Purcell v O'Reilly
[2018] ACTSC 60
•9 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Purcell v O’Reilly |
Citation: | [2018] ACTSC 60 |
Hearing Dates: | 11 December 2017; 22 February 2018; 9 March 2018 |
DecisionDate: | 9 March 2018 |
Before: | Penfold J |
Decision: | 1. The appeal is dismissed. 2. The parties will be heard about any necessary consequential orders. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal against sentence imposed in Magistrates Court – offence of damage property in domestic context – whether recording conviction was manifestly excessive – whether Magistrate erred in interpretation of facts – whether Magistrate misdirected herself about availability of non-conviction order. |
Legislation Cited: | Crimes Act 1900 (ACT), s 116(3) Crimes (Sentencing) Act 2005 (ACT), ss 17, 35, 35A, 36 Magistrates Court Act 1930 (ACT), s 214(3)(b) |
Cases Cited: | Guy v Anderson [2013] ACTSC 5 R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 TW v Simpson [2016] ACTSC 207 |
Parties: | Randall Purcell (Appellant) Shaun Jeffrey O’Reilly (Respondent) |
Representation: | Counsel Mr R Davies (Appellant) Mr B Ngugi (Respondent) |
| Solicitors Legal Aid Office (ACT) (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 23 of 2017 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 16 May 2017 Case Title: O’Reilly v Purcell Court File Number: CC17/1741 |
Background
On 16 May 2017, Randal Purcell pleaded guilty in the Magistrates Court to one offence of damaging property causing damage valued at no more than $5,000 arising under s 116(3) of the Crimes Act 1900 (ACT), and an associated assault charge was withdrawn. He now appeals against the sentence imposed for the damage property offence.
The offence
Mr Purcell is divorced, and has not lived permanently with his former wife and children since about 2009. However, he often sleeps at the house occupied by his former wife and children so that he can take his son to football training in the mornings.
On the night of 6 December 2016 he arrived at the house quite late, and shortly afterwards there was an altercation with his former wife about her mobile phone. Mr Purcell wanted to look at the phone but she did not want him to, so she retreated to her bedroom and locked the door. This angered Mr Purcell, who threatened to break the door down if she did not unlock it. Mr Purcell’s daughter blocked his access to her mother’s bedroom door. Mr Purcell retreated to the lounge room, where he picked up a flat screen TV set and threw it to the ground, picked up the glass table it had been sitting on, and then threw the table down onto the TV screen, causing it to shatter.
Mr Purcell’s son was also present at the house.
Police arrived at the house shortly afterwards, and arrested Mr Purcell. His former wife declined to take part in an evidence-in-chief interview or to make a statement; family members said they just wanted Mr Purcell to leave.
In his police interview, Mr Purcell said he was very ashamed of his actions, and indicated that he recognised that his actions were wrong, and that he wanted to make amends.
Magistrates Court proceedings
During the hearing, defence counsel suggested that the Magistrate might consider making an order under s 17 of the Crimes (Sentencing) Act 2005 (ACT), under which the court finds an offence proved but declines to record a conviction. Her Honour responded as follows:
It’s family violence. It’s in the complainant’s own home and there was a child present. In my view, that’s too serious for the matter to be dealt with pursuant to section 17.
In sentencing Mr Purcell, the Magistrate said:
In sentencing you I take into account the purposes and factors of sentencing set out in the legislation, the statement of facts and circumstances. In terms of objective seriousness, this is aggravated by being a family violence offence. There was a child present and it occurred in the home of the victim. I note, however, your almost immediate remorse for your conduct.
I take into account your plea of guilty. It facilitates justice and is indicative of remorse and I have given you a discount in the manner of the sentence. I take into account your age and your personal circumstances. I take into account the fact that you have no criminal history and, therefore, should be [afforded] some leniency as a person of otherwise good character. I take into account that, to your credit, you are in employment. I also take into account, specifically, that you have replaced the damaged property.
