Bell v Freeman

[2020] TASSC 51

[2020] TASSC 51

COURT:  SUPREME COURT OF TASMANIA

CITATION:                Bell v Freeman [2020] TASSC 51

PARTIES:  BELL, Chauncey Aaron
  v
  FREEMAN, Jessica
  TYE, Andrew
  WILKIE, Scott

FILE NO:  2177/2020
DELIVERED ON:  26 October 2020
DELIVERED AT:  Hobart
HEARING DATE:  26 October 2020
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Orders and convictions – Sentence – Custodial orders – Other cases – Parole eligibility order and community correction order to operate from end of sentence of imprisonment.

Sentencing Act 1997 (Tas), s 17(2A).
Aust Dig Magistrates [1220]

REPRESENTATION:

Counsel:
             Applicant:  K Baumeler
             Respondent:  S Nicholson
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2020] TASSC 51
Number of paragraphs:  24

Serial No 51/2020

File No 2177/2020

CHAUNCEY AARON BELL v JESSICA FREEMAN,
ANDREW TYE, SCOTT WILKIE

REASONS FOR JUDGMENT  BLOW CJ

(Edited version of reasons given orally)  26 October 2020

1. This is a motion for the review of a series of sentencing orders made by the Chief Magistrate, Ms C Geason, in August 2020. She sentenced the applicant to imprisonment for 12 months in respect of five offences, made provision for parole after eight months, and made a community correction order, to operate for a period of 12 months after his release from prison and the expiry of any period of parole.  The applicant has moved for the review of those orders, asserting that the penalties imposed were manifestly excessive.

2. Before the hearing, I got my associate to draw the attention of counsel to s 17(2A) of the Sentencing Act 1997. That subsection prohibits a sentencer from making both a parole eligibility order and a community correction order to operate from the end of a sentence of imprisonment. The subsection reads as follows:

   "(2A)  A court that imposes a sentence of imprisonment on an offender may not make an order under subsection (2)(b) in respect of the offender if the court —

   (a)makes in respect of the offender a community correction order; and

   (b)orders that the operational period, within the meaning of section 42AM , of the community correction order is to commence at the end of the sentence of imprisonment."

3. At the hearing of this motion, counsel for the respondent agreed to me proceeding as if there had been a second ground of review, asserting that the learned Chief Magistrate erred in law by imposing orders that were inconsistent with s 17(2A).

4. The first issue that I need to address is whether the sentence of 12 months' imprisonment, with a non-parole period of eight months, was manifestly excessive for the five offences that that sentence related to. There were some other matters that the learned magistrate dealt with on the same day in respect of which she simply recorded convictions. 

5. The five offences were committed over a period of about six months, commencing on 12 October 2019 and ending on 9 April 2020. To place those offences in context, I think it is appropriate that I include information as to some of the sentences of imprisonment that the applicant has served in recent times.

6. On 13 August 2019, I sentenced him in relation to a drug charge and a sex charge. The drug charge is the subject of an appeal which is pending in the High Court, special leave having been granted, but he has already served the sentence that I imposed in relation to that charge.  On the drug charge, I sentenced him to nine months' imprisonment with effect from 13 October 2018. In respect of that sentence I made no order as to eligibility for parole. In respect of the sex charge, I imposed a partly concurrent sentence. I sentenced him to ten months' imprisonment with effect from 13 February 2019, with eligibility for parole after he had served six months of that sentence. Given that I sentenced him on 13 August 2019, he became eligible for parole as soon as I imposed that sentence. The six months expired at midnight the previous night.

7. I am advised by counsel that he was not released on parole but that, as a result of a grant of three months' remission, he was released on or about 12 September 2019. He had only been out for about a month when he committed the first of the offences that I am now concerned with. On 12 October 2019 he assaulted his partner, Ms Wright. He was charged with assault under the Police Offences Act 1935. He pleaded guilty to that charge and all the other charges that the learned Chief Magistrate dealt with at the same time.

