Asciak v Conchie
[2001] WASCA 88
•20 FEBRUARY 2001
ASCIAK -v- CONCHIE [2001] WASCA 88
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 88 | |
| Case No: | SJA:1118/2000 | 20 FEBRUARY 2001 | |
| Coram: | McKECHNIE J | 20/02/01 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | GIOVANNI ASCIAK NATHAN JAMES CONCHIE |
Catchwords: | Criminal law Assault Domestic violence Sentence No question of principle Turns on own facts |
Legislation: | Nil |
Case References: | Badron v The Queen, unreported; FCt SCt of WA; Library No 990099; 4 March 1999 Gallegos v The Queen [1999] WASCA 191 Bartlett v Scantlebury [2000] WASCA 234 Bosnjak v Pownall, unreported; SCt of WA (Wallwork J); Library No 960048; 22 January 1996 Chan v The Queen (1989) 38 A Crim R 337 Collins v The Queen, unreported; CCA SCt of WA; Library No 990191; 16 April 1999 De Simoni v The Queen (1981) 147 CLR 383 House v The King (1936) 55 CLR 499 Jurkovic v The Queen (1981) 6 A Crim R 215 Kenny v Lewis, unreported; SCt of WA (Kennedy J); Library No 990113; 12 March 1999 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 R v Tait (1979) 46 FLR 386 Rahme v The Queen (1991) 53 A Crim R 8 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ASCIAK -v- CONCHIE [2001] WASCA 88 CORAM : McKECHNIE J HEARD : 20 FEBRUARY 2001 DELIVERED : 20 FEBRUARY 2001 FILE NO/S : SJA 1118 of 2000 BETWEEN : GIOVANNI ASCIAK
- Appellant
AND
NATHAN JAMES CONCHIE
Respondent
Catchwords:
Criminal law - Assault - Domestic violence - Sentence - No question of principle - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
(Page 2)
Representation:
Counsel:
Appellant : Mr R E Lindsay
Respondent : Ms M Georgevic
Solicitors:
Appellant : Robert Lindsay
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Badron v The Queen, unreported; FCt SCt of WA; Library No 990099; 4 March 1999
Gallegos v The Queen [1999] WASCA 191
Case(s) also cited:
Bartlett v Scantlebury [2000] WASCA 234
Bosnjak v Pownall, unreported; SCt of WA (Wallwork J); Library No 960048; 22 January 1996
Chan v The Queen (1989) 38 A Crim R 337
Collins v The Queen, unreported; CCA SCt of WA; Library No 990191; 16 April 1999
De Simoni v The Queen (1981) 147 CLR 383
House v The King (1936) 55 CLR 499
Jurkovic v The Queen (1981) 6 A Crim R 215
Kenny v Lewis, unreported; SCt of WA (Kennedy J); Library No 990113; 12 March 1999
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
R v Tait (1979) 46 FLR 386
Rahme v The Queen (1991) 53 A Crim R 8
(Page 3)
- McKECHNIE J:
Introduction
1 The background to this appeal is that on 5 April 2000 the appellant was convicted of unlawfully assaulting his estranged wife on 21 February 2000. He was sentenced to a period of 12 months' imprisonment to be served cumulatively on existing terms of imprisonment. There was no order for eligibility for parole.
2 On 17 July 2000 the appellant lodged, in person, an application for leave to appeal and an extension of time in which to appeal. On 11 September 2000, his application for an extension of time was granted but leave to appeal against conviction and sentence was refused by a judge. On that refusal, the appellant appealed to the Full Court. On 14 December 2000, the Full Court dismissed the appeal against conviction but granted leave to appeal against sentence on some grounds. This is the hearing of that appeal.
The events of 21 February 2000
3 On 21 February 2000, Annmarie Pamela Asciak, who was married to the appellant, was at home in Huntingdale when her daughter visited her. While they were having a cup of tea in the kitchen, in breach of a restraining order, the appellant entered the house, armed with a piece of wood. On entry he had broken the glass and also smashed the telephone. He followed his wife out of the house and confronted her. He assaulted her twice with blows against the back of her head which were inflicted with the piece of wood. He was arrested.
4 On the following day he pleaded guilty to the breach of the restraining order and damage charges. He was sentenced to a term of imprisonment of 6 months for breach of the restraining order and 4 months for the damage offence, the two sentences being made concurrent. He pleaded not guilty to the assault on his wife. The previous week he had been sentenced to a period of imprisonment suspended for 4 months. In consequence of the convictions I have set out, that sentence was activated and ordered to be served concurrently with the other sentences. The assault offence, the subject of this appeal, was therefore part of an incident which involved the appellant violently breaching a restraining order, causing damage and assaulting his wife.
(Page 4)
Sentencing remarks
5 The learned Magistrate, quite properly, had regard to the appellant's record, indicating:
"Mr Asciak, you seem to have an immense problem with violence, just looking at your record …"
6 His Worship then continued:
"…You see, you just refer this matter, Mr Asciak, as a - - as just a domestic matter. There is no such thing as domestic violence. When I say that, it is simply violence upon somebody with whom you happen to have a relationship, which is probably worse than somebody who in a sense that you didn't formerly have some degree of affection for. I mean, by going over there and doing what you did, you knew you were going to go to prison. You had to go to prison."
