Thomas v Wood

[1990] TASSC 151

Serial No B74/1990
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Thomas v Wood [1990] TASSC 151; B74/1990

PARTIES:  THOMAS, Grant Joseph
  v
  WOOD, Alan Martin

FILE NO/S:  LCA 10/1990
DELIVERED ON:  14 November 1990
JUDGMENT OF:  Cox J

Judgment Number:  B74/1990
Number of paragraphs:  11

Serial No B74/1990
List "B"
File No LCA 10/1990

GRANT JOSEPH THOMAS v ALAN MARTIN WOOD

REASONS FOR JUDGMENT  COX J

(GIVEN ORALLY)  14 November 1990

1. In any lower court appeal against sentence it is always appropriate to bear in mind the words of Burbury CJ in Whittle v McIntyre [1967] Tas SR 263, where his Honour said:

"It is necessary to say emphatically that a police magistrate in deciding what the appropriate penalty is for an offence, is entrusted by the law with a very wide discretion. An appellant is not entitled to ask the Supreme Court to substitute its opinion for that of the police magistrate. The appeal against sentence is a limited appeal. The Supreme Court can only properly allow an appeal against sentence if it plainly appears that the police magistrate made some error in the exercise of his discretion or that a sentence imposed is so manifestly excessive that it is only explicable upon the view that the police magistrate did err in some way. Indeed, it is of great importance that a police magistrate should have a wide discretion in the delicate and anxious task of sentencing – so long as he takes into account all proper factors it is for him to determine what weight should be attached to each. It is not a good ground of appeal to say, 'The magistrate ought to have given more weight than he did to a certain factor'."

1. In the present case, the learned magistrate imposed a sentence of one month's imprisonment upon a 27 year old man living in a stable de facto relationship, with two children, and who had part–time employment and some prospect of it becoming full–time employment. The offence was one of unprovoked common assault in a public place at a time when other members of the public could be expected to be about. The learned magistrate found that the assault consisted of a punch to the head and a swinging of the complainant's body to the ground, as a result of which he received injuries which, though not serious, were, by the same token, not trifling either. They consisted of a swollen left cheek, a black eye and a bruise on the forearm. They were of sufficient severity in the complainant's perception to cause him to present himself for treatment at the Mersey General Hospital, although he was not detained for any length of time.

1. The learned magistrate did not find proved the allegations of the complainant that he was struck several times, and that he was kicked in the head several times while on the ground. The assault in terms of physical impact can be fairly described as being, therefore, at the lower end of the scale as assaults go; not trifling, but of no great severity.

1. The cornerstone of the learned magistrate's decision to impose a custodial sentence was his belief that the applicant took it upon himself to punish the complainant for an offence of indecent assault on a young child which the latter had committed in the past. The learned magistrate found that the applicant thought the complainant had not been punished for that act, and that he assaulted the complainant to persuade him not to repeat it in the future, particularly as two other children of the applicant, in the custody of his divorced wife, live next door to the complainant.

1. There was evidence to support the finding of the learned magistrate's belief that the applicant had erroneously thought the complainant had not been punished, and of his intention to dissuade the complainant from repetition; but in my view there was insufficient evidence to form a view that the applicant had attacked the complainant for the purpose, inter alia, of imposing upon him the punishment which the applicant thought he had wrongly escaped.

1. I think it is clear from the learned magistrate's comments on passing sentence that he did form that view, but it was not part of the prosecutor's original statement of the facts, and while it may have been a possibility as the evidence emerged on the disputed issues on the plea in mitigation, it was never put specifically to the applicant that this was a significant motivation for his attack.

1. Some kind of vigilante action to dispense the applicant's own sense of justice, a justice which does not even bother to enquire what the true facts are, would clearly warrant a deterrent immediate custodial sentence. But that was not shown to be the case here. The assault was not premeditated on the evidence, but was a spontaneous reaction to seeing someone the applicant regarded as a potential danger to his children, and who, when challenged as to whether he was a child molester, had said, "Yes. So what". That response was innocent enough. The complainant was entitled to say to the applicant, in effect, "What business is it of yours if I have been convicted and punished for something I did in the past". Perhaps that is what he meant; but the applicant took it as an indication of flippancy, or lack of remorse for past faults, and this angered him.

1. While in no way condoning the completely unlawful and unjustified use of violence in a public place without any provocation from the complainant, I think the learned magistrate wrongly characterised the conduct complained of, and imposed a sentence which was excessive, having regard to all the circumstances, including the absence of any prior offences of a violent nature on the applicant's part. As Nettlefold J said in Sutcliffe v The Queen an unreported decision of the Court of Criminal Appeal No 44/1979:

"The court which decides to put a person in goal for the first time takes a grave responsibility."

1. Of course it is a duty which must not be shirked if the offence is serious enough, the background and antecedents do not argue strongly for clemency, or the circumstances are such that the aspect of general deterrence outweighs other factors. But in all the circumstances of this case, I think too much weight was given to the last aspect, and too little to that of background and antecedents.

1. The appeal therefore will be allowed and the sentence quashed. As the applicant has spent some seven days in prison, no further immediate penalty is justified in my view.

1. I will, however, impose a probation order for twelve months to reinforce in his mind the need to avoid further breaches of the law. That probation order will not be supervised.