, could have sought to tender relevant parts of the record of interview to establish what Mr Joyce had said to police. On the other hand, however evidence had been admitted of what Mr Joyce had said to police, it would not have carried the same weight as sworn evidence by Mr Joyce, not of what he had said to police, but of what he said actually happened in the incidents in question. To that extent, even if the informant's evidence had been admitted, her Honour might reasonably have given it little weight in the absence of direct evidence from Mr Joyce of the circumstances (rather than of what he said about the incident shortly afterwards), but also given that Mr Joyce, advised by his counsel, had apparently just agreed to a Statement of Facts which referred to other material from the record of interview, but did not contain any reference to the material sought to be adduced.

Effects of custodial sentence on appellant's family

42. A further ground of appeal was her Honour's asserted failure to consider the effect of prison on Mr Joyce's family.

43. As noted earlier, evidence about the impact of a custodial sentence on Mr Joyce's family was produced only after the formal closure of the defence evidence and submissions. That evidence took the form of letters from Mr Joyce's current partner and his former partner, Ms Cascone. Mr Joyce's current partner, who has a daughter apparently from a previous relationship and a young son fathered by Mr Joyce, said:

(a) that she had recently miscarried;

(b) that she had no family or transport in the ACT;

(c) that her young son had had respiratory difficulties, had been hospitalised when only a few weeks old and now needed regular visits to his doctor;

(d) that she was emotionally dependent on Mr Joyce, her daughter looked to him as a father-figure in the absence of any contact with her birth father, and her son was restless when Mr Joyce was not there; and

(e) that she was concerned about the bond between Mr Joyce and their son if Mr Joyce was imprisoned.

44. Ms Cascone, the former partner, cares for two children aged nearly five and nearly four, fathered by Mr Joyce. She said:

(a) that she relied on Mr Joyce for child care because she worked irregular hours (in a cleaning job that depended on when the properties were vacated by tenants);

(b) that their son had found it difficult since she and Mr Joyce separated and has displayed "challenging behaviours";

(c) that a plan aimed at addressing their son's difficulties included a regular overnight stay with Mr Joyce as well as behaviour management strategies, presumably for dealing with the son, "which we both use";

(d) that Mr Joyce was "a huge part of our children's life", and that she was not sure how they would cope as a family if Mr Joyce was incarcerated;

(e) that if Mr Joyce was incarcerated, she might not be able to work because of the costs of child care and "this will impact future contracts"; and

(f) that their children would definitely "be impacted by the limited amount of access".

45. The prosecutor relied, in relation to the significance of hardship to be caused to an accused's family by a custodial sentence, on the analysis of the authorities undertaken by Refshauge J in Cotter v Corvisy [2008] ACTSC 64, at the end of which his Honour concluded at [82]:

On the basis of these authorities, then, it seems to me that the approach that should be taken is that the effect of a sentence on the family and dependants of the offender should be taken into account, but will only result in any significant leniency where the effect is more severe or prejudicial than the inevitable and usual consequence of the imposition of a proper sentence or where it will not overwhelm the proper statutory purposes for which the sentence should be imposed.

46. It is possible that the circumstances of one or more of the children for whom Mr Joyce had apparently been providing some care might have been particularly dire as a result of Mr Joyce's incarceration, but on the basis of their mothers' letters, I can see nothing more than what Refshauge J referred to as "the inevitable and usual consequence of the imposition of a custodial sentence" on Mr Joyce. Clearly, the imposition of a custodial sentence on the father of young children will mean that he is unavailable to play a part in the care and support of those children, and if that father has previously been involved in that care and support, then the custodial sentence will inevitably have an impact on both the children concerned and the mother or other adult who has been sharing the task with him.

47. In general, responsibility for a family is something that a person can be expected to have considered before offending. It is not a "get out of jail free" card for an offender. If an offender's offence otherwise requires a term of imprisonment, then only an effect on family that is more severe or prejudicial than the inevitable and usual consequences would justify any particular leniency.

48. As noted, there may be more to the difficulties said to threaten Mr Joyce's family than emerges from the letters from the two mothers. The threshold described by Refshauge J might have been satisfied, and her Honour might have taken a different view, if there had been before her Honour information from doctors, child welfare workers or even via the Pre-Sentence Report, suggesting, for instance, that Mr Joyce's son suffered continuing ill health involving regular hospitalisations, or that there were reasons why Mr Joyce's parents and siblings, most of whom were said to have supportive relationships with Mr Joyce, would nevertheless be unavailable to help out during his incarceration.

49. On the other hand, it is notable that Mr Joyce's family responsibilities were not considered worthy of discussion with the Pre-Sentence Report author and nor were they the subject of either evidence or submissions at the sentencing hearing. The claims from the mothers of his children were, as I have mentioned, only produced after the likelihood of a custodial sentence had become apparent. I cannot see that her Honour fell into error in the approach that she took to Mr Joyce's family responsibilities and the impact of a custodial sentence on his family.

