The application of s 7(f) and other like orders is not reserved for offences at the more trivial end of the sentencing scale: R v Brown, per Macrossan CJ at 185. Even inherently serious offences may attract a sentencing order which does not involve recording a conviction: Collins v Caccavo[2015] TASSC 53, per Estcourt J at [21].
The "nature of the offence" allows consideration of general matters, such as the purpose of the legislation, the social harm caused by family violence addressed by the Family Violence Act, and the need for general deterrence in order to protect others from family violence offences. The protective purpose of the Act is evident from its terms, such as the long title and the objects provision in s 3. In matters of sentencing, it is clear that the court's role is protective, and deterrence, both specific and general, are important considerations: Tennent J in Maingay v Seabourne[2009] TASSC 67 at [23].
In this case, there were circumstances which can be said to be extenuating and which weigh in favour of not recording a conviction, and some which weigh against. The respondent's conduct did not involve violence, threats of violence, aggression or antagonistic behaviour. The offences were confined to breaches of conditions precluding contacting and approaching the complainant. They were committed with the compliance and agreement of the complainant. Of course, that is no justification for the breaches. However, it is a point of distinction with other offenders where there is no complicity and the offender knows that the contact made with the complainant is contrary to the wishes of the complainant. Weighing against leniency and the order made, was that the respondent consciously placed himself in proximity to the complainant when he was aware of the order and its terms. Nonetheless, the respondent's offences cannot be characterised as serious examples.
Another matter is the repeated nature of his offending. To repeat the offence, as he did, increases the overall culpability of his offending. The commission of six breaches is a matter which points towards the need for a sanction carrying some deterrent effect.
The Chief Magistrate characterised the respondent as being, quite deliberately, in breach of the order. As a characterisation, it accords with his findings in general, but it may be worth noting that there is an exception with respect to the second offence. The second offence referred to above, involving the respondent's conduct in leaving a letter so that the complainant could read it if she chose to, was evidently committed in the belief that the conduct did not breach the police family violence order. Ultimately, the court rejected the argument, but the respondent's belief bears on an assessment of his culpability with respect to that offence. In addressing whether the respondent's conduct with respect to the third and fifth offences amounted to approaching the complainant, his Honour found that the respondent consciously placed himself in proximity to the complainant while he was aware of the order that was in place at the particular time.
The second matter the sentencing court must take into account, pursuant to s 9(b) of the Sentencing Act, is "the offender's antecedents and character". In terms of antecedents, at the time of sentencing, the respondent was not someone who had committed and been dealt with by the court for a similar or relevant offence. He was a first offender. Nonetheless, the two offences committed in the same time period were matters that the court could properly take into account. In Woods v Wood[1991] TASSC 24, Green CJ considered the approach to be taken in sentencing for an offence that occurred prior to a subsequent sentencing order for subsequent conduct:
[2]
"An offence committed after the offence for which a defendant is being sentenced cannot be regarded as aggravating the seriousness of the original offence and cannot justify the imposition of a heavier sentence than the original offence would have merited. However that does not mean that a subsequent offence is wholly irrelevant. As King CJ observed in The Queen v McInerney(1986) 42 SASR 111 at pp 111 and 112:
[3]
'There is no rule of law which precludes a sentencing court from taking into account in an appropriate way and for appropriate purposes offences in respect of which there has been a conviction between the time of the offence for which sentence is being imposed and the time of sentence, whether those offences have been committed before or after the current offence.'
[4]
In particular there is no rule of law or policy consideration which precludes a sentencing court from regarding an offence committed after the offence for which sentence is being imposed as simply one aspect of the behaviour and attitude of the defendant to which it is well established a sentencing court may have regard right up to the day upon which sentence is imposed. As Cox J observed in The Queen v McInerney (supra) at p 123:
[5]
'If it is relevant - as it is - that the defendant has led an exemplary life in the meantime, it must also be relevant to show that he has continued in the interval to live in a lawless way. In other words, the sentencing judge may have regard, within the limits of practicability, to all of the defendant's behaviour, favourable or unfavourable, prior to sentence.'
