Devine v Edge
[2023] TASSC 42
•7 November 2023
2023] TASSC 42
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Devine v Edge [2023] TASSC 42 |
| PARTIES: | DEVINE, Scott Percy |
| v | |
| EDGE, Anne | |
| FILE NO/S: | 1690/2023 |
| DELIVERED ON: | 7 November 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 31 October 2023 |
| JUDGMENT OF: | Pearce J |
| CATCHWORDS: |
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentencing orders – Assault police and other offences – Sentence of imprisonment for two years with non-parole period of 18 months – Sentence not manifestly excessive.
Police Offences Act 1935, s 34B(1)(a)(i).
Aust Dig Magistrates [1349]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Applicant: In person Respondent: L King-Roberts
Solicitors:
Respondent: Director of Public Prosecutions
| Judgment Number: | [2023] TASSC 42 |
| Number of paragraphs: | 21 |
Serial No 42/2023
File No: 1690/2023
SCOTT PERCY DEVINE v ANNE EDGE
| REASONS FOR JUDGMENT | PEARCE J 7 November 2023 |
1 The applicant moves to review a sentence imposed on him by a magistrate, Ms M Duvnjak, on 3 April 2023. The respondent is a police officer who made one of the complaints against the applicant. The applicant pleaded not guilty to all of the charges to which the sentence related and hearings were conducted on 16 December 2022 and on 2 March 2023. On 23 March 2023 the learned magistrate gave her reasons for finding all of the complaints proved. She sentenced the applicant on 3 April 2023 to a term of imprisonment of two years. To take account of the lengthy period of custody the applicant had served prior to sentence her Honour ordered that the term commence on 4 February 2022. Her Honour ordered that the applicant not be eligible for parole after having served 18 months of that term.
2 The applicant's ground of appeal is that "the sentence length is excessive and a miscarriage of justice." The notice to review was not filed until 26 June 2023, outside the time limit for such appeals. An extension of time to file the appeal is not opposed and is granted. The motion did not come before me for hearing until 31 October 2023. Because the applicant's sentence commenced on 4 February 2022 his head sentence will conclude on 3 February 2024. However he became eligible to apply for parole on 4 August 2023. He informed me that he was not granted parole, but of course that was entirely a matter for the Parole Board.
3 As has been stated in a great many cases, an appellate court must not interfere with the exercise of the sentencing discretion except in a clear case of error: Visser v Smart [1998] TASSC 151. The applicant must show that the sentence is so obviously excessive or inadequate that the sentencing discretion must have miscarried; or put another way, the sentence is plainly outside the proper limits of the wide discretion vested in the magistrate. The appeal court must not substitute its own opinion for that of the magistrate even if it would have exercised the sentencing discretion in a different manner.
4 The applicant was unrepresented. He was at something of a disadvantage in presentation of his submissions in support of his appeal. It was left to counsel for the State and the Court to collect the materials relevant to the motion. That material included the learned magistrate's reasons for finding each of the charges proved and her Honour's comments on passing sentence. Because the motion was limited to a challenge to the sentence no transcript of the evidence was prepared. However, when it came for the motion to be heard, the applicant's principal complaint was that he should not have been found guilty of any or some of the charges. That was an issue which fell clearly outside the ground of his appeal which contained no complaint of error in relation to the convictions. There was no application to amend the grounds of the notice to review. Even if there were, the applicant is not entitled to a rehearing. In the absence of a specific error of fact or law, on a motion to review a decision of a magistrate on the ground that an applicant should not have been found guilty can only succeed if it is demonstrated that the magistrate could not, as a reasonable person, have come to the conclusion to which he or she did: Phillips v Arnold [2009] TASSC 43; 19 Tas R 21 at [46]. The magistrate referred to the evidence in her reasons for finding the complaints proved. At least for the most serious charges her Honour accepted the evidence of the police officers, mostly supported by audio visual recordings from police body worn cameras. The photographs of injuries to both police officers which were tendered at the hearing supported the prosecution case. The applicant insisted that some of that evidence did not exist. Apart from his apparent confusion about a number of issues, I was also made aware that the applicant was, because of his persistently disruptive behaviour, excluded by the learned magistrate from some of the
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hearing. Again, there is no ground of appeal which challenges the manner in which the hearing
proceeded.5 For the following reasons I am satisfied that the head sentence was not manifestly excessive. The applicant was found guilty of 20 offences across five complaints:
On complaint 8143/2021:
• breaching a restraint order contrary to the Justices Act 1959, s 106I(1); •
using abusive language to a police officer contrary to the Police Offences Act 1935, s 34B(1)(b).
