Mitchell v Police - [2007] SASC 363

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
MITCHELL v POLICE
[2007] SASC 363
Judgment of The Honourable Justice Bleby (ex tempore)
8 October 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence imposed by a Magistrate – appellant pleaded guilty to one count of aggravated assault cause harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) – sentenced to six months immediate imprisonment – victim of assault was the appellant’s wife – victim suffered severe bruising to arms, face and chest and a fractured nose – victim suffered from severe anxiety and depression and committed suicide six months after the assault – assault not an isolated incident but occurred against a background of domestic violence – whether sentence of six months imprisonment manifestly excessive – whether Magistrate erred in failing to suspend sentence in whole or in part – whether Magistrate failed to properly take into account the appellant’s personal circumstances – whether Magistrate adopted an incorrect sentencing procedure – Held: appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Criminal Law (Sentencing) Act 1988 (SA) s 38(2a), referred to.
Papastamatis v Police [2003] SASC 120, applied.
Landers v Police [2002] SASC 185, not followed.
Birch v Fitzgerald (1975) 11 SASR 114, discussed.
R v Wilton (1981) 28 SASR 362; R v Palliaer (1983) 35 SASR 569, considered.

MITCHELL v POLICE
[2007] SASC 363
Magistrates Appeal: Criminal
BLEBY J:
Introduction

This is an appeal against sentence. The appellant was convicted following a plea of guilty of aggravated assault causing harm, contrary to s20(4) of the Criminal Law Consolidation Act1935 (SA) (“the Act”). He was sentenced to six months immediate imprisonment. The offence was an aggravated offence because it was committed against a member of the appellant’s family, namely his wife. The maximum penalty for the offence specified in the Act is imprisonment for four years.
The appellant was sentenced on 22 August 2007. He was granted bail pending the outcome of this appeal on 27 August 2007.
The Facts
At the hearing of his plea of guilty a document entitled ‘Agreed Facts’ was provided to the Magistrate in support of the sentencing submissions. The parties did not deviate from or add to those facts during the course of submissions on penalty. The facts agreed between the parties were as follows:
1.The defendant and the victim had been married for 25 years. Prior to this offence, there had been considerable tension between the defendant and the victim over various matrimonial issues. Tanya Mitchell had reported the defendant to the RSPCA for allegedly kicking the family dog.
2.At about 10pm on Friday 2 February 2007, the victim returned home from working as a nurse at the RAH. The defendant had come home earlier that afternoon and consumed about 8 cans of beer. The defendant approached Tanya to ask her about a letter he had received from the RSPCA alleging that he had been ill-treating their dog. Tanya replied “you needed to be taught a lesson”, which angered the defendant.
3.The defendant retired to his bedroom for about 30 minutes. Tanya Mitchell then sat down at the computer to do some research for her work. Shane Mitchell then came into the family room and took hold of the chair in which Tanya was seated and turned her around to face him. He said words to the effect “this is bullshit, Tanya, we need to work matters out.” Tanya responded by saying “you can pay me”. The defendant then lost it saying “I fucking hate you”. He punched her in the face twice before Tanya protected herself with her arms, but the defendant continued to punch and slap her on the arms for about 30 seconds and then came to his senses.
I should interpolate here, although it is not part of the agreed facts, that there was evidence that for part of this time the victim was unconscious.
4.Tanya left the house, went out to the street and was assisted by a neighbour, who called the police.
5.Police attended and the accused was arrested. He admitted that he had punched his wife.
6.The injuries to the victim included bruising to the temporal region of her head, face, shoulder, both arms, chest and a nasal fracture.
7.This was not an isolated incident but occurred against a background of domestic violence.
Prosecution Submissions to the Magistrate
During the course of submissions to the Magistrate, photographs were tendered showing the bruising to the victim’s arms, face and left breast and blood on the floor at the place where the assault occurred. Victim impact statements of Tanya Mitchell and Melissa Mitchell, the daughter of the victim and the defendant, who was in her 20’s at the time of the offence, were read aloud. It was submitted by the prosecution that to the extent that those statements were inconsistent with the agreed facts they should be disregarded in that respect. The prosecution submitted that this was a very serious assault which had very serious effects upon both the victim and her daughter, as evidenced by their victim impact statements and by the fact that approximately six months after the assault the victim committed suicide.
