On 26 January 2017 the defendant and complainant had an argument when the defendant accused the complainant of being unfaithful. The complainant went back to her home at Caswell Street once the argument ended, and she went to bed at about 5.00 pm. While in bed the complainant sent a text message to the defendant saying she was not feeling well, and needed help.

The defendant arrived at the home sometime after dark and was let inside the house by the complainant. A short time later the argument about the complainant being unfaithful has started up again, and the defendant began searching the house presumably looking for another person. Police have arrived at the house for an unrelated matter that occurred earlier that day, and police clamped the complainant's vehicle and then left the address.

The complainant then yelled at the defendant about getting her vehicle clamped. The defendant resumed searching the house while the complainant decided to go back to bed because she was still feeling unwell. The argument between the parties continued and the defendant has gotten on top of the complainant. She was lying on her back in bed with her head on the pillow.

The defendant grabbed one end of the pillow and pushed it across the complainant's face forcing the complainant to turn her head to one side so she could breathe. The defendant then pushed the other side of the pillow up and pressed it against her face causing the complainant to struggle for breath.

Panicking the complainant struggled and managed to flip herself over and then escaped from underneath the defendant. She ran from the house to a neighbour's house where the neighbour called police on her behalf. The defendant was arrested on 7 February 2017 and he participated in an interview ...

He stated that the argument had not happened; he denied accusing the complainant of being unfaithful; he denied that he was searching the house for a male. He then stated:

I'll put my hand up and take responsibility, whatever she said happened; that's how it happened."

1. In the plea in mitigation, counsel for the applicant canvassed the circumstances of the offending and the nature of the offence, none of which was disputed by the prosecution. The complainant and the applicant had had an argument, with each blaming the other for the vehicle having been clamped by police. It was explained that, acting out of frustration because the complainant would not stop arguing, the applicant put the pillow over her face, with the intention of stopping her arguing. His intention was not to cause her difficulty breathing, but he accepted that that was the result of his conduct. The incident lasted for two to five seconds; the complainant was squirming away from where the pillow was being held, and eventually was able to move away from the pillow and leave the residence.
2. The essence of the plea in mitigation was that the applicant acted out of frustration arising from the relationship and the argument. It was not the applicant's intention to hurt the complainant. It was emphasised that the assault was of short duration and that it did not lead to any injuries.

1. The applicant was 32 years of age. He had no prior convictions for family violence offences or violence against women. However, he had a history of serious crimes of violence including the following:
   • aggravated armed robbery and aggravated burglary committed in February 2005. He was sentenced to three years' imprisonment, six months suspended.
   • common assault committed in August 2005. He was sentenced to a global sentence of nine months' imprisonment for this offence and offences of aggravated burglary and stealing committed in 2004.
   • manslaughter and an offence of assault committed on 21 December 2008. He was sentenced to seven years' imprisonment for manslaughter and six months' imprisonment cumulative for assault. He was released on parole on 27 January 2015. His parole was revoked in May 2015 and he was released again in August 2015.
2. The applicant also had a significant number of prior convictions for crimes of dishonesty and driving offences.
3. It was noted by his counsel in mitigation that the applicant had spent approximately 12 of the last 14 years of his life in custody. Other matters advanced in the plea in mitigation were as follows.
4. Since his most recent release from custody his priority had been access to his daughter and fostering a relationship with her. For a number of months, particularly towards the end of 2016, he had played an active role in his daughter's life, having regular contact such as taking her to school on a daily basis. Contact had become sporadic this year.
5. The applicant accepted that he should not have assaulted the complainant and acted as he did. He had found adjusting to life outside prison difficult, and relationships, particularly with females, difficult. He understood that this was something he needed to work on.
6. The applicant had consented to a comprehensive family violence order; the order having been agreed to and made before the plea in mitigation was advanced. He accepted that the relationship was at an end, and his only need for contacting the complainant was in relation to his daughter.
7. It was submitted at the conclusion of the plea in mitigation that the applicant had spent almost three months on remand in custody, and a term of imprisonment that exceeded that period would be unduly harsh.