7 And then further on:
"Well this, Mr Asciak, is a most serious matter ... I would have thought it should have been a burglary type, I would have thought, because you went into a house with the intent to commit an offence. You went in there to cause damage to property. That was your intent, and I think you are probably quite fortunate you weren't charged with that."
8 After noting that the appellant had gone in armed with a piece of wood, his Worship concluded:
"If these matters were heard together, and - - so that the restraining orders, the assault together, I would have thought that the penalty that would have been applicable would have been far greater than the 6 months you received simply for these offences. In my view, they have to be seen as a totality. This offence was probably in a sense the most serious of them all. I do not intend to make any sentence concurrent, Mr Asciak. I think there has to be a message.
I mean, I accept in your case imprisonment has not done much good, but at the same time, I think the community is entitled to relief from your actions, at least for a short period of time. In relation to this assault, there is 12 months' imprisonment cumulative on the existing term. Given your history, I do not
(Page 5)
- consider that parole is a viable option. Mr Asciak, you continually offend. The matter is a serious one. I think there is little prospect of rehabilitation."
Grounds of appeal
9 The grounds of appeal allowed by the Full Court are as follows:
"(a) the learned trial Magistrate erred in imposing a sentence, which was manifestly excessive in all the circumstances;
(b) the learned trial Magistrate erred in not considering all possibilities of punishment nor did he consider adequately whether the appellant should be eligible for parole;
(c) the learned trial Magistrate erred in considering the uncharged burglary act as aggravating the offences charged;
(d) the learned trial Magistrate erred in failing to give adequate recognition to the unusual circumstances surrounding the matter, which justified a reduction in sentence."
10 I will deal with these grounds somewhat out of order and deal with the question of a manifestly excessive sentence last.
Whether the appellant should be eligible for parole
11 The appellant has apparently not had the benefit of a parole eligibility order for many years. An examination of the appellant's formidable record coupled with the fact that the appellant had breached an order of imprisonment suspended, within a very short space of time, would have been powerful considerations militating against an order for parole.
12 There must be some positive indication in favour of parole. The recent record of offending did not inspire hope that the appellant would take advantage of a parole eligibility order to rehabilitate himself. I am not persuaded that in the circumstances the Magistrate's sentencing discretion miscarried in failing to make an order for parole.
(Page 6)
The uncharged burglary
13 This ground has not been made out. While the comment is irrelevant there is, in the end, nothing to show that the Magistrate was confused as to the nature of the offence or misunderstood the central factual matters of the offence. There is often an element of homily and warning in sentencing remarks and I read the comment as no more than emphasising to the appellant the serious nature of his offending. The Magistrate was right to approach the sentence as part of a total sentence for the offences committed in the course of the one single episode.
14 From my reading of his sentencing remarks, he did not impermissibly sentence the appellant on the basis that he had committed a burglary. Mr Lindsay did not press the ground in relation to unusual circumstances and, in my opinion, he was correct not to do so. There was nothing particularly unusual in the circumstances of this offence and in that case the Magistrate did have the benefit of presiding over the trial and having the facts unfold.
Is the sentence manifestly excessive?
15 As I have just indicated, I consider the Magistrate was correct in looking at the totality of the events comprising the criminal episode in determining an appropriate sentence for the assault. The total sentence for the episode was therefore one of 18 months' imprisonment.
16 The Magistrate made a comment to the effect, really, that the earlier sentences were a little light. Whether or not he took that into account and tried to increase this sentence to what he regarded as an appropriate total I do not know, but doing so would have been an impermissible way of sentencing. However, I do not hold that the Magistrate committed this error.
17 The appellant had smashed his way into his wife's premises and then hit her twice. Although no circumstance of aggravation was charged, the assault must have been frightening committed, as it was, on a woman in her own house, minding her own business. The fact that the assault occurred in domestic circumstances is not a mitigating factor.
18 If there ever was a time when a degree of domestic violence was considered acceptable in the community that time has long passed and one might also refer to the case of Gallegos v The Queen [1999] WASCA 191. In my opinion, the circumstances of the offence and the lack of
(Page 7)
- favourable antecedents of the appellant, render the sentence of imprisonment unsuspended inevitable.
19 However, I also consider that the totality of the events of 21 February 2000 did not justify a sentence of 18 months. In my view, the totality of the events, bearing in mind some of the comments made in Badron v The Queen, unreported; FCt SCt of WA; Library No 990099; 4 March 1999, and in other cases, was such that a proper sentencing range would have been considerably less.
20 To that extent I consider the Magistrate erred with the consequence that the sentence imposed for the assault is excessive to a degree to warrant intervention. In my view, the whole of the circumstances of that day warranted a sentence of 12 months' imprisonment. I would therefore allow the appeal, set aside the sentence of 12 months' imprisonment. In lieu I would impose a sentence of 6 months' imprisonment to be served cumulatively on the sentences imposed on 22 February 2000.
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