Taylor v Fairman - [2000] WASCA 121

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: TAYLOR -v- FAIRMAN [2000] WASCA 121

CORAM: MILLER J

HEARD: 2 MAY 2000

DELIVERED : 5 MAY 2000

FILE NO/S: SJA 1007 of 2000

BETWEEN: IAN MICHAEL TAYLOR
Applicant
AND
GORDON JAMES FAIRMAN
Respondent

FILE NO/S :SJA 1008 of 2000

BETWEEN :CASSANDRA LEE WADE
Applicant
AND
GORDON JAMES FAIRMAN
First Respondent
DEREK JOHN SAINSBURY
Second Respondent

Catchwords:

Criminal law - Sentence - Assaults by parents on daughter - Whether sentence of imprisonment only disposition open - Family impact and rehabilitation - "Welfare approach" - Intensive supervision order more appropriate

Legislation:

Criminal Code, s 317(1), s 318(1)(d)

Police Act, s 20

Result:

Appeals allowed
Sentences of imprisonment imposed by Magistrate set aside
In lieu of sentences of imprisonment, intensive supervision orders made

Representation:

SJA 1007 of 2000

Counsel:

Applicant: Mr R G W Bayly
Respondent: Mr N E Gvozdin

Solicitors:

Applicant: Bayly & O'Brien
Respondent: State Director of Public Prosecutions

SJA 1008 of 2000

Counsel:

Applicant:     Mr R A Mazza
First Respondent           :     Mr N E Gvozdin
Second Respondent      :     Mr N E Gvozdin

Solicitors:

Applicant:     Mazza & Mazza
First Respondent           :     State Director of Public Prosecutions
Second Respondent      :     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

H v The Queen (1995) 81 A Crim R 88
R v Peterson [1984] WAR 329
Thomson and Owen v The Queen (1998) 105 A Crim R 150

Case(s) also cited:

Australian Coal (1953) 94 CLR 621
Chan v R (1989) 38 A Crim R 337
House v The King (1936) 55 CLR 499
Liu (1989) 40 A Crim R 468
McKenzie v The Queen, unreported; CCA SCt of WA; Library No 930532; 30 September 1993
Nevermann (1989) 43 A Crim R 347
R v Boyd [1984] WAR 236
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
R v Roosmalin (1989) 43 A Crim R 358

