Kirkwood v Thomas - [2017] TASSC 56

[2017] TASSC 56

COURT: SUPREME COURT OF TASMANIA

CITATION: Kirkwood v Thomas [2017] TASSC 56

PARTIES:  KIRKWOOD, Joshua Allan
  v
  THOMAS, Gavin
  MINEHAN, Christopher

FILE NO:  1637/2017
DELIVERED ON:  15 September 2017
DELIVERED AT:  Hobart
HEARING DATE:  15 September 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Sentence manifestly excessive or inadequate – Breaches of family violence order – Oral abuse and multiple abusive and threatening text messages – Sentence of 2 months' imprisonment, cumulative with sentence of 5½ years' imprisonment with non-parole period of 3 years for crimes against same complainant – Not manifestly excessive.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
           Applicant:  J Ker
           Respondents:  E Bill
Solicitors:
           Applicant:  Legal Aid Commission of Tasmania
           Respondents:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 56
Number of paragraphs: 23

Serial No 56/2017
File No 1637/2017

JOSHUA ALLAN KIRKWOOD v GAVIN THOMAS
and CHRISTOPHER MINEHAN

REASONS FOR JUDGMENT BLOW CJ

(DELIVERED ORALLY) 15 September 2017

This is a motion for the review of a sentencing order made by a magistrate, Mr A McKee. The applicant pleaded guilty to two charges of breaching a family violence order. Although there were only two charges, the charges related to nine separate events.
The first charge alleged that he breached the family violence order on 20 September 2015 by calling his former partner a slut. The order prohibited him from directly or indirectly threatening, harassing, abusing or assaulting the complainant. It did not prohibit him from going to her house. She apparently had promised to pay him some money, $5,000, and had not done so. He went to the house in the hope of getting money from her. He rang or knocked on the door or doors. She was there but did not open any door. She was not obliged to. When leaving, the applicant yelled out that the complainant was a slut.
The second complaint relates to eight text messages. They were abusive and threatening text messages. They were sent by the applicant to the complainant over a period of seven days in breach of the family violence order, as follows:
·    The first was sent on Sunday, 20 September 2015. It read, "You really are a peasant still want my money slut."
·    The second was sent at 6.05am on Monday, 21 September. It read, "Still want my money you smelly slut? See you again soon."
·    The third was sent at 12.38pm on the same day. It read, "Where is my money whore."
·    The fourth was sent at 5.21pm on the same day. It read, "Still waiting slut."
·    The fifth was sent at 8.08pm on the same day. It read, "Still need my money slut."
·    The sixth was sent the following day, Tuesday, 22 September, at 10.45am. It read, "Still waiting peasant."
·    The seventh was sent the same day at 5.30pm. It read, "Still waiting slut."
·    The eighth was sent four days later on Saturday, 26 September at 7.06am. It read, "I'm still coming for my money you selfish slut."
The complainant reported the abuse that occurred at the house to the police at the time, and she reported the first seven messages to the police on Wednesday, 23 September 2015.
For those offences the learned magistrate sentenced the applicant to two months' imprisonment, cumulatively with a sentence that he was currently serving. That sentence related to a subsequent attack by the applicant on the complainant.
At about 3am on 21 October 2015, when the complainant was asleep in her bed, the applicant broke into her home, wearing a balaclava and armed with a baseball bat. He gained entry by breaking in, smashing glass. He beat the complainant repeatedly with the baseball bat, swearing at her and abusing her. The attack continued in front of the complainant's daughter who was then 7 years old. The result of that attack was that the complainant had to be taken to hospital and she was left with permanent injuries and severe psychiatric problems.
The judge who sentenced the applicant in relation to the events of that night said:
"From the physical injuries that she sustained she has been left permanently disfigured, and has been left with limited movement in her leg. She has a plate inserted in the back of her hand which is going to remain in place, and she has a rod in her leg which runs from her knee to her ankle which is also going to remain in place for life. It restricts her movement and makes tasks such as climbing stairs painful. In addition to the pain, because of her restricted movement, she also feels that she looks stupid whilst climbing stairs. That break is the one in which she feels the most pain still.
The complainant has permanent bruising on both of her legs which is as a result of soft tissue damage, and, as a result, she has no feeling in areas of her legs. The cold also makes her hand and knee painful. She is no longer able to do simple tasks such as kneeling down on the floor.
The complainant has also been diagnosed with post-traumatic stress disorder, as well as anxiety and depression. She has been seeing a psychologist for the past eight months for trauma counselling, trying to work on these issues as she does not cope well with daily life."
There were also significant psychological effects on the little girl who witnessed the attack on her mother. The complainant has moved interstate and taken the child with her.
In relation to that attack, the applicant pleaded guilty to charges of aggravated burglary and committing an act intended to cause bodily harm contrary to s 170 of the Criminal Code. For those crimes he was sentenced to 5½ years' imprisonment, with a non-parole period of 3 years.
The sentence imposed by the learned magistrate was cumulative with that long sentence. The learned magistrate made no provision for parole in respect of the two-month sentence, as he could have done: Williamson v Lane [2013] TASSC 53, 24 Tas R 258. He could have imposed a non-parole period of one month or more in respect of the two-month cumulative sentence, but did not do so.
The notice to review contains two grounds of review. Ground 1 asserts that the learned magistrate erred in law in failing to give proper effect to the principle of totality. It is because of that ground that I have referred at length to the circumstances of the crimes for which the applicant was sentenced. The second ground asserts that the sentence of two months' imprisonment was manifestly excessive in all the circumstances of the case.
So far as the first ground is concerned, I could only come to a conclusion that the learned magistrate gave insufficient weight to the totality principle if I came to the conclusion that the two-month sentence was manifestly excessive. In addressing the totality principle, one of the factors that needs to be considered is whether the combination of the two sentences is excessive or crushing, having regard to the totality of the offending. As to that, in my view, the judge who imposed the sentence for the crimes committed in October 2015 could well have imposed a sentence of much more than two months more in length. In my view, a sentence of six years' imprisonment, with a non-parole period of four years, would not have been manifestly excessive. An appeal against that sentence was dismissed by the Court of Criminal Appeal: Kirkwood v Tasmania [2017] TASCCA 7. Nothing was said by the Court of Criminal Appeal to indicate that the sentence in question was near the top of the range that the learned sentencing judge could properly have imposed.
However, I do have regard to some comments that were made in relation to cumulative sentences by Anderson J in Vlek v The Queen [1999] WASCA 1038. That was a judgment in the Western Australian Court of Criminal Appeal. Anderson J, with whom Pigeon and Ipp JJ agreed, said:
"I think it is also recognised (and this may be simply another aspect of the totality principle) that when a second sentencing court is considering the imposition of a cumulative sentence, there are mitigating factors arising out of that circumstance itself. When a sentence is to be cumulative on sentences already being served there is usually a discount, and the reasons for this include, no doubt, the instinctive acceptance by sentencing courts that a cumulative sentence is, in itself, a harsher sentence than one of the same length which is to take effect immediately. Jarvis v The Queen …, especially per Ipp J. Furthermore, as was pointed out in Mill, the second sentencing court may see (or assume) that the prisoner has made progress towards rehabilitation during the term of the first sentence. In addition, there is not the same demand for retribution where the prisoner has already suffered loss of liberty and where there has already been an 'emphatic denunciation by the community' of his or her criminal behaviour and attitude. See Cross: 'The English Sentencing System' (Butterworths 1971) at page 104. Neither is there the same requirement in the second sentence for personal deterrence because that most likely will already have been achieved in large measure by the first sentence. In other words, not as much emphasis is required in passing the second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case. Therefore, the conventional sentencing objectives may be able to be achieved by a cumulative sentence which is shorter than the sentence that must properly be imposed when the sentence is not to be cumulative."
Those observations were cited with approval by Crawford CJ with whom Tennent and Wood JJ agreed, in Rae v Tasmania [2010] TASCCA 8 at [21].
I turn to ground 2 of the notice to review, which asserts that the sentence was manifestly excessive. Before I analyse the factors relevant to that sentence, it is necessary to go into some detail in relation to the history of family violence in the relationship between the complainant and the applicant prior to the events for which the learned magistrate imposed the sentence.
It appears from the sentencing comments in the Criminal Court, which were provided to the learned magistrate, that there had been several incidents during October 2014 that led to the making of a police family violence order on 4 November 2014. After that date, the applicant committed a series of offences for which he was subsequently charged and convicted:
· On 1 March 2015 he committed two breaches of the police family violence order, and committed another offence of destroying property.
· On 6 April 2015 he again breached the police family violence order.
