Bartlett v Scantlebury - [2000] WASCA 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: BARTLETT -v- SCANTLEBURY [2000] WASCA 234

CORAM: MILLER J

HEARD: 22 AUGUST 2000

DELIVERED : 29 AUGUST 2000

FILE NO/S: SJA 1070 of 2000

BETWEEN: JOHN RAYMOND BARTLETT
Appellant
AND
ROBERT ANTHONY SCANTLEBURY
Respondent

Catchwords:

Criminal law - Appeal against sentence - Unlawful assault - Domestic violence - No residual injury of any consequence - Appellant aged 47 years, of prior good character and engaged in stable employment - Sentence of 12 months imprisonment - Set aside and fine imposed in lieu

Legislation:

Fines, Penalties and Infringement Notices Enforcement Act 1994

Sentencing Act 1995, s 6

Result:

Appeal allowed
Sentence of imprisonment set aside
Fined $6000

Representation:

Counsel:

Appellant: Mr A J Prentice
Respondent: Mr J Thompson

Solicitors:

Appellant: Edwin Abdo & Associates
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Badron v R, unreported; SCt of WA; Library No 99099; 4 March 1999
Bosnjak v Pownall, unreported; SCt of WA; Library No 960048; 22 January 1996
Gallegos v R [1999] WASCA 191
Kenny v Lewis, unreported; SCt of WA; Library No 990113; 12 March 1999

Case(s) also cited:

