McCaskie v Graydon
[2023] ACTSC 300
•18 October 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | McCaskie v Graydon | ||||||||
| Citation: | [2023] ACTSC 300 | ||||||||
| Hearing Date: | 18 October 2023 | ||||||||
| Decision Date: | 24 October 2023 | ||||||||
| Before: | Mossop J | ||||||||
| Decision: | See [47]. | ||||||||
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against sentence for charge of assault occasioning actual bodily harm – appellant claimed that | ||||||||
| sentencing magistrate erred in finding that a child was present | |||||||||
| during the offending and that this was an aggravating feature – respondent conceded error – court not satisfied that the same sentence should be imposed – appeal allowed | |||||||||
| CRIMINAL LAW – SENTENCING – Whether child present during the offending – consideration of s 34B Crimes (Sentencing) Act 2005 (ACT) – meaning of “present” – presence may extend beyond a child’s awareness to mere physical presence – s 34B | |||||||||
| does not prevent consideration of a child’s physical presence as | |||||||||
| part of the broader sentencing factors – unnecessary to determine | |||||||||
| issue due to concession of error | |||||||||
| CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – assault occasioning actual bodily harm – family violence offending – offence in the low end of mid-range of objective seriousness – | |||||||||
| offending arose out of drunken and entitled interference with | |||||||||
| victim’s property – good behaviour order and fine imposed | |||||||||
| Legislation Cited: | Crimes Act 1900 (ACT), ss 24, 26, 116(3) Crimes (Sentencing) Act 2005 (ACT), ss 10, 33(1), 34B, 63(4) Criminal Code (Cth), s 474(1) Family Violence Act 2016 (ACT), s 43(2) | ||||||||
| Cases Cited: | Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353 | ||||||||
| Texts Cited: | Revised Explanatory Statement, Crimes Legislation Amendment Bill 2021 (ACT) | ||||||||
| Parties: | Nicholas McCaskie (Appellant) Carl Graydon (Respondent) | ||||||||
| Representation: | Counsel | ||||||||
| K Ginges (Appellant) | |||||||||
| K McCann (Respondent) | |||||||||
| Solicitors | |||||||||
| Hugo Law Group (Appellant) Director of Public Prosecutions (Respondent) | |||||||||
| File Number: | SCA 2 of 2023 | ||||||||
| Decision Under Appeal: |
| ||||||||
| Court File Numbers: 225682 224376 |
229368
MOSSOP J:
Introduction
1. This is an appeal by a convicted person against a sentence imposed by a magistrate.
One of the grounds of appeal has been conceded by the respondent. As a consequence,
unless the court, having considered the matter afresh, determines that no lesser penalty
should be imposed, the court must allow the appeal and resentence the appellant.
Background
2. The appellant was convicted and sentenced by the magistrate on a number of charges.
The offences and the sentences that were imposed were as follows:
Charge Number Offence Maximum Plea Sentence penalty imposed Series 1: offences committed on 19 February 2021
1 CAN 7716/2022 Assault 5 years’ Found Convicted and
occasioning imprisonment guilty at sentenced to
actual bodily hearing 2 months’
harm, contrary imprisonment, to s 24 of the suspended upon Crimes Act entering into a 1900 (ACT)
good behaviour order for a period
of 12 months
2 CAN 7220/2021 Common 2 years’ Found Convicted and
assault, imprisonment guilty at placed on a good
contrary to s 26 hearing behaviour order of the Crimes for a period of Act 1900 (ACT) 12 months, with
condition to
perform 50 hours
of community service work
3 CAN 9314/2021 Common 2 years’ Found Convicted and
assault, imprisonment guilty at placed on a good
contrary to s 26 hearing behaviour order of the Crimes for a period of Act 1900 (ACT) 12 months, with
condition to
perform 50 hours
of community service work
4 CAN 9194/2021 Damage 2 years’ Found Convicted and
property imprisonment guilty at placed on a good
(Television), hearing behaviour order 50 PU
contrary to for a period of s 116(3) of the 12 months Crimes Act
1900 (ACT)
5 CAN 9195/2021 Damage 2 years’ Found Convicted and
property (Baby imprisonment guilty at placed on a good
Monitor), hearing behaviour order 50 PU
contrary to for a period of s 116(3) of the 12 months Crimes Act
1900 (ACT)
Series 2: offences committed on 14 November 2021
6 CAN 625/2022 Contravene 5 years’ Pleaded Convicted and
Family Violence imprisonment guilty on fined $1000 Order, contrary 21 July 500 PU
to s 43(2) of the 2022 Family Violence Act 2016 (ACT)
7 CAN 626/2022 Use carriage 3 years’ Pleaded Convicted and
service to imprisonment guilty on fined $800
harass, contrary 21 July to s 474(1) of 2022 the Criminal Code 1995 (Cth)
Summary of the facts
3. It is the offending which occurred on 19 February 2021 that is of significance for the
present appeal. The respondent’s case was largely based upon the evidence of the
victim of the offending. That evidence was accepted as honest and reliable by the
magistrate and must have been accepted by her Honour when finding the appellant guilty
of the offences that she did. What follows is a summary of the facts based upon that
evidence.
4. The victim of the offending was the appellant’s ex-partner. They had a daughter who was
10 months old at the time. The parents had separated. The victim and their daughter
lived in an apartment. The victim’s son (who was not the appellant’s child) also stayed at
the apartment every fortnight. He was not present on 19 February 2021. The appellant
lived elsewhere.
5. The victim arranged to pick up the appellant from work. He was to stay the night at the
apartment in order to be able to spend some time with their daughter. Both the victim
and the appellant consumed some wine. The victim fell asleep on the couch at around
8pm. The victim awoke to find the appellant very drunk and very angry. He was slurring
his speech, speaking nonsensically and was unsteady on his feet. The appellant went
into the son’s room. Their daughter was asleep in a separate room. The victim was
concerned that the appellant may damage property in her son’s room and she took out her phone to call the appellant’s mother in order to de-escalate the situation. When she
got into the room, she saw him trying to throw her son’s bicycle off the balcony. He
grabbed her across the upper arms and forced her onto the bed. He wrestled for her
phone. As he did so, he let go of her arms to get hold of the phone while she tried to
block him from getting it. This resulted in a bruise to the victim’s right upper arm that was
visible when she participated in an evidence-in-chief interview two days later. The
conduct of the appellant in grabbing the victim across her upper arms, forcing her onto
the bed and causing the bruise amount to the assault occasioning actual bodily harm
(CAN 7716/2022).
6. When the appellant realised that he was not getting the phone, he hit her on the back of
the head. This constitutes the offence of assault (CAN 7220/2021). The victim held
herself in a foetal position and was screaming very loudly. This screaming caused the
baby to wake up.
The appellant stopped hitting the victim and went to the baby’s room. The victim followed
him and saw that he had opened the sliding door of her room, walked out onto the
balcony and placed the baby on the wall with her legs hanging over the edge of the brick
wall. The victim froze and begged him to give the baby to her. The appellant marched
over and pushed the baby into her. As she spun away, he grabbed her singlet. She was
unbalanced and he ripped her singlet. She curled up over the baby to protect her. The
victim fell onto her backside and he started hitting her on the head again while she was
holding the baby. This gives rise to the offence of assault (CAN 9314/2021). These were
more violent than the other hits. The magistrate found that during the two offences of
assault, the appellant hit the victim on the head at least six times “and possibly many
more times”.
8. During this assault the appellant appeared enraged and she was extremely scared. She
started screaming and the baby was also screaming. The appellant then took the baby
from her arms and went into the baby’s bedroom. The victim rushed into the bedroom
and begged him to return home. The appellant then dropped the baby at her feet and
ran off. This was alleged to be an offence of assault occasioning actual bodily harm
committed against the baby. The appellant was found not guilty of this charge because
the magistrate could not conclude beyond reasonable doubt that the dropping of the
baby was not accidental and arose from his state of intoxication. The magistrate found
that he had consumed “at least 2 if not 2 ½ bottles of wine that evening”.
9. Having dropped the baby at her feet, the appellant ran off. The victim picked up the baby,
calmed her down and put her into the cot. At the same time, the victim heard the sound
of something breaking. She went to the lounge room and found that the TV had been pulled over onto the playpen which resulted in the screen shattering. This is the charge
of damaging property (CAN 9194/2021). There was dog poo on the couch. She saw the
appellant throw the baby monitor to the ground where it shattered. This is the second
charge of damaging property (CAN 9195/2021). She called the police. She also called
the appellant’s mother. Police attended as did the appellant’s mother and sister.
10. The appellant gave oral evidence at the trial, but the magistrate concluded that the
evidence was unreliable and in some instances untruthful.
11. The contravention of the family violence order (CAN 625/2022) involved the appellant
making 52 phone calls to the victim in breach of an interim family violence order that had
been in place for many months. The appellant also made phone calls to the victim’s
mother and ex-husband. The same facts support the charge that he used a carriage
service in a way that was harassing (CAN 626/2022).