8. On 12 October the applicant and Ms Wright were at a bus stop in Moonah. There was an argument between them which involved them getting onto a bus and off again.  Ultimately the applicant assaulted his partner. He reached for her arm. She pulled away. He moved closer. He grabbed her in a bear hug and removed her from the bus, swearing at her. It is significant that this was a family violence offence and that it was committed in public, in front of other people. The learned magistrate commented that he had limited remorse about that incident. She made that comment as a result of information in a pre-sentence report that she had ordered. It appears that the applicant told the probation officer who wrote that report that he did not assault his partner on that occasion at all. He gave a version of events inconsistent with his plea of guilty.

9. Twelve days later, on 24 October 2019, the applicant committed the second offence that was the subject of the sentence of imprisonment.  Again this was an assault upon his partner, and it occurred at a bus stop. In the words of the learned Chief Magistrate, "... suddenly, and for no apparent reason, [he] punched Ms Wright to the head". It was in a public place. It was in front of other people. He threatened one of the eye witnesses, saying, "What are you looking at?" and "I'll put a cap in you."  The police were called. They visited Ms Wright later. They observed that she had a large swollen lump on her forehead.

10. Again, the applicant told the probation officer a different story, indicating that he was not then willing to take responsibility for that assault, and the learned Chief Magistrate took that into account as indicating a lack of remorse.  There is nothing to suggest that her Honour treated the absence of remorse as an aggravating factor. It is clear that remorse, when it exists, is a mitigating factor[1], so her Honour's comments related to the strength of that mitigating factor.

    [1]  Ferguson v The Queen [2001] TASSC 20 at [16].

11. Those two assaults occurred in October 2019. On 30 January 2020, a magistrate imposed a series of short sentences of imprisonment on the applicant. It appears from his record of prior convictions that the first of those sentences was backdated to 3 October 2019. He obviously was not in custody on the 12^th or 24^th of that month, so 3 October must have been an artificial date calculated so as to give credit for one or more periods of time spent in custody in relation to the charges that that magistrate then dealt with. However it appears that, probably from some time in late October, the applicant was in custody for several months. All up, he would have served four months in relation to that collection of sentences. It would appear that he was released on about 2 January 2020.

12. On 10 March 2020 the applicant was sentenced to another month in custody by a magistrate, backdated to 7 February 2020. It would seem that he was at large again from 10 March, or thereabouts.  On 20 March he was found by the police in possession of a knife in a public place. He was charged in relation to that. He pleaded guilty before the learned Chief Magistrate. She simply imposed a conviction in relation to that offence.  The sentence of imprisonment does not relate to it.

13. On 26 March the applicant committed the third offence that is the subject of the sentence of imprisonment by breaching a police family violence order. An order had been made requiring the applicant not to be within 50 metres of Ms Wright. He breached that order by being with her at the TAB in Moonah on 26 March.

14. The fourth offence that the sentence of imprisonment relates to was committed on 6 April 2020. Again the applicant breached the police family violence order, this time by being at the Eastlands shopping centre with Ms Wright. He was also charged with giving a false name to the police on that occasion. In respect of that charge, the learned Chief Magistrate simply recorded a conviction.

15. At the time of the Eastlands incident, the applicant was required by a public health direction to stay home. He was charged with not staying home as the result of the police finding him at Eastlands. The learned Chief Magistrate dealt with that charge and simply imposed a conviction. Significantly, the applicant was bailed in relation to the Eastlands charges, and it was made a condition of his bail that he abide by a curfew applying between 9.30pm and 7am each night. Normally curfews are imposed to prevent thieves from going out and stealing at night. But in this case, given the nature of the charges that led to the order for bail, it would seem that an objective of the curfew condition, if not the only objective, was to keep the applicant at home when, for public health reasons, he should not have been out.

16. Police officers conducted a curfew check at 1.40am on 9 April. The applicant was not home. On 12 April he was arrested and charged with a breach of bail as a result of not complying with that curfew condition. That charge is the fifth of the five charges that was the subject of the sentence of imprisonment. The applicant has been in custody ever since that arrest on 12 April. 

