Druett v Mirchandani
[2013] ACTSC 254
•3 December 2013
| Medium Neutral Citation | Michael Thomas Druett v Kieran Prakash Mirchandani [2013] ACTSC 254 (3 December 2013) |
| Hearing Dates | 3 December 2013 |
| Decision Date | 3 December 2013 |
| Before | Murrell CJ |
| Decision | See para [23] – [26] |
| Catchwords | CRIMINAL LAW – appeal from Magistrates Court – whether sentences and penalties manifestly excessive |
| Legislation Cited | Magistrates Court Act 1930 (ACT) |
| Cases Cited | Kennewell v Rand (2006) ACTCA10 |
| Category | Criminal appeal from the Magistrates Court of the ACT |
| Parties | ACT Legal Aid Office |
| Director of Public Prosecutions for the ACT | |
| Representation | Mr Richard Davies (Appellant) |
| Ms K James (Respondent) | |
| File Number(s) | SCA 64 of 2013 |
By an amended notice of appeal filed on 10 October 2013, the appellant appeals against three of the four sentences that the Magistrates Court imposed on 2 August 2013. The relevant sentences relate to the following matters:
(1) Common assault on Paul Clare
(2) Common assault on Sheridan Johnson
(3) Resist a Commonwealth public official.
Each of the offences was committed on 9 April 2009. The Magistrates Court imposed sentences of three months, two months and three months respectively. The maximum available penalties were respectively two years, six months and two years’ imprisonment.
There was an associated offence of offensive behaviour in relation to which the Magistrates Court imposed a 12 month good behaviour order. There is no appeal from that decision. I note that the good behaviour order was subject to the statutory conditions but was not subject to any specific conditions. In particular, it did not incorporate a condition requiring supervision and treatment in relation to alcohol abuse.
The appeal to the Supreme Court lies pursuant to Pt 3.10 of the Magistrates Court Act 1930 (ACT). That Part contains no express statement concerning the nature of an appeal to the Supreme Court against a magistrate’s sentence. There is reference in s 214 to the Supreme Court having regard to the evidence given in the original proceedings and having power to draw inferences of fact, and to requirements in relation to the Supreme Court receiving fresh evidence.
In their submissions, the parties drew the Court’s attention to the decisions of Hawkins v Hawkins (2009) ACTSC 148 and Kennewell v Rand (2006) ACTCA10, as well as other decisions where the Court has held that the Supreme Court’s jurisdiction on appeal from a sentence imposed by a magistrate is of the nature discussed in House v The King [1936] HCA40. In other words, it has been held that the Supreme Court will not interfere with a sentence imposed by a magistrate unless there has been an error in the approach taken by the magistrate or the sentence falls outside the range of appropriate sentences. It has been held that, on appeal, the Supreme Court should not interfere with a sentence unless the sentence is manifestly excessive or manifestly inadequate, and the Supreme Court should not substitute its own opinion for that of the sentencing judge. I have not been asked to consider whether the jurisdiction of the Supreme Court is so confined. I proceed on the basis that I should only interfere with the sentences imposed by the learned magistrate only if I consider that there was an error in her approach or the sentences imposed were manifestly excessive.
The relevant facts are set out in the facts sheet in Exhibit 1. They are repeated in the submissions of the respondent. Briefly, on the afternoon of Thursday, 9 April 2009, Ms Johnson was travelling on a bus from the Civic area towards Belconnen. The appellant, who was highly intoxicated, boarded the bus. He approached various people in the bus in a manner which they viewed as intimidating or harassing. He then approached the area where Ms Johnson was seated and waved his hands in front of her. She told him to leave her alone and he responded, “You don’t like me, you’re snobby.” He then sat two seats behind Ms Johnson. He leaned forward towards the female passenger seated next to Ms Johnson, placing his hands on her shoulders and shaking her. He then conducted himself in a similar manner towards Ms Johnson. She told him in no uncertain terms that he should desist. He did so briefly, but then resumed. When she responded in a negative fashion, he invited her to hit him. She attempted to ignore him but he continued to talk about her and the woman seated next to her in a derogatory and insulting fashion. At one point, he said, “When those girls get off the bus, I’m going to chase them down and rape them.” An unknown male passenger intervened and advised the bus driver, who contacted the bus operator.
