Joseph Turrise v Loryn Hunter
[2008] ACTSC 128
•27 November 2008
JOSEPH TURRISE v LORYN HUNTER
[2008] ACTSC 128 (27 November 2008)
APPEAL – appeal from decision of the Magistrates Court of the ACT – appeal against sentence – appellant on parole at time of committing the offence – breach of core conditions of parole by committing an offence – cancellation of parole order – time spent in custody – service of unexpired sentence
CRIMINAL LAW – sentencing – sentencing discretion of Magistrate – maximum penalty for offence – “worst category of case” principle – sentences imposed for like offences – discount for plea of guilty where negotiations lead to significant editing of the statement of facts
Crimes Act 1900 (ACT), s 24(1)
Crimes (Sentencing) Act 2005 (ACT), s 66, s 71, s 72, s 74, s 75
Crimes (Sentence Administration) Act 2005 (ACT), s 139
Magistrates Court Act1930 (ACT), s 92A
Explanatory Memorandum to the Crimes (Sentence Administration) Act 2005 (ACT), 30 June 2005
R v Anthony Mark Ward [2007] ACTSC (12 September 2007)
Anthony Mark Ward v The Queen [2008] ACTCA 5 (26 February 2008)
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 36 of 2008
Judge: Higgins CJ
Supreme Court of the ACT
Date: 27 November 2008
IN THE SUPREME COURT OF THE )
) No. SCA 36 of 2008
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JOSEPH TURRISE
Appellant
AND:LORYN HUNTER
Respondent
ORDER
Judge: Higgins CJ
Date: 27 November 2008
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The recording of the convictions be confirmed, but the sentences be otherwise set aside.
In lieu thereof, the appellant be sentenced to 18 months imprisonment upon the first charge and six months imprisonment on the second charge cumulative as to three months only.
The parole order be cancelled as from 14 March 2008 and the appellant be committed to prison for one year 11 months from that date. That sentence is to expire on 12 February 2009. To take account of time spent in custody for these offences, the sentence so imposed is to be concurrent as to nine months with the existing sentence. The head sentence is to expire on 14 February 2010. The non-parole period be re-set to expire on 14 May 2009
This is an appeal against a sentence imposed on the appellant by Magistrate Doogan on 15 April 2008.
On that date, the appellant was convicted of assault occasioning actual bodily harm and common assault.
On the first matter, her Honour, upon conviction for both matters, sentenced the appellant to two years imprisonment. On the second matter she sentenced the appellant to six months imprisonment, cumulative upon the first sentence. The appellant was then subject to a parole order, revoked by the convictions with the unexpired sentence due to expire, taking account of time in custody, on 9 November 2011. The new sentence was to commence on 10 December 2007 with a non-parole period of 24 months.
The learned Magistrate was told that the facts were, as contained in a heavily edited version of the police statement of facts. I set that out as presented to her Honour.
About 1.10 am on Monday 10 December 2007 Joseph David TURRISE (DOB 12/10/1975), the Defendant now before the Court, and his fiancee, Ms Sharleen ALLEN returned to their residence at 50 Majura Avenue, Ainslie, in the Australian Capital Territory (ACT).
The Defendant and Ms ALLEN have known each other, since February 2007. They are engaged to be married and have been cohabitating at the Defendant’s parent’s [sic] house for the past two months.
The Defendant and Ms ALLEN had been attending a Christmas Party at the Canberra Casino. The Defendant and Ms ALLEN had both consumed some alcohol at the Christmas Party, and an argument had begun over another female present at the Christmas party.
Upon their return home, the Defendant and Ms ALLEN went to their bedroom on the second floor of the house. The Defendant and Ms ALLEN were both lying on the bed fully clothed.
Ms ALLEN then sat up on the bed. At this time the Defendant placed a hand over her face. Ms ALLEN had difficulty breathing. Ms ALLEN screamed and yelled out for the Defendant to stop. She pushed the Defendant away from her, and managed to get up off the bed.
Jane TURRISE (DOB 07/01/1977), the Defendant’s Sister [sic], was in the bedroom next door to the Defendant and Ms ALLEN. Ms TURRISE heard Ms ALLEN screaming and ran to the Defendant’s bedroom and banged her hands on the closed door yelling.
The argument escalated and the Defendant told Ms ALLEN to leave the house. Ms ALLEN began to pack an overnight bag and the Defendant pushed Ms ALLEN telling her to hurry up. Shortly after this the Defendant picked up a wooden drawer, which is from a chest of draws, off the bed. The Defendant then threw it at Ms ALLEN, striking her on the back of her head. Ms ALLEN sustained a deep laceration as a result of this.
