Kelleher v Avery

[2017] TASSC 14

[2017] TASSC 14

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Kelleher v Avery [2017] TASSC 14

PARTIES:  KELLEHER, Michael John
  v
  AVERY, Elizabeth

FILE NO:  3097/2016
DELIVERED ON:  1 March 2017
DELIVERED AT:  Hobart
HEARING DATE:  22 February 2017
JUDGMENT OF:  Wood J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Sentence manifestly excessive or inadequate – Three offences of breach of family violence order by sending text messages – Significant number of prior convictions for breaches of family violence order – Sentence of two months' imprisonment manifestly excessive.

Family Violence Act 2004 (Tas), s 35(1).
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  G Barns
             Respondent:  E Bill
Solicitors:
             Applicant:  Simmons Wolfhagen
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2017] TASSC 14
Number of paragraphs:  28

Serial No 14/2017

File No 3097/2016

MICHAEL JOHN KELLEHER v ELIZABETH AVERY

REASONS FOR JUDGMENT  WOOD J

1 March 2017

1. This motion to review relates to a sentence of two months' imprisonment imposed on the applicant, Michael John Kelleher, by Magistrate Mollard on 25 October 2016. The applicant had pleaded guilty in the Magistrates Court to three offences of breach of interim family violence order contrary to s 35(1) of the Family Violence Act 2004, and three offences of breach of bail contrary to s 9 of the Bail Act 1994. The applicant seeks to review the sentence on the ground that it is manifestly excessive.

The offending

1. The applicant and the complainant, Leanne Higgs, had been in a relationship from October 2010 to October 2012. They have one daughter together, Ellie, aged five years.  An interim family violence order was made on 20 October 2015 which included a condition that the applicant:

   "…. not approach Leanne Higgs directly or indirectly including by telephone, email, facsimile, letter, SMS text message, Facebook or any other form of electronic communication, except:

   (a)for the purpose of attending meetings by consent between Leanne Higgs and [the applicant] in the presence of a third party to discuss matters arising out of their relationship or relating to Ellie … (affected child/ren) including counselling, family court conferences and legal aid conferences, and by letter to negotiate such matters;

   (b)for the purpose of contact with the children named above as agreed or as ordered by a court of competent jurisdiction;

   (c)during an appearance in court proceedings involving the parties, or discussions in the court precincts for the purpose of those proceedings and consented to by both parties …".

2. The applicant was charged with three breaches of the order by sending text messages to the complainant on two occasions in December 2015 as follows:

   ·     on 8 December he sent a text message stating, "Hi how is Ellie doing hope she is well…when can I see Ellie please";

   ·     on 10 December he sent a text message stating, "Regardless of our ongoing personal issues …YOU have a responsibility as a parent to Ellie, Ellie has a RIGHT to maintain time spent with me and [contact] ME, as her Dad I also have a legal right to know about Ellie's health and wellbeing. I want to see my DAUGHTER. ASAP";

   ·     again, on 10 December, he sent a text message stating, "Ellie also has a RIGHT to see KAYLA and DANIEL as they also have a RIGHT to see there [sic] little SISTER".

3. The complainant did not respond to the messages and reported the matter to police.  A victim impact statement was not provided to the court and the learned magistrate was not informed of any adverse effects upon the complainant.

4. The same conduct was the subject of three offences of breach of bail, relying on the same particulars.  At the time of offending the applicant was subject to Supreme Court bail which carried a condition that he must comply with any of the conditions of the interim family violence order dated 20 October 2015.

5. There had been an ongoing custody dispute between the applicant and the complainant regarding their daughter since the time of their separation. There had been significant periods of time during which the applicant had not seen his daughter or had regular contact with her. Family law proceedings were on foot at the time of these offences.

Prior convictions

1. The applicant has a significant history of relevant prior convictions, including 46 offences for breach of family violence order; 41 of those offences relate to offending concerning the complainant in this case which occurred between February 2013 and January 2015.

2. The applicant's relevant offending is as follows:

3 x breach of family violence order (Date of offences: 14, 16 June 2007)	Court date 29 June 2007: fine $400
1 x breach of family violence order (Date of offence: 28 June-1 July 2007)	Court date 18 January 2007: fine $100
1 x breach of police family violence order (Date of offence: 3 January 2010)	Court date 10 May 2010: fine $400
1 x breach of bail (Date of offence: 16 August 2011)	Court date 10 May 2012: conviction recorded
1 x breach of interim family violence order (Date of offence: 16 February 2013)	Court date 17 June 2013: fine $600, 12 months' probation	Resentenced 23 December 2013, see below Re-sentenced again 3 November 2014, see below
2 x breach of interim family violence order (Date of offences: 1, 2 February 2013) 1 x breach of family violence order (Date of offence: 30 November 2013) 2 x breach of bail (Date of offences: 15 April, 30 November 2013)	Court date 23 December 2013: 10 weeks' imprisonment from 30 November 2013 balance suspended for 12 months, good behaviour and comply with 12 months' probation	Resentenced 3 November 2014: 11 weeks' imprisonment from 30 January 2014
36 x breach of family violence order (Date of offences: 29, 30 December 2013; 1, 18, 27, 29 January, 4, 6, 7, 12, 13, 14, 23, 24 August 2014) 29 x breach of bail (Date of offences: 4, 6, 7, 12, 13, 14, 23, 24 August 2014)	Court date 3 November 2014: 9 months' imprisonment from 30 January 2014; 3 months suspended on condition good behaviour 3 years	Re-sentenced 15 May 2015: 3 months' imprisonment from 25 January 2015
1 x breach of family violence order (Date of offence: 24 January 2015)	Court date 15 May 2015: 20 days' imprisonment cumulative to 3 months' imprisonment above commencing 25 January 2015