MILLER J: The appellants were each charged in the Court of Petty Sessions, Perth that on 19 July 1999 at Alexander Heights they had unlawfully assaulted Chrystal Charlene Wade and thereby done her bodily harm (Criminal Code, s 317(1)). The appellant Cassandra Lee Wade ("Cassandra Wade") was also charged that on 21 July 1999 at Alexander Heights she had assaulted Gordon James Fairman and Malcolm John Campbell, each of whom were public officers then performing a function of their office (Criminal Code, s 318(1)(d)). In addition, Cassandra Wade was charged with the offence of resisting arrest (Police Act, s 20).
The matters came before Mr Paul Heaney SM in the Court of Petty Sessions, Perth on 3 November 1999 when Cassandra Wade pleaded guilty to each of the four charges she faced. The appellant Ian Michael Taylor ("Taylor") appears to have pleaded guilty to the charge he faced at an earlier time. In any event, on 3 November 1999 the learned Magistrate heard submissions in relation to the matters and after a series of further remands, ultimately dealt with the case on 18 January 2000. On that day the learned Magistrate sentenced each of the appellants to imprisonment for 18 months on the charge of assaulting Chrystal Charlene Wade and Cassandra Wade was sentenced to 4 months' imprisonment on each of the charges of assaulting a public officer. These sentences were ordered to be served concurrently with the sentence of 18 months imposed for the offence of unlawful assault upon Chrystal Wade. On the charge of resisting arrest she was fined the sum of $100. From the sentences of imprisonment the appellants sought leave to appeal to this Court and on the same day that they had been dealt with by the learned Magistrate, White J granted each of the appellants leave to appeal.
The grounds of appeal on which leave to appeal was granted were, in the case of Cassandra Wade, as follows:
"The Learned Sentencing Magistrate erred in sentencing the applicant to a total term of imprisonment of 18 months with eligibility for parole. He should have imposed upon the applicant either a community based order or a suspended term of imprisonment.
Particulars
(a)His Worship erred in deciding that general deterrence was the foremost consideration in determining the appropriate penalty.
(b)His Worship failed to give sufficient weight or any weight to the need to preserve the whole of the applicant's family unit.
(c)The circumstances of the offence of assault occasioning bodily harm were not so serious as to warrant an immediate term of imprisonment having regard to:
(i)the applicant's antecedents;
(ii)the applicant's pleas of guilty;
(iii)the applicant's remorse;
(iv)the applicant's desire to undertake family counselling;
(v)the applicant's history as a good parent;
(vi)the offence occurred spontaneously at a point when the applicant was under stress;
(vii)the favourable contents of a written pre‑sentence report and a psychological report, both of which indicated that community supervision was the appropriate outcome;
(viii)the Crown prosecutor's submission that imprisonment was not the only option available to the Court.
(d)With respect to the offences of assaulting a public officer the Learned Sentencing Magistrate erred in sentencing the applicant to terms of imprisonment having made a finding that the offences did not in themselves justify a term of imprisonment."
The grounds of appeal upon which leave to appeal was granted to the appellant Taylor were as follows:
"A.The Learned Magistrate erred in sentencing the Applicant to a term of 18 months imprisonment with parole when he should have imposed either a Community Based Order or a Suspended Term of Imprisonment.
PARTICULARS
i)The Learned Magistrate erred in deciding general deterrence was the foremost consideration in determining the appropriate penalty.
ii)The Learned Magistrate failed to give sufficient or any weight to the need to preserve the whole of the family unit.
iii)The circumstances of the offence were not so serious as to warrant an immediate term of imprisonment having regard to:
(a)The applicant's antecedents including his record
(b)The fact that the applicant had pleaded guilty
(c)The Applicant demonstrated remorse
(d)The Applicant's history as a good parent
(e)The fact that the Applicant was not the prime offender
(f)The Crown Prosecutor's submission that imprisonment was not the only option available to the Court.
B.The Learned Magistrate erred in finding that the Applicant knew that the co‑offender was going to burn the Complainant without first holding a trial of the issues."
The facts which were put before the learned Magistrate on 3 November 1999 revealed that the two appellants were the parents of 13 year old Chrystal Wade but living separately and apart. On the morning of 19 July 1999 Taylor had conveyed Chrystal to her home in Walston Drive, Alexander Heights, returning her from an access visit which he had been allowed that day. At the house there was an altercation over an incident which had allegedly occurred a week beforehand when it was claimed that Chrystal had burned the hands of her two younger sisters with a silver metal bracelet. Although Chrystal denied vigorously that she had been responsible for doing this, Cassandra Wade told her daughter to bring to her the bracelet in question, which she did, whereupon Ms Wade went to the kitchen and heated the bracelet to the point where it turned a red‑bronze colour. She then returned to her daughter who was standing with Taylor. The child saw the heated bracelet in her mother's hand and tried to run from the house but was restrained from doing so by Taylor, who pulled her to the floor and held her on her back whilst Cassandra Wade tried to put the heated bracelet on her daughter's right wrist. It brushed Chrystal's right arm, causing her immediate pain and occasioning her to struggle and scream. It was then put on her right lower leg where it was held in place by Cassandra Wade, occasioning Chrystal severe burns. Cassandra Wade actually asked her daughter repeatedly whether what she was doing was hurting and only after Chrystal acknowledged that it was did she remove the bracelet. Taylor then let Chrystal go, who ran to her bedroom. Later she required medical attention for the burns which were inflicted. Photographs of those burns (taken two days later) were tendered to the learned Magistrate and also made available on the hearing of this appeal. They revealed a burn to the right arm and a very severe chain‑like burn to the right lower leg where the bracelet had been held to the skin.
The facts in relation to the other charges against Cassandra Wade revealed that on 21 July 1999 when detectives had called at her home, she became argumentative and walked out of the house, stating that she was going to leave in her vehicle. Detective Fairman prevented her from doing so by standing in front of her and advising her that she was under arrest. He put his hand on her shoulder but she reacted violently and lashed out at him and another police officer present. When Detective Fairman attempted to restrain her she bit him on the left inner forearm, breaking the skin in several places with her teeth. She lashed out with her feet, striking Constable Campbell in the arm and groin area causing him minor scratches and tenderness to the upper thigh and arm. Detective Fairman required medical treatment to puncture wounds to his forearms and extensive bruising and swelling as a result of being bitten by Cassandra Wade.
It was revealed in submissions to the learned Magistrate that Ms Wade had no prior convictions and Taylor had no convictions of any significance. Each had, of course, pleaded guilty at an early stage in the proceedings and it was put to the Court that each was remorseful for what had occurred to Chrystal. By the time the matter came before the Court Chrystal had been taken from her mother's care and a 12 month care and protection order made in relation to her. Various aspects of the background of each of the appellants were put before the learned Magistrate and pre‑sentence and psychological reports ordered. The pre‑sentence reports were favourable to each of the appellants, as was the psychological report in relation to Cassandra Wade. Only one of the pre‑sentence reports was before me, that relating to Cassandra Wade. It revealed that the author of the report considered Ms Wade to be a 29‑year‑old woman suffering from depression and anxiety who presented as distressed and anxious and extremely embarrassed by her conviction. She was said to be in shock and deeply regretful for what had happened to Chrystal and it was considered that she had reached the point where coping with the demands of single parenting and other associated stresses had become a problem for her resulting in her conviction. Her risk of re‑offending was said to be moderate and it was considered that there was a need for ongoing support and supervision.
At the hearing before the learned Magistrate on 18 January the prosecution was represented by Ms Forrester, an officer of the Director of Public Prosecutions. She put to the learned Magistrate that the Crown did not consider imprisonment was the only appropriate option for both offenders, but submitted that in all the circumstances the acts for which they were responsible went "well beyond any reasonable bounds of parental discipline and the court should … mark the very serious nature of the offence by giving a penalty that not only deters these two offenders from future behaviour of this type but other potential offenders in the community". The submission of Ms Forrester was that an intensive supervision order would achieve both particular aims as well as allowing the family unit to possibly resolve the matter and prevent any further occurrences of a similar nature. Ms Forrester informed the court that she had spoken to Chrystal who did not wish to submit a victim impact statement and who hoped that in the future she would be able to reconcile with both her parents with the help of Family and Children's Services. The incident was said to have greatly distressed Chrystal. In relation to the other charges faced by Cassandra Wade, Ms Forrester's submission was that serious though they were, the Crown did not submit that any further penalty needed to be imposed.
In dealing with the matter the learned Magistrate recounted the facts and made extensive reference to the pre‑sentence report and psychological report in relation to Cassandra Wade. Reference was also made to submissions made on behalf of each of the appellants and the remorse of each was accepted. His Worship then concluded the matter by saying:
"Even though Mrs Wade has suffered great remorse for her actions such as to suggest that she is unlikely to reoffend in a similar manner to this, I feel that nevertheless there needs to be a general deterrent for the necessity of the protection of children of this society. I do not think under those circumstances it is simply enough for adults to inflict harm on children in this manner to simply say they are sorry, that they are suffering deep remorse and that the court should then step back and not perform the role of imposing a suitable deterrent penalty.
The court needs to impose a penalty so that the warning is clear that if children are harmed these courts will impose penalties that are sufficiently sever to have a deterrent effect. This matter is a matter that obviously and naturally has exercised my mind considerably since we were here last because we are dealing with a young girl who was injured and we are also dealing with adults who inflicted that injury and the infliction of that injury is a matter that obviously calls for at least consideration to be given of a prison sentence. So it is a matter that has exercised my mind.
