Rosevear v Bonde

[2005] TASSC 95

[2005] TASSC 95

CITATION:              Rosevear v Bonde [2005] TASSC 95

PARTIES:  ROSEVEAR, Jason Cyril
  v

BONDE, Acting Sergeant Michael Andrew

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 5/2005
DELIVERED ON:  29 September 2005
DELIVERED AT:  Launceston
HEARING DATE:  21 September 2005
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates – Jurisdiction and procedure generally – Procedure – Orders and convictions – Sentencing – Imposition of fines – Power to impose fine instead of or in addition to imprisonment – Statutory power to fine or imprison – Whether both may be ordered.

Police Offences Act 1935 (Tas), s35(1A).

Madden v Groves unreported 7 April 2005, followed.

Aust Dig Magistrates [147]

REPRESENTATION:

Counsel:
           Applicant:  S J N Brown
           Respondent:  J P Ransom
Solicitors:
           Applicant:  Simon Brown
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2005] TASSC 95
Number of paragraphs:  16

Serial No 95/2005

File No LCA 5/2005

JASON CYRIL ROSEVEAR v ACTING SERGEANT
MICHAEL ANDREW BONDE

REASONS FOR JUDGMENT  CRAWFORD J
  29 September 2005

1. The applicant pleaded not guilty to common assault, contrary to the Police Offences Act 1935, s35(1), in that on 26 October 2002 he unlawfully assaulted Andrew Scott Brown by punching him to the mouth. Following a hearing, the complaint was found proved. The applicant was convicted, fined $450 and sentenced to imprisonment for three months, all of which imprisonment was suspended upon condition that he commit no offence of violence to the person for three years.

1. He has moved this Court to review the sentence upon four grounds.  However, submissions were only directed to the first of the grounds because both counsel agreed that it should succeed.  The ground simply states that the sentence was contrary to law.  The basis for that is that the learned magistrate had no power to order both a fine and a sentence of imprisonment, only to order one or the other. 

1. At the relevant time, the Police Offences Act, s35(1A), provided that a person guilty of the offence was "liable on summary conviction to a penalty not exceeding 5 penalty units or to imprisonment for a term not exceeding 6 months". The penalties were expressed in the alternative. The expression of them did not conclude with the words "or both" as is sometimes the case.

1. Counsel referred me to an unreported judgment of Blow J delivered on 7 April 2005 in Madden v Groves.  When dealing with a similarly expressed penalty provision in the Vehicle and Traffic Act 1999, s9(1), his Honour pointed out that there was nothing in the Acts Interpretation Act 1931 or any other Act to suggest that the word "or" in the penalty provision he was considering ought to be interpreted as meaning "and/or" and held that a magistrate had no power to impose both a fine and a sentence of imprisonment in such circumstances.

1. By virtue of the Acts Interpretation Act 1931, s37(2), the learned magistrate had power to impose a fine not exceeding five penalty units or to sentence the applicant to imprisonment to a term not exceeding six months, but there is nothing in that Act that permitted both a fine and imprisonment.

1. I will follow what was held in Madden v Groves.  However, I should mention the provisions of the Sentencing Act 1997, s7 and s8(1). The latter provision states that a court that orders that an offender serve a term of imprisonment may make any one or more of a number of other sentencing orders, including the payment of a fine. I think that provision must be read subject to the specific provisions of the Act that creates the offence for which the sentence is being imposed, for two reasons. One is that s8(1) also empowers a court to make a driving disqualification order in addition to ordering a sentence of imprisonment, and yet there can be little doubt that the power to make a driving disqualification order is limited by s55 to offences falling within the definition in subs(1) of a motor vehicle offence. The other reason is that the various sentencing orders authorised by the Sentencing Act, s7(a) – (i), which include imprisonment (par(a)) and fine (par(e)), are expressed by the opening words of s7 to be "subject to any enactment relating specifically to the offence". In that light, I think it may safely be said for this case that because of the way in which the penalty provision in the Police Offences Act, s35(1A), is expressed, if one of the two possible penalties is imposed, for example, imprisonment, then the other may not be imposed.

1. I am conscious that other problems of interpretation may arise out of the provisions of the Sentencing Act, s7, and its relationship with other penalty provisions such as the Police Offences Act, s35(1A). I will give an example. It might be thought that the power to impose a community service order under s7(d) does not extend to the offence I am considering because s7 is subject to the enactment relating specifically to the offence, which provides only for a fine or imprisonment. But if that is so, then it would seem to follow that the power in s7(b) to order suspended imprisonment does not extend to this offence either, nor the powers in other paragraphs of s7, such as the powers in pars(f), (g) and (h) to adjourn the proceedings and order the offender's release without ordering a conviction, to discharge the offender without recording a conviction, and to dismiss the charge without recording a conviction. None of these problems were raised by counsel and I do not intend to deal with them now. It was not submitted that the learned magistrate had no power to order suspended imprisonment at all, merely that he could not do so if he fined the applicant. For the reasons I have given I uphold the submission. The sentencing order whereby the applicant was sentenced to suspended imprisonment for three months and he was fined $450 will be quashed.

1. The parties agreed that I should re-sentence him.  The material facts are as follows.  The complainant was spending the night at a two-storey motel complex with his partner, who was pregnant, and their two-year-old child.  They were asleep downstairs.  They had been disturbed by a lot of noise from upstairs.  At about 3am they were woken by the sound of a fire alarm.  There was no fire.  The alarm had been activated by one or more of a group of men, one of whom was the applicant.  The complainant went upstairs where he found water in the hallway and the manageress of the hotel trying to deal with the situation.  She asked for his help.  One of the men, a blond with a Mohawk hairstyle, was affected by alcohol.  The complainant told him that he needed to relax, his actions were ridiculous and he should wait for the police.  The blond head-butted the complainant causing a split above his left eyebrow and blood to stream down his face.  The applicant was present but was in no way responsible for the injury. 

1. The complainant returned to his room and with his partner and child made preparations to go to hospital for treatment.  He was described as bleeding from the eyebrow with his face and T-shirt covered in blood.  As they left their room they met up with the blond man and the applicant.  The blond expressed his apologies to the complainant, and continued to do so despite the fact that the complainant's partner, who was upset about the injuries, expressed herself towards the blond in a disapproving way and swore at him. 

1. The applicant then became abusive and aggressive towards the complainant's partner and moved towards her.  She described him as very aggressive, coming within centimetres of her face, swearing at her and pointing his finger at her.  She was holding her child at the time.  The complainant stepped between them to protect her.  When he was between the two he flicked blood off his face which landed on the applicant's pants.  The applicant punched him once in the mouth.  The punch loosened two of his teeth and split his lip.

1. The applicant's version of events was markedly different but it was not accepted by the learned magistrate. 

1. At the time of the offence he was 33 years old.  Significant in the sentencing process is his record.  Since 1982, when he was 13 years old, he has committed many crimes and offences.  As an adult he has committed many involving violence to the person.  They include an assault in 1987, two assaults in 1988, an aggravated robbery in 1989, causing grievous bodily harm in 1990, assaulting police in 1991 and wounding in 1994.  He has committed many other kinds of offences and served a number of terms of imprisonment.  However, his counsel justifiably pointed to a significant gap in his offending since his conviction in October 1996 for the 1994 wounding, when he was sentenced to six months' imprisonment cumulative upon imprisonment for other offences.  In April 1997 he was released on parole for four years.  The assault with which this case is concerned was committed by him over five years after that release. 

1. His counsel stated that he was a single man with no dependants and that he had turned his life around following his release on parole in 1997.  He gained employment with a foundry for seven years until an allergic reaction to heavy metals brought an end to it.  After securing some other work at St Helens, he was due to commence work as a forklift driver for Frigmobile in Brisbane two weeks after he was sentenced by the learned magistrate.  I understand that he presently holds that employment.  Apart from when he was receiving workers compensation because of his allergy, he has not been unemployed since 1997, nor has he been in trouble except as a result of this 2002 assault.  Counsel referred to "a very significant and substantial gap" since he last offended which showed "that rehabilitation really did take hold and bear fruit". 

1. The applicant became aggressive towards the complainant's partner without any provocation.  She was justifiably upset about her partner's injured and bloodied state and about the fact that in the early hours of the morning they had been woken by disorderly people, one of whom had caused the injury, and forced to go to hospital.  She expressed her displeasure to the applicant's companion who had caused the injury.  He was apologetic and there was no need or justification for the applicant becoming aggressive towards her.  It is understandable that the complainant sought to protect her and their child from him.  Even though blood was flicked onto the applicant's pants, his punching of the complainant, who was already injured and bleeding, was outrageous.  An aggravating factor was that the assault was committed in the presence of the complainant's two-year-old child.  There was no remorse on the applicant's part.

1. If the offence had been committed shortly after the applicant's release from prison on parole a sentence of actual imprisonment would have been the only appropriate one.  His record for violence and other forms of offences would have demanded that, particularly as a punishment and for the purposes of personal deterrence.  The gap in his offending justifies a tempering of the severity of the sentence.  However, notwithstanding that gap, a fine is an inadequate response for the particular offender.  Having regard to his record, if he commits personal violence he must expect relatively severe punishment, although I am not suggesting that he should be punished for his record and not for the offence.  Community service is not an option, given his residence and employment in Brisbane.  I conclude that the only appropriate sentence is one of wholly suspended imprisonment. 

1. His conviction is confirmed.  In place of the sentence imposed by the learned magistrate, the applicant is sentenced to three months' imprisonment all of which will be suspended upon condition that he commits no offence of violence to the person for three years.