McKenna v Roughan
[2019] TASSC 23
•14 May 2019
[2019] TASSC 23
COURT: SUPREME COURT OF TASMANIA
CITATION: McKenna v Roughan [2019] TASSC 23
PARTIES: McKENNA, Troy Matthew
v
ROUGHAN, Anthony
FILE NO: 578/2019
DELIVERED ON: 14 May 2019
DELIVERED AT: Launceston
HEARING DATE: 14 May 2019
JUDGMENT OF: Brett J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Whether sentence manifestly excessive – Applicant pleaded guilty to one count of common assault and was sentenced to one month imprisonment wholly suspended – Offender's first offence – Sentence was appropriate in the circumstances and within the sentencing discretion of the magistrate – Sentence not manifestly excessive.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant M Doyle
Respondent: L Ogden
Solicitors:
Applicant: Clarke & Gee Lawyers
Respondent: Director of Public Prosecutions
Judgment Number: [2019] TASSC 23
Number of paragraphs: 10
Serial No 23/2019
File No 578/2019
TROY MATTHEW McKENNA v SERGEANT ANTHONY ROUGHAN
REASONS FOR JUDGMENT BRETT J
14 May 2019
This is my decision in respect of a motion to review a sentence imposed by Magistrate Stanton on the applicant on 20 February 2019. The applicant had pleaded guilty to one count of common assault, committed on 1 November 2018. His Honour convicted him of the offence and imposed a sentence of one month's imprisonment wholly suspended for 12 months, on condition that he not commit another offence punishable by imprisonment during that period. He was also ordered to pay costs and levies. The sole ground of review is that the sentence is manifestly excessive.
The test to be applied in determining a review on such a ground is well established. The Court must not substitute its own opinion, but may only interfere with the sentence if error in the exercise of the sentencing discretion can be inferred because the sentence is obviously excessive, or "unreasonable or plainly unjust", so that the only conclusion which can be drawn is that the sentencing discretion must have miscarried in some undefined way. See Barrett v Wilson [2015] TASSC 3, 69 MVR 333, Pearce J at [9].
The factual basis of the sentence, which was put to the magistrate by the prosecution, was qualified to some extent by the applicant's counsel in the plea in mitigation. The factual basis upon which sentence was imposed by the magistrate was ultimately in accordance with the version provided by the defence. This was not challenged by the prosecution at the time, and is not challenged by the respondent on this motion. The applicable factual basis of the sentence is as follows.
The complainant was sitting at the bar of a hotel having a drink when he was approached by the applicant and the co-accused. They asked him to confirm his first name. He offered his hand in greeting. The co-accused shook his hand and said "This is what you done to Emma". It was explained to the magistrate that Emma was a friend of the applicant and the co-accused, and an employee of the complainant. She was pregnant at the time and the applicant was aware of some problems between the complainant and Emma in respect of the employment relationship. There was no real detail given to the magistrate about these problems. They were described by the applicant's counsel in the plea in mitigation as "some entirely unacceptable workplace practices regarding work requirements with her pregnancy, illness, blood pressure …".
After the co-accused had made the comment, the applicant punched the complainant to the left side of his face. The prosecutor had asserted that he punched him several more times. This was in accordance with the particulars alleged in the complaint. However, the defence position was that there was only one punch from the applicant. This was followed by a return punch from the complainant which knocked the applicant to the ground. The co-accused then delivered several further blows to the back and ribs of the complainant. The complainant suffered a black eye, a blackened ear and some bruising, but did not receive medical attention. The magistrate accepted the defence version, but noted that the applicant was criminally responsible for the blows delivered by his companion, albeit solely on the basis that he abetted the ongoing assault by his conduct in commencing the violence.