This is, however, a matter for which deterrence is relevant and I impose a penalty on you to deter you from ever engaging in this type of conduct again and also to deter others. This is a matter of protection of the community. People should be protected and their homes not violated, no matter who it is. If you have been in a relationship with someone, particularly someone with whom you have children, then it is incumbent upon you to respect that person and respect their property and certainly to respect the fact that a child should not be taught by their father that this is the appropriate way to behave. That is the way in which family violence can be transmitted from one generation to the other and it is of particular concern to the community.
I impose penalties upon you to publicly denounce your conduct and to hold you accountable for your actions.
Her Honour convicted Mr Purcell, and made a 12-month good behaviour order.
The appeal
An appeal from the Magistrate’s sentence order was filed on 13 June 2017. The hearing began on 14 December 2017, and was adjourned part-heard to 20 February 2018, among other things to enable the appellant to obtain further evidence (some of which might have been admissible in the appeal and some of which would have been relevant in any re‑sentencing). The resumption of the hearing had to be adjourned on two further occasions, and the hearing was finally completed on 9 March 2018.
The grounds of appeal specified in the notice of appeal were as follows:
(a)that the sentence was manifestly excessive;
(b)that the Magistrate misapplied s 17 of the Crimes (Sentencing) Act in failing to make a non-conviction order.
Non-conviction orders
Section 17 of the Crimes (Sentencing) Act is relevantly as follows:
17Non-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.
NoteA good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).
(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.
NoteAn appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender’s conviction for an offence (see Magistrates Court Act 1930, pt 3.10).
The section confers a power, and sets out matters that must or may be considered before exercising that power. However, it contains no criteria for the making of a non-conviction order, and does not exclude making such an order by reference to any kind of offence or any kind of offender.
Submissions
Appellant’s submissions
On behalf of the appellant, the following matters were identified in submissions as relevant to establishing that the sentence had been manifestly excessive:
(a)that the penalty for the offence concerned carried a maximum penalty of 50 penalty units and imprisonment for two years;
(b)that although it appeared that the TV had been destroyed, the compensation claim for $350 suggested that it had not been particularly valuable (even if that claim represented half the value of the TV on the basis that Mr Purcell was himself a part owner of the TV), and that Mr Purcell had already replaced the TV;
(c)that her Honour should not have identified the family violence context of the offending as an aggravating circumstance, since the authorities suggest not necessarily that a family violence context aggravates an offence but that it warrants an emphasis on punishment, denunciation and general and specific deterrence (see R v Mazaydeh [2014] ACTSC 325 at [13] to [16], and TW v Simpson [2016] ACTSC 207, but see also Stafrace vCarter [2017] ACTSC 371 at [24]);
(d)that although Mr Purcell’s two children had been present in the house at the time of the offence, there had been no physical violence towards their mother, and that a distinction should be drawn:
between a child witnessing a parent taking out his anger or frustration on an inanimate object and taking it out on the child’s mother
(e)that there was no evidence that either child was present in the lounge room when the offence was committed;
(f)that the guilty plea was entered early, and Mr Purcell had expressed remorse;
(g)that without the evidence of Mr Purcell’s former wife (who as noted had declined to take part in a police interview or to make a statement), the prosecution might not have been able to prove the offence at all, but for the fact that Mr Purcell had made frank admissions to police on the night of the offence, and therefore (in reliance on R v Ellis (1986) 6 NSWLR 603 (Ellis)) Mr Purcell had been entitled to leniency under s 35A or perhaps s 36 of the Crimes (Sentencing) Act;
(h)that Mr Purcell was aged 45 years and had no criminal history.
As to the second appeal ground, written submissions were made on behalf of Mr Purcell to the effect that a non-conviction order under s 17 of the Crimes (Sentencing) Act would have been available, and that a consideration of the matters referred to in s 17 “would have warranted favourable consideration” of making a non-conviction order.
In oral submissions, counsel for the appellant conceded that the second ground of appeal did not properly identify any particular error on her Honour’s part, and that it should be read as suggesting that a non-conviction order would be an appropriate replacement sentence if error could otherwise be identified. However, counsel then reframed the second ground as that her Honour had made an error of law in directing herself to the effect that the nature of the offence rendered s 17 unavailable as a matter of law.
