R v Verdins [2007] VSCA 102

Allen v Kerr [2009] TASSC 10

James v Turner [2006] TASSC 54

Maney v White [2007] TASSC 7

Mrgic v Judges [2021] TASSC 14

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282

Watson v Woodgate [2025] TASSC 26

Judgment Number: [2026] TASSC 4

DANIEL STEPHEN LUKE SCHOO v ACTING SERGEANT NATALIE CLARK

1. On 11 August 2025, the applicant pleaded guilty before Magistrate Brown to two counts of common assault. The magistrate recorded a conviction on both counts and imposed a global sentence of twelve weeks' imprisonment, six of which was suspended for a period of 18 months. The applicant now seeks a review of the sentence. There are two grounds. The first is that the magistrate imposed a term of actual imprisonment without having previously identified that he was contemplating such a course. Secondly, the applicant asserts that the sentence is manifestly excessive.
2. The prosecution facts outlined the events comprising the offences, and the applicant's counsel explained the background to the relationship. Neither party disputed what had been said by the other, and the combined factual basis was accepted by the magistrate. This was despite the applicant claiming that due to intoxication, he could not recall all of the relevant events.
3. The applicant and the complainant had come to know each other when the complainant was residing in another unit in the same community housing complex. The complainant had become homeless when the management of the complex evicted her from her unit for undisclosed reasons. In an effort to assist her, the applicant had invited her to stay with him temporarily. However, problems quickly developed, and he asked her to leave but she refused to do so. In the days leading up to the commission of the offences, the applicant discovered that a large sum had been removed from his bank account. He believed that the complainant had taken the money.
4. Earlier on the day of the offences, which was 20 May 2025, the applicant began removing the complainant's belongings from his property. However, in an apparent effort to resolve their differences, she suggested that they share a drink. They started to drink together in the applicant's unit at approximately 5 pm. Although the applicant does not normally drink alcohol, he agreed to do so and in the hours that followed, became very intoxicated. The undisputed allegation is that he consumed approximately 29 standard drinks prior to the commission of the offences.
5. The two assaults occurred consecutively and within a short time. The magistrate rejected a defence submission that the second offence should be subsumed within the first, but did acknowledge that they could be considered to be a single episode "albeit in two parts". The episode commenced when the applicant started to verbally abuse the complainant. She attempted to leave, but the applicant grabbed her to the shoulders, pushed her on to a couch and told her that she was not going anywhere. He then grabbed her by the throat. She was unable to breath but did not loose consciousness. He then pulled her from the couch on to the floor, kicked her once to the face, and then punched her to the face. This was count one. Count two occurred immediately after. The applicant grabbed the complainant by her wrist, twisted her arm and then punched her to the torso. The complainant begged the applicant to allow her to leave, which he eventually did. She telephoned police who attended the premises and arrested the applicant. During an interview at the police station, he denied the allegations.
6. In her plea in mitigation, the applicant's counsel informed the magistrate of his personal circumstances. The applicant is a single man who was then 42 years of age, with a 19 year old daughter. He has no prior convictions whatsoever. He was in receipt of a disability support pension related to his autism. The magistrate was not provided with any further information about this condition and it was not suggested that it was causally related to, nor otherwise relevant to sentence, in the manner explained in R v Verdins [2007] VSCA 102. The magistrate was told that the applicant had had a difficult childhood and had effectively been forced to leave the family home when he was 14 years of age. He had, however, completed grade 10 and then a diploma in information technology. Although currently on a disability pension, he had held gainful employment in the past including as a political organiser. The magistrate was told that he had prospective employment in political work. The submission was made that a national police clearance would be a condition of such employment. His counsel submitted that a conviction should not be recorded, particularly having regard to the impact that a conviction would have on the applicant's employment prospects. It was submitted that he was a person of prior good character, that the criminal conduct was out of character and that this was also relevant to not recording a conviction. Counsel provided the magistrate with a letter from the applicant's grandmother confirming her shock and disbelief at his conduct.
7. Apart from making the submission that a conviction should not be recorded, the applicant's counsel made no other submission concerning the appropriate sentence or the alternatives available to the magistrate. The magistrate did not interrupt or make any comment at all during these submissions. At the conclusion of the submissions, his Honour adjourned for a short time and then returned and handed down the sentence.
8. In his sentencing comments, the magistrate accurately summarised what he had been told about the facts and the applicant's personal circumstances. He accepted that the applicant acted out of character in committing these offences and was "not a habitually violent person". His Honour acknowledged that recording a conviction would impact the applicant's employment prospects but noted that this was only one consideration in determining sentence. In respect of the offending, the magistrate commented that he regarded the assaults as "very serious". He noted that they involved significant and sustained violence by a man upon a woman. This included "grabbing her by the throat to the point that she had difficulty breathing", which his Honour noted "had the potential to cause enormous harm". His Honour noted that although the applicant's actions could be explained by intoxication, that fact did not provide mitigation. The magistrate explained his determination of the sentence as follows:

"I have formed the view that these matters when viewed in the broad are worthy of a term of imprisonment, however I have reached the view in all the circumstances that a significant portion of that term of imprisonment will be suspended on the basis that your prospects for reformation must be considered to be relatively good, bearing in mind that you're 42 years of age and you come before the Court without ever having behaved in this utterly deplorable fashion before."

