Mrgic v Judges

[2021] TASSC 14

[2021] TASSC 14

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Mrgic v Judges [2021] TASSC 14
PARTIES:	MRGIC, Nemanja
v
JUDGES, Russell
FILE NO:	318/2021
DELIVERED ON:	14 April 2021
DELIVERED AT:	Burnie
HEARING DATE:	13 April 2021
JUDGMENT OF:	Pearce J
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Plea of guilty to three counts of common assault – Serious public violence against strangers – Applicant with no prior convictions for violence – Sentence of imprisonment for 12 weeks with half suspended not manifestly excessive.

Aust Dig Magistrates [1349]

Criminal Law – Sentence – Sentencing procedure – Approach to sentencing process – Procedural fairness – Obligation of court to raise important possibility of actual term of imprisonment – Obligation did not

arise in this case.

Allen v Kerr [2009] TASSC 10, 19 Tas R 132, followed.

Aust Dig Criminal Law [3306]

REPRESENTATION:

Counsel:

Appellant:	J Ker
Respondent:	J Farmer

Solicitors:

Appellant:	Legal Aid Commission of Tasmania
Respondent:	Director of Public Prosecutions

Judgment Number:	[2021] TASSC 14
Number of paragraphs:	28

Serial No 14/2021 File No 318/2021

NEMANJA MRGIC v SENIOR SERGEANT RUSSELL JUDGES

REASONS FOR JUDGMENT PEARCE J
14 April 2021

1             By this motion the applicant seeks to review a sentence imposed by a magistrate, Ms L Topfer, on 12 February 2021. The applicant pleaded guilty to three counts of common assault. Her Honour sentenced the applicant to a term of imprisonment of 12 weeks from the day of sentence, six weeks of which was conditionally suspended for two years. One of the conditions of the order suspending part of the sentence was that the applicant submit to the supervision of a probation officer for 12 months from his release. There are three grounds of the motion:

	Ground 1 asserts that the learned magistrate erred in fact and in law by failing to have regard in mitigation to the pleas of guilty.
	Ground 2 asserts that the learned magistrate erred in law in imposing a term of imprisonment to be served, without having previously identified that this course was contemplated.
	Ground 3 asserts that the learned magistrate erred in imposing a sentence that was manifestly excessive in all the circumstances of the case.

2   For the following reasons, none of the grounds of the motion are made out.

The circumstances of the offences

3             Just after midnight on 1 January 2020 a number of persons, including Dean Martin, his wife Nicola Martin, and Gabby Cotter, were waiting for a bus in central Burnie. They had just attended a public social event for New Year's Eve. The applicant was there with another man I will refer to as Mr K. The applicant and Mr K became involved in an "altercation" with another person nearby. When Mr Martin stepped forward to check on the welfare of that person, he was set upon by the two men. They pushed him against a brick wall. They repeatedly punched his head and body. When he fell to the ground both assailants continued to punch and kick his head and body. In total, Mr Martin was hit and kicked 14 times. That was the first common assault.

4             Mrs Martin, seeing her husband being punched and kicked by the applicant and Mr K, ran towards them. She pushed Mr K away, but then the applicant pushed her against a brick wall. That was the second common assault.

5             As Mr Martin attempted to get to his feet, the applicant pushed him back to the ground. Ms Cotter intervened in an attempt to prevent Mr Martin being struck again. The applicant and Mr K turned upon her. Both men punched her a combined total of 14 times in quick succession from both in front and behind. That was the third common assault.

6             When a police car arrived, both the applicant and Mr K ran off. After removing their hats and jumpers they returned to the scene where they were identified and arrested. The abandoned clothing was later found. When the applicant was interviewed he admitted that he was involved and that one of the seized caps and one of the jumpers were his.

7             The learned magistrate was given only a brief summary of the injuries suffered by the victims of the attack. Mr Martin suffered numerous bleeding lacerations to the front and back of his head. Mrs Martin suffered bruising to her arm. Ms Cotter suffered a split left eyebrow, a sore and swollen jaw, a laceration on her chin and a bruised right arm. No detail of any further impact was given.

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The applicant's personal circumstances

8             At the time of the offences the applicant was aged 26. He was 27 at the time of sentence. He had a three year old child who was primarily in the care of his mother, but with whom the applicant had frequent contact. The magistrate was informed that the applicant had, since leaving secondary school, worked industriously as an agricultural labourer, although he was not presently working because he had injured his foot in a motor cycle accident. He was living with his sister and paying board from social security benefits. He claimed to have little recollection of the assaults because he was so affected by alcohol, but pleaded guilty after having viewed CCTV footage of the incidents.

