Bailey v Fox, unreported; CCA SCt of WA; Library No 980528; 4 September 1998

Chan v The Queen (1989) 38 A Crim R 337

Cowdrey v R, unreported; CCA SCt of WA; Library No 980517; 11 August 1998

Holland v The Queen [1999] WASCA 43

Miles v R (1997) 17 WAR 518

Moulds v R, unreported; CCA SCt of WA; Library No 980147; 4 March 1998

Neal v R [1982] HCA 55; (1982) 149 CLR 305

R v Richards [1999] WASCA 105

R v Tait [1979] 46 FLR 386

Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998

1 MILLER J: The appellant was charged in the Court of Petty Sessions, Busselton with eight offences of unlawful assault. Each assault was alleged to have been committed upon Sharon Mary O'Kane who was the de facto wife of the appellant. The offences were alleged to have occurred between 20 and 21 November 1999.

2 The appellant was brought before the Court of Petty Sessions at Busselton on 25 January 2000 when he pleaded guilty to each of the charges. He was thereupon remanded in custody until 22 February in order that the Presiding Magistrate might have a written pre-sentence report, psychological report and victim impact statement. When the appellant re-appeared before the learned Magistrate on 22 February there was a pre-sentence report and also psychological report available but no victim impact statement. After hearing a statement of the facts and a plea in mitigation in penalty put by counsel for the appellant (both of which had actually been previously put at the hearing on 25 January), the learned Magistrate sentenced the appellant to 9 months' imprisonment in relation to each of the eight charges, ordering the sentences to be served concurrently. The sentence took effect from that day, but took into account the fact that the appellant had been in custody for approximately one month.

3 From the learned Magistrate's sentence the appellant has appealed to this Court, leave to appeal being granted by Scott J on 2 March 2000. The ground of appeal (as amended at the hearing) is as follows:

"The sentences of 9 months imprisonment imposed by the learned Magistrate were manifestly excessive, having regard to the overall circumstances.

(i) The Applicant has shown remorse by pleading guilty at the first opportunity

(ii) The Applicant was suffering from depression and other medical conditions.

(iii) The offences were all committed in the course of the same transaction and at the height of disturbed emotions.

(iv) The Applicant's prior record is relatively minor.

(v) The learned Magistrate erred in making factual errors as to the details of the offences.

(vi) There was a perception of bias on the part of the learned Magistrate in that he had made a restraining order in favour of the complainant."

4 The facts which were put before the learned Magistrate on both 25 January and 22 February revealed that the appellant and the complainant had been in a de facto relationship for some 10 years. They lived in Hester Street, Busselton and had three children aged 9, 7 and 4 years. The appellant had been in full time employment for a period of some six years, but in October 1999 had been made redundant. According to the appellant's version of events, the complainant had failed to come home on Friday night, 19 November, and had on the morning of Saturday 20 November refused to go to a longstanding engagement at the home of a friend of the appellant. As a result the appellant went drinking and did not return home until about 2am on the morning of 21 November. When he went to the bedroom he found that the cat had defecated on the bed and, according to his counsel, this "set him off" as a result of which he "lost the plot" and assaulted the complainant. It appears that he pushed her out of the bed and around the bedroom, but no more precise details are known. During the course of the afternoon of Sunday 21 November there was a further altercation in which the appellant assaulted the complainant several times. According to the statement of material facts he approached her in the kitchen, grabbed her around the throat and squeezed her throat. He then poured a cup containing some coffee over her, threw the contents of an ashtray over her and when she went to the loungeroom, pursued her there and "pushed up her chin and started spitting into her face" in the presence of the children. The children were sent to bed but he continued to verbally abuse her and when she returned to the loungeroom and sat down he pulled her to her feet and grabbed her around the throat. When she went to the kitchen he threw various items at her, striking her on the body with a smoke detector. Later, when she went to the bathroom, he followed her in, grabbed her around the throat and spat in her face.

