Ding v De Wit
[2024] TASSC 6
•1 March 2024
[2024] TASSC 6
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Ding v De Wit [2024] TASSC 6 |
| PARTIES: | DING, Yi |
| v | |
| DE WIT, Michael | |
| FILE NO: | 413/2023 |
| DELIVERED ON: | 1 March 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 7 August 2023 |
| JUDGMENT OF: | Blow CJ |
| CATCHWORDS: |
Courts and Judges – Courts – Effect of judge becoming unavailable to sit – Absence of judge – Making of necessary determination by another judge.
Aust Dig Courts and Judges [66]
Magistrates – Appeal and review – Tasmania – Motion to review – When remedy available – Assault charges – Whether findings of guilt reasonably open – Whether sentence manifestly excessive.
Aust Dig Magistrates [1345]
Cases cited:
House v The King (1936) 55 CLR 499
Phillips v Arnold [2009] TASSC 43, 19 Tas R 21
R v Murray (1987) 11 NSWLR 12
Wentworth v Rogers (No 3) (1986) 6 NSWLR 642
Legislation:
Justices Act 1959
REPRESENTATION:
Counsel:
Applicant: F Cangelosi Respondent: A Hogan
Solicitors:
Applicant: Logan & Partners Respondent: Director of Public Prosecutions
| Judgment Number: | [2024] TASSC 6 |
| Number of paragraphs: | 39 |
Serial No 6/2024 File No 413/2023
YI DING v MICHAEL DE WIT
| REASONS FOR JUDGMENT | BLOW CJ 1 March 2024 |
1 This is a motion for the review of three convictions and some sentencing orders imposed by a magistrate, Ms J Hartnett SC, on 22 February 2023. The applicant, Yi Ding, was found guilty on three counts of assault and sentenced, as a global penalty, to 6 months' imprisonment with effect from 20 February 2023, with 4 months thereof suspended on condition that, for a period of 18 months after his release from custody, he was to be of good behaviour and commit no offence punishable by imprisonment. At the conclusion of the sentencing proceedings counsel for the applicant gave notice of his intention to institute these proceedings, whereupon the learned magistrate made orders under s 117A(2) of the Justices Act 1959 staying the operation of the sentencing orders and admitting the applicant to bail.
Replacement of original judge
2 Geason J conducted a hearing of this motion on 7 August 2023, reserved his decision, and remanded the applicant on bail to appear on 21 November 2023. Circumstances have arisen that make it very clear that his Honour will be unable to give judgment in this matter within a reasonable time. On 20 February 2024 the parties requested me to determine this matter in place of his Honour, relying on a transcript of the hearing that he conducted and the usual papers and exhibits, and without making any additional submissions.
3 The circumstances that have made this unusual course appropriate can be summarised as
follows:
• On 2 November 2023 Geason J was served with a police family violence order. • On 3 November 2023 I spoke to his Honour by telephone. At my request he agreed not to sit as a judge until further notice. That arrangement is still in force. • On 1 December 2023 Geason J was arrested and charged with two summary offences, namely assault and emotional abuse. The complainant in those proceedings was his partner. • On 12 December 2023 the Attorney-General tabled in the House of Assembly an undertaking signed by Geason J by which he promised not to sit in respect of any matter except to the extent that I might request. I consider it inappropriate to make any such request while the charges against him are pending. • On 14 December 2023 I wrote to his Honour asking him to consider disqualifying himself in various matters, including this one. I have not received a reply. Disqualifying himself might well have been appropriate since the charges against the applicant were three charges of assaulting his partner. • The charges against Geason J are next listed for mention in the Magistrates Court on 30 April 2024. He has pleaded not guilty to both charges. All Tasmanian magistrates have disqualified themselves. There will have to be a hearing before an acting magistrate, probably a serving magistrate from another State, who will have to be appointed by Her Excellency the Governor. 4 It is clear from the decision of the New South Wales Court of Appeal in Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 that if a judge is unable through absence to make an order which needs
2 No 6/2024
to be made for a proceeding before a court to be competed, the court has jurisdiction enabling another judge to make the order. The applicant in this case has been on bail ever since the conclusion of the sentencing proceedings on 22 February 2023, with a sentence of imprisonment temporarily stayed. In the circumstances, the only appropriate course is for the motion to review to be determined by a judge other than Geason J.