[6]
One of the 'appropriate purposes' for which a defendant's subsequent behaviour - including the commission of a subsequent offence - may be taken into account is to assist the court in its determination of what kind of sentence will be most likely to modify the defendant's behaviour or deter him from re-offending."
[7]
In light of that guidance, the following is noted. In this case, the six offences under review were not the only breaches that the respondent had committed, and in the same time frame there were two others committed of a similar kind. The plea in mitigation before the Chief Magistrate drew attention to the effect of the sentencing order on 6 May 2013 and that, since then, there had been no further contact between the respondent and the complainant. Since he was sentenced on 6 May 2013 for the two other offences, there have been no further offences committed by the respondent, and the sentence imposed by the court pursuant to s 7(f), requiring his good behaviour, had been complied with and proved to be an effective deterrent.
Relevant to the matter of the respondent's antecedents and character is whether, as contended by the applicant, the fact that the respondent was a legal practitioner added to the seriousness of the matter. The Chief Magistrate declined to take into account that in a "legal sense" the respondent, as a legal practitioner "should have known better". It is noteworthy that it is not asserted on review that the Chief Magistrate erred in this regard. In my view, the respondent was not to be sentenced more heavily than others merely by virtue of the fact that he was a legal practitioner. His professional status was not an aggravating factor. However, a factor bearing on his culpability is that he was equipped with certain knowledge. It is his knowledge which was significant and that he understood the imperative of complying with the orders. Undoubtedly, he knew that the complainant's acquiescence did not excuse his breaching the orders. He would have been well aware, as the Chief Magistrate observed, that he could apply to the court to vary or revoke the orders.
Finally, under s 9, the sentencing court was required to take into account the impact that a conviction would have on the offender's economic or social well-being or employment prospects. A submission was not made to the Chief Magistrate as to the impact of a conviction in this regard. Equally, this is not a case where it was pointed out by the prosecution that there were public interest considerations weighing in favour of convictions being recorded. It may be noted that if his offending fell to be considered in the context of any disciplinary proceedings under the Legal Profession Act2007, a possibility alluded to during submissions, a conviction under that Act is defined broadly to encompass a finding of guilt, "whether or not a conviction is recorded": s 11. Mr Richardson submitted that as a matter of reality prior convictions provided to the court for sentencing purposes always include orders made without conviction. It seems that there are no pressing public interest concerns in having an official record made of his offending.
In terms of the circumstances of the case generally, there were other matters to be considered. A mitigating factor is that the matter had attracted significant publicity and that the respondent had, to a degree, already felt the consequences of his offending behaviour.
Another matter is the principle of totality, which meant that the court was to have regard to the earlier sentence imposed on 6 May 2013, and consider the combined effect of that sentence with the sentence to be imposed. The court should ensure that the aggregate of the two sentences is a just and appropriate measure of the total criminality involved: Postiglione v The Queen[1997] HCA 26; (1997) 189 CLR 295, per Dawson and Gaudron JJ at 304, per McHugh J at 307-308. It was submitted by the respondent, before the Chief Magistrate, that if he had been dealt with for all eight offences at the same time, he may have received no greater penalty than that which he received on 6 May 2013. This submission alludes to the totality principle. An enquiry as to the adequacy of the recent sentence should take into account the earlier sentence imposed for offending that occurred in the same time frame. It is noteworthy that he had been subject to an order for 12 months, and after that order had expired, he was subject to a further order in the same terms for a period of another 12 months. Further, as noted, the second order had been complied with and there had been no further offending.
[8]
I return to the issue raised by this motion to review, whether the sentence was manifestly inadequate. If it was, the question is then, is this one of those rare and exceptional cases where a Crown appeal should succeed and this Court should intervene?
