McElholum v Hughes
[2016] ACTCA 37
•29 September 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | McElholum v Hughes |
Citation: | [2016] ACTCA 37 |
Hearing Date: | 11 August 2016 |
DecisionDate: | 29 September 2016 |
Before: | Burns, Elkaim and Ross JJ |
Decision: | 1. The appeal is dismissed. |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – appeal from single judge of the Supreme Court – appeal against conviction and sentence |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 5606 Crimes Act1900 (ACT), s 26 Family Law Act 1975 (Cth), s 121 |
Cases Cited: | August v Commissioner of Taxation [2013] FCAFC 85; 94 ATR 376 Betts v The Queen [2016] HCA 25; 90 ALJR 758 SKA v The Queen [2011] HCA 13; 243 CLR 400 |
Parties: | Daniel McElholum (Appellant) Callum Hughes (Respondent) |
Representation: | Counsel Self-Represented (Appellant) Mr J White SC (Respondent) |
| Solicitors Self-Represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 23 of 2015 |
Decision under appeal: | Court: ACT Supreme Court Before: Refshauge J Date of decision: 24 April 2015 Case Title: McElholum v Hughes Citation: [2015] ACTSC 78 |
The Court:
Introduction
This is an appeal from an appeal. The original decision was made in the ACT Magistrates Court where the appellant faced a charge of assault contrary to s 26 of the Crimes Act 1900 (ACT).
Section 26 states:
“A person who assaults another person is guilty of an offence punishable, on conviction, by imprisonment for 2 years.”
The appellant defended the charge.
The matter was heard by Special Magistrate Lunney (the “magistrate”) on 30 August and 25 October 2013. The decision was given on 12 February 2014. The appellant was convicted.
The appellant was sentenced on 7 April 2014. He was fined $100 and ordered to pay costs of $69, a criminal injuries compensation levy of $50 and a victim’s service levy of $10.
The appellant appealed from the decision of the magistrate. The appeal was against both conviction and sentence.
The appeal was heard by Refshauge J on 26 June 2014. His Honour delivered his decision on 24 April 2015. The appeal was dismissed.
This appeal is from the decision of Refshauge J.
Fresh evidence
The Further Amended Notice of Appeal dated 2 March 2016 states that “the appellant will seek to put further evidence before the court”. This issue was dealt with at the commencement of the hearing.
10. The admission of further evidence is governed by r 5606 of the Court Procedures Rules 2006 (ACT). This rule requires the filing of an application at least 28 days before the hearing, supported by an affidavit setting out the grounds of the fresh evidence application and stating what will be the fresh evidence. Although the fresh evidence is described in the Further Amended Notice of Appeal, no application was filed in accordance with the above rule.
11. It does however appear that affidavits were delivered to the Court Registry on 3 August 2016. The Registry wrote, by email, to the appellant on 4 August 2016 telling him that an application needed to accompany the affidavit. As the appellant did not respond, the affidavit material was not sent to the respondent.
12. The appellant could not point to any reason that would justify the Court in relieving him of the need to comply with the rules of court. In addition, despite being reminded on more than one occasion (20 August 2015, 18 November 2015 and 16 December 2015) of the need to comply with r 5606, the appellant did not do so.
13. Documents said to constitute the fresh evidence are, however, included in the appellant’s submissions.
14. The fresh evidence sought to be relied upon here falls into three groups: Firstly, evidence that was available at the beginning of the hearing before the magistrate on 30 August 2013. Secondly, there is an email from Ms Tanya Howell dated 16 September 2013 which was available by the second day of hearing, 25 October 2013. Thirdly, there are advertisements or media reports and the appellant’s driving record.
15. The material in the first two groups does not meet the requirements for fresh evidence. These may be described as follows:
(a)The evidence must not have been available, or reasonably obtainable, at the hearing.
