ZL v Corey
[2020] ACTSC 143
•3 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ZL v Corey |
Citation: | [2020] ACTSC 143 |
Hearing Date(s): | 30 January 2020 |
DecisionDate: | 3 June 2020 |
Before: | Loukas-Karlsson J |
Decision: | See [132] |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – Appeal from Magistrates Court – appeal against sentence – whether sentence manifestly excessive – whether further evidence should be admitted – whether Magistrate considered alternatives to imprisonment – whether s 17 disposition appropriate – re-sentence |
Legislation Cited: | Children and Young People Act 2008 (ACT) s 345 Crimes (Sentence Administration) Act 2005 (ACT) s 86 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10 and 17 Crimes Act 1900 (ACT) s 24 Magistrates Court Act 1930 (ACT) ss 207, 208 and 214 Crimes (Sentencing Procedure) Act 1999 (NSW) s 10 |
Cases Cited: | Balthazaar v The Queen [2012] ACTCA 26 Barac v Thexton [2008] ACTSC 137 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Bethke v Phelan [2016] ACTSC 328 Betts v The Queen [2016] HCA 25; 258 CLR 420 Bifel v The Queen [2013] VSCA 82 Bond v McFarlane (1990) 102 FLR 38 Brisciani v Piscioneri (No 4) [2016] ACTCA 32 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Campbell v Fortey (1986) 24 A Crim R 386 Carroll v The Queen [2009] HCA 13; 254 CLR 259 Cobiac v Liddy (1969) 119 CLR 257 Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151 Dalton v The Queen [2015] ACTCA 48 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Drought v Driesen [2009] ACTSC 46 Gallagher v The Queen (1986) 160 CLR 392 Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 Hili v The Queen [2010] HCA 45; 242 CLR 520 House v The King (1936) 55 CLR 499 IT v Knight [2020] ACTSC 101 Lowndes v The Queen [1999] HCA 29;195 CLR 665 Lukatela v Apostoloff [2010] ACTSC 74 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Meissner v The Queen (1995) 184 CLR 132 Melham v The Queen [2011] NSWCCA 121 Munda v Western Australia [2013] HCA 38; 249 CLR 600 Nelson v Quinn [2001] WASCA 297 O’Brien v Noble [2012] ACTCA 13; 6 ACTLR 132 Pettitt v Dunkley (1971) 1 NSWLR 376 Proud v Sladic [2014] ACTCA 26 Purcell v O’Reilly [2018] ACTSC 60 R v Abbott [2007] VSCA 32; 170 A Crim R 306 R v Curtis [2013] ACTSC 291 R v CV [2013] ACTCA 22; 233 A Crim R 67 R v Kilic [2016] HCA 48; 259 CLR 256 R v Lattouf (Unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J and Adams AJ, 12 December 1996) R v Mauger [2012] NSWCCA 51 R v Terry [1995] VLR 114 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24] R v Wagle (No 2) [2014] ACTSC 160 RLG v Donnelly [2012] WASC 230 Saga v Reid [2010] ACTSC 59 Singh v The Queen [2015] ACTCA 65 Spatolisano v Hyde [2009] ACTSC 161 Stanford v The Queen [2007] NSWCCA 73 Veen v The Queen (No 2) (1988) 164 CLR 465 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | ZL (Appellant) Susan Corey (Respondent) |
Representation: | Counsel M Kukulies-Smith (Appellant) N Deakes (Respondent) |
| Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 35 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 18 June 2019 Case Title: Corey v ZL Court File Number: CC2018/14133 |
LOUKAS-KARLSSON J:
Introduction
ZL (the appellant) appeals from a sentence imposed in the Magistrates Court on 18 June 2019. The appellant was convicted and sentenced by Magistrate Boss (the learned Magistrate) for an offence of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT) (Crimes Act). The sentence imposed was a 2-month suspended sentence of imprisonment, fully suspended upon entering into a 12-month good behaviour order.
Jurisdiction
The Supreme Court’s appellate jurisdiction in relation to sentence appeals from the Magistrates Court is derived from ss 207 and 208 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act).
Facts
The facts of the offence are set out in the statement of facts and may be summarised as follows.
On the evening of 21 November 2018, the appellant was at her residence with her son, who was seven years of age. The appellant and her son were the only two people present at the residence.
The appellant asked her son where some of his toys were. He told her that he had taken the toys to school and that they had been taken from his bag. The appellant had previously told her son that he was not allowed to take the toys to school.
The appellant became angry at her son for disobeying her and for not telling her the toys had gone missing. The appellant picked up a slipper and struck her son two or three times on the upper back area with the slipper. The slipper was a cork heeled shoe with straps across the top.
Two days later, on 23 November 2018, the appellant’s son told his classroom teacher that his back was sore. He told his teacher that his mother had hit him during the week, and the police were then called to his school.
During the evidence in chief interview with the victim, police observed “a large red and purple bruised area, approximately 15 centimetres in diameter” on the victim’s left upper back area.
The incident was reported to Child and Youth Protection Services (CYPS), who in turn referred the matter to police. That evening, the appellant participated in a record of interview with police and made full admissions in relation to the offence. She spent the night in custody and was released on bail the following morning after appearing in the Magistrates Court.
The statement of facts concludes with the following in relation to the appellant’s record of interview (ROI):
The defendant was remorseful and upset whilst participating in the ROI. She stated that she loved her son very much and that he was a gift to her and her husband. The defendant’s husband was overseas at the time of the assault upon [his son] and had been made aware of it by the defendant, the same night it had taken place. The defendant stated that she had ‘lost it’ when [her son] lied to her about taking his toys to school and would never hit him like that normally.
Grounds of Appeal
By way of Amended Notice of Appeal dated 17 October 2019, the appellant raised the following two grounds of appeal:
(a) the sentence imposed was manifestly excessive; and
(b) the findings made by the learned Magistrate that no penalty other than a term of imprisonment was appropriate was not available on the evidence.
