Moore v The Queen

[2016] TASSC 23

[2016] TASSC 23

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Moore v R [2016] TASSC 23

PARTIES:  MOORE, Luke
  v
  R, T L

FILE NO:  2467/2015
DELIVERED ON:  13 May 2016
DELIVERED AT:  Launceston
HEARING DATE:  12 May 2016
JUDGMENT OF:  Pearce J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Discretion to record conviction – Generally – Failure to record conviction – Manifestly inadequate sentence.

Sentencing Act 1997 (Tas), s 9.
Family Violence Act 2004 (Tas), s 11.
Attorney General v Smith [2002] TASSC 10, applied.
Aust Dig Criminal Law [3410]

Criminal Law – Particular offences – Assault – Sentence – Family violence – Presence of child as aggravating factor.

Aust Dig Criminal Law [2219]
Family Violence Act 2004 (Tas), s 11.
Aust Dig Criminal Law [2219]

REPRESENTATION:

Counsel:
             Applicant:  C Robinson
             Respondent:  J Ker
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number:  [2016] TASSC 23
Number of paragraphs:  21

Serial No 23/2016

File No 2467/2015

SENIOR SERGEANT LUKE MOORE v T L R

REASONS FOR JUDGMENT  PEARCE J

13 May 2016

1. On 11 November 2015 the respondent pleaded guilty to common assault. She was sentenced by Magistrate R Marron. His Honour did not record a conviction but made a probation order for 12 months. The applicant, a police officer, moves for review of the sentence on the sole ground that it is manifestly inadequate. For the following reasons the motion should succeed.

The respondent's offence

1. The particulars of the charge against the respondent are that she assaulted her partner on 23 August 2015 by "grabbing him by the neck, ripping his necklace off and punching him approximately 20 times to the head". The material before the sentencing magistrate revealed that the respondent, then aged almost 19, lived with her partner and their two-year old daughter in suburban Launceston. She was a daily user of cannabis. However when she woke at about 8.30am on the day of the offence she was "grumpy" because she had none of the drug to smoke. She asked her partner to retrieve some money that was owed to him, but when he refused she became even angrier. She went outside to the garden. Her mood did not improve. When she went back into the house she started an argument. After she and her partner argued for some time she went to her sister's house, thinking she would stay for the night. However when she returned home for clothing, her partner asked her not to leave again. He said she should look after their daughter. This sparked a further argument during which the respondent, presumably by phone or text message, asked her sister to come to the house. Before her sister arrived the respondent started to assault her partner. She grabbed his throat, choking him with one hand and grabbing his tie with the other. He fell onto the bed. As he lay on the bed she punched him about 20 times to his face. The force of the punches was such as to cause cuts to her knuckles. While the assault was taking place, her sister arrived.

2. After the assault the respondent asked her partner to leave. When he did not do so, she called the police herself. By the time they arrived her partner had gone, but she volunteered to them that she had assaulted him. She was taken to the police station and interviewed. She admitted what she had done and told the police that she had called them "so that she didn't hurt him any more". A police family violence order was made and served on her.

3. The police spoke to the complainant the next day. They saw that he had injuries to his face and neck, including a few marks and bruises and a small cut on his lip.

4. Before the magistrate the respondent was unrepresented. She told his Honour that she was on an 18 month trial of medication for ADHD and schizophrenia, and that she was trying to "cut back on the dope" but was finding it "awfully hard". Before proceeding to sentence the learned magistrate sought some information from the respondent and addressed some remarks to her, the effect of which was to discourage her from cannabis use. In addition, his Honour remarked on the potential impact of her conduct on her child. When pronouncing sentence, the learned magistrate then said only:

   "What I am going to do is I am going to place you on a period of probation for 12 months, okay, and I want you to focus on that aspect."

5. When asked by the prosecutor whether the order was to be with conviction, his Honour responded "without" and told the respondent that "if you can get through 12 months' probation you will not have a conviction in relation to that." The memorandum of sentence records no conviction. No rehabilitation program assessment undertaken in respect of the respondent was placed before the sentencing court.