(b)The fresh evidence would, or at least may, have produced a different result had it been available (CDJ v VAJ [1998] HCA 76 at 184 and 195, Betts v The Queen [2016] HCA 25 at paragraph 10 and August v Commissioner of Taxation [2013] FCAFC 85 at paragraph 119).
16. Applying the tests above, the material cannot be described as ‘fresh’ and its use in the appeal was doomed to rejection.
17. The material in the third group is simply not admissible as evidence either in this court or before the magistrate or Refshauge J.
18. Two documents were identified as not having been dealt before Refshauge J. They are a Family Report dated 2 March 2013 and a letter to the Director of Public Prosecutions dated 30 June 2013. The former report may, in any event, have had admissibility restrictions under s 121 of the Family Law Act 1975 (Cth). Even if that were not the case, there was nothing about these documents that enabled them to be dealt with differently to the first group of documents. The Court did however allow the appellant to make submissions about sentence which included reference to media material.
19. There was no basis put forward for the exercise of the discretion to admit fresh evidence in the appellant’s favour. The application was rejected.
Grounds of appeal
20. There are four grounds of appeal against the conviction. They are:
(a)The finding of guilt was, in all the circumstances, unsafe and unsatisfactory.
(b)The learned judge erred in failing to take into account various witness statements and affidavits.
(c)The learned judge erred in the direction that he gave himself as to the test of assault and recklessness.
(d)The prosecution was improperly brought, or alternatively, it was not in the public interest to bring it.
21. There is a single ground of appeal against sentence; namely that the sentence was manifestly excessive in all the circumstances.
Background facts
22. Refshauge J summarised the facts behind the assault, commencing at paragraph 1 of his judgment (AB 32). The summary was in turn a summary of the findings made by the magistrate.
23. In 2012 the appellant was engaged in Family Law proceedings in the, as then known, Federal Magistrates Court, now known as the Federal Circuit Court. Ms Tanya Howell was his former partner. They were at the court premises in Canberra on 22 August 2012 in relation to the proceedings.
24. Ms Howell had retained solicitors who had in turn instructed counsel. The counsel was Ms Annette Haughton. The Federal Magistrate gave the parties time to discuss their dispute. Ms Howell, Ms Haughton, a law clerk (Ms Moutrage) and a solicitor (Ms Drayton) were in an interview room at the court premises.
25. The appellant wished to talk to Ms Howell or her representatives. He knocked on the door of the interview room. It was opened by Ms Drayton.
26. The appellant inquired as to whether a proposal that he had put forth had been considered. Ms Moutrage said that more time was needed, about 10 to 15 minutes. The appellant was displeased at the suggestion. Ms Moutrage told the appellant that somebody would speak to him when they were ready. Ms Drayton then attempted to close the door and Ms Haughton came to the door to assist.
27. As Ms Haughton put her left hand on the door handle, the appellant, from the other side of the door, pushed it open with such force that Ms Haughton was pushed back into Ms Drayton who was standing behind her.
28. Ms Haughton then moved to block the now open doorway. The appellant leaned closer and said “Who are you?”. Ms Haughton, now feeling threatened and concerned for Ms Howell, requested security. Security personnel arrived. The appellant then left the area.
29. About half an hour later, Ms Haughton complained of pain in her left wrist.
The appeal against conviction
30. The first ground is that “the finding of guilt was, in all the circumstances, unsafe and unsatisfactory”.
31. In his written submissions, the appellant has addressed this ground through seven sub-headings which are a list of complaints concerning the manner in which evidence was dealt with or the manner in which he was dealt with.
32. The first criticism of this ground, and it is a criticism which infects almost the whole of the appeal, is that the appellant has failed to distinguish between the appeal from the magistrate and the appeal from Refshauge J. The appeal to this Court is concerned with the latter decision and is a rehearing of that decision.
