Moore v Rittman - [2018] TASSC 5

[2018] TASSC 5

COURT: SUPREME COURT OF TASMANIA

CITATION: Moore v Rittman [2018] TASSC 5

PARTIES:  MOORE, Luke (Senior Sergeant)
  PARKER, John (Senior Sergeant)
  v
  RITTMAN, Quentin Charles

FILE NO:  1861/2017
DELIVERED ON:  13 February 2018
DELIVERED AT:  Hobart
HEARING DATE:  17 October 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Discretion to record conviction – Generally – Emphasis on rehabilitative approach – Magistrate's decision to not record conviction for first time family violence offences was not manifestly inadequate – Motion to review dismissed.

Sentencing Act 1997 (Tas), s 7(f).
Cannell v Probert [2017] TASSC 69; Director of Public Prosecutions (Acting) v J C N [2015] TASFC 13; Bonde v Ellery [2016] TASSC 43, cited.

Aust Dig Criminal Law [3410]

REPRESENTATION:

Counsel:
             Appellant:  L Pennington
             Respondent:  In person
Solicitors:
             Appellant:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 5
Number of paragraphs: 21

Serial No 5/2018
File No 1861/2017

SENIOR SERGEANT LUKE MOORE
and SENIOR SERGEANT JOHN PARKER
v QUENTIN CHARLES RITTMAN

REASONS FOR JUDGMENT BRETT J

13 February 2018

On 15 June 2017, Magistrate S Cure imposed sentence on the respondent in respect of two counts of assault and one count of breaching a police family violence order. The assaults were perpetrated against the respondent's partner and constituted family violence. The sentence consisted of an order pursuant to s 7(f) of the Sentencing Act 1997 that, without recording a conviction, the proceedings be adjourned for two years and the respondent be released on his undertaking that he would be of good behaviour in that period and appear for conviction and sentence if called upon, and further that he was to complete the Men's Behaviour Change Program with Relationships Australia, and, if called upon to do so, provide proof of completion.
The applicants seek a review of this sentence. The sole ground of review is that the sentence imposed is manifestly inadequate in all of the circumstances.
According to the facts read by the prosecutor to the court without dispute from the respondent, the first assault occurred on 20 February 2017. The respondent and his partner were then, and still are, in a significant relationship and have twin children aged 2½ years. The assault took place during the course of an argument between them. It commenced while they were changing the children's nappies in the lounge room of their home. During the course of the argument, the respondent punched his partner to her head on a number of occasions. When she fell to the floor, he grabbed her throat with his hand and covered her mouth with his other hand. He held her like this for approximately 30 seconds. When she broke free, he grabbed her again to her throat and mouth and held her for another 30 seconds. On both occasions, his hold around her neck and mouth caused restriction of her breathing. She suffered bruising to her left eye, breast and stomach area, but did not require medical treatment.
The second assault occurred on 3 March 2017. The parties were again in the lounge room of their home. The respondent became angry over a minor issue, grabbed his partner, placed his arm around her neck and applied pressure. This caused her to lose breath. He held her in that position for approximately 20 seconds before releasing her. She did not suffer any injury.
The respondent voluntarily accompanied police for the purposes of an interview on 4 March 2017. He admitted the assaults. A police family violence order was made which included a condition that he was not to return to the home in which he had been living with his partner and the children.
On 12 April 2017 at 7.40am, police attended at the home as a result of anonymous information and found the respondent hiding there. He was arrested and again admitted the breach of the order.
The charges first came before another magistrate on 12 April 2017. Although I have not been provided with a transcript of the proceedings on that day, the record of proceedings sheet indicates that the respondent pleaded guilty to the breach charge then, and the other matters were adjourned before Magistrate Cure on 25 May 2017. When the matter came before her Honour, it is clear that she was confused as to whether pleas had been entered to all charges. The respondent, who was without legal representation during the entire course of the proceedings, indicated that he thought he had pleaded guilty to all three charges on the last occasion, but, in any event, confirmed his pleas of guilty at the outset of the hearing. The magistrate then asked whether he had been receiving "any treatment or been referred to any person". The respondent informed her that since mid-March, that is, immediately after committing the second assault and before the breach or his first appearance in court, he had been attending a men's program with Relationships Australia. He handed documentary evidence of his attendance at that course to the magistrate. The prosecutor read the facts to the magistrate. There was then discussion in relation to the family violence order and it was determined that the matter would be adjourned to give the prosecution an opportunity to form its view with respect to the revocation of the order. During the course of the discussion, the prosecutor noted that the respondent had been "attending counselling and behavioural groups to try and restart their relationship". The magistrate, just before adjourning the court, informed the respondent "if you've been to that program it might be a basis upon which it could be at least relaxed or – in the interests of your children".
The proceedings resumed on 15 June 2017. On that day, as a result of some confusion concerning the history of the proceedings, the facts were read again. The respondent's partner was present and indicated to the magistrate that she wanted the police family violence order revoked. The magistrate raised the possibility of referral of the respondent to the Defendant Health Liaison Service, but was reminded by the respondent that he was already attending the program with Relationships Australia and had been doing so in accordance with the statement of attendance that had been handed to the magistrate on the last occasion. The respondent also indicated that he had been referred to the program by the Defendant Health Liaison Service. He confirmed his intention to complete the program.
It is apparent from the transcript that the learned magistrate did not provide the respondent with an opportunity to make submissions, or provide her with general information as to his personal circumstances. The only opportunity afforded to the respondent to address the magistrate was in response to her Honour's specific questions of him. The magistrate was, however, provided with some information as to his background. A document provided to the magistrate by the prosecution established that the respondent was almost 30 years of age when he committed the offences. He had no prior convictions apart from two traffic infringement notices. He had been in a relationship with his partner for approximately 10 years. There is no suggestion that he had committed any form of family violence in the past.
The magistrate then proceeded to sentence. She noted that the respondent was a "first offender" but that "it's a relatively serious matter". Her Honour then indicated that she would make the order pursuant to s 7(f). Finally, she noted that "I'm not going to convict you but I am going to note under s 13A that it be recorded that these are family violence offences." The application for the revocation of the order was adjourned for hearing. During the course of discussion about that matter, the magistrate again noted the importance of the respondent completing the men's program and dealing with any other mental health or psychological issues which arose from it.
The failure to provide the respondent with an opportunity to make a plea in mitigation constituted a serious procedural error, and may well have amounted to a denial of natural justice, sufficient to vitiate the proceedings: Nicholas v Brain [1971] Tas SR 383 (NC 18). In the case of an unrepresented defendant, it is incumbent on the magistrate to ensure that, not only is such an opportunity provided, but that the defendant is aware of his or her right to address the court, and given some assistance with respect to the nature of the matters and information which should be the subject of the plea. If the response to such an invitation is inadequate to properly address relevant sentencing considerations, such as the defendant's response to the prosecution facts and a reasonable summary of the defendant's personal circumstances, then the magistrate must seek out this information, either by directly eliciting same from the defendant, or, particularly in a serious matter, seeking the assistance of a pre-sentence report. It may well be in this case, that her Honour, having decided upon a lenient option at a relatively early point, overlooked the need to hear generally from the respondent. However, as I will explain, the sentence is not without punitive effect, and the respondent was entitled to be heard, in any event.
Notwithstanding these observations, this failure is not in direct issue on this review. The respondent has not sought to have the sentence reviewed, and the grounds of the applicant's review are limited to manifest inadequacy. Accordingly, the procedural error will not be directly determinative of this case.
Ms Pennington, who appeared for the applicant, argues that the serious nature of the assaults, in particular, mandated a sentence which emphasised general deterrence and denunciation. She does not assert that an order pursuant to s 7(f) was outside the reasonable exercise of the magistrate's sentencing discretion, but submits that the failure to record a conviction failed to adequately address these sentencing considerations, and hence renders the sentence manifestly inadequate. She makes the point that the violence occurred on two separate occasions, involved restriction of the victim's breathing, and at least one of the attacks was committed in the presence of the children. Ms Pennington correctly points out that the presence of children should be regarded as an aggravating feature, particularly having regard to the provisions of s 13A of the Family Violence Act 2004. Finally, Ms Pennington notes that there was nothing put to the magistrate which indicated that there was anything in the personal circumstances of the respondent which would support the decision not to record a conviction. However, counsel quite properly concedes that the magistrate did not provide the respondent with an opportunity to put any such information before her.