1. The learned magistrate made the following comments when sentencing the applicant:

"Mr Mayne, I'll divide my comments into two parts. The first is so far as the offence itself is concerned it is a serious offence because that sort of action can get out of hand and someone can suffer very serious injuries, or worse. And it doesn't take much.

It was a potentially dangerous act and in some circumstances could be regarded as aggravated under the Police Offences Act which makes the penalties - the maximum penalties much higher. I can't overlook your prior convictions; people have to live with those whether it's their good record or their bad; it's one thing we have to take into account.

That's on that side. On the other side there's only one count; I agree with that. It was a very short incident and fortunately she was able to get away and was dealt with subsequently. I take into account that you have pleaded guilty; it's a bit late, but at the same time it hasn't caused her to come to Court to give any evidence, and so you're entitled to a credit for that.

I will also take into account that you have been in custody for some time, and therefore it's been praying on your mind. But I - I am satisfied a prison sentence is appropriate. It has to be significant enough to show that it is a serious type of assault to - to do this.

And the penalty therefore will be seven months' imprisonment backdated to 22 February, and I order that it be recorded as a family violence offence."

1. It was argued on the hearing of the application to review that the sentence was manifestly excessive in all the circumstances, and the following contentions were advanced:
   • The learned magistrate must have rejected the applicant's plea in mitigation that he did not intend to cause the complainant difficulty breathing, when that was not disputed, and it was procedurally unfair to do so without drawing that to the applicant's attention.
   • The learned magistrate offended the De Simoni principle and took account of facts that are elements of a more serious charge.
   • The learned magistrate noted that the assault could have been an aggravated assault when it was not.
   • It is plain from sentencing statistics that the sentence was at the upper end of sentences imposed for the offence of common assault, and yet this offence was towards the lower end of the scale for offences of common assault.
   • The learned magistrate must have given too much weight to the applicant's prior convictions.
   • The learned magistrate gave too little weight to the guilty plea.

It can be seen that the first three contentions assert specific errors of law made by the learned magistrate in the course of sentencing. Strictly speaking, these specific errors of law should each be set out in a separate ground of review (Justices Act 1959, s 107(4)(a)), and there would need to be an application to add new grounds. By comparison, the latter three contentions highlight the error of law of manifest excess, referred to in the ground of review, an error which, if it exists, is to be found in the length of the sentence considered in view of the circumstances of the case. In light of the outcome of my consideration of these contentions and this appeal, I will consider all contentions as if they properly fall for consideration under this sole ground of appeal.

The learned magistrate must have rejected the applicant's plea in mitigation that he did not intend to cause the complainant to stop breathing

1. It was asserted in mitigation that the applicant did not intend to hurt the complainant or cause her difficulty breathing. In sentencing the applicant, the learned magistrate said:

"... so far as the offence itself is concerned it is a serious offence because that sort of action can get out of hand and someone can suffer very serious injuries, or worse. And it doesn't take much. It was a potentially dangerous act ... ."

1. It was contended on review that given that the unchallenged intention of the applicant was to stop the argument, and that the assault only lasted for two to five seconds, there could have been no risk of the assault getting out of hand. It was argued for the applicant that, given the magistrate's comments, his Honour must have either rejected or ignored the matters put in mitigation with regard to the applicant's intention.
2. However, in fact, the sentencing comments and the plea in mitigation regarding the applicant's state of mind are consistent. While the applicant did not have an intention to stop the complainant from breathing or cause her difficulty in that regard, it is plain from his conduct that he must have known that there was a real risk of that result, and he proceeded regardless of that risk. With that state of mind, known as subjective recklessness, the applicant might have continued behaving as he did for a period of time. Relevantly, the applicant did not desist from his actions in assaulting the complainant. The assault came to an end because the complainant struggled and managed to get away. As for the reference by the learned magistrate to the prospect of very serious injury, that was in relation to "that sort of action", an act of smothering, not the particular act of the applicant in this case. The act of smothering is inherently dangerous and his Honour was correct to draw out the potential for danger.
3. I conclude that the sentencing remarks were not inconsistent with the plea in mitigation. In essence, to assert in mitigation that an offender did not intend to cause a result does not exclude that the offender was reckless with respect to that result. Plainly, the applicant must have foreseen that from his act of placing a pillow over the complainant's face there was a risk that while he did that she would have difficulty breathing. Any suggestion to the contrary would be nonsense.