33. An example of the appellant’s incorrect approach can be found at paragraph 1.1.32 of his written submissions. This paragraph states:
This finding is inconsistent with the CCTV footage that shows Ms Haughton moving towards the appellant. The finding is of significance because it demonstrates Justice Refshauge has preferred evidence given by Ms Haughton over that of the appellant, even though the evidence given by Ms Haughton was inconsistent with the CCTV and the evidence of the appellant was consistent with the CCTV footage.
34. Refshauge J did not hear Ms Haughton give evidence. He did not “prefer” her evidence because he did not hear it. What he did do was carefully analyse the magistrate’s treatment of her evidence, and that of the other witnesses, and concluded that no error had been exposed.
35. This is not to say that errors of his Honour cannot be derived from errors arising from his dealing with the decision below him. They must however be errors of Refshauge J.
36. Thus for example, the submissions put from paragraph 1.1.1 attack the reliance on the evidence of Ms Haughton and the interpretation of CCTV evidence. These are all attacks on the hearing in the ACT Magistrates Court and they were all dealt with by Refshauge J.
37. To the extent that it is necessary to examine this ground further, the following comments are made:
38. Firstly it is important to state the role of this Court in the appeal. In SKA v The Queen [2011] HCA 13 starting at paragraph 11, French CJ, Gummow and Keifel JJ in the High Court, said:
11.It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".
12. This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'."
13.The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."
Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.
14. In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
"In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."
39. This was said in Filippou v The Queen [2015] HCA 29 at paragraph 11:
Beginning with the first limb of s 6(1) of the Criminal Appeal Act, it is clear from the terms of s 133(1) of theCriminal Procedure Act that the effect of the latter provision is to equate a judge's finding of guilt to a jury's finding of guilt "for all purposes". It follows from the natural and ordinary meaning of the words of s 133(1) that, for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge's finding of guilt is to be treated as if it were the same as a jury's finding of guilt.
Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen:
"It is only where a [judge's] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. ... If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."
Turning to the second limb of s 6(1) of the Criminal Appeal Act, it will be seen that to some extent it overlaps the first. A "wrong decision of any question of law" includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law. And, as with the first limb, the question under the second limb will be whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law.
The third limb covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial.
That leaves the proviso, which in terms is applicable to all three limbs of s 6(1). It directs that, even where error of the kind identified in any of the three limbs is established and amounts to a miscarriage of justice, the Court of Criminal Appeal may dismiss the appeal if it is satisfied that the error has not been productive of a substantial miscarriage of justice. By "substantial miscarriage of justice" what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description. Consequently, if the Court of Criminal Appeal is persuaded that the first limb applies, it will follow that it has concluded that there has been a substantial miscarriage of justice. In contrast, where the second limb applies, the circumstances in some cases may be such that, despite the judge making "the wrong decision of [a] question of law", the Court of Criminal Appeal is persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him or her. In that case the proviso will operate. Where the third limb is engaged, if the Court of Criminal Appeal has concluded that the appellant has not received a fair trial it will follow that it has concluded that there has been a substantial miscarriage of justice. But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate. It is also to be borne in mind, as was explained in Baiada Poultry Pty Ltd v The Queen and more recently noticed in Lindsay v The Queen, that, although the proviso is expressed in permissive terms, "if the condition (the conclusion that no substantial injustice has actually occurred) is satisfied” the proviso must be applied.
40. In the view of this Court, there was evidence upon which the magistrate could reach his finding. More importantly however, the judgment of Refshauge J contains a detailed analysis of this evidence, leading to this conclusion at paragraphs 207 and 208:
207.The learned Special Magistrate’s decision was one which was open to him on the evidence before him. The evidence of those in the interview room at the time of the assault was largely consistent and each corroborated the evidence of the other. His Honour had the advantage of seeing and hearing the witnesses and, on the issue of credibility, due respect must be given to that advantage: Devries v Australian National Railways Commission(1993) 177 CLR 472 at 479.
