Rowlands v Caporn
[2001] WASCA 66
•8 FEBRUARY 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ROWLANDS -v- CAPORN [2001] WASCA 66
CORAM: ROBERTS-SMITH J
HEARD: 8 FEBRUARY 2001
DELIVERED : 8 FEBRUARY 2001
FILE NO/S: SJA 1213 of 2000
BETWEEN: RICHARD ALLEN ROWLANDS
Appellant
AND
JOHN ROY CAPORN
Respondent
Catchwords:
Criminal law - Appeal against sentence - Immediate imprisonment - Failure of Magistrate to mention other options - Failure to take mitigating factors into account
Criminal law and procedure - Appeal against sentence - Reception of evidence by appellate court
Legislation:
Justices Act 1902 (WA), s 186(1)(b), s 196(1)(b)
Result:
Appeal allowed
Sentence set aside
Complaint remitted to Magistrate for sentence according to law
Representation:
Counsel:
Appellant: Mr A O Karstaedt
Respondent: Ms S M De Maio
Solicitors:
Appellant: Max Crispe
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bates v Wheatley [2000] WASCA 38
Holland v The Queen [1999] WASCA 43
Keatley v The Queen [2000] WASCA 30
Kilner v The Queen [1999] WASCA 189
Mickelberg v The Queen (1989) 167 CLR 259
Nevermann (1989) 43 A Crim R 347
Nisbet v Fullarton, unreported; SCt of WA; Library No 930265; 14 May 1993
Pearce v The Queen (1998) 72 ALJR 1416
Ratten v The Queen (1974) 131 CLR 510
Case(s) also cited:
Dinsdale v The Queen [2000] HCA 54
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 194 CLR 665
Pacino v The Queen, unreported; SCt of WA (Wallwork J); Library No 980070; 17 February 1998
Veen v The Queen (No 2) (1988) 164 CLR 465
ROBERTS-SMITH J: On 3 October last year the appellant pleaded guilty in the Perth Court of Petty Sessions to one charge that on 25 September 2000 at Westminster he was in the dwelling of Sharon Emma Young without the consent of Sharon Young and committed an offence, namely, unlawful assault upon her and thereby did her bodily harm contrary to s 401(2) of the Criminal Code and, secondly, that on the same day and at the same place he unlawfully assaulted Sharon Young and thereby did her bodily harm contrary to s 317 of the Criminal Code.
On 23 October last year his Worship sentenced the appellant to 12 months' imprisonment on each offence with eligibility for parole. The sentences were ordered to be served concurrently. On 15 November last year Murray J granted the appellant leave to appeal against sentence on the following grounds: first, the sentence imposed was manifestly excessive in all the circumstances and in particular taking into account: (1) the age of the applicant; (2) the antecedents of the applicant, including the fact that he has only a minor record of offending and a sound employment history; (3) the circumstances of the case and the fact that the applicant's actions came about as a result of his desire to have access to his 3‑year‑old son; (4) the fact that the offences were not premeditated and occurred after a verbal altercation with the complainant as to contact with their son, after which the complainant went into her residence and locked the door; (5) the personal circumstances of the applicant and in particular the fact that he is the sole income earner of a family business.
The second ground was that the learned Magistrate erred in imposing a term of imprisonment to be immediately served rather than a non‑custodial sentence and/or a suspended term of imprisonment having regard to all the circumstances of the case, including:
(1)on 3 October 2000, after hearing the prosecution's facts and having seen the applicant's record and without having heard submissions from the applicant's counsel, the learned Magistrate indicated the likelihood of a non‑custodial sentence subject to a pre‑sentence report and released the applicant on bail; and
(2)on 23 October 2000 a pre‑sentence report recommended or favoured a non‑custodial disposition indicating the appropriateness of a community order with supervision and program requirements.
The third ground of appeal is that the learned Magistrate erred in not giving proper consideration to other forms of disposition.
On the appellant's application this morning I granted leave to add a further ground of appeal; that being a fourth ground to the effect that the learned Magistrate erred in not making allowance for the appellant's early pleas of guilty and his cooperation with the police.
Following the pleas of guilty on 3 October the facts were recounted to the learned Magistrate by the police prosecutor. They may be summarised as follows. The complainant is a 30‑year‑old female, 160 centimetres tall and of slim build. The appellant is 34 years old, 187 centimetres tall and of solid build. The appellant has never resided at the complainant's residence and there is no Family Court order in existence in relation to their children.
About 4.25 pm on 25 September the appellant went to his ex de facto's (that is, the complainant's) residence in Salmar Way, Westminster, where he became involved in a verbal altercation with the complainant in the front yard over the custody of their 3‑year‑old son. The complainant went inside her residence and locked the door behind her. The appellant went to the front door and demanded the complainant give him their son.
Upon entering the rear yard, the appellant went to the games room glass sliding door standing inside of which were the complainant's stepfather and 1‑year‑old daughter. The daughter was on the ground on the inside of the glass door. The appellant yelled at the stepfather to open the door, saying he would kick it in, pointing at the door and motioning a kick. The stepfather felt threatened by the appellant. He picked up the child and opened the door.
The appellant went inside the premises, walking through the kitchen and to the hallway where the complainant was on the telephone to police. The complainant screamed at the appellant, telling him to get out of her house several times. He pushed his way "through" the complainant using his body, causing the telephone handpiece to become disconnected. After he pushed through he went to the bathroom located to the left of the hallway and the complainant went to the bottom of a stairwell located to the right of the hallway. The appellant turned around and approached the complainant and tried to push his way through or past her again. The complainant continued to yell at the appellant to get out of her house. The appellant grabbed the complainant in a headlock. She struggled and eventually broke free, falling backwards into the wall, damaging the plasterboard.
The appellant pushed over a child gate at the bottom of the stairs and started walking up. The complainant grabbed the appellant by the shirt, attempting to stop him. The appellant punched the complainant to the top of the head several times with a clenched right fist. The complainant grabbed and squeezed his testicles and both fell backwards down the stairs. The appellant got up and went upstairs. The complainant got up, found she had urinated in her pants and went outside to wait for police.
The appellant picked up their son and left the premises, walking off down the street.
A short time later police attended and spoke to the complainant. The appellant then returned to the residence and accompanied police to the police station where he took part in a video record of interview and was subsequently arrested.
The complainant received a dislocated left middle finger and swelling to that finger and swelling also to the left ring finger. She received bruising to her upper right arm, both shoulder blades and the inside of her left elbow. She also received soreness to her neck, underneath her chin and to her back.
No objection was taken by the appellant or his counsel at that time to the facts as put to his Worship. His Worship was clearly very much alive to the fact that the circumstances arose out of or in connection with a family law dispute in respect of which proceedings in the Family Court may have had some bearing on his disposition of the matter.
Following the presentation of the facts by the police prosecution, his Worship commented that he was wondering whether or not he should obtain a verbal pre‑sentence report because it seemed that perhaps the situation with the relationship in any Family Court proceedings may have some bearing on how he might deal appropriately with the matter.
He went on to observe that apart from an assault, matters of violence did not feature on the appellant's record, and certainly the factual circumstances of the instant case suggested they arose out of a dispute over a particular aspect of the relationship. His Worship then said:
"If that is being dealt with, that may mean that we can deal with this in a manner other than a custodial sentence."
With that in mind, his Worship ordered that the appellant be remanded to 23 October for the purpose of obtaining a verbal pre‑sentence report. When the matter came on again before his Worship on 23 October he referred first to having received a victim impact statement. That was, of course, not in the appeal book, but nor was it included with the court file. As nothing further was said about it in the court below, I have no knowledge of what was in it.
Following his reference to the victim impact statement, his Worship then received a verbal pre‑sentence report from a community corrections officer. Again in summary that was to the following effect. The appellant's appearances in court had been predominantly traffic related, but had been ameliorating over the previous 5 years. There was an assault conviction in October 1990 also against the same complainant.
The appellant is the younger of two siblings and was raised in a stable and supportive home environment and remains in regular contact with his parents and sisters. He has had two relationships, having entered into a de facto relationship at 23 years of age which endured for about 3 and a half years. There were no children of that union.
In respect of his second relationship, he had been in that from 29 years of age and it endured for about 4 years. His now estranged partner had a child from a prior union and the child is currently 8 years of age. The appellant and the complainant have two children currently aged 3 and 15 months respectively.
The relationship broke down in July or August of 1999. According to the community corrections officer, that breakdown was related in large part to the sort of behaviour that brought the appellant before the court on the present occasion, although he pointed out there were also other factors at play.
Then followed some details of the appellant's employment. It would seem that he has always been productively employed. He was self‑employed for some 7 years, but that business was then sold to his parents, and following that he has been working in the family business for the last 3 years, earning about $500 per week net. There was information given about his financial circumstances and his debt liabilities, and it was said he had no significant assets or savings. There are no presenting problems in relation to the use of alcohol or other substances.
In summary the community corrections officer said the appellant came from a conventional family background with a relatively minor record of offending and with a sound employment history and two failed relationships. He reiterated that the failure of the latter relationship was apparently the consequence of his aggressive behaviour, although there were also other factors at play.
The officer recommended that in order to avoid a repetition of this type of behaviour it might be in the best interests of both the appellant and the wider community were he to be the subject of a community order involving both supervision and program requirements. It would mean he would be required to undertake a domestic violence course to completion under the program requirement. Counsel for the appellant then made what were on any view extremely brief submissions in mitigation. I set out the whole of them below:
"Sir, just in relation to that October 99 -"
(and there is apparently a problem on the tape) -
"assault which appears on his record, sir, that involves family law matters again, sir. Apparently the complainant in that matter threatened to take the children to Adelaide, where she is from. She told him that there was nothing he could do. Responsively Mr Rowlands has hit her once in the face from which she has suffered bruising. Otherwise, sir, outside of family law matters, disputes in relation to the complainant or any - he has no other matters of assault, sir.
He is the first to admit, sir, that he needs counselling in regards to domestic violence and anger management. Thank you, sir."
His Worship then gave the following brief reasons for sentence culminating in his imposition of the two sentences of 12 months' imprisonment (AB 30‑31):
"Mr Rowlands, this is a matter of great concern. There is obviously - there was on this occasion a dispute over access with your de facto in relation to your child. But this really led to you invading your de facto's house. And effecting essentially a self‑help remedy in barging into the house, assaulting your former de facto to the extent necessary to remove her. And then taking the child concerned and walking off.
I am aware, and of course appreciate, that in the breakdown of any relationship, the emotions are very disturbed and that quite often, access to children is a tool that is used between the various parties to inflict hurt on one another. Be it by way of denying access or refusal to maintenance (sic) and those issues, but from the criminal law perspective of course these are not excuses for behaviour of this type.
On this occasion you used your superior strength to simply have what you believed was your entitlement and in doing so inflicted a violent assault. It is of more concern too that in October of last year you were convicted of an assault, again on your de facto or former de facto. In those circumstances unfortunately I think that the only appropriate penalty in relation to this incident is a term of imprisonment and a term of immediate imprisonment.
In relation to the burglary you will be sentenced to 12 months' imprisonment with eligibility for parole and in relation to the assault occasioning bodily harm you will also be sentenced to 12 months' imprisonment with eligibility for parole, those terms to be served together concurrently such that there is a total of 12 months' imprisonment with eligibility for parole."
Prior to the hearing of this appeal the appellant gave notice he intended to move at the hearing for leave to produce additional evidence in the form of an affidavit from himself dated 1 February 2000. The position with respect to that is governed by s 196(1) of the Justices Act 1902 (WA).
The effect of s 196(1)(b) was considered by Scott J in Nisbet v Fullarton, unreported; SCt of WA; Library No 930265; 14 May 1993. In that case an appellant had sought to adduce in evidence a further affidavit and that was objected to by the respondent's counsel. In the affidavit that appellant gave personal particulars about his past history including his student record, his employment whilst studying and his career ambitions. The objection taken by the respondent was that the material had not been before the learned Magistrate and did not comply with the fresh evidence rule.
His Honour was of the view that the respondent's submission was misconceived. His Honour pointed out that the material contained in the appellant's affidavit was exclusively personal particulars of the kind that are ordinarily provided by way of letters of character reference and that in his opinion s 196(1)(b) of the Justices Act was designed to enable the court to receive precisely that type of material.
His Honour at page 4 of his reasons for decision did appear to express some qualification as to whether or not a court should use that section to admit into evidence material relating to the facts of the case that were not placed before the Magistrate except in appropriate cases. His Honour was concerned in the case before him, however, with material of a different kind and felt it self-evident that such material could be admitted in that way.
I take his Honour's reference to material relating to the facts of the case to be a reference to facts going to the issue of guilt or innocence, which I think is clear from his Honour's later references to the cases of Mickelberg v The Queen (1989) 167 CLR 259 and Ratten v The Queen (1974) 131 CLR 510.
As his Honour pointed out (at page 5), in those cases the courts were dealing with evidence which would reflect upon the guilt or innocence of an appellant rather than evidence reflecting exclusively on the question of sentence. Whatever the operation of s 196(1)(b) may have in the context of an appeal against conviction and whether the authorities in relation to the admission of fresh evidence on appeal still have application in that context are questions which I do not need to determine on this appeal and I say no more about them.
For present purposes I respectfully agree with the conclusion of Scott J that the subsection allows an appellant on an appeal against sentence to adduce additional evidence relevant to his or her antecedents, personal circumstances and other matters, including the facts of the offence relevant to sentence. On that basis I gave leave for the affidavit to be tendered.
For reasons to which I shall be later returning, I have had regard to the contents of the affidavit, not on the basis of accepting that version as the one on which sentencing should have been done, but as indicating the version the appellant wished to put before the court.
In his affidavit sworn 1 February 2000 the appellant sets out facts relating particularly to the nature of his relationship with the complainant and the circumstances leading up to and including the commission of the offences. He also relied on information in relation to his personal circumstances set out at par 7 and par 8 of the affidavit of Maxwell Ian Crispe sworn on 9 November 2000 in support of his application for leave to appeal and for bail at page 20 of the appeal book.
It is apposite to set out the terms of those paragraphs here:
"[7]I verily believe and have been told by the applicant that the business for whom he works, Instant Phones, is a business that was originally owned by himself and is currently in the name of and owned by his father. The business has a solid customer base. However, the applicant is the sole income earner of the business that employs his sister and himself, his sister being responsible for the administration side of the business and the applicant being responsible for the outside work which involves installation of telephone and computer cabling. The business has a regular supply of work, has rental premises and the applicant has financial commitments, including a rental dwelling, such that should he not be granted bail, the business and his job would be at an end. The business has been producing a net after tax income to him of $500 per week. His gross per annum income, including tax, which he has been earning is $34,424. His estranged partner has been in receipt of maintenance payments of $136 per week which ceased immediately on his imprisonment.
[8]The above matters relevant to his own personal circumstances were never canvassed in the sentencing transcript apart from briefly in the oral pre‑sentence report on 23 October 2000 and then unfortunately not in full detail."
That last paragraph really highlights a most unsatisfactory aspect of these proceedings. It is that one limb at least of this appeal is not simply that his Worship fell into error, but that he was led to do so by inadequate material having been put before him on the appellant's behalf. I am mindful of the submissions put by Ms De Maio that what the appellant is really trying to do here is have another bite of the cherry, as it were, having received an adverse outcome in the court below. That of course is not something that would be countenanced by this Court and I would need to be satisfied there was genuine merit in matters raised before I would allow this appeal.
Mr Karstaedt says the grounds are essentially threefold: first, errors of law and fact in sentencing; second, the sentence was excessive in any event; and, third, there is an additional reason why in the interests of justice the decision should be reviewed.
As to the errors of law advanced by Mr Karstaedt, he contends they include there being no reference by his Worship to the fact that the appellant pleaded guilty and that in the circumstances it is apparent his Worship did not properly consider other sentencing options, including suspended imprisonment. He acknowledges that as a general proposition it is not mandatory for a sentencing Magistrate to advert to every consideration which arises, nor indeed necessarily to every sentencing option available and disregarded or discounted by him as being inappropriate in the circumstances of the particular case.
What Mr Karstaedt does say is that in the particular circumstances of this case it was necessary for his Worship to give reasons why he arrived at the conclusion that an immediate custodial sentence was the only appropriate disposition.
The errors of fact which are said to be revealed include that the learned Magistrate did not appreciate the background or circumstances leading up to the offences before him and that was the basis upon which Mr Karstaedt in part, at least, sought to obtain leave to adduce further evidence by way of the appellant's affidavit. When pressed, Mr Karstaedt put it, though, that the appellant's case was that even on the basis of the facts before his Worship, the learned Magistrate erred in taking the family dispute to be one about access when in fact it was about custody in a rather different situation.
I should say at the outset that I would not necessarily be prepared to find that on the material before the learned Magistrate an overall sentence of 12 months' imprisonment was excessive.
I turn to the contention that there were errors of law and fact, the first being the factual issue in relation to access. I will comment about this again later, suffice to say for present purposes my initial inclination was to see nothing really in that and to regard it as being subsumed in the generic claim under s 186(1)(b) of the Justices Act; namely, that there is "some other reason sufficient to justify a review of the decision."
A similar observation may be made about the complaint that his Worship failed to appreciate the background and circumstances leading up to the commission of the offences. If there was a misapprehension in relation to that, it was because the material was not put before his Worship.
So far as the claimed errors of law are said to arise, Mr Karstaedt really puts it this way: although it is not necessary for a court to give detailed reasons, nor even specific reasons, for rejecting a non‑custodial option or options in every case the circumstances of this case were such that they should have been given and failure to give them is a plain indication that the alternative options and relevant mitigating factors were not properly considered by his Worship or indeed not considered at all.
The first one of these is the indication said to arise out of the fact that following his ordering of the pre‑sentence report the learned Magistrate released the appellant on bail. It is correct, as Mr Karstaedt submits, that bail following conviction will ordinarily not be granted having regard to the provisions of Schedule 1 Part C of the Bail Act unless there is either a strong likelihood that the judicial officer will impose a non‑custodial sentence or, alternatively, there are exceptional circumstances.
Mr Karstaedt submits that no argument was advanced to his Worship that there were exceptional circumstances in the present case. The clear inference was that his Worship was giving a very strong indication that the matter could be dealt with other than by way of an immediate custodial sentence.
When the matter returned to court on 23 October, the verbal pre‑sentence report was certainly positive. It recommended a disposition other than custody, and program requirements intended to deal with the appellant's anger management problem and related issues. The submission put by Mr Karstaedt is that right up until that point, and indeed to the point at which his Worship began to sentence the appellant, there were reasonable grounds for the appellant and his counsel to anticipate that a non‑custodial sentence was being contemplated and that if his Worship did change his mind or have that intention, (that is, to impose a custodial sentence), then he should have indicated that to the appellant and to counsel and invited submissions in relation to it.
Ms De Maio contends that there was no need for his Worship to give reasons to any greater extent than he did and that although his Worship's reasons were brief they indicated a clear understanding of the emotional background behind the commission of the offences and an appreciation that they were related to a family law dispute. As she points out, however, the learned Magistrate concluded that they were not excuses for behaviour of the type displayed by the appellant and his Worship adverted as being of greater importance to the seriousness of the offence.
She relies upon the decision of the Court of Criminal Appeal in Nevermann (1989) 43 A Crim R 347 at 350 per Malcolm CJ which is authority for the proposition that although an appellant and the community has the right to know the reasons for a sentence which it is imposed, it is not necessary to give full or detailed reasons in every case.
I of course accept that as a proposition of law, as I am obliged to do, and as indeed, as I understand it, so does Mr Karstaedt for the purposes of this appeal. Again, however, his contention is that although that may be the general rule, there are circumstances in particular cases where rather more detailed reasons need to be given and this is one such case.
Wallwork J made similar observations in relation to the imposition of an immediate term of imprisonment rather than a suspended sentence in Keatley v The Queen [2000] WASCA 30 at [39] and [45]. In similar vein as to the error said to arise from his Worship's failure to specifically mention the appellant's plea of guilty, Mr Karstaedt refers to Bates v Wheatley [2000] WASCA 38 at [28] to [36] in which Templeman J considered the decision of the Full Court in Holland v The Queen [1999] WASCA 43, in which Kennedy J held:
"In the absence of a reference either by counsel or the sentence judge to the appellant's early plea of guilty, it should be assumed that no allowance was made by the sentencing judge for that early plea."
It is submitted to me that there are points of distinction which were identified by Templeman J between Bates v Wheatley and Holland, and that none of those points of distinction exist in the present case, that leading to Mr Karstaedt's submission that in this case it may be inferred that by his failure to specifically advert to the plea of guilty, his Worship clearly has made no allowance for the appellant's early plea.
On their face the reasons given by his Worship indicate the only factor to which his Worship had regard in mitigation was that the offences arose out of a family law dispute between the appellant and the complainant, that being a situation in which emotions are disturbed and that access to children is a tool used by the parties to inflict hurt on one another.
As I have mentioned, I was initially inclined to the view that his Worship should not necessarily be taken here to have been using the term "access" in a strictly legal sense but rather as referring to a denial of or interference with the particular party's relationship to a child or children of the marriage. However, having read the transcript several times, I think his Worship did mean access as such and that did result in a relevant misapprehension of what the dispute was about; although again I say that was no doubt due more to a lack of the relevant information having been put to his Worship in the first place.
The only other factors to which his Worship specifically referred in sentencing were the seriousness of the offences and the fact that the appellant had previously been convicted of assault upon the complainant, his ex de facto. In light of the material put before him it is hardly surprising that the learned Magistrate focused on the matters he did. Nonetheless, there does appear to have been a failure to have regard to mitigating factors.
It may well be that even if they were taken into account, the sentence would still have been the same but it may not have been and the appellant was entitled to have them taken into account and have them seen to have been taken into account. I am left with the conclusion that in the unusual circumstances of this case some explanation was required from the learned Magistrate as to why immediate imprisonment was the only option, and more particularly in the context, why an intensive supervision order or a suspended sentence were not. His failure to mention them does, I think, indicate that he failed to have proper regard to them.
I say, again, that had he done so he may well have arrived at the same result - but of course he may not have. The same applies to his Worship's failure to refer to mitigating factors and specifically to the plea of guilty. It is true that inadequate information was put before his Worship by duty counsel but I appreciate the difficulties confronting duty counsel and the pressures under which they ordinarily operate. I accept Mr Karstaedt's submission that duty counsel and probably the appellant were no doubt left with what was obviously a false sense of complacency by the course the proceedings had taken, up to the point at which his Worship handed down sentence, that complacency deriving from an expectation that a non‑custodial sentence was being contemplated by his Worship.
I am not entirely satisfied that the impression which was apparently given to the appellant and duty counsel was in reality justified. I think a careful reading of the remarks made by his Worship when remanding the appellant for the pre‑sentence report would have indicated that indeed his Worship did have the possibility of imprisonment very much in mind.
Nonetheless, in my view, it was incumbent on his Worship to indicate to counsel, more clearly than he did, that he was considering immediate imprisonment. It is likely that, had that been done, the further information about the appellant's personal circumstances at least would have been put forward. That is another reason in terms of s 186(1)(b) of the Justices Act which is sufficient to justify a review of the decision.
As to what has been advanced by the appellant about the circumstances of the offences, Ms De Maio makes a submission that no objection was taken to challenge the prosecution statement of facts, either on 3 October or on 23 October, and that it may well be the appellant is now trying to put forward a reconstructed version. That submission, to my mind, has considerable force, but that is not something which I can now resolve nor do I need to.
Given my conclusion that the exercise of the Magistrate's sentencing discretion miscarried, for these reasons it follows that the sentences must be quashed. The obviously very important conflicts as to the offences themselves will have to be resolved by agreement or by evidence. I do not propose to embark on that exercise.
In any event, I do not have the victim impact statement.
I propose therefore to remit the matter to the learned Magistrate for sentence according to law. It will be for his Worship to resolve such contested factual matters as there may then be. The orders that I will make are that the appeal be allowed, the sentences be set aside and the complaint be remitted to the learned Magistrate for sentence according to law.
ADDENDUM
During oral argument on this appeal Mr Karstaedt submitted that s 11 of the Sentencing Act 1995 (WA) did not allow the appellant to be sentenced for both offences. That however, was not a ground of appeal and was not further pursued. The effect of that section in the circumstances of this case would need to be considered on any re‑sentencing, as would the decision of the High Court in Pearce v The Queen (1998) 72 ALJR 1416 and of the Court of Criminal Appeal of this State in Kilner v The Queen [1999] WASCA 189.
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