On complaint 8418/2021:
• breaching a condition of bail contrary to the Bail Act 1994, s 9; •
threatening a police officer contrary to the Police Offences Act 1935, s 34B(1)(b).
On complaint 1041/2022:
•
two counts of breaching a restraint order contrary to the Justices Act 1959, s 106I(1);
• two counts of breaching a condition of bail contrary to the Bail Act 1994, s 9; • contravening conditions of a notice contrary to the Bail Act 1994, s 5(4). On complaint 1374/2022:
•
assaulting a police officer contrary to the Police Offences Act 1935, s 34B(1)(a)(i);
On complaint 1044/2022:
• using abusive language to a police officer contrary to the Police Offences Act 1935, s 34B(1)(b); • threatening a police officer contrary to the Police Offences Act 1935, s 34B(1)(b); • resisting a police officer contrary to the Police Offences Act 1935, s 34B(1)(a)(i); • four counts of assaulting a police officer contrary to the Police Offences Act 1935, s 34B(1)(a)(i); • injuring property contrary to the Police Offences Act 1935, s 37(1).
6 It was the duty of the learned magistrate to, after conducting the hearings, to determine the factual basis of sentence. Any challenge to the sentence on the ground that it is manifestly excessive is to be determined on the basis of those factual findings. The circumstances of the offences, as the magistrate found them to be, may be summarised as follows.
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7 On 2 September 2021 a restraint order was made pursuant to the Justices Act 1959, s 106B, which included a condition that the applicant not go within 100 metres of a specified property in Rhyndaston. The property was the home of Rebecca Heath, a near neighbour of the applicant. There was also a condition of the order that the applicant not threaten Ms Heath. On 16 October 2021 the applicant breached the order by driving past the boundary of the premises at 10.30 pm. Two days later, on 18 October 2021, three police officers approached him about the breach of the restraint order. He abused them with vile and obscene language.
8 On 19 October 2021 the applicant was admitted to bail in the Magistrates Court on conditions which included that he live at a specified address, be present at that address between 10pm and 6am and present himself to a police officer during those hours if so required. The police conducted a curfew check just after 10pm on 25 October 2021. The applicant failed to present himself. When a police officer, Acting Sergeant Britton, approached him about the breach on the following day the applicant threatened to "Kill you cunt pig bastard" and "I'm going to give you a hiding, crack your skull."
9 The remaining offences were committed on 3 and 4 February 2022. The applicant was still subject to the restraint order and bail conditions to which I have referred. In breach of both orders the applicant left his home after 10pm on 3 February 2022, drove past Ms Heath's home and threatened to shoot her. The learned magistrate found that the applicant said to her: "you'll get shot cunt – you're going to die cunt." The applicant was subject to a separate bail condition that he not drive or be found behind the controls of a motor vehicle. The community in which both the applicant and Ms Heath lived was small and remote. Not surprisingly, she was frightened by the applicant's threats to kill her and she called the police. Two police officers, Senior Sergeant Parker and Constable Jaenke, a female, went looking for the applicant. They found him at his home. The magistrate found that the applicant's conduct towards them was "hostile, volatile, aggressive and belligerent." He verbally abused the police officers and threatened to kill them. Three counts of assaulting a police officer concerned Constable Jaenke. The magistrate's comments on passing sentence addressed the nature, circumstances and impact of those assaults:
"You assaulted Constable Jaenke by swinging a metal spirit level at her and striking her on the forearm. You also swung a piece of timber at her head. It is only because she took evasive action that the timber struck her to the forearm. You further assaulted Constable Jaenke when you threw bricks at her.
You caused Constable Jaenke to suffer bodily harm as a result of your conduct. She suffered a gash on her right arm approximately five centimetres long, as well as significant bruising along the outside and inside of her right forearm up to her elbow. She has also suffered injuries to her hands and fingers. All of these were the subject of photographs that were exhibits before the Court. I was provided with a detailed victim impact assessment prepared by Constable Jaenke. The impact of your assaults on her have been psychologically significant and profound. She has been unable to return to work after a long career in the police service, which she had hoped to continue for some
years to come."
10 The two remaining counts of assaulting a police officer concerned Senior Sergeant Parker. As to those assaults the learned magistrate said:
"You also assaulted Senior Sergeant Parker by striking him to the back with the same metal spirit level, resulting in bruising to the back right rib area. The bruising had a diameter of approximately six centimetres. You further assaulted him by throwing bricks at him."
