Bluett v Lusted
[2017] TASSC 15
•16 March 2017
[2017] TASSC 15
COURT: SUPREME COURT OF TASMANIA
CITATION: Bluett v Lusted [2017] TASSC 15
PARTIES: BLUETT, Mark William
v
LUSTED, Gary
BONDE, Michael
FILE NO: 99/2017
DELIVERED ON: 16 March 2017
DELIVERED AT: Launceston
HEARING DATE: 14 March 2017
JUDGMENT OF: Pearce J
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Common assault – Imprisonment for 90 days with 78 days suspended not manifestly excessive.
Police Offences Act1935 (Tas), s 35.
Aust Dig Criminal Law [3521]
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentence and penalty - Common assault – Imprisonment for 90 days with 78 days suspended not manifestly excessive.
Police Offences Act1935 (Tas), s 35.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: C Flockhart
Respondents: S Thompson
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondents: Director of Public Prosecutions
Judgment Number: [2017] TASSC 15
Number of paragraphs: 34
Serial No 15/2017
File No 99/2017
MARK WILLIAM BLUETT v GARY LUSTED
and MICHAEL BONDE
REASONS FOR JUDGMENT PEARCE J
16 March 2017
This is a motion to review two sentencing orders made by a magistrate, Mr R Marron, on 12 January 2017. The applicant pleaded guilty to three charges, each of which was the subject of a separate complaint:
· common assault;
· operating or controlling a vehicle in a public place in an unnecessary execution of sustained loss of traction; and
· breaching bail by failing to appear.
For the common assault, the magistrate sentenced the applicant to imprisonment for 90 days from 12 January 2017. His Honour ordered that 78 days of that term be suspended for 12 months. For the driving offence, the applicant was disqualified from driving for three months, fined $800 and ordered to pay the special penalty of $600. For the charge of breaching bail the applicant was fined $200.
The notice to review does not challenge the fine imposed for breach of bail. There are two grounds of appeal. One ground contends that the "sentence" is manifestly excessive. Although the ground refers to a single sentence, the applicant's contentions are directed to both the sentence imposed for the common assault, as well as the sentence for the driving offence. The second ground is directed to the sentence imposed for common assault and contends that the magistrate erred by failing to pay sufficient regard to the parity principle.
The motion was heard on 14 March 2017. At the conclusion of the hearing, I dismissed the motion. I did, however, vary the magistrate's order in one respect. Because, after the sentence was imposed by the magistrate, the applicant was admitted to bail pending determination of this review without spending any time in custody, I ordered that the term of imprisonment his Honour imposed commence on 14 March 2017. These are my reasons for making those orders.
The offences
At about 11.30pm on Friday, 27 February 2015, the applicant was with another man, Ashley Long. The two men were sitting inside Mr Long's utility parked in a driveway adjacent to the car park behind the Seaport development in Launceston. A group of three young men walked from the development, where they had been at work, towards the car park. As the men walked past, Mr Long asked one of them for a light. Apparently unhappy about the response, he got out of the car and jogged after them. The applicant did so also. They approached one of the men, Craig Redburn. The applicant and Mr Long both indicated their intention to fight by adopting an aggressive stance and bouncing on their toes. Long removed his T-shirt and threw it on the ground. Despite Mr Redburn indicating that he did not want to fight and backing away, Long punched him once to the head. The applicant then joined in, throwing punches at Mr Redburn until he fell to the ground with both men standing over him. When one of Mr Redburn's companions, a Mr Dolle, shouted at the applicant and Long to stop, attention was turned to him and Mr Long assaulted him. When mention was made that the police had been called, one of the defendants said something like "What are you still doing here" to Mr Redburn and his other companion. Mr Redburn and his other companion ran away, but the applicant and Long pursued them. They caught Mr Redburn outside one of the nearby restaurants and punched him again a number of times, before he was given refuge by the staff of the restaurant. The police arrived, and the applicant and Long were identified and arrested.
As a result of the assault Mr Redburn suffered a cut right ear, which required stitches, cuts to his lip and mouth and a sore nose and head.
