Clark v Harvey
[2018] TASSC 34
•6 July 2018
[2018] TASSC 34
COURT: SUPREME COURT OF TASMANIA
CITATION: Clark v Harvey [2018] TASSC 34
PARTIES: CLARK, Jamie Michael
v
HARVEY, Aron
FILE NO: 1436/2018
DELIVERED ON: 6 July 2018
DELIVERED AT: Launceston
HEARING DATE: 26 June 2018
JUDGMENT OF: Pearce J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Sentence manifestly excessive or inadequate – Three breaches of family violence order – Sentence of imprisonment for one month not manifestly excessive.
Family Violence Act 2004 (Tas), s 35(1).
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: F Brimfield
Respondent: S Thompson
Solicitors:
Applicant: Ogilvie Jennings
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASSC 34
Number of paragraphs: 24
Serial No 34/2018
File No 1436/2018
JAMIE MICHAEL CLARK v ARON HARVEY
REASONS FOR JUDGMENT PEARCE J
6 July 2018
This is a sentencing appeal. The applicant pleaded guilty to three counts of breaching a family violence order contrary to the Family Violence Act 2004, s 35(1). On 25 May 2018 he was sentenced by a magistrate, Mr S F Mollard, to imprisonment for one month from 30 April 2018. The grounds of appeal contend that the learned magistrate erred:
(a)by imposing a sentence which was manifestly excessive;
(b)by taking into account an irrelevant consideration, namely that the applicant had been charged with and pleaded guilty to stalking; and
(c)alternatively, by placing too much weight on the fact that the applicant had been charged with and pleaded guilty to stalking.
The factual basis of sentence
The sentence under review was imposed on 25 May 2018. In addition to the three counts of breaching a police family violence order, the applicant also pleaded guilty to offences under the Misuse of Drugs Act 2001. He was fined $1,000 for the drug offences. That sentence is not challenged and is not relevant to this motion. As to the offences under the Family Violence Act, the learned magistrate was informed that the applicant and the complainant were in a significant relationship for three years between 2013 and 2016. For reasons which will be later explained, he began living with his parents, across the road from the complainant's home, in September 2017. On 20 April 2018 the applicant was arrested and charged with stalking the complainant, contrary to the Criminal Code, s 192. After his arrest the applicant was issued with a police family violence order which was made to protect the complainant. He was granted police bail. One of the conditions of the police family violence order was that he not contact the complainant "directly or indirectly, including by any electronic or other communication".
The applicant breached the police family violence order four days later on 24 April 2018 and again on 27 April 2018. On 24 April the applicant phoned the complainant's mobile phone at 4.16am. His phone was set so that it would be identified to the receiver of the call only as "Private number". When the complainant answered the call, the applicant remained silent. He made another phone call at 5.09am and again remained silent when the call was answered. Both of those calls constituted a breach of the non-contact condition of the police family violence order. The calls were made from a phone number activated by the applicant on 8 April 2018, a different number to that which had been used to make the calls which were the subject of the stalking charge. On 27 April 2018, the applicant sent a message to the complainant using Facebook Messenger. The message stated:
"No need to ruin a person's life cos u need a dicking desperate bloke all I can say o's hope u realise what u have done and no u will regret it and for your police statement tomorrow [J's] life in on my phone and forgot to log off. Got one word for u y dog. Obviously u need. Gutless dover was never made of people like u."
On 30 April 2018 the police arrested the applicant again and he was taken into custody. When interviewed he denied making the calls and sending the message, and denied that the phone used to make the calls was his. He remained in custody until sentenced on 25 May 2018. At the sentencing hearing the applicant was represented by counsel. After the prosecution facts were stated, a plea in mitigation was made. By that day the applicant had already pleaded guilty to the charge of stalking. It is an indictable matter and so the applicant was to be committed to the Supreme Court for sentence. A brief submission was made to the magistrate about the circumstances of that charge, to which I will return when addressing the grounds of appeal.