1. The applicant was released on 15 May 2015, having already served the sentences of imprisonment imposed on that date.  As noted, the applicant was sentenced for the offending under review in October 2016.  He had not re-offended since the commission of those offences in December 2015. 

2. The sentencing magistrate was provided with information about the nature of the 41 breaches of family violence order involving the complainant between February 2013 and January 2015:

   "… they are varied. They range from in person, approaches at her residence … Various approaches in person – on occasion, unexpected coincidental meetings in town – various approaches in person via telephone calls. A number of occasions of loitering outside her premises, however, the majority of breaches, probably at least three quarters of them relate to SMS telephone contact. The majority of the breaches did relate to Ellie and custody issues that were ongoing at the time that remain ongoing … ."

3. Further, the prosecutor informed the learned magistrate that of the 41 breaches, all were via telephone except for nine breaches which related to in-person attendances upon the complainant, either in the street or at her residence.

Plea in mitigation

1. The following matters were raised on the applicant's behalf in the plea in mitigation.  In terms of the offending, the applicant's counsel indicated that the text messages were sent at a time when previously arranged access had ceased. 

2. The court heard that the applicant spoke to a police officer before sending the messages to determine whether, according to the terms of the order, he could contact the complainant in relation to their daughter.  It was not disputed by the prosecution that an enquiry of police was made, but it was submitted that the applicant should have been highly alert to the terms of the order, given his previous history, and given that his obligations under the order were reinforced with bail conditions imposed in the Supreme Court.

3. It was submitted that there had been significant change in the applicant's circumstances since the offending in December 2015.  It was noted that consent orders had been made by the Federal Circuit Court on 6 September 2016, providing the applicant with shared and equal parenting responsibility.  The applicant had established his own garden and home maintenance business and he was in a new, supportive relationship.

4. Since the offending, in the intervening period of some 10 months, there had been no further contact between the applicant and the complainant, aside from contact between their solicitors which was authorised under the current family violence order.

5. It was noted that the applicant had sought treatment for his mental health.  The magistrate was provided with a brief report from the applicant's treating psychologist dated 12 October 2016 indicating that the applicant had attended nine appointments between 8 December 2015 and 12 October 2016 under a Mental Health Care Plan.  There had been a reduction in his depression, anxiety and stress.  The report noted that the applicant had disclosed that the primary cause of his stress was not having access to his young daughter.  At the time of the report, he had commenced a happy and stable relationship, was having contact with his daughter, and presented with a more positive affect and attitude.  There were another three sessions with his psychologist that were scheduled.

Sentencing comments

1. At an earlier sentencing hearing the learned magistrate had made a final family violence order with the applicant's consent, in principally the same terms as the interim order, for a period of two years.

2. During sentencing on 25 October, his Honour made the following comments:

   "The second point I would like to make it that, although this psychologist [report] is extremely limited, and that deprives it of weight, there is no reason to doubt its essential contents but, the way in which the writer of that report has written that report and not written anything else, really does limit greatly the extent to which that can have a substantial impact on the outcome of these matters.   

   The defendant has a very poor record of offending, particularly against provisions of the Family Violence Act and associated bail breaches. He has received terms of imprisonment, actual and suspended and breached conditions of those which were suspended. He has other distinctly relevant convictions like driving whilst disqualified. The current breaches are moderate in seriousness. On the one hand they have the characteristics described by defence counsel or rather the lack of more serious characteristics, but on the other, they have other characters [sic] which I will mention in a few moments. And, I would add to the fact that they are moderate in seriousness the comment that, because they mean that the defendant also breached his strict bail conditions, that it rather emphasises the extent to which a deterrent sentence of the stronger kind must be considered.

   It is important that the … defendant's total convictions and their nature be taken into account because they strongly suggest that the defendant is a person of – forgive the harshness of this comment – low and or weak character who lacks respect for road traffic laws, the property of others, the privilege of bail, as well as for victims of his bail breaches and his Family Violence breaches.

   The defendant has not been deterred by fines. He has not been deterred by community service. He has not been deterred by suspended sentences of imprisonment and nor, evidently, has been deterred except perhaps extremely recently by actual terms of imprisonment.

   This offending occurred in December 2015 – only seven months after the sentencing which took place in relation to a very large number of matters in May of that year. I think that, despite the absence of violence, that a sentence of imprisonment is called for. As Ms Avery submitted on the last occasion, the offending was controlling – it was dominating and it flouted orders of the Court … ."

