John Daniel Vasquez v R. No. SCCRM 93/170 Judgment No. 4126 Number of Pages 4 Criminal Law and Procedure

[1993] SASC 4126

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MOHR(2) AND BOLLEN(3) JJ

CWDS
Criminal law and procedure - Sentence - procedure where circumstances surrounding offence in dispute - offences viewed by judge in light of context of course of conduct contrary to prior intimation to counsel - course of conduct not admitted - sentencing discretion miscarried - appeal allowed - assault occasioning actual bodily harm in severe assault with baseball bat by 20 year old man on 18 year old live-in girlfriend - no prior convictions - sentence 2 years with non-parole period of 1 year.

HRNG ADELAIDE, 17 August 1993 #DATE 17:8:1993
Counsel for appellant:     Mr J R Jamison
Solicitors for appellant:    Jamison and Associates
Counsel for respondent:     Ms P Kelly
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal allowed.

JUDGE1 KING CJ This is an appeal against a sentence imposed upon the appellant for the crime of assault occasioning actual bodily harm. The appellant pleaded guilty to the charge of that crime in the Supreme Court and was sentenced to imprisonment for 3 and a half years with a non-parole period of 18 months. 2. The appellant was living in a sexual relationship with the victim. There had been an argument. It was, according to the learned sentencing judge, and I quote from his reasons, "over something which one of your friends had said to Rebecca Smith some three months earlier." 3. The learned judge went on:
    "Apparently the argument became more heated. You began
    throwing her against the wall. You then threw her to the ground
    and kicked her in the stomach on two occasions. You then stopped
    your assault and made a telephone conversation. That apparently
    took about 15 minutes. You then came into the bedroom where she
    was and began to yell at her. You picked up a baseball bat and
    began hitting her. You were taking full swings with the bat. You
    hit her on the arms and on the legs. There was one or two blows
    to the head. You pushed her to the ground and you began hitting
    her head on the ground. At some stage you smashed a wardrobe with
    the baseball bat. She apparently picked up pieces of the wardrobe
    and put it over her head to protect her, but you hit her on the
    face, nevertheless, with the baseball bat. The blows you
    inflicted upon her caused quite severe injuries. You rang your
    mother and she took Rebecca Smith to Flinders Medical Centre.
    There an operation called an arthroscopy was performed to repair a
    fracture to the left knee. There was, to use the words of the
    orthopaedic registrar, 'significant trauma'. There was also a
    laceration near the right eye and to the scalp. Both required
    sutures. There were four to five welt marks on her left thigh." 4. His Honour went on to state that the victim had been in hospital for some three days. Apparently there was some residual 2 facial scarring. His Honour commented, "It has receded or faded but she is still very conscious of it." 5. This case is complicated by the course of proceedings before the learned sentencing judge. His Honour in sentencing used the following expressions:
    "This assault was not an isolated event. It has been alleged,
    and you do not deny, that you have assaulted Rebecca Smith on
    other occasions, both before and after this incident. This is by
    far the most serious. I mention these other assaults only by way
    of background and because it indicates, as I have said, that this
    shocking assault cannot be in any way described as an isolated
    event. I stress that you are not being sentenced or punished for
    those other assaults. You are being sentenced in relation only to
    this assault." 6. During the course of the submissions made to his Honour, counsel for the appellant drew attention to the fact that the sworn declaration of the victim, which was before the committing magistrate, alleged that there were a number of assaults over a period of time. Counsel said: "The Crown, as I understand, in the most recent status conference is not relying on any allegation other than the allegations specifically in support of this count. In any event, my client does not admit the other conduct." His Honour replied: "I can only deal with what he has been charged with." 7. Counsel for the prosecution did not contradict the statement that the Crown was not relying on any allegation other than the allegation specifically in support of the charge. 8. In saying that he could only sentence for what has been charged, the learned judge, of course, was stating what is strictly accurate as a legal proposition. He was entitled, however, to view the facts which constituted the conduct the subject of the charge in the light of surrounding circumstances, including the fact, if it were the fact, that it was not an isolated incident but an incident occurring as part of a course of conduct. He was not entitled to sentence the appellant for any act other than that charged, but he was entitled to view that act in its true context. 9. There are circumstances in which a sentencing judge is entitled to directly sentence for conduct other than that charged. That occurs where the defendant asks that that be done and the prosecution concurs in that course of action. That was not the situation in this case. 10. If that does not occur, the only relevance of the course of conduct is its relevance as the context in which the conduct charged has occurred. Where, as here, a defendant pleads guilty to a charge in the court to which he has been committed for trial, the sentencing judge ordinarily sentences upon the basis of the sworn declarations or depositions. He is entitled to do that unless there is something in the course of the proceedings which precludes that course. 