R v Staszewski
[2004] VSCA 176
•1 October 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 317 of 2002
| THE QUEEN |
| v. |
| PIOTR WOJCH STASZEWSKI |
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JUDGES: | CHARLES and NETTLE, JJ.A. and HANSEN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 September 2004 | |
DATE OF JUDGMENT: | 1 October 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 176 | |
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CRIMINAL LAW – Recklessly causing injury – Conviction – Whether assaults separate incidents – Whether self defence open – Conduct of trial – Directions – Sentence – Conviction and community based order for 18 months – Whether recording of conviction meant sentence manifestly excessive – Crimes Act 1958 s.18.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman, S.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr A. Furstenberg (Solicitor) | Lewenberg & Lewenberg |
CHARLES, J.A.:
Having read the reasons for judgment prepared by Hansen, A.J.A., I agree that the application for leave to appeal against conviction and sentence should be dismissed, for the reasons given.
NETTLE, J.A.:
I have had the advantage of reading in draft the reasons for judgment of Hansen, A.J.A.
I agree with his Honour, for the reasons that he gives, that the application for leave to appeal should be dismissed.
HANSEN, A.J.A.:
Applications for leave to appeal against conviction and sentence following a trial in the County Court. The applicant is Piotr Wojch Staszewski, now aged 32, who, together with his wife Andzelika and their children Alexandra and Eva, arrived in Melbourne from Poland on 6 January 2001.
On 16 January 2002 the applicant was committed for trial on eight charges, as follows: in relation to his wife Andzelika, having at Dandenong on 4 February 2001 intentionally caused injury and the alternative charge of recklessly causing injury, and three charges of rape on later dates in February and March 2001; and three further charges of sexual penetration of his children, one in relation to Alexandra and two in relation to Eva.
A presentment was filed in the County Court on 8 April 2002, containing eight counts set out in the order stated above. The proceeding got under way with a voir dire which commenced on 28 October 2002 at the conclusion of which, on 30 October 2002, the learned judge ordered a separate trial of the final three counts relating to
the children. The applicant was arraigned, pleaded not guilty to the five counts relating to Andzelika and the trial got under way, concluding on 7 November 2002 with a verdict of guilty on count 2 of recklessly causing injury and not guilty on each other count.
The matter was adjourned to the next day for trial of the remaining counts 6, 7 and 8. The trial was avoided as the Crown entered a nolle prosequi on each count.
On 20 November 2002 the learned judge heard a plea in mitigation. When the plea concluded the judge, contemplating a community based order, had the applicant assessed regarding his suitability for such an order and, after receiving a report on the assessment later in the day, sentenced the applicant as follows. The applicant was convicted and ordered to serve a community based order for a period of 18 months commencing on 22 November 2002 and ending on 21 April 2004. In addition to the core conditions the applicant was required to perform 150 hours of unpaid community work over a nine month period, undergo assessment of treatment for alcohol or drug addiction or submit to medical, psychological or psychiatric assessment and treatment as directed, submit to testing for alcohol or drug use, undertake a course in anger management, and be under the supervision of a Community Corrections Officer.
On 4 December 2002 the applicant filed notices of application for leave to appeal against conviction and sentence. The grounds of appeal against conviction were general in nature and, instead of them, counsel for the applicant, who did not appear for the applicant at the trial, sought leave to rely on other grounds. The Court and the Crown were informed of the new grounds, and of the abandonment of the original grounds, on 30 August 2004 only two days before the hearing of the application. The Crown opposed the application to substitute new grounds. After hearing counsel for the applicant, and having read the Crown’s written objections, the Court indicated it would hear argument while reserving its decision on the question of whether to allow the grounds to be amended. The new grounds are:
a)The conviction in relation to count 2 (recklessly causing injury) is uncertain and afflicted with latent duplicity.
b)The trial in relation to count 2 miscarried as a result of the failure of the judge to direct the jury on the issue of self-defence.
The appeal against sentence is based on the sole ground that the sentence was manifestly excessive. More particularly, as counsel stated in his submissions, the complaint is that a conviction was recorded as distinct from the mere imposition of a community based order. Counsel conceded that it was open to the sentencing judge to impose a community based order.
Count 1 of intentionally, and 2 of recklessly, causing injury arose out of an incident which occurred after a barbecue which the applicant and his wife and children attended in the Doveton area on 4 February 2001. I now refer to the evidence in so far as it concerns those counts, commencing with Andzelika.
Andzelika said that her parents, with whom the applicant and his family were living, also attended the barbecue. The parents in their car and the applicant and his family in another car, left the barbecue in the evening. The applicant had consumed alcohol. Andzelika described him as being “very drunk” when they left. Andzelika drove with the applicant along side her in the front and their children in the back seat. Andzelika’s parents were driving ahead of them. In evidence Andzelika said that while they were driving the applicant made a remark concerning her mother, according to her saying that her mother behaved like an old idiot to which she responded that he should not speak of her in that way. Andzelika indicated that she may not have been speaking calmly, that the applicant possibly misunderstood what she said, she did not say anything bad about his mother, that the applicant said are you saying my mother is a slut and hit her on the left side of her head so that her head hit the right side window. She lost control of the steering wheel, the car hit the kerb and she stopped the car. She told the applicant to calm down but he got out of the car and grabbed the children and started carrying them away. Andzelika screamed and started running after him. She caught up with him and started pulling the children from him, they were screaming and crying. The applicant got very upset, put Eva down, grabbed Andzelika by the hair at the back of her head and pulled her towards a house and banged the back of her head against a high brick fence. After two or three hits she slipped to the ground. She was dizzy, felt nauseous and was unable to get up and run after the children.
In the meantime Andzelika’s parents had stopped their car. Andzelika said that while she was on the ground she saw her father running towards the applicant shouting “what are you doing”. Then her mother arrived, people came out of a flat and the police arrived. Her father put the children in his car to calm them down and he tried to tell the applicant to calm down. The police said to Andzelika that the applicant was drunk and the best thing was to go home. However the applicant became abusive and he was arrested and spent the night in custody.
As to injuries, Andzelika said her left ear was very swollen and bleeding, she had a terrible headache and she referred to three bumps on her head. She vomited when she got home. X-rays showed her head was alright but headaches continued for a long time.
In cross-examination Andzelika acknowledged that in her statement to the police she said that the applicant hit her maybe two or three times in the car, but when asked if it was once, two or three times she said she could not remember. It was violent and unprovoked. She was further tested on her evidence in chief and in particular as to differences with her statement to the police and evidence of the doctor she attended the next day. She denied having hit the applicant in the car. When they were out of the car and she was trying to take the children from him there was pushing and shoving. She denied that they both fell against the wall.
Later in the trial Andzelika was recalled for the purpose of the applicant’s counsel putting to her certain matters in the applicant’s record of interview. In brief re-examination she denied that she had hit the applicant, all she tried to do was pull the children away.
In his evidence, Andzelika’s father, Jacek Juan Sliwinski, said that when he stopped his car and went towards Andzelika’s car she was lying on the ground and the applicant was standing above her. She was screaming. The applicant grabbed the children and started running away with them. He chased the applicant and took the children from him. At home he saw bruises, lumps and general scratches on Andzelika’s head. In cross-examination he said, among other things, that when he first saw Andzelika it was dark and from six or seven metres in the car lights it is possible that she was crouching or kneeling. He further said that the applicant’s hand was wrapped around her head. It was 11.00 pm. Andzelika was screaming “leave me alone, why are you doing this”. He did not see her head being hit against the wall.
Andzelika’s mother, Barbara Sliwinski, said she got out of the car after her husband. She saw Andzelika lying next to the wall, bleeding, and the children were screaming. The applicant was standing “right next and he was in some kind of shock”. She did not see what had happened.
The doctor who saw Andzelika on the following day, Janos Tuszynski, gave evidence. On examination he found a tenderness on the right side of the skull and face, starting from the temple area to the top of the skull, and the left side of the face was swollen. The incident having been followed by vomiting, it might have been a serious injury and an x-ray was taken of the skull to detect any fracture. There was no fracture and he did not prescribe medication. What he found on examination was consistent with her history of being hit on the left side of the head and being pushed against a wall which she struck with the right side of her face. There was visible swelling on the scalp and on the side of the face.
The applicant gave evidence. His evidence in chief was very short, and included the following. He had told the truth in his record of interview. Then, he denied he hit his wife in the car. He said that her evidence that he pushed her head into a wall two or three times was “complete rubbish”, and he denied that he grabbed her by her hair, by her head and banged her head against the wall.
In cross-examination the applicant said that his wife had hit him. He also said that his mother in law hit him, he did not know how many times, maybe 30, 50, only stopping because she got tired. He said that the argument in the car did start with him saying that his mother in law was behaving like an old idiot at the barbecue.
In brief re-examination he was not asked as to Andzelika hitting him or as to his reaction on being so hit.
In his record of interview the applicant gave a number of answers concerning the incident. To question 70 he denied hitting his wife in the car two or three times saying that she had hit him. Then, to question 71, he said that “after my wife hit me maybe – maybe I did hit her back. Maybe that I have hit her back, but I hit her in the shoulder. I can’t remember everything exactly”. He added that his wife and parents in law “simply made it up”. Then, when the car stopped, they got out and started to argue about her mother and his wife kept calling his mother a whore and whatever, then he did not want the children to be in an argument so he took Alexandra in his arms and asked Eva to come out. He was going to take them “further out”, and his wife “still verbally abusing me, was trying to pull . . . the child out of my arms. And then some pushing and shoving took place except I only had one hand because I was holding the child . . .”. He then said (to question 80) that “I did then push my wife and then she did sort of hit against the wall. She lost her balance and hit against the wall.” He was then asked, what happened then? His answer referred to actions of his parents in law. They ran up, his father in law “holding me from the back and so I put the children down on the … ground and then … my mother in law run up to me and she started to call me, “You … and you are sadistic”, and she started to hit my face with the fists …”. He made further references to his mother in law in answer to the following questions until in question 87 Andzelika’s account was put to him. Later, in his answer to question 90, he said that Andzelika might have had some bumps on her head.
Further on in the record of interview, in answering question 101, the applicant said that he did not say that he had hit his wife, she wanted to pull the child out of his hand and she started to hit him. Finally, for present purposes, he was asked at question 116 if he wanted to say something else about the assaults. He said:
“I wanted to say when I was holding the child in my arms my wife was trying to pull the child out of my arms. She was trying to get the child from me, so she was using all sorts of ways to do that. Hitting me and – and what ever. I also was fighting back with her, so maybe if the medical reports show that she did have some marks or some bumps, maybe she did, because that’s what happened during the time that we were both fighting together, but I never intentionally hit my wife and . . . . . . . what I have – what I remember and also my wife . . . . . . although she has . . . . . . . . I pushed her and I – I pushed her and – and – and she fell onto the wall. The wall was not close by that I hit her against the wall. It’s just that she lost her lost her legs and that’s when she hit the wall and – and . . . that I hit her – her head against the wall, that’s – that’s not true . . . . . . . .”
I turn from this summary of the evidence insofar as it concerned the counts of intentionally or recklessly causing injury to the grounds of attack on the conviction.
The first ground is that the conviction is uncertain and afflicted with latent duplicity. The argument, relying on R v Trotter[1] went along these lines. There was no dispute that there was an argument in the car. Andzelika gave evidence of being hit which the applicant denied, however he told the police that he may have hit her in the shoulder. Then, following the car being stopped, Andzelika said the applicant banged her head against the wall, which the applicant denied giving an account of what happened in the answers referred to above in his record of interview.
[1](1982) 7 A. Crim. R. 8.
It was submitted that the incident in the car and the incident on the footpath, although close in time, were two separate and distinct incidents in time, place and circumstances. As there were not separate counts in relation to each incident, it was not possible to discern from the verdict whether the jury was unanimous in relation to Andzelika’s injury being caused by the incident in the car or the incident on the footpath. Some jurors may have been satisfied that the injury was caused in the car, while others may have been satisfied that the injury was caused by the incident on the footpath. The situation is further complicated by the fact that some jurors may have been satisfied that the footpath incident was an accident, in that, in essence, Andzelika merely slipped and fell in the course of pushing and shoving. Further, if the applicant is permitted to rely on the ground concerning self-defence, and that ground is upheld, the jury should have considered self-defence in relation to each incident.
In my view the submission must fail for the following reasons
The Crown conducted the trial on the basis that what occurred in the car and after the car had stopped was one transaction as a consequence of which Andzelika suffered injury. The learned judge charged the jury on that basis. Shortly before referring to the evidence as to what happened in the car and outside it, as one overall and continuous episode, the judge told the jury that it was for them “to determine whether the actions of the accused … resulted in what you would call injury”. Then, after a short adjournment following that portion of the charge, counsel for the applicant raised with the judge a “matter we need to think about a little bit” stating that he had understood the prosecutor in his address to the jury to have “elected to rely on the footpath incident”. He said that he might have misunderstood what the prosecutor said but he was concerned about a lack of certainty in the jury as to which facts they are relying on, in other words different incidents. Half the jury might think the applicant committed the act in the car, and the other half might think he committed the act on the footpath. That is to say, the act of intentionally or recklessly causing injury to his wife.
This is the point of the submission now taken in the proposed substitute ground of appeal. What I now do is set out how the point raised by counsel was dealt with at the trial. I note that the Court does not have the benefit of a transcript of counsel’s addresses in order to see the terms in which they addressed the jury. That is because of the extremely late raising of the new grounds of appeal. It is therefore to the exchange in the course of the judge’s charge that one must go for clarification.
When counsel raised the point the judge asked if he had gone to the jury on that basis. Counsel said that he had, that he put to the jury that they were only being asked to convict on the footpath incident; he understood that is what the prosecutor said. His Honour indicated that he had not understood that. Counsel for the applicant then said that in the end it was a matter for the judge. It was a question whether the judge “is comfortable with the jury relying on a passage that starts in the car and finishes on the footpath which involve multiple activity, I would be asking that they be satisfied either as to the car as founding the factual basis for the incident, or banging her head against the wall. It would not be fair for him to be convicted where there are two schools of thought in the jury as to whether he did one or the other”.
In answer the prosecutor said that he could not understand why counsel said that he had elected to rely on the head being hit against the wall in his final address. He did not recall saying anything that would clearly indicate that he was limiting the case to any particular incident. The Crown “says that this was a causing of injury and the Crown case is that she was struck in the car; the right side of her head hit the window. I opened that; I led it; and she was then - had her head struck into the wall”. That, he said, was always the Crown case. The judge said that he was under no misapprehension as to that nor in the way in which counsel for the applicant “had addressed the jury by way of attack. You have got to be satisfied beyond reasonable doubt …”. To that the prosecutor responded “Yes, but he confined it to the wall and laid that at my feet. I don’t really understand why he did that, except, I expect, he’s going to say it was something I said which confines it”. The judge then asked counsel for the applicant if he had any other matters to which counsel said no, adding that:
“Would Your Honour just turn Your Honour’s mind to just before you commence the next part of your Honour’s charge if there is that risk of them coming to different views on different facts, but if the Crown has put it as a single incident which I understand my friend says he has and I’ve, in effect, somehow not addressed a bit on the car through misapprehension of what he said, and your Honour has put it quite properly to the jury they have got to be satisfied beyond reasonable doubt the facts made out, if Your Honour is comfortable with that I am.”
To that the judge observed, and counsel for the applicant appears by the transcript to have agreed, that it would complicate things and counsel then thanked his Honour.
After a short break the judge continued with his charge. He did not give a direction as to the risk referred to by counsel.
Consistently with the way in which the matter was concluded in the discussion referred to above, counsel for the applicant did not press the judge that the Crown should elect as to which part of the incident it relied on, submit that there was duplicity in the presentment in allowing the jury to consider counts 1 and 2 as they and the evidence stood, or otherwise require a ruling to avoid the risk of the confusion or uncertainty he had mentioned. Indeed, the trial proceeded and counsel did not return to the point.
The case of R v. Trotter which the applicant’s counsel relied on before this Court (and which was not mentioned to the judge) is a different case. There the accused, who represented himself, had been convicted of unlawfully and indecently assaulting a 12 year old male. There was only the one count. At the trial the child gave evidence of an assault while he was lying on a bed watching television. Then, in re-examination he mentioned an indecent assault which had occurred earlier. The conviction was set aside on the following basis. The assaults constituted separate incidents each of which was capable of being adjudged to be an indecent assault, but the prosecutor had not specified which assault was the indecent assault the subject of the count of indecent assault, and the judge did not direct the jury how to deal with the situation. Thus, it was uncertain whether the jury was unanimous as to what constituted the indecent assault. There had been a miscarriage of justice and a new trial was ordered. There were other issues in the appeal that are not relevant to the present case.
The present is not a case of indecent assault and of two unconnected incidents. The present is a case of recklessly causing injury without lawful excuse. As put to the jury Andzelika suffered injury as a result of that which commenced in the car and concluded on the footpath. In a real and immediate sense it was the one, or a continuous, episode. As counsel for the Crown stated, it would have been artificial and unfair to the applicant to have included separate counts for what occurred in the car and separate counts for what occurred outside the car. It was submitted, and in my view fairly so, that the applicant’s counsel at the trial understood and accepted that counts 1 and 2 were based on the one transaction. For these reasons, and having regard to the actual conduct of the case at trial, I am of the view that the proposed ground of appeal must fail.
The second proposed ground is that the judge failed to direct the jury on self-defence.
In the charge, in dealing with the element of “without lawful excuse”, the judge explained that this primarily referred to self-defence. He said that there was no need to go into a definition of what is involved in self-defence “because there is no suggestion that the accused was acting in self-defence, whatever occurred”.
It was submitted that the judge was in error in this respect. Counsel based his submission on a part of the applicant’s answer to question 116 in his record of interview, which the judge referred to in charging the jury, as follows:
“ … she wanted to pull the child out of my hand and she started to hit me … I was also fighting back with her … I never intentionally hit my wife … “.
In explaining his submission, counsel said that no question of self-defence arose concerning what happened in the car. That, it might be observed, is notwithstanding that in answer to question 70 in the record of interview the applicant said that his wife hit him, when they were in the car. Then, as to what happened on the footpath, counsel conceded that the applicant denied having hit Andzelika, saying also that there was pushing and shoving, he pushed Andzelika and she lost her balance and hit the wall. But in the answer to question 116 he referred to Andzelika hitting him and to him fighting back and that if she suffered marks and bumps it happened when they were fighting together, but he never intentionally hit her. He submitted that the account in that answer raised self-defence as an issue and, that constituting a basis on which a jury could conclude that the applicant believed on reasonable grounds it was necessary in self-defence to do what he did, the judge was bound to direct the jury that the Crown had to prove the accused did not act in self-defence and to give such other related directions as were appropriate. Counsel referred to R v. Kear[2] as an instance of a verdict being set aside where a judge had, as in this case, not left self-defence to the jury. As to the elements of self-defence, see R v. Zecevic[3].
[2][1997] 2 V.R. 555.
[3](1987) 162 C.L.R. 645.
In the present case counsel at the trial did not seek a direction as to self-defence. Nor did he raise any exception to what the judge had said concerning it. Nevertheless, it was submitted on this appeal, that the authorities (including Kear) establish that a judge remains bound to appropriately instruct the jury if self-defence is open.
The submission requires close attention to the conduct of the trial. While in cross-examination Andzelika was tested on aspects of her account, she was asked and denied that she had hit the applicant in the car, and whether outside the car there was a pushing and shoving situation which she agreed there was. The suggestion made to her was that in this pushing and shoving situation “near the wall, that he only had you by one arm, his other arm was around Ola and that you also had hold of him and that you both fell against the wall, in effect?”, to which Andzelika said that she had said nothing about them falling against the wall. To the next question she denied that was what happened.
That is how the applicant’s case was put to Andzelika in cross-examination. It was not put to her as a case of self-defence. The applicant’s account in answer to question 116 was not put to her. Nor was his account in answer to question 101 of her starting to hit him. What was put to her can be discerned in the record of interview. But it is as clear as can be that not all of the applicant’s version of events in the record of interview was put to Andzelika.
On the following day Andzelika was recalled for the purpose of the applicant’s counsel putting something to her more accurately than he had the previous day. Counsel then went to the applicant’s answer to question 116. He read it to and including “I never intentionally hit my wife”, and asked Andzelika if she agreed with the applicant’s statement; she did not agree. Counsel then referred to the next passage in the answer commencing “I pushed her and” to “that’s when she hit the wall”, and suggested that she lost her balance after he pushed her and that she then hit the wall. In effect her answer denied the proposition. She observed that you would not believe that you can sustain three bumps on the head just by falling against the wall or getting hit with a fist.