In written and oral submissions, the appellant stated that there was only one ground of appeal, being that the sentence imposed was manifestly excessive (T 2.17-18).
Magistrates Court Proceedings
The following documents were tendered at the sentence hearing before the learned Magistrate:
(a) statement of facts;
(b) criminal history;
(c) court duty report;
(d) photographs of victim;
(e) medical reports; and
(f) bundle of supporting documents: CYPS appraisal outcome advice; letter from Premier Psychology; reference from the family’s pastor; reference from Good Start Early Learning Centre; reference letter from Dr Sivan Rasaratnam, the family’s general practitioner; reference letter from the victim’s primary school teacher; and a letter from the appellant.
The CYPS appraisal letter included the following:
The appraisal included:
· Home visits on 28th November, 7th December, and 14th December 2018.
· Interviews with [the appellant].
· Observations of [the victim].
· Correspondence with Australian Federal Police (AFP).
· Correspondence with the Child at Risk Health Unit (CARHU).
· Correspondence with [the victim’s primary school].
The appraisal concluded that:
· [The victim] has been assessed as not in need of care and protection, as per section 345 of the Children and Young People Act 2008.
· [The appellant and her husband] have been assessed as parents willing and able to meet their child’s care and protection needs.
· No further involvement is required by CYPS at this stage.
The recommendations are:
· [The appellant and her husband] to use non-physical forms of discipline on [their son].
· [The appellant] to seek community support where appropriate for coping and disciplining [her son] in [her husband’s] absence.
The letter from Premier Psychology included the following:
In my discussions with [the appellant] and in session with [the victim], I have not observed any behaviours from either [the appellant] or [the victim] that would indicate an abnormal or problematic relationship between them. Moreover, [the victim] to date has not raised any issues concerning his mother in session that would raise safety or treatment concerns.
The letter from the family’s pastor, which included reference to the appellant spending the night imprisoned in police custody, included the following:
After receiving the call to come into the police station, she [the appellant] entrusted [the victim] into our care and told us that she would only be gone for an hour or so. After our service had concluded, we took [the victim] to our home, and also saw that we had missed a call from [the appellant] and an unknown number. At around 10.30pm we received another call from the Police department letting us know that [the appellant] had been detained until the next day.
When [the appellant] came home the next day, she was broken and in tears. She talked with [my wife] for about half an hour in the car, and then called me to come and talk. She explained to me in tears every detail of how [her son] had been misbehaving, over the last week while his father was away. She explained that she had “snapped” and reacted by hitting [her son] with a shoe twice, and how she had then sent him to his room. She seemed to me to be truly repentant.
She asked me if I thought that [the victim] should know that she had been in jail overnight. [My wife] and I had not informed [the victim] by this time. We said that it was up to her, but that it was important for [the victim] to know that he was not responsible for her being in jail. She asked if we would be there as she explained to [the victim]. We agreed, and we called [the victim] out to the car.
…
In all of this, we found [the appellant] to be very remorseful and broken not just from the shame of having gone to jail, but truly sorry that she had hurt her son in such a way. Based upon what we know of [the appellant] and her response over the last week and a half, we do not believe that an incident like this will occur again.
(Emphasis added).
The reference letter from the victim’s primary school teacher included the following:
Apart from one occasion [the offending], I have not observed [the victim] with any physical injuries, nor has [the victim] ever spoken to me about any injuries other than minor cuts/bruises obtained whilst at school when playing in the playground. [The victim] is very open/verbal about any minor injuries obtained at school … I have no concerns about [the victim’s] ongoing health, safety or welfare.
In written submissions, the appellant helpfully summarised the submissions of both defence and prosecution at the sentence hearing, as well as the considerations of the learned Magistrate.
The submissions made on behalf of the appellant at the sentence hearing are summarised as follows:
(a)The son’s misbehaviour had been occurring for a number of days and, at the time of the offending, the appellant had “had enough” of her son’s behaviour;
(b)The appellant was remorseful – she accepted that her behaviour was inappropriate from the outset and made full admissions to police;
(c)Since the incident, the appellant has taken steps to educate herself and learn to deal with her son’s behaviour through engagement with her GP, the school, and psychologists;
(d)CYPS conducted an assessment and decided no further action was needed;
(e)This was an isolated incident from which the appellant has learnt from her mistake and will not repeat it;
(f)The appellant is 48 years of age, married, has three children, and is employed part time with a credit union; and
(g)The matter was serious, but a good behaviour order for a period of 12 to 18 months without conviction was appropriate.
The submissions of the respondent at the sentence hearing are summarised as follows:
(a)The offending behaviour crossed the s 10 Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) threshold. The victim was seven years of age and initially attempted to cover up what had occurred. The victim was vulnerable to his mother as he was in his own home and his father was overseas. The injuries were so serious that he was hit more than once with a significant degree of force;
(b)The appellant pleaded guilty only after negotiations and an amended statement of facts. The appellant tried to minimise her actions by saying she only hit him once; and
(c)The references indicated that the appellant continued to blame the victim and did not accept full responsibility for her actions. The appellant should be adequately punished so as to deter her and others, to protect the community, to make her accountable, and to promote her rehabilitation.
The appellant summarised the consideration of the learned Magistrate on sentence as follows:
(a)The offending was not within the realms of section 17 as it was at the upper end of objective seriousness and only a term of imprisonment was warranted;
(b)The offending occurred in a family violence context in the victim’s own home and goes beyond the concept of lawful chastisement. There was a significant risk that this behaviour would be learned by the appellant’s son and transpire in the transmission of domestic violence from one generation to the next;
(c)There was a degree of minimisation and victim-blaming by the appellant, and the child felt it was appropriate to lie about what had occurred;
(d)The age, criminal history and personal circumstances of the appellant are relevant, including her employment and evidence that she was otherwise a person of good character; and
(e)General deterrence is highly relevant, and any penalty must publicly denounce the appellant’s conduct and hold her accountable.