The respondent's personal circumstances and prior convictions

1. Other than the matters to which I have already referred, little was said to the magistrate about the respondent's personal circumstances. She said that the premises in which she and her partner lived were rented in her name. No other information was given about the respondent's mental health.

2. The respondent did not come before the court as a person with an unblemished record. She had been dealt with for offences committed while she was a youth, including for dishonesty and driving offences. On 15 September 2014, she pleaded guilty to driving without a licence on 21 May 2014, driving while disqualified on 26 April 2014 and assaulting and resisting police on 27 July 2014. For the driving offences she was convicted, fined and disqualified from driving. For the offences against police, an order was made under the Youth Justice Act 1997, s 47(1)(c), dismissing the charges and requiring her to enter into an undertaking to be of good behaviour for six months.

3. Those sentences did not deter her. On 21 May 2015 she was sentenced for a large number of summary offences, some committed as a youth and some as an adult, including 11 counts of driving without a licence, two counts of driving with an illicit drug in her blood, one count of driving while disqualified, stealing, breaching bail, unlawfully possessing a dangerous article in a public place and two counts of common assault. For the driving offences she was sentenced as an adult. She was fined a total of $900 and disqualified from driving for a total of 16 months. In addition a probation order was made for 12 months. No details of the nature and circumstances of the two assaults were provided. For those offences an order was made under the Youth Justice Act, s 47(1)(c), dismissing the charges and requiring her to enter into an undertaking to be of good behaviour, this time for 12 months.

Is the sentence manifestly inadequate?

1. The principles to be applied in review of a sentence imposed by a magistrate on the ground of manifest inadequacy or excess are well established: Visser v Smart [1998] TASSC 151. The applicant must show that the sentence is so obviously excessive or inadequate that the sentencing discretion must have miscarried; or put another way, the sentence is plainly outside the proper limits of the wide discretion vested in the magistrate: Allen v Kerr (2009) 19 Tas R 132; 193 A Crim R 262. I summarised the authorities in Barrett v Wilson [2015] TASSC 3; 69 MVR 333.

2. Even allowing for the special considerations applying to Crown appeals explained by Wood J in Parker v Hall [2015] TASSC 60 at [11]-[12], and by me in Lyons v Bakes [2015] TASSC 37 and Cannell v Hughes [2014] TASSC 41, I have concluded that this is a very clear case where the sentence discloses such manifest inadequacy as to constitute an error in principle, and is so disproportionate to the seriousness of the offence committed by the respondent that appellate intervention is required. The error is such that it is essential in the administration of justice that the error be corrected.

3. The sentence under review is for common assault. The offence is punishable by a penalty not exceeding 20 penalty units or to imprisonment for a term not exceeding 12 months: Police Offences Act 1935, s 35(2). The learned magistrate was correct not to fine or imprison the respondent. She already owed a large sum in fines and had no capacity to pay any further sum. The respondent is, and was when she was sentenced, a young person. From the limited comments he made, I discern that the magistrate correctly concluded that there is a high public interest that young offenders be rehabilitated. A sentence of actual imprisonment should be imposed on a young offender only where alternative punishment is inappropriate. As serious as the respondent's criminal conduct was, this was not a case which required the imposition of a sentence of imprisonment, suspended or otherwise. Even so, the sentence imposed fell short of what was required to adequately respond to the seriousness of the respondent's criminal conduct and to serve the sentencing principles and objectives which were relevant to the offence and the offender.

4. No conviction was recorded. The Sentencing Act 1997, s 9, is entitled "Conviction or non-conviction" and provides:

   "In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including —

   (a)  the nature and circumstances of the offence; and

   (b)  the offender's antecedents and character; and

   (c)  the impact that a conviction would have on the offender's economic or social wellbeing or employment prospects."

