TW v Simpson
[2016] ACTSC 207
•5 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | TW v Simpson |
Citation: | [2016] ACTSC 207 |
Hearing Date: | 7 July 2016 |
DecisionDate: | 5 August 2016 |
Before: | Penfold J |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with discretion of Court below – appeal from sentence imposed in Childrens Court for offence of common assault – conviction recorded – whether sentence manifestly excessive – whether Magistrate misapplied s 17 of Crimes (Sentencing) Act – whether Magistrate failed to take into account considerations relevant to the sentencing of young offenders – significance of offender’s in-court behaviour – appeal dismissed. |
Legislation Cited: | Crimes (Sentencing) Act 2005, ss 17, 34(1)(e), 133C, 133D |
Cases Cited: | Mearns v Neill [2016] ACTSC 36 OH v Driessen (No 2) [2015] ACTSC 354 Sigantov The Queen (1998) 194 CLR 656 |
Parties: | TW (Appellant) Daniel Alan Simpson (Respondent) |
Representation: | Counsel Mr H Jorgensen (Appellant) Ms E Beljic (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 17 of 2016 |
Decision under appeal: | Court: ACT Childrens Court Before: Special Magistrate Doogan Date of Decision: 26 February 2016 Case Title: Daniel Alan Simpson v TW Court File Number: CH2015/717 |
Introduction
TW appealed against a conviction recorded in the Childrens [sic] Court on 26 February 2016 on a plea of guilty to a charge of common assault committed on 2 October 2015. As well as recording the conviction, the Magistrate made an 18-month good behaviour order with a supervision condition.
At the end of the hearing, I indicated that I intended to dismiss the appeal, but would provide reasons later. That was not at the time recorded as a final order. Accordingly, these are my reasons for the order that was indicated at the end of the hearing but will be made now.
The offence
At the time of the offence, TW was 17 years old. He was intoxicated and also affected by cannabis. He became verbally abusive in the family home. His mother and 9-year-old sister felt obliged to leave their home, and police were called. The police Statement of Facts recorded his mother’s report that “his behaviour was escalating”.
When police arrived, TW’s mother told them that TW was not welcome at the house. Police took TW away and spent about an hour and a half trying to find him emergency accommodation for the evening, but were unsuccessful. Eventually they took him home and his mother reluctantly agreed to take him in, provided he went straight to his room and stayed there overnight.
Instead, TW again became verbally aggressive to his mother, and despite encouragement from police to go to his bedroom as agreed, he walked through the doorway and shouldered his mother in the chest, causing her to stumble backwards. TW was then taken away again by police and charged with assault. He spent the night in Bimberi Youth Justice Centre.
The sentencing hearing
At the sentencing hearing, by which stage TW had turned 18, counsel for TW asked the Magistrate to make an order under s 17 of the Crimes (Sentencing) Act 2005 (ACT), that is, to deal with the charge without recording a conviction. In support of that application counsel pointed out:
(a)that TW had no criminal history;
(b)that since the offence in October he had been on “some fairly extensive bail conditions not to consume alcohol”, which had only been breached once, despite the fact that he had celebrated his 18th birthday in December;
(c)that he was currently doing an eight-week course through the Ted Noffs organisation which he hoped would lead to some employment in the music production field;
(d)that he was currently still living at home;
(e)that his overnight stay in Bimberi after the incident, in combination with his bail conditions and repeated court attendances, had taught him a valuable lesson; and
(f)that “the tongue lashing he’s received from your Honour today has certainly got through to him”.
No particular extenuating circumstances of the offence were put to the Magistrate, and nor did her Honour identify any.
It was clear from her Honour’s sentencing remarks that she was aware of TW’s age and antecedents. She was also aware of TW’s alcohol abuse, and that it seemed unlikely that he would accept help with alcohol rehabilitation.
The original CADAS report had said that TW “was agreeable to attending additional brief cannabis and alcohol education at the Alcohol and Drug Service”, but that it seemed that “without the support of his mother [TW] will do very little”.
It appears from the Magistrates Court transcript that her Honour also had access to a further CADAS document that was not included in the Magistrates Court bundle, but was handed up on the hearing of this appeal. Her Honour quoted that document as stating that TW and his mother:
have declined the offer of AOD education. In part, this is due to [TW’s] reliance on his mother to take him to appointments which impacts [his mother’s] current work obligations. [TW] will not be attending any treatment with ADS and therefore it’s recommended closure with CADAS involvement with [TW] at this point in time.
The CADAS report, under the heading “physical and mental health history”, did not mention any physical health issues, while stating explicitly that TW had no particular mental health issues.