1. The submission that underpins ground 1 is that the magistrate denied the applicant procedural fairness by imposing an actual term of imprisonment without informing him or his counsel that such a course was under contemplation. Such a proposition is said to be supported by comments made by the New South Wales Court of Appeal in Parker v Director of Public Prosecutions (1992) 28 NSWLR 282. Although that case clearly related to the prospect of an appeal court imposing or increasing a custodial sentence as an outcome of the appeal, the principle has been applied in cases where imprisonment has been imposed without such notice in first instance sentencing by a magistrate. See James v Turner [2006] TASSC 54, Maney v White [2007] TASSC 7.
2. In Allen v Kerr [2009] TASSC 10, Porter J explained that although there can be cases when a sentencer should give such notice, the principle is not rigid and its application will depend on the circumstances of the case. His Honour said "there must be something in the case which makes it unfair if the relevant matter is not raised" and rejected any suggestion that "there is an invariable rule of universal application that a sentencer who is considering imposing a term of actual imprisonment, ought to expressly raise that issue and to invite submissions". I agree with his Honour's comments. In the usual course, the failure to discuss contemplation of such a course during sentencing proceedings will only result in appellate intervention if it is productive of unfairness or injustice. Some examples of when this might arise is if the defendant is unrepresented or the court requires and wishes to prompt more detailed submissions or information than what has been provided to that point. For example, in James v Turner, the defendant was unrepresented and the magistrate did not enquire nor receive any information concerning "his personal background or employment history, his capacity for work, his income or his financial circumstances". Evans J noted that the magistrate should have made enquiries about these matters and observed that the impact of such information could have affected the decision to impose an actual custodial sentence rather than a different sentencing alternative, such as a suspended sentence. On the other hand, the absence of such a factor has resulted in the argument being rejected in a number of lower court appeals. An example is, in fact, Allen v Kerr. See also decisions of Pearce J in Mrgic v Judges [2021] TASSC 14, Watson v Woodgate [2025] TASSC 26.
3. I am satisfied that there was nothing in this case that would give rise to a finding that procedural unfairness arose from the magistrate's failure to raise with the defence the fact that he was contemplating a sentence of actual imprisonment. As I will explain shortly, the criminal conduct perpetrated by the applicant was patently at a high level of objective seriousness. It was obvious that a term of imprisonment was a real possibility, if not a probability. The applicant was represented by counsel. It was counsel's choice not to address expressly the possibility of imprisonment. Such a choice may have been made for tactical reasons but in any event it was not incumbent on the magistrate to raise that question with counsel. Further, there is nothing about the case which would suggest that had the defence been informed of this, a different approach would have been adopted or more information provided to the magistrate. The magistrate was given comprehensive information concerning the applicant's background. The suggestion that counsel may have made submissions directed at having the magistrate order a pre-sentence report, or consider specific non-custodial sentencing options, does not assist the applicant's argument. There is nothing to suggest that the magistrate was not aware of such options. Indeed, as an experienced magistrate, it can be assumed that his Honour would have been well aware of his alternatives with respect to sentencing. Further, it is not clear what purpose would have been served by a pre-sentence report. Such a report would only have been warranted if there was a need to obtain some further information, or have some assessment made if a non-custodial option was under contemplation. Because the magistrate had adequate information provided by the applicant's counsel and took the view that a sentence of actual imprisonment was appropriate, a pre-sentence report was unnecessary.
4. At this point, I should note that the submissions made on behalf of the applicant in respect of both grounds seemed to introduce a further argument, that is that the magistrate did not consider all relevant sentencing options. If it was possible to establish such a contention, then the failure to consider other alternatives before imposing actual imprisonment would amount to a specific error. However, the assertion of such an error should be the subject of a separate ground. In any event, there is nothing in his Honour's sentencing comments, or otherwise on the record which would establish that he made such an error. The existence of an error of that nature, if it exists, can only be inferred from a sentence which is manifestly excessive.
5. It follows that there is no merit in ground 1.

1. As is well established, this ground can only succeed if the sentence is so severe that it is beyond the ambit of a reasonable exercise of sentencing discretion by the magistrate. If that is established, then I can infer error, albeit that specific error does not appear on the face of the record. The ground will not be made out solely on the basis that I might have imposed a different sentence had I been dealing with the case.
2. In my opinion, the sentence imposed by the learned magistrate was well within his Honour's sentencing discretion. The magistrate correctly concluded that the applicant's criminal conduct displayed a high level of objective seriousness. His attack on the complainant involved violence which was sustained and brutal. The attack on the complainant's throat and the blows to her head whilst she was on the ground, delivered by both punch and kick, were acts of violence which were dangerous and inexcusable. The complainant was in the applicant's home with his consent, and hence vulnerable. While the applicant had reasons to be unhappy with her conduct, that conduct was not proximate to his attack and cannot reasonably be viewed as provoking the assaults. I accept that his conduct was out of character and probably explained by his intoxication but the latter, of course, provides no mitigation. At most, his lack of prior convictions, his apparent remorse demonstrated by his plea of guilty and his otherwise good character, simply meant that specific deterrence was not a significant sentencing consideration. Having said this, the fact that the applicant acted in this way despite his maturity, does tend to lessen the significance of his prior good character.
3. Any form of criminal violence is unacceptable and serious, but violence of this nature is particularly concerning. Although the circumstances of their relationship do not place these acts technically within the definition of family violence, it was perpetrated in the home they had been sharing and in a domestic environment. There is an inherent breach of trust involved in administering violence in such circumstances. The community is correctly concerned about such violence. In my view, the most important sentencing considerations were general deterrence and denunciation. A sentence of actual imprisonment was warranted. The suspension of part of the sentence was unnecessary but did acknowledge the favourable aspects of the applicant's background and personal circumstances.
4. Accordingly, I am of the view that the sentence was well within his Honour's sentencing discretion. Ground 2 is without merit. The motion is dismissed.