Rickards v Sundram

[2018] TASSC 29

[2018] TASSC 29

COURT:  SUPREME COURT OF TASMANIA

CITATION:                Rickards v Sundram [2018] TASSC 29

PARTIES:  RICKARDS, Damien John
  v
  SUNDRAM, Lakshmi

FILE NO:  LCA 200/2018
DELIVERED ON:  28 June 2018
DELIVERED AT:  Hobart
HEARING DATE:  25 June 2018
JUDGMENT OF:  Pearce J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Sentence manifestly excessive or inadequate – Common assault and two breaches of family violence order – Sentence of imprisonment for 21 days wholly suspended not manifestly excessive.

Family Violence Act 2004 (Tas), s 35(1).
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  P Monk
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2018] TASSC 29
Number of paragraphs:  14

Serial No 29/2018

File No LCA 200/2018

DAMIEN JOHN RICKARDS v LAKSHMI SUNDRAM

REASONS FOR JUDGMENT  PEARCE J

28 June 2018

1. The applicant moves to review a sentence imposed on him by a magistrate, Mr C Webster, on 15 January 2018 for common assault and two counts of breaching a family violence order. The magistrate sentenced the applicant to imprisonment for 21 days wholly suspended for 18 months. The sole ground of the motion is that the sentence is manifestly excessive.

2. At the time of sentence the applicant was 42. He had been in a relationship with the complainant for nine years until they separated in December 2016. They had two children, both girls. Following the separation relations were not amicable. Conflict arose concerning the applicant's ability to have contact with the children. On 12 May 2017 he pleaded guilty to common assault and trespass committed against the complainant on 21 April 2017 and was fined $750. A police family violence order to protect the complainant was made and served on the applicant on 22 April 2017. The order included a condition that the applicant not threaten, harass, abuse or assault the complainant. There was a further condition that he not contact or go within 10 metres of her. The non-contact condition was subject to specified exceptions allowing discussions about contact with the children. At the sentencing hearing in January 2018 the learned magistrate was not told about the circumstances of the offences committed by the applicant on 21 April 2017, other than that they were family violence offences, the victim was the complainant and that the applicant had "scruffed" her.

3. The offences relevant to this motion occurred on Saturday, 13 January 2018. Mediation between the applicant and the complainant had been unsuccessful and the applicant remained frustrated with the complainant's attitude. The sentencing magistrate was told that the applicant had seen the children only three times in the previous two months. Through the applicant's mother, arrangements were made for him to have his daughters spend time with him during the weekend of 13 and 14 January. At about 11.30am on that Saturday the complainant drove the girls to the entrance of the applicant's home to drop them off. The applicant's mother also lived there and met them at the bottom of the driveway when they arrived. After the children went inside a heated conversation took place between the complainant and the applicant's mother. The applicant approached the complainant and told her to leave. She was standing outside her car but within the open driver's door. The applicant walked to her and pressed the door closed, trapping her between the car body and the door. He continued to do so although his mother tried to pull him away. It was asserted by the prosecutor that he grabbed the complainant's car keys from the ignition and threw them into the car. He then released the door and walked away. The complainant asked for the children to be returned but the applicant declined.

4. The children were returned to the complainant by the applicant's mother the following day. The complainant then reported the incident at the police station in Bellerive at 3pm on that day. The applicant was arrested and interviewed. He admitted that he had approached the complainant and closed the door on her, but said that he "didn't like the stress" the complainant caused his mother. He was arrested and remanded in custody. He appeared in court before the magistrate the following day and pleaded guilty then and there. It was not asserted by the prosecution that the complainant suffered any physical or psychological injury, but the magistrate was entitled to infer that the incident would have been distressing for her.

5. By his plea the applicant admitted that he assaulted the complainant by pressing the car door against her, and that he breached the police family violence order by approaching her and assaulting her. His counsel submitted to the sentencing magistrate that the applicant was overcome by his frustration about the difficulties he had experienced in seeing his daughters. The applicant did not have any other record for violence. He had full-time employment as a plumber. There had been no other breaches of the order during the period of nine months or so it had been in force. He pleaded guilty at the earliest possible time, only a day after the offences. He had spent a night in custody. His counsel submitted to the magistrate that he may consider a fine to be "an appropriate outcome". The magistrate's sentencing comments were brief. He said:

   "Okay, well I take into account all the matters raised by counsel. Taken into account the fact that it was a relatively minor assault, that's the positive side, and there was no injuries suffered. However I also take into account that is was a physical assault, an actual assault, that was in breach of a family violence order, and it was in the vicinity of the children. I'm going to sentence you to 21 days' imprisonment, however I will suspend that term of imprisonment for 18 months …"

6. To succeed in a motion on this ground the applicant must establish that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen (1992) 1 Tas R 234 at [13]; Lusted v Kenway [2008] TASSC 47 at [38]; Visser v Smart [1998] TASSC 151. I summarised the principles more recently in Garcie v Lusted [2014] TASSC 27 and Barrett v Wilson [2015] TASSC 3, 69 MVR 333. An appeal court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner: Whittle v McIntyre [1967] Tas SR (NC 6) 263; Lowndes v The Queen [1999] HCA 29, 195 CLR 665 at [15]; Director of Public Prosecutions v CSS [2013] TASCCA 10. As was recently re-stated by the High Court in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41, 349 ALR 37, the discretionary nature of the judgment required of a sentencing court means that there is no single sentence that is just in all the circumstances.

7. The sentencing options available to the magistrate were those set out in the Sentencing Act 1997, s 7, technically ranging from dismissal of the charges without conviction to imposition of a sentence of actual imprisonment. Common assault is punishable by a penalty not exceeding 20 penalty units, or to imprisonment for a term not exceeding 12 months: Police Offences Act 1935, s 35(1A). A person who breaches a police family violence order is liable on summary conviction to, in the case of a first offence, a fine not exceeding 20 penalty units or to imprisonment for a term not exceeding 12 months: Family Violence Act 2004, s 35(1)(a). Higher penalties are legislated for subsequent offences.

8. As was explained in Lyons v Bakes [2015] TASSC 37, the level of criminality involved in a common assault may range from trivial to most serious. For that reason, appeals against sentences for common assault are rarely suitable vehicles for appellate courts to establish principles of general application for the guidance of sentencing courts, and a range for sentences for the offence cannot be established. The principal submission advanced by the applicant is that imposition of a custodial sentence, even wholly suspended, is a disproportionate response to the seriousness of these offences. The submission relies on application of the principles of proportionality and parsimony. Parsimony includes the principle that a sentence of imprisonment should be regarded as a sentence of last resort and to be imposed only when other punishment is inappropriate. Unlike most other jurisdictions, there is in this State no legislative statement of the principle. However it applies as part of the common law and was stated and applied by Nettlefold J in Underwood v Schiwy [1989] Tas R 269; and by Evans J in James v Turner [2006] TASSC 54, 15 Tas R 375. The applicant further submits that, by extension, a suspended term of imprisonment should only be imposed when no other punishment is appropriate.

9. The magistrate correctly recognised that it was not a serious assault. However it involved the application of force in circumstances which would have been confronting for the complainant and, importantly, amounted to a breach of the police family violence order put in place to protect the complainant after another assault. The assault was committed in the aftermath of the breakdown of the family relationship. That is an aggravating factor. The learned magistrate was entitled to take the view that the sentence he imposed should indicate condemnation of the resort to force of any type in those circumstances, and provided strong incentive to the applicant to not re-offend. According to the legislative purpose of the Family Violence Act "the safety, psychological wellbeing and interests of people affected by family violence are the paramount considerations": s 3. It was not asserted by the prosecution that the applicant's children saw or became aware of the assault. By the Family Violence Act, s 13(a), a sentencing court "may consider to be an aggravating factor the fact that the offender knew, or was reckless as to whether, a child was present". The magistrate said the assault was "in the vicinity of the children", but made no other reference to whether they were "present" in the relevant sense. Recklessness was not mentioned, but the applicant knew the children were in the house. There is no ground which challenges the correctness of his Honour's remarks. I do not regard the application of s 13(1) as determinative of the outcome of the motion, and will determine it on the basis, without deciding, that the circumstance of aggravation was not present.

10. Counsel for the respondent referred to passages from two recent decisions of this Court which, I agree, have application to this motion. The first is a statement of Brett J in Bonde v Ellery [2016] TASSC 43. In that case his Honour was dealing with a prosecution appeal on the ground that a sentence imposed by a magistrate in a family violence matter was manifestly inadequate. Although his Honour dismissed the motion he said, at [27]:

    "Family violence must always be regarded as a serious matter. It is not necessarily less so because it occurs without premeditation in the course of raised emotions during an argument. A party to a relationship is entitled to expect that he or she will be safe if disagreeing or arguing with his or her partner. Family violence can have devastating and long-term consequences for the victims of the violence and the children of the relationship who witness or are caught up in the violence."

11. In Kelleher v Avery [2017] TASSC 14, Wood J reviewed a sentence of actual imprisonment for two months imposed on a man with a record for family violence offences, but for breaching an order by indirect contact in a manner which was not abusive or threatening. Her Honour correctly, with respect, pointed out that "there is a spectrum of seriousness in relation to breaches of family violence orders, and the gravity of a particular breach will turn on the nature of the conduct and the circumstances of the breach", but prefaced that comment by a statement, with which I agree, which referred to the importance of compliance with family violence orders:

    "The learned magistrate obviously and correctly held a stern view about breaches of family violence orders in general. Breaches of court orders which have as their purpose the protection of a complainant are always a matter of substance. Approaching breaches in this way counters any misconceptions by defendants that family violence orders need not be taken seriously, and reinforces the effectiveness of family violence orders, and ultimately the protection they afford complainants."

12. Her Honour was dealing with a court order. In this case the relevant order was a police family violence order, but the comments are apposite nevertheless. Such orders demand respect and compliance.

13. Bearing those considerations in mind, it was open to the sentencing magistrate to conclude that imposition of a fine was not an adequate response to the applicant's offences. Imposition of a fine for the first assault, and imposition of the order, did not prevent the second assault. There was no investigation or mention of community service or probation as sentencing options. That is not to say that the magistrate, who is an experienced magistrate, did not consider them. In my view, a sentencing order involving one or both would not have disclosed error. Counsel for the applicant submitted that the failure to order community service or probation amounted to error. However, to me, the failure to adopt one or both of those options is not indicative of clear error. I am not persuaded that imposition of a short period of imprisonment, wholly suspended, was outside the broad sentencing discretion to be allowed the sentencing magistrate. Whether I would have imposed the same sentence is not to the point. Having apparently decided not to impose a fine, community service or probation, the learned magistrate was required to choose between imposing a term of suspended imprisonment and imposing imprisonment which the applicant would have to serve immediately. As was stated by Gleeson CJ and Hayne J in Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 at 327 [13], "only if satisfied that it is not appropriate to impose a term of suspended imprisonment may the judge impose a term of imprisonment which is to take effect immediately". In this case, imposition of an actual period of imprisonment would have been a wholly disproportionate response. However, that is not what the magistrate did. The cases of Underwood v Schiwy and James v Turner do not mandate a different approach. Neither supports the proposition that a sentencing judge must positively exclude other sentencing alternatives as appropriate before he or she may impose a wholly suspended sentence. Both decisions draw a clear line between actual imprisonment and a sentence which falls short of that result. In Underwood, Nettlefold J found that a sentence of imprisonment for six months for a man who committed an offence of dishonesty was manifestly excessive. He applied the principle that imprisonment is a sentence of last resort, but substituted a sentence of three months' imprisonment wholly suspended. In James, Evans J considered a sentence of imprisonment for three months imposed for common assault. His Honour referred to and applied the statement of Kirby P, with whom Handley and Sheller JJA agreed, in Parkerv Director of Public Prosecutions (1992) 28 NSWLR 282 at 296 that "a full-time custodial sentence is only a last resort", but went on to make clear that an alternative to an immediately effective custodial sentence is a suspended custodial sentence. The approach is in accordance with principle. Actual imprisonment is uniquely punitive because it involves the complete loss of liberty and autonomy: Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342, 46 VR 308, 248 A Crim R 153. It gives priority to the retributive and deterrent purposes of punishment. The imposition of a wholly suspended sentence provides for those purposes to be served, but allows the offender personal responsibility for his or her future conduct.

14. I am not persuaded that the sentence is manifestly excessive. The motion to review is dismissed.