Parker v Hall - [2015] TASSC 60

[2015] TASSC 60

COURT: SUPREME COURT OF TASMANIA

CITATION: Parker v Hall [2015] TASSC 60

PARTIES:  PARKER, John (Senior Sergeant)
  v
  HALL, Adrian John

FILE NO:  712/2014
DELIVERED ON:  10 December 2015
DELIVERED AT:  Hobart
HEARING DATE:  9 October 2015
JUDGMENT OF:  Wood J

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate.

Family Violence Act 2004 (Tas), s 35.
Sentencing Act 1997 (Tas), ss 7(f), 9, 10, 58, 59, 60.
Justices Act 1959 (Tas), ss 110.
Lyons v Bakes [2015] TASSC 38, followed.
Attorney-General v Smith [2002] TASSC 10; Badcock v White [2004] TASSC 59, considered.
Aus Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Applicant:  S Nicholson
             Respondent:  G Richardson
Solicitors:
             Applicant:  Acting Director of Public Prosecutions
             Respondent:  G Richardson

Judgment Number: [2015] TASSC 60
Number of paragraphs: 46

Serial No 60/2015
File No 712/2014

SENIOR SERGEANT JOHN PARKER v ADRIAN JOHN HALL

REASONS FOR JUDGMENT WOOD J

10 December 2015

An application has been brought to review a sentence imposed upon the respondent, Adrian John Hall, on 21 July 2014 by the then learned Chief Magistrate Mr M Hill. The respondent had been found guilty of six offences committed in the period 25 December 2012 to 3 May 2013: four breaches of a police family violence order and two breaches of an interim family violence order contrary to s35(1) of the Family Violence Act 2004. The learned Chief Magistrate made a sentencing order pursuant to s 7(f) of the Sentencing Act 1997, adjourning the charges without conviction for 12 months on condition that the respondent enter into an undertaking to be of good behaviour and commit no similar offences during that time, and that the respondent was to appear before the court if called upon during that time.
The single ground of review is that the learned Chief Magistrate erred in fact and/or in law in imposing a sentence that was manifestly inadequate in the circumstances of the case.
The context of the contraventions was that the respondent and the complainant had been in a relationship, described by the respondent as an "on-off" relationship, for around two years, and had jointly purchased a house. A police family violence order was made on 24 December 2012. The order included a condition that the respondent was not to approach within 50 metres, or contact directly or indirectly, the complainant, the complainant, including by telephone, email, facsimile, letter, SMS text message or any other form of electronic communication. The order had effect from 24 December 2012. Soon after, the respondent contravened that order, and later contravened the order on three further occasions. The contraventions particularised in the charges and found proved by the Chief Magistrate, and his findings about the facts are as set out below.
1    On 25 December 2012 at Launceston in Tasmania the respondent contravened the order, in that he telephoned the complainant.
Late on Christmas Day, the complainant received a phone call from the respondent. He said "Hi, it's me" or words to that effect. The complainant did not say anything in response. She hung up the phone and called the police.
2    On 29 December 2012 at Launceston in Tasmania the respondent contravened the order, in that he contacted the complainant by leaving her a letter.
The respondent wrote the complainant a letter, and in it he expressed his affection for the complainant and said, amongst other things, "what is done is done and I am sorry". The respondent left the letter for the complainant at the house that they had previously occupied, intending that she should receive it. The complainant went to the house to collect some property with a mutual friend. The mutual friend told the complainant about the letter, where it was and that the respondent had left it for her.
3    On 16 January 2013 at Myrtle Park in Tasmania the respondent contravened the order, in that he approached the complainant by staying with her at Myrtle Park.
The complainant and the respondent camped together for one night at Myrtle Park. The respondent organised the camping trip and the complainant drove to the campsite and joined him.
4    On 15 April 2013 at Launceston in Tasmania the respondent contravened the order, in that he contacted the complainant by leaving her a letter.
The respondent handed the complainant a letter and she read it in his presence. The letter was an expression of affection and his hope for reconciliation.
An interim family violence order was made on 26 April 2013 by the Magistrates Court in Launceston. The order included a condition substantially in the same terms as the condition of the police family violence order. The respondent was not to approach within 50 metres, or contact directly the complainant, including by telephone, email, facsimile, letter, SMS text message or any other form of electronic communication, save and except through their solicitors by letter. Such order had effect as of 26 April 2013. The respondent contravened this order by committing a fifth and sixth offence.
5    On 27 April 2013 at Launceston in Tasmania the respondent approached within 50 metres of the complainant at Archers Manor, Newnham.
The complainant and the respondent met together in the car park of Archers Manor and had a discussion. The meeting was consensual and the complainant travelled in a separate car to meet with the respondent. The Chief Magistrate did not decide who initiated it, but stated that, regardless, the respondent willingly brought himself close to the complainant in contravention of the order.
6    On 3 May 2013 at Launceston in Tasmania the respondent contravened the order, in that he approached within 50 metres of the complainant at 2/9 Nanette Court, Prospect.
The complainant and the respondent met at the complainant's mother's house in her presence. A friend of the respondent was also present. The purpose of the meeting was to resolve issues with the house that the complainant and respondent had bought together. The meeting lasted for about an hour.