In relation to those offences and some other offences, a magistrate fined him $2,240 on 21 May 2015. Shortly before that, on 29 April 2015, a magistrate made the family violence order whose breaches were the subject of the sentence that I am now reviewing.
There were a number of factors that weighed in favour of the learned magistrate imposing a heavy sentence:
·    The offences in question were family violence offences. It cannot be said that this was an aggravating circumstance because the offences for which the applicant was sentenced were offences of breaching a family violence order. Every offence of breaching a family violence order is a family violence offence. But it can be said that Parliament has acknowledged that family violence is a very serious problem in our community, and that in appropriate cases family violence offences call for tough sentences.
·    It is significant that the offences in question were committed over a period starting on a Sunday morning, 20 September 2015, and continuing until the following Saturday morning, 26 September. During that period the applicant breached the family violence order on nine occasions. (No point was taken as to duplicity in relation to the second complaint, which alleged eight breaches.)
·    The breaches were sufficiently troubling for the complainant to report the applicant's conduct to the police.
·    They occurred in a situation where the applicant had previously been fined for breaching a police family violence order several times, and had not been deterred from re-offending.
There were mitigating circumstances that the learned magistrate was required to take into account.
·    I have already referred in detail to the totality principle. The matters referred to by Anderson J in Vlek were matters that were relevant to the sentence that the learned magistrate had to impose.
·    It was relevant that the circumstances giving rise to the applicant's conduct included a degree of frustration arising from the fact that the complainant had promised to give the applicant money and had not done so. However I regard that as a very minor consideration because it often happens that separated couples, after a relationship has broken down, have to have to dealings with one another that result in one party feeling frustrated. The important point is that the frustrated individual must never respond by breaking the law.
·    It counts in the applicant's favour that he pleaded guilty to these charges, and therefore saved the State the inconvenience of a defended hearing, and saved the complainant the ordeal of having to evidence against him on another occasion, she having given evidence in the Criminal Court. However, his plea of guilty would have carried more weight if he had sought to have these charges dealt with under s 385A of the Code at the time of his sentencing, which occurred on 2 September 2016. Ultimately he pleaded guilty to the complaint concerning the text messages on 25 January 2017, and to the complaint regarding oral abuse at the complainant's home on 24 May 2017.
·    It is significant that the learned magistrate was told of steps that the applicant had taken towards rehabilitation since going into prison. His counsel told the learned magistrate that the applicant had completed two family violence programs while in custody, and that he was about to commence a general anger management program. He was also hoping to enter into a drug and alcohol rehabilitation program, but that was being delayed because he still had matters that were before a court.
There were some common mitigating features that were absent in this case. The applicant was not a youth. He was not a first offender. And he certainly did not display any remorse, at least not before the terrible attack on his former partner that occurred on 21 October 2015.
In my view the learned magistrate was entitled to take the view that the offending that occurred in September 2015 warranted a short cumulative sentence of imprisonment. Any sentence other than a sentence of imprisonment would have been inappropriate. Obviously the applicant was not in a position to pay a fine or perform community service. It was open to the learned magistrate to take the view that the offending in question was too serious for him merely to record convictions, and too serious for him merely to impose a concurrent sentence. It was appropriate for him to impose a cumulative sentence for the purposes of denunciation, general deterrence and personal deterrence, although I acknowledge that its effect by way of personal deterrence would be unlikely to add significantly to the effect of the long sentence imposed in the Criminal Court.
The question for me, therefore, is whether, having regard to all of the circumstances that I have referred to, the length of the two-month sentence, with no provision for parole, was such as to make it manifestly excessive for the nine breaches of the family violence order to which it related. Essentially I have to decide whether such a sentence was unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 at 505. It was certainly a tough sentence. But, in my view, it was not out of proportion to the seriousness of the offending on the nine occasions in question in all the circumstances.
The motion to review is therefore dismissed.