Peverill v Crampton (No 2)

[2011] ACTSC 175

LINDA MAREE PEVERILL v BROOKE AMY CRAMPTON (NO 2)
[2011] ACTSC 175 (10 November 2011)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – sentence appeal – appeal allowed.

CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – non-conviction order – occasions for application of the provision – non-conviction order made.

Crimes (Sentence Administration) Act 2005 (ACT)
Magistrates Court Act 1930 (ACT), Pt 3.10, Div 3.10.2

Crimes (Sentencing) Act 2005 (ACT), s 17

Crimes Act 1900 (ACT), s 24
Crimes Act 1914 (Cth), s 19B

Peverill v Crampton [2010] ACTSC 79
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
R v Bloomfield (1998) 44 NSWLR 734
R v Ferguson;  R v Williams [1999] NSWCCA 214
Kent v Arley [2007] ACTSC 66
Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568
Chatfield v Rhynehart [2008] ACTSC 47
Higgs v The Queen [1999] FCA 1562
R v Brown;  Ex parte Attorney-General (Qld) [1994] 2 Qd R 182
Toohey v Peach (2003) 143 NTR 1
Davis v Conroy [2005] ACTSC 8
Lukatela v Apostoloff [2010] ACTSC 74

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 59 of 2009

Judge:             Refshauge ACJ
Supreme Court of the ACT

Date:              10 November 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCA 59 of 2009
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:LINDA MAREE PEVERILL

Appellant

AND:BROOKE AMY CRAMPTON

Respondent

ORDER

Judge:  Refshauge ACJ
Date:  10 November 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. The conviction entered in the Magistrates Court on 29 September 2009 be set aside.

1. In lieu, Linda Maree Peverill be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months from today.

1. On 10 August 2010, I dismissed an appeal that Ms Peverill had taken from a conviction entered in the Magistrates Court for a charge of assault occasioning actual bodily harm committed on 9 December 2008.  See Peverill v Crampton [2010] ACTSC 79.

1. Ms Peverill had appealed against both conviction and sentence.  The hearing, however, did not address the appeal against sentence at any length and when delivering my decision on the appeal I invited submissions on sentence from the parties.

1. For reasons that I do not completely understand, no submissions were received and neither party relisted the matter for further hearing.

1. In any event, the matter was finally listed on 19 October 2011 for further submissions on sentence.  I heard the parties and reserved my decision.

The facts

1. The facts are set out in my judgment, Peverill v Crampton, and I do not need to set them out in detail here.

1. In summary, Ms Peverill and the victim were neighbours.  When Ms Peverill returned home on 9 December 2008, there was an exchange of abusive words between them.  This led to the victim and Ms Peverill coming together, there was some physical contact and the two fell to the ground.  As the victim moved to get up, she moved her arm and Ms Peverill bit it.  The police were called and Ms Peverill was charged with assault occasioning actual bodily harm because the bite had drawn blood and the police saw three puncture wounds on the victim’s left wrist which were “bleeding, seeping”.

The sentence

1. The Learned Magistrate accepted that there was “a significant degree of animosity” between the victim and Ms Peverill.

1. Counsel for Ms Peverill submitted in the plea in mitigation that Ms Peverill suffered from a work injury some 18 months previously.  She had sole care of two children.  Ms Peverill’s counsel submitted that the injury to the victim’s arm had resolved, but the Learned Magistrate rejected that on the basis that there was no evidence to that effect.  Ms Peverill’s counsel, however, referred to the photographs tendered.

1. His Honour did not respond but convicted Ms Peverill and made a Good Behaviour Order for 12 months.  He added:

I can only indicate to the parties that if this bad blood and animosity continues in that area, there will be convictions and people dealt with and ultimately end up with condoned [sic] punishment”.

1. I suspect that what appears in the transcript as “condoned punishment” is actually meant to be “condign punishment”.

The appeal

1. In the course of the appeal, I analysed the evidence and found that Ms Peverill had not made out self-defence for she would have avoided any blow before she actually bit the wrist of the victim.  Thus, there was either no punch or blow, or it had already been avoided by the time Ms Peverill bit the complainant on the wrist.

