Mazeika v David [2014] ACTSC 95 (22 April 2014)

[2014] ACTSC 95

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Appeal against sentences imposed in Magistrates Court for two offences of common assault on partner and two driving offences - offender had spent eight weeks in rehabilitation program before discharging himself after beginning six-month stage of program - whether failure to backdate sentence to take account of eight weeks spent in program was an error - participation in rehabilitation program may be taken into account in sentencing - participation in rehabilitation program not required to be recognised by backdating sentence - no entitlement for an offender to choose how sentence is served irrespective of commitment to or success of program - no error in failure to backdate for time in program - appeal dismissed.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Appeal against sentences imposed in Magistrates Court for two offences of common assault on partner and two driving offences - whether sentences for two assaults as part of same incident should have been concurrent - between the two assaults, offender had left the scene for several minutes - opportunity to control his anger before second assault - no error in not providing for full concurrency - appeal dismissed.

House v The King [1936] HCA 40; (1936) 55 CLR 499

1. The appeal is dismissed.
2. The Magistrates Court orders are confirmed.

1. Aaron Mazeika has appealed against sentences imposed in the Magistrates Court on 27 August 2013. The sentences were as follows:

(a) for two counts of common assault committed on 30 April 2012 - three months imprisonment each, to run concurrently as to two months and the second sentence to be accumulated on the first sentence as to one month, making a total sentence of four months imprisonment for the assaults;

(b) for one count of drive while disqualified as a repeat offender, committed on 20 October 2012 while Mr Mazeika was on bail for the assault offences - two months imprisonment; and

(c) for one count of drive while disqualified as a repeat offender committed on 9 November 2012 - three months imprisonment, accumulated on the first drive while disqualified sentence as to two months, giving a total of four months for the drive while disqualified offences.

2. The drive while disqualified offences were committed in breach of a good behaviour order which was made on 22 June 2012 in conjunction with the suspension of a sentence of three months imprisonment for one count of minor theft committed on 9 November 2011. The sentencing Magistrate re-sentenced Mr Mazeika for that minor theft, again to three months imprisonment which, as it turned out, was to be served in fulltime custody. That sentence was also challenged in this appeal.

(a) the minor theft sentence was to begin on 24 August 2013, to take account of pre-sentence time in custody, and to end on 23 November 2013;

(b) the total fourmonth sentence imposed on the two common assault charges was accumulated on that minor theft sentence, running from 24 November 2013 to 23 March 2014; and

(c) the total four months imprisonment for the two driving sentences was fully accumulated on the assault sentences, starting on 24 March 2014 and ending on 23 July 2014.

4. The total sentence of 11 months was to be served as four months in fulltime custody, four months in periodic detention and the remaining three months to be suspended, subject to an 18month good behaviour order.

5. The notice of appeal identified two grounds of appeal, being:

(i) The learned Magistrate erred in law by giving undue weight to Mr Mazeika's not continuing with a rehabilitation program after he had completed his initial program at Karralika.

(ii) The imposition of the sentence was against the weight of evidence.

6. An appeal against sentence imposed in the Magistrates Court is in this jurisdiction a rehearing rather than a hearing de novo, and that as an appeal against a discretionary decision, it is to be considered by the appeal court by reference to the grounds of appeal set out in the decision of House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 as follows:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

7. In written and oral submissions, counsel for Mr Mazeika reframed his appeal grounds to some extent.

8. I note first that the sentencing of Mr Mazeika was delayed by various matters, mainly related to Mr Mazeika's expressed wish to undertake drug rehabilitation at Karralika. There was a wait for a suitable placement and, once Mr Mazeika began his placement, there was a further adjournment to enable him to complete the first eightweek stage of the program. That was apparently completed in midMarch 2013, and on 21 March 2013 sentencing was further adjourned to allow Mr Mazeika to begin the next sixmonth stage of the program.

9. It seems that only three days later, Mr Mazeika discharged himself from the Karralika program in circumstances that are still unclear, although it can be said that Mr Mazeika's view of the circumstances differs from that provided by the organisation conducting the program.

10. Whatever his reasons for leaving, it seems that Mr Mazeika did not advise the court of his departure until his next appearance in the Magistrates Court on 18 June 2013.

11. Counsel for Mr Mazeika argued that the sentencing Magistrate should have backdated the sentence to give Mr Mazeika credit for the eight weeks he had spent completing the first stage of the rehabilitation program. Counsel was unable to provide any authority for either a requirement to provide a sentencing discount in such circumstances, or even a recognition that this would have been an appropriate approach, saying only that "it happens all the time".

12. I am not convinced that this happens all the time, or even very frequently.

13. I have myself on occasions given credit for successful completion of rehabilitation programs to offenders subject to deferred sentence orders for which attendance at residential rehabilitation is a condition of their bail. Where the aim of the deferred sentence order is to provide an incentive for an offender to complete a rehabilitation program, and it is expected that an offender who complies with the conditions of the deferred sentence order will receive a less severe sentence than if he had not done so, it seems to me to make sense to give some credit for time spent in an environment which, although not equivalent to fulltime custody, certainly imposes considerable restrictions on a participant's freedom.

14. On the other hand, it should be clear that such an approach is not intended simply to give offenders the option of serving part of a prison sentence in residential rehabilitation, irrespective of the offender's commitment to rehabilitation or the success of his participation in the program.

15. I cannot see that Mr Mazeika has any basis for asserting that the sentencing Magistrate should have set off his eight weeks in Karralika against any of the sentence that was imposed. I note in that context two matters:

(a) first, that Mr Mazeika's announced intention to undertake a second sixmonth stage of the rehabilitation program suggests that the eightweek program was of an introductory nature and was unlikely of itself to have led to significant rehabilitation; and

(b) secondly, that there was evidence before his Honour to the effect that the rehabilitation program might not have addressed Mr Mazeika's drug use.

