McCullough v OBG and MJW
[2012] TASSC 29
•30 May 2012
[2012] TASSC 29
COURT: SUPREME COURT OF TASMANIA
CITATION: McCullough v OBG and MJW [2012] TASSC 29
PARTIES: McCULLOUGH, Constable Julie
v
OBG
MJW
FILE NO/S: 812/2011
DELIVERED ON: 30 May 2012
DELIVERED AT: Hobart
HEARING DATE: 2 December 2011
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – Sentence asserted to be manifestly inadequate.
Justices Act 1959 (Tas), s107.
Quinn v Canning [1967] TASSC 37; DPP v NOP [2011] TASCCA 15, referred to.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: S C Karpeles
First Respondent: C G Rainbird
Second Respondent A Mignot
Solicitors:
Applicant: Director of Public Prosecutions
First Respondent: Craig Rainbird
Second Respondent: Legal Aid Commission of Tasmania
Judgment Number: [2012] TASSC 29
Number of paragraphs: 33
Serial No 29/2012
File No 812/2011
CONSTABLE JULIE McCULLOUGH v OBG and MJW
REASONS FOR JUDGMENT TENNENT J
30 May 2012
This review relates to sentences imposed by Magistrate Dixon on OBG and MJW following each being found guilty of certain assaults arising out of events on the night of 31 December 2010. Each was a youth at the time of the offending and each was sentenced under the Youth Justice Act 1997 ("the Act"). The prosecutor seeks to review the sentences imposed on the ground that they were manifestly inadequate in all the circumstances. There were actually three grounds in the notice to review as filed. The third relating to asserted inadequacy of reasons was abandoned, and the second was conceded by counsel for the applicant to be, in effect, particulars of the asserted inadequacy of the sentence.
Background to sentences
On 11 February 2011, OBG was charged on complaint number 1421/11 with one count of common assault contrary to the Police Offences Act 1935, s35(1), (count 1), by punching, and one count of assault contrary to the Criminal Code, s184, (count 2), by kicking and punching. The incidents were said to have occurred on 31 December 2010. OBG was jointly charged with MJW and AWB on that complaint. OBG and AWB were also jointly charged on complaint number 1420/11 with two other counts of common assault. Count 1 alleged assault by kicking and punching, and count 2 alleged an assault by punching.
OBG and MJW both pleaded not guilty to all charges and the matters went to hearing.
As to OBG:
·his date of birth was 28 September 1994. He was therefore 16 at the time of the offending and sentence,
·on complaint 1420/11 he was found guilty of common assault by punching only (count 1),
·he was found not guilty of the second assault on the same complaint (count 2) and that charge was dismissed,
·on complaint 1421/11, he was found guilty of count 1 but only by pushing, and not guilty of count 2, which was dismissed,
·he therefore stood for sentence in relation to one common assault by punching and one common assault by pushing,
·on a global basis, the learned magistrate sentenced him pursuant to the Act, s47(1)(d), that is the magistrate released him and adjourned the matter for a period of 12 months on condition he be of good behaviour.
As to MJW:
·his date of birth was 18 August 1993. He was therefore 17 at the time of the offending and sentence,
·on complaint 1421/11, he was found not guilty of count 1 which was dismissed, but guilty of count 2, that is assault but by punching only,
·he therefore stood for sentence in relation to one count of what was assault by punching only,
·the learned magistrate sentenced him pursuant to the Act, s47(1)(d), that is he released him and adjourned the matter for a period of 12 months on condition he be of good behaviour.
Sentencing remarks of learned magistrate
The learned magistrate sentenced both OBG and MJW together, although the hearings relating to the complaints were on different days. He said the following when sentencing:
"Yes, come forward both of you, thanks. Come forward, M and O. Now you haven't got any previous Court findings of guilt. There's some formal cautions here which are some years old now and I won't attach much weight to them, but as I've indicated, on this particular evening it was clearly – what you were doing was very wrong, it's the sort of thing that upsets the community and makes you frightened to wander round the streets and clearly in some circumstances you could both expect to go to detention for this sort of offence, even for a first offence, some people would get that.
