Vincze v Judges
[2024] TASSC 43
•20 August 2024
[2024] TASSC 43
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Vincze v Judges [2024] TASSC 43 |
| PARTIES: | VINCZE, Frank |
| v | |
| JUDGES, Russell | |
| FILE NO: | 607/2023 |
| DELIVERED ON: | 20 August 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 13 February 2024 |
| JUDGMENT OF: | Brett J |
| CATCHWORDS: |
Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Whether recording conviction was excessive considering circumstances of offending and potential impact on employment prospects – Appropriate balancing exercise undertaken - Magistrate’s decision within proper exercise of sentencing discretion.
Aust Dig Criminal Law [3521]
Criminal Law – Appeal and new trial – Appeal against sentence – Fresh evidence and events occurring after sentence – Whether evidence of matters occurring between imposition of sentence and appeal hearing can be considered on determination of review – Evidence regarding impact of conviction on employment prospects – Held evidence of subsequent events cannot demonstrate error – Evidence of subsequent events not considered.
Aust Dig Criminal Law [3524]
Cases cited:
Abbott v The Queen [2019] WASCA 90
Attorney-General v Smith [1993] TASSC 10
Barnsley v Ashdown and Ashdown [1977] TASSC 40
Barrett v Wilson [2015] TASSC 3, 69 MVR 333
Betts v The Queen [2016] HCA 25
Cannell v Hughes [2014] TASSC 41
Coppleman v Godfrey [2014] TASSC 60; McKenna v Freeman [2017] TASSC 64
Director of Public Prosecutions v Chatters [2011] TASCCA 8
DPP v Latham [2009] TASSC 101
LAT v Western Australia [2018] WASCA 215
House v The King [1936] HCA 40; (1936) 55 CLR 499
R v Nguyen [2006] VSCA 184, R v Davidson [2008] VSCA 188
R v PFD [2001] VSCA 198
Turner v Driver [2005] TASSC 85, Traynor v McCullough [2011] TASSC 41 218 Crim R 177
Woods v The State of Western Australia [2017] WASCA 179
Legislation:
Anti-Discrimination Act 1998 (Tas), ss 16(q), 22.
Criminal Code Act 192 (Tas) s 402 (4), s 402(4A)(a), s 402(4A)(b)
Justices Act 1959, (Tas) s 110(2)(AA), s 110 (2AB),
Sentencing Act 1997 (Tas), s 9(a), (b) and (c)
REPRESENTATION:
Counsel:
Appellant: Mr Cameron Scott Respondent: Ms Claire Darvell
Solicitors:
Appellant: Brooke Winter Solicitors Respondent: Director of Public Prosecutions
| Judgment Number: | [2024] TASSC 43 |
| Number of paragraphs: | 46 |
Serial No 43/2024 File No 607/2023
FRANK VINCZE v RUSSELL JUDGES
| REASONS FOR JUDGMENT | BRETT J 20 August 2024 |
1 The applicant moves this Court to review a sentence imposed on him by Magistrate Brown on 8 March 2023 in respect of one count of common assault. The sentence followed the magistrate's finding of guilt after a contested hearing.
2 The grounds of the review contained in the notice include two which attack the finding of guilt. However, on the hearing of this matter, these grounds were abandoned and the review is now limited to the sentence, with a single ground that asserts that the sentence was manifestly excessive in all the circumstances of the case.
3 The sentence imposed by the magistrate was the recording of a conviction and the imposition of a fine of $2,000. While the applicant's argument asserts that the overall effect of the sentence renders it manifestly excessive, the focus of the argument is not on the fine but rather on the recording of a conviction. The applicant's counsel had submitted during his plea in mitigation to the magistrate that a conviction should not be recorded.
