Parry v Police - [2020] SASC 133

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PARRY v POLICE
[2020] SASC 133
Judgment of The Honourable Justice Bampton
16 July 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
Appeal against sentence imposed by Magistrate – where appellant pleaded guilty to assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 – where the appellant was sentenced to 16 months imprisonment reduced by 30 per cent to 11 months and 10 days – where six months of the term of imprisonment was to be served in custody and the remainder suspended upon the appellant entering into a bond to be of good behaviour for two years – whether the sentence was manifestly excessive – whether the Magistrate erred in failing to suspend the whole of the sentence – whether the appellant was sentenced on an incorrect factual basis.
Held: Appeal dismissed – the sentencing process did not miscarry – the sentence was not manifestly excessive – the decision to partially suspend the sentence was within the Magistrate’s discretion.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 23, s 18; Magistrates Court Rules 1992 (SA) r 18; Correctional Services Act 1984 (SA) s 37A, referred to.
The Queen v Perre (1986) 41 SASR 105; Kentwell v The Queen (2014) 252 CLR 601, applied.

PARRY v POLICE
[2020] SASC 133
Magistrates Appeal: Criminal

BAMPTON J: Owen Parry pleaded guilty on 15 August 2019 to assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).[1] He was sentenced, on 10 March 2020, to 16 months imprisonment reduced by 30 per cent on account of his guilty plea to 11 months and 10 days. The sentencing Magistrate ordered that Mr Parry serve six months of the imprisonment in custody and suspended the remainder of the sentence upon him entering into a bond to be of good behaviour for two years from the date of his release. A condition of the bond is that Mr Parry will be under the supervision of a community corrections officer for one year.
[1] The maximum penalty for an offence contrary to s 20(4)(a) of the CLCA is imprisonment for three years.
Mr Parry now appeals the sentence on ground 1, that the sentence is manifestly excessive; ground 2, that the Magistrate erred in failing to suspend the whole of the sentence; and ground 3, that he was sentenced on the incorrect factual basis.
The sentencing Magistrate also confirmed a police issued intervention order immediately following imposition of the sentence pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the Act”). The intervention order is not appealed. However, the application for the intervention order and the evidence filed in support of the application are relevant to the determination of the appeal.
For the reasons that follow, I dismiss the appeal.
Background
Mr Parry was charged with the basic offence of assault causing harm to Ms V following Ms V’s complaint to police on 8 March 2018.
Ms V reported that she had known Mr Parry for about 16 months, that they had had an intimate relationship until 29 November 2017, and that they did not live together nor did they have children together. Ms V said that on 7 March 2018 she attended Mr Parry’s home. They drank wine and engaged in discussion about Mr Parry’s workplace difficulties. She alleged that Mr Parry became agitated and during a physical altercation assaulted her.
Mr Parry was arrested, refused police bail, and was served with an interim intervention order for the protection of Ms V issued by police on 8 March 2018.
Mr Parry spent one night in custody and was released on a supervised bail agreement on 9 March 2018.
The application for the intervention order
Pursuant to s 18(5) of the Act, upon the interim intervention order issued by police being served on him, the order was taken to have been an application to the Court for an intervention order and Mr Parry was taken to have been issued a summons to appear before the Court for the purposes of the hearing and determination of the application under s 23 of the Act (“the application for the intervention order”). The application for the intervention order was allocated court file number AMC-18-2904. By reference to the Court records, the application for the intervention order file and the assault cause harm charged on file number AMC‑18-2927 (“the matters”) were listed for hearing at the same time from the first return date of 15 March 2018 to 10 March 2020 when the sentence was imposed and the intervention order confirmed.
Significantly, r 18.01(d) of the Magistrates Court Rules 1992 (SA) (“the MCR”) provides that, where a police officer issues an interim intervention order, he or she must:
d.arrange for relevant witnesses to be available for oral examination by the court to provide evidence to establish the factual matters that were the grounds for issuing the order or provide affidavit evidence of those factual matters.
Rule 18.03 of the MCR provides:
18.03At the first return of an interim intervention order issued by a police officer:
(a) the Court will hear evidence about the factual matters that were the grounds for granting the order and must record the evidence and where possible keep an audio visual record so that it can be available to the Court in later hearings;
(b) subject to any order of the Court to the contrary, if the defendant contests any factual matter, or the issuing of a final order, any evidence given at the first return will be treated as evidence in chief, and further evidence in chief of the witness(es), cross examination and other evidence on behalf of the applicant or the defendant will be adjourned to a later date to be fixed by the Court.
