Williscroft v Hibble - [2002] TASSC 88

[2002] TASSC 88

CITATION: Williscroft v Hibble [2002] TASSC 88

PARTIES:  WILLISCROFT, Charles Thomas
  v
  HIBBLE, Kim

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 16/2002
DELIVERED ON:  21 October 2002
DELIVERED AT:  Launceston
HEARING DATE/S:  7 October 2002
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Review of sentence - Whether three months' imprisonment for assault manifestly excessive.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  S J N Brown
             Respondent:  M S Cox
Solicitors:
             Applicant:  Simon Brown
             Respondent:  Director of Public Prosecutions

Judgment ID Number: [2002] TASSC 88
Number of paragraphs: 17

Serial No 88/2002
File No LCA 16/2002

CHARLES THOMAS WILLISCROFT v CONSTABLE KIM HIBBLE

REASONS FOR JUDGMENT CRAWFORD J
21 October 2002

The applicant was charged with assaulting his ex-girlfriend on 11 January 2001 by throwing her against a wall, dragging her along a floor and striking her to the body and head. Following a defended hearing, a magistrate found the charge proved, convicted the applicant and sentenced him to imprisonment for three months. The applicant has moved the Court to review the sentence upon the basis of alleged errors of law in the following respects:

1the sentence was manifestly excessive;
2the magistrate failed to give sufficient weight to the applicant's good character, antecedents and rehabilitative prospects; and
3the magistrate gave excessive weight to the need for personal deterrence.

I need only refer to the complainant's evidence to understand the facts, because the learned magistrate accepted it and rejected the applicant's version of the events given by him to police in a video recorded interview. He did not give evidence at the hearing.

It was the complainant's evidence that she had been going out with the applicant for about 15 months from about October 1999. At the time of the assault they had recently separated and their relationship was at an end. In cross-examination it was put to her that in the course of their relationship "there had been plenty of cross words, plenty of arguments from time to time", and her reply was that "it wasn't the smoothest of relationships, no". She went to his house that night at his request after he said that he wanted to talk to her about the possibility of him changing his career.

The complainant had her hair done and then spent from about 9pm to 11pm at a Launceston hotel with some girlfriends. While at the hotel she received a telephone call from the applicant and agreed with him that she would go to his home at about 10pm and that he should purchase some takeaway food for them to eat. However, she failed to arrive at his home at the promised time and was an hour or so late when she finally arrived. Whilst she was at the hotel he called her mobile telephone about 30 times. At first she ignored the calls and then turned the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Williscroft v Hibble

Details

AGLC: Williscroft v Hibble [2002] TASSC 88
Case: [2002] TASSC 88
Decision Date: 21 October 2002

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Charles Thomas Williscroft appealed against his conviction and sentence for assault, which he committed against his ex-girlfriend. The court was tasked with determining whether the sentence imposed was manifestly excessive and whether the magistrate failed to appropriately consider the applicant's good character, antecedents, and rehabilitative prospects. Additionally, the court had to decide whether the magistrate placed excessive emphasis on the need for personal deterrence.

The court found that the sentence was indeed manifestly excessive. The court reasoned that the statutory maximum penalty should be reserved for the gravest category of assaults, typically those involving previous convictions or significant aggravating factors. In this case, the assault, while serious, did not involve a weapon, was not premeditated, and resulted from a sudden loss of temper. Furthermore, the applicant had no prior criminal record and a good work record, suggesting the offence was an uncharacteristic aberration. The court held that the sentence of actual imprisonment was not necessary and that a suspended sentence with conditions would serve as an adequate punishment and deterrent.

The court set aside the original sentence of three months' imprisonment and imposed a fine of $400, along with a six-week suspended sentence, to be active for three years on the condition that the applicant commits no crime or offence involving violence or threatened violence.

Orders