Cannell v Probert

[2017] TASSC 69

[2017] TASSC 69

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Cannell v Probert [2017] TASSC 69

PARTIES:  CANNELL, Lauren
  v
  PROBERT, Jade

FILE NO:  2322/2017
DELIVERED ON:  24 November 2017
DELIVERED AT:  Hobart
HEARING DATE:  17 October 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Discretion to record conviction – Generally – Emphasis on rehabilitative approach – Magistrate's decision to not record conviction justified – Motion dismissed.

Sentencing Act 1997 (Tas), ss 7(f), 9, 58.
Family Violence Act2004 (Tas), s 13(b).
Blake v Adams [2013] TASSC 44, 22 Tas R 295; Bonde v Ellery [2016] TASSC 43, cited.
Aust Dig Criminal Law [3410].

REPRESENTATION:

Counsel:
             Applicant:  K Groot
             Respondent:  D Gray
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Darrell Gray

Judgment Number:  [2017] TASSC 69
Number of paragraphs:  29

Serial No 69/2017

File No 2322/2017

LAUREN CANNELL v JADE PROBERT

REASONS FOR JUDGMENT  BRETT J

24 November 2017

1. The applicant seeks review of a sentence imposed on the respondent by Magistrate Cure on 28 August 2016, upon the respondent's plea of guilty to two counts of common assault. The assaults were characterised as family violence offences. The learned magistrate sentenced the respondent by making an order pursuant to s 7(f) of the Sentencing Act 1997 that, without recording a conviction, the proceedings be adjourned for two years and the respondent be released on his undertaking that he would observe the following conditions:

   1    That he would appear before the court if directed by the court to do so during the period of adjournment.

   2    That he would be of good behaviour during the period of two years.

   3    That he would not commit any offence of family violence during the period of adjournment and complete the MENS Program with Relationships Australia, and at the completion of that program forward a copy of the certificate of completion to the Court Registry for placement on the court file to demonstrate compliance with this condition.

2. The sole ground of the motion to review is that the learned magistrate erred in fact and/or in law in imposing a sentence which was manifestly inadequate in all the circumstances of the case.

3. The complaint alleged two counts of assault against the respondent's partner.  The magistrate was told that the respondent and his partner had been in a relationship for approximately eight years and had three children aged between 6 years and 1 year.  The partner's 10 year old son from a previous relationship also lived with them.

4. The first act of assault occurred on 20 November 2016.  It occurred during the course of an argument.  The respondent had stood over his partner while arguing with her.  The partner pushed him away and subsequently swung a frying pan towards him in order to "gain some personal space".  Eventually, the partner threw the contents of a coffee cup at him and then placed the cup on the kitchen sink, smashing a plate in the process.  As she walked away, the respondent picked up pieces of the broken plate and threw them at her.  As a result of those pieces striking his partner, she received two cuts to her lower left leg.  She attended the Launceston General Hospital and received sutures in order to close those wounds.  The act of throwing the broken pieces of plate at her constituted the assault.  The two cuts measured four centimetres and seven centimetres in length respectively and required a total of 17 stitches.

5. The second offence was committed within an unspecified number of days after the first offence.  The interaction during which this assault occurred commenced when the respondent's partner took some sausages being cooked by the respondent, and threw them to their dogs.  The respondent reacted by placing his partner in a bear hug, and this progressed to a headlock.  The complainant did not suffer any injury as a result of this assault.  

6. It was common ground that the children were present and witnessed each assault.  They were distressed by what they saw.

7. These allegations were not disputed by the respondent.  His counsel explained that the first count, the act of throwing the broken pieces of plate, was in retaliation for having the coffee, which was hot, thrown onto him.  It was accepted that he did not act in self-defence.  In relation to the bear hug and headlock, it was put that he had acted in this way in an attempt to prevent the sausages from being thrown to the dogs.

8. The complainant was present in court in support of the respondent.  The respondent's counsel asserted that the complainant had informed him that she was not in fear of the respondent, had not wanted him to be charged, and "she gives as good as she gets".  Defence counsel offered to call the complainant to give evidence of these matters, but the magistrate indicated that she would act on this information without the need for evidence.

9. At the time of sentencing, the respondent was 37 years of age.  He was in employment as a meat worker and had been so employed for the past six years. His record of prior convictions contained a number of serious traffic offences, including a number of convictions for drink driving.  He had previously been sentenced to suspended sentences of imprisonment for such offences.  However, he had no prior convictions for assault or any other offence involving violence.

