Reynolds, David Brian George and Reynolds, Lyle David v Keygan, Peter John and Brown, Graeme Maxwell

[1998] TASSC 81

81/1998

PARTIES:  REYNOLDS, David Brian George
  v
  KEYGAN, Peter John

BROWN, Graeme Maxwell

REYNOLDS, Lyle David
v
KEYGAN, Peter John
BROWN, Graeme Maxwell

TITLE OF COURT:  SUPREME COURT OF TASMANIA

JURISDICTION:  APPELLATE
FILE NO/S:  LCA 51/1998

LCA 50/1998

DELIVERED:  9 July 1998
HEARING DATE/S:  2 July 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - Hearing of different charges against the same or different persons - Against different persons - Hearing separately - Evidence relevant to sentencing produced at trial of co-offender - Whether this evidence may be taken into account in sentencing if not challenged after opportunity given to do so.

Aust Dig Magistrates [108]

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Miscellaneous matters - Provocation - Not significant mitigating factor in sentencing - Provocation not true motivation for conduct - Sentence not manifestly excessive in the circumstances.

Aust Dig Criminal Law [842]

REPRESENTATION:

Counsel:

First Applicant:  S Hammond
             Second Applicant:  In person
             Respondent:  L A Mason
Solicitors:
             First Applicant:  Piggott Wood & Baker
             Second Applicant:  In person
             Respondent:  Director of Public Prosecutions

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  81/1998
Number of pages:  7

Serial No 81/1998
File No LCA 51/1998
File No LCA 50/1998

DAVID BRIAN GEORGE REYNOLDS v
PETER JOHN KEYGAN and GRAEME MAXWELL BROWN
and
LYLE DAVID REYNOLDS v
PETER JOHN KEYGAN and GRAEME MAXWELL BROWN

REASONS FOR JUDGMENT  COX CJ

2 July 1998

The applicants have filed separate Notices to Review the sentences totalling five months' imprisonment (the execution of the last two months of which were conditionally suspended) which were imposed on each of them on 28 May 1998.  The applicants were jointly charged with trespassing upon land at Southport.  Lyle Reynolds was charged with assaulting Julie Anne Dobson by grabbing her hair and dragging her across a room, by hitting her to the head with his hand, by grabbing the telephone from her hand and by punching her in the chest.  He was also charged with having assaulted Peter Charles Gordon at the same time and place by grabbing him by the shoulder and wrestling him to the ground and by grabbing him around the neck with his hands and pinning him down.  David Reynolds, who is Lyle Reynolds' son, was also charged with assaulting Julie Anne Dobson by grabbing her by the shirt and lifting her off the floor and assaulting Jamie Charles Gordon by punching him twice to the head with his fists.  A further charge against both Lyle and David Reynolds was that they assaulted one Mark Kearney by punching him numerous times to the face, head and body and by kicking him numerous times to the face, head and body.  Lyle Reynolds pleaded not guilty to the charges against him and as David Reynolds pleaded guilty, the proceedings against him were deferred until the trial of his father had been completed.  The learned magistrate found those charges proved.

After hearing a statement of the facts from the prosecutor and a plea in mitigation from counsel on behalf of David Reynolds and a statement from Lyle Reynolds, who was by this stage unrepresented, the learned magistrate imposed the following sentences:

-Lyle Reynolds was sentenced to two months' imprisonment for the assault on Miss Dobson and that on Peter Gordon; three months' imprisonment cumulative thereon for the assault upon Kearney (the execution of the last two months being conditionally suspended); and five months' imprisonment in respect of the charge of trespass, to be served concurrently with the previous sentences, but the execution of the last two months of that sentence was likewise conditionally suspended.

-David Reynolds was sentenced to two months' imprisonment on the complaint alleging that he assaulted Miss Dobson and also Jamie Gordon; three months' imprisonment cumulative thereon for the assault upon Kearney (the execution of the last two months being conditionally suspended); and, like his father, five months' imprisonment in respect of the charge of trespass to be served concurrently with the earlier sentences, the execution of the last two months thereof being also conditionally suspended.

The net effect was that each applicant received sentences totalling five months' imprisonment, the execution of the last two months being suspended.

Briefly, the facts were these.  David Reynolds had been charged with assaulting Julie Dobson and/or Jamie Gordon in December 1996.  He was to appear at a Court of Petty Sessions on 21 August 1997.  On 17 August 1997 he had a telephone discussion with his mother, who advised him that a female, who she thought was Miss Dobson, had telephoned her and said, "If David doesn't go to court on Thursday he will be just as dead and cold as his sister".  The reference to David Reynolds' sister was distressing to all the family as she had died in tragic circumstances in 1990.  David Reynolds received his mother's telephone call while attending a social function at the Kermandie Football Club and shortly thereafter he met his father, a brother (Corey) and a fourth man (Dale Norris) at the Dover RSL Club.  All four men then travelled to the home of Miss Dobson and Jamie Gordon at Southport, arriving at about 8.45pm.  Miss Dobson's two younger sons were present in the house.  The prosecutor made the following statement of facts:

"As the four men arrived Julie Dobson went to the door and asked what they wanted and told them they could not come in and told them to go away.  At this Corey Reynolds pushed her out of the way and pushed past her into the house.  At this time he stated, ‘Where’s Jamie?’.  All four men then went across the loungeroom to where Jamie Gordon was seated on the couch.  The men accused Gordon of making threats by telephone to Mr Lyle Reynolds’ wife.  At this time David Reynolds made threats to Julie Dobson to make her drop the assault charges against David Reynolds.  At this time Mr Lyle Reynolds grabbed Jamie Gordon by the shirt front, while David Reynolds commenced punching him to the head.  At this time Dale Norris and Corey Reynolds stood back while the assaults occurred and then left the premises.  Julie Dobson then attempted to pull Mr Lyle Reynolds away from Jamie Gordon which resulted in her being assaulted.  The assaults continued for some time on Jamie Gordon and on Miss Dobson by both defendants.  During these assaults two windows were smashed at the premises.  Twice during the assaults Julie Dobson attempted to telephone for help.  On one occasion Mr David Reynolds hung up on her and on the other occasion Mr Lyle Reynolds grabbed the ‘phone from her and pushed her in the chest back over a coffee table.  Whilst the attack was in progress one of Julie Dobson’s children was able to telephone her employer, Mr Mark Kearney, for help.  By the time Mr Kearney arrived the defendants were still at the house.  At that time the complainant, Mark Kearney, who is the licensee of the Southport Tavern, had a ban on David Reynolds from entering the tavern.  As Mark Kearney walked into the house David Reynolds said to him, ‘You’re the one who barred me from the pub.’, he immediately grabbed Mr Kearney by the chest and punched him in the face.  At this time Mr Lyle Reynolds also approached Mr Kearney, for some time Mr Kearney attempted to defend himself while both defendants continued a violent attack on him.  At one state Mr Lyle Reynolds was sitting on top of Mr Kearney while David Reynolds kicked him about the head and body.  After Lyle Reynolds got off Mr Kearney David Reynolds then further kicked Kearney in the face several times.  At this time the defendants stated that they were going to come to the tavern every night and this was going to occur every night.  At this time Jamie Gordon’s parents, Peter and Marlene Gordon, who were also called to help, arrived at the house.  As they arrived the defendants accused Peter Gordon of making telephone - threatening telephone calls to Lyle Reynolds’ wife.  At this time Mr Peter Gordon was assaulted by Mr Lyle Reynolds.  After a short time the complainants and the defendants separated and the complainants were able to get inside the house, at this time the defendants followed them to the door and there remained in the yard for a few minutes before leaving.  I can indicate that the assaults took place over a twenty to thirty minute period and most of the assaults occurred with violence and with both defendants attacking a single complainant at the same time.  They are the facts, your Worship."

The prosecutor then submitted Victim Impact Statements.  One prepared by Miss Dobson described an injury which she suffered to her foot and mentioned the fact that she had been referred to a plastic surgeon to have surgery on it to remove blood clots.  When reference was made to this statement, counsel for David Reynolds was given the opportunity of reading it and said, "I take issue with one point Miss Dobson makes in relation to the injury to her foot and the surgery which is required.  I don't think that forms the particulars of any charge before the court."  There followed this exchange:

"HIS WORSHIP          She did advert to it, though, didn’t she.  She said in her own evidence that because she was attempting to get in the way of the kicks on Kearney that she was struck, I think that was how she said it happened, that she was struck in the foot by, I think, your client it would have been and suffered that injury and described it in similar terms, that it needed surgery for blood clots.  I think that is what she said.

COUNSEL:     Yes, unfortunately I was not present when that evidence was given so I am unaware of that allegation.  So,  -  

HIS WORSHIP  I’ll just find it -  Yes, right at the end of her examination in chief she said that she had fallen towards the couch, the phone is out of sight of there, there was a lot of screaming, mention of death threats and 'I need surgery on my foot for clots from the bruising where I was trying to block the kicks of Mark Kearney and I had injured fingers'.  So, although no defendant has been charged with assaulting her in that respect it is fair to say that the evidence suggests that those injuries arise out of the assault on Kearney and I would need to be persuaded that I -"

Unfortunately the tape ended here and there seems to be some gap, for the next entry on the transcript is a question from the learned magistrate, "The seriousness of the whole incident?" to which counsel replied, "Yes, your Worship, I'm not in a position to take it any further."  Counsel was then invited to present the plea in mitigation.

He referred first to an incident in December 1996 which gave rise to the assault charge which was due to be heard in Petty Sessions on 21 August 1997.  He told the learned magistrate that when that case was ultimately heard, David Reynolds had, in fact, been acquitted of it.  Counsel then adverted to the telephone call believed to have been made by Miss Dobson and said that David Reynolds was outraged by it.  He was also very bitter about the incident which was before the court a few days later.

At this stage the learned magistrate referred to notes taken at the trial of Lyle Reynolds which suggested that it was Jamie Gordon who had been accused of making death threats.  Counsel reiterated that his client believed the telephone call came from Miss Dobson.  His Worship rightly pointed out that the evidence on the trial was not evidence against David Reynolds, and said:

"If this is disputed and it’s plainly material then I must hear evidence on the issue.  But I’m telling you what the evidence is at the moment and it’s for your client to make a decision on that.  Insofar as the defendant Lyle Reynolds is concerned I will be treating the matter on the basis that it was Gordon who was thought to have made the threats and that makes it appear at the moment to be, insofar as your client is concerned, particularly unconvincing a reason to have attacked - well perhaps I should rephrase it, I was going to say to have attacked Gordon - a particularly unconvincing reason to have gone to the home, and on your client’s version, to have attacked Gordon.  He’s saying it was Dobson that was the one that was thought to have made the threats."

Counsel observed that it was obviously a matter of dispute, whereupon the exchange continued:

"HIS WORSHIP          I mean one is entitled to be very suspicious about whether there ever was any such phone call.  I wouldn’t go so far as to say that I would resolve the case on the basis that there wasn’t because I can’t be satisfied beyond reasonable doubt that there wasn’t a phone call either to Mrs Reynolds or from her to David Reynolds.  But from all that happened when they got there it looked to me - or it looks to me as though the real motivation was to frighten Dobson and Gordon out of pressing the complaint against David Reynolds for assault, because that seems to have been the main - once the assault started.  That’s the impression, strong impression, I’ve got from the convincing evidence from Dobson and others. But anyway - - -

COUNSEL:     Well my submission is, sir, simply that, that the reason why they went there was because of the threat received by Mrs Reynolds by that phone call.

HIS WORSHIP  Well I’ll hear the rest of your submission and then if necessary I’ll come back to the issue of whether or not that needs to be resolved."

After hearing submissions about the antecedents of David Reynolds and a repetition by counsel of the proposition that the reason his client went to Miss Dobson's house on that day was to find out why the threats had been made to his mother, the learned magistrate returned to the disputed issue of the phone call, and said:

"Subject to any further submission I intend to resolve this so far as the sentencing of David Reynolds is concerned on the basis that he thought it was Dobson who was suspected of making a phone call but that that had so little impact upon him that he did not ever remonstrate with Dobson about the phone call and directed his attention exclusively to Gordon motivated by an attempt to terrorise Gordon, and possibly Dobson as well, out of proceeding with their complaint of assault against him.  Are there any submissions?"

Counsel replied, "No, sir."  After giving Lyle Reynolds the opportunity of making submissions as to penalty, the learned magistrate adjourned the matter until 2.15pm that day.  Before adjourning, he made the following statement:

"HIS HONOUR: I want to make a brief statement in explanation of an order that I’m about to make but my comments upon sentence will be made at or around 2.15. This is in my judgment without question an incident of the highest order of seriousness so far as assaults and associated offences are concerned which appear to be dealt with summarily. In fact there were times in the course of the time where I seriously wondered at the judgment that the allegations be laid under the Police Offences Act rather than the Criminal Code. This was in my experience an almost uniquely long drawn out sustained attack on, as far as I can tell, utterly innocent civilians for the purpose of attempting to terrorise them out of proceeding with a complaint of assault against David Reynolds which although it has been dismissed has not been suggested to have been improperly laid and no attempt has been made to apprise me of the reasons why it was dismissed. So I can only assume it was properly laid and was dismissed in recognition of the criminal burden of proof that the Prosecution undoubtedly bore in that prosecution or it might have been an acceptance of the possibility of some defence, like self defence, of being applicable; I simply don’t know. But the only way I can look at it is, I repeat, that all this happened wholly or substantially in an attempt to frighten principally Gordon out of proceeding with that allegation. That is a serious aspect of the matter.