About a month later, at about 10.50pm on Saturday, 7 March 2015, the applicant drove his car away from the traffic lights on Wellington Street, at the intersection with Elizabeth Street, with such acceleration that the rear wheels of his car lost traction. The tyres spun and smoked for a distance of around 42 metres. He was pulled over by the police. He told them that he had driven in that way because he was "just pissed off".
After the applicant was arrested for assault he was bailed by the police to appear in the Launceston Court of Petty Sessions on 8 April 2015. On that day he pleaded guilty to the common assault charge. The magistrate admitted him to bail to appear again on 10 July 2015. He failed to appear on that day because, a short time earlier, he left Tasmania for Queensland. He returned to Tasmania in June 2016. He was arrested on 14 September 2016 and again admitted to bail.
The circumstances and record of the applicant
The applicant is now 23. At the time of the offences he was 21. He was educated to grade 10, after which he completed an apprenticeship as a chef. He lost that job and obtained a job at a meat works. The sentencing magistrate was told that because the applicant was "struggling" personally and financially he decided to go to Queensland in search of work. Following his return to Tasmania he eventually found employment as a subcontractor through an engineering company in December 2016. He still held that job at the time he was sentenced.
The applicant had a record which was relevant to both of the offences he pleaded guilty to. His driving record is a poor one. Between December 2010 and March 2015 he accumulated four convictions for driving with unnecessary smoke or noise, one for driving without proper control of his vehicle, six for driving in excess of the speed limit (two of which were for speeds more than 23 km/h over the limit) and two for driving while his licence was suspended. In addition, he had two prior convictions under the Road Safety (Alcohol and Drugs) Act 1970, one in 2011 for driving with alcohol in his body in excess of the prescribed limit, and one in 2013 for driving with alcohol in his body when he was a person not entitled to drive with any alcohol in his body. On each occasion he was fined and disqualified.
The applicant also had a prior conviction for assault. On 3 April 2014 he was fined $750 by a magistrate for common assault committed on 18 October 2013. The sentencing magistrate was told that he became involved in a fight at a hotel during a function held for his grandfather's wake.
As I earlier mentioned, the applicant does not challenge the $200 fine imposed by the magistrate for breaching bail. That is hardly surprising. The applicant, after pleading guilty to common assault, absconded and did not return for more than a year. Considered in isolation, it was a very lenient sentence.
The sentence for common assault
By the Police Offences Act 1935, s 35, a person who unlawfully assaults another person is guilty of an offence and is liable on summary conviction to a penalty not exceeding 20 penalty units, $3,080, or to imprisonment for a term not exceeding 12 months. Conduct which constitutes a common assault may range from the most minor but unlawful application of force to serious and damaging violence.
On the face of it the sentence imposed on the applicant is an unusual one. However the reason for it becomes clear when the sentence imposed on Mr Long is examined. Mr Long and the applicant were jointly charged with assaulting Mr Redburn. He was sentenced by the same magistrate at the same time. Mr Long was also sentenced for a further count of common assault arising from his attempt to strike one of Mr Redburn's companions. When imposing sentence on Mr Long, the magistrate was obliged by the Sentencing Act 1997, s 16(1), to take into account a period of custody Mr Long had served when he was arrested on 9 September 2016 and not bailed until 21 September 2016. The magistrate sentenced Mr Long to imprisonment for 90 days but suspended 78 days, to reflect that, as the magistrate expressed it to Mr Long, "you've done your 12 days". His Honour resolved to impose the same sentence on the applicant. However, in contrast to Mr Long, the applicant had not already served any period of custody. Accordingly, when the sentence was imposed, it required the applicant to serve an actual period of custody of 12 days, with the balance of 78 days suspended.
