Saddler v Pavicic [2011] ACTSC 199

Charge 1 A fine of $1,000.00 with court costs of $63.00 and criminal injuries compensation levy of $50.00;

Charge 2 A fine of $1,500.00 with court costs of $63.00 and criminal injuries compensation levy of $50.00.

3. The appellant, who was the informant in the proceedings before the learned Magistrate, now appeals against the sentences imposed by the learned Magistrate. The grounds of the appeal are that:

(a) The sentences imposed were manifestly inadequate.

(b) His Honour erred in failing to give sufficient weight to deterrence and punishment in relation to the respondent.

(c) His Honour erred in failing to give sufficient weight to the objective seriousness of the crimes.

(d) His Honour erred in failing to give sufficient weight to the harm done to both the victim of the crime and the community.

4. The hearing of this appeal is made more difficult by the failure of the learned Magistrate to make clear findings of fact in the course of him finding the offences against the respondent proved. Judges of this Court should not be required to sift through the evidence on appeal in order to try to piece together the facts most likely to have been accepted by the learned Magistrate.

5. It appears that the offence of assault occasioning actual bodily harm arose out of an argument between the respondent and his mother, the complainant, with respect to that charge. The argument was in relation to a request by the respondent that his mother move her car from the driveway of the premises they shared. The argument degenerated into pushing and shoving between the respondent and the complainant. This culminated in the respondent grabbing the complainant by the neck and pushing her, causing her to fall down. This resulted in a fracture to the wrist of the complainant. This constituted the allegation with respect to the charge of assault occasioning actual bodily harm.

6. After being released from hospital on 28 April 2010 Mrs Pavicic returned to her home. Later that afternoon she was visited by Graeme Mason and his four children. Those children were aged between six and 14 years. During the course of that visit Mr Mason heard an engine revving in the backyard of Mrs Pavicic's house. He looked out the window and saw the respondent holding a chainsaw, which he was revving loudly. The respondent said to Mr Mason: "You fucking Australian cunt, come out here, I am going to cut you, like this". This caused Mr Mason to be concerned for his safety and that of his children. The respondent approached the house with the chainsaw and attempted to enter the backdoor. He was frustrated in this endeavour by Mr Mason, who jammed the door shut with his foot. The respondent then shut off the chainsaw, picked up a fish gaff and swung it above his head. Police were called but the respondent had left the premises before they had arrived.

7. After finding the offences against the respondent proved, his Honour received a copy of the respondent's prior criminal history. In addition to numerous traffic offences, that history revealed that the respondent had been convicted of two offences of assault in 2001, resulting in a suspended term of imprisonment, offences of assault, contravention of protection order and damaging property in 2005, resulting in further suspended terms of imprisonment, and seven offences of using a carriage service to menace, harass or offend in 2005, resulting in the imposition of fines. The respondent breached a good behaviour order imposed as part of a suspended sentence for an offence of assault in February 2005, and in October 2005 that breach was admitted and the respondent was sentenced to 70 days imprisonment.

8. In the course of very brief sentencing comments, the learned Magistrate expressed the view that the facts in the offence of assault occasioning actual bodily harm revealed an offence that was not at the upper end of offences of that nature. After then somewhat inconsistently expressing the view that causing injury to your mother "is always at the serious end" he recorded a conviction and fined the respondent $1,000.00 with court costs of $63.00 and criminal injuries compensation levy of $50.00. He gave the respondent 28 days to pay.

9. With respect to the charge of assault on Graeme Mason, the learned Magistrate's sentencing comments were also particularly brief. He referred to the offence as an unprovoked assault committed out of "sheer perfidy (sic)". The learned Magistrate recorded a conviction and imposed a fine of $1,500.00 with court costs of $63.00 and criminal injuries compensation levy of $50.00. He gave the respondent two months in which to pay those amounts.

10. This is a Crown appeal and as such is subject to the particular principles governing such appeals. Those principles were summarised by Charles JA in R v Clarke [1996] VICSC 30; [1996] 2 VR 520:

"The relevant rules may be stated in the following propositions:

1. An appeal by the Crown should be brought only in "the rare and exceptional case" to establish some point of principle. The reason is that such appeals "represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy".
2. Occasions may arise for the brining of a Crown appeal: (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle; (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons; (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience; (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing;
3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact.
4. When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at the first instance). (notes omitted)

The Charge of Assault Occasioning Actual Bodily Harm

11. With respect to the charge of assault occasioning actual bodily harm, the appellant submits that the offence sits at the higher end of objective seriousness for that type of offence for the following reasons:

1. the fact that the offence was a family violence offence;
2. the offence caused a fracture of the victim's wrist; and
3. the offence was unprovoked.