On one hand, the offending was not trivial or minor. I expect very few breaches of orders made under the Family Violence Act could be so characterised. The fact that there had been six breaches indicated there was some need for personal deterrence and the imposition of a sanction which contained some punitive consequence. The breaches were largely deliberately committed when the respondent had knowledge of the legal options he had available to him. On the other hand, and focussing on the marker of harm caused by the offending, relatively speaking, this case was much less serious than other examples of offences contrary to s 35(1) of the Family Violence Act. The offences did not involve any violence, threats of violence, aggression or antagonism. The complicity of the complainant, in relation to the breaches, has particular relevance in this context.
The weight to be given to each of the various factors was a matter for the court's discretion. A matter that the sentencing magistrate could properly attach some significance to, as he did, was that the respondent had been dealt with 14 months before for two offences in the same time period and arising from the same course of conduct, and he had not reoffended since. The sentence imposed on that earlier date had been effective and it had been shown, that for this respondent, at the time of sentencing, there was not a necessity for a sentence of specific deterrence. The sentence under review carried consequences for the respondent, resulting in a state of jeopardy for the respondent for a period of 12 months, and the risk of resentencing if he failed to comply with his undertaking.
The nature of the offending was not the kind of offending which, as a matter of necessity, demanded a heavier or more punitive response. I conclude that, having regard to the circumstances of this case, there was sufficient justification for the leniency extended to the respondent. It has not been shown that the sentencing order was manifestly wrong. Moreover, in my view, the sentence falls well short of the high threshold for intervention with respect to Crown appeals.
As a consequence of this conclusion, the argument for the respondent that I should not uphold the appeal having regard to the position taken by the prosecution at the sentencing hearing, does not need to be considered. This factor has a bearing on the exercise of an appeal court's residual discretion regarding Crown appeals which is only triggered if intervention is warranted. I do not have the benefit of submissions from the applicant on this matter, and the respondent's submissions did not advert to a relevant provision in the Sentencing Act,s 80. See Director of Public Prosecutions v Chatters, at [64]-[65]. In the circumstances, it is inappropriate and unnecessary for me to consider the exercise of a residual discretion to reject Crown appeals.
The motion to review should be dismissed as the sentence is not manifestly inadequate.
This appeal asserts that the sentence was manifestly inadequate. The sentence is said to be so inadequate that error can be inferred. In order for this appeal ground to succeed, it must be shown that the sentence is plainly inadequate, notwithstanding that a magistrate is vested with a very wide discretion. To set aside a sentencing order on this ground, the Court reviewing the sentence must be satisfied that the sentence was so "manifestly wrong in its inadequacy, as to amount to a clear error in the sentencing process": Visser v Smart[1998] TASSC 151 per Crawford J (as he then was) at [5].
There is further principle constraining the prospects of this appeal succeeding. As a Crown appeal, special considerations apply. There are well-settled principles that Crown appeals are less readily allowed than defence appeals against sentence. For summaries of the principles see R v Allpass(1993) 72 A Crim R 561 at 562-563 and R v Clarke[1996] VicRp 83; [1996] 2 VR 520 at 522, approved by the High Court in Lowndes v The Queen[1999] HCA 29; (1999) 195 CLR 665 at 671, and also Director of Public Prosecutions v Chatters[2011] TASCCA 8; (2011) 21 Tas R 26. The principles are tied to concerns about unfairness and that the appeal process exposes the offender to an element of double jeopardy. The principles operate so that such appeals should be a rarity (Griffiths[1977] HCA 44; (1977) 137 CLR 293 at 310; Everett v The Queen[1994] HCA 49; (1994) 181 CLR 295 at 299; ; at 234), there is a higher threshold test for error, and the Crown needs to demonstrate very clearly the error of which it complains: ; at . Additionally, it is recognised that an appeal court has a "residual discretion" to dismiss a Crown appeal, even if the sentence is determined to be manifestly inadequate. In this regard, the conduct of the Crown at the original sentencing proceedings may be a matter of significance ( at 562-563). Relevant to the submissions made by the respondent in this case, it is established that if the Crown acquiesces in the order, knowing what sentence was intended, that may be a basis for the court to decline to intervene: . Further, the principles apply so that, in the event of a successful appeal, the appeal court in resentencing ordinarily imposes a substituted sentence that is somewhat less than the sentence it considers should have been imposed at first instance: at 562-563. The appeal court may have regard to facts and events as at the time of resentencing, such as anxiety and stress experienced by the offender resulting from the appeal and having to be sentenced a second time. It can be seen that the principles operate at two different stages of the appeal process. Firstly, as to whether the appeal court should intervene, and secondly, at the stage of resentencing in the event of intervention. The principles regarding Crown appeals apply to motions to review, ; , at [27], and (supra), absent legislative inroads.
