Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Review of sentence - Whether three months' imprisonment for assault manifestly excessive.

Judgment ID Number: [2002] TASSC 88

CHARLES THOMAS WILLISCROFT v CONSTABLE KIM HIBBLE

1 The applicant was charged with assaulting his ex-girlfriend on 11 January 2001 by throwing her against a wall, dragging her along a floor and striking her to the body and head. Following a defended hearing, a magistrate found the charge proved, convicted the applicant and sentenced him to imprisonment for three months. The applicant has moved the Court to review the sentence upon the basis of alleged errors of law in the following respects:

2 the magistrate failed to give sufficient weight to the applicant's good character, antecedents and rehabilitative prospects; and

3 the magistrate gave excessive weight to the need for personal deterrence.

2 I need only refer to the complainant's evidence to understand the facts, because the learned magistrate accepted it and rejected the applicant's version of the events given by him to police in a video recorded interview. He did not give evidence at the hearing.

3 It was the complainant's evidence that she had been going out with the applicant for about 15 months from about October 1999. At the time of the assault they had recently separated and their relationship was at an end. In cross-examination it was put to her that in the course of their relationship "there had been plenty of cross words, plenty of arguments from time to time", and her reply was that "it wasn't the smoothest of relationships, no". She went to his house that night at his request after he said that he wanted to talk to her about the possibility of him changing his career.

4 The complainant had her hair done and then spent from about 9pm to 11pm at a Launceston hotel with some girlfriends. While at the hotel she received a telephone call from the applicant and agreed with him that she would go to his home at about 10pm and that he should purchase some takeaway food for them to eat. However, she failed to arrive at his home at the promised time and was an hour or so late when she finally arrived. Whilst she was at the hotel he called her mobile telephone about 30 times. At first she ignored the calls and then turned the telephone to silent because she was sick of them.

5 She arrived at his home at about 11pm. He had left the door ajar and she let herself in. She was not affected by alcohol. He was lying on a couch in the lounge, in front of a television set. She kneeled on the floor next to him. An argument developed, although it was the applicant who did most of the talking. He complained that she was late, that she had no respect, that she should have been there on time, and that the food was ruined and was dog food. He was angry but she was not. While she was kneeling on the floor, he stood and continued to talk to her.

6 Her description of the assault was as follows. She said that the next thing that she could remember was being dragged by her shoulder region through the door between the lounge room and the hallway, although before then she had been thrown against the lounge room wall. After she was dragged through the doorway he threw her into a corner of the hallway near the front door, where he attacked her further. She said that she was hit or kicked, but she was not sure which because it was dark and her hands were over her face trying to protect it. The blows were all over her body. She said that she was saying "no" and finally he stopped. She let herself out of his house at 11.22pm and made her way very slowly on foot to the Launceston General Hospital about three blocks away.

7 I have related the substance of all of the evidence given by the complainant of the assault. It lacked detail but I make no criticism of her about that. The nature of the assault can be better understood from the evidence of injuries suffered by her.

8 She attended at the hospital's Department of Emergency Medicine at 12.25am. Observations made at 2.50am were of the following injuries. She had a swollen right upper eyelid; a swollen right cheek, tender along the zygoma; a three centimetre soft tissue swelling in the hairline above the left forehead; a five centimetre soft tissue swelling on the back of her head; a half centimetre cut on the inner bottom lip; a fracture of the outer one third of the left clavicle; tenderness along the third and fourth rib on the left side; a large bruise on the inner left thigh with five marks that were possibly toenail or fingernail marks; an abrasion over the left knee; and an abrasion over the right knee. It is likely that the fractured outer third of the clavicle and the knee abrasions were caused when she was thrown against the lounge room wall. She was treated with a sling and analgesic medications and referred to her general practitioner for follow-up. Her evidence was that she left the hospital at about 3am. She attended her general practitioner once to make sure that all was well and a physiotherapist once to make sure she was looking after her injuries properly. There was no evidence concerning what happened with regard to the fractured clavicle. Photographs were taken of her two days after the assault showed her wearing a sling. Presumably the clavicle mended without the need for further treatment. There was no suggestion of ongoing complaints at the hearing.

9 The applicant had no record for offences. In a plea in mitigation counsel told the learned magistrate that he was 28 years of age and single, with no dependants. He had been educated to the equivalent of matriculation level and then worked in a family business that was involved in the service and maintenance of heating and refrigeration equipment, among other things. He undertook an apprenticeship as a refrigeration mechanic. Since gaining his technical qualification he had been responsible for the running of the business for the previous four years or so, since he was aged about 23 or 24 years, and was responsible for two other trades persons employed by the business. His take home wage was $570 per week.

10 The applicant's counsel submitted that the offence was out of character and occurred within a history of a somewhat difficult and volatile relationship that had lasted for a number of months, one in which emotions had run high from time to time. The learned magistrate was asked to take into account that the assault was not premeditated, but had "occurred very much on the spur of the moment, in the heat of the moment".

11 The applicant's counsel reminded his Worship that the applicant had been required to comply with stringent bail conditions throughout the period of 18 months since the offence. It was argued that although serious, the offence could not be regarded as being at the top of the scale of moral culpability for an assault. It was submitted that with a good background and the offence being out of character, the applicant's prospects for rehabilitation were excellent and the chances of him reoffending in a similar way were minimal to non-existent. Counsel urged the learned magistrate to "mark the seriousness of the offence, yet also foster the rehabilitation and the prospects of this offender" by imposing a suspended sentence.