The sentencing magistrate proceeded immediately to sentence. His Honour correctly took the period of custody into account by backdating the sentence to commence on 30 April 2018, the result of which was that by the time of sentence almost all of the term which his Honour imposed had already been served. In his sentencing remarks, after dealing with the drug charges, the magistrate said this:
"Now the breach charges. You were admitted to bail by police after you were charged with stalking. You've heard me say what I think of the stalking and I won't repeat that today. These breaches are serious, in particular count 3 and I disagree with your counsel to the extent that I do not agree that a non-custodial sentence would be an appropriate penalty for the charges in that complaint. The first couple, certainly I agree, the third one not, and it is relevant. The nature and extent of the particulars and the trouble you went to in relation to committing the crime of stalking which you have admitted, so I do take that into account in my assessment of the appropriate penalty to be imposed for these matters."
Ground 2
It is appropriate to deal with ground 2 first. It asserts that the sentencing magistrate erred by "taking into account an irrelevant consideration, namely that the applicant had been charged with and pleaded guilty to stalking". To succeed in a motion to review brought under the Justices Act 1959, s 107, the applicant must demonstrate an error or mistake on the part of the justices on a matter or question of fact alone, or of law alone, or of both fact and law: s 107(4)(a). This ground alleges specific error. It is an error of law if it is established that the magistrate's sentence was affected by an irrelevant matter: House v The King (1936) 55 CLR 499. The applicant was to be sentenced for the offences to which he pleaded guilty without regard to circumstances or elements that were the ingredients of an offence or offences of which he had been separately charged. The applicant was not to be sentenced for stalking, and the fact that he had pleaded guilty to stalking was not to be treated as an aggravating factor when sentencing for breaches of the police family violence order: R v De Simoni (1981) 147 CLR 383. That would have resulted in double punishment. However, the applicant does not submit that the magistrate breached those principles. The applicant does not contend that the facts which formed the basis of the stalking charge, if admitted by the applicant, were not relevant to the magistrate's consideration and assessment of the level of criminality involved in the breaches of the police family violence order for which he was to be sentenced. The facts which led to the making of the police family violence order were relevant as giving context to the breaches of it. The facts were capable of being highly relevant to assessment of the blameworthiness of the applicant.
Thus, as drafted, the ground cannot succeed. However the submissions of the applicant's counsel make clear that the ground does not accurately state the substance of the applicant's grievance. The proposition advanced by the applicant in this motion is that the magistrate, when sentencing the applicant, took account of facts arising from the stalking charge which were adverse to the applicant but which, notwithstanding the applicant's plea of guilty to the charge, were not agreed or proved. During sentencing hearings in the Court of Petty Sessions, a prosecutor usually reads to the court a statement of facts as information relevant to sentence which the court may receive under the Sentencing Act 1997, s 81(1). That section also provides that the court may receive such information as it thinks fit and is not bound by the rules of evidence. Under s 81(2), the court must ensure that the offender has knowledge of, and the opportunity to challenge, the information received by the court. Often, where facts may be contentious, the statement of facts is given to an accused person at or before the hearing before they are read to the court, so potential disputes may be identified and resolved. Sometimes a statement of facts may omit other facts of which the sentencing court may otherwise have knowledge. That gives rise to a potential for unfairness if, for example, the person to be sentenced is unaware of or unable to challenge the truth of any information received by the court and taken into account: s 81(4). If sentencing facts are challenged, the court may require that information to be proved in like manner as if it were to be received at a trial. The facts by reference to which an offender is sentenced must generally be either proved to the requisite standard, admitted or agreed: R v Olbrich [1999] HCA 54, 199 CLR 270; Weininger v The Queen [2003] HCA 14, 212 CLR 629; GAS v The Queen; SJK v The Queen [2004] HCA 22, 217 CLR 198 at [30]. In GAS v The Queen; SJK v The Queen the plurality said at [30]:
"In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case." [Footnote omitted.]
With those principles in mind, consideration of this ground of appeal requires an examination of what material was before the learned magistrate at the sentencing hearing and how it was put before him, and what he took account of when sentencing.
