James v State of Tasmania

[2010] TASSC 50

[2010] TASSC 50

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 James v State of Tasmania [2010] TASSC 50

PARTIES:  JAMES, Gary John
  v
  STATE OF TASMANIA

FILE NO/S:  826/2010
DELIVERED ON:  11 November 2010
DELIVERED AT:  Hobart
HEARING DATE:  4 November 2010
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Magistrates – Jurisdiction and procedure generally – Procedure – Orders and convictions – Sentencing – Other matters – Failure to make sentencing order clear.

Aust Dig Magistrates [140]

REPRESENTATION:

Counsel:
             Applicant:  P Morgan
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2010] TASSC 50
Number of paragraphs:  24

Serial No 50/2010
File No 826/2010

GARY JOHN JAMES v STATE OF TASMANIA

REASONS FOR JUDGMENT  CRAWFORD CJ

11 November 2010

1. On four complaints, a magistrate, Mr S F Mollard, sentenced the applicant to three terms of imprisonment.  The second was expressed to be cumulative on the first.  The third was simply expressed as cumulative. 

1. The applicant seeks to review the sentence of imprisonment on two grounds.  The first is that the sentences were manifestly excessive.  The second is that the magistrate erred by failing to make clear whether the third sentence was cumulative to both of the previous sentences or only one of them. 

A summary of the offences and the sentences

1. On complaint 13872/2009, the applicant was sentenced on his pleas of guilty to driving a motor vehicle on 26 November 2009 with an excessive amount of alcohol in his blood (0.075 grams per 210 litres of breath) and driving without a licence at the same time.  On complaint 5826/2010, he was sentenced on his pleas of guilty to driving a motor vehicle on 24 May 2010 when he was disqualified from doing so and to driving at that time when alcohol was in his body (0.032).  On both those complaints, the magistrate sentenced him to six months' imprisonment commencing on 25 August 2010.  Two months of the imprisonment were suspended on condition he be of good behaviour and not commit a breach of the Road Safety (Alcohol and Drugs) Act 1970, Vehicle andTraffic Act 1999 or Traffic Act 1925, as a driver for three years after his release from custody. In addition he was disqualified from driving for two years from 21 December 2010.

1. On complaint 91758/2010, he was sentenced on his plea of guilty to perverting justice on 26 November 2009.  The offence was committed on the same occasion as the offences in complaint 13872/2009.  When stopped for the breath test and analysis, he gave a false name to the police officer.  When he failed to attend court for the offences, police inquiries determined his true identity.  On that charge, the magistrate sentenced him to three months' imprisonment, expressing the imprisonment to be "cumulative on the sentence already imposed".  On the record of the proceedings, it was recorded:

"Sentenced to 3 months imprisonment cumulative to C/N 5826/10 …

SF MOLLARD

MAGISTRATE"

1. On complaint 9247/2010, he was sentenced on his pleas of guilty to three charges. The first was breaching a family violence order on 24 August 2010 by sending an abusive and threatening SMS message to a woman who was protected by the order. The second was another breach of that order on the same day, by telling the woman he would punch her head in if she did not pack his property and by assaulting her by placing both hands around her neck and squeezing, threatening to bash her head in if she did not give him a telephone, grabbing her by the back of the neck, and placing his arm around her neck. That assault was the subject of the third charge of common assault. According to the transcript, the magistrate announced that he "… sentenced on that complaint to six months imprisonment cumulative, but three months of it are ordered to be suspended on condition you're of good behaviour and on condition that you don't commit any crime or offence of actual or threatened violence, nor any breach of the Family Violence Act for a period of four years from today." On the record of the proceedings it was recorded:

"Sentenced to 6 months imprisonment cumulative to C/N 5826/10, 3 months of which is suspended on condition that you be of good behaviour and commit no crime or offence of actual or threatened violence or any breach of the Family Violence Act for a period of 4 years. …

SF MOLLARD

MAGISTRATE"

1. If the third sentence of imprisonment was cumulative on both the previous sentences, then the effect of the three sentences was that the applicant had to serve a total of 10 months' imprisonment.  However, if the third sentence was cumulative only on the first sentence, as was recorded in the record of the proceedings, he was required to serve a total of seven months' imprisonment.

1. Notwithstanding the record of proceedings for complaint 9247/2010, it appears that a warrant was sent in the magistrate's name to the prison in which it was stated that the applicant had been sentenced to serve a term of ten months' imprisonment commencing on 25 August 2010.  Literally that was incorrect, for there was no sentence of ten months' imprisonment and it conflicted with the records of the proceedings.  I have been informed that the prison authorities believe that the applicant is required to serve ten months' imprisonment.

Was there an error in failing to make the sentence clear?

1. Because there is doubt concerning the effect of the third sentence, in the interests of justice and fairness it should be set aside and the applicant should be re-sentenced by this Court.  The lack of clarity amounted to a sentencing error.

Were the sentences of imprisonment manifestly excessive?

1. Counsel for the applicant conceded that each of the sentences of imprisonment, when viewed alone, was not a manifestly excessive one.  I agree.  What she argued was that if the third sentence of imprisonment was cumulative on the other two, the combined effect of the three sentences was manifestly excessive. 

1. I think there is merit in the submission.  However, if the third sentence was concurrent with the other two sentences, I would not be of that view. 

Re-sentencing

1. When re-sentencing the applicant on complaint 91758/2010 it is necessary to take into account the offences in the other complaints and the sentences imposed for them.  As the applicant's counsel argued, the principles of totality need to be considered.