208. Accordingly, it was open to his Honour to find as he did and there is no error identified in this ground.
41. The appellant has clearly always considered that he would be exonerated by the CCTV footage. So much is clear from this exchange in the Magistrates Court at a directions hearing on 2 May 2013:
THE DEFENDANT: Well, I’m not satisfied that anyone has and I’ve written to the Direction [sic] of Public Prosecution asking whether the CCTV has been viewed because it clearly shows that there’s no assault that took place. And if the Director of Public Prosecutions says an assault took place I can confirm that there’s been at least 20 assaults in this hearing room this morning. (AB 64)
42. The magistrate prepared a log of what is shown in the CCTV footage (AB 248). It is detailed description of what is depicted. Notably he says at AB 249, concerning events at 12.22.22:
This time, there is significant movement to be seen on the part of the defendant. He tends to crouch a little and his movement in opening the door I assess to be a vigorous motion, and in doing so he took perhaps two steps towards the opening that was being created to the room by his movement in opening the door.
43. Refshauge J’s careful analysis was equally applied to the CCTV footage (from paragraph 209). At paragraph 222 he said:
I have viewed the footage and consider that the findings made by the learned Special Magistrate were open to him.
44. This Court has also viewed the CCTV footage and agrees with the analysis of both Refshauge J and the magistrate. The appellant was at pains to stress, and in fact it is the very essence of his appeal, that the three occasions on which he opened the door could not be distinguished from each other and represent no more than the frequently engaged action of opening a door. The appellant said that the three openings were the same and none of them was “unconventional”.
45. The appellant’s submissions may well be applied to the first two occasions on which he opened the door. They do not however fit with the third occasion. This time there is clearly a greater level of exertion, consistent with the descriptions given by the lay witnesses, of the movement of the door.
46. The appellant submitted that the CCTV footage did not show Ms Haughton to be knocked backwards by the opening of the door. This Court disagrees. There is a clear backward movement on the part of Ms Haughton, again consistent with the lay evidence.
47. The appellant expanded his submissions on the manner in which the door was opened to say that in order for his actions to have constituted an assault there needed to be a hostile intent. He relied on Boughey v The Queen [1986] HCA 29 at paragraphs 24 and 26. Firstly, this authority does not stand for what the appellant submitted, as shown in paragraph 28:
28. It follows that, properly understood, Phillips does not establish the general proposition that the intentional application of force to the person of an unwilling victim cannot constitute battery at common law or "assault" or "unlawful assault" under the Code unless it be accompanied or motivated by positive hostility or hostile intent on the part of the assailant towards the victim. Such hostility or hostile intent may well convert what might otherwise be unobjectionable as reasonably necessary for the common intercourse of life into assault under the Code or, as Phillips illustrates, preclude an excuse or justification of assistance or rescue.
48. The point being missed by the appellant is that his manner of opening the door was not otherwise unobjectionable.
49. Secondly, it is clear that a vigorous opening of a door, knowing that a person or persons are on the other side of the door, can amount to an assault. The appellant would not make this concession but the Court is firmly of the view that although an otherwise innocent act, the opening of the door can constitute an assault in circumstances such as those found by the magistrate.
50. The second ground is that the learned Judge erred in failing to take into account various witness statements and affidavits.
51. The statements referred to are presumably those the appellant wishes to have admitted as fresh evidence. His Honour dealt with each in turn stating why each one was not considered. In addition their admissibility has already been dealt with in the application for fresh evidence, which was rejected. For completeness here, the Court adds that the material said to have been ignored is material that was either not admissible or was available to the appellant when appearing before the magistrate.
52. The appellant made particular complaint about an affidavit that he had prepared and which he said he had been denied the use of. It is true that the magistrate did not allow the tender of the affidavit. The appellant however said that he had been denied the right to refresh his memory from the document. The transcript does not reveal that to be the case. The magistrate certainly did not allow the tender of the affidavit, nor did he allow the reading and use of annexures to the affidavit.
