John Tuckey v Adrian Ede
[2010] ACTSC 95
•8 September 2010
JOHN TUCKEY v ADRIAN EDE [2010] ACTSC 95 (8 September 2010)
CRIMINAL – appeal from discretionary decision of the Magistrates Court – agreement to plead guilty to lesser charge in return for prosecution agreement not to press for conviction – whether absence of prosecution submissions resulted in miscarriage of justice.
APPEAL – admission of further evidence by consent – admission of evidence on appeal does not necessarily require or permit court to re-sentence – evidence admitted on appeal may be considered in any re-sentencing.
Crimes (Sentencing) Act 2005 (ACT), s 17
Crimes Act 1900 (ACT), s 26A, s 26
Magistrates Court Act 1930 (ACT), s 214, s 214(3), s 214(3)(b), s 214(4), s 216(1)
Criminal Appeal Act 1912 (NSW), subs 6(3)
AB v The Queen (1999) 198 CLR 111
Anderson v The Queen (1996) 18 WAR 244
Billington v Croker (1994) 117 FLR 407
Campbell v Fortey (1986) 24 A Crim R 386
Dinsdale v The Queen (2000) 202 CLR 321
Douar v The Queen (2005) 159 A Crim R 154
Drought v Dreissen [2009] ACTSC 46
GAS v The Queen (2004) 217 CLR 198
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Markarian v The Queen (2006) 228 CLR 357
Petreski v Cargill (1988) 18 FCR 68
R v Burke [2002] NSWCCA 353
R v Duy Duc Nguyen [2006] VSCA 184
Ryan v Adams (1993) 112 FLR 474
Springer v The Queen (2007) 177 A Crim R 13
W [2001] NSWCCA 172
ACT Law Society, Guidelines for contact with the complainant in family violence or sexual assault matters (2003).
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 87 of 2008
Judge: Penfold J
Supreme Court of the ACT
Date: 8 September 2010
IN THE SUPREME COURT OF THE )
) No. SCA 87 of 2008
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JOHN TUCKEY
Applicant
AND:ADRIAN EDE
Respondent
ORDER
Judge: Penfold J
Date: 8 September 2010
Place: Canberra
THE COURT ORDERS THAT:
The appeal is upheld.
The appellant’s conviction is set aside.
Under s 17 of the Crimes (Sentencing) Act 2005, the appellant will not be convicted but will be required to sign an undertaking to comply with his good behaviour obligations for a period of 12 months.
Introduction
John Tuckey has appealed from a conviction imposed in the Magistrates Court in relation to a summary offence of assault under section 26A of the Crimes Act 1900 (ACT).
Background
The offence
At about 10.30 pm on 7 March 2008, the appellant arrived home from drinking at a club with friends. He asked his partner, the complainant, to make him dinner, which she refused to do. They argued, and the appellant kicked a chair at the complainant, breaking it. The complainant threw part of the broken chair at him as he walked away. The appellant responded by slapping her on the left side of her face. She contacted police, who came to their home and observed redness on her face consistent with her story. The appellant was arrested and in due course charged with assault under s 26 of the Crimes Act; he entered a plea of not guilty on 26 March 2008.
Court processes
The appellant appeared again in the Magistrates Court on 8 September 2008, at which point the prosecution amended the charge to a summary charge under s 26A of the Crimes Act and the appellant pleaded guilty. He was sentenced immediately.
In the Magistrates Court, the defence made submissions about the defendant’s contrition and the status of the couple’s relationship, before inviting the Magistrate to make a non-conviction order. Her Honour refused, convicted the appellant, and imposed a 12-month good behaviour order.
Grounds of appeal
At the hearing of the appeal, the appellant was given leave, without objection from the respondent, to amend the notice of appeal. The amended grounds of appeal are as follows:
(a) Her Honour made incorrect findings of fact in relation to the circumstances in which the offence took place. In particular her Honour did not acknowledge that the actions of the appellant occurred after acts of physical aggression from the complainant. Further, that the appellant had an alcohol problem when neither the evidence nor the submissions indicated that alcohol was in any way relevant to the commission of the offence.