I don't believe it's the only appropriate sentence because of the findings in relation to you, but now only really you two know what happened here. I've made a finding based upon the evidence. The prosecutor has done her best to put all the evidence before me and the defence lawyers have done what they know, but you were there, you know what happened. I'm making a finding of what I can on the evidence. I have a distinct feeling it's more happened than that but of course I can't sentence on that, but your people would have heard what's said and I think both of you should be quite ashamed of what you were doing that particular evening. On both occasions I'm sure that both those males who were struck were not aggressive males at all, they were hardly alpha males, to put it bluntly, and so in some respects it's fairly gutless to do that.
I'm not going to proceed to convict you – either of you in relation to these offences because of the finding I've made, but you won't get another chance. In relation to each of you what I'm going to do is make an order under section 47(1)(d) of the Youth Justice Act. There'll be no conviction. You'll be released now and I'll order that you be of good behaviour for a period of twelve months. If you aren't of good behaviour for that period of time you'll be in contravention of the – in relation to the adjournment order and you can be brought back to Court straightaway in relation to it after the appropriate notices are given to you.
Your parents no doubt have heard what's been said, they'll be able to make up their own mind in relation to it. I've heard the evidence but you should not have been involved in any of these altercations. If there were other people there who were urging you on, and they probably are, probably young and impressionable and trying to go along with it, stay well back. You must stay well back else all that will happen is that you'll end up in trouble.
So the orders are these. In relation to the offences that I found proved there'll be an order under section 47(1)(d) of the Youth Justice Act you're released and I'll order that you be of good behaviour for a period of twelve months. I do take into account with both of you you're pretty lucky compared to a lot of people who appear in the Youth Justice Court, you've got a supporting family, a lot of blokes who come here they've got no one supporting them and you can sometimes understand how they've played up. How about doing the right thing about your – with your family as well, I'm sure the last place they want to be today is here and last time, wondering what's going to happen to you. How about doing the right thing with them as well. Right. Yes, they're the orders, I'll adjourn."
His Honour also observed that he had an uncomfortable feeling about this because this was a group wandering around looking for trouble and was glad he had not been walking around the area on this night.
Prior to sentence, his Honour heard pleas in mitigation from counsel for both boys. He also made an enquiry about what had happened in respect of AWB. He was told that AWB had pleaded guilty and been sentenced by another magistrate. He was sentenced in relation to, not only the assaults with which he was charged on the complaints referred to in these reasons, but also other matters not identified. The magistrate who sentenced him noted one attack was cowardly (it was from behind), it was serious and he had subsequently bragged about it on Facebook. The learned magistrate dealing with OBG and MJW noted the sentence was based on different factual findings. ABW was a youth and was sentenced to two month's detention wholly suspended and six month's probation.
After the hearing of this review I was supplied, by agreement of all counsel, with the prosecutor's statement of facts in respect of complaints 1420/11 and 1421/11 used when AWB was sentenced, and the certificate of conviction relating to him. The factual basis for his sentence which included reference to the role of OBG and MJW as then asserted by police was different to that ultimately found by Magistrate Dixon in respect of OBG and MJW. It would be fair to say the actions of AWB were worse than as found by Magistrate Dixon for OBG and MJW. Further the certificate of conviction shows that AWB was sentenced in respect of all counts charged on complaints numbered 1420 and 1421 of 2011, as well as another assault committed in February 2011 and a stealing arising from the incident on New Years Eve.
Findings by the learned magistrate
The complainants on complaint number 1420/11 were Joshua Waiss-Gates (count1) and Jessica Brennan (count 2). The incident which gave rise to the charges occurred at and near a park bench in Carlton Street at New Town at about 9.45pm on 31 December 2010.
Mr Waiss-Gates was sitting on the park bench, and he was with a number of young females. He and the girls were approached by a group of young males, one of whom was OBG. His Honour found that there was no question, as OBG had suggested, that Mr Waiss-Gates got up from the park bench to effectively attack OBG. His Honour found that:
"… because of the emotional atmosphere that then developed it was clearly a highly charged incident, clearly blows were struck, and clearly there was a lot of noise and shouting, and then it's a question of identification as to who did what to whom."
