Adam Cranfield v Christopher Watson
[2013] ACTSC 160
•1 August 2013
ADAM CRANFIELD v CHRISTOPHER WATSON
[2013] ACTSC 160 (1 August 2013)
APPEAL AND NEW TRIAL – Appeal from Magistrates Court – whether each of the sentences and aggregate sentence manifestly excessive – Magistrate in error stating that the injury occasioned to complainant was an aggravating feature rather than element of assault occasioning actual bodily harm – Magistrate in error in concluding no mental health condition of appellant relevant to sentencing as causal or contributing factor – appellant without significant history of violent offences – sentences manifestly excessive & appellant resentenced
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 36 of 2013
Judge: Burns J
Supreme Court of the ACT
Date: 1 August 2013
IN THE SUPREME COURT OF THE )
) No. SCA 36 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: ADAM CRANFIELD
Appellant
AND: CHRISTOPHER WATSON
Respondent
ORDER
Judge:Burns J
Date:1 August 2013
Place:Canberra
THE COURT ORDERS THAT:
The Appeal be upheld.
The sentence imposed by Magistrate is set aside and the appellant is resentenced as follows:
a)On the first offence, you will be sentenced to six months’ imprisonment commencing on 31 May this year and expiring on 30 November.
b)On the second offence, you will be sentenced to two months’ imprisonment commencing on 31 October this year and expiring on 30 December this year.
c)The period commencing on 31 May this year to 31 July this year is to be served by way of full-time imprisonment.
d)The balance will be suspended and there will be a Good Behaviour Order for a period of two years with conditions:
i.Firstly, to accept the supervision of the Director-General and to obey all reasonable directions of that person or their delegate for that period of two years, or such lesser period as is deemed appropriate by that person.
ii.Secondly, to undertake such programs or counselling as directed by the Director-General or that person’s delegate, including if found suitable, the Family Violence Cognitive Self Change program.
iii.Thirdly, to undertake such counselling or treatment with respect to mental health issues as directed by the Director General or that person’s delegate.
On 5 June 2013, the appellant, Adam Cranfield, was sentenced by a Magistrate to terms of imprisonment with respect to two offences of assault occasioning actual bodily harm. The first offence occurred on 18 November 2002, and the second offence occurred on 26 November 2012. Each of those offences carried a maximum term of imprisonment of five years.
With respect to the first offence, the Magistrate imposed a sentence of 11 months’ imprisonment, backdated five days to take into account presentence custody, so that the sentence commenced on 31 May 2013.
With respect to the second offence, the Magistrate imposed a sentence of five months’ imprisonment, of which two months was to be served concurrently with the sentence imposed for the first offence and three months was to be served consecutively upon that sentence.
The total aggregate sentence was, therefore, one of 14 months’ imprisonment.
His Honour ordered that five months of that sentence be served in full-time custody, with a following five months to be served by way of periodic detention, with the balance, being four months, to be suspended upon the appellant entering into a Good Behaviour Order for a period of two years.
The appellant now appeals from the sentences imposed by the Magistrate. The Notice of Appeal specifies the grounds of appeal essentially as one alleging that the sentence imposed was manifestly excessive. I understand the submissions made by
Mr Whybrow in support of the appeal to be that each of the sentences were manifestly excessive and so was the aggregate sentence imposed by his Honour.
During the course of argument on the appeal, I raised a number of issues which were matters of concern to me as to the way in which the proceedings before the Magistrate had been conducted. Some of those matters, it appears to me, constitute frank errors by the Magistrate with respect to the sentencing process.
I was concerned by comments made by his Honour early in the course of the sentencing process, before his Honour had had an opportunity to hear submissions by counsel dealing with the subjective elements of the appellant, that if he were to impose a sentence of imprisonment, that it would be full-time or immediate imprisonment. I do not understand how his Honour could have made such a comment at that stage of the proceedings. Certainly, it would have been open to his Honour to indicate that a sentence of imprisonment was a possibility with respect to the offences that were then before him.