The effect of the amendment was considered by Pearce J in Lyons v Bakes[2015] TASSC 37. His Honour made reference to the Criminal Code, s 402(4A) (concerned with sentencing appeals heard by the Court of Criminal Appeal) in the form considered in Director of Public Prosecutions v Chatters. In that case, the Court of Criminal Appeal considered that provision and determined that the double jeopardy principle has no operation to the detection of error in Crown appeals. His Honour, at [16], noted that the provision in the Justices Act was in different terms to that considered in Director of Public Prosecutions v Chatters. His Honour expressed the view that the provision does not expressly extend to the issue of whether an appeal should be allowed or dismissed. Pearce J stated that s 110(2AA) does not prohibit a court from taking account of double jeopardy-type considerations in a decision whether to allow or reject an appeal. As for s 110(2AB), his Honour stated that "the terms of the restriction on taking into account 'any element of double jeopardy' have no application other than where a person is being 'sentenced again'". His Honour went on to consider the impact of the provision with respect to resentencing.
I respectfully agree with the analysis by Pearce J and his conclusion that the provision in the Justices Act does not restrain the court from taking into account double jeopardy principles in deciding whether to allow an appeal. It is clear the terms of the section are confined to resentencing. At the hearing of this review, counsel for the applicant did not submit to the contrary. In fact, the written submissions for the applicant acknowledged a distinction between defence and Crown appeals, and cited the analysis of Pearce J in an earlier decision of Cannell v Hughes(2014) 67 MVR 532. In that case, Pearce J expressed similar reasons to those he later expressed in without deciding the point.
"24 ... The offender would be entitled to assert, even on oath or statutory declaration, that he or she had no previous conviction, or to expressly deny having been convicted of the relevant offence, and could not later be charged with perjury. As was pointed out in R v Briese, ex parte Attorney-General[1997] QCA 10; [1998] 1 Qd R 487 at 491, a failure to record a conviction is capable of considerable effect in the community. Persons who might have an interest in knowing the truth in such matters include potential employers, insurers and various government departments including the Immigration Department. Under the Firearms Act1996, the offender would not be absolutely disqualified by s29(3)(a) from obtaining a licence because he would not come within the category of a person who 'within the period of 5 years before the application was made, has been convicted in Tasmania or elsewhere of any crime involving violence to another person'.
25 In R v Brow_n, ex parte Attorney-General_ [1993] QCA 271; [1994] 2 Qd R 182 at 194, it was noted that the recording of a conviction is in itself an element of punishment of the offender and may encourage him or her not to engage in further criminal activity and conceivably it could act as some deterrence to others if it becomes known.
There has been relatively recent amendment to the Justices Act1959 affecting the application of the common law principles to motions to review. On 1 September 2013, an amendment was made to add ss 110(2AA) and (2AB):
Lyons v Bakes,
The question is then, is the sentence manifestly inadequate by reason of the failure of the Chief Magistrate to record a conviction, and is this a rare set of circumstances where a Crown appeal should succeed?
I think it is useful to begin a consideration of this question by considering the effect of the sentencing order that was made pursuant to s 7(f) of the Sentencing Act. Section 7(f) makes provision for the order: