Parker v Keefe

[2017] TASSC 17

[2017] TASSC 17

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Parker v Keefe [2017] TASSC 17

PARTIES:  PARKER, John
  v
  KEEFE, Troy Andrew

FILE NO:  LCA 3846/2016
DELIVERED ON:  24 March 2017
DELIVERED AT:  Launceston
HEARING DATE:  22 March 2017
JUDGMENT OF:  Pearce J

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Common assault – Probation order for 12 months not manifestly inadequate.

Police Offences Act1935 (Tas), s 35.
Aust Dig Criminal Law [3521]

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentence and penalty – Common assault – Probation order for 12 months not manifestly inadequate.

Police Offences Act1935 (Tas), s 35.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  L Pennington
             Respondent:  F McCracken
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Grant Tucker

Judgment Number:  [2017] TASSC 17
Number of paragraphs:  19

Serial No 17/2017

File No LCA 3846/2016

JOHN PARKER v TROY ANDREW KEEFE

REASONS FOR JUDGMENT  PEARCE J

24 March 2017

1. This is a prosecution motion to review a sentencing order made by magistrate Ms S Cure. The applicant is a police officer. The respondent pleaded guilty to one count of common assault and one count of failing to comply with the direction of a police officer. On 9 December 2016 the sentencing magistrate convicted the respondent on each count. Her Honour imposed one sentence, a probation order for 12 months with special conditions.

2. The sole ground of appeal is that the sentence is manifestly inadequate.

The offences

1. At about 2am on 26 March 2016, the respondent, aged 40, was at a hotel in Launceston with his son Ashley Cashion, aged 21, and a third male. The complainant, Anthony Crothers, was at the hotel at the same time. The man with Mr Cashion had some interaction with a female, whose husband also happened to be there. This resulted in an acrimonious confrontation between the husband and that man. Under the mistaken impression that Mr Crothers was the person who was, or had been, in an altercation with the man he was with, Mr Cashion approached and punched Mr Crothers. After Mr Cashion was separated from Mr Crothers, the respondent somehow came to believe that Mr Crothers had assaulted his son. He stepped in and also assaulted Mr Crothers, ceasing only when he was restrained by other hotel patrons. The respondent was taken outside but continued to behave in an aggressive and confrontational manner, pushing and shoving and yelling abuse. When the police arrived and saw the way the respondent was behaving they directed him to leave. He failed to comply with the direction. Instead, he attempted to break away and return to the area of conflict. He was arrested. Before committing the assault the respondent had consumed a significant amount of alcohol over "quite some time" and was intoxicated.   

2. From the transcript of the sentencing hearing it is not easy to identify, with precision, the act or acts which constitute the assault committed by the respondent. Some confusion arose about the respective roles of Mr Cashion and the respondent. By his plea of guilty to the complaint as particularised, the respondent admitted punching the complainant to the head. The magistrate was told that Mr Cashion was first to punch Mr Crothers – he "punched the complainant to the face … and then punched him to the face two more times, but that's Mr Cashion not Mr Keefe. Mr Keefe has only punched once". The prosecutor eventually confirmed that Mr Crothers was standing up when he was punched by the respondent, although the punch knocked Mr Crothers to the ground. The magistrate was told that Mr Crothers was then punched while he was on the ground by a number of persons, including the respondent. However the prosecution did not assert that the respondent was to be sentenced for any conduct beyond the single punch. The applicant and the respondent agree that the review is to be determined on that basis. The respondent later told the author of a pre-sentence report that Mr Crothers "went to throw a punch at my boy so I knocked him out". He agreed he punched Mr Crothers with a closed fist to the face and stated that "no-one touches my kids".

3. As a result of the assault Mr Crothers suffered a sore and swollen face and head on the left side. It was not contended that he was rendered unconscious. No information was given to the magistrate that the complainant suffered any lasting physical injury, and so it must be assumed that he did not. Nor was it suggested that he suffered any other financial or psychological impact.

