Pasa v Bell
[2014] ACTSC 303
•30 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Pasa v Bell |
Citation: | [2014] ACTSC 303 |
Hearing Date(s): | 30 October 2014 |
DecisionDate: | 30 October 2014 |
Before: | Murrell CJ |
Decision: | Appeal dismissed |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Appeal and new trial – appeal against sentence – domestic violence offence – at the complainant’s home – presence of child – “exceptional circumstances” – non-conviction order |
Legislation Cited: | Crimes Act1900 (ACT) s 26 Magistrates Court Act1930 (ACT) s 208 Crimes (Sentencing Procedure) Act1999 (NSW) s 21A |
Cases Cited: | House v The King (1936) 55 CLR 499 R v Bell [2005] ACTSC 123 Proud v Sladic [2014] ACTCA 26 |
Parties: | Ziya Pasa (Appellant) Kylie Bell (Respondent) |
Representation: | Counsel Mr T Sharman (Appellant) Ms K MacKenzie (Respondent) |
| Solicitors Tim Sharman - Solicitor (Appellant) Director of Public Prosecutions (ACT) (Respondent) | |
File Number(s): | SCA 39 of 2014 |
MURRELL CJ:
The appellant pleaded guilty to the offence that, on 17 December 2013, he assaulted his former fiancé and de facto partner of two years (the complainant). The offence is contrary to s 26 of the Crimes Act1900 (ACT). It carries a maximum available penalty of two years’ imprisonment. The appellant was convicted and fined $750. He appeals against the conviction and sentence.
The appeal
The appeal is pursuant to s 208 of the Magistrates Court Act1930 (ACT). It has been accepted that the proper approach to such an appeal is that set out in House v The King (1936) 55 CLR 499. The manner in which an appeal against an exercise of discretion (including the imposition of a sentence) is governed by established principles. In order to succeed, an appellant must establish error. The error may be an express error: the judge acted upon a wrong principle, was guided by extraneous or irrelevant matters, made a mistake about the facts or failed to take into account a material consideration. Further, if the sentence is unreasonable or plainly unjust and has led to a substantial wrong, the appellate court may infer that there has been a failure to properly exercise the discretion.
In this case, the grounds of the appeal are:
(a)The primary judge erred in his assessment of what constituted aggravating features.
(b)The primary judge erred in principle in finding that the circumstances were not “sufficiently exceptional” to enliven the court’s discretion under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) to make a non-conviction order.
Facts
In the Magistrates Court, the statement of facts tendered by the respondent was agreed by the appellant.
About one month after the appellant and the complainant separated, the appellant attended the couple’s former home by arrangement, for the purpose of visiting his son and collecting his motorcycle from the garage. When he arrived three people were present. They were, a friend of the complainant, the complainant and the appellant’s son. The appellant went to the garage and was followed by the complainant. An argument ensued. The complainant asked the appellant to leave.
The complainant reached up to close the garage door and, as the door began to close, it hit the appellant on the head. The appellant shoved the complainant in the chest and then pushed her. She fell backwards onto the bonnet of her car, which was parked in front of the garage. The complainant asked her friend to call the police and then continued to argue with the appellant. The appellant spoke to the complainant in a threatening manner. The appellant walked back into the garage and was followed by the complainant. When the complainant walked between the appellant and his motorcycle, he pushed her with one hand, causing her to stumble into the motorcycle. The complainant again asked the appellant to leave. The appellant walked towards his vehicle, kicking the complainant’s vehicle twice as he walked past.
Counsel for the appellant conceded that, at least to some extent, the assault occurred in the presence of a child.
Subsequently, the appellant and the complainant contacted the police independently. The appellant was arrested and spent a night in custody.
Subjective circumstances
The appellant had no prior criminal record and was of general good character. He was a 25-year-old man of Turkish background who was self-employed, earning a good income.
After the incident, the appellant and the complainant repaired their relationship, although they did not resume cohabitation. The complainant provided a letter of support that was tendered before the Magistrate, in which she attested to the appellant’s good character and spoke of the circumstances of the offence.
In response to a question from the Magistrate, counsel for the appellant said that, while the appellant would be generally disadvantaged by the recording of a conviction, he would not suffer any specific disadvantage.
Ground 1: Aggravating features
In passing sentence, the primary judge said:
There are some aggravating features surrounding the commission of the offence. The victim is your former partner. The assault took place in the presence of your son. It took place at the home of the victim after separation had taken place and of course that’s a place where she was entitled to feel safe, in her own home, and it also took place after you had been asked to leave the residence. It involved pushing on two occasions with enough force to cause the victim to stumble and it was accompanied by some abuse directed towards the victim. Those things are, as I say, aggravating factors surrounding the commission of the offence.
(Emphasis added)
The appellant submitted that, while the fact that an offence is committed at the home of the victim can be an aggravating feature, the mere fact is, by itself, not enough to aggravate an offence; there must be some level of “intrusion”.
Section 33 of the Sentencing Act provides:
(1)In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court:
...
(f) the effect of the offence on the victims of the offence, the victims' families and anyone else who may make a victim impact statement;
Regardless of whether they are stated in s 33, a sentencing court should consider all relevant objective and subjective matters, weighing them in the context of the maximum available penalty.
When considering the sentencing purposes set out in s 7 of the Sentencing Act, including general and personal deterrence, a sentencing court is entitled to consider the fact that an offence involved domestic violence, and that the violence has occurred at the victim’s home. An offence involving domestic violence is one that involves abuse of a partner, former partner or other family member (using the term “family” in the broadest sense). Frequently, such offences occur in the home, where the inhibitions of an offender may be lowered, the impact on the victim may be heightened (as she or he is made to feel that a formerly safe place has been violated) and the occurrence of the offence is more readily concealed. Further, where a domestic violence offence occurs in the victim’s home, it is often associated with secondary abuse to other family members.