9             The applicant had no prior convictions for violence. He had a record for some anti-social offending as a youth. He was cautioned by the police for an assault committed when he was 14 but that was a matter which deserved no weight in the sentencing process. As an adult his record is almost all for driving offences, which included two counts of driving with an illicit drug in his blood in 2015. He had also appeared for what must have been, from the manner they were dealt with, minor instances of breaching bail.

The procedural history and the sentencing proceedings

10           The applicant was charged on complaint. He first appeared in the Magistrates Court on 25 February 2020. When he appeared again on 10 March 2020 the complaint was adjourned sine die pending resolution of a related indictable charge from which the applicant was discharged in June 2020. The complaint was re-listed at the request of the prosecution on 24 November 2020 at which time the applicant pleaded not guilty to each count.

11           When the applicant appeared on 12 February 2021 he successfully sought leave to change his plea to guilty to each of the three counts. The matter proceeded immediately to facts and sentence. After hearing the facts and the plea in mitigation, the magistrate enquired of the police prosecutor whether there was any further information about the impact of the assaults on the victims. On being told that there was not, the magistrate announced that:

"These are very serious matters … And I can't imagine how frightening it must've been

for those people, on that night. I'm going to consider what I'm going to do but to enable me to properly consider what penalties and options are available, I'm actually going to send you off [for] an assessment report in relation to Community Corrections at this stage."

12           The primary purpose of such a report is to enable a determination of whether a person to be sentenced is, as some part of a sentencing order, suitable for a period of supervision or for community service. As her Honour adjourned the court she explained to the applicant the requirement that he present himself immediately to the office of Community Corrections. He replied "No worries", to which her Honour responded "It isn't a matter of no worries, it's a very serious matter."

13           The report from Community Corrections was provided within a few hours. It assessed the applicant as unsuitable for community service due to his foot injury. He was assessed as suitable for an order with a community based supervision component, with particular reference to an aggression program.

14           On resumption of the sentencing hearing on the same afternoon, no further submissions were made by either the prosecution or the defence. Her Honour proceeded to sentence. Her comments on passing sentence included the following:

"Well Mr Mrgic, you pleaded guilty to three counts of common assault.

… It was a nasty attack on innocent bystanders in a public place.

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… That would've been a terrifying attack for those people, which easily could have

long term, not just physical but emotional consequences, for the victims. I take into account what [your counsel] said on your behalf. You were intoxicated but that is no excuse. There's very little in the way of mitigation. You've got no prior convictions for violence but you have been before the court on occasions before.

… Mr Mrgic, this is a violent attack on a public street, innocent bystanders as I said

before. And I must impose a penalty which reflects the seriousness of your conduct and society's condemnation of this sort of behaviour. I have no alternative but to impose a term of imprisonment. I'm going to impose a term of imprisonment of 12 weeks. I'll suspend half of that, so suspend six weeks of that on the condition that you commit no further offence punishable by imprisonment for a period of two years and that upon you release from prison you satisfactorily complete a 12 month community corrections supervision order."

Ground 1 – The plea of guilty

15           Ordinarily a plea of guilty is factor to be taken into account in mitigation of sentence. It indicates an acceptance of responsibility and facilitates justice. It is also sometimes indicative of insight and remorse. There was nothing in this case, including from the timing of the plea, which removed the pleas as a factor which carried weight in sentencing. However, the applicant's contention that the magistrate gave no weight to the applicant's pleas of guilty cannot succeed. In her sentencing remarks her Honour mentioned that the applicant had pleaded guilty. She did not expressly state that she took the guilty pleas into account, but there is no requirement that a magistrate restate everything that is relevant to sentence. In Trueman v Tasmania [2009] TASSC 29, 18 Tas R 435 at [33], Crawford CJ (with whom Tennent J agreed) made clear that a sentencing officer is not required to mention every matter which might conceivably be relevant to sentence in a particular case: "to do so will not necessarily amount to an error. Each case will depend on its own circumstances." In the course of her remarks the magistrate said:

"I take into account what [your counsel] said on your behalf. You were intoxicated but that is no excuse. There's very little in the way of mitigation. You've got no prior convictions for violence but you have before [sic] the court on occasions before."

16           I do not accept the applicant's suggestion that the magistrate's remarks should be interpreted as confining the matters of mitigation to the absence of prior convictions. The magistrate stated that she had taken into account what had been said by the applicant's counsel. The applicant's counsel had asked the magistrate to take the plea of guilty into account, and explained that the plea had been entered after the applicant had viewed the CCTV footage. For reasons which will later become apparent, I do not consider that it can be inferred from the sentence itself that the magistrate gave no weight to the pleas. Having allowed an application to amend pleas of not guilty to pleas of guilty earlier that day, it is inconceivable that her Honour somehow overlooked the pleas of guilty as a sentencing consideration and erroneously gave them no weight.

17           To the extent that this ground asserts that her Honour gave insufficient weight to the pleas, the applicant correctly concedes that it is not a proper ground of appeal, but is relevant as a particular of a ground asserting manifest excess: TAP v Tasmania [2014] TASCCA 5 at [30], Mulholland v Tasmania [2017] TASCCA 2, 25 Tas R 313 at [17].

Ground 2 – Failure to indicate consideration of a term of imprisonment

18           By this ground the applicant asserts that the magistrate ought to have alerted counsel for the applicant to the fact that she was considering an actual term of imprisonment, and afforded an opportunity to specifically address that issue and to attempt to dissuade her from that course. The principle relied on is one of procedural fairness. Whether it might be procedurally unfair to not indicate that an actual term of imprisonment is being considered was one of the matters considered by Porter J in Allen v Kerr [2009] TASSC 10, 19 Tas R 132. At [22]-[23] his Honour stated:

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"Plainly the principle is not rigid. Its application will be flexible depending on the case. Rather self evidently, there must be something in the case which makes it unfair if the relevant matter is not raised. Although no attempt should be made at delineating the circumstances in which the obligation will arise, it will most likely do so where, in general terms, the outcome may not reasonably have been anticipated; examples being the appeal scenario highlighted in Parker and Ho, and the case of a defendant (not always unrepresented) who appears not at all to understand the seriousness of the predicament; see Szewczuk v Police [2001] SASC 223. It is also likely to arise where there has been some expectation created as to a particular outcome or basis on which the court is to proceed; the type of case of which O'Neill and Baroudi are instances.

I have no doubt that in a particular type of case, it might be procedurally unfair not to indicate that an actual term of imprisonment is being considered. That is more likely, but not exclusively, to arise where the defendant is unrepresented. Such a failure may also lead to, or be associated with, a failure to make inquiries to ensure that there is sufficient information to make a reasoned decision as to whether imprisonment is the only appropriate penalty. That latter failure, as recognised in James v Turner, may of itself be an error vitiating the exercise of the discretion; see also Murray v Harris 33/1974. However, as I have attempted to demonstrate, all of this depends on the circumstances of the case. In my view, any contention that there is an invariable rule of universal application that a sentencer who is considering imposing a term of actual imprisonment, ought to expressly raise that issue and to invite submissions, should be rejected. I do not see Parker v Director of Public Prosecutions as establishing such a rule, nor do I see that Evans J, in the two cases referred to, embraced the existence of such a rule."

19           I respectfully agree with his Honour's analysis. Both counsel in this motion accept that it correctly states the law. Applying it to the circumstances of this case, I am quite unpersuaded that failing to indicate, expressly, that a term of actual imprisonment was being considered, was procedurally unfair. The applicant was represented by counsel. The applicant now submits that had the learned magistrate alerted counsel that she was considering an actual term of imprisonment, "further instructions could have been taken as to matters relevant to the decision of whether or not to suspend that term, particularly in the context of the other sentencing options then contemplated." Whether or not further instructions could have been taken about some other matter, there was no procedural unfairness. The applicant was charged with three common assaults. Each count was punishable by a fine not exceeding $3,440 or imprisonment for a term not exceeding 12 months. Two of the assaults were of particular seriousness. The objective circumstances of the assaults made it abundantly clear, as the magistrate correctly observed, that they were serious matters. I accept the respondent's submission that the assaults committed against Mr Martin and Ms Cotter were serious examples of the offence of common assault. They were committed in company and in public. Mr Martin was punched to the ground and then punched and kicked to the head and body while he was on the ground. Ms Cotter suffered repeated and damaging blows to her head by the two males. Both of those persons were strangers to the applicant and only intervened to protect others. It was obvious from the nature and extent of the violence involved in the offences that imposition of a term of imprisonment, all or some of which might be actually served, would be considered by a sentencing court, notwithstanding the applicant's lack of prior convictions for violence. The magistrate sought a report to enable her to "properly consider what penalties and options are available" but only after the plea in mitigation had been completed. The magistrate said or did nothing to indicate, or create any expectation, that she would not impose a sentence of imprisonment as part of a sentencing order. The magistrate's failure to immediately remand the applicant in custody while awaiting preparation of the report could not fairly be said to have given any indication of what she may decide. There was no reason for her Honour to suspect that she had not been provided with sufficient information to make a reasoned decision as to whether imprisonment was the only appropriate penalty. There was time between the completion of the sentencing hearing and the resumption following receipt of the report for the applicant's counsel to reflect on the matter after the magistrate had twice pointed out that she regarded the matters as very serious.

