Tracey v the Queen
[1987] TASSC 42
•24 July 1987
TASSC A38/1987
CITATION: Tracey & Ors v The Queen [1987] TASSC 42; A38/1987
PARTIES: TRACEY, Dianne
TRACEY, Philip Andrew
TRACEY, Stephen Luke
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 84/1986
DELIVERED ON: 24 July 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF: Green CJ, Nettlefold and Wright JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:
Respondent:
Solicitors:
Appellant:
Respondent:
Judgment Number: TASSC A38/1987
Number of paragraphs: 94
Serial No A38/1987
File No CCA 84/1986
DIANNE TRACEY, PHILIP ANDREW TRACEY and STEPHEN LUKE TRACEY
v THE QUEEN
REASONS FOR JUDGMENT COURT CRIMINAL APPEAL
GREEN CJ (dissenting in part)
NETTLEFOLD J
WRIGHT J
24 July 1987
Orders of the Court:
In each case, leave to appeal against conviction refused.
Dianne Tracey
(a) Leave to appeal against sentence granted.
(b) Appeal allowed.
(c)Sentence of one month's imprisonment quashed. The applicant is sentenced to one month’s imprisonment, the execution of which is wholly suspended on condition that she is of good behaviour for a period of two years
Philip Andrew Tracey
(a) Leave to appeal against sentence granted.
(b) Appeal allowed.
(c)Sentence of one month's imprisonment quashed. The Court adjudges that he for his offence attend at such places and times as shall be notified to him in writing by a probation officer or supervisor for 120 hours and thereafter to do such things for such times as may be required of him under s12 of the Probation of Offenders Act 1973. Further, the Court makes a probation order requiring the applicant to be of good behaviour for a period of one year and during that time to submit to the supervision of a probation officer.
Stephen Luke Tracey
(a) Leave to appeal against sentence granted.
(b) Appeal allowed.
(c)Sentence of one month's imprisonment quashed. The Court adjudges that he for his offence attend at such places and times as shall be notified to him in writing by a probation officer or supervisor for 80 hours and thereafter to do such things for such times as may be required of him under s12 of the Probation of Offenders Act 1973. Further, the Court makes a probation order requiring the applicant to be of good behaviour for a period of one year and to submit to the supervision of a probation officer during that period.
Serial No A38/1987
File No CCA 84/1986
DIANNE TRACEY, PHILIP ANDREW TRACEY and STEPHEN LUKE TRACEY
v THE QUEEN
REASONS FOR JUDGMENT COURT CRIMINAL APPEAL
GREEN CJ (dissenting in part)
24 July 1987
Each applicant was convicted of assault upon his or her plea of guilty and sentenced to one month's imprisonment Each now applies for leave to appeal against conviction and sentence.
In each case the ground of the application for leave to appeal against conviction is as follows:
"That, in all the circumstances, it is unsafe to permit the plea of guilty . . . to stand, and that in the interests of justice (he) (she) should be permitted to now withdraw (his) (her) plea of guilty."
The circumstances referred to in that ground were particularised in the following terms:
"The convictions of all the Applicants should be quashed because they were induced, by a combination of circumstances, to enter Pleas of Guilty against their will,"
A long list of what were claimed to be further particulars of those particulars was also furnished. A number of those further particulars are not in fact further particulars of the assertion that the applicants entered pleas of guilty against their will.
On 12 August 1986 the applicants appeared together before the trial judge. After each had been separately identified and appearances had been announced the trial judge asked the question "A matter for plea is it?", to which counsel for the Crown replied in the affirmative without demur from the applicants or from counsel for the applicants The judge's associate read the charge and the particulars and asked each applicant in turn "How say you – guilty or not guilty?" The applicants D Tracey and P A Tracey replied "guilty" and the applicant S L Tracey replied "guilty sir". At some stage during the proceedings but before the pleas were taken, counsel for the applicants turned to the applicants and said to them words to the effect "you had better plead guilty", or "just say 'guilty' when the charge is put to you".
By the terms of their applications for leave to appeal against conviction each applicant has assumed the burden of satisfying this Court that, amongst other things, they entered those pleas against their will. I turn to consider the evidence given by each applicant as to that issue.
The applicant D Tracey gave evidence to the following effect: when counsel spoke to her before she pleaded she was "stunned" and "felt generally intimidated"; when she went into the court room she "didn't know what (she) was going to say"; she had no option but to plead guilty because she did not have legal aid and the applicants could not defend themselves The applicant also agreed that after entering her plea she made no protest and directed no enquiry to her counsel as to what was happening notwithstanding that she had several opportunities to do so. Her explanation for her failure to do so was that she was "a nervous wreck and ... ignorant of the law".
The applicant P A Tracey gave evidence to the following effect: he "was shocked and unsure of what was happening but said 'guilty' when asked how (he) pleaded"; he pleaded guilty because his counsel told them to do so; he pleaded guilty because the withdrawal or denial of legal aid meant that he was left with no option but to plead guilty.
The applicant S L Tracey gave evidence to the following effect: he was "taken aback" by what counsel had said to him and simply followed the course taken by the other applicants; he did this "without much thought as (he) was not sure what was going on"; he felt he had no alternative but to plead guilty because legal aid had been refused and the applicants could not afford to pay their own costs.
The following considerations are relevant to the determination of the issues of fact raised by the applications for leave to appeal against conviction:
1The evidence does not support a finding that when the applicants pleaded guilty they did not know what they were doing or that they did not understand the legal consequences of what they were doing.
2The applicants attempted to convey to this Court both that the plea was entered because of their emotional state and as an immediate, more or less unthinking response to the statement made by their counsel to them when the charge was read out and that the plea was entered deliberately because they felt that the refusal of legal aid had left them with no other choice. In my view those two explanations are not capable of being reconciled and the fact that they have both been advanced to this Court raises doubts in my mind about the credibility and bona fides of all the applicants Generally, I found the evidence of all the applicants as to why they pleaded guilty confusing and unconvincing.