The applicants' argument in this case is similar to that dealt with by me in the recent decision of Cannell v Probert [2017] TASSC 69. That case also involved an offender appearing for the first time in respect of family violence offences who was dealt with by the same magistrate in the same way, that is by an order under s 7(f) without recording a conviction, but with conditions which included the completion of a rehabilitation program. That case also involved serious assaults, both of which had been committed in the presence of children. As my reasoning in that case is apposite to the circumstances in this case, it is appropriate to quote from that decision at some length:
"[21] However, an order under s 7(f), with or without conviction, can be made for one or more of the purposes specified in s 58 of the Sentencing Act. To 'take account of the trivial, technical or minor nature of the offence' (s 58(b)) is only one of those purposes. Such an order can also be made 'to provide for the rehabilitation of an offender by allowing the offender's sentence to be served in the community unsupervised' (s 58(a)). Further, as is noted in Blake v Adams, the nature and circumstances of the offence is only one consideration in the decision as to whether or not to record a conviction in respect of an order under s 7(f). The court must also consider the offender's antecedents and character (s 9(b)) and the impact that a conviction would have on the offender's economic or social wellbeing, or employment prospects (s 9(c)).
[22]     As is apparent from a number of comments made by the magistrate during the course of discussion with counsel, her Honour was well aware of her obligation to consider each of the provisions of s 9 in exercising her discretion as to whether or not to record a conviction. She identified the relevant considerations, including the seriousness of the offending. It is clear that despite her view as to the seriousness of the conduct, she placed considerable emphasis for sentencing purposes on the potential for the respondent's rehabilitation, particularly if he participated in and completed the relevant course, and the fact that although he had a number of serious driving convictions in his record, this was the first time he had been before the court in respect of a matter of violence, including family violence. Her Honour enquired as to the potential impact of a conviction and was told and accepted that although a conviction would not have a specific impact on the applicant's current employment, there was a general possibility that a conviction for violence could impact on his prospects if he was required to seek employment elsewhere.
[23]     In this case, her Honour was dealing with an offender who had committed two relatively serious acts of family violence, but had no prior history of having done so before. It is well within the experience of the courts that it is a relatively common experience for a magistrate to be dealing with an offender who has committed family violence for the first time. In such cases, even those which are relevantly serious, it is apparent and entirely appropriate that the court should consider the availability and appropriateness of rehabilitative intervention. This is clearly the significance of the practice of referring such offenders to the DHLS, and using the sentencing order to facilitate and mandate appropriate therapeutic intervention.
[24]     An emphasis on therapeutic intervention by the court in respect of an offender who is being sentenced for his first family violence offence is consistent with the underlying purpose and objectives of the Family Violence Act. Section 3 sets out the objects of the Act as 'In the administration of this Act, the safety, psychological wellbeing and interests of people affected by family violence are paramount considerations.' While a punitive and protective response is essential in cases of serious and repeated family violence, it must also be consistent with the stated purpose of the legislation that consideration is given to therapeutic intervention with a view to achieving rehabilitation and behavioural change, when an offender presents before the court for the first time in respect of acts of spontaneous family violence. Prevention of future violence by use of effective strategies to modify behaviour in respect of offenders who have appropriate insight and desire for change is likely to promote the safety, psychological wellbeing and interests of people affected by family violence.
…