(b) Her Honour failed to give notice to the appellant that she was approaching the sentencing task on a different factual basis to that put by the parties in evidence and on submission. The appellant was therefore taken by surprise.
(c) The parties were denied procedural fairness without the prosecution being called upon to address. Although the Magistrate was not bound by any agreed position as to sentence put by the defence and the prosecution her Honour was bound to take submissions of the parties into account into [sic] arriving at an appropriate outcome.
Further evidence
At the appeal hearing, further evidence was, after some discussion, admitted by consent under s 214(3)(b) of the Magistrates Court Act 1930 (ACT). This evidence, contained in two affidavits affirmed by the appellant’s solicitor, related to discussions between the prosecution and the defence immediately before the September 2008 hearing. It is necessary to describe this evidence in some detail.
The first affidavit was affirmed by the appellant’s solicitor, David Nimmo, on 20 March 2009. It recorded (at paragraph 2) a discussion between Mr Nimmo and the prosecutor, Ms Jones, on 5 September 2008 (three days before the Magistrates Court hearing) during which agreement was reached that if Ms Jones amended the s 26 charge to a summary charge under s 26A, the appellant would plead guilty and Ms Jones would not press for a conviction. This agreement was then confirmed between Mr Nimmo and Ms Jones on the day of the Magistrates Court hearing (paragraph 3).
It should be noted that in agreeing to plead guilty to the summary charge of assault, the appellant was only achieving a reduction in the maximum penalty that could be imposed, rather than any change in the nature of the offence charged. The benefit of the amendment of the charge was significant to both the DPP and to the complainant, but arguably less significant to the appellant, who was in any case unlikely to have faced a penalty greater than 6 months imprisonment even if he had maintained his plea of guilty and had been convicted of the original charge after a hearing.
Paragraph 4 of the affidavit is as follows:
As a result of both conversations I was of the firm belief that when the time came for the prosecution to make submissions on sentence they would support the imposition of a non-conviction order.
Counsel for the DPP, in consenting to the admission of this affidavit, emphasised that the DPP could not, and did not, concede anything about the state of mind of the appellant’s solicitor as a result of his conversations with Ms Jones.
The affidavit then refers (paragraphs 6 and 7) to difficulties faced by Mr Nimmo in talking to the complainant, arising from “the relevant practice direction”. This seems to have been a reference to a document issued by the Law Society of the ACT in 2000, and re-issued in 2003, entitled Guidelines for contact with the complainant in family violence or sexual assault matters, which I understand is available to members via the Law Society’s website. The guidelines recommend a generally cautious approach to any contact between a practitioner acting for a person accused of a family violence or sexual offence and the complainant in relation to that offence, and expressly prohibit a practitioner contacting a complainant “for the purpose of persuading or suggesting they not give evidence”.
The second affidavit, affirmed on 28 May 2009, says that Mr Nimmo was hesitant to call the complainant to give evidence, not only because of the obstacles he saw to speaking with her before the hearing but also because the alleged circumstances of the appellant’s offence raised the possibilities that the complainant had also committed an assault and that her initial statements to police might not have been entirely accurate. In these circumstances, he said, he did not wish to risk exposing her to the possibility of incriminating herself in giving evidence in support of the appellant (paragraph 5).
The second affidavit (paragraph 4) referred to the possible discrepancies between the complainant’s allegations to police and the evidence she might give if called at the Magistrates Court hearing as one of the topics of conversation between Mr Nimmo and Ms Jones shortly before that hearing, and said:
We agreed that if the accused was to plead guilty to a lesser charge [Ms Jones] would make submissions not opposing the making of a non-conviction order.