Further Evidence
The appellant sought to have further evidence admitted on appeal.
The relevant statutory provision dealing with the admission of evidence in an appeal to the Supreme Court is s 214 of the Magistrates Court Act. Section 214 provides:
214 Appeals in cases other than civil cases
(1) This section applies to an appeal mentioned in section 208 (Appeals to which div 3.10.2 applies).
(2) In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact.
(3) In an appeal to which this section applies, the Supreme Court must—
(a) if it considers it necessary or expedient to do so in the interests of justice—
(i) order the production of a document or anything else that was an exhibit in, or was otherwise connected with, the proceeding out of which the appeal arose and that appears to it to be necessary to produce for deciding the appeal; and
(ii) order any person who was, or would have been if the person had been called, a compellable witness in the proceeding to attend for examination before the Supreme Court; and
(iii) receive the evidence, if tendered, of any witness; and
(b) receive evidence with the consent of the parties to the appeal.
(4) If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if—
(a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and
(b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
(Emphasis added).
There were three items of evidence that the appellant sought to have admitted on appeal:
(a)A Victim Impact Statement (VIS) prepared by the appellant in relation to offences in which her eldest son was the victim;
(b)A photograph of the victim’s back taken on 28 November 2018, one week after the offence; and
(c)A letter from the family’s general practitioner, Dr Sivan Rasaratnam, dated 18 January 2020.
The respondent did not consent to the tender of any of the evidence.
Victim Impact Statement
The VIS was prepared by the appellant. It related to her eldest son, who was the primary victim of criminal offences that occurred in August 2018, including aggravated burglary, aggravated robbery, and assault occasioning actual bodily harm. The eldest son lived at the back of the family home. The VIS includes the following:
The night of this incident, [my eldest son] knocked on the door frantically early in the morning, banging … I opened the door and he pushed himself in, yelling and screaming. We all woke up, including my 7 year old son.
…
They [the offenders] know where we live, so I remained concerned about them coming back. Every noise I heard I thought they were back. I was living in panic. I was scared and would call [my eldest son] constantly in the middle of the night asking if he was okay. I was scared to go out and see him in his room dead. I couldn’t open the door, just in case I found him dead in there.
[My eldest son] was a completely lost soul. His girlfriend left because he couldn’t cope. He had just bought a new car, his heart and soul in it, doing something positive and taking initiative. He was working, I was so proud of him. Then this happened, and he was threatening to hurt himself, called me everyday many times, and I was just worried for him.
…
It affected my relationship with my husband, my younger son, and my [eldest son].
To see [my eldest son] lying on the pavement, crying, I didn’t know what I was supposed to do to help him. He would come to my place, sit and do my head in until 1 or 2 in the morning, talking about what happened, over and over … and my head was just going crazy. I knew it was important for him to talk, but it was too much for me. … I have not psychologically recovered from it all.
Letter from Dr Rasaratnam
The letter from Dr Rasaratnam is dated 18 January 2020 and includes the following:
I have known [the appellant] and her family for the last 18 years and have been their family doctor. She is educated and comes from a good family background. She has always shown herself to be [a] very polite and gentle person, and [a] loving mother to her children. I have never noticed her to display any unusual or aggressive behaviour towards her family or anyone else.
In August 2018 her home was invaded and her [eldest son] was assaulted. There was an unfortunate incident in November 2018 and [the appellant] is being charged with assault. At that time her husband was away, she was on her own with the children and had been under a lot of stress due to the previous incident in August. When I examined [the victim] on the 24th of November 2018 he had a bruise on the back of his left shoulder. There were no cuts or open wounds. When I reviewed him 3 days later the bruise had almost disappeared.
Appellant’s Submissions
The appellant submitted that the approach to be taken is that outlined by Justice Refshauge in Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 at [36]-[37] (Grooms v Toohey).
The appellant submitted that the fresh evidence was credible, and that it would have been admitted had it been available before the learned Magistrate, as per the test set out in s 214(4)(a) of the Magistrates Court Act (T 3.38-45).
The appellant provided the following in relation to the reasonable explanation for why the evidence was not previously adduced:
(a)The appellant had not provided the DPP with a VIS in relation to the offence committed against her son at the time of the sentencing hearing;
(b)The appellant’s then lawyer had the photograph and the appellant understood it would be tendered; and
(c)The appellant had not received advice to obtain details of her and her son’s treatment from her doctor.
In relation to the VIS and letter from Dr Rasaratnam, the appellant submitted that both documents post-date the sentence, and therefore the question is whether they could have affected the sentencing exercise and whether it is in the interests of justice to receive the material (T 6.28-42).
In respect of the VIS, the appellant submitted that it was relevant in that it demonstrates the emotional and psychological circumstances of the appellant at the time of the offending. This was submitted to be particularly relevant where a judicial officer is “dealing with a person who has never committed an offence of that type before” (T 6. 42-47).
The appellant submitted that the letter from Dr Rasaratnam fell into a “similar category” as the VIS. It was conceded, however, that the letter’s content was similar to the letter from Dr Rasaratnam dated 27 November 2018, which was available to the learned Magistrate on sentence.
The photograph of the victim was made available to the appellant’s solicitor prior to the sentence.
Was there a reasonable explanation in relation to the photograph?
The respondent submitted that there was no reasonable explanation because it was not asserted that the appellant’s solicitor was instructed to tender the photograph. It was the appellant’s submission that this “overstates” what is required by way of a reasonable explanation, and that there is no need to show that the solicitor in the Magistrates Court acted contrary to instructions (T 4.11-18).
The appellant submitted that it was enough for the Court to find that it was reasonable to admit the photograph; that it was taken at a relevant time; that it is capable of effecting the sentencing exercise; and that it was not the fault of the appellant that it was not tendered before the Magistrate (T 5.40-6.10).