Ms ALLEN regained her footing and took the keys to her car and left the bedroom, going down the stairs. At this time the Defendant yelled at his Sister, Ms ALLEN [sic – Ms TURRISE]:
“Stay out of my business!”
Whilst on the landing at the top of the stairs the Defendant pushed Ms ALLEN causing her to fall up against the wall. At this time the Defendant’s Mother came to the top of the stairs, after having heard the disturbance. The Defendant raised his leg and kicked forward striking her in the stomach. Mrs TURRISE fell over, landing on her back.
The Defendant then followed Ms ALLEN down the stairs and out of the house into the front garden. Ms ALLEN thought she saw a Police car drive past the house, and signalled for it to stop with her arms. The Defendant saw this and yelled at Ms ALLEN:
“You’ve called the Police haven’t you? There goes my parole!”
Ms ALLEN repeatedly told the Defendant she had not called Police. Ms ALLEN showed the Defendant her empty hands telling him that she did have her mobile phone on her.
At this time the Defendant again approached Ms ALLEN and pulled her towards the house.
The Defendant was yelling at Ms ALLEN:
“Looked [sic] what you’ve done. Get back inside. There goes my parole.”
The Defendant and Ms ALLEN returned to their bedroom.
About 1.16 am Police were contacted by Joseph TURRISE, the Defendant’s Father, in relation to a violent disturbance at the location.
About 1.20 am Police arrived at the address. Upon arrival Police were met at the front door to the premises by Mrs TURRISE.
Police observed Mrs TURRISE was shaken and upset. Police asked if she was ok and she stated she had been kicked in the stomach by the defendant. Mrs TURRISE expressed more concern for Ms ALLEN’s welfare and indicated to Police that she and the Defendant were both up the stairs.
Police went upstairs and knocked on the Defendant’s bedroom door. The Defendant opened and Police observed Ms ALLEN standing next to the wardrobe. She was shaking and cowering from the Defendant who was sitting a couple of meters [sic] away, on the bed. Police observed a large amount of blood matted in Ms ALLEN’s hair and drops of blood on her t-shirt. Police also observed a large pool of blood on the blanket over the bed and the pillows.
Police escorted Ms ALLEN downstairs. She was obviously distressed; she was crying uncontrollably and shaking. Ms ALLEN stated to Police she did not want the Defendant to come near her, she expressed concerns he may continue to harm her.
Police also spoke with Mrs TURRISE who was shaken and complained of pains in the stomach.
Police spoke with the Defendant in his bedroom upstairs. Whilst speaking with the Defendant Police observed he had red bloodshot eyes, was slurring his speech, and had a smell of intoxicating liquor. The Defendant became agitated and emotional. Police formed the opinion the Defendant was mildly affected by intoxicating liquor.
The Defendant stated Ms ALLEN had ‘gone off’ and he tried to protect himself from her. He stated she scratched and bit him. Police observed some small scratches on the Defendant’s neck, however could not see any other injuries on him. Police noted that Ms ALLEN is a female of small stature and size.
Police asked the Defendant how Ms ALLEN received the injury to her head. The Defendant stated that he ‘flung the draw [sic] around’ and that knocked her down.
Police placed the Defendant under arrest and escorted him to the rear of the Police caged vehicle.
Ms ALLEN was assessed by ACT Ambulance and conveyed to Calvary Hospital for further treatment. Ms ALLEN has eight stiches [sic] in her head as a result of the laceration to her head, a large craze [sic] on her left thigh and bruising to her left forearm.
Police have not offered the Defendant the opportunity to participate in a taped record of interview at this stage, due to his level of intoxication.
At no time did Ms ALLEN give the Defendant permission to assault her.
At no time did Mrs TURRISE give the Defendant permission to assault her.
Her Honour remarked in sentencing the appellant that he was entitled only to a minimal discount for his plea of guilty. She considered he had delayed his guilty plea so as to serve his time at the Remand Centre.
She concluded:
So the facts reveal a sustained attack upon Ms Allen which continued, even after the police arrived …
Her Honour noted the appellant’s extensive record, including other assaults. He was on parole at the time of the assault, committed by him, upon his partner and his mother.
Her Honour took account of the appellant’s history of drug and alcohol abuse, though she noted that he had more recently been drug free, prior to the current offences, though clearly he had not been alcohol free.
She acknowledged that, as a consequence of brain injury, the appellant had “poor impulse control, an inability to take into account consequences”.
She had before her a pre-sentence report which, under “Current Offences”, set out a version of the incident given by the appellant. That was:
Mr Turrise said on the night of the offence he thought everything was ‘going well’. He said his relationship seemed to be okay and he went out with his partner to her work Christmas function. He said while they were there he enjoyed the party and had 4 x ‘small plastic cups of beer’, which he believes was light beer and were about the size of midi glasses. He said he consumed this amount over about three to four hours as he was driving and did not want to be over the legal limit.
