Venn v Pettit - [2020] TASSC 18

[2020] TASSC 18

COURT: SUPREME COURT OF TASMANIA

CITATION: Venn v Pettit [2020] TASSC 18

PARTIES:  VENN, Luke (Senior Constable)
  v
  PETTIT, Daniel John

FILE NO: LCA 1948/2019

DELIVERED ON:  19 May 2020
DELIVERED AT:  Burnie
HEARING DATE:  24 February 2020
JUDGMENT OF:  Geason J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Appeal against sentence – Failure to have regard to relevant prior convictions – Sentence manifestly inadequate – Sentencing discretion miscarried – Appeal allowed.
Criminal Code s 50.
Kentwell v The Queen [2014] HCA 37, 252 CLR 601; Veen (No. 2) (1988) 164 CLR 465; Munda v The State of Western Australia (2013) 249 CLR 600 referred to.
Aust Dig Magistrates [1345]

Aust Dig Criminal Law [3519]

REPRESENTATION:

Counsel:
             Applicant:  E Bill
             Respondent:  In Person
Solicitors:
             Applicant:  Director of Public Prosecutions

Judgment Number: [2020] TASSC 18
Number of paragraphs: 35

Serial No 18/2020
File No LCA 1948/2019

SENIOR CONSTABLE LUKE VENN v DANIEL JOHN PETTIT

REASONS FOR JUDGMENT GEASON J

19 May 2020

The respondent was charged with common assault contrary to s 35(1) of the Police Offences Act 1935.
On 8 July 2019 Magistrate L Topfer found the charge proven and convicted the respondent and fined him $250.
By an amended notice to review the applicant contends:
1The sentence imposed was manifestly inadequate.
2The learned magistrate made a specific error in law/fact, by failing to have regard to the respondent's prior convictions in New South Wales.
The applicant was given leave to proceed on the basis of the amended notice to review.
The respondent was unrepresented on the appeal.
For the reasons which follow the appeal succeeds.

The facts

The respondent was the complainant's stepfather. It was alleged that between 8 and 18 October 2018, he struck the child on the back with a belt. A photo of the child's back was in evidence. The child was five years old at the time.
The respondent admitted the conduct.
The issue at hearing was whether the force he applied was lawful by reason of s 50 of the Criminal Code. That section provides "it is lawful for a parent or a person in the place of a parent to use, by way of correction, any force towards a child in his or her care that is reasonable in the circumstances."
The learned magistrate, in finding the charge proven, made the following findings of fact:
1         The child was being naughty all day.
2         The respondent went to discipline the child.
3The respondent put the child on the side of the couch, took off his belt, and intended to hit the child on the buttocks.
4The child was moving around so much that the respondent missed the buttocks and struck the child with the belt on the left side of the back.
5         The force of the strike was sufficient to leave a distinct bruise on the child's back.
The magistrate observed that to constitute force that is reasonable in the circumstances the punishment has to be moderate and reasonable, have a proper relationship to the age, physique and mentality of the child, and be carried out with reasonable means or instrument. She concluded that because the respondent had used a belt and was a grown man who was significantly larger than the complainant, and because the force was sufficient to cause bruising, that the force used was not reasonable in the circumstances.
For the purpose of sentencing, the magistrate was told that the respondent was not employed and was trying to get a job; that he was in a relationship with the child's mother, which had been continuing for nearly three years.
In respect of a prior conviction for assault in 2017, it was explained that the offence was committed when he acted to protect his mother from her ex-boyfriend.
In imposing the sentence, the court observed that the respondent was only 27 years old, that the bruise he caused was not tender, and the child was not distressed by it at school. The magistrate considered it likely to be a one-off incident. She observed that "by in large [they were] doing a good job as parents."

Submissions on the appeal

The applicant submits that the assault was objectively serious having regard to the degree of bruising, and the age of the victim, and because a weapon was used to inflict the assault. It was submitted that the assault involved a significant breach of trust between a young person and the father figure; that there was power disparity between them, which rendered the victim particularly vulnerable.
The applicant also submitted that a number of mitigating factors were absent in this case. They included the lack of an early plea of guilty, that the complainant was required to give evidence, and that the respondent did not have the benefit of youth or an otherwise good record.
It was further contended by the applicant that in fixing sentence the learned magistrate, having made some brief comments in respect of the respondent's prior convictions, and observing the conviction for assault in 2017, concluded that "the only thing since 2014 is this assault and there is a destroy property in March 2008." As a statement of the respondent's relevant prior convictions, that was incorrect. The New South Wales record included two convictions for stalking, two more for intimidation intending to cause fear or physical harm, and two for assault occasioning actual bodily harm. The prior convictions commenced in October 2009 and concluded in September 2016.
It appears that the magistrate must have overlooked the prior convictions, in consequence of the prosecutor's failure to address her in respect of them. In fairness to the prosecutor the record was provided to the court.
The prior convictions were relevant in the sense referred to in Veen (No 2) (1988) 164 CLR 465, Mason CJ, Brennan, Dawson, and Toohey JJ, at [14] :
"… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."
It is not necessary for the Court to determine the way in which the magistrate's error influenced the sentence which was imposed: Kentwell v The Queen [2014] HCA 37, 252 CLR 601, French CJ, Hayne, Bell and Keane JJ at [42]. When a court mistakes the facts or fails to take account of some material consideration, it is not for the court reviewing the sentence to assess whether and to what degree the error influenced the outcome. In such cases the discretion has miscarried and it is the duty of the reviewing court to exercise the discretion afresh, taking into account relevant sentencing purposes. It is not a matter of adjusting the sentence past but exercising the discretion afresh: Kentwell at [40]. This so, because it "cannot be said with confidence" that the error "did not affect the exercise of the sentencing discretion": Turnbull v The Queen [2019] NSWCCA 97 at [38] per Simpson AJA, in respect of an error her Honour described as "all but inconsequential".
I find that the learned magistrate proceeded to sentence on an erroneous basis in consequence of her failure to have regard to the respondent's relevant prior convictions. The appeal is allowed.
Had I not reached that conclusion in respect of ground 2, it would have been necessary to consider whether the sentence was manifestly inadequate. I will say something about that.
The principles applicable in appeals alleging manifest inadequacy are settled. An appellate court sits to correct material error: Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 per Kirby J at [57]-[60]. A conclusion that a sentence is manifestly inadequate does not depend upon the identification of specific error: Dinsdale at [6]. In House v The King (1936) 55 CLR 499 at 505, the court identified two categories of error: specific errors of principle, and cases in which there has been some misapplication of principle "even though where and how is not apparent from the statement of reasons": Wong v The Queen [2001] HCA 64, 207 CLR 584 at [58]. Ground 2 engages the first consideration, and ground 1 the second.
I accept the submission made by the applicant, that the young age of the victim, and the injury sustained, are relevant matters in determining the objective seriousness of the assault. The infliction of force to the body of a five year old child with an implement, and with such force as is sufficient to cause bruising is a serious example of assault. That there are worse examples is not to the point. The objective seriousness of the assault, along with the respondent's prior convictions for similar offences, emphasised the need for a sentence which addressed specific and general deterrence in a way which was unambiguous and clear.
General deterrence loomed large as a consideration relevant to penalty because of the importance of emphasising the protection of the vulnerable. Young children are defenceless to the influences and excesses of those entrusted to care for them. This child was powerless to defend himself. Protection of the vulnerable requires the imposition of a penalty which serves to discourage those minded to inflict such force, by making it very clear that their conduct will be met with a stern response from the courts. I consider this to be all the more necessary because vulnerable children are frequently out of sight and thus away from the supervision of those who might intervene to protect them.
The court failed to give sufficient weight to the need for general deterrence. It exacerbated that failure with the remark about the respondent and his partner "doing a good job as parents". This further diluted any deterrent quality the sentence might have had.
The sentence which was imposed was unduly lenient having regard to the objective seriousness of the offending. It cannot be explained other than on the basis that in fixing sentence the learned magistrate fell into error. This is error of the non-specific kind referred to in House (above).
This case provides an opportunity for the Court to emphasise the importance of protecting the vulnerable by imposing a penalty which gives significant weight to general deterrence. As such it is not appropriate to exercise the residual discretion to dismiss the appeal.
I quash the sentence imposed by the magistrate. I will resentence the respondent.
For the purposes of re-sentencing, the respondent made submissions to the Court. They related particularly to his circumstances. The gist of the submissions was that the respondent was making significant improvements in his life, directed towards obtaining employment. I accept that his financial resources are limited. His relationship appears to be a stable one. His record of prior convictions indicates the need for him to give attention to his propensity for aggressive behaviour. I propose in re-sentencing to make an order which requires the respondent to participate in a program directed towards addressing those matters.
I would not ordinarily consider a fine appropriate for this offence. In part that is because the personal deterrent effect of a fine varies according to the capacity of an offender to pay a fine, even allowing for a variation in the amount of the fine within the available range. In some cases a fine will have little or no such effect. Personal deterrence is an important consideration in sentencing for offences such as this. I am inclined to the view too, that a fine plays down the seriousness of the offence. Something other than a monetary penalty is required to mark the seriousness of this type of offending.
In this case a fine was imposed. Notwithstanding the view I have just expressed, I consider it fairest to maintain that approach on this occasion. Having regard to the circumstances of the respondent I am satisfied that a fine can have the requisite deterrent effect. I also accept the principle that in cases signalling the need for a different pattern of sentencing, such guideline should not ordinarily be applied to the respondent in the case which is the vehicle for that indication: Munda v The State of Western Australia (2013) 249 CLR 600 per Bell J.
An appropriate fine having regard to the respondent’s circumstances, and the gravity of the offending is $850.
I intend to make a community correction order. That is because it is important to mark the seriousness of the offending with an order that requires the respondent to engage with services capable of assisting him to deal with issues of anger. I acknowledge that I have not had the respondent assessed, though that is not a prerequisite to making such order. The Order will run for 12 months and include the core conditions. I impose the following special conditions:
a The respondent must submit to the supervision of a probation officer as required by the probation officer.
b The respondent must attend anger management courses and such counselling as is directed by a probation officer.