Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Review of sentence - Principles applicable.

Chadd v Stearns B7/1990; Lahey v Edwards 47/1967; Williscroft v Hibble [2002] TASSC 88; House v R [1936] HCA 40; (1936) 55 CLR 499; Cranssen v R [1936] HCA 42; (1936) 55 CLR 509, referred to.

Judgment Number: [2005] TASSC 57

1 The applicant seeks a review of a sentencing order made by a magistrate at Campbelltown on 21 February 2005.

2 The applicant was charged with three offences, one of common assault, one of trespass and one of injure property. All were offences under the Police Offences Act 1935. She pleaded not guilty and the matter went to hearing. She was unrepresented both at the hearing and for the purpose of sentence. She was found guilty of all three charges. She was sentenced, in respect of the assault, to three months' imprisonment, two of which were suspended; in respect of the trespass to a fine of $350; and in respect of the injure property to a fine of $250. Counsel for the applicant advised that the appeal against sentence was confined to that part of it relating to the assault.

3 At the hearing, the only seriously live issue was the assault. The applicant had effectively admitted in her statement to police on the day of the offences that she had committed the offences of trespass and injure property. She had also admitted that she knocked the complainant off her stool but maintained it was an accident. The learned magistrate found it was deliberate.

4 The particulars of the assault were that the applicant pushed the complainant off her seat with her left arm, knocking her to the ground. The events occurred at the Campbelltown hotel. The applicant had, it appeared, gone there looking to find her partner, Mr Woods. She found him there at the bar with the complainant and another female. She was upset and she said went towards her partner and knocked him off his stool. She asserted that in the process she knocked the complainant off hers accidentally.

5 At the hearing the learned magistrate found that the applicant had forcefully removed the complainant from her stool, that the complainant went to the ground quite hard, and that the stool ended up on top of her. He also found that the applicant was abusive and took steps towards the complainant and her female friend before being asked to leave the hotel, which she did.

6 The learned magistrate also found that the applicant had gone to, and then remained on, the complainant's property the next day after repeatedly being asked to leave and had been abusive and banged on windows, causing one to break. There was evidence the applicant had been drinking before the visit to the complainant's home.

7 After giving his decision, the learned magistrate was given by the prosecutor what was called "quite a lengthy victim impact statement" which he then read out in the presence of the applicant. The document was not what might usually be perceived as a victim impact statement. It was, in fact, a psychologist's report. The opening words were, "Thank you for asking me to assess and prepare a report for your client Ms Meddemmen". In the report the psychologist outlined the lady's history including an injury to her neck she suffered while in the army in 2000 which resulted in her medical discharge. It then canvassed what were asserted to be the physical and psychological effects of the assault the subject of the charge. Very briefly it was the psychologist's opinion that the complainant suffered post traumatic stress as a consequence of the assault.

8 Following the reading of the report by the learned magistrate, the following exchange occurred:

"HIS WORSHIP: Stand up. What do you wish to say, firstly, about the assault and secondly, about the trespass and injuring property?

DEFENDANT: Well, it all boils down to the relationship I had with Keith Wood and his disloyalty towards me and not be truthful with me about his relationships with these two people who he had been going out with and seeing for quite some time.

HIS WORSHIP: No, it doesn't. It all boils down to you being aggressive, selfish -

HIS WORSHIP: - and having no regard to the rights of other people to lead their own life free of interference from some rabid maniac as you behaved. Now, what do you have to say?

DEFENDANT: I'm not a rabid maniac, your Honour, I went through a lot of personal thing myself because of this and I have been under treatment myself for it with Dr Common and the counsellor.

HIS WORSHIP: Were you aware that Pauline Meddermmen had suffered a significant physical injury that I've referred to when I read out the victim impact statement? Were you aware of that before you assaulted her or not?

DEFENDANT: I knew she had a similar neck problem to what I've got, your Honour. That was all I knew.

DEFENDANT: That I'm sorry that it did happen. I'm sorry - I did try and be friends with these people. I'm not a vindictive person, I just don't like being lied to.