12 The learned magistrate proceeded immediately to sentence the applicant to imprisonment for three months, prefaced by the following comments:

"I take into account what is said on your behalf and I accept the proposition that this offence is out of character for you. You have no previous convictions for offending at all, let alone in a violent way. Your counsel went on to say that the relationship had been difficult and volatile and there was some evidence to that effect. Of course, the nature of the relationship, whatever its difficulty, however volatile it may have been does not justify the attack that you made upon the bodily integrity of your victim. It is said that this occurred on the spur of the moment, in the heat of passion so to speak. And that therefore there was an absence of premeditation. What I would say to that is that typically in assaults resulting from a relationship whether still extant or recently over that these assaults frequently do occur as the result of passion on the spur of the moment and that the absence of premeditation is not really a significant factor to be taken into account in any mitigatory way.

You are a mature man aged 28. You've had all the benefits and all the advantages in you [sic] upbringing I gather, and all of that should have led you to know full well that your actions were beyond the pale and of course contrary to law.

I take into account what is said on your behalf. I would not be assisted by a pre-sentence report on this matter.

The victim [came to] your home at your request to discuss your future career as I understand it. For whatever reason, but no doubt partly because she arrived later than you had hoped, you then proceeded to brutally attack her. It was a brutal and sustained attack and was continued even whilst the complainant was cowering on the ground trying to avoid your blows. You continued and persisted with a high level of violence. It is an offence, an assault to be condemned. It is both and was both contemptible and despicable and is clearly deserving of condign punishment. That punishment should not be diluted in its impact by the suspension of any prison term you should receive. It is clear that this matter is deserving of a sentence both by way of general and personal deterrent. Your prospects for rehabilitation I do regard as good but as I say the requirement for condign punishment to my mind means that there should be no dilution of the impact of any prison term upon you by suspension."

13 The second and third grounds of the motion to review the sentence have no merit unless the first ground of manifest excessiveness in the sentence succeeds. There was nothing said or not said by the learned magistrate to justify a conclusion that either of the other grounds have been established. In his comments the learned magistrate took into account what counsel had said and accepted that the offence was out of character for the applicant and that his prospects for rehabilitation were good. The only possible way in which it can be concluded that there was a failure to give sufficient weight to good character, antecedents and prospects of rehabilitation or a placing of excessive weight on the need for personal deterrence, is by first determining that the sentence was manifestly excessive. If it was not, the motion must be dismissed.

14 An assault is an offence against the Police Offences Act 1935, s35(1), and a crime under the Criminal Code, s184. In this case it was charged under the former Act. The maximum prescribed penalties were a fine not exceeding $500 or imprisonment for a term not exceeding six months. The maximum prescribed penalty is deemed to be intended for cases falling within the gravest category of assaults. Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 478. In Bounds v Robertson unreported 60/1969, Burbury CJ made the point that where the legislature imposes a maximum punishment it is the duty of the court to look at the circumstances of the particular offence and the personal circumstances of the offender and to determine how far if at all, the just penalty should recede from the statutory maximum. Generally, the statutory maximum should be reserved for bad cases, or for those where the offender has previous convictions for similar offences. I observe that the level of punishment that should be meted out to one who unlawfully assaults another may well depend on whether the offence is charged as a summary offence against the Police Offences Act or as a crime.

15 Many of the well known aggravating factors for assaults were absent in this case. For example, no weapon was used, the offence was not committed in a public place, it was not pre-meditated but occurred instead when the applicant lost his temper, and although the fracture of the clavicle was a substantial injury, the injuries suffered by the respondent were not grievous ones and no lasting effects were asserted. That the offender had no record whatever for offences and had a good work record suggested that the offence was an "uncharacteristic aberration". See Veen (No 2) at 477. I add that arguably at least, there was an inconsistency between the recognition by the learned magistrate that the prospects for the applicant's rehabilitation were good and his Worship's emphasis on the need for personal deterrence in this case. The two views appear to be at odds with each other.

16 A sentence of actual imprisonment should be a sentence of last resort, particularly for a first offender, and one to be imposed only where an alternative punishment is inappropriate. See Sentencing in Tasmania by Professor Warner, 2nd ed, par3.302. Although the applicant's attack on the complainant was a sustained one and the fracture to the clavicle was a significant injury, albeit not intended, upon dispassionate deliberation I am satisfied that the term of three months' actual imprisonment was not required in this case and was manifestly excessive, having particular regard to the offender's antecedents and the fact that the offence was committed consequent upon a sudden loss of temper. Some offences are so grave that even with good antecedents, actual imprisonment is demanded, but this is not such a case. An alternative to actual imprisonment was all that was necessary as a punishment and as a lesson to him that he must not resort to violence in his relationships with others.

17 For these reasons I uphold the motion and set aside the sentence of three months' imprisonment. In its place he will be fined $400 (having regard to the statutory maximum of $500) and sentenced to six weeks' imprisonment, all of which will be suspended upon condition that for a period of three years he is of good behaviour, and in particular commits no crime or offence involving violence or threatened violence.