The magistrate was told that the applicant was 42 years of age. He had no relevant prior convictions. The record of prior offending which was placed before the magistrate showed only a series of traffic offences. He operated his own business, was responsible for 20 employees and was not ordinarily a person prone to violence. It was submitted, and accepted by the magistrate that the conduct was out of character and not likely to be repeated. The applicant could not explain his conduct. It was asserted without challenge that the two men had not premeditated the violence. They had gone up to the complainant to discuss their concerns in relation to the complainant's treatment of Emma. Of course, if that is all they had done, and then left it at that, there would be no complaint about their conduct. They were certainly entitled to converse with the complainant. It was suggested by the applicant's counsel to the magistrate that the applicant believed that his poor judgment in commencing the violence may have resulted from the combined effect of alcohol and a medical condition. The magistrate was not prepared to accept that proposition without evidence, and the assertion was not pursued. The magistrate correctly noted, however, that the fact that the applicant was searching for an explanation was consistent with his claim that his conduct was out of character, that he had insight into the wrongful nature of his conduct, and that he was genuinely remorseful. These conclusions were also consistent with the applicant's very early plea of guilty. The magistrate concluded, again correctly, in my view, that specific deterrence was not a significant sentencing consideration. I would add that it is obvious as well that supervision or rehabilitation is not an important sentencing consideration in this case.
The other side of the coin, of course, in relation to the applicant's age and otherwise good character and experience of life is that he was not entitled to the sentencing benefit that sometimes accrues to a person who is a young offender, who may have acted immaturely, and in respect of whom the sentence should be framed to benefit and encourage rehabilitation. Quite frankly, the applicant was old enough and experienced enough to know exactly that what he was doing was wrong. His inability to control his actions on the night in question is not to his credit.
The magistrate did consider that there were a number of factors which aggravated the objective seriousness of the offence. These included the following:
· The applicant was the aggressor. He commenced the violence, which was then continued by his companion. As has already been noted, it may well be that his conduct in doing so, even though the violence was not premeditated, has encouraged his companion to continue with the violence.
· The motivation for the assault was retribution for the applicant's belief as to the complainant's conduct towards his friend, Emma. This was, in my view, a significant aggravating factor. The perpetration of violence as a means of resolving personal grievances, irrespective of the underlying justification for those grievances, is abhorrent to the rule of law and a peaceful community. Those who resort to violence for this purpose must expect stern punishment.
· The assault was perpetrated while the applicant was in company, and it occurred in a public place. The magistrate was not told whether there was anyone else in the bar at the time, but there was certainly the potential for that to be the case. It goes without saying that the complainant was entitled to enjoy the benefit of the public facility without being attacked in this manner.
· Finally, the assault was perpetrated by a punch delivered to the head of a person who had no reason to expect that he would be the subject of violence. A punch to the head, particularly when delivered to a person who is vulnerable because he is not expecting the blow, is patently dangerous. Such conduct often has unexpected and sometimes tragic consequences. The vulnerability and danger is increased when one or both of the assailant and victim have been drinking, and it can be inferred that each of them must have taken some drink on this occasion.
The magistrate concluded that denunciation and general deterrence were important sentencing considerations. I agree with this conclusion. Notwithstanding the mitigating factors, the applicant's personal circumstances, his genuine remorse and his appropriate response to the offending, the objective seriousness of the conduct called for a strong sentence. A sentence of imprisonment was such a sentence. I certainly would not accept, and I do not think Mr Doyle advanced this, but I would not accept that a sentence of imprisonment for a violent offence is never appropriate for an offender's first offence of violence. In my view, in this case, having regard in particular to the aggravated circumstances, the sentence imposed by the magistrate was entirely appropriate. The punitive impact was ameliorated by the suspension of the sentence, and the suspension also responded to the mitigating and personal factors referred to above. However, a sentence of imprisonment made clear that the applicant's conduct was unacceptable and that violence of this nature will not be tolerated by the courts. The sentence was appropriate in the circumstances and well within the sentencing discretion of the magistrate. The sentence was not manifestly excessive and nor could it be said to be unreasonable or plainly unjust.
The ground of review has not been made out. The motion is dismissed.
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