Higgins v McCulloch
[2013] TASSC 49
•11 September 2013
[2013] TASSC 49
COURT: SUPREME COURT OF TASMANIA
CITATION: Higgins v McCulloch [2013] TASSC 49
PARTIES: HIGGINS, Harold Lesley
v
McCULLOCH, Constable Julie
FILE NO: 613/2012
DELIVERED ON: 11 September 2013
DELIVERED AT: Hobart
HEARING DATE: 4 June 2013
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – Review of conviction and penalty.
Sentencing Act 1997 (Tas), ss7, 9.
Kelly v O'Sullivan (1995) 4 Tas R 446; Phillips v Arnold [2009] TASSC 43; ATV v Buxton [2012] TASSC 83; Phillips v Arnold [2009] TASSC 43; Bruce v R (1987) 74 ALR 219; Attorney-General v Smith [2002] TASSC 10, referred to.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: T Bugg
Respondent: S Nicholson
Solicitors:
Applicant: M+K dobson mitchell allport
Respondent: Director of Public Prosecutions
Judgment Number: [2013] TASSC 49
Number of paragraphs: 47
Serial No 49/2013
File No 613/2012
HAROLD WESLEY HIGGINS v CONSTABLE JULIE McCULLOUGH
REASONS FOR JUDGMENT TENNENT J
11 September 2013
The applicant was charged with two counts of unlawfully assaulting his wife between 1 May 2010 and 25 June 2010. On 2 May 2012, he was found guilty of one of those assaults, namely that he punched his wife to the face. On 25 June 2012, he was convicted and sentenced under the Sentencing Act 1997 ("the Act"), s7(f).
On 13 July 2012, a notice to review the finding of guilt by the magistrate was filed. The sole ground of review was that the learned magistrate erred in law in convicting the applicant. When an outline of contentions was filed by counsel for the applicant, the matters of complaint were far more detailed, and counsel was given leave to amend his notice to review to accord with his written contentions. Those contentions also addressed issues relating to penalty, in the event that the review of the conviction was unsuccessful. At the hearing of the review, counsel for the applicant pursued only three of the seven contentions relating to conviction.
This was an unusual matter. The original hearing of the charges commenced before Magistrate Rheinberger on 3 February 2011. The complainant, Elizabeth Higgins, gave evidence on that hearing, and that evidence was recorded. The hearing was subsequently aborted because the learned magistrate identified a conflict. By the time the matter ultimately came on for hearing before Magistrate Mollard in April 2012, Mrs Higgins had died. Her evidence on the hearing was, as a result of an evidentiary ruling, given in the form of an audio recording of her evidence-in-chief and cross-examination before Magistrate Rheinberger. The only other evidence on the hearing was that of a police officer who had taken statements from Mrs Higgins about the alleged assaults in July 2010, and had thereafter interviewed the applicant, and a video recording of that interview. The applicant neither gave nor adduced evidence.
Magistrate Mollard reserved his decision for about three weeks following the hearing. He found the applicant guilty of one assault, and not guilty of the other. His reasons were as follows:
"This is a most unusual case in terms of the limited presentation of viva voce evidence. The alleged victim is dead and her evidence was put before the Court in the form of a digital recording played in the courtroom of her evidence in the same prosecution before another Court. She had been cross-examined. The second piece of evidence was the defendant's interview. This interview was recorded in the usual way and so was not on oath and there was no cross-examination of him because he did not give evidence. The only other evidence was led from Constable Holloway from the Victims Safety Response Team. It appears to me that she was called and called only to identify the interview of the defendant. I do not find support from her in the nature of evidence of recent complaint.
I heard detailed submissions from both Ms Avery for prosecution and Mr Bugg for the defence. As I commented at the trial, the transcript of the evidence of the alleged victim was far from being a true and accurate transcript of the evidence. Words which had been spoken were omitted, ums and other indicia of hesitation were ignored and all in all it is a document to be treated with caution.
As far as one can tell from a merely audio recording the demeanour of the witness was convincing. Apart from several passages early in her evidence where hesitation at first made me suspect that she may have been in doubt the presentation in terms of the content, the delivery, the confidence of the voice were beyond convincing, it was gripping as it were. In those descriptions of events, concepts, actions, utterances and states of surroundings it was such as to take one into a narrative which was of a situation simply beyond one's everyday experience - I put it that way with a strong sense of understatement – where, to use a film critic's description, one would normally be required to suspend credulity and yet they were completely convincing.
