McManus v Bakes
[2014] ACTSC 297
•22 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | McManus v Bakes |
Citation: | [2014] ACTSC 297 |
Hearing Date(s): | 22 September 2014 |
DecisionDate: | 22 September 2014 |
Before: | Murrell CJ |
Decision: | Appeal dismissed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Appeal and new trial – appeal against sentence – whether failure to consider submissions regarding time spent in custody – whether erroneous consideration that appellant need demonstrate outstanding or extenuating circumstances before imposing non-conviction order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 17 Crimes Act 1914 (Cth) s 19B |
Cases Cited: | Balthazaar v The Queen [2012] ACTCA 26 House v The King (1936) 55 CLR 499 Stark v Plant [2010] WASCA 74 |
Parties: | Ryan Michael McManus (Appellant) Nathan Bakes (Respondent) |
Representation: | Counsel Mr J Lawton (Appellant) Ms A Begley (Respondent) |
| Solicitors Baker Deane & Nutt Lawyers (Appellant) Director of Public Prosecutions (ACT) (Respondent) | |
File Number(s): | SCA 29 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 26 March 2014 Case Title: R v McManus Court File Number(s): CC No 1555; 1556 of 2013 |
MURRELL CJ:
The appellant appeals against orders imposed by the Chief Magistrate for offences committed on 17 November 2013 of damaging property and using a carriage service to menace or harass. Her Honour imposed convictions and fined the appellant $650 and $2,500 respectively.
The appellant prosecutes two grounds of appeal:
(a)First, that the Chief Magistrate failed to consider submissions concerning the time that he had spent in custody; and
(b)Second, by leave, that the Chief Magistrate erred in deciding that the appellant had to demonstrate outstanding or particularly extenuating circumstances before she could exercise the discretion under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) or s 19B of the Crimes Act 1914 (Cth) (CommonwealthCrimes Act) and decline to impose a conviction.
There is an application to put further evidence before the Court in the event that resentencing is required.
It has been accepted that the appeal is in the nature of a House v The King appeal (House v The King (1936) 55 CLR 499). To succeed on such an appeal, the appellant must identify an express error, such as an error of fact or an error of law, or an inferred error (i.e. it is a necessary conclusion that the sentence imposed is either manifestly excessive or manifestly inadequate).
The appellant asserts that there has been express error.
The facts
Prior to the commission of the offences, the appellant and the complainant had been in a relationship. That relationship was over. On the day in question the complainant was at home with a friend. From about 3.50pm the appellant repeatedly called the complainant’s mobile telephone. Over a period of two hours he rang her about 45 times. She did not answer the calls.
He then sent four Facebook messages. He called her a “filthy lying slut”. He sent text messages calling the complainant a “slut” and threatening that if she did not answer her telephone, “I will come in and smash ... [her friend’s] head in.”
He then went to her home and sent further text messages, this time threatening to smash the window of her friend’s car. The complainant became very fearful and hid under her desk. The appellant banged on the window and yelled, demanding to be let in.
The offence of damaging property occurred when he picked up a fire extinguisher and banged it on a sliding glass door, shattering the glass.
Subsequently, the appellant expressed remorse. He sent the complainant a text message saying that he was sorry.
The appellant was very cooperative when he was taken into custody. He spent 12 or 13 hours in custody before bail was granted, which was a salutary experience.
The appellant’s case
At the hearing before the Magistrates Court, the appellant tendered very strong character material, demonstrating that he is a mature, reliable and dedicated worker, there are very low prospects of reoffending, he has endeavoured to address any anger issue by undertaking counselling and he is committed to ongoing counselling.
He submitted that, because he worked in defence, there may be stern consequences attaching to a conviction for the offences.
The complainant expressed her forgiveness of and support for the appellant. I accept the submissions made by Mr Lawton (which are similar to the submissions that were made to the Chief Magistrate) that the appellant was very emotionally upset at the time of the offences. He was remorseful almost immediately thereafter. He did everything within his power to address the situation, undertaking counselling and apologising. He is at a low risk of reoffending.
Consideration
First ground of appeal
The first ground of appeal is that the Chief Magistrate failed to take into consideration the fact that the appellant had spent 12 or 13 hours in custody, which was a salutary experience.
It is true that in her reasons, the Chief Magistrate did not refer to this matter. It is also true that the reasons were very detailed and that most other matters that were put to the Court were referred to in the reasons. However, the reasons were given ex tempore, immediately after the Chief Magistrate had heard evidence from the appellant about his experiences in custody over a 12 or 13-hour period and, after her Honour heard a submission in relation to that evidence. The evidence itself appears at pages 6 and 7 of Exhibit 1 and the submission appears at page 14.