4 In addition to the review, there are two subsidiary issues which require determination. Firstly, the applicant has submitted evidence of matters, claimed to be relevant to sentencing, that have occurred between the imposition of the sentence and the hearing of this motion. The applicant argues that the Court is authorised to consider this material when determining the review, and in particular the question of manifest excess, by virtue of s 110(2)(AA) of the Justices Act 1959. The respondent objects to this on the basis that such evidence is not admissible nor relevant to the question of whether error has been established on the basis of manifest excess, and argues that the provisions relied upon by the applicant are relevant only to the question of re-sentencing if the ground is upheld. Because of practical circumstances, it was agreed that I should take the evidence de bene esse. Secondly, on the morning originally listed for the hearing, the respondent's counsel suffered an injury and was unable to appear. Alternative counsel was briefed to appear on the hearing, but sought an adjournment. The review was adjourned to the following day. The applicant's counsel has now applied for costs thrown away as a result of the adjournment.
The magistrate's factual findings and sentencing comments
5 The applicant and the complainant were known to each other. They had a business relationship and they had known each other previously. On the day in question, 10 September 2020, they and others had spent the day together in Launceston, celebrating the end of a period of COVID isolation. They were all consuming alcohol over an extended period, although the magistrate accepted that the applicant had not consumed as much as the others, and was not intoxicated when he committed the offence.
6 The assault occurred in the evening, during an argument between the complainant and the applicant, which started while they were having dinner at a local restaurant. The magistrate accepted that the complainant, in particular, was affected by alcohol and had become boisterous and was acting in a way which understandably had earned the applicant's disapproval. There had been some interaction with other diners which the magistrate found "caused considerable annoyance to the defendant". He found that the dinner "really broke down completely at this point" and was abandoned. The applicant and the complainant, as well as other members of the group, eventually left the restaurant, and the two men started to argue when they got outside. The magistrate found that the applicant "became extremely angry and that the two men were exchanging abusive language".
7 During the course of this argument, the applicant punched the complainant with a closed fist in the face "dazing him and injuring his nose and cheek bone, on his evidence, to a reasonably significant degree". Police were called and the complainant was taken to hospital. The magistrate found that although there was only one blow, it "did some damage of real significance". The complainant was in
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significant pain and distress and was unable to see out of one eye. The injury kept him away from work
for at least a week.8 The magistrate accepted that the assault resulted from a momentary lapse in control. He was satisfied that the applicant was not intoxicated and accepted that the complainant's behaviour which led to the argument was "plainly inappropriate and …. caused annoyance and embarrassment to" the applicant. He found that the applicant's attempts to have the complainant desist from inappropriate conduct were "reasonable and appropriate". However, it is also clear from the magistrate's earlier findings after the hearing that he rejected the applicant's evidence that he was not angry when the punch was delivered and that his hand had accidentally come into contact with the applicant's face.
9 In respect of sentence, the magistrate took into account the applicant's prior good record. It is clear that he regarded the applicant as a person of otherwise good character. At the time of the hearing, the applicant was 50 years of age. He had no prior convictions. The magistrate was told about difficulties in his childhood linked to his father's alcoholism and physical aggression. He had a good industrial record including time spent in the Australian Army as a fulltime solider and then as a reservist, and employment in a number of senior management and operations positions. In 2019, the applicant's marriage ended. Since then, he had been receiving psychological counselling. The counselling has dealt with psychological symptoms arising from both his longer term history and his relationship breakdown. There was no suggestion that the symptoms were relevant to the question of sentencing, except by way of general background.
10 The focus of defence counsel's submission in the plea in mitigation was that the magistrate should exercise his discretion not to record a conviction. It was submitted that a conviction would place the applicant's employment in jeopardy. The applicant has significant expenses including child support and school fees for his children and a loss of employment would be a significant and disproportionate impact.
