Teede v Wright [1999] WASCA 121

Sentencing Act 1995 (WA) s 45, s46

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Butler v Corkhill, unreported; SCt of WA; Library No 940501; 24 August 1994

Chan v R (1989) 38 A Crim R 337

Devries v Australian National Railways Commission (1993) 177 CLR 472

Dimozantos v R (No 2) [1993] HCA 52; (1993) 116 ALR 411

Jones v Hyde (1989) 63 LJR 349

McQuilkin v Clark, unreported; SCt of WA; Library No 920182; 1 April 1992

R v Gray [1977] VicRp 27; [1977] VR 225

R v Harper [1968] 2 QB 108

Regina v Ford [1998] NSWSC 96

1 McKECHNIE J**:** Mr and Mrs Teede separated close to December of 1997. They had worked together at Dale Alcock Homes. Mr Teede was the managing director and Mrs Teede the office administrator. Mr Parkinson, with whom Mrs Teede took up, was the sales manager. On 27 April 1998 Mrs Teede and Mr Parkinson were baby-sitting Mrs Teede's sister's children when, after previously speaking to them on the phone, Mr Teede came around. What then happened is the subject of this appeal.

2 Mr Parkinson later alleged that Mr Teede had assaulted him. He made this allegation after he himself had got into some bother with the police making a phone call about a false break-in at Mr Teede's place. Mrs Teede had also been in a bit of trouble, pleading guilty to having stolen some bottles of alcohol from Mr Teede. In each case they had lied to the police for a period.

3 All these and other facts were before the Magistrate. On 8 March 1999 there was a short trial. All three gave evidence recounting the events inside the house as they recollected them. The owner of the house, Mr Mason, also gave evidence that, summonsed because of the disturbance, Mr Teede told Mr Mason that he had hit Mr Parkinson and Mr Mason replied: "What took you so long?"

4 At the end of the trial the Magistrate summed up the evidence and delivered his decision. The facts were not difficult. He correctly directed himself as to the onus and standard of proof. He convicted Mr Teede of assault and fined him $600. From this conviction and fine Mr Teede now appeals. The grounds of appeal challenge generally the Magistrate's finding on the basis that the witnesses were so unreliable that there was no credible evidence and, as was put into argument, the Magistrate misused his advantage effectively by leaving the previous background out of consideration.

5 The appellant was represented by experienced senior counsel who properly developed all points that could be made. The Magistrate was well aware of the matters affecting the credibility of the witnesses but nonetheless chose to accept their account and reject that of the appellant whom he described as manipulative to the point of being inventive. There is no material to suggest that the Magistrate misused the advantage enjoyed as presiding officer: see State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306.

6 Whether or not the witnesses lacked such credibility so as to cause a reasonable doubt in the Magistrate's mind was a matter for him. There is some independent support for the prosecution case in the words uttered by the defendant to Mr Mason. There were some divergences in the accounts given by Mrs Teede and Mr Parkinson as to the significance of events. The Magistrate did not regard these as major divergences. Perhaps it is only to be expected having regard to the passage of time and the swift nature of the events which occurred on the night. However, in broad terms their evidence is consistent one with the other to the effect that the appellant entered the house and immediately struck Mr Parkinson.

7 Counsel for the appellant has pointed to some passages in the reasons of the Magistrate which he asserts suggest that the Magistrate had misused his advantage by treating the matters of malice and unreliability as having no importance. However, a full reading of the Magistrate's reasons reveal, in my opinion, no such error. The Magistrate clearly understood the burden of proof and the onus. In his concluding remarks the Magistrate took into account all the factors and ascribed to them such weight as he thought was appropriate and reached a conclusion.

8 It will often be the case that a witness comes to court tainted in some particular way, sometimes in a major way. When that occurs, it is nevertheless still for the tribunal to assess that witness in the light of the taint and decide whether nevertheless they are giving a truthful account of the events the subject of the litigation. A court will be slow to intervene in ascribing a different weight to that given by the tribunal of fact at first instance unless satisfied that there has been a material misuse of any advantages enjoyed. I am not so satisfied and I consider that the Magistrate's decision was open on the evidence. I would dismiss the appeal against conviction.