5. The learned magistrate did not say whether he had regard to the three factors listed in s 9 in exercising his discretion to not record a conviction. Those factors are not exhaustive, and the relative weight of each depends on the circumstances of each particular case: Parker v Hall at [29]. In this case, none of the factors listed in s 9 provided any support for the decision to not convict the respondent. The first consideration is the nature and circumstances of the offence. Conduct which constitutes a common assault may range from the most minor but unlawful application of force to serious and damaging violence. This was not a trivial or inconsequential assault. The respondent inflicted repeated and violent blows on her partner who had done nothing to warrant or provoke such an attack. The blows were violent enough to cut her knuckles and to cause bruises and a cut to his face. It was not suggested that he did not quickly recover from his physical injuries, but the assault was to be distinguished from one involving the spontaneous infliction of a blow or blows of little force. It involved sustained conduct. I think that it is very important that this was a family violence offence within the meaning of that term in the Family Violence Act 2004. The terms and scheme of the Act discloses a legislative intention that violence within relationships is to be treated seriously, and that those who are responsible for such violence should expect punishment. It is undeniably the case that most family violence offences which come before the courts are committed by men, and women are victims. Family violence deserves condemnation by the community and by the courts. Family violence offences committed by women should be equally condemned. Very often, the criminal conduct of men is made more serious because physical superiority facilitates the infliction of violence against vulnerable female victims. There was no material put before the sentencing magistrate in this case to indicate whether the respondent's partner was vulnerable in this sense. What was apparent from the facts on which the respondent was to be sentenced, however, was that he offered little or no resistance to her repeated blows.

6. One aspect of the offence requires particular emphasis. The Family Violence Act, s 11(a), provides that a sentencing court may consider to be an aggravating factor the fact that the offender knew, or was reckless as to whether a child was present or on the premises at the time of the offence. In this case the respondent knew her daughter was present in the house when she assaulted her partner. As to the presence of the child, although it was made clear that the child was in the house when the assault occurred, it is not clear whether the child observed the assault. On the one hand, it was put to the court by the prosecutor that the respondent's sister, when she arrived, "removed the child to her bedroom". On the other hand, the respondent told the magistrate, when asked where the child was, "She hasn't seen an incident of us yet." When his Honour said, "No, but she was there", the respondent said, "Yes, she was there." The learned magistrate then commented that "they've got radar, they can hear through walls". Whichever was the case, the terms of the legislation make clear that the presence of the child was a very important sentencing consideration. Although s 11(a) provides that a court may consider an offender's knowledge of the presence of a child as an aggravating factor, the presence of a child aged two must inevitably add to the seriousness of the offence. The learned magistrate's comments to the respondent before sentence strongly suggest he correctly recognised the importance of this factor. The potential for adverse impact on the development of children by exposure to family violence is well known. The respondent's conduct risked a lasting and damaging impact on her own child. Punishment, deterrence and denunciation should generally be major sentencing considerations for offences committed in the presence of children.

7. The respondent was not to be sentenced for her record, but her antecedents and character each pointed to the need for a sentence of personal deterrence. She had prior convictions for common assault and offences of violence against the police. The assault was committed despite her having been required, only three months earlier, to give an undertaking to be of good behaviour for common assault. She was already subject to a probation order, made at the same time, for other offending. The Sentencing Act, s 7, provides that one of the sentencing orders available to a court for persons who have attained the age of 18 years is the making of a probation order. Such orders are made under Pt 5 of the Act and may be made with or without recording a conviction: s 7(d). Although probation orders are commonly regarded as being directed to the rehabilitation of the offender, they do contain a punitive element. By the Sentencing Act, s 37, every probation order contains the conditions that during the period of probation the offender must not commit an offence punishable by imprisonment, must report to and submit to the supervision and direction of a probation officer, must notify of changes of address and not leave the State of Tasmania. That meant that if she re-offended or failed to comply, she could be re-sentenced: Sentencing Act, s 42. Even so, given that the respondent was already subject to a probation order, the effect of the order made by the magistrate was to extend the period of supervision by about six months. Whilst, as counsel for the respondent pointed out, it is possible that a probation order for a different category of offence may have altered the nature and extent of the supervision to which the respondent was subject, the existing probation order had not deterred the commission of a further offence. In the circumstances, another probation order was hardly any punishment at all.