The assault had a profound affect on the victim, causing her great anxiety, embarrassment and pain. The assault, together with the victim’s subsequent suicide, had similar effects upon Melissa Mitchell, her daughter.
Defence Submissions to the Magistrate
The submissions put on behalf of the defendant and largely repeated in the course of this appeal were that the Magistrate should suspend any sentence of imprisonment imposed. This was based on the defendant’s good record - he had no convictions for violence - and his good work history, the fact that the offending occurred in tense circumstances in which alcohol was involved and lasted 30 seconds, that the defendant admitted the assault to the police and regretted his conduct immediately, and that the defendant indicated a guilty plea at the earliest opportunity. It was also submitted that the defendant underwent a psychological assessment which revealed no psychological problem, but which did recommend anger control counselling. There was no report from a psychiatrist or psychologist relied upon before the Magistrate.
The defendant did attend anger control counselling on three to four occasions prior to his final court appearance. It was also said that the victim’s injuries were not at the higher end of the scale in that they required no hospitalisation. It was submitted that the defendant could not have reasonably foreseen the victim’s suicide, that he was in full-time work, that he was a hard worker and used most of his free time on weekends working for the financial security of the family and that he would have great difficulty in meeting his financial commitments if a prison term were not suspended. It was also put that the defendant was unlikely to offend again. The defendant tendered four character references provided by friends, all of which indicate that the defendant was a good family man who always worked hard and tried to provide for his family as best he could.
The appellant was aged 46 at the time of the offence. He had been married to the victim for some 25 years and they had two adult children, neither of whom was living at home at the time. At least over the previous four to five years the marriage had been under strain and it had been characterised by angry disputes and physical violence.
Relevant Considerations
The attack may not have been entirely unprovoked. There was some attempt on the appellant’s part to talk things out, but the attack was entirely without justification. At worst it might be said that the victim made a remark which the appellant regarded as insulting. However, that was no excuse for the brutal and relentless attack which followed. The victim was quite defenceless in the circumstances. She suffered severe bruising to her arms, her face, and her left breast and suffered a fractured nose. Although the appellant may not have realised it at the time, or have intended this effect, it is clear from the victim impact statements of the victim and her daughter that the attack brought about an acute state of insecurity, anxiety and depression in the victim, so much so that she engaged in at least two attempts, one of them ultimately successful, in committing suicide.
The consequences of the attack, whether intended or not, were extremely serious. The other relevant and important feature of the case was that this was not an isolated incident. It was committed against a background of ongoing domestic violence. The offending was therefore not out of character or an isolated or one-off incident.
The Magistrate’s Reasons
The Magistrate in carefully considered reasons weighed up all the relevant factors. He was concerned with personal and, particularly in this case, general deterrence, and issues of the safety of the community. This was not only from the danger of the defendant’s possible conduct but the safety of the community if serious episodes of domestic violence are not adequately punished. In that regard the Magistrate was supported by authority of this Court.[1]
[1] Papastamatis v Police [2003] SASC 120 at [32].
The Magistrate was also conscious of the appellant’s prospects of rehabilitation, his remorse and contrition, his financial responsibilities and his good work record. He took note of the testimonials that had been submitted, finding that they were inconsistent, at least to some extent, with the agreed facts before him.
The Magistrate had regard to the profound impact on the victim and her family and the fact that this was not an isolated incident. In other words that this was not an isolated attack under provocation.
The Magistrate described the attack as ‘entirely unprovoked’. It was certainly not provoked by any physical attack on the appellant by his wife. As I said, it may have been provoked by the remark that she made, but the appellant had clearly been working himself into a state of anger and retribution over the preceding 30 minutes and approached his wife, when he entered the room, in an aggressive manner. There was no suggestion of any psychological or psychiatric factors which might have explained the attack.
Whether the Sentence was Excessive
I reject the argument that the sentence of six months imprisonment was excessive in the circumstances. The defendant inflicted serious harm on the victim, far more serious than he may have realised at the time. Given the maximum penalty that could have been imposed, in my opinion the sentence was moderate.