In argument at the appeal hearing, it became apparent that there was disagreement about the meaning of this paragraph. Counsel for the DPP conceded that Ms Jones had agreed not to oppose a non-conviction order, and asserted that this was what she had done at the Magistrates Court hearing. The appellant did not assert that Ms Jones had in fact opposed such an order when sought on behalf of the appellant. However, as indicated in paragraph 4 of the first affidavit, the appellant’s view was that Ms Jones would “support” the making of a non-conviction order (rather than just “not oppose”), and it emerged in argument that the appellant interpreted “support” to mean “make submissions in favour of”.
Once this difference in perceptions had emerged, there was discussion in court about whether the matter would need to be resolved by tendering evidence from Ms Jones about the nature of the agreement that she believed she had reached with Mr Nimmo. After that discussion I indicated to counsel that I did not see any need to hear from Ms Jones, because (for reasons that will become apparent) I did not regard her view of the agreement as fundamental or determinative in the appeal. However I note the advice of the High Court in GAS v The Queen (2004) 217 CLR 198 at [42] that, where there have been dealings between prosecution and defence counsel on subjects which may later be said to have been relevant to the decision of the accused to plead guilty, “In most cases it will be desirable to reduce to writing any agreement that is reached in such discussions”.
The Magistrates Court proceeding
Whatever the real content of the “agreement” between Mr Nimmo and Ms Jones, what happened in the Magistrates Court is clear from the transcript. The original charge was withdrawn and the new charge substituted. The appellant pleaded guilty. Ms Jones read out the police statement of facts, and indicated that the appellant had no criminal record. Ms Jones then said:
And I can indicate, your Honour, I’ve had some discussions with [the complainant], who has indicated that the [appellant’s]-that things have been going more positively in their relationship since the police intervention.
Her Honour then found the offence proved; the transcript records this as “I find the defence proved”, but it is clear from the context that this must be a mis-transcription. She invited submissions from Mr Nimmo, who noted various aspects of the appellant’s personal and domestic circumstances and sought a non-conviction order. Her Honour did not invite submissions from Ms Jones, and Ms Jones did not volunteer anything. Her Honour then explained her intention to convict the appellant:
... the circumstances are rather serious. He comes home at 11.00 o’clock and expects her to make him dinner. She refuses, so he ... becomes violent and he physically assaults her, in a rather demeaning fashion by slapping her on the face ... . I accept that he is a person otherwise of good character but if the problem is alcohol then perhaps he should really see about his alcohol problem. It’s totally inappropriate for any person to behave in this fashion and my concern is that if ... I do proceed without conviction, that he may feel that somehow there is some explanation, or some understanding of his action by this court, and there is no way that I want to give this man any of that sort of an impression at all.
Mr Nimmo said that he had explained that to his client “very clearly”, and her Honour went on to note the need for general and personal deterrence in domestic violence matters. She then said that she would not require the appellant to attend any courses, but that she hoped that if either anger management or alcohol was in fact a problem for him, he would do something about it.
Consideration of appeal
Appeals from discretionary decisions
There are several steps in the process to be taken by a court considering an appeal against a discretionary decision of another judicial officer. Unless the decision is identifiable as manifestly wrong (in relation to a sentence, this usually means manifestly excessive or inadequate), the appeal court must both identify an error in the exercise of the judicial officer’s discretion, and conclude that a different exercise of the discretion would have been appropriate. Having regard to the submissions made in this case, it is useful to set out in more detail these principles as they apply to appeals against sentences.
(a) First, the sentence imposed by the sentencing court is not to be overturned simply because the appeal could have imposed a different sentence in the first instance (Lowndes v The Queen (1999) 195 CLR 665 at 671-672).
(b) Secondly, the sentence may be replaced if the original exercise of the sentencing discretion was affected by a specific error, but only if the appeal court considers that a different sentence is appropriate. That is, if error is found but the original sentence nevertheless appears to be appropriate, the proper approach is to dismiss the appeal rather than to allow the appeal and re-impose the same sentence (in some jurisdictions this approach is expressly provided for—see for instance subs 6(3) of the Criminal Appeal Act 1912 (NSW) and AB v The Queen (1999) 198 CLR 111, Hayne J at [130]; that case involved an appeal from NSW, but Hayne J’s comments are in general terms). Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations (House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 at 324-325; Markarian v The Queen (2006) 228 CLR 357 at 371).
(c) Thirdly, even if no specific error can be identified, the original sentence may be replaced if the sentence is found to be (in the context of an appeal by the offender) manifestly excessive, unreasonable, plainly unjust or plainly wrong. In such a case, error may be inferred, given the finding that the sentence is excessive, unreasonable, unjust or wrong (Dinsdale v The Queen at 340). Furthermore, implicit also in such a finding is the conclusion that a different sentence is appropriate.
(d) Further evidence may be admitted on appeal in various circumstances; the circumstances in which further evidence may be admitted on an appeal from a sentence imposed by a Magistrate are set out in subss 214(3) and (4) of the Magistrates Court Act. In particular, further evidence may be admitted in some cases for the purpose of considering whether a different sentence is appropriate, but generally only after an error has been identified.
In the context of an appeal against the recording of a conviction, I note that whether or not a conviction is technically part of a sentence, the process of determining whether to convict a person who has been found guilty of an offence is a discretionary decision that is, in the ACT and more generally, dealt with in sentencing legislation (s 17, Crimes (Sentencing) Act 2005 (ACT)).
Was there error?
The grounds of appeal do not identify errors on her Honour’s part with any particular clarity, but in argument two possible errors emerged, being:
(a) an error arising from the absence of any prosecution submissions about the defence request for a non-conviction order; and
(b) an error arising from her Honour’s approach to the significance of alcohol in the assault.
Absence of prosecution submissions on non-conviction order
It is clear that whatever had been put to her, the Magistrate was under no obligation to reach a particular conclusion simply because there had been negotiations or even an agreement between the prosecution and the defence about an appropriate outcome of the proceeding (GAS v The Queen). Thus it cannot be said that her Honour, in deciding to convict the appellant, fell into error because the prosecutor had agreed to “support” the making of a non-conviction order (whatever the prosecutor had intended by her agreement). Whether the absence of the relevant submissions by the prosecutor provides another basis for upholding the appeal is considered at [26] to [30] below.
Reference to alcohol
In the course of her remarks, her Honour referred twice to the possibility that the appellant had an alcohol problem, although there was no evidence before her that alcohol had played any part in the offence at all. Her Honour had presumably inferred the possible relevance of alcohol from the words in the police statement of facts that the appellant “returned home from drinking at a club with friends at 10.30 pm”, but there was no evidence that the appellant had been drinking alcohol at the club, let alone that he was adversely affected by it.
The Magistrate’s comments were carefully worded to avoid any finding that the appellant was affected by alcohol. She said:
... but if the problem is alcohol then perhaps he should really see about his alcohol problem... if he does have a problem with alcohol and if alcohol makes him violent, and there’s no suggestion about that, but he better knows and his partner better knows whether or not that is an issue in their relationship. And if it is an issue, then he should be the one to take some action with that.
It is accordingly not possible to find, despite her references to alcohol, that her Honour proceeded on the basis of an error of fact as to the appellant’s use of alcohol.
Was the sentencing process otherwise flawed?
However, posing the question on appeal in terms of whether her Honour had erred may obscure the need that arises in this case, in the light of the evidence admitted on the appeal, to look more broadly at the process that resulted in her Honour convicting the appellant, to determine whether something has gone wrong that needs to be put right by an appeal court. An appeal court may see no basis for the criticism of the judicial officer at first instance that is implicit in a finding that he or she erred in exercising the discretion concerned, but may nevertheless consider, without attributing blame, that there has been a flaw in that process that needs to be addressed; see for instance the examples of when evidence may be admitted on appeal, even where error in the original sentence cannot be demonstrated, set out in Springer v The Queen (2007) 177 A Crim R 13 at [3], and the comment in Anderson v The Queen (1996) 18 WAR 244 at 254 that:
There is now a body of authority in which courts have been prepared to receive additional material on appeal, even if that material relates to matters which have occurred since the passing of sentence, where, if known at the time of sentencing, that evidence might have led to the imposition of a different sentence even in circumstances in which the learned sentencing judge’s discretion has not miscarried.