The three convictions
5 The applicant was charged with four counts of assault on a single complaint. The learned magistrate acquitted him on count 3, but convicted him on counts 1, 2 and 4. Each of those counts alleged that the applicant unlawfully assaulted Jian Zeng, contrary to s 35(1) of the Police Offences Act 1935. The particulars were as follows:
• Count 1 alleged that on 27 September 2020 at Hobart he assaulted her by grabbing her arms, pushing her to the ground, grabbing her hair, pushing her head to the ground, putting his hands around her throat, grabbing her shoulders and kneeing her in the groin area. • Count 2 alleged that on 30 September 2020 at Bellerive he assaulted her by grabbing her by the throat with both his hands, causing her to choke, and punching her to the chest numerous times. • Count 4 alleged that on 28 February 2021 at Bellerive he assaulted her by punching her to the chest once and punching her to the face once. 6 The notice to review contains only one ground of review relating to the convictions. That ground asserts that the learned magistrate found counts 1, 2 and 4 proved beyond reasonable doubt when it was not reasonably open to do so.
7 When such a contention is advanced in a motion of this nature, the test to be applied is as stated by Crawford CJ, with whom the other members of the Full Court agreed, in Phillips v Arnold
[2009] TASSC 43, 19 Tas R 21, at [46], where his Honour said this: "… The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117."
8 The four charges were heard together. The prosecution's principal witness was the complainant, Ms Zeng. None of the other prosecution witnesses were present at the time of any of the alleged assaults. The other prosecution witnesses were a friend of Ms Zeng named Li Yang, her gynaecologist, Dr Gartlan, and Constable Jenke. The applicant did not give evidence, but his counsel tendered some photographs and some CCTV footage. The defence case was that Ms Zeng was the aggressor in the relationship, and that there were no unlawful assaults committed by the applicant upon her.
9 There was uncontroversial background evidence as to the parties' relationship. They lived together from about 2017 until March 2021. The applicant owned and operated a restaurant in New Norfolk and a residential hotel in Harrington Street, Hobart. Ms Zeng was originally a student, but at the relevant times had left her studies and was working in the applicant's businesses. The applicant controlled the finances. Ms Zeng was on a bridging visa, with no family in Australia.
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Count 1
10 The learned magistrate provided written reasons for her verdicts on the four charges. In those reasons she summarised the complainant's evidence relating to count 1 as follows:
"16 Ms Zeng alleged she was assaulted near the reception area at 102 Harrington Street. Ms Zeng said that she had stayed overnight at the Hotel. Ms Zeng's evidence was that they had an argument, Mr Ding had become aggressive and was throwing things in the kitchen. Ms Zeng alleged that she sent a text to his mother 'your son is going to kill me'. She said a text exchange followed with his mother. 17 Ms Zeng alleged Mr Ding tried to grab her phone. Ms Zeng said Mr Ding pushed her onto the marble floor, she said felt a headache and was screaming for help. Mr Ding dragged her by the hair and threw her to the ground a few times. She said that a hair clip on the side of her head broke. Ms Zeng alleged that Mr Ding strangled her with his hand on her neck and put another hand over her mouth. 18 Ms Zeng said she felt like she was dying so she kicked him. He lost his grip. She said she remained on the floor for a while before she was able to stand up and breathe. 19 Mr Ding tried to cuddle her but she told him, 'you are not a man and you are just hitting a woman and you are just hitting the wife' and slapped him to the face. Ms Zeng said Mr Ding's responded by grabbing her by the shoulders and kneeing her to the lower abdomen, 'just outside the uterus' She described feeling significant pain to the area and had to lie down. Ms Zeng said Mr Ding become nervous due to her pain asking her 'are you okay?'"
11 The learned magistrate considered various matters that were relevant to the complainant's credibility in respect of count 1:
•
The complainant went to the Royal Hobart Hospital on the day in question to receive medical attention for an injury to her groin area. At the hospital she told the doctor that it was caused by the "knee of a man". She said that it was due to an accident. She gave evidence that she did not tell the truth because she felt afraid that the doctor may call the police and that the applicant might get into trouble.
•
The hospital records contain a note reading,"… accidental knee to groin, friend was getting up from chair when he accidentally knee'd her."