10. The pleas of guilty were entered on 19 July 2017.  This was not the first time the matter had been before the court.  The record of proceedings sheet discloses that pleas of not guilty were entered on 27 March 2017.  However, it would seem that the pleas of guilty were entered after agreed amendments to the particulars of one of the charges.  Hence, the pleas can be regarded as having been entered at an early opportunity, with consequent mitigatory effect: Cameron v The Queen [2002] HCA 6, 209 CLR 339.

11. Her Honour heard the prosecution's statement of facts and the plea in mitigation immediately after the entry of the pleas on 19 July. During the course of discussion, her Honour raised the question of whether the respondent had been or should be enrolled in an appropriate program dealing with behavioural change.  Upon being informed that the respondent had not participated in such a program, her Honour then determined to refer him to the Defendant Health Liaison Service (DHLS).  Her Honour noted that the purpose of such a referral was to facilitate a further referral to an appropriate program.  There was discussion with counsel that if that was the outcome of the referral to the DHLS, then participation in the program could be mandated as a condition of a probation order, or, as her Honour noted, as "part of 7F [sic]". I am aware from my experience as a magistrate that such a referral is a common strategy employed in the Magistrates Court in cases of family violence, particularly with respect to defendants presenting before the court for the first time in respect of a family violence offence. Her Honour adjourned the matter and imposed a bail condition which required the respondent to report immediately to the DHLS and to comply with all lawful directions of that service.  Her Honour added a notation which required a report from the service which was to "include what programs you recommend". 

12. When the matter came back before the magistrate on 28 July 2017, the court was in possession of a report from the DHLS.  That report confirmed that the respondent had attended the service as required by the bail condition.  It provided the magistrate with considerable information as to the background of the respondent, his relationship and factors affecting his psychological health.  The report recommended that "it would likely be of benefit for Mr Probert to complete the MENS (Men Engaging New Strategies) program at Relationships Australia". This program was described in the report as "a voluntary men's behaviour change program for mild-moderate perpetrators of family violence who are ready to take responsibility for their behaviour".  The report noted further that the respondent was eligible for the program "as he fits the criteria of a mild moderate perpetrator of family violence, and he has accepted responsibility for his actions".

13. After taking submissions from the defence having regard to the contents of the report, her Honour noted a number of relevant, but competing, sentencing considerations. In particular, she pointed out that the respondent had no history of violence, had been co-operative and had made admissions. On the other hand, the nature of his offending was serious. She indicated that she was considering an order under s 7(f), with a condition that would require the respondent to participate in and complete the program. The magistrate then sought submissions from the prosecution. The only submission made by the prosecutor was that the seriousness of the offences warranted a conviction, but otherwise there was no submission against the proposed course. During the course of further submissions, her Honour noted that it was necessary for her to have regard "to the matters in section 9". This was clearly a reference to s 9 of the Sentencing Act. She then, in discussions with defence counsel, canvassed in some detail the competing considerations, including the question of the likely impact of a conviction.  That discussion included the following exchange:

    "MR GREY: And a conviction for someone who doesn't have a prior history of violence is significant because albeit he works in the meat works at this point in time, it is not to say that that is his preferred path for the rest of his life, he may seek to have employment somewhere else, and convictions of violence can be sufficient to remove that opportunity. It may be that after he's finished with the counselling service he may decide to be a mature entry into the police force.  Now if he's got a conviction for violence that may count against him, I'm almost certain that it would count against him.  So he would be prohibited there.  If he wanted to be a fireman that would count against him.  If he wanted to work with children that may count against him.  All those things are highly relevant in my submission.

    HER HONOUR:  Yes look I accept that.  One of the really obvious issues is working with children checks.  I do accept that, that's the one that does and other fit and proper person type tests.  All right.  I think– … ." 

14. Ultimately, her Honour concluded that it was appropriate in the circumstances to make the order under s 7(f), with conditions which included completion of the MENS program, without recording a conviction.

15. The principles which are applicable to a review of sentence sought by the prosecution on the ground that the sentence was manifestly inadequate, have been referred to in many recent decisions. See for example Collins v Caccavo [2015] TASSC 53; Barratt v Wilson [2015] TASSC 3, 69 MVR 333; Bonde v Ellery [2016] TASSC 43. Ultimately, before such a review can be upheld, the court must be satisfied that error in the sentencing process is plainly apparent, because the sentence is so inadequate that it is outside the reasonable exercise of the magistrate's sentencing discretion, and hence can only have been the product of some unidentifiable error in the sentencing process. It is not sufficient, or even relevant, that the reviewing court may have imposed a more severe sentence.