Her Honour expressed the view that the offence, while able to be described as “barging into [his mother] in front of police”, was reprehensible. Her remarks conveyed the impression, although without referring to the word “aggravation” in any form, that she considered the offence aggravated by TW’s abuse of his mother, including calling her a “bitch” in the lead-up to the offence, and possibly by his willingness to remain living in the family home despite his apparent views about his mother.
The Magistrate noted that the CADAS report suggested that TW was not willing to engage in alcohol counselling, and that this was unfortunate because “alcohol can be the ruin of him”, given that he had already on one occasion breached his bail condition to abstain from alcohol.
Although his counsel did mention TW’s training with the Ted Noffs organisation and his hope of finding employment in the relevant field, there was no suggestion that the recording of a conviction would create particular difficulties for TW in implementing those plans.
The Magistrate in her sentencing remarks:
(a)suggested to TW that if he didn’t like living at home he should find himself a place to live independently;
(b)disputed counsel’s claim that TW’s mother was happy to have him, saying “I bet she’s not. I bet she’s not.”;
(c)said that domestic violence constituted by young men beating up or being aggressive to their mothers was not acceptable in this community;
(d)warned TW that any future offending would see him in the AMC rather than in Bimberi; and
(e)made the following comments, concluding that TW was not remorseful:
It’s disturbing that young men behave in this violent fashion towards women. Don’t roll your eyes. Don’t roll your eyes to heaven. It’s disgusting. It’s disgusting that you behave like this and I’m concerned. I’m concerned that he’s not willing to engage in alcohol and drug counselling and the fact that it’s taken such a long period of time for this matter to be resolved. There’s no indication here that he’s remorseful for anything that he did.
On appeal, TW’s counsel said he was instructed that TW denied rolling his eyes (saying he had looked at her Honour and then looked away), but the Magistrate’s comment was (perhaps unsurprisingly) not challenged at the time.
Her Honour then concluded:
Given his age, I do take account of his antecedents but there’s got to come a time when even the first time somebody should accept the consequences for his actions and I don’t believe that this young man has understood the consequences of his actions. It’s not appropriate under the circumstances to proceed without conviction so on this charge he’ll be convicted but I’ll release him on a good behaviour order.
The appeal
Grounds of appeal
The grounds of appeal were:
(a)that the sentence was manifestly excessive;
(b)that the Learned Special Magistrate misapplied s 17 of the Crimes (Sentencing) Act in failing to record a non-conviction order; and
(c)that the Learned Special Magistrate failed to properly consider or apply ss 133C and 133D of the Crimes (Sentencing) Act.
Submissions
In submissions on the appeal, counsel for the appellant referred to comments I had made in Mearns v Neill [2016] ACTSC 36 at [42] that
A manifest excess appeal ground does not require the identification of a specific sentencing error, but requires a finding, however expressed, that the outcome of the sentencing process is simply wrong (House v the King (1936) 55 CLR 499 at 505; Bugmy v The Queen (2013) 249 CLR 571 at [24], [51] and [52]).
He also quoted comments I made in that case at [44] about the operation of s 17, as follows:
Section 17 sets out matters that must be considered in deciding whether to make a non-conviction order (s 17(3)), and matters that may be considered, being “anything else the court considers relevant” (s 17(4)). It does not set out criteria that must be satisfied before a non-conviction order may be made, as is done in various other sections of the legislation (see, for instance, s 27(1) of the Crimes (Sentencing) Act, which sets out what are properly described as criteria for the making of a deferred sentence order). Her Honour’s reference to the appellant’s case as not satisfying the s 17 criteria suggests that her Honour has misdirected herself to the effect that s 17 requires certain conditions, or criteria, to be satisfied before there is power to make a non-conviction order.
Counsel also quoted remarks by Refshauge J in OH v Driessen (No 2) [2015] ACTSC 354 at [44] to [46], to the effect that generally:
(a)the rehabilitation of young offenders is to be emphasised in preference to other purposes of punishment (s 133C of the Crimes (Sentencing) Act); and
(b)that it is important to recognise that the immaturity of a young offender affects the assessment of the offender’s culpability for an offence (s133D of that Act).
Consideration
Appeal ground (a): manifest excess
I accept the proposition that a non-conviction order would have been available in TW’s circumstances. However this does not mean that such an order was required. I do not consider that it could be said that recording a conviction in this case was simply wrong.
The matters that must be considered under s 17 before an order can be made under that section are:
(a)the offender’s character, antecedents, age, health and mental condition;
(b)the seriousness of the offence; and
(c)any extenuating circumstances in which the offence was committed.
Counsel submitted that the factors that allowed the recording of a conviction to be identified as manifestly excessive in this case were:
(a)that TW was 17 years old and had no prior conviction;
(b)that the offence was of low objective seriousness; and
(c)that TW had been on “extensive bail conditions post-arrest including supervision by Child and Youth Protection Services”.