Circumstances of the offender and other offences

At the sentencing hearing, the prosecutor drew the Chief Magistrate's attention to the respondent's record of prior convictions and a relevant sentence imposed on 6 May 2013. It was noted that, strictly speaking, the sentence did not relate to "prior convictions" as the sentence was imposed after the respondent committed the offences under review. Nonetheless, the sentence has relevance for reasons that will be discussed later. The offending was one offence of breach of a police family violence order on 25 April 2013 and one offence of breach of an interim family violence order committed on 6 May 2013 (the same date as the court date when sentence was imposed for these two matters). The sentence was imposed by the Chief Magistrate and was an order pursuant to s 7(f) of the Sentencing Act, without conviction and an undertaking for 12 months on condition that the respondent be of good behaviour and not commit any similar offence. The breaches involved the respondent spending a weekend with the same complainant at holiday accommodation at Bridport, Barnbougle, with the complainant's acquiescence, and approaching her residence in Prospect. It can be seen that these two offences were committed in the same time period as the offences under review. In fact, the second of the two offences occurred after the offences under review.
Having drawn the Chief Magistrate's attention to the other offences, the prosecutor was asked whether she wished to make any submissions regarding sentence and she declined to do so. The prosecutor went on to note that, given that the offending was very close in time and effectively occurred in the same period, a matter to be considered was whether the court would have imposed an additional penalty had all the matters been dealt with at the same time. His Honour referred to the fact that the respondent had no real relevant history, that there was a certain amount of complicity, and that the relationship had now ceased. The prosecutor responded that there was no question about that. His Honour noted that it may well be that the matters should not attract a conviction, and then proceeded to hear from the respondent's counsel, Mr Richardson, in mitigation.
In the plea in mitigation, Mr Richardson noted the following matters:
·     The respondent was a legal practitioner and was 39 years of age.
·     He had no relevant prior convictions.
·     The conduct did not involve any violence or threats.
·     The conduct occurred with the complainant's acquiescence and complicity to varying degrees, such that some occasions involved her active participation, for example, driving to meet the respondent.
·     The respondent was discharged for the other two relevant offences, the second occurring on 6 May 2013, and the current matters pre-dated that offence.
·     The conduct with respect to both groups of offending is similar.
·     If the respondent had been dealt with for all eight breaches at the same time, the sentencing outcome would almost certainly have been the same as was imposed on 6 May, as the breaches arose from the same course of conduct.
·     The respondent has suffered far more than the average citizen would, in consequence of the charges. The offences had attracted enormous publicity because he was a legal practitioner.
·     Since the sentence imposed on 6 May 2013, there had been no further contact at all between the complainant and the respondent.