[26]     It can be seen, therefore, that use of a conditional release mandating participation in a relevant program may be an appropriate response by a sentencing court to family violence, particularly in a case in which the violence has been committed by someone who has not been before the court before for that reason, and does not otherwise have a history of violent conduct. It must also be the case that the decision not to record a conviction has an appropriate place in such an approach. The decision not to record a conviction provides the offender with the opportunity to avoid the stigma of a conviction for family violence. It offers a real and practical incentive to the offender to comply with the condition or undertaking, and, in particular, to participate in the relevant program. It follows that in making such an order in that context, a magistrate is having regard to:
·     the offender's antecedents and character, in particular that the offender is a person who has not had a prior conviction involving family violence (s 9(b)), and
·     the impact that a conviction would have on the offender's economic or social wellbeing or employment prospects, in particular, by determining that the impact on the particular offender will be such that being given the opportunity to avoid a conviction will be of real value to that person, and, hence, provides a real incentive to comply with the conditions of release (s 9(c))."
In this case, although her Honour was contemplating seeking a report from the Defendant Health Liaison Service, she did not do so. However, this is capable of explanation on the basis that the respondent had referred himself to the service and then commenced a rehabilitation program well before he appeared in court. Although her Honour did not explain her reasoning in the same detail as in Cannell v Probert, it is apparent that she adopted a similar approach. She was dealing with an offender with no history of family violence, and indeed no significant criminal history at all. There is no question that the acts of violence were serious and were committed on two separate occasions. However, the separate occasions were relatively close in time and, in the sense that the family violence had not occurred before or since, they could be regarded as an isolated course of conduct. The violence did not result in any serious physical injury, although I acknowledge that there was significant potential for more serious injury and that family violence of any degree can have significant long-term impact on victims, including the children who witness it.
It is clear that her Honour determined that, in the circumstances, an approach which emphasised rehabilitation was appropriate. This conclusion was clearly open to the magistrate, particularly given the lack of prior history, the early pleas of guilty, the obvious remorse being exhibited by the respondent, and the fact that he had unilaterally referred himself to a rehabilitation program and was still participating in it. It was clear also that his partner had forgiven him and was prepared to accept him back into the home. I acknowledge that in general terms the attitude of the complainant will not be determinative of sentence, and may receive little weight. However, in the context of these particular circumstances, the fact that the respondent's partner acknowledged the respondent's remorse and was prepared to accept him back into the home can be seen as a significant factor in assessing the viability and likely success of rehabilitation. In support of a submission that the attitude of the complainant should be given little weight, Ms Pennington quoted the following passage from the judgment of Pearce J in Director of Public Prosecutions (Acting) v J C N [2015] TASFC 13 at [20]:
"The response to family violence is often complex. Family violence offences are not uncommonly accompanied by support of a perpetrator by a victim and reluctance on the part of the victim to assist a criminal prosecution. That is so for a range of possible factors including fear and a wish to preserve relationships, even dysfunctional and violent ones, for the sake of loyalty, affection, companionship, economic and domestic support. Sometimes those motivations are misguided but persist nevertheless. As a result, victims sometimes act in a way that seems to an objective observer to be incongruous and difficult to understand."
These comments are to be considered in the context of the facts of the particular case with which his Honour was dealing. There is a significant difference between the response of a victim who has been exposed to ongoing and repeated family violence and is strongly influenced by fear or irrational hope, and the considered decision of the long-term partner of the offender who, having experienced an isolated and unprecedented instance of family violence, places emphasis on the rehabilitation of her partner and the preservation of their family. While the complainant's views must clearly not be determinative of the outcome, and all relevant factors must be considered by the sentencing tribunal, such an attitude on the part of that person may, in an appropriate case, be strongly supportive of a rehabilitative approach.