In the current circumstances, the evidence admitted by consent about the agreement between the prosecutor and the appellant’s counsel indicates that both the appellant and his partner would have been justified in feeling that something had gone wrong in their encounter with the justice system. The appellant had no right to assume that the Magistrate would make the orders that had been agreed between the parties as appropriate (and presumably had been advised to that effect by his lawyers); however, he was entitled to expect that the prosecution’s attitude to a non-conviction order, as indicated to his counsel, would have been articulated during the hearing. He was entitled to expect this because he had agreed to change his plea partly on that basis, and also because, presumably on his instructions, his lawyer had refrained from calling the appellant’s partner to give evidence that could have put her in a difficult position having regard to what she had previously told the police. As already mentioned, apart from the agreement about the non-conviction order, the appellant had if anything less to gain from his agreement to plead guilty than either the prosecutor or the complainant.
The appellant’s partner, too, might legitimately have felt that a process that until then appeared to have properly balanced her immediate and longer-term needs had suddenly veered off course, leaving her and her partner in an unexpected and unfortunate position.
The appellant might also have been concerned by her Honour’s references to the possibility that he had an alcohol problem. In the absence of any evidence to that effect, there is no reason why the appellant’s lawyers would have either called any evidence, or made any submissions, to refute the suggestion or to indicate that the appellant had already sought to address the problem. Despite the absence of any finding by her Honour about the relevance of alcohol (a subtlety not necessarily apparent to a layperson such as the appellant), the appellant could reasonably have felt that her Honour’s attitude to him and to his lawyer’s submissions had been coloured by her suspicions or even assumptions that alcohol had contributed to his offence, and he would not have been reassured by a finding that there was no relevant appellable error in her remarks.
Thus, given the failure of her Honour to invite prosecution submissions on the defence request for a non-conviction order, and the failure of the prosecutor to volunteer the fact that she did not oppose such an order, it is easy to see how the appellant, and his partner the complainant, could have left the Magistrates Court feeling that they had been involved in an unsatisfactory and fundamentally unfair process possibly amounting to a miscarriage of justice.
The possibility of miscarriage of justice arising from a failure to put certain material before the court was noted in AB v The Queen. McHugh J (in dissent but not as to this issue), having concluded that the sentencing judge had not erred in failing to take account of material that was not put before him, considered at [23] to [28] whether there was nevertheless a miscarriage of justice arising out of the failure to put that material before his Honour, but concluded at [28] that because of the nature of the material there had been no miscarriage of justice. Kirby J, in the majority, at [95] noted that if any such failure had been the fault of the appellant or his solicitor the High Court would have had to ignore it.
Significance of further evidence
Counsel for the appellant referred me to Petreski v Cargill (1988) 18 FCR 68 (Petreski), which he said appeared to be authority for the proposition that there is no need for an appeal court to find error if further evidence is admitted on appeal, and that the receipt of such evidence of itself permits the court to move directly to resentence the appellant.
The relevant passage in Petreski at 75 is as follows:
In those circumstances we are of opinion that Miles CJ was correct in the conclusion to which he came, namely, that he should not interfere with the magistrate’s decision unless he found an error of principle or fact of the kind contemplated in House or came to the conclusion that the sentences were manifestly excessive. ... We should qualify what we have said by saying, as Miles CJ did in the judgment under appeal, that the position may be different in cases where additional evidence has been led because it may change the factual matrix which the Court is obliged to consider. But unless that occurs, the position is governed by s 214(2) which does not, in our opinion, contain language which would suggest that the legislature did not intend the ordinary rule to apply.
Petreski was relied on in Ryan v Adams (1993) 112 FLR 474 and Billington v Croker (1994) 117 FLR 407, but only as authority for the requirement to find error on an appeal against a discretionary decision.