The sentencing comments

The Chief Magistrate's comments in sentencing the respondent are as follows:
"The defendant has no relevant previous matters of note. He had – he appeared in court in May of last year when a discharge without conviction was made in relation to – disposition rather without conviction was made in relation to two similar matters, which were discussed in evidence in passing, and I accept the proposition that the complaints that have been found proved against him really are part of that course of conduct; that those matters, I think, consisted or made up of – also the matters found proved against the defendant are not matters of violence, they are all matters where the parties met by either arrangement or at least by compliance and agreement and matters were discussed.
This has been a long drawn out matter which has attracted attention, which is relevant, but unfortunately that sometimes happens. I've mentioned before the poorly drafted complaints that put the Court – I'm not submitting the parties – or suggesting the parties had difficulty, but the Court certainly did in relation to the mix of matters and the long drawn out complaints that were presented. The defendant it [sic] not to be penalised for the delay, I think, and I'm told now the relationship is over. The 7F disposition of May last year has been complied with. All other matters between the parties are concluded. I don't think it's appropriate in a legal sense to say that as a legal practitioner he should have known better, so I won't take that as a factor.
However, there is a – there's always I think in these sorts of matters, where there's some complicity there's – the defendant was prepared to go about this in the presence of the order without, for obvious reasons, seeking its amendment. So he put himself in a position of being, in my view anyway, quite deliberately in breach – that's what I think – but on the other hand no violence has been found proved. The relationship is over. The complicity situation was significant. I think the matters can be dealt with without conviction."
His Honour went on to make the sentencing order, adjourning the proceedings without conviction. A family violence order was made with the consent of the respondent, in the terms sought by the prosecution, for a period of 12 months.

Submissions on review

The submissions of the applicant before me focussed on the other two offences and argued that they had relevance to the respondent's attitude to breaching family violence orders, up to and including 6 May 2013. General matters of principle were relied upon, such as the seriousness of offences contrary to the Family Violence Act, and the public interest to be served in imposing convictions. It was contended that the order made, falling short of a conviction, was a manifestly inadequate response, warranting appellate intervention, notwithstanding that this was a Crown appeal against sentence.
The respondent's counsel argued that an appeal by the prosecution against sentence should be brought only in rare and exceptional circumstances, where there is a need to establish some point of principle. The lack of violence and threats was emphasised. In relation to the offences dealt with on 6 May 2013, there had been no further contact between the complainant and the respondent, and the obvious purpose of the court's order had been successful. Further, that there had been no suggestion by the prosecution that the disposition of the matters on that earlier date had been inappropriate. At the sentencing hearing, the Chief Magistrate had made it quite clear that he was contemplating the same order that he had made in May 2013, and it was not submitted by the prosecutor that that sentencing order was beyond the proper scope of his Honour's sentencing discretion. Indeed, there was an invitation to the prosecutor to make submissions on two occasions and that was not taken up. It was submitted that it was clearly open to the Chief Magistrate to exercise his discretion to not record a conviction.