Counsel submitted that it was not appropriate for her Honour simply to characterise an offence as a family violence offence and leave it at that. He said that while it may be a relevant factor that an offence is committed in a family violence context, that is not the end of the issue, and there is no legal requirement for a particular response to be given to domestic violence offences as such. In short, he submitted that her Honour fell into error when, in response to the request that she consider a non-conviction order, she responded with what counsel characterised as a proposition to the effect that family violence is too serious to be dealt with by a non-conviction order.
At the appeal hearing, counsel for the appellant (who had not appeared in the Magistrates Court) pointed out a matter that he had only very recently become aware of, being that the “children” described in the statement of facts had been 22 and 16 years old at the time of the offence; he submitted that when the Magistrate considered the objective seriousness of the offence, her Honour might have made an incorrect assumption that they were much younger.
Respondent’s submissions
The respondent submitted:
(a)that initially Mr Purcell had been charged with the more serious damage property offence under s 403 of the Criminal Code 2002 (ACT), which carried a maximum penalty including 10 years imprisonment, that a common assault charge had later been added, and that as a result of negotiations between the parties, Mr Purcell had eventually faced only the minor damage property offence to which he had pleaded guilty;
(b)that the facts on which he should be sentenced for that offence had been agreed;
(c)that the agreed facts were not incorrect, although Her Honour may have made incorrect assumptions about the ages of the “children” who were present during the incident;
(d)that this was not a case invoking the approach in Ellis relating to offences that would not otherwise have come to light, and that there was no basis to accept that the offence could not have been made out without Mr Purcell’s admissions; and
(e)that the facts of the offence rendered it objectively serious, that the penalty that was imposed incorporated a considerable degree of leniency, and that the sentence imposed could not therefore be said to be manifestly excessive.
Consideration
The issues
The real issues arising on this appeal emerged as follows:
(a)Had the Magistrate been, in effect, accidentally misled, so as to result in a mistaken approach to the facts in respect of the age of Mr Purcell’s children who were present in the house at the time of the offence?
(b)Had the Magistrate, in effect, misdirected herself about whether a non-conviction order was available (as distinct from appropriate) in the case?
(c)Could the recording of a conviction be identified as manifestly excessive?
Before considering these issues, it is useful to refer to earlier judicial commentary about the characteristics and significance of actions in the context of an ongoing or past domestic relationship that may be identified as domestic or family violence. In R v Dunn [2004] NSWCCA 41; 144 A Crim R 180, Adams J (with whom Ipp JA and Sully J agreed), said at [47]:
Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. … To my mind these considerations emphasis not only the need for general and personal deterrence but also of denunciation in cases of this kind.
In R v Hamid [2006] NSWCCA 302; 164 A Crim R 179, Johnson J (with whom Hunt AJA and Latham J agreed) said at [77]:
An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control.
Possible error of fact – the age of the children
The statement of facts, unchallenged as far as it went, referred to Mr Purcell returning, with his son, to his former wife’s home, so that he could take his son to football training in the morning, and to Mr Purcell’s “daughter and eldest child” stepping in front of her father to stop him breaking down her mother’s locked bedroom door. Her Honour referred in the material quoted at [7] and [8] above to “a child present” at the time of the incident, and said that it was incumbent on Mr Purcell:
to respect the fact that a child should not be taught by their father that this is the appropriate way to behave.
As noted, it emerged in the course of the appeal hearing that at the time of the incident Mr Purcell’s daughter had been 22 years old and his son had been 16 years old (relevant evidence of the children’s ages was admitted in the appeal by consent (see s 214(3)(b) of the Magistrates Court Act 1930 (ACT)). That is, while both young people were Mr Purcell’s children, the daughter, and arguably the son, were not “children” by reference to their ages. This material had not been put before the Magistrate. It was submitted, in effect, that the Magistrate’s comments suggested that her Honour believed the children to be somewhat younger than they in fact were.