When the bus reached its destination at the Belconnen Bus Interchange, a bus company supervisor, Mr Clare, was present and approached the offender. The offender complained to the supervisor and informed him that he had been, “just trying to give (Ms Johnson and the woman seated next to her) a bit of a shoulder massage, but they think that’s fucking harassment or something.” The appellant then walked towards other people at the bus interchange and started grabbing at them and intimidating them.
Mr Clare called the police. The appellant threatened him, saying that if Mr Clare called the police, he would punch Mr Clare. He invited Mr Clare to “have a go.” The appellant then began to shout obscenities while walking towards Mr Clare. He clenched his fists and raised them to a fighting position. He then proceeded to strike Mr Clare’s left arm with his fists approximately fifteen times with moderate to strong force. Mr Clare felt pain. He repeatedly asked the appellant to calm down, but without success. Ultimately, another man pulled the appellant from Mr Clare and walked him away. The appellant continued to threaten Mr Clare with assault if he contacted the police. CCTV cameras show the appellant urinating at the bus exchange.
Police arrived and attempted to calm the appellant, but he remained verbally aggressive. They formed the view that he was intoxicated. They told him that he was under arrest and he responded aggressively. He continued to behave aggressively as he was being searched, struggling violently and accusing the police of brutality. At one stage, he broke free and then fell onto the road, where he struck his head. An ambulance was called. The appellant continued to threaten police, saying that he was going to punch them. He was conveyed to Canberra Hospital for observation.
The appellant is 50 years of age. He was raised in rural New South Wales, one of five children. He has an extensive criminal history dating back many years and containing an array of generally minor matters. Historically, there are matters of assault and assaulting and resisting police recorded against him. The most recent such offence occurred in 2001. Those offences have generally resulted in the imposition of a good behaviour bond or fine. There are prior matters for offensive behaviour but those matters date back to the 1990s. In the last decade, there have been a number of driving matters, including many matters of driving with his licence suspended. There have been relatively minor matters of dishonesty such as possessing housebreaking implements and, more recently, in 2012, a matter of entering a building with intent to commit an indictable offence, for which he received a fine of $250. In 2012, he received penalty notices for driving while consuming alcohol and exceeding the speed limit. He was fined as a result of those offences. He has received several suspended sentences. Most recently, in 2004, he received a nine-month sentence for possessing housebreaking implements which was suspended upon him entering a s 12 bond to be of good behaviour for nine months. So the appellant’s criminal history can be described as lengthy, generally of a minor and nuisance nature, generally not of a violent nature (contrary to assertions made in the pre-sentence report) and largely related to the consumption of alcohol.
The appellant has had several long-term relationships. Most recently, a partner of 13 years died suddenly in 2011. He has four children of several relationships. They are now adults. He has seven grandchildren. He receives good family support. He left school in Year 9. He has worked in labouring and in the construction industry, often as a steel fixer. He has a good work ethic. He has been paying off a house that he owns on the South Coast.
The appellant has a longstanding history of excessive alcohol consumption, which has been related to the commission of crimes. He claims that he now consumes less alcohol than was the case when he was younger. The pre-sentence report refers to a “low to moderate likelihood of further offending” and states that the likelihood will be low if the appellant remains employed and able to manage his alcohol consumption.
In relation to the objective seriousness of the offences, I agree with the characterisation of the offences by the learned Magistrate, who described them as “objectively serious,” and I agree with the reasons that she gave for that description.
The amended notice of appeal raises a number of grounds of appeal. The grounds of appeal are:
(1) The sentences and penalties imposed by her Honour were manifestly excessive in all of the circumstances;
(2) Her Honour failed to give any due weight to the time that had elapsed between the commission of the offences and the date of sentencing and that but for one minor matter, the appellant had not offended again;
(3) Her Honour failed to have any or any sufficient regard to the changes in the appellant’s life and to his lifestyle, (including consuming less alcohol) since the offending behaviour in April 2009;
(4) Her Honour failed to consider possible alternatives before determining that the only appropriate sentences were terms of imprisonment as she was required to do under the provisions of section 10(2) of the Crimes (Sentencing) Act 2005;
(5) Her Honour erred in attaching undue weight to the appellant’s interest in obtaining further work in Western Australia in determining that alternatives to sentences of fulltime imprisonment were not appropriate;
(6) Having determined that there was no alternative but to impose sentences of imprisonment, her Honour ought to have given favourable consideration to either suspending those sentences or otherwise ordering that they be served by way of periodic detention for which the appellant was assessed as suitable, provided he did not return to Western Australia.