•
In November 2020 the complainant went to see Dr Gartlan, the gynaecologist, about pain to the left side of her groin. She said she did not tell Dr Gartlan how the injury really happened as she was afraid and still in the relationship with the applicant, who had taken her to the appointment. She said that her real concern then was whether there were going to be long term consequences for her, and that she had not had a period for a long time at that stage.
•
Dr Gartlan gave evidence that the complainant gave a history of having attended the hospital with pain and bleeding, but the hospital records did not record a complaint of bleeding.
•
Dr Gartlan gave evidence that the complainant described the mechanism of the pelvic injury as accidental.
•
Under cross-examination the complainant said that she did not count how many times her head hit the floor or take note if marks were left on her arms where she had been grabbed.
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• Under cross-examination she conceded that she had not told anyone at the hospital that she had pain in her head. She said she was stressed and focussed on pelvic pain. • It was put to her that she had previously stated that the applicant had put one hand on her throat, not both hands. • There was evidence that she had told a police officer that she had taken photos of her injuries but she gave evidence that she no longer had those photos. • The complainant gave evidence that some days later she tried to download the CCTV footage from the reception area at 102 Harrington Street, but that the applicant unexpectedly returned and stopped her. Counsel for the applicant submitted to Geason J that the complainant did not tell the police about that CCTV footage, and that that reflected adversely on her credibility. However the learned magistrate considered that the fact that the complainant made a complaint of assault knowing of the possible existence of CCTV footage tended to indicate honesty. 12 In her reasons, at [25], the learned magistrate made the following comments as to the complainant's performance under cross-examination:
"25 Ms Zeng withstood cross examination well. Either individually or combined the various matters raised in cross examination did not undermine the veracity of her evidence. She was calm and patient although at times she was clearly frustrated when matters she saw as lies were put to her. Her demeanour in court added to her credibility."
13 The learned magistrate found count 1 proven beyond reasonable doubt. She was not satisfied that the applicant had placed two hands to the complainant's throat, but was satisfied beyond reasonable doubt of each element of the assault.
| Count 2 | |
| 14 | The learned magistrate summarised the complainant's evidence in relation to the second alleged assault as follows: |
"37 Ms Zeng alleged that consequent of the assault on the 27 September 2020 she was sleeping in a separate room to Mr Ding at their home. She alleged she went to his room and asked him 'do you think you need to make an apology to me about what you did because what you did has made great harm?' Ms Zeng said Mr Ding ignored her. She persisted and said 'at least you should apologise'. She said he responded he didn't do anything wrong 'your uterus previously just already bad and broken and it's none of my business.' Mr Ding was playing on his iPad. Ms Zeng grabbed his iPad from him and deliberately damaged it. 38 Ms Zeng alleged Mr Ding became very, very angry, jumped out of the bed and started to strangle her almost lifting her up and started to beat her, hitting her to the upper body. Ms Zeng said that he had one hand around her throat and the other across the bottom of the chin with his thumb in her mouth to stop her screaming. She described that to save her life she bit him hard on the thumb and he took his thumb out."
15 The complainant's account of this incident was uncorroborated.
16 In relation to this charge, the learned magistrate took into account the fact that the complainant did not report the alleged assault to the police at the time. She explained that she was suffering from depression and anxiety, that she was frightened that her bridging visa would be cancelled, and that she did not want the applicant to be put into prison. The complainant conceded that she was really angry on this occasion and wanted the applicant to apologise to her.
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17 The learned magistrate was satisfied that the applicant hit the complainant to the chest on this occasion, but was not satisfied beyond reasonable doubt that he punched her to the chest. Subject to that reservation, she accepted the complainant's evidence and was satisfied beyond reasonable doubt of the elements of the charge. She said the following as to the complainant's response to cross- examination in relation to this charge, at [41]:
"41
Ms Zeng withstood cross examination well. Her evidence as previously indicated requires careful scrutiny. I found her account compelling. It had a level of detail including as to conduct that did not put her in the best light that made it credible."
Count 3
18 This count alleged that on 26 February 2021 at New Norfolk the applicant assaulted the complainant by throwing a dim sim into her face. The learned magistrate summarised the complainant's evidence in relation to this count as follows:
"42 Ms Zeng alleged that she was working at Ding Ding restaurant this day. She said that there had been constant occurrences of violence in the days leading up to what occurred. She said that Mr Ding was unhappy with her work performance he yelled at her, he threw plastic crates her which she deflected with her arm. She said she was afraid as he had lost control. She said that he took a dim sim out of the fryer and threw it at her which was being cooked for a regular customer called Sam. She gestured that the dim sum had hit her glass frames she was wearing near her eye nose. Ms Zeng took a number of deep breaths during her recall of this incident and needed a break as she had become upset. Ms Zeng was aware that there was a camera in the kitchen but said Mr Ding had control of it and she could not get access."
19 The learned magistrate was not satisfied beyond reasonable doubt of the applicant's guilt in relation to this charge. Although the applicant did not give evidence, he produced 46 seconds of CCTV footage from a camera inside the restaurant, time stamped 26/2/21 at 13.12.50. It showed the complainant walking towards him, getting quite close, grabbing a knife, and hitting a bench a couple of times in an aggressive manner, and then the applicant trying to grab the knife and the couple struggling. The complainant had not told the police about the knife or mentioned it before her cross- examination. When giving evidence she contradicted herself in relation to the order of events. The learned magistrate concluded that the complainant's memory was not as clear in respect of this day as it was for other days.
| Count 4 |
20 The learned magistrate summarised the complainant's evidence in relation to this count as
follows:
"46
Ms Zeng alleges this assault occurred at their home. Mr Ding was recovering from surgery and they were in separate rooms. Ms Zeng said she had set her alarm for early as they or she had to go to 102 Harrington St. Mr Ding would not wake up or get out of bed. Ms Zeng bad an exchange with Mr Ding's mother. Ms Zeng explained that Mr Ding interpreted what she has said as an insult to his mother. Ms Zeng alleged that Mr Ding rushed out of his bedroom and started hitting her. He hit her to her face and chest (left side between the collar bone and breast area) and she fell to the floor. She said that he used vulgar language. Ms Zeng said she yelled for her help and his mother told him to stop. Ms Zeng said she told him she was not a slave and he was not supposed to hit her. Ms Zeng said after Mr Ding got ready for work, she went to the front door and said loudly that she must call the police. Ms Zeng said that Mr Ding's mother tried to talk her out of going to the police. Ms Zeng said that she and Mr Ding went to 102 Harrington St, as she had to help a
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customer. She sat in the back seat of the car as Mr Ding drove in. She said she wanted breakfast and Mr Ding insisted on following her. She told Mr Ding that she was unhappy and wanted to talk to Ms Yang. She said that he tried to talk her out of it but she insisted. Ms Zeng called her friend, Ms Yang."
21 In finding this charge proven, the learned magistrate took into account various matters relating to the credibility of the complainant, as follows:
•
The complainant met her friend Ms Yang later on the day in question, and twice more in subsequent days, but did not tell her all the details of what had been happening. She said that she was confused as to what to do and scared.
•
On 1 March 2021 the complainant told Ms Yang that she had been kicked, but that was not alleged in the proceedings.
•
On 3 March 2021 the complainant saw a general practitioner. In his notes he wrote, "Has a bridge visa at the moment, doesn't want to report it to police. Feels stress and anxious." He also noted, "there is a 7*4cm blue in her left chest, mild tenderness, there are also has some blue in her both arms and legs".
•
On 4 March 2021 photos of the complainant's injuries were taken by Constable Fellowes. The photos and a statutory declaration of the constable were tendered. The photos show yellow discoloration to the left side of the complainant's chest between the collar bone and her breast area. However there was no visible injury to the face.
Credibility generally
22 In some respects the evidence of the complainant was corroborated by the evidence of Dr Gartlan and Ms Yang. The evidence of what she said to them when the facts were fresh in her memory amounts to evidence of the truth of what she said: Evidence Act 2001, s 66(2). Her evidence was also corroborated by photographs that were taken by Const Fellowes.
23 The learned magistrate in her written reasons, at [8], acknowledged the need to carefully scrutinise and examine the complainant's evidence, consistently with R v Murray (1987) 11 NSWLR 12. In assessing her credibility, she said the following, at [12]-[14]:
"12
It appears common ground that violence was a feature of the relationship, the conflict is as to who was the aggressor. Ms Zeng said that the relationship was a good at the start but deteriorated. Ms Zeng alleged she was the victim of ongoing violence at the hands of Mr Ding commencing as verbal abuse and graduating to physical. Mr Ding denies this.