As already indicated, these factors, especially TW’s age and the nature of the offence, would have permitted the making of a non-conviction order; none of them, however, rendered the recording of a conviction erroneous.
Counsel for the respondent pointed to other factors that made the recording of a conviction more explicable, mentioning:
(a)that in discussion with the CADAS reporter TW had indicated that he felt he had been “harassed by police”, that even his mother “thought the charges were unwarranted”, and that he (TW) did not think that brushing past his mother “constituted assault”; and
(b)that the offence was aggravated by being a family violence offence (R v Mazaydeh [2014] ACTSC 325 at [13] to [16]).
I note in passing that in R vMazaydeh, Murrell CJ referred to authorities to the effect that for domestic violence offences, the sentencing purposes of punishment and personal and general deterrence are particularly significant, although without expressly concluding that it is an aggravating factor of a violent offence that it is committed in a family or domestic context.
Having regard to TW’s comments to the CADAS reporter, the Magistrate was entitled to draw the conclusions she did about whether TW was remorseful. While a guilty plea is usually accepted as evidence of some remorse (Sigantov The Queen (1998) 194 CLR 656 at 663), it may not provide much evidence of remorse. In the course of this sentence hearing, counsel indicated (twice, albeit in slightly different forms), that TW was, after an initial plea of not guilty, “prepared to enter a plea of guilty on the current statement of facts simply to have the matter resolved”. That indication, especially taken together with TW’s apparent lack of interest in drug or alcohol counselling, and his expressed opinion that the assault charge was inappropriate, unwarranted, and suggested police harassment, would have justified her Honour in assessing TW’s remorse as minimal.
The manifest excess appeal ground is not made out.
Appeal ground (b): misapplication of section 17
Nor can I see any misapplication of s 17 in her Honour’s sentencing remarks.
Counsel submitted that her Honour’s comments quoted at [17] above, suggested that her Honour “placed absolute weight on her perception that the appellant had not either accepted or understood the consequences of his actions” and that her Honour’s failure to give reasons or a basis for this view “drew her into error”.
As already noted, s 17 does not require a non-conviction order to be made in any particular case. Nor does it require any particular circumstances to be established, or any particular test to be applied, before such an order is made (at [20] above).
As already noted at [7] to [13] above, her Honour does not seem to have overlooked any of the matters required under s 17 to be taken into account, or indeed any of the matters permitted under that section to be taken into account, to the extent that there was relevant evidence before her.
In particular, I do not accept counsel’s submission that, despite the fact that the appellant had given no evidence, the Magistrate “placed absolute weight on her perception that the appellant had not either accepted or understood the consequences of his actions”, and did not give any reason or basis for this view. Counsel might have seen this as an error of fact on her Honour’s part, but there was no explicit claim to this effect, and it is not clear to me how her Honour’s approach was said to have indicated a misapplication of s 17.
There was no identifiable misapplication of s 17. This appeal ground is not made out.
Appeal ground (c): considerations in sentencing young offenders
Counsel for the respondent pointed out that a failure to “properly consider or apply” a matter, or an approach to weighting a particular matter, does not properly “invoke [a] category of appellate intervention” (R v Ang [2014] ACTCA 17 at [22]). She correctly submitted that, to the extent that this ground of appeal falls within such a proposition, it must fail.
In this case, however, the appeal ground can be read as asserting a failure to take account of relevant considerations, being the matters required to be considered by s 133C and 133D of the Crimes (Sentencing) Act, rather than a failure to give those considerations adequate weight. Even read so as to constitute an available appeal ground, however, the appellant’s claim cannot be made out.
Sections 133C and 133D are as follows:
133CYoung offenders—purposes of sentencing
(1)Despite section 7 (2), in sentencing a young offender, a court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in section 7 (1).
(2)Also, in sentencing a young offender, a court must have particular regard to the common law principle of individualised justice.
133DYoung offenders—sentencing—additional relevant considerations
(1)In deciding how a young offender should be sentenced (if at all) for an offence, a court must consider the following matters:
(a)the young offender’s culpability for the offence having regard to his or her maturity;
(b)the young offender’s state of development;
(c)the past and present family circumstances of the young offender.
(2) This section applies in addition to section 33 (Sentencing—relevant considerations).
Purposes of sentencing
As noted, there was material before the Magistrate suggesting that the offender was unlikely to accept any further rehabilitation help in relation to his alcohol abuse (at [9] above), and there was nothing before her Honour suggesting that the recording of a conviction would obstruct his rehabilitation in any way. In the circumstances, her Honour could have been justified in concluding that TW’s rehabilitation might be promoted by ensuring that he understood the seriousness of his actions.
