KIC v Tennant

[2019] ACTSC 145

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

KIC v Tennant

Citation:

[2019] ACTSC 145

Hearing Date:

23 January 2019

Decision Date:

23 January 2019

Before:

Burns J

Decision:

See [21]

Catchwords:

CRIMINAL LAW – APPEAL – Appeal from the Magistrates Court – appeal from the conviction and the sentence imposed by the magistrate – application to withdraw the appellant’s plea of guilty withdrawn  – consideration of appellant’s evidence –  whether the sentence imposed by the magistrate was manifestly excessive 

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) s 17

Parties:

KIC (Appellant)

Beau Tennant (Respondent)

Representation:

Counsel

J Lawton (Appellant)

J Walker (Respondent)

Solicitors

McKenna Taylor (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 37 of 2018

Decision under appeal:

Court:  ACT Magistrates Court

Before:           Magistrate Boss

Date of Decision:       17 July 2018

Case Title:     Tennant v KIC

Court File Numbers:     CC2018/3491

BURNS J

1.        The present proceedings are based upon an Amended Notice of Appeal lodged on 30 October 2018. Effectively the proceedings before this Court constituted an application by the appellant to withdraw his plea of guilty before the magistrate and also a challenge to the sentence which was imposed by the magistrate.

2.        On 22 December 2017 the appellant was served with an Interim Family Violence Order by an officer of the Australian Federal Police. That Family Violence Order was made by an Acting Registrar of the Magistrates Court on 22 December 2017. The Order, amongst other things, prohibited the appellant from being within 100 metres of the protected person, who was the appellant's wife, except in certain circumstances as set out in the Interim Order.

3.        One of those circumstances was except in relation to the wife of the appellant, when he was facilitating contact handover of the appellant's child, when the distance would be five metres with the protected person's prior consent. Effectively, he was prohibited from being within 100 metres of his wife except in circumstances where they were going to hand over the child according to prior arrangements, when the distance would be five metres.

4.        It was alleged that on 2 March 2018 the appellant breached that order by coming within a distance of 100 metres of the protected person by walking in front of the protected person's house at a time when she was present within the premises.

5.        The police were called on that evening. They attended and arrested the appellant. He was subsequently charged with a breach of the Interim Family Violence Order. That came before the Magistrates Court on a number of occasions until finally, on 17 July 2018, the appellant appeared before Magistrate Boss and was represented by a lawyer. His lawyer entered a plea of guilty to the charge and the prosecutor read the Statement of Facts.

6.        The Statement of Facts alleged that at about 10.13 pm on 2 March 2018 police received a call from the protected person who complained that the appellant was at her location in Watson Street, Turner. Police arrived and observed the protected person and the appellant. The protected person told police that she lived at that location with her daughter and she had seen the appellant walking towards her, west along Masson Street when she took out her rubbish that evening. She ran across the road to hide behind some bushes where she observed the appellant. At that time she said the appellant stopped at her gate. While stationary, the appellant looked into the residence of the protected person's unit.

7.        The appellant then walked off and a short time later returned to the unit. At that time the protected person felt scared and called the police. A short time later the appellant left the area and the protected person returned to her unit to check on the welfare of her daughter. However, the appellant again returned. The protected person observed the neighbour's gate was open and she quickly hid in the rear yard. Whilst hiding in the rear yard, she saw the police arrive and she then approached them. At this time the appellant observed her exit her neighbour's yard. The Statement of Facts alleged that the appellant began to follow her, and that this was in close proximity and well within 100 metres.

8.        According to the Statement of Facts, which was read before the magistrate, the appellant told the police that he was a diabetic and needed to walk to keep his health in order, and that he always walked along Masson Street and that he lives on Masson Street, Turner.

9.        Before the magistrate, on 17 July 2018, the appellant's lawyer attempted to tender a document which had been prepared by another lawyer who had been retained by the appellant, and which purported to set out the circumstances of the incident on 2 March 2018. The magistrate rejected the tender of that document. Her Honour did so effectively on the basis that the contents of the document sought to traverse the plea of guilty which had been entered. In my opinion, the magistrate was incorrect in rejecting the document for that reason. The magistrate was, however, entitled to reject the document on the basis that it was a self-serving document by the appellant, it was not on oath, and he would not be subject to cross-examination by reason of the tender of the document. In my opinion, that did not result in any miscarriage of justice in the way in which the proceedings before the magistrate were concluded.