3When they saw another solicitor on the day upon which they were sentenced and again on the day after, none of the applicants complained that they had pleaded guilty against their will.
4There was no reference to this ground in the original grounds of the applicants' applications for leave to appeal, or in the amended grounds as they were presented to this Court when these applications first came on for hearing.
5Evidence was given by the applicants, by the applicants' solicitor and by other witnesses as to events and conversations which took place before the hearing. Much of the evidence was of no relevance, or of only marginal relevance to the central issue of whether the applicants pleaded guilty against their will, but as it has some bearing upon the issue and as it is relevant to other grounds which were argued, it is necessary to record my findings There were conflicts between the evidence given by the applicants and that given by their solicitor. The applicants were not impressive witnesses; each applicant gave evidence which was internally inconsistent, at times each applicant was obviously rationalising and presenting arguments rather than reporting facts and there were indications that on occasions their evidence was determined by what the other applicants had said or deposed to rather than what they actually remembered. Nothing in the solicitor's demeanour as a witness and nothing put to me persuades me that I should not accept his evidence and, where it conflicts with that given by the applicants, I reject their evidence.
I am not satisfied that in any material sense the applicants pleaded guilty against their will.
The applicants also made a number of miscellaneous complaints about the withdrawal of legal aid and the conduct and advice of their solicitor, but I am quite unpersuaded that they provide grounds for a conclusion that a miscarriage of justice occurred.
I am not satisfied that there was a miscarriage of justice. The applications for leave to appeal against conviction should be refused. I turn to the applications for leave to appeal against sentence.
The comments made by the learned trial judge when he passed sentence and a summary of the undisputed factual material which was before him are set out in the reasons for judgment of Nettlefold J, and I do not need to repeat them.
The grounds of the application for leave to appeal against sentence made by D Tracey are as follows:
"1The Learned Trial Judge erred in law in imposing sentences which were manifestly excessive in the circumstances of the case.
2The Learned Trial judge failed to give any or any sufficient weight to the personal circumstances of each of the accused.
3The Learned Trial Judge erred in law in that in sentencing the Applicants to imprisonment he failed to attach sufficient weight to the conduct of the complainant.
4The Learned Trial Judge ought, in all the circumstances, to have taken sworn evidence to resolve the issues of fact before proceeding to impose sentence.
5The Learned Trial Judge ought, in all the circumstances, to have called for a pre–sentence Report and a Psychiatric Report in the case of Dianne Tracey, before proceeding to impose sentence.
6There is material in favour of the Applicant, which ought to have been before the Court prior to sentence being imposed, and in particular a detailed psychiatric Report dated 30th June, 1986 prepared by Dr N Glinka, which Report was, erroneously, not placed before his Honour."
I am not satisfied that there is any substance in grounds 4, 5 or 6. In the end, there were no issues of fact which the learned trial judge had to resolve before he could properly proceed to impose sentence. No pre–sentence report or psychiatric report was sought by the applicant and nothing put to me persuades me that this was one of those special cases in which the trial judge had a duty to seek such a report of his own motion. Dr Glinka's report contained hearsay, irrelevant material, and an account of the assault which was not entirely in conformity with the applicant's instructions to her solicitor. Her solicitor formed the view that the report would not assist the applicant's case and made a deliberate, not unreasonable decision not to tender it. In those circumstances it is clear that it could not possibly be said that counsel's failure to tender the report provides any ground for concluding that the proceedings miscarried in any way. I turn to the other grounds of the application.
In my view this must be regarded as a moderately serious case of assault. There had been discussions between the applicants indicating a desire on their part to exact some sort of retribution for the complainant's past conduct towards them and counsel for the applicants informed the trial judge that the assaults "arose out of this surfacing of what had obviously been a long, simmering dispute between husband and wife and between father and sons As I said earlier, the opportunity presented itself in that once the altercation started, there was then a flurry of activity, a flurry of blows, which was in effect a carrying out and exhibiting by the three accused of what they'd discussed on several occasions in the past." Thus although it was properly put to and accepted by the learned trial judge that the applicants did not go to the factory with the intention of assaulting the complainant, it is clear that they had previously contemplated doing so, and it can be inferred from the circumstances and from the physical violence which they exhibited in response to the complainant's verbal evasions, which to a normal person would have evoked nothing more than irritation, that when they went to the factory they were predisposed to the use of violence. It was a group attack; there is no suggestion that the complainant had ever used violence towards the applicant; the applicant used a weapon; after inflicting the beating the applicant left the injured complainant at the scene without, it appears, making any effort to determine how seriously he had been injured or to obtain medical assistance for him and she has not at any stage indicated that she feels the slightest remorse for what she has done.
The sentence which was imposed was well within the range of sentences which are regarded as appropriate for moderately serious assaults in this State. I am not persuaded that in the circumstances of this case it could be said that the learned trial judge's decision to impose a sentence of imprisonment was wrong, or that the sentence could be characterised as manifestly excessive. There is no substance in grounds 2 and 3. The application for leave to appeal against sentence should be refused.
With respect, however, I take a different view about the sentences which were imposed upon the other two applicants Significant factors which were relevant to the exercise of the sentencing discretion in relation to them but which did not apply to the applicant D Tracey, are as follows: the complainant had previously used violence towards them; neither used a weapon and the risk that their assaults might cause serious injury was not as great as it was in the case of the assault by D Tracey; they were both young offenders and the degree of their moral culpability could not be regarded as being as great as that of their mother. In my view it was inappropriate to impose the same sentence upon these applicants as was imposed upon the applicant D Tracey. Further, in my respectful view, the circumstances of this case were not such as to justify the taking of the serious step of sending those young first offenders to gaol.
In my opinion the applications for leave to appeal by P Tracey and S Tracey should be granted, the appeals should be allowed, the sentences should be quashed and, provided the statutory conditions are met, sentences in the terms proposed by Nettlefold J, should be imposed by in lieu thereof.