11. If the defence wishes to dispute any of the facts which have been sworn to, it is the defence's responsibility to adduce evidence in contradiction of the contents of the sworn declarations or depositions. 12. Generally speaking, it will not be sufficient for counsel for the defence simply to indicate that those facts are not admitted or denied. This court has pointed out on previous occasions that it is the responsibility of counsel for the defence to decide whether to adduce evidence in contradiction of the contents of the sworn declarations or depositions and if that evidence is not adduced then the judge will act upon the contents of the declarations or depositions. 13. If, however, the judge indicates, either with or without the concurrence of the prosecution, that he will disregard the facts or alleged facts which are in dispute, then, of course, he is bound by that intimation. The defence is entitled to act upon that intimation by not going into evidence and it would then be unjust for the disputed facts to be taken into account in sentencing. 14. I have no doubt that the learned sentencing judge in this case did not intend to convey that he would not have regard to the contents of the declaration, but I think that the expression which he used in response to counsel's submission that his client did not admit that conduct, and that the prosecution had indicated that it would not rely upon it, was calculated unintentionally to mislead the defence into thinking that it need no longer concern itself with any conduct other than that which was directly the subject of the charge. 15. The position is somewhat complicated by the fact that the defence then put before the judge a psychiatric report which made some reference to physical violence occurring in the relationship and might be read as lending some support to the suggestion that there were prior assaults. It is not clear beyond question that that is what is conveyed in the psychiatric report, but it is certainly an interpretation which could well be put upon it. 16. The position is further complicated by the fact that the learned judge, in the course of his sentencing remarks in the passage which I have quoted, referred to "assaults occurring on other occasions both before and after the incident". It appears that the appellant has been charged with an incident alleged to have occurred after the subject incident, indeed about 11 days afterwards, and that he is awaiting trial on that charge. It would be a clear error if his Honour took into account an incident which has been made the subject of a separate charge the truth of which is not yet judicially determined. 17. I think that there is sufficient ambiguity surrounding the course of proceedings before the learned judge for this court to feel unsure as to whether the exercise of the sentencing discretion proceeded upon a proper basis. 18. I am prepared to approach this appeal upon the basis that the sentencing discretion miscarried for the reasons which I have mentioned and that this court ought to form its own opinion as to what is an appropriate sentence for the conduct charged, and in doing so should disregard any conduct other than the specific acts which constitute the conduct charged in the information. 19. This was undoubtedly a serious assault, as the facts which I have recited from the learned judge's remarks clearly indicate. It was a violent assault involving the use of a weapon, namely, a baseball bat, and caused significant injury to the victim. 20. The appellant is aged only 20 years. The victim was his 18 year old girlfriend. He has no prior convictions and he has pleaded guilty. He himself was assaulted in February of the year of the subject assault, the subject assault occurring on 9 August. 21. Following the assault in February, the appellant suffered a post traumatic stress disorder and sought psychiatric assistance for the effect which that assault was thought to have had on him. 22. He was making an effort, as is clear from the psychiatrist's report, to overcome the effects upon his personality and conduct of his own experience. In that he was being supported by his girlfriend, the victim of the present offence, who went to the psychiatrist with him. 23. I think the fact that the appellant was suffering a disturbance of his personality in consequence of violence which he had sustained is a significant mitigating factor in the present case. 24. In considering what is the appropriate sentence for the appellant's conduct, I have reached the conclusion that the proper sentence is significantly less than that which was imposed by the learned sentencing judge. 25. I would sentence the appellant to imprisonment for two years. I think that his relative youth and his prior good conduct and the other matters which I have mentioned make him a reasonably good subject for parole and I would fix a non-parole period of one year. 26. I have given deep consideration to the submissions made by Mr Jamison, in writing and orally, in support of the suspension of the sentence, but I feel that the seriousness of the assault precludes that course. I feel unable to favour the suspension of the sentence. 27. In my opinion, therefore, the appeal should be allowed and in substitution for the order made by the sentencing judge there should be a sentence of imprisonment of two years with a non-parole period of one year, both commencing on 24 May 1993.

JUDGE2 MOHR J I agree with the reasons of the Chief Justice and the order proposed by him.

JUDGE3 BOLLEN J I too agree.