10.      It was open to the lawyer then representing the appellant at that time to call the appellant to give evidence of those matters which were set out in that document. The lawyer did not do so. Instead the lawyer representing the appellant effectively incorporated the assertions found in that document into her plea in mitigation, which she made on behalf of the appellant. That material was not challenged by the prosecution in the proceedings before the magistrate such that one might well understand that the magistrate would accept that the material put before her by the appellant's lawyer was not challenged by the prosecution.

11.      It is of some concern to me that in her sentencing remarks the magistrate did not deal with those matters which were put to her in the plea in mitigation by the appellant's lawyer relating to the appellant's state of mind about the contents of the Interim Family Violence Order, and how they acted upon his mind that evening. However, to my mind that really does not make any significant difference to the way in which the matter proceeded before the magistrate and, indeed, to the sentence imposed by the magistrate.

12.      In the proceedings before me today, after the appellant gave evidence, Mr Lawton, who now appears on behalf of the appellant, withdrew the application to withdraw the appellant's plea of guilty before the magistrate. Clearly he did so on the basis that on the evidence given by the appellant, he was guilty of the offence on the basis of recklessness.

13.      I must say, having heard the evidence of the appellant and seen him give evidence, that I have the greatest difficulty in accepting the explanation which was provided in the document which the magistrate refused to accept. I also have the greatest difficulty in accepting much of the evidence that he gave before me. It does not make any sense whatsoever that in his circumstances on the evening of 2 March 2018 he would have gone to the area of his wife's property in order to try and find a place where his daughter could wait for him the next day when she was due to visit him.

14.      On his own evidence, the appellant had undergone a procedure to his eyes on 2 March 2018 which resulted in him being unable to see more than one metre in front of him. He went to the area at 10 pm at night. It simply beggars belief that he would have gone to that area at 10 pm with eyesight limited to one metre in order to try and find a place for his daughter to wait for him, which he would then explain to her by telephone or text message. In addition, the appellant did not strike me as being the sort of person who would not have spoken up to his lawyer if he had disagreed with the Statement of Facts that was read in his presence before the magistrate. He is clearly an assertive man, capable of expressing his opinion as to what he believes is the truth. I have no doubt that if he had been taken by surprise by the Statement of Facts and disagreed vehemently with its contents, he would have spoken to his lawyer before she gave her plea in mitigation.

15.      I should also observe that much of the evidence of the appellant was of the nature of blaming other people for his actions on 2 March 2018. He sought to blame his lawyers for his asserted misunderstanding of the Interim Family Violence Order.

16.      I have great difficulty in accepting the proposition that the appellant misunderstood the terms of the Interim Family Violence Order. He is clearly an intelligent man. He has a quite good command of the English language, such that he has, for many years now, worked as a teacher within the school system. The language of the Interim Family Violence Order, to my mind, is not so complicated that he would not have understood his obligations.

17.      I also note that there was no challenge whatsoever to the Statement of Facts that were read before the magistrate. I am not now prepared to find that the events occurred in the way in which the appellant now suggests that they did. On that basis, I propose to proceed on the basis that the circumstances of the offence were as put before the magistrate.

18. It was suggested before the magistrate that a Non-Conviction Order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) may be imposed. The magistrate considered that application but rejected it on the basis of the seriousness of the offence as revealed by the Statement of Facts. Her Honour commented that if the appellant had simply walked past the premises without undertaking any further action, there may well have been some basis for adopting a lenient approach and imposing a Non-Conviction Order. Clearly, in making that statement, her Honour was indicating that she accepted that the Statement of Facts indicated that there was a course of conduct which went well beyond simply walking past the premises. The magistrate was entitled to make that finding.

19.      As I indicated earlier, the magistrate did not specifically refer to the contents of the document which she had rejected but which were then reiterated by the appellant's counsel in her plea in mitigation. However, as I said, that makes no difference because I am satisfied, on the basis of the evidence before me, that that was not the truth, such that it makes no difference that the magistrate may not have taken that into account. The magistrate clearly took into account all of the other relevant issues relating to the application for a Non-Conviction Order.

20.      Before me today, a further letter has been provided on behalf of the appellant speaking of his good character. I accept the submission made by counsel for the respondent to this appeal that this really adds nothing further to the material which was before the magistrate because the magistrate accepted that the appellant was a person of good character. That was not challenged.

21.      In my opinion, no relevant error has been demonstrated in the course of this appeal. It has not been demonstrated that the sentence is manifestly excessive, nor am I satisfied that there was any relevant error which would have affected the outcome of the proceedings before the magistrate, and for those reasons the appeal will be dismissed.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: