Anthony Mark Ward v The Queen

[2008] ACTCA 5

ANTHONY MARK WARD v THE QUEEN
[2008] ACTCA 5 (26 February 2008)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 49 - 2007
No. SCC 213 of 2007

Judges:         Higgins CJ, Penfold and Lander JJ
Court of Appeal of the Australian Capital Territory
Date:            26 February 2008

IN THE SUPREME COURT OF THE       )          No. ACTCA 49 - 2007
  )          No. SCC 213 of 2007
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANTHONY MARK WARD

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Penfold and Lander JJ
Date:  26 February 2008
Place:  Canberra

THE COURT ORDERS THAT:

1. On the application for leave to appeal, leave to adduce fresh evidence is refused.

1. The application for leave to appeal is refused.

IN THE SUPREME COURT OF THE       )          No. ACTCA 49 - 2007
  )          No. SCC 213 of 2007
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANTHONY MARK WARD

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Penfold and Lander JJ
Date:  26 February 2008
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This is an application for leave to appeal from a sentence imposed by a judge of this court.  The application for leave to appeal was out of time but an order was made extending the time within which the application may be made by the Registrar on 17 January 2008. 

1. The application for leave to appeal was accompanied by an application said to be pursuant to rule 5606 of the Court Procedure Rules 2006 that the Court receive further evidence on the hearing of the appeal.  The applicant was convicted on his own plea of one count of assault occasioning actual bodily harm, an offence which carries a maximum penalty of five years’ imprisonment.  On 12 September 2007, he was sentenced by Crispin J to imprisonment for a period of two years, a sentence which was backdated by one day to allow for the time already spent in custody. 

1. Crispin J imposed a non-parole period of 12 months. His Honour indicated that but for that plea of guilty, the sentence of imprisonment would have been two and a half years and the non-parole period would have been 15 months.  Both the application for leave to appeal and for leave to adduce further evidence must be considered in the light of the applicant’s concession, inherent in the applications, that the sentence imposed by the sentencing judge was not inappropriate on the material that was before the sentencing judge. 

1. It was not contended that the sentencing discretion miscarried in any way.  In particular, it was not contended that the sentencing judge had regard to any matter which was irrelevant or failed to have regard to any matter which was relevant.  Nor was it contended that the sentencing judge wrongly applied any principle of law.  Finally, it was not contended that the sentence was in the circumstances on the material before the sentencing judge manifestly excessive. 

1. It was put on the application for leave to adduce further evidence, however, that, if the solicitor who then represented the applicant before the sentencing judge had taken a better history from the applicant of his early life, the solicitor would have realised it was necessary to obtain a psychological report.  It was further contended that if that had been done and the psychological report brought to the attention of the sentencing judge, that may have affected the sentencing judge’s exercise of discretion and a lesser sentence may have been imposed.  It follows that the application for leave to appeal has to be considered in circumstances where no complaint of error is made on the part of the judge and the only complaint made is that if the solicitor had done more than he did, that may have led to a lesser sentence. 

1. The applicant, who was born on 15 September 1962 was, at the time of the offence, a divorced man and the father of two children, in a relationship with his partner and victim, Samantha Moffat.  They had been in relationship for about seven months and for most of that time had been living together. 

1. On 17 March 2007, the applicant and the victim had celebrated the victim’s birthday at the victim’s home address and then followed with drinks at The Venue bar in Wanniassa.  Apparently, during the night, the applicant complained about the way in which the victim was dressed.  On the drive home from the bar, the applicant told the victim that she was “a filthy, dirty slut and, that he had had enough of her and her behaviour”.  When the victim alighted from the car, the applicant continued to abuse her, calling her a “dirty slut” and a “whore” and someone who would always be nothing.  He pushed her in the forehead, knocking her over on her back, as a result of which she hit her head on the concrete.  She suffered pain and dizziness but got up and ran inside her house.  The applicant followed her, grabbed her by the hair and pushed her into the bathroom.  He pushed her into the bath and, in doing so, she scraped and bruised her back, and cut her arm on the broken soap holder, as a result of which she suffered a deep laceration on her left arm. 