1. At the time of the offences he was either 27 or 28 years of age.  He had a not insignificant record.  It included many offences of dishonesty for which he had appeared in the Children's Court, the Magistrates Court and the Criminal Court.  Eventually, he served sentences of imprisonment for some of those offences.  However, he has not committed an offence of dishonesty since 2003. 

1. His offences against the Road Safety (Alcohol and Drugs) Act on 24 November 2009 were his first under that Act.  However, his offence on 24 May 2010 of driving whilst alcohol was in his body, qualified as a subsequent offence under the Act.  On 10 January 2010, he drove with alcohol in his body that exceeded the prescribed limit (his reading was 0.057) at a time when, because he was an unlicensed driver, he should have had no alcohol in his body.  On 22 February 2010, a magistrate fined him $240 and disqualified him from driving for six months for the offence of driving with alcohol in his body.  He was also fined $300 for driving while unlicensed. 

1. On 3 March 2010, only nine days after his convictions for those two offences, he drove while disqualified under the Act.  On 7 April 2010, he was fined $200 and disqualified for four months cumulative on the earlier disqualification. 

1. It was only seven weeks after that conviction that he again drove while disqualified under the Act and with alcohol in his body on 24 May 2010.  For those offences and for the two driving offences committed on 26 November 2009, the magistrate sentenced him to six months' imprisonment, two months of which were suspended.  That was not a manifestly excessive sentence. His persistent offending under the Act required imprisonment.  The suspended part of the sentence was a worthwhile attempt at deterring him in the future.

1. The sentence of three months' imprisonment for perverting justice was within the acceptable range for the offence for an offender who had a record, albeit not for the same offence. 

1. Finally, I deal with the offences in complaint 9247/2010, which were two breaches of the family violence order and the assault.  The order was a police family violence order made for 12 months on 3 December 2009.  According to the prosecutor, it required the applicant not to directly or indirectly threaten, harass, abuse or approach the complainant.  According to the complaint, it prohibited him from approaching her directly or indirectly, including by telephone, except for the purpose of matters that included attending meetings with her consent in the presence of a third party to discuss matters arising out of their relationship, attending Family Court conferences, and appearing at court.  However, the prosecutor informed the magistrate that notwithstanding the order, the applicant and the complainant had lived together for two or three months after its making.  That the complainant reconciled with him in that way ought to be regarded as mitigatory, for notwithstanding that the order had as its object keeping him away from her, she sought to avoid that consequence.

1. The magistrate was informed that the first breach was on the morning of 24 August 2010, nearly eight months after the making of the order.  The applicant sent her an SMS message calling her a dog, slut, and maggot, and indicating that he hoped she would die.  He also commented that he was thinking about "knocking her", a reference to thoughts of killing her.

1. The second and third offences occurred at about 6.15pm when the complainant returned home to where they lived at Dysart.  He told her that she had to take him to Launceston and he instructed her to pack his things, saying that he would punch her head in if she refused.  They were facing each other in the lounge.  He put both his hands around her throat and squeezed for a few seconds, causing it to hurt.  Her two-year old daughter witnessed that and started to scream. That applicant told the child, "it's alright, darling, mummy's been a bit naughty and needs a good smacking."  The complainant then received an SMS from a friend, asking if she was okay.  The applicant asked for the telephone and threatened to bash her head in if she did not hand it over.  He read the message and then directed the complainant to reply with a message saying she was okay.  Shortly after that, her mother called and the applicant said to get rid of her.  The complainant spoke with her mother, told her that the applicant was present and asked her mother to call the police.  The applicant then grabbed the complainant by the back of the neck and yelled abuse at her.  He then moved to the car and the complainant took the opportunity to run down her driveway.  He chased her and grabbed her in a headlock.  She had her daughter in her arms at the time.  The applicant told her to be quiet and shut up and to ring her mother back and tell her not to call the police.  He ran off when a vehicle's headlights were seen approaching.  Police arrived but could not find him.  He was later arrested.  He denied assaulting the complainant, but admitted breaching the order by being with her, and by sending numerous abusive text messages to her.

1. In mitigation, the applicant's counsel pointed out that he had no history for violence.  She said that both the applicant and the complainant had believed that the police family violence order was only in place for six months, although he conceded that was not a reasonably held belief and that he should have made sure what the situation was.  Nevertheless, his belief in that regard should be taken into account in mitigation.  That he held that belief, a fact which was not challenged by the prosecutor or the magistrate, was significant.  If the magistrate did not accept the fact, he should have said so and given the applicant the chance to call evidence in support of his belief.

1. He has been retained in custody since that day, 24 August 2010.  Counsel explained to the magistrate that on the applicant's release, he intended to live with his mother in Launceston.  Prior to going into custody, he had full time care of his 11-month old son by another woman, who was being looked after by an ex-partner.  Counsel said that the applicant had a long history of drug and alcohol issues and that he still struggled with them.  He had seen a drug and alcohol counsellor in prison and intended to continue with counselling after his release.

1. In my judgment, the appropriate sentence for the assault and breach of the family violence order was three months' imprisonment all suspended.  He had no history for offences of violence or for breaches of family violence orders.  The nature of the assault was not severe enough to warrant a greater punishment.  His culpability for breaching the order was ameliorated by his belief, the claim to which was unchallenged, that the order no longer operated, and by the complainant reconciling and living with him since the order had been made.

1. His counsel submitted that a community service order should be considered.  Having regard to his record generally, I am not persuaded that it would amount to a sufficiently severe punishment.

1. The following orders will be made.  The magistrate's sentence on complaint 9247/2010 is set aside and in its place the applicant is sentenced to three months' imprisonment, all suspended on condition he is of good behaviour and commits no crime or offence of actual or threatened violence or any breach of the Family Violence Act 2004 for four years.