R v Mallott; R v Mallott

[2001] NSWCCA 453

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Allison Kay Mallott; Regina v Tania Maree Mallott [2001]  NSWCCA 453

FILE NUMBER(S):
60472/01
60473/01

HEARING DATE(S):            10 September 2001

JUDGMENT DATE: 10/09/2001

PARTIES:
Regina v Allison Kay Mallott
Regina v Tania Maree Mallott

JUDGMENT OF:      Sully J Carruthers AJ    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        99/41/0156

LOWER COURT JUDICIAL OFFICER:     Twigg DCJ

COUNSEL:
M. C. Grogan - Crown
T. M. Healey/R. Jankowski - Applicants

SOLICITORS:
S. E. O'Connor - Crown

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900 (NSW)
Crimes (Sentencing procedure) Act 1999

DECISION:
Leave to appeal granted; appeal allowed and sentence quashed; in lieu applicants sentenced to imprisonment for 17 months commencing 10.9.01 and expiring 9.2.03; sentence suspended and good behaviour bond imposed.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60472/01
60473/01

SULLY J
CARRUTHERS AJ

Monday 10 September 2001

REGINA  v  ALLISON KAY MALLOTT
REGINA  v  TANIA MAREE MALLOTT

JUDGMENT

1. SULLY J:  Two sisters, Misses Allison and Tania Mallott, apply for leave to appeal against the severity of sentences passed upon them by his Honour Judge Twigg QC sitting in the Goulburn District Court on 12 July last.

2. Each of the applicants was so sentenced by his Honour in connection with an offence of assault occasioning actual bodily harm. Such an offence contravenes s 59 of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of imprisonment for five years.  In each case his Honour imposed a sentence of imprisonment of eighteen months, fixing in respect of each such sentence a non-parole period of nine months.

3. Broadly speaking, two matters are advanced in support of the present applications. 

4. The first is that it was not open to his Honour to find, as His Honour did, that the assault in question had occasioned to the victim injuries in the nature of swelling and bruising to her face and scratches to her face and neck.

5. Having seen this morning the coloured photographs that were actually in evidence before his Honour, I do not think myself that that point has been made good. 

6. The second point taken, - and the point which influences me to the result which I shall presently announce, - is some material put before the Court on affidavit this morning, and of which it is sufficient to say for the record, that it discloses a state of affairs concerning the arrangements that can properly be made for the custody and full time detention of the two applicants.

7. That material is, to say the least, deeply troubling, and of such a kind that the state of affairs disclosed by it ought to be avoided, if that can be done consistently with the requirements otherwise of justice in the case.

8. It is important to maintain in cases of the present kind the simple but important proposition that assaults of the kind here in question are serious breaches of public order and are not to be treated lightly.  The relevant sentencing Judge, in my respectful view, took, as he was both entitled to and bound to do, a fairly severe view of what in fact happened in connection with the actual assault.

9. That said, it is relevant that there seems to have been no long term damage suffered by the victim; that the context of the assault was a rather tawdry domestic type disagreement; and that the ill will which caused that disagreement seems to have been smoothed out sensibly, and to have been smoothed out properly by all of the persons, the victim included, who were concerned in the whole sorry business.

10. In the whole of those circumstances, it seems to me that justice would be done in both cases by dealing with the applicants in a way which did not require them to serve, for the present, full time detention.

1. I would not myself interfere with the quantum of the sentence actually passed.  That is to say the sentence of 18 months’ imprisonment.

2. As I say again, it is the policy of the law which must be upheld, that crimes of violence of the kind here in question are to be discouraged. I think, however, that the option presented by s 12 of the Crimes (Sentencing Procedure) Act 1999 is an option which provides, in the circumstances of these two related cases, a means of doing practical justice according to the circumstances of the cases.

3. I would, accordingly, favour orders in each case as follows:

   1.          Grant leave to appeal.

2.          Allow the appeal and quash the sentence in the Court below.

3.          In lieu, sentence the applicants to imprisonment for a term of seventeen months to commence today and to expire on 9 February 2003.

4. Suspend the sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 for the period of seventeen months aforesaid. 

5. Direct pursuant to s 12 that the applicants enter into a good behaviour bond for the term of seventeen months as aforesaid; that bond to be conditioned as follows:

(i)the applicants are to be of good behaviour during the currency of the bond;

(ii)each applicant is to report, in the case of Miss Allison Kay Mallott, to the Gosford office; and in the case of Miss Tania Maree Mallott, to the Goulburn office; of the Probation and Parole Service not later than 24 hours after her release upon the bond now ordered; and is thereafter to obey all lawful directions of that Service.

(iii)the conditions required by s 95(a) and (b)(ii) of the Act.

1. CARRUTHERS AJ:  I would favour those orders.

2. SULLY J:  The orders of the Court will be as I have announced.

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LAST UPDATED:            14/11/2001