1. The applicant turned on the cold water tap and pushed the victim under it, saying that she was a “dirty slut who needed to wash herself”.  The victim was bleeding and tried repeatedly to get out of the bath but the applicant pushed her back into the bath, hitting her head on the side of the bath.  He pushed her head under the water saying “you’re a dirty slut, I’m going to treat you like a dirty slut”. 

1. Eventually she got out of the bath.  The applicant then hit her across her face with her handbag, which resulted in a laceration and bruising to her nose and left eye.  She got out of the bathroom and wrapped a towel around herself.  When a police car arrived, he said, “You called the police you dirty slut”. 

1. When the police arrived the victim sought help from a female police officer and asked for the applicant to be kept away from her.  The police officer observed the injuries to which reference has been made. 

1. The applicant was asked what had happened and he told the police, to quote their report “that the complainant was a drunken bitch and he was continually having to deal with her behaviour”.  The victim was very upset and had difficulty composing herself. 

1. The applicant has a previous conviction for assault in November 2002.  He was convicted of an assault upon his then partner, Ms Anderson, whom he assaulted by grabbing her around the throat with both hands and further assaulting her by grabbing her left arm causing bruising and pushing her face against a wall.  This assault ended the relationship which had been enduring, except for a period of about four months, for more than two years.  During that assault, he called his then partner a “fucking bitch” and a “fucking idiot”. 

1. A pre-sentence report was obtained for the purpose of the sentence under complaint.  The applicant told the author of the pre-sentence report that he had been placed in an orphanage at about the age of 15 months where he had lived until he was seven, when he returned to his father’s care.  He had no knowledge of his natural mother.  After the age of seven, he lived with his father and step-mother who had a violent and poor relationship.  He lived with his father until the age of 14, when he went to live with friends. 

1. He told the author of the pre-sentence report that during the time with his father they moved around Australia and he attended a number of school.  He left school at 15 years and nine months, without completing his school certificate.  After leaving school, he became a carnival worker and thereafter had a number of jobs.  At the time of this offence, he was self-employed and had been so for four years.  He had married once and had two other relationships.  The marriage ended in 1999, by way of divorce.  He had two children by his former wife, both of whom were adults whom he saw on a weekly basis.  The two previous relationships referred to were with Ms Anderson and the victim, Ms Moffat. 

1. He admitted to the author of the pre-sentence report that he drank excessively when alone.  He refused to acknowledge an alcohol problem.  He said he could manage his consumption of alcohol without the need for professional treatment.  He denied any mental health issues.  He did not dispute his guilt but minimised his responsibility “by alleging provocation”, but accepted that his actions were wrong. 

1. The author of the pre-sentence report continued:

Mr Ward presents as a 44 year old man whose concepts of personal relationships have included a resort to physical violence.  Whether this is a result of his own childhood is a matter which could be explored by a psychological assessment.  However, Mr Ward should have been aware that such behaviour is not acceptable following his conviction in November 2002 and the counselling that followed.

1. The author of the pre-sentence report went on to say:

His current conviction, whilst eliciting regret, preoccupies Mr Ward’s concern over possible inconveniences to him rather than the effects upon his victim.  As such, this Service holds significant concerns that Mr Ward would re-offend in a similar vein unless he undertook intensive therapeutic counselling.

No specific recommendations were made in relation to the sentence to be imposed. 

1. In his sentencing remarks, his Honour addressed the circumstances of the offence and remarked that it was a very serious offence of assault occasioning actual bodily harm.  He said the assault must have been absolutely terrifying for the complainant.  He observed that the applicant, while not disputing his guilt, was inclined to minimise his responsibility by alleged provocation.  He observed that there was no excuse for violence of this kind. 