The appeal
12. The appellant appealed only in relation to the sentence imposed upon him on the charge
of assault occasioning actual bodily harm (CAN 7716/2022). There were a variety of
grounds of appeal. The respondent conceded that part of one of those grounds was
made out and that, as a consequence of that error, unless the court was independently
satisfied that the same sentence should be imposed, the appellant needed to be
resentenced.
13. The error which was conceded was that the magistrate had found that the baby was
present during the offending and that this was an aggravating feature. This arose
because the magistrate had addressed the offending as a whole and said: “It is clear
from the decision I have already published that the offending occurred in the family home
in the presence of a young child.” The respondent conceded the error in this approach
because, although the baby was present in the house at the time of the assault
occasioning actual bodily harm, she was in a different room and unaware of what was
occurring. The respondent contended that this was insufficient to allow a conclusion that
the child was “present” because she would have been unaware of what was occurring
so that the offending would not have had or been likely to have had an adverse
consequence for her: Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353.
14. I treat the conceded error as a simple factual error arising from the magistrate not
distinguishing, in her reasons, between those offences which were committed while the
baby was with her parents and the first offence, which occurred when the baby was
elsewhere in the house and not in the same room as her parents.
15. A legal issue relating to the presence of a child during the commission of an offence can
arise for the purposes of s 34B of the Crimes (Sentencing) Act 2005 (ACT) (CS Act),
which requires consideration in sentencing for family violence offences “whether the
offending occurred when a child was present”. It may be that “present” in this case
requires both physical presence as well as awareness so as to be capable of being
harmed by experiencing the offending conduct.
16. However, it is not necessarily so limited. Requiring awareness on the part of the child
limits the significance of the presence of the child to the impact upon the child of
experiencing the offending conduct. That does not necessarily capture all of the
detriments arising from offending when a child is physically present. The presence of a
child may also magnify the harm suffered by the victim of the offending (often the mother
of the child) because it makes the victim less able to physically respond to or escape
from the offending because of her sense of obligation to protect the child from
involvement in the offending. Further, the physical presence of the child has the potential
to magnify the emotional impact of the offending upon the victim because of the concern
that an offender may extend the offending to the child. Each of these features seems to
be common aspects of family violence offending and that fact would tend against a
restricted interpretation of the word “present” in s 34B.
17. On the other hand, if “present” was to be interpreted in the more restricted way indicated,
then it would be necessary, outside the scope of s 34B, to take into account the increase
in the potential harm to the victim from the physical presence of a child, even where the
child had no awareness of what occurred, as part of the nature and circumstances of the
offence (s 33(1)(a)) and the personal circumstances of the victim to the extent known to
an offender (s 33(1)(d)). Such a course is plainly consistent with s 34B, which was “not
intended to reduce a judicial officer’s discretion when considering sentencing factors, but
ensure that they are required, when sentencing for family violence offences, to consider
additional factors as part of the sentencing process”: Revised Explanatory Statement,
Crimes Legislation Amendment Bill 2021 (ACT) at 22.
18. Given that the respondent made the concession as to error, and the parties did not make
submissions upon the statutory interpretation issue raised by s 34B, it is not appropriate
to determine that issue in this case. Rather, the present case may be dealt with on the
basis that the physical presence of the child in the house may be taken into account in
considering the appropriate sentence either pursuant to s 34B or outside the scope of
that section.
19. In light of the concession of error, it is necessary to consider the appropriate sentence
that should be imposed for the offence.
Objective circumstances
20. The facts relating to the offence of assault occasioning actual bodily harm and the
context in which that offending occurred are outlined earlier in these reasons.
21. The bruising of the victim’s right upper arm is at the low end of harm falling within the
concept of “actual bodily harm”. However, the following features of the offending indicate
that it should be assessed as being at the low end of mid-range of objective seriousness
for this offence:
(a) the family violence character of the offending; (b) that the offending occurred in the victim’s home where her young child was sleeping (whether statutorily “present” or not);
(c) that the appellant was a guest in their home; and (d)
that the offending arose out of his drunken and entitled interference with her property.
Victim impact
22. A victim impact statement was tendered at the sentencing hearing. It records effects of
the offending consistent with what would be expected from offending such as this,
including increased concerns about security and continuing psychological effects.
Subjective circumstances
23. The appellant is 38 years old. He has no criminal history apart from the offences for
which he was sentenced by the magistrate.
24. He is one of three children of his parents. He reported a normal childhood and a positive
relationship with his mother, father and two siblings.
