Parker v Buxton
[2010] TASSC 18
•15 April 2010
[2010] TASSC 18
COURT: SUPREME COURT OF TASMANIA
CITATION: Parker v Buxton [2010] TASSC 18
PARTIES: PARKER, Joshua Noel
v
BUXTON, Colin Henry
FILE NO/S: 89/2010
DELIVERED ON: 15 April 2010
DELIVERED AT: Hobart
HEARING DATE: 23, 24 February 2010
JUDGMENT OF: Porter J
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Terms of imprisonment made cumulative and cumulative to existing sentence – Totality principle – Whether manifestly excessive.
Aust Dig Criminal Law [3521]
Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – Alleged bias of magistrate – Comments relating to repeated appearances of applicant before the same magistrate – Whether apprehended bias made out.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: In Person
Respondent: S Nicholson
Solicitors:
Applicant: In Person
Respondent: Director of Public Prosecutions
Judgment Number: [2010] TASSC 18
Number of paragraphs: 23
Serial No 18/2010
File No 89/2010
JOSHUA NOEL PARKER v COLIN HENRY BUXTON
REASONS FOR JUDGMENT PORTER J
15 April 2010
Introduction
The applicant has moved to review sentencing orders made by a magistrate on 18 December 2009. He pleaded guilty to one count of assault committed on 1 June 2008, and was also the subject of an application to activate a five months' suspended term of imprisonment imposed on 30 April 2008, which related to offences of violence committed on 29 July 2007.
At the time of sentencing he was serving a 15 month term of imprisonment imposed by a judge of this Court on two counts of trafficking in a controlled substance between March and September 2008. That sentence commenced on 29 July 2009 and he was not eligible for parole until he had served one half.
The magistrate sentenced the applicant to four months' imprisonment to commence at the expiration of the sentence he was then serving. A term of three months' imprisonment was substituted for the suspended term. That sentence was made cumulative to the four months. Having regard to the order in which the sentences were dealt with, because of the Sentencing Act 1997, s27(6)(b)[1], the magistrate had no option but to make the four months cumulative to the three month term.
[1] 27— Breach of order suspending sentence
The notice to review raises complaints that the sentence was manifestly excessive by making it cumulative to the existing sentence imposed in this Court, but as pursued in argument, the complaint is really as to the cumulative effect of both sentences imposed by the magistrate. That is, a further cumulative total of seven months, cumulative to the existing term. The applicant does not argue that the individual sentences imposed by the magistrate are manifestly excessive. However, he also argues that the magistrate was biased towards him due to frequent appearances over a number of years.
There is a preliminary matter about the operation of the sentences. In a letter filed with the notice to review, the applicant said that he had been eligible for parole on 14 (sic) March 2010 but that the sentences imposed by the magistrate did not commence until 28 July 2010. The applicant stated in the letter that this was an additional 4½ months in custody, (mid-March to 28 July 2010), meaning that the magistrate had "given" him an additional 11½ months. The statement of course assumes that the applicant would have been released on parole when eligible. His point however, involves consideration of both parole and remissions eligibility. So that there was some certainty as to how Prison Services had calculated the applicant's time to be served, I sought to have the matter clarified, and I am grateful for the assistance of Mr Nicholson who appeared for the respondent, and of the Correctional Manager.
First, it should be noted that the provisions for parole and remissions operate independently of each other. The date of 28 July 2010 referred to by the applicant is arrived at by the following process. Ignoring parole and remissions the latest release date in respect of the 15 months' sentence is 28 October 2010. The applicable remission for good behaviour is three months, bringing the release date forward to 28 July 2010. The Corrections Act 1997, s71[2] means that the period of four months commences at the completion of the non-parole period set by the judge. Still ignoring parole in respect of the 15 months' sentence, but taking into account the remissions as calculated by Prison Services in relation to the total of seven months, the applicant's present latest release date is 18 December 2010. However, as to parole eligibility, the effect of the imposition of the total period of seven months is the deferral of the parole eligibility date from 16 March 2010 to 16 October 2010; that is, the full seven months.