I am presently of the view that no sentence, barring a substantial custodial sentence, would be appropriate to be imposed in the extremely serious circumstances of this case.  Both defendants have prior convictions for assault.  It’s true that Lyle Reynolds’ convictions are old, and I’ll make some comments about the relevance of that when I come to sentence him, but even without convictions my present view is that the circumstances of this case would demand a sentence of imprisonment.

I say those things now in order to explain to both defendants the reason why they’re being remanded in custody until 2.15, which I now order that they be, and in order to give them ample opportunity at 2.15 to make any further submissions in relation to penalty that they might wish to make.  They are remanded in sentence till 2.15."

Upon resumption at 2.15pm, counsel for David Reynolds was asked whether he had any further submissions and counsel made a submission urging that a wholly suspended sentence of imprisonment would have the required personal deterrent effect upon his client.  He did not address the specific findings that the learned magistrate had foreshadowed.  The learned magistrate prefaced his comments on passing sentence by saying that he accepted that the defendants had gone to the Dobson/Gordon home to remonstrate over a phone call which had been made to Mrs Reynolds by an unknown person.  He said:

"I find that Lyle Reynolds thought it may have been Gordon and David Reynolds thought it may have been Dobson who placed the phone call; neither was confident in their belief.  The phone call concerned a charge that David Reynolds was to face in court the following week and included a death threat to him if he didn’t turn up to court.  However the phone call was not the primary concern of either defendant as to which I am satisfied that that primary concern was to attempt to have Gordon and or Dobson drop a charge - drop the charge of assault against him.  This was in reality an attempt to subvert the process of justice although I do not address its relevance in those terms as the defendants have not been charged with that crime.  I put it like this simply to show that it is not a mitigating factor.  There followed over about half of one hour a long series of assault on different complainants which I will now describe by adverting to the complaints."

He then referred to the complaints and said of the joint assault on Kearney that although the primary perpetrator was David Reynolds, he did not distinguish between the two offenders for the purposes of penalty as Lyle Reynolds so obviously acted as to intentionally aid his son in that extremely serious assault.  Of the trespass, he said:

"In one sense the trespass is just as serious as the assaults.  It represents the continuation of the defendants remaining on this private home to the terror not only of the victims, the direct victims of the assaults, particularly the householders, but also the children, young children, who were present in the home."

He continued:

"And finally the complaint against David Reynolds that he assault Jamie Charles Gordon by punching him twice to the head with his fists and that he assaulted Julie Anne Dobson by grabbing her by the shirt and lifting her off the floor.  Kearney was attacked apparently because it became a convenient moment to complain or remonstrate about the fact that one or both defendants had been barred from the tavern which he managed and because he tried, ineffectively as it turned out, to come to the help of Dobson and Gordon and their children.  Peter Gordon was similarly attacked for arriving to help primarily his son.

There was a child in the house who was so frightened that he came to try to stop the defendants from proceedings with the assault by brandishing an unloaded slug gun.  He was frightened out of that attempt.  And there were two other children in the house which evidence in the form of Victim Impact Statements reveals were similarly terrified."

He then read portions of the Victim Impact Statement, including the reference to the injury to Miss Dobson's foot, and said:

"I note in passing counsel’s submission that that injury occurred not in the course of an assault on her but in the course of the assault on Kearney, but it remains a relevant factor."

He concluded:

"This matter comes down to the fact that I’m dealing with acts which have changed the defendants' victims and their children's lives substantially for the worse.  They invaded the home of Dobson and Gordon.  Their child who tried to protect the adults by producing a gun was frightened away and rang in desperation Mark Kearney for help.  Little assistance that produced.  When he arrived the defendants were not prepared to leave bad enough alone and they perpetrated the worst of these assaults on the proposed saviour.

A statement of strong deterrent effect must be made not only to deter the defendants but to deter generally."