Ground 1 - Manifest excess
On behalf of the applicant it was submitted that the sentence of imprisonment imposed on the applicant, 12 days of which is to be actually served, is manifestly excessive. It was not strongly submitted that the head sentence of imprisonment for 90 days is manifestly excessive, although counsel for the applicant described it as at the "top of the range" of available sentences. The motion is principally directed at the sentencing magistrate's decision to require that the applicant serve 12 days of the sentence, that is, the decision not to wholly suspend the sentence. The submission is, properly, directed to the applicant's youth and prospects of rehabilitation. The applicant was 21 when the offence was committed. Although not a youth in the strict sense, the principles which apply to young offenders still apply to him. His relative youth was a significant factor in assessing whether part of his sentence of imprisonment should be immediately effective. Counsel for the applicant properly resorts to a statement of the principles to be applied when sentencing young offenders. Reference was made to those principles by the Court of Criminal Appeal in Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, 20 Tas R 399, and more recently in Read v Tasmania [2016] TASCCA 8 at [10] and following. Generally speaking, it is in the community interest that young offenders should be given every reasonable opportunity for reform before being exposed to the potentially corrupting influence of prison: Jones v Fleming [1957] Tas SR 1; Lahey v Sanderson [1959] Tas SR 17; Gray v Strickland A44/1978; Attorney-General(Tas) v Blackler [2001] TASSC 27, 121 A Crim R 465, at 470 [15].
The sentence imposed by the learned magistrate brings into focus the task of this Court when determining a notice to review on this ground. The question is not whether this Court would have imposed a different sentence: Tanner v Brown [2011] TASSC 59 at [49]. An applicant is not entitled to ask this Court to substitute its opinion for that of the magistrate: M v Hibble [2003] TASSC 13 at [14] in which Crawford J (as he then was) cited Whittle v McIntyre [1967] Tas SR (NC 6) and Jones v Fleming (above). A sentencing magistrate has a very wide sentencing discretion. The imposition of a sentence involves the "exercise of judgment and evaluation upon which minds can differ": per Kirby J in Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 at 339.
I have little doubt that it was open to the magistrate to impose a shorter sentence and a wholly suspended sentence. There was scope to have coupled such a sentence with community service or a fine. The aims of deterrence, denunciation and rehabilitation could properly have been met by such an order, as was explained by Evans J in Director of Public Prosecutions v Broadby, Cockshutt and Woolley at 404 [7] and following. However, to succeed in this motion, the applicant must demonstrate error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is that the sentence imposed by the sentencing magistrate is "unreasonable or plainly unjust". In other words, it must be shown that the sentence was so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: see Bresnehan v The Queen (1992) 1 Tas R 234 at 242 [13]; Lusted v Kenway [2008] TASSC 47 at [38]. The sentence must be one which is clearly outside the range of sentences open to the magistrate.
I am not satisfied that such error has been demonstrated, either in the length of the head sentence or in the requirement that some of it should actually be served. Some offences are so serious, that notwithstanding the youth of an offender, a sentence of actual imprisonment is justified: R v Maher and Rogers [1962] Tas SR 25. The applicant was not a first offender. He had a recent conviction for common assault which was serious enough to warrant a significant fine. His record and his response to this offence demonstrated a general disregard for the law and a willingness to act outside the law. Although some mitigation may have arisen from his early plea of guilty, the benefit of it was lost by him absconding, which also put paid to any claim to genuine remorse. The applicant should not easily claim in mitigation delay, particularly delay of this relatively limited extent, which arose because of his own actions, although increased maturity and rehabilitation during the period of delay may be given some weight: see for example R v Shore (1992) 66 A Crim R 37.
For a range of reasons, the assault committed by the respondent is a serious example of the offence. It was an aggressive attack on a stranger, committed in company and in a public place. The victim had done nothing to prompt or provoke the assault. He was, nevertheless, subjected to considerable and repeated violence. The applicant and his co-offender removed themselves from a vehicle to approach the victim, looking for a fight. The victim told them he did not want to fight and backed away, but they advanced on him. Although Long threw the first punch, the applicant then punched the victim to the head repeatedly, forcing him to the ground. Even after the victim managed to run off, both men pursued him and, when they caught up, repeatedly punched him again. They were not deterred by the presence of the victim's companions and the likely presence of others in nearby public areas and businesses. The applicant did not desist until Mr Redburn was pulled away and given refuge inside one of the restaurants. Members of the public, beyond those directly involved, were exposed to the applicant's acts of violence. The assault must have been frightening and humiliating for the victim. Persons have a legitimate expectation that they may be safe from random street attacks. The victim was injured. The magistrate was not given any information that the physical injuries suffered by the victim were long-lasting. On behalf of the applicant it was submitted that the injuries were "relatively minor". I do not agree. The initial effects were serious. The potential for greater injury was considerable. There was no victim impact statement, but sentencing courts well understand the psychological effects which may result from attacks of this nature. To me, the seriousness of the offence does not bespeak a finding of clear error in the sentence. The sentence is not manifestly excessive.
