Nathan Andrew McClung v Jesse Ryan Vince
[2015] ACTSC 255
•27 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Nathan Andrew McClung v Jesse Ryan Vince |
Citation: | [2015] ACTSC 255 |
Hearing Date(s): | 25 August 2015 and 27 August 2015 |
DecisionDate: | 27 August 2015 |
Before: | Robinson AJ |
Decision: | The appeal is dismissed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Sentence – whether sentence manifestly excessive – failure to have regard to sentencing options other than full-time imprisonment – particular offences – common assault |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 116(3) Crimes (Sentencing) Act 2005 (ACT) s 33 Magistrates Court Act 1930 (ACT) s 208, 214 |
Cases Cited: | Allred v The Queen [2015] ACTCA 21 Balthazar v The Queen [2012] ACTCA 26 Wong v The Queen (2001) 207 CLR 584 |
Parties: | Nathan Andrew McClung (Appellant) Jesse Ryan Vince (Respondent) |
Representation: | Counsel Mr H Jorgensen (Appellant) Ms A Clarke (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 36 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Fryar Date of Decision: 27 March 2015 Case Title: Jesse Vince v Nathan McClung Court File Number(s): CC No 10898 and 11441 of 2014 |
ROBINSON AJ:
Background
By Notice of Appeal filed 24 April 2015, Nathan Andrew McClung appeals from a decision of Magistrate Fryar given on 27 March 2015.
Mr McClung, the appellant, pleaded guilty to a count of common assault (in contravention of s 26 of the Crimes Act 1900 (ACT) and also a count of damage to property (in contravention of s 116(3) of the Crimes Act1900 (ACT)). On the first count the appellant was sentenced to imprisonment of 12 months, suspended after eight months upon the signing of an undertaking to be of good behaviour for a period of 18 months from the date of release. On the second count, the appellant was sentenced to imprisonment for six months to be served concurrently.
The maximum sentence for common assault is two years imprisonment and the same sentence applies to the offence of damage to property.
There is a single ground of appeal, that is, that the sentences imposed were manifestly excessive in all of the circumstances. It was common ground what this required the Appellant to establish in order to be successful. See Markarian v The Queen (2005) 228 CLR 357 at [25] paraphrasing House v The King (1936) 55 CLR 499, 505, Wong v The Queen (2001) 207 CLR 584 at[58] and in this jurisdiction Balthazar v The Queen [2012] ACTCA 26 and Allred v The Queen [2015] ACTCA 21. Counsel for the appellant set out to demonstrate that the sentences imposed were outside the range of sentences available in the circumstances and therefore establish an implicit error in the decision of the sentencing Magistrate.
Appeal jurisdiction
The appellant appeals from a sentence imposed upon him in the Magistrates Court. An appeal against sentence is brought pursuant to s 208 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). Section 214 of the Magistrates Court Act requires the Supreme Court to have regard to the evidence given in the proceedings before the Magistrates Court and permits factual inferences to be drawn from that evidence.
Facts
The sentencing Magistrate paraphrased the agreed Statement of Facts. What follows is taken largely from that paraphrase of that Statement of Facts.
The appellant and his former partner, JM, had been in a long term relationship and had four children together aged 13, nine, five and three. They had separated two months prior to the incident giving rise to the charges, but the appellant had been staying at the family home for the week before these offences.
On the evening of 6 November 2014, at about 11pm, JM and her four children were at home when the appellant came onto the property in an intoxicated state. He banged on JM’s bedroom window demanding that she wake up. JM let the appellant inside the house and a conversation ensued. JM then went to her bedroom and got into bed where their five-year-old daughter was also sleeping. Almost immediately the appellant came to the entry of the bedroom and punched a hole in the door. He then commenced yelling and abusing JM. The five-year-old daughter said “Stop Daddy stop”. The child remained present when the appellant entered the room and sat on top of JM on the bed, restraining her from moving with his knees on top of her abdomen. The appellant put two fingers up her nose, pushing her head backwards. He then hit her with an open palm two or three times with significant force to the left side of her head near her temple and eye, causing pain. JM was very fearful at this stage given the ferocity of the attack and the fact that the appellant was drunk.
The appellant then got up and went to the kitchen. He continued to yell. At this stage the couple’s three-year-old son was trying to sleep on the couch in the adjoining room. The appellant returned to the bedroom door, which he hit several more times, making the hole larger and causing the hinges to the door to come off. He commenced to yell again. JM attempted to talk to the appellant. During the commotion, their thirteen-year-old daughter called the police as she was fearful for her mother’s safety. The police arrived at about 11.17pm. After his arrest the appellant was not in a fit state and did not participate in a record of interview.