11 The claim that the recording of a conviction would have such impact on the applicant's employment, was explained by defence counsel. The applicant was employed by Rio Tinto in Western Australia as a network locomotive driver, a role he had held since April 2022. The magistrate was told that the Rio Tinto media division had become aware of a newspaper article which disclosed the assault allegation. I infer that this happened between the hearing and finding of guilt. The hearing took place in January 2023, and the finding of guilt was made on 8 March 2023, the same day as the imposition of the sentence. This had led to a conversation with the applicant's immediate line manager, which occurred on 6 March, which was two days before the finding of guilt and the sentencing hearing. The magistrate was not provided with particulars of that conversation but was told that counsel had been instructed "that a conviction on this matter is one of the significant factors that Rio Tinto have now taken into account in their … consideration of ongoing employment". The magistrate was told that the recording of a conviction would be taken into account by the HR department at Rio Tinto in determining whether "employment should be terminated or not".
12 In his comments on passing sentence, the magistrate clearly took the view that general deterrence was a significant sentencing factor. He commented that assaults "such as this are far from uncommon" and it was necessary to send "a message that this sort of behaviour is unacceptable". His Honour did not consider personal deterrence to be a significant factor.
13 As to whether a conviction should be recorded, the magistrate accepted that all the factors in s 9(a), (b) and (c) of the Sentencing Act need to be considered and are relevant to this question. However, his Honour noted reliance by the applicant's counsel on the proposition that recording a conviction may well be relevant to the applicant's employment, and in particular to whether he would be dismissed as a result. In this regard, his Honour referred to comments by Zeeman J in Barnsley v Ashdown and Ashdown [1977] TASSC 40, which he characterised as supporting the view that the most important factor "that an employer will take into account is what it is that you have been found guilty of rather than the title I give it".
14 Ultimately, his Honour weighed the seriousness of the offence against the "numerous mitigating factors" and determined that it was "appropriate to convict" the applicant.
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Subsequent events
15 The evidence taken de bene esse relates to what the applicant claims are the consequences of recording a conviction. The applicant described conversations with his manager and supervisor in which he was warned that he would, in future, be expected to comply with company values. However, it is also clear that his employment with Rio Tinto was unaffected by the conviction. However, the applicant also described unsuccessful attempts to obtain other and more lucrative positions with other employers. His evidence included examples of online applications terminated upon an affirmative answer to a question as to whether he has a conviction. I was also told that criminal conviction checks obtained by employers would disclose matters for which a conviction was recorded but not if a conviction was not recorded. This evidence was intended to demonstrate that the conviction had limited, if not destroyed, his capacity to obtain such employment. The applicant claims that this evidence is directly relevant to "the impact that a conviction would have on his employment prospects".
16 In relation to the applicant's current employment, the evidence, in actual fact, clarifies and reduces the impact of the recording of a conviction. Further, there is nothing in the conversations with those at Rio Tinto which suggests that the conviction was significant to the attitude taken by his employer. It seems clear that the employer was concerned about the nature of the conduct rather than the recording of a conviction.
17 The applicant relies on the provisions of s 110(2AA) of the Justices Act as authorising reliance on the matters which have arisen subsequent to the imposition of the sentence, in respect of the determination of the review. That section is closely related to s 110 (2AB). I set out both:
"(2AA) The court, on hearing a motion to review in relation to an order imposing a sentence on a person in relation to a matter, may, whether the person who filed the notice of review in respect of the order was the person or the prosecutor, take into account any matter, relevant to sentencing, that has occurred between when the justices who made the order dealt with the person in relation to the matter and when the court hears the motion to review.
(2AB) Despite subsection (2AA), the court, in exercising in relation to an order a power under subsection (2), the effect of the exercise of which is that the person to whom the order relates is being sentenced again for an offence, must not take into account any element of double jeopardy involved in the person being sentenced again so as to impose a less severe sentence than the court would otherwise consider appropriate."
18 The applicant submits that the plain words of s 110(2AA) permit consideration of the subsequent events, in particular the applicant's evidence concerning the failed employment applications, in the determination of the review. The evidence, it is submitted, can be used to assess whether the recording of a conviction renders the sentence manifestly excessive.
19 The respondent submits that the provision is not concerned with the identification of error, and the question of whether the motion should be upheld. It is intended to be read together with s 110(2AB) and applied in respect of re-sentencing once it has been determined that the motion will be upheld. Hence, the evidence is not admissible for the purpose of determination of the question of manifest excess.
20 The argument squarely raises the proper construction of the provision, and for that purpose both textual and contextual considerations are relevant. The textual aspect is clear enough, subs (2AA) will apply "on hearing a motion to review in relation to an order imposing a sentence", and the matters which may be taken into account are those "relevant to sentencing". This can be contrasted with the wording of (2AB) which seems to expressly limit the removal of consideration of double jeopardy only to re- sentencing after a successful appeal.
21 A literal interpretation of (2AA) becomes problematic when consideration is given to the wider legislative scheme. Section 110 is concerned with the powers of the Court on the hearing of a motion to review. However, the jurisdictional basis of the review is actually contained in s 107. Section 107(4) limits the grounds of review to error or mistake or lack of jurisdiction. It is well established that the standard applicable to the identification of error is that described in House v The King [1936] HCA 40; (1936) 55 CLR 499, that is error which is apparent from the sentencing judge's reasons, or can be
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inferred from the outcome. Betts v The Queen [2016] HCA 25. In the case of the latter, the inference of error will be drawn from a sentence which is obviously excessive or unreasonable or plainly unjust, to the extent that the only conclusion which can be drawn is that the sentencing discretion must have miscarried in some undefined way. See Barrett v Wilson [2015] TASSC 3, 69 MVR 333.
22 Sentencing appeals in superior courts are also determined on the basis of the House principles. However, there is an accepted discretion to admit evidence of events subsequent to sentence. In Betts v The Queen, the High Court recognised this general principle:
"Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice."
In R v PFD [2001] VSCA 198, Winneke P said:
"The circumstances in which this Court will receive and act upon evidence of events which have occurred subsequent to sentence are well established. They have been set out in such cases as R. v. Rostom and R. v. Babic. Those authorities make it clear that the suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is normally a matter for consideration by the Executive in the exercise of its prerogative of mercy and not by the appellate court. It is only permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence, but not then fully appreciated or understood."
23 It is accepted that where fresh or new evidence is admitted, it is unnecessary to determine whether the original sentence was vitiated by error. R v Nguyen [2006] VSCA 184, R v Davidson [2008] VSCA 188.
24 When considering the relevance of these judicial comments, it must be remembered that the jurisdictional basis of an appeal from a sentence imposed by the Supreme Court is different to that applicable to a review under s 107 of the Justices Act. In particular, s 402 (4) of the Criminal Code provides that the Court of Criminal Appeal may intervene if "it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed". As already noted, s 107 limits the grounds of review to error or mistake or lack of jurisdiction. On the other hand, s 110 (2) of the Justices Act permits this Court when conducting a review to consider "such further evidence (if any) as it thinks fit". However, in Tasmania, this provision has been given very limited operation. A number of cases have held that a consequence of the need to establish error is that that determination must be made on the material before the magistrate. Unwitting error is not amenable to review: Turner v Driver [2005] TASSC 85, Traynor v McCullough [2011] TASSC 41 218 Crim R 177; Coppleman v Godfrey [2014] TASSC 60; McKenna v Freeman [2017] TASSC 64.
25 In considering whether s 110 (2AA) extends the operation of this legislative scheme, it is useful to have regard to its legislative history. Sections 110(2AA) and (2AB) were introduced together in the same set of amendments effected by the Crimes Miscellaneous Act 2013. However, the pertinent history commences in 2008, with the introduction of s 402(4A) into the Criminal Code. That provision was in the following terms:
"(4A) The Court, on hearing an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was brought, made or lodged by the person or by the prosecutor) –
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(a) may take into account any matter relevant to the sentence that has occurred between when the court of trial dealt with the person and when the appeal is heard; but (b) despite paragraph (a) , must not take into account the fact that the Court's decision may mean that the person is again sentenced for the crime."
26 This provision was introduced as part of legislative reform, primarily intended to restrict the availability of the double jeopardy principle to those accused or found guilty of crime. This included the removal of double jeopardy as a factor which limited the prospects of success of Crown sentencing appeals. An analysis of the operation of this provision, which included a review of similar reforms in a number of other Australian jurisdictions, was undertaken by the Court of Criminal Appeal in Director of Public Prosecutions v Chatters [2011] TASCCA 8. That analysis, although thorough, related solely to the removal of double jeopardy as a factor in Crown sentencing appeals effected by (4A)(b), and did not consider the effect of (4A)(a), except to the extent that that provision permitted consideration in re- sentencing of factors such as actual stress and anxiety experienced by the defendant arising from the prospect of being sentenced again. However, it was accepted that insofar as the amendment removed consideration of double jeopardy, it applied not only to re-sentencing after a successful appeal, but also to the question of whether the appeal should be upheld:
"In our view the language of s402(4A) is such that it must have been intended to be relevant not just to re-sentencing, but also, in appropriate cases, in relation to the question whether to allow or reject an appeal. In the opening words of the subsection, it is made clear that it applies to this Court 'on hearing an appeal that does or may require it to impose a sentence, or to vary a sentence imposed'. In par(b) there is a reference to 'the fact that the Court's decision may mean that the person is again sentenced for the crime'. That paragraph refers to what this Court's decision 'may' mean, a matter of some uncertainty, suggesting that it is to be applied when deciding whether or not an appeal should succeed."
27 The Court did not consider the wider question of whether this view applied generally to matters "relevant to the sentence" which arose between the sentence under appeal and the hearing of the appeal, other than the issue of double jeopardy. As far as I can determine, this question has not been considered in any other Tasmanian decision.
28 However, the question has arisen before the Western Australia Court of Appeal. The relevant provision in that State was essentially identical to s 402(4A) as it was at the time Chatters was decided. In Woods v The State of Western Australia [2017] WASCA 179, the question arose as to the capacity of the Court to consider a sentence imposed by another court, subsequent to the impugned sentence, where at the time of that sentence, the charges were pending only. The sole ground of appeal asserted infringement of the totality principle. The Court of Appeal considered whether the equivalent to s 402 (4A) (a) permitted it to take into account the subsequent sentence when determining whether the appeal should be upheld. Buss P (with whom Beech JA and Hall J agreed on this point) concluded that "the power in s 41(4)(a) is enlivened not only when an appeal court is imposing a sentence, or varying a sentence imposed, on a person for an offence, but also at an earlier stage when the appeal court is in the process of deciding whether to allow the appeal or not." However, his Honour also said:
"s 41(4)(a) does not permit an appeal court, when the appeal court is in the process of deciding whether to allow the appeal or not, to take into account 'any matter' that has occurred between when the lower court dealt with the person and when the appeal is heard, unless 'the matter' is 'relevant to' the sentence that was imposed by the lower court"
29 His Honour concluded that the offences for which the appellant was subsequently sentenced was not a matter relevant to the sentence under appeal because the charges were only pending when that sentence was imposed. This decision was applied by the Court of Appeal in Abbott v The Queen [2019] WASCA 90. This appeal also related to totality and the appellant relied on subsequent sentencing to establish the argument that the impugned sentence was manifestly excessive. The Court of Appeal rejected this argument because at the time that the sentence under appeal was imposed "those matters (the subsequent sentences) had not occurred."
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30 Section 402(4A) was amended in 2013. Subsection 4A was replaced by two separate subsections, 4A and 4B. They are still in force, and I set them out below:
"(4A) The Court, on hearing an appeal against a sentence passed on a person for an offence (whether the appeal was brought, made or lodged by the person or by the prosecutor), may take into account any matter relevant to the sentence that has occurred between when the court of trial dealt with the person and when the appeal is heard.
(4B) Despite subsection (4A) , the Court, in passing another sentence under subsection (4) , must not take into account the element of double jeopardy involved in the person being sentenced again, in order to pass a less severe sentence than the Court would otherwise consider appropriate."