16. In her submissions on the hearing of the notice to review, the applicant's counsel accepted that a conditional release on the giving of an undertaking, which included a condition to complete the behavioural program, is within the reasonable exercise of the sentencing discretion of the magistrate.  The sole argument of the applicant is that the sentence is manifestly inadequate because a conviction was not recorded. On this question, the applicant's argument is succinctly encapsulated in the submission that the "aggravated circumstances of the case ought to have compelled the learned magistrate to convict".  The applicant's counsel submitted that the aggravating circumstances are as follows:

    (a)The assaults constituted family violence.  It is consistent with the intention which underlies the Family Violence Act 2004 that family violence is to be treated seriously.

    (b)The presence of the children during each assault. Section 13(a) of the Family Violence Act provides that when determining a sentence for a family violence offence, a court may consider the fact that the offender knew or was reckless as to whether a child was present, to be an aggravating factor. It could be inferred that the respondent knew that his children were present during the commission of each offence.

    (c)The assaults involved significant violence. The first resulted in actual bodily harm to the complainant.

    (d)The conduct occurred on two separate occasions and, hence, could not be said to be an isolated event.

17. Counsel also submitted that the mitigating factors such as provocation and the attitude of the complainant were not sufficient to obviate the seriousness of the offending to an extent sufficient to justify the decision not to record a conviction.

18. The question of whether the order was to be with or without conviction required consideration of the provisions of s 9 of the Sentencing Act.  That section is in the following terms:

    "9   Conviction or non-conviction

    In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including —

    (a)  the nature and circumstances of the offence; and

    (b)  the offender's antecedents and character; and

    (c)  the impact that a conviction would have on the offender's economic or social wellbeing or employment prospects."

19. In Blake v Adams [2013] TASSC 44 22 Tas R 295, Porter J made the following observations in respect of this section:

    "29    It is plain from the wording of the section that the three matters listed are not exhaustive, but that each must be considered.  It also is plain that the section operates cumulatively, in the sense that the effect of the assessment of each matter may be cumulative, one way or the other.  In R v Brown ex parte Attorney-General [1994] 2 Qd R 182, in relation to a section in practically identical terms, Lee J at 193 said:

    'The discretion is at large. The considerations are not limited to the matters contained in pars (a), (b), and (c). They are inclusive. There is nothing in the Act which requires more weight to be given to any one factor than to the others. Relative weight depends on the circumstances of each case.'

    30     In the same case at 185, Macrossan CJ said that the factors must be kept in balance and none of them overlooked, although in a particular case, one, rather than the other, may have claim to greater weight.  Relevantly to this case, his Honour said that the reference to the nature of the offence does not mean that only those offences at the trivial end of the sentencing scale should be regarded as qualifying." 

20. There is no question that the offending conduct was relatively serious, for the reasons submitted by the prosecutor. They were certainly not of a trivial, technical or minor nature. Any form of family violence must be regarded as a serious matter. As I said in Bonde v Ellery (above) at [27]:

    "Family violence must always be regarded as a serious matter. It is not necessarily less so because it occurs without premeditation in the course of raised emotions during an argument. A party to a relationship is entitled to expect that he or she will be safe if disagreeing or arguing with his or her partner. Family violence can have devastating and long-term consequences for the victims of the violence and the children of the relationship who witness or are caught up in the violence."

21. However, an order under s 7(f), with or without conviction, can be made for one or more of the purposes specified in s 58 of the Sentencing Act. To "take account of the trivial, technical or minor nature of the offence" (s 58(b)) is only one of those purposes. Such an order can also be made "to provide for the rehabilitation of an offender by allowing the offender's sentence to be served in the community unsupervised" (s 58(a)). Further, as is noted in Blake v Adams, the nature and circumstances of the offence is only one consideration in the decision as to whether or not to record a conviction in respect of an order under s 7(f). The court must also consider the offender's antecedents and character (s 9(b)) and the impact that a conviction would have on the offender's economic or social wellbeing, or employment prospects (s 9(c)).

22. As is apparent from a number of comments made by the magistrate during the course of discussion with counsel, her Honour was well aware of her obligation to consider each of the provisions of s 9 in exercising her discretion as to whether or not to record a conviction. She identified the relevant considerations, including the seriousness of the offending. It is clear that despite her view as to the seriousness of the conduct, she placed considerable emphasis for sentencing purposes on the potential for the respondent's rehabilitation, particularly if he participated in and completed the relevant course, and the fact that although he had a number of serious driving convictions in his record, this was the first time he had been before the court in respect of a matter of violence, including family violence. Her Honour enquired as to the potential impact of a conviction and was told and accepted that although a conviction would not have a specific impact on the applicant's current employment, there was a general possibility that a conviction for violence could impact on his prospects if he was required to seek employment elsewhere.