It is possible that her Honour had inferred that the incident involved somewhat younger children. However, her Honour’s comments about the significance of the presence of children are not relevant only (or perhaps even mostly) in relation to younger children. Her Honour said:
If you have been in a relationship with someone, particularly someone with whom you have children, then it is incumbent upon you to respect that person and respect their property and certainly to respect the fact that a child should not be taught by their father that this is the appropriate way to behave. That is the way in which family violence can be transmitted from one generation to the other and it is of particular concern to the community.
There is no doubt that family violence can have a damaging effect on children from a very young age. On the other hand, modelling family violence to a 22-year-old woman or a 16-year-old youth may have an even more significant impact, given that at those ages young people are still in the process of working out what it means to be, and how to live as, an adult woman or man.
Nothing in Her Honour’s comments permits me to find that she had, in any relevant way, mistaken the facts upon which she was sentencing Mr Purcell.
Possible error of law – availability of non-conviction order
There was a question whether her Honour had acted on an incorrect proposition of law, reflected in her response to the suggestion that she might consider making a non-conviction order as follows:
It’s family violence. It’s in the complainant’s own home and there was a child present. In my view, that’s too serious for the matter to be dealt with pursuant to section 17.
I do not see any basis on which to interpret this as the Magistrate directing herself that, as a matter of law, s 17 is not available in respect of an offence that:
(a)can be identified in general terms as a family violence offence;
(b)was committed in the complainant’s home; and
(c)involved the presence of a child.
If her Honour had taken this approach, it might have been an error of law (Guy v Anderson [2013] ACTSC 5 at [77]). However, in my view, the Magistrate in the quoted comment is simply identifying this particular offence as involving family violence, and taking place in the complainant’s home where a child was present. On that basis, she concludes that the particular offence is too serious to be dealt with under s 17.
That is, her Honour was appropriately performing that part of the sentencing task that consists of identifying the seriousness of the offence being dealt with, rather than inappropriately directing herself in terms of a wrong proposition of law about the offence in general.
Manifest excess
I accept, as I understand the respondent does, the submissions of counsel for the appellant, that:
(a)there is no legal principle to the effect that recording a conviction rather than making a non-conviction order could never be manifestly excessive (Mearns v Neill [2016] ACTSC 36 at [34]); and
(b)there is no restriction on the kinds of offences for which non-conviction orders may be made (Mearns v Neill, also at [34]), and in particular that there is no prohibition on making a non-conviction order in a family violence matter.
Thus, the question simply is whether in this case the recording of a conviction can be identified as manifestly excessive.
I have already noted (at [14] above) the list of matters identified by counsel for the appellant as justifying leniency in his sentencing. In my view, most of them would have justified a degree of leniency.
However, I do not accept that it was any kind of mitigating factor that Mr Purcell’s daughter was not in the room when Mr Purcell destroyed the TV (at [14(e)] above); since the statement of facts describes her standing in front of her mother’s locked bedroom door shortly before this, to try to stop Mr Purcell breaking it down, it is clear that she was well aware of the conflict between her parents, and I see no difficulty in inferring that if she did not actually see the TV being damaged, she would have become aware of it very shortly afterwards.
Counsel put particular weight on the admissions made by Mr Purcell when he was interviewed by police after the incident, and suggested that, apart from those admissions, the offence might have been difficult to prove given the reluctance of his family to provide evidence. He suggested that the admissions entitled Mr Purcell to a sentencing discount under s 35A, or perhaps s 36, of the Crimes (Sentencing) Act, as well as to the plea of guilty discount under s 35 of that Act.
Counsel for the respondent said that while Mr Purcell’s family members had declined to take part in police evidence in chief interviews or to give statements, there was no reason why they could not have been subpoenaed to give evidence and no reason why in those circumstances they would not have told the truth about the incident. Furthermore, he said, if the prosecution had run into any such problems, the police officers who had been called on the night of the incident and who had spoken to Mr Purcell’s family and observed the state of the house could have given evidence sufficient to justify a finding of guilt.