In relation to grounds 2, 3, 4, and 5, those grounds can be disposed of shortly. As to the alleged failure to give any or any due weight to the time that had elapsed between the commission of the offences and the date of sentencing, and that but for one minor matter, the appellant had not offended again, her Honour did refer to the lapse of time, and she referred, in some detail, to the appellant’s criminal history. I am not satisfied that she failed to give due weight to those matters. Indeed, it appears that she took them into account in an appropriate way.
As to the learned Magistrate’s alleged failure to have any or any sufficient regard to changes in the appellant’s life and to his lifestyle, the fact is that the evidence before her Honour in this regard was far from convincing. Her Honour did consider the pre-sentence report and noted the appellant’s consumption of alcohol. There was very limited evidence before her Honour that there had been a significant change in the appellant’s life and lifestyle, and I am far from satisfied that her Honour’s reasons exhibit any deficiency in this regard.
It is asserted that her Honour failed to consider possible alternatives before determining that the only appropriate sentences were terms of imprisonment. The reasons for decision clearly show that her Honour was aware of her obligations and, having considered those obligations, determined that the only appropriate sentences were imprisonment. This ground has not been made out.
It is asserted that her Honour attached undue weight to the appellant’s interest in obtaining further work in Western Australia. Her Honour did refer to that matter. It is clear that that matter was not determinative of her decision. There is no indication that her Honour attached undue weight to that matter.
The remaining grounds are, to my mind, related. It seems to me that any contention that a sentence of fulltime imprisonment was inappropriate, cannot be sustained having regard to the objective seriousness of the offences, the appellant’s criminal history, and the subjective matters put before the court.
However, when it comes to the manner in which that sentence of imprisonment was ordered to be served, there are a number of matters which have caused me to form the view that the sentences ordered by the Magistrates Court were manifestly excessive or, on one view, manifestly inadequate.
Section 6 of the Crimes (Sentencing) Act 2005 (ACT) sets out the objectives of the Act. They include:
(a) To promote respect for the law and the maintenance of a just and safe society, and
...
(c) To maximise the opportunity for imposing sentences that are constructively adapted to individual offenders.
The purposes of sentencing are set out in s 7(1). The court may impose a sentence for one or more of the stated purposes, that is, punishment, specific and general deterrence, protection of the community, promotion of rehabilitation, accountability, denunciation and recognition of harm to individual victims and the community, generally.
The short length of sentences imposed by her Honour and the associated lack of capacity for those sentences to protect the community for any extended period or to promote the rehabilitation of the offender by enabling him to participate in programs leads me to the conclusion that the sentencing purposes that the Magistrates Court had in mind were punishment, and specific and general deterrence. Indeed, the learned Magistrate referred to those matters in her reasons. Those purposes guided the sentencing exercise. However, the purposes of rehabilitation and protection of the community could not be properly addressed by such sentences.
The short length of sentence, the absence of any prior sentence of fulltime imprisonment, the lack of any recent mandated alcohol treatment, mean that the sentences of fulltime imprisonment are manifestly excessive or, on one view, manifestly inadequate. They do not protect the community for a sufficient period of time and they do not protect the community by facilitating the rehabilitation of the appellant. These outcomes could be achieved by confirming the sentences but, insofar as they have not yet been served, suspending them for a significant period of time, during which the appellant would be required to undertake supervised rehabilitation.
In relation to the sentences imposed for the assault on Mr Paul Clare, I confirm the sentence of three months’ imprisonment, and I backdate that sentence to 3 November 2013.
In relation to the assault on Ms Johnson, I confirm the sentence of two months’ imprisonment and backdate it to 3 November 2013.
In relation to the offence of resist a Commonwealth public official, I allow the appeal and substitute a sentence of one month’s imprisonment from 3 November 2013 to expire on 2 December 2013.
In relation to the two sentences for assault, pursuant to s 12 of the Crimes (Sentencing) Act 2005, I make a suspended sentence order suspending the whole of the sentence that has not yet been served, and I make a good behaviour order for a period of 12 months from today. The good behaviour order will be subject to the additional condition that the appellant accept the supervision of ACT Corrective Services including undertaking any counselling or programs in relation to alcohol abuse that the Services direct him to undertake.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Chief Justice Murrell.
Associate:
Date: 23 December 2013
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