The appellant further submitted that the sentence proceedings were so brief as to not allow the appellant sufficient time to consider or even be aware that the photograph was not tendered, particularly as the appellant is not someone who is “a routine visitor of the courts”. Noting that documents were tendered in a bundle during the sentence proceedings, the appellant submitted that the “exact significance of what is tendered … versus what a client expects to be tendered … may not be … clear ... until after the fact” (T 5-6).
The appellant noted that there are essentially two separate and distinct heads of power under which the Court can admit fresh evidence, citing Grooms v Toohey. In respect of the photograph, the appellant submitted that it could be separately admissible under s 214(3). Under this subsection, there is no reasonable explanation requirement.
The appellant ultimately submitted that the photograph was relevant to the level of objective seriousness of the offence. The appellant made the following submission (T 12.25-39):
And the relevance of this photograph is that it shows one week later there are essentially no visible injuries. So, it goes to the transient nature of the bruising. Now, obviously, and as I concede in my submissions, physical bruising is not the only injury from an assault of this, I concede that, but it is one, and it is one of the potential indicia of the extent of the assault and therefore the degree of objective seriousness – and as I say in a large part I would submit to your Honour that your Honour’s determination of this appeal will come down to where your Honour finds the offence falls on a level of objective seriousness, because that’s inevitable going to inform your Honour’s view as to whether what Magistrate Boss did was manifestly excessive or not.
In this respect, the appellant submitted that the alternate basis for admitting the evidence ought to be that it is in the interests of justice (T 13.1-12).
Finally, the appellant submitted that, whether or not these documents are admitted on the appeal, they ought to be admitted and considered in re-sentence, if the appeal is upheld. To this end, for the purpose of re-sentence, the appellant sought further to rely on a letter from psychologist David Wakeling, dated 28 January 2020
Respondent’s Submissions
The respondent accepted that the principles in relation to the Court receiving fresh evidence are set out in Grooms v Toohey. It was submitted by the respondent that no reasonable explanation is demonstrated, and therefore the evidence should not be admitted.
The respondent conceded that, prima facie, the evidence before the Court would be admissible in the proceeding. The respondent submitted, however, that “the admission of the evidence does not support, nor give any merit to, any ground of appeal” (Respondent’s Written Submissions at [72]).
In relation to the VIS, the respondent submitted that it was not in the interests of justice to admit this evidence, and that the document was “not relevant to the current exercise” (Respondent’s Written Submissions at [79]).
In regard to the letter of Dr Rasaratnam, the respondent submitted that the reference was not dissimilar to the reference provided by the same doctor in the Magistrates Court proceedings. The respondent conceded that the new letter does elicit “slightly more information about the circumstances of the appellant at the time of the offending” but submitted that “such information should be approached with caution”.
Furthermore, the respondent submitted that the information in the letter was analogous to the information provided to the learned Magistrate by the appellant’s solicitor in the sentence proceedings, and therefore that the letter was not “fresh” evidence (Respondent’s Written Submissions at [76]).
In support of its submission that there was no reasonable explanation as to why the photograph was not tendered before the learned Magistrate, the respondent stated the following:
Without a reasonable explanation as to why Mr Tu’ulakitau [the appellant’s solicitor in the Magistrates Court] decided not to tender the photograph, the only salient inference that may be drawn is that the appellant’s legal practitioner did not believe the photograph was relevant to mitigation in the proceedings. Further, there has been no evidence put forward by the appellant that she definitively instructed Mr Tu’ulakitau to tender the photograph. The highest the appellant has taken her evidence is that she “understood” that the photograph would be tendered.
The respondent submitted further that it is not in the interests of justice to adduce the photograph of the victim.
In relation to the letter from Dr Rasaratnam, the respondent submitted that, while it does provide “slightly more information”, it is “not new information for the court to consider and as such would submit that that is not fresh evidence” (T 9.44-47).
The respondent conceded, in relation to the VIS, that it was relevant to understanding the emotional and psychological circumstances of the appellant at the time of the offending (T 10.5-7). The respondent submitted that there was evidence before the Magistrates Court in relation to the appellant’s emotional wellbeing and psychological outlook, however, accepted that there had been no definitive reference to the circumstances of the appellant’s older child and the previous offence against him (T 10.44-11.9).
Consideration of Further Evidence
The principles in relation to admitting fresh evidence are set out in Grooms v Toohey at [36]-[37]:
36. In Campbell v Fortey (1987) 85 FLR 462, Miles CJ analysed the effect of essentially identical antecedent statutory provisions. This analysis has been considered a number of times since then. See, for example, Bond v McFarlane (1990) 102 FLR 38; Spatolisano v Hyde [2009] ACTSC 161; Drought v Driesen [2009] ACTSC 46; Saga v Reid [2010] ACTSC 59.
37. The principles determined by his Honour and subsequent consideration may be set out as follows:
a) As to both s 214(3) and (4):
i.the provisions apply to appeals against both conviction and sentence from the Magistrates Court;
ii.the two sub-sections are each a separate head of power to admit the evidence and neither restricts the operation of the other;
iii.the provisions may be more liberal in the power they give to admit the evidence than the provisions for admitting evidence in a court of criminal appeal on appeal from a trial or sentencing proceeding on indictment;
iv.the evidence is more likely to be admitted if it has been set out properly in an affidavit, now required by r 5193 of the Court Procedures Rules 2006 (ACT) as explained in Barac v Thexton [2008] ACTSC 137; and
v.the evidence may not be admitted if the appellant (or, presumably, the respondent) has intentionally refrained from adducing it before the Magistrate so that, in the event of an unfavourable outcome, it may be relied on in the appeal; and
b) as to s 214(3):
i.the consideration of the interests of justice referred to in the sub-section is to be read in the light of the notion of a miscarriage of justice as explained by the High Court in cases such as Gallagher v The Queen (1986) 160 CLR 392 and Meissner v The Queen (1995) 184 CLR 132;
ii.the discretion under this provision to admit the evidence is unfettered and is not circumscribed by any requirement to show that the Magistrate erred on any question of fact or law;
iii.to determine whether it is in the interests of justice, it may be necessary to consider what the Magistrate said or did in the proceedings below; and
iv.the appellate court is obliged to receive the evidence if both parties consent to it being adduced; and
c) as to s 214(4):
i.the appellate court is obliged to receive the evidence if the conditions in the provision are satisfied, namely that the evidence is credible, it would have been admissible before the Magistrate, it was not adduced before the Magistrate and there is a reasonable explanation as to why it was not so adduced;
ii.the provision does not apply to evidence of events which occurred subsequent to the completion of the proceedings before the Magistrate;
iii.it does not have to be shown that it was not possible the evidence to be adduced in the Magistrates Court; and
iv.inadvertence or even a failure to appreciate the likely significance of the evidence may be a reasonable explanation.