In accordance with r 18.01(d) of the MCR, Police obtained an affidavit from Ms V affirmed 8 March 2018 (“the affidavit”) wherein Ms V details what she alleges occurred at Mr Parry’s home on 7 March 2018. Seven photographs of Ms V’s alleged injuries were also taken by police on 8 March 2018 (“the photographs”).
The hearings of the matters
At a hearing before the Magistrates Court on 10 May 2018, Mr Parry was referred to the six-month Abuse Prevention Program (“the Program”) for assessment and review. Mr Parry was assessed as suitable for and commenced the Program on 23 May 2018. The matters were adjourned on several occasions to allow time for Mr Parry to complete the Program. Mr Parry completed the Program in May 2019.
The matters were adjourned on 4 June 2019 and 16 July 2019 for negotiations to continue. On 16 July 2019, Mr Parry was represented by Ms Lindblom and App J Bretag appeared for the prosecution.
Mr Parry pleaded guilty to the assault charge at the next hearing on 15 August 2019 and the matters were adjourned to 19 September 2019.
On 19 September 2019, the Court was informed that Mr Wickens had only recently taken over the conduct of the matter for Mr Parry and that he needed to obtain final instructions. It is noted on the Court record for both matters that the prosecution will forward the apprehension report and all material to Mr Wickens.
At the next hearing on 24 October 2019, Mr Wickens foreshadowed an application to set aside the guilty plea.
On 12 December 2019, Mr Wickens was ordered to file an affidavit in support of the application to withdraw the plea, including any authorities, one week prior to the next hearing on 4 February 2020.
On 4 February 2020, Mr Wickens informed the Magistrate that his instructions had changed and there would not be an application to withdraw the plea. The matters were then adjourned to 20 February 2020 for sentencing submissions and to allow time for reference material and psychological/psychiatric reports to be compiled. The prosecution tendered the apprehension report, Mr Parry’s antecedent history, and the victim impact statements.
The sentencing submissions
It would appear that the affidavit and the photographs were on the application for the intervention order file AMC-18-2904 at the time sentencing submissions were heard on 20 February 2020. The Magistrate is heard on the audio recording to say at the outset of the hearing on 20 February 2020, “Am I proceeding on the affidavit prepared by the complainant?”. Both the police prosecutor and Mr Wickens replied, “Yes”. The Magistrate also confirmed that she had the photographs and the victim impact statements dated 15 May 2018 and 26 June 2018.
Submissions were made in mitigation by Mr Wickens. It was submitted that Mr Parry had the day prior to the offending suffered an episode at work related to ongoing work-related stressors which exacerbated his symptoms of post-traumatic stress disorder. Ms V, who had been in a relationship with Mr Parry some three months earlier, found out about Mr Parry’s circumstances through third parties and contacted him to arrange a visit to support him. Ms V then visited Mr Parry, bringing a two-litre cask of wine from which she drank “rather a lot”. Mr Wickens submitted that the reason that Mr Parry and Ms V were no longer in a relationship was because they always ended up arguing. When it was submitted the previous arguments were not violent, the Magistrate stopped Mr Wickens and said that that submission was inconsistent with Ms V’s account and that Mr Wickens needed to acknowledge that. The Magistrate said if Mr Wickens did pursue the submission, she would give the prosecution the opportunity to call evidence regarding the issue and suggested submissions focus on the incident the subject of the charge.
Mr Wickens proceeded to focus his submissions on the altercation that gave rise to the assault. He submitted that during the argument that Ms V “got in [Mr Parry’s] face” and was yelling at him. It was after this that Mr Parry struck out and hit her with a closed fist punch to the face. Ms V went down backwards onto a couch and popped up again straightaway. It was submitted this was a “circuit breaker” after which Mr Parry went to the fridge and got a frozen piece of chicken to apply to Ms V’s swelling face. Ms V fought him off, then left. The Magistrate was informed that Mr Parry phoned police who attended that day. Mr Parry spoke to police and provided Ms V’s details. The police returned to Mr Parry’s address the next day and asked if he wanted to press charges against Ms V. He said he did not want Ms V charged. Ms V attended the police station on 8 March 2018, whereupon the police obtained the affidavit, took photographs of her injuries, and charged Mr Parry.