11 In the circumstances as the learned magistrate found them to be, her Honour found it "astonishing that both police officers … were not more seriously physically injured" by the applicant's conduct. She found that both feared for their safety and "removed themselves" from the property. As well as assaulting the police officers, the applicant smashed the windscreen and damaged the bonnet
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and a number of the panels of the police vehicle, a Toyota Prado. The damage cost more than $10,000
to repair.12 At the time of the offences the applicant was aged 55. He informed the magistrate that he had been a self-employed brick paver for 20 years. The magistrate took into account that, as a result of the protracted period the applicant had spent in custody prior to the hearing he had already suffered a very significant financial detriment. Otherwise, the applicant said little else about his personal circumstances. Between 1982, when he was 16, and 1993, when he was 26, he was sentenced for a range of driving and anti-social offending. He was imprisoned for nine months in 1987 for, when he was about 21, being unlawfully armed in public and assault. When drunk he pointed loaded firearms at other people in a hotel bar. He was made subject to two relatively short terms of imprisonment in 1993 for firearm offences, trespass, injuring property and resisting and assaulting police. There was no other offending in Tasmania between 1993 and these offences.
13 The applicant had a record of offending in Western Australia where he spent time since about 1990. With only a few exceptions it is for traffic offences although a small number of occasions resulted in suspended terms of imprisonment, most recently in 2008. Another resulted in a term of actual imprisonment in 2010 when he was also fined for disorderly behaviour. In 2004 he served a short term of imprisonment for breach of bail and possessing a firearm and ammunition without a licence. He was given a small fine in 2003 for disorderly conduct and another small fine in 2000 for assaulting a public officer and resisting arrest. At face value those convictions are directly relevant to the current offending but the nature of the penalty strongly suggests that it was not a serious example of those offences. Between 2010 and 2020 in Western Australia the applicant's only convictions were for three traffic matters which resulted in fines and periods of disqualification from driving.
14 When sentencing, her Honour did not overlook the breaches of restraint order and breaches of bail. Those offences displayed a disregard for the law and for the force of the court orders. One of the restraint order breaches must have been frightening for Ms Heath. The offences committed against the police officers in October 2021 displayed a contempt for their authority. However, although some of those offences involved threatened violence, none involved actual violence. They were not serious enough to justify imprisonment for a term anywhere near the length of the term in fact imposed.
15 As the learned magistrate correctly observed, it was the offences committed in February 2022 which were clearly the most serious. The assaults committed against Constable Jaenke and Senior Sergeant Parker were very serious examples of that offence. The applicant displayed a level of disregard and contempt for the authority and safety of the police which was substantially greater than he had previously displayed. The sentencing magistrate determined that general deterrence was a weighty sentencing consideration. She emphasised the harm suffered by the police officers who were assaulted and the risk of further harm to which they were exposed. I respectfully agree with all of her Honour's comments. The physical and psychological impact on Constable Jaenke was particularly significant. She suffered serious and long lasting psychological harm which meant that she was unable to return to her employment. The applicant's behaviour was aggressive, damaging and frightening and the violence he inflicted was with weapons: a metal sprit level, a piece of wood and bricks. He was not entitled to the mitigation a plea of guilty to any of the offences may have attracted, and he had displayed no remorse. Instead, he claimed that he had been harassed and persecuted by the police. There was a distinct need for punishment, denunciation and both specific and general deterrence. In Brasher v Tasmania [2015] TASCCA 16 at [17]-[18], Wood J said:
"As a general principle, crimes involving violence towards police officers performing their public duty are viewed very seriously and 'general deterrence weighs heavily in the sentencing process': Attorney-General (Tas) v Knight [2003] TASSC 77 at [13]; see also Burling v Tasmania [2007] TASSC 104 at [13]. By the imposition of such penalties, the courts seek to support the authority of the police and protect the police from acts of violence by deterring other offenders. In Attorney General's Application
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Under s37 of the Crimes (Sentencing Procedure) ACT 1999 No 2 of 2002 [2002] NSWCCA 515; (2002) 137 A Crim R 196, Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) said at 203 [22]:
'Offences involving assault of police officers in the execution of their duty are serious offences requiring a significant element of deterrence in the sentences to be imposed. The community is dependent to a substantial extent upon the courage of police officers for protection of lives, personal security and property.'
See too R v Hamilton (1993) 66 A Crim R 575, per Gleeson CJ (Hunt CJ at CL and Ireland J agreeing); Director of Public Prosecutions (Vic) v Arvanitidis [2008] VSCA 189; (2008) 202 A Crim R 300, per Redlich JA at [50]."