While her Honour did not mention s 133C specifically, she did refer to the desirability of drug and alcohol counselling in the interests of the offender’s rehabilitation. I cannot see that her Honour’s sentencing remarks indicated that she had overlooked the importance of the offender’s rehabilitation.
There was no specific submission that her Honour had overlooked the importance of “individualised justice”, and in my view nothing in her Honour’s remarks that would have supported such a submission.
Additional relevant considerations
As to the matters dealt with in s 133D, I note first that no specific submissions were made to her Honour about the offender’s culpability, although his counsel did suggest that the incident might not have been “as serious as the police alleged”, but that he was willing to accept the police description in order to have the matter finalised. In my view, in deciding to make only a good behaviour order in addition to recording the conviction, her Honour recognised that although she found the offence disturbing, TW’s culpability was not particularly high.
Next, there was no specific information available to her Honour about TW’s state of development.
As to TW’s family circumstances, the Magistrate was aware that he remained living in the family home with his mother, and had clearly expressed the view that this imposed obligations on him in terms of how he treated his mother.
I cannot see that her Honour failed to give proper consideration to those matters referred to in s 133D to the extent that they were addressed in the material before her.
Conclusions
The Magistrate did not overlook the considerations in sentencing young offenders that were identified on behalf of the appellant. This appeal ground is not made out.
Perceived in-court behaviour
This matter was not raised as a ground of appeal, but it seems likely that one aspect of what led her Honour to the conclusion that the appellant had not accepted or understood the consequences of his actions was her Honour’s perception that the appellant had rolled his eyes at her in response to her comments that domestic violence, in particular committed by sons against their mothers, was not acceptable.
In this context, counsel for the respondent properly drew my attention to s 34 of the Crimes (Sentencing) Act, which is relevantly as follows:
34Sentencing—irrelevant considerations
(1)In deciding how an offender should be sentenced (if at all) for an offence, a court must not increase the severity of the sentence it would otherwise have imposed because of any of the following:
...
(e)the offender’s behaviour in court;
It was accepted for the purposes of argument that this would have precluded her Honour from sentencing TW more severely as a direct response to the perceived eye-rolling, and I was not required to rule on the scope of the provision.
However, I note that there is a real question whether this section goes beyond excluding the imposition of a higher penalty directly punishing the offender for in-court behaviour. Presumably it does not go as far as excluding a judicial officer from taking account of the offender’s sworn evidence at the hearing (which may include evidence justifying a more severe sentence, for instance, indications of premeditation or of a lack of remorse). It may also not exclude, as might have happened in this case, a conclusion about remorse being drawn from the offender’s in-court behaviour outside the witness box.
Since no submissions were made on this matter, I make no further comment except to note that in-court behaviour is not necessarily irrelevant to the extent of remorse: see R v Vincent Keiren Kiss (1993) 69 A Crim R 436, in which the Victorian Court of Criminal Appeal said (at 440):
We would observe that while, on some occasions, the behaviour of a prisoner may be relevant to a judge’s sentencing considerations, an attitude of impassivity would appear a quite insubstantial basis for a Court to draw adverse conclusions.
In this case, there would have been no basis for a finding that her Honour imposed a more severe sentence by way of a direct response to the perceived eye-rolling. Her Honour had in the course of the hearing already made it clear that, having regard especially to TW’s treatment of his mother more generally and his reluctance to take part in rehabilitation activities, she was not inclined to any significant leniency for TW. Despite this, the punishment element of the sentence that she went on to impose was effectively solely constituted by the recording of a conviction, given that the good behaviour order appeared to be aimed only at TW’s rehabilitation.
Refusal to hear from TW’s mother
There is one other thing I would say about this matter.
The transcript of the Childrens [sic] Court hearing records the following exchange early in that hearing:
Her Honour: can I say it’s a disturbing statement of facts that an 18 year old living at home pushes his mother around and refers – – –
Unidentified female speaker: can I say something?
Her Honour: no you can’t. He’s represented madam.
On the appeal, counsel for TW confirmed that the unidentified female speaker was TW’s mother. The Magistrate was correct to indicate that while TW was legally represented, there was no scope for his mother also to make submissions. This exchange was not the subject of any submissions on appeal, and does not as such indicate error by the Magistrate.
However, TW’s mother could have been heard in the proceedings, either by giving a victim impact statement or by giving evidence on sentence in her capacity as TW’s mother. It seems to me unfortunate that her Honour, having made the point that TW’s mother was not permitted to make submissions, did not remind TW’s lawyer that if there were matters of evidence that TW wished to have his mother put before the Court, she could be called as a witness in the sentence hearing.
Order
None of the grounds of appeal has been made out, and accordingly the appeal must be dismissed.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: David Hoitink Date: 5 August 2016 |
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