Counsel for the respondent accepted that Mr Purcell’s admissions could legitimately have been taken into account in assessing the significance of his plea of guilty and in assessing his remorse, but did not concede that they required any separate, additional, sentencing discount.
I accept the submissions of counsel for the respondent to the effect that it would not have been impossible to prove the charge against Mr Purcell even in the absence of his admissions on the night, and to that extent the case does not fall squarely within the Ellis category. I also accept the submissions of counsel for the appellant that his admissions made his prosecution easier, as well as suggesting considerable remorse.
I do not consider, however, that those admissions required a further separate sentencing discount under s 35A (provision of assistance in the administration of justice) or s 36 (assistance to law enforcement authorities). Her Honour made it explicit that she had taken account of the plea of guilty, because it indicated remorse and facilitated the course of justice, and had given a sentence discount “in the manner of the sentence” (presumably implying that she had refrained from imposing a fine or a term of imprisonment as well as the good behaviour order).
The impact of the admissions, beyond being a clear indication of remorse, was probably not as significant as put by counsel for the appellant, given that police had attended the scene of the incident, had observed the TV, and had clearly spoken at some length to Mr Purcell’s family.
This is not a case in which, but for Mr Purcell’s admissions, either the offence would never have come to light or it would have been difficult to prove in a defended hearing.
There are certainly aspects of this matter that justified the imposition of a lenient sentence on Mr Purcell, including those admissions as well as the other matters identified by counsel at [14] above.
On the other hand, there are aspects of the matter that do not seem to require the most lenient disposition, being:
(a)that the offence apparently arose out of Mr Purcell’s former wife’s refusal to let him see her mobile phone, his threat to break into the bedroom which she had locked against him, and his anger or frustration when his daughter’s intervention prevented him making good on his threat;
(b)that in those circumstances he was setting an example, for his 22-year-old daughter and, to the extent that his 16-year-old son was aware of the incident, to him as well, of the classic dynamics of a relationship involving domestic abuse; and
(c)that there were no positive reasons put to the Magistrate in favour of making a non-conviction order (for instance, evidence that the recording of a conviction would have a significant effect on his capacity to maintain employment).
I note also that while counsel for the appellant was able to identify circumstances that would have made Mr Purcell’s offence worse, this in itself is not a mitigating factor nor a basis for any particular level of leniency (Veen v The Queen (No. 2) 164 CLR 465 at 478).
At [21] and [22] above I have referred to earlier judicial comments about domestic or family violence offences. Significant for present purposes are the references to the offender’s belief that his actions are justified, and to the offender’s exercise of power and control over the victim.
I must record at this point that the facts available to me suggest that despite the failure of the marriage, Mr Purcell and his former wife had continued to provide care for their children through an apparently amicable arrangement, involving some sharing of the same house, over some years.
However, the incident giving rise to Mr Purcell’s conviction, and its source in Mr Purcell’s determination to examine the victim’s mobile phone, seem to reflect both an attempt to exercise power or control over his former wife and a belief that this was justified. For this reason, the incident as a whole may legitimately be treated as more serious than it would have been if the TV had been destroyed in anger or frustration generated by some event unrelated to conflict between Mr Purcell and his former wife.
As mentioned at [10] above, the adjournment of the appeal hearing late in December gave Mr Purcell the opportunity to seek information about the impact on his employment prospects of a conviction compared with a non-conviction order. This would have been relevant in any possible re-sentencing, and might also have been admissible in the appeal under s 214 of the Magistrates Court Act.
However, no such information was provided when the hearing resumed in 2018.
While I consider that a non-conviction order would have been an available disposition in this case, I am not satisfied that Mr Purcell’s sentence, consisting of the recording of a conviction and the making of a 12-month good behaviour order, was manifestly excessive.
Conclusion
Neither the original appeal grounds, nor possible grounds identified in argument, have been made out. Accordingly, the appeal must be dismissed. I shall hear the parties about any consequential orders that may be necessary.
| I certify that the preceding fifty-two numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: S. Grant Date: 9 March 2018 |
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