Ground 2 - Parity
The parity principle arises from the notions of equal justice and consistency in punishment which require that like offenders should be treated in a like manner. Its operation was explained by the Court of Criminal Appeal in Smith v Tasmania [2012] TASCCA 3 per Porter J, with whom Tennent and Wood JJ agreed, at [24]-[27], by reference to the joint judgment of French CJ, Crennan J and Kiefel J (as she then was) in Green v The Queen [2011] HCA 49, 244 CLR 462. See also Postiglione v The Queen (1997) 189 CLR 295. The principle also requires, where the law permits, differential treatment of persons according to relevant differences between them. In other words there should be different outcomes in cases that are different in some relevant respect: Wong v The Queen [2001] HCA 64, 207 CLR 584 at 608 [65].
The applicant submitted that the magistrate erred by imposing effectively the same sentence on him as was imposed on Mr Long. The applicant submitted that differences between their respective cases meant that the applicant should have been treated more leniently, and that the failure to do so gives rise to the justified sense of grievance necessary to attract appellate intervention. Differences, or similarities, are to be assessed objectively by reference to such factors as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise: Lowe v The Queen (1984) 154 CLR 606 at 609 per Gibbs CJ.
In this case, the applicant submits that he should have been treated more leniently than Mr Long because:
· the effect of the procedural and sentencing history made the imposition of an immediate sentence of imprisonment more difficult for the applicant, because Mr Long had already served the 12 day term imposed on him;
· there are differences in their respective criminal records;
· Mr Long instigated and played a greater role in the assault of Mr Redburn; and
· in contrast to the applicant, Mr Long was sentenced for a second count of assault.
In my view, none of these factors mean that, when all relevant matters were taken into account, the magistrate was wrong to impose the same sentence. It is necessary to demonstrate clear error and that the exercise of the sentencing discretion thereby miscarried. In other words, it must be demonstrated that there were differences of such significance in the criminal conduct of the offenders, or their personal circumstances, that it was manifestly wrong to impose the same sentence. That was not established. Any differences between the considerations relevant to the applicant and Mr Long are not of sufficient consequence, either individually or in combination, to require different sentences. Mr Long was the same age and had a similar background. He also pleaded guilty. His sentence was also delayed by him absconding. Following his return he had obtained employment, but when he was arrested on 9 September 2016 and kept in custody until 21 September 2016, he lost that job. Since then there had been some change in his circumstances. His partner became pregnant and was about to have a baby. He was receiving social security benefits but actively looking for work. When sentencing both men, the magistrate said:
"Mr Long, you have been charged with two counts of assault and Mr Bluett one count. A balancing factor is Mr Bluett is that you have got a prior for assault, whereas Mr Long doesn't. I intend to treat you the same in relation to these matters because I think in the end it balances out that way."
Once the sentence was imposed Mr Long was informed by the magistrate that he "was free to go". The applicant submits that the result is that the applicant was treated differently on the issue of delay and was subject to a more onerous sentence. I do not agree. The magistrate took that approach to Mr Long because he had already served the period of custody his Honour decided to impose. The applicant had not. In my view it is of no significance that Mr Long, when remanded in custody, was also charged with other offences unrelated to this motion. The magistrate, as he was required to do, took that period of custody into account. The magistrate tailored his sentences in that way to achieve parity. The approach does not reveal clear error.
Nor do I think that their respective records required a different sentence. Mr Long had a somewhat worse record for offences not involving violence. He had prior convictions for dishonesty. However, he had no prior conviction for common assault or other offence of violence. Counsel for the applicant submitted that the magistrate placed too much weight on the applicant's recent prior conviction for assault, but it was an important sentencing consideration and a factor to be taken into account in deciding whether different sentences were required.