The learned magistrate offended the De Simoni principle by taking account of aggravating factors

1. The reference to the De Simoni principle is to a common law principle that was stated as a general rule by the High Court in The Queen v De Simoni (1981) 147 CLR 383. The rule reflects the important principle that no one should be punished for an offence of which he has not been convicted. The effect of the rule means that:

"... a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence". (De Simoni, per Gibbs CJ at 389 and also, at 392)

1. The applicant relied on the passage of the comments of the learned magistrate set out at [15] (above).
2. It was argued that these comments offended the De Simoni principle by elevating the seriousness of the conduct and treating the assault as amounting to a more serious offence. It was said that the comments were not justified having regard to the fact that there was no injury, the applicant was not charged with an offence which had the potential to lead to consequences more serious than a short period of breathlessness, and that the applicant did not intend to cause harm or even, cause breathlessness.
3. This argument overlaps with the first, regarding the applicant's intention. As I have said, it was entirely consistent with the facts that the learned magistrate sentenced the applicant on the basis that he smothered the complainant with foresight of the risk that his actions would cause the complainant difficulty in breathing. Whilst the learned magistrate did not say so, the only sensible approach to the facts was that the applicant was reckless and that the degree of his recklessness was significant. Relevant to the De Simoni argument, subjective recklessness was consistent with guilt for the offence of common assault. It does not suggest the commission of a more serious offence.
4. The learned magistrate did not err in stating that that sort of action "can get out of hand" and can lead to very serious injuries. It is accurate to describe smothering as the very sort of action that potentially can lead to serious injury. I emphasise that his Honour's reference to the prospect of very serious injury was with regard to this "sort of action", that is, cases of smothering in general. Also, there was no error infringing De Simoni in the learned magistrate sentencing the applicant on the basis that his act of smothering was a potentially dangerous act. It was consistent with the facts before the learned magistrate. If the complainant had not struggled free when she did, the applicant may have continued smothering the complainant for an additional period before desisting. The assault took place in a dynamic human situation, with the complainant struggling, and no doubt panicking, and the applicant in a frustrated state. There was the potential for danger. In reality, there is no flashing light to indicate to an offender the moment when an act of smothering becomes so dangerous that it could lead to a loss of consciousness. The characterisation of the conduct as "potentially dangerous" does not suggest that the learned magistrate assumed that the applicant would formulate an intention to harm the complainant. His Honour did not suggest that if the complainant had not managed to get away from the applicant he would have caused her serious harm.

The learned magistrate noted that in some circumstances the assault could have been an aggravated assault

"... It was a potentially dangerous act and in some circumstances could be regarded as aggravated under the Police Offences Act which makes the penalties - the maximum penalties much higher."

In order to understand the learned magistrate's remarks, it is necessary to have regard to the terms of the Police Offences Act.

1. The relevant provision is s 35(1), and the relevant part of that provision is in these terms:

(1) A person shall not unlawfully assault another person.

(1A) A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a penalty not exceeding 20 penalty units or to imprisonment for a term not exceeding 12 months.

(2) Where any person is charged with having unlawfully assaulted any other person, the court, if it considers the assault is of an aggravated nature, may sentence the offender to pay a fine not exceeding 50 penalty units or to imprisonment for a term not exceeding 2 years."