I reiterate that the comments I made in Cannell v Probert (above) are, in my view, apposite to the circumstances of this case. It was reasonable for her Honour to make the order under s 7(f) without recording a conviction, as an element of a sentence which offered the respondent an opportunity for rehabilitation. It is true that her Honour did not receive information, nor even inquire as to any specific impact that recording a conviction would have on the respondent. However the existence of such impact is not the only factor under s 9 which is relevant to a decision not to impose a conviction. In any event, as I noted in Cannell v Probert, it is reasonable to assume that even without any immediate or specific impact, a conviction can be assumed to have the potential for significant impact on any person in the future.
Finally, it must be acknowledged that whilst an emphasis on rehabilitation was well within the ambit of the magistrate's sentencing discretion in this case, her Honour was also required to consider other sentencing factors such as general deterrence and denunciation. Ms Pennington makes a valid point that family violence, particularly that as serious as the violence perpetrated in this case, is abhorrent and has no place in society. Having said this, it is not accurate to regard the sentence imposed by the learned magistrate as lacking punitive effect and not properly manifesting a denunciation of family violence by the court and the community. I refer to my comments in Bonde v Ellery [2016] TASSC 43 at [34]:
"[34] An undertaking with conditions attached is capable of having real punitive effect. In Blake v Adams [2013] TASSC 44, Porter J cited with approval a passage from a judgment of Harrison J (with whom Beazley JA and McCallum J agreed) in R v Maugher [2012] NSWCCA 51, in respect of 'the Crown's submission that the recording of a conviction was a matter of special significance or importance in the case, given that it was an ostensibly serious case of supplying drugs':
'37 Whilst that contention is understandable as a general proposition, it is important that it not be permitted in this case to dilute or to downgrade the significance of the imposition of a bond. If the seriousness of the present offence and the need for denunciation and general deterrence are important considerations, they are to my mind more than adequately contemplated in this case by both the terms and the duration of the bond that has been imposed. The respondent has been made subject to a judicially sanctioned requirement that he be of good behaviour for a period of two years. There are onerous consequences that apply if he fails to observe that requirement. That fact alone would in my view impress the seriousness with which the Court was treating the respondent's conduct upon an objective and reasonable member of the community. It should not pass without comment that the significance of a bond, and the consequences of disregarding its conditions, is regularly considered by this Court to be important when deciding whether or not to grant bail to applicants who have allegedly disregarded the conditions and restrictions that a bond imposes. Much more than mere lip service is regularly paid in this context to the important and significant consequences for bail applications created by offences allegedly committed in breach of such conditions. It is wrong in my view to assume that the decision to not record a conviction is automatically or necessarily coextensive with the imposition of an inadequate, or even a particularly lenient, sentence.' [Porter J's emphasis.]"
In this case, the inclusion of the condition that the respondent was to be of good behaviour for two years and complete the rehabilitation program fitted the punishment closely to the circumstances of the respondent, as perceived by the magistrate. In order to avoid being brought back before the court to face resentencing, the respondent had to actively participate in and complete a course of rehabilitation and, as he had asserted and his circumstances suggested, demonstrate over a two year period that the perpetration of family violence on this occasion was an isolated and out of character event. Accordingly, he would be subject for a period of two years to the knowledge that a repetition of his conduct would see him back for sentence in respect of the original offences. If he complied with the conditions, then the rehabilitation sought to be achieved by the magistrate would have a substantial basis, and this must, in the end, be beneficial for the respondent, the complainant, his children and the community generally. Any informed observer would understand that the respondent's conditional release was tailored to meet his particular circumstances, and that the court, rather than exonerating him, was emphasising the seriousness of the conduct by formulating and putting in place a sentence conditional upon active participation in a rehabilitation program and non-repetition of the conduct.
I am satisfied that the sentence imposed by her Honour was well within the proper exercise of her sentencing discretion in this case. Manifest inadequacy is not apparent. The motion to review is dismissed.