It was submitted that Mr Parry accepted “no matter how this thing kicked off, he finished it off by punching [Ms V] in the face and that’s unacceptable”, particularly given he is a big, strong man.
Mr Wickens referred the Magistrate to a letter dated 12 July 2019 written by Ms V wherein Ms V speaks of her concerns about the way things unfolded on the evening of 7 March 2018 and her attempts to have the charge withdrawn. Mr Wickens submitted that Ms V was very generous in her concession that her behaviour had contributed to the situation deteriorating and her recognition of Mr Parry’s fragile psychological state. Mr Wickens highlighted Ms V’s comment that “Mr Parry is a wonderful, generous caring dedicated father of three lovely children aged 7-10 years” and her concern that if the matter continued it would not only destroy Mr Parry’s future, but would have devastating long-term effects on his children’s lives. The Magistrate queried how Ms V’s comments in the letter sat with what Ms V had expressed in the victim impact statements. Mr Wickens said that he was not asking that the victim impact statements be disregarded. Her Honour referred to Ms V having signed the affidavit setting out the allegations and that was why she asked the question regarding the affidavit at the outset of the hearing.
A letter from Mr Parry’s general practitioner and treating psychologist were provided to the Magistrate detailing his symptoms and mental health issues which in the opinion of the psychologist were consistent with depression, anxiety and post-traumatic stress disorder. The report of a psychiatrist prepared for Mr Parry’s WorkCover claim was also tendered. This report details that Mr Parry suffers a major depressive disorder with panic disorder symptomology. A letter from Mr Parry’s mother addressed to the Magistrate was also handed up which details Mr Parry’s difficult and traumatic life, including abandonment by his father and the suicide of his brother. Mr Parry’s participation and completion of the Program was also brought to the Magistrate’s attention. Mr Wickens acknowledged that a sentence of imprisonment was appropriate but that there were good reasons for it to be wholly suspended.
The prosecutor, Ms Willis, then proceeded to summarise the matters contained in the affidavit and victim impact statements and submitted that an immediate custodial sentence was required in the circumstances of the offending. Ms Willis informed the Magistrate that Mr Parry had a prior conviction for recklessly cause harm entered on 17 April 2015. He was sentenced for this prior offence to five months imprisonment which was suspended upon him entering into a two-year bond to be of good behaviour.
Following sentencing submissions, the Magistrate listed the matter for sentence on 10 March 2020 and remanded Mr Parry in custody.
The sentence
In her sentencing remarks (“the remarks”), the Magistrate said:
Mr Parry, you’ve pleaded guilty to the charge of assault causing harm. You acknowledge that the plea is based upon the allegation set out in the affidavit of [Ms V] dated 8 March 2018. I refer to the principal features of that statement for the facts.
(Emphasis added)
The Magistrate then proceeded to summarise the facts as follows:
On 7 March 2018 you called her to tell her about the trouble you had at your work the previous day and you asked her to visit you. She agreed and you discussed the issues while drinking wine together. One thing which she said led you to overreact and become aggressive. First you grabbed her arms and gripped them tightly. She managed to wiggle out of your grip. She then went to the bathroom and when she returned your aggression continued. You grabbed her and pushed her to the floor on her left side causing pain. When she stressed to you how you had really hurt her, you helped her up. When she repeated how you had hurt her, you told her to be quiet and became increasingly agitated. You pushed her head into the lounge forcibly causing her to struggle to breathe. She became more and more terrified of you. She squeezed your genitals to get you to release her and when you did release her, she remained frightened of you and when trying to get away from you, she punched your cheek. You then responded with a forceful punch to her left eye socket, which cause her to fall over. The pain was immediate. As soon as you saw her eye, you knew you had harmed her. You said, ‘oh god, [Ms V], looked [sic] what you made me do’. You then apologised and you retrieved some frozen meat from the fridge and you applied pressure to the damaged eye socket, which made it even more painful. You told her that she had got what she wanted and could now use it to destroy your life. You even called the police while she was there but she said not to because she knew you would be in trouble. You used force keep the frozen meat against her sore eye socket, causing her to fall and hurt her shoulder and tailbone. Meanwhile, you insisted that she be quiet repeatedly.
