NE v Pruckner
[2018] ACTSC 212
•6 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | NE v Pruckner |
Citation: | [2018] ACTSC 212 |
Hearing Date: | 6 August 2018 |
DecisionDate: | 6 August 2018 |
Reasons Date: | 10 August 2018 |
Before: | Mossop J |
Decision: | See [29] |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – appeal against non-association order – whether magistrate accorded procedural fairness before imposing non-association order – non-association order having the effect of separating married couple – order not sought by any party or mentioned in submissions – denial of procedural fairness established – appellant resentenced |
Legislation Cited: | Crime (Sentencing) Act 2005 (ACT), ss 21, 22, 23 Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 Victims of Crime (Financial Assistance) Act 2016 (ACT), s 82 |
Cases Cited: | Pantorno v The Queen (1989) 166 CLR 466 R v Klickovic [2018] ACTSC 141 Stead v State Government Insurance Commission (1986) 161 CLR 141 |
Parties: | NE (Appellant) Ainslie Pruckner (Respondent) |
Representation: | Counsel J O’Keefe (Appellant) M Kent (Respondent) |
| Solicitors John O’Keefe (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 4 of 2018 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Boss Date of Decision: 10 January 2018 Case Title: Pruckner v NE Court File Number: CC2017/13369 |
MOSSOP J:
Introduction
This is an appeal from a decision of the ACT Magistrates Court on 10 January 2018. The appellant appealed the non-association order made by the magistrate pursuant to s 23 of the Crime (Sentencing) Act 2005 (ACT). At the hearing of the appeal, the Notice of Appeal was amended so as to challenge the whole of the sentence. The grounds of the appeal are that the magistrate failed to properly consider the relevant criteria for imposing a non‑association order, that the magistrate did not provide procedural fairness to the parties before imposing the non‑association order and that the non‑association order was manifestly excessive in the circumstances. At the conclusion of the hearing, I made orders allowing the appeal and resentenced the appellant to a sentence which did not involve a non-association order. These are my reasons for doing so.
The proceedings below
The appellant was charged with common assault upon his wife. That offence occurred on 14 October 2017. The appellant had come home drunk, had entered the residence and become angry because he wanted money from his wife. He lunged towards her and grabbed her shirt with both hands and pushed her backwards into the front door. He pushed her again, causing her to fall back into a table that was in the lounge room. She felt immediate pain in her back and right knee and yelled out for the appellant to get away from her. She pushed him away from her, causing him to fall backwards onto a table inside the front door and hit his head on a wooden wall decoration. This caused a laceration to the back of his head.
He had a poor history in relation to domestic violence matters. In 2011 he had been sentenced for a common assault to a term of imprisonment of four months which was partially suspended. In 2016 he had been sentenced for contravening a protection order to a term of imprisonment for four months which was partially suspended. He also had a number of other convictions for common assault and a conviction for contravening a protection order for which he had received non-custodial sentences. The victim of all of these offences was his wife.
In New South Wales, he had drink driving offences as well as an offence of contravening an apprehended domestic violence order and stalking or intimidation. He was dealt with under s32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) which allows dismissal of a charge and conditional discharge of an offender where it is more appropriate to deal with the offender in accordance with the mental health legislation than otherwise according to law.
The pre-sentence report disclosed that the appellant had been in a relationship with the victim of the current offence for the past 15 years. It disclosed that he was the full-time carer for the victim who experiences physical and mental health issues. He was also the carer for two other people prior to being incarcerated. He received a Centrelink carer’s payment. He used alcohol at risky or hazardous levels. He was assessed as being at a medium risk of general reoffending. He was assessed as suitable for a community service work condition.
Also tendered on the sentence was a letter that he wrote to the Court. Included in that letter was the following:
The reason that I writing to you your Honour is to acquaint you with events leading up to 14/10/17, that may have contributed to this incident, just recently my father pas[s]sed away from a battle with cancer.
About a year ago my Wife [EE] was raped by an ex-friend and an order [was] taken out [against] this ex-friend who also threatened to shoot my wife. We then offered a homeless person a room and he brought with him a lot of problems both financial, medical and personal he has run up a debt with ACT Housing of over $2,800 which my wife and myself will have two make good, he also conned my wife to take out a phone contract in her name for him last bill seen $10,000 not honoured. We have had people turn up at our door looking for him threatening to bomb the house reported to AFP his boyfriend (now in AMC) stole my wife’s car plus other stuff, My wife suffers Bipolar and is semi medicated because we haven’t been able to afford her medication because I was supporting 3 adults (including him) out of 1 wage, our centrelink pensions won’t help with medication ($400 per mth x 15 years) because we are honest people and declared we are married so our pensions were halved some years ago.
I am horrified and ashamed that this has happened but as you can see it been a tough year, I do love my wife very much and very deeply your Honour and have supported her in all aspects of life both as a carer and husband over a 15 plus year period. I am desperate to change my life and have enrolled in anger management, drug and alcohol and also asked to receive counselling from Relationships Australia.
During this period I also cared for Ms [name redacted] who has a stoma and receives methadone, I have also cared for a terminal Gentleman Mr [name redacted] also the boarder with his problems and drug use reflected on his Doctors record you can see that I’ve been busy.
Your Honour I’m not trying to shift the Blame but beg for forgiveness from everyone concerned and to acquaint you with how hard life is for some people including me, I consider myself an honest man who loves his wife and family very deeply, and regrets the situation I find myself in not being able to support my wife or family.
I offer no excuses for my memory loss as I don’t know what happened during the incidents of that day or how I received my injuries, but as I have said above and can’t apologize enough for my disgusting and horrible behaviour.
The sentencing hearing in the Magistrates Court involved the tender by the prosecutor of the criminal history of the appellant as well as the pre-sentence report. Counsel for the appellant tendered a certificate of achievement in relation to his completion of the “First Steps to Anger Management Program” on 19 December 2017. Counsel also tendered the letter to which I have referred above. The prosecutor summarised the facts of the case. It does not appear that the statement of facts was formally tendered.
Counsel for the appellant addressed her Honour at some length in relation to the personal circumstances of the appellant. Counsel for the prosecution went through the criminal history and submitted:
This is a toxic relationship and if there is any question about whether the court has swung too far in coining the term what is family violence, this is a classic on all fours family violence relationship. It’s not just one of those slept together two times, or been in a relationship on and off for six months. It’s something that’s embedded, it’s something that’s now become part of their relationship, and terms of imprisonment have not deterred, not specifically deterred. Despite the fact that these mitigating factors have highly likely not just popped up overnight in relation to these offences that your Honour has, they’ve clearly been in the sentencing magistrate’s mind at the time back in 2003.
Her Honour gave her decision and reasons immediately after the conclusion of submissions. She imposed a sentence of two months imprisonment, reduced from three months on account of the plea of guilty. This reflected the time served prior to sentence. Her Honour also imposed a good behaviour order for a period of 12 months with various conditions.
At the conclusion of the explanation of the good behaviour order, her Honour said that she was going to make a non-association order. That is an order under s 23 of the Crimes (Sentencing) Act 2005. Sections 21, 22 and 23 of the Act provide:
21 Definitions—pt 3.4
In this Act:
non-association order means an order prohibiting an appellant from—
(a) being with a named person, or attempting to be with the person; or
(b) being with a named person or communicating in any way (including electronically) with the person, or attempting to be with the person or to communicate in any way (including electronically) with the person.
place restriction order means an order prohibiting an offender from being in, or within a stated distance of, a named place or area or attempting to be in, or within the stated distance, of the place or area.
22 Application—pt 3.4
This part applies if a court makes either of the following orders for an offender in relation to an offence:
(a) an intensive correction order;
(b) a good behaviour order.
23 Non-association and place restriction orders—when may be made
(1) The court may make a non-association order or place restriction order for the offender if—
(a) the offence is a relevant offence; and
(b) the court is satisfied that it is necessary and reasonable to make the order for 1 or more of the following purposes:
(i) preventing the offender from harassing anyone or endangering the safety or welfare of anyone;
(ii) preventing the offender from committing further offences (including a relevant offence);
(iii) assisting the offender to manage things that may make the offender more likely to commit further offences (including a relevant offence) if not managed.
Note See s 133I for an additional consideration that applies in sentencing a young offender.
(2) The restriction imposed on the offender by a non-association order or place restriction order, and the period of the order, must not be unreasonably disproportionate to the purpose for which the order is made.
(3) To remove any doubt, this section is additional to the court’s other powers under this Act or any other territory law.
(4)In this section:
harm—see the Criminal Code, dictionary.
personal violence offence means—
(a) an offence that involves causing harm, or threatening to cause harm, to anyone; or
(b) a family violence offence.
relevant offence means—
…
(f) a personal violence offence; or
...
Note A reference to an offence includes a reference to a related ancillary offence, eg attempt and conspiracy (see Legislation Act, s 189).
I observe the unusual drafting of s 23(2) which constrains the Court so as not to impose an “unreasonably disproportionate” order. This language assumes that a disproportionate order is within power but not if it is unreasonably so. Given that the concept of proportionality involves a question of reasonableness, this combination phrase on its face involves an element of tautology. The use of the expression invites disputation about the extent to which an order may be disproportionate to the purpose for which the order is made. No doubt this language is not the fault of the legislative drafter but rather reflects a degree of incoherence in the drafting instructions.
Neither party had made a submission that suggested the appropriateness of, or referred to, a non-association order. When the magistrate announced that she was going to make a non-association order, counsel for the appellant provided a copy of an existing domestic violence order and indicated that the matter was coming back before the Court in a few days so as to have its terms modified by consent.
Referring to the existing domestic violence order, her Honour said “It’s not a particularly extensive order in any event”. Her Honour then gave reasons as follows:
In any event, in all the circumstances, I am satisfied that this is a toxic relationship and that the victim is to be protected and, as I’ve indicated already in my sentencing remarks, it is my view [that it is] part of the duty of the court to prevent people from being exposed to further domestic violence, which is the very purpose of the non-association order. Therefore, being satisfied of the offence for which [the] defendant has been convicted is a personal violence offence, and that it is necessary to make the order for the following purposes, that is to prevent you from harassing or endangering the safety or welfare of the victim of this offence, and preventing you from committing further offences, including personal violence offences in relation to the victim of this offence.
For those two reasons you will be prohibited from being with or attempting to be with or communicate with or attempting to communicate with [EE], being in or attempting to be in or within or attempting to be within 100 metres of [EE], except at a court or tribunal proceeding in the Australian Capital Territory. This order is for a period of 12 months and it is to commence today.
Consideration
So far as the reasons given by the magistrate are concerned, her Honour clearly had regard to the relevant statutory test. She specifically addressed the limbs of s 23 of the Crimes (Sentencing) Act. However, I am satisfied that in proceeding as she did, her Honour denied the appellant procedural fairness.
Although s 23 has been in the Crimes (Sentencing) Act since 2005, a non‑association order is not a usual order. It is clearly distinct from those usual orders such as good behaviour orders which are routinely “on the cards” in a sentence such as this.
Neither party had applied for or suggested as appropriate the making of a non‑association order in the circumstances. The issue was not addressed at all by either counsel or the magistrate before her Honour announced that she would make such an order.
There was unchallenged evidence before the Court that the appellant was the carer for his wife who suffered from bipolar disorder. This was referred to by counsel for the appellant in her submissions. The pre-sentence report also noted that the appellant said that he “was caring for the victim, who experiences physical and mental health issues”.
There was no evidence before her Honour of any desire on the part of the victim of the offence for a non-association order or to be separated from her husband. Equally, there was no direct evidence that she wished to maintain the relationship with her husband. Because of the manner in which the sentencing hearing progressed the issue was not addressed.
It is clear that an offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence: Pantorno v The Queen (1989) 166 CLR 466 at 472‑474, 482-483. The particular requirements of procedural fairness may vary. The content of the requirement will be affected by what is said and done during the proceedings and what is ultimately in issue: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 at [34]. The concern is to avoid practical, not merely theoretical injustice: Lam at [37].
When making submissions counsel must be expected to address the Court in relation to orders that might reasonably be contemplated to be available in the circumstances of a particular case. They are not expected to address the possibility of unusual orders or orders that would be unusual in the circumstances of the case unless they are put on notice of the possibility that such orders might be in contemplation of the magistrate, either by:
(a)an application being made for such an order by another party;
(b)a submission being made by another party that such an order may be appropriate in the circumstances; or
(c)by something said or done by the magistrate.
Clearly, there may be some cases in which the precise boundaries of what counsel is expected to contemplate the possibility of when making submissions may be open to debate. However, this is not one of them. In light of the unusual nature of such an order, the fact that it would be very unusual to make such an order in circumstances where it would have the effect of breaking up a marriage, the fact that the possibility of making such an order was not mentioned by anyone until the magistrate announced that she would make one, it is clear, in my view, that the appellant was denied procedural fairness in the conduct of the sentencing hearing. On the appeal, so much was (quite properly) conceded by counsel for the respondent.
Even though it was not necessary in order to reach the conclusion that I have, I admitted into evidence on the appeal further evidence in the form of a statutory declaration from the appellant’s wife which provided:
I … Did not at any time ask for a non-association order and at no time was I consulted about a non-association Order against [NE].
I admitted that evidence because it appeared to me that it was evidence that was relevant to the issue of whether there had been a denial of procedural fairness. It is notable however, that this evidence is very limited, saying nothing about her attitude to the making of a non-association order.
This case was not in the rare category of case in which, notwithstanding the denial of procedural fairness, relief should be refused because even a properly conducted hearing could not possibly have produced a different result: Stead v State Government Insurance Commission (1986) 161 CLR 141.
Given that the appellant established that there was a denial of procedural fairness, it was unnecessary to address the other grounds of appeal.
Because a denial of procedural fairness was established, it was appropriate that the appellant be resentenced.
Resentence
When considering the resentence, I did not consider that a non-association order was appropriate. Such an order would, if implemented, break up the marital relationship for at least the duration of the order. Notwithstanding the number of offences committed by the appellant, in light of the evidence about the appellant’s caring responsibilities and the absence of evidence of a request by or consent to the making of such an order by the victim of the offence, it would be a dramatic and unwarranted intervention by the state into this couple’s marriage to make a non-association order. There can be no doubt that even the peculiar language of the statute precludes the making of an order in the circumstances because it would be “unreasonably disproportionate” to do so. (As there was no evidence of the attitude of the appellant’s wife to the making of a non-association order, the issues referred to in R v Klickovic [2018] ACTSC 141 at [48] do not arise.)
Having regard to the appellant’s previous history, I considered it appropriate that there should be a sentence imposed which was longer than the period of time served pending sentence. In my view, an appropriate sentence was three months which was suspended after the period of time served. This provided an ongoing deterrence of further offending for the duration of the good behaviour order. The conditions of the good behaviour order that had been imposed by the magistrate were otherwise appropriate.
Therefore, the orders that I made on 6 August 2018 were as follows:
1.The appeal is allowed.
2.The orders of the magistrate are set aside.
3.The appellant is resentenced as follows:
(i)On charge CC2017/13369, the appellant is convicted and sentenced to three months imprisonment commencing 11 November 2017 and ending on 10 February 2018, suspended on 10 January 2018 upon the appellant entering into a good behaviour order for 12 months with the following conditions:
i.Be subject on probation to the supervision of the Director General or her delegate of ACT Corrective Services and obey all reasonable directions for a period of 12 months or such period as deemed appropriate;
ii.Provide samples of breath, blood or urine for alcohol and drug testing as directed;
iii.Attend such education, vocational, psychological, psychiatric or other assessments, programs or counselling as directed, particularly in relation to alcohol and other drugs. The appellant is to engage with the Every Man program and receive assistance in relation to employment, physical and mental health, financial management and grief and loss counselling if directed to do so.
(ii)Any levy under s 82 of the Victims of Crime (Financial Assistance) Act 2016 (ACT) is not to be recorded as having been imposed as an order of the Court.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 10 August 2018 |
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