In IT v Knight [2020] ACTSC 101, I dealt, at some length, with the principles concerning further evidence at [9] to [25]. Additionally, at paragraphs [33] to [41], the question of re-sentence consequent upon the admission of further evidence is dealt with.
Sections 214(3) and 214(4) represent separate avenues for admission of evidence. In my view, there is a reasonable explanation with respect to the VIS: s 214(4)(b). The appellant had not yet provided the DPP the VIS in relation to the offences committed by others against her eldest son. The VIS spoke to the continuing impact upon the appellant and her family of these offences, committed a matter of months before the offence concerning her youngest son. It is also separately in the interests of justice to admit the VIS: s 214(3)(a). In my view, the VIS is admissible on either basis.
Further, in my view it is in the interests of justice to admit the photograph that the appellant understood would be tendered in the Magistrates Court proceedings.
Finally, it is in the interests of justice to admit the letter from Dr Rasaratnam. It was accepted by the prosecution that there had been no definitive reference to the circumstances of the appellant’s eldest son (T 11.7-9).
In any event, the question of the admission of further evidence must be put to one side at this juncture. The ground of manifest excess must be examined without the benefit of the further evidence: Betts v The Queen [2016] HCA 25; 258 CLR 420 at [2], [11]. The evidence outlined above may become relevant on re-sentence if the ground of manifest excess is upheld. It is therefore appropriate to turn to the ground of manifest excess.
Manifest Excess
Appellant’s Submissions
The appellant submitted that the test that applies to an appeal ground that a sentence is manifestly excessive is settled, and that the principles are set out in Dalton v The Queen [2015] ACTCA 48 at [18] (Dalton), citing Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale); House v The King (1936) 55 CLR 499; Melham v The Queen [2011] NSWCCA 121; Barbaro v The Queen [2014] HCA 2; 253 CLR 58 (Barbaro); Markarian v The Queen [2005] HCA 25; 228 CLR 357 (Markarian); R v Abbott [2007] VSCA 32; 170 A Crim R 306; and Balthazaar v The Queen [2012] ACTCA 26 (Balthazaar).
The appellant submitted that imprisonment is “well beyond the range of an appropriate sentence”. The appellant further noted that, as per s 10(2) of the Crimes (Sentencing) Act 2005 (ACT), imprisonment is to be a last resort and is only to be imposed “if the court is satisfied, having considered possible alternatives, that only a term of imprisonment is warranted”.
The appellant submitted that there was not apparent consideration by the learned Magistrate of alternatives to imprisonment.
The learned Magistrate found that the offence was at the upper end of objective seriousness. In written submissions, the appellant stated that it was “difficult to identify upon what this conclusion was based”. The appellant submitted that the offence was at the mid-level of objective seriousness (T 15.9-10).
The appellant conceded that there were aggravating features of the offending, in that it was committed in the family home; it was a family violence offence; there was a clear power imbalance between the appellant and her son; and that it involved up to three strikes with an object (T 15.1-5) .
The appellant made the following submissions in relation to the seriousness of the offence:
(a)the offence involved the use of a shoe and up to three strikes;
(b)the strikes were not to the head or other vulnerable part of the body;
(c)evidence demonstrates that it was a one-off incident;
(d)medical documents made clear that nothing could be inferred about the degree of force from the presence of bruises; and
(e)the offence “appears to be a spontaneous albeit disproportional response to misbehaviour rather than a premeditated and callous attack”.
In oral submissions, the appellant summarised the submission on objective seriousness as follows (T 16.26-30):
It is not pre-meditated, it is not calculated, it is not ongoing, and it does not appear to have, in any way, been done for pleasure. Again, all things which, had they existed, would have pointed towards this being at the upper end of objective seriousness. Their absence points to it not being at the upper end of objective seriousness.
The appellant took issue with the characterisation of the appellant as “victim-blaming” in the Magistrates Court. The appellant submitted that what was being put was that the child misbehaved, the appellant reached the end of her tether and snapped. It was submitted that this was put not as a justification or an attempt to defend the behaviour, but as an explanation of what occurred and the circumstances of the offence (T 16.1-16). In support of this submission, the appellant referred to both the Court Duty Report and the reference letters tendered in the Magistrates Court (T 22-24). At this juncture, it is appropriate to note that an explanation of circumstances does not equate to victim blaming. I therefore agree with the submission of the appellant as it accords with my view of the facts.
In oral submissions, the appellant stated: “Ultimately, the issue that is taken with the sentence is that a conclusion that the section 10 threshold had been crossed was manifestly excessive” (T 14.8-11).
Finally, the appellant submitted that other sentences were “plainly appropriate”; the imprisonment threshold could not be satisfied; and the “conclusion that only imprisonment was appropriate, in the absence of further details, lead[s] inextricably to the conclusion that the sentences is manifestly excessive”.
Respondent’s Submissions
The respondent submitted that the principles applicable to appeals on the ground of manifest excess have been set out by Refshauge J in Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151. The relevant principles set out by the respondent were in accordance with those raised by the appellant.
The respondent noted that the offence of assault occasioning actual bodily harm ordinarily carries a penalty of five years of imprisonment. As the matter was dealt with summarily in this case, the maximum penalty was $5,000 and/or two years of imprisonment.