Grounds 4 and 5 of David Reynolds' Notice to Review are as follows:

"4That the learned magistrate erred in fact and in law by:

(a)making findings of fact which were in conflict with the mitigating submissions made by counsel for the appellant;

(b)failing to resolve the conflict by hearing sworn evidence from the appellant or prosecution witnesses.

5That the learned magistrate erred in fact and in law by taking into account evidence and findings of fact from the trial of the co-accused Mr Lyle Reynolds when sentencing the appellant."

The main thrust of this applicant's submission was that the learned magistrate should have accepted that he went to the Dobson/Gordon home to find out the reason for the provocative telephone call which he believed had been made by Miss Dobson, but instead of proceeding on this basis, the learned magistrate had, on evidence given at the trial of Lyle Reynolds, made findings that he was motivated by a desire to frighten the complainants, Dobson and Gordon, into abandoning their prosecution of him for assault the previous December.  In my opinion, the learned magistrate was not in error in proceeding as he did.  He accepted the claim that there had been such a phone call and that David Reynolds believed it had been made by Miss Dobson.  That factual issue was not resolved inconsistently with the plea in mitigation.  The learned magistrate was not required, however, to accept that the phone call provided such provocation as to constitute a significantly mitigating factor (cf R v Moles & Meers 32/1998).  The prosecutor had asserted as a fact that while the other men accused Gordon of making the threatening phone call to Lyle Reynolds' wife, David Reynolds "made threats to Julie Dobson to make her drop the assault charges against David Reynolds".  It was an inference clearly open to the learned magistrate that the applicant's purpose in going to the house was to do just that.  The learned magistrate indicated several times that he was minded to draw that inference and several times invited submissions why he should not do so.  Notwithstanding those opportunities, which included one to do so with the benefit of reflection over the luncheon adjournment, no such submission was made.  In my view the learned magistrate was not obliged to put out of his mind evidence presented on the hearing of the charges against the co-offender which he articulated and gave David Reynolds the opportunity to refute or to argue against.  Nevertheless, he did not regard this evidence of motivation as justifying an increased penalty because it was an attempt to subvert or pervert the course of justice.  He properly disclaimed that as a basis of aggravation because they had not been charged with such a crime (R v De Simoni (1981) 147 CLR 383; Lovegrove v R [1961] Tas R 106). The significance of the finding was that he did not accept that the telephone call which was claimed as a matter of some provocation was in any way a mitigating factor for it was not the true motivation for the intrusion and assaults.

Miss Dobson's medical condition was not the subject of challenge.  Although the learned magistrate made reference to notes of her evidence on the other trial, the same material was contained in the Victim Impact Statement which was presented on the hearing of David Reynolds' plea.  The challenge was not to the nature and extent of those injuries.  The only challenge was the relevance of Miss Dobson's injuries which had been sustained in the course of the fracas but which did not result from any activity alleged against David Reynolds.  In my view, the learned magistrate did not take into account evidence and findings of fact from the other trial.  He sentenced David Reynolds on facts asserted and not disputed on the hearing of his plea.  Notwithstanding that the injury did not occur during the assault by David Reynolds upon Miss Dobson but in an assault upon Kearney in which David Reynolds was involved, it was an injury received by her in the course of the applicants' unlawful activities and was relevant to sentence.

The remaining grounds assert that the sentences were manifestly excessive.  David Reynolds was 24 years old and had one previous conviction for assault in March 1996.  The circumstances of the offences were very serious.  They commenced with an intolerable invasion of a private home at night by four men who were refused admission.  The householders were assaulted in the presence of their young children and two other adults, who came to their assistance, were also assaulted (Peter Gordon was assaulted by Lyle Reynolds only).  The whole episode lasted for nearly thirty minutes and caused great distress to the occupants of the house, including the children.  This was clearly a case which warranted a custodial sentence.  Neither individually nor collectively can the sentences imposed upon David Reynolds be said to be manifestly excessive.

Lyle Reynolds' Notice to Review was confined to the ground of manifest excessiveness of penalty.  He did not have the advantage of representation on the hearing of the Notice, but I can detect nothing in the material put before me which justifies interference on my part.  He, too, had previous convictions for violent conduct, although of some antiquity, but the conduct in which he engaged was no less serious than that of his son and the sentences imposed upon him cannot be said to be manifestly excessive.  It was for these reasons that I dismissed the Notices to Review when the matter came before me for hearing on 2 July 1998.