Lachlan Douglass v Rali Hartigan
[2011] ACTSC 30
•1 March 2011
LACHLAN DOUGLASS v RALI HARTIGAN
[2011] ACTSC 30 (1 March 2011)
APPEAL – appeal from ACT Magistrates Court – appeal against conviction – s 17 Crimes (Sentencing) Act 2005 – non-conviction order – can replace existing sentence if satisfied that specific error occurred – whether Magistrate failed to take into account considerations he should have taken into account – no specific error found – appeal dismissed
Crimes Sentencing Act 2005 (ACT), s 17
Magistrates Court Act 1930 (ACT), s 214
Evans v The Queen (2007) 235 CLR 521
Harper v Low & Wood [2009] ACTSC 136
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 36 of 2010
Judge: Teague AJ
Supreme Court of the ACT
Date: 1 March 2011
IN THE SUPREME COURT OF THE )
) No. SCA 36 of 2010
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:LACHLAN DOUGLASS
Appellant
AND:RALI HARTIGAN
Respondent
ORDER
Judge: Teague AJ
Date: 1 March 2011
Place: Canberra
THE COURT ORDERS THAT:
The appeal is dismissed.
This is an appeal from the decision of a magistrate under s 214 of the Magistrates Court Act 1930 (ACT). The appellant pleaded guilty in the Magistrates Court to one charge of common assault and one charge of damaging property. On the hearing of the plea, the magistrate was asked to elect not to record a conviction. The magistrate declined to make such an order.
I was provided with written submissions on behalf of the appellant and the Crown, as respondent. I listened to the oral elaboration of the appellant’s submissions. I indicated that I was not persuaded that the magistrate had erred, and would not need to hear from the respondent. I said I would provide my reasons later. These are the reasons.
The statutory provision as to the making of an order that permits a conviction not to be recorded is s 17 of the Crimes (Sentencing) Act 2005 (“the Act”). Section 17 provides:
17 Non-conviction orders-general
(1) This section applies if an offender is found guilty of an offence.
(2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):
(a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than normal punishment) on the offender;
(b) A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).
(3) In decided whether to make a non-conviction order for the offender, the court must consider the following:
(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.
(4) The court may also consider anything else the court considers relevant.
Note An appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender’s conviction for an offence (see Magistrates Court Act 1930, pt3.10).
There are clearly advantages in not having a conviction recorded, particularly in making applications such as for employment, where questions are asked as to past convictions. Exercising the discretion will often be difficult in a variety of situations. One such situation is as here, where the offences are quite serious, but the offender is young, has no prior convictions and pleads guilty.
On the hearing of the appeal I had before me the materials placed before the learned Magistrate. The materials consisted of a statement of facts, six letters as to the appellant’s good character and an apologetic email to the appellant from his stepmother. I also had a transcript of what was put to the learned Magistrate and of his conclusions and reasons. It is clear from the transcript that the hearing was relatively short, with frequent use of short form words and expressions, like “prevalence”, that were suitable to the making of such a plea.
The circumstances of the offences were as set out in the agreed statement of facts, which I summarise.
In April 2010, the appellant (“Lachlan”) was living in the same home in Calwell as his father (“Philip”) and his stepmother (Berenice”). Born in January 1992, Lachlan was then aged 18. He had his own keys to the house. One week night, the three were engaged in a discussion as to the ground rules pursuant to which Lachlan could stay in the house. Lachlan brought the discussion to an end by leaving and going upstairs to his bedroom. A short time later, Berenice went to the door to the bedroom, and he opened the door. Twice she asked Lachlan for his keys. Twice, he responded: “Do you want me to punch you in the fucking head?” He then went to close the door. She held the door handle and put her foot into the doorway. He opened the door wider, took hold of her shirt and hit her to the head with his closed fist. He then closed the door. Philip came upstairs and spoke with Berenice, who said that she wanted to obtain Lachlan’s keys. She entered the bedroom and Lachlan struck her again and swore at her. She retaliated, and struck him. Philip then entered the bedroom, pinned Lachlan to the floor, held him there and asked for his keys. Lachlan said where his keys were located. Berenice took the set of keys, and removed the keys to the house. Philip walked down the stairs with Lachlan, pushed him outside and threw outside the rest of Lachlan’s keys. Philip then closed the front door. Lachlan banged on the front door and called out loudly. He then smashed a glass panel in the front door. Given that he had later to be treated for an injury to his foot, the clear inference is that he smashed the panel by kicking it.
