MARCHANT v POLICE No. SCGRG-00-166 [2000] SASC 100

Supreme Court of SA|2000-04-05|Before: Bleby J

Judgment No. [2000] SASC 100

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MR D A SWAIN, DCM)

The offence occurred on 29 September 1999. The appellant was arrested on 6 October 1999 and was taken into custody on a charge of common assault. He was released on bail on 22 October 1999. The victim of the assault subsequently died on 29 October. An early pathology report suggested that she died as a result of a blood clot consequential upon the assault. No doubt because of that, the appellant on 31 October was then rearrested and charged with the murder of the victim. He has remained in custody ever since.

The charge of murder was withdrawn and the appellant was then charged with the present offence on 15 December 1999 and he pleaded guilty two days later. He was sentenced on 15 February 2000. The sentencing Magistrate sentenced the appellant to 18 months' imprisonment with a non-parole period of 12 months. The Magistrate backdated the sentence and non-parole period to 31 October 1999, being the date on which the appellant was arrested for the alleged murder of his victim. The Magistrate appears, however, not to have given any credit for the earlier period in custody amounting to 17 days. Indeed, the Magistrate stated that he ignored the earlier period in custody.

This case concerns a serious episode of domestic violence. The appellant and the victim, Melanie Susan Hardy, had been living in a de facto relationship for around three years at the time of the offence. It seems that this relationship was characterised by tension and conflict, the causes of which were several. The appellant admitted that he had been violent towards Ms Hardy on numerous previous occasions. She suffered from schizophrenia which manifested itself in paranoid delusions. While subject to these delusions, she had accused the appellant of infidelity and of trying to poison her.

The relationship was interrupted during the appellant's incarceration in 1997 and 1998. Finally, relations between the appellant and Ms Hardy were put under further strain by the victim's several miscarriages during the period of the relationship.

Apparently, she was advised by her psychiatrist that the miscarriages may have been caused by the psychiatric drugs which she was being prescribed to control her psychosis. After each such miscarriage her mental health would deteriorate and the delusional accusations against the appellant would begin. It was against that background of violence and tension that the events giving rise to the present charges arose.

The appellant was in receipt of unemployment benefits at the time of the offence. Due to the appellant's low level of literacy, Ms Hardy would fill in the documents to apply for his benefits and forward them to Centrelink. On one occasion she failed to forward the necessary documents and the appellant's unemployment benefit was withdrawn as a consequence. This sparked an argument between the appellant and Ms Hardy and the offence was committed in the course of the argument.

The appellant pleaded guilty to the offence on the basis that he was verbally abusive towards the victim, calling her "a beached whale", "a maggot" and "a slut". He slapped her around her head twice with a backhanded open hand, elbowed her in the back and pushed her outside the caravan in which they were living, where she fell back onto a car. As a result she was taken to the Balaklava Hospital.

There was no assertion in the case for the prosecution that there was any causal relationship between the assault and the ultimate death of the victim.

It was clearly a vicious attack, although no weapon was involved. Ms Hardy required hospitalisation. She sustained bruises to the right side of her head, her right leg and the right side of her chest. Not of all of those injuries, particularly those to her chest, were caused by the appellant's blows. But, it was acknowledged that they may have been caused by an impact after she was pushed by the appellant. The victim was discharged from hospital three days after the attack and most of her stay, it would seem, was for the purpose of what was described as "social respite", or keeping her away from the appellant, rather than treating her for her injuries. However, it was a few weeks after the attack that Ms Hardy died.

The Magistrate had before him a pre-sentence report from a Department of Correctional Services social worker and a comprehensive report from a psychologist. There was evidence of lack of any remorse for what the appellant had done, although evidence of sorrow at the victim's death. The Magistrate accepted that that lack of remorse must be understood and interpreted against a personality disorder which led him to have a poor psychological insight into his problems, that being based in turn on a lack of any stable psychological attachment to an adult during his early childhood. It also had to be read against his low to average intelligence, his limited insight regarding the factors that maintained his offending, his fatalistic attitude to many losses in his life, and his resignation to significant periods of incarceration which he had experienced.

At the time of the offence the appellant was aged 25. He had already experienced three relationships and fathered two children whom he had never met. He had a poor relationship with his parents, who split up at the time of his birth. He was raised initially by his paternal grandmother, till she died when he was aged seven. He then lived with his mother in what appears to have been a most unhappy, unsettled and physically abusive relationship with his mother and stepfather. He left home in his early teenage years and has lived a transient life ever since.

He has committed numerous offences in New South Wales and Victoria: offences of personal violence, serious property offences, driving and drug offences. They included at least one assault occasioning actual bodily harm, for which he was effectively imprisoned for 12 months with a nine month non-parole period, one offence of recklessly causing serious injury, for which he was imprisoned for four years with a non-parole period of 18 months, and two breaking and entering and stealing, and one break and enter with intent, each of which attracted sentences of eight months, which were served concurrently. He acknowledged a history of abuse and violence towards Ms Hardy, and that included some five months' imprisonment for breach of an apprehended violence order towards her.

The Magistrate took into account the appellant's plea of guilty, although he did not identify the quantitative effect that that had on the sentence. I am prepared to assume, for the purposes of assessing the severity of the sentence, that the Magistrate took a starting point in the order of two years' imprisonment before discounting it for such factors.

A number of grounds were argued as to why the sentence was said to be excessive. The first relates to the use of victim impact statements. The magistrate had before him an oral statement of the victim's mother, delivered personally in court, and a written statement of her father. Those statements expressed great distress and anxiety at the victim's initial injuries, whilst she was in the hospital and her subsequent care by them in the period after her release from hospital. They also reflected what the magistrate described as "the devastation and pain" then being experienced by them following her death.