Discussion

1. The learned magistrate obviously and correctly held a stern view about breaches of family violence orders in general.  Breaches of court orders which have as their purpose the protection of a complainant are always a matter of substance.  Approaching breaches in this way counters any misconceptions by defendants that family violence orders need not be taken seriously, and reinforces the effectiveness of family violence orders, and ultimately the protection they afford complainants.  However, there is a spectrum of seriousness in relation to breaches of family violence orders, and the gravity of a particular breach will turn on the nature of the conduct and the circumstances of the breach.  In fixing a sentence the court is obliged to take into account the individual circumstances of each offender. 

2. Relevant factors in assessing the nature and seriousness of the breaches in this case are as follows.  The conduct was not a deliberate breach.  The applicant committed these offences unsure whether he was in breach of the order or not.  Relevantly, he made enquiries with a police officer to ascertain whether or not his conduct would amount to a breach, but remained uncertain.  Objectively, whether the applicant's conduct did in fact amount to a breach was not abundantly clear.  The purpose of his conduct was to arrange contact with his daughter and it can be seen from the terms of the order that that purpose fell within an exception to the prohibition on contact.  However, to qualify as an exception in the circumstances of this case there had to be agreement and that was lacking.  The applicant did not act responsibly; he knew there was a risk that the text messages were a breach of the order and he proceeded regardless.  The point of significance is that this case is to be distinguished from cases involving a blatant and calculated breach of a family violence order. 

3. There are other aspects of this offending which distinguish it from more serious examples of this offence.  The conduct amounting to the breaches was contrary to a prohibition on contacting the complainant, not other conditions such as a condition not to threaten, harass, abuse or assault her.  The contact was indirect, rather than direct.  The conduct was not abusive or threatening.  While all breaches can be presumed to cause some level of stress to complainants, and are potentially harmful resulting from the undermining of a court order, in this case there was no specific harm attributed to the conduct.  It was described by the prosecutor as "controlling and dominating".  However, the applicant's attempt to effect an outcome, that being contact with his daughter, was wholly ineffectual.  It did not control the complainant, and there is no suggestion of any adverse impact on the complainant. 

4. Another factor relevant to the sentence is the applicant's prior convictions which undoubtedly reveal a past disregard for family violence orders.  He is not to be sentenced for that disregard as he has already been punished for that offending, but his criminal history is relevant: "the antecedent criminal history is relevant, … to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.  In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted": Veen v The Queen [No 2] (1988) 164 CLR 465 at 477.

5. It is relevant to note that in this case the offences of breach of the family violence order are not a manifestation of a continuing attitude of disobedience of the law.  They are to be distinguished from such an attitude; they were not deliberate and it does not appear from the information provided to the learned magistrate that the conduct was typical of past offending.  The information about the nature of the past breaches, beyond the fact that many involved the use of a telephone, was scant and it was not disclosed whether a point of distinction was that those earlier breaches involved harassing or abusive content.  

6. Furthermore, this is a case where it was apparent from the applicant's circumstances that a particularly severe penalty was not required to deter him from future offending.  It seemed on all the information before the court that, while in the past, the applicant may have needed a deterrent penalty, and he had in the past received heavy penalties, at the time of sentencing he did not need such a sanction.  There were clear indications of rehabilitation arising from circumstances such as his new business, a new relationship, his recent conduct in abiding by family court orders, and his appointments with a psychologist, resulting in an improvement in his mental health.

7. On any view, a sentence of two months' imprisonment was harsh for three breaches of a family violence order and three breaches of co-existing bail conditions involving three text messages sent on two days that had no specific adverse consequences.  The nature of the offending was not a case of blatant disobedience.  There were prospects of reform and signs that the applicant may already have taken a productive and more mature approach to his circumstances.  The learned magistrate focussed on the applicant's prior convictions in his comments on passing sentence.  It seems that the determination to impose such a heavy sentence resulted from the weight given to his prior convictions.  The resulting sentence is disproportionate to the nature of the offending and, in light of the applicant's personal circumstances, it is unreasonable and plainly unjust.  The motion to review should be allowed. 

8. As for re-sentencing, in view of all the circumstances and noting that the applicant has not re-offended since being sentenced in October last year, I am minded to impose a community service order and a probation order. I consider a tangible penalty which will serve to reinforce to the applicant his obligations of strict compliance with the current orders and any future court orders is appropriate. Section 110(2AA) of the Justices Act 1959 allows this Court to consider matters that have occurred since the offending was dealt with by the learned magistrate. Before proceeding to re-sentence I will give counsel an opportunity to be heard.

Orders

1. Having heard from counsel for the applicant regarding additional matters including further steps taken by the applicant towards his rehabilitation, I make the following orders.

2. The motion to review is allowed and the sentence of imprisonment is quashed.  I impose a community service order of 35 hours and a probation order of 12 months requiring the applicant to not commit an offence which could attract a term of imprisonment, and also that he not breach any current family violence order or any family violence order which may be in place during the currency of the probation order.