[2] 71 — Prisoner subject to more than one non-parole period or other minimum term
The Sentencing Act, s15(1), provides that an offender who is sentenced to a term of imprisonment must serve the sentence concurrently with any uncompleted sentence of imprisonment that he is then serving or liable to serve, unless the court directs otherwise. In the case of the four month term, the magistrate directed otherwise. In assessing the appropriateness of directing otherwise, the magistrate was obliged to ensure that the aggregate sentence was just and appropriate and did not offend the totality principle. This included taking into account the Supreme Court sentence: Harland-White v R 1/1998. The magistrate was entitled to have regard to the possibility of parole and remissions in respect of the Supreme Court sentence, and in relation to the sentences he was considering imposing; see Hoare v R (1989) 167 CLR 348 at 355, Burke v R [1983] Tas R 85 and R v Devine (No 2) 56/1998. On the other hand, as was made clear in Hoare's case at 354, a court should impose the appropriate sentence and not impose a longer sentence to take into account the possibility, or even the high degree of probability, of early release by executive action. See also R v Paivinen (1985) 158 CLR 489 at 494.
Whichever way which the magistrate might have approached the sentences, the activated or substituted suspended sentence had to be made cumulative to any sentence then being served or liable to be served. That meant either the Supreme Court sentence, or the sentence imposed in relation to the assault. But there was discretion in relation to the four months as to whether to direct that that be served cumulative to the fifteen months, or cumulative to the activated suspended sentence if that had been imposed first in time. Generally speaking, a court should fix the appropriate sentence for each offence or series of offences, determine whether they should be served cumulatively or allow the statutory presumption to operate, and then consider whether the aggregate period requires downwards adjustment. That is the preferable course, but an approach of lowering the individual sentences in order to reflect the fact that a number of sentences are being imposed is permissible: Mill v R (1998) 166 CLR 59 at 63. In this area, "[j]udges of first instance should be allowed as much flexibility as is consonant with consistency of approach and as accords with the statutory regime …": Johnson v R (2004) 78 ALJR 616 at [26].
The facts before the magistrate
The material relevant to the offence itself can be summarised as follows:
· the applicant was present at a boxing tournament when an argument developed between him and the complainant's brother;
· as a result of the argument, the applicant left;
· he had been at a residence and was waiting out the front for a taxi when a large group, including the complainant and his brother, gathered around him;
· a further argument developed with the group gathered around the applicant in a semicircle;
· the applicant's brother arrived and offered assistance, at which point the applicant had his back to a fence and was facing the complainant;
· the applicant struck the complainant to the head with a stubby and then punched him several more times to the head.
It was put, and not disputed, that the applicant was justified in using force in the circumstances as he believed them to be, but the plea of guilty was put on the basis that the force used was excessive. The complainant suffered lacerations and bruising to his face and soreness to his teeth and neck. The applicant volunteered to police that it was a stubby he had used to initially strike the complainant. To his personal circumstances, it was put that the applicant had established ties in the Devonport area through a 10 year old son, with whom he was anxious to be reunited. He was working on a casual basis at the time of the Supreme Court sentence and he was confident that he would be offered further employment upon his release.
The matters which gave rise to the five month suspended sentence involved assault police, abusive language to police and failing to comply with directions. In general terms, the conduct of the applicant was quite appalling. The applicant was intoxicated and became involved in exchanges with police who were seeking to arrest other persons outside a bar. The applicant's conduct included struggling violently and head butting one officer, and continually racially abusing that officer in very offensive terms. One officer sustained bruising and swelling to the bridge of his nose, another officer suffered a strained left thumb and a graze to the elbow, another officer was kicked to the face, and yet another officer was splattered with blood from an injury to the applicant's face.
The magistrate's comments
After setting out the bare facts of the assault, the magistrate noted that the applicant had decided to leave the boxing tournament, mindful of the fact that he was on a suspended sentence. He noted that the applicant was surrounded by up to eight people, that he believed that he was going to be assaulted, and that when someone moved at him, he swung out with the stubby still in his hand and hit the complainant. The magistrate continued:
"I was told that the complainant then grabbed you and both of you threw a number of punches and … you also suffered some injuries. It was put to me therefore that you hadn't gone looking for trouble. You concede by your plea of guilty that the force that you used was excessive and the prosecutor did not seek to challenge what was put to me in mitigation …
I have dealt with you many times over the last 15 years or so for offences of violence and many other matters. You've displayed, as you did on this occasion, a willingness to use violence to deal with situations that confront you. You are a man of not inconsiderable stature; you're capable of causing considerable harm to other people. The injuries to the complainant on this occasion were not insignificant. I've said to you many times over the years, … that mindless violence cannot and will not be tolerated in a civilised society. This offence is aggravated in that it involved the use of a weapon although having said that I accept that it was opportunistic in that you did not actively seek out a weapon or a bottle beforehand — it was already in your hand."
The applicant's record
The applicant was 36 years old at the time of being sentenced by the magistrate. He was first before a children's court in March 1990, for an offence of assault. Since that time he had accumulated the following convictions for violence:
Intending to cause bodily harm — 1
Assault (Criminal Code) — 1 (this seems to have been associated with an aggravated burglary and the applicant was sentenced to three years' imprisonment)
Assault (Police Offences Act) — 6
Assault police — 14
Resist arrest — 6
Miscellaneous offences of abusive language to police, threatening police, etc — 9
Injure and destroy property — 5
Additionally, the applicant has numerous convictions for offences of dishonesty, and for alcohol-related, traffic, firearms, and drug offences.
Bias
Established bias is an error of law within the meaning of the Justices Act 1959, s107: Schreuder v Australian Securities Commission (1996) 6 Tas R 223. In this case, the complaint is that the magistrate had become prejudiced towards the applicant by virtue of the repeated appearances before him. The terms of the complaint suggest actual bias, but it is preferable that it be dealt with on the basis of apprehended bias. The test is whether a fair-minded observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the task: Johnson v Johnson (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
Certainly in this State and no doubt elsewhere as well, it is not uncommon for individuals to repeatedly appear before particular judicial officers. In those circumstances, in the absence of other more personal disqualifying factors, mere familiarity with the person through repeated appearances, of itself is of no consequence. In general terms, there is nothing to suggest that the judicial officer will not approach each new matter impartially and deal with it on its merits. The fair minded observer is taken to presume that ordinarily judicial officers act to ensure the substance and appearance of impartiality: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 299; Johnson v Johnson (above) at [12]. In Re JRL; ex parte CJL (1986) 161 CLR 342, Mason J said, at 352:
"It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way."
A level of exasperation and robustness in dealing with counsel and parties is acceptable: IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (1999) 78 SASR 151 per Doyle CJ at [173] - [174]; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 per Wilcox J at 123. Naturally, there are limits. A significant and sustained level of apparent personal hostility towards a defendant's counsel in a criminal matter may be such as to cause a miscarriage of justice; see for example Lars (1994) 73 A Crim R 91. In terms of bias, such an apparent attitude towards a defendant would be likely to give rise to the relevant apprehension. It would make no difference whether that arose more acutely in the course of one matter, or was built up over a number of appearances on different matters. There seems to be no doubt that the applicant had appeared before, and been sentenced by, the same magistrate on quite a few previous occasions. The issue is whether an apprehension of bias arises from the conduct of the magistrate as shown by the material.