He said when he arrived home his partner became upset and an argument developed over another woman looking at Mr Turrise at the function.
Mr Turrise said his partner let out an exceptionally loud scream, which made him uncomfortable as his parents and his sister were in the house also. He said he closed the bedroom door and his partner picked up his computer monitor and threw it on the floor. He said he told her she should get her things and leave.
Mr Turrise said his family started telling him to quieten down. He said he started pulling his partner’s clothes out of his drawers and then pulled out a drawer and threw it, which hit her in the head. He said he did not realise the drawer had hit her in the head at the time.
He said he opened his door and everything was dark. He said he kicked out and kicked his mother, which he did not mean to do. Mr Turrise said, “I do not know why I did that. I cannot understand why I would do that to my own mother.”
He reported that he also said he was going to ‘kill’ his father for calling the Police but said he would never do that or hurt his father and claimed it was just a figure of speech. Mr Turrise said he went willingly with the Police when they arrived.
Mr Turrise said, “I am very remorseful, I have hurt those who love me, those who have supported me unconditionally”. He reported that he wants to become a better person and that he is prepared to do anything required of him to achieve this and to live a peaceful life.
Mr Turrise expressed a considerable amount of remorse in relation to the current offence and appeared to be particularly disturbed by his behaviour and the impact it has had on those he loves.
Whilst in BRC Mr Turrise wrote an extensive document which he passed onto his Probation and Parole Officer. In his letter he expressed remorse for his behaviour, hope for support to change his offending behaviour and concerns that he has for his victims. This document has been passed on to Mr Turrise’s solicitor.
Her Honour was not persuaded that, insofar as that version differed from the police statements of facts, it should be accepted.
However, her Honour did acknowledge that the appellant had expressed remorse, but found that it was an aggravating factor that he was on parole and intoxicated when the offences occurred.
Her Honour’s sentence was intended to add two years to the time to be spent in custody before eligibility for parole.
On the hearing of the appeal, Mr Sharman, for the appellant, noted that the existing parole order was cancelled on 14 March 2008 by virtue of the convictions then recorded. The appellant had been in custody on remand from 10 December 2007.
In those circumstances, an issue arose as to the correct interpretation of s 139 of the Crimes (Sentence Administration) Act 2005 (ACT) (“the Crimes (Sentence Administration) Act”). That provides:
139 Parole—effect of custody during order
(1) An offender is taken, during a period, to be serving the sentence of imprisonment for which parole was granted if—
(a)the offender is taken into lawful custody during the period while on parole; and
(b)the custody is only in relation to the offender’s parole obligations.
(2) To remove any doubt, the offender is not taken to be serving the sentence of imprisonment for which the parole was granted if the reason for the custody is, or includes, anything other than the offender’s parole obligations.
Ms Mackenzie, for the respondent, submitted that this section had the effect that an offender on parole breaches the core conditions of parole by committing an offence. The issue was as to the status of the period in custody that then followed. Was it service of the sentence unexpired under the parole order?
Certainly, if an offender is taken into custody by reason of an allegation of breach of parole conditions, then that period in custody is regarded as service, to that extent, of the unexpired sentence in respect of which the parole order had been made.
However, s 139(2) makes it clear that the time so served will count towards the unexpired sentence, only if the breach of parole is the only reason for the detention in custody of the offender.
In this case, it was clear that the time spent in custody prior to sentencing before her Honour was not by reason of an allegation of breach of parole conditions, even though, if the offence alleged had been proved, that would be a breach of parole conditions.
Of course, upon conviction, on 15 April 2008, s 149 of the Crimes (Sentence Administration) Act provides that the parole order is thereby cancelled. Section 161 then requires that the offender be held in full-time custody serving, subject to s 139 (if applicable), the balance of the sentence imposed.
As a matter of policy, it is acknowledged in the Explanatory Memorandum for the Act (Explanatory Memorandum to the Crimes (Sentence Administration) Act 2005 (ACT), 30 June 2005) that s 139 is intended to give effect to a “no ‘clean street time’ while on parole” policy. That is, that even if a breach or cancellation occurs after almost all the parole period is successfully completed, the whole of the then unexpired sentence must still be served. The offender might be admitted again to parole with the remainder of the then unexpired sentence to be served.
It was agreed that, as at 15 April 2008, there was one year 11 months unexpired of the previous sentence remaining. Her Honour intended a sentence of 30 months to start on 10 December 2007, and end on 9 June 2010, with the unexpired sentence adding to that, so that the combined sentence would be four years and five months with a non-parole period of 24 months ending on 9 November 2011.