Counsel then went back to questions 78 and 79 which in essence was the case that counsel had put to Andzelika the previous day. That was the scenario of her trying to pull the child out of the applicant’s arms, and of pushing and shoving but with the further statement in answer to question 80 that he pushed her and that she “sort of hit against the wall. She lost her balance and hit against the wall”. To the question whether she disagreed, she did not answer in terms, saying the applicant was drunk and as such was not able to determine correctly the situation he had been part of. She had been sober but it was a long time ago and could not remember all details.
In re-examination that followed Andzelika denied having hit the applicant. She said she saw no sense in fighting a drunk man, she was trying to pull the children away.
The situation is then that there are the statements in the record of interview that Andzelika was hitting the applicant, that he was fighting back, that they were fighting together and that he never intentionally hit her. That is followed by the statement that he pushed her and to her hitting her head on the wall. Then, in his address to the jury, following the applicant having given evidence, his counsel did not raise self-defence. Nor did the judge do so because in his view of the case self-defence did not arise, and no exception was taken to the charge in this respect. It is evident that the experienced counsel was of the same view as the judge that self-defence was not an issue. There were doubtless good reasons for counsel taking that approach. For one thing, the record of interview contains a confusion of possibilities. For another, there was the likelihood of the jury not accepting the applicant’s account as correct in view of his intoxicated state. For another, there was the forensic disadvantage in pressing a case that had the applicant taking to his wife with physical force for fear the jury might more readily accept her account that he hit her head against the wall, with the consequent risk of the first count of intentionally causing injury being established. It was in the applicant’s interest to down play any application by him of physical force. It is true that counsel finally put the applicant’s answer to question 116 to Andzelika but when he did so it was but barely put and no cross-examination at all was developed on it or on the answer to question 101 in which the applicant said that Andzelika started to hit him. Not only was it a bare putting, which was essential, and the absolute minimum, to avoid a Browne v. Dunn comment generally, but self-defence was never thereafter mentioned. Finally, there is the fundamental difficulty in these circumstances of finding a realistic basis on which the applicant could avoid a conclusion that he had no belief or reasonable grounds for believing that he was acting in self-defence in banging his wife’s head into the wall or otherwise hitting her with such force that she suffered the clearly established injury. In these circumstances the submission by the Crown that self-defence was not a live issue is understandable and a realistic and accurate assessment of the case as it was conducted at trial.
It is further to be noted that although in his evidence in chief the applicant said that his statements in the record of interview were true, his evidence in chief was very short and, relevantly, to direct questions, denied having hit Andzelika in the car, denied having pushed her head into a brick wall three times and denied having grabbed her by the hair and banged her head against the wall. That was it. He said nothing about acting in self-defence. There was no elaboration of the alleged hitting by his wife and of his actions in relation to it. His counsel asked him nothing as to his statements in answer to questions 101 and 116 as to Andzelika hitting him, and thus did not develop an account which informed the jury of physical danger he was in and to which he responded by way of self-defence.
In his charge to the jury the judge described the defence case in the following way[4]. First, as to the events in the car, the applicant denied any deliberate intentional hitting in the car although he did say that he may have hit her on the shoulder. Secondly, what happened outside the car was an accident, not deliberate or intentional. In particular, in dealing with what happened outside the car the judge said:
“In so far as the street incident is concerned, Mr Papas said to you that his client accepts the fact that there was some pushing and shoving, that you should accept the fact that she struck the wall when she lost her balance, but that was not a deliberate act by the accused towards her, that she could have sustained what the doctor observed at the stage that she came in contact with the wall. And in any event his client has denied that he had any intention of causing injury to her, no intention at all of causing any injury, and consequently you should find him not guilty in relation to the first and the second counts.”
[4]Transcript pp. 423 and 430.