53. However, and this is the more important point, the magistrate did not prevent the appellant from cross-examining the Crown witnesses on material in the annexures that was said to be inconsistent with their oral evidence. The magistrate went no further than telling the appellant that the appropriate means of giving evidence in a hearing, of the type that was being conducted, was orally. There is no relevant statutory entitlement to rely on affidavit evidence in the criminal proceedings.
54. The fourth ground is that the “learned Judge erred in the direction that he gave himself as to the test of assault and of recklessness”.
55. This ground has already to some extent been dealt with above. In addition, as already mentioned generally, there is an initial problem with this ground of appeal. Refshauge J was hearing an appeal from the ACT Magistrates Court. In doing so he was conducting an enquiry into whether there was an error shown on the part of the magistrate. His Honour clearly stated his role from paragraphs 14 of his judgment (AB 33). No part of this role involves the judge having to direct himself on the law. That was the obligation of the magistrate. The judge was concerned with whether or not there was any error on the magistrate’s part.
56. Notwithstanding this misconception, it is nevertheless relevant to examine his Honour’s remarks on the relevant test for assault and recklessness. His Honour’s examination of the law commences at paragraph 179 (AB 49). Starting at paragraph 186, his Honour said:
186. To determine whether an action constitutes assault requires a focus on the precise terms on what was occurring and whether the actions constitute something more than simply going about one’s daily life. Thus, Robert Goff LJ in Collins v Wilcock at 1178, noted that:
persistent touching to gain attention in the face of obvious disregard may transcend the norms of acceptable behaviour and so be outside the exception. We do not say that more than one touch is never permitted; for example, the lost or distressed may surely be permitted a second touch, or possibly even more, on a reluctant or impervious sleeve or shoulder, as may a person who is acting reasonably in the exercise of a duty.
His Honour then continued at 1178:
In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend upon the facts of the particular case.
188. Carefully opening a door to enter a room is something that constitutes conduct in the ordinary course of life. However, to open a door with vigour and force, knowing that it is being closed by someone on the other side and being indifferent as to whether a person, whom a defendant knows to be standing behind the door, or is aware of that likelihood, could be struck or injured, goes beyond the limits of permissible ordinary conduct.
57. Higgins J, in R v Gabriel [2004] ACTSC 30 (20 May 2004) quoted the definition of an assault given by James J in Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439, at 444:
“An assault is any act which intentionally – or possibly recklessly – causes another person to apprehend immediate and unlawful personal violence.”
58. In R v Freeman-Quay(No 1) [2015] ACTSC 262, the elements of the offence of common assault were stated in this way:
(a)The accused intentionally or recklessly performed an act.
(b)The accused realised that the complainant might fear immediate and unlawful violence but performed the act anyway.
(c)The act caused the complainant to fear immediate and unlawful violence.
(d)The complainant did not consent to the act.
(e)There was no lawful excuse for the act.
59. The appellant’s point seems to be that an assault cannot be constituted by the simple opening of a door which happens to collide with a person on the other side of the door.
60. The difficulty for the appellant is that contrary findings of fact were made by the magistrate. He stated, at page 8 of the transcript dated 12 February 2014:
It was apparent from the evidence that defendant was aware of there being four persons in the interview room. When the door was opened for the first two times, he was able to see Ms Mutraj and Ms Howell. When the door was being shut the second time at second 21, he could see that neither of them were shutting the door. He therefore knew that whomsoever it was that was closing the door was one or both of two persons he could not see sitting or standing behind and hidden by the door.
He was also therefore aware that in vigorously opening the door in the direction of those persons, there was a chance of those persons being either struck by the door or otherwise injured, particularly if one or both of them was holding the door handle. As it happened, another person had displaced it, Ms Drayton, immediately prior to this opening the door the third time, and that was the complainant who was struck and apparently sustained a strain-type injury to the hand she was using to shut the door.
