Simpson v Oliveira

[2018] ACTMC 28

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Simpson v Oliveira

Citation:

[2018] ACTMC 28

Hearing Dates:

5 July 2018

DecisionDate:

23 November 2018

Before:

Special Magistrate Hunter OAM

Decision:

See paragraphs [52]-[74]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTIC AND PROCEDURE – sentence - common assault – offences against the person – objective seriousness – section 17 non-conviction order – early plea of guilt - offender undergoing treatment for mental health and alcohol issues – offender engaged in restorative justice

Legislation Cited:

Cases Cited:

Crimes Act 1900 (ACT) ss 26, 334

Crimes (Sentencing) Act 2005 (ACT) ss 7, 17, 33

Balthazar v the Queen [2012] ACTCA 26

Cobiac v Liddy (1969) 119 CLR 257

Groessler v Gregoric-Ceballos [2017] ACTSC 124

Liberato v The Queen (1985) 159 CLR 507

Proud v Sladic [2014] ACTCA 26

R v Howell [2018] ACTSC 155

R v Leu [2009] ACTSC 5

R v Mills [2015] ACTSC 419

R v Ross [2011] ACTSC 211

Roseby v Harman [2014] ACTSC 125

Stark v Plant [2010] WASCA 7

Parties:

Daniel Simpson (Informant)

Julia Douglas Oliveira (Defendant)

Representation:

Ms P Burgoyne-Scutts (Informant)

Mr A Doig (Defendant)

Solicitors

ACT Director of Public Prosecutions (Informant)

Ben Aulich and Associates ( Defendant)

File Numbers:

CC18/2703; CC18/6683

SPECIAL MAGISTRATE HUNTER

THE PROCEEDINGS

1.The defendant pleaded guilty to one charge of common assault (CC18/2703) and one charge of recklessly inflicting actual bodily harm (CC18/6683) on 5 July 2018, after pleading not guilty to both on 31 May 2018.

2.The factual circumstances are not in dispute and are largely contained in a compact disc recording of the incident. I have viewed that recording several times.

3.The circumstances surrounding the incident are these: at approximately 12:10 AM on 13 February 2018 the defendant was sitting at a table in the Mooseheads pub in Canberra. At approximately the same time both victims in this matter were dancing on the dance floor with friends on the ground level at Mooseheads.

4.The defendant is seen sitting at a table, she pushes a full glass of beer to the side of her and then for no apparent reason throws a glass in the vicinity of the dance floor. It does not appear that she threw it towards any particular person. However it somewhat incredibly struck two people who were dancing quite some distance apart.

5.It appears that it hit the first person, Ms Turner, on the nose in some form of glancing blow, and then struck Ms Pretorius on the right side of her head and her left shoulder causing a 2.5 cm laceration. This injury required Ms Pretorius to attend at Calvary Hospital for treatment.

6.After the defendant threw the glass she immediately left the bar and went outside but did not leave the area and was later identified after police viewed the CCTV footage. Police said to her “I watched CCTV of you throwing a glass at a girl causing a laceration to her shoulder” the defendant said “in Mooseheads?” Police arrested her and charged her at the watch house. Police did not interview her due to her level of intoxication.

7.I received the following exhibits from the prosecution:

a.an amended statement of facts which is exhibited as P1;

b.the restorative justice report exhibited as P2;

c.the court duty report exhibited as P3;

d.a still of the CCTV footage exhibited as P4;

e.photograph of Mrs Turner exhibited as P5;

f.photographs of Ms Pretorius exhibited as P6.

8.    I received the following exhibits from defence:

a.a bundle of documents filed on 31 August 2018 exhibited as D1;

b.Transcript of academic record exhibited as D2;

c.letter from Bras and Things exhibited as D3;

d.letter of apology to Ms Turner expressing remorse from the defendant exhibited as D4

e.letter of apology to Ms Pretorius expressing remorse from the defendant exhibited as D 5

9.    The defendant gave evidence before me and said that she is a 3^rd year Arts/Law student studying at the Australian National University and residing on campus. The defendant said she has not failed any subjects to date and that she will complete her arts degree in 2019.

10.  The defendant stated that her mother and father live in Sydney and are supportive of her. The defendant also stated that she has two part-time jobs as well as studying full-time. One of those jobs is at Bra and Things and I have before me a letter confirming that.

11.  The defendant indicated that she does not have any recollection of the night in question but indicated that it was the first night back for the new term of university and the event was a university College sponsored pub crawl.

12.  She said that she and her friends preloaded with vodka before they went to the pub crawl and she had drunk half a bottle herself. At the end of the night, after the incident, she said that she was too intoxicated to speak and was not interviewed by police at the watch house because of her intoxication.

13.  The defendant stated that she was referred to Legal Aid for legal advice and then to Ben Aulich and Associates. Since the incident, which appears to be a significant wake up call for her, she has been referred to Directions ACT and has attended over 10 sessions and was advised that she is always able to seek assistance there if required.

14.  The defendant also indicated that she sees a psychologist at Strategic Psychology and has attended several appointments for the purposes of maintaining the work she has already done to maintain her sobriety.

15.  The defendant also stated that she participated in the Restorative Justice process and said that it was important for her to do so, so that she could take full responsibility for her actions. The defendant said it was also important for Ms Turner because Ms Turner had wrongly thought that she had done something wrong and was reassured by the defendant that it was not her fault at all as she did not even know her. The defendant said the process of speaking with Ms Turner took approximately 40 minutes and occurred at one meeting.

16.  Ms Pretorius was invited to participate in restorative justice however did not attend the process. I also note that the defendant wrote to both victims expressing her remorse, taking complete responsibility for her actions. She displayed empathy for them both and apologised to the victims and their families for her actions.

17.  The defendant stated that she had never acted in that way before despite the long-standing issue with alcohol, and indicated that when she found out what she had done she was shocked and embarrassed.

18.  The defendant indicated that with the assistance she is now getting, whilst accepting that she does consume some alcohol, she does not binge drink anymore.

19.  The defendant is working towards a future as a lawyer and has taken steps to find out what consequences these charges will have on her future career. She spoke with Rob Rees from the ACT Law Society who indicated that there was no clear-cut answer about the consequences as it was a case by case determination but indicated that it was important for her to be open about this matter.

20.  The defendant was cross-examined and agreed that she had been aware of her alcohol problem prior to February 2018 and she agreed she had not received or sought any professional help up until then. The defendant agreed that a number of people had raised with her the problem which had led to impulsiveness and recklessness and at times verbal aggression.

21.  The defendant agreed she had reduced her alcohol consumption since the date of the incident although she has not abstained because she does not at this point view her current drinking as causing her harm.

DEFENCE SUBMISSIONS

22.  Mr Doig submitted at the outset that his client, the defendant, was an Arts/Law student studying at the Australian National University in her third year.

23.  Mr Doig referred to what is a typical “glassing“, as generally using a glass aimed at the head and if the glass were to break it is deemed to be a serious weapon. Mr Doig submitted that in the present circumstances before the court, the glass must have broken to have inflicted the injury as there were two injuries inflicted with one throw. Mr Doig submitted that this was not a typical glassing incident.

24.  Mr Doig submitted that this was not the typical glassing one sees, and referred to the decision in R v Howell [2018] ACTSC 155 where his Honour Justice Mossop referring to the matters to be determined in assessing the objective seriousness of offending behaviour included:

a.the nature and behaviour of the offending; and

b.the moral culpability of the offending.

25.   Accepting that when assessing the behaviour, there can be at times, a low level of culpability with an increased injury and at other times a high level of culpability with the reverse being no injury.

26.  Mr Doig referred to Groessler v Gregoric-Ceballos [2017] ACTSC 124, an appeal from the Magistrates Court where the defendant was found guilty of assault occasioning actual bodily harm, with the conduct being slamming a sliding door into a wall cavity when the complainant’s finger was in the circular metal area which was used to move the door in and out of the recessed area. Clearly in that case there was an application of force knowing that the finger of the victim was in the recessed area of the door.

27.  Mr Doig also referred to R v Howell at paragraph 13 where his Honour explained that the objective seriousness of an offence must be judged in reference to both the nature of the behaviour, which would indicate a level of moral culpability as well as the nature and extent of the harm suffered by the victim. In that case the defendant was a police officer who was influenced by intoxication which was self-induced with no real explanation for his conduct. The fact that he would have been trained in personal protection and was under no threat and had no reason to deploy the violence he did. Therefore his moral culpability was high.

28.  Mr Doig sought to explain the difference between the present case and that case. In the present case, the defendant had no prior history of violence when intoxicated other than she had been verbally aggressive but was not on notice that she would harm herself or others. Mr Doig submitted that factor was significant and was in fact a silver lining because she now is having treatment.

29. Mr Doig submitted that there was an issue as to whether section 334 of the Crimes Act 1900 (ACT) would apply, given her mental health condition. To that end, comprehensive assessments were conducted which I have now before me. Mr Doig submitted that the defendant has also participated in the restorative justice process which is something I should also take into account.

30.  It was submitted that this behaviour was a shock, a wake-up call and the defendant has sought and continues to seek help to ensure she does not act in that way again. Mr Doig submitted that she has a good way to go but she has had a good start.

31.  Mr Doig submitted that given her studies and her desire to practice as a lawyer and the uncertainty of whether she will be able to do so, her mental health condition, her lack of antecedents and her otherwise good character, a non-conviction order is something that is not beyond the bounds of the sentencing objectives.

32. Mr Doig referred to the material exhibited before me and particularly the treatment and counselling that she has done since the date of the offence. Whilst accepting that the offence was serious, he submitted that there were extenuating circumstances and in determining whether Section 17 is an appropriate outcome, I should consider that each case turns on its own facts. He submitted it is not a classic case of what would be determined as a ‘glassing’

33.  Mr Doig also referred to Proud v Sladic [2014] ACTCA 26 in reference to the court’s decision in that case about general deterrence not being an impediment to non-conviction order pursuant to section 17 of the Crimes (Sentencing) Act 2005 (ACT) (‘Crimes (Sentencing) Act’). Mr Doig submitted that given the mental illness suffered by the defendant affected her moral culpability, this case is not a vehicle where general deterrence should have prominence in consideration of a sentence.

34.  I received a report from Dr Clout who performed a psychological assessment on the defendant. Dr Clout was provided with a copy of the charges, statement of facts, the relevant legislation and a copy of the CCTV footage.

35.  Dr Clout furnished a report referring to:

a.The reason for the referral;

b.The defendants background, presentation, mental status, developmental history, education and work history, relationship history, drug and alcohol use.

36.  Dr Clout provided an executive summary, opining that the defendant was suffering from symptoms consistent with DSM – IV diagnosis of persistent depressive disorder post-traumatic stress disorder and alcohol use disorder.

37.  Dr Clout opined that these symptoms were experienced from early 2016 and it was these symptoms which drove her to alcohol use which in turn exacerbated his symptoms of depression. It was her view that she suffered severe impairment in functioning and the persistent depressive disorder and alcohol use disorder suggest they fall into the severe category.

38.  Dr Clout opined that it is likely her persistent depressive disorder contributed to her offending behaviour as well as her post-traumatic stress disorder which is also associated with persistent negative effect, and reckless and self-destructive behaviours.

39.  Dr Clout opined that:

“On the night of the offence she was heavily intoxicated after having consumed large quantities of alcohol over a period of several hours. It’s likely that her psychological symptoms contributed to her substance use, and her substance use in turn impacted on her mood, impulsivity, and emotional regulation. It’s probable these conditions had a significant role in Miss Douglas Oliveira’s offending behaviour, and her inability to judge the consequences of her actions.”[1]

[1] Dr Clouts report page 2

40.  I have also taken into account the character references by her parents and family friends as well as a colleague Mr Hill.

PROSECUTION SUBMISSIONS

41.  The prosecutor submitted that this incident would be assessed objectively as a serious offence and referred to it as a “glassing”, referring to it as “objectively serious”. The prosecutor submitted that it is a demonstration of alcohol fuelled violence and there is a significant public interest in these types of offences. The prosecutor further submitted there is prevalence of these types of offences, referring to R v Mills [2015] ACTSC 419, R v Ross [2011] ACTSC 211 and R v Leu [2009] ACTSC 5.

42.  The prosecutor submitted that this matter was serious: the victims were not known to the defendant; there had been no interaction with them; they were minding their own business and it would appear there was no motivation other than the consumption of alcohol. The prosecutor submitted the footage is quite clear that once the glass was thrown the defendant left and the glass struck both the victims.

43.  The prosecutor submitted in relation to the defendant’s personal circumstances that although it was clearly out of character, she should have recognised she had a problem with alcohol, given it had been raised with her. The defendant did nothing about her alcohol abuse or mental health issues despite knowing there was a problem.

44.  The prosecutor submitted that the medical reports show what she has now been doing since the incident, and recognised that the defendant had no memory of this incident given her intoxication and in fact does not remember the incident at all.

45.  The prosecutor further submitted that it is troubling that the defendant has not completely abstained from alcohol which is a significant in her view.

46.  The prosecutor recognised that she has insight now into her alcohol use disorder. Accepted that the defendant pleaded guilty after representations were made, that she has shown significant remorse and has attended restorative justice. The prosecutor also noted that the restorative justice process was beneficial to both the defendant and one of the victims.

47.  The prosecutor rightly submitted that I must consider those factors as a matter of weight when considering the appropriate sentence.

48. In relation to the section 17 application, the prosecutor submitted that that disposition must always be an exception although she agreed that it does not have to be exceptional circumstances

49. In terms of the seriousness of the offending behaviour, the assault occasioning actual bodily harm was more objectively serious however it does arise out of the same circumstances which need to be considered. The prosecutor submitted that this matter should be looked at as a whole. The prosecutor submitted that the difficulty in relation to a section 17 disposition is it was a random act, there is prevalence of alcohol fuelled violence in the area at night. The prosecutor submitted that general deterrence and denunciation of this type of offending is significant and that rehabilitation should not be given any higher weight than any of the other considerations.

50.  The prosecutor submitted that despite the lack of antecedents, the defendant’s youth, and her mental health disorders including PTSD, none of those factors justify an exceptional outcome given the objective seriousness of the offences.

51.  The prosecutor submitted that a conviction is what is expected and it would be an exceptional outcome for a conviction not to be recorded.

DECISION

52.  It is clear on the evidence for me that the defendant suffered from mental dysfunction which precipitated her alcohol abuse disorder. It is also clear on the evidence before me that her psychological symptoms contributed to her excessive alcohol consumption. I am satisfied that these symptoms contributed to her behaviour that evening.

53. I have also taken into account the matters I’m required to pursuant to sections 7 and 33 of the Crimes (Sentencing) Act. Particularly, I have taken into account the plea of guilt which I recognised to be at an early opportunity once she had received legal advice. I accept that it was not at the earliest opportunity but should be taken into account in discounting a sentence.

54.  I have also taken into account her age at the time of offending, her lack of criminal antecedents, her good character, her mental health issues and the effect they had on her behaviour that evening. I have also taken into account that she is studying an Arts/Law degree and is in her third year. I have taken into account the effect that may have on her ability to practise law in the future. I note that there is no concrete evidence to suggest that she will not be able to be admitted to practice if convictions were recorded. I note that it may be an impediment to her.

55.  I have also taken into account her willingness to engage in restorative justice, to recognise the harm she has done, and to apologise for her behaviour that night. I also recognise that at least one of the victims of the behaviour had a positive outcome in relation to the restorative justice process.

56.  I also note that she has demonstrated significant remorse by her plea of guilt, attendance at restorative justice and also the letters of apology she sent to the two victims.

57.  I have is also taken into account the treatment that she has engaged in and continues to engage in, in order to prevent this type of behaviour occurring again. Whilst I except that she has not completely abstained from drinking alcohol, it would seem at the present time that she is aware of her limitations in that regard and no further behaviours of binge drinking has occurred.

58. I have been asked to consider whether it is appropriate to dispose of this matter pursuant to section 17 of the Crimes (Sentencing) Act with a good behaviour order attached. I have reviewed the authorities in relation to this type of disposition.

59. Generally speaking, section 17 is a discretionary disposition, ruled by the provisions of the Crimes (Sentencing) Act.

60.  There are two recent decisions of the Supreme Court of the Australian Capital Territory in regard to the circumstances and considerations required in order to consider this disposition.

61.  The first is Roseby v Harman [2014] ACTSC 125 (‘Roseby’), a decision of Justice Refshauge in relation to a drink-driving first offender appeal.

62. His Honour sets out in that decision the provision of section 17. Subsection 3 (a) deals with what must be considered in making a non-conviction order. They include the offender’s character, antecedents, age, health and mental condition and (b) the seriousness of the offence; and (c) any extenuating circumstances in which the offence was committed. Subsection (4) allows the court to also consider anything else the court considers relevant.