The respondent submitted that, “in alleging manifest excess, the appellant takes on a heavy burden” as it is not sufficient that the appeal court would have imposed a different sentence, citing Balthazaar at [61].
The respondent submitted that the following factors are relevant in assessing whether a sentence is manifestly excessive:
(a)the maximum penalty for the offence;
(b)the objective seriousness of the offence;
(c)relevant sentencing principles; and
(d)the appellant’s subjective circumstances.
The respondent further submitted: “to assert that a sentence is manifestly excessive calls into question what is a quintessentially discretionary decision, the preservation of which is of vital importance to the administration of criminal justice”, citing Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15] and Singh v The Queen [2015] ACTCA 65 at [54]-[55].
The respondent referred to the following cases for the principle that sentencing is discretionary and that there is no one correct sentence: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [22]; Markarian at [133]; and DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [7].
In relation to the matters that must be taken into account in assessing whether a sentence imposed is manifestly excessive, the respondent submitted the following:
(a)Because the learned Magistrate is an experienced magistrate and because the matter was to be disposed of summarily, the Court can infer that the learned Magistrate was informed as to the maximum penalty;
(b)It was open for the learned Magistrate to characterise the offence as at “the upper end of objective seriousness”, and it is irrelevant that this Court may take a different view;
(c)The learned Magistrate clearly pointed to circumstances of the offending that led her Honour to the conclusion that the offending was at the upper end of objective seriousness;
(d)The learned Magistrate expressly gave regard to relevant sentencing principles, including the appellant’s plea of guilty, her criminal history, and the s 7 purposes of sentencing; and
(e)The learned Magistrate appropriately considered the subjective circumstances of the appellant.
In oral submissions, the respondent reiterated the submissions made by the prosecutor before the learned Magistrate (T 21.8-15).
Consideration of Manifest Excess
The principles in relation to appeals of this nature are usefully summarised in Dalton at [18]:
The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
· Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).
· The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].
· In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].
· It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].
To justify appellate intervention, it is not sufficient that an appeal court would have imposed a different sentence: Balthazaar at [61]. Intervention is only warranted where the difference is such that, in all the circumstances, the appellate court concludes that there must have been a misapplication of principle even though where and how is not apparent from the statement of reasons: Hili v The Queen 242 CLR 520 at 59; Dinsdale; Barbaro.
In this case, appellate intervention is warranted.
Imprisonment is a sentence of last resort. Section 10(2) of the Crimes (Sentencing) Act states:
The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.
Possible alternatives were not considered. The statement was made: “this offence is so serious in all the circumstances that only a term of imprisonment is warranted” (Transcript of Magistrates Court proceedings 9.25-27).
In Bethke v Phelan [2016] ACTSC 328 at [33], Murrell CJ stated the following:
It is recognised that the Magistrates Court has a heavy workload and operates under considerable pressure and decisions are usually delivered ex tempore. In those circumstances, brief reasons may be given for sentences. It is not necessary to address every submission or give detailed reasons about any submission. However, reasons should be adequate to enable a proper understanding of the basis upon which a decision has been reached, and failure to do so may constitute an error of law: Pettitt v Dunkley (1971) 1 NSWLR 376, O’Brien v Noble [2012] ACTCA 13; 6 ACTLR 132 and Brisciani v Piscioneri (No 4) [2016] ACTCA 32.
(Emphasis added).
While recognising the heavy workload of the Magistrates Court, it was appropriate for possible alternatives to be considered on the facts of this case. Alternatives to imprisonment were not explicitly considered and should have been so considered.
Taking into account all the relevant factors, both objective and subjective, that must be considered in the process of instinctive synthesis, it cannot be said that a sentence of imprisonment was the only alternative. A sentence of imprisonment, albeit suspended, was on all the facts manifestly excessive in this case.
This ground is upheld. In light of this finding, the further evidence discussed above at [20] to [54] is admitted for the purpose of re-sentence.
Re-sentence and Non-conviction Order
The appellant submitted that, if the appeal is upheld, it would be appropriate for me to re-sentence the appellant. The appellant further submitted that the following matters are relevant in re-sentencing the appellant:
(a)the appellant is a person of good character and this behaviour was out of character and an isolated incident – the prosecution accepted that the appellant is entitled to the benefit of her prior good character (T 19.45-20.4). The appellant has a limited and irrelevant criminal history;
(a)Child and Youth Protection Services conducted an assessment and decided no further action was needed;
(b)the appellant has suffered immense guilt and remorse for the harm inflicted on her son;
(c)the appellant has taken steps to educate herself and ensure that this type of behaviour does not occur again, through engagement with a psychologist;
(d)the offending is at the mid-level for an offence of assault occasioning actual bodily harm; and
(e)the court duty report assessed the offender as low risk of reoffending, stated that the appellant did not attempt to minimise her actions, accepts responsibility for her actions and understands the impact it has had on the victim.
The appellant also submitted that the letter from Psychologist David Wakeling dated 28 January 2020 be admitted on re-sentence. It is admitted on re-sentence in accordance with the principles discussed above. The letter indicates that the appellant engaged in discussions with the psychologist and that her son attended ten sessions with the psychologist between May 2019 and December 2019. This included a further six sessions following the appellant’s sentencing in the Magistrates Court. This updated letter confirms the following:
In my discussions with [the appellant] and in session with [her son], I have not observed any behaviours from either [the appellant] or [her son] that would indicate an abnormal or problematic relationship between them. Moreover, [her son] to date has not raised any issues concerning his mother in session that would raise safety or treatment concerns.
Following the sentencing hearing, parties were invited to provide further written submissions on the imposition of an order pursuant to s 17 of the Sentencing Act.
Section 17 provides, inter alia, the following:
(2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):
(a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;
(b) a good behaviour order under section 13.
(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a) the offender’s character, antecedents, age, health and mental condition;
(b) the seriousness of the offence;
(c) any extenuating circumstances in which the offence was committed.