The stalking charge was included in complaint 4169/2018. On 25 May 2018 the magistrate had the complaint before him. It follows from the applicant's plea of guilty to the charge that he admitted the essential ingredients of the crime, which included that he pursued a course of conduct intending to cause the complainant mental harm or to be apprehensive or fearful in at least one of the ten alternative ways set out in the Code, s 192(1)(a)-(j). As particularised in the complaint, it was alleged that between 1 February 2018 and 20 April 2018 the applicant had "entered the property boundary of the complainant's residence, kept her under surveillance, continually phoned her from a private number and left messages on her phone that could have been expected to arouse apprehension and fear". All the prosecutor said about the circumstances of the stalking charge when stating the facts for sentence on the breach charges, was that the police family violence order had been made on 20 April 2018 "as a result of stalking allegations which are subject to a charge … and these particulars included calling her mobile phone and landline during the middle of the night". In the course of his submissions to the magistrate, counsel for the applicant said this:
"As your Honour heard last Friday for his bail application, there is no doubt that the offence of breaching a police family violence order or any kind of family violence order is a serious one and it is serious in this case when regard is had to the circumstances under which the order was made, specifically in conjunction with the stalking charge but I'll repeat what Mr Arendt … submitted to your Honour last Friday, is that these offences are at the lower end of the spectrum for offending of this kind. Your Honour made some particular comments last week about being disappointed that these offences were committed at a time that [the applicant] was on bail when he should have been keeping his nose clean …".
The reference by counsel to a bail application was made because, a week earlier on 18 May 2018, the same magistrate heard a bail application made by the applicant. The applicant was represented by counsel, Mr Arendt. Because the applicant was charged with family violence offences, the magistrate was required when considering bail to assess whether the applicant's release on bail would not be likely to adversely affect the safety, wellbeing and interests of the complainant: Family Violence Act, s 12. To assist him in that assessment the factual allegations about the stalking, a charge to which the applicant had already pleaded guilty, were outlined to him in detail. A document containing a police statement of facts for that charge was given to the magistrate to read. That statement of facts included the following assertions:
· in September 2017 the applicant started living with his parents in a rural town. Their home was just across the road, and in clear view of the home in which the complainant lived;
· in February 2018 the complainant and one of her sons saw a man at about 10pm one night crouching down and moving under the deck before running off. At the time they did not recognise the person as the applicant, but the complainant's concern led her to install a security camera. The camera recorded images of the applicant in the complainant's front yard after dark on 5 February and again on 9 February;
· at about the same time the complainant started receiving unwanted calls from a private number to her mobile phone and landline, usually commencing after she turned out the lights at night and into the early hours of the morning, or if she was not at home. When answered, the caller did not speak. The calls were traced by Telstra to the applicant's number. The statement of facts asserted that the calls continued through March and April 2018 and listed, as examples, numerous calls made either from the applicant's phone or from a pay phone to the complainant's landline or mobile phone between 12 March 2018 and 4 April 2018;
· on 12 and 13 March 2018 the complainant received a series of voice messages, which were recordings of a girl's voice as if from a horror film in a scary and threatening tone. The complainant suspected that the applicant had sent the messages but was unsure because the sender of the message was identified only as "private number". The messages variously included these words:
"You are all going to die, you want to play hide and seek? You hide and I'll find you. Ringa ringa rosy a pocket full of posies, achoo achoo we all fall down;
"Why do you seem so scared? All I wanted to do was play with you. Please come and play with me. I'm so lonely. You're afraid of the dark are you? Don't be afraid, come with me. I will show you where I play hid and seek. Do you want to play hide and seek? You hide and I'll find you. You are going to die in there. Don't say I didn't warn you. I know things that no-one knows. You are going to die. Help me, I'm begging you. Can you help me? I'm a bit scared, I want mummy. Can you help me? I'm coming for you. I'm going to be there watching you."
· the complainant was scared by the calls and messages. She also felt afraid for her son, especially when he was home alone. She modified her behaviour in her home so as not to bring notice to herself because "she feels that [the applicant] is watching her house";
· during the same period the applicant sent text messages to the complainant. Some of the messages revealed that he was aware that the complainant had a new partner and knew when his car was at her house. From the messages "it appears … that he is keeping her under surveillance";
· on 20 April 2018 the complainant received four calls on her landline, respectively at 2.57am, 2.29am, 4.30am and 5am. She answered the first two calls but the caller said nothing. She contacted the police on that day;
· when the police searched the applicant's home they found an iPad with a link to the recording of the little girl's voice used in the voice messages;
· when arrested and interviewed on 20 April 2018 the applicant made no admissions regarding any phone calls.