50. The grounds specified in the appeal notice relating to her Honour's failure to consider options such as periodic detention, and the claim that the sentence was manifestly excessive, were both abandoned in the course of the appeal hearing.

51. I turn now to the appeal ground that her Honour breached the totality principle in requiring Mr Joyce to serve the two 4-month sentences entirely consecutively.

52. There is also a related issue arising from her Honour's re-sentencing of Mr Joyce for an earlier offence for which he had previously been convicted and ordered to sign a 12 month good behaviour undertaking and to complete 104 hours (amounting to about 13 days) of community service.

53. When the current offences were committed, Mr Joyce had completed almost six months of his good behaviour period, and by the time he came to be re-sentenced, he had performed all his community service hours, although I note that his community service organiser described Mr Joyce's behaviour as "aggressive and disruptive to the work crew".

54. Her Honour cancelled his good behaviour order and re-sentenced him. The re-sentence was to three months imprisonment, which her Honour said would be fully suspended, subject to a two-year good behaviour undertaking with a $1,000 surety. However, her Honour, while noting that the community service had been performed, did not explicitly give Mr Joyce any credit for the performance of the community service work, and it is hard to imagine that, for instance, she had intended to impose a sentence of imprisonment that finished up as a neat three months imprisonment after the community service was credited on some unspecified basis.

55. Her Honour's order is, it seems to me, equivalent to re-sentencing an offender who has served part of a sentence in full-time custody before it was suspended without giving any credit for that time served in custody, and without explaining that failure. It must be said that it is not clear exactly how or what credit would properly be given for hours of community service performed under the earlier sentence, and it might have been her Honour's view that community service performed so as to be "aggressive and disruptive to the work crew" didn't deserve any credit at all, but there was no such explanation of the re-sentence.

56. Furthermore, in imposing the three months imprisonment, her Honour did not specify the relationship between that sentence and the two new sentences she was imposing. The effect of s 71 of the Crimes (Sentencing) Act is, among other things, that generally two sentences imposed in the same proceedings will be served concurrently unless a specific order is made under s 71(2), but s 70 excludes from this provision a sentence that is fully suspended.

57. The effect of this seems to be that (subject to the effect of Mr Joyce's appeal in staying all the sentences) there would have been a period of 12 months (including the four months after his eight months in full-time custody) during which a breach of the good behaviour order would have exposed Mr Joyce to the risk of serving a further three months in full-time custody, possibly entirely accumulated on the eight months initial custody if, in any further re-sentencing, the sentencing officer had simply cancelled the good behaviour order and imposed the sentence of three months.

58. Thus, although the three month re-sentence was fully suspended, the overall effect of her Honour's sentence orders could have been 11 months in full time custody for Mr Joyce, possibly split into two periods.

59. There is nothing in her Honour's judgment suggesting that she considered the totality of the sentences she was imposing and satisfied herself that 11 months imprisonment was a fair reflection of Mr Joyce's overall criminality. Nor, it has to be said, did she explain why the two assaults on Mr Joyce's daughter, which although committed on consecutive days, did seem to arise from the same ongoing conflict between Mr Joyce and his daughter, were to be served entirely consecutively.

60. It seems to me that her Honour failed to apply the totality principle properly in sentencing Mr Joyce for the three assaults, and this is an error that would be sufficient to permit the re-exercising of the sentencing discretion, if only to clarify the impact of the three months suspended sentence in the overall sentence imposed by her Honour.

61. Before I indicate the kind of sentence I would consider on a re-sentence, there are several comments I need to make about the facts in this case.

62. As noted, the specific evidence that defence counsel was hoping to elicit from the informant did not ever become apparent, either in the Magistrates Court or before me. However, during the hearing in the Magistrates Court, Mr Joyce made a number of interjections. These appeared to suggest that the dispute with his daughter that had led to the two assaults had arisen as a result of his attempts to stop his daughter using drugs, specifically Ice. There are two reasons why any such suggestion, even if backed up with evidence, would not have made any significant difference in Mr Joyce's sentencing.

63. First, the agreed facts in relation to each assault simply do not accord with any such suggestion. Even if a concern about illicit drug use had caused the tension between Mr Joyce and his daughter, it would not explain, let alone justify, the language he used to his daughter, or his claim that he had told her that she was not supposed to be at Ms Cascone's house, as a prelude to his first apparently unprovoked assault of her. That is, whatever the context of that assault, it appeared to have been directly related to something other than actual or threatened drug use by his daughter. The assault on the following morning, which appeared to have been equally unprovoked, also took place in the absence of any discussion about his daughter's behaviour, but simply following a reference to the previous assault.