(4) The court may also consider anything else the court considers relevant.
Appellant’s Submissions
The appellant referred to Cobiac v Liddy (1969) 119 CLR 257. Relevantly, Windeyer J at pp. 275-276 stated:
That means, I think, that the magistrate must be of opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several of them taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits. … Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives.
It was accepted by the appellant that the “ordinary consequence of a finding of guilt is the recording of a conviction”: per Proud v Sladic [2014] ACTCA 26 at [42] (Sladic). The appellant submitted, however, that while a non-conviction is an exceptional outcome, “section 17 says nothing about the need for exceptional circumstances”: Sladic at [47].
The appellant submitted that the appellant is entitled to the benefit of her prior good character. The prosecution did not cavil with this submission (T 19.45-20.4).
The appellant submitted that, while the appellant had not been diagnosed with any health conditions or mental conditions at the time of the offending, it is “apparent she was under significant emotional strain at the time of offence”.
The appellant referred to the following statements in Sladic in relation to consideration of extenuating circumstances:
36. However, we make the following observations. The appellant emphasised that, when s 17(3)(c) speaks of an extenuating circumstance, it speaks of an “extenuating (circumstance) in which the offence was committed” (emphasis added). The appellant submitted that, in the present case, the personal stress suffered by the respondent was merely a background fact to be taken into account as part of the overall subjective circumstances, and it could not be elevated to an “extenuating (circumstance) in which the offence was committed” (emphasis added).
37. In RLG v Donnelly [2012] WASC 230 at [39], Beech J considered the equivalent Commonwealth provision, observing:
39. “Extenuating circumstances” have been said to mean circumstances which “excuse in some appreciable degree the commission of the offences or lessen the appellant’s guilt” ...
38. For the purposes of argument, it may be accepted that, in order to constitute a s 17(3)(c) extenuating circumstance, the relevant circumstance must bear a direct relationship to the offence that was committed. In the present case, there was such a relationship. The respondent’s legal representative submitted that the respondent’s serious personal stress had caused an uncharacteristic lapse of judgment, as a result of which the respondent committed the offence. The asserted connection was not contradicted.
The appellant submitted that “the emotional strain the appellant was under at the time of the offence falls into this category [extenuating circumstances] and exhibits the same features, including connection to the offending behaviour”.
The appellant submitted that the VIS dated October 2019, as well as the observations of Dr Rasratnam, demonstrate the emotional distress the appellant was suffering at the time of the offence.
Finally, the appellant noted that the appellant has sought counselling for her son to both assist him with dealing with the offence, and to assist her in better managing her son’s behaviour.
Given their submissions, the appellant concluded as follows:
For all the above reasons, it is submitted that an order pursuant to section 17 would be appropriate in this case. The imposition of a good behaviour order would serve to both reflect the serious nature of family violence offending and also provide reassurance to the court the appellant will not commit a similar offence in the future.
Respondent’s Submissions
The respondent noted that the ordinary consequence of a finding of guilt is the recording of a conviction, citing Balthazaar at [53] and Sladic at [42].
The respondent submitted that it would be an error of law to express a particular offence as being outside the realm of s 17; however, it is no error to specify the circumstances of the particular case which amount to “serious” considerations, and which therefore remove the particular offending from being suitable for the imposition of a s 17 order: Purcell v O’Reilly [2018] ACTSC 60 at [13], [28]-[31].
The respondent submitted that the Court must address each of the considerations under s 17(3). In relation to the appellant’s subjective circumstances (s 17(3)(a)), the respondent accepted the submissions of the appellant.
Seriousness of the Offence – s 17(3)(b)
The respondent submitted that the offence of assault occasioning actual bodily harm is “by the yardstick of the maximum penalty, a relatively serious offence but, by no means, the most serious in the criminal calendar”: R v Wagle (No 2) [2014] ACTSC 160 at [6]. It was also noted that, in R v Curtis [2013] ACTSC 291 at [28], Refshauge J held that the offence is one where ordinarily a sentence of imprisonment may well be imposed.
Citing R v CV [2013] ACTCA 22; 233 A Crim R 67 at [37], the respondent submitted that, where the seriousness of the offence and the need for general deterrence and denunciation are important factors in sentencing, the scope for the operation of s 17 decreases.
In R v Mauger [2012] NSWCCA 51 at [19], the NSW Court of Criminal Appeal, in relation to the operation of the equivalent NSW section, s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), stated the following:
Where the offence that is committed is an objectively serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope of the operation of the section decreases. The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of that offence.
Noting this, and in relation to the seriousness of the offence, the respondent reiterated their submission that the offending occurred in the family violence context, in a relationship of trust, and in a place where the victim is entitled to feel safe.
The respondent submitted that the bruising experienced by the victim was “significant”, and that the injury suffered was not “merely transient or trifling”. The respondent further noted that there was an initial attempted deception, in that the appellant “had told [the victim] that he had hurt his back at swimming lessons on Tuesday night” (Statement of Facts).
The respondent submitted that such offending exceeds any notion of lawful chastisement, citing R v Terry [1995] VLR 114, and that this is evidenced by the appellant’s plea of guilty to the charge.
The respondent submitted that, considering the objective seriousness of the offence, a conviction is an appropriate disposition in this matter. The respondent further noted that the appellant conceded as much in their original written submissions.
Extenuating Circumstances – s 17(3)(c)
The respondent submitted that extenuating circumstances must relate to the circumstances of the offending and are defined as circumstances which excuse the commission of the offence or lessen the appellant’s guilt in some “appreciable degree”: Nelson v Quinn [2001] WASCA 297 at [58].
The respondent, as with the appellant, referred to [37] and [38] of Sladic in respect to the nature of extenuating circumstances. The respondent submitted that the apparent emotional strain experienced by the appellant does not constitute an extenuating circumstance, as it does not “have a direct relationship to the appellant committing the offence nor provide a salient excuse for the commission of the offence.”