In the course of the bail application on 18 May 2018, counsel for the applicant told the magistrate that the applicant did not resile from his plea of guilty to the stalking charge, but "does not agree to how it's been particularised and you can't tear it apart as it stands". He indicated that the applicant did not then accept the assertion that he was the person shown on the camera recordings as having entered the complainant's front yard on 5 and 9 February 2018, and did not accept that he kept the complainant "under surveillance". As to the latter proposition it was explained that some degree of observation was inevitable given that he lived across the road from her. The applicant's counsel said, however, that "the main basis upon which [the applicant] has pleaded guilty to the stalking charge relates to the use of a phone". He went on to say, when contrasting the stalking conduct to the new breach offences, that "it is instructive … to look at the summary of facts to see and get an idea of the nature of the offending using the phone because when you then compare it to what he has now been charged with on the second complaint, it's really chalk and cheese …".
The application for bail was refused. In the course of his reasons for that decision the learned magistrate referred to the circumstances of the stalking charge as they had been outlined to him. He said that "when I read the facts to myself and incidentally heard the prosecutor say that they've got a strong case in relation to personal physical presence on the property I was chilled". His Honour also referred to the nature of the phone voice messages and the trouble that the applicant had apparently gone to to record them and his purpose for doing so. His Honour made clear that he regarded the stalking charge as a serious one. Importantly for the purposes of this motion, he said this:
"… and the behaviour that the defendant has confessed to even allowing for the submissions from the defence concerning aspects that are not admitted or which are disputed, remains so serious that personally I can't contemplate that his sentence is likely to be less than at least three months". [Emphasis added.]
I return, then, to the assertion that the learned magistrate's comments on passing sentence made on 25 May 2018 disclose error by reference to matters he was not entitled to take into account. The complaint about his Honour's comments centre on his Honour's statements that "You've heard me say what I think of the stalking and I won't repeat that today... The nature and extent of the particulars and the trouble you went to in relation to committing the crime of stalking which you have admitted, so I do take that into account in my assessment of the appropriate penalty to be imposed for these matters." The applicant contends that the remarks, especially the reference to "particulars" disclose that the learned magistrate impermissibly took account of matters which he had been told were not accepted and which were not proved. I do not agree that, read in context, the magistrate's reference to particulars was a reference to the particulars pleaded in the complaint, which included mention of the then disputed allegations that the applicant had "entered the property boundary of the complainant's residence, kept her under surveillance". I think his reference to particulars meant the details of the allegations. Furthermore, it is obvious from the comments his Honour had made at the bail hearing that he was well aware that some of the allegations were not then admitted. Nothing much was said about this aspect of sentencing at the sentencing hearing, and the magistrate's knowledge of the details of the stalking allegations which were admitted, was assumed.
I am not satisfied that the magistrate fell into error as alleged. Although it is not determinative of the motion, it should be noted that the applicant later admitted in this Court, when sentenced for the stalking charge, that it was him in the front yard of the complainant's home, and that he had sent messages on his phone which made it clear that he had been observing the complainant and her new partner. In Traynor v McCullough [2011] TASSC 41, Crawford CJ reviewed the cases considering the operation of ss 107(4)(a) and 110 of the Justices Act and followed the line of authority stating that the task of this Court is to consider whether the magistrate was in error on the material before him or her. It seems to me, however, that the applicant's subsequent admission of facts which were not admitted at the time of the sentencing hearing suggests that the applicant cannot now claim that the magistrate erred, at least in fact, if he resorted to such facts. It is not necessary to reach a concluded view. In any event, I am satisfied no substantial miscarriage of justice occurred: s 110(2)(ab). Since Traynor v McCullough was decided, the legislation has been amended to insert s 110(2AA) which provides:
"110(2AA) The court, on hearing a motion to review in relation to an order imposing a sentence on a person in relation to a matter, may, whether the person who filed the notice of review in respect of the order was the person or the prosecutor, take into account any matter, relevant to sentencing, that has occurred between when the justices who made the order dealt with the person in relation to the matter and when the court hears the motion to review."