25. He and the victim were in a relationship for approximately two years. They experienced
a lot of ups and downs. As at the sentencing date before the magistrate, their daughter
was two years old. The appellant has supervised contact with her every second
weekend.
26. The appellant currently resides with his parents. He completed Year 12. He obtained a
Bachelor of Science from the University of Wollongong in 2007. He obtained a Master of
Professional Accounting in 2009 from the University of Canberra. He became a Certified
Practising Accountant in 2011. He is currently in government employment.
27. He has had problems with alcohol since the breakdown of a relationship in 2015. His
drinking peaked during the relationship with the victim of the offending, when he drank
between one and three bottles of wine per day. His drinking has reduced since the offending. Evidence tendered for the purposes of the resentence was consistent with him
not having drunk alcohol for a considerable period.
28. He is in sound physical health. However, since 2018 he has suffered from depression
and made attempts on his own life on a number of occasions. The pre-sentence report
says three occasions, although the appellant earlier told Ms Quigley, a psychologist, that
there had been more than ten occasions.
29. As at the date of sentencing before the magistrate, he maintained his denial of guilt.
However, he appeared to be aware of how the events caused distress to the victim of
the offending. Since the offending, he has completed a number of programs including
the Circle of Security parenting course. He was assessed as suitable for a community
service work condition as well as an intensive corrections order.
30. The appellant relied upon two reports of psychologists, Matt Visser and
Vanessa Quigley.
31. The report of Mr Visser, based on an interview on 11 February 2022, recorded his belief
that the appellant had “overemphasised the breadth of his mental health issues” while
his mother had “minimised them for fear of the impact on her ability to have contact with
her grandchild”. He made a diagnosis of Dysthymia. In addition to the diagnosis of
Dysthymia, he could not rule out the possibility of Alcohol Use Disorder and an Autism
Spectrum Condition. He thought that the appellant’s presentation was “highly consistent”
with Level I (mild) Autism Spectrum Disorder. He recorded that the appellant gave the
impression of “significant bitterness and misanthropy, primarily directed at [the victim]
and the justice system”.
32. Ms Quigley assessed him on 25 November 2022. She recorded that he displayed less
bitterness towards his former partner than noted by Mr Visser. He reported more than
ten attempts at suicide since the end of his first relationship. Ms Quigley made a
diagnosis of Dysthymia, Generalised Anxiety Disorder, Alcohol Use Disorder and a
provisional diagnosis of Autism Spectrum Disorder. Ms Quigley gave oral evidence and
was cross-examined at the sentencing hearing.
33. There was also evidence that he had been seeing a clinical psychologist throughout 2022
and that he had regularly seen another psychologist from May 2021 through to
August 2022. He participated in the CADAS counselling program from March 2021
through to October 2023.
34. There were two personal references from a friend and a work colleague. Both attest to
his good character in a professional and personal capacity.
35. There was evidence of public service investigations into the conduct constituting the
offences for which he was found guilty and the withdrawal of two offers of employment.
36. There was also evidence that he had made payments of at least $680 by way of
reparation to the victim of the offending and no further reparation was sought by the
respondent before the magistrate.
37. The appellant had spent 20 days in custody. One of those days was directly referable to
the offending conduct. The other 19 days arose because his alleged conduct on
19 February 2021 resulted in the revocation of his bail on an earlier charge (of which he
was ultimately acquitted). This custody was therefore, not as a result of a refusal of bail
on the charges arising from 19 February 2021, nor was it custody that was covered by
s 63(4) of the CS Act. This period in custody was the appellant’s first time in prison. It
included eight days in isolation required as a result of the COVID-19 protocols in place
at the time.
38. Although he was arrested on 19 February 2021 for a breach of bail, the charges alleging
the offences arising from his conduct on that evening were only laid in mid-October 2021.
Consideration
39. Looked at overall, the sentencing disposition by the magistrate on the seven offences for
which he was sentenced was, considered on its face, a lenient one, even having regard
to the appellant’s lack of criminal history and other subjective circumstances. The
offending involved drunken violence directed to a former female partner who was
endeavouring to protect her property and her helpless young child. The evidence before
the magistrate of the desperate screaming heard by the neighbours is indicative of the
traumatic nature of the offending.
40. Unsurprisingly, having regard to the leniency of the disposition by the magistrate of the
balance of the offences, there is no appeal in relation to those sentences. Care must be
taken on the present appeal to avoid attempting to address the leniency of the sentences
for those other offences, from which no appeal has been brought, by increasing what
would otherwise be the appropriate sentence for the charge under appeal.
41. Of central importance in determining the appropriate sentence on count 1 are the
following matters:
(a) The offence was the appellant’s first offence as he otherwise had no criminal record.
(b) The offence occurred at the beginning of the conflict between the two, and that initial physical action might be considered to be a less culpable, foolish reaction, in the moment, to the victim attempting to make a telephone call when
compared with the subsequent ongoing violent behaviour which followed it.
(c) It was not committed in the immediate physical presence of the baby (although the baby was in the house of time).
42. Because of these distinguishing features on this count, notwithstanding that it involved
an offence which carries a substantial maximum penalty, I would have treated it as less
serious and hence not reaching the threshold required by s 10 of the CS Act. In contrast,
I would have treated the subsequent assaults and damage to property as involving more
serious offending and more likely to cross the s 10 threshold. However, having regard to
the fact that those sentences are not before me, I do not need to reach a final conclusion
as to the sentence I would have imposed. I only observe that the leniency demonstrated
by the sentences on those offences could only be justified if the subjective circumstances
of the appellant and the 20 days in custody were given significant weight as matters
reducing the need for a custodial sentence in order to properly reflect the purposes of
sentencing for a course of conduct involving drunken violence directed to a female former
partner in the presence of a helpless child.
43. The evidence indicates that the appellant has been sufficiently motivated to seek a
variety of psychological and counselling treatments. This is relevant to his psychological
well-being and abuse of alcohol and hence are positive indications that his risk of further
offending will be lower than it otherwise might have been. It is not clear whether or not
this motivation will be maintained after the conclusion of the legal process.
44. In relation to the existence of traits consistent with a diagnosis of Autism Spectrum
Disorder, I consider this to be effectively a neutral factor for the purposes of sentencing
because although it may be considered to reduce, to some minor extent, his moral
culpability and his suitability as a vehicle for general deterrence, the potential for it to be
related to offending conduct generates a corresponding increase in the need for specific
deterrence and protection of the community. So far as his other diagnosed conditions
are concerned, I take them into account as part of his general subjective circumstances
but do not consider that they reduce the moral culpability of his offending. The real
problem that occurred on the evening in question was not his mental health but his being
very drunk and his sense of entitlement to interfere with the victim’s home. Mental health
conditions operating in the background should not obscure those unfortunate facts.
45. In relation to count 1, having considered the possible alternatives, I am not satisfied that
there is no appropriate sentence other than a custodial one. In light of the three features
of the offending to which I have referred, I consider the purposes of sentencing may be
satisfied by a good behaviour order combined with a fine. I consider that a good behaviour order which operates for a longer period than that imposed by the magistrate
will better serve the sentencing purpose of protection of the community and deterrence
of the appellant in circumstances where he will need to have an ongoing relationship of
some sort with the victim and his child. Requiring security to be given for compliance with
the good behaviour order will increase the incentives to behave lawfully. Imposition of a
fine is appropriate in circumstances where the appellant has already completed
100 hours of community service work and where, for medical reasons, that was confined
to clerical work within ACT Corrections.
46. In circumstances where the period of the good behaviour order that was imposed by the
magistrate as a condition of the suspension of the two-month sentence of imprisonment
is almost expired, the imposition of the sentence that I have indicated on count 1 is, in a
practical sense, more onerous than the sentence imposed by the magistrate. That is
because where an appellant is able to comply with a good behaviour order, the
imposition of a suspended sentence is no more onerous than a good behaviour order
alone. This issue was raised with counsel for the appellant, and he indicated that even if
the practical effect of the resentence was more onerous than the sentence which had
been imposed, the appellant wished to be resentenced in a manner that did not involve
any custodial sentence. Given that this result is one consistent with principle and the
absence of a custodial sentence may be significant for other reasons, it is one which
should be imposed even if the practical effect is an increase in the punishment of the
appellant.
Orders
47. The orders of the Court are:
1. Appeal allowed.
2. The sentence imposed by orders of the Magistrates Court on 14 December 2022
on charge 7716/2022 is set aside.
3. The appellant is resentenced on charge 7716/2022 as follows:
(i) Nicholas Simon McCaskie is convicted.
(ii) He is fined $2500.
(iii) He is allowed 12 months to pay.
(iv) He is required to enter into an undertaking to be of good behaviour for a
period of two years from the date of these orders with the condition that he give security in the sum of $5000 without sureties for compliance with the
order.
I certify that the preceding forty-seven [47] numbered
paragraphs are a true copy of the Reasons for Judgment
of his Honour Justice Mossop.
Associate:
Date: 31 October 2023
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