In my view, when he opened the door for the third time in the vigorous fashion I have found, the defendant was indifferent as to his clear knowledge of the presence of a person or persons behind the door and the possibility of injury to such person or persons if he opened it vigorously. Consequently, following Mr Refshauge in Ramalingam, it was reckless of the defendant to open the door in the manner that I find he did, and the contact of the door with the complainant constituted an assault. I find the defendant guilty of the offence brought.
61. If the criticism is of Refshauge J failing to identify error in the learned magistrate’s decision then it must be observed that he has made factual findings which were open to him and then correctly, as a matter of law, concluded that those findings “constituted an assault.”
62. The third ground of appeal is therefore rejected.
63. The fourth ground of appeal is that “the prosecution was improperly brought, or alternatively, it was not in the public interest to bring it.”
64. The appellant is essentially saying he should not have been prosecuted. That is not a question to be addressed by a court:
As Gaudron and Gummow JJ explained in Maxwell v The Queen, the independence and impartiality of the judicial process would be compromised if courts were perceived to be in any way concerned with who is to be prosecuted and for what. For this reason, their Honours considered that certain decisions involved in the prosecution process are insusceptible of judicial review. (Likiardopoulos v The Queen (2012) 247 CLR 265 at paragraph 37).
65. This ground of appeal is also rejected.
66. The final ground of appeal is that the sentence was manifestly excessive. It is trite to say that in examining this ground it must be concluded that the sentence was not only excessive but manifestly so. This is a high bar.
67. The High Court recently dealt with the question of a sentence being manifestly inadequate (Nguyen v The Queen [2016] HCA 17). This statement appears in the joint judgment of Gaegler, Nettle and Gordon JJ:
The nature and gravity of the subject offence of manslaughter was such that a sentence of nine years and six months' imprisonment was so plainly short of the mark as to bespeak error of principle and therefore necessitate appellate intervention.
68. Amending this principle to whether a sentence is manifestly excessive, the question to be asked is whether the sentence imposed by the magistrate was so plainly in excess of the mark as to bespeak error of principle and therefore necessitate appellate intervention.
69. The NSW Court of Criminal Appeal put the question this way:
In order to make out a complaint of manifest excess, the applicant must demonstrate that the sentence imposed was unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321; Markarian v R [2005] HCA 25; (2005) 228 CLR 357. (Ngatamariki v R [2016] NSWCCA 155)
70. The sentence here was a fine of $100 and some sundry expenses. This is a very small imposition.
71. The appellant submitted that although the fine was ostensibly small it had to be viewed against the background of what he told the magistrate about the expense and inconvenience that he had already been put to. For example, as can be seen at AB 256.24 and 258.228, the magistrate was told that the appellant had incurred some $2,000 in expenses, that he had lost wages and been required to do a good deal of travelling to and from Albury in New South Wales.
72. The appellant also pointed out that it was known to the magistrate, albeit from documents previously submitted in relation to conviction (Exhibit 1 in the appeal), that the appellant was a man of good character. The appellant referred to a number of media reports concerning well-known persons who appear to have been dealt with more leniently than he was for what, according to the reports, seemed like significantly more serious assaults.
73. It seems the appellant’s real point, is that he should have been dealt with under s 17 of the Crimes (Sentencing) Act2005 (ACT). The appellant pointed out that there was an extracurial effect on him by the sentence, firstly because as a solicitor it might affect his occupation, and secondly because the conviction could restrict his capacity to travel.
74. The s 17 option was open to the magistrate. However, as noted above, this was an assault in a court complex by a legal practitioner upon another lawyer. Further, the appellant displayed no remorse and could obtain no benefit from a guilty plea. On this basis, the sentence was well within the court’s discretion and could not be described as manifestly excessive. It is not relevant that a different court might have imposed a different sentence or that in another state, because of that state’s particular laws, the offence could have been dealt with by a fine and without conviction.
75. This ground of appeal is rejected.
76. The Court makes the following order: The appeal is dismissed.
| I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours, Burns, Elkaim and Ross JJ Associate: Date: 29 September 2016 |
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