Discussion

This appeal asserts that the sentence was manifestly inadequate. The sentence is said to be so inadequate that error can be inferred. In order for this appeal ground to succeed, it must be shown that the sentence is plainly inadequate, notwithstanding that a magistrate is vested with a very wide discretion. To set aside a sentencing order on this ground, the Court reviewing the sentence must be satisfied that the sentence was so "manifestly wrong in its inadequacy, as to amount to a clear error in the sentencing process": Visser v Smart [1998] TASSC 151 per Crawford J (as he then was) at [5].
There is further principle constraining the prospects of this appeal succeeding. As a Crown appeal, special considerations apply. There are well-settled principles that Crown appeals are less readily allowed than defence appeals against sentence. For summaries of the principles see R v Allpass (1993) 72 A Crim R 561 at 562-563 and R v Clarke [1996] 2 VR 520 at 522, approved by the High Court in Lowndes v The Queen (1999) 195 CLR 665 at 671, and also Director of Public Prosecutions v Chatters (2011) 21 Tas R 26. The principles are tied to concerns about unfairness and that the appeal process exposes the offender to an element of double jeopardy. The principles operate so that such appeals should be a rarity (Griffiths (1977) 137 CLR 293 at 310; Everett v The Queen (1994) 181 CLR 295 at 299; Malvaso (1989) 168 CLR 227 at 234), there is a higher threshold test for error, and the Crown needs to demonstrate very clearly the error of which it complains: Dinsdale v The Queen (2000) 202 CLR 321 at [62]. Additionally, it is recognised that an appeal court has a "residual discretion" to dismiss a Crown appeal, even if the sentence is determined to be manifestly inadequate. In this regard, the conduct of the Crown at the original sentencing proceedings may be a matter of significance (Allpass at 562-563). Relevant to the submissions made by the respondent in this case, it is established that if the Crown acquiesces in the order, knowing what sentence was intended, that may be a basis for the court to decline to intervene: Everett. Further, the principles apply so that, in the event of a successful appeal, the appeal court in resentencing ordinarily imposes a substituted sentence that is somewhat less than the sentence it considers should have been imposed at first instance: Allpass at 562-563. The appeal court may have regard to facts and events as at the time of resentencing, such as anxiety and stress experienced by the offender resulting from the appeal and having to be sentenced a second time. It can be seen that the principles operate at two different stages of the appeal process. Firstly, as to whether the appeal court should intervene, and secondly, at the stage of resentencing in the event of intervention. The principles regarding Crown appeals apply to motions to review, Hrasky v Boyd (2000) 9 Tas R 144, at [27], and Visser v Smart (supra), absent legislative inroads.
There has been relatively recent amendment to the Justices Act 1959 affecting the application of the common law principles to motions to review. On 1 September 2013, an amendment was made to add ss 110(2AA) and (2AB):
"(2AA) The court, on hearing a motion to review in relation to an order imposing a sentence on a person in relation to a matter, may, whether the person who filed the notice of review in respect of the order was the person or the prosecutor, take into account any matter, relevant to sentencing, that has occurred between when the justices who made the order dealt with the person in relation to the matter and when the court hears the motion to review.
(2AB) Despite subsection (2AA), the court, in exercising in relation to an order a power under subsection (2), the effect of the exercise of which is that the person to whom the order relates is being sentenced again for an offence, must not take into account any element of double jeopardy involved in the person being sentenced again so as to impose a less severe sentence than the court would otherwise consider appropriate."
The effect of the amendment was considered by Pearce J in Lyons v Bakes [2015] TASSC 37. His Honour made reference to the Criminal Code, s 402(4A) (concerned with sentencing appeals heard by the Court of Criminal Appeal) in the form considered in Director of Public Prosecutions v Chatters. In that case, the Court of Criminal Appeal considered that provision and determined that the double jeopardy principle has no operation to the detection of error in Crown appeals. His Honour, at [16], noted that the provision in the Justices Act was in different terms to that considered in Director of Public Prosecutions v Chatters. His Honour expressed the view that the provision does not expressly extend to the issue of whether an appeal should be allowed or dismissed. Pearce J stated that s 110(2AA) does not prohibit a court from taking account of double jeopardy-type considerations in a decision whether to allow or reject an appeal. As for s 110(2AB), his Honour stated that "the terms of the restriction on taking into account 'any element of double jeopardy' have no application other than where a person is being 'sentenced again'". His Honour went on to consider the impact of the provision with respect to resentencing.
I respectfully agree with the analysis by Pearce J and his conclusion that the provision in the Justices Act does not restrain the court from taking into account double jeopardy principles in deciding whether to allow an appeal. It is clear the terms of the section are confined to resentencing. At the hearing of this review, counsel for the applicant did not submit to the contrary. In fact, the written submissions for the applicant acknowledged a distinction between defence and Crown appeals, and cited the analysis of Pearce J in an earlier decision of Cannell v Hughes (2014) 67 MVR 532. In that case, Pearce J expressed similar reasons to those he later expressed in Lyons v Bakes, without deciding the point.
The question is then, is the sentence manifestly inadequate by reason of the failure of the Chief Magistrate to record a conviction, and is this a rare set of circumstances where a Crown appeal should succeed?