5 The statement of facts indicates that after this final incident the complainant left the house and went to stay with friends. She later obtained a restraining order against the appellant but she was unable to particularise much of what had occurred in the assaults that had taken place either in the early hours of the morning of 21 November or on the afternoon of that day. When interviewed by police she said she recalled being pushed into walls and kicked with the flat of the appellant's feet but could not supply any more detail "due to the length and nature of the whole incident". It was said that she had received bruising and soreness as a result of the assaults and later received medical examination by a doctor, but there was no medical report tendered to the Court and no evidence of any other injury.

6 Counsel for the appellant frankly conceded at the hearing on 22 February that the assaults on the complainant were "a build-up of the frustrations generally over the last 12 months in the relationship". It was put that the appellant suffered from depression, was remorseful for his actions and had never previously been violent to the complainant over a long period of time during which they had been together. It was submitted that his conduct was unlikely to be repeated and in all the circumstances a community based order or intensive supervision order would be appropriate.

7 The learned Magistrate took the view that the appellant's actions (and therefore the assaults) were at the "upper level of seriousness" in that he had assaulted his de facto wife and denigrated her, degraded her and caused her fear, stress and trauma. He rightly categorised the appellant's behaviour as abhorrent. The learned Magistrate did, however, make some factual errors. He stated that the "assaults had occurred over a period of two days, either by grabbing the complainant around the throat, pushing her, throwing things at her, burning her with hot substances - liquids, and clearly acting in a manner that was totally distasteful." There was no evidence that the complainant had been burned with any hot substances, and although the assaults had literally occurred over a period of two days, they were in the form of one assault in the early hours of the morning of the Sunday and a series of seven assaults on the afternoon of that day. Those seven assaults appear to have run into each other. The learned Magistrate expressed the view that the appellant had shown no remorse for his actions, referring particularly to his behaviour in court on 25 January when he said to the learned Magistrate "you saw her and you feel sorry for her. Good luck to you. I know her, you don't". His Worship made reference to the personal factors relevant to the appellant, including his medical problems and his inability to control his actions, but stated that "the bottom line in relation to these offences ... which renders them extremely serious is the fact that you over a substantial period of time deprived your de facto partner effectively of her liberty and you assaulted her on eight occasions in varying degrees of seriousness, all of them, in my view at the upper end of seriousness. In point of fact, there had been no deprivation of liberty, although it can be seen that the complainant had been attacked several times within the confines of her house.

8 The learned Magistrate then took the view that the only appropriate sentence was one which carried with it an element of deterrence, he considered a monetary penalty inappropriate (which was clearly correct as the appellant's counsel had said so) and expressed the view that supervision within the community was inappropriate having regard to the seriousness of the matters. His Worship ended by saying:

"I'm not saying that you don't require assistance within the community concerning counselling and your depression, and other factors; I'm saying that you do. But because of the seriousness of the matter I don't believe there is any other appropriate disposition other than one of imprisonment. It would have been substantially longer had you shown the same lack of remorse that you did on the last occasion.

Because of the totality of the circumstances, and the fact that you have served a matter of weeks in custody - which I'm taking into account - you shall be sentenced to a period of 9 months' imprisonment, Mr Vickers - and that -- it would otherwise have been 12 months had you not served the last 3 to 4 weeks in custody."

When asked by counsel for the appellant whether he would consider suspending the sentence the learned Magistrate stated that he would not suspend it because of the seriousness of the circumstances surrounding the commission of the offences.

9 The appellant's case is that notwithstanding the seriousness of the offences committed, a sentence of imprisonment was not the only available option. Complaint is made about the errors of fact made by the learned Magistrate, the submission being that the learned Magistrate clearly took a more serious view of the assaults than was justified. It was also contended that the learned Magistrate's perception of the appellant in the courtroom was likely to have been affected by the fact that his Worship had granted a restraining order in favour of the complainant. However, the learned Magistrate did stress on 25 January that he was prepared to step aside and allow another Magistrate to deal with the matter if that was the appellant's desire. His Worship raised the fact that he had granted the restraining order in favour of the complainant but said he knew nothing about any injury that she may or may not have sustained. It is quite clear, in my view, that every opportunity was given to the appellant (who was represented by counsel) to have a different Magistrate deal with the matter, but that opportunity was not taken. Indeed, to the contrary it was an express waiver of the right to object to apprehended bias: see Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, where Toohey J (at 587-588) said:

"In the result, when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased. It was suggested during argument that this situation may be one, not of waiver, but of estoppel. The distinction between waiver and estoppel was drawn by Isaacs J in Craine v Colonial Mutual Fire Insurance Co Ltd, in a passage which has been referred to on many occasions. See also Spencer, Bower and Turner, Estoppel by Representation, 3rd ed (1977) pp 317-320. Notwithstanding the difficulties that do arise from time to time in distinguishing between waiver and estoppel, the situation here is more akin to the former than to the latter. Waiver involves a decision by the party against whose case bias is shown to raise no objection. It is this conduct which is in question rather than the conduct of the other party. The other party does not alter his position in reliance on that decision, although it is true that, had objection been taken at the time, the trial judge may have disqualified himself and the action could have been heard before another judge without serious loss of time. The situation is one in which the law prevents a party to litigation from taking up two inconsistent positions; he is held to his election. While, of course, the community has an interest in knowing that cases are decided impartially, that interest is not affected adversely by a doctrine which refuses a party to litigation the opportunity to resile from a position he has taken."

10 There is, in my view, nothing in the complaint made in the grounds of appeal that there was a perception that the learned Magistrate may have been biased against the appellant.

11 The essential submission made on behalf of the appellant is that the pre-sentence report before the Court demonstrated that the appellant was a person who could be assisted by some form of supervision. A psychological report which was attached to the pre-sentence report stated that the appellant clearly required assistance as he continued to harbour many outstanding issues regarding his relationship with the complainant and his emotional state, whilst possibly improved, was still suggestive of a degree of depression. The prospect of a prolonged and possibly heated settlement over property and child access was said to highlight the fact that matters between the appellant and complainant were "far from resolved". The author of the report concluded:

"It is in this context that Mr Vickers requires counselling support so as to ensure he is able to maintain his containment of anger towards Sharon and identify healthier strategies for resolution of his own outstanding issues in the relationship. Monitoring of this potentially volatile situation is required.

I would recommend that any supervisory order include programme requirements 'as directed' by his supervising officer. Ideally an agency such as Relationships Australia, with whom Mr Vickers has already accessed to some degree, could provide services supplemented by those offered from the Ministry of Justice.

Mr Vickers acknowledges his offending behaviour but describes only partial recall of specific acts of aggression, most likely in part due to his extreme stress, rage and agitation at the time. His actions reflect his displacement/acting out of resentment accumulated over a lengthy period of relationship discord. Somewhat paradoxically, psychological testing suggests that he is generally a subdued individual, however it seems his containment of issues had merely led to the build up of hostilities without any effective resolution of the situation. His manner appears likely to be provocative on occasion, particularly when he feels unwell and is concerned with his blood sugar levels or when he reflects on relationship issues. He has begun to acknowledge some problems in his self management beyond these actions and as such seems likely to benefit to some degree from counselling interventions. These would appear essential particularly as the separation and agreement on child access seems far from resolved."

12 Counsel for the respondent argued at the hearing that whilst the various assaults committed by the appellant might in isolation have brought about a lesser penalty than that imposed, it was the combination of offences and the time period over which they were committed which aggravated the circumstances of the offences as a whole. It was argued that in cases of domestic violence a deterrent sentence, both personal and general, will generally be called for, reference being made to R v Kerr, unreported; CCA of WA; Library No 970402; 15 August 1997 per Kennedy J at 4 and Hodder v The Queen, unreported; CCA SCt of WA; Library No 950302; 20 June 1995 per Malcolm CJ at 19. I entirely agree with the submissions of counsel for the respondent that in general terms, a deterrent sentence for domestic violence offences will be called for. Much, however, depends upon the extent of the violence. Whilst here there were multiple offences and offences committed over a period of time, the complainant fortunately appears to have escaped injury. Further, seven of the offences appear to have occurred as one group of offences. Additionally, the appellant does not appear to have ever assaulted his de facto in the past, there being no allegation to that effect in the pre-sentence report, statement of facts or elsewhere and there being no victim impact statement from the complainant.

