McNulty v White

[2006] TASSC 85

[2006] TASSC 85

CITATION:              McNulty v White [2006] TASSC 85

PARTIES:  McNULTY, Dale Gerald
  v
  WHITE, Graham Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 17/2006
DELIVERED ON:  27 October 2006
DELIVERED AT:  Hobart
HEARING DATE:  13 October 2006
JUDGMENT OF:  Evans J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Relevant principles – Imprisonment as a last resort – Suspension of sentence of imprisonment.

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, referred to.
Aust Dig Criminal Law [826]

REPRESENTATION:

Counsel:
             Applicant:  G A Richardson
             Respondent:  J Ransom
Solicitors:
             Applicant:  G A Richardson
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2006] TASSC 85
Number of paragraphs:  16

Serial No 85/2006
File No LCA 17/2006

DALE GERALD McNULTY v GRAHAM ROSS WHITE

REASONS FOR JUDGMENT  EVANS J

27 October 2006

1. The applicant has filed a notice to review his conviction on a charge of common assault and consequential sentence to six months' imprisonment.

1. The evidence called against the applicant established the following:

·That at 12.42am on 12 December 2004 the applicant telephoned the complainant.  The complainant is a sex worker.  The applicant obtained the complainant's telephone number from an advertisement in the "X-Adult Services" column of the Examiner newspaper which promoted the complainant as: "Demi, busty brunette 5 minutes from Launceston".  The applicant spoke to the complainant for a little over two minutes and obtained details from her.  This was one of four telephone calls made by the applicant from his mobile phone between 12.28am and 12.57am to women advertising their services in the X-Adult Services column of the Examiner.  After the last of these calls, the applicant did not again use his mobile phone until about 9pm the following night.

·The applicant and the complainant had not previously communicated and were not known to each other.

·At about 2am on 12 December, a man knocked at the door of the complainant's unit and on confirming that she did sex, walked into her unit and stripped off his clothing.  She told him she required money up front.  He dressed and left saying he would be back in an hour.  The man was in her view for the whole of the time that he was in her residence, a period of about 10 – 15 minutes. 

·At about 2.40am, a man knocked on the door of the complainant's unit with a white tee shirt wrapped around his head.  Eye holes had been cut in the tee shirt.  The man was bare-chested and she recognised him as her previous visitor from his torso, clothing and voice.  He pushed through her door, abused her, threatened her, said he had been "sent around to deal with [and] basically kill" her, grabbed her in a headlock, straddled her and punched her to the top of the head, face and elsewhere.  He released her, told her not to move and ran to her kitchen where she heard what sounded like the cutlery drawer being opened.  She feared he was going to rape her at knife point because he was not willing to pay for her services.  She ran out of her unit to the residence of a neighbour and the police were called.  That call was placed at 2.51am.  This episode lasted between 10 and 15 minutes.

·On 15 December 2004 the complainant, assisted by an officer from the Police Forensic Services section, prepared a composite image of the face of the man who assaulted her.  The complainant told the officer that the result was a good likeness to her attacker.  At that time it was not known that the applicant was one of those who had telephoned the complainant in the early hours of 12 December.  The composite image prepared of the complainant's attacker is reasonably similar to the applicant.

·The police, having established that the applicant had telephoned the complainant at 12.42am on 12 December, interviewed the applicant on 15 February 2005.  He denied visiting or assaulting the complainant.  More specifically he denied telephoning the complainant.  As to the fact that phone records showed that his mobile phone had been used to telephone the complainant at 12.42am on 12 December, he said that he knew nothing about the phone call and suggested that his son, or a friend of his son, may have used his phone.

·On 16 February 2005 the complainant was shown a photo board containing photographs of the faces of 12 men, one of which, photo 3, was that of the applicant.  When she examined the photo board she was aware police had a suspect in mind and she thought it likely that the suspect's photograph would be on the board.  She identified photographs number 3 and number 9 as looking similar to her assailant.  She said that photograph number 3 looked more like her assailant and she was fairly confident, 90 per cent sure, it was a photograph of her assailant.