It seems to me that counsel has read too much into the statement in Petreski that “the position may be different in cases where additional evidence has been led because it may change the factual matrix which the court is obliged to consider”. I do not think that the statement means that as soon as additional evidence is admitted the court may or must re‑sentence, and if it does, I consider that it should probably not be followed. A preferable approach in my view is that applied, for instance, in R v Burke [2002] NSWCCA 353 at [89], in which Sperling J (with whom Giles JA and Levine J agreed) said:
It follows that where fresh evidence has been admitted on an appeal against sentence, that does not mean that the sentence should necessarily be quashed and the offender re-sentenced by the appellate court, even if it is thought that the new material would or might have led the sentencing court to a different result. As Sully J said in W [2001] NSWCCA 172, at [26]:
34. It is one thing to say that the primary sentencing Judge, had his Honour been aware of this material, ought to have taken [it] into account, and might well have come on that basis to an end result more favourable to the applicant than the result reached. It is an entirely different thing to say that it necessarily follows in such a case that this Court will, without more, interfere with what in fact happened in the Court below.
That decision was followed by the New South Wales Court of Criminal Appeal in Douar v The Queen (2005) 159 A Crim R 154 (Douar) at [123].
Counsel also referred in general terms to a then recent decision of mine in the case of Drought v Driessen [2009] ACTSC 46 (7 May 2009); that appeal decision did rely on the admission of evidence on appeal that corrected important details of the appellant’s criminal history, but the errors in the criminal history seemed to me to mean that the sentencing Magistrate had proceeded on the basis of a mistake of fact, thus bringing the appeal within the normal principles for appeals against sentences. That decision, however, also referred, without accepting it, to an “ingenious” argument put by the appellant, in reliance on the remarks of Miles CJ in Campbell v Fortey (1986) 24 A Crim R 386 at 390, to the effect that a claim that a lesser penalty would have been appropriate is itself a ground of appeal. I am not convinced that this is what Miles CJ was saying in that case, and I am equally not convinced that if he was advancing that proposition he was correct to do so (see Lowndes v The Queen at [19(a)] above).
In the context of the more orthodox principle that there will only be a re-sentencing if the court is satisfied that a different sentence is appropriate, the admission of evidence on appeal may, but will not necessarily, lead to the appellant being re-sentenced. It may be that commonly the decision to admit further evidence in fact flags the court’s view that the further evidence reveals a problem that needs to be addressed by re-sentencing, but this is not the same as saying that the mere receipt of further evidence leads immediately to resentencing.
Not only does the admission of evidence on appeal not automatically lead to re-sentencing, but the admission of evidence on appeal is not itself automatic. The question whether evidence may be admitted on appeal seems in the ACT to be governed by a complex legal matrix consisting of s 214 of the Magistrates Court Act and whatever common law applies in the context of that section. The exact content of that legal matrix was not argued before me, given that both parties consented to the admission of the evidence in question, and in those circumstances I do not propose to try to make sense of the larger question.
I do note, however, that the evidence in question here does not seem to fit neatly into the categories of evidence commonly dealt with in the legislation or the cases about the admission of evidence on appeal, since it is neither:
(a) evidence in relation to events which could have been brought to the attention of the sentencing court (s 214(4), Magistrates Court Act); nor
(b) evidence in relation to events occurring after the imposition of sentence (see, for instance, R v Duy Duc Nguyen [2006] VSCA 184 at [36]; Springer v The Queen at [2] and [3]).
The evidence admitted by consent in this case is of events occurring before the sentencing process which would not themselves have properly been the subject of evidence before the sentencing Magistrate, but which took on a particular significance as a result of the progress of the sentencing process as such. No authority dealing with that particular kind of evidence was identified during the appeal, and as already mentioned the evidence was admitted by consent in reliance on s 214(3)(b) of the Magistrates Court Act without any argument at that stage about the specific relevance of the evidence or the use to which it could be put. For that reason, as well as the fact that s 214(3) of the Magistrates Court Act says that the Supreme Court “must ... (b) receive evidence with the consent of the parties to the appeal” (emphasis added), I do not consider that there would have been any basis on which to refuse to admit the evidence.