His Honour then said:
" … I accept that in fact be did approach Joshua Wisegates and he did – he did punch him. As to the precise nature of the punches, I don't necessarily have to make any finding, and I don't, I don't believe any was accidental, I believe it was intentional. I don't believe for a second that he was acting in self-defence; I've seen Mr Wisegates, I've seen the girls, I don't believe that he was – Mr Wisegates was going to make an approach to this group that was coming towards them, and that there's any question of self-defence. It may be that he may have made some comments of them, which may have aggravated the situation, but no question of self-defence.
However, so far as Jessica Brennan is concerned, I do note what she says in relation to it, but I've – have a bit of a difficulty in relation to the assault in relation to her, it's been denied; there it's not as strong as the other part, and it may well be that it wasn't intentional – if any blow was struck it wasn't intentional. But – and so therefore, it's the same problem that I have with G; that is count 2 on complaint 1420 – he may well have struck her and he may well have struck her intentionally, but I can't be satisfied beyond reasonable doubt."
The complainants on complaint number 1421/11 were Nelson Ohl (count 1) and Robert Manion (count 2). After the incident in the park at Carlton Street, OBG and his group left the park and headed towards central Hobart. MJW was part of this group. The group reached Cross Street, New Town and, by this time, numbered between 10 and 15. They came across a group of four, two males and two females.
MJW bumped into Mr Manion and then apologized. The learned magistrate accepted that thereafter Manion did nothing to provoke any sort of assault and did not himself throw any punches. He was satisfied that MJW punched Manion, but could not be satisfied he did anything else. He made no specific finding about the number of punches, although MJW admitted to four in his interview. It seems clear that others in the group then converged upon Manion and kicked and punched him. Mr Ohl tried to go to Manion's assistance. Other males in the large group prevented him from doing that. One of those, OBG, pushed Mr Ohl in the chest. Mr Ohl continued to try to help Manion and, as a result, was punched and dragged to the ground where he was punched further.
The learned magistrate was satisfied that OBG assaulted Mr Ohl by pushing him to the chest. He was not however satisfied that either OBG or MJW did anything else to either complainant.
The Act
The Act came into force in 1998 and was clearly intended to invoke a change in approach to the way in which youthful offenders were dealt with by the courts. Section 4 of the Act contained a number of objectives, which relevantly are:
"4 Objectives of Act
The main objectives of this Act are –
(a) …; and
(b)to provide how a youth who has committed, or is alleged to have committed, an offence is to be dealt with; and
(c) to specify the general principles of youth justice; and
(d)to ensure that a youth who has committed an offence is made aware of his or her rights and obligations under the law and of the consequences of contravening the law; and
(e)to ensure that a youth who has committed an offence is given appropriate treatment, punishment and rehabilitation; and
(f) to enhance and reinforce the roles of guardians, families and communities in –
(i) minimising the incidence of youth crime; and
(ii) punishing and managing youths who have committed offences; and
(iii) rehabilitating youths who have committed offences and directing them towards the goal of becoming responsible citizens; and
(g) ..
(h)to ensure that, whenever practicable, a youth who has committed, or is alleged to have committed, an offence is dealt with in a manner that takes into account the youth's social and family background and that enhances the youth's capacity to accept personal responsibility for his or her behaviour."
The Act also sets out in s5 general principles of youth justice. It provides:
"General principles of youth justice
(1) The powers conferred by this Act are to be directed towards the objectives mentioned in section 4 with proper regard to the following principles:
(a) that the youth is to be dealt with, either formally or informally, in a way that encourages the youth to accept responsibility for his or her behaviour;
(b) that the youth is not to be treated more severely than an adult would be;
(c) that the community is to be protected from illegal behaviour;
(d) that the victim of the offence is to be given the opportunity to participate in the process of dealing with the youth as allowed by this Act;
(e) guardians are to be encouraged to fulfil their responsibility for the care and supervision of the youth and should be supported in their efforts to fulfil this responsibility;
(f) guardians should be involved in determining the appropriate sanction as allowed by this Act;
(g) detaining a youth in custody should only be used as a last resort and should only be for as short a time as is necessary;
(h) punishment of a youth is to be designed so as to give him or her an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;
(i) punishment of a youth is to be appropriate to the age, maturity and cultural identity of the youth;
(j) punishment of a youth is to be appropriate to the previous offending history of the youth.
(2) Effect is to be given to the following principles so far as the circumstances of the individual case allow:
(a) compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;
(b) family relationships between a youth, the youth's parents and other members of the youth's family should be preserved and strengthened;
(c) a youth should not be withdrawn unnecessarily from his or her family environment;
(d) there should be no unnecessary interruption of a youth's education or employment;
(e) a youth's sense of racial, ethnic or cultural identity should not be impaired."
A number of options are provided for in the Act as to the manner in which a youth who has offended may be dealt with. At the most basic level, there is provision for a youth to be diverted from the court system altogether into either a police caution regime or a community conference. Once the courts are involved, s47, comes into play. It relevantly provides:
"47 Sentences and other orders that may be imposed
(1) If a youth is found guilty of an offence, the Court may do one or more of the following:
(a) dismiss the charge and impose no further sentence;
(b) dismiss the charge and reprimand the youth;
(c) dismiss the charge and require the youth to enter into an undertaking to be of good behaviour;
(d) release the youth and adjourn the proceedings on conditions;
(e) impose a fine;
(f) make a probation order;
(g) order that the youth perform community service;
(h) make a detention order;
(i) ….
(2) In addition to imposing a sentence under subsection (1), the Court may make one or more of the following orders:
(a) a suspended detention order;
…
(3) …
(4) In determining what orders to make under subsections (1) and (2), the Court must have regard to all the circumstances of the case, including –
(a) the nature of the offence; and
(b) the youth's age and any sentences or sanctions previously imposed on the youth by any court or a community conference; and
(c) the impact the sentence will have on the youth's chances of rehabilitation generally or finding or retaining employment."
The circumstances in which a court may impose a conviction are also limited by the Act. Section 49 relevantly provides:
"49 Recording conviction
(1) If the Court imposes a sentence under subsection (1) of section 47 that does not include a sentence under paragraph (e), (f), (g), (h) or (i) of that subsection, a conviction is not to be recorded.
(2) If the Court imposes a sentence under section 47(1)(e), (f), (g) or (i), the Court may order that a conviction is or is not to be recorded.
(3) If the Court imposes a sentence consisting of or including a period of detention and does not make a suspended detention order suspending the whole of the period of detention, a conviction must be recorded.
(4) In determining whether or not to record a conviction, the Court must have regard to all the circumstances of the case, including –
(a) the nature of the offence; and
(b) the youth's age; and
(c) any sentences or sanctions previously imposed on the youth by any court or community conference and any formal cautions previously administered to the youth; and
(d) the impact the recording of a conviction will have on the youth's chances of rehabilitation generally or finding or retaining employment."
The court is precluded from imposing a sentence as provided for in s47(1)(f), (g) or (h) unless it has first obtained a pre-sentence report. (See the Act, s48.)
All of the above provisions were relevant to the learned magistrate's consideration of an appropriate sentence for each of OBG and MJW.
The submissions by counsel for the applicant
Counsel for the applicant submitted that the learned magistrate failed to give any, or any sufficient weight to general deterrence, punishment and denunciation, and that, as a consequence, the sentence imposed was manifestly inadequate in all the circumstances. If the review were to succeed, he sought orders quashing the sentences imposed by the learned magistrate, for the preparation of pre-sentence reports in respect of each respondent, and for this Court to re-sentence each respondent. In oral submissions, counsel submitted that a custodial sentence was warranted, albeit one which might be suspended.
In his submissions, counsel for the applicant accepted that the most important of the principles identified in the Act for the learned magistrate to consider was rehabilitation, and that he should impose a penalty which was the least restrictive having regard to the gravity of the offence, the age and level of maturity of the respondents, and the need to address issues of community protection. He then submitted that the learned magistrate did not appropriately address the principles set out in the Act, s5. He submitted that "behaviour of this kind" engaged in by the respondents deserved a sanction sufficient to act as a deterrent and referred to the decision of Burbury CJ in Quinn v Canning 36/1967. His Honour was there dealing with the review of a decision of a police magistrate to gaol a 17 year old for an assault committed in similar circumstances to those here. His Honour declined to interfere with the sentence. Counsel also referred to a comment by Evans J in the matter of DPP v NOP [2011] TASCCA 15 at par[42] where his Honour said:
"… whilst the needs of general deterrence are muted when dealing with a youth, they should not be ignored".