When you suddenly released her, you asked her to wait until the police arrived but she left to get away from you. She said her priority was to get away from you. She drove herself home and went to the police station the next day. Meanwhile you gave a version of events to police which resulted in her being investigated for committing an assault upon you. Ultimately the police obtained her statement leading to these proceedings. Photographs were taken of her injured eye socket which I’ve seen and which depict severe swelling and bruising as well as bruises and swelling to other parts of her body which appear to support her version of events.
The Magistrate summarised Mr Parry’s submissions as follows:
You instruct that on this particular occasion you were in a fragile emotional state having suffered a type of breakdown at work the previous day. It may have been a panic attack. You say that she was ‘in your face’ and once you had punched her, it acted as a circuit breaker bringing the episode to an end. Your version suggests that you were reluctant to engage with her that evening which is in conflict with [Ms V’s] affidavit.
The Magistrate imposed the sentence of 11 months and 10 days imprisonment reduced from a starting point of 16 months. Her Honour said she found no good reason to suspend the sentence for the full term but, having regard to some of Mr Parry’s personal factors, his mental health challenges, and the fact that he had put effort into participating in the Program, she was prepared to partially suspend the sentence after six months had been served. Thereafter, it was ordered that Mr Parry enter into a bond to be of good behaviour for two years from the date of his release. A condition of the bond is that for the first year of the bond Mr Parry be supervised and that he “obey the instructions of [his] supervising officer with respect to continuing sessions designed to rehabilitate [his] mental health issues which are relevant to [his] offending behaviour”. The Magistrate ordered that the sentence be backdated to 20 February 2020 when Mr Parry was taken into custody. Her Honour also confirmed the intervention order and deemed it served on Mr Parry.
I was informed at the hearing of the appeal that Mr Parry was released on home detention on 16 April 2020 pursuant to s 37A of the Correctional Services Act 1984 (SA), having served just under two months in custody.
Ground 3
It is convenient at this juncture to consider the ground of appeal that Mr Parry was sentenced on an incorrect factual basis.
Was an agreement reached regarding the factual basis for sentencing?
Mr Wickens deposed in an affidavit sworn 25 May 2020 that he first met with Mr Parry on 23 October 2019 and received his instructions to obtain his file from his previous solicitors, Georgiadis Lawyers. Upon receipt of the file, Mr Wickens emailed Ms Lindblom, who had had conduct of the matter, seeking any file notes, instructions and communication with the prosecution regarding negotiations to settle the matter. No response was received. Mr Wickens subsequently found out that Ms Lindblom had left Georgiadis Lawyers. Mr Wickens deposes that prior to 20 February 2020 he managed to locate Ms Lindblom at SAPOL Adelaide Prosecutions Unit. Ms Lindblom informed Mr Wickens that there was no settled factual basis between defence and prosecution.
The respondent filed an affidavit of Jeremy Bretag, the police prosecutor who had carriage of the assault matter, sworn 28 May 2020. Mr Bretag exhibits to his affidavit copies of relevant pages of his diary recording his correspondence with Ms Lindblom as well as his email correspondence with Ms Lindblom.

The email correspondence includes an email Mr Bretag forwarded to Ms Lindblom on 14 August 2019 proposing a factual basis for sentencing (“the 10 dot point factual basis”) as follows:
•The victim attended at your client’s house.
•Both had consumed an unknown amount of alcohol when they became involved in a verbal argument. This turned physical and they both began to wrestle.
•They were yelling at each other and your client placed his hand over the victim’s mouth in an attempt to quieten her. This occurred several times during their struggle.
•They continued to argue and wrestle when the victim punched you client in the face.
•Your client responded by punching the victim in the face with a force which was not reasonably proportionate in the circumstances, given his undoubted weight and strength advantage.
•Your client showed immediate and genuine remorse, for both what he’d done and the victim’s welfare. He then attempted to assist the victim by trying to have her put cold meat on her injured face.
•Your client called the police, this was against the advice of the victim; who told him he would get in trouble if he did.
•The victim left prior to the arrival of police.
•Your client was not home when police arrived.
•Your client was located the next day and made admissions during the record of interview.
Mr Bretag also stated in the email that given Mr Parry’s remorse and willingness to take responsibility the prosecution did not see any reason to oppose a suspended sentence bond.