I think it is useful to begin a consideration of this question by considering the effect of the sentencing order that was made pursuant to s 7(f) of the Sentencing Act. Section 7(f) makes provision for the order:
"(f) with or without recording a conviction, adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender; or … ."
Section 59 sets out that an undertaking given by an offender under s 7(f) is subject to the following conditions:
"59 Conditions of undertaking given by released offender
An undertaking given by an offender under section 7(f) is subject to the following conditions:
(a) that the offender must appear before the court during the period of the adjournment if called on to do so and, if the court so specifies, at the time to which the further hearing is adjourned;
(b) that the offender must be of good behaviour during the period of the adjournment;
(c) that the offender must observe any conditions imposed by the court."
These statutory conditions were reflected in the order made.
Section 60 provides that an offender who has given an undertaking under s 7(f) may be called upon to appear before the court. Leaving to one side the procedure by which that occurs, and the provision for what may occur if the offender has observed the conditions of the undertaking, the section sets out the court's power if the court is not satisfied that the offender has observed the conditions of the undertaking:
"(4) … the court may cancel the order and deal with the offender for the offence or offences in respect of which the order was made in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences."
In consequence, for the duration of the s 7(f) sentencing order, if a condition of the undertaking has been breached, the offender may be resentenced.
There are other statutory consequences. It is worth noting that a finding of guilt, without the recording of a conviction, has the same effect as if a conviction had been recorded for the purpose of determining sentence for a subsequent offence, and for the purpose of enactments providing for mandatory forfeiture of property on conviction, and mandatory penalty on conviction.
If the respondent was to reoffend in the future and commit a breach of a family violence order, he would be treated as a subsequent offender. The Family ViolenceAct provides that subsequent offenders are subject to a higher maximum penalty than first offenders. Section 35(1) provides that, in the case of a first offence, the maximum penalty is a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months, and in the case of a second offence, the maximum penalty is a fine not exceeding 30 penalty units or imprisonment for a term not exceeding 18 months. There is an increase in the maximum penalties for a third offence, and again, for a category of a fourth or subsequent offence.
However, subject to such statutory exceptions, the general position set out in the Sentencing Act is that a finding of guilt without the recording of a conviction is not to be taken to be a conviction for any purpose, Sentencing Act, s 10(1) and (2). Implicit in the provision is a point worth emphasising: that a finding of guilt is not equated to a conviction, and equally, a failure to record a conviction does not amount to a failure to find the offender guilty.
A finding of guilt does not have the same effect as if a conviction had been recorded in the case of certain mandatory penalties on conviction, such as disqualification for or loss of office, or forfeiture of pensions or other benefits: Sentencing Act, s 10(2)(b)(v).
I turn now to relevant sentencing considerations which apply to the exercise of the court's discretion whether or not to record a conviction. There are statutory provisions which govern the exercise of the court's discretion. The court must have regard to the purposes of orders falling short of a conviction specified in s 58. This section provides:
"58 Purpose of orders to adjourn, discharge or dismiss
An order under section 7(f), (g) or (h) may be made for such one or more of the following purposes, as is relevant in the circumstances, as the court thinks fit:
(a) to provide for the rehabilitation of an offender by allowing the offender's sentence to be served in the community unsupervised;
(b) to take account of the trivial, technical or minor nature of the offence committed by an offender;
(c) to allow for circumstances in which it may be inappropriate to record a conviction against an offender;
(d) to allow for circumstances in which it may be inappropriate to inflict any punishment other than a nominal punishment on an offender;
(e) to allow for the existence of other extenuating or exceptional circumstances that may justify the court showing mercy to an offender."
Of course, there are sentencing purposes achieved by recording a conviction which must also be considered. In Attorney-General v Smith [2002] TASSC 10, Crawford J considered the public interest and the need that may exist for an official record to be made of the commission of the offence. He referred to the consequences of failing to record a conviction:
"24 … The offender would be entitled to assert, even on oath or statutory declaration, that he or she had no previous conviction, or to expressly deny having been convicted of the relevant offence, and could not later be charged with perjury. As was pointed out in R v Briese, ex parte Attorney-General [1998] 1 Qd R 487 at 491, a failure to record a conviction is capable of considerable effect in the community. Persons who might have an interest in knowing the truth in such matters include potential employers, insurers and various government departments including the Immigration Department. Under the Firearms Act 1996, the offender would not be absolutely disqualified by s29(3)(a) from obtaining a licence because he would not come within the category of a person who 'within the period of 5 years before the application was made, has been convicted in Tasmania or elsewhere of any crime involving violence to another person'.