1. I found, however, that the altercation was exacerbated by the victim and her daughter.  While the Learned Magistrate found that there was animosity on both sides, he did not analyse the respective contributions of the parties for the altercation.

1. The Learned Magistrate also failed to consider the photographic evidence.  The police took two sets of photographs, one set on the day of the incident, namely 9 December 2008, the other a little less than a month later on 6 January 2009.

1. These latter photographs show, as Ms Peverill’s counsel submitted, that the injuries had nearly resolved.  One showed a small scar, one had completely resolved and the third had all but resolved.  Given the relatively short period between the two photographs, the submissions of counsel were appropriate and it seems to me almost certain that there will be minimal, if any, residual scarring.  The Learned Magistrate was wrong to reject that evidence.

1. Counsel for Ms Peverill also submitted to me that Ms Peverill was currently seeking employment and would be disadvantaged by the recording of a conviction.  There was little to support that submission but no objection was taken to it.

1. Counsel for the respondent submitted that there was no ground to interfere with the sentence for there was no error and the sentence, namely a 12 month Good Behaviour Order, was clearly within range and not manifestly excessive.

Jurisdiction

1. The power to deal with appeals from the Magistrates Court is provided for in Pt 3.10 of the Magistrates Court Act 1930 (ACT) and Div 3.10.2 regulates appeals in criminal matters such as this appeal.

1. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles surrounding such appeals. I apply them in this case.

1. The sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence.  I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate, and that I am not merely tinkering.

1. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations.  If I find specific error but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence.  Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.

Consideration

1. There are two issues on the appeal:  is there a basis for interference with the sentence and, if so, should another sentence be substituted?

1. On the first issue, the Learned Magistrate gave few reasons for the sentence he imposed. To be fair to his Honour, Ms Peverill’s counsel was ambiguous in her request for a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).  It seems that his Honour, however, was aware of what was being sought for he referred to “there will be convictions” if the animosity were to continue.

1. His Honour was in error in rejecting the submissions that there was no evidence that the injuries had resolved.  There was, in fact, such evidence, which showed that the injuries were not of an ongoing kind and were resolving;  one had, to all intents and purposes, resolved.

1. It is clear that the actual injuries inflicted are a relevant matter to determine the seriousness of an assault:  R v Bloomfield (1998) 44 NSWLR 734 (at 740) per Spigelman CJ, with whom Sully and Ireland JJ agreed. That clearly includes the lasting effects of the injuries, if any.

1. The circumstances in which the assaults occur are also relevant.  For example, provocation can appreciably reduce the objective gravity of an offence if it makes the defendant lose self-control, even where it is no defence to a charge:  R v Ferguson;  R v Williams [1999] NSWCCA 214 (at [29]). That may not apply here in the sense that it appears unlikely that Ms Peverill was sufficiently provoked as to lose self-control, but, the fact that there was animosity on both sides, with the victim’s daughter also intruding into the matter, was relevant.

1. Although it is inevitable that in a busy Magistrates Court, sentencing remarks will be brief, they must be sufficient so that the offender and, if necessary, an appeal court understands what has been taken into account, what has been rejected and thus what is the reasoning for the sentence imposed.  An appeal court should, of course, always consider the submissions made for it can usually be assumed that the sentencer will have taken them into account, especially where there has been dialogue with counsel, and this can reveal the reasons for sentence.

1. In this case, however, there is little from which I, as the appeal court, can get in understanding the rationale for the sentence.  His Honour rejected the reference to the resolution of the injuries, which I have found as an error.  His Honour did refer to the animosity between the victim and Ms Peverill, a relevant factor, but did not indicate how that was to be taken into account, if, indeed, he did so.

1. In my view, there was error and the court is required to consider then whether a different sentence should be imposed.

1. Assault occasioning actual bodily harm is a mid-level serious offence, attracting a maximum penalty under s 24 of the Crimes Act 1900 (ACT) of 5 years’ imprisonment.