DEFENDANT: I have been struggling for a long time without any help from anyone. I mean - I've helped other people and that's about it.

DEFENDANT: I was forced into retirement after having an accident in '89 and spending six months in hospital and two and a half years at Douglas Parker, your Worship."

9 It is quite clear the learned magistrate did not ask the applicant if she accepted that victim impact statement. He did not give her an opportunity to challenge its accuracy.

10 His worship then proceeded to sentence the applicant. The following exchange occurred:

"SENTENCE - HIS WORSHIP: I'll deal firstly with the charges of trespass and injure property. Well, firstly, you are convicted upon the complaint. Secondly, in relation to that trespass when you attended in a rage at an ungodly hour of the morning after making telephone calls prior to that and having regard to your limited means, as I understand them to be, firstly in relation to that charge of trespass, you are fined $350.

Acknowledging that you have acknowledged the claim for damages to the window at $103.97, I allow that claim is by consent. I assess in that sum. And further upon that charge of injuring property you are fined $250. Also, there is a victim compensation levy of $20 upon that charge.

HIS WORSHIP: You will pay the cost of $190.30. You will also pay the victim compensation levy of $20 on the charge of common assault. In relation to that particular charge, I regard that as a bad assault. It was committed by you who claimed also to have had some spinal or cervical injury or neck injury.

HIS WORSHIP: Let me finish speaking without interruption. You would be aware - that you would not wish to be assaulted with a pre-existing neck injury that you suffered and yet you were prepared to visit an assault of this person whom you knew to have suffered an injury similar, as I understand it, to yours. At least you knew her to be vulnerable in that sense and the victim impact statement I have indicates that she is a person who is struggling with the consequences of your assault upon her. You have no previous convictions for assault although you do have convictions for - where obviously alcohol has got you into trouble and that was probably the case here. In regard to that matter you are convicted and sentenced to a terms [sic] of three months imprisonment. I suspend the execution of two months of that term upon the condition that you be of good behaviour, that to be for two years following upon your release. I will also grant time to pay following upon your release. How much is involved, Mr Amos?

MR AMOS: Nine hundred and thirty four twenty seven.

HIS WORSHIP: How long do you need to pay $934 once you are released.

HIS WORSHIP: I'll give you twelve months from release with liberty to make application for further time to pay should it be impossible.

DEFENDANT: When am I supposed to go to this gaol, your Worship?

HIS WORSHIP: You go now. Take her into custody, please.

DEFENDANT: Excuse me, your Worship, I've got a cat and a dog at home. I haven't got anyone to look after them.

HIS WORSHIP: I can't deal with that. You're in custody now."

* The applicant was 55 years old. She had no convictions for any offences involving violence or damage to property. She had been dealt with by the courts for drink driving in 1991 and 1996 and for driving while disqualified in 1997. The only other entries on her record were 2 speeding tickets, the last of which was five years ago. She had never served a term of imprisonment or indeed had any harsher penalty than a fine and disqualification.

* The applicant had demonstrated remorse, notwithstanding her plea of not guilty, in that she had said she was sorry and tried to give an explanation.

* There was no evidence the assault was premeditated or designed to inflict injury. The events occurred during a moment of anger and it was not a sustained assault. The events arose out of the applicant's emotional response to a situation at the time and when she may have been affected by alcohol.

* The consequences of the assault according to the psychologist's report were somewhat unusual given the nature of the assault and the circumstances in which it occurred.

* The applicant was nervous at the hearing and unfamiliar with court processes.

* The learned magistrate made little effort to explore mitigatory factors and gave little weight to those he did identify.

12 Counsel submitted that the circumstances of the matter did not warrant imprisonment. She submitted that:

* imprisonment should only be considered where no other option was appropriate;

* the learned magistrate did not appear to give any consideration to any other option; and

* an immediate custodial sentence should not automatically be imposed for an assault.

* Recent decisions suggested that the penalty in this case was harsh. However the penalty was open to the learned magistrate.