31 In the second reading speech of the Bill which led to the amending Act, it was explained that the redrafting of the provisions was in order to better clarify their application consequent upon comments made by Porter J in DPP v Latham [2009] TASSC 101. In that case, his Honour commented that the original s 402(4A) is "strangely drafted", and expressed doubt that the provision would give effect to the legislative intention to remove double jeopardy as a relevant sentencing consideration in Crown appeals. According to the second reading speech, the incumbent Chief Justice "requested an amendment to the subsection so that it more clearly expresses its original intention." The speech went on to indicate that the amendments were intended to "make the necessary clarification". It should be noted that Porter J's comments did not include anything about the capacity of the Court to take into account matters subsequent to sentence when determining the appeal.
32 It is difficult to identify the "clarification" which was provided by the new provisions. However, one matter that does stand out is the clear distinction between the circumstances in which each subsection is intended to apply. Subsection (4A) applies to all sentencing appeals, without any textual restriction, and in particular without being limited to appeals which may require re-sentencing, whereas (4B) is expressly restricted to re-sentencing after a successful appeal.
33 As I have already noted, the relevant provisions of the Justices Act were introduced in the same 2013 Act. Before their introduction, there was no provision which was similar to s 402(4A). In Cannell v Hughes [2014] TASSC 41, Pearce J observed that s 110(2AA) and (2AB) of the Justices Act, follow a similar pattern to but are not identical to the current provisions in the Criminal Code. However, in my view, for the purposes of this consideration, the legislative scheme is the same. The undisputed effect of both sets of provisions is to reinforce the general principle that a Court re-sentencing after identification of error in a sentencing appeal, irrespective of whether the motion is made by the person sentenced or by the prosecution, may take into account subsequent events when re-determining sentence. However, the Court is precluded from considering principles of double jeopardy when re- sentencing after a successful prosecution appeal. Further, the Justices Act provisions distinguish between when each subsection will apply, in the same way as that noted in respect of the changes made to the corresponding provisions under the Criminal Code.
34 It is arguable that the provisions of s 110(2A) permit a more expansive approach, not limited textually to matters relevant to the sentence imposed by the lower court, because of the use of the phrase "relevant to sentencing" rather than "relevant to the sentence", the phrase which appears in s 402 (4A), which is identical to that used in the provision before the 2013 amendment, and in the Western Australian legislation. Clearly that wording was critical to the approach taken by the Western Australian Court of Appeal to the operation of the provision. The different wording may suggest that the Justices Act provision is not limited in the manner suggested by the Western Australian cases. However, ultimately, the wording of this provision does not change the jurisdictional basis of the review, and in particular the need to identify error. The provision is procedural in its effect, and clearly not intended to change the substantive basis on which a review can be allowed. This was accepted in Abbott, which concluded that an appeal must be determined on the facts which were before the sentencing court, notwithstanding the provisions of the equivalent to s 402 (4A), and quoted a passage from another Court of Appeal decision in LAT v Western Australia [2018] WASCA 215 at [39], which it said applies "with equal force to the present appeal":
"The sole ground of appeal is fundamentally flawed, as it relies on events occurring after the completion of the sentencing process. An appeal to this court is not an
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opportunity to revisit the question of the appropriate sentence in light of all material now available. The essential role of this court on an appeal against sentence is to discern whether there was error or a miscarriage of justice in the sentencing. Only if there was error or a miscarriage of justice does this court proceed to the second stage of re- exercising the sentencing discretion and deciding whether a different sentence should have been imposed. Consequently, with limited exceptions referred to below, it is only at the second stage - once error or a miscarriage of justice is demonstrated - that this court takes account of post-sentencing events in exercising afresh the sentencing discretion and deciding whether a different sentence should have been imposed. Because there is no ground of appeal asserting error or a miscarriage of justice in the sentence imposed as at the time it was imposed, no occasion arises to receive information concerning events post-sentencing."
35 The "limited exceptions" acknowledged by the Court of Appeal are those already discussed, in particular "evidence of subsequent events may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but either not known to the sentencing judge or not properly appreciated at the time". The Court confirmed that error cannot be demonstrated on "the basis of events which have occurred since the sentence was imposed."
36 Taking all of this into account, I conclude that s 110(2A) does not authorise this Court to take into account subsequent events for the purpose of determining whether error is demonstrated by a sentence which is manifestly excessive. This must be determined on the basis of the material which was before the sentencing court. The admission of subsequent events, or further evidence not before the sentencing court, to explain evidence which was before the sentencing court will only arise in rare circumstances, and this is not the appropriate case to attempt to define such circumstances. Suffice to say, in this case, the only evidence offered by the applicant that could possibly fall into that category, is the explanation of the applicant's conversation with his employer's representatives, but this, of course does not assist the applicant. It, in fact, establishes that the applicant did not lose his employment as a result of the assault conviction. The balance of the evidence relates to matters which have occurred after the sentence, and are not relevant to the fundamental question of whether error is demonstrated by a sentence which is manifestly excessive.
37 It follows that the evidence taken de bene esse is not relevant to the question of whether the review should be upheld and will not be considered by me for that purpose. Of course, if the review is upheld, such evidence may well become relevant at that point.
Manifest Excess
38 The applicant's argument that the sentence imposed by the magistrate is manifestly excessive, in particular because he recorded a conviction for the assault, cannot succeed. This sentence, including the decision to record a conviction for the assault, was clearly within the proper exercise of the sentencing discretion. I would, in fact, go further and say that, in my view, the sentence was entirely appropriate, particularly having regard to the objective seriousness of the offending when balanced against all other factors.
39 I regard the applicant's conduct as a relatively serious example of common assault. The assault was constituted by a forceful punch to the head, which was delivered spontaneously, and clearly when it would not have been expected by the victim. Such a blow is patently and notoriously dangerous. It is the experience of courts dealing with violent offending, that punches of this nature, delivered in such circumstances, are capable of causing serious and sometimes fatal injury. Indeed, in this case, the magistrate found that the blow did cause actual injury and had some ongoing consequences. Further, as the magistrate noted, the assault was perpetrated in a public place and, therefore, had the potential to be witnessed by innocent members of the public. Some of the other members of the group were actually present. Such violence, particularly when perpetrated publicly, is unacceptable and contrary to the community's legitimate expectation that public areas should be peaceful and safe. The magistrate also correctly took the view that behaviour which results in physical assault in public is "far from uncommon". For all of these reasons, his Honour correctly concluded that general deterrence was a sentencing consideration of "some significance". I completely agree.
40 Counsel for the applicant argued that the objective circumstances of the offending, as found by the magistrate, revealed some mitigating circumstances. For example, there was only one blow, the
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assault was not premeditated, and the applicant was not actually intoxicated. All of this can be acknowledged, but these factors do not detract from the serious nature of the conduct. At best, they distinguish the assault from even more serious examples of that offence. In my view, the proper balance of the relevant factors was demonstrated by the sentence. I note, in particular, that his Honour chose in addition to recording a conviction to impose a fine, and not some more punitive sentencing alternative.
41 In relation to the specific proposition that the magistrate should not have recorded a conviction, on the basis of the material before his Honour, there is little in the factors contained in s 9 of the Sentencing Act which support that outcome. In my view, the strongest argument was the applicant's lack of prior convictions and prior good character. The information provided concerning any potential impact on the applicant's economic or social well-being or employment prospects did not go beyond that already discussed. While the risk of dismissal at the time of sentencing existed, this had arisen already due to the employer learning about the case through the media, and the magistrate, in my view, was entitled to conclude that recording a conviction would not further affect the employer's attitude. This is not a case where recording a conviction would notify the employer of something which it may otherwise not discover. The information provided to the magistrate supported the conclusion that the nature of the allegations is what troubled the employer, and a finding of guilt, irrespective of the recording of a conviction, would be the factor of significance in any disciplinary action.
