Dennison v White

[2003] TASSC 121

[2003] TASSC 121

CITATION:           Dennison v White [2003] TASSC 121

PARTIES:  DENNISON, Adrian Charles
  v
  WHITE, Graham

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 29/2003
DELIVERED ON:  19 November 2003
DELIVERED AT:  Launceston
HEARING DATE/S:  10 November 2003
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Principles applicable – Sentence of actual imprisonment – Whether three months' imprisonment for assault manifestly excessive – Favourable pre-sentence report and personal antecedents.

Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  W G Tucker
           Respondent:  J P Ransom
Solicitors:
           Appellant:  W G Tucker
           Respondent:  Director of Public Prosecutions

Judgment ID Number:  [2003] TASSC 121
Number of paragraphs:  15

Serial No 121/2003

File No LCA 29/2003

ADRIAN CHARLES DENNISON v GRAHAM WHITE

REASONS FOR JUDGMENT  CRAWFORD J
  19 November 2003

1. On complaint 30293/02, the applicant was charged on the first count with breaching a restraint order on 7 June 2002, contrary to the Justices Act 1959, s106I(1), and on the second count with destroying property on the same date, contrary to the Police Offences Act 1935, s37(1). On complaint 63451/02, he was charged with one count of common assault on 11 September 2002, contrary to the Police Offences Act, s35(1). He pleaded not guilty to all charges. A defended hearing was conducted before a magistrate on 27 May 2003. On 19 August the learned magistrate found all charges proved. The applicant was then remanded in custody for sentence. On 12 September 2003 he was sentenced on the three counts to three months' imprisonment, backdated to commence on 19 August. He has moved the Court to review the sentence on one ground only, that of manifest excessiveness.

1. Ill-feeling had developed between neighbouring families living in Henty Street.  They included the Andersons of number 17 and the Dennisons of number 19.  Restraint orders had been made against members of each family in favour of members of the other family.  Two other members of the applicant's family were also charged with breaching a restraint order.  Their counsel informed the learned magistrate that "the other side ... have been in court on similar charges". 

1. The order restraining the applicant was an exhibit before the learned magistrate, but I have not seen it.  According to the first count in complaint 30293/02, it was made on 18 April 2002 and included a requirement that the applicant "must not directly or indirectly threaten, harass, abuse or assault Rebecca and Mitchell Anderson including by telephone, email, facsimile or letter must not loiter within 1 metre of the premises at 17 Henty Street Invermay or the boundary of any premises where the said Rebecca and Mitchell Anderson may be staying or living from time to time must not damage the premises at 17 Henty Street Invermay or any furniture household effects or other items there". 

1. Count 1 of that complaint alleged that the applicant contravened the restraint order on 7 June 2002, in that he verbally abused Rebecca Anderson when she was in her front yard at 17 Henty Street, approached within one metre of the property, kicked the front gate of the property causing the metal latch to break off, tore the top off the letterbox and threw the letterbox onto the roof of the property.  Count 2 of the complaint alleged that the applicant unlawfully destroyed the property of Rebecca Anderson, namely the metal gate latch and the metal letterbox.  There was some duplication so far as concerned the particulars of the two counts.

1. Evidence was given that shortly before the offences, police had been called to the area as a result of an incident between the neighbours.  The applicant's mother had been arrested and taken away by the police.  It is clear that the applicant was angry.  No doubt his anger was at least partly fuelled by his mother's arrest.  The learned magistrate accepted evidence that he came to the front of the Anderson's house and kicked the gate, breaking its latch.  He entered the property and then started shaking the letterbox back and forth, destroying it.  He was described by his opposing neighbour as frothing at the mouth and in a violent rage. 

1. The assault charged in the second complaint occurred in the following way.  At 9pm on 11 September 2002 Mrs Sandra Waters, who was the mother of Rebecca Anderson and lived with her next door to the applicant and his family, went to the driver's door of her husband's Transit van, which was parked outside in the street.  She was intending to get into it and drive to a shop.  The applicant happened to be driving a Ford Falcon towards her on the other side of Henty Street.  Upon seeing Mrs Waters it seems that he put his headlights on high beam.  He then drove onto the incorrect side of the street towards her.  In response she jumped onto the step or running board of the Transit van.  Her evidence was that the Falcon passed within two feet of her, but at the same time she was unable to say whether she would have been hit if she had not jumped out of the way.  As with the other charges, the applicant gave evidence denying what was alleged against him, and he called witnesses to support him, but he was not believed by the learned magistrate. 

1. It was not found by his Worship that the applicant was attempting to strike Mrs Waters with his vehicle, nor was it found that if she had not jumped out of the way she would have been struck by it.  Such findings were not open on the evidence.  At its highest, the assault was constituted by a threat to hit Mrs Waters with the vehicle.

1. In a plea in mitigation, counsel for the applicant stated that the applicant was 25 years of age, single and without dependants.  As a direct result of the trouble between neighbours, he and his family had moved to Hobart, where he was living.  The pre-sentence report supplemented that information by explaining that his family sold their Henty Street house and moved to Prospect and when the harassment continued, re-located to Hobart.  It was therefore extremely unlikely that there would be any more trouble.  Counsel asked the learned magistrate to consider the offences as "a product of the environment they were living in at the time".  Concerning the assault, counsel emphasised that it was committed on the spur of the moment and that no injuries resulted.  I note that on the information before the learned magistrate, it was impossible to determine which of the families, if either of them, was more responsible for the trouble between them. 