THE FACTS
It is appropriate at this time that I refer to the facts in relation to the offences. An Agreed Statement of Facts was put before the Magistrate. With respect to the first offence, the Statement of Facts specifies that at about 11.30am on 18 November 2012, whilst the complainant and the appellant were arguing inside a unit which they apparently shared, the appellant took hold of the complainant’s right arm and punched her in the face a number of times. This contact caused the complainant to feel immediate pain and her head began to ache.
The complainant, in turn, struck the appellant on the torso. Whilst continuing to argue through the day, the appellant and the complainant were engaged in further physical confrontations, both whilst she was in the lounge room or in the bedroom. On those occasions, the appellant and the complainant exchanged blows. The appellant struck the complainant in the face, resulting in further bruising to her face, nose and eyes. The complainant hit the defendant in the torso and in the face and bit his arm whilst he had hold of her.
During one of those incidents, the appellant also punched the complainant in the right thigh, causing her leg to go numb. As a result of those incidents, the complainant suffered bruising to her face, nose and the region around her eyes, her right arm, her left forearm and her right thigh. She also suffered a bleeding nose and a headache.
At that time, the complainant was in fear for her life and of suffering permanent damage as a result of being kicked in the face. The complainant and the appellant continued to argue throughout the week, although there was no further physical altercation during that time.
The second offence occurred on 26 November 2012. On that morning, the complainant woke up at home. She got out of bed and began feeding her son. Whilst she was feeding her son he threw up on himself and her so she decided to take him into the shower to clean them both at the same time. This resulted in another argument with the appellant, which continued throughout the day. At about 1 pm that day, the appellant was sitting at his computer when he started to have problems operating the computer. He became angry and began swearing at the complainant.
As a result of this, the complainant began to chide the appellant, telling him to stop being pathetic and throwing tantrums. The appellant slapped the complainant on the right side of her face. The complainant felt her right ear pop and felt immediate pain and discomfort in her ear. The force of being hit caused her to have trouble hearing, although one would expect perhaps that it was the apparent injury to her ear drum which may have caused the problem hearing, as the Statement of Facts alleges that she suffered a ruptured ear drum as a result of that incident. The complainant later contacted Care and Protection Services and the police and informed them of what had occurred. Police observed a number of bruises on the complainant’s face, right arm and left forearm.
THE DECISION IN THE MAGISTRATES COURT
During the course of his sentencing comments, the Magistrate stated that it was an aggravating feature in relation to the first offence that the assault comprised several violent, physical contacts with the victim and that they extended over a period of time. It appears to me that what his Honour was attempting to say was that it was a circumstance which was relevant to the sentencing of the appellant that the incident, which was treated as a single incident for the purposes of sentencing, had continued over a period of time. It would not be correct to say that that was an aggravating feature. However, it would be a feature which was relevant to sentencing, and it appears to me that that was, in effect, what his Honour was saying.
His Honour was correct in saying that it was an aggravating feature in relation to both offences that they included blows to the head and face of a female. In my opinion, however, his Honour was incorrect in stating that it was an aggravating feature in relation to the second offence, that the injury suffered by the victim was a ruptured ear drum. The ruptured ear drum was simply the actual bodily harm which was occasioned by the assault. As such, it was simply an element of the offence. It cannot be said to have been an aggravating circumstance attending the commission of the offence.
In my opinion, even if his Honour had intended to say that it was an injury which brought that offence within a high range of offences of assault occasioning actual bodily harm, his Honour would have been wrong in the absence of evidence to support such a proposition.
When his Honour turned to consider the subjective features of the appellant, his Honour referred in somewhat cursory form, with respect, to a report from Dr William Knox, a psychiatrist, which had been placed before him for the purposes of sentencing. His Honour said, and I quote with respect to that report:
The report goes on to detail some physical injuries from accidents and refers to a psychiatric report prepared in connection with a motor vehicle accident claim, and that report is now before me. The psychiatric report refers to the effects of a motorcycle accident you suffered, including your irritability, frustration and chronic pain. It has not been pressed on me in submissions that any mental health condition is relevant to sentencing as being a causal or contributing factor to your offending conduct.
