Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Factual basis of sentence - Proof and evidence - Pre-sentence reports and police reports - Imprisonment of youthful offender before receipt of requested pre-sentence report.

James v Turner [2006] TASSC 54; Lahey v Sanderson [1959] Tas SR 17; Parker v Director of Public Prosecutions [1992] 28 NSWLR 282, referred to.

Judgment Number: [2007] TASSC 7

COREY PHILLIP MANEY v SERGEANT GRAHAM ROSS WHITE

1 On 15 September 2006 the applicant, Corey Maney, was convicted by Magistrate P H Wilson on two charges of common assault, the particulars of the charges being that on 28 May 2005 the applicant punched Alexander Hart and Julie Ann Cocca in the head. With respect to these convictions, on 11 October 2006, the learned magistrate sentenced the applicant to four months' imprisonment to date from 15 September 2006 and ordered that the applicant be subject to probation for twelve months. The applicant appeals against that sentence on the ground that the learned magistrate concluded that it was appropriate to expose the applicant to the potentially corrupting influence of imprisonment before receiving a pre-sentence report that he had directed should be provided.

2 The applicant pleaded not guilty to the charges and was not represented on their hearing by a lawyer. The basis for his defence to the charges does not emerge from the transcript of the hearing. He asked no questions that challenged the evidence of prosecution witnesses and he neither gave nor elicited evidence.

3 In summary, the evidence was that at around 11.30pm on 28 May 2005, a group of about 15 people left a bowling complex at Kings Meadows. The group included Julie Cocca and her husband and the intention was that the members of the group would go to the Cocca's home. As taxis became available, members of the group departed for the Cocca's residence. Ms Cocca, Graeme Dearman, Dee-Ann Porro and Alexander Hart were amongst those still waiting for a taxi when the applicant exited the bowling alley in an intoxicated and agitated state. Mr Hart was also intoxicated. He described himself as being extremely drunk and stumbling about. He had no recall of what occurred save for some swear words, something dramatic happening and being at the Cocca's residence with a sore nose and blood around the inside of his nostrils. He said that he had obviously been hit a few times and his nose was sore for two days.

4 Ms Cocca, Mr Dearman and Miss Porro all gave evidence to the effect that for no apparent reason after the applicant exited the bowling complex, he yelled to Mr Hart about wanting to start a fight or mouthing off, and then punched Mr Hart. Ms Cocca said that the applicant punched Mr Hart in the face at least 10 to 12 times and Mr Hart did not raise a fist. She said that when she jumped in to try and protect Mr Hart, she received a punch to the right of the head above the ear that caused a bump. Mr Dearman said that he saw the applicant punch Mr Hart once in the nose before Ms Cocca and Ms Porro pulled the applicant away from Mr Hart. He did not see Ms Cocca get punched. He was with his daughter and he did not have his eyes on the incident all the time. Ms Porro said that after the applicant yelled at Mr Hart, he just started punching Mr Hart in the face for no reason at all. She said that she could hear the punches connecting, there was blood on Mr Hart's face and he did not retaliate in any way. She said that Ms Cocca stepped between the applicant and Mr Hart and she, Ms Porro, pulled the applicant away from Mr Hart and as she did so, the applicant threw a punch that hit Ms Cocca in the head.

5 In the face of this uncontradicted evidence, as was inevitable, the learned magistrate convicted the applicant on each charge. Thereupon the prosecutor provided the learned magistrate with a record of the applicant's prior convictions and the facts in relation to some unrelated charges to which the applicant had pleaded guilty. The applicant had prior convictions for offences of dishonesty, but no prior convictions for assault or the like. The applicant had not previously received a suspended or immediately effective sentence of imprisonment. He was 19 years of age at the time of the assaults and 20 years of age at the time of the sentencing hearing. Whilst there is no arbitrary upper limit on the age at which a court regards an offender as a youth, it is recognised that an offender of about 21 years of age is still a youthful offender: R v Mather and Rogers [1962] Tas SR 25, Burbury CJ at 26; Conlon v Arnol A50/1969, Chambers J at 4 and Spaulding v Lowe 4/1985, Underwood J (as he then was) at 8. The sentencing principles applicable to youthful offenders applied to the applicant. In the case of a youth who is not represented by counsel, it is often appropriate to obtain a pre-sentence report, Conlon v Arnol (supra) at 5 and see the decision of the Full Court in Suckling v Ling A27/1973. The only information that the learned magistrate had elicited from the applicant in relation to his personal circumstances was:

"I've got two jobs, where I work at Newstead Auto Wreckers and for Malcolm Maney Contracting doing glassing and I've got a baby on the way, it's due in a month. Yeah, that's about all."