1. It was submitted that the learned magistrate was wrong to comment about the potential for aggravation when aggravating factors had not been particularised in the charge or asserted by the prosecutor. The applicant pointed to a decision of the Magistrates Court, Hickman v Devine [2013] TASMC 35, for the proposition that the prosecutor should particularise the aggravating factors as part of the charge. At [8], Magistrate McTaggart noted, with reference to Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, and Wong v Kirkham [1989] TASSC 56 at [12], that such particulars serve as an important notice to the defendant that certain features are alleged that, if proved, will increase the limit of the court's sentencing power.
2. There is a short answer to the assertion of error by the learned magistrate in commenting upon aggravating factors. His Honour did not state that there were in fact aggravating factors. His Honour stated that "in some circumstances" the assault "could be regarded" as aggravating. That is quite different to sentencing on the basis of the presence of aggravating factors. Clearly, his Honour was correct that in some circumstances the assault could be regarded as of an aggravated nature. Examples of these circumstances may be if the assault resulted in psychological harm, if it was pre-meditated, if it was committed with the assistance of another offender, or if the victim was particularly vulnerable.
3. Arguably, there were features of this assault that might qualify the assault as being aggravated for the purpose of s 35(2) and could have been particularised as such. The complainant and the applicant's relationship amounted to a "family relationship" as defined under the Family Violence Act 2004; the offence was a family violence offence and arguably, the assault might have qualified as "aggravated". The assault involved a breach of trust and there may be other factors which could render the assault aggravated. Whether, in this case, the offence of common assault could have qualified as "aggravated" has not been explored in submissions and the point does not have to be determined. The learned magistrate did not say it was an aggravated assault, merely that in "some" circumstances, ie other circumstances, it could have been. That is undoubtedly correct. There was a worthwhile purpose in mentioning this to the applicant. It was a useful warning which informed the applicant that reoffending of this kind could attract a higher maximum penalty of two years' imprisonment.

1. The argument for the applicant was that sentencing statistics reveal that the sentence was manifestly excessive. The submissions were as follows:

"10 According to the Sentencing Advisory Council of Tasmania Statistics (SAC Stats), for single counts of common assault across all age groups where offenders both have recent and no recent criminal history, there are 3447 recording sentencing outcomes between 2012 and present.

1. Of those 3447 sentencing outcomes, 121 resulted in terms of imprisonment that were neither wholly nor partially suspended, equating to 3.51%.
2. Of that 3.51%, 63 cases received terms of imprisonment of 3 months or less, 39 cases received terms of imprisonment of 3-6 months, 8 cases received 6-12 months and 1 case received 12-18 months.
3. Given the Applicant received a term of 7 months imprisonment, the Applicant is one of only 9 cases between 2012 and present where the offender received over 6 months imprisonment for a single count of common assault, equating to 0.23% of all single counts of common assault.
4. Assaults found to be aggravated in nature, and sentenced as aggravated assaults, are also considered as a part of this data, as assaults that are aggravated in nature are contrary to the same section of the Police Offences Act as common assaults and sentences are not separately distilled."
5. Further, it was submitted that sentences in the upper-most range, being sentences of imprisonment of between 6-12 months, should be reserved for the most serious examples of common assault. The circumstances of this offence cannot be considered as the most serious example of common assault, and as a result, the learned magistrate erred in imposing a sentence of seven months' imprisonment.
6. There is a need for caution regarding the use of statistics by the courts in striving to achieve consistency in sentencing and in reviewing sentences on appeal. The production of bare statistics says very little that is useful: Wong v The Queen [2001] HCA 64, 207 CLR 584 at [59], [66]. Further, as stated by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hili v The Queen [2010] HCA 45, 242 CLR 520 at [48]- [49], consistency is not demonstrated by, and does not require numerical equivalence, but rather, consistency in the application of the relevant legal principles. Statistics referring only to the sentences passed are not useful because they say nothing about why the sentences were fixed as they were.
7. There is an additional reason for caution in having regard to the history of past sentences imposed by magistrates with respect to the offence of common assault and treating that as giving rise to a range. The offence of common assault covers a wide range of conduct and criminality (Lyons v Bakes [2015] TASSC 37 at [8]).
8. Even if an established sentencing range exists, that does not mean that the range is the correct range, or that the upper or lower limits of that range are the correct upper and lower limits: Hili (above) at [54] and DPP (Cth) v De La Rosa [2010] NSWCCA 194, 79 NSWLR 1 at [303].
9. The maximum penalty is relevant and so is the fact that the sentence imposed was a little over half of that maximum. It was not close to the maximum.
10. A relevant consideration is whether the sentence impinges upon the sentencing range for far more serious acts of smothering. I do not consider that that is the case. Conduct involving persistent smothering, and a loss of consciousness, should properly be regarded as a grave act of violence. It would warrant an indictable charge of assault contrary to the Criminal Code. Without being prescriptive, it may attract a very lengthy term of imprisonment, more than the maximum penalty of two years' imprisonment as an aggravated assault under the Police Offences Act. Relevant to the statistics relied upon by the applicant, it should be assumed that the statutory ceiling of 12 months' imprisonment, or even two years for an aggravated assault, does not, and should not, have application to smothering or choking cases leading to a loss of consciousness.
11. As an aside, it is worth noting that in New South Wales assault involving smothering or choking has attracted specific consideration in the Crimes Act 1900 (NSW) and there is provision for a crime of choking, suffocation and strangulation. Choking or suffocation accompanied by recklessness as to rendering the other person unconscious may attract a maximum penalty of imprisonment of 10 years.
12. In conclusion, the statistics relied on by the applicant are of little assistance in reviewing the sentence and do not demonstrate that the sentence was manifestly excessive.