64. I note in this context that Mr Joyce had an opportunity, unconstrained by arguments from the prosecution about admissibility of evidence, to explain the offences when he spoke to the Pre-Sentence Report author about them after he had pleaded guilty. I have already quoted what Mr Joyce said to the Pre-Sentence Report author about the assaults (at [30] above), but I repeat the part that is relevant for present purposes, namely Mr Joyce's claim that he hit his daughter, "in order to prevent her violent behaviour". This explanation is as unconvincing as his references to his daughter's alleged drug use, given that there is no reference in the Statement of Facts suggesting violence by his daughter in either incident, except that during the first incident, after Mr Joyce had hit her several times, his daughter "kicked out at Mr Joyce in an attempt to protect herself".

65. Secondly, even if evidence had been admitted to the effect that the broader context of the assaults had related to a dispute about illicit drug use, this would not even remotely justify or excuse the assaults themselves. I do not wish to suggest that it is easy to manage a 15-year-old who is determined on an undesirable course of action, or that in any particular case there is a clearly effective alternative to physical violence. On the other hand, I am not aware of any basis for suggesting that physical violence is itself likely to be even remotely effective in deterring a 15-year-old from a dangerous or otherwise undesirable course of action. Indeed, to the extent that the proposed course of action may be self-destructive, or otherwise suggestive of significant unhappiness, it may be further encouraged by physical violence from an authority figure in the child's life.

66. Thus, I cannot imagine a basis on which Mr Joyce would be able to explain these assaults in a way that, in effect, negated the impact of the Statement of Facts to which he had agreed. This may explain why he has raised two different explanations in contexts in which he could not be cross-examined, but has not been willing to give sworn evidence about the circumstances.

67. If I were to re-sentence Mr Joyce, taking account of the serious nature of all of these offences, taking the same view as the sentencing magistrate about the value of Mr Joyce's pleas of guilty, and paying full regard to the evidence in front of me about Mr Joyce's family circumstances, I would impose the same three terms of imprisonment as imposed by her Honour:

(a) the first three-month sentence for the assault of Mr Townsend to be backdated to 18 January 2012 to take account of 13 days community service;

(b) the first four-month sentence to be concurrent with that three-month sentence as to one month, meaning that it would start running a month before the end of the first sentence, and cumulative as to three months; and

(c) the second four-month sentence to be concurrent with the first four-month sentence as to one month and cumulative as to three months;

giving a total sentence of nine months imprisonment, of which I would suspend the last two months, subject to a two-year good behaviour order running from when that sentence would be suspended, namely 18 August 2012.

68. The effect of that re-sentence would be to reduce the time left in full time custody at this stage from eight months to seven months, expiring on 17 August 2012 as a result of the backdating to take account of community service, so leaving just less than four months to be served at this stage, but to leave Mr Joyce at risk of serving the remaining two months in full-time custody if there is any breach of the good behaviour order within a period that would run until mid-August 2014.

69. It is arguable, however, that such a sentence would be more severe than the one imposed by her Honour, because although it involves a total term of imprisonment that is shorter than the potential term under the original sentences, it extends by six months the period during which Mr Joyce remains at risk of serving the full (albeit slightly shorter) total term. Accordingly, I consider myself obliged to give Mr Joyce the opportunity to withdraw his appeal at this stage.

70. [Counsel having indicated that Mr Joyce does not wish to withdraw his appeal,] Mr Joyce, if you'd stand please?

71. I now uphold your appeal, and re-sentence you on the three assault offences.

72. For the earliest assault offence, the one involving Mr Townsend, the sentence is three months imprisonment backdated to 18 January this year, so that sentence is now served. The sentence on the first of the more recent assault offences is four months imprisonment which will run from 18 March 2012 and expire on 17 July. Then for the third assault, again, four months imprisonment. That one will start on 18 June this year and would run until 18 October. That gives a total sentence of nine months imprisonment. That will be suspended after you have served seven months, namely on 17 August this year, at which point you will be released, and I now order you to sign an undertaking to comply with your good behaviour obligations for two years, with security in the amount of $1,000. You will need to sign that before you are released. The good behaviour order will be subject to the conditions that you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or her delegate, and that you undertake such counselling, courses, programs or treatments as directed by your supervising officer.

73. Now, when you do sign that you will get a copy of that, the good behaviour order, but what it means basically, as I am sure you understand, is that for the two years after that, you have to keep out of trouble, do whatever Corrective Services reasonably require you to do, and in particular participate in any programs that they direct. If you commit another offence within that two year period you will come back to this Court to be re-sentenced for that outstanding offence, and that could easily mean serving out the rest of the two months that has been suspended as well as losing the security amount. If you have anything more to ask, any questions about that order, you can talk to Mr Livingston briefly after this. You can sit down, Mr Joyce.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the appellant: Legal Aid ACT

Solicitor for the respondent: ACT Director of Public Prosecutions