At the hearing before the learned Magistrate, counsel for Lachlan tendered six letters as to Lachlan’s good character. Collectively, they were generally impressive. The longest of the letters came from Lachlan’s mother. It was partially directed at putting much of the blame for his behaviour on Berenice.
The email to Lachlan from Berenice was dated four days after the night of the events leading to the laying of the charges. In it, Berenice wrote, amongst other things: “I should not have lost my temper, and I most definitely should not have slapped you. I am truly sorry.”
Counsel for the appellant put succinctly to the learned Magistrate submissions to the effect that he should have regard to a number of factors in favour of the appellant. They included that:
a) The incident occurred in an ongoing atmosphere of frustration in a household where nobody got on with anybody;
b) The apologetic email from the stepmother was particularly significant;
c) Lachlan was back at school, and
d) Lachlan had the benefit of a supportive mother and had a better place to live.
His closing submission was that an order under s 17 of the Act should be made.
The prosecutor was very brief. He accepted that a good behaviour order was appropriate. He opposed the making of an order under s 17, in short because of the need for general deterrence, adding that: “these matters are prevalent”. Counsel for the appellant asked to respond. He again asked the learned Magistrate to take account of the frustration of Lachlan’s situation. He also asked that account should also be taken of the circumstances that Lachlan had already suffered a penalty in that he had received an injury to his foot and that the photos of the damaged glass door panel were such as to indicate that it had been broken by a “bare stroke”. The learned Magistrate responded with comments as to the act which damaged the window and as to the intention of the appellant at the time of the damage.
The learned Magistrate concluded that he should not exercise his discretion under s 17, but that he was going to make a good behaviour order. Included in his succinct reasons were specific references to his having taken into account: the appellant’s age; the appellant’s plea of guilty; the absence of previous convictions; the frustrations of his domestic situation; and the testimonials as to his good character. The learned Magistrate did address in more detail the subject of the seriousness of what the appellant had done.
I set out what the transcript records him as having said:
...having being told to leave the premises, clearly, what you should have done was to leave. The material that has been put before me indicates that there were other alternatives available to you. You could have gone to other people’s houses to have sought, at least, temporary refuge whilst you worked out what you were going to do. You didn’t do so. Instead, you behaved very badly and in what can only be described as a temper tantrum you then assaulted your stepmother and you then damaged that window. Now, in my view, this is not an appropriate case for the exercise of my discretion under s 17 of the Crimes (Sentencing) Act. These offences are all too prevalent in the community and people must understand that if they engage in this type of behaviour that a conviction is likely to be recorded.
The only ground of appeal was that the learned Magistrate had erred in exercising his discretion in that he failed to take into account considerations he should have taken into account and that he took into account considerations he should not have taken into account. The applicable legal principles were not the subject of submissions before me. Given that this was the first appeal brought before me, it seemed prudent to review those principles.
In Harper v Low & Wood [2009] ACTSC 136, Penfold J reviewed the principles applicable when dealing with appeals under s 214 of the Magistrates Court Act 1930.
I now summarise her conclusions as to dealing with appeals under s 214 that are relevant in the present context, while omitting the cases cited by her. The sentence imposed below is not to be overturned simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may replace the original sentence if I am satisfied that the exercise of the discretion below was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate. 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. If I find specific error but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal and re-impose the same sentence. Even if I cannot identify a specific error, I may replace the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.
It is not possible to provide such a succinct summary as to the subject of the provision of reasons. Consideration of the subject was given recently in Evans v The Queen (2007) 235 CLR 521, albeit in the context of the provision of reasons for rulings in a criminal trial. In that context, Gummow and Hayne JJ said at [35]:
It is not possible to formulate a single criterion of universal application that distinguishes between issues whose resolution should be accompanied by a statement of reasons and those where reasons need not be given.
At [246], Heydon J referred to a number of cases which dealt with the need to provide reasons in relation to final orders, like a sentence, and said:
It is in that type of case where the primary purposes for giving reasons have operation — to enable the parties to see whether their arguments have been understood and what the decision is based on, to further judicial accountability, and to ascertain how cases will be decided in future.
In the context of providing reasons for imposing a particular a sentence, the assessment of what matters need to be specifically referred to will depend not only upon the applicable sentencing legislation, but also upon what is objectively of importance, as to offence and offender, and also upon what was put to the judicial officer.