63.  His Honour then went on to consider authorities such as Cobiac v Liddy (1969) 119 CLR 257. Refshauge J said at [40] in Roseby:

“The High Court has authoritatively determined the way the discretion involved in a provision like s 17 of the Sentencing Act should be exercised.  In Cobiac v Liddy (1969) 119 CLR 257 the High Court considered the equivalent South Australian legislation.  It was, to some extent, in different terms but the effect is relevantly identical.  In that case, Windeyer J said (at 276):

... the magistrate must be of opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition.  One of these by itself, or several of them taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits.  The Act speaks of the court exercising the power it confers “having regard to” the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives.  They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration.  But they are wide words.  None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence.

The approach of the majority, Barwick CJ, Kitto and Owen JJ at 265, is instructive.  They held that there was sufficient material to justify the exercise of the discretion under the Act.  They set out the facts which the learned Magistrate took into account and, although expressing some uncertainty about one of the considerations, held that there was sufficient material on which the court could proceed.

That is important because there has been a suggestion by Spigelman CJ in Commissioner for Taxation v Baffsky (2002) 192 ALR 92 that there may be a difference in approach between what Windeyer J said and the majority in Cobiac v Liddy.  Spigelman CJ commented (at 99; [24):

Windeyer J appears to apply a test that one of the specified matters must of itself justify the finding of inexpediency, but that in determining that question the full range of relevant considerations may be taken into account.  The joint judgment proceeds on the basis that any matter relevant to the issue of expediency can be taken into account in the ultimate exercise of the discretion, whether or not that factor itself falls within one of the facts and matters specified in the respective subparagraphs [the Commonwealth provision equivalent to s 17.]

64.  His Honour went on to say that it is not a case of counting up factors for and against and subtracting one from the other, but rather a process of instinctive synthesis of all the relevant factors including those mandated in the section. I have adopted that process in this matter.

65.  Factors such as general deterrence is important in relation to these type of offences. Refshauge J also determined that factors that a court could rely on when considering whether to exercise the discretion, include convictions for similar offences.

66.  Refshauge J in Roseby, referring to specific deterrence, said at [69]:

“there are many cases where the court can be satisfied that an offender is unlikely to reoffend notwithstanding that they have committed the instant offence. Indeed there are circumstances where specific deterrence is not relevant as an issue at all see, for example, R v Elbadar [2012] NSWSC 1492 [28]” Where it was submitted that the particular stresses which formed part of the offending behaviour could not be said to never re-occur, said there was nothing in the evidence to suggest that the remorse insight and otherwise good character would make it other than extremely unlikely that a person would reoffend.”

67.  In my view that is consistent with the present case for which I am to decide.

68.  I have also considered Proud v Sladic [2014] ACTCA 26 (‘Sladic’) where the court held that the ordinary consequence of a finding of guilt is the recording of a conviction see; Balthazar v the Queen [2012] ACTCA 26 at [53]. The failure to record a conviction is an exceptional outcome, Stark v Plant [2010] WASCA 74 at [18].

69.  The court in Sladic also referred to Roseby, where Refshauge J discussed the relevance of extenuating circumstances which may take the case out of the ordinary. The court agreed with what his Honour said at [46]:

“it is unnecessary to identify an exceptional consideration before sentencing court can proceed under section 17. Rather, a non-conviction order may be justified by having regard to the whole of the relevant circumstances, no one of which is exceptional.”

70.  The court cited Refshauge J in Roseby at [125]:

“neither singly nor in combination are the circumstances required to be remarkable; the court must simply address the relevant factors and determine whether they lead to the court’s view that the discretion should be exercised in the particular circumstances”.

71.  The Court in Sladic went on to support that approach stating;

“the approach can be found in the terms of section 17. The provision mandates the consideration of three matters and, impliedly, those three matters may, in combination, justify the imposition of a nonconviction order. Section 17 says nothing about the need for exceptional circumstances”.

72.  Clearly, the exercise is about addressing the relevant factors in determining whether they lead to a view that the discretion should be exercised in the particular circumstance.

73.  Having considered the relevant authorities as well as the legislation, the facts and circumstances presented before me, as well as Counsels submissions, I am of the view that those circumstances in combination justify the imposition of a non-conviction order in this matter.

74. Whilst I find the offence proved, it is inexpedient to impose a conviction on either charge, pursuant to section 17 of the Crimes (Sentencing) Act.

ORDER

Without conviction, the charges CC18/2703; CC18/6683  are dismissed I impose a good behaviour order for a period of 18 months as per the order on file.

I certify that the preceding seventy three [74] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Special Magistrate Hunter OAM.

Associate: Cecilia Pascoe

Date:       23 November 2018