13
Ms Zeng gave evidence for a considerable period of time. Her evidence as previously indicated requires careful scrutiny. She was cross examined with significant challenge to her credibility, honesty and reliability. Her account remained consistent. She made concession including when Mr Ding assaulted her she would defend herself. I accept her evidence that it was a relationship in which he was the aggressor and she would defend herself. In making this assessment I have considered exhibit D 2 [the CCTV footage], and the various concessions she made in cross examination as to throwing a charger, hitting him with a purse and others. Defence submit that it is unsatisfactory for her to say cannot recall the mechanism but if she caused the injuries they were done in self-defence. To the contrary, it is completely plausible if someone was, as she gave evidence of, being subject to violence and having to defend herself, to answer in that way. In her evidence in chief she said she repelled him when attacked including she kicked out and bit him. It is plausible, as she said, that she never checked or looked to see if he was
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injured. She maintained consistently and compellingly that she was often abused and would act to defend herself or resist, and may have caused him injury. I have also considered not only what she said but how she relayed the impact of the relationship had on her, it was a very real retelling. Ms Yang's evidence is also relevant in this regard not only what she was told Ms Zeng as to the relationship but how Ms Zeng presented when relaying the nature of the relationship.
14 I found Ms Zeng credible, honest and generally reliable. I accept her account of the relationship."
24 Counsel for the applicant provided detailed written submissions. After a detailed review of the evidence he made submissions as follows:
"34 From the foregoing analysis, it is apparent that the complainant's evidence was generally unreliable. The complainant's account was implausible, given medical records of her conduct at the hospital on 27 September 2020. Her failure to give any evidence to the effect that she had defended herself from the Applicant was striking, given her heavy reliance on generalised claims of self defence when she was later confronted with evidence of violence. 35 In particular, her failure to tell the police that she had threatened the Applicant with a knife, her failure to tell the court that she had done so, and her efforts at minimising what the video from 21 February 2021 depicted, meant that it was impossible for the learned Magistrate to be satisfied of her honesty and reliability in relation to counts 1, 2, and 4, 36 In the circumstances, it was not reasonably open to the learned Magistrate to be satisfied of guilt beyond reasonable doubt on the essential evidence of the complainant on counts 1, 2, and 4."
25 At the hearing before Geason J, counsel for the applicant adopted his written submissions, addressed his Honour in relation to the evidence in some detail, and screened the CCTV footage relating to count 3 as well as CCTV footage depicting an injury inflicted by the complainant to the applicant's leg on an occasion that was not the subject of any charge. He made submissions to the effect that the complainant's evidence was so unreliable that it was not reasonably open to the learned magistrate to accept it, and that the convictions should therefore be quashed.
26 I have read the transcript of the proceedings before Geason J and the outlines of contentions of both parties. I have studied the transcript of the proceedings before the learned magistrate and watched the two pieces of CCTV footage. I note that the learned magistrate, unlike me, had the advantage of seeing and hearing the complainant give evidence over several days in December 2021 and May 2022.
27 Although there were many pieces of evidence that defence counsel were able to rely upon when submitting that the complainant's evidence was unreliable, it was very significant that she was generally consistent, and that she made concessions about aggressive behaviour on her part. There were plausible explanations for refraining from telling others about various things, and for her failure to mention or recollect matters of detail. Delayed or incomplete accounts of domestic violence incidents on the part of honest witnesses are very common.
28 Having regard to all the aspects of the evidence that I have referred to, and which counsel referred to, I consider that it was reasonably open for the learned magistrate to conclude that the complainant was "credible, honest and generally reliable" and to convict the applicant on counts 1, 2 and 4. The ground of review relating to the convictions must therefore fail.
The sentence
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29 As I have said, the learned magistrate sentenced the applicant to 6 months' imprisonment, with 4 months thereof suspended on condition that for a period of 18 months after his release from custody he was to be of good behaviour and commit no offence punishable by imprisonment. The notice to review contains only one ground relating to the sentence. It reads as follows:
"The sentence imposed by the Learned Magistrate discloses general error in that it
was manifestly excessive in all the circumstances."