The operation of this provision was not the subject of submissions on this motion. Because I am not satisfied of error, it is also unnecessary for me to determine whether the amendment affects this Court's power as explained in Traynor v McCullough to determine error, or whether it only has application if error is established and on re-sentencing.
No error is established. This ground is not made out.
Ground 3
This alternative ground cannot succeed. It asserts that the magistrate erred by placing too much weight on the fact that the applicant had been charged with and pleaded guilty to stalking. As has been explained, the conduct which the applicant admitted he had engaged in was relevant to the assessment of the level of criminality involved in the conduct for which he was to be sentenced. It was a matter relevant to sentence. It cannot be said that the sentencing magistrate gave too much weight to it unless the sentence he imposed is manifestly excessive taking into account all matters relevant to sentence. Sentencing courts are, in each case, to balance the sentencing aims including punishment, deterrence, prevention, denunciation and rehabilitation, in the context of the central principle of proportionality. All relevant sentencing considerations, some of which are conflicting and contradictory, must be weighed by the sentencing court in determining the proper sentence to be imposed: Pavlic v The Queen (1995) 5 Tas R 186; Markarian v The Queen [2005] HCA 25, 228 CLR 357. If the sentence is not manifestly excessive taking all such considerations into account, then it cannot be said that his Honour gave too much weight to any particular factor: TAP v Tasmania [2014] TASCCA 5 at [30], Mulholland v Tasmania [2017] TASCCA 2 at [17].
Ground 1
The applicant contends that the sentence was manifestly excessive. To succeed in a motion on this ground the applicant must establish that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen (1992) 1 Tas R 234 at [13]; Lusted v Kenway [2008] TASSC 47 at [38]; Visser v Smart [1998] TASSC 151. The principles were summarised in Garcie v Lusted [2014] TASSC 27 and Barrett v Wilson [2015] TASSC 3, 369 MVR 333. An appeal court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner: Whittle v McIntyre [1967] Tas SR (NC 6) 263; Lowndes v The Queen [1999] HCA 29, 195 CLR 665 at [15]; Director of Public Prosecutions v CSS [2013] TASCCA 10. As was recently re-stated by the High Court in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41, the discretionary nature of the judgment required of a sentencing court means that there is no single sentence that is just in all the circumstances.
The magistrate was told of the applicant's personal circumstances. His Honour was informed that the applicant was 31 and of indigenous descent. He was educated to year 10 and had a good industrial record. He shared custody of his nine year old daughter. He had the support of his parents. His relationship with the complainant had come under strain, and eventually ceased, when he was required by his employer to work away from home. He had saved up enough money to buy a house on a rural holding with some stock. He moved back but was unable to resume the relationship. In September 2017, he was charged with multiple counts of unlawfully setting fire to property and vegetation, and two counts of arson, alleged to have been committed between December 2016 and September 2017. He had no criminal record to speak of before those charges were brought. As a result of the charges, he was placed on strict bail conditions, one of which required him to live with his parents. Because the complainant lived just across the road with her two teenage sons, it became even more difficult for the applicant to come to terms with the relationship breakdown. He was unable to maintain his property either physically or financially and he was forced to sell it. He was ostracised by the community and unable to find a job. The combination of factors led him to depression and anxiety. The magistrate was given a short report from a general practitioner which referred to the applicant having seen a psychologist and being actively treated and medicated for "depression major". The applicant had resorted to the use of cannabis but was due to commence alcohol and drug counselling with the Aboriginal Health Service. He had attended counselling while in custody. It was submitted that he was remorseful for the fear he had caused the complainant. Mitigation arose from his early pleas of guilty, and his rehabilitation was a factor which the learned magistrate was to take into account.