A finding that the Chief Magistrate ignored the material cannot succeed just because she did not refer to it. She cannot possibly have ignored it, given that the evidence had just been given and was the subject of a submission. I do not infer that she failed to consider the material.
Second ground of appeal
The second ground of appeal is that the Chief Magistrate erred because she, in effect, cast an onus on the appellant to demonstrate extenuating circumstances as a prerequisite to a consideration of the discretion under s 17 of the Sentencing Act or s 19B of the CommonwealthCrimes Act.
Section 17 of the Sentencing Act and s 19B of the Commonwealth Crimes Act are structured in a similar, although not entirely identical way. Section 17 of the Sentencing Act enables a court to make a non-conviction order either with or without an associated good behaviour order. Subsection 17(3) provides:
(3)In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a)the offender’s character, antecedents, age, health and mental condition;
(b)the seriousness of the offence;
(c)any extenuating circumstances in which the offence was committed.
And subsection 17(4) provides:
(4)The court may also consider anything else the court considers relevant.
In this case, at page 25 of Exhibit 1, the Chief Magistrate referred to s 17 and s 19B. Her Honour went on to refer to the first matter set out in s 17(3), that is, the appellant’s character, antecedents, age, health and mental condition. In that context, her Honour said:
It seems to me that there is nothing outstanding or particularly extenuating there which alone would sway me to the exercise of a discretion pursuant to these sections.
Her Honour went on to consider the matters referred to in s 17(3)(b) (the seriousness of the offence), and s 17(3)(c) (any extenuating circumstances in which the offence was committed).
Having considered those three matters seriatim, her Honour concluded:
It seems to me [that] there are insufficient factors when I look at the situation as a whole to justify not recording a conviction in relation to these serious matters and I now do so in respect to both.
The proper approach to s 17 is discussed in Proud v Sladic [2014] ACTCA 26 (Proud v Sladic). Relying on Balthazaar v The Queen [2012] ACTCA 26 at [53], at [42], the Court of Appeal noted that the ordinary consequence of a finding of guilt is the recording of a conviction. The Court said that the failure to record a conviction is an exceptional outcome, referring to the case of Stark v Plant [2010] WASCA 74 at [18]. The Court discussed s 17 and, at [46], without reaching a firm conclusion, the Court indicated its support for the proposition that:
A non-conviction order may be justified by having regard to the whole of the relevant circumstances, no one of which is exceptional.
I accept (without finally deciding) that it is not necessary to establish exceptional circumstances before a court can exercise its discretion under s 17.
When the reasons of the Chief Magistrate are read in context, it is clear that her Honour was not asserting the need to establish exceptional circumstances. Her Honour merely considered each of the three items in s 17(3) and dealt with them seriatim. Her Honour was doing so in the context that the ordinary consequence of a finding of guilt is a conviction. To the extent that her Honour referred to “outstanding and particularly extenuating” circumstances in her reasons, she did not suggest that there was an onus on the appellant to establish an outstanding or particularly extenuating circumstance. Rather, her Honour indicated that, in respect of character antecedents etc, there was nothing distinctive about the appellant’s circumstances such that the ordinary consequence of a finding of guilt, i.e. a conviction, should not flow. Her Honour considered the factors in s 17(3) (a), (b) and (c), and then concluded that, when one looked at the situation as a whole, there were insufficient factors to justify the recording of a non-conviction.
That was an entirely proper approach, consistent with the decision in Proud v Sladic. It is important to look at the situation as a whole when deciding whether a non-conviction order is justified, bearing in mind that the ordinary consequence of a finding of guilt is a conviction.
Her Honour gave clear reasons for the approach that she took. Strong subjective material was advanced by the appellant. However, her Honour characterised the offences as domestic violence matters, a characterisation that was not disputed. In that context, her Honour considered that the sentencing purposes of accountability, denunciation, general deterrence and protection of the community from the harm associated with domestic violence were very important sentencing purposes, and was not persuaded that a non-conviction order was appropriate. I see no error in her Honour’s approach.
The Court is not called upon to exercise its discretion in relation to re-sentence. Had I been called upon to do so, I probably would have permitted the appellant to call fresh evidence as to the actual impact or actual likely impact of conviction upon his career, but I could not say that strong evidence of impact would necessarily have persuaded me to reach a conclusion that differed from that of the Chief Magistrate. The case involves, on the one hand, matters that are quite serious in an objective sense and, on the other hand, there are very strong subjective circumstances.
For these reasons the appeal is dismissed.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 5 November 2014 |
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