6 In these circumstances the learned magistrate quite rightly directed that a pre-sentence report be provided. He had minimal information in relation to the applicant and, as I explained when dealing with an appeal against a sentence imposed by the same learned magistrate in James v Turner [2006] TASSC 54 at par8:

"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."

In the case of a youthful offender, it is well recognised that the dominant reason for the court's reluctance to impose an immediately effective sentence of imprisonment is, as explained in Lahey v Sanderson [1959] Tas SR 17 by Burbury CJ at 21:

"The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed."

7 Whilst the learned magistrate's decision to obtain a pre-sentence report was entirely consistent with these principles, he directly contravened them by the course he adopted immediately after he had directed the provision of that report. Without foreshadowing the course he had in mind or explaining what he had in mind, the learned magistrate remanded the applicant in custody until 11 October 2006, a period of 26 days, for the preparation of the report. Although the applicant had on past occasions failed to comply with the terms of his bail, he had appeared to the charges being dealt with by the learned magistrate on the last three occasions on which they were before the court, that is, on 2 June 2006, 10 July 2006 and 15 September 2006. The applicant was in employment and had family in Tasmania. Bearing in mind the sentencing principles to which I have referred, there was every reason to continue the applicant's bail and no reason to remand him in custody. The practical effect of the course adopted by the learned magistrate was to impose an immediately effective sentence of 26 days' imprisonment on the applicant. When the learned magistrate came to finally sentence the applicant, he was obliged to take into account the period during which the applicant had been held in custody, Sentencing Act 1997, s16(1). The course adopted by the learned magistrate largely denuded the pre-sentence report that was to be provided of any real utility, and demonstrated that notwithstanding the absence of that report or any detailed information on the applicant's personal circumstances, the learned magistrate had concluded that it was appropriate to imprison the applicant and expose him to the corrupting influences of incarceration. This was plainly an error and counsel for the respondent concedes it to be so. It was an error that was compounded by the learned magistrate's failure to give the applicant notice of what he had in mind and an opportunity to dissuade him from adopting that course. In Parker v Director of Public Prosecutions [1992] 28 NSWLR 282, Kirby P, agreed with by Handley and Sheller JJA, explained at 296 that where a sentencer is contemplating a custodial sentence, he or she should so indicate in order to give the offender a fair opportunity to present contrary argument and persuade the sentencer to take a different course. This was not done by the learned magistrate. Returning to the precipitate decision to remand the applicant in custody for 26 days, I mention that incarceration for that period is a not insignificant penalty for common assault. With effect from 15 December 2003, the maximum penalties for common assault were increased from a fine of $500 or imprisonment for six months to a fine of $2,000 or imprisonment for twelve months. In Sentencing in Tasmania, 2nd ed, Federation Press, Professor Warner analyses the sentences imposed for common assault in southern Tasmania in 1999 and 2000 and, at par14.207, she says that a fine and dismissal were the most common outcomes, with about 22 per cent of offences attracting a sentence of imprisonment, the median sentence being one month. Against the background of this range of penalties, albeit a range based on sentences imposed before the 15 December 2003 increase to the applicable maximum penalties, there was no justification for concluding, prior to the receipt of a pre-sentence report detailing the applicant's personal circumstances, that his offences warranted a penalty of at least 26 days' imprisonment.

8 If this had been a case where regardless of any information that might have been forthcoming in the pre-sentence report, the only appropriate penalty was an immediately effective sentence of imprisonment, it might have been arguable that the learned magistrate's errors did not give rise to a miscarriage of justice and that the Justices Act 1959, s110(2)(ab), could have been applied. It was not so argued and this is not such a case.

9 The appeal is allowed. The sentence imposed by the learned magistrate on complaint number 36835/2005 is quashed. I will re-sentence the applicant in respect of his convictions on that complaint.