Thomas v White
[2004] TASSC 7
•25 February 2004
[2004] TASSC 7
CITATION: Thomas v White [2004] TASSC 7
PARTIES: THOMAS, Robert Lionel
v
WHITE, Sergeant Graham Ross
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 37/2003
DELIVERED ON: 25 February 2004
DELIVERED AT: Launceston
HEARING DATE/S: 11 February 2004
JUDGMENT OF: Crawford J
CATCHWORDS:
Magistrates – Jurisdiction and procedure generally – Procedure – Orders and convictions – Sentencing – Imprisonment – General matters – Sentence of three months' imprisonment – Whether manifestly excessive – Common assault by spitting.
Aust Dig Magistrates [150]
REPRESENTATION:
Counsel:
Applicant: M J Brett
Respondent: J P Ransom
Solicitors:
Applicant: Director of Legal Aid
Respondent: Director of Public Prosecutions
Judgment ID Number: [2004] TASSC 7
Number of paragraphs: 10
Serial No 7/2004
File No LCA 37/2003
ROBERT LIONEL THOMAS v SERGEANT GRAHAM ROSS WHITE
REASONS FOR JUDGMENT CRAWFORD J
25 February 2004
Following a defended hearing a magistrate found proved a charge of common assault. It had been alleged that the applicant committed the offence by spitting on a woman's face. He was convicted and sentenced to imprisonment for three months. He applied to review both the finding that the complaint was proved and the sentence of imprisonment, but at the hearing sought only to have the imprisonment reviewed. At the conclusion of the hearing on 11 February, I upheld the motion to review, set aside the sentence of imprisonment and in its place fined the applicant $150. The following are my reasons for doing so.
The complainant, Mrs Atkins, was sitting in the front passenger's seat of a car with her husband. Her four children, aged seven, five, four and two years were in the back of the car. They were opposite a café. The applicant and his wife pulled up outside the café in their car. He entered the café. When he came out he commenced to cross the street towards the Atkins' car and called out to Mr Atkins to tell the latter's brother, Mark, that next time the applicant saw him he would break his legs. Mrs Atkins contributed to the events by telling the applicant that Mark was not scared of him and for good measure, as the applicant turned to walk back to his car, she told him to grow up and stop being so immature. It was an unwise thing for her to do, as was proved when the applicant turned, walked to her door, opened it and spat in her face. He then walked back to his car.
Mrs Atkins said that the spit hit her in her eyes and down the side of her face. She wiped it off. She was pregnant at the time. At the suggestion of a police officer, she went to a doctor and an arrangement was made for her to be tested, after waiting a suitable time, concerning whether she had contracted a disease, although the doctor thought it highly unlikely. At the time of the defended hearing, the test was scheduled for later that week. The learned magistrate gained the distinct impression that she was a strong person and was not troubled by being spat on. Asked by his Worship whether she was very concerned, she said that her main worry was not that the applicant spat in her face but that she was 20 weeks pregnant and if she caught anything it might be passed onto the baby.
The learned magistrate adjourned the hearing for about seven weeks to await the result of the test, which was negative. In the meantime the applicant attended a victims of crime service, which assisted her in the preparation of a typed statement headed "The emotional impact of the crime on me and my family". I suspect that it had a greater impact on the learned magistrate than it should have done. Having regard to the fact that she exhibited no great concern at the first hearing, what the document expressed had an air of exaggeration, although I do not doubt for a moment that the experience was a disgusting one and that there would have existed a worry that she might catch a disease, notwithstanding the doctor's advice that it was very unlikely. On the letterhead of Victims of Crime (North), the statement was in these terms:
"I was horrified when it happened. I felt dirty, unclean and very stressed by the whole incident. It was a horrible experience. But the scariest thing was after it happened when there was a possibility that I might have contracted something. I had to be tested for hepatitis. I was very frightened and I had to wait three whole months to find out, to be cleared. I was worried about it for the next three months while I waited for the blood test. It was a really stressful time. It was even more of a worry because I was pregnant and something might have got passed on to the baby as well.
I don't go out on my own or walk around my own town any more. I used to go shopping alone, but I don't do that anymore. Now I always go with my husband. It has also affected my three oldest children. One had nightmares which lasted a few weeks and he also began wetting the bed. We had never had any problems with him before. He had grown out of all that. Also, all the children started spitting after the incident.
This person is a grown man, you'd think he would know better – he has children of his own."
The applicant was aged 31 years and had no prior convictions. He was married with two children. His rejected defence was that the spit came out of his mouth accidentally and not deliberately. When asked by the learned magistrate whether he had anything to say, he accepted that he had caused a lot of distress for Mrs Atkins and her family. He said that he was very sorry and that it was totally out of character for him. He added that he did not make a habit of spitting on people and that he had two small children who he taught not to spit.
Before imposing sentence the learned magistrate merely said:
"This sort of an assault upon a pregnant woman is a serious and significant matter and is deserving of a penalty both by way of personal and general deterrence. It is the type of assault which these Courts should condemn and which they will condemn."
The only ground of the motion is that the sentence of imprisonment was manifestly excessive in all the circumstances. With respect to the learned magistrate, I unhesitatingly concluded that the motion had to succeed. For a first offender of the applicant's age, three months' imprisonment was far above an appropriate or acceptable punishment. What the applicant did was disgusting, but no physical harm was caused, nor was it likely. The offence was not premeditated, but was provoked on the spur of the moment by Mrs Atkins' utterances acting upon his bad mood. That she was disgusted and worried as a result of the offence was understandable, but no matter what her reasonable response may have been, the sentence was unwarranted.
The maximum prescribed penalties were a fine not exceeding $500 or imprisonment for a term not exceeding six months. (The penalties have since been increased by the Police Offences Amendment Act 2003, s6.) The maximum penalty is deemed to be intended for cases falling within the gravest category of assaults. Veen v R (No 2) (1988) 164 CLR 465 at 478. Having regard to that principle, the sentence was plainly harsh.
I note that a perusal of the sentencing records of this Court since 1989 for the crime of assault, provided insufficient material for a discernible range for assaults by spitting. The only comparable case was one on 11 May 2000 when a judge imposed a probation order with respect to a 36 year old man with quite a long record of prior convictions, some of which indicated a somewhat anti-social attitude, who like in this case, spat on a woman's face. The learned judge described the conduct as "totally offensive, insulting and unacceptable" and noted that it caused the victim considerable anguish for a time concerning whether she may have caught some form of disease.
It was agreed by the parties that I should re-sentence the applicant if I set aside the imprisonment. In my view the appropriate sentence for the offence was a fine. In view of the fact that the applicant, who was unrepresented before the learned magistrate, spent 16 days in prison serving the sentence before he was able to extricate himself on bail pending the hearing of the motion to review, it seemed to me that he had been punished enough, in fact excessively, and I would have preferred to impose a fine that was wholly suspended on a condition of good behaviour for a period. However, the Sentencing Act 1997 does not permit a fine to be suspended. I determined that it was inappropriate for the offence and the offender to impose any form of imprisonment, even if only up to and no more than 16 days backdated so as to give the applicant credit for the period he had served. Nor did I consider it appropriate to impose no punishment. Although not entirely happy with it, I determined to impose a fine of $150, to signify in some measure the Court's condemnation of the applicant's conduct, at the same time taking into account the 16 days he spent in custody.
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