1. His Honour noted that the applicant had the previous conviction to which reference has been made and noted the applicant had not committed any offences between November 2002 and the offence for which he was about to be sentenced.  He took into account that on the previous occasion, the applicant had been released on a good behaviour bond and had observed the terms of his bond.  He had regard to the impact of the offence upon the victim. 

1. He then took into account the applicant’s antecedents.  Specifically, he had regard to the fact that the applicant would drink excessively and that he had said he could manage his consumption without professional treatment.  Specifically, his Honour said:

The pre-sentence report mentions that he is a man whose concepts of personal relationships have included resorting to physical violence and poses a question as to whether this is a result of his own childhood. 

That is a matter which the Probation and Parole officer suggests could perhaps be explored by a psychological assessment, though I note that there was no application before me for any delay for that to occur.  Furthermore, the offence occurred, as I say, in the early hours of 18 March this year and there has been ample time for that to be arranged if it was thought desirable.

1. It is that last sentence which has excited the application which is made concurrently with the application for leave to appeal.  However, his Honour should not be understood as saying that if a psychological report had been obtained another sentence might have been imposed.  In fact, at the time of sentencing, the applicant’s antecedents were known to the applicant’s solicitor. They were included in the pre-sentence report. 

1. The sentencing judge sentenced the applicant upon the basis of the circumstances giving rise to this conviction and upon the basis that there had been but one previous act of violence which gave rise to the earlier conviction.  He did not impose the sentence upon the basis that the applicant was prone to violence when drinking.  Nor did he sentence the applicant upon the basis that there was an enduring violent relationship between the applicant and the victim.  He treated the two acts of violence which gave rise to the two separate convictions as discrete and isolated acts. 

1. In view of the fact that the applicant’s antecedents were known to the applicant’s solicitor and were brought to the attention of a sentencing judge in the pre-sentence report, the failure by the solicitor to separately obtain that information leads the applicant nowhere.  The failure to obtain a psychological report again is of no assistance to the applicant because the sentencing judge did not sentence upon the basis, as we have said, of recurring acts of violence which may have indicated a need for psychological treatment or counselling as part of the sentencing response.  That would not, however, necessarily reduce the sentence.  Indeed it might have led to its increase. 

1. There is nothing presently before the Court which would lead to a finding that a psychological report would be of any assistance whatsoever to the applicant.  The applicant relied, on this application, upon a psychological report from a Professor Stevens which was written on 22 February 2008.  That report was written without Professor Stevens having had the opportunity of meeting with the applicant.  It was also written relying upon affidavits not tendered in support of this application and therefore upon evidence not adduced in support of this application. 

1. It is impossible to identify what facts and assumptions Professor Stevens made in writing his report.  This is no criticism of Professor Stevens who was asked to write his report on the information provided him.  Nor is it any criticism of anyone else.  The fact of the matter is that there is simply no evidence which would support a finding on this application that, if the applicant’s antecedents were put to a psychologist and the psychologist had the opportunity of interviewing the applicant, the psychologist would reach an opinion which might assist the applicant in the sentencing process. 

1. It follows from what has been said that when this application for adducing fresh evidence is considered in its true light, it is not an application to adduce evidence that presently exists but an application to adduce evidence that may be obtained if an opportunity were given to the applicant.  For those reasons and the reason that, in any event, it would not have been relevant to the sentencing judge in the way in which the sentencing judge proceeded, the application must be refused. 

1. When that application to adduce fresh evidence is refused, it follows that because there is no complaint about the sentencing judge’s exercise of discretion on the material before him, the application for leave to appeal must also be dismissed.  For those reasons, there will be the following orders: 

1.On the application for leave to appeal, leave to adduce fresh evidence is refused.

2.The application for leave to appeal is refused.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:
Date:     26 February 2008

Counsel for the Appellant:  Mr J Pappas
Solicitor for the Appellant:  Ben Aulich & Associates
Counsel for the Respondent:  Mr J Lawton
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  25 & 26 February 2008
Date of judgment:  26 February 2008