17. The sentence that the learned Chief Magistrate imposed was a global sentence of 12 months' imprisonment, with a non-parole period of eight months, relating to the two assaults in October 2019, the two breaches of the police family violence order in March and April 2020, and the breach of bail on 9 April 2020.  The question for me is whether that sentence was manifestly excessive.

18. The two assaults were serious in that they were family violence assaults. They were committed in public places. They were committed in the presence of members of the public. There were two alarming situations.  The injuries might not have been severe, but, in those other respects, these were bad examples of family violence. The two breaches of the police family violence order were blatant breaches. Orders are meant to be complied with. Sentences of imprisonment can be appropriate for breaches of that nature.  I regard the breach of curfew offence as being particularly serious because it was committed on 9 April when the curfew was a precaution against the spread of the COVID-19 virus. Residents of Tasmania were required to stay home, and anybody who went out unnecessarily ran the risk of spreading a fatal virus that was highly contagious and associated with a remarkably high death rate. I regard that as a very serious offence warranting imprisonment.

19. The applicant has a very bad record of prior convictions. He has dozens of convictions for family violence offences. He has been to prison several times for family violence offences. Suspended sentences, probation orders, and even a drug treatment order have been imposed without success.  There are some mitigating circumstances, but not many. The applicant pleaded guilty.  That is significant in relation to Ms Wright because it avoided any need for her to be required to give evidence, and it involved abandoning any hope of getting out of the charges as a result of her not wanting to give evidence.  It is also significant that, after the assaults, the applicant had been in and out of prison a couple of times. Although the totality principle does not apply, the sentence related to charges that were becoming a little old, so far as the applicant's history is concerned.  It is also significant that the applicant had a very difficult and dysfunctional childhood, and that it was his upbringing – which is probably not the right word – that led to him committing all sorts of drug and dishonesty offences in his adult life.

20. In all the circumstances, I am not persuaded that the head sentence of 12 months' imprisonment was unreasonable or plainly unjust[2]. The learned magistrate obviously concluded in accordance with Power's case[3] that eight months was the minimum time she considered that the applicant should spend in custody before conditional release. In my view, in all the circumstances, there is nothing unreasonable or plainly unjust in relation to the length of the non-parole period. 

    [2]  House v The King (1936) 55 CLR 499 at 505.

    [3]  Power v The Queen (1973) 131 CLR 623.

21. I am not persuaded that the sentence that was imposed was manifestly excessive.  In saying that, I take into account the fact that the community correction order was part of the sentence. That order was an order expressed to operate for 12 months at the expiration of any parole period.  There were special conditions requiring the applicant to attend educational and other programs as directed by a probation officer, to undergo assessment and treatment for drug dependency as directed by a probation officer, to submit to testing for drug use as directed by a probation officer, and to attend and participate in the EQUIPS addiction program if directed to by a probation officer.

22. As I have said, s 17(2A) of the Sentencing Act required that the learned Chief Magistrate not impose both the parole eligibility order and the community correction order. The motion to review must therefore succeed. It is appropriate that I re-sentence the applicant.

23. In my view the community correction order should stand, and it should operate as from his release from custody. He should be re-sentenced to a period of imprisonment which commenced on 12 April 2020. The only questions for me are the length of the sentence and whether any part of it should be suspended.  In the circumstances, I think that the most just course would be to make an order that reflects the approach her Honour took, with a 12-month head sentence, and a partial suspension so that the active part of the sentence is a period of eight months.

24. I allow the motion to review. I make an order varying the sentence of imprisonment imposed by the learned Chief Magistrate on 28 August 2020 to make it a sentence of 12 months' imprisonment with effect from 12 April 2020, with four months of that sentence suspended on condition that the applicant not commit any offence punishable by imprisonment for a period of two years after his release from prison.  I make a third order varying the community correction order imposed on 28 August 2020 so that it specifies that it is to commence upon the release of the applicant from prison.