The appellant contends that the learned Magistrate failed to give due weight to the appellant’s brain injury, imposed the maximum sentence, failed to give a discount for the guilty plea, albeit it was late, and increased the sentence because of the “aggravating factors” that:
(a) he was on parole at the time of the offences;
(b) he was intoxicated;
(c) it was an “extremely violent attack”;
(d) he had a serious criminal history.
These can be shortly dealt with for the most part. The maximum penalty was not two years, though her Honour’s sentencing discretion was so limited. The maximum penalty for the first offence was five year’s imprisonment (s 24(1) the Crimes Act 1900 (ACT)). If the learned Magistrate considered a penalty of more than two years was appropriate, it was open to her to commit the appellant for sentence to this Court (see s 92A the Magistrates Court Act1930 (ACT)).
It is not appropriate to apply the “worst category of case” principle to a sentence less than the maximum provided by law simply because it is at the limit of the Magistrate’s sentencing discretion.
I do not read her Honour’s sentencing remarks as indicating anything other than a rejection of the appellant’s claim for leniency. “Aggravating factors” do result in a greater sentence than otherwise, but, that sentence must not exceed the appropriate sentence for the particular offence.
It is true that her Honour did not expressly quantify any discount for the plea of guilty. She did say it could only be minimal.
She did not regard the appellant’s remorse as genuine. It is true that the pre-sentence reporter did, but, for it to be an error for her Honour to fail to accept that, it would have to be in the category of undisputed evidence. It was not. Her Honour gave cogent reasons for doubting the sincerity of the appellant’s remorse.
Mr Sharman contended that her Honour erred in failing to accept that the appellant had not intended to hit the victim with the drawer he threw in her direction.
Ms Mackenzie conceded that the calculation of the non-parole period had not appropriately taken into account the time spent in custody. She further conceded that, even allowing that the assault occasioning actual bodily harm was a serious offence and, even if the appellant had not intended to strike the complainant with the drawer, it was a serious example of such an offence, there was, nevertheless, no case where a sentence of as much as two years had been imposed for a like offence. The most serious previous case was R v Anthony Mark Ward [2007] ACTSC (12 September 2007, Crispin J) where 12 months was imposed. An appeal against that sentence was dismissed by the Court of Appeal of the Australian Capital Territory on 26 February 2008.
Ms Mackenzie further conceded that total accumulation of the sentences for the two assaults, the second being an extension of the first, could not be justified.
It was also apparent that, though the plea to the first charge was offered some three months after the event, it followed considerable negotiations leading to a significant editing of the statement of facts. It may, therefore, be concluded that her Honour’s inference that the late plea was not indicative of more than a desire to delay the inevitable was incorrect.
In the result, I would uphold the appeal. I would regard 18 months as an appropriate sentence upon the first charge and six months on the second but that second sentence should be cumulative as to three months only. The convictions stand, as from 15 April 2008, the parole order is cancelled as from that date and, pursuant to s 161 of the Crimes (Sentencing Administration) Act, the appellant is committed to prison for one year 11 months from that date. That sentence will expire on 12 February 2009. To take account of time spent in custody for these offences, the sentence so imposed should be concurrent with the existing sentence as to nine months of it.
I note that if an offender serving an unexpired sentence is sentenced to a further term of imprisonment, the correct course pursuant to s 66 of the Crimes (Sentencing) Act 2005 (ACT) (“the Crimes (Sentencing) Act”) is to take the existing sentence and add to it the primary sentence, that is, the new sentence and then reset the non-parole period but not so as to permit release on parole earlier than would be the case under the existing sentence. That period, in this case, had already expired. Thus to defer parole eligibility could be achieved by extending the non-parole period under the existing sentence.
The primary sentence may, pursuant to s 71 of the Crimes (Sentencing) Act (subject to s 72) be made concurrent with the existing sentence or partly so. Under s 74 if a sentence is amended on appeal the starting day of any of the sentences whether existing or not may be back dated.
In the present case therefore, pursuant to s 75, I note that the unexpired sentence was a sentence of six years from 9 October 2002. The non-parole period was three years.
The primary sentence I have imposed, as amended, is 21 months.
It follows that the existing sentence is six years commencing 15 April 2002. To take account of time spent in custody for these offences the primary sentence will commence on 10 December 2007 expiring 10 September 2009.
I reset the non-parole period commencing 9 October 2005 to 9 April 2009, that is three years six months.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 27 November 2008
Counsel for the appellant: Mr T Sharman
Solicitor for the appellant: Rachel Bird and Co
Counsel for the respondent: Ms K Mackenzie
Solicitor for the respondent: Director of Public Prosecutions (ACT)
Date of hearing: 27 August 2008
Date of judgment: 27 November 2008
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