In my opinion, his Honour was in error in making that comment. The report from
Dr Knox, in my opinion, was very useful for the purposes of sentencing. On page 2 of that report, Dr Knox noted that there had been an episode of domestic violence which was probably related to the appellant’s on-going emotional health difficulties. In his conclusion to his report, Dr Knox noted that in addition to the obvious physical injuries and impairments suffered by the appellant in the motor vehicle accident, he had come to suffer from a post-traumatic stress disorder, an aggravation of a pre-existing adult Attention Deficit Hyperactivity Disorder.
The accident of November 2011, which was the motor vehicle accident that Dr Knox was referring to, and subsequent pain and disability had been the cause of the mental disorders and aggravation of those pre-existing mental disorders. Dr Knox noted that the appellant told him that from the time he was injured, he became emotionally “all over the shop”, he became frustrated, angry and inclined to “lose it” or become irritable with customers arising out of his chronic pain and disability.
In my opinion, a proper reading of Dr Knox’s report supports the proposition that there are underlying mental health conditions relevant to the appellant’s offending behaviour. Whether they could be said to cause or contribute to the offending behaviour is moot. But I am satisfied that, when properly understood, Dr Knox’s report would support one of those two alternatives.
CONCLUSION
I do not, in any way, denigrate the seriousness of the offences that were committed by the appellant, nor the fear of the victim of what may happen to her because of the appellant’s violence. Nor do I, in any way, seek to minimise the injuries that were occasioned to the complainant.
However, in my opinion, the imposition of an immediate term of imprisonment with respect to these offences was excessive, in circumstances where there was evidence that the appellant’s conduct had been either caused or contributed by mental health conditions which were capable of being treated, and in circumstances where the appellant did not have a history of offences of violence, or at least a significant history, having only in the past been convicted of two offences of common assault, the most recent of which was some 11 years before he was sentenced with respect to the present matters. In my opinion, the sentences imposed by the Magistrate were manifestly excessive.
The sentences imposed by the Magistrate will be set aside.
THE RE-SENTENCE
I accept that the offences are such as to warrant terms of imprisonment. However, it appears to me that taking into account as I must the period that the appellant has already spent in full time custody, the appropriate course is to impose sentences that acknowledge the time that he has already spent in full time custody and to suspend the balance.
My initial inclination to impose a further sentence of periodic detention results, on more mature reflection, in a sentence which in my opinion would be unbalanced due to the fact that I intend to reduce the sentences on the individual offences that were imposed by the Magistrate.
On the first offence, the appellant will be sentenced to six months’ imprisonment commencing on 31 May this year and expiring on 30 November. On the second offence, the appellant will be sentenced to two months’ imprisonment commencing on 31 October this year and expiring on 30 December this year. That is a total of seven months’ imprisonment, of which the period commencing on 31 May this year to 31 July this year, that is yesterday, is to be served by way of full-time imprisonment.
The balance will be suspended and there will be a Good Behaviour Order for a period of two years with conditions:
a.Firstly that the appellant is to accept the supervision of the Director-General and obey all reasonable directions of that person or their delegate for that period of two years, or such lesser period as is deemed appropriate by that person.
b.Secondly, the appellant is to undertake such programs or counselling as directed by the Director-General or that person’s delegate, including if found suitable, the Family Violence Cognitive Self Change Program.
c.Thirdly, the appellant is to undertake such counselling or treatment with respect to mental health issues as directed by the Director-General or that person’s delegate.
The appellant has now spent two months in prison. It is fair to say, based upon the evidence that the appellant has given to me about the situation that his life is in that he is going to be facing some significant stressors once he is released. He has to deal with issues relating to his previous partner and access to his child. Now, undoubtedly that is going to result in a degree of stress to him, and potentially that is going to involve frustration and potentially anger.
He is going to have to be very careful to deal with those issues, so that he does not again resort to violence, because if he does, then inevitably he is going to go back to prison. The best course for him is to continue treatment as recommended by Dr Knox and also to continue in those programs that he was participating in before he was placed in custody.
I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 9 August 2013
Counsel for the Appellant: Mr S Whybrow
Solicitor for the Appellant: Ben Aulich & Associates
Counsel for the Respondent: Mr D Sahu-Khan
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of Hearing: 1 August 2013
Date of Judgment: 1 August 2013
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