Serial No A38/1987
File No CCA 84/1986
DIANNE TRACEY, PHILIP ANDREW TRACEY and STEPHEN LUKE TRACEY
v THE QUEEN
REASONS FOR JUDGMENT COURT CRIMINAL APPEAL
NETTLEFOLD J
24 July 1987
Each applicant entered a plea of "guilty" to an indictment dated 8 August 1986 charging them with the crime of Assault contrary to s184 of the Criminal Code.
Each applicant now seeks to have the conviction based on the plea set aside on the following ground:
"That, in all the circumstances, it is unsafe to permit the plea of guilty [of the Applicant] to stand and that in the interests of justice [she or he] should be permitted to now withdraw [her or his] plea of guilty."
Extensive particulars of that ground have been supplied.
The Criminal Code provides as follows:
"401(1) A person convicted before a court of trial may appeal to the Court –
(a)…
(b)with the leave of the Court … against his conviction upon a ground of appeal
…
(iii) which appears to the Court to be a sufficient ground of appeal.
402(1)On an appeal the Court shall allow the appeal if it is of opinion … that on any ground whatsoever there was a miscarriage of justice ..."
It has been said that it requires a very strong case and exceptional circumstances before the court will interfere with a conviction on a plea of guilty. Normally, the court will not interfere where the accused has been represented by counsel. To hold the contrary would open the floodgates to appeals on the ground that persons were given advice which turned out unproductive of results for them (Pilkington v The Queen [1955] Tas SR 144 citing R v Lucas (1908) 1 Cr App R 61). However, in Pilkington's case it was said that "It could be another matter if the appellant were improperly induced to plead guilty by his counsel – there could be circumstances which might well vitiate a conviction."
In Ansell v The Queen [1966] Tas SR 8, the other members of the court agreed with the reasons for judgment of Gibson J In his reasons Gibson J cited Pilkington (supra) for the proposition that an appeal against conviction recorded on a plea of guilty will only be allowed in exceptional circumstances His Honour then cited the following passage from Avory J in R v Forde [1923] 2 KB 400, 403:
"A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged."
But, after citing that passage, Gibson J went on to say:
"But if the appellant can satisfy the court that he had been the victim of a miscarriage of justice in any other way he is entitled to succeed on his appeal (Reg v Murphy (1965) VR 187)."
That passage is a recognition of the basic truth emphasised by Sholl J in Reg v Murphy (supra) that we cannot substitute for the plain and broad words of the statute granting the right of appeal a gloss from the cases; the text must have precedence over the gloss (See also Vella (1984) 14 A Crim R 90 at 92; Chiton [1980] 1 NSWLR 218; Schneider No 1 (1981) 4 A Crim R 94). In Vella's case the court said:
"It is probably a mistake to attempt to define the circumstances in which such an appeal will be allowed, for it must be allowed whenever there has been a miscarriage of justice."
In truth, what the cases do is to provide wise guidance, but not binding rules, as to how what is essentially in the nature of discretionary jurisdiction should be exercised. But, of course, once what appears to the Court to be a sufficient ground of appeal emerges there is a mandatory obligation to allow the appeal once the opinion is formed that there was a miscarriage of justice.
The cases make it clear that it is for the applicant to persuade the court that he should be allowed to continue to agitate issues prima facie set at rest by his own plea of guilty (R v Stewart [1960] VR 106 at 110; Murphy at 191; Vella (supra) at 95). The burden of showing a miscarriage of justice is a heavy one. Necessarily the occasions on which an appeal will be allowed where there has been a plea of guilty will be very rare (Vella at 92 and 95).
The principal feature of this case is that there is a very wide and very marked conflict between the evidence of each of the applicants and the evidence of the legal practitioner who acted as their counsel at the time the pleas of guilty were entered as to how those pleas came to be entered. To indicate the real character of this conflict it is sufficient to state briefly some of the principal features of the legal practitioner's evidence before this court and the answer of each applicant to that evidence.
The pleas of guilty were entered at about 10.30 am on Tuesday 12 August 1986. The legal practitioner swears that on the morning of Monday 11 August 1986 he had discussions with all the applicants as to whether they would plead guilty and as to "concessions" which would need to be made for the facts to be put in the most beneficial light on a plea of guilty. Also on that morning he had discussions with the Crown Prosecutor. The discussions with the applicants on that morning took a considerable time with the result that the applicants did not leave the court where the discussions occurred until approximately 11.35 –11.45 am. The legal practitioner swears that, at that time, he did not have final instructions from any of them that a plea of guilty would be entered, but he did have instructions on the "concessions" which would be made if they finally elected to plead guilty. The "concessions" were:
(a)that the first blow was struck by the applicant Phillip Tracey;
(b)after the victim Michael Tracey raised a hammer to protect himself, excessive force was used by each of the three applicants
The legal practitioner says that an arrangement was made that he and Dianne Tracey would speak on the telephone on the Monday afternoon to get the final decision of the three applicants He spoke to her on the telephone at 3 pm approximately on that day and received instructions that Mrs Tracey and her two sons would be pleading guilty. His understanding was that Dianne Tracey had authority from her two sons, the other applicants, to make that communication.
The legal practitioner swears that he arrived at the court building not later than 9.15 am on the morning the pleas were taken. He spoke to all three applicants who re–affirmed the instructions that they would be pleading guilty. He discussed the court procedure with them and there was some discussion as to the likely penalty.
During the hearing of the case there was a short adjournment during which he discussed some of the facts with each of the applicants.
The applicant Dianne Tracey answered those assertions by the legal practitioner as follows:–
1She and the other applicants left the legal practitioner not later than 10.30 am on Monday 11 August. The discussions deposed to by the legal practitioner about "concessions" and possible pleas of guilty did not occur. She had discussions with him about other aspects of the case. The other applicants did not have any discussion with the legal practitioner that morning.
2She did not tell the legal practitioner on the Monday afternoon or at all that the applicants would be pleading guilty.
3She arrived at the court on the day of the hearing expecting a trial on pleas of not guilty. She arrived not intending to plead guilty. The first she knew of a plea of guilty was when the legal practitioner turned around in the court and said "You'd better plead guilty when they read the charges".
4During the adjournment in the course of the hearing on Tuesday 12 August neither she nor the other applicants spoke to the legal practitioner.
The applicant Phillip Tracey answered those assertions by the legal practitioner as follows:
1He did not have any discussion with the legal practitioner on Monday 11 August.
2He did not on Monday 11 August or at any time authorise his mother to inform the legal practitioner that he would be pleading guilty.
3On Tuesday 12 August there was discussion about "concessions" initiated by the legal practitioner. What the legal practitioner said "shocked" him as the legal practitioner was "making something up", "accusing him of something he didn't do". He did not confirm instructions that he would be pleading guilty.
4He was not consulted in any way during the short adjournment in the course of the hearing.
The applicant Stephen Tracey's answers are, in substance, as follows:
1On the morning of Monday 11 August he only greeted the legal practitioner at the court. He did not have any conversation with him. He left the court at 10.15 am
2.He did not on Monday 11 August or at any time authorise his mother to inform the legal practitioner that he would be pleading guilty.
3On the day of the hearing he did not have any direct conversation with the legal practitioner prior to the proceedings in court. On that morning he expected that the jury trial of their case would start. The legal practitioner had not indicated otherwise.
4The legal practitioner did not speak to him during the short adjournment in the course of the hearing.
It is all too plain that those conflicts are very serious And on the points the subject of these conflicts I prefer the evidence of the legal practitioner. His evidence is internally consistent, probable and consistent with the surrounding circumstances Consequently, one cannot proceed on any basis other than this: that nearly 24 hours before the pleas were entered the question of whether they should be entered was discussed at length. On the day before the hearing each applicant had made a decision to plead guilty and that decision was communicated to the legal practitioner. Those instructions were confirmed on the morning of the hearing.
On that basis, in each case, the plea was a conscious considered choice. The evidence of that choice, the evidence as to the injuries suffered by the victim and the fact that there was an outstanding unresolved charge of wounding, based on the facts the subject of the charge of assault, ground the conclusion that one cannot be satisfied, taking the case of each applicant separately, that the plea did not proceed from a genuine consciousness of personal guilt. On that basis, it is not a case where a miscarriage of justice has been shown. One cannot be satisfied that this is not a case where an attempt is being made to resile from a deliberate choice based on legal advice because of disappointment with the severity of the sentence. In each case the plea may have been entered in the belief that, by that course the punishment would be minimised as far as practicable for an offence the applicant knew he or she had committed.
When the case is viewed in that light, the refusal of legal aid for a defended hearing cannot be seen as a basis for a conclusion that there was a miscarriage of justice. That factor must be present in many cases where there are pleas of guilty.
Sentence
The following are the comments on passing sentence:
"Dianne, Phillip and Stephen Tracey. You have pleaded guilty to one count of unlawful assault against your husband and father respectively, Michael Tracey. A brief description of what happened is that the three of you went to his office at Ulverstone on the 10th of January last and asked to talk to him. There had been turmoil within the family for some time past. Husband and wife had separated some months before. After some discussion, Phillip Tracey struck Michael Tracey with his fist. Michael Tracey picked up a hammer in order to defend himself and it is agreed that he was not acting unlawfully in doing so. Both Phillip and Stephen Tracey struck fist blows at Michael Tracey's left wrist area and grabbed at his left wrist in order to make him drop the hammer. Whether they were unlawfully assaulting him at that stage does not matter because the Crown does not rely on anything that happened up to that stage as part of the offence. But immediately afterwards, the two young men began to strike fist blows at the body of their father, less than ten each they say, and at the same time Dianne Tracey struck the head and body of her husband with a jam paddle which she had with her. She struck approximately six blows with the thin end of this jam paddle, which, in spite of its innocent sounding name, was a piece or wood, heavy and hard enough to inflict substantial injury if wielded with force. If the numbers of the blows given as I have mentioned above are correct, which I accept for the purpose of sentencing they are, they must have been heavy blows because the end result was that Michael Tracey was thoroughly beaten and quite extensively injured, though he has made a complete recovery. His head was cut to the bone by a paddle blow or blows He had fractures of the third and fourth lumbar vertebrae, slight anterior wedging of the seventh and eighth thoracic vertebra, extensive bruising and other lacerations and he was immobilised for five days"
Quite a number of undisputed facts and circumstances which were not mentioned by his Honour, should now be mentioned.
The Crown conceded that the applicants did not visit the complainant with the intention of assaulting him. They went to discuss a number of financial matters
The complainant invited the applicants to go to his office which they did. There was conversation relating to the cancellation suddenly and without warning, of the telephone service to the house in which Mrs Tracey lived. There was also a discussion about the failure of the complainant to supply certain information to the Department of Social Security. Mrs Tracey was unable to receive her regular pension entitlement until that information was supplied. There had been problems in the past due to the failure of the complainant to supply, or his delay in supplying, information. She had experienced the same problem the day before which had resulted in her not being able to get her pension cheque.
The complainant was attempting to fob off Mrs Tracey's enquiries when Phillip Tracey stepped forward and said words to the effect "We're sick of this Why don't you give us some straight answers for a change." The initial blow was then struck.
The assault stopped when the hammer was obtained from Michael Tracey. The whole incident from the initial blow until the hammer was obtained was a minimum of two and a maximum of three minutes.
During the course of the marriage the complainant on occasions exhibited a violent disposition towards his children, and towards animals on the farms He also exhibited an aggressive attitude towards friends and neighbours This conduct was aggravated by a regular consumption of liquor.
About two years before the hearing at which these sentences were imposed the complainant, his wife Dianne Tracey and their family moved from a farm where they lived near Deloraine to Ulverstone and they moved on to a property at Gawler. There were four children of the marriage, the two male applicants, Mark Tracey and Julia Tracey. The complainant set up a business in Ulverstone which failed. Financial difficulties in relation to that business and generally got worse and in September 1985 the complainant left the matrimonial home and shortly afterwards took up residence with a woman significantly younger than his wife and well known to each of the three applicants Proceedings were commenced in the Family Court. And in the words of the Prosecutor "feelings between Mr Tracey and his family worsened". Again in the words of the Prosecutor "arguments over money and property were frequent and the relationship between Mr Tracey and his children deteriorated until it reached the stage where they started talking about getting even with their father".
All three applicants had suffered financial hardship for some years prior to the assault. All three worked on the various farms owned by the parties to the marriage.
The personal circumstances of each of the applicants were before his Honour. His Honour was informed that Dianne Tracey was aged 42 years She completed her secondary school certificate in 1960 and obtained employment at a pharmacy in Hobart. Then she worked for three years as a dental nurse. She married the complainant in 1964 and thereafter raised the four children.
After the separation in 1985 she continued to reside at Gawler with her children. Following this assault the three applicants and one other member of the family, Julia, moved to Hobart where they were still living at the time of the hearing. At that time Dianne Tracey's only means of support was said to be a pension of $160 per week, $100 per week of that going for rent.
Phillip Tracey was aged 21 years at the time of the hearing. He attended primary and secondary school at Deloraine completing his secondary education at the Launceston Community College. He had completed two years of a course at the TSIT. He was unemployed at the time of the hearing. It was his intention to attempt to resume his education at TSIT, complete a course for a degree and ultimately obtain a PhD in physics At the time of the hearing his income was an unemployment benefit, slightly less than $100 per week.
Stephen Tracey was aged 17 years He was educated in Deloraine and later at the Don College where he completed one year of matriculation in 1985. At the time of the hearing he was studying at the Elizabeth Matriculation College in Hobart. The only financial assistance available to the mother in respect of him from any government was a tertiary allowance of slightly less than $35 per week.
At the time of the hearing the applicant, Dianne, also had responsibility for the child of the marriage, Julia, who attended Cosgrove High School.
As his Honour observed none of the applicants had a relevant prior conviction.
His Honour was informed that Dianne Tracey and Phillip Tracey had been under "constant psychiatric treatment by Dr Glinker in Hobart and it is envisaged that treatment will continue". His Honour was not told, nor did he ask, what the problems were.
His Honour was informed that the applicants had attended courts in Burnie and Hobart for remand on a number of occasions an a lengthy trial of an indictment charging causing grievous bodily harm and wounding had led to a disagreement and an order for a retrial. As a result of those appearances they were indebted to Mrs Tracey’s brother and some friends and their material position was such that they were not likely to be able to discharge those obligations
As to the injuries to the complainant, a doctor was called to see him after the assault. He found him slouched in an armchair, conscious and able to answer questions rationally. His head, face and upper part of his trunk were covered with blood. His pupils were average size and reacted. He could follow movements with his eyes The pulse was fair. A stammer which the doctor had not noticed before was marked. He was taken to an ambulance where an IV drip was set up. The doctor travelled with him to the hospital. During the journey his vital signs were maintained satisfactorily but he complained persistently of pain in his lower back.
At the hospital he was found to be fully conscious and orientated. He was complaining of a sore head, sore neck, sore back and sore right thigh. He was alert and co–operative. He was said to be "receiving intravenous fluids to keep his vein open only".
He had an 8 cm. full thickness to bone linear laceration in the right parietal region and a 5 cm. circular full thickness, through to bone, laceration in his left temporal region.
His face had evidence of some early bruising and swelling and he had a right subconjunctival haemorrhage. His vision however was fully intact and there was no significant eye injuries apparent. ENT examination was normal. Neurological examination was completely normal.
There was tenderness in the mid thoracic region and in the upper lumbar region and considerable paravertebral muscle spasm.
Apart from tenderness over the left shoulder blade, there appeared to be no other bony injuries He had swelling and tenderness over the right thigh but no evidence of fracture.
All other examinations were recorded NAD.
X–rays revealed slight anterior wedging of the 7th and 8th thoracic vertebrae and fractures of the 3rd and 4th lumbar vertebrae transverse processes on the left.
When Dr Large first found the complainant he was concerned about his condition. For that reason Mr Tracey was carried to the ambulance in the chair in which Dr Large found him and Dr Large travelled with him to the hospital.
His Honour was informed that there was no suggestion of any threat to the life of the complainant. It was said that primarily he was admitted to hospital for suturing of a laceration to the head. The complainant spent five days in hospital as a precaution only. It was conceded that the same sort of maintenance and care could have been given at home. It was just a matter of rest to ensure the damage to his spine corrected itself. He has made a complete recovery.
It should be noted that, in the absence of oral evidence from a doctor, the Court was not in a position to appreciate fully the medical material outlined. Expert evidence was necessary if the Court was to form a safe conclusion as to whether:
(1) the fractures were mere hairline or very slight fractures or more substantial;
(2) whether the infliction of the injuries would require a great deal of force or moderate force;
(3)what the real significance was of a number of matters noted by Dr Large. For example, how freely do the lacerated areas bleed and whether they cut easily or with difficulty.
Stephen Tracey
No reasonable tribunal could conclude on the evidence that an immediate custodial sentence was necessary to deter him from committing further offences No reasonable tribunal could conclude that the risk of him committing another offence of a similar kind was any greater than with any ordinary citizen.
Therefore, a decision to impose an immediate custodial sentence in his case, the sentencer referring his act to the need for deterrence, can be based only on general deterrence.
Important factors in this case were that there was no finding that the applicants had a plan to commit the crime. No premeditation was proved. This applicant reacted to a request in an ugly emotion charged scene where deep resentments, frustrations and disappointments "blew up". Violence ceased when the hammer was obtained. He was a minor reacting to a request from an adult.
It is important to recall what Brennan J said in Neal v The Queen (1982) 149 CLR 305 at 325:
"It is erroneous to neglect consideration of emotional stress which explains criminal conduct; that factor is material to the assessment of proper retribution and it may be material to deterrence – at all events if those to be deterred are likely to be subjected to similar emotional stress "
Reference should also be made to the following passage from Thomas, Principles of Sentencing, 2nd ed at 207:
"A frequent explanation of uncharacteristic offences is that they result from acute emotional stress The most common example is the offence of violence committed against wife or husband, or a third party who has become involved with one of them, as a result of a deteriorating marriage. In such cases the circumstances which precipitate the violent act are usually treated as significant mitigating factors"
The fact that the act of violence, unpremeditated and in circumstance of emotional stress, was an act by one member of a family of a deteriorating marriage to another, is an important factor in sentencing. Our society, recognising the enormous and often overwhelming pressures which modern social conditions impose on the nuclear family, has gone to great lengths to support those families and frame laws and practices which are tolerant, non judgmental and, above all, compassionate. Those laws and practices also recognise the interdependence of members of the family. A hurt to one member may be seen as a hurt to all. To assign 50% of a nuclear family to a common prison because of an incident such as this on grounds of general deterrence stands out as a decision which might be justified but only in a minority of cases There are powerful considerations operating against such a view.
To test the correctness of the view I have just expressed I turned first to the sentencing practice of my colleagues in domestic cases The following is the result of my research, the cases being dealt with in chronological order:
1 15/8/80 Walsh Green CJ
Husband assaults wife with unloaded gun. "Serious assault, frightening and potentially dangerous" – five months' imprisonment, the execution of the whole of the term suspended on condition of good behaviour and treatment for an alcohol problem.
2 8/8/82 James Everett J
Assault with dangerous weapon, "serious" – wife on husband, deteriorating marriage, fortunate more serious harm not caused – supervised probation order for two years with provision for medical, including psychiatric, treatment.
3 6/9/82 Hodgetts Cox J
Two counts assault husband on estranged wife, grabbing and pulling her by the hair and slapping her face, forcing her back into the house and prodding her in the chest with a loaded shotgun and threatening to shoot her, wife ''terrified" – "very dangerous situation'' – nine months' imprisonment wholly suspended on terms as to good behaviour.
4 22/10/82 Hunn Everett J
Domestic dispute, violence – driving a motor car at estranged wife – work order for 15 days – good behaviour bond for 18 months
5 3/8/83 Woodhouse Cox J
Two counts of assault husband on wife. In each instance threat to detonate gelignite producing fear – prior conviction for threatening victim – five months' imprisonment, the execution of which was wholly suspended on condition of good behaviour for two years with probation order.
6 13/6/84 Stewart Cosgrove J
Assault in domestic situation, punching a man lying on a bed – fine $1,000.
7 2/5/85 Blyth Brettingham–Moore J
Two charges of assault wife on husband – blow to chest and neck and another woman Struck several times Blows struck with a nail cleaner in the hand – superficial wounds – one month's imprisonment wholly suspended upon condition of good behaviour for one year.
8 30/7/85 Hubbard Underwood J
Two counts of assault – discharge of a pistol close to the complainant with aim of frightening and kicking, complainant was "the other man" – nine months' imprisonment wholly suspended upon condition of good behaviour for 12 months
9 16/4/87 Shields Underwood J
Assault on father by son – injuries "extensive" – very violent assault – background of serious family discord – six months' imprisonment wholly suspended upon condition of good behaviour for two years Community Service order for 50 hours and probation order for two years with directions concerning treatment.
Thus, in nine cases, there is not a single case of an immediate custodial sentence. Justice requires us to give weight to that circumstance in accordance with the principle stated by Mason J., as he then was, in Lowe v The Queen (1984) 154 CLR 606 at 610 – 611:
"Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the Law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."
A remarkable example of emotional stress and unhappy domestic background as strong mitigating factors is Bogunovich (1985) 16 A Crim R 456 – murder charge, manslaughter plea accepted – penalty – good behaviour bond.
Those general considerations lead me to the following proposition in Yardley v Betts (1979) 1 A Crim R 329 at 333, a proposition in fact based on a statement by Napier CJ in Webb v O'Sullivan [1952] SASR 65 at 66:
"The protection of the public must remain our first concern. but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so."
I have attempted some research in relation to sentencing for common assault generally. That research supports the correctness of the following pronouncement by the Full Court of South Australia in Yardley v Betts (supra):
"There is not, and ought not to be, a policy (in the sense of a universal or pre–determined general practice) of sentencing people who commit serious assaults to imprisonment and not suspending those sentences; each case should be dealt with on its merits by applying the established principles as to sentencing."
Yardley v Betts (supra) contains statistics on sentences for common assault in several courts of summary jurisdiction in South Australia. They are:
(1)defendants where no information as to prior convictions – six imprisoned, six suspended sentences, 27 fined, 18 placed on bond and 13 convicted without penalty;
(2)defendants with prior convictions – two imprisoned, three received suspended sentences, seven fined, four put on bonds and one convicted without penalty.
That case also contains statistics on sentences for the crime of assault occasioning actual bodily harm imposed in the District Criminal Court. They are:
(a)defendants without priors – one imprisoned, five received suspended sentences, seven were fined;
(b)defendants with prior convictions – one imprisoned, three suspended sentences and two were fined.
A reference to Sentencing: State and Federal Law in Victoria, Fox and Freiberg at 513 produces the following figures:
Common Assault
Year Non Custodial Custodial
198136 per cent 64 per cent
198266 per cent 34 per cent
198352 per cent 48 per cent
198439 per cent 61 per cent
Some Hobart figures are:
Charges Tried Period Results
329 1983 Imprisoned 23
Suspended Sentence 26
Work Orders 17
Fines 94
Conviction Recorded 10
Dismissed or with– 55
drawn Imprisonment
and Probation 16
Work orders and
Probation 14
Fines and Probation 20
Probation 27
Adjourned sine die 1
Transferred to Supreme
Court 26
273 1984 Imprisoned 21
Suspended Sentence 21
Work Orders 8
Fines 65
Convictions recorded 20
Dismissed or
withdrawn 53
Imprisonment and
Probation 6
Work Orders and
Probation 3
Fines and Probation 8
Probation Orders 42
Transferred to Supreme
Court 26
300 1985 Imprisoned 16
Suspended Sentence 22
Work Orders 10
Fines 77
Conviction Recorded 6
Dismissed or
withdrawn 81
Imprisonment and
Probation 7
Work Orders and
Probation 18
Fines and Probation 11
Probation Orders 35
Transferred to
Supreme Court 17
324 1986 Imprisoned 34
Suspended Sentence 18
Work Orders 6
Fines 70
Convictions Recorded 8
Dismissed or
withdrawn 98
Imprisonment and
Probation 4
Work Orders and
Probation 29
Fines and Probation 8
Probation Orders 35
Transferred to
Supreme Court 13
Ward of State 1
Stephen had in his favour the powerful mitigating factor that he was a youthful first offender. With respect I adopt the following proposition by Cosgrove J in Goold v McKenna, TASSC 4/1980 at 4, where His Honour said:
"Propositions that can be elicited from these cases are
(a)that punishment as such is not usually a prime consideration in sentencing young first offenders although, of course, a judicious use of punishment imposed or threatened may assist in reforming an offender;
(b)that reform of the offender is a prime consideration; and
(c)that, accordingly, actual imprisonment should be avoided if a suitable alternative is available."
And I refer again to Yardley v Betts (supra) at 333:
"The protection of the community is also contributed to by the successful rehabilitation of offenders This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced."
With great respect, the sentence of Stephen was manifestly excessive. It should be quashed.
Phillip
Phillip's culpability is greater than that of Stephen. But his sentence too is manifestly excessive and should be quashed.
Dianne
Her use of that weapon is an aggravating feature of her case as is her failure to exert a restraining influence on her children. However, with respect, I have formed the firm view that the sentence imposed on her is also manifestly excessive and should be quashed. In her case, the actual sentence should remain but the execution of it should be wholly suspended.
For these reasons I would make the following orders:
1 In each case, leave to appeal against conviction refused.
2 Dianne Tracey
(a) Leave to appeal against sentence granted.
(b) Appeal allowed.
(c)Sentence of one month's imprisonment quashed. The applicant is sentenced to one month's imprisonment, the execution of which is wholly suspended on condition that she is of good behaviour for a period of two years
Phillip Tracey
(a) Leave to appeal against sentence granted.
(b) Appeal allowed.
(c)Sentence of one month's imprisonment quashed. With his consent, adjudge that he for his offence attend at such places and times as shall be notified to him in writing by a probation officer or supervisor for 120 hours and thereafter to do such things for such times as may be required of him under s12 of the Probation of Offenders Act 1973. Further order that he be of good behaviour for a period of one year and during that time submit to the supervision of a probation officer.
Stephen Tracey
(a) Leave to appeal against sentence granted.
(b) Appeal allowed.
(c)Sentence of one month's imprisonment quashed. With his consent, adjudge that he for his offence attend at such places and times as shall be notified to him in writing by a probation officer or supervisor for 80 hours and thereafter do such things for such times as may be required of him under s12 of the Probation of Offenders Act 1973. Further order that he be of good behaviour for a period of one year and submit to the supervision of a probation officer during that period.
Serial No A38/1987
File No CCA 84/1986
DIANNE TRACEY, PHILIP ANDREW TRACEY and STEPHEN LUKE TRACEY
v THE QUEEN
REASONS FOR JUDGMENT COURT CRIMINAL APPEAL
WRIGHT J
24 July 1987
I have had the opportunity and advantage of reading the reasons for judgment prepared and now published by Nettlefold J. As to the application to set aside their pleas of guilty, I am satisfied for the reasons given by Nettlefold J. that the applicants cannot succeed. I am quite satisfied on the whole of the evidence that the legal practitioner concerned, despite a manifest resentment at the allegations made against him by the applicants, which tended to colour his evidence and caused him to act unwisely in the witness box and the precincts of the court during the hearing of the appeal, told what was essentially the truth as to the crucial issues before us There were many improbabilities in the applicants' stories Whilst I am fully persuaded that their final decision to plead guilty was largely prompted by the refusal of legal aid for a re–trial, I am also satisfied that they are intelligent and articulate people who, when arraigned did not plead guilty simply on the basis of their counsel's instructions to do so but rather as the consequence of a deliberate choice. Their claim that before entering the dock they had expected a fully defended trial to commence is quite unconvincing. I am also satisfied that the discussions which they acknowledge occurred in relation to the mutual "concessions" by the Crown and the defence, were understood by them to relate to an agreed framework of facts to be placed before the court in connection with the sentencing process rather than for the purposes of an anticipated trial. None of them has persuaded me that the pleas emanated from anything but a considered decision to acknowledge guilt. I am therefore satisfied that their appeals against conviction should be dismissed.
Turning to the question of the sentences imposed and the appeals in respect thereof, I find that I am in substantial agreement with my learned brother Nettlefold J. It is true that there were some relevant features of the case which were not mentioned by the learned trial judge in passing sentence, but I think that insofar as he went he accurately summarised and evaluated the circumstances existing immediately before and during the assaults upon Michael Tracey. Of course merely because he failed to mention some matters of fact put to him by counsel in passing sentence does not mean that he failed to consider those facts or misconceived them in any way. As I see it the issues before this court may be stated as follows Firstly were there any facts not before the learned sentencing judge which were sufficient to put a different complexion upon the involvement of each of the accused in this offence and should those facts now be taken into account by this court in reviewing sentence. Secondly, if such is not the case, can it be said that the sentences or any of them were manifestly excessive upon the basis of the material actually before the learned sentencing judge.