In R v Bell [2005] ACTSC 123 at [30]-[31], Higgins CJ said:
[30] It is true to say that most assaults on women are at the hands of their partners or ex-partners. It is a pernicious and evil phenomenon not only because of the immediate trauma to the victim. Its evil influence spreads to children as well. ... It is entirely in the public interest that such conduct be exposed and deterred.
[31] .... The offence is often hidden, so general deterrence is a factor that is quite prominent. So also is specific deterrence. No offender engaging in this kind of behaviour, nor their victims, should feel that it is to be treated lightly. Rather, it must be made the subject of condign punishment. That is not to say, of course, that any mitigatory factors or prospects for rehabilitation will be disregarded.
In determining the objective seriousness of any offence, the sentencing court should examine all the facts of the particular case. The fact that an assault has occurred at the victim’s home is generally relevant, but in some circumstances it may be irrelevant. The degree of “intrusion” into the victim’s home may also be relevant. For example, it may be relevant that the offence occurred in the front yard rather than in the victim’s bedroom. There is no strict rule; the degree of relevance attaching to the location of offending conduct depends on the circumstances of the particular case.
Although the consideration of whether an offence occurs in the complainant’s home is not clearly articulated in s 33, it is well recognised that such a consideration may aggravate penalty: see, for example, s 21A(2)(ea) and (eb) of the Crimes (Sentencing Procedure) Act1999 (NSW) and Shaw v The Queen [2008] NSWCCA 58.
In this case, the primary judge was entitled to take into account that the offence occurred in the home of the complainant (albeit in the garage rather than the residence proper), a place where the complainant was entitled to feel safe, and that it occurred in the presence of the appellant’s son. The appellant had attended the residence by arrangement, but then failed to leave when asked to do so. The primary judge did not approach the matter on the basis that the “mere fact” that the incident occurred at the complainant’s home was an aggravating feature. Rather, he considered the location of the offence in the context of other relevant circumstances.
This ground is not made out.
Ground 2: Section 17 of the Sentencing Act
Section 17 of the Sentencing Act provides:
(2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):
(a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;
(b) a good behaviour order under section 13.
(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a) the offender’s character, antecedents, age, health and mental condition;
(b) the seriousness of the offence;
(c) any extenuating circumstances in which the offence was committed.
(4)The court may also consider anything else the court considers relevant.
In relation to the submission that no conviction should be imposed, the primary judge said:
Now to deal with somebody under section 17 is an exceptional outcome. In the ordinary course of events, somebody walks through that door and they plead guilty or they are found guilty of an offence, then they are convicted and a sentence of punishment is imposed upon them. Section 17 permits the court to do otherwise where the circumstances, generally, are exceptional. It is not only the circumstances surrounding the commission of the offence but the circumstances, generally your personal circumstances and the like.
The conclusion that I have reached is that the circumstances, generally, in relation to this matter are not sufficiently exceptional for me to exercise the discretion under section 17 so I do record a conviction against you. There are, however, a range of factors that are taken into account in determining the sentence to be imposed upon you.
(emphasis added)
In questioning the appellant’s counsel about whether a conviction would result in a particular detriment to the appellant, the primary judge was ensuring proper consideration of s 33(1)(r), which provides that in sentencing an offender a court must consider (in so far as it is relevant and known):
(r) whether the recording of a conviction or the imposition of a particular penalty would be likely to cause particular hardship to the offender;
In Proud v Sladic [2014] ACTCA 26, the Court of Appeal said:
[28] Section 17 confers a very broad discretion upon a sentencing court; when considering whether to impose a non-conviction order, the sentencing court must consider the three mandatory considerations in s 17(3) but, under s 17(4), “may also consider anything else the court considers relevant”.
...
[42] ... The ordinary consequence of a finding of guilt is the recording of a conviction: Balthazaar v The Queen [2012] ACTCA 26 at [53]. The failure to record a conviction is an exceptional outcome: Stark v Plant [2010] WASCA 74 at [18].
[46] In Roseby v Harman [2014] ACTSC 125, after discussing the authorities, Refshauge J said that it is unnecessary to identify an exceptional consideration before a sentencing court can proceed under s 17. Rather, a non-conviction order may be justified by having regard to the whole of the relevant circumstances, no one of which is exceptional. At [85], his Honour said:
neither singly nor in combination are the circumstances required to be remarkable; the court must simply address the relevant factors and determine whether they lead to the court’s view that the discretion should be exercised in the particular circumstance.
[47] Support for this approach can be found in the terms of s 17. The provision mandates the consideration of three matters and, impliedly, those three matters may, in combination, justify the imposition of a non-conviction order. Section 17 says nothing about the need for exceptional circumstances.
(Emphasis added)
In other words, the exercise of the discretion to make a non-conviction order is an “exceptional outcome”, but it is an outcome that may occur in the absence of “exceptional circumstance”. To avoid confusion, it may be desirable to refrain from using the term “exceptional”.
When the primary judge’s reasons are read in context, it is reasonably apparent that he was aware that, while a non-conviction order is an “exceptional outcome”, when deciding whether such an outcome is justified, it is the “circumstances generally” that should be considered. The primary judge was not asserting that it was necessary to identify an “exceptional circumstance” before the s 17 discretion could be exercised.
This ground is not made out.
The appeal is dismissed.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 19 November 2014 |
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