30 The applicant was 44 years old and single when sentenced. He has been in Australia since 2007. He had become a permanent resident and was applying for citizenship. He was a chef. He had sponsored his parents to come to Australia from China. They were living with him. He is their only child, and was providing them with support. He and the complainant had separated and had finalised their financial arrangements.
31 The learned magistrate took into account a number of mitigating factors, as follows:
• The applicant did not have any prior convictions relating to violence. • He had not re-offended in the two years since the last assault on the complainant. • His work history indicated that he was a hard-working and industrious man. • He owned a business that employed nine staff. It could continue in his absence if he went to prison. • He had contributed to the community during the COVID pandemic. • Three character references were provided. Their authors spoke highly of his hard work and his contributions to the Chinese community. • Prison will be unusually difficult and isolating for the applicant because he is not fluent in English and has not been to prison before. 32 It is clear that the learned magistrate regarded the three assaults as very serious. Her sentencing comments included the following:
"The victim wanted to leave the relationship but was frightened and anxious to do so. The victim was on a bridging visa with no family in Australia. She sought support from her friend whom she made a complaint to. She went to a doctor before making a complaint to police.
Family violence must always be regarded as a serious matter. These are serious family violence assaults. On two of the three occasions you applied force to the victim's neck, causing her to fear for her life. Placing hands around another person's throat and applying pressure is an inherently dangerous act, even if it occurs over relatively short time. It is a form of control, a prevalent and dangerous feature of family violence. Your offending involved multiple acts of violence for which you did not by and large voluntarily desist from. You have shown no insight into your conduct.
There is a need for the sentence imposed to act as a deterrent to you and others. General deterrence is a significant sentencing factor in offending of this nature. There is nothing in this case that suggests that you are not a suitable vehicle for general deterrence. There is also a need for the sentence to denounce the conduct and vindicate the victim.
The victim impact statement provides insight into the harm you have caused by your conduct towards the victim. She suffers depression, anxiety and a loss of confidence.
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The consequences of your conduct have impacted all aspects of her life. She has had nightmares and flash backs."
33 After summarising the applicant's personal circumstances and noting the relevant mitigating factors the learned magistrate said this:
"A term of imprisonment is the only appropriate sentence to mark the community's abhorrence for this sort of behaviour, to deter you and importantly to deter the general community from engaging in such violence."
34 The applicant contends that the learned magistrate's sentencing orders are "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505. Counsel for the applicant submitted that the learned magistrate should have treated actual imprisonment as a penalty of last resort, and that either a wholly suspended sentence or a home detention order would have been appropriate in all the circumstances.
35 The learned magistrate was asked to order a home detention assessment report two days before she imposed sentence, but she said that she had determined that a home detention order was not an appropriate sentence in all the circumstances, and that she had come to the conclusion that a term of "imprisonment served" was appropriate.
36 Counsel for the applicant submitted to Geason J that little could be gained by incarcerating a person with very little English for two months, and that home detention would have been more appropriate so that the adverse impacts of imprisonment could be avoided.
37 The learned magistrate was correct to characterise the three assaults as "serious family violence assaults". As she observed, two of them involved applying force to the complainant's neck, causing her to fear for her life, and creating a danger of serious injury. The complainant was a vulnerable individual, on a bridging visa with no family in Australia, and financially dependent on the applicant. The psychological impact of the assaults on her was profound. They were not isolated assaults. It was very appropriate for the learned magistrate to impose a heavy penalty for the purpose of deterring others from similar conduct. There was also some need to deter the applicant from behaving in a similar manner in the future. The passages that I have quoted from her sentencing comments show that she correctly took into account various considerations warranting a heavy penalty.
38 Having regard to all the circumstances, it was neither unreasonable nor unjust for the learned magistrate to send the applicant to prison, despite the unusual impact that imprisonment would have on him as a result of his very limited English, the fact that he had never been to prison before and the other mitigating factors. The head sentence of 6 months' imprisonment was an appropriate one, having regard to the seriousness of the assaults and the need for general deterrence. It was appropriate for the learned magistrate to suspend most of that sentence, particularly because of the mitigating circumstances that I have listed. In my view the penalty of 6 months' imprisonment with 4 months thereof suspended was well within the bounds of the learned magistrate's wide sentencing discretion.
39 For these reasons the motion to review is dismissed. I discharge the learned magistrate's stay order, revoke the applicant's bail, and direct that he be taken into custody to resume serving his sentence.
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