13 The appellant had a prior record of convictions which included a conviction for assault occasioning bodily harm recorded on 10 June 1997 at the Busselton Court of Petty Sessions. For that offence he was fined $400. The facts of it as put to the Court by his counsel on 25 January were that the incident had occurred at a TAB when a person that asked the appellant to go outside and fight but the appellant had immediately headbutted him without going outside. Significantly, the conviction, although relevant to sentence, was not a conviction for assault of the complainant.

14 The matter which has concerned me in relation to this appeal is the fact that the pre-sentence report and psychological report suggested that the appellant really needed counselling intervention with a view to assisting him in containing anger towards his complainant and generally. Although the pre-sentence report and psychological report suggested that counselling might be appropriate in the context of a community-based order, it seems that the appellant had himself initiated contact with Relationships Australia and according to the pre-sentence report was proposing to participate in that Agency's domestic violence programme.

15 I am of the view that a sentence of imprisonment was appropriate for the series of offences committed by the appellant, but the question is whether that sentence of imprisonment should have been a fixed term of imprisonment to be served immediately, or whether consideration should have been given by the learned Magistrate to suspending the sentence. Suspended sentences have been the subject of extensive consideration in recent decisions of this Court, and it is only necessary that I quote the following passage from the decision of Anderson J in O'Gormon v The Queen, unreported; CCA SCt of WA; Library No 980744; 18 December 1998 at 11:

"The question of suspended sentences was fully discussed in The Queen v GP [1997] A Crim R 351, a decision of this Court, differently constituted. On my understanding of the judgments in that case, they come down to this, that whilst the primary aim sought to be achieved by suspension of the execution of a sentence of imprisonment is to provide an inducement to the offender to reform and an opportunity for him or her to do so, the question remains, in every case, whether or not the offender should have that special opportunity. In deciding that question, the gravity of the criminal conduct, the seriousness of the offending, must be given appropriate weight. As Murray J said at 389:

'For myself, I am attracted to the view that the proper occasion to suspend service of a sentence of imprisonment is where, although other non-custodial options must be excluded and a sentence of imprisonment of a certain duration is considered to be the only appropriate sentence, the circumstances are not such as to demand that the sentence be immediately served and [my emphasis] the circumstances of the case are such as to establish ... that there is a real prospect that the rehabilitation and reformation of the offender will be positively assisted by the making of an order of suspension or that there are special reasons why the court should be merciful.'

The prospects for rehabilitation and reform must therefore be weighed against other important factors, including the seriousness and intrinsic character of the offences."

16 In the present case the learned Magistrate took the view that the offences were so serious that the only option open to him was to sentence the appellant to a fixed term of imprisonment. When asked whether he would suspend the sentence the learned Magistrate replied that he would not do so because of the seriousness of the offences. I have come to a different conclusion. In my view, the offences were serious but not so serious that only a sentence of imprisonment to be immediately served was open. In my view, this appellant was a person who should have been given the special opportunity of having the sentence of imprisonment suspended as an inducement to him to reform and as an opportunity for him to do so. The materials before the Court did establish a real prospect that rehabilitation and reformation of the appellant would be positively assisted by making an order of suspension, and that, in my view, would have been the appropriate disposition of the matter.

17 Whilst I respect the fact that the decision of the learned Magistrate was a discretionary one and not therefore lightly to be interfered with (see Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007 at 15) I do consider that the learned Magistrate made a number of factual errors which may have influenced him to see the assaults as somewhat more serious than they in fact were (see House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5). This is not to understate the seriousness of the assaults, nor to understate the seriousness of domestic violence generally. The learned Magistrate rightly recognised that a sentence of imprisonment was appropriate for such violence, but in my view failed to property appreciate that in the circumstances of this case there were reasons for giving to the appellant the special opportunity of having the sentence suspended. I would therefore allow the appeal and vary the sentence of the learned Magistrate by suspending the sentence of 9 months' imprisonment imposed in relation to each of the charges for a period of 2 years.