23. In this case, her Honour was dealing with an offender who had committed two relatively serious acts of family violence, but had no prior history of having done so before.  It is well within the experience of the courts that it is a relatively common experience for a magistrate to be dealing with an offender who has committed family violence for the first time.  In such cases, even those which are relevantly serious, it is apparent and entirely appropriate that the court should consider the availability and appropriateness of rehabilitative intervention.  This is clearly the significance of the practice of referring such offenders to the DHLS, and using the sentencing order to facilitate and mandate appropriate therapeutic intervention. 

24. An emphasis on therapeutic intervention by the court in respect of an offender who is being sentenced for his first family violence offence is consistent with the underlying purpose and objectives of the Family Violence Act.  Section 3 sets out the objects of the Act as "In the administration of this Act, the safety, psychological wellbeing and interests of people affected by family violence are paramount considerations."  While a punitive and protective response is essential in cases of serious and repeated family violence, it must also be consistent with the stated purpose of the legislation that consideration is given to therapeutic intervention with a view to achieving rehabilitation and behavioural change, when an offender presents before the court for the first time in respect of acts of spontaneous family violence. Prevention of future violence by use of effective strategies to modify behaviour in respect of offenders who have appropriate insight and desire for change is likely to promote the safety, psychological wellbeing and interests of people affected by family violence. 

25. These observations are also consistent with the provisions of s 13(b) of the Family Violence Act. That section provides that when determining the sentence for a family violence offence, a court or a judge must take into account the results of any rehabilitation program assessment undertaken in respect of the offender and placed before the court or judge.  "Rehabilitation program assessment" is defined by s 4 to mean "an assessment of the suitability of a person to take part in a structured treatment program designed to reduce the likelihood that a person who has committed a family violence offence will reoffend".  This provision is mandatory, having regard to the use of the word "must": Acts Interpretation Act 1931, s 10A. It is arguable that the report received by the magistrate from the DHLS falls within the definition of a rehabilitation program assessment. Even if it does not, it is clear that the underlying policy of this section is to emphasise the need for a court to give consideration, where appropriate, to steps which will address the behaviour of the offender.

1. It can be seen, therefore, that use of a conditional release mandating participation in a relevant program may be an appropriate response by a sentencing court to family violence, particularly in a case in which the violence has been committed by someone who has not been before the court before for that reason, and does not otherwise have a history of violent conduct.  It must also be the case that the decision not to record a conviction has an appropriate place in such an approach.  The decision not to record a conviction provides the offender with the opportunity to avoid the stigma of a conviction for family violence.  It offers a real and practical incentive to the offender to comply with the condition or undertaking, and, in particular, to participate in the relevant program. It follows that in making such an order in that context, a magistrate is having regard to:

   ·     the offender's antecedents and character, in particular that the offender is a person who has not had a prior conviction involving family violence (s 9(b)), and

   ·     the impact that a conviction would have on the offender's economic or social wellbeing or employment prospects, in particular, by determining that the impact on the particular offender will be such that being given the opportunity to avoid a conviction will be of real value to that person, and, hence, provides a real incentive to comply with the conditions of release (s 9(c)).

2. Of course, each case will depend on its own circumstances. There will be cases of serious violence, or an absence of suitability for or genuine commitment to rehabilitative options, where the approach discussed above is not appropriate, and an order under s 7(f), or the decision not to record a conviction, will be outside the reasonable exercise of the sentencing discretion. However, this was not such a case. Although the offences were serious, they were not so serious that the magistrate was not entitled to consider therapeutic rehabilitation. She had sought a report and assessment, and that assessment supported a rehabilitative approach. The respondent had prior convictions, but he had not been before the court previously for any offence of violence, including family violence. A conviction would have no immediate or specific impact, but the magistrate correctly considered that such an impact could occur in the future. His current employment was not so well established that a conviction could not become a future problem for him. It was certainly open to the magistrate to reason that the avoidance of a conviction would provide a real incentive for compliance with the conditional undertaking.

3. In this case, it was a reasonable exercise of her sentencing discretion for the magistrate to adopt the approach described above.  Accordingly, I am not satisfied that the sentence imposed by the learned magistrate was manifestly inadequate.

4. I dismiss the motion.