·On 4 April 2005 police officers again interviewed the applicant in relation to phone calls made from his mobile phone in the early hours of 12 December.  The applicant was referred to the four phone calls made to women who had advertised their services in the X-Adult Services column of the Examiner.  The applicant denied making any of the calls.  He was told that police had interviewed his son, who said that at the relevant time he had no contact with his father and had no access to his father's mobile telephone.  The applicant responded that of course his son would say that, but that his son was off the rails, had stolen the applicant's wallet and had crashed the applicant's car.

·On 2 February 2006, the applicant was one of quite a few people, the majority of whom were men, in the foyer at the Launceston Court of Petty Sessions.  The complainant was directed to the foyer and asked if her assailant was there and, if so, to point him out.  She identified the applicant as her assailant.

·That over a period including 12 December 2004 the applicant's son did not stay with the applicant and the applicant's son did not use the applicant's phone to telephone sex workers. 

1. On the close of the prosecution case, the applicant gave evidence to the following effect.  He had never been to the complainant's residence and had not assaulted her as alleged.  When interviewed by police on the two occasions about telephoning the complainant at 12.42am on 12 December 2004 he had truthfully denied making that phone call.  However, after the second police interview on 4 April 2005 he had spoken to a good friend, Lee Stevenson; she had reminded him that they had been out together on the night of 11 December 2004 and returned to the applicant's residence at about midnight whereupon he obtained the phone number of several sex workers from the Examiner newspaper and telephoned them.  The applicant said he had made the calls to get he and Lee in the right frame of mind, a bit randy.  After he made the calls, he and Lee had sex.  It was very unusual for him to telephone sex workers.  When he had been interviewed on the two occasions by police officers, he could not recall telephoning the sex workers.

1. Lee Stevenson was called as a defence witness.  She gave evidence to the following effect.  On a night in December 2004 she and the applicant went out for a meal.  They returned to his residence where, at about midnight, he telephoned three or four sex workers to ask questions and nothing more.  It was a spur of the moment thing and was done out of curiosity.  They had not done this before.  She had stayed at the applicant's residence that night, but they had not had sex, their relationship was not sexual.  It was put to her that the applicant had said that they had sex that night and she replied, "If Dale said that we did, then we did".  She said that after the applicant was charged (this was following his interview by police on 4 April 2005) the applicant had asked her if she remembered whether the night of the alleged assault was about the night that they had telephoned sex workers.  She did not give evidence to the effect that it was she who had reminded the applicant of these phone calls.  She said it was the applicant who had approached her in relation to trying to remember the phone calls to sex workers.

1. After reserving his decision, the learned magistrate gave detailed oral reasons for convicting the applicant.  His Honour placed reliance upon the applicant's telephone call to the complainant shortly prior to the assault, the applicant's lies about having made that phone call, which the learned magistrate attributed to a consciousness of guilt, and the identification evidence.  The learned magistrate rejected as unbelievable the applicant's evidence to the effect that he had no memory of making the phone calls to the sex workers until after he was charged and was reminded of the calls by Lee Stevenson.  The learned magistrate rejected Lee Stevenson's evidence as worthless as she had demonstrated that she was willing to change her evidence to accommodate the evidence of the applicant.

1. The applicant has appealed his conviction on the ground that it is unsafe and unsatisfactory.  As to the approach to be taken to this ground when dealing with a notice to review under the Justices Act 1959, s107(4)(a), I extract the following from Levy v Gray A11/1996, Underwood J (as he then was) at 2 - 6:

·If the evidence lacks probative force in such a way as to lead the appellate court to conclude that even making an allowance for the advantages enjoyed by the magistrate, there is a significant possibility that an innocent person has been convicted, then the court is bound to set aside the conviction.  A miscarriage of justice will be established if the appellate court concludes upon the whole of the evidence that it was not open to the magistrate to be satisfied beyond reasonable doubt of the accused's guilt.

·Whilst it is necessary for the appellate court to review the evidence and reach its own conclusion, detection of error is the object of that review, albeit that such error may be satisfaction on the part of the appellate court that a reasonable doubt ought to have been entertained by the magistrate.

