Biddle v Applebee - [2017] TASSC 7

[2017] TASSC 7

COURT: SUPREME COURT OF TASMANIA

CITATION: Biddle v Applebee [2017] TASSC 7

PARTIES:  BIDDLE, Shane
  JONES, Steven
  v
  APPLEBEE, David Terrence

FILE NO:  803/2016
DELIVERED ON:  9 February 2017
DELIVERED AT:  Burnie
HEARING DATE:  9 February 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Whether penalty manifestly inadequate – Assaults and breaches of family violence order – Convictions and 18 months' probation.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
           Applicants:  S Thompson
           Respondent:  G A Richardson
Solicitors:
           Applicants:  Director of Public Prosecutions
           Respondent:  G A Richardson

Judgment Number: [2017] TASSC 7
Number of paragraphs: 15

Serial No 7/2017
File No 803/2016

SHANE BIDDLE and STEVEN JONES
v DAVID TERRENCE APPLEBEE

REASONS FOR JUDGMENT BLOW CJ

(Edited version of reasons delivered orally) 9 February 2017

This is a motion to review some sentencing orders made by a magistrate, Ms S Cure, in relation to four family violence offences committed by the respondent against his wife. They were committed on two occasions.
The learned magistrate convicted him of the four offences, and made a probation order for 18 months, with a requirement that he participate in the Family Violence Offender Intervention Program. She did not impose any other penalty. The applicants contend that in the circumstances the penalties that the learned magistrate imposed were manifestly inadequate. Counsel for the applicants has submitted today that the only appropriate course in all the circumstances was for her Honour to have imposed a sentence of imprisonment – perhaps a wholly suspended one.
The first occasion was on 17 October 2015. The respondent and his wife at that stage had been living together for 12 years. They had been married for 10 years. They have three children. The respondent has a long-standing alcohol problem, and he has had a dreadful habit of becoming nasty and violent when drunk. As a result, he has a bad record of prior convictions over a long period. On the night of 16 October 2015, the respondent started drinking. He got drunk. In the early hours of the morning of 17 October, he wanted to drive somewhere in his car. His wife's car was behind it, and he was unable to go anywhere without her moving her car. Very sensibly, she refused to move her car. He reacted violently by pushing her onto a bed and by holding her right arm behind her back. He let go when their eldest child entered the room. That child at that stage was 10 or 11 years old. There is no suggestion that the respondent's wife suffered any injury as a result of that assault. As a result of that incident, a police family violence order was made, and the respondent was charged on summons with assault, contrary to the Police Offences Act 1935.
The second incident began on New Year's Eve of 2015 and continued into the early hours of the morning of New Year's Day 2016. On New Year's Eve the couple went to the home of a mutual friend. The respondent had too much to drink. He became nasty. He called his wife a slut and a liar. The police family violence order made on 17 October 2015 required him, amongst other things, not to abuse his wife. By calling her a slut he breached a condition of that order. He was charged with that, and subsequently pleaded guilty to that. The couple went home from the mutual friend's place. In the early hours of New Year's Day the respondent, once again, wanted to drive somewhere in his car. His wife, very sensibly, hid his car keys. He was drunk and angry. He grabbed her by the right arm and twisted it, and demanded the keys. That amounted not only to an assault, but also to a breach of the police family violence order, which required him not to assault his wife. The eldest child was present on that occasion too, and actually rang the police herself. The respondent was arrested but was bailed by a justice of the peace some hours later.
In relation to the New Year's Eve and New Year's Day offences, the respondent was charged with two breaches of the family violence order and with assault. He pleaded guilty to all four charges before the learned magistrate. At the time he was sentenced he was 49 years old, unemployed, and in receipt of a Newstart allowance. As I have said, he had a large number of prior convictions for family violence offences, assault, drink-driving offences, and other things. He had served terms of imprisonment. He had been the subject of community service orders. He had been on probation many times.
There were a number of mitigating factors though. He pleaded guilty, although the chances of him being found not guilty seem to me to have been quite remote. But most significantly he demonstrated insight into his alcohol problem, remorse, and a desire to overcome his drinking problem. Perhaps largely as a result of the intervention of the learned magistrate, by the time he was sentenced, he had been to see a doctor and had obtained medication to aid withdrawal from alcohol consumption, and had been abstaining from alcohol for a period of three weeks, with a desire to continue.
As a consequence of the offences around New Year's Eve, the respondent had been prevented from continuing to live with his wife and their three children. As the learned magistrate observed in discussions with him, that constituted a heavy price for what had occurred.
So far as the steps taken by the respondent towards rehabilitation were concerned, counsel for the applicants submitted that they were too little, too late. I disagree. The question that I have to decide is whether the orders made by the learned magistrate were "unreasonable or plainly unjust": House v The King (1935) 55 CLR 499 at 505.
There is an important principle that must not be overlooked which was expressed by King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-213, as follows:
"There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."
In this case an experienced magistrate took a lenient course. It would certainly have been open to her to have imposed a sentence of imprisonment – perhaps a short one, and perhaps a suspended one. It would not have been appropriate for her to have made a community service order because she had been provided with a pre-sentence report by a probation officer in which she was told that the respondent was considered unsuitable for community service. There was a problem about imposing a significant fine because the respondent clearly was not a man of means. He had been in receipt of a Newstart allowance for several years. His ability to pay would not have been great.
As Mr Richardson observed, though not in these words, the "big stick" approach had not worked in the past for this respondent. He had been in trouble lots of times, and punitive sentencing options and suspended sentences did not seem to deter him. But the learned magistrate evidently, after a conversation with him, made an assessment of him that led her to conclude that this was an appropriate case for leniency. In my view the offences were not so serious that any course other than imprisonment must be regarded as unreasonable or plainly unjust. The respondent did not injure his wife. There was no suggestion that what he did hurt her significantly.
The pre-sentence report revealed that the respondent, an unemployed person, had been doing voluntary work for the Salvation Army for about five years, and doing a lot of it, as well as mowing lawns for elderly people. He certainly was not all bad. That strengthens the case for sentencing orders aimed at rehabilitation, rather than personal deterrence or general deterrence.
It was bad that these offences involved family violence; that there was a repetition of family violence; that both incidents occurred in the presence of the eldest child; and that the New Year's Eve offences occurred at a time when the respondent was on bail for the October offence. Notwithstanding all of those things, and notwithstanding the respondent's record, I think that in this case it was within the bounds of justice and reasonableness for the learned magistrate to make sentencing orders which emphasised rehabilitation. It must have been remarkably clear to the respondent that if he re-offended he could not expect leniency again. So, in all the circumstances, I am not satisfied that the sentencing orders were manifestly inadequate.
For the reasons stated, the motion to review is dismissed.
I order that applicants pay the respondent's costs of and incidental to the motion.