In his further affidavit sworn 26 May 2020, Mr Wickens deposes to having received a copy of an email from Mr Parry which Mr Parry apparently received from Ms Lindblom on 15 August 2019. The copy of the email exhibited to Mr Wickens’ further affidavit records a sent time of 1.11 pm and refers to the 10 dot point factual basis proposed by Mr Bretag, asking for Mr Parry’s thoughts, specifically his instructions regarding covering Ms V’s mouth, and that Ms Lindblom would seek to add to the facts that both parties were intoxicated.
It is recorded on the Court record that Mr Parry pleaded guilty to the assault charge at 11.30 am on 15 August 2019. The Court record also contains the following notation:
FOR INSTRUCTIONS—
Defence intimate they may be in a position to finalise on the next occasion
This suggests that the guilty plea was entered before the email dated 15 August 2019 detailing the “… proposed facts of resolution provided by the prosecution…” and seeking Mr Parry’s instructions was sent at 1.11 pm.
Mr Wickens also deposes in his affidavit sworn 25 May 2020 that, prior to submissions on 20 February 2020, he asked Ms Willis whether there were any agreed facts that had been settled. Ms Willis said that she was not aware of any agreement on a factual basis prior to assuming conduct of the matter.
It is clear that Mr Wickens and Ms Willis were not aware as at the date of sentencing submissions of the correspondence regarding a proposed factual basis for sentence that had passed between police prosecutions and Mr Parry’s former solicitor, Ms Lindblom, and that the prosecution did not “see any reason” to oppose a suspended sentence bond.
There is no evidence before me establishing that the proposed 10 dot point factual basis was expressly accepted.
Notwithstanding the foregoing, on appeal, counsel for the respondent conceded that an agreement was struck as to the 10 dot point factual basis and that it was on foot at the time of sentencing. I will determine the appeal on the basis of that concession.
Mr Parry’s submissions
Mr Parry submitted that, as the 10 dot point factual basis was never actually put to the Magistrate, a miscarriage in the sentencing process has occurred. It was submitted that the 10 dot point factual basis was intended to replace, not supplement, the affidavit as the sole factual basis for sentencing. Mr Parry contended that, whilst it is not expressly stated in the email correspondence between Mr Bretag and Ms Lindblom that the 10 dot point factual basis was intended to replace the affidavit, it can be readily inferred by comparing the content of the two factual bases. Specifically, Mr Parry points to the first three dot points of the factual basis which he argued suggest that a mutual escalation of conflict took place which was followed by both parties wrestling each other. Mr Parry submitted that such a sequence conflicts with the affidavit which suggests Mr Parry instigated the wrestling and it was a one-sided struggle.
Mr Parry agreed that the respondent was obliged to put the victim impact statements before the Court wherein Ms V details her pain and suffering.
The respondent’s submissions
The respondent conceded that the 10 dot point factual basis should have been put before the Magistrate. However, it was argued that there was no suggestion that it was intended to replace the affidavit. The respondent submitted that the 10 dot point factual basis is not so largely inconsistent with the affidavit as to suggest that it was intended to be the sole factual basis for sentencing. It was submitted that the affidavit discloses a more detailed account of the facts contained within the 10 dot point factual basis, and includes specific details regarding how the victim immediately felt after being struck by Mr Parry. The 10 dot point factual basis, it was submitted, does not include the same level of detail or clarity about the offending. Furthermore, the respondent noted that the affidavit provides relevant context as to the relationship between the parties and goes beyond what is provided in the victim impact statements.
The respondent also pointed out that the obvious and multiple injuries to Ms V’s face and body depicted in the photographs support the submission that the punch occurred in the context of an ongoing physical altercation. The photographs depict, as the Magistrate described, severe swelling and bruising to Ms V’s face as well as bruising and swelling to other parts of her body. Finally, it was submitted that the email correspondence does not include any agreement that the photographs would not form part of the sentencing process.
Consideration of ground 3
There is no express statement or suggestion in the email correspondence between Mr Bretag and Ms Lindblom that the Magistrate should not have regard to the affidavit or that the 10 dot point factual basis was the sole factual basis for sentencing. Having regard to the similarity of the matters deposed to in the affidavit and the 10 dot point factual basis and absent any evidence of an intention to withdraw the affidavit in substitution for the 10 dot point factual basis, it is not established that the 10 dot point factual basis was intended to replace the affidavit. This is supported by the fact that the intervention order application also fell to be considered by the Magistrate. The operation of r 18.01(d) of the MCR obliged the police officer who issued the interim intervention order on 9 March 2018 to either arrange for Ms V to be available for oral examination by the Court to provide evidence to establish the factual matters that were the grounds for issuing the order or provide affidavit evidence of those factual matters. The later course was adopted and the affidavit was provided to the Court.
