Supreme Court
Smith v Boarder [2022] TASSC 30 (16 May 2022) – Tasmanian Supreme Court
‘Costs of unsuccessful application to extend protection order’ – ‘Discretion to order costs s34 family violence act 2004 (tas)’ – ‘Protection order’ – ‘Relevance of objects of family violence act 2004 (tas) to costs order’ – ‘Separation’
Proceedings: Motion for costs for unsuccessful application to extend protection order pursuant to Family Violence Act 2004 (the Act), s 34.
Facts: On 19 February 2020 an interim protection order was granted to Ms Boarder. At the hearing of Ms Boarder’s application to extend the protection order for a further 3 years leave was refused, the interim order revoked and, following a further hearing on the issues, Mr Smith’s application for costs refused. The Magistrate held that the was no change in circumstances and the only contact between the parties during the term of the interim order was a letter delivered to Ms Boarder by Mr Smith, “which contained nothing which could reasonably be construed as abusive, threatening, intimidating or coercive”[8]. Both parties had been represented by counsel at the extension hearings.
Grounds of motion to review: The magistrate erred in dismissing the costs application in that:
(a) she took into account irrelevant matters, namely:
1. Ms Boarder 's subjective fear and psychological state; and
2. the objects of the Act as stated in s 3; and
(b) she acted on a wrong principle by misdirecting herself that "a holistic approach, rather than a compensatory approach, should be taken to the issue of whether costs should be ordered." [11]
Decision and Reasoning: Motion allowed; order of magistrate set aside; Ms Boarder is to pay Mr Smith's costs of the application for extension of a family violence order in the agreed sum.
The objects of the Act in s3 were relevant considerations but Ms Boarder’s demeanour while giving evidence, was, without more an irrelevant consideration. There was no finding that the fear Ms Boarder expressed related to any conduct of Mr Smith while the protection order was in force.
State of Tasmania v Matthew John Davey (Sentence) [2021] TASSC unreported (10 December 2021) – Tasmanian Supreme Court
Comments on passing sentence Brett J
‘Allegations of infidelity’ – ‘Arson threats’ – ‘Assault’ – ‘Attempted murder’ – ‘Burning’ – ‘Coercive and controlling behaviour’ – ‘Coercive control’ – ‘Extensive criminal history’ – ‘Following, harassing and monitoring’ – ‘Immolation’ – ‘People affected by substance misuse’ – ‘Persistent family violence’ – ‘Sentencing’ – ‘Severe physical injuries’ – ‘Threats to kill’
Charges: Attempted murder x 1; persistent family violence x 1.
Proceedings: Comments on passing sentence.
Facts: The male defendant was found guilty of persistent family violence and attempted murder. Throughout the defendant’s two-year relationship with the female victim, he used physical violence, verbal abuse, and threats as part of a ‘continuous… pattern of coercive control’. This included threatening to kill the victim by setting her car or house on fire, and slapping, striking or hitting the victim with objects. The defendant monitored and controlled the victim’s movements, communications and relationships with others, threatening to kill her if she left the relationship and detaining her at his house on at least two occasions. One assault occurred in relation to the defendant making allegations of infidelity, another after the defendant had consumed illicit drugs. The defendant attempted to murder the victim by using petrol to set her on fire during a physical altercation triggered by her attempting to leave the relationship. The victim was left with severe and lifelong physical injuries and post-traumatic stress disorder.
Issues: Sentencing.
Decision and Reasoning: The defendant was sentenced to 22 years and three months imprisonment, with a non-parole period of 14 years and 3 months, and the court made a family violence order for an indefinite period from date of sentencing.
In sentencing, Brett J considered denunciation, general and specific deterrence and community protection as key considerations due to the defendant’s ‘concerning history of violent offending’ and the court’s duty to ‘respond strongly’ to family violence. His Honour considered the defendant’s extensive criminal record and history of drug-abuse and noted that he was ‘entitled to some mitigation for the utilitarian value of pleading guilty to the persistent family violence charge’, which avoided a lengthy trial. In addressing the principle of totality, His Honour viewed it as appropriate for the defendant to serve each indictment cumulatively as each offence was ‘separate and distinguishable’. His Honour considered time spent in custody and reduced the defendant’s sentence accordingly. Finally, His Honour explained that the non-parole period was greater than the statutory minimum because of ‘the objective seriousness of the crimes’, the defendant’s ‘moral culpability’ and other key sentencing considerations.
State of Tasmania v Levi Joseph David Hall (Sentence) [2021] TASSC unreported (27 September 2021) – Tasmanian Supreme Court
Comments on passing sentence Pearce J
‘Breach of protection order’ – ‘Coercive control’ – ‘Controlling behaviour’ – ‘Following, harassing and monitoring’ – ‘History of domestic and family violence’ – ‘People affected by substance misuse’ – ‘Persistent family violence’ – ‘Sentencing’ – ‘Strangulation’ – ‘Technology facilitated abuse’ – ‘Threats to kill’
Charges: Persistent family violence x 1; breaching a police family violence order x 5.
Proceedings: Comments on passing sentence.
Facts: The male defendant lived with the female victim and her children for 12-months. The defendant entered pleas of guilty. Throughout their relationship, the defendant used ‘violence, intimidation, threats and abuse’ towards the victim in the context of his ‘generally violent, abusive and controlling behaviour. The defendant monitored and controlled the victim’s phone use, controlled when she left the house, and subjected her to physical violence in the presence of her children. On one occasion, the defendant strangled and threatened to kill the victim. A family violence order made in May 2019, was immediately breached by finding the victim, taking her to his friend’s house, and holding her there while subjecting her to physical abuse.
Issues: Sentence to be imposed.
Decision and Reasoning: The defendant was sentenced to imprisonment for 5 ½ years, with a non-parole period of 3 ½ years.
Pearce J viewed the defendant’s behaviour as a serious example of the crime of persistent family violence. His Honour highlighted that the offending included strangulation, which caused the victim to fear for her life and has had a ‘profound’ and lasting ‘psychological impact’. His Honour viewed the defendant’s repeated offending as discounting ‘any claim to… genuine remorse…’, and the fact that the offending was ‘committed in breach of a police family violence order’ as evidence of his ‘repeated refusal to comply with the law and… contempt of authority’. In sentencing, Pearce J considered the need for punishment and condemnation, and viewed the defendant’s ‘long and concerning record for violence… against women in particular’ as an ‘important factor in sentencing’. His Honour also considered the need to vindicate the victim and protect the community by imposing a sentence that achieved specific and general deterrence.
State of Tasmania v ARJ (Sentence) [2021] TASSC unreported (11 March 2021) – Tasmanian Supreme Court
Comments on passing sentence Pearce J
‘Allegations of infidelity’ – ‘Assault’ – ‘Coercive and controlling behaviour’ – ‘Exposing children to domestic and family violence’ – ‘Extensive criminal history’ – ‘History of family violence’ – ‘Jealous behaviour’ – ‘People affected by substance misuse’ – ‘Persistent family violence’ – ‘Pregnancy’ – ‘Rape’ – ‘Sentencing’ – ‘Stepchildren’ – ‘Threat to cause abortion’
Charges: Persistent family violence x 1, constituting 16 unlawful family violence offences: one rape, one assault of a pregnant woman and 14 assaults.
Proceedings: Comments on passing sentence.
Facts: The male defendant was found guilty following jury trial. The 16 offences constituting the charge were committed over 9 occasions during the defendant’s two-and-a-half-month relationship with his pregnant younger female partner. The defendant’s conduct began soon after the relationship started, and ‘was characterised by ongoing domineering conduct, torment and the exercise of power, control and intimidation’. The assaults included striking with a hammer, baseball bat and power cord, burning with a cigarette, and threats to cut with glass in addition to assaults without weapons. The rape was constituted by the forcible penetration of the victim’s genitalia by striking with a baseball bat and the assault of a pregnant woman was the attempt to stomp on the victim’s stomach with the stated intent to cause an abortion. Some of the offending occurred in the presence of the victim’s children. The defendant had a history of family violence and drug abuse. The defendant was sentenced to 6 years imprisonment, with a non-parole period of four years, and the court imposed a family violence order to remain in force for 7 years from the date of sentencing.
Issues: Sentencing.
Decision and reasoning: The defendant was sentenced to 6 years imprisonment, with a non-parole period of four years, and the court made a family violence order for 7 years from the date of sentencing.
Pearce J considered the offending in the context of the defendant’s criminal record, which included family violence offences, assaults, and breaches of family violence orders. His Honour considered the ongoing psychological impact of the offending on the victim, and the need for punishment, general and personal deterrence, vindication of the victim, and protection of the community’. ‘All of the offences were committed when you were subject to a family violence order… and while you were subject to electronic monitoring, thus displaying your contempt for the law and to court orders.’
Hopkinson v Wilkie [2020] TASSC 32 (3 July 2020) – Tasmanian Supreme Court
‘Assault in a domestic setting’ – ‘Consent’ – ‘Motion to review conviction’
Charges: Common assault.
Proceedings: Motion to review conviction by Magistrate.
Facts: The male applicant was found guilty of assaulting his female partner. The Magistrate found that the applicant hit the complainant in the head, pulled her hair and dragged her. The complainant kicked the defendant. The complainant gave evidence that she had a ‘mutual argument’ with the applicant and was not punched. Shelton (a witness to the incident) gave evidence that the applicant punched the complainant during a ‘verbal argument between them’. The magistrate accepted Shelton’s evidence and did not accept the complainant’s evidence or the applicant’s argument that there was consent, stating that a defence of consent ‘doesn’t apply to victims of domestic violence’.
Ground: The Magistrate erred in law in stating the defence of consent does not apply in the context of domestic violence.
Decision and reasoning: Motion to review dismissed.
As a matter of statutory construction, provisions relating to consensual violence as a defence do not include a ‘carve-out … for any category or class of cases such as domestic violence cases’ [34]. As a general statement of law, the defence of consent does not avail the applicant if ‘there either was no consent or if there was, the complainant did not consent to the degree of force involved in the assault’ [28]. Based on the magistrate’s findings of fact, the defence of consent was excluded.
Baker v Barratt [2019] TASSC 28 (4 July 2019) – Tasmanian Supreme Court
‘Administrative law’ – ‘Appeal against conviction’ – ‘Appeal and review’ – ‘Apprehended bias’ – ‘Coercive control’ – ‘Isolation’ – ‘Judicial review’ – ‘Motion to review’ – ‘People from culturally and linguistically diverse (CALD) backgrounds’ – ‘Physical violence and harm’ – ‘Procedural error of magistrate in not playing record of interview in open court’ – ‘Procedure and evidence’ – ‘Visa threats’
Charges: Common assault x 1.
Case type: Appeal against conviction.
Facts: The applicant man appealed against his conviction on a charge of common assault on the ground that the court erred in convicting him against "the preponderance of the evidence". The complainant, a Philippino woman who was applying for a visa, told the court that she had an argument with the applicant with whom she was in a relationship. During the course of the argument, she alleged that he slapped her in the face, twisted her arm and pushed her to the floor. He then allegedly tried to kick her. She also gave evidence that she rang a friend after the incident. The friend confirmed that this call was made and that the complainant had told him that she had been assaulted. He took photos of her for the purposes of recording the consequences of the assault. These were tendered along with the applicant’s record of interview. The applicant admitted in his video interview that he regularly threatened to withdraw support for the complainant’s Visa and controlled her access to a mobile telephone and the Magistrate identified this as evidence of the applicant’s controlling behaviour. The applicant denied the assault.
Issue: The issue for the Court was whether the Magistrate reasonably came to his conclusion on the evidence at trial.
Held: Geason J found that the applicant failed to establish that the Magistrate’s conclusion was not reasonably open to him. It was noted that the evidence was "of narrow compass" in that the applicant and complainant had engaged in a physical argument, evidenced by the bruising shown in the photographic evidence. Moreover, the Magistrate’s conclusions and reasons were found to be unimpeachable, and he was entitled to prefer the complainant’s evidence. This was because the complainant’s evidence was unshaken in cross-examination and corroborated in material respects by a third party ([13]-[15]).
A further issue on appeal was that of apprehended bias. Whilst the Magistrate had a familial relationship with the complainant’s employer, Geason J concluded that there was nothing in the conduct of the case or the reasons for the decision which gave the appearance of any pre-judgment based on that relationship ([21]).
Geason J also noted that the applicant’s record of interview was not played in court in its entirety, such that not all evidence was heard in open court prior to the court reaching its decision ([24]). The Magistrate elected to read the transcript of the interview rather than listen to it in full. His Honour was highly critical of this practice, emphasising that all evidence relied upon to prove a case should be heard in open court, and that the transcript itself was not evidence. The Magistrate ran the risk that something material to the case was not "seen" ([27]). Whilst this was considered to be an error, it did not give rise to any miscarriage of justice.
Irons v Moore [2019] TASSC 22 (22 May 2019) – Tasmanian Supreme Court
‘Application of Weissensteiner’ – ‘Consent and disclosure’ – ‘Evidence issues’ – ‘Hostile witness’
Charges: Assault x 1; Breach of protection order x 1.
Appeal type: Appeal against conviction.
Facts: The facts of both charges were the same: the appellant grabbed and punched the complainant in front of her children ([3]).
While giving evidence, the complainant claimed that she could not remember what happened on the day. The prosecution successfully applied to treat her as a hostile witness ([3]). The evidence was limited to circumstantial evidence and hearsay evidence of witnesses who saw the complainant’s injuries immediately after the assault ([4]). The magistrate found the appellant guilty of both charges and imposed a fine.
Issues: The sole ground of review is that on no reasonable view of the evidence could the magistrate have been satisfied of the appeallant’s guilt.
Decision and reasoning: The appeal was dismissed.
The principle in Weissensteiner v The Queen [1993] HCA 65 was considered, namely that a ‘hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused’ ([20]). In this case, while the complainant had given evidence, she could not remember what happened. Therefore, the only person who could have known how the injuries were inflicted was the defendant ([21]).
‘In the light of the evidence that force had been applied by the applicant to the complainant and in the absence of any contradictory or explanatory evidence from the applicant, I am satisfied that the application of force in lawful self-defence was not available to the magistrate as a reasonable possibility or hypothesis consistent with innocence.’ [24]
Cannell v G; G v Cannell [2018] TASSC 55 (1 November 2018) – Tasmanian Supreme Court
‘Breach of protection order’ – ‘Following, harassing and monitoring’ – ‘Meaning of harass’ – ‘Mens rea’ – ‘Physical violence and harm’ – ‘Safety and protection of victims and witnesses’ – ‘Systems abuse’
Charges: Trespass x 1; Making a false report to police x 1; Contravening an interim family violence order x 3.
Case type: Prosecution seeking review of dismissal of charges; defendant seeking review of charge proved.
Facts: The defendant and complainant were separated. The evidence in this case was contested by both parties.
The trespass charge occurred when the defendant entered the complainant’s house and did not leave when asked. The false report charge occurred when the defendant alleged that the complainant had struck him in the chest while she was telling him to leave. The first contravention charge occurred when the defendant approached the complainant in the Federal Circuit Court building. The complainant alleged that the defendant said ‘you’re all going down’. The magistrate was not satisfied that those words were spoken, but even if they were, they did not constitute a threat. The second contravention charge occurred when the defendant parked his car next to the complainant’s car during a handover of one of the children. The magistrate found that the defendant breached the order and that was no exception in the contact arrangement that would have allowed this ([39]). The third contravention charge occurred when the defendant approached the complainant on numerous occasions to serve her with an application for a restraining order ([43]).
Issues: Whether the Magistrate’s decisions were reasonably open on the evidence and whether the Magistrate gave adequate reasons.
Decision and reasoning: Brett J affirmed all the magistrate’s decisions.
Note: in relation to the third contravention of the restraining order, the defendant argued that the prosecution had not proved the ‘mental element’ of the charge because he did not intend to harass the complainant but rather serve her with legal processes. Brett J discussed the statutory definition of the word harass, which includes following the person or keeping the person under surveillance ([48]). His Honour considered that “there is no requirement that the defendant intend or otherwise foresee the causation of [an effect on the person harassed, eg worry, fear or mental anguish]” ([60]).
‘The evidence overwhelmingly supported the magistrate's conclusion that the defendant had harassed the complainant by following her, and that following her was deliberate and intentional…. Whilst the service of documents on the complainant was a legitimate purpose, it did not justify conduct on the part of the defendant that was in breach of the order. It goes without saying that there were other ways of achieving that legitimate purpose which did not involve contravention of the family violence order.’ [63]
His Honour considered that this construction is consistent with the relevant legislation, that is, to protect likely victims of family violence from likely perpetrators of that violence ([61]).
Harrison v Moore [2018] TASSC 53 (19 October 2018) – Tasmanian Supreme Court
‘Breach of protection order’ – ‘Evidence’ – ‘Following, harassing and monitoring’ – ‘oath on oath case’ – ‘Physical violence and harm’ – ‘Technology-facilitated domestic and family violence’ – ‘trivial breach’
Charges: Common assault x 2; Contravention of an interim family violence order x 1.
Appeal type: Appeal against conviction.
Facts: The complainant and applicant had two young children. The assault charges occurred on one day where the complainant alleged that the applicant punched the complainant in the face and kicked her in the head ([5]-[6]). The breach of the interim family violence order occurred when the applicant sent the complainant 4 text messages asking about her and the children ([26]).
The applicant gave evidence at the Magistrates Court trial alleging that he was acting in self-defence. The magistrate accepted the complainant’s evidence over the applicant’s ([10]).
Issues: Whether the finding of guilt was not reasonably open to the magistrate as a matter of law; whether the magistrate should have applied the principle of ‘de minimis non curat lex’ (the law should not concern itself with trifles).
Decision and reasoning: All grounds of appeal was dismissed.
There were 3 grounds of appeal in relation to the assault charge. Ground 1 of the appeal was that the finding of guilt was not reasonably open to the magistrate as a matter of law because the magistrate said she substantially accepted the complainant’s version of events but accepted aspects of the applicant’s version as well. This ground was rejected because the magistrate was entitled to do so ([14]-[15]).
In relation to the breach of the interim family violence order, the ground of appeal was that the magistrate should have applied the principle of ‘de minimis non curat lex’. This was because the magistrate found that sending the messages constituted breaches that were ‘trivial at best’. However, Brett J stated that the principle of ‘de minimis’ is likely not applicable in criminal proceedings ([33]). In any event, it was not applicable in this case because the Magistrate’s reference to ‘trivial’ should be seen as an indication of the relative seriousness of the breaches compared to other examples of that offence, not that the direct contact with the complainant was a trivial matter ([34]).
Bonde v Maney [2018] TASSC 23 (17 May 2018) – Tasmanian Supreme Court
‘Assault’ – ‘Dismissal of charges’ – ‘Evidence of respondent’
Charges: Common assault x 1.
Case type: Application for review of Magistrate’s decision to dismiss charge.
Facts: The complainant alleged that the respondent tried to grab the complainant’s car keys from her, injuring her fingers in the process ([3]). The respondent denied assaulting the complainant and alleged that the complainant injured her fingers when she was trying to retrieve her keys ([4]). After the prosecution case closed, the Magistrate immediately moved to judgement without giving the respondent the opportunity to give evidence ([5]). The Magistrate dismissed the charge of assault on the basis that she was not satisfied beyond reasonable doubt that the respondent deliberately or recklessly caused the injury ([5]).
Issues: The complainant argued that the magistrate erred in law by:
•
first, stating that the respondent must have intended the injuries for the charge of assault to be made out;
•
second, failing to give sufficient reasons as to why she was not satisfied that the charge was proven; and
•
third, dismissing the complaint when on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the respondent.
Decision and Reasoning: The first ground was upheld because the causation of injury is not an element of assault ([7]-[8]). The second ground was also upheld because it was not possible to discern from the Magistrate’s reasons the factual basis for the determination ([15]). Therefore, it was not necessary to consider the third ground ([16]).
The case was remitted to be determined by another Magistrate ([20]).
Moore v Rittman [2018] TASSC 5 (13 February 2018) – Tasmanian Supreme Court
‘Appeal against sentence’ – ‘Conviction not recorded’ – ‘Manifestly inadequate’ – ‘Perpetrator interventions’ – ‘Self-represented litigant’ – ‘Sentencing’ – ‘Strangulation’
Charges: Assault x 2; Breaching a police family violence order x 1.
Appeal type: Prosecution appeal against sentence.
Facts: The respondent and the aggrieved, his partner, were in a relationship and had 2 children. The assaults occurred on two occasions when the respondent choked his partner, causing her to lose breath and bruising ([4]). A police family violence order was made, requiring him to not return to the home where his partner and children were living ([5]). The police later found the respondent in the home [(6]). The respondent pleaded guilty to all charges ([7]). The respondent had no criminal history and had independently sought out participation in a men’s behavioural change program.
At the sentencing hearing, the magistrate did not ask the respondent to make submissions or to provide her with information as to his personal circumstances ([9]). The magistrate, pursuant to s 7(f) of the Sentencing Act 1997 (Tas), did not record a conviction and adjourned the proceedings on the condition that the respondent be of good behaviour and complete the Men’s Behaviour Change Program ([1]). The charges were recorded as family violence offences under s 13A of the Family Violence Act 2004 (Tas) ([10]).
Issues: Whether the sentence was manifestly inadequate.
Decision and Reasoning: Justice Brett first addressed the fact that the magistrate did not allow the respondent to make submissions. His Honour at [11] noted that:
In the case of an unrepresented defendant, it is incumbent on the magistrate to ensure that, not only is such an opportunity provided, but that the defendant is aware of his or her right to address the court, and given some assistance with respect to the nature of the matters and information which should be the subject of the plea.
Nonetheless, this error was not directly in issue so was not determinative ([12]).
His Honour next addressed the sentence. The prosecution argued that the failure to record a conviction renders the sentence manifestly inadequate ([12]). His Honour emphasised the importance of therapeutic interventions for first-time family violence offenders at [24]:
While a punitive and protective response is essential in cases of serious and repeated family violence, it must also be consistent with the stated purpose of the legislation that consideration is given to therapeutic intervention with a view to achieving rehabilitation and behavioural change, when an offender presents before the court for the first time in respect of acts of spontaneous family violence. Prevention of future violence by use of effective strategies to modify behaviour in respect of offenders who have appropriate insight and desire for change is likely to promote the safety, psychological wellbeing and interests of people affected by family violence.
His Honour emphasised that the good behaviour bond and conditions attached were tailored to the respondent’s personal circumstances and was designed to rehabilitate the respondent and ensure that he did not reoffend ([20]). In all the circumstances, the sentence was not manifestly inadequate ([21]).
Barnes v Crossin [2017] TASSC 61 (12 October 2017) – Tasmanian Supreme Court
‘Arrest’ – ‘Reasonable suspicion’ – ‘Responses in criminal proceedings’
Charges: Resisting a police officer in the execution of their duty x 1.
Case type: Review of Magistrate’s decision to dismiss charge.
Facts: The police attended the respondent’s house in response to a call from the respondent’s son, who told the police that his father was ‘going off’ and had hit his mother. When they arrived, there were clothes strewn around the front yard. The police arrested the respondent. They gave the reason to ‘investigate family violence’ ([3]). The respondent struggled against the police, which gave rise to the resisting police officer charge. The Magistrate dismissed the charge on the basis that the arrest was unlawful in the first place ([4]).
Issues: Whether the Magistrate erred in dismissing the charge.
Decision and Reasoning: The Magistrate did err in dismissing the charge.
The power to arrest is derived from the Family Violence Act 2004 (Tas), which requires ‘a reasonable suspicion that the person concerned has committed family violence’ ([27]). This is distinct from a suspicion that the person committed a family violence offence ([33]). Brett J held that there was ample evidence to support the suspicion that there had been family violence, and he had adequately communicated that fact to the respondent ([46]).
Brett J remitted the matter to be decided by the same Magistrate ([53]).
Kirkwood v Thomas [2017] TASSC 56 (15 September 2017) – Tasmanian Supreme Court
‘Breach of domestic violence order’ – ‘Not manifestly excessive’ – ‘Text messages’ – ‘Threats’ – ‘Totality’ – ‘Verbal abuse’
Charges: Breach of family violence order x 2.
Appeal type: Appeal against sentence.
Facts: The defendant and the complainant were separated. The order prohibited him from threatening, abusing or assaulting the complainant, but not from going to her house. The first charge related to the defendant attending her house, ringing and knocking on the doors, and calling the complainant. The second charge related to the defendant sending the complainant 8 text messages also insulting the complainant and demanding money ([2]). The magistrate sentenced the appellant to two months’ imprisonment, cumulatively with a 5½ year sentence he was currently serving ([5]). That sentence related to a subsequent attack on the complainant, where the defendant broke into the complainant’s house and beat her with a baseball bat, leaving her with permanent disfiguring injuries and pain ([6]-[9]).
Issues: Whether the magistrate gave insufficient weight to the principle of totality, and whether the sentence was manifestly excessive ([11]).
Decision and Reasoning: The judge had to decide first if the sentence of two months was manifestly excessive in order to conclude whether the principle of totality had been breached ([12]). It was relevant that the defendant could have been sentenced for longer than 5½ years for the attack with the baseball bat ([12]). There is usually a discount for subsequent sentences, especially because denunciation and personal deterrence may have been achieved by the first sentence ([13]). There was evidence that the appellant had undertaken some family violence and anger management programs in custody ([19]). However, in this case, a heavy sentence was warranted because there had been repeated breaches of the family violence order in the past, and family violence cases warrant tough sentences ([18]). Therefore, it was open to the magistrate to impose the cumulative sentence of two months ([22]).
Mayne v Tasmania [2017] TASSC 38 (29 June 2017) – Tasmanian Supreme Court
‘General deterrence’ – ‘Sentence’ – ‘Smothering’ – ‘Strangulation’
Charges: Common assault x 1.
Appeal type: Appeal against sentence.
Facts: The defendant and complainant had a child together but were not living together. The complainant and defendant were arguing while the complainant was lying in bed. The defendant pushed a pillow onto her face, causing her to struggle for breath for two to five seconds ([3]). The complainant did not suffer any physical injuries. The defendant pleaded guilty and was sentenced to 7 months’ imprisonment ([13]).
Issues: Whether the sentence was manifestly excessive.
Decision and Reasoning: The sentence was not manifestly excessive. Wood J held that the Magistrate was right to highlight the aggravating factors of the offence, including that smothering is a dangerous act, the defendant did not stop of his own accord, and it would have been a terrifying experience for the complainant ([41]). While the sentence was high, it was appropriate to give prominence for general deterrence ([43]).
Wood J said at [43]:
… it is important that deterrent sentences be imposed not merely for crimes that cause grave physical or psychological harm to victims. There is a need to counter the perception that somehow violence of this kind in the home is less serious than the same kind of violence inflicted on a stranger in a public place. Also, acts of violence committed in a family or domestic context causing fear and distress to victims can have debilitating effects upon their well-being or the well-being of a family member witnessing such violence. It is not only violence resulting in visible injury that must be seen as unacceptable, and these victims, as vulnerable members of our society who have experienced fear and trauma, are entitled to the court's protection.
Parker v Hall [2015] TASSC 60 (10 December 2015) – Tasmanian Supreme Court
‘Breach of domestic violence order’ – ‘Following, harassing, monitoring’ – ‘Manifestly inadequate’ – ‘Recording a conviction’ – ‘Sentencing’ – ‘Totality’
Charge: Breach of family violence order
Appeal type: Appeal against sentence
Facts: The respondent and complainant had been in an on-again off-again relationship for two years. A police family violence order was made against the respondent, restraining him from contacting or approaching the complainant within 50 metres. The respondent contravened this order on four separate occasions by phoning the complainant, writing her a letter expressing his affection and remorse, going camping with her, and giving her a letter conveying his desire for reconciliation. An interim family violence order was then made. The conditions of the order were substantially the same as the police family violence order. The respondent then breached this order by meeting the complainant to talk on two separate occasions. The respondent was charged and found guilty of four breaches of a police family violence order and two breaches of an interim family violence order. The magistrate adjourned the charges without conviction for 12 months on the condition that the respondent enter into a good behaviour undertaking and not commit similar offences during the period.
The respondent had previously been found guilty of breaching a police family violence order and an interim family violence order, which were also sentenced without conviction. This offending occurred during the same time period as the six charges in question. The prosecution submitted a more severe sentence would have been imposed if all the charges had been sentenced together. The respondent had no other relevant prior convictions. His conduct did not involve any threats or violence and occurred with the complainant’s consent to varying degrees. Further, the respondent’s counsel submitted that as a legal practitioner, he suffered more than the average citizen as a consequence of the charges.
Issue: Whether the sentence was manifestly inadequate.
Decision and reasoning: The appeal was dismissed.
Despite the complainant’s compliance, the respondent knew that his conduct was in breach of the orders. Further, his repeated offending of eight separate breaches increased his culpability and pointed towards the need for specific deterrence. However, the respondent’s breaches, while not trivial, were not at the serious end of offending. The public interest did not favour a conviction being recorded. As a result of the media attention attracted by the matter, the respondent had already felt the consequences of his offending behaviour to a degree. If the charges were heard together with the previous two offences, the offending would not have necessarily demanded a heavier or more punitive response. Considering these factors together, Wood J concluded that there was sufficient justification for leniency extended to the respondent and the sentence was not manifestly inadequate.
Lacroix v Lacroix [2015] TASSC 42 (3 September 2015) – Tasmanian Supreme Court
‘Extension of family violence order’ – ‘Family violence order’ – ‘Procedural fairness’
Proceeding: Review of family violence order
Facts: A family violence order was made against the applicant on 5 March 2015, in anticipation of the expiration of another 12-month family violence order made on 7 March 2014 (the first order). The applicant made no admissions in relation to the conduct resulting in the making of the first order. On 23 February 2015 the respondent, the applicant’s partner, made an application for an extension of the first order. The magistrate denied this extension but suggested the respondent lodge an application for a fresh order and said, ‘[The applicant] heard me say that, so he’s effectively on notice that that may well occur in the course of the morning and taking care of the service requirements [sic]’. Counsel for the respondent then lodged the application for a fresh order.
Issue: Whether the applicant was denied procedural fairness because he was not served with a sealed copy of the new application filed by the respondent.
Decision and reasoning: The motion to review the order was dismissed.
The magistrate was obliged to give the applicant a reasonable opportunity to be present at the hearing of the application, to obtain legal representation, and to make submissions and dispute allegations of fact at common law. The applicant was not denied these opportunities. He was present when the magistrate directed the respondent to lodge the fresh application that would be dealt with later that day. As a result, he had an opportunity to remain at court and instruct his counsel, who was also present at the time, to prepare submissions to defend the application on his behalf. The evidence relied on by the respondent for the fresh application was the same as for the extension of time. The common law rule of procedural fairness did not require the magistrate to proceed only if the applicant was served with a sealed copy of the fresh application.
The magistrate did not err in applying the statutory requirements. Section 106E Justice Act 1959 (Tas) does not apply to family violence orders, as submitted by the applicant’s counsel. Further, rule 54N(1)(a) Justices Rules 2003 (Tas) was complied with. The fresh application was served on the applicant on 11 March 2015. The rule does not require service before the family violence order is made, but as soon as practical after it is filed with the clerk.
However, the magistrate erred in making a final family violence order. He did not have authority to make such an order under s 31(7) Family Violence Act 2004 (Tas), as a sealed copy of the application had not been served on the applicant and no attempt had been made to carry out service. Despite this error, no substantial miscarriage of justice resulted. The applicant had notice of the application, when and where it would be made and the evidence to be relied upon. Further, the applicant was in court the morning of the application with a lawyer and merely needed to stay until the afternoon to defend the fresh application. Therefore, there was no procedural unfairness and no substantial miscarriage of justice.
Young v Wilson [2015] TASSC 16 (28 April 2015) – Tasmanian Supreme Court
‘Assault’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘Non-parole period’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Using carriage service’
Charges: Using a carriage service to harass, Breach of police family violence order (6 counts), Common assault
Appeal Type: Application for review of sentence
Facts: A police family violence order prohibited the applicant from approaching within 50 metres or contacting the complainant in any way. The breaches of this order involved the applicant phoning the complainant, sending her two text messages, threatening to kill her and punching her to the head and face. The punch also gave rise to the common assault charge. The carriage service offence involved the applicant phoning and sending eight menacing text messages to the complainant. The applicant had a substantial and relevant criminal history. A sentence of eight months’ imprisonment was imposed. This offending also activated previously imposed suspended sentences of imprisonment. This resulted in a total effective sentence of 26 months’ imprisonment with no parole eligibility.
Issue: Whether the sentence was manifestly excessive.
Decision and Reasoning: The application was allowed.
The eight-month sentence was not excessive. The applicant had previously shown a disregard for orders made in favour of the complainant. The assault offences were serious and the applicant did not appreciate this. A deterrent sentence was needed. It was not unjust to activate two of the previous suspended sentences resulting in six months’ imprisonment. However, a previous suspended term of imprisonment of 18 months for trespass, breaches of a family violence order and various traffic offences was substituted with a period of 12 months’ imprisonment. This was considered too harsh, given the other sentences of imprisonment to be served by the applicant and the fact the applicant has not reoffended with respect to the driving offences. Furthermore, there was no justification for not imposing a non-parole period. The applicant’s alcohol problem contributed to his ongoing offending behaviour: ‘The granting of parole may encourage reformation and increase the chances of rehabilitation under supervision through conditional freedom’ ([69]). He was resentenced to a total term of 18 months’ imprisonment with a non-parole period of nine months.
(Note also at [17]-[27] where Wood J made some general comments on the correct procedure to be followed for breaches of suspended sentences in Magistrates’ Courts and at [37]-[53] which contains general consideration of totality, suspended sentences and non-parole periods).
Higgins v McCulloch [2013] TASSC 49 (11 September 2013) – Tasmanian Supreme Court
‘Assault’ – ‘Fines’ – ‘People with mental illness’ – ‘Perpetrator intervention program’ – ‘Physical violence and harm’ – ‘Recording a conviction’ – ‘Sentencing’
Charge: Assault
Appeal Type: Motion to review conviction and penalty
Facts: The applicant was found guilty of one count of assaulting his wife by punching her in the face. The complainant had died by the time the matter came to trial. The parties were living together in unusual circumstances and the assault occurred in a bedroom of the family home in the presence of an adult daughter. The applicant had no prior convictions. A good behaviour bond was imposed and a conviction was recorded.
Issues:
1.
Whether the finding of guilt was reasonably open on the evidence.
2.
Whether the magistrate erred in recording a conviction.
Decision and Reasoning: The notice to review was dismissed.
1.
This argument was dismissed based on the evidence before the magistrate: see paragraphs [5]-[27].
2.
At [33], Tennent J outlined the relevant issues to be considered when deciding whether to record a conviction. A court must consider the public interest, the need for an official record to be made of the commission of the offence and whether the victim might reasonably not feel vindicated by the failure to record a conviction. These factors are to be weighed against the benefits to the offender of a conviction not being recorded. This was a family violence offence. The applicant was not entitled to any discount for a guilty plea and did not display remorse. The applicant was suffering from mental health issues, which partly explained his ‘bizarre’ ([44]) behaviour that occurred in the background to the assault. There was nothing put before the magistrate indicating that recording a conviction would have an adverse impact on the applicant.
Tasmania v Finnegan (No 2) [2012] TASSC 1 (19 January 2012) – Tasmanian Supreme Court
‘Admissibility’ – ‘Evidence - relationship’ – ‘Evidence - tendency’ – ‘Motive’ – ‘Physical violence and harm’ – ‘Probative value’ – ‘Unlawful wounding’
Charge: Unlawful wounding
Proceeding: Ruling as to the admissibility of evidence
Facts: The accused was charged with unlawfully wounding the complainant (his partner) by striking her to the face with a glass. He pleaded not guilty. The Crown sought to lead evidence from the complainant given on a voir dire about the accused’s conduct towards her on other occasions, both before and after the alleged wounding. The accused objected to the admission of some of the evidence ([6]).
Issues: Whether some of the evidence given by the complainant should be ruled inadmissible on at least one of the following bases:
1.
Irrelevance;
2.
Failure to satisfy the common law rule established in Pfennig v R whereby propensity or similar fact evidence is not admissible if, viewed in the context of the prosecution case, there is a reasonable view of that evidence that is consistent with innocence;
3.
The danger of unfair prejudice to the accused outweighing the probative value of the evidence: s 137 Evidence Act 2001 (Tas); or
4.
The probative value of the tendency evidence not substantially outweighing any prejudicial effect that it may have on the accused: s 101(2) Evidence Act 2001 (Tas)
Decision and Reasoning: The appeal was dismissed. The evidence led from the complainant as to the conduct of the accused was admissible. It was relevant on a number of bases: as ‘relationship evidence’, enabling the jury to assess the evidence as to what occurred at the time of the alleged wounding; as evidence of motive (jealousy); as evidence explaining why the complainant asserted she was injured because of a fall and why there was delay in her reporting what occurred; and as tendency evidence, showing that the accused had a tendency to be jealous of anyone who had a friendship/relationship with the complainant and to be generally violent towards her ([11]-[15]).
Further, the probative value of all the evidence under consideration substantially outweighed the prejudicial effect and danger of unfair prejudice to the accused. In this regard, Blow J noted at [30]-[31]:
‘In my view the danger of unfair prejudice to the accused is not great… [A] properly instructed jury, having heard all the evidence of jealousy and violence, is unlikely to be distracted from its duty of impartiality and its duty to give a true verdict in accordance with the evidence.
‘In my view the evidence of jealousy has substantial probative value. Without that evidence the jury might well take the view that the accused had not given any indication of jealousy on any other occasion. If the only evidence available for the jury as to violence on other occasions was the evidence of the three charged assaults, two of which shortly preceded the first report to the police of the accused wounding the complainant with the glass, that could result in the jury overestimating the likelihood of the complainant having fabricated the critical allegations. Having regard to that factor, and to the various bases on which the evidence of violence is relevant, I consider that all the evidence of violence also has substantial probative value’.
Here, there was nothing about the facts that made it one where s101(2) or s137 [Evidence Act 2001 (Tas)] required the Pfennig test to be applied (at [32]).
Note: this decision has been overtaken by legislative changes effective 12 December 2017. See section 13B Family Violence Act 2004.
James v Tasmania [2010] TASSC 50 (11 November 2010) – Tasmanian Supreme Court
‘Breach of domestic violence order’ – ‘Common assault’ – ‘Consent’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Risk factor - strangulation’ – ‘Temporary protection order’
Charges: Breach of a family violence order, Common assault, Driving offences, Perverting the course of justice
Appeal type: Appeal against sentence
Facts: The magistrate imposed three terms of imprisonment. First, the applicant was sentenced to 6 months’ imprisonment, suspended after 4 four months, for charges relating to driving a motor vehicle while disqualified and driving with alcohol in his body. Second, the applicant was sentenced to 3 months’ imprisonment, cumulative on the first period of imprisonment, for perverting justice by providing a false name to a police officer. Third, the applicant was sentenced to 6 months’ imprisonment, suspended after 3 months, for 3 charges. These were: breaching a family violence order by sending an abusive and threatening text message to a woman protected by the order; breaching the order by telling the woman he would punch her in the head if she did not pack his property; and committing common assault by placing both hands around her neck and squeezing, threatening to bash her head in if she did not give him a telephone, grabbing her by the back of the neck, and placing his arm around her neck. The magistrate merely expressed this sentence as being ‘cumulative.’ If the third period of imprisonment was cumulative on both sentences, the effective sentence was 10 months’ imprisonment. However, if it was cumulative only on the first sentence, the effective sentence was 7 months’ imprisonment.
Issues: Whether the magistrate erred in failing to make the sentence clear and whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld. The lack of clarity as to the cumulative nature of the third sentence amounted to a sentencing error and the applicant was re-sentenced. The first and second periods of imprisonment imposed were not manifestly excessive. However, the sentence for the assault and the breach of the family violence order was found to be manifestly excessive. A sentence of three months’ imprisonment wholly suspended was substituted. His Honour stated, ‘[t]he nature of the assault was not severe enough to warrant a greater punishment. His culpability for breaching the order was ameliorated by his belief, the claim to which was unchallenged, that the order no longer operated, and by the complainant reconciling and living with him since the order had been made’ ([22]).
Beechey v McDonald [2010] TASSC 47 (25 October 2010) – Tasmanian Supreme Court
‘Breach of domestic violence order’ – ‘Conditions of orders’ – ‘Guilty plea - unequivocal’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Temporary protection order’
Charges: Breach of a family violence protection order (2 counts), Assault
Appeal type: Appeal against conviction
Facts: The male applicant pleaded guilty to two breaches of a family violence protection order and was sentenced to a wholly suspended sentence of 2 months’ imprisonment. The family violence order included an order that he not enter the premises of the complainant, his wife and mother of his 4 children. On one occasion, when returning the children to the premises, the applicant entered the residence and placed some of the children’s belongings inside (the first complaint – breach of a family violence protection order). The family violence order was later replaced with an order including a term that the applicant not directly or indirectly threaten, harass, abuse or assault the complainant. The applicant and the complainant agreed to spend Christmas day together. On the day, a box the applicant was carrying came into contact with the complainant. She fell over and dislocated a shoulder (the second complaint – breach of a family violence protection order by assault).
Issue: Whether the magistrate erred in accepting the applicant’s plea to one of the charges as he had made assertions that were inconsistent with his plea of guilty.
Decision and Reasoning: The appeal was upheld. Sentencing submissions from counsel for the applicant evidenced that he denied applying force to the complainant intentionally. This was inconsistent with his plea of guilty on the second complaint. A plea of guilty must be unequivocal. The magistrate should have informed counsel for the applicant of this inconsistency ([9]-[12]).
Maingay v Seabourne [2009] TASSC 67 (19 August 2009) – Tasmanian Supreme Court
‘Assault’ – ‘Breach of domestic violence order’ – ‘Conditions of orders’ – ‘Damaging property’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘Manifestly inadequate’ – ‘Physical violence and harm’ – ‘Risk factor - weapon’ – ‘Sentencing’ – ‘Vulnerable - new partner’
Charges: Breach of police family violence order (6 counts), Assault (2 counts), Breach of interim family violence order, Damaging property, Abuse of police
Appeal type: State appeal against sentence
Facts: The male respondent was sentenced by a magistrate in respect of numerous offences. The magistrate dealt with the offences in batches and the State sought review of a suspended sentence imposed in respect of two of these batches. The first batch of offences pertained largely to charges of stealing. More relevantly, the second batch of offences related to a number of breaches of police family violence orders. On 12 December 2005, a police family violence order was made for the protection of Cassandra Deering. The respondent breached this order by head-butting and punching Ms Deering. On 5 January 2007, a second police family violence order was made. The respondent breached this by approaching Ms Deering, damaging the car belonging to her new partner, and sending a threatening text message. A number of these breaches occurred while the respondent was on bail for earlier breaches.
On 2 October 2008, a police family violence order was made for the protection of Dana Smith. The respondent breached this order by kicking Ms Smith in the head. He also said she was lucky he did not slit her throat and that he should have snapped her neck. On 27 October 2008, an interim family violence order was made which required the respondent to immediately surrender firearms. The respondent also breached this order.
Issue: Whether the sentence was manifestly inadequate.
Decision and Reasoning: The sentence imposed in respect of the batch of offences incorporating the family violence offences was manifestly inadequate. The respondent was a repeat offender. He showed a complete disregard for the orders made to restrict his behaviour and should have felt the full effect of a deterrent sentence, notwithstanding his age and lack of a prior history. If his offending had extended only to breach by approach (potentially instigated by the protected person) the outcome would have been different. However, the respondent’s offending went far beyond that; it extended to physical assaults against two separate female partners ([24]).
Her Honour noted that, ‘While it is accepted that, at the time the respondent was dealt with for all of this offending, he was still a young man with no relevant prior history, the legislation pursuant to which he had been charged was enacted to protect members of the community, and in particular to protect persons in close relationships with offenders. Deterrent sentences were required to give effect to that legislation … However, in practical terms, it is impossible in my view to argue that the deterrent effect of an actual term of imprisonment is the same as that of a suspended term of imprisonment’ ([23]).
The respondent was ordered to serve a period of four months’ imprisonment. Although it might have been unfair in all the circumstances to impose a custodial sentence several months after his release, if the error in the sentence was not corrected, the perception would remain that the sentence imposed lacked the requisite deterrent effect ([26]-[30]).
Bradshaw v Tasmania [2009] TASSC 22 (9 April 2009) – Tasmanian Supreme Court
‘Deterrence’ – ‘Exposing children’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm’
Charges: Unlawful act intended to cause bodily harm (2 counts), Aggravated burglary
Appeal type: Appeal against sentence
Facts: The male appellant had lived with the female complainant and her 7 year old daughter for over a year before the offending occurred. The relationship was violent and the complainant accordingly obtained a family violence order requiring the appellant not to threaten, harass or abuse the complainant, to keep the peace towards her, and not to damage any property at her home. The order was in place at the time of the offending. The appellant committed a series of offences against the complainant and they ceased cohabiting together. Following this, the appellant broke into the complainant’s house and stabbed her twice to her right side. He took a few steps away before turning back and stabbing her again twice to her left side. The complainant was holding her daughter at the time of the attacks. The appellant was sentenced to six years’ imprisonment with eligibility for parole after four years.
Issue: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was rejected by all judges but with separate reasoning provided. Tennent J (with whom Porter J agreed) found that while there were mitigating factors (remorse, giving himself up, and pleading guilty), the applicant committed very deliberate acts of violence in the complainant’s own home when he had no right to be there and there was a need for both personal and general deterrence ([35]-[36]). The appellant was sentenced for two particularly serious crimes. The stabbings occurred very close together but constituted two crimes because the appellant walked away and made a conscious decision to return and stab the complainant again ([33]). Further, the appellant committed a number of other offences and showed a complete disregard for orders of the court. He caused significant, long-term physical and psychological damage to both the complainant and her daughter ([34]).