A person who breaches a police family violence order is liable on summary conviction to, in the case of a first offence, a fine not exceeding 20 penalty units or to imprisonment for a term not exceeding 12 months: Family Violence Act, s 35(1)(a). Higher penalties are legislated for subsequent offences. When considering the Family Violence Act it must be borne in mind that "the safety, psychological wellbeing and interests of people affected by family violence are the paramount considerations": s 3. In R v Kilic [2016] HCA 48, 91 ALJR 131 at [21] the High Court acknowledged that sentencing practices for offences involving domestic violence may "depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations". That statement was recently applied in this State by the Court of Criminal Appeal in Director of Public Prosecutions v Karklins [2018] TASCCA 6. In Bonde v Ellery [2016] TASSC 43, Brett J stated that family violence must always be regarded as a serious matter. The applicant relied on the decision of Wood J in Kelleher v Avery [2017] TASSC 14 in support of his contention that the magistrate's sentencing discretion miscarried. In that case her Honour reviewed a sentence of actual imprisonment for two months imposed for breaches of a family violence order on a man with a poor record for such offences. Her Honour correctly, with respect, pointed out that "there is a spectrum of seriousness in relation to breaches of family violence orders, and the gravity of a particular breach will turn on the nature of the conduct and the circumstances of the breach", but prefaced that comment by a statement, with which I agree, which referred to the importance of compliance with family violence orders:
"The learned magistrate obviously and correctly held a stern view about breaches of family violence orders in general. Breaches of court orders which have as their purpose the protection of a complainant are always a matter of substance. Approaching breaches in this way counters any misconceptions by defendants that family violence orders need not be taken seriously, and reinforces the effectiveness of family violence orders, and ultimately the protection they afford complainants."
Her Honour was dealing with a court order. In this case the relevant order was a police family violence order, but such orders also demand respect and compliance. Orders will have little value unless they are strictly enforced, and the response to breaches by courts plays an important part in ensuring that the intervention system is as effective in protecting victims as it can be. In Kelleher v Avery her Honour concluded that the sentence under review was manifestly excessive, and ordered community service and probation, but in that case the breaches were for indirect contact in a manner which was not abusive or threatening. In this case I am quite unable to come to the same conclusion.
The applicant had admitted that he had, over the course of about two months, deliberately targeted the complainant by calling and texting her repeatedly late at night and in the early hours of the morning, and by leaving very frightening recorded voice messages. The breaches for which he was to be sentenced involved two calls in the very early morning, one shortly after the other. The calls were made only four days after the applicant was charged with stalking. Viewed in context of what had gone before, the making of calls in that way, at that time of the morning, was impliedly threatening. The third breach, which from the magistrate's sentencing remarks seems to be the act which persuaded him to the course which he adopted, involved sending a Facebook message which was, in the circumstances, both expressly and impliedly threatening. The breaches committed by the applicant involved no physical contact or approach, or violence or overt threat. However, the sentencing magistrate was entitled to conclude that the context added significantly to the gravity of the offences. The applicant's acts were a deliberate extension of a course of conduct intended to cause mental harm or apprehension or fear. In the circumstances outlined earlier in these reasons, the calls and the message sent in breach of the order must have been a matter of considerable concern for the complainant. The calls and the message, in combination, signaled to the complainant that she could still not feel safe, because the applicant was prepared to act despite the intervention of the police, despite the existence of the order, and while he was on bail. Conduct like this from disgruntled partners or former partners to a domestic relationship attracts a strong need for sentences of general and specific deterrence and denunciation. Counsel for the applicant correctly submitted that a sentencing court should impose a term of imprisonment which is to take effect immediately only if satisfied that it is not appropriate to impose a term of suspended imprisonment or some other lesser sentence: Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 at 327 [13]. However, I am not persuaded that a short sentence of actual imprisonment was outside the permissible limits of the wide sentencing discretion the sentencing magistrate is to be allowed. The punitive effect of the sentence was somewhat ameliorated because almost all of it had already been served, although that factor alone would not justify imposition of a disproportionate sentence.
No error is established. The sentence is not manifestly excessive. This ground is not made out.
Result and order
None of the grounds of the motion succeed. The motion to review is dismissed.
0
20
1