As I indicated to Mr Wilson on your behalf at the time, given your circumstances, including that you recognised the significance of clean urinalysis results to your sentencing and your prospects of regaining care of your children, the inference I draw from your unexplained non attendance for urinalysis is that the results would not have been clear.

The bail progress report also includes the following:

"It was intended for Mr Mazeika and his partner to have their children restored to their care in June 2013. However, Care and Protection have ongoing concerns about the couple's use of illicit drugs which has caused them to delay restoration. These concerns are based on their presentation at unannounced home visits and their failure to participate in all drug tests as directed."

17. Counsel for Mr Mazeika says that his Honour should not have inferred continuing drug use from Mr Mazeika's unexplained failure to attend for testing. Of itself, the failure to attend for testing might have had other explanations. Counsel noted that many offenders lead fairly chaotic lives, and find managing their commitments even more difficult than the rest of us do. He is of course correct, but in my experience such offenders are generally more than willing to provide such explanations as are available about the impact of that chaos. It is also clear that Mr Mazeika himself is willing to provide explanations when such are available; the final delay in his Magistrates Court sentencing occurred because Mr Mazeika simply did not return to court after a brief adjournment, instead explaining via his counsel that his young son had been admitted to hospital and so Mr Mazeika had gone to the hospital rather than returning to court.

18. However, as indicated, the sentencing Magistrate also had regard to the material in the bail progress report, which had not been challenged by Mr Mazeika, to the effect that Care and Protection officers suspected Mr Mazeika and his partner of continued use of illicit drugs, based not only upon their failure to attend for drug tests as directed but, significantly, based on "their presentation at unannounced home visits".

19. Whether or not his Honour could properly have drawn the inference that any individual failure to attend for drug testing reflected a belief on Mr Mazeika's part that the results would not be clear, I am satisfied that his Honour was entitled to rely on the repeated failures, coupled with the observations of Care and Protection workers, to find that Mr Mazeika's rehabilitation was not complete, and to sentence on that basis.

20. Counsel for Mr Mazeika did not make submissions in relation to the claim that "the imposition of the sentence was against the weight of evidence". Instead, although this was not identified as a specific appeal ground, counsel submitted that his Honour had inappropriately accumulated some of the sentences. In particular, he referred to the accumulation by one month of the two threemonth sentences for the two assaults, noting that the assaults had occurred on the same day and indeed within minutes of each other.

21. The two assaults both involved Mr Mazeika's partner, the mother of Mr Mazeika's son who was at the relevant time seven months old, and also the mother of a sixyearold daughter. Mr Mazeika was annoyed because he wanted his partner to drive him to Queanbeyan where he was due to appear in court on an unrelated matter. However, she had declined to do so because she needed to look after the children, and she had arranged for someone else to drive Mr Mazeika to court. The first assault was described in the police Statement of Facts as follows:

The defendant [Mr Mazeika] grabbed hold of [the the sevenmonthold child] and carried him between his left arm and body, causing him to cry. At that same time, he grabbed [his partner] by her hair with his right hand and dragged her towards her car, causing her to lose control of her movement and at short periods of time, felt suspended in the air held up only by her hair being pulled up by the defendant. [Mr Mazeika's partner] managed to release herself from [Mr Mazeika], however he also held her in his left hand by the throat for about ten to fifteen seconds, which restricted her ability to breath and caused her to feel immediate pain around her throat area.

22. After that incident, there was a struggle for physical possession of the child, and the person who was to drive Mr Mazeika to Queanbeyan arrived. Mr Mazeika's partner's Camry was moved in the driveway and there was some discussion with the alternative driver. Mr Mazeika went into the house. Shortly afterwards, he came out of the house, having had time at least to change his clothes. At that stage his partner was in her car. The second assault is described as follows:

[Mr Mazeika] reached into the car through the window gap with his left arm, unlocked and opened the door and began to punch [his partner] in the head. This was done by holding on to her by her shirt, cocking back his right arm, and punching [his partner] three or four times with a closed fist. [His partner] felt immediate sharp pain to her head each time she was punched, and caused her to feel dizziness. Some time during the altercation, [Mr Mazeika's partner] managed to hold on to [Mr Mazeika's] shirt and rip his buttons off.

[Mr Mazeika's partner] was pushed out of the driver's seat onto the front passenger seat, and then into the front passenger door by [Mr Mazeika], causing her to fall out of the car. [His partner] felt immediate pain in her hands, knees and elbows as she fell to the ground.

23. I reject counsel's submission that these two assaults should have been sentenced as if they were parts of a single incident, and therefore the sentences should have been concurrent. It is clear even from the material I have quoted, which excludes considerable extra detail provided in the police Statement of Facts, that between the first and second incidents Mr Mazeika had time to think about how he had behaved and to attempt to control the continuing anger that apparently led him to assault his partner a second time.

24. Furthermore, I can see no reason why the sentences for these assaults should not have been fully accumulated on the sentence for the earlier and unrelated minor theft, or why the also unrelated drive while disqualified sentences should not have been fully accumulated on the assault sentences. Looking at the matter from another angle, I see no basis at all for saying that the total sentence of 11 months was too much having regard to the overall criminality of Mr Mazeika's behaviour, which suggests that there has been no obvious error in relation to concurrency and accumulation.

25. Accordingly, Mr Mazeika's appeal must be dismissed. I should also say, however, that if I had found error by the sentencing Magistrate I would have felt obliged to offer Mr Mazeika the opportunity to withdraw his appeal, on the basis that any re-sentencing by me might in fact have involved sentences that were more severe than the sentences imposed by his Honour in the Magistrates Court.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.