In a separate judgment, Evans J also held that the sentence was not manifestly excessive in light of the totality of the appellant’s criminal conduct. The appellant’s criminal conduct was particularly serious. It was not impulsive. He went to the complainant’s home intending to inflict harm and acted in contravention of both a bail condition and a family violence order. One of the wounds he inflicted could have been fatal. The appellant also had prior convictions for violence and carrying weapons. His attack had a profound adverse impact on the complainant ([13]-[14]).
Allen v Kerr [2009] TASSC 10 (25 February 2009) – Tasmanian Supreme Court
‘Aggravating factor’ – ‘Assault’ – ‘Damaging property’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Provocation’ – ‘Sentencing’
Charge: Common assault
Appeal Type: Motion to review sentence
Facts: The applicant was in a relationship with the victim for three years and they had one child together. The victim also had a child from another relationship. Both of these children were present during the incident. The applicant was intoxicated and swore at the victim. An argument ensued and the victim spat in his face, which the applicant claimed led to his subsequent actions. The applicant took the victim’s house keys and told her to go inside before telling her to get in the car. He then smashed the car window, leaned inside and punched the victim twice to the face and four or five times to the back of the head and bit her multiple times. The police applied for a family violence order to operate for 12 months, which the applicant consented to. The applicant had a significant criminal history (though no convictions for assault) and was subject to a probation order and two suspended sentences. He pleaded guilty and was sentenced to two months’ imprisonment.
Issue: One of the issues concerned whether the sentence was manifestly excessive.
Decision and Reasoning: The motion to review was dismissed.
Porter J found that the assault was not premeditated and arose from the applicant’s state of intoxication. The act of the victim spitting in the applicant’s face was a provocative act and an assault in itself. No weapon was used and the complainant suffered no lasting injury. On the other hand, the assault was serious particularly given the biting. Furthermore, the presence of the two children at the time of the attack was an aggravating factor, as recognised by s 13 of the Family Violence Act 2004 (Tas): ‘Violence witnessed by children in the domestic environment not only is distressing (usually the victim is a parent or someone in the place of a parent), but it also serves to desensitise impressionable minds to violence, and to encourage the notion that resort to violence is acceptable’ ([13]).
The community has a general intolerance towards offences of violence. However, although immediate custodial sentences are appropriate for serious cases of assault, there is no prima facie position that assault offences should be punished by an immediate gaol term. The fact that the applicant was subject to the probation order and suspended prison sentences indicates that these measures did not deter the applicant from offending. ‘General deterrence in relation to offences of violence is a weighty factor’ ([27]). While the penalty was a relatively severe one, it did not demonstrate error having regard to the applicant’s circumstances.
Tasmania v R D P [2009] TASSC 72 (25 February 2009) – Tasmanian Supreme Court
‘Emotional and psychological abuse’ – ‘Evidence’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Police family violence order’ – ‘Rape’ – ‘Relationship evidence’ – ‘Risk factor - separation’ – ‘Sexual and reproductive abuse’
Charge: Rape
Proceeding: Application to adduce relationship evidence
Facts: The defendant was in a relationship with the complainant for about 14 months. The alleged offence occurred after the relationship ended. A police family violence order was in place against the defendant. The complainant arranged to attend the defendant’s house to collect her belongings with her 10-year-old son and her brother. She collected her belongings and then went to the bathroom with her son where she found the defendant. There was a knife on the hand basin. The complainant informed the defendant that she did not want to have sex, but he performed oral sex on her. She exposed her breasts on his demands because she thought he might hurt her if she did not. The complainant screamed for help and tried to defend herself by kicking the defendant. The defendant then threatened to rape her anally unless she uncrossed her legs. She then uncrossed her legs and the defendant vaginally raped her. This was done in front of their child.
Issue: Whether the relationship evidence should be admitted.
Decision and Reasoning: The evidence as to the nature of the relationship was admitted, with the exception of evidence of general physical and verbal abuse unconnected with sexual activity. The evidence included general physical abuse and physical violence used to coerce the complainant into sexual intercourse, one prior occasion of non-consensual vaginal intercourse and an act of anal intercourse. Porter J held that the evidence would allow the jury to more readily assess the actions of the complainant and defendant and ascribe meaning to things said by the defendant. In particular, evidence of prior sexual intercourse without consent might serve to explain why the complainant may have displayed some acquiescence to the oral sex and the vaginal penetration. Also, evidence of prior anal penetration was relevant to the jury’s assessment of why the complainant uncrossed her legs prior to vaginal penetration, given the high level of pain and discomfort the complainant suffered as a result of the earlier anal penetration. The probative value of the evidence outweighed its potential prejudice.
Director of Public Prosecutions v P [2007] TASSC 51 (26 June 2007) – Tasmanian Supreme Court
‘Following harassing, monitoring’ – ‘Manifestly inadequate’ – ‘Mitigating factors’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Pregnant women’ – ‘Rape’ – ‘Risk factor - separation’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’
Charge: Rape
Appeal Type: Appeal against sentence
Facts: The respondent’s relationship with the complainant ended. The complainant attempted to maintain a friendship with the respondent but he could not accept that the relationship was over. He kept coming to her home and tried to kiss and cuddle her. She would sometimes relent to avoid an argument. She was pregnant with his child at the time. On the night of the offence, he arrived at the complainant’s home intoxicated. She asked him to leave but he refused. He stopped her from calling a friend. He then refused to allow her to go to the toilet, forcibly pinned her to their bed and raped her. She eventually stopped resisting and he stopped after about 5 minutes. The rape resulted in lasting psychological impacts on the complainant. The respondent had a long record of offending, including offences of violence and threatened violence. He was sentenced to two years’ imprisonment.
Issue: Whether the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was upheld. Crawford J (with whom Slicer and Evans JJ agreed) held that a sentence of two years is low for the crime of rape, which is ‘a crime of violence, domination and degradation and it usually causes great psychological trauma to the victim. It requires a substantial sentence of imprisonment in most cases. Leniency may be extended in exceptional circumstances, but there were none in this case’ ([16]). His Honour was of the view that it is conceivable that a crime committed ‘during the currency of a sexual relationship’ might allow some leniency, but the fact of a prior sexual relationship is not a mitigating factor and the appellant’s disappointment about the relationship breakdown is not relevant to sentencing: ‘In no sense was his crime an act of unrequited love.’ ([16]). Evans J also noted that, ‘it is significant that the respondent's criminal conduct cannot be categorised as an impetuous response to the break-up of his relationship with the complainant and a manifestation of his love for her. His conduct over the period of in excess of an hour after she first asked him to leave bears all the hallmarks of an assertion of physical and sexual dominion over the complainant’ ([23]). The respondent was re-sentenced to three years’ imprisonment with a non-parole period of 18 months.
Lambie v State of Tasmania [2007] TASSC 10 (7 March 2007) – Tasmanian Supreme Court
‘Assault’ – ‘Denunciation’ – ‘Deterrence’ – ‘Just punishment’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Sentencing’
Charge: Assault (two counts)
Appeal Type: Appeal against sentence
Facts: The appellant was in an ‘up and down’ relationship with the complainant that was marked with arguments and assaults. On the day of the offence, the appellant attended the complainant’s home. An argument occurred and the complainant said she wanted to sort out the issues in the relationship. She stood in the doorway, preventing the appellant from leaving. The argument continued and the appellant grabbed the complainant and threw her backwards out of the way. The appellant then followed the complainant into their bedroom and shoved his motorcycle helmet into her chest, knelt on her chest and shouted in her face. The appellant later returned to the house and took her a glass of water. The assaults aggravated an existing unknown spinal condition and the complainant had to undergo surgery and suffered temporary and permanent disabilities. There were also lasting psychological impacts. The appellant had no relevant criminal history. He was sentenced to 12 months’ imprisonment with a non-parole period of 6 months.
Issue: One of the issues concerned whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld on the basis of another ground of appeal (that the sentencing judge had taken extraneous or irrelevant material into account). In relation to the issue of manifest excess, Underwood CJ (with whom Blow J and Tennent J agreed) stated that the key consideration was ‘the extent of the appellant's criminal culpability for the consequences of his direct and intentional applications of force’ because the sentencing judge sentenced on the basis the appellant was ‘culpably liable’ for all the consequences of his criminality ([19]). However, there were no submissions on this issue from counsel so the Court was reluctant to make a determination. In any case, it was not necessary to do so because the consequences of the appellant’s criminal conduct were not reasonably foreseeable by him and the exceptional circumstances were such that the consequences should carry little weight in sentencing.
In re-sentencing the appellant, the Court held that the conduct was serious and that, ‘the nature of the criminal conduct was such that a sentence of imprisonment is called for to mark condemnation of this kind of domestic violence and to punish the appellant’ ([31]). However, the lack of relevant prior convictions made a 12-month sentence manifestly excessive. The appellant was re sentenced to six months’ imprisonment, fully suspended on the condition that the appellant be of good behaviour for two years after his release.
Remess v Rabe [2006] TASSC 105 (4 December 2006) – Tasmanian Supreme Court
‘Evidence’ – ‘Ex parte proceedings’ – ‘Exposing children’ – ‘Hearsay’ – ‘Interim intervention order’ – ‘Leave’
Appeal Type: Application for review of the making of interim family violence order
Facts: An interim family violence order (FVO) was applied for on behalf of the complainant by the manager of Victim Support Services within the Department of Justice. An interim order was made in the applicant’s absence and the order was to last for 60 days.
