Fallon v Baker
[2018] ACTSC 319
•9 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Fallon v Baker |
Citation: | [2018] ACTSC 319 |
Hearing Date: | 9 November 2018 |
DecisionDate: | 9 November 2018 |
Before: | Mossop J |
Decision: | Appeal dismissed and sentence imposed by the magistrate on 22 May 2018 confirmed. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against conviction – conviction for common assault – domestic violence context – good behaviour order imposed – whether sentence imposed manifestly excessive – whether magistrate failed to take into account or give proper weight to the subjective circumstances of the appellant – application to adduce further evidence relating to events post-conviction – appeal grounds not made out – application to adduce further evidence refused – appeal dismissed – conviction confirmed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 17 Magistrates Court Act 1930 (ACT), s 214(3) |
Cases Cited: | R v Bell [2005] ACTSC 123 R v Eliasen (1991) 53 A Crim R 391 TAP v Tasmania [2014] TASCCA 5 |
Parties: | Niall Gerald Fallon (Appellant) Lee Baker (Respondent) |
Representation: | Counsel J Sabharwal (Appellant) S McFarland (Respondent) |
| Solicitors Rachel Bird & Co (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 31 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Cush Date of Decision: 22 May 2018 Case Title: Baker v Fallon Court File Number: CC 13788/2017 |
MOSSOP J:
Introduction
The appellant has appealed from a sentence imposed by a magistrate on a charge of common assault. The appellant was convicted and made subject to a good behaviour order for a period of 12 months. The grounds of appeal are:
a. that the sentence imposed is manifestly excessive; and
b. that the magistrate failed to take into account or give proper weight to the subjective circumstances of the appellant.
The appellant also seeks to have further evidence admitted and have the sentencing proceedings reopened.
The offending conduct
The circumstances of the offending conduct were outlined in a Statement of Facts which was tendered before the magistrate by consent. The appellant had been drinking alcohol since midday on Saturday, 16 December 2017. At about 8pm that day, at a time when he was significantly intoxicated, he punched his wife on at least four occasions in the back while she was pretending to be asleep in their bed. She was in bed trying to avoid him while he was drunk. A short time later the appellant threatened to strangle their youngest child because he was crying. That prompted his wife to call the police.
Evidence on sentencing
In addition to the Statement of Facts, the other evidence put before the magistrate included a Court Alcohol and Drug Assessment Service (CADAS) report. That indicated that the appellant was then 42 years old and moved to Australia from Ireland 15 years ago. It indicated that he admitted that he was very drunk and had “shoved” his wife in order to wake up. He referred to ongoing strains in his marriage and pressure at work. The report recorded some medical conditions that he suffered from and his history of heavy drinking. It also recorded steps that he had taken after the offending conduct to get help from Directions and Relationships Australia. It indicated that he was committed to abstaining from alcohol in the medium term but would wish to drink again in the future if he was able to do so normally. The author of the report indicated that the treatment that the appellant had undertaken was appropriate given his circumstances and recommended that he continue with the interventions.
There was evidence from Directions, an organisation providing alcohol and other drug services, that he had been prescribed medication to assist with his alcohol dependence and that had attended a number of “SMART recovery sessions”.
There was also a letter from the appellant to the Court which indicated his remorse for his conduct. It indicated that a criminal conviction would “severely impact” on his current and future employment prospects. It referred to the internal disciplinary proceedings taken by the Australian Federal Police (AFP) and the fact that he was “likely [to] lose my job”. It recorded that he was the sole income earner of the household and that his wife was a stay-at-home mother. He also recorded that the work that he did was “highly dependent on [his] ability [to] retain a government security clearance and a conviction may prevent this from happening”.
Two references were also tendered, one from a friend who had known the appellant since university and one who had known him as a colleague at the AFP for more than 10 years. Both of these references attest to his good character. The first also refers to his deep remorse for his actions and that the appellant would strive to ensure that he did not offend in the future.
The magistrates decision
The magistrate gave his reasons at the conclusion of sentencing submissions. Having recorded the basic facts, his Honour also referred to additional facts that were recorded in the Statement of Facts as follows:
The wife declined to participate in the Family Violence Evidence-in-Chief interview. She didn’t initially want the defendant to know, as the prosecutor said, that it was she that contacted the police. Well, it is clear that he does know that and that’s referred to in the CADAS report. She had a fear of losing the children because he’d been apparently threatening at times in respect of that and she was concerned generally about conduct which had occurred within the relationship. I will just point out I am not here to punish him for those sorts of matters. I am to deal with the assault which occurred. It involved striking a female. It involved striking a female in circumstances where there were young children in the home.
His Honour then went on to refer to the decision in R v Bell [2005] ACTSC 123 at [30]‑[31]. The magistrate adopted those remarks saying:
Family violence in the home is pernicious within the community. There is far too much family violence. There are far too many matters coming before the courts because men don’t control themselves properly. In this case, it seems to be largely because of the defendant’s dependence on alcohol at that particular time, and he may still have a dependence on alcohol.
The magistrate then referred to the CADAS report and the personal circumstances of the appellant as disclosed in that report and the evidence concerning his alcohol consumption and attempts to get treatment to reduce his alcohol dependence.
The magistrate referred to his guilty plea and the references that had been provided. He accepted that the conduct was regarded by others as out of character and that the appellant was apologetic. He made specific reference to the fact that the appellant would face a disciplinary proceeding within the AFP. He referred to the submissions of the prosecutor about the sentencing principles that were to be applied.
He then turned to the question of whether or not the matter should be dealt with under s 17 of the Crimes (Sentencing) Act 2005 (ACT). Referring to the matters which, under s 17 must be considered, his Honour said:
He comes before the court is a person of good character. He has no previous antecedents, but the offence is one that is reasonably serious and it’s been unsettling within that household. I’ve been asked to deal with the matter pursuant to section 17, and in doing that I need to take into account matters such as the defendant’s character, his antecedents, his age, his health, mental condition, the seriousness of the offence - and I accept that any assault on a woman in her home when she is trying to avoid contact with the offender is a serious offence, particularly with a punch to the back on what seems to be four occasions - and whether there were any extenuating circumstances in which the offence was committed.
There appear not to be any extenuating circumstances except alcohol was the catalyst for bad behaviour, and also the court may consider anything else that the court considers relevant. It’s been put to me that he may not be able to continue in his career in the AFP if a conviction is recorded. It’s also been said that if a conviction is recorded it may affect his ability to have a security clearance. I take those matters into account.
He seems to be a person who, despite his drinking probably to excess over a large number of years, while in the course of his employment has performed adequately. There is no information before me to indicate that he hasn’t. He has been suspended since the date of this particular offence, and he was suspended with pay and that suspension no doubt has had a consequence for him. He also seems to have a reality check as a result of this offence occurring.
Having said all that and weighing up all the matters that are presented before me, it doesn’t seem appropriate to deal with the matter by way of a non-conviction. It does seem to me to be appropriate to deal with by way of a bond and nothing more than that in the circumstances, to recognise the disapproval that the court has of people who engage in conduct which is assault on a female in a family violence context.
His Honour then addressed himself directly to the appellant and pronounced his sentence. He then continued:
I don’t expect that there will be offending within that time, and I think this has served as a real wake up call for you. I would hope that you wouldn’t lose your employment because I think while you’ve acted inappropriately back in December 2017, you’ve taken on board what needed to be done. You’ve taken steps to address that. So it seems to me that there’s a realisation that what you’ve done is wrong and you’ve suffered consequences already as a consequence of that.
Further evidence
The appellant has sought to have admitted further evidence for the purposes of his appeal. The evidence is contained in an affidavit of the appellant’s solicitor. The respondent does not consent to that tender of the evidence on appeal.
The evidence is sought to be admitted pursuant to s 214(3) of the Magistrates Court Act 1930 (ACT). That permits the admission of further evidence if the Court “considers it necessary or expedient to do so in the interests of justice”. It is open to have such evidence admitted in relation to events occurring after sentence for the purpose of showing the true significance of the facts which were in existence at the time of sentence: R v Smith (1987) 44 SASR 587; 11 ACLR 463 at 588. In this case that relates to the consequences of a conviction for the appellant’s employment and job prospects.
That evidence is to the effect that following the imposition of a sentence by the magistrate the appellant’s employer, the AFP indicated that it was considering terminating his employment and asked him to show cause as to why his employment should not be terminated. Following receipt of the show cause notice, on 27 July 2018, the appellant resigned from his employment. There is also evidence that when searching for new employment he was offered an interview with a particular employer but upon disclosure of his conviction that employer, on 7 August 2018, declined to proceed further in relation to his application.
The appellant submitted that this evidence demonstrates the very significant impact upon him of his offending conduct. He submitted that the making of a non‑conviction order rather than the recording of a conviction will make it easier for him to obtain employment following his termination from the AFP.
If further evidence is admitted then for the purposes of the appeal the question no longer is one as to whether the sentencing judge has erred in the exercise of his sentencing discretion but rather the “question then which is for this Court to determine is whether on the material then before it a different and, if so, what sentence should be substituted for that passed by the sentencing judge”: R v Eliasen (1991) 53 A Crim R 391 at 396.
Decision and reasons
In addition to the commonly cited decision in R v Bell there are many other authorities emphasising the significance of domestic violence offending. The approach of courts to offences involving domestic violence take account of criminological research concerning that issue. In R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at [77], Johnson J (with whom Latham J and Hunt AJA agreed), referring to a criminological report, said:
An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control.