HIS WORSHIP: Even having read the pre‑sentence reports, having heard of the great remorse that both of them have suffered --- I nevertheless have come to the conclusion that this matter ought to be dealt with --- must be dealt with by way of a prison sentence report --- by way of a prison sentence. I will deal first with Mrs Wade on the charge of unlawfully assaulting Chrystal Charlene Wade, on that matter Mrs Wade you will be sentenced to 18 months' imprisonment, you will be eligible for parole. On the other offences of assaulting the policemen, on their own none of those offences warrant a prison sentence but I will impose prison sentences in respect of them simply for the sake of convenience. Concurrent sentences. So on those two --- the two assaults 4 months' imprisonment concurrent. 4 months concurrent.
Turning my attention to Mr Taylor as I indicated before it is clear that at some stage Mr Taylor clearly became aware of the fact that that young girl was going to be burnt. He had the option to prevent it from happening. He could have released the girl, he should have even in fact gone to her assistance to get her out of the way; he chose not to do so. He chose to hold the girl while Mrs Wade burnt her. So I think Mr Taylor also is required to be dealt with by way of a prison sentence. So he also will be sentenced to 18 months' imprisonment, he also will be eligible for parole."
Central to the submissions of the appellants is the argument that this case was one in which the so‑called "welfare approach" was required. That is, the preservation of the relationship between the family members should have been regarded by the learned Magistrate as paramount, it being in the public interest and in the interests of the individual members of the particular family for that family unit to be maintained because there were real prospects of rehabilitation and reconciliation. Reliance was placed upon the words of Malcolm CJ in H v The Queen (1995) 81 A Crim R 88 where his Honour said (at 98):
"It is plain that the learned sentencing judge fully appreciated the dilemma which any sentencing judge faces in a case such as this. On the one hand, the community recognises that domestic violence is a significant problem and that where it has been perpetrated it constitutes a criminal offence which should be dealt with accordingly. It needs to be demonstrated that the courts are prepared to ensure that the victims of domestic violence are protected and that, where appropriate, sentences are imposed which will mark the community's disapproval of domestic violence and serve the ends of both personal and general deterrence. At the same time, the courts have been repeatedly asked to take full account of the position of the victims of such offences in the sentencing process. In addition, it has been recognised that full regard should be paid to the prospects of rehabilitation and the maintenance of the family unit where that is possible. This has sometimes been called a 'welfare approach'."
It was submitted by counsel for the appellants that the learned Magistrate overstated the importance of general deterrence in light of the facts of the case. Whilst it was conceded that general deterrence has a role and an important role to play in any sentencing exercise (see Thomson and Owen v The Queen (1998) 105 A Crim R 150 at 165 and R v Peterson [1984] WAR 329 per Burt CJ at 332), it was contended that an intensive supervision order or a suspended term of imprisonment along with the court's public condemnation of the conduct of the two appellants would have provided sufficient general deterrence in this case.
In all the circumstances of the case I am of the view that imprisonment was not the only option open to the learned Magistrate. I can readily appreciate that having been shown the photographs of the child's injuries and having had recounted to him the appalling circumstances in which Chrystal was assaulted by the appellants, the learned Magistrate considered deterrence to be the primary aspect of the sentencing process in this case. Much as I respect that obvious assessment of his Worship, and notwithstanding that it was a discretionary matter, I am nevertheless of the view that the case did call for a sentence other than one of immediate imprisonment. Not only did the pre‑sentence reports obtained for the benefit of the Court recommend some form of intensive supervision order, but prosecuting counsel conceded that the circumstances of the case were such that imprisonment was not the only disposition of the matter open and an intensive supervision order could achieve the appropriate result. Whilst the learned Magistrate was not in any way bound to accede to the submissions of prosecuting counsel they were, nevertheless, submissions that required the closest consideration. Given that Cassandra Wade has the care of two children aged 3 and 4 years, and there are on foot attempts to reconcile the differences between Chrystal and her parents, this case does seem to me to be one in relation to which the "welfare approach" described by the Chief Justice in H v The Queen (supra) was the approach that the learned Magistrate should have taken. That, it seems to me, is most likely to lead to the best outcome for all concerned in this matter.
It should be said that the learned Magistrate was absolutely correct in categorising this case as extremely serious because of the infliction of injury by parents upon a 13‑year‑old girl, but in all the circumstances of the case, I am persuaded that the appropriate disposition of the matter was to release the two appellants on an intensive supervision order with a community service requirement. To this end I allowed the appeal, set aside the sentences imposed by the learned Magistrate, and in lieu thereof, placed each of the appellants on an intensive supervision order for a period of 18 months with a requirement that each do unpaid community work for 100 hours. Each order is to date from 2 May 2000.