1. The pre-sentence report was favourable to the applicant.  He was one of four children of the marriage of his parents and had enjoyed a happy and stable childhood.  There was no substance abuse, domestic violence or welfare intervention and he was brought up to know right from wrong.  Members of his family projected a particularly strong sense of loyalty to one and other.  No doubt that factor influenced the commission of his offences.  One criticism that could be made of his upbringing was that the family had a peripatetic lifestyle.  He attended almost too many schools to remember them all.  His literacy level is low.  He left school at 16 years of age having only completed year 9.  He had since been unemployed and was in receipt of a disability pension.  His father was also unemployed.  He continued to live with his parents and a younger brother.  Alcohol was of no significance in his life and he never used drugs. 

1. The probation officer reported that the applicant presented as an affable young man whose intelligence quotient was likely to be in the lower range.  Family members and friends alike asserted that he "would do anything for anyone".  His friends were all positive and supportive when contacted.  One referee spoke particularly positively, describing him as a very quiet person, a loving family member and honest and reliable.  He had never seen the applicant lose his temper, being of a happy disposition, and considered that the offences were out of character.  A risk/needs assessment indicated that he did not require a high level of intervention, although the probation officer suggested a short period of supervision could be beneficial to reinforce in his mind the concept of "turning the other cheek", to stimulate some insight to the meaning of the adage "two wrongs do not make a right", and remind him that there can be uncomfortable consequences if he tries "to take the law into his own hands". 

1. In his comments on passing sentence, the learned magistrate said:

"This case involves a background as has been pointed out of a feud between the two families in the local area and this was perhaps the worst example of a manifestation of an action stemming from that feud.  I don't think it is saying too much to say that there was animosity between the parties and this defendant when he saw the opportunity drove his vehicle at the victim so alarming her that as I say she leapt onto the running board of the vehicle.  In my view a sentence of imprisonment is appropriate in this case where this vehicle was used as a weapon to commit this sort of assault.  There are also the other charges of breaching the restraint order in the way in which I found them to be proved and destroying property, that relating to the letterbox. 

I note that the defendant has not previous matters and I note that to a degree he was, I suppose it could be said that he was acting out his behaviour having some regard to his loyalties to his own family and to maintaining his position as giving them support in their feud with the victim who represented the other family. 

It is not indicated that probation is really required.  His family and he have since moved to Hobart and relocated away from the victim and her family.  But having regard to all matters and to my mind, in particular where a car is used as an assault weapon, as it was in this case, a term of imprisonment will be appropriate." 

1. I note that while the learned magistrate said that a sentence of imprisonment was appropriate, his Worship did not say that it was the only appropriate sentence, and with respect to his Worship, I cannot understand why he would have concluded that it was.  The applicant was of good character.  It was plain that he had been swept up in a ridiculous feud between members of his family, including his mother, and the neighbours.  In his Worship's view, the assault was the worst of his offences because a car had been used as a weapon, and no doubt that increased the gravity of the offence, but it was not a case where the offender was to be sentenced for having applied force to another or for attempting to do so, nor was there a basis for concluding that if Mrs Waters had not jumped onto the running board of the van, she would have been hit.  Involved was an unpremeditated threat to apply force that in fact caused Mrs Waters to be alarmed for her safety.  For a person with the applicant's antecedents, it did not justify actual imprisonment.  That is a sentence of last resort, particularly for one who is effectively a first offender, and a sentence to be imposed only where an alternative punishment is inappropriate.  See Sentencing in Tasmania by Professor Warner, 2 ed, par3.302.

1. Although specific deterrence is often an important consideration when sentencing for a breach of a restraint order (see Scott v White 86/1993 at 3 – 4), its importance was considerably reduced in this case because the applicant had moved his place of residence to Hobart.  General deterrence certainly remained a relevant consideration, to make those who are subject to such orders realise that significant penalties will be imposed, particularly for serious breaches.  At the same time, the learned magistrate needed to take care that he did not overly make an example of the applicant.  There was a risk of unfairly causing him to be the only person in the inter-family feud to suffer substantial punishment, in a situation where it was possible that the main cause of the feud did not rest with him, but with others.  The learned magistrate had no information about that one way or the other. 

1. For these reasons I have concluded that the sentence of three months actual imprisonment for the three offences was manifestly excessive.  Consequently it will be ordered that the sentence is set aside.

1. The process of re-sentencing is made difficult by the fact that the applicant spent 24 days in custody pending sentence.  I will take that into account but cannot provide him with anything in the nature of a refund.  I could backdate an order that he be imprisoned for 24 days, allowing for his immediate release, but I do not see that to be appropriate, simply because a sentence of actual imprisonment was not demanded.  Nevertheless, a sentence that sufficiently recognises the gravity of his offences is required.  He will be sentenced on the three counts to one month's imprisonment, all suspended on a condition of good behaviour for 12 months.