1. Perhaps it was not requested as clearly as desirable, but I am prepared to infer that a non-conviction order was being sought.  While I do not consider the decision should necessarily be followed, I do note that Connolly J in Kent v Arley [2007] ACTSC 66, actually went as far as finding that the learned Magistrate’s sentence was infected by error because counsel had failed to invite her Honour to exercise a discretion to make a non-conviction order. At least, this should make Magistrates astute to consider such an issue where it is clearly open when such can reasonably be deciphered from counsel’s submissions.

1. A non-conviction order is made under s 17 of the Sentencing Act. 

1. The section is, relevantly, as follows:

17.      Non-conviction orders – general

(1)This section applies if an offender is found guilty of an offence.

(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.

1. The equivalent Commonwealth provision, s 19B(1)(b) of the Crimes Act 1914 (Cth), requires, as Spigelman CJ pointed out in Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568 (at 572; [10]), a two stage approach. It is not clear, however, that s 17 requires such a two-stage approach, since the matters set out in ss (3) and (4) are not, as the matters set out in the Commonwealth Act are, pre-conditions to the exercise of the discretion.

1. Indeed, as Gray J said in Chatfield v Rhynehart [2008] ACTSC 47, (at [9]), “[i]t must always be a question of considering overall the matters set out in s 17”. It is also true and to be noted, as by the Full Federal Court in Higgs v The Queen [1999] FCA 1562 (at [3]), that “[t]he recording of a conviction is the usual result of a guilty verdict or a plea of guilty”.

1. In considering the issues set out in s 17, I consider that the approach in other jurisdictions is appropriate. Thus, in R v Brown;  Ex parte Attorney-General (Qld) [1994] 2 Qd R 182 Macrossan CJ said (at 185):

Where the recording of a conviction is not compelled by the sentencing legislation, all relevant circumstances must be taken into account by the sentencing court.  The opening words of s 12(2) of the Act say so and then there follow certain specified matters which are not exhaustive of all relevant circumstances.  In my opinion nothing justifies granting a general predominance to one of those specified features rather than to another.  They must be kept in balance and none of them overlooked, although in a particular case one, rather than another, may have claim to greater weight.  It would, however, in my opinion, not be correct to say that because ‘age’ finds mention, the principle that should be applied is that only youthful offenders should escape a recorded conviction or because ‘chances of finding employment’ are mentioned, a person not likely to be seeking employment should never be spared or because ‘nature of the offence’ is referred to, only those offences at the more trivial end of the sentencing scale should be regarded as qualifying.  Indeed, an offender’s previous unblemished character and his assumed desire to maintain his social well-being and community reputation may be able to be regarded as giving him fair claims to consideration in the matter, even if he is of a mature age.  A fifty year old first offender, not in employment, is not automatically excluded from the benefit of the terms of s 12.

1. See also Toohey v Peach (2003) 143 NTR 1.

1. In this case, there were a number of extenuating circumstances in which the offence was committed.  I emphasise those words because of the need for them to be given full weight:  Davis v Conroy [2005] ACTSC 8 (at [19]); Lukatela v Apostoloff [2010] ACTSC 74 (at [27] to [28]).

1. Ms Peverill was a single mother of two children.  She had, at the time of the incident, returned home from The Canberra Hospital by bus with one of her children and a friend.  Ms Peverill was, at the time 30 years’ old.  She had no prior convictions.

1. It is clear that there was, as the Learned Magistrate found, animosity between the victim and Ms Peverill.  Whether Ms Peverill shouted at the victim as a result of a misunderstanding or otherwise, I do not need to determine.  There may have been no need for Ms Peverill to do that, but there was, however, no need for the victim to leave her house and confront Ms Peverill.  That was likely to escalate the situation, as happened.  That the victim’s daughter also confronted Ms Peverill escalated the situation.

1. I am satisfied that, as a result of the nature of the injuries, the age and antecedents of Ms Peverill and the extenuating circumstances under which the offence was committed, it is appropriate to make a non-conviction order.

1. I reject the option that it is appropriate not to impose any punishment, so I propose to make a Good Behaviour Order for six months from today.

   I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

   Associate:

   Date: 10 November 2011

Counsel for the appellant:  Dr B Boss
Solicitor for the appellant: Legal Aid ACT
Counsel for the respondent:   Mr T Hickey
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  19 October 2011
Date of judgment:  10 November 2011