If Mr Parry took issue with the content deposed to in the affidavit he was entitled to cross‑examine Ms V pursuant to r 18.03 of the MCR. Even if the matters were not heard concurrently, Mr Parry still had the right to cross‑examine Ms V as to the content of the affidavit pertaining to the assault cause harm charge. He did not do so.
In the end result, there was nothing about the course of the sentencing process which, on my assessment, resulted in a miscarriage of justice. As King CJ observed in The Queen v Perre (“Perre”):[2]
The sentencing judge is required ordinarily to sentence upon the basis of the sworn depositions or statements. If the defendant wishes to dispute any of the primary facts deposed to therein, he must do so by sworn evidence either at the preliminary hearing or before the sentencing judge. Where a defendant, while not disputing the primary facts deposed to, wishes the sentencing judge to sentence about the basis of a certain interpretation of those facts or upon a version of the defendant’s role in the matter which may be in conflict with inferences from the primary facts which are open to the judge, he must make a decision as to the course which he wishes to follow. The defendant may give evidence or call evidence in support of his interpretation or version, or he may put it before the judge by way of submissions by his counsel asking the judge to act upon that interpretation or version. The prosecution may or may not make submissions accepting or opposing the interpretation or version put forward. The decision as to the basis upon which sentence is to be imposed is not, however, a matter for the prosecution but for the judge.
[2] (1986) 41 SASR 105 at 105.
Mr Parry wanted, while not disputing the primary facts, the Magistrate to sentence him on the basis of a certain interpretation of the primary facts or a version of his role in the matter which conflicted with certain inferences open to the Magistrate from the primary facts. To that end, Mr Parry decided to put forward his interpretation or version not by giving evidence, but by way of submissions by his counsel. The Magistrate referred to certain submissions during the hearing and in her remarks and stated that they conflict with the affidavit.
Ultimately, the factual basis upon which the sentence was imposed was a matter for the Magistrate to determine. As King CJ stated in Perre:[3]
It is for the judge to decide what inferences he will draw from the primary facts and to decide the basis upon which he will impose sentence. Even in cases in which the prosecution joins with the defence in asking for sentence to be imposed upon an agreed basis which differs from the depositions or from inferences which the judge may be disposed to draw from the depositions, it is for the judge to decide whether he is prepared to act upon that agreed basis.
(Emphasis added)
[3] The Queen v Perre (1986) 41 SASR 105 at 106.
As such, even if the 10 dot point factual basis were to have been before the Magistrate, it was for her Honour to decide whether she was prepared to act upon it.
Nonetheless, Mr Parry submitted on appeal that a miscarriage in the sentencing process occurred because the Magistrate should have sentenced on the basis of the 10 dot point factual basis not the affidavit.
In comparing the affidavit and the 10 dot point factual basis, it is apparent that both proffer a substantially similar sequence of events. The 10 dot point factual basis is notably scant in detail and provides a broad overview of the events that took place, whilst the affidavit fills in those details and provides additional information and context to the offending. Importantly, the Magistrate states in the remarks that “I note that her two victim impact statements were completed on 15 March 2018 and 26 June 2018 respectively. The contents of the statements are consistent with the account of events which she gave in [the affidavit]”.
Counsel for Mr Parry referred to the first three dot points of the 10 dot point factual basis and submitted that those facts suggest a sequence of events in the lead up to the assault that is more favourable to Mr Parry. However, it is of note that the third dot point refers to Mr Parry placing his hand over Ms V’s mouth in an attempt to quieten her, supposedly following the verbal argument, and that he did so “several times during their struggle”. On one view, this account correlates to the escalation from the verbal argument to the physical altercation as described by Ms V in the affidavit.
Furthermore, whilst it is true that the 10 dot point factual basis only vaguely refers to the victim and Mr Parry wrestling, the victim impact statements and the photographs disclose injuries to parts of Ms V’s body other than her face. Having regard to this and the affidavit, it was reasonably open for the Magistrate to conclude that such injuries were a result of a broader physical altercation which included Mr Parry wrestling with Ms V. There is nothing in 10 dot point factual basis that counters such a conclusion. Indeed, the reference to Mr Parry’s “undoubted weight and strength advantage” in the fifth dot point tends to support such a conclusion.