The witness appeared to have excellent recall, so good in fact that it was and is hard to believe that in her own words, 'I was literally in a haze all of that time'. I found that the cross-examination of the witness was most significant. Those matters which Mrs Higgins had described which appeared extraordinary if true were not challenged, there was no challenge about the Wet-ones, the rotting rubbish and groceries, the sleeping arrangements, the confinement, the washing arrangements, the ritualised behaviour, the radioactivity question, the smashing of her teeth, the treatment and the cost of repairing them, the loss of weight and diarrhoea over six months, the incontinence clinic, the rescue and Rebecca's presence. Beyond that, and this is an oversimplification, the question intended to be a direct confrontation as in, 'He didn't punch you in the face, did he?' 'Yes, Mr Higgins did punch me in the face.' I think that I might well have chosen to quote one of Mrs Higgins' least convincing responses.
The interview of the defendant was conducted on the 13th September 2010 and the alleged assaults had occurred on the 25th June and the 17th May. The defendant's demeanour was convincing. It was concise, incisive, confident, unhesitating and clearly assisted by apparent good memory about many details. He denied punching his wife. He attributed a problem which he conceded Mrs Higgins had with her nose, he had allegedly broken her nose as well as broken her teeth with that punch, to a nose infection or ulcer in her mouth. He said that he saw that her face and nose were swollen and red. He was not ever asked about broken teeth. He appeared to concede that Mrs Higgins and Rebecca slept in the same bed and certainly in the same bedroom. He exhibited no surprise at all at the mention of the radiation, an issue which one would expect to give rise to questions, ridicule or comment on his part if untrue. He accepts on page 13 that Rebecca was present on the bed at the event where the alleged punch took place. He did not question, on page 15, mention of, 'doing his cleaning routine', although he clearly disputes the cause. Mrs Higgins' claims were never ridiculed by the defendant nor by counsel.
So I appear to be in a situation where despite the paucity of evidence substantial portions of the evidence of Mrs Higgins are just not disputed. These matters, most of which I have noted already, are rather important. They, first, give the prosecution evidence a greater appearance of credibility. Denial or explanation would be expected if they or any of them were claimed to be untrue. And, second, they paint a picture of a domestic situation which, if not singular, must be rare and which has elements which, if true, mean that the defendant is highly likely to have been suffering from a mental disorder of some sort. The label obsessive compulsive, whilst I have no idea if it applies, is a convenient one for me to use to illustrate what I mean. One might be entitled to go further. Although I have already made my comments about the evidence available but not led I observe that the matter of the broken teeth appears to require discussion.
I make no adverse comment nor draw any adverse inference from the defendant's decision not to give evidence, however he can be taken to have made his decision in the knowledge that there is completely uncontradicted and unchallenged evidence that Mrs Higgins' teeth were broken and described in detail concerning the cause and the result, that the same applies to the treatment. These are details of which he cannot have been unaware. He must have known about the teeth at the time and certainly should be taken to have known when he made his decision not to deny it. His own explanation for her injury is quite unconvincing as it does not address the broken teeth at all.
As in the case of Bruce it is the unexplained and undenied fact, not the drawing of an inference from the failure to deny. The opportunity to explain or deny extends from and through the investigation right up to the end of the trial, see Bruce v R [1987] 74 ALR 219.
The assault allegations are denied by the defendant. They were unequivocal denials and not adversely affected by the promptness of them. The explanation for the surprising concession that Mrs Higgins and Rebecca slept in the same bed, see page 12 of the transcript, is not likely and the more the defendant added to that explanation the less convincing it became.
This is a case where it is appropriate to give less weight to the unsworn untested material in the interview than to the sworn evidence of Mrs Higgins. It is particularly appropriate because of the comparative lack of challenge by experienced counsel both generally and to elements which are out of the ordinary.
There are two charges. In the case of the punch to the face I find the allegation proved. In the case of a punch to the arm I find myself not satisfied beyond reasonable doubt. There was no bruise alleged. That is surprising and weakens the prosecution case. That charge, more significantly, lacks some of the supporting elements that I have identified in the case of the other. That count is dismissed."
Applicant's contentions as to the finding of guilt
The contentions relied on by counsel for the applicant were those in pars[3], [4] and [7] of his outline, which I set out below:
"The learned Magistrate erred in finding the first charge proved in that:
3he gave excessive weight to the evidence of the complainant that she had sustained broken teeth because of the assault alleged against the appellant in the first charge and he erred in finding that:
· details of the complainant's alleged broken teeth were details of which the appellant could not have been unaware.
· the appellant must have known about the complainant's teeth at the time and certainly should be taken to have known that when he made his decision not to deny the damage to the teeth.
· the appellant's explanation for the complainant's alleged injury was quite unconvincing because it did not address the broken teeth at all (lines 13 to 18 inclusive, on 53 of the transcript at 57 of the JP)
even though he had previously found that the appellant had never been asked about the complainant's alleged broken teeth (lines 27 and 28, page 52 of the transcript at page 56 of the JP) and there was no evidence to support the Learned Magistrate's findings in that regard.
4he erred by giving excessive weight to the nature of the cross examination of the complainant in relation to the alleged damage to her teeth and related matters (lines 4 to 17 inclusive, page 52 of the transcript, page 56 of the JP);
…
7his finding in relation to the first charge is inconsistent with his finding in relation to the second charge in the summons (lines 39 to 44 inclusive, page 53 of the transcript at page 57 of the JP)."
Notwithstanding reliance on the specified paragraphs, counsel for the applicant began his oral submissions with a submission to the effect that the finding of guilt in relation to the assault was not reasonably open on the evidence, a submission which appears nowhere in his outline of contentions. Since counsel for the respondent did not object to this approach, I have proceeded on the basis that that was the primary submission about conviction, and that pars 3, 4 and 7 of the outline were in effect errors said to have occurred which must give rise to a finding that the learned magistrate's decision was not open on the evidence.
A notice to review – the law
Counsel for the applicant referred primarily to three cases, Kelly v O'Sullivan (1995) 4 Tas R 446 and [1995] TASSC 72; Phillips v Arnold [2009] TASSC 43 and ATV v Buxton [2012] TASSC 83. In Kelly's case, the court had to consider whether a particular ground of review was available by reference to the Justices Act 1959, s107(4). The ground was that a decision was "unsafe and unsatisfactory". Both Green CJ and Crawford J (as he then was) concluded that it was available, Crawford J saying at par[19]:
"19. It seems to me to follow irresistibly that if a finding of guilt by justices or a magistrate is unsafe or unsatisfactory in the sense that it is unreasonable or cannot be supported having regard to the evidence to the extent that, although there might have been evidence upon which the finding of guilt could have been based, it would be dangerous in all the circumstances to allow the finding to stand, then an error or mistake on the part of the justices or magistrate on a matter or question of fact has occurred."
Both counsel referred to what was said by Crawford CJ in Phillips v Arnold [2009] TASSC 43 at par[46] as to the nature of a notice to review. He said:
"46 Those principles include the following. 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] HCA 9; (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] VicRp 48; [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.
His Honour went on to say at par[47]:
"47 In most cases an applicant for an evidence based review will find it a difficult test to satisfy. At the end of my judgment in Wood v Smith unreported 37/1991 ([1991] TASSC 12) I commented that 'when a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it'. That comment was based on experience and reflection but, of course, was not a statement of principle."
In ATV's case, I referred to Kelly's case and quoted parts of the judgments of both Green CJ and Crawford J.
Contentions as to conviction
Contention 3
Mrs Higgins gave evidence of being punched to the face in the area of the mouth and nose. She said the pain was severe. She felt something hard in her mouth which felt like pieces of tooth. She spat them out into her hand. She felt in her mouth with her tongue and found her two front teeth had jagged edges like a serrated knife. While, in cross-examination, it was put to her that the applicant did not punch her to the face, it was not suggested to her that, on the day of the alleged assault, she did not end up with broken teeth. She was also not challenged about her evidence that she later had repair work done in respect of those teeth at some expense.
The applicant was interviewed by police about the alleged assaults on 13 September 2010. He was asked if he recalled an incident in the bedroom at home where his wife had said she did not think there was any radiation in the room, and he had responded by punching her to the face. Before anything else was said by police, the following exchange occurred:
"ANo because I never did punch her to the face. I do remember however, around about that time she had some type of nose infection, or possibly an ulcer in her mouth and I'd been encouraging her to go to the doctor to have it treated. On the other hand, she did not want to go to the doctor and ah if that was the incident you're referring to I categorically deny punching her. The pain was due to her nose infection or ulcer, and or her ulcer in her mouth. That was the origin of the pain. I still encouraged her to go to the doctor to have it sorted out and treated.
Q What made you think she had an infection or an ulcer?
A She told me.
Q Okay. Did you see any infection or ---
A I could see it was red and swollen.
Q --- What was red?
A Her face and around her nose was swollen and red.
Q Okay and how did you encourage her to go to the doctor?
AJust by encouraging her to go to the doctor. I said if you've got a problem go and, go to the doctor and get it sorted out rather than having to put up with the pain.
Q Like so you just spoke to her and told her ---
A Yes.
Q --- you thought she should go.
A That's right.
Q Did you make any effort to make an appointment for her?
A Ah no I did not. I left that up to her.
Q So you didn't offer to drive her there or ---
AWell she she's got ah access to a car if it was, if it was that bad that she found that she could not drive, of course I'd drive her to the doctor.
QOkay, but you didn't offer to?
AAh not at that stage.
QMmm.
ABecause I'd prefer that she gets the ah the problem sorted out before it gets any worse."
While there were subsequent questions about damage to Mrs Higgins' nose, it was not put to the applicant that his wife's teeth had been broken.
The learned magistrate dealt specifically with the matter of broken teeth at page 57 of the judge's papers, lines 8 – 18. He concluded that the applicant must have known of the detailed evidence by Mrs Higgins, about the breaking of her teeth and the treatment she later obtained, at the close of the prosecution case and then made a decision to say nothing about it, in particular to deny the evidence given. Those findings were, in my view, plainly open to the learned magistrate.
It is the last sentence in that paragraph (lines 16 – 18) where counsel for the applicant asserts the learned magistrate fell into error. The learned magistrate found the applicant's explanation for his wife's injury quite unconvincing "as it does not address the broken teeth at all". As a matter of fact, the applicant's explanation in his police interview for his wife's injury did not address the issue of broken teeth. It must be accepted however that that was against a background that, in that interview, after the applicant provided his explanation for why his wife's face was red and swollen, he was not specifically asked to comment about any assertion his wife's teeth had been broken. There was also no evidence before the learned magistrate that the applicant was necessarily aware that his wife's teeth were broken that day, or aware of dental repair work obtained later, before his wife's evidence before Magistrate Rheinberger.
Against that background, counsel for the applicant submitted that Magistrate Mollard's reliance on the case of Bruce v R (1987) 74 ALR 219 was misconceived in that he had taken the principle relied on out of context. His Honour said at page 57 of the judge's papers, lines 20 – 24:
"As in the case of Bruce it is the unexplained and undenied fact, not the drawing of an inference from the failure to deny. The opportunity to explain or deny extends from and through the investigation right up to the end of the trial, see Bruce v R [1987] 74 ALR 219."
Bruce's case involved a case of possession of stolen property. At 219, the court said:
"It is the possession of recently stolen property in the absence of explanation or explanatory circumstances, which enables the inference to be drawn. Thus the absence of any reasonable explanation must not of itself be explicable in a manner consistent with innocence."
Counsel for the applicant submitted that the Court should instead look at relevant passages in Kelly's case at par[23], where Green CJ said:
"23. Counsel for the appellant did not submit that the proposition from the magistrate's reasons for judgment referred to above was erroneous but submitted that this was not a case involving the drawing of inferences and was therefore not a case in which the propositions referred to in Weissensteiner v R[1993] HCA 65; (1993) 117 ALR 545 had any relevance. But those propositions included the following passage from May v O'Sullivan[1955] HCA 38; (1955) 92 CLR 654 at 658 which was cited with approval at 552:
'After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact. In deciding this question it may in some cases be legitimate ... for it to take into account the fact that the defendant has not given evidence as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear:'
and the following passage at 552:
'... it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.'"
If his Honour's view as to the unconvincing nature of the applicant's explanation was entirely based upon that lack of mention of the broken teeth by him in his interview, then it is arguable that the conclusion was without foundation on that basis. However, this Court should not be quick to overturn a magistrate's decision simply on the basis of that one finding. This is particularly so having regard to the way in which the applicant dealt with the issue of his wife's red and swollen face in his interview. That is, without preamble, and as if anticipating being told she had damage to her face and mouth, he launched into an explanation of why it was her face may have been red and swollen.
The applicant's contention appears to be twofold. That is that the learned magistrate gave excessive weight to the issue of broken teeth, and that he made specific wrong findings. As to the specific errors of fact, I have already indicated that the first two asserted errors were not in my view errors at all. As to the third, that could only be said to be an error capable of vitiating his Honour's ultimate decision if there was no evidence upon which the learned magistrate could draw the conclusion the applicants explanation was unconvincing. I have already suggested that there was.
As to the assertion that the learned magistrate gave excessive weight to the issue of broken teeth, such an assertion is always a difficult one to establish unless it is plainly obvious greater weight than was appropriate was given to a particular factor over another or others. I am not satisfied that has been established here. In his decision, the learned magistrate dealt with a number of factors. He commented upon the convincing demeanour of the complainant, noting the restrictions on the capacity to make such an assessment from an audio recording alone. He was clearly impressed by the manner in which the complainant gave her evidence-in-chief and under cross-examination. He was careful not to place reliance on the transcript of that evidence given noted shortcomings. His Honour noted several areas of her evidence which were not challenged which he would have expected to be were they untrue.
His Honour noted issues of weight to be given to evidence. On what was the third page of his transcribed reasons he dealt with the issue of broken teeth, clearly because he felt he should, given submissions made, and largely made unimpeachable findings of fact.
Contention 4
Again this is an assertion that excessive weight has been given to a particular factor, in this case the nature of the cross-examination of the complainant about her broken teeth. This assertion arises because of his Honour's comments which appear at page 56 of the judge's papers at lines 4 - 17. Counsel for the applicant submitted that critical allegations relating to the assault were challenged in cross-examination and that his Honour placed too much emphasis on the fact that cross-examination did not deal with a number of matters relating to the state of the house the parties were living in and the applicant's somewhat unusual behaviour. The learned magistrate described some matters not challenged, and said he found them to be extraordinary if true.
It is clear that his Honour did regard this absence of cross-examination as significant. With respect, that view was, in my view, open. The behaviour described by the complainant was somewhat bizarre and could have explained why the applicant might have reacted in the manner the complainant said that he did. For that reason, the learned magistrate was entitled to place weight on this aspect of the case. It has not been demonstrated that that weight was excessive in some way.
Contention 7
Counsel for the applicant asserted that the findings of the learned magistrate in relation to the two assaults were inconsistent. I infer he was suggesting that it must follow that the finding on count 1 was not reasonably open on the evidence. Counsel submitted that if his Honour accepted the complainant's evidence on count 1, he should have accepted it in relation to count 2. That is a very simplistic view.
For the learned magistrate to convict the applicant of either count, he had to be satisfied beyond reasonable doubt as to guilt in respect of the particular count. Each assault was different and occurred at different places and in different circumstances. As to the first count, the learned magistrate clearly had regard to the fact that there were obvious injuries, the somewhat bizarre (my term) arrangements which existed in the parties' home at the time of the assault, and the circumstances in which the actual assault occurred. For example the applicant's strange behaviour gave rise, according to the complainant, to that assault and the nature of that strange behaviour was not challenged.
None of these factors were relevant or arose in respect of the second assault. I am not satisfied in those circumstances the conclusions reached by the learned magistrate were necessarily inconsistent.
Verdict not reasonably open
Of the matters raised by counsel for the applicant, the only complaint which may have any validity is that relating to the finding about the nature of the applicant's explanation. In the face of that, for this review of the applicant's finding of guilt to succeed, he must satisfy the Court that the finding of guilt made by the learned magistrate was not reasonably open on all the evidence before him. With respect, he has not done that. There was clearly credible evidence before the learned magistrate upon which his conclusion as to guilt could be based. This review, insofar as it relates to the finding of guilt, should fail.
Review of penalty
The bases of the review in relation to penalty were contained in counsel's outline of contentions and were in the following terms:
"B Penalty:
the learned Magistrate erred in recording a conviction pursuant to section 7 (f) of the Sentencing Act 1997 because:
1he failed to give any or any adequate weight to the appellant's lack of prior convictions;
2he failed to give any or any adequate weight to the unlikelihood of the future commission by the appellant of an offence similar to that of which he had been found guilty or any other offence;
3he failed to give any or any adequate weight to the circumstances of the appellant's commission of the offence in the first charge;
4he erred in concluding that the nature of the assault alleged against the appellant was of such seriousness that '… typically a term of imprisonment would be imposed in some form or another.' (lines 27 to 29 inclusive, page 79 of the transcript at page 83 of the JP)'
5he erred in concluding that '… the community interest demands that there should be a conviction.' (lines 16 and 17, page 80 of the transcript at page 84 of the JP);
6he erred in giving either any weight at all or excessive weight to:
·'… the right of a prospective employer to know that the … [appellant] … has been convicted of assault.' (lines 18 to 20 inclusive, page 80 of the transcript at page 84 of the JP).
·'… the right of the representatives of any nation to know in the event that the …[appellant] … was applying for a visa that the … [appellant] … has been convicted of assault …' (lines 20 to 22 inclusive, page 80 of the transcript at page 84 of the JP).
·'… the right of any person associated with any organisation to which the … [appellant] … might apply for some unpaid position to know that the … [appellant] … has been convicted of assault'. (lines 23 to 25, page 80 of the transcript at page 84 of the JP).
7he failed to give any or any adequate weight to the conclusions in the report dated 4 June, 2012 from Dr Michael Jordan (Department of Health and Human Services – Forensic Mental Health Services) that:
·the offence of which the appellant had been found guilty '… took place on the background of contemporaneous active mental illness, which now has improved, and a complex domestic set-up. Mr Higgins possesses various protective factors, with respect to future violence, in that he does not have an anti-social personality, has no history of alcohol or substance abuse and no prior convictions of any nature, including violence.' (second last paragraph at page 159 of the JP).
·'there has been a significant improvement in … [the appellant's] … presentation from almost two (2) years ago when his sole admission [to hospital] occurred.' (third last paragraph at page 159 of the JP).
·'Mr Higgins mental health is much improved … there has been no deterioration or a return to the presentation described in July 2010.' (third last paragraph at page 159 of the JP)."
Generally, the matters raised by the written contentions were that the learned magistrate made identified errors, failed to give any or adequate weight to identified matters or gave weight or excessive weight to identified matters. Counsel then submitted orally that his Honour had failed to take into account the stigma associated with the recording of a conviction, had failed to give sufficient weight to the Act, s9(c), had placed undue emphasis on the right of others to know an offence had been committed, and had placed undue emphasis on the fact this was a family violence matter in circumstances where there was no evidence of prior assaults, and, to all intents and purposes, this was an isolated incident.
It has often been said that a magistrate has a very wide sentencing discretion. Against that background, to succeed on this review of penalty, the applicant must show a specific error in the exercise of the discretion of the learned magistrate. Manifest excess is not relied on. It is not enough that another judicial officer might have dealt with the offender differently. The sentencing comments of the learned magistrate appear at pages 83 – 85 of the judge's papers and are as follows:
"This is a – an astonishingly unusual case, the like of which I've never seen and the like of which I'm sure I'll never see again. And those that have been involved in its hearing, both before me and previously, will understand why I'm making that remark and I won't therefore bore my listeners with explaining why I'm making it.
The sentencing process is as difficult as was the rest of the case. If circumstances were just a bit different, for instance if the victim was still alive, I might very well be thinking very carefully indeed about whether or not a term of imprisonment should be imposed. And I'm talking about the options in not only s7A but also in 7B, which concerns the whole or part suspension of a sentence of imprisonment. I thought about that carefully as it is but the submission has been made by learned counsel for the defendant that the offence is unlikely to be repeated, and obviously I take him to mean in the broad sense an offence of assault in any or any similar circumstances. The submission, I'm sure is right, and it's right, at least in part, because unhappily the victim is dead and I'm sure that this assault was significantly, if not mainly, the product of the environment in which it occurred, and I should think that environment is unlikely to be reconstructed in any way at all.
So I pass by those options and I ask myself what I should do given what is left. But before I do, I want to emphasise that this was an assault of such seriousness that typically a term of imprisonment would be imposed in some form or another.
Now as to what is left? I'm absolutely certain, although I haven't had the defendant formally assessed, that he would not be a person regarded as being suitable to be made the subject of a Community Service Order. For one thing, in his own mind, he is innocent and that might produce its own problems in relation to the completion of such an order, and in any case the defendant's general circumstances, and I'm referring to his domestic circumstances and his care of his daughter, would make the completion of a Community Service Order problematic, even if he's right and everybody else is wrong in relation to his mental state.
A fine? Now many would argue that the defendant richly deserves to be punished as heavily as possible. But as I've said on some, although very limited previous occasions, one encounters, often it seems in the context of family violence, situations where to impose a fine is to trivialise the offending, and in any case, here, the defendant has limited financial circumstances – that's probably a clumsy way of describing it but it will do – and one of the reasons is that he has substantial expenses to meet, both now and in the foreseeable future, and the sort of fine, if I thought that a fine would do other than trivialise his offending, would be approaching, if not the maximum at least in the upper half of the range available to me. And going to the bottom of the list of the ways in which I could resolve these sorts of matters, this matter in particular, it is not the sort of case where subs(h) or, for reasons that I'll cover in a moment, subs(g) have any appeal.
Now counsel for the defendant has specifically submitted that ought not to convict him. I profoundly disagree. That was a perfectly appropriate submission to be made but, apart from the response that I made instantly to his having raised the topic, I would now explain that in all the circumstances of this case the community interest demands that there should be a conviction. I could give a moderately large number of reasons but I focus on the right of a prospective employer to know that the defendant has been convicted of assault. The right of the representatives of any nation to know, in the event that the defendant was applying for a visa that the defendant has been convicted of assault and, perhaps most importantly and most likely, the right of any person associated with any organisation to which the defendant might apply for some unpaid position to know that the defendant has been convicted of assault. And therefore to have the facility to inquire just what it was and what the circumstances were that led to the recording of that conviction. I do not commonly see cases that so very clearly demand that a conviction be recorded where otherwise the court is not looking to impose a particularly severe sentence as such.
When I ordered the Forensic Mental Health Services report, which I'm very grateful to Dr Jordan for having provided, I'm sure that it was a particularly difficult case for him too; I rather thought that I might have ended up making an order such as to facilitate the administration of the defendant's treatment, whether he was willing or otherwise. Having read the report carefully I think that that would be an act which would be akin to the acts attributed to King Canute, and I'll say no more about that. Anybody that doesn't know who King Canute was can Google it.
I have decided upon s7F, I think that an element of ongoing protection for those with whom the defendant will come into contact and those with whom he must come into contact is an essential part of the final resolution of this case. I have already explained why that should be with conviction. If the defendant declines to enter the undertaking then, of course, he can be brought back to my court sooner rather than later to be further dealt with. But my order is that the proceedings are adjourned for a period of two years conditional upon the defendant giving an undertaking that he will be of good behaviour for the duration. There is a Victims of Crime Levy payable of twenty dollars. The costs, I'm told, amount to eight hundred and fifteen, I'm prepared to hear submissions about whether or not I should impose that whole figure, but if I don't hear such submissions I will make the order that he pays eight hundred and fifteen dollars in court costs.
I'll pause there. You may want, Mr Bugg, the opportunity to consider why it is that that moderately large figure is the nominal figure."
What underpins this review of penalty is that the applicant is aggrieved by the fact that a conviction has been recorded against him even though no further penalty beyond what might loosely be described as a good behaviour bond was imposed, that is a s7(f) disposition.
Courts are given a range of sentencing options by the Act, s7. Some of those options, such as imprisonment, a suspended term of imprisonment, community service, a fine or a discharge of an offender, may only be utilised in conjunction with the recording of a conviction (see pars(a), (b), (c), (e) and (g)). Other options may be utilised with or without the recording of a conviction, such as probation or adjournment and release orders (see pars(d) and (f)). Paragraph (h) permits the dismissal of a charge without conviction.
When considering whether or not to record a conviction, a court is required to have regard to the Act, s9. That provides that, in exercising its discretion whether to record a conviction or not, a court must have regard to all the circumstances of the case, including the nature and circumstances of the offence, the offender's antecedents and character, and the impact a conviction would have on the offender's economic or social wellbeing or employment prospects. The Act, s58, sets out the purposes for which a court may make an order under s7(f), 7(g) or 7(h). These include the rehabilitation of an offender by allowing him or her to serve their sentence in the community, the trivial, technical or minor nature of the offending, to allow for circumstances in which it may be inappropriate to record a conviction, to allow for circumstances where it may be inappropriate to impose other than a nominal punishment, and to allow for the existence of other extenuating or exceptional circumstances that may justify the court showing mercy.
Crawford J considered the impact of recording a conviction in Attorney-General v Smith [2002] TASSC 10 in a case where the Crown appealed a sentence as manifestly inadequate which involved a s7(h) dismissal without conviction. He said at pars[24] – [26]:
"24 For the purpose of determining whether the failure of the learned judge in this case to record a conviction was a manifestly inadequate response, it is necessary to consider the possible effect of that failure in cases in general and in this case in particular. For the purpose of the dangerous criminal provisions of the Sentencing Act, and particularly s19, when a judge is considering whether to declare an offender to be a dangerous criminal, the judge will not be permitted, when determining whether 'the offender has at least one previous conviction for a crime involving violence or an element of violence' (see s19(1)(b)), to have regard to the fact that the offender has previously been found guilty of such a crime without the recording of a conviction (as occurred here). The offender would be entitled to assert, even on oath or statutory declaration, that he or she had no previous conviction, or to expressly deny having been convicted of the relevant offence, and could not later be charged with perjury. As was pointed out in R v Briese, ex parte Attorney-General[1997] QCA 10; [1998] 1 Qd R 487 at 491, a failure to record a conviction is capable of considerable effect in the community. Persons who might have an interest in knowing the truth in such matters include potential employers, insurers and various government departments including the Immigration Department. Under the Firearms Act 1996, the offender would not be absolutely disqualified by s29(3)(a) from obtaining a licence because he would not come within the category of a person who 'within the period of 5 years before the application was made, has been convicted in Tasmania or elsewhere of any crime involving violence to another person'.
25 In R v Brown, ex parte Attorney-General [1994] 2 Qd R 182 at 194, it was noted that the recording of a conviction is in itself an element of punishment of the offender and may encourage him or her not to engage in further criminal activity and conceivably it could act as some deterrence to others if it becomes known.
26 When considering whether to record a conviction, a court must weigh up the public interest, and the need for an official record to be made of the commission of the offence, against the beneficial nature to the offender of a conviction not being recorded. Regard must be had to the purposes specified in s58. If the offence is of a relatively serious nature, the Court may feel compelled to record a conviction. In addition to public interest questions, it is proper that the Court have regard to whether the victim of such an offence might reasonably not feel vindicated by the failure to record a conviction."
In the present case, in the course of his plea in mitigation, counsel for the applicant made a submission that no conviction should be recorded. The learned magistrate immediately expressed surprise, calling the submission "a pretty big call". Counsel submitted that the lack of prior convictions was particularly relevant, as was the fact there was nothing to suggest this was other than an isolated incident. Counsel referred to a report placed before the court by a psychiatrist and pointed out that it indicated the applicant was not a risk and that the prospect of any recurrence was remote.
This was a case where the learned magistrate had found that an assault by a single punch to the face which resulted in facial injuries had occurred. It was a family violence offence. The parties were married at the time and living together in very unusual circumstances. The assault occurred in a bedroom of the family home in the presence of an adult daughter also sharing the home. The applicant was not entitled to any discount for a plea of guilty, and had expressed no remorse. He continued to maintain he had not committed the offence of which he was found guilty. The applicant was 62 years old and had no prior convictions. He was retired, but continued to do some honorary work in his field of expertise. There was no suggestion made to the learned magistrate that the applicant intended to seek paid employment, and that the recording of a conviction would adversely impact upon the applicant in that endeavour, or indeed in any future honorary work.