25 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.
26 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."
Section 9 applies to the exercise of the court's discretion whether or not to record a conviction:
"9 Conviction or non-conviction
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."
Under s 9(a), the court is required to have regard to all the circumstances of the case, including those specified. The matters specified are not exhaustive of all relevant circumstances. Those matters specified must not be overlooked, and the relative weight of each depends on the circumstances of each particular case: R v Brown; Ex parte Attorney-General (Qld) [1994] 2 Qd R 182, at 185 and 193.
The "nature and circumstances of the offence" in s 9(a) require the court to have regard to the actual conduct constituting the offence charged and the actual circumstances in which it was committed: Walden v Hensler (1987) 163 CLR 561 at 577 and 595. It allows the court to have regard to those circumstances which mean the offence is inherently less serious than other examples of offending in contravention of the section. In Badcock v White [2004] TASSC 59 Crawford J stated at [17]:
"17 The fact that imprisonment is a sentencing option or that the offence could be committed in grossly serious circumstances in some cases, is not determinative. By way of illustration, I note that in the criminal courts of this State since the commencement of 2003, five offenders have been dealt with under s7(f) without the recording of convictions for crimes for which imprisonment for 21 years was prescribed. Their respective crimes were four aggravated burglaries and seven stealings; aggravated sexual assault; forgery, uttering and stealing; burglary and stealing; and indecency. In Queensland, in R v Brown, ex parte Attorney-General [1994] 2 Qd R 182 the Court of Appeal refused to intervene in a case of dangerous driving causing two deaths, where a conviction had not been recorded pursuant to the application of a statutory discretion requiring consideration of circumstances similar to those in s9."
The application of s 7(f) and other like orders is not reserved for offences at the more trivial end of the sentencing scale: R v Brown, per Macrossan CJ at 185. Even inherently serious offences may attract a sentencing order which does not involve recording a conviction: Collins v Caccavo [2015] TASSC 53, per Estcourt J at [21].
The "nature of the offence" allows consideration of general matters, such as the purpose of the legislation, the social harm caused by family violence addressed by the Family Violence Act, and the need for general deterrence in order to protect others from family violence offences. The protective purpose of the Act is evident from its terms, such as the long title and the objects provision in s 3. In matters of sentencing, it is clear that the court's role is protective, and deterrence, both specific and general, are important considerations: Tennent J in Maingay v Seabourne [2009] TASSC 67 at [23].
In this case, there were circumstances which can be said to be extenuating and which weigh in favour of not recording a conviction, and some which weigh against. The respondent's conduct did not involve violence, threats of violence, aggression or antagonistic behaviour. The offences were confined to breaches of conditions precluding contacting and approaching the complainant. They were committed with the compliance and agreement of the complainant. Of course, that is no justification for the breaches. However, it is a point of distinction with other offenders where there is no complicity and the offender knows that the contact made with the complainant is contrary to the wishes of the complainant. Weighing against leniency and the order made, was that the respondent consciously placed himself in proximity to the complainant when he was aware of the order and its terms. Nonetheless, the respondent's offences cannot be characterised as serious examples.
Another matter is the repeated nature of his offending. To repeat the offence, as he did, increases the overall culpability of his offending. The commission of six breaches is a matter which points towards the need for a sanction carrying some deterrent effect.
The Chief Magistrate characterised the respondent as being, quite deliberately, in breach of the order. As a characterisation, it accords with his findings in general, but it may be worth noting that there is an exception with respect to the second offence. The second offence referred to above, involving the respondent's conduct in leaving a letter so that the complainant could read it if she chose to, was evidently committed in the belief that the conduct did not breach the police family violence order. Ultimately, the court rejected the argument, but the respondent's belief bears on an assessment of his culpability with respect to that offence. In addressing whether the respondent's conduct with respect to the third and fifth offences amounted to approaching the complainant, his Honour found that the respondent consciously placed himself in proximity to the complainant while he was aware of the order that was in place at the particular time.
The second matter the sentencing court must take into account, pursuant to s 9(b) of the Sentencing Act, is "the offender's antecedents and character". In terms of antecedents, at the time of sentencing, the respondent was not someone who had committed and been dealt with by the court for a similar or relevant offence. He was a first offender. Nonetheless, the two offences committed in the same time period were matters that the court could properly take into account. In Woods v Wood [1991] TASSC 24, Green CJ considered the approach to be taken in sentencing for an offence that occurred prior to a subsequent sentencing order for subsequent conduct:
"An offence committed after the offence for which a defendant is being sentenced cannot be regarded as aggravating the seriousness of the original offence and cannot justify the imposition of a heavier sentence than the original offence would have merited. However that does not mean that a subsequent offence is wholly irrelevant. As King CJ observed in The Queen v McInerney (1986) 42 SASR 111 at pp 111 and 112:
'There is no rule of law which precludes a sentencing court from taking into account in an appropriate way and for appropriate purposes offences in respect of which there has been a conviction between the time of the offence for which sentence is being imposed and the time of sentence, whether those offences have been committed before or after the current offence.'
In particular there is no rule of law or policy consideration which precludes a sentencing court from regarding an offence committed after the offence for which sentence is being imposed as simply one aspect of the behaviour and attitude of the defendant to which it is well established a sentencing court may have regard right up to the day upon which sentence is imposed. As Cox J observed in The Queen v McInerney (supra) at p 123:
'If it is relevant - as it is - that the defendant has led an exemplary life in the meantime, it must also be relevant to show that he has continued in the interval to live in a lawless way. In other words, the sentencing judge may have regard, within the limits of practicability, to all of the defendant's behaviour, favourable or unfavourable, prior to sentence.'
One of the 'appropriate purposes' for which a defendant's subsequent behaviour - including the commission of a subsequent offence - may be taken into account is to assist the court in its determination of what kind of sentence will be most likely to modify the defendant's behaviour or deter him from re-offending."
In light of that guidance, the following is noted. In this case, the six offences under review were not the only breaches that the respondent had committed, and in the same time frame there were two others committed of a similar kind. The plea in mitigation before the Chief Magistrate drew attention to the effect of the sentencing order on 6 May 2013 and that, since then, there had been no further contact between the respondent and the complainant. Since he was sentenced on 6 May 2013 for the two other offences, there have been no further offences committed by the respondent, and the sentence imposed by the court pursuant to s 7(f), requiring his good behaviour, had been complied with and proved to be an effective deterrent.
Relevant to the matter of the respondent's antecedents and character is whether, as contended by the applicant, the fact that the respondent was a legal practitioner added to the seriousness of the matter. The Chief Magistrate declined to take into account that in a "legal sense" the respondent, as a legal practitioner "should have known better". It is noteworthy that it is not asserted on review that the Chief Magistrate erred in this regard. In my view, the respondent was not to be sentenced more heavily than others merely by virtue of the fact that he was a legal practitioner. His professional status was not an aggravating factor. However, a factor bearing on his culpability is that he was equipped with certain knowledge. It is his knowledge which was significant and that he understood the imperative of complying with the orders. Undoubtedly, he knew that the complainant's acquiescence did not excuse his breaching the orders. He would have been well aware, as the Chief Magistrate observed, that he could apply to the court to vary or revoke the orders.
Finally, under s 9, the sentencing court was required to take into account the impact that a conviction would have on the offender's economic or social well-being or employment prospects. A submission was not made to the Chief Magistrate as to the impact of a conviction in this regard. Equally, this is not a case where it was pointed out by the prosecution that there were public interest considerations weighing in favour of convictions being recorded.It may be noted that if his offending fell to be considered in the context of any disciplinary proceedings under the Legal Profession Act 2007, a possibility alluded to during submissions, a conviction under that Act is defined broadly to encompass a finding of guilt, "whether or not a conviction is recorded": s 11. Mr Richardson submitted that as a matter of reality prior convictions provided to the court for sentencing purposes always include orders made without conviction. It seems that there are no pressing public interest concerns in having an official record made of his offending.
In terms of the circumstances of the case generally, there were other matters to be considered. A mitigating factor is that the matter had attracted significant publicity and that the respondent had, to a degree, already felt the consequences of his offending behaviour.
Another matter is the principle of totality, which meant that the court was to have regard to the earlier sentence imposed on 6 May 2013, and consider the combined effect of that sentence with the sentence to be imposed. The court should ensure that the aggregate of the two sentences is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295, per Dawson and Gaudron JJ at 304, per McHugh J at 307-308. It was submitted by the respondent, before the Chief Magistrate, that if he had been dealt with for all eight offences at the same time, he may have received no greater penalty than that which he received on 6 May 2013. This submission alludes to the totality principle. An enquiry as to the adequacy of the recent sentence should take into account the earlier sentence imposed for offending that occurred in the same time frame. It is noteworthy that he had been subject to an order for 12 months, and after that order had expired, he was subject to a further order in the same terms for a period of another 12 months. Further, as noted, the second order had been complied with and there had been no further offending.