* The principal motive for the sentence was that the applicant knew the complainant had a pre-existing injury to her neck.

* The pre-existing neck injury turned this assault from a mild to a serious one in the magistrates view.

* It can be inferred the learned magistrate gave some weight to mitigatory factors and rehabilitation by suspending the last 2 months of the applicant's sentence.

* It had to be conceded that it was most unusual for a first offender to be sent to gaol, but in the case of a serious assault it may be appropriate.

14 In summary, while counsel for the State conceded the sentence might be on the high side, he submitted that it was not such as to demonstrate error on the part of the learned magistrate such as to warrant interference by an appellate court.

15 Both counsel referred to a number of authorities. In Chadd v Stearns B7/1990 Crawford J quoted from Lahey v Edwards 47/1967, a decision of Burbury CJ, at 4:

"There is no doubt a good deal of attraction in the idea of adopting a sentencing policy or standard tariff in the case of offences frequently coming before a Court. But the principle of individualisation of punishment is now firmly established - even if we do not completely accept the aphorism that a modern Court punishes the criminal and not the crime. The notion that prima facie common assault should be punished by a gaol sentence unless there are special circumstances must be wholly rejected. There is no burden of persuasion cast on an offender to establish special circumstances. It is for the sentencing tribunal to weigh all the varying factors relating to the circumstances of the particular offence and the individual who commits it and to exercise a judicial discretion. It all comes down to the simple proposition that the choice of the appropriate punishment is not a matter of rule - it is a matter of wide discretion."

16 In Williscroft v Hibble [2002] TASSC 88 Crawford J said at [16]:

"A sentence of actual imprisonment should be a sentence of last resort, particularly for a first offender, and one to be imposed only where an alternative punishment is inappropriate."

17 In the present case the applicant had never been to prison before and had no history of any violence or destruction of property. She was 55 years old. The assault was not a sustained one, an act of one push, and was clearly committed in circumstances where she was upset at what she perceived to be disloyalty by her partner involving the women he was with. It was committed in a public bar and there was no suggestion, for example, that the applicant had to be dragged away to prevent further harm or threats. She left when told to by hotel staff.

18 The learned magistrate quite clearly placed significant weight on the psychologist's report and his characterisation of the applicant as a rabid maniac, a characterisation which it is arguable was not open to him on the evidence. In focussing on those factors he has not had due regard to all other factors relevant to sentencing. He did not give any obvious consideration to an alternative penalty. Either probation or community service would have required him to obtain a pre-sentence report and none was obtained.

19 At the hearing of this matter I commented that had I been sentencing the applicant I would not have imposed the sentence here imposed. However, that is not the approach an appellate court must take. A magistrate has a very wide discretion. This Court must not interfere with the exercise of that discretion unless there is clear error. The error may be implied from the nature of the sentence itself. It is not sufficient to show that a lighter sentence might have been imposed by another magistrate or court. The Court must be satisfied that the sentence was manifestly wrong in its severity so as to amount to a clear error in the sentencing process. An appellate court should not interfere unless it is satisfied as to that. See House v R [1936] HCA 40; (1936) 55 CLR 499; Cranssen v R [1936] HCA 42; (1936) 55 CLR 509.

20 Having regard to the matters I have identified, I am satisfied that the learned magistrate erred in the exercise of his sentencing discretion by placing undue weight on some factors, insufficient weight on others, and not giving consideration, despite his characterisation of both the assault and the applicant, to an alternative sentence to imprisonment.

21 I am also satisfied that he erred to such a degree that there was clear error in the imposition of a sentence which was manifestly excessive having regard to all the circumstances of the case. The notice to review is therefore upheld.

22 Having heard from counsel to the effect that they wished the matter to be finalised, pursuant to the Justices Act 1959, s110(2)(b), the sentence of the learned magistrate insofar as it related to the assault will be varied. The applicant will be sentenced to a period of one month's imprisonment only and it is noted she has already served that time.