The applicants' income consisted of a Commonwealth pension and he continued to have a role in the care of his adult daughter, although the extent of that was not detailed. He was involved in Family Court proceedings with another daughter and her husband, I infer over assets previously held with or by his late wife. A psychiatric report was obtained for sentencing purposes.
Dealing with the specific matters identified in part B of the outline of contentions, the first relates to an asserted failure to give any or adequate weight to a lack of prior convictions. The learned magistrate makes no mention of the fact there were no prior convictions although that was a matter conveyed to him. It is trite to say that simply because a matter is not mentioned does not mean it was not considered or taken into account. The learned magistrate was an extremely experienced magistrate, and the fact he made no mention of prior convictions indicates clearly he was aware there were none. Had there been some, he would have referred to them.
As to the second and third matters, the learned magistrate clearly considered these matters. (See judge's papers page 83 lines 10 – 24.) The matters persuaded him that it was not appropriate to impose a term of actual or even suspended imprisonment.
As to the fourth matter, counsel for the applicant submitted this was an error but did not explain why. This was a domestic assault. Accepting that the learned magistrate accepted the evidence of the complainant as to the circumstances in which it occurred, namely that the complainant simply told the applicant there was no radiation in the room and in response he punched her, this was an assault which involved some force to a vulnerable part of the body and resulted in physical injuries. With respect, his Honour was more than entitled to indicate this was an offence which was serious enough to warrant imprisonment. I make the same comment in relation to matter number five. No reason has been advanced as to why this statement was wrong. Indeed it is a comment frequently made in sentencing remarks, particularly where a court is dealing with a family violence offence.
As to the points raised in matter six, again no reason was advanced as to why these statements constituted error. Indeed similar sentiments were expressed by Crawford J in Attorney-General v Smith when he was dealing with the issue of whether or not a conviction should be recorded in particular circumstances.
As to the points raised in matter seven, they all arise out of the Forensic Mental Health report requested by the learned magistrate. I have read that report and I have noted the comments made by the learned magistrate about it. I am familiar with the story of King Canute, and with respect, can see from that report why the comment was made. It is clear that the applicant does not concede he had any mental illness and that, when the subject of a treatment regime, did not comply with it. It is also clear that he continues to disavow his behaviour as it related to the issue of contamination despite the uncontested evidence of his wife about such matters at the hearing and what, I infer, were reports from other sources about it.
The quoted passages from the report have, with respect, been carefully selected and omit passages such as, "A reoccurrence of the delusional order remains conceivable, but his improvement in the last eighteen (18) months bodes well". There can be no doubt, having regard to the learned magistrate's comments about the report, that he anticipated a background of, and perhaps continuing, mental illness. It is also clear that he recognized that the applicant continued to be in denial about aspects of his own behaviour despite the view that he was much improved.
It is always difficult on a review to satisfy a court that either no, no adequate, or excessive, weight has been given to a particular factor. In the present case, I have approached a consideration of whether any of the complaints about weight have been made out by having regard to the summary above, the ultimate sentence imposed, and objectively, all the facts before the learned magistrate. I have also kept in mind that this was a very experienced magistrate. As I have already noted, this was a matter which went to hearing and the applicant was found guilty at that hearing of an assault in a domestic context in which he punched his wife to the face causing injury. The uncontested evidence of the complainant was that the assault occurred against a background of quite bizarre behaviour on the part of the applicant which had been going on for some time. The assault was, on the face of it, an irrational response to a comment made by the wife. Nothing was put to the learned magistrate to the effect a conviction would have any particular adverse effect on the applicant.
The applicant was 62 years old and in passable health. He was retired with a secure income. He continued to live with the daughter who had lived with the parties when the complainant was alive. He had no prior convictions, and, while a Forensic Mental Health report pointed to mental health issues at the time of the offending, it was noted the applicant was much improved and he had no obvious risk factors. The learned magistrate accepted that "the assault was significantly, if not mainly, the product of the environment in which it occurred, and I should think that environment is unlikely to be reconstructed in any way at all". The learned magistrate, against that background, had to consider the need to impose an appropriate penalty for a family violence offence which met community expectations. He also needed to consider personal and general deterrence. The sentence imposed was clearly one which reflected the serious nature of the offending, the circumstances in which it occurred and the personal circumstances of the applicant.
Against the background of all those factors, I am not satisfied that the applicant has made out any of the errors set out in his contentions as to penalty.
Outcome
The notice to review is dismissed.
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