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20           The applicant submits that the assessment that he was unsuitable for community service "likely complicated the sentencing exercise", and that it may have been possible to arrange, with further investigation, suitable community service as an alternative sentencing option. The submission is misconceived. At no time did the magistrate suggest, and I do not think it can be fairly inferred from her reasons, that, had community service been available, a term of actual imprisonment would not have been imposed. That would not have been a correct approach in any event. When the matter resumed, no further submissions were made, albeit that the applicant was represented by different counsel.

21   This ground is not made out.

Ground 3 – Manifest excess

22           A ground contending that the sentence was manifestly excessive can only succeed if it is established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen (1992) 1 Tas R 234 at [13]; Visser v Smart [1998] TASSC 151; Lusted v Kenway [2008] TASSC 47, 50 MVR 533 at [38]; Barrett v Wilson [2015] TASSC 3, 369 MVR 333. This Court must be persuaded of error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is "unreasonable or plainly unjust". The applicant must show that the sentence is so obviously excessive that the sentencing discretion must have miscarried; or to put it another way, the sentence is plainly outside the proper limits of the wide discretion vested in the magistrate: Allen v Kerr [2009] TASSC 10, 19 Tas R 132.

23           The applicant correctly submits that, for reasons I have already alluded to, a plea of guilty is generally an important factor in mitigation. It is one of the many relevant considerations to be taken into account in fixing a proper sentence. Nothing was said to the magistrate about the timing of the plea, but in my view, nothing of particular weight attaches to the matter of its timing. The applicant had not re- offended in a similar manner in the 12 months or so since these offences, and had never before been sentenced to a term of imprisonment, suspended or otherwise.

24           However, taking into account all matters relevant to sentence, I am not persuaded that the sentence imposed by the magistrate was outside the proper limits of her wide sentencing discretion. The applicant, in company with another male, committed what the magistrate understandably described as a terrifying attack on strangers in a public place. Members of the community are entitled to be present in public places without fear of random violence. The assaults of Mr Martin and Ms Cotter were particularly serious. Both victims were subjected to multiple forceful and damaging blows committed in each case by two men together. The attack on Mr Martin continued after he had been punched to the ground and was unable to defend himself. The assault of Ms Cotter was cowardly and frightening. She too was struck on multiple occasions to her head. Punches and kicks to the head of a victim are patently dangerous. She suffered serious physical injury which could easily have been much worse. Both assaults were of a nature that would almost certainly result in lasting psychological impact. Both assaults were committed after the victims intervened to protect others. After inflicting the assaults the applicant and his companion fled the scene and discarded some of the clothes they were wearing. The applicant offered no reason for his conduct other than the effects of alcohol. It was not suggested that the applicant's self-induced intoxication was aggravating because he had some appreciation of how alcohol may affect him, but nor was his intoxication mitigating. He was a relatively young man, but not so young that the factors which apply to youthful offenders carried much weight. The magistrate was entitled to conclude that the offences were so serious that punishment, general and specific deterrence, protection of the public and vindication of the victims were the dominant sentencing considerations. A fine or community service, without more, would have been an inadequate sentencing response. The magistrate was entitled to conclude that a period of imprisonment was the only appropriate sentence. In my view, a longer term would not have demonstrated error.

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25           The applicant's principal submission under this ground is that it was the magistrate's failure to wholly suspend the term imposed which made the sentence manifestly excessive. I cannot agree. General deterrence is an important consideration when dealing with offences of violence. There is justifiable public disquiet about the incidence of violent assaults in public, particularly those fuelled by alcohol. Immediate custodial terms are appropriate for serious cases. The mitigating factors were sufficiently addressed by the magistrate's order to suspend part of the term of imprisonment she imposed.

26   The sentence was not manifestly excessive. This ground is not made out.

Result and orders

27   None of the grounds of appeal are made out. The motion to review is dismissed.

28           The applicant was taken into custody when sentenced on 12 February 2021 but released on bail on 18 February 2021 pending determination of this motion to review. He was remanded in custody following the completion of submissions on 13 April 2021. Taking into account the seven days he spent in custody, the 12 week term of imprisonment imposed by the magistrate will commence on 6 April