The respondent submitted that the offending was “completely disproportionate” to the alleged misbehaviour of the victim, and that the behaviour of the victim at the time of the offence was not dissimilar to the behaviour of any child at seven years of age.
The respondent submitted that “the stress and emotional strain of the appellant does not constitute an extenuating circumstance to the requisite threshold to be considered for disposal pursuant to s 17”.
The respondent submitted that a non-conviction order is not an appropriate disposition in this matter. In this respect, the respondent noted that a conviction is a formal mark of society’s disapproval of the wrongdoing and is part of the offender’s punishment: Lukatela v Apostoloff [2010] ACTSC 74 at [29].
Finally, the respondent submitted the following:
Offences occurring in the family home are a scourge in the Australian community and the courts have a fundamental part to play in denouncing such conduct and making it clear that such conduct is completely unacceptable.
Consideration of Section 17 Disposition
In deciding whether to make a non-conviction order, the Court must consider the following:
(a)the offender’s character, antecedents, age, health and mental condition: s 17(3)(a);
(b)the seriousness of the offence: s 17(3)(b); and
(c)any extenuating circumstances in which the offence was committed: s 17(3)(c).
The Court may also consider anything else the Court considers relevant: s 17(4).
Character, Antecedents, Age, Health & Mental Condition
The respondent did not cavil with the evidence in this regard, noting the appellant’s submission (Respondent’s Further Written Submissions at [11]). The appellant is 48, married with three children, and in part-time employment with a credit union. The appellant is entitled to the benefit of her prior good character. The appellant has no diagnosed health or mental conditions. She was under significant emotional strain at the time of the offence (Appellant’s Further Written Submissions at [15]; Respondent’s Further Written Submissions at [11]).
The Seriousness of the Offence
This was a serious offence: R v Wagle (No 2) [2014] ACTSC 160; R v Curtis [2013] ACTSC 291 at [28]; R v CV [2013] ACTCA 22; 233 A Crim R 67; Respondent’s Further Written Submissions at [13].
The offending occurred in a family violence context and in a place, the family home, where the victim, a young child, is entitled to feel safe. He was struck as set out in the statement of facts. The bruising was significant.
It is open to an appeal court to form a different view from the sentencing judge as to the objective seriousness of an offence where the only House v The King error asserted is that the sentence is “plainly unjust”: Carroll v The Queen [2009] HCA 13; 254 CLR 259 at [24] (Carroll). However, in reaching its conclusion, the appeal court does not discard the sentencing judge’s factual findings: Carroll at [24]. An assessment of objective seriousness is part of the sentencing process: see R v Kilic [2016] HCA 48; 259 CLR 256 at [19].
This was a serious offence. Regardless of the label attached, be that upper or mid range, the identifying features are clear and agreed as between the parties, as set out above. Occasionally, labels can obfuscate more than they illuminate. As has previously been expressed in R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]:
… references to low-range, mid-range and high-range objective seriousness are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case.
Extenuating Circumstances
For the purposes of s 17(3)(c), it may be accepted that in order to constitute an extenuating circumstance, the relevant circumstance must bear a direct relationship to the offence committed: Sladic at [38]. In this case, there was such a relationship.
The appellant’s serious personal stress and emotional strain had caused an uncharacteristic lapse of judgement as a result of which the appellant committed the offence. The VIS and the report of Dr Rasaratnam are evidence of the emotional distress the appellant was suffering from at the time of the offence.
Other Relevant Factors – s 17(4)
The appellant is remorseful and has undertaken rehabilitation, as evidenced by the references and reports before me.
Conclusion
Offences occurring in the family home are indeed a scourge in our Australian community. The Courts must play their part in denouncing such conduct. It is not only about the transmission of physical violence but the transmission of the idea from one generation to the next that violence is the answer to life’s problems.
Violence upon children must be deterred and the consequent transmission of violence from one generation to the next must also be deterred. Violence is not the answer to problems at home, nor is it the answer to problems outside the home in the public sphere, in our broader society. To assert, however, that in every case of this nature there must be imprisonment, or there must be a conviction, is anathema to individualised justice.
It is contrary to the individual sentencing discretion that must be exercised for every person that comes before the Courts. As Mahoney ACJ stated in R v Lattouf (Unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J and Adams AJ, 12 December 1996), “if justice is not individual, it is nothing.”
General deterrence alone is not the only sentencing purpose that must be considered. In Bifel v The Queen [2013] VSCA 82 at [4], Harper JA stated:
It is in my opinion thus clear that injustice would result were general deterrence to so overwhelm other sentencing principles that a particular sentence became disproportionately rather than proportionately harsh when measured against the degree of criminality of which the offender is guilty.
(Emphasis in original).
In Veen v The Queen (No 2) (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ stated at 476:
… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
(Emphasis added).
In this case, in my view, on balance, the guideposts point toward a s 17 non-conviction order.
Evidence of rehabilitation may mitigate the need for personal deterrence and does so in this case: Stanford v The Queen [2007] NSWCCA 73 at [19]. The appellant is a person with a very low risk of re-offending: R v Mauger [2012] NSWCCA 51 at [39].
The balance struck by a sentencer as an ‘instinctive synthesis’ is not used to “cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which … balances many different and conflicting features”: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [75], cited in Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [59] and Markarian at [37].
General deterrence is important, and so is individualised justice. General deterrence is not undermined in this case by not recording a criminal conviction for a remorseful mother, of prior good character, who has undertaken rehabilitation and who has already spent a night in gaol, imprisoned by the State.
Orders
I make the following orders:
(a)The appeal is allowed.
(b)The sentence and conviction recorded by the learned Magistrate are set aside.
(c)A non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) is substituted.
(d)The offender is to enter into a 12-month good behaviour order with the core conditions as prescribed in s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT).
| I certify that the preceding [132] numbered paragraphs are a true copy of the Reasons for of her Honour Justice Loukas-Karlsson. Associate: Date: |
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