As to the remarks in Quinn's case, they need to be looked at in context. In that case, there appeared to be evidence of a group decision to start a "punch up" and a group, as a group, setting upon others. That would not be a fair representation of the factual scenario in the present case as found by Magistrate Dixon. As to the remarks of Evans J in the case of NOP, they should be put in context. The Court was there dealing with a 15 year old youth guilty of raping a six year old.
Counsel for the applicant also referred to a number of what he described as aggravating features of this case, accepting that none of them had been specifically put to the learned magistrate. He was obliged to concede that some were unsupported by evidence led, and others were his conclusions, as opposed to those which could be attributed to the learned magistrate.
It became clear from counsel's submissions that he held the view that the learned magistrate should have made further findings, particularly about the concept of these assaults being part of a "group attack" and that both respondents had done more than it was found they had. That view is apparent from both his written and oral submissions. There was an emphasis on what had been done by other members of the group in whose company the respondents were on the night of these incidents.
An example appears at par[9(v)] of the written submissions where counsel said:
"During the altercation the first respondent punched Jessica Brennan, who was trying to protect Mr Waiss-gates, although it was accepted by the Learned Magistrate that it was not an intentional application of force on behalf of the first respondent."
The first respondent was OBG. Firstly his Honour made no finding that OBG punched Jessica Brennan. He said that if (my emphasis) any blow was struck it may not have been intentional. He then found this allegation not proved against OBG.
It is important to remember that neither respondent was charged with affray nor being responsible for assaults by others on some basis. It was not open to the learned magistrate to sentence them as if they were in some way criminally responsible for the behaviour of others. OBG and MJW were each charged with identified assaults and were not found guilty of all they were charged with. They stood for sentence only in respect of the offences of which they were found guilty, and for the behaviour found to have underpinned the findings of guilt. To assert, as counsel for the applicant maintained, that it was incumbent upon the learned magistrate to find that this was a serious group assault and use that finding as a basis for sentence, would have been to seek a sentence in respect of behaviour with which neither respondent had been charged, let alone found guilty of.
It was open to the learned magistrate to have regard to the context in which the offending occurred, that is in a public place where the respondents were part of a group which outnumbered the complainants. It is clear from his remarks prior to actually sentencing the respondents that he was mindful of this.
Conclusion
As has often been said (it is apparent from the comments of Burbury CJ in Quinn's case), a magistrate when sentencing an offender has a very wide discretion. It is not for this Court on a review of a magistrate's sentence, to substitute its own view simply because a judge might have sentenced an offender in a different way. For the review to succeed, error on the part of the sentencing magistrate must be demonstrated.
In this case, the respondents were aged 16 and 17 respectively. Neither had any court based history. Both came from supportive families and were otherwise of good character. One was a first year automotive apprentice, and the other was still at school. While their behaviour cannot be condoned in any way, the behaviour which was found to be attributable to each was limited by comparison to that which the complainants gave evidence about as having been perpetrated against them by others. Injuries, specifically to Mr Manion, while serious, cannot be attributed wholly to MJW. The two boys stood for sentence in respect of the behaviour found to have been committed by them and not what the prosecution alleged. Further the learned magistrate was entitled to take into account the sentence imposed upon AWB, also a youth. There were clearly reasons for the respondents receiving a lesser sentence than AWB did. It should be noted that despite the suspended detention order imposed upon him, no convictions were recorded.
The outcome of the hearings may have been unpalatable for the prosecutor, and I have no doubt, the complainants. However, it is a feature of cases, where charges are laid in circumstances where a number of people are involved, the incidents occur in darkened places, people's recollections are distorted by fast moving events and the consumption of alcohol, that it becomes very difficult as his Honour recognized to determine who did what to whom.
The learned magistrate is an experienced magistrate and he had the benefit of observing both respondents in court. In sentencing, he exercised a discretion. Different judicial officers will frequently form different views as to what may or may not be an appropriate sentence. These views may be at different ends of a spectrum. A view, simply because it may be at one end of that spectrum, does not necessarily demonstrate error.
Having regard to the charges found proved against the respondents, the findings as to the conduct of each respondent, and the factors the learned magistrate had to consider, I am not satisfied that the applicant has demonstrated error on the part of the learned magistrate.
The notice to review is dismissed.
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