12. It is clear that this was a domestic violence offence. The complainant in the matter was the respondent's mother. Documents from the Canberra Hospital which were tendered in the proceedings before the learned Magistrate suggest that she was born on 21 June 1949, meaning that she was 60 years old at the time of this offence. The respondent was apparently 31 years old. It is now well settled that offences of domestic violence must be treated seriously, and frequently display aggravating features not present in offences occurring outside a domestic relationship. The only reason the respondent was in a position to commit the offence on his mother was because of that relationship. As such, the offence involved a serious breach of the trust reposed in the respondent as a son by his mother. Additionally, the age of the complainant was an aggravating circumstance attending the commission of the offence.

13. Certainly, the fact that the respondent's assault on his mother caused her to sustain a fractured wrist is relevant to determining the objective seriousness of the offence. The fact that a fracture occurs, rather than the infliction of soft tissue injuries such as bruising, would usually indicate that the particular offence of assault occasioning actual bodily harm is at least in the mid range of such offences. In this case, the act by the respondent constituting the assault on the complainant, a push, is not amongst the more serious acts of assault giving rise to culpability for assault occasioning actual bodily harm. In this case, a relatively minor act of assault by the respondent had significant consequences when the complainant fell and fractured her wrist. However, in measuring the culpability of the respondent with respect to this offence, it is fair to observe that a fall by the complainant upon being pushed was foreseeable, and that it is well known that older people not infrequently sustain fractures in the course of falls. Whilst the fracture of the complainant's wrist may have been unintended, it could not be described as a freak injury.

14. The evidence does not support the appellant's submission that the offence of assault occasioning actual bodily harm was unprovoked. The complainant gave evidence that during the course of her argument with the respondent she swore at him, hit him with either a stick or a rake, and punched him. Whilst the learned Magistrate makes no reference to these matters in his sentencing remarks, it is difficult to see how he could have rejected the complainant's evidence regarding these events. As such, I accept that the respondent was subjected to a degree of provocation by the complainant leading up to the offence of assault occasioning actual bodily harm.

15. The respondent was entitled to no leniency in sentencing on the basis of his prior criminal history. Nor was he entitled to any leniency based on his plea. The sentence imposed by the learned Magistrate gives little, if any, weight to the requirements of specific and general deterrence, nor does it reflect the objective seriousness of the offence, even taking into account the provocation offered by the complainant. The sentence is manifestly inadequate, and a term of imprisonment should have been imposed. Having said that, such a sentence need not have involved full time detention. In my opinion, if the respondent had been found suitable to serve a term of imprisonment by periodic detention, such a sentence would have been appropriate. Bearing in mind the principles relevant to Crown appeals, something less than that should now be imposed. A suspended sentence of seven months imprisonment is appropriate.

16. With respect to the charge of common assault committed on 28 April 2010, the appellant also submits that the offence is at the higher end of objective seriousness for that type of offence for the following reasons:

1. the fact that the complainant's children were in the house at the time; and
2. the use of a chainsaw, which was running, and a fish gaff to threaten the complainant.

17. It must be accepted that the presence of the complainant's children in the house at the time the respondent committed the offence is a significant aggravating circumstance. The respondent submits that there is no evidence that he knew the complainant's children were in the house. However, there is no evidence that the respondent took any steps to ascertain who was in the house before he committed the offence. The fact of the presence of children is in itself a circumstance of aggravation. If the evidence established that the respondent knew they were there, that would have been a further circumstance of aggravation. The brandishing of a weapon, such as an operating chainsaw, so as to create in the mind of the victim an apprehension of immediate physical harm is an offence which is towards the upper end of offences of common assault not involving an actual battery.

18. The sentence imposed by the learned Magistrate was manifestly inadequate. The respondent was entitled to no leniency based on his criminal history or his plea. The sentence imposed is inadequate to reflect the requirements of specific and general deterrence. A term of imprisonment was the appropriate sentence, although, in common with the charge of assault occasioning actual bodily harm, that sentence could have been served by way of periodic detention if the respondent had been assessed and found suitable for such a disposition. For the same reasons outlined above with respect to the charge of assault occasioning actual bodily harm, I will now impose a suspended sentence of four months imprisonment together with a limited good behaviour order.

19. The appeals are upheld. The convictions imposed by the learned Magistrate are confirmed. The sentences imposed by the learned Magistrate are set aside and the following sentences are substituted:

1. for charge CC 3948 of 2010, you are sentenced to seven months imprisonment, the operation of which is suspended. There will be a good behaviour order for 18 months commencing on 9 December 2011 with the following conditions:
   1. that you accept the supervision of ACT Corrective Services and obey all reasonable directions of officers of that service, and
   2. that you undertake and complete such assessments, counselling and programs as directed by officers of ACT Corrective Services.
2. for charge CC 5811 of 2010, you are sentenced to four months imprisonment, the operation of which is suspended. There will be a good behaviour order for a period of 12 months commencing on 9 December 2011 which is confined to the core conditions only.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: ACT Director of Public Prosecutions