R v Rutland
[2000] VSCA 168
•7 September 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 250 of 1999
| THE QUEEN |
| v. |
| PIA ANGELA RUTLAND |
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JUDGES: | CHARLES, BUCHANAN and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 September 2000 | |
DATE OF JUDGMENT: | 7 September 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 168 | |
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CRIMINAL LAW – Sentencing – Assault – Applicant a first offender – Plea of guilty – Suspended sentence of imprisonment – Manifestly excessive – Sentencing Act 1991 (No. 49) s.27(3).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M.E. Sexton | P.C. Wood, Solicitor for |
| For the Applicant | Mr J.P. Brett | Fogarty Lawyers |
CHARLES, J.A.:
On 30 September 1999 the applicant, who was born on 30 December 1964, pleaded guilty to count 3 of a presentment which alleged that on 27 September 1998 she had assaulted Sharon Simpson. Two co-accused, Jodie Rutland and Cherie Matthews, pleaded guilty to having assaulted Erin Catherin Bubb, and a fourth co-accused, Gary Rutland, pleaded guilty to one count of affray. By direction of the sentencing judge a verdict of not guilty was entered in relation to the count of affray against the applicant, Jodie Rutland and Matthews. Each of the offences carried a maximum penalty of five years' imprisonment at the time.
On 1 October 1999 the judge heard a plea in mitigation and the Crown tendered some eight victim impact statements.
On 6 October 1999 the judge sentenced the applicant to be imprisoned for two months, the sentence being wholly suspended for a year. His Honour also sentenced Gary Rutland to eight months' imprisonment on the count of affray, the sentence being wholly suspended for two years. Jodie Rutland was sentenced to one month's imprisonment and Matthews to two months' imprisonment, both these sentences being wholly suspended for one year.The applicant now seeks leave to appeal against sentence, the only ground being that the sentence was manifestly excessive.
The facts giving rise to these offences were as follows. On the afternoon of Sunday 27 September 1998 a barbecue was to be held at 10 Whitehead Court, Warrnambool, the home of Craig Simpson and his family. A number of children were present at the barbecue. The applicant and her husband Gary and their family lived opposite at No.15 Whitehead Court. There had been trouble brewing between the Rutland family and a number of their friends and neighbours in Whitehead Court for some time and the Rutlands were of course not invited to the barbecue. The previous day one Mark Atkinson had been involved in a fight with Gary Rutland. While Atkinson was working on his vehicle in the driveway of his house at 19 Whitehead Court he heard abusive remarks being called out by the applicant, Matthews and Jodie Rutland at various people attending the barbecue at No.10 Whitehead Court. Erin Bubb, one of the people at the barbecue, moved towards the Rutland house to try to put a stop to the abuse. Cherie Matthews then shouted abuse at Bubb and moved from the front of 15 Whitehead Court to the centre of the roadway where a further exchange took place between Matthews and Bubb. Jodie Rutland then came out of 15 Whitehead Court and, following some abuse being exchanged between herself and Bubb, struck Bubb on or near her nose with her fist, causing Bubb's nose to bleed. The applicant at this time was watching the fight from some six to eight feet away.
Erin Bubb then said to Jodie Rutland words to the effect, "I don't have a problem with you, I have a problem with her", referring to Matthews. Jodie Rutland then gathered up some of the children, went inside and telephoned the police. At this time Matthews grabbed Bubb by the hair with both hands and pulled her head downwards, kneeing Bubb in the head, which Bubb described as extremely painful. It was at this point that the applicant became involved in a struggle between Matthews and Bubb. Sharon Simpson came from the front of No.15 Whitehead Court and appeared to be about to intervene in the fight then taking place between Matthews and Bubb, intending to help Bubb. The applicant said to Sharon Simpson, "You keep out of it", and took hold of Sharon Simpson by the hair. Simpson in turn grabbed the applicant's hair. They fell to the ground and ultimately a clump of hair came out of Simpson's head.
Mr Brett, who appeared in this Court on behalf of Rutland, submitted that the overall context of the offence was clearly one of long-standing mutual antipathy between the two camps involved and that it was quite fruitless to seek to describe any one person as initiating the whole or any part of the conflict. He submitted that a court should not impose a term of imprisonment and then suspend it unless the sentence of imprisonment, unsuspended, was otherwise appropriate; see the Sentencing Act 1991 s.27(3). Mr Brett relied on the following matters relevant to the applicant in mitigation. The applicant is married with five children, having left school after Second Form and then having worked until her third pregnancy. Apart from an adjourned undertaking in 1990 for possession of marijuana she had no prior convictions nor had she been guilty of any offence subsequently. She had pleaded guilty to the offence of assault and was entitled to consideration for that. Furthermore as a result of the incident the applicant and her family have had to leave their home in Whitehead Court and relocate elsewhere. In these circumstances Mr Brett submitted that a term of imprisonment was not appropriate to the offence and accordingly that the sentence was manifestly excessive.
Ms Sexton, who appeared in this Court for the Crown, submitted that the learned judge did not fail to give due weight to the circumstances of the offence, that his Honour did have regard to the circumstances including the role played by the victims, and took into account all other relevant matters. Ms Sexton submitted that his Honour was entitled to take the view he did of the circumstances and to impose the sentence that he had, and that the sentence imposed was within range and not manifestly excessive.
This Court has had the benefit of a most helpful report from the sentencing judge in which his Honour set out what occurred, including the fact that Craig Simpson was called prior to the commencement of the trial to give evidence on voir dire on Wednesday 29 September. The following day, all four defendants, as I have said, announced that they would plead guilty to certain of the charges. His Honour informed the Court that in determining to convict the applicant and sentence her to a term of imprisonment of two months wholly suspended, his Honour had regard to the largely undisputed remarks of the prosecutor in opening, the depositional materials, the victim impact statements including that of Sharon Simpson, together with submissions made by counsel. His Honour continued that:
"Essentially the brawl giving rise to the various charges was one between two factions between which there had been long-standing enmity and previous disputation. The evidence was overwhelming that the brawl was started by one or more members of the faction to which the applicant belonged. So far as the applicant was concerned it was clear that she was engaged in a fight with Sharon Simpson, the wife of the witness Craig Simpson, and that each of those two participants was pulling at each other's hair. The evidence was that the applicant actually removed a clump of the hair of her victim, Sharon Simpson."
In the course of his sentencing reasons his Honour said, before turning to sentence each of the accused individually, that -
"The type of uncontrolled lawlessness and violence which broke out on Sunday 27 September last year is something which a civilised community simply cannot tolerate. When those involved are eventually brought to justice, severe punishment can be expected, depending on the degree of involvement of each individual concerned."
I agree, with respect, with each of the comments made by his Honour previously set out. None the less, in the present case the evidence is that the applicant appeared before the court as a first offender and had pleaded guilty to the offence of the assault. In the circumstances which his Honour set out and which appear in the Crown's summary of facts, it is my view that a sentence of two months' imprisonment was manifestly excessive, and accordingly I would uphold the application. If my colleagues concur, I would substitute for that sentence an order that the applicant be convicted and discharged.
BUCHANAN, J.A.:
I agree.
CHERNOV, J.A.:
I also agree.
CHARLES, J.A.:
The orders of the Court accordingly will be that the application for leave to appeal against sentence is allowed. The appeal is heard instanter and allowed. The sentence below is set aside. In lieu thereof the applicant is convicted and discharged.
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