·The review involves not only the evidence, but also the magistrate's views upon that evidence.  Findings of fact based on credit should not be disturbed unless there is a very good reason to do so.  Regard must be had to the reasoning process of the magistrate.  It is not possible to be satisfied that a magistrate ought to have entertained a reasonable doubt and that the failure to do so constituted an error, without looking at the reasoning process and findings of fact that led to the alleged error.  If the magistrate's findings were open, they should not be disregarded upon review unless there is cogent reason to do so.

1. In my view, the conviction is not unsafe and unsatisfactory.  By his particulars of this ground, the applicant challenges the identification evidence.  Whilst alone it was insufficient to justify a conviction, it was clearly of probative value.  It was not expressed to be an unequivocal identification of the applicant as the assailant and there were other reasons for discounting it to the level of evidence that the applicant looked like the assailant.  The learned magistrate so dealt with the identification evidence.  The applicant contends that the evidence of his phone call to the complainant at 12.42am on 12 December was equally consistent with the prosecution case and his evidence on the hearing.  This finesse ignores the significance of the evidence of that telephone call.  It shows that shortly prior to the assault, the applicant was manifesting some form of interest in sex workers, one of whom was the complainant and that he obtained details from her.  It accordingly provides a link between the applicant and the complainant and some basis for his presence at her unit.  There is no reason not to concur with the learned magistrate's rejection of the explanation for this phone call given by the applicant and Ms Stevenson.  A review of their evidence strongly suggests that it was devoid of credibility.  The applicant contends that in determining that his lies about having phoned the complainant were made out of a consciousness of guilt, the learned magistrate failed to consider other reasons why the applicant may have lied.  I reject this submission.  That the learned magistrate did not expressly detail and address other reasons for the applicant to lie does not mean that he did not consider them.  The finding that the lies were told out of a consciousness of guilt was open and reasonable.  The learned magistrate did not, as the applicant contends, overly elevate the importance of the evidence of the applicant's lies.  The applicant also contends that the learned magistrate failed to address the absence of evidence of motive and the possibility that others who phoned the complainant at or about the relevant time may have been her assailant.  These matters were obvious and there is no reason for surmising that they were overlooked by the learned magistrate, although he did not expressly refer to them.  It is not necessary for a decision-maker to identify and address every possibility.  These possibilities do not provide a basis for concluding that it was not open to the learned magistrate to be satisfied beyond reasonable doubt of the applicant's guilt.

1. There was no suggestion that the complainant was not assaulted as she alleges.  The key issue before the learned magistrate was whether the applicant was the assailant.  That issue was the fundamental link in the chain of reasoning to establish the applicant's guilt and as such it was a matter that had to be established beyond reasonable doubt.  A number of the criticisms advanced on behalf of the applicant in relation to the learned magistrate's decision had implicit in them the proposition that all matters relied upon by the learned magistrate in reaching his decision had to be established beyond reasonable doubt.  That is not so.  Each of the matters relied upon by the learned magistrate, the evidence of the phone call, the circumstances in which the phone call was made, the identification evidence and the evidence that the accused had lied about the phone call were strands in the cable of reasoning he followed in concluding that the applicant was guilty.  There is no justification in elevating any one of these matters, for example the evidence that the accused had lied, to an indispensable link in the chain of reasoning which had to be established beyond reasonable doubt.  As explained in Edwards v R (1993) 178 CLR 193, Deane, Dawson and Gaudron JJ at 210:

"Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof.  It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted."

1. The appeal against the applicant's conviction is dismissed.

1. The applicant appeals against the sentence of six months' imprisonment on the ground that it is manifestly excessive.  The applicant was 37 years of age.  In the course of the sentencing hearing, the learned magistrate was informed that the applicant had no relevant prior convictions, was a qualified tradesman and successful businessman, and was responsible for the full time care of two of his children who were aged 14 and 15.  Counsel for the applicant told the learned magistrate that there was nothing remarkable about the applicant's background that might explain the offence.

1. In sentencing the applicant, the learned magistrate said:

"Well I take into account the fact that you are a mature man, that you have no prior convictions for offences of violence to the person, and that accordingly this offence is and should be viewed out of character insofar as you are concerned. I am told you are a successful man in your own business and you have investments. I would not be assisted by a pre-sentence report in this matter.

This was a serious, very serious assault. It was an assault committed upon a defenceless woman, in her own home, shut away from the world, and from help, and it was accompanied by a threat to kill and that in itself to her great alarm seemed to be about to take place when she said that you went into her kitchen and she heard what appeared to be your searching for a knife, to accompany the very threat that you had given her, that was to kill her. She was terrified and justifiably so. Prostitutes, or I perhaps should say sex workers, by the nature of their work expose themselves to the risk of harm without help at hand and I believe it cannot be again said that the aspect of general deterrence demands a proper place in the sentencing process in your case. In my view that place demands a term of imprisonment.

You are convicted and sentenced to a term of six months' imprisonment which you will serve."

1. Serious aspects of the assault are that the applicant entered the complainant's unit with his face masked in the early hours of the morning, a time when it was to be expected that she would be alone.  It was not, however, an assault that involved the use of a weapon or resulted in serious injuries.  When examined at the Launceston General Hospital, she was noted to have suffered bruising to her right shoulder, right elbow, right forearm and forehead.  She had a superficial laceration inside her lower lip and complained of a painful left foot.  She was discharged home with instructions to take simple analgesia.  It appears from photographs of her bruising that it was not dissimilar to that suffered from an accidental bump or fall.  Whilst this suggests that extreme force was not applied, it is to be remembered that the force was accompanied by threats to deal with her and basically kill her. 

1. As the applicant, a man aged 37, had no prior convictions, it seems that his offence was out of character and that personal deterrence was not of prime importance in the sentencing process.  This appears to be the view taken by the learned magistrate.  As I understand his comments when passing sentence, he said the demands of general deterrence were the reason for imposing an immediately effective sentence of six months' imprisonment.

1. The penalties for common assault are a fine not exceeding $2,000 or imprisonment for a term not exceeding twelve months; the Police Offences Act 1935, s35(1A). These penalties are alternative, an offender cannot be both imprisoned and fined; Rosevear v Bonde [2005] TASSC 95 [6]. In her text Sentencing in Tasmania, 2nd ed, Federation Press, Professor Warner analyses the sentences imposed for common assault in the south of the State in 1999 and 2000 and, at par14.207, she says that fine and dismissal are the most common outcomes, with about 22 per cent of offences attracting a sentence of imprisonment, the median sentence being one month.  As to an assault in contravention of the Criminal Code (which may attract a far more significant penalty than a common assault), at par11.323, she says that only 21 per cent of single count sentences for assault between 1990 and 2000 were non-custodial, and at par11.324 she says that about half of the single count custodial sentences were wholly suspended; sentences under six months being the most likely to be wholly suspended.  She also notes that comments on passing sentence indicate that offenders with no prior convictions who were unlikely to re-offend attract wholly suspended sentences.

1. Against this background it can be seen that the sentence of six months' imprisonment imposed on the applicant for his common assault was at the top of the range of penalties imposed for that offence.  Over the two years analysed by Professor Warner, only 22 per cent of the sentences imposed for this offence were sentences of imprisonment, and the maximum sentence imposed was a sentence of six months' imprisonment.  In the light of the applicant's prior good record and the extent of the complainant's injuries, this suggests that the period of his sentence was excessive.  I do not, however, propose addressing the length of the sentence any further as, when account is taken of the impact on short sentences of remissions pursuant to the Corrections Regulations 1998, reg23, this would probably amount to no more than tinkering. Accordingly, the crucial issue that confronted the learned magistrate when sentencing the applicant was whether to wholly suspend the sentence. An immediately effective custodial sentence, the most serious penalty now known to the law, is conserved for cases where the relevant alternatives have been exhausted; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 296. As already mentioned, Professor Warner's analysis of the comments on passing sentence for an assault in contravention of the Criminal Code is that they indicate that offenders with no prior convictions who are unlikely to re-offend attract wholly suspended sentences.  The applicant was such an offender and the circumstances of his offence were not such as to bar the learned magistrate from extending to the applicant the forbearance of a wholly suspended sentence.  As the learned magistrate failed to do so, I am persuaded that he erred.

1. The appeal against sentence is allowed and I order that the sentence imposed be varied by the addition of a term that the whole of the sentence of six months' imprisonment be suspended on condition that the applicant is of good behaviour for three years from 2 June 2006.