8. There was no basis to conclude that the recording of a conviction had any appreciable impact on the respondent's economic or social wellbeing or employment prospects. She was already subject to convictions for serious driving offences including for driving with a drug present in her blood and driving while disqualified, and for an offence of dishonesty, stealing. She admitted to having a serious cannabis habit that she could not overcome.

9. There were factors in the respondent's favour. She had made some attempts to diffuse the arguments with her partner by leaving the house and asking for her sister to come. The respondent was the person who phoned the police and, having done so, she admitted what she had done despite her partner's absence. Those factors indicated some remorse for and insight into the wrongfulness of her conduct. She pleaded guilty at an early stage. She and her partner had apparently reconciled and were living together. The attitude of the victim is of little import for the reasons explained in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [12]. The respondent had not subsequently breached the family violence order, suggesting that it may have been having some effect. She had sought assistance for substance abuse issues. She had also sought assistance and treatment for mental health issues, about which the learned magistrate was given no other detail. Those factors reinforce my conclusion that the learned magistrate was correct to not impose a sentence of imprisonment. However, none of those factors justify the lenience of the sentence in fact imposed.

10. The issue of conviction or non-conviction was the subject of discussion by Crawford J (as he then was) in Attorney General v Smith [2002] TASSC 10. His Honour said, at [25]-[26] :

    "In R v Brown, ex parte Attorney-General [1994] 2 Qd R 182 at 194, it was noted that the recording of a conviction is in itself an element of punishment of the offender and may encourage him or her not to engage in further criminal activity and conceivably it could act as some deterrence to others if it becomes known.

    When considering whether to record a conviction, a court must weigh up the public interest, and the need for an official record to be made of the commission of the offence, against the beneficial nature to the offender of a conviction not being recorded. Regard must be had to the purposes specified in s58. If the offence is of a relatively serious nature, the Court may feel compelled to record a conviction. In addition to public interest questions, it is proper that the Court have regard to whether the victim of such an offence might reasonably not feel vindicated by the failure to record a conviction."

11. In that passage, his Honour referred to s 58. It applies to orders under s 7(f), (g) or (h) of the Sentencing Act, which, because the order made by the sentencing magistrate was made under s 7(d), have no application here. Otherwise, his Honour's comments apply with equal force. His Honour undertook a similar analysis in Traynor v McCullough [2011] TASSC 41 at [42] and following. In this case, when the public interest and the need for an official record to be made of the commission of the offence are weighed up against the benefit to the respondent of not recording a conviction, the recording of a conviction, at least, was demanded notwithstanding the magistrate's very wide discretion. The learned magistrate fell into error in concluding otherwise, even when the making of the probation order is taken into account. The respondent's offence necessitated a sentence which adequately punished and deterred her, deterred others, reflected the community's condemnation of offences of violence, especially family violence committed in the presence of children, and vindicated the victim. The sentence imposed fell so far short of satisfying those sentencing objectives as to constitute error.

Result and orders

1. The motion to review is allowed. The sentence imposed by the learned magistrate is quashed. I will re-sentence the respondent, but not yet. Whatever other orders I make, she will be convicted on the complaint. I do not intend to disturb the probation order, except that I may extend the term and add conditions. I think the sentencing objectives I have referred to also require the making of a community service order, provided she is a suitable candidate. I will need a report addressing her suitability. Moreover, I may take into account any matter relevant to sentencing that has occurred between when the magistrate sentenced the respondent and the hearing of this motion: Justices Act 1959, s 110(2AA). Thus, before proceeding to re-sentence I will hear from the parties. It may be that it is necessary to obtain a report from the respondent's probation officer addressing her progress on probation, the status of her mental health and whether she may benefit from a longer period of supervision. I may order special conditions in any probation order directed to addressing her mental health treatment and abuse of cannabis.