Four particular questions may be seen to focus on matters that could be of more critical importance in a particular case.
a) Is there a factor which has to be seen directly in the light of a statutory provision to be critical, such as whether any sentence of imprisonment at all is justified, so that it ought to have been addressed specifically?
b) Is there some other factor which ought to have been perceived as critical, albeit not directly highlighted in a statutory provision, but because it could have a very substantial impact on the sentence, such as the objective seriousness of the offence or the entry of a plea of guilty, or the undertaking to give evidence against another accused, or extreme youth, so that it ought to have been addressed specifically?
c) Has a particular mitigating factor been so clearly made the subject of specific submissions by counsel for a prisoner or accused, such as the absence of any prior offending history, or the taking of very impressive steps towards rehabilitation, that it ought to have been treated as critical and so ought to have been addressed specifically?
d) Has the need for the sentencing judicial officer to take account of a particular sentencing principle, such as totality or parity, been so clearly made the subject of a specific submission by counsel that it ought to have been addressed specifically?
There are still left open issues as to the length and sufficiency otherwise of reasons as to a particular subject.
On the appeal before me, the learned Magistrate was asked to exercise his discretion to make a non-conviction order. He expressly responded to that request. He provided brief reasons. Within those reasons, were some matters not taken into account that should have been or some matters taken into account improperly? The considerations as to which it was claimed that there had been a failure to take them into account were:
a) The appellant having been struck by his stepmother, as noted in her email;
b) The apology of the stepmother, as noted in her email;
c) The extenuating circumstances; and
d) The triviality of the offences.
The considerations as to which it was submitted that they ought not to have been taken into account were:
a) The option of the appellant to seek other accommodation; and
b) The stepmother’s email, in that it could not be seen to support any suggestion that the stepmother was acting in self–defence.
Effectively, before the learned Magistrate, the focus was on three matters:
a) The seriousness of the offences;
b) The extenuating circumstances of the offender, arising from the frustrations of the domestic situation; and
c) The indications of victim empathy for the offender in the email.
As to the matter of seriousness, the prosecutor focused on three indications of the need to treat the offence as of greater seriousness:
a) The nature of the assault, a punching;
b) The need for general deterrence; and
c) The prevalence of “these matters”.
Not expressly, but implicitly, the prosecutor was referring to assaults in a domestic violence situation. The prosecutor referred minimally to the appellant, acknowledging simply the “subjective features of the youth”.
Counsel for the appellant before the learned Magistrate initially conceded that the appellant had acted irresponsibly. He then focused on matters raised by the letters of good character and the email of the stepmother. That email included her apology; regret at having slapped the appellant; recognition of the difficulties of the appellant’s position; and her desire to move on.
He particularly stressed the difficulties of the appellant’s position, with references to the “embroiling situation”, the “long-standing family situation” and the “frustration”. After the prosecutor focused on the seriousness of the offences, counsel for the appellant adverted to the circumstances that appellant had been cut badly, and had damaged the window with a “bare stroke”. These submissions could be seen to add some, but not a great deal of, weight to the case for not treating the offences as serious.
The final sentencing remarks of the learned Magistrate showed that his primary focus was on the issue of the seriousness of the offences. That included a brief reference to matters going to seriousness, including general deterrence, prevalence, and to the availability to the offender of options other than violence, all of which I found apposite. He included a brief, but in my assessment an appropriate, reference to the difficulties, the frustrations and the unpleasantness of the appellant’s situation. His Honour said, at the time that the email and letters were tendered before him, that he had read “that material”. His Honour said, in his reasons, that he would take into account the contents of the “testimonials”. His Honour did not spell out what conclusions he had formed as to the weight to be given to the contents of the email. Given the focus on the email by counsel for the appellant, it may have been preferable for the learned Magistrate to have done so, even if only to note that a comment by a victim of a domestic assault favourable to the assailant, some days thereafter, may have to be viewed with some scepticism. It was, in my opinion, a long way from being an omission that would warrant appellate intervention.
The learned Magistrate cannot be seen to have erred in exercising his discretion in putting his focus primarily on the seriousness of the offending behaviour. The appellant punched a woman. He did so more than once. He did so after walking out on a discussion about appropriate domestic behaviour, and after twice calling his victim a “fucking bitch”. It was clearly irresponsible behaviour. Even allowing for the mitigating factors, it was such as to warrant the learned Magistrate deciding to exercise his discretion to decline to make a non-conviction order. I found no specific error. Nor did I find the decision to be unreasonable, plainly unjust or plainly wrong. It was for these reasons that I dismissed the appeal.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Teague.
Associate:
Date: 1 March 2011
Counsel for the appellant: Mr D Perkins
Solicitor for the appellant: Darryl Perkins Solicitor
Counsel for the respondent: Ms M Jones
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 5 November 2010
Date of judgment: 1 March 2011
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