Conclusion

I return to the issue raised by this motion to review, whether the sentence was manifestly inadequate. If it was, the question is then, is this one of those rare and exceptional cases where a Crown appeal should succeed and this Court should intervene?
On one hand, the offending was not trivial or minor. I expect very few breaches of orders made under the Family Violence Act could be so characterised. The fact that there had been six breaches indicated there was some need for personal deterrence and the imposition of a sanction which contained some punitive consequence. The breaches were largely deliberately committed when the respondent had knowledge of the legal options he had available to him. On the other hand, and focussing on the marker of harm caused by the offending, relatively speaking, this case was much less serious than other examples of offences contrary to s 35(1) of the Family Violence Act. The offences did not involve any violence, threats of violence, aggression or antagonism. The complicity of the complainant, in relation to the breaches, has particular relevance in this context.

The weight to be given to each of the various factors was a matter for the court's discretion. A matter that the sentencing magistrate could properly attach some significance to, as he did, was that the respondent had been dealt with 14 months before for two offences in the same time period and arising from the same course of conduct, and he had not reoffended since. The sentence imposed on that earlier date had been effective and it had been shown, that for this respondent, at the time of sentencing, there was not a necessity for a sentence of specific deterrence. The sentence under review carried consequences for the respondent, resulting in a state of jeopardy for the respondent for a period of 12 months, and the risk of resentencing if he failed to comply with his undertaking.
The nature of the offending was not the kind of offending which, as a matter of necessity, demanded a heavier or more punitive response. I conclude that, having regard to the circumstances of this case, there was sufficient justification for the leniency extended to the respondent. It has not been shown that the sentencing order was manifestly wrong. Moreover, in my view, the sentence falls well short of the high threshold for intervention with respect to Crown appeals.
As a consequence of this conclusion, the argument for the respondent that I should not uphold the appeal having regard to the position taken by the prosecution at the sentencing hearing, does not need to be considered. This factor has a bearing on the exercise of an appeal court's residual discretion regarding Crown appeals which is only triggered if intervention is warranted. I do not have the benefit of submissions from the applicant on this matter, and the respondent's submissions did not advert to a relevant provision in the Sentencing Act, s 80. See Director of Public Prosecutions v Chatters, at [64]-[65]. In the circumstances, it is inappropriate and unnecessary for me to consider the exercise of a residual discretion to reject Crown appeals.
The motion to review should be dismissed as the sentence is not manifestly inadequate.