In any event, the remarks make clear that Mr Parry was sentenced for “the punch to [Ms V’s] face committed in the context of a longer episode of aggressive behaviour towards her following an argument with [Mr Parry], and in the context of the consumption of alcohol”. None of the detail in the 10 dot point factual basis is in disharmony with those principal features upon which the sentence was imposed. Rather, the affidavit and 10 dot point factual basis both refer to Ms V punching Mr Parry in the face first, following which he retaliated with a forceful punch.
Whether the Magistrate were to have preferred the 10 dot point factual basis, the affidavit, or a combination of both as the factual basis for sentencing, the facts still stood in stark similarity. Those facts are that Mr Parry, who is considerably larger and stronger than Ms V, wrestled with her, following which Ms V punched Mr Parry in the face and Mr Parry retaliated by forcefully punching Ms V in the face, which caused her harm.
A sentencing Magistrate, in the absence of detailed agreed facts, ordinarily is required to sentence on the basis of “sworn depositions and statements”.[4] The 10 dot point factual basis is lacking in detail as to physical actions that comprised the wrestling and Ms V’s injuries. The detail is found in the affidavit and the photographs.
[4] The Queen v Perre (1986) 41 SASR 105 at 105.
The sentencing process did not miscarry.
Ground 3 is not made out.
Ground 1
I now turn to ground 1, the complaint of manifest excess. Mr Parry submitted that the starting point of 16 months was too high for an offence that carries a maximum penalty of three years and when compared to other sentences imposed for similar offending. It was argued that the Magistrate did not adequately consider the role Mr Parry’s mental health issues played in his offending.
The Magistrate referred to Mr Parry’s “fragile emotional state” at the time of the offence, his mental health issues and gave him credit for completing the Program and attending counselling sessions with a psychologist. Her Honour also referred to the helpful “background” provided by the psychiatric report. Further, the Magistrate considered the impact that incarceration would have on Mr Parry’s children, as well as the “good letter” provided by his mother. Significantly, the Magistrate also had regard to the letter written by Ms V dated 12 June 2019, asking for leniency for Mr Parry.
Ms V suffered significant physical injuries, emotional damage and loss of employment. She and Mr Parry had, three months prior to the offending, been in an intimate relationship. Mr Parry had a relevant previous conviction for which he was sentenced on 17 April 2015 and given the benefit of a wholly suspended sentence on the basis of entering into a two-year good behaviour bond. That bond expired approximately nine months before Mr Parry’s offending against Ms V. The facts of the previous offending were that Mr Parry, in an unprovoked assault, punched a neighbour in the face shattering his cheekbone and fracturing his eye socket.
Mr Parry is remorseful for the offending, suffers mental health issues, completed the Program, and has undertaken psychological counselling. The Magistrate had appropriate regard to all relevant factors, including all matters personal to Mr Parry in arriving at the starting point of 16 months imprisonment. Whilst having regard to all the circumstances the sentence is at the higher end of the available range, it was neither “outside the permissible range of sentences for the offender and the offence”.[5]
[5] Kentwell v The Queen (2014) 252 CLR 601 at [35] (French CJ, Hayne, Bell, and Keane JJ).
I do not consider the sentence was manifestly excessive.
Ground 1 is not made out.
Ground 2
Mr Parry also argued that the Magistrate erred in not suspending the term of imprisonment and did not provide adequate reason as to why she did not find good reason to suspend.
In the remarks, the Magistrate said:
I find no good reason to suspend the full term that I have imposed, but having regard to some of your personal factors, your mental health challenges, and the fact that you have put effort into your participation with the domestic violence program, I am prepared to partially suspend the sentence, but only after you have served six months.
The Magistrate in arriving at the sentence and in determining whether there was good reason to suspend clearly had to have regard to that fact that Mr Parry’s had committed the assault and caused harm and had a prior conviction for the same kind of conduct. The suspended sentence imposed in respect of the prior conviction for assault had not deterred Mr Parry from like offending. The sentence and the decision to partially suspend were within the Magistrate’s discretion having regard to seriousness of the offending, Mr Parry’s prior conviction, and his need for ongoing psychological counselling.
Ground 2 is not made out.
Conclusion
None of the grounds of appeal are made out. I dismiss the appeal.