42 Clearly, the potential for loss of employment, and consequent difficulty in obtaining future employment, were generally relevant factors and needed to be taken into account, and the magistrate purported to do so. In any event, while relevant, the impact of a conviction on the applicant's employment needed to be balanced against the seriousness of the offending, as well as other considerations such as the public interest in having the conviction on the public record. Attorney- General v Smith [1993] TASSC 10. In relation to serious offending, it goes without saying that the public generally, and those with a legitimate interest in the criminal history of another citizen, are entitled to be able to rely on a record of offending which accurately describes the offences of which the person has been found guilty. Those with such an interest might in appropriate circumstances include potential employers. It must be remembered that the impact of a conviction on the employment prospects of an offender is ameliorated to some extent by legislation which, at least in some jurisdictions, makes it unlawful for a person to discriminate against another person in connection with various activities, including employment, on the basis of an irrelevant criminal record. See for example, Anti-Discrimination Act 1998 (Tas), ss 16(q), 22.
43 The appropriate balancing exercise was undertaken by the learned magistrate. I reiterate my opinion that the conclusion reached by his Honour was correct, and certainly within the bounds of his sentencing discretion. The review is without merit and must be dismissed. I so order.
| Costs | |
| 44 | Section 125 of the Justices Act authorises the Court to make such order as to costs as seems proper. The applicant seeks an order for costs thrown away as a result of the adjournment of the hearing. Initially, the applicant's counsel, Mr Scott, had sought to include in the costs order travel and accommodation expenses incurred by the applicant himself, on the basis that he had travelled from his residence in Western Australia for the hearing. However, when the matter was argued, Mr Scott conceded that I did not have jurisdiction to make an order that related to anything other than legal costs. Accordingly, the amount claimed was limited to Mr Scott's daily counsel fee for the wasted day, in the sum of $2,200. |
| 45 | It is accepted that the adjournment was unavoidable, and not the fault of either party. The respondent's counsel became unavailable due to injury at 9 am on the morning of hearing, which made it impossible for her to deal with the case. There is no dispute that Mr Scott's engagement for the day was wasted because he had travelled from Hobart for the hearing and was only informed of the problem when he arrived in Launceston. Counsel for the respondent who appeared at the hearing argued that the review could have been stood down to later in the day, therefore avoiding the wastage of the hearing day. This argument was somewhat surprising given what had actually taken place when the adjournment application was made. Counsel applied for the adjournment claiming, reasonably, that she was "not in a position to deal with it (the review) now". I responded by noting that the case was "not… overly complex" and then asking "When would you anticipate being in a position to deal with it?" Counsel did not provide a time frame, saying "how long is a piece of string", and then describing the detail of the |
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work that would be necessary which included obtaining the materials from counsel who had been originally briefed and then she "would need to make some enquiries". Counsel provided no information as to what the enquiries were or how long all this would take. At no time, did counsel suggest that she would be in a position to deal with the case later in the day.
46 Costs are intended to be compensatory rather than punitive. Counsel for the respondent argued that the circumstances arose through no fault of the respondent, and that the applicant was really in the same position as if the Court, for some reason, had been unable to deal with the matter. However, I think the analogy is faulty. The fact of the matter is that the applicant and his counsel were in Launceston ready to proceed with the case and the Court was able to deal with it. I reiterate that no fault is to be attributed to the respondent, and the application for the adjournment was reasonable, which of course is the reason why it was granted. However, it was the respondent's inability to proceed with the case which led to the need for the adjournment. In the circumstances, I think that the justice of the matter requires that the respondent compensate the applicant for costs which were thrown away by the adjournment. The claim made by the applicant is a reasonable one, as is the quantum of Mr Scott's fees. I order that the respondent pay the applicant's costs thrown away by the adjournment in the sum of $2,200.
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