In my assessment, the factor which deserves greatest consideration on this question is the part each played in the relevant criminal conduct. Again, however, I do not think it requires a difference in sentence. Mr Long, was first out of the car and threw the first punch. To that extent he was the instigator. Otherwise, the applicant was at least an equal participant throughout the most serious part of the assault. He was equally responsible for the second phase of the assault which I consider to be significant, and was equally responsible for the injury and trauma to which Mr Redburn was exposed. Although Mr Long was charged with another assault, it was relatively minor by comparison. The magistrate was told that, during the initial assault of Mr Redburn, his companion, Mr Dolle, shouted at the assailants to leave him alone. The prosecutor told the magistrate:
"Long stated to [Dolle] 'You're next. Come on', again posturing aggressively with clinched fists. Long then ran at [Dolle], who backpedalled away from them until he ended up against the garages at the Seaport units. Long has then thrown a number of punches at [Dolle]. However he managed to duck and weave away from him without being struck."
The assault of Mr Dolle was thus constituted by an attempt to strike him and no physical contact was made. It added to Mr Long's criminal culpability, but only marginally so, and was not of such weight as to require imposition of a different, lesser sentence on the applicant.
In considering these matters I am to have regard to the qualitative and discretionary judgments required of the sentencing magistrate in drawing distinctions, or in this case not drawing distinctions, between the co-offenders: Green at 475 [32]. I do not consider that the approach adopted by the magistrate reveals error or misapplication of principle. Viewed objectively, the assessment his Honour made was open to him. Any sense of grievance harboured by the applicant is not objectively justified.
The sentence for the driving offence
I return to the first ground of appeal as it concerns the sentence imposed for the driving offence. There is no merit in the contention that the sentence is manifestly excessive. It involved conduct separated in time and by nature from the common assault, and required a different sentence. It required no allowance for totality.
Operating or controlling a vehicle in a public place in an unnecessary execution of sustained loss of traction is an offence by operation of the Police Offences Act, s 37J:
"37J Excessive noise, smoke, &c, from vehicles
(1) A person must not, unless otherwise authorised under this or any other Act, operate or control a vehicle in a public place –
(a) in a manner that makes or emits unnecessary and unreasonable noise; or
(b) in an unnecessary execution of speed, acceleration or sustained loss of traction; or
(c) in a race against another vehicle."
The statutory penalty is a fine not exceeding 20 penalty units or imprisonment for a term not exceeding three months, or both. At the relevant time a penalty unit was $140, thus the maximum fine was $2,800. In addition, a sentencing court may impose a period of disqualification from driving for up to two years.
This offence was committed while the applicant was on bail, albeit for an offence of a different nature. He was not to be sentenced for his driving record, but it indicated a particular need for a sentence of specific deterrence and protection of the public. He had apparently not learned his lesson from previous periods of suspension and disqualification of his licence and fines. One of his prior convictions for speeding occurred only two days earlier. The magistrate was entitled to take a dim view of this instance of driving. It is the type of offence commonly referred to as a "hooning offence". Those who commit such offences pose a risk to the safety of other road users and are a source of considerable public annoyance. This offence took place on one of the main thoroughfares in Launceston and was potentially unsafe. The maximum penalties provided for by the legislation for hooning offences indicate a legislative intention that offenders may face very heavy penalties. Because the applicant's vehicle was clamped for 28 days, the magistrate was obliged to also impose a special penalty of $600 under s 37MA. A special penalty is in addition to the normal penalty and, by s 37MA(3), cannot be taken into account in determining the sentencing order. It is, thus, irrelevant to the question of whether the sentence is manifestly excessive.
In determining whether the sentence was manifestly excessive, the principles to which I have already referred are to be applied. Taking account of all matters relevant to the sentence, the sentence imposed by the learned magistrate for this offence is not unreasonable or plainly unjust. The $800 fine imposed is a substantial one for a young man, but it is just over a quarter of the fine which could have been imposed. The applicant was disqualified from driving for three months, in my view a relatively modest period, when he could have been disqualified for up to two years. The combined effect of the fine and the period of disqualification fell well within the proper exercise of his Honour's sentencing discretion. No error is demonstrated. As it applies to this sentence, the motion fails.
Result
The sentences challenged by the notice to review are not, either individually or in combination, manifestly excessive. There was no misapplication of the parity principle which caused the sentencing discretion to miscarry. Neither ground of the motion is made out. For those reasons, the notice to review was dismissed.
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