The respondent's personal circumstances

1. The respondent has the sole care of his daughter, who was 12 at the time of the offence. After his arrest he spent three days in custody. When released on 11 April 2016 he was made subject to bail conditions, including conditions which precluded him from entering the central business district of Launceston other than for specified purposes, precluded entry into licensed premises and imposed a curfew. Those conditions remained in place for more than six months and were principally for protection of the public. It was not submitted on behalf of the respondent that the conditions imposed any hardship or had any punitive effect. Little information was provided to the sentencing court about the respondent's financial circumstances, although it was implied that he was not working, received social security benefits and was not a man of considerable means.

2. The respondent has a poor record for offences of violence. At the time of sentence he had been sentenced on five occasions for common assault. In 1995, when he was about 20, he was given 140 hours of community service. In 1996 he was fined for three counts committed in 1995, just after the earlier assault. In 2001 he was again given 140 hours of community service for two counts of assault and two counts of trespass. In 2002 he was sentenced to imprisonment for one month, wholly suspended for three years. There was then a gap in offending until 2009 when he was given a substantial fine for the same offence. He told the author of the pre-sentence report that on each occasion he was affected by alcohol.     

3. The respondent was assessed as unsuitable for community service because of a shoulder injury.

Common assault and the sentence imposed

1. The sentence under review is for common assault and for failure to comply with a police direction to leave a place. The latter is an offence contrary to the Police Offences Act 1935, s 15B. The maximum penalty is a fine of two penalty units. At the relevant time a penalty unit was $154, so the maximum fine was $308. It is not an offence punishable by imprisonment. That aspect of the respondent's offending was unlikely to have made much difference to the sentence the magistrate imposed, and is not the focus of this review.

2. By the Police Offences Act, s 35, a person who unlawfully assaults another person is guilty of an offence and is liable on summary conviction to a penalty not exceeding 20 penalty units, $3,080, or to imprisonment for a term not exceeding 12 months. Section 7 of the Sentencing Act 1997 is headed "Sentencing orders", and gives to a court a variety of sentencing options listed, at least from pars (a) to (h) inclusive, in descending order of seriousness:

   "7 A court that finds a person guilty of an offence may, in accordance with this Act and subject to any enactment relating specifically to the offence —

   (a)   record a conviction and order that the offender serve a term of imprisonment; or

   (ab) if the court is constituted by a magistrate, record a conviction and make a drug treatment order under Part 3A in respect of the offender; or

   (b)   record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended; or

   (c)   record a conviction and, if the offender has attained the age of 18 years and the offence is punishable by imprisonment, make a community service order in respect of the offender; or

   (d)   with or without recording a conviction, make a probation order in respect of the offender if the offender has attained the age of 18 years; or

   (e)   record a conviction and order the offender to pay a fine; or

   (ea) in the case of a family violence offence, with or without recording a conviction, make a rehabilitation program order; or

   (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

   (g)   record a conviction and order the discharge of the offender; or

   (h)   without recording a conviction, order the dismissal of the charge for the offence; or

   (i)    impose any other sentence or make any order, or any combination of orders, that the court is authorised to impose or make by this Act or any other enactment."

3. Sentencing orders combining more than one of the sentencing options may be made where authorised under s 8.

4. As I explained in Lyons v Bakes [2015] TASSC 37, conduct which may constitute a common assault ranges from the most trivial but unlawful application of force to the application of force so serious that, subject to prosecutorial discretion, it may have justifiably been charged as a crime under the Code. For that reason it is impossible to identify a sentencing range for the offence. The assault committed by the respondent was a moderately serious example. The respondent punched the complainant to the head with sufficient force to knock him to the ground. The complainant was a stranger who had done nothing to warrant or provoke such an attack. He was struck by the respondent after having been rendered more vulnerable to assault by being struck at least once by Mr Cashion. It is well known to courts and the public that a single blow, like the one inflicted by the respondent, carries the risk of serious injury and even death. The apparent seriousness of the respondent's conduct was recognised by the learned magistrate early in the sentencing process. At the conclusion of the plea in mitigation the following exchange occurred:

   "HER HONOUR: Well what should I do with them? It's a pretty ugly incident.

   COUNSEL: It is. At most in relation to Mr Keefe he is certainly prepared to comply with a suspended sentence. Either that or both parties are - sorry Mr Cashion is in a position to undertake community service hours. Mr Keefe has a pre-existing injury for which he is waiting for – he is waiting for surgery so it's unclear whether or not he would be able to do community service hours but he's happy to be assessed.

   HER HONOUR: I might have them assessed though for probation and community service hours and I don't think probation on its own would be enough, there ought to be a term suspended. They're both ugly incidents, they're both pretty much the same, the only difference is their age and antecedents. I think I'll ask for a standard pre-sentence report on both of them. Question mark whether there are any issues with probation, it sounds to me like it's heavy drinking, binge drinking at quite a high level which creates a risk to the community. I'll have them assessed for probation and community service. And they are likely to both receive a term suspended of different durations because of their age and history. But I'll hear further submissions on that once we have a pre-sentence report."

5. The respondent and his son next appeared before the magistrate about a month later. There was some adjustment to the conditions of the respondent's bail but the pre-sentence reports had not been received. After another month the reports had been submitted and the magistrate proceeded to sentence. It seems that in the interim her Honour's preliminary view about the appropriate sentence to be imposed altered. The pre-sentence report about the respondent, at least on my reading of it, could not have explained her Honour's apparent change of heart. The author of the report expressed doubt about the genuineness of the respondent's contention that he did not have a problem with management of his anger, and had the ability to remove himself from situations of conflict without resort to violence. The respondent continued to maintain his mistaken belief that his violent intervention was necessary to protect his son and said that he does not "like dickheads getting up in my face, business or personal space".  Somewhat surprisingly, given his record for alcohol related violence, the apparent lack of insight into the seriousness of his conduct and the complete absence of remorse, the respondent was assessed as requiring only a medium level of intervention by Community Corrections, and a probation order was not recommended.

6. When it came to imposing sentence, the magistrate decided to convict the respondent and make a probation order. It was proper for her Honour to do so notwithstanding the recommendation of the author of the report to the contrary. Her Honour added special conditions directed to addressing the respondent's behaviour when affected by alcohol. She made an identical sentencing order for Mr Cashion. She said nothing more about any other form of sentencing order, whether a fine, community service or a term of imprisonment, suspended or otherwise, except that, for the respondent, she said, "Mr Keefe, I am going to direct that you do some hours on top of it. It's not going to be particularly onerous but I am going to require you to do some unpaid community service because that gets – there was no issue with that, was there?" When her Honour was reminded that the respondent had been assessed as unfit for community service because of his shoulder injury she said, "Forget that – you're off the hook there too." She proceeded to make the probation order and then said, "All I want to say about this is it would be advisable not to come back to court for a matter of this nature. You can think about that. You would not want to get in a pub fight again of this seriousness otherwise it might be a different outcome."  

7. The learned sentencing magistrate was not bound to impose a sentence in accordance with her initial sentencing indication. Magistrates sometimes make remarks to a person awaiting sentence to increase the impact of the sentencing process, to create insight into the possible consequences of criminal conduct and to prompt some modification of behaviour. Her Honour properly took the opportunity, while the pre-sentence report was prepared, to reflect on the appropriate final order. Her Honour's earlier remarks were expressed to be subject to the contents of the report in any event. No specific error is alleged by the applicant, and the task for this Court is to assess the sentencing order as it was finally made. It is the sentencing order made by her Honour which is the subject of an appeal on this ground, not the reasons for it or the process or views or intermediate indications given before the making of the order.

8. There are many factors which justify the imposition of a harsher sentence. Assaults of this nature generally require a sentence giving proper regard to the need for specific and general deterrence, denunciation, punishment, protection of the community and vindication of the victim. The respondent is not a young or immature offender. He displays little insight or remorse. He has a poor record for similar offending. Commission of the offence suggested that he had not been deterred by previous sentences, including suspended sentences, and had not mended his ways. The magistrate was entitled to conclude, that in light of the respondent's record and his statements to the author of the pre-sentence report, that the prospect of reform should not be subordinated to the other sentencing considerations I referred to. The respondent's intoxication was not mitigating. To the contrary it suggested the need to protect the public from his propensity to resort to violence when affected by alcohol. The assault was committed against a stranger in a public place. Sentencing courts have repeatedly condemned alcohol fuelled violence in and outside licensed establishments. The magistrate's reference to a "pub fight" is not to be taken as a reflection on the complainant, who was the subject of a violent and unprovoked attack by two men, each of whom were motivated by mistakes contributed to by intoxication. If her Honour thought that a probation order was necessary, it was open to her to combine an order with another sentencing order such as imprisonment, actual or suspended, community service or a fine: Sentencing Act, s 8. In my view, at least a suspended sentence was well within the range of sentences open to her Honour. Through his counsel the respondent indicated to the magistrate that imposition of a suspended sentence of imprisonment would not have been unexpected. Taking into account all matters relevant to sentence, it was also reasonably open to her Honour to impose a sentence of imprisonment which the respondent was required to immediately serve, either in full or in part.

9. However, the issue for me is not whether this Court would have exercised the sentencing discretion in a different way, but whether the sentence imposed by the magistrate was so lenient that it fell outside the range of sentences reasonably open to her, and is indicative of error or departure from principle. I have concluded that such error is not established. Moreover, the sentence does not disclose the type of clear error which justifies appellate intervention in prosecution appeals: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465 [1]; DPP v Swan [2016] TASCCA 9; Cannell v Hughes [2014] TASSC 41; Lyons v Bakes (above). Magistrates have a broad sentencing discretion. Although not much was said about the financial circumstances of the respondent, the little information given to the magistrate suggested that he could not pay a fine properly reflecting the seriousness of his offence. The imposition of a small fine carried the risk of appearing derisory. The respondent is not fit for community service. The only other option for her Honour was an actual or suspended term of imprisonment. I am not persuaded that, in all the circumstances, a sentence falling short of actual or suspended imprisonment is unreasonable or plainly unjust. The victim of the assault was injured, but not seriously. Some mitigation arose from the utilitarian value of the respondent's plea of guilty, even though it was not early and was not indicative of much remorse. He spent three days in custody following his arrest. There had been relatively long gaps between his most recent offences. The latest was in 2009 and, before that, in 2002. Her Honour was entitled to take the view that it was appropriate to extend leniency and to fashion an order directed at the remaining possibility of the respondent's reform by addressing the factors which apparently led to the commission of this offence. The conditions of the probation order imposed by the Sentencing Act create obligations with which the respondent must comply. The conditions imposed by s 37(1) include that he not commit an offence punishable by imprisonment during the period the order is in force. He must report to, submit to supervision by and comply with the directions of a probation officer. He must notify changes of address and may not leave Tasmania without permission. According to the special conditions ordered by the magistrate under s 37(2), the respondent can be directed to attend educational and other programs, undergo assessment and treatment for alcohol dependency, submit to testing for alcohol use, and submit to medical, psychological or psychiatric assessment and treatment. All of the conditions imposed by s 37 are aimed at rehabilitation but also carry some punitive effect. Depending on the attitude taken by the probation service, the obligations imposed on the respondent by the order could be onerous. I think they should be. It is clear to me that at least some of the special conditions should be actively engaged. If the respondent fails to comply with any condition of the probation order, including by re-offending, he may be re-sentenced: Sentencing Act, s 42. Whether or not the respondent is subject to a suspended sentence of imprisonment, commission of an offence of any seriousness during the period of the probation order carries the obvious risk of actual imprisonment.

1. The ground of appeal is not made out.

Parity and prosecution appeals

1. The creation of unjustified disparity between sentences imposed on persons guilty of the same or a similar offence may be a ground for exercising a residual discretion to dismiss a prosecution appeal, even when an appeal court concludes that a sentence under review is erroneously inadequate: Green v The Queen; Quinn v The Queen (above). Counsel for the applicant made submissions about whether the factors personal to the respondent and his son, Mr Cashion, and the circumstances of the offences they committed, justified different sentences. In light of my conclusion that the sentence imposed on the respondent is not manifestly inadequate, it is not necessary that I consider the question of disparity in this case.

Result and conclusion

1. I am not satisfied that the sentence imposed on the respondent is manifestly inadequate. The motion to review is dismissed.