1. It is not argued that the learned magistrate made a specific error by over reliance on prior convictions or giving inadequate weight to the guilty plea. The argument is that the error in these respects is implicit in the sentence, and an explanation for the excessive sentence. The contentions were that: in the circumstances of this case, the sentence of seven months' imprisonment was disproportionate to the gravity of the offence, and must have come about due to an over reliance on the applicant's antecedent history, and the sentence imposed of seven months' imprisonment is not reflective of a credit for a guilty plea.
2. These arguments are presented as possible explanation for what is said to be a plainly excessive sentence. They stand or fall on whether the sentence is plainly excessive.

1. The sentence was undoubtedly a heavy sanction. The offence involved an act of violence of short duration which was not accompanied by an intention to cause harm.
2. However, I consider that the sentence fell within the learned magistrate's sentencing discretion. The following aspects of the assault are particularly relevant. The assault involved a breach of trust committed upon someone with whom the applicant had been in a relationship. While the assault lasted for a short period of at most five seconds, it was not a case where the offender realised his wrong-doing and stopped. The applicant persisted with the assault despite the complainant's struggling. The sentence must reflect the fact that no physical or psychological harm was caused to the complainant. However, it must also reflect that this was a terrifying experience for anyone in the complainant's situation. She had difficulty breathing. She would not have known what the applicant's intention was, whether he would stop smothering her, and whether she would be able to get away from him.
3. It was appropriate for the magistrate, in the exercise of his discretion, to give weight to the need for specific deterrence and to impose a sentence which would send an unambiguous message to the applicant that this kind of violence was completely unacceptable and would not be tolerated. The applicant's explanation for committing the assault suggested a preparedness to subjugate the complainant just to stop an argument. His regret, as expressed by his counsel in mitigation, did not suggest a real insight with respect to the wrongfulness of his violence. The applicant was someone who had serious convictions for violence, and the magistrate obviously determined that a decisive and stern response was appropriate to deter the applicant and inform him that such conduct was serious.
4. This was the sort of case where it was also entirely appropriate to give prominence to general deterrence. There is a growing appreciation by the courts and the community of the prevalence of family violence, and it is important that deterrent sentences be imposed not merely for crimes that cause grave physical or psychological harm to victims. There is a need to counter the perception that somehow violence of this kind in the home is less serious than the same kind of violence inflicted on a stranger in a public place. Also, acts of violence committed in a family or domestic context causing fear and distress to victims can have debilitating effects upon their well-being or the well-being of a family member witnessing such violence. It is not only violence resulting in visible injury that must be seen as unacceptable, and these victims, as vulnerable members of our society who have experienced fear and trauma, are entitled to the court's protection.
5. This case was a suitable vehicle for general deterrence and it was appropriate to seek to deter other potential offenders, and to bring home to others the seriousness of this kind of violence involving smothering. The applicant was a mature person who had committed crimes of violence in the past and served terms of imprisonment, and was not impaired in his capacity to fully comprehend the wrongfulness of his conduct.
6. I consider that the penalty was justified and fell within the magistrate's wide sentencing discretion. It is not evident from the length of the sentence that the learned magistrate gave undue weight to the applicant's prior convictions, or failed to give enough weight to his plea of guilty. The application is dismissed.