Richardson, Roger v Maguire, Gabe

[1998] TASSC 63

63/1998

PARTIES:  RICHARDSON, Roger
  v
  MAGUIRE, Gabe

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  4/1998
DELIVERED:  13 May 1998
HEARING DATE/S:  13 May 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

[Edited reasons for judgment given orally]

REPRESENTATION:

Counsel:
           Appellant:  M P Shirley
           Respondent:  G A Richardson
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Greg Richardson

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  63/1998
Number of pages:  2

Serial No 63/1998
File No 4/1998

ROGER RICHARDSON v GABE MAGUIRE

REASONS FOR JUDGMENT  UNDERWOOD J

(Delivered Orally)  13 May 1998

The respondent was charged with assault contrary to the Police Offences Act 1935, s35(1), and destruction of property, contrary to the same Act, s37(1). He pleaded not guilty in the Court of Petty Sessions held at Smithton. In somewhat unusual circumstances, the only evidence heard by the learned magistrate was an agreed statement of facts. It demonstrated that the assault was a serious case of what might be described as domestic violence.

The learned magistrate was told that at about 5am on Sunday 11 January the complainant, a young woman aged 20 years, was asleep in her car at a private residence at Stanley.  She has been at a party earlier that evening.  She was awakened by the respondent tapping on the front passenger window.  The respondent then punched the window, causing it to smash, and undid the door.  He dragged the young woman from the car by the upper arms, across the ground for some distance, and then punched her, on a number of occasions, to the face and head with his closed fist.  These blows caused cuts to the lips and nose and bruising to the left ear and swelling to the left side of her head, as well as an injury to her hand.  Nothing was said during the assault and when it was over, the respondent walked away, leaving the complainant lying on the ground.  She went to a nearby house for help and was taken to hospital for treatment but not detained.  Apparently the victim suffered no lasting injury.  The learned magistrate was told by way of an agreed fact that, prior to this event, the respondent and the young woman had lived together for approximately two years, and there was no evidence of any prior altercations between the two of them.

It is true, as Mr Shirley submitted, that the circumstances surrounding the commission of the offences were so serious that they called for the imposition of a sentence of imprisonment to act as punishment, as well as a general and personal deterrent.  However, in addition to the circumstances surrounding the commission of the offences, significant material was put to the learned magistrate in mitigation of such a sentence.  The respondent was only 20, without prior conviction and described as a non-violent person.  The respondent's counsel in the court below said the incident was an explosion borne out of domestic disharmony when the victim refused to let the respondent in the car to go to sleep, as had apparently been arranged between them prior to them going to this party.

The respondent showed remorse for his violent conduct and voluntarily undertook counselling.  There is nothing particularly significant about any of that, but what was significant was a psychologist's report, tendered without any issue being taken by the prosecution as to its contents.  In it, the psychologist described the victim as having pursued in the relationship a course of denigrating the respondent and causing him to feel powerless to the extent that in the past he had, on more than one occasion engaged in self-mutilation.  In the penultimate paragraph of the report, the psychologist opines that:

"Mr Maguire's assault on the victim was the result of his history of submissiveness in the relationship, reduced self control following alcohol consumption, the young woman's denial of something the respondent felt he was entitled to have, namely access to her car, and his sense of desperation because he was so tired and wanting somewhere comfortable to sleep.  The major variable was their pathological relationship, and I do not expect that the respondent will be likely to perpetrate further acts of violence, even after drinking, now that his relationship with this woman is over."

Clearly the psychologist was of the view that there was not likely to be a repetition of this violent behaviour, that there was no history of any violent behaviour and, most importantly, of course, it was borne out of unusual circumstances.

The learned magistrate proceeded to conviction and imposed a probation order with conditions relating to the respondent’s residence, consumption of alcohol and attendance for counselling.  By this motion, the appellant contends that the penalty was manifestly inadequate.

In this context, it is appropriate to have regard to the observations made by the Full Court of this Court in Wood v Davies A54/1996, in particular at 4 of the reasons for judgment of the Chief Justice (with whose reasons the other members of the Court agreed), where his Honour said:

"Common assault under the Police Offences Act 1935 covers a very wide range of situations. The maximum penalty provided is one of six months' imprisonment or five penalty units. Although the sentence imposed may be regarded as being at the lower end of the scale of punishment appropriate to it, I am not persuaded that a non-custodial penalty requiring the appellant to render forty-two hours of unpaid community service was out of all proportion to the gravity of this assault. It should certainly not be thought that an offence of this kind will not be met with a sentence of imprisonment, whether suspended or not; but in our system of jurisprudence, a wide discretion is reposed in the sentencer and that discretion is only to be interfered with in a case where it can be clearly seen to have miscarried."

Sitting in review of decisions of the court below, this Court can be described as a court of error.  There will be no interference with orders made in the court below unless a clear case of error is shown.  It is true, as Mr Shirley submitted, that given the same circumstances, the respondent may re-offend, and thus imprisonment is required to act as a personal deterrent but, on the material before the learned magistrate, the likelihood of a repetition could only be described as very remote.

Having regard to all the factors to which I have referred, this is clearly a case that required a personalised approach to the exercise of the sentencing discretion.  It is a case in which the generalised approach calling for punishment, personal and general deterrence needed to give way to the particular circumstances of the offender.  I can detect no error in the order made as alleged by the motion to review, namely, that no magistrate, acting reasonably, could have imposed a probation order following conviction of the respondent.

For these brief reasons the motion to review is dismissed.