Lowndes v R (1999) 195 CLR 665

MILLER J: The appellant was charged in the Court of Petty Sessions, Bunbury that on 25 December 2000 (sic) 1999 at Bunbury he unlawfully assaulted one Karen Jane Michi. A statement of material facts supplied to the appellant particularised the offence alleged in the following terms:
"SUMMARY OF OFFENCE
In this instance the defendant and complainant have been in a defacto relationship for the past 6 years.
At about 8.00 pm on Saturday the 25th of December 1999, the complainant and Defendant have returned home to 21 William Street, Bunbury after having a domestic dispute at an associates house.
On returning home the dispute has continued with the defendant squeezing the complainants arms and pulling her hair, as she has attempted to leave the house.
The complainant has pulled the defendant (sic) beard in order to have him release his grip."
It will be observed from the statement of material facts that the assault alleged was the squeezing of the complainant's arms and the pulling of her hair. Whilst it might be argued that these were two separate assaults, the incidents were alleged to have occurred simultaneously and thus constituted the one alleged offence.
The appellant pleaded not guilty to the charge and the matter was heard in the Court of Petty Sessions at Bunbury on 20 April 2000. Evidence was given by the complainant that on Christmas Day 1999 things began abnormally. Instead of a "normal Christmas Day" with the giving and unwrapping of presents, she and the appellant, with whom she had been in a de facto relationship for some six years, left with one of the complainant's sons for Harvey. The appellant had apparently begun drinking before 9.30 am and before the party had left Bunbury, and this drinking continued throughout the day at two separate locations in Harvey. According to the complainant's testimony the appellant became upset during the course of the day and he was "picky" towards her throughout. Because of the amount the appellant had had to drink the complainant insisted on driving home to Bunbury where she was desirous of visiting some friends. As she turned a roundabout to head in the direction of the home of her friends the appellant grabbed the steering wheel and caused the car to swerve across the roadway where the appellant was able to bring it to a halt on or over portion of the dividing white line of the road. There was then what was described as a "yelling match at each other" and, according to the complainant, she was ordered to drive home which she did. There, she was allegedly prevented from using the telephone and followed around the house where the various entrances were blocked so that she could not leave the house. There were arguments between the complainant and the appellant during which the appellant allegedly grabbed the complainant by the arms and "tried to pull her around". The complainant said that she was gripped very strongly by the arms and then ultimately there was a "discrepancy by the cupboard in the kitchen". By this I assume the complainant to mean there was a dispute between the two parties which led to the events which were the subject of the charge of assault. They were described by the complainant in the following terms:
"What do you mean a discrepancy? What do you mean by that?---Gripping - - you know - -
Grabbing where?‑‑‑Arms; strong; pulling. Pulling my hair.
Pulling your hair. Where did he do that?---Here.
At the back of your head?---Yeah.
But where did that happen within the house?‑‑‑In the kitchen by the kitchen cupboard. It's in between the back door was that way and the door to the front of the house is that way.
And, can you tell the court, with what force that was done?‑‑‑Very strong. Very angry.
And, did that have any physical effect upon you?---Yes; yes. Very scary.
Scary. What about in relation to any injury or pain as a result of - -?---Well, I didn't feel my arms until the next morning. The pain in my arms. Because all my arms just went numb. My head really hurt. You know, it was just really hurting. He sort of - - as he - - we were by the cupboard, he sort of had his hand - - one of his hands was like a fist but no - - if you know what I mean, it sort of come up and in - - as I said time out, he sort of realised what he was doing and sort of back off. But he'd - - the strength of his grip was really strong."
According to the complainant there then ensued a dispute in relation to the motor vehicle (the details of which do not matter) followed by an incident in which the appellant grabbed the car keys from the complainant and broke her necklace. There was verbal abuse and then the complainant was forced to sleep in the bedroom when she had wanted to sleep on the couch in the lounge room. According to the complainant she had bruises on her arm the next day and she stayed in the bedroom throughout the day until the afternoon. She had a migraine headache that day and this was continuous for the next week during which time she had to consult her doctor.
The appellant's description of the events of Christmas Day differed dramatically from that of the complainant. He contended that the complainant was drunk and at the house had pushed him back against the wall so that he stepped towards her and grabbed her by the shoulders. Thereupon she allegedly grabbed his beard and he reached and grabbed her by the hair.
The learned Magistrate accepted beyond reasonable doubt the testimony of the complainant in relation to the events that occurred on Christmas Day. He made reference to the fact that there were at the very least three separate occasions in which the appellant had applied force to the complainant either by grabbing the back of her arms, by pulling her hair, or otherwise applying sufficient force to take the keys from her. His Worship also considered that the prosecution case established that there had been the indirect application of force by the appellant in the nature of "intimidatory applications, accompanied by conduct of the defendant in a threatening nature" over a period of some two days. The learned Magistrate considered the appellant's evidence to have been contrived and "in every respect painted by him or sought to be painted by him without fault on his part". He was described as "manipulative in every respect". The magistrate concluded his findings by saying that he accepted without qualification the evidence given by the complainant and was thus satisfied beyond reasonable doubt that the charge was proven. The prosecution thereupon informed the court that there was no prior record for the appellant and counsel for the appellant put to the learned Magistrate that as the appellant worked as a boilermaker, was 47 years of age and clearing $800 per week, a fine might be an appropriate disposition of the matter. The learned Magistrate indicated immediately that he was not of a mind to accept that option and considered that the case was a very serious one, saying:
"I am presently minded to suggest as I indicated in my decision, this is a protracted event, undertaken behind closed doors. Necessarily, protracted to the extent not only did it include application of physical violence in an intimidating way. I was attended also by continuous and persistent intimidation over 2 days, minimum. It is a serious case of domestic violence, of which the community is rightfully to be concerned."
The learned Magistrate had made it quite clear that he was considering imprisoning the appellant, but gave to the appellant's counsel time to take instructions for the purpose of a more detailed plea in mitigation. This was given later the same day, and the learned Magistrate was informed that the parties had been in a six year relationship interrupted by separations on four occasions but on each occasion resulting in a reconciliation. The complainant had three children of a previous marriage and the appellant had substantially supported those children and the complainant over the six year period. He was a qualified boilermaker and had worked throughout the preceding six years in various parts of Australia. After Christmas Day the complainant had obtained a restraining order against the appellant and he moved out of the house and left her with the house, vehicle and all furnishings. Thereafter the complainant was alleged to have persisted in trying to contact the appellant and had visited him at his home where sexual relations had taken place on New Year's Eve. The appellant had made application to vary the restraining order, a hearing in that regard being listed for 14 July. It was further put to the learned Magistrate that the appellant was assisting one of the complainant's son's financially (with rent and travelling expenses for a trip to Tasmania) and that this person had been effectively treated by the appellant as his son. It was finally put to the learned Magistrate that given the age of the appellant (47 years) his trade, employment history, earnings and lack of prior convictions a substantial fine would be the appropriate disposition of the matter.
The learned Magistrate made reference to the fact that the maximum penalty which could be imposed was imprisonment for a period of 18 months or a fine of $6000. He found that during the relationship between the complainant and the appellant there had on two prior occasions been "unfortunate events", one in Tasmania and another some two weeks before Christmas Day. The latter statement appears to be an error of fact as there was no evidence that anything had occurred before Christmas Day. His Worship accepted that there was no substantial physical injury to the complainant as a result of the events that occurred on 25 December, the complainant's injuries being largely confined to some pain as a result of her hair being pulled and some bruising to her left upper arm. His Worship was however concerned about the mental impact of what had occurred. He said:
"There is however, a very substantial in my view, and lasting injury in the terms of the mental impact that the events of here, under consideration, had. And that was never more so evident, than the course of the lady giving evidence today. She was certainly traumatised throughout her evidence and when necessarily excused from giving evidence, sought the leave of the court to immediately depart. Indicating a continuing mental effect, in terms of what occurred."
The learned Magistrate observed that cases of domestic violence were particularly insidious, difficult to detect and necessarily by reason of the relationship between the parties often restrained "in their descriptive consequences". He added that "they have very serious and significant implications, both for the parties and for the community".
In concluding his sentencing remarks the learned Magistrate referred to the fact that the application of force by the appellant involved "three identifiable occasions" and the assault in question was "precipitated by intimidation". He found no contrition or remorse on the part of the appellant and whilst recognising that in every other respect the appellant was a contributing member of the community and presently employed in gainful employment the case was nevertheless one which was a very serious case of common assault. His Worship went on to say:
"… it is difficult to imagine without bending one's imagination, a more serious, persistent act that did not result in a more serious charge, as a result of injuries. In my view, having regard to all the factors, the considerations of deterrence, both general and particular outweigh those other matters of reformation and considerations applicable to sentencing. The only appropriate disposition is a custodial one.
In the circumstances, you are sentenced to 12 months' imprisonment. I will however, declare that you are eligible for parole."
On 28 April the appellant was given leave to appeal the sentence of 12 months' imprisonment. The ground of appeal is as follows:
"The learned Magistrate erred in law in imposing a sentence of imprisonment of twelve months with eligibility for parole in circumstances where:
i)The prisoner is aged 47, has no previous record, was employed at the time of sentence and clearly has a capacity to pay a substantial fine;
ii)The Prosecution's Statement of Material Facts and the Complainant's evidence at trial did not disclose a serious assault;
iii)The learned Magistrate failed to give any sufficient consideration to the principles of sentencing defined in s6 of the Sentencing Act, 1995 (as Amended)."
At the hearing of the appeal counsel for the respondent suggested that the ground of appeal should be narrowly construed, the only specific legal error identified being that the learned Magistrate allegedly failed to give any sufficient consideration to the principles of sentencing defined in s 6 of the Sentencing Act 1995. However, I consider the ground of appeal to be wide enough to embrace a general complaint that the sentence of imprisonment was manifestly excessive in the circumstances in that it was not the only disposition of the matter which was open and was in all the circumstances an erroneous disposition of the matter.
There is no doubt that the view of the learned Magistrate on the problems of domestic violence in the community where he presides must be respected. In Kenny v Lewis, unreported; SCt of WA; Library No 990113; 12 March 1999, Kennedy J pointed out in relation to a case which had come from Bunbury Petty Sessions and which involved (inter alia) a complaint of assault which was an act of domestic violence (at 9):