I have already set out comments made by the magistrate when passing sentence, in which reference was made to the magistrate's experience of the applicant "over the last 15 years or so" dealing with him "for offences of violence and many other matters". Additionally, during the course of the proceedings, the magistrate remarked that he had dealt with the applicant "since he was in the Youth Court". Those are matters of simple historical fact. The magistrate observed that he had said many times to the applicant that mindless violence cannot and will not be tolerated. No doubt this was intended to relate to the factors of general deterrence, and particularly in the context, personal deterrence. If the magistrate had not said such things to the applicant himself, with a record such as the applicant's, his Honour could have readily imagined that the sentiment had been expressed by others on more than one occasion over the years.
In my view, the magistrate's comments do not objectively show any indications of prejudice, hostility or antipathy. They could not have engendered in the mind of a reasonable observer the apprehension of impartiality ,and accordingly bias has not been established.
Is the sentence manifestly excessive?
It is trite that in matters such as these a magistrate is vested with a wide discretion. It is not a question of what I would have done in the circumstances; the applicant must show a clear case of error. He must demonstrate that the orders are plainly outside the proper limits of that wide discretion.
The first thing that needs to be noted in all of this is that the magistrate declined to activate the suspended sentence of five months, but substituted a sentence of three months. Particularly given the conduct involved and the offence which constituted the breach, it was quite open to him to have activated the five month suspended sentence and to have made that order first in time, which then as a matter of law, would have made it cumulative to the 15 months. I should also observe that the magistrate appeared to be without the benefit of any formal note of the judge's orders in relation to the sentence of 15 months. Counsel who appeared for the applicant told the magistrate, without contradiction; that he "understood" that the applicant was eligible for release on parole after serving "approximately nine months". Accordingly, the magistrate was of the view that the applicant was to spend about six weeks longer in custody before he was eligible for parole, than was in fact the case.
The question is whether the cumulative effect of the orders has resulted in a total or overall sentence out of all proportion to the criminal conduct involved. Having carefully examined the circumstances of all matters before the magistrate, I am not able to say that this is so. I have considered the arguments put by the applicant as to the matters which he says mitigate his conduct in relation to the assault. However, he was not alone at the time, his brother having come to his assistance, and it was quite dangerous and unnecessary for him to strike out with the stubby in his hand. In that context I note that the offence which attracted the sentence of four months was committed only a month after the applicant had received the benefit of the suspension of the term of imprisonment imposed for the July 2007 offences.
In all of the circumstances I am not persuaded that the cumulative effect of the sentences is an error, nor, I should say for completeness, that either of the individual sentences is manifestly excessive. The motion is dismissed.
(6) If a court orders an offender to serve a term of imprisonment that had been held in suspense, the term of imprisonment must, unless the court otherwise orders, be served —
(a) …; and
(b) cumulatively with any other term of imprisonment previously imposed on the offender by that court or any other court.
(1) In this section —
"designated sentence" means —
(a) a sentence of imprisonment to which a non-parole period is applicable or in respect of which the prisoner is ineligible for parole by operation of section 17(3A) of the Sentencing Act 1997; or
(b) a sentence of imprisonment to which an order under section 17(2)(a) of the Sentencing Act 1997 is applicable;
"minimum term", in relation to a designated sentence, means —
(a) in the case of a sentence to which a non-parole period is applicable, that non-parole period; or
(b) in any other case, the sentence itself.
(2) If, at any time, a person is subject to 2 or more designated sentences —
(a) the minimum terms relating to those designated sentences, subject to subsections (3)and (4), are to be cumulative upon, or concurrent with, each other in like manner as the sentences to which they relate; and
(b) the completion by a person of the non-parole period applicable to a sentence to which the person is subject is not to be taken into account for the purposes of section 70 if, at the time of completion of that non-parole period, the person has not completed the minimum term relating to any other designated sentence to which the person is subject.
…
(5) If, under subsection (2), the minimum term in relation to a designated sentence is cumulative upon the minimum term in relation to another such sentence, the later minimum term is to be taken to commence upon the expiration of the earlier minimum term, notwithstanding that the earlier sentence has not been completed.
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