9 I turn to the question of sentence which has two aspects. The first relates to the fine of $600 and the second relates to the Magistrate declining to make a spent conviction order. The circumstances of the offence were not trivial. They involved the entry uninvited into another person's house and thereafter immediately hitting someone. The fine was 10 per cent of the maximum. I am not persuaded that the fine was manifestly excessive. However, the Magistrate did make a comment in sentencing which seems to amount to an error of principle. What he said, having dealt with the pleas of guilty by Mr Parkinson and Mrs Teede, was:

"That same consideration and necessarily mitigatory effect of an early plea of guilty does not behold to yourself. I do, however, acknowledge that it is a domestic upheaval, that it is necessarily the fact that you have no prior record and certainly the case that the setting of itself is conducive to this what in relative terms is a minor disturbance when the court is to have regard not the entry into the house but necessarily to the fact complained of. That is an assault comprising a single blow. You have however put the prosecution to proof and in the circumstances you will be fined $600."

10 The passage indicates error because he appears to have taken into account an irrelevant factor, namely, that the appellant put the prosecution to proof. That can never be a factor in arriving at an appropriate penalty. To take it into account is to deny the fundamental right of a person to have the case proved against them. Therefore I am of the opinion that there was an error in the Magistrate's approach to sentence which led to a miscarriage of justice. I propose to set aside the fine and to hear submissions as to penalty.

11 The Sentencing Act 1995 spent conviction order provision, s 45 reads:

"... a court sentencing an offender is not to make a spent conviction order unless -

(a) it considers that the offender is unlikely to commit such an offence again; and

it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender."

12 In many cases this type of offence is ideally suited to the making of a spent conviction order. It is an opportunistic offence which occurs in circumstances of heightened emotion by a person of otherwise good character and, following the break-up of the marriage, usually emotions have receded to normal levels. His Worship directed himself as to making a spent conviction order and, as he said:

"In the circumstances of the present clear emotions as I perceived them and as you gave you evidence and not persuaded that it is unlikely to occur again necessarily the principle (sic) considerations of the spent convictions provisions in the Sentencing Act would not seem to me to be appropriate."

13 Not without some hesitation I have concluded that I ought not to interfere with the Magistrate's decision. He was in a better position than me to make a determination under the Sentencing Act s 45(1)(a) and in view of his reasons I cannot find any error in discretion. Consequently, I do not consider he has erred in failing to make a spent conviction order.

14 The appellant submits that I should exercise my discretion under s 46 of the Sentencing Act which provides:

"A court sentencing an offender may impose no sentence if it considers that -

(a) the circumstances of the offence are trivial or technical; and

(i) the offender's character, antecedents, age, health and mental condition; and

(ii) any other matter that the court thinks is proper to consider,

that it is not just to impose any other sentencing option."

15 The focus of attention is as to whether the circumstances of this offence are technical. It not being contended that the offence was trivial, it was nonetheless a minor offence, as the Magistrate acknowledged.

16 The Macquarie Dictionary defines "technical" as an adjective: "So considered from a strictly legal view or rigid interpretation of the Rules." The definition accords with the use of the term in related areas, for example, a technical contempt of Court, see Bell v Stewart (1920) 28 CLR 419 per Isaacs and Rich JJ at 434.

17 Necessarily, the question whether the circumstances can be categorised as giving rise to a technical offence is one for which there can be no comprehensive answer. However, in approaching the question, a sentencing court should take a wide view as to all the circumstances and not narrowly confine the circumstances to those immediately surrounding the actual criminal transaction.

Application of the principles for the present case

18 The actual assault was a punch in the head which caused very slight bruising for which no medical attention was sought. The incident happened quickly.

19 The immediate surrounding circumstances are that the appellant was the estranged husband of the woman with whom Mr Parkinson was then associating. That night, following the assault, the husband and wife did resume cohabitation for a short time. As the wife acknowledged, the situation was confused. The appellant is a successful and contributing member of the community with no previous convictions. He is aged 43.

20 The wider circumstances are that no complaint was made to the police about the assault until five months later. A definite factor in making the complaint was to retaliate against the appellant because the actions of Mr Parkinson in phoning the police with a false report of a break-in and of Mrs Teede stealing items of property from the appellant led to trouble for them. This element of retaliation was acknowledged during the course of the trial.

21 In my view, the combination of the wider circumstances together with the more proximate circumstances of the offence leads to the conclusion that this was a technical offence within the Sentencing Act s 46. In all the circumstances, having regard to the appellant's character and antecedents, together with the fact that this was a minor assault against a fairly extreme emotional situation, it is just that the appellant be released without sentence. I do not consider that any punishment other than the fact of conviction is warranted.