The sentencing Magistrate took into consideration that this was a “brutal and violent” assault in the presence of children and where it was a child who had had to telephone the police out of concern for her mother’s safety. The sentencing Magistrate also took into account that the assault was unprovoked and deliberately demeaning, and an attempt to control and exert power over JM. The Magistrate recorded that the assault and damage to property was also committed when the appellant was still subject to a Good Behaviour Bond for a previous assault. She considered and took into account the plea of guilty to the offences as having some utilitarian benefit.
A Pre-Sentence Report and a Court Alcohol and Drug Assessment Service (‘CADAS’) Assessment Report were also in evidence before the sentencing Magistrate. In summary, they did not conclude there were optimistic prospects of rehabilitation. For example, the sentencing Magistrate noted that in the opinion of the author of the Pre-Sentence Report the appellant was ambivalent in his attitude to the offences and that he was “unable and/or unwilling to demonstrate meaningful insight into the effects that his behaviour had on the victim, his children and others impacted by his repeated actions”. The sentencing Magistrate further noted that the author of the CADAS Report indicated that the appellant engaged in victim blaming and minimised responsibility for his own behaviour.
The appellant’s criminal record was also in evidence. It contained two previous assaults (dealt with by noncustodial sentences), damage to property and drink driving offences.
The sentencing Magistrate stated her approach to the sentences as follows:
In my opinion the most relevant purposes of sentencing in this case are of course general deterrence and denunciation, but also personal deterrence, and indeed the defendant’s actions are deserving of condign punishment. I have accordingly come to the view that the only appropriate sentence is one of immediate full time imprisonment, other alternative dispositions simply would not appropriately reflect the seriousness of the offences. I do acknowledge the pleas of guilty and the fact that the defendant says he is now willing to work on his problems and accept guidance, and I have reflected that not only in the head sentence but in suspending that sentence on a conditional Good Behaviour Order.
Contentions of Appellant
Consistently with the single ground of appeal it was not suggested that the sentencing Magistrate made any specific error of law. Counsel for the appellant drew attention to the fact that the head sentence imposed was 50% of the maximum available. He conceded that imprisonment, as such, was well within the available sentencing range given all of the factors considered by the sentencing Magistrate. His quarrel was with the fact that the entirety of the sentence was to be spent in full-time detention, until that sentence was suspended at the completion of eight months.
Counsel acknowledged that the appellant had now been convicted of offences of assault in 2006, 2012 and 2014 against the same woman, his partner and the mother of his four children. He also acknowledged that the assaults were committed whilst under the influence of alcohol. Counsel for the appellant submitted that her Honour had neglected to advert to the possibility of the appellant serving part of the sentence by way of periodic detention, noting that the appellant had been found suitable for that option by the author of the Pre-Sentence Report, and was, at the time of sentence, employed in a full-time capacity.
Next, counsel for the appellant was critical of the sentencing Magistrate for failing to give any weight to the fact that, at the time of sentencing, the appellant had been fully compliant with bail conditions imposed on 18 November 2014. The most significant of these conditions, for present purposes, was that he was to abstain from alcohol consumption. It was asserted that the appellant’s sobriety for a period of four months was a step taken in his rehabilitation and showed that he had the capacity not to reoffend.
Counsel also called attention to the fact that the previous assaults had been dealt with by a non-custodial sentence, suggesting that now the third assault’s punishment had taken an oversized incremental step to full-time imprisonment of at least for eight months.
There are apposite responses to these contentions. First, on a fair reading of the paragraph quoted above at [13] it could not be said that her Honour neglected to consider the possibility of part of the sentence being served by way of periodic detention. I read that passage as being one where other sentencing possibilities have been considered and then excluded as inappropriate. After I had drafted my judgement in this matter the Crown referred me to Roncevic v Boxx [2015] ACTSC 53. That case discussed an almost identical situation to the above. I am fortified in my conclusion by that case. Next, the sentencing Magistrate was entitled not to place any great weight on compliance with the bail conditions, in particular that requiring the appellant to refrain from the consumption of alcohol. The evidence was unsatisfactory as a platform to make this requested finding. Further the sentencing Magistrate was entitled to afford this consideration little weight given that the previous assaults in 2006 and 2012 were committed under the influence of excessive alcohol, and where the appellant’s driving record included three convictions for driving under the influence. The argument regarding the oversized incremental step is answered by the proposition that the courts dealing with the earlier assaults allowed leniency (perhaps too much) in a desire to rehabilitate the appellant. Further there is no sentencing principle that requires courts to impose sentences incrementally according to some upward scale.
Disposition
In my opinion the sentences imposed upon the appellant were sentences open to the sentencing Magistrate on the material which was in evidence before her. I can see no error. The sentence is not one, to paraphrase Markarian v The Queen (2005) 228 CLR 357, where the result embodied in the order was unreasonable or plainly unjust.
I dismiss the appeal. The sentences will stand.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgement of his Honour Acting Justice Robinson. Associate: Date: |
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