Hildebrand v Woodbridge
[2021] ACTSC 327
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hildebrand v Woodbridge |
Citation: | [2021] ACTSC 327 |
Hearing Date: | 13 December 2021 |
DecisionDate: | 14 December 2021 |
Before: | Mossop J |
Decision: | See [66] |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against sentence – appeal by way of rehearing – assault occasioning actual bodily harm – sentence imposed not manifestly excessive – magistrate did not err in failing to make an intensive correction order – magistrate did not place undue reliance on victim impact statements – appeal dismissed PRACTICE AND PROCEDURE – SUBPOENAS – Subpoena issued for purpose of appeal – where appellant sought to admit further evidence based on documents obtained by subpoena – no reasonable explanation for failure to adduce evidence before the magistrate – undesirability of parties failing to adduce all relevant evidence at first instance – further evidence not admitted |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 7, 10(3), 11, 33, pt. 3.2 Crimes (Sentence Administration) Act 2005 (ACT), ss 64, 65, 66 Magistrates Court Act 1930 (ACT), s 214 |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 Dang v Li [2021] ACTSC 179; 16 ACTLR 143 R v De Simoni (1981) 147 CLR 383 |
Parties: | Trai Hildebrand (Appellant) Grace Woodbridge (Respondent) |
Representation: | Counsel K Archer (Appellant) K McCann (Respondent) |
| Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 26 of 2021 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Theakston Date of Decision: 2 August 2021 Case Title: Woodbridge v Hildebrand Court File Numbers: CC2021/2838 CC2021/1823 CC2021/3036 |
MOSSOP J:
Introduction
On 18 May 2021, the appellant pleaded guilty to the following offences:
(a)CC2021/2838: assault occasioning actual bodily harm;
(b)CC2021/1823: minor theft; and
(c)CC2021/3036: using a carriage service to menace or harass.
Each of those offences had been committed on 11 February 2021.
On 2 August 2021, the appellant was sentenced by a magistrate. The sentences imposed were as follows:
(a)assault occasioning actual bodily harm: four months’ imprisonment suspended after two months with a 12-month good behaviour order and nine months of supervision;
(b)minor theft: $1000 fine; and
(c)using a carriage service to harass: $1000 fine.
In summary, the circumstances of the offending were as follows.
At about 9:45pm on 11 February 2021, the appellant attended the unit complex of his ex-partner who I will refer to as S. At the time, she and the victim of the offending were walking through the car park of the unit complex. The appellant, who was armed with a 24-inch wrench, approached the victim, waved the wrench around and yelled at him. He then rushed towards the victim and began striking him with the wrench. He struck the victim three or four times. S eventually wrestled the wrench from his hand. He continued to punch the victim. This conduct gives rise to assault occasioning actual bodily harm. The victim’s iPhone fell out of his pocket and the appellant picked it up and left the location. This constitutes the theft. When police arrived, the victim was lying on the floor of a neighbour’s house with a swollen left eye and blood coming from his nose and ear. Later that evening, the appellant accessed the victim’s iPhone and began sending messages to his ex-partner calling her a “filthy liar” and threatening to distribute images on social media. This constitutes the use of a carriage service to menace or harass.
The appellant has appealed only against the sentence for assault occasioning actual bodily harm.
Grounds of appeal
The grounds of appeal identified in the Amended Notice of Appeal dated 6 December 2021 that were pressed at the hearing of the appeal were:
(a)The sentence is manifestly excessive;
(b)His Honour erred in failing to give sufficient weight to the Appellant’s young age and lack of criminal history;
(c)His Honour erred in reasoning that the Appellant’s lack of criminal history and prior good character meant an Intensive Corrections Order was not an appropriate sentencing option;
…
(f)His Honour impermissibly made findings as to the seriousness of the assault by relying on assertions made in victim impact statements.
(Emphasis in original.)
The hearing before the magistrate
The hearing before the magistrate took place on 6 July and 2 August 2021. The adjournment from 6 July was because the appellant wished to cross-examine the author of the pre-sentence report.
On 6 July 2021, the following evidence was tendered:
(a)Exhibit A: a Statement of Facts.
(b)Exhibit B: photographs of the victim.
(c)Exhibit C: pre-sentence report.
(d)Exhibit D: victim impact statement of the victim.
(e)Exhibit E: victim impact statement of S.
There were some objections to the victim impact statement of the victim and portions of the statement were not admitted. There was, however, no objection to those parts of the victim impact statements which have become the subject of ground (f) in the appeal.
The appellant tendered three character references which were collectively marked as Exhibit F.
The victim impact statements were read.
Counsel for the appellant commenced her submissions. She identified that her instructions were that the appellant had not reported to the pre-sentence report author that he had driven for nearly an hour to get to the victim with the knowledge that he would hit him on arrival. The raising of that issue about the contents of the pre‑sentence report led to a discussion about how the magistrate could resolve that issue. There was a short adjournment. After the adjournment, counsel for the appellant sought an adjournment so that the author of the pre-sentence report could be made available for cross-examination.
The proceedings were adjourned until 2 August 2021. On 2 August a number of screenshots from S’s mobile phone were tendered by the prosecution: Exhibit G. A video of the incident was played and the flash drive containing it was tendered: Exhibit H. The appellant tendered an additional screenshot which was designed to show that the message in it was a message on 4 February 2021: Exhibit I. There was some explanation of the chronology of the messages that had been tendered.
The author of the pre-sentence report was called to give evidence. In evidence, she confirmed that the accused had told her that he had spoken to his ex-partner and during the conversation, he had overheard the victim in the background and he had driven to his ex-partner’s house. That journey took an hour and during that time he thought about hitting the victim. In cross-examination, it was suggested to him that when he got there, he knew he was going to hit the victim but the author of the pre-sentence report said that he had told her he thought about it for the entire drive. The author of the pre-sentence report had found it surprising that he told her that, which was why she remembered it so clearly. She said she asked clarifying questions because she thought it was very surprising and he reiterated that he felt really controlled and aware of what he was going to do before he got there.
Counsel for the appellant indicated that she did not wish to lead any further evidence. His Honour put counsel on notice that in those circumstances he would adopt what had been said by the author of the pre-sentence report.
Counsel for the appellant then made her submissions. She noted that the victim’s mobile phone had been returned to him later. She referred to her instructions that the victim and an unknown male had previously attended the appellant’s house and threatened him with hockey sticks. She referred to his employment, his volunteer work for the Rural Fire Service, his accommodation situation, his youth and the absence of a criminal history. She referred to the pleas of guilty. She submitted that little weight should be given to the victim impact statement of the victim in relation to injuries claimed by him. The magistrate identified that the victim had not been cross-examined and that he stated that he was suffering from ongoing issues in relation to the injury because he gets lightheaded and dizzy since being hit and concussed and he has had seizures which he never had before. Counsel for the appellant pointed to the victim having a diagnosis of epilepsy. She suggested that in the absence of medical evidence, the magistrate should give limited weight in relation to that. The magistrate referred to the absence of challenge to the terms of the victim impact statement. Counsel for the appellant said: “Certainly, your Honour, I won’t take that submission any higher.” She submitted that a suspended sentence with a good behaviour order for the assault occasioning actual bodily harm would be appropriate. She submitted if the court was not satisfied that a suspended sentence of imprisonment was appropriate, then the appellant should be assessed for suitability for an intensive correction order (ICO).
Counsel for the prosecution did not oppose an ICO assessment. She referred to the gravity of the assault, involving blows to the head with an implement capable of very significant damage. She referred to the issue of premeditation and what can be seen and heard on the videos. During the course of submissions counsel for the prosecution, in referring to the objective seriousness of the offence, submitted that it was “at the higher end of objective seriousness, particular noting the injuries that are referred to by [the victim] in his victim impact statement.” She also made submissions about the minor theft and use of the carriage service. She made reference to the requirement to consider the reasons for the offending and submitted that it was clearly an offence of family violence involving a form of coercion or behaviour aimed at controlling or dominating his ex‑partner. She also referred to contrition, good character in the context of the circumstances of this offending and the plea of guilty. She submitted that general and specific deterrence should carry significant weight in this case. The prosecution submission was that no alternative other than a sentence of full-time imprisonment was appropriate.
The reasons of the magistrate
The magistrate then gave his reasons immediately following the conclusion of submissions. They extended over four and a half pages of transcript. He explained the facts and what he described as the “backstory”. As to the facts, he accepted the evidence of the pre-sentence report author. He described the assault as “a very serious example of this type of offending”, going on to say:
Everyone, including the defendant, is lucky that [the victim] didn’t suffer a much more serious injury. A strike with that device to the head could have easily killed the man, and the defendant may be facing a sentence for murder.
He referred to the absence of a criminal history, the appellant’s current employment and his personal circumstances as set out in the pre-sentence report. He referred to the character references that were before him. He noted that the references “lack of any real description of empathy towards the complainant”. He then referred to the circumstances surrounding the theft of the phone and the messages sent.
He said:
The offending here is, as I have said, serious. It was designed to cause harm. It was planned. The defendant had a period of time to reconsider his approach. And what strikes me is, there appears to be some sense of entitlement or grievance experienced by the defendant at the time. No doubt it was triggered by some sense of rejection or jealousy in relation to his ex‑partner being involved with another man.
In relation to how a custodial sentence should be served, the magistrate said:
I have been invited to accept that while the assault occasioning actual bodily harm does justify a period of imprisonment, and that the section 10 threshold has been crossed, that it should be suspended, and if it needs to be served immediately, then it should be served by way of intensive correction order. I am not sure there is much work for an intensive correction order to do here, in relation to the defendant.
He is, again, someone of good character. It is unclear whether or not this will happen again, but I would have thought that this is too serious for an intensive correction order, and what is necessary here to do justice, in circumstances that meet the various purposes of sentencing, is it something that could be described as short and sharp. And what I intend to do is impose a period of imprisonment that will have a release date that allows the defendant to then receive supervision in the community for an extended period of time, well beyond what an intensive correction order would allow.
The magistrate made reference to the purposes of sentencing. He referred to the need to denounce the conduct which would involve a degree of punishment on the defendant. He said that he needed to do so in a way that maintains the opportunity for rehabilitation. He said that there was a need for both general deterrence and specific deterrence. He said:
I have turned my mind as to whether or not a sentence other than a period of imprisonment would be appropriate. I have taken into account, for example, the options for community service and good behaviour orders and supervision, without any period of imprisonment. I am left with a very clear sense that a custodial sentence is necessary.
In relation to a suspended sentence, I have turned my mind to that, and I think a sentence that was simply suspended, even if it had a significant period of community service, would be inadequate. I have turned my mind to whether or not an intensive correction order would be appropriate as well, and I do not think that would apply the appropriate balance between indicating how serious his offending is, as well as providing an adequate period of time for supervision.
The magistrate then formally pronounced his orders.
Ground (a): manifest excess
The principles applicable to a claim of manifest excess were set out in Tracey v The Queen [2020] ACTCA 51 at [37]-[38] and do not need to be repeated here.
The appellant’s submissions referred to sentencing statistics from the Magistrates Court. For an assault occasioning actual bodily harm, the statistics included 23 cases which involved a male between 21 and 25 years of age who had pleaded guilty and was being dealt with for multiple offences. Eight of those were sentenced to full-time imprisonment. There were 62 cases where only a single offence was being dealt with, with five resulting in full-time custody.
The appellant submitted that having regard to the objective seriousness of the offence, the subjective circumstances of the appellant, the terms of ss 7 and 33 of the Crimes (Sentencing) Act 2005 (ACT) and the sentencing pattern disclosed by the sentencing statistics that “the imposition of a sentence requiring time to be served was outside the range of appropriate outcomes”.
The submissions of the appellant are without merit. There are significant limitations on the utility of the kind of sentencing statistics referred to: see the authorities referred to in Bui v The Queen [2015] ACTCA 5 at [36]-[40]. The bare statistics as described do not demonstrate that the present sentence was inconsistent with the pattern of sentencing in the Magistrates Court.
Having regard to the circumstances of the offending, multiple blows to the head with a wrench leading to bleeding from the ear and nose, committed in circumstances which involved jealousy and hostility to the new boyfriend of a former partner, a sentence involving two months of full-time detention is not manifestly excessive, even for a person who is young and otherwise of good character.
Considerations of general and specific deterrence, denunciation of the conduct and recognition of harm done to the victims all would be significant factors for the purposes of sentencing which would result in a period of full-time detention as part of a combination sentence, as being well within the sentencing discretion of the magistrate.
None of this is to downplay the significance of a period of imprisonment for a young man in the circumstances of the appellant, but simply to state that the imposition of a sentence of this nature in this case was within the scope of the sentencing discretion of the magistrate and the imposition of such a sentence was not of itself indicative of error.
This ground of appeal is not made out.
Grounds (b) and (c): failure to make an ICO
Ground (b) asserts an error involving “fail[ing] to give sufficient weight” to the appellant’s young age and lack of criminal history. Ground (c) contends that there was an error in reasoning that the appellant’s lack of criminal history and prior good character meant that an ICO was not an appropriate sentencing option.
The submissions of the appellant were directed to the nature of an ICO. They referred to the explanatory statement for the amending legislation which introduced the concept of an ICO. That included:
The intensive correction order is designed to be punitive while still allowing the courts to incorporate elements of rehabilitation. It will allow offenders to remain in employment and maintain their community ties which are important to reduce the risk of future offending. It is flexible enough to allow the courts to tailor the order to suit the circumstances of the offence and the offender but still sufficiently structured to ensure every order places appropriate demands on the offender.
The submissions pointed to:
(a)community-based sentencing being a better option than imprisonment for achieving the purposes of sentencing in appropriate cases;
(b)that it has “particular relevance” to the sentencing of young offenders; and
(c)the discussion of the nature of ICOs by Refshauge J in Samani v The Queen [2016] ACTCA 48 at [30]-[49].
The submissions pointed to alternatives available to his Honour’s “short and sharp” sentence. They included the potential for an ICO with up to 500 hours of community service and the range of other conditions that may be imposed upon somebody subject to an ICO.
The appellant submitted that the magistrate’s concerns about the need for supervision could have been achieved within the scope of an ICO or alternatively by imposing a good behaviour order on one of the other sentences.
The appellant pointed to his age and lack of criminal history and the inability to complete, within the short period of full-time detention, any rehabilitative programs.
The appellant submitted that “the community has little to gain from exposing this young man to the corrupting influences of gaol life”.
A ground of appeal which asserts failure to give sufficient weight concedes, by its terms, that some weight was given to the particular issue. It therefore does not articulate a basis for appellate intervention: R v Ang [2014] ACTCA 17 at [22]. The weight to be given to any particular factor is a matter of discretion for the sentencing judge. Therefore, it is difficult to maintain this is a separate ground of appeal and it is more appropriately characterised as a particular of the claim of manifest excess.
In the present case, there was no error on the part of the magistrate in deciding not to proceed to an assessment of suitability for an ICO. The ICO is a custodial sentence. It is characterised as such by the legislation: see the heading to pt 3.2 of the Crimes (Sentencing) Act and the examples to s 10(3). It carries with it the potential for full-time custody either arising from particular breaches: s 64 of the Crimes (Sentence Administration) Act 2005 (ACT), as a result of its cancellation: s 65 or as a result of withdrawal of consent: s 66.
Save for those statutory conditions set out in s 11 of the Crimes (Sentencing) Act, there is no limit upon the offences for which an ICO may be an available custodial option. However, in exercising the sentencing discretion it is necessary for a decision to be made as to whether or not disposition by way of an ICO will adequately meet the purposes of sentencing. That depends upon what is involved in compliance with such an order and hence the extent to which it may be useful in meeting the various purposes of sentencing. There will often be a better case for an ICO where there are particular criminogenic issues that can be appropriately addressed by a sentence which has an intensive period of supervision in the community. An obvious example is one where closely supervised drug rehabilitation is being undertaken. That is to be contrasted with the situation in which no such close supervision or intervention is necessary in which case the ICO will, in practice, be little different to the regime available pursuant to a good behaviour order.
In a situation where an appellant was identified as having no particular criminogenic drivers which needed to be addressed, the practical effect of an ICO would be that it is equivalent to a good behaviour order with a slightly increased level of supervision. If that would be the practical result of the imposition of an ICO, then that is something that it is open to a magistrate to take into account when considering whether a custodial sentence served by way of an ICO would adequately meet the purposes of sentencing.
In this case, that appears to have been the concern of the magistrate. That is made clear by the reasons that his Honour gave. The circumstances of the appellant were that there were no particular issues to be addressed by way of an ICO. In those circumstances, the gravity of the offending was such that in order to address the various purposes of sentencing a short, sharp period of imprisonment was a reasonably available sentencing option. There is no foundation in the extrinsic material referred to by the appellant for the proposition that the regime for ICOs was intended to prevent short, sharp sentences. It was a sentencing option which was available to the magistrate. There was no error of principle or other House v The King (1936) 55 CLR 499 error in adopting this approach.
These grounds of appeal are not made out.
Ground (f): reliance on the victim impact statement
The victim impact statement of the victim included:
I was taken to hospital by ambulance and didn’t get discharged till the day after.
I’ve been to doctor appointments about my head/concussion/seizures. This includes MRI Scanning.
I feel like I’m constantly on edge, can’t do the simplest work without dizziness and everything going into a blur since the hits. I forget things easily now and sometimes have trouble getting my words out and mixing them up.
The victim impact statement prepared by S said:
I continuously beat myself up with the thoughts of “what if”. i’ve seen a change in [the victim]. he can’t do simple things like bend down too fast or have his head down working without getting dizzy to the point he almost faints. he has had seizures when his [sic] overworked himself or once his heart rate goes up to [sic] high and once again his [sic] had no records of this happening until being hit in the head by a wrench.
The appellant submitted that there was no reference in the agreed facts to the injury having had long-term consequences. The appellant submitted that it was not open in those circumstances for the prosecution to put sentencing submissions based upon the terms of the victim impact statement that there were long-term consequences.
Several points should be noted:
(a)there was no objection to these passages from the victim impact statement at the hearing before the magistrate;
(b)the victim was not required for cross-examination; and
(c)in his reasons, the magistrate did not make any finding about or refer to any long-term consequences of the assault on the victim.
The appellant placed particular emphasis on the exchange between counsel and the magistrate referred to at [17] above and the submission made by the prosecutor relying upon the terms of the victim impact statements referred to at [18]. Those exchanges and the statutory obligation to take into account the victim impact statement were said by the appellant to indicate that the contents of in the victim impact statements coloured the magistrate’s approach to the assessment of the gravity of the offending.
As I have pointed out previously, great care must be taken when a submission is made based upon something said by a judicial officer during the course of argument that is not reflected in the reasons ultimately given: see Murray v IA [2020] ACTSC 288 at [34].
In this case, it cannot be assumed that his Honour sentenced on a basis other than the basis which was outlined in his reasons. He made no findings as to the nature and consequences of the offending for the victim that went beyond what was contained in the Statement of Facts. The case is distinguishable from the circumstances in Dang v Li [2021] ACTSC 179; 16 ACTLR 143 because in that case there was a specific finding in the magistrate’s reasons based upon the terms of the victim impact statement which contravened the principle in R v De Simoni (1981) 147 CLR 383 and was found to be inconsistent with an agreed factual position. There is no such finding in this case. Further, it is not a case where the sentence imposed is only explicable upon acceptance of facts which were not referred to in the sentencing reasoning. Attacking your ex‑partner’s new partner with a wrench by striking blows to his head sufficient to cause bleeding are facts of sufficient gravity to warrant a sentence of full-time imprisonment. That is all the more clear in circumstances where the incident was not impulsive and momentary, but rather one in which the appellant travelled to the location with the intention of harming the victim.
This ground of appeal is not made out.
Since this ground of appeal has failed because the appellant has not established that the magistrate made any finding or otherwise relied upon the now objected to portions of the victim impact statements, the application to admit further evidence on the appeal falls away. That is because that additional material was targeted at challenging the factual correctness of the assertions made in the victim impact statements by using evidence obtained from subpoenas issued for the purposes of the appeal. Despite this, I will address those applications on their merits.
Further evidence
The appellant sought to have admitted two categories of further evidence:
(a)Records from the ACT Ambulance Service (ACTAS) relating to the victim which disclose a history of “previous assualt [sic] last week with seizure post event and following scan finding cyst (cerebral) with on-going investigations including MRI today. [History] of chronic headaches.”
(b)Records of the Canberra Hospital relating to the victim. Of the 195 pages of records subpoenaed and tendered, five pages contain potentially relevant material:
(i)Page 100, hospital records relating to the admission on 11 February 2021:
PT BIBA POST ALLEGED ASSULT [sic] WITH FACIAL INJURY NIL [loss of consciousness] ACCORDING TO ACTAS GCS15 AT TRIAGE HX OF SIZURES LAST WEEK POST ASSULT ELEVATED BP WITH ACTAS 150/100 HX OF ETOH TONIGHT”.
(ii)Page 104, ACTAS records relating to the incident on 11 February 2021:
O/E alert, orientated, appears dazed, Pain to [left] face including Jaw/cheekbone. Denies [loss of consciousness] tonight, recalls event. ETOH tonight. Able to stand and walk to ambulance with steady gait.
HX of previous assualt [sic] last week with seizure post event and following scan finding cyst (cerebral) with on-going investigations including MRI today. Hx of chronic headaches.
(iii)Page 108, emergency department discharge letter relating to the incident on 11 February 2021: “The Diagnosis was: Superficial injury of other parts of head (cheek, chin, face, forehead, temple).”
(iv)Page 179, in a letter from a specialist dated 26 August 2021 relating to investigation of seizures that occurred in the period since the incident: “The seizures are more likely related to a microscopic seizure focus and his history of excessive alcohol use.”
(v)Page 183: A letter from a specialist in August 2021 referring to a 20-year history of debilitating headaches and saying that he does get dizzy and has episodes when he feels lightheaded and faint.
A further aspect of the application seeking to have certain telephone records of the appellant admitted, was not pressed at the hearing of the appeal.
Section 214 of the Magistrates Court Act 1930 (ACT) provides:
(3)In an appeal to which this section applies, the Supreme Court must–
(a) if it considers it necessary or expedient to do so in the interests of justice–
[not relevant]
(b) receive evidence with the consent of the parties to the appeal.
(4)If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if–
(a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of which the appeal arose on an issue relevant to the appeal; and
(b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
The three requirements of s 214(4) of the Magistrates Court Act may be summarised as:
(a)that the evidence is likely to be credible and would have been admissible in the proceedings below: s 214(4)(a);
(b)that there is a reasonable explanation for the failure to adduce the evidence: s 214(4)(b); and
(c)that the evidence would afford a ground for allowing the appeal: s 214(4) chapeau.
This provision must be interpreted in the context that the appeal is an appeal by way of rehearing in which it is necessary for the appellant to establish error. It is not a hearing de novo.
I am not satisfied that there is a reasonable explanation for the failure to adduce this evidence before the magistrate. Sentencing proceedings must be conducted upon the assumption that, subject to any appeal, they will finally determine the sentence. Sentencing proceedings before a magistrate are not merely a step along the way to having the matter finally determined by the Supreme Court. That means that parties are expected to put forward all relevant evidence and arguments before the Magistrates Court. Precisely what evidence and arguments get put will be determined by counsel appearing before the magistrate. Except in limited circumstances, parties are bound by the way they conduct proceedings at first instance. The issuing of subpoenas to obtain, for the purposes of an appeal, different evidence to that which was relied upon before the magistrate should, in my view, only be a course adopted in exceptional circumstances. Nevertheless, it is the course that was adopted here.
So far as the ambulance records are concerned, there is no explanation as to why, if this material was seen as desirable, it was not obtained in advance of the hearing before the magistrate. The affidavit of the solicitor who appeared before the magistrate was simply that she caused a subpoena dated 19 November 2021 to be served on ACTAS. It is obviously undesirable that parties treat an appeal as a second opportunity at which to obtain evidence that they chose not to obtain at first instance. In the absence of any explanation for this conduct on the appellant’s part, I am not satisfied that there is a reasonable explanation for the failure to have adduced this evidence at the hearing before the magistrate. Counsel submitted it was “simply not at hand at the particular time” and “not at hand and available to the solicitor”. The submission that the mere fact that it was not physically available to be tendered by the appellant at the hearing before the magistrate was insufficient to provide a reasonable explanation for the failure to do so. To adopt such an approach to what may amount to a reasonable explanation would be to completely undermine the finality of proceedings before the magistrate and completely undermine the limited nature of an appeal by way of rehearing.
Further, having regard to the basis upon which the magistrate dealt with the matter, namely, without placing reliance upon any possible long-term consequences described in the victim impact statements, I am satisfied that the evidence would not afford any ground for allowing the appeal as referred to in the chapeau to s 214(4) of the Magistrates Court Act.
The position is the same in relation to the material extracted from the large bundle of records produced by the Canberra Hospital. There is no explanation for the failure to obtain this material at an earlier stage if it was to be relied upon. The affidavit of the solicitor dated 9 December 2021 simply says, “Since my affidavit affirmed on 3 December 2021 additional material was produced by ACT Health pursuant to a subpoena I caused to be issued on 19 November 2021”. This is not a reasonable explanation for the failure to adduce the evidence before the magistrate.
In those circumstances is not necessary to address the issue as to whether or not, having admitted further evidence, the appellant’s sentence was necessarily reopened without the need to demonstrate error.
Conclusion
Each of the grounds of appeal has failed. The appeal must therefore be dismissed. The appellant spent 11 days in custody prior to being granted appeal bail. The start and end dates of the sentence need to be adjusted so as to take into account the appeal, the grant of bail and the period spent in custody prior to the grant of bail.
Orders
The orders of the Court are:
1.Subject to order 2, the appeal is dismissed.
2.On the charge of assault occasioning actual bodily harm (CC2021/2838) the sentence imposed on 2 August 2021 is varied so that it commences on 3 December 2021 and ends on 2 April 2022 but the sentence is otherwise confirmed.
| I certify that the preceding sixty-six [66] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 9 March 2022 |
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