"So far as the sentence for the assault was concerned, I accept that it was at the top end of the range, but it is not such as in my view would warrant the interference of this Court. Offences of domestic violence generally do require deterrent sentences and the Bunbury Magistrate is in a far better position than I am to assess the need for deterrence in his magisterial district. I am not persuaded that the sentence of 12 months' imprisonment which his Worship imposed fell outside the limits of a sound discretionary judgment."
However, the case with which Kennedy J was dealing involved a very serious of offence occasioning bodily harm. The appellant in that case had arrived home from work and begun drinking, and later in the night had appeared in an agitated condition. He thereupon became aggressive towards his de facto wife, forced her onto a rear landing of the house, pushed her several times in the face with a clenched fist and then punched her with such force that she fell backwards, smashing through a railing and falling onto her back on concrete below the landing. Fortunately she did not sustain any further injuries of any significance as a result of the fall, but the incident was clearly a very serious one and it is no surprise that Kennedy J felt the sentence of 12 months imprisonment to be within the range of a sound discretionary judgment.
In Gallegos v R [1999] WASCA 191 a Full Court comprised of Malcolm CJ, Murray and Parker JJ had occasion to deal with an appeal from a sentence of 2 years' imprisonment for assault occasioning bodily harm where the circumstances were again extremely serious. The applicant, who had known the complainant for some time, had approached her in a nightclub in Fremantle where he spat on her, touched her on the face with a tissue covered with faecal material; then followed her home where, in the lounge room, he punched her violently hitting her to the face, chest and arms, pushing her over and kicking her in the back. In addition he threatened her with a knife. The case was therefore extremely serious and it is not surprising that the court declined to interfere with the sentence imposed for assault occasioning bodily harm. Malcolm CJ at [24 - 25] followed an earlier decision of the court in which it had been made clear the fact that a crime occurred against a domestic background was not a mitigating factor as had sometimes in the past been suggested. To the contrary, in the majority of cases of domestic violence a deterrent sentence, both personal and general will be called for.
In Badron v R, unreported; SCt of WA; Library No 99099; 4 March 1999 a Full Court comprised of Malcolm CJ, Ipp and Anderson JJ, dealt with a case in which the applicant had been convicted of aggravated burglary whilst armed and assault. A sentence of 3 years' imprisonment imposed in the District Court was reduced to 18 months, it being pointed out by the court that the assault on the complainant was a reaction to the applicant having been pushed by the complainant in involving only a straining of the complainant's neck which was described as "not a serious injury".
In Bosnjak v Pownall, unreported; SCt of WA; Library No 960048; 22 January 1996, Wallwork J dealt with an appeal against a sentence of 9 months' imprisonment which arose out of an incident of domestic violence where the appellant had kicked his wife in circumstances where he visited the former matrimonial home in breach of a restraining order. The appellant was a 37 year old man with no prior convictions and was in regular employment (earning $800 per week). Wallwork J considered there were many factors which militated against the proposition that a sentence of imprisonment was necessary and that there was no other way to deal with the matter. His Honour pointed out that the appellant was 37 years of age with no prior convictions, had pleaded guilty, undertaken to improve on his behaviour, shown that he was a good provider, and that his wife wished him to return and for the marriage to continue. His Honour concluded:
"It is a most serious matter to send anybody to gaol. It is only done if there is no other way in which the matter can be disposed of. That is the effect of James' case and many other decisions of this Court and others. It was not necessary that the appellant be imprisoned under all the circumstances."
In my view the present case did not call for a sentence of imprisonment as the only disposition which was open. Although the learned Magistrate considered that deterrence (both general and particular) outweighed all other considerations applicable to sentencing (and by inference therefore considered under s 6(4) of the Sentencing Act and that the seriousness of the offence was such that only imprisonment could be justified) I respectfully disagree with his Worship. There was in this case only one assault in relation to which the appellant had been convicted. It was the combination of seizing his de facto wife by the arm and pulling her hair. As a result of that assault she suffered some bruising and migraine headaches which appear to have been more related to the mental ramifications of the matter than the physical. The learned Magistrate took into account all the surrounding circumstances, but in my view placed undue emphasis upon the events of the two day period which spanned Christmas Day, taking into account matters which in truth would have justified separate charges of assault and/or deprivation of liberty. As it was, the appellant was not charged with any offences other than the single incident of grabbing his wife by the arm and pulling her hair. It was appropriate that the learned Magistrate should have taken into account the traumatic effect to the complainant of the assault and the appellant's behaviour generally on the day in question and perhaps the day afterwards, but it was wrong to give undue weight to the surrounding incidents. This the learned Magistrate appears to have done, because the assault itself could not, on my view, have justified a sentence of 12 months' imprisonment. Although assaults which involve domestic violence do call for deterrent sentences, this assault could not be categorised as being of the most serious kind. The learned Magistrate's description of it as one of the most serious acts of assault to imagine was in my view an over‑reaction to the facts of the case.

Given the prior good character of the appellant, his stable employment, financial support for one of the complainant's sons, and the fact that the parties were no longer together, the appropriate disposition of the matter was in my view a substantial fine. The learned Magistrate would in my view have been justified in imposing the maximum fine of $6000 and at the hearing of the appeal that is penalty which I substituted for the sentence of imprisonment imposed. On that day I allowed the appeal, set aside the sentence of imprisonment and in lieu directed that the appellant be fined $6000 with the provisions of the Fines, Penalties and Infringement Notices Enforcement Act 1994 to apply.