16 For each count of assaulting or resisting a police officer the applicant was liable on summary conviction to a penalty not exceeding 100 penalty units or to imprisonment for a term not exceeding 3 years: Police Offences Act, s 34B(1A). For each contravention of the restraint order the applicant was liable on liable on summary conviction to a fine not exceeding 10 penalty units or to imprisonment for a period not exceeding 6 months : Justices Act, s 106I(1). For damaging the police vehicle the applicant was liable on summary conviction to a penalty not exceeding 10 penalty units or to imprisonment for a term not exceeding 12 months.
17 The sentencing magistrate considered the application of the Sentencing Act, s 16A. That section provides for mandatory imprisonment for a term, absent exceptional circumstances, of at least six months if a police officer suffers serious bodily harm caused by, or arising from, an offence committed in relation to a police officer while the police officer was on duty. The nature and operation of the provision was considered by Brett J in Tasmania v Gladwin [2016] TASSC 64; 30 Tas R 246. The learned magistrate found that the provision did not apply to the assaults committed against Constable Jaenke or Senior Sergeant Parker because the bodily injury they suffered was not "serious bodily harm" within the meaning of that term in s 16A. The only result of that finding was, however, that the mandatory imprisonment requirement did not apply. The magistrate's sentencing discretion was not affected by the provision and the absence of "serious bodily harm" did not mean that a sentence of imprisonment for a term greater than six months could not be imposed if it were otherwise appropriate.
18 The applicant was sentenced to imprisonment for two years. In my view, given that it had been 21 years since the applicant had been convicted of any offences in Tasmania, and no serious comparable offences in Western Australia during the interim, it can properly be characterised as a heavy sentence. However, in light of the nature and extent of the applicant's overall criminal conduct, particularly the serious and damaging assaults committed against two police officers, there was a strong need for punishment and general and personal deterrence. I am not satisfied that the head sentence was outside the proper limits of the magistrate's sentencing discretion.
19 The aspect of the sentence which has caused me the most pause is the length of the non-parole period. The non-parole period ordered by the learned magistrate was 75 per cent of the total sentence. Imposition of a long parole ineligibility period may make a sentence manifestly excessive: Groenewege v Tasmania [2013] TASCCA 7 per Porter J at [56]–[59]. The purpose of legislation providing for parole eligibility is to "provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate": Power v The Queen [1974] HCA 26; 131 CLR 623 at 629. The non-parole period should be "the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence": Power at 629; Deakin v The Queen [1984] HCA 31; 58 ALJR 367; Bugmy v The Queen [1990] HCA 18; 169 CLR 525. By operation of the Sentencing Act 1997, s 17(3), the period for which the applicant was not eligible for parole was not to be less than one-half of the period of that sentence. The length of the non-parole period was a matter of discretion for the sentencing judge. The discretion is unfettered. Some guidance is to be derived from the terms of s 17(4) of the Sentencing Act, which relevantly provides that the court may have regard to the nature and circumstances of the offence and the offender's character and antecedents.
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The factors which bear upon the head sentence including the need for punishment, general and personal deterrence, and protection of the public, are also relevant to parole. There is no presumption that the minimum non-parole period should be ordered and one factor which would justify a requirement to serve a greater proportion of the head sentence than one half, is a bad criminal record. It might be argued that the applicant's record did not justify imposition of such a long non-parole period. The severity of an already significant sentence was substantially increased by the length of the non-parole period. However, the issue in this case is whether the learned magistrate erred in determining that the nature of his offences warranted a non-parole period of 18 months. With some hesitation, I have concluded that in light of the serious nature of the applicant's offending, notably the assaults of two police officers, although the non-parole period was a long one, it was not so long as to make it unjust or unreasonable.
20 Even if I were wrong about that aspect of the sentence, I would nevertheless dismiss the appeal. The somewhat unusual circumstances of this case mean that no substantial miscarriage of justice would occur even if the matter raised by the motion might be decided in favour of the applicant: Justices Act 1959, s 110(2)(ab). Were I to re-sentence the applicant I would not be bound to re-impose the same head sentence. The applicant has not pointed to any matter relevant to sentencing that has occurred since the applicant was sentenced: Justices Act, s 110(2AA). Nevertheless, I am satisfied that the sentence imposed by the learned magistrate was the correct sentence, for the same reasons as were given by the learned magistrate. The assaults committed by the applicant required a harsh response, remembering also that the applicant was to be sentenced for other offences as well. Because his sentence commenced on 4 February 2022 he is already eligible to apply for parole but has been refused. Even if the non- parole period was reduced to the minimum, it would make no material difference to the applicant's position in relation to parole.
Result and orders
21 For the foregoing reasons, the motion is dismissed.
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