As indicated, I do not accept counsel’s argument that an admission of that evidence necessarily requires me to re-sentence the appellant. Nor do I consider that the identification of a problem with the sentencing process that did not involve a particular error on her Honour’s part has taken the appeal outside other broad principles of sentencing appeals, specifically that the court should not “tinker” with an original sentence, and that it should not uphold the appeal unless satisfied that another sentence is appropriate. On the other hand I do consider that the appropriateness of the sentence now falls to be determined in the context of all the evidence available to the appeal court, including any further evidence admitted on appeal (Douar [at 91]; the analysis at [116] to [124], although expressly referring to evidence of post-sentence conduct, also seems to be relevant).
Is another sentence appropriate?
Counsel for the appellant made submissions for any possible re-sentencing which again sought a non-conviction order under s 17 of the Crimes (Sentencing) Act. That section requires a court to consider the following matters in deciding whether to make a non-conviction order:
(a) the offender’s character, antecedents, age, health and mental condition;
(b) the seriousness of the offence;
(c) any extenuating circumstances in which the offence was committed.
Counsel’s submissions noted:
(a) that the appellant was 48 years old at the time of the offence, and had no criminal record, nor any identified problem with alcohol or anger management;
(b) that the offence was an isolated incident in which there was an argument between the parties in which the complainant also took part and that the sentencing Magistrate had accepted it as a less serious example of the offence charged;
(c) that the appellant and his partner the complainant had been reconciled and were again living together with their young child;
(d) that the appellant had a sound employment record, having been a public servant for 25 years before retiring to take up public service work as a contractor;
(e) that the appellant had already received some punishment through spending a night in police custody after the offence and being excluded from the family home for more than three weeks by his bail conditions;
(f) that the conviction could create some difficulties for the appellant in any application for a visa to allow him to visit his partner’s family in Vietnam.
In these circumstances, a conviction is not a necessary part of expressing the community’s disapproval of the appellant’s behaviour, and I am satisfied that the appropriate order in this case would be an order under s 17 imposing a good behaviour order without convicting the appellant.
Conclusions
Accordingly, I am satisfied that the appeal should be allowed, because of:
(a) my finding, having regard among other things to the further evidence, admitted by consent, about the agreement made between the prosecution and the defence before the hearing, that the sentencing process in the Magistrates Court was flawed; and
(b) my conclusion that, for reasons set out above, another sentence is appropriate in this case.
However, the appellant should not interpret this conclusion as in any sense condoning of his use of physical violence on his partner (or anyone else for that matter). Rather, it is a recognition that while it is vital for domestic violence to be taken seriously by the police and the prosecuting authorities and the courts, it is also important for a victim of domestic violence to be able to call for help when she needs it in the belief that after her immediate needs have been addressed, the longer-term consequences of the call for help will be decided in a calmer environment in which her longer-term interests and wishes will also receive recognition. The appellant should be aware however, that if there were any repetition of this kind of behaviour by him, I expect that a sentencing court would take it very seriously.
I note also that since the Magistrate’s orders were stayed by the appeal (Magistrates Court Act, s 216(1)), the good behaviour order that I shall impose will begin to run from today, and the appellant will need to remain of good behaviour for 12 months from now.
Orders
Accordingly, the orders are as follows:
(a)the appeal is upheld;
(b)the appellant’s conviction is set aside;
(c)under s 17 of the Crimes (Sentencing) Act, the appellant will not be convicted but will be required to sign an undertaking to comply with his good behaviour obligations for a period of 12 months.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 8 September 2010
Counsel for the appellant: Mr K Archer
Solicitor for the appellant: Capon & Hubert Lawyers & Mediators
Counsel for the respondent: Mr S Drumgold
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 29 May 2009
Date of judgment: 8 September 2010
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