The admitted facts incorporate elements which fit within this framework. The complainant made it clear that the offence was not the first time such events had occurred, that had been had been happening for years. Consistent with fear of the consequences of making a complaint, she declined an opportunity to participate in a family violence evidence-in-chief interview and said that she would not be prepared to provide a statement. She expressed concern that the appellant might learn that it was she who called the police. She feared ending up separated from her children and said that she did not want to end up broke and homeless. She referred to the appellant’s control of her emails and threats that he could take the children away from her.
All of these pieces of evidence indicate that the offending conduct in the present case occurred in a context typical of domestic violence cases in which the actual violence only forms part of the controlling relationship between perpetrator and victim and where economic insecurity and shared children are used as a means of control. While the magistrate correctly indicated that the appellant was not to be punished for previous misconduct disclosed in the Statement of Facts, in characterising the offending conduct in the present case it was necessary to take into account the context in which it occurred. That is because that history of conduct within the relationship indicates that the offending conduct had a more objectively serious character than it would have had if that history was not present.
The first ground of appeal which was addressed was the ground that alleged that the magistrate had “failed to take into account or give proper weight to the subjective circumstances of the Appellant”. It is clear that the magistrate took into account the possible consequences of a conviction for the appellant’s employment with the AFP and other employment. He took into account that the appellant was the sole breadwinner in the family. The submissions of the appellant did not demonstrate that the magistrate failed to take into account any particular aspect of his subjective circumstances. Therefore, the contention that the magistrate “failed to take into account” any such matter cannot succeed.
That leaves the question of whether or not he failed to “give proper weight to” the subjective circumstances of the appellant. The difficulty with such a ground of appeal is that it concedes that some weight has been placed upon the factor by the sentencing judge: Majid v R [2010] NSWCCA 121 at [40]. The only way that a court can evaluate a complaint about the sufficiency of weight given to a particular consideration is as a particular of a ground of appeal based upon manifest excess: TAP v Tasmania [2014] TASCCA 5 at [30].
That means that the appellant must rely upon the ground of appeal that alleges that the sentence imposed was manifestly excessive. The appellant relied upon the same submissions made in relation to the ground of appeal based on weight in relation to the ground of appeal alleging manifest excess.
In my view, it is clear that the sentence imposed was not manifestly excessive. While the appellant was otherwise demonstrated to be of good character and without a criminal history, it could not be said that any outcome involving a conviction was manifestly excessive. I have referred above to the seriousness of the offence given its domestic violence context. The magistrate was correct to identify that there were no relevant extenuating circumstances. It is clear that his Honour took into account the risks that a conviction would involve so far as the appellant’s career was concerned. In my view, the sentence imposed by the magistrate involved a significant degree of leniency having regard to the domestic violence context in which the offending conduct occurred.
That leaves the application to admit further evidence. Whether or not it is in the interests of justice to admit the further evidence is to a large extent dependent upon the significance of that evidence for the purposes of consideration of the appropriate sentence.
In passing sentence, the magistrate noted and took into account the effect of a conviction on both the appellant’s current employment and possible future employment. Having taken these matters into account his Honour did not consider that it was appropriate to deal with the matter by way of a non-conviction order.
The effect of the further evidence is limited. It does demonstrate that the approach taken by the AFP to his conduct involving as it did both domestic violence and a breach of bail conditions was sufficient to cause him to resign his employment. It does demonstrate that at least one employer has declined to further consider some form of application for employment by reason of the appellant’s conviction for common assault. There is no further evidence about the consequences of the recording of a conviction for the appellant’s security clearance and, in particular, whether he is able to maintain a security clearance at a level sufficient to permit him to gain and maintain employment in the field in which he has previously been employed.
It is correct, as the appellant points out, that the magistrate expressed a hope that he would not lose his employment because he had “taken on board what needed to be done”. That remark in his Honour’s reasons may indicate that he assessed the likelihood of a loss of employment as lower than in fact was the case.
The evidence of the AFP’s attitude and the appellant’s decision to resign does indicate that he has suffered consequences of his conduct beyond those which have been imposed by the Court. Similarly, there is at least some evidence that an employer has been deterred by his admission of a conviction. These are matters which had not occurred at the time of sentencing and indicate the manifestation of risks which were clearly taken into account by his Honour.
I do not consider it to be in the interests of justice to admit the further evidence. It is of limited scope and addresses a matter argued before and considered by his Honour. Having regard to the nature of the offending conduct, even if the further evidence was admitted and the sentencing of the appellant reconsidered in the light of that further evidence, it would not be appropriate to deal with the matter by way of a non‑conviction order and the sentence imposed by the magistrate would not be varied.
Orders
The order of the Court is:
1. The appeal is dismissed and the sentence imposed by the magistrate on 22 May 2018 is confirmed.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 20 December 2018 |
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