Thompson v Young [2008] ACTSC 11

2. The appellant had pleaded guilty before the magistrate to a number of charges, two of which are the subject of this appeal. Firstly, an assault on 29 April 2007, that assault being committed on his partner. Secondly, a breach of a good behaviour order by reason of the commission of the assault on 29 April 2007. The good behaviour order was made on 17 May 2006 and related to a conviction for an assault that had taken place on 11 April 2006. The good behaviour order required the appellant to be of good behaviour for a period of 12 months and was conditioned on his own surety of $500.00 as well as being subject to the supervision on probation by the Director of ACT Corrective Services or the Director's delegate and to obey all reasonable directions including undertaking counselling for alcohol abuse.

3. At the time that the sentences, the subject of this appeal, were imposed, there were other charges before the court of drink driving, driving unlicensed and two charges of stating a false name to the police. Those charges did not result in a prison sentence and are not before the court on this appeal.

4. The circumstances of the offence which resulted in imprisonment was that the appellant's partner had been cooking in the kitchen at home on the evening of 29 April 2007 when the appellant arrived home with some friends of his. He tipped food on the floor and spat on food on the stove. He then spat at his partner and she spat back. They yelled at each other and his partner went to the bedroom. When the other persons left, the appellant's partner rang her mother to speak about the incident. The appellant returned and entered the living room with a knife in his hand and approached within a metre of his partner holding the knife in front of her face and said a number of times, "If anyone gets hurt it is all your fault." His partner was threatened and scared. She moved away and the appellant left the premises.

5. The assault that had been committed on the earlier occasion occurred when the appellant had again been drinking heavily. The appellant had arrived home with his partner after a night out at a club and kicked the door violently with his right foot causing the frame to split. When his partner asked him to stop he turned, pushed her hard with his right hand, causing her to move backwards with sufficient force to make her stumble. That was the extent of the violence alleged.

6. The grounds of appeal are set out in the appeal book at pages 5 and 6 and it is not necessary for me to refer to them. The issues on this appeal are not really reflected in the grounds of appeal. The real issue in this appeal relates to the re-sentencing by the magistrate for the earlier charge of assault prior to sentencing the appellant for the assault which constituted the breach.

7. It would seem, in terms of the Crimes (Sentencing Administration) Act 2005 (ACT), that such a procedure can take place but in doing so, s 108(4) of the Act provides that if the re-sentencing is to take place, then the Crimes (Sentencing) Act 2005 (ACT) applies to the re-sentencing in the same way that it applies to the sentencing of an offender on the conviction for the relevant offence. That would require, on any re-sentencing exercise, a proper evaluation of the objective circumstances of the offence as well as taking into account the subjective circumstances concerning the offender.

8. In the present case, it appears that all that the magistrate did, as far as taking into account matters on re-sentencing, amounted to a reliance upon an observation in the pre-sentence report that the earlier offence was again in relation to his current partner. The magistrate does not appear to take account of the particular nature and circumstances of the offence or the issue of whether imprisonment was indeed an appropriate response for the offence.

9. This was a situation where, although the appellant has an unenviable record as a young person, he was facing an adult court for the first time on a charge of assault which, as far as the facts were concerned, was a drunken push of his partner. I find it difficult to see any justification in those circumstances for imposing imprisonment in relation to that offence as the punishment of last resort although I recognise that that is what the original sentencing magistrate thought appropriate.

10. However, even if imprisonment had been appropriate, there would still need to have been a consideration of aspects of suspension, periodic detention and community service. Those matters are still as appropriate on re-sentencing as on the original sentencing. It seems to me that the sentencing discretion in this matter miscarried and that the re-sentence in respect of this matter ought to involve something other than an immediate sentence of imprisonment.

11. The offence which was before the court that had caused the re-sentencing is, of course, a more serious offence, coming as it does after the earlier offence and where the circumstances, which I have set out, show the distasteful nature of it. Again though, there is an issue in relation to the question of imprisonment for this offence that really is a question of proportionality. Again, there was no physical harm and whilst again there was drunkenness involved which explains, but does not excuse the offence, it is a circumstance which needs to be taken into account.

12. It is difficult to place either of these offences in a situation which requires a wholly deterrent response. It seems to me that there may or may not have been justification for imposing imprisonment in relation to the later offence. However, having regard to the fact that the appellant has already served three months and one week, I do not see any efficacy in actually imposing a sentence of that nature. It is a matter where, had the matter been considered in terms of imprisonment by way of full-time detention not being the only response, that a good behaviour order probably involving community service equivalent to some three months might have been appropriate.

13. I allow the appeal. I re-sentence Mr Thompson for the assault that took place on 11 April 2006, in respect of which he was convicted on 17 May 2006, by making a good behaviour order for a period of 12 months in his own recognisance in the sum of $500.00 and during the period of 12 months he is to be subjected to supervision on probation by the Director of ACT Corrective Services or the Director's delegate and to obey all reasonable directions of each of those persons, including undertaking counselling for alcohol abuse and, I would add, "and violence issues".

14. In relation to the second assault that took place on 29 April 2007 being the assault which caused the re-sentencing of the first assault in respect of which Mr Thompson was convicted on 23 October 2007, I make a good behaviour order also for a period of 12 months in his own recognisance of $500.00 and in relation to that order, impose the same conditions as I have imposed in respect of the assault of 11 April 2006.

15. I want to make it clear that under normal circumstances in respect of the second recognisance that I have imposed, I would have normally regarded a community service condition as appropriate, but because of the fact that Mr Thompson has served a term of imprisonment of the three months and one week as a result of the magistrate's order, I have determined that such a condition has been fulfilled by reason of that service of imprisonment. As a consequence, I do not make it an additional condition of either of the recognisances.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the appellant: Legal Aid Office (ACT)

Solicitor for the respondent: ACT Director of Public Prosecutions