It is said that the magistrate erred in allowing the victim impact statements to be read, in that they were not victims for the purposes of the Act. I reject that submission. Section 7A(1) of the Criminal Law (Sentencing) Act 1988 entitles "a person who has suffered injury, loss or damage resulting from an indictable offence" to furnish a victim impact statement. Section 3 of the Act defines "injury" for the purposes of the act as including "pregnancy, mental injury, shock, fear, grief, distress or embarrassment resulting from the offence".

In my opinion, the parents of the immediate victim plainly qualified as victims and were entitled to speak of the effect on them of the assault and its immediate aftermath, based also on their previous experience of other similar assaults, and the distress caused to them at the ongoing relationship between the appellant and the victim. They were also entitled to speak of the aggravation of that distress by the victim's subsequent death, whether or not the death was caused by the assault.

I accept that there was no suggestion of any such causal connection between the assault and the death. But, in my opinion, the statements, although exhibiting such distress, really went no higher than indicating their stress following the assault, aggravated both by the previous incidents which they had experienced and by the loss of a daughter to a man whom they disliked, and aggravated also by her subsequent death. It was therefore appropriate that the statements be given in the form in which they were.

It was also proper for the Magistrate to take into account the facts contained in those statements as relating to the circumstances of the offence which he was required to take into account under s 10(a) of the Sentencing Act, and as relating to any injury, loss or damage resulting from the offence which he was required to take into account under s 10(e) of the Act. Such factors have always been relevant. What has changed in recent times has been the emphasis now given to the way that information should be properly put before the court. It is information, the true effect of which was often previously overlooked, but which is now ensured a rightful and proper consideration as one of the many factors to be weighed in the sentencing process.

The second argument of the appellant was that the magistrate erred in failing to have appropriate regard to some six matters. I list them briefly:

1. The offence was not premeditated but occurred in the heat of the moment against a background of a complex and difficult relationship.

3. The injuries were confined to bruising and would heal within a relative short time.

4. The appellant admitted his offending to investigating police.

5. The appellant was remorseful for his behaviour.

6. The defendant suffered anguish and anxiety upon being charged with murder.

The first matter was plainly taken into account by the Magistrate. He refers specifically to the appellant's anger and lack of control of his temper and to the argument which gave rise to the assault. True it is that the Magistrate did not refer specifically to the complexity of the relationship, that no weapon was used, or that the injuries were confined to bruising and swelling. Nor did he refer specifically to the fact that the defendant made admissions when interviewed by police on 6 October. However, all those matters were put with some force by both the prosecutor and defence counsel at the hearing. Some of them were dealt with by the comprehensive reports before the magistrate. The magistrate referred to "the wealth of material before me", which he had taken into account along with "the various submissions from both sides". Merely because every detail which is put before a sentencing magistrate may not be repeated in his sentencing remarks, does not mean that it has not been taken into account. In my opinion, it has not been shown that the Magistrate, who was a very experienced magistrate, failed to take these various factors into account.

As to the question of remorse, that was specifically dealt with by the Magistrate and, in particular, on the differences expressed by the professional witnesses. The Magistrate accepted the evidence of the psychologist whose report was placed before him by the appellant, and that information was favourable to the appellant.

As to the sixth of the items I mentioned, there is no evidence before me that a submission was made that the appellant had suffered an additional penalty whilst being remanded in custody. But, the Magistrate was fully aware of the circumstances and the timing of the various charges made against the appellant, and he referred to them in his sentencing remarks. I have no reason to think that the Magistrate was not aware of, and that he did not take into account the period in custody and the reasons for which the appellant was being held.

The third major argument relates to the plea of guilty and the failure to state what discount, if any, had been taken into account. There can be no question but that the Magistrate made some allowance for that plea. He said so. The appellant argues that the sentence is so high that no credit could have been given for those factors. I disagree. Even if the notional starting point was as high as two years, for reasons which I am about to mention, I do not consider that to be manifestly excessive.

The fourth main argument dealt with the failure by the Magistrate to take into account the initial period of the appellant's custody between 6 October and 22 October. I have already acknowledged that the Magistrate stated that he did not take that into account. His failure to do so did not accord with the requirements of s 30(2)(a) of the Criminal Law (Sentencing) Act. In that respect, in my opinion, the Magistrate erred.

Finally, I must ask myself whether, viewed in all the circumstances, the sentence is manifestly excessive. It was a cruel and vicious attack. It was not the first one on this victim, nor the first attack on this victim for which the appellant had been imprisoned. The appellant came with an extremely poor criminal record for his age, including a bad record for crimes of violence.

Much as that may be attributed in part to his dysfunctional family and his lack of any real emotional support as a child, nevertheless, personal and general deterrence and the protection of the community were important factors.

In my opinion the sentence fixed by the Magistrate was well within the range of the sentencing discretion available to him. The only failure on the Magistrate's part appears to be a failure to have taken into account the first period of custody following the appellant's arrest on 6 October 1999, a period which it is agreed was 17 days. Had the Magistrate taken that period into account it still may well have been within his sentencing discretion to have imposed the same sentence. However, in the circumstances, I consider that some allowance must be made and must be seen to be made for that period.

In my opinion the appeal should be allowed for the purpose only of making that adjustment.

2. Set aside the sentence imposed by the Magistrate's Court on 15 February 2000 and in lieu thereof, fix a sentence of imprisonment of 17 months and 13 days and a non-parole period of 11 months and 13 days and; both the head sentence and non-parole period to commence on 31 October 1999.

Criminal Law Consolidation Act 1935

Criminal Law (Sentencing) Act 1988

Criminal Law Consolidation Act 1935

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