In the case of Birch v Fitzgerald[2] the former Chief Justice, Dr Bray, said this of the appellant who was then before him:
The appellant is not a criminal in the ordinary sense. He is not likely to be a menace to society. He is not in need of rehabilitation or supervision. I accept that he is a responsible member of society and that imprisonment will cause hardship to him and to his family. Nevertheless there are offences in which, as it seems to me, the deterrent purpose of punishment must take priority. When people act under the influence of liquor, passion, anger or the like so as to constitute themselves a physical danger or potential physical danger to other citizens it may well be that a sentence of imprisonment will be appropriate, even in the case of a first offender of good character, in order to impress on the community at large that such behaviour will not be tolerated. Parliament has regarded a second offence of driving under the influence of liquor as falling into that category. A court will often in my view be justified in treating unprovoked violence in the same way in the absence of mitigating circumstances.
[2] (1975) 11 SASR 114 at 116-117.
The former Chief Justice went on to note that the type of violence he was then dealing with in that matter was increasing. The Magistrate in this case was clearly, and it would appear justifiably, concerned at the levels of domestic violence coming before Magistrates Courts. He was entitled to take notice of that and to act on it. Any complaint about the severity of the term of imprisonment must therefore be dismissed.
Suspension of the Sentence
I turn to the question of suspension of the sentence. It was argued that the sentencing process miscarried by the Magistrate first finding, without fixing a term of imprisonment, that a sentence of imprisonment was appropriate and by then considering whether the sentence should be suspended, again without having stated the term he had in mind. He decided that suspension was not appropriate for reasons that he then gave, and he concluded:
Accordingly there will be a conviction and a period of imprisonment of six months which will commence forthwith.
There are decisions of this Court where that process has been criticised because it is a process, particularly in cases of multiple offenders, where its adoption has led to injustice which warranted interference on appeal.[3]
[3] R v Wilton (1981) 28 SASR 362 at 367; R v Palliaer (1983) 35 SASR 569.
It is undoubtedly the preferred course to follow, once a decision is made to impose a sentence of imprisonment, first to fix the appropriate sentence and then to consider whether that sentence should be suspended. However, it does not follow that the failure to follow that course in itself constitutes appealable error. To the extent that Gray J so held in Landers v Police[4] I respectfully disagree with him. The Court will only interfere in such circumstances where it can be shown that the failure to observe that process caused error or a miscarriage of justice.
[4] [2002] SASC 185.
I have already held that the sentence of six months imprisonment in this case was not manifestly excessive. The Magistrate had a discretion to exercise as to whether the sentence should be suspended. He gave careful consideration to whether the sentence should be suspended. The principal factors that weighed against suspension were the profound effect of the attack on the victim and her family and that this was not an isolated incident. The Magistrate mentioned other relevant factors. He again considered that general deterrence was required to take precedence over considerations personal to the appellant.
It cannot be said that the Magistrate failed to take relevant considerations into account or that he took into account irrelevant considerations in making that decision. Whether I or some other judge or magistrate in the same circumstances would have reached a different conclusion is not relevant. The Magistrate was entitled to reach the decision he did, and there are no grounds on which this Court can properly interfere.
There is little to be gained in a case of this nature by referring to the circumstances of other decided cases, each one of which has its own peculiar facts which affect the result. I have read all the cases cited to me by Mr Heffernan. Each is different and of little help in resolving the circumstances of this appeal, which can only be decided by applying the correct principles to the facts of the case.
Finally, in respect of suspension it was argued that the Magistrate did not address his mind to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA). That is the section which enables a court, where the sentence of imprisonment is greater than three months but less than one year, to direct that a specified period of not less than one month be served, with the remainder of the period to be served on a bond. I reject that argument.
The Magistrate decided that suspension of the sentence was not warranted in this case. Had his Honour decided that suspension was warranted, he would then, but only then, have had to consider whether the sentence should be suspended in whole or in part in accordance with the provisions of that subsection. The question of s 38(2a) of the Criminal Law (Sentencing) Act therefore did not arise in this case.
Conclusion
In all the circumstances the appeal is dismissed. In accordance with the conditions of his bail, the appellant must appear before a magistrate at the Elizabeth Magistrates Court within 14 days of today to abide the result of this decision.