Chadd v Stearns

[1990] TASSC 84

Serial No B7/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Chadd v Stearns [1990] TASSC 84; B7/1990

PARTIES:  CHADD
  v
  STEARNS

FILE NO/S:  LCA 2/1990
DELIVERED ON:  9 April 1990
JUDGMENT OF:  Crawford J

Judgment Number:  B7/1990
Number of paragraphs:  12

Serial No B7/1990
List "B"
File No LCA 2/1990

CHADD v STEARNS

REASONS FOR JUDGMENT  CRAWFORD J

9 April 1990

1. The applicant seeks to review a sentence of six weeks' imprisonment imposed on him by a magistrate in a Court of Petty Sessions at Launceston on one charge of assault, contrary to s35(1) of the Police Offences Act 1935, the particulars in the complaint being that he "did unlawfully assault one Rodney Booker by punching him several times to the chest without lawful excuse". The applicant pleaded guilty. He was remanded in custody by the learned magistrate from 1st to 5th February 1990 when the sentence was imposed, back–dated to 1st February.

1. Shortly after the assault the victim, Mr Booker, died from a heart attack. The learned magistrate took the view that it had not been established that the death was a consequence of the assault. Counsel for the respondent agreed that this view was correct. Accordingly, the death of Mr Booker had to be completely disregarded when considering sentence.

1. Grounds 2, 3 and 4 in the notice to review complained that the learned magistrate erred in law in taking into account a matter and in failing to give sufficient weight to other matters. Having read what the learned magistrate said when imposing sentence, I am satisfied that these grounds have not been made out. Ground 1 is the remaining ground and it complains that the sentence was manifestly excessive. I am satisfied that this ground has been made out.

1. Mr Booker entered a house shared by him with the applicant and another person, and he observed that the applicant was using the telephone, whereupon he asked the applicant whether he was calling Western Australia (which he was). The applicant ignored him but at the conclusion of the call he went up to Mr Booker, who was standing near a fire–place, and told him that he had no right to ask him about the telephone as it was not his. Thereupon, according to the prosecutor, the applicant punched Mr Booker a number of times in the chest.

1. The applicant's counsel said that the applicant admitted hitting Mr Booker in the chest and had deliberately avoided hitting him in the face. After the assault, there were words exchanged and a window was broken and a table over–turned.

1. A record of a police interview with the applicant was produced to the magistrate. In it the applicant said that he was telephoning his sister when Mr Booker "came in and started mouthing off". The applicant told the police that "Arthur", who I understand to be the person who shared the house with them, did not like them to use the telephone for long distance calls. He said he continued talking to his sister and after finishing, he went up to Mr Booker and said "Sit, sit down you old bugger" and he then pushed him and he fell against the wall and the window. He was asked whether he hit Mr Booker and he replied that "I gave him about two I reckon". He agreed that he had hit Mr Booker with a closed fist. He said he did so in "the chest because I wanted to knock him down and he was old and I didn't want to hit him in the face or anything". He agreed that he did in fact knock Mr Booker to the floor. On being asked about the broken window he said "It happened during the fight, you know while we were struggling". He said that the man called "Arthur" was in the room at the time.

1. It therefore appears that Mr Booker was punched by the applicant in the chest at least twice and that Mr Booker, as was intended by the applicant, was knocked down. The applicant then desisted from further attack. It was not suggested that any injury resulted. On the facts presented to the court it was not a serious assault.

1. The applicant was aged 31. Mr Booker was 58 years old and to the knowledge of the applicant had suffered from heart attacks. However, it is not clear whether Mr Booker's heart condition was in the applicant's mind when he committed the assault. In fact, in his record of interview he said that he did not think about the likely consequences of hitting Mr Booker; he "was just angry with him because he had no right to talk to me about the telephone."

1. The following matters were stated to the learned magistrate in mitigation. The applicant had no prior convictions at all. He had been employed by the Launceston City Council as a gardener for 3½ years, and had always been in full employment as a gardener since leaving school. He came from a family of eleven children. He had plainly shown genuine remorse when speaking to the police shortly following the assault. As already mentioned, Mr Booker died shortly after the assault having suffered a heart attack and this caused considerable distress to the applicant. He rendered assistance to Mr Booker when he collapsed by calling for a neighbour, obtaining a pillow to place under his head and attempting mouth–to–mouth resuscitation until the ambulance arrived. Further, there was clear evidence that the applicant made a deliberate decision not to strike Mr Booker in the face, it to be inferred from this that he did not wish to cause serious harm.

1. Counsel for the applicant referred me to sentences imposed by courts for assault in Lahey v Edwards, Burbury CJ, 47/1967; Derrico v McKenna, Green CJ, 391980; Turner v The Police, Underwood J, 53/1986; Jones v Barber, Cox J, 26/1983 and Tracey v The Queen, CCA, 38/1987 ([1987] Tas R 108) in support of his argument that the sentence of six weeks' imprisonment was excessive when compared with other cases. In Tracey v The Queen, (supra), Nettlefold  J carried out a detailed analysis of sentences for assault. The above cases and that analysis do support counsel's argument. I am satisfied that the sentence imposed by the learned magistrate was considerably in excess of what would normally be expected to be imposed by a court for an assault which was not serious and which was committed by a person of good record and character. But, of course, each case must be dealt with in the context of its own circumstances, and in this connection I quote from the judgment of the Chief Justice in Lahey v Edwards (supra) at p.4:–

"There is no doubt a good deal of attraction in the idea of adopting a sentencing policy or standard tariff in the case of offences frequently coming before a Court. But the principle of individualisation of punishment is now firmly established – even if we do not completely accept the aphorism that a modern Court punishes the criminal and not the crime. The notion that prima facie common assault should be punished by a gaol sentence unless there are special circumstances must be wholly rejected. There is no burden of persuasion cast on an offender to establish special circumstances. It is for the sentencing tribunal to weigh all the varying factors relating to the circumstances of the particular offence and the individual who commits it and to exercise a judicial discretion. It all comes down to the simple proposition that the choice of the appropriate punishment is not a matter of rule – it is a matter of a wide judicial discretion."

1. The learned magistrate expressly found that the death of Mr Booker was a coincidence and due to natural causes. Notwithstanding this, one can be suspicious that the fact of the death so quickly occurring after the assault in some way influenced the severity of the sentence imposed. This suspicion may well be unjustified, but if the heart attack and death are put out of the mind completely, and if it is taken into account that there is nothing to indicate that the punches to the chest, two in number or perhaps say three or four, were of any severity but rather were inflicted with a desire not to injure but simply to push or knock Mr Booker down, and if it is taken into account that in fact no injury resulted, the imposition of imprisonment was not warranted and was manifestly excessive, particularly in the case of a first offender. While in no way countenancing assault as a means of expression, I would be surprised if the majority of the population have not, at some time in their lives, used mild forms of assault as an expression of anger. Clearly sentences of imprisonment for relatively mild assaults can not be warranted in the case of persons with good character and no prior convictions. I stress however that each case must be considered in the light of its own facts and circumstances.

1. The sentence imposed by the learned magistrate will be set aside. I take into account that the applicant spent 5 days in custody waiting for sentence. In such circumstances I consider that a fine of $150 is sufficient and that is the sentence I will impose in place of the sentence set aside.