It was submitted that defence counsel omitted to fully present relevant material to his Honour during the plea in mitigation. Defence counsel was obviously in possession of Dr Glinka's report well before that time and, although much of the material in that report consisted of what was strictly hearsay material, in that it contained a good deal of historical narrative as to the marriage and its problems provided by Mrs Tracey and Phillip Tracey, it could have been translated into "evidence" fit for consideration in the sentencing process pursuant to s386(7) of the Code by the simple expedient of defence counsel seeking and obtaining instructions as to its factual accuracy from his clients As some of the material contained in the report was not favourable to his clients I can understand that defence counsel may well have felt inhibited about putting the actual report before the trial judge. Of course this did not relieve him from putting such material from that report or from other sources as may have been reasonably calculated to aid his clients in accordance with his general instructions from them (see Abbott v R (1984) 17 A Crim R 355). I think it was of considerable importance that the trial judge should have been adequately informed as to the background of family conflict and its effect upon the accused before passing sentence. Of course something of a quandry3 is created for an appellate court if counsel in possession of relevant material, has failed to place it before the sentencing judge. Sometimes counsel's decision to withhold such material even in the face of his client's objection, may be seen on later analysis to have been in the client's best interests However such cases will be rare. This was not a case of counsel having been inadequately instructed and the applicants seeking now to capitalise upon material in the nature of "fresh" evidence. It was put to the court that this was rather a case where counsel could and should have directed the trial judge's attention to the disturbed domestic history of the family in greater detail than he did, so that his Honour could properly assess those relationships before opting for a deterrent sentence. As King CJ said in The Queen v McIntee (1985) 38 SASR 432 at 435:
"I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand."
In his address in mitigation defence counsel said:
"My instructions from all three accused, your Honour, are that during the course of the marriage, the complainant Michael Tracey, on occasions exhibited a violent disposition towards his children, towards animals on the farm and also exhibited an aggressive attitude towards friends and neighbours of the family. And this disposition, this attitude was aggravated by a regular consumption of alcohol. Now it's with that background that the family moved to Ulverstone and it's with that background that the financial pressures caused by the collapse of the dairy business led to a surfacing of attitudes, if you like, between the accused persons and their father [sic]."
To recount in full detail the many factors involved in the family history was in my opinion, unnecessary. By his comments defence counsel compendiously and sufficiently disclosed that the complainant was a violent and insensitive man whose past behaviour had instilled apprehension and fear into the other members of his family and I see no reason to conclude that in failing to recite the contents of Dr Glinka's report and in failing to tender it to the court, defence counsel failed in his duty to his clients or caused an unjust result.
Moreover the fact that the victim of an attack is an unpleasant human being does not provide any real excuse or justification for his assailants Whilst it is true that any element of pre–planning of the assault was disclaimed by the Crown and that the individual specific acts of assault by each applicant were referred to and analysed by both counsel during their addresses as to sentence, the fact remains that the applicants were jointly indicted and each applicant engaged in an assault upon Michael Tracey at or about the same time as his or her co–applicants were engaged in similar unlawful conduct. In consequence their punishment should not be significantly affected by the absence of any pre–existing common purpose. The applicant Dianne Tracey is a mature woman now aged 43 years without prior convictions As a result of the combined attack by herself and her sons, her husband was severely injured although fortunately these injuries do not appear to have produced permanent disability. No matter what difficulties had existed in their marriage and no matter what real or imagined sense of grievance accompanied her to the meeting with her husband, she was not entitled to belabour him to the extent that she did with the jam paddle. I agree with Neasey J's assessment of the true nature of this "innocent sounding" implement. It was indeed quite a weighty and effective cudgel; and having seen the photographs of Michael Tracey's injuries and read the medical evidence about them I am fully satisfied that the paddle was wielded with significant force.
In my view, his Honour was entitled to regard Mrs Tracey's assault upon her husband as one requiring a sentence of imprisonment on general deterrent grounds and I think that the length of the sentence imposed cannot be characterised as excessive. Indeed I think it was and is completely appropriate. There have been views expressed in public debate in recent years which tend to suggest that whilst a husband who assaults his wife should be severely punished, a wife may assault her husband with virtual impunity. These are not views which I would encourage and whilst it is unwise and unnecessary to generalise about all cases, I think it should be said that in a society striving for, and largely achieving, sexual equality, no legitimate distinction can or should be drawn between offenders solely upon the basis of gender. Nonetheless in the circumstances of this case after some initial hesitation I have concluded that whilst the actual term of imprisonment imposed upon Dianne Tracey was appropriate, its immediate implementation was not. In many respects it may be said that Dianne Tracey represents the archetype of the offender for whom the suspended sentence was originally designed. In my view the sentence upon her should have been wholly suspended and, in the absence of this final step, I think that it may be properly described as manifestly excessive.
Some distinction may be drawn between Phillip and Stephen Tracey on the one hand and their mother on the other. Phillip was 21 years of age and Stephen was 17 years of age at the time of the relevant events Phillip has no relevant prior convictions and Stephen has none at all. I infer from the circumstances that both young men were under the influence, though not perhaps the domination, of their mother at the time of the assault. Phillip's participation whilst serious in the sense that his initial punch sparked the whole sequence of violent events, was not in my assessment as serious or damaging as his mother's He is also within the age group where legitimate allowance can be made for youthful inexperience and immaturity. Stephen had all of these factors in his favour and in addition, he was younger than Phillip and took a less significant part in the assault. I think that both of them should have been dealt with by something less than an immediate custodial sentence and accordingly in each case such a sentence may be regarded as manifestly excessive. I would therefore allow the appeals against sentence by all three applicants I think the substitute sentences in respect of each of them proposed by Nettlefold J are completely appropriate and reasonable and I would accordingly agree with the orders which he proposes
0
4
0