Sandle v Crofts
[2001] WASCA 106
•30 MARCH 2001
SANDLE -v- CROFTS [2001] WASCA 106
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 106 | |
| Case No: | SJA:1219/2000 | 9 MARCH 2001 | |
| Coram: | McKECHNIE J | 30/03/01 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissed Appeal against sentence dismissed | ||
| PDF Version |
| Parties: | CHRISTOPHER BYRON SANDLE GREGORY COLIN CROFTS |
Catchwords: | Criminal law Burden of proof Whether verdict unsafe or unsatisfactory Turns on own facts No new principles Sentence Assault occasioning bodily harm First conviction Whether imprisonment justified Whether sentence should be suspended |
Legislation: | Nil |
Case References: | Gallegos v The Queen [1999] WASCA 191 Jones v The Queen (1997) 191 CLR 439 Kenny v Lewis, unreported; SCt of WA (Kennedy J); Library No 990113; 12 March 1999 Lowndes v The Queen (1997) 195 CLR 665 Bartlett v Scantlebury [2000] WASCA 234 Chereeba Pty Ltd v Ramsay, unreported; SCt of WA (Seaman J); Library No 930127; 5 March 1993 Dunthorne v Carone, unreported; SCt of WA (Walsh J); Library No 9171; 5 December 1991 Giannasi v Waghorne, unreported; SCt of WA (Walsh J); Library No 960551; 11 September 1996 Lurssen v Williams, unreported; SCt of WA (Murray J); Library No 950015; 20 January 1995 Smith v The Queen (1992) 7 WAR 527 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SANDLE -v- CROFTS [2001] WASCA 106 CORAM : McKECHNIE J HEARD : 9 MARCH 2001 DELIVERED : 30 MARCH 2001 FILE NO/S : SJA 1219 of 2000 BETWEEN : CHRISTOPHER BYRON SANDLE
- Appellant
AND
GREGORY COLIN CROFTS
Respondent
Catchwords:
Criminal law - Burden of proof - Whether verdict unsafe or unsatisfactory - Turns on own facts - No new principles - Sentence - Assault occasioning bodily harm - First conviction - Whether imprisonment justified - Whether sentence should be suspended
Legislation:
Nil
Result:
Appeal against conviction dismissed
Appeal against sentence dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr R G W Bayly
Respondent : Mr R G Wilson
Solicitors:
Appellant : Bayly & O'Brien
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Gallegos v The Queen [1999] WASCA 191
Jones v The Queen (1997) 191 CLR 439
Kenny v Lewis, unreported; SCt of WA (Kennedy J); Library No 990113; 12 March 1999
Lowndes v The Queen (1997) 195 CLR 665
Case(s) also cited:
Bartlett v Scantlebury [2000] WASCA 234
Chereeba Pty Ltd v Ramsay, unreported; SCt of WA (Seaman J); Library No 930127; 5 March 1993
Dunthorne v Carone, unreported; SCt of WA (Walsh J); Library No 9171; 5 December 1991
Giannasi v Waghorne, unreported; SCt of WA (Walsh J); Library No 960551; 11 September 1996
Lurssen v Williams, unreported; SCt of WA (Murray J); Library No 950015; 20 January 1995
Smith v The Queen (1992) 7 WAR 527
(Page 3)
- McKECHNIE J
Introduction
1 The appellant was charged that on 19 June 2000 at Victoria Park, he unlawfully assaulted Rebecca Louise Sandle, and thereby did her bodily harm.
2 He pleaded not guilty to that charge and on 2 November 2000 stood trial. Following trial he was convicted and sentenced to a term of 12 months imprisonment with parole.
3 On 8 December 2000 he was granted leave to appeal against the whole of the sentence.
4 He was granted leave to appeal against conviction on the ground that the conviction was unreasonable and could not be supported having regard to the evidence. Five matters were particularised in relation to that ground.
5 It is timely to note that the appeal against conviction does not point to any specific error or misdirection on the part of her Worship in the reasoning process.
6 The test to be applied by an appeal court is generally set out in the case of Jones v The Queen (1997) 191 CLR 439 and may be summarised that an appeal should be allowed if, following an independent review of the evidence, the appeal court concludes that it was not open for the Magistrate to convict.
The evidence at trial: The prosecution case
7 The complainant gave evidence that she was the wife of the appellant and that in June 2000 she was living with her son and her husband in a unit in Victoria Park. On 18 June her husband went out and she and her son went to bed quite early.
8 Her husband arrived home sometime between 3.30 am and 4 am. She was awoken by him knocking on the door. She opened the door. He then walked into the lounge room of the apartment which is on the first floor. When inside the lounge room her husband asked her if she had had anyone in the house while he was away in the United States. She responded in the negative and he punched her in the face with his fist, somewhere on the upper part of her face around the bridge of her nose.
(Page 4)
- He then repeated the question and she told him that she had had a man in the flat. He then started hitting her in the face and head again with closed fists. As a result of the hits to the head she was feeling dizzy and could feel blood coming from her nose. He pulled her by the hair across over to the other chair on the other side of the room. He kept hitting her in the face. She was in the middle of the floor feeling dizzy and was on the ground when he hit her again and kicked her in her side and then she blacked out. She came to to hearing her son crying. He was standing in the hallway saying "I want mummy." The appellant took her son back to his room and then in her words:
"… I felt like I was under water. I was starting to get dizzy again and I didn't know what to do. I couldn't get out the front, as I said, because my son's room was right next to it and I felt he was going to come back and keep going so at this stage I was worried. I feared for my life so I ran to the sliding door, which is in the lounge room where I was, and slid the door open. I unlocked the latch, slid the door open and just ran straight out and jumped off the balcony. I landed sort of on my foot but I ended landing on right forearm and my right hip area."
10 At this point a police car passed by. The appellant ran away. She was taken to Royal Perth Hospital. The complainant said she jumped off the balcony because she thought she was going to die that night.
11 When she landed on the ground she sustained a fracture to her right elbow, bruising on her hip and buttocks, together with bruising to her hand.
12 She was asked to examine photographs and described the injuries shown therein as follows:
"… This is covered up because I had a split in my nose and my nose had been dislodged. My lip was cut because my tooth had been punched up against my lip. This was grazed and bruised.
(Page 5)
- That's from where I landed because it's concrete and gravel and what not on the ground. This is the injury to my arm from where I landed on my arm. This is my face. This is from the punches and my tooth was knocked out and my bottom one was chipped off."
13 In cross-examination it was put to her that the appellant did not punch her in the face at all and that she landed on the ground on her face, that being the cause of her injuries. She denied these suggestions.
14 She was cross-examined about previous incidents of self-harm.
15 The self-harm had stretched over approximately two years and took the form of cutting her arm on several occasions and attempting to overdose on Naprosyn.
16 She married the appellant on 26 June 1995 and had applied for divorce in June 1999. They decided to reconcile in November 1999 when the appellant was in the United States. He returned to Western Australia in January 2000 following which they lived together in the unit in Victoria Park. She denied jumping from the balcony of her own will. She was asked for an explanation as to why blood might have been found on the kitchen floor but was unable to give an explanation. She said she was in the lounge room the whole time the assault took place. She denied self-harm by cutting herself the day before as an explanation for the blood in the unit. She said that was actually done in the parking lot at the Tax Office in Cannington.
17 She was unable to give an explanation as to why blood might have been found on the kitchen bench and sink, because she did not go anywhere near the sink. She denied that the appellant assisted her by washing and bathing her arms when she had self-harmed or that he assisted her on the night in question. She did not remove her t-shirt herself.
18 The prosecution called a doctor from Royal Perth Hospital who had examined the complainant on 19 June. The doctor described the results of an examination which included bilaterally bruised eyes, diffuse facial swelling, especially in the maxillary region bilaterally. There were small cuts sustained on the bridge of her nose and clotted blood in both nostrils. Her lips were swollen, and there was a cut on the right upper side of her lip. On the top left incisor a tooth was missing and on the bottom right incisor a chipped tooth.
(Page 6)
19 The doctor was cross-examined. The doctor had only worked as a doctor for nine months, three months of which were in the Emergency Department. The doctor maintained that the injuries were not consistent with landing on the face from a height, because the nose was not severely damaged, the eyes being more damaged than the nose. The fact that the eyelids were swollen suggested to the doctor that it was an injury to the eyes.
20 Constable Howarth gave evidence that he was in the vehicle attending at the unit. He saw the complainant, who was naked from the waist up screaming hysterically. She had blood all over her face.
21 He questioned the appellant who said: "She's all right. She fell down the stairs." Inside the apartment Constable Howarth saw small splatters of blood on the wall in the kitchen, some blood in the lounge and in the passageway.
22 Constable Crofts gave evidence. He looked for teeth in the unit but did not locate any. He noticed a white rag or t-shirt on the floor in the lounge room. The handrail on the balcony at the rear of the unit had what looked like bloodstains on it. There was some blood in the laundry of the unit and on the lid of the washing machine. In cross-examination he gave evidence that he searched for teeth. The search area included the area under the balcony. He did not find teeth: "Unfortunately, it was extremely heavy rain outside and what might have been there, certainly wasn't there when we tried to find them."
The defence case
23 The appellant gave evidence that his wife engaged in self-harm using a knife to hurt herself with. Most times he would get a cold towel and help her with her wounds. He denied punching her or pulling her by her hair.
24 On the night he arrived home at 1.30 am to 2 am. His wife walked into the lounge room and took a seat on the couch. They had a conversation, which the complainant had denied, about the fact that she had had a number of people in the unit having orgies. They talked for about 45 minutes when he heard her son who was up. She was wearing a t-shirt and track pants. He decided to leave through the front door. She was going towards the balcony. He saw her stand on top of the balcony banister and jump headfirst down on the first floor of the complex. He went to her assistance by jumping off the balcony.
(Page 7)
25 He helped her around to the front part of the complex and then he ran upstairs and grabbed a cold towel or something with water to help her.
Magistrate's reasons for decision
26 This was a simple factual case spread over one day where there was only one issue to resolve. That issue was whether the prosecution had satisfied the learned Magistrate beyond reasonable doubt that the injuries undoubtedly sustained by the complainant were as a result of an assault in the unit prior to her jumping over the balcony.
27 It is trite to say that a judicial officer must give reasons for his or her decision. Those reasons must sufficiently expose the reasoning process which leads to the conclusion. The brevity or the length of those reasons will depend on the circumstances, the complexity of the trial, the length of the trial and the issues. It is not necessary that a judicial officer refer specifically to every piece of evidence or every argument so long as the reasoning process is sufficiently exposed. The Magistrate provided adequate reasons for her decision.
Ground of appeal
28 The single ground of appeal is:
"The conviction was unreasonable and cannot be supported having regard to the evidence."
29 That ground is particularised. It is submitted on behalf of the appellant by Mr Bayly, who was not counsel at trial, that the accumulation of the errors particularised leads to a conclusion that the conviction is unsupportable.
Particular (a)
"The Learned Magistrate erred in failing to give enough weight to the evidence of the Complainant's long-standing problem of self-harm and suicidal actions, and the applicant's testimony of always nursing her after these incidents."
30 The Magistrate specifically adverted to the question of self-harm in the course of her reasons. Self-harm is relevant in two ways. The first is that it may provide an explanation for blood found throughout the unit,
(Page 8)
- and particularly in the lounge room where the complainant alleged the assault took place.
31 The second is that it lends support to the appellant's evidence that the complainant jumped from the balcony apparently in a further attempt at self-harm, rather than in order to escape from a violent assault.
32 It is significant that the previous histories of self-harm involved either the taking of tablets or superficial cutting of the skin. There was no previous history of jumping.
33 The question of the weight to the evidence of self-harm was uniquely one for the trial Magistrate. The evidence cannot be examined in isolation but must be viewed in the light of other evidence, including the medical evidence and the police evidence, particularly as to the fact that the door to the unit was locked when they arrived.
Particular (b)
"The Learned Magistrate erred in stating that she believed all of the Complainant's evidence and nothing at all of the Applicant's and without regard to inconsistencies and discrepancies in the Complainant's evidence and between her evidence and the other evidence at trial."
34 Trial counsel commenced his closing address to the Magistrate on behalf of the appellant by saying:
"The thing that struck me first, and might strike your Worship first, is the complainant's evidence because one can't ignore the way that she sat in the witness-box and gave her evidence, in a straightforward fashion with a great deal of emotion. So it was very believable evidence."
- Of course counsel then went on to point to other aspects of the prosecution case arguing that those matters detracted from the apparent believability of her evidence.
35 Whether those other matters detracted was a question for the trial Magistrate. Some of the alleged inconsistencies are dealt with in the following grounds. Others included the hysterical attitude of the complainant on the night.
(Page 9)
36 From my reading of the transcript there are no fundamental inconsistencies between the complainant's account and the evidence of other prosecution witnesses which could render her evidence implausible. It was for the trial Magistrate to give weight to those other matters in her assessment and reach a conclusion. Notwithstanding any unexplained matters or inconsistencies she was able to be satisfied as to the guilt of the appellant beyond reasonable doubt by relying on the complainant's evidence.
Particular (c)
"The Learned Magistrate erred in concluding that the blood marks in the lounge area were the result of the alleged incident on 19 June 2000."
37 In re-examination the appellant was asked:
"Are you able to say how the smears of blood were on the knob of the washing machine and on the lid of the washing machine?---I don't know as to how those got there but I do know that there has been blood in the household on plenty of occasions and the day before this incident she probably could have used a washing machine trying to, you know, wash the blood off of her arm and the things that she was wearing as well because of the times of all that these things have happened in the past."
38 The complainant denied that she had bled in the apartment the night before. Her evidence was that everything relevant happened in the lounge room and that she never moved from the lounge room.
39 The blood in the photographs was acknowledged by counsel for the appellant to be smear type blood.
40 The prosecution advanced the theory that the blood on the fridge was from the appellant's blood on his hands after punching the complainant. It was the case that he had gone back to the unit before the police arrived.
41 The blood in the lounge appeared to be splattered blood.
42 The Magistrate dealt with the question of blood. She said:
"The evidence also is of blood in the unit, in the lounge room, some blood on the balcony, on the pavement down under the balcony, as well as in the kitchen, on the fridge and the washing
(Page 10)
- machine, on the knob and the top of the washing machine lid and the laundry door.
Now, at least some of this blood must be from another incident because from her account, if it did happen as she said, then there would be blood only in the lounge room. If it's as he said, all the blood was from her self-harm attempt some time before on the 17th, then it seems unlikely that that blood would have been all through the unit as well as on the balcony and, of course, he says that it's accounted for on the pavement because that's where she received her injuries.
However, clearly there was some blood in the lounge room and on the balcony."
43 On all the evidence it was open for the Magistrate to reach the view she expressed in relation to blood.
Particular (d)
"The Learned Magistrate gave no consideration to the fact that the Complainant's missing tooth and part of a tooth, were not found in the unit."
44 It is clear that the complainant lost a tooth during the course of the night.
45 In the course of describing photographs which were tendered in evidence, the complainant said:
"This is from the punches and my tooth was knocked out and my bottom one was chipped off."
She did not say in evidence at what point she had lost the tooth. When police attended at the scene, Constable Howarth noticed she had a tooth missing. Constable Crofts undertook a search for teeth but did not locate any. His search included the lounge room and under the balcony.
46 It does not appear that the complainant ever alleged she lost the tooth in the lounge room. After she exited via the balcony and had moved from the position where she initially fell it was noticed that her tooth was missing.
(Page 11)
47 In the circumstances, I do not regard the Magistrate's failure to refer to the tooth as significant. Nor do I regard the absence of the tooth as inconsistent with the complainant's evidence such as would engender a reasonable doubt having regard to the other evidence.
48 The Magistrate did note that the complainant had a crushed fingernail and that a false nail was found on the floor of the lounge where the complainant alleged the incident had taken place. This evidence gives some support to the complainant's testimony. The absence of the tooth does not detract from the complainant's credibility.
Particular (e)
"The Learned Magistrate gave no consideration to the fact that the t-shirt was clean, apart from the blood stains, giving evidence to the Applicant's statement that the Complainant took it off before jumping, and he grabbed it before going over the balcony after her to apply it to her expected injuries."
49 The appellant's counsel did not press argument in respect of this ground. In the events of the night, I regard the evidence relating to the t-shirt as equivocal, supporting both the complainant's and the appellant's case.
Conclusion on the appeal against conviction
50 In my view, none of the particulars have been made out. This was a simple case and it was open for the Magistrate to be satisfied beyond reasonable doubt as to the guilt of the accused on her acceptance of the complainant's testimony. The appeal against conviction is dismissed.
Appeal against sentence
51 The appellant was sentenced to 12 months imprisonment with parole. He is a first offender. The grounds of appeal are:
"a) the sentence, especially for a first offence, is manifestly excessive.
b) The Learned Magistrate gave no weight to the mitigating circumstances of great provocation leading up to the incident in question."
(Page 12)
52 This was a vicious assault by a husband upon his wife without reason or provocation.
53 The circumstances are not dissimilar to Kenny v Lewis, unreported; SCt of WA (Kennedy J); Library No 990113; 12 March 1999, where a sentence of 12 months imprisonment by a Magistrate was upheld. In Gallegos v The Queen [1999] WASCA 191 the Full Court per Malcolm CJ at 24-25 made it clear that the fact a crime occurred against a domestic background was not a mitigating factor as had sometimes in the past been suggested but, on the contrary, in the majority of cases of domestic violence a deterrent sentence both personal and general was called for.
54 In my opinion the circumstances of this offence call for a sentence of imprisonment and a term of 12 months is within the range of a sound sentencing discretion notwithstanding the fact that the appellant is a first offender.
Other information
55 I do not consider that the grounds of appeal have been made out in relation to the sentence imposed by the Magistrate.
56 However, during the course of the appeal I received a much fuller plea in mitigation than was put forward to the Magistrate.
57 The Magistrate found that, having heard the evidence, the appellant showed no genuine compassion at all for the injuries inflicted on his wife. I consider that finding to be open on the evidence.
58 In the plea before me, it was pointed out that the parties have now separated with no apparent hope of reconciliation. There is a child and the appellant continues to have access to the child. Therefore in that sense there is the possibility of interaction between the appellant and the complainant, albeit limited to questions of access.
59 The appellant is or has been a basketball player and has in the past been in steady occupation in that career in various places around the world. It is clear from his traffic record that he has a significant problem with alcohol. On the other hand, prior to this assault, there are no matters of violence.
60 The possibility of a suspended term of imprisonment was not adequately canvassed before her Worship and she was not specifically
(Page 13)
- directed towards the benefits such a sentence might have in relation to the rehabilitation of the appellant. Counsel's plea in mitigation was simply a plea that he hoped "… your Worship would be able to see your way clear to not imposing a custodial sentence." Apparently this was put forward on the basis that there was no previous history of violence, the relationship was over and it was a first offence. Counsel expressed the hope that the appellant could be fined, a hope which would have to be regarded as faint having regard to the circumstances of the assault.
61 Having heard a full plea in mitigation, I may well have concluded that in all the circumstances, whilst an order for imprisonment was proper, the term might have been suspended for a period of 2 years. The appellant is a mature man facing his first term of imprisonment.
62 However, what an appellate Judge may have imposed by way of sentence is not the proper test. The principle, expressed as basic in Lowndes v The Queen (1997) 195 CLR 665 at 672, is that a court may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion.
63 Magistrates are invested with considerable sentencing discretion and an appellate court may only interfere when there is a demonstrated error of principle or a sentence is manifestly excessive or inadequate as the case may be. I do not consider that a sentence of 12 months with parole is manifestly excessive. I do not consider that the failure to suspend that sentence is an error of principle in all the circumstances. In consequence the appeal against sentence is also dismissed.
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