In my view the judge was correct in his approach. Self-defence was not an issue, indeed in my view it was not open in the whole of the circumstances as the case was presented to the jury. The present argument that the judge should have instructed the jury on self-defence is tantamount to a request for an opportunity to re-run the case on a basis that was clearly deliberately not run at trial and upon which in my view it was not open to do so. I would reject the proposed ground.
I note that the Crown relied on the proviso in case it was considered that the judge should have left self-defence to the jury. It is unnecessary to consider this aspect. I would grant the application to substitute new grounds of appeal, but reject both grounds.
That brings me to the application for leave to appeal against sentence. As mentioned earlier, the complaint is not against the imposition of the community based order but against the recording of a conviction. It was submitted that in the circumstances the recording of a conviction (with or without a community based order) was not an available sentencing option.
In seeking to establish the submission counsel referred to s.8 of the Sentencing Act 1991 which deals with the discretion whether to convict. He particularly focussed on sub-s.(1)(c) which requires a Court, in exercising its discretion whether or not to record a conviction, to have regard to all of the circumstances of the case including the impact of the recording of a conviction on the offender’s economic or social well being or on his employment prospects. It was submitted that the judge had failed to regard, or sufficiently regard, the applicant’s age, lack of prior convictions, solid work record, short period in Australia, the effect a conviction may have on his prospects for future employment and permanent residency in Australia, on his position in the proceedings in the Family Court, the relevantly minor nature of the injury, that he spent a night in custody, and had suffered the experience of the trial.
The plea in mitigation had covered these matters to the point where counsel submitted that the judge could consider a bond or a fine but, if he considered they were “too low”, he asked that the judge have the applicant assessed to do some community work. That concluded the plea. The judge was then, at his request, told that the attitude of the Crown was that sentencing options above an adjourned undertaking were open; a bond or fine was not appropriate in the circumstances. The judge agreed with that and asked if a community based order would be opposed, which it was not. The judge then stated that he would have the applicant assessed for such an order. He then proceeded to state his views upon the offence which he described as “an incident in which a drunken person took to another person, who was his wife and in the presence of their two children, attacked the wife and as a result of the physical violence that applied to her, she did, in fact, receive injuries”. It was, the judge said, probably fortunate that the senior member of the family intervened. He referred to the injuries suffered, to the victim impact statement, said that the matter was serious, that the verdict negatived an intention to cause injury which was an important consideration, and referred to personal matters concerning the applicant. Although in this last respect he did not expressly mention every matter mentioned in the plea, it cannot be supposed that the judge did not have such matters in his mind. His Honour then concluded that the most appropriate sentence was to release the applicant on a community based order with a conviction. Counsel for the applicant then thanked his Honour and discussed resuming the matter later that day.
The applicant was then assessed and, following preparation of a report, the parties returned to Court later in the day. The report stated that it was with reservations that the applicant was considered suitable for a community based order, and the conditions mentioned earlier were recommended.
In those circumstances, on the resumption it became apparent from counsel’s remarks that there was a difficulty with the conditions pertaining to drug or alcohol treatment and anger management. That is, the applicant had difficulty in accepting such conditions. The judge observed that the tenor of the report would appear to indicate that he was not suitable for a community based order and asked counsel if he wanted time to consider the position, because the next step up the scale did not leave the Court room to swerve. Counsel said that he was instructed that the applicant wanted a community based order. In the discussion that followed the judge stated that he was not minded to grant the order. Counsel then requested time to speak to the applicant, following which the applicant gave evidence stating that he was prepared to accept the community based order conditions. The judge then imposed the sentence complained of.
It is thus seen that, in the end, the judge having made his view clear, the applicant acquiesced in the sentence knowing that it involved the recording of a conviction. The alternative, as the judge indicated, was imprisonment as nothing less than the sentence imposed was sufficient for the offence. Apart from that, the case is one in which it was plainly open to the judge, in the proper exercise of the sentencing discretion, to determine that a conviction be recorded. It is true that he did not expressly refer to s.8 but that was doubtless because of the way in which the matter was dealt with, including the concurrence of the applicant. In any event, the fact is that the judge did refer to matters of the type referred to in sub-s.(1)(c) and otherwise must be taken as having had in mind the requirements of that provision and the matters stated in the plea.
For these reasons the application for leave to appeal against sentence must fail.
In my view each application for leave to appeal should be dismissed.
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