Issues:
1a. | Whether the magistrate erred in making the order when leave to make an application under the Family Violence Act 2004 (Tas) (the Act) had neither been sought nor granted. |
|---|---|
1b. | Alternatively, whether the magistrate erred in granting leave to make the application when the material was insufficient for that purpose. |
2. | Whether the magistrate erred in making an interim order because the evidence contained in the application was entirely hearsay. |
Decision and Reasoning: The application was dismissed.
1a. | The applicant submitted that the victim support officer was a person who was required to seek leave under s 15(2)(d) of the Act such that magistrate had no jurisdiction to hear the application without leave being granted. Tennent J held that a grant of leave was not a pre-condition to jurisdiction, and that s 15 merely provides for the procedure of the classes of persons who may make an application for an FVO. |
|---|---|
1b. | Counsel for the applicant conceded that the application for the order was an interlocutory proceeding. Under s 75 of the Evidence Act 2001 (Tas), the hearsay rule does not apply as long as the party adducing the evidence also adduces evidence of its source. Counsel submitted that because the application did not disclose the sources of the information, the evidence was inadmissible. Therefore, there was nothing in the application upon which the magistrate could properly have considered the issue of leave. Tennent J held that in relation to leave the Court should consider ‘the position of the person seeking leave, their relationship to the affected person and whether they may have acquired knowledge of the matters the subject of the application’ ([15]). In this case, the magistrate recognised the person seeking leave and that the protected person was a client of hers. Her position and relationship with her client, of itself, would have identified her as being able to provide assistance to the protected person. It was appropriate in those circumstances for the magistrate to grant leave. While leave should have been expressly addressed, a grant of leave was implicit from the conduct of the proceedings. |
2. | The applicant submitted that while some of the material in the application came from police reports, it was not clear whether the officers referred to were reporting from personal contact with the protected person or relying on others. Tennent J held that the protected person clearly identified her sources as two police officers. Her Honour stated that s 75 of the Evidence Act 2001 (Tas) is not limited to ‘first hand hearsay’. As such, the evidence was admissible. Her Honour then commented on the making of interim orders generally at [28]. Counsel for the applicant also raised the issue of the basis on which the magistrate made an order that extended to the children of the parties. The magistrate imposed the order so as to ‘err on the side of caution’ but was careful to not make an order preventing the applicant form approaching his children. Tennent J held this was appropriate: ‘It is well recognised that children in families where domestic violence is a factor can be affected by such violence whether or not they are directly subjected to it’. Even though there was limited material available to the magistrate, the interim nature of the order was reflected in its duration and an acknowledgment that the issue could be revisited. |
Oliver v Tasmania [2006] TASSC 95 (17 November 2006) – Tasmanian Supreme Court
‘Aggravated burglary’ – ‘Arson’ – ‘Damaging property’ – ‘Hardship’ – ‘Manifestly excessive’ – ‘Risk factor - separation’ – ‘Sentencing’
Charges: Aggravated burglary (two counts), Unlawfully injuring property (two counts), Arson
Appeal Type: Appeal against sentence
Facts: The offending related to the appellant’s former partner and father of her two children. The relationship had ended acrimoniously as the appellant found out that her former partner had an affair about the time their relationship ended that resulted in the birth of a child. She broke into his home on two separate occasions and damaged it. On the first occasion she broke nine windows, destroyed a collection of vinyl records and smashed a photo frame. On the second occasion she set fire to the home and damaged the complainant’s vehicle parked outside. The damage exceeded $50,000 and the contents lost had a value between $15,000 and $20,000. At the time of sentencing the appellant had three young children. She had relevant prior convictions. She was sentenced to three years’ imprisonment with a non-parole period of 18 months.
Issue: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed.
Counsel for the appellant submitted that insufficient weight was given to the fact that the appellant was the mother of three children. However, nothing was put to the sentencing judge that suggested any particular hardship to the children arising from their mother’s imprisonment. Counsel also submitted that the penalty imposed for arson was the harshest in the preceding five years. Counsel for the respondent submitted that this was a deliberate action and resulted in substantial damage. Other dwellings could have been at risk. The offending was motivated by ‘significant ill will’. The appellant showed no remorse and attempted to place the blame elsewhere. The fire was lit late at night at a time when it would be expected that it would not be immediately detected. Tennent J (with whom Evans J agreed) held that the appellant’s conduct could only be described as ‘vindictive attacks in no way justified by what she presumably perceived as the wrongs done to her by him. The gravity of her behaviour escalated in that she went from simply smashing things to using fire, a much more dangerous tool’ ([44]).
Underwood CJ (with whom Evans J agreed) held that there was nothing to indicate that the trial judge did not give appropriate weight to the fact that the appellant was a mother of three children. His Honour held that family hardship is only relevant in the ‘most unusual case’ ([11]). In regards to the appellant’s ‘tariff submission’ that the sentence was the longest imposed for arson in the preceding five years, Underwood CJ noted that the appellant was sentenced for arson as well as other crimes. Further, the fact that the arson was intentional made it more serious. The appellant was neither youthful nor remorseful and this was ‘calculated’ conduct borne out of anger designed to cause maximum distress, such that the totality of the conduct called for a substantial sentence of imprisonment.
Re S [2005] TASSC 89 (19 September 2005) – Tasmanian Supreme Court
‘Assault’ – ‘Bail’ – ‘Emotional and psychological abuse’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Presumption of innocence’ – ‘Risk assessment tool’ – ‘Risk factor - strangulation’
Proceeding: Application for bail
Facts: The applicant was arrested following a complaint that he assaulted his partner. She alleged that he had taken her car keys. When she asked for them back, he verbally abused her, grabbed her throat and pushed her backwards. The complainant stated that the applicant kept a gun on the property (though this was not untoward because it was a farming property with livestock) and that she lived in fear of her partner’s threats. The applicant denied the allegations and stated that he did not see the complainant on the day in question. He alleged that the complainant made threats against his safety and that she made the assault complaint maliciously in an attempt to force him to pay her money. Following his arrest, an application for a family violence order (FVO) was made. The applicant had no history of violence or prior convictions. The police officer completed a ‘Tasmania Police Family Violence Risk Assessment Screening Tool’. This involved a subjective assessment provided by the complainant and was part of a whole of government response to domestic and family violence instituted in Tasmania in 2004 ([18]). While the applicant was in the remand centre, the complainant called and asked to speak to the complainant. She indicated that she was willing to drop the assault charge if she was paid money that she was owed.
Issue: Whether bail should be granted.
Decision and Reasoning: Bail was granted. The Court held that various problems with duplication within the risk assessment, the mixture of protective legislation within the criminal law and the mandatory nature of the legislation meant that a court is inhibited in its assessment of future risk, especially in the case of an unrepresented defendant. There was evidence that the phone message from the complainant while the applicant was on remand could be construed, ‘as a form of pressure designed to enhance a financial outcome favourable to the maker’, which would be contrary to the Family Violence Act 2004 (Tas). Section 12 of the Act creates a presumption against bail for a person charged with a family violence offence unless the court is satisfied that release, "would not be likely to adversely affect the safety … of an affected person". At [23], Slicer J made some general comments on the effectiveness of the statutory scheme, noting concerns that the public must have confidence in the administration of the scheme and that public confidence is diminished when an arbitrary approach is taken. By tasking the courts to assess the future risk of a person, reliable primary material must be put before the court to deal with issues such as deprivation of liberty and consequences to the family unit. Slicer J also noted the risk that, ‘deprivation of liberty is seen as a sanction imposed for unproven conduct.’
The Court held that it is not possible to determine the merits of the domestic violence complaint at first instance and that it remained an issue for trial. His Honour also noted tensions between the presumption of innocence and the need to protect victims. In applying this to the facts, his Honour granted bail on the provision of a surety and the imposition of residential, geographical and contact provisions.
Olsen v State of Tasmania [2005] TASSC 40 (13 May 2005) – Tasmanian Supreme Court
‘Aggravated assault’ – ‘Bail’ – ‘Legal representation’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Unrepresented litigant’
Charge: Aggravated assault
Proceedings: Bail application
Facts: The applicant was charged with aggravated assault against his former female partner. The Crown case was that the assault consisted of a threatening gesture or gestures with a replica pistol. The applicant vehemently denied these allegations. The Crown informed the court that they would not oppose bail if the applicant was able to produce a suitable surety. The applicant suffered from schizophrenia and would benefit from the supervision of a surety to ensure he did not breach any bail conditions. However, through no fault of his own, the applicant was unable to produce a surety.
Issue: Whether the application for bail should be granted.
Decision and Reasoning: The application for bail was refused. His Honour noted that, ‘Were I free of the restraints imposed by the Family Violence Act, s12, I would grant bail. I would do so because on the face of it, the assault is not a serious one, because the applicant has been in custody since 10 or 11 April, and because it will be some time before this applicant has his case heard.’ His Honour further noted that the applicant had no relevant prior convictions ([3]).
However, s 12 of the Family Violence Act 2004 (Tas) provided that the applicant not be granted bail unless his release on bail would not be likely to adversely affect the safety, well being and interests of the complainant. The onus was on the unrepresented applicant to show this but he had no idea of where the complainant was living (so as to ascertain information about her safety). In light of this and in the absence of a surety to monitor the applicant’s behaviour, the application for bail was refused. His Honour concluded by stating that, ‘I want to say very strongly that this man needs legal assistance and he needs it urgently, otherwise he is likely to stay where he is for a considerable period of time’ ([10]).
S v White [2005] TASSC 27 (21 April 2005) – Tasmanian Supreme Court
‘Assault’ – ‘Bail’ – ‘Damaging property’ – ‘Exposing children’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk factors’
Charges: Assault (3 counts), Destroying property, Application for a restraint order
Appeal type: Appeal against refusal to grant bail
Facts: It was alleged that the appellant assaulted his former partner and two of her children, and that he destroyed the windscreen of her car. A police officer also applied for a restraint order as a result of this incident. The magistrate refused to grant the applicant bail.
Issue: Whether the release of the appellant on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person (the former partner).
Decision and Reasoning: The appeal was allowed and bail was granted with condition as to surety recognisance and a residential condition. There were a number of factors weighing against the appellant: the prosecution had a strong case; this was a case involving not only physical assault but a threat to kill; the appellant used weapons in the commission of the offence; the Family Violence Risk Assessment prepared by the complainant immediately following the incident noted alcohol problems, potential mental health issues, jealousy and possessiveness, threats to kill, violence in the relationship escalating and the relationship had only recently broken down; the proposed surety (the appellant’s mother) was not in good health and would be unable to stop the appellant harming his former partner ([14]-[18]).
However, in spite of this, Blow J was satisfied that the release of the appellant on bail would not be likely to adversely affect the safety, wellbeing and interests of his former partner and her children. The appellant had not assaulted his former partner or children prior to this incident. Despite allegations of mental illness, the appellant had not been diagnosed with such a disorder. The appellant’s demeanour in court was ‘ideal and exemplary,’ precautions had been taken to ensure the appellant did not know where his former partner was, and he had a previous good employment history ([19]-[23]).
Her Majesty's Attorney-General v O [2004] TASSC 53 (9 June 2004) – Tasmanian Supreme Court
‘Assault’ – ‘Delay’ – ‘Exposing children’ – ‘Indecent assault’ – ‘Manifestly inadequate’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’
Charges: Assault, indecent assault
Appeal type: Attorney-General appeal against sentence
Facts: The responded pleaded guilty to assault and indecent assault against a woman with whom he cohabited for seven years. They had four children together. In March 2001, the respondent assaulted the complainant by raising his fist at her, waving a knife in her face and threatening to kill her. The relationship ceased some weeks prior to 30th May 2002. On 30th May 2002, the respondent trespassed into the complainant’s home and ejaculated over her legs while she was asleep. The complainant reported the incident to police soon after it occurred and, at the same time, reported the assault of March 2001. Considerable time was taken to obtain a DNA analysis of the semen on the complainant’s legs. As a result, police did not interview the respondent until a little more than a year after the indecent assault. The respondent was ordered to perform 80 hours of community service.
Issue: Whether the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was dismissed by Underwood and Slicer JJ but upheld by Blow J in dissent. The judges provided different reasoning.
Underwood J, in the majority, agreed with Blow J (in dissent) that the sentence imposed was manifestly inadequate. However, he dismissed the appeal. The time in custody the respondent would have to serve would unlikely exceed 6 months and absent some point of principle, ‘it was unjust to take away the respondent's liberty and put him in prison because an undefined error, not caused or contributed to by him in any way, infected the sentencing discretion exercised with respect to crimes that occurred two and three years ago’ ([7]).
Slicer J, also in the majority, held that the sentence was not manifestly inadequate. His Honour quoted Parker v R [1994] TASSC 94 which in turn quoted from a Canadian case R v Brown (1992) 73 CCC (3d) 242, 249 articulating principles for the sentencing of crimes of domestic violence: ‘When a man assaults his wife or other female partner, his violence toward her can be accurately characterised as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape’.
However, His Honour nonetheless held that the circumstances of this case did not show manifest disparity or inconsistency with the sentencing standard (which was not to say that a more severe penalty would not have been appropriate). Here, the original assault (followed by the resumption of cohabitation) and the act of indecency were not charged for a further period of 12 months. There was no material advanced that suggested continuation of harassment or manifestation of aggression. The respondent had successfully completed the order of community service ([19]-[20]).
Slicer J also stated: ‘Resolution of the problem of violence within a domestic situation is complex and resumption of cohabitation, as in this case where the complainant had decided to give her partner another chance, makes any assessment of sanction difficult’ ([19]).
Blow J, in dissent, held that the nature of the indecent assault (ejaculating over a former partner’s legs) and the circumstances of aggravation in which it occurred made it a particularly serious example of that sort of crime such that a community service order was so inadequate a penalty that the appeal ought to be allowed ([30], [36]). The circumstances of aggravation were that the respondent entered the complainant’s house as a trespasser at night, the complainant was asleep, and it was committed in the immediate presence of the couple’s four young children which created a strong risk of them witnessing the incident ([26]). A sentence of 11 months’ imprisonment, suspended after 8 months, was appropriate.
His Honour disagreed with the comments of Slicer J as to delay insofar as they related to the indecent assault. He noted that, ‘Certainly fairness to an offender can require a judge imposing a sentence for a stale crime, long after it was committed, to extend what otherwise might be an undue degree of leniency: R v Todd [1982] 2 NSWLR 517 at 519 - 520. There is also authority that a delay need not be inordinate before it deserves to be taken into account: Miceli v R [1997] VSC 22; (1997) 94 A Crim R 327 at 330. However the respondent was sentenced for the indecent assault some 20 months after committing it, and a delay of that order is now, regrettably, quite normal in this State. I therefore think that the delay in relation to that charge is of little significance’.
Waddington v R [2003] TASSC 21 (30 April 2003) – Tasmanian Supreme Court
‘Manifestly excessive’ – ‘Murder’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Remorse’ – ‘Sentencing’
Charge: Murder
Appeal type: Appeal against sentence
Facts: The male appellant and the female deceased lived together for 10 or 12 years. The appellant drank 10 cans of beer on the afternoon of the murder. While the appellant prepared dinner, the deceased telephoned a friend. According to counsel for the appellant, these telephone calls occurred on a regular basis meaning that the deceased would often eat dinner cold or not eat dinner at all. The appellant had become frustrated with these calls over the years. The appellant finished making dinner and told the deceased it was ready. She told him that she would eat it later. The friend on the other end of the phone then heard the appellant become enraged. He yelled, ‘Get off that fucking phone … I've been putting up with it for the last ten years … I'm sick to death of the fucking phone.’ The telephone connection was broken. In a rage, the appellant killed his partner. He held a pillow over her face for about three to four minutes, smothering her until she died. An hour later he went to the police and confessed.
Issues:
1.
Whether the sentence of 17 years’ imprisonment was manifestly excessive.
2.
Whether the order fixing a non-parole period of 12 years was manifestly excessive.
Decision and Reasoning: The appeal was allowed on ground 2.
1.
A sentence of 17 years’ imprisonment was not manifestly excessive in all the circumstances. Although the appellant expressed remorse, confessed to the crime quickly, and pleaded guilty, the appellant maintained his suffocation of the deceased for a prolonged period of time, the deceased did not provoke the appellant’s violence in any way, and the appellant had prior convictions ([25]-[27]).
2.
However, a non-parole period of 12 years was harsh, particularly when considered in light of orders for parole eligibility in other murder cases. Taking into account the appellant’s genuine and deep remorse and his full acceptance of responsibility, a non-parole period of 10 years was substituted ([30]).
Burton v R [2002] TASSC 64 (11 September 2002) – Tasmanian Supreme Court
‘Aggravated burglary’ – ‘Assault’ – ‘Damaging property’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Impact of offence on victim’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm’
Charges: Assault (2 counts), Aggravated burglary with intent to commit murder or assault
Appeal type: Appeal against sentence
Facts: The male appellant and the female complainant resided in a de facto relationship between May 2001 and 20 July 2001. The complainant had a six month old child. However, in July, the complainant informed the appellant she wanted to end the relationship. She went to live with her mother. On the morning of 29 July, the appellant smashed a window to enter the complainant’s mother’s flat, holding a large knife (count 1). He yelled, ‘where is the fucking slut’ and ‘where is she’. He entered the complainant’s bedroom, where she was sleeping with her child, shouting that he was going to kill her. The appellant dragged the complainant by her hair to the kitchen and started to cut her neck. She grabbed the blade of the knife and it snapped (count 2 and 3). The appellant dragged her outside the house (count 4) before calming down. The complainant sustained a superficial laceration to her neck and ongoing psychological injury.
The appellant was found guilty of assault at a first trial (count 4). At a second trial, he was found guilty of aggravated burglary (count 1) and assault (count 3). The assault subject of count 3 was framed as an alternative to counts alleging the commission of the crimes of attempted murder and committing an act intended to cause bodily harm (wounding). He was sentenced to three years and six months’ imprisonment for the offences subject of the second trial. In respect of the assault, he was sentenced to three months’ imprisonment cumulative on the first sentence.
Issue: One of the grounds of appeal was whether the sentence of three years and six months’ imprisonment was manifestly excessive.
Decision and Reasoning: The appeal was allowed by all judges but with separate reasoning provided. Crawford J (with whom Underwood J agreed) held that the sentence of three years and six months was manifestly excessive. The sentence was well outside the range of sentences typically imposed for these types of offences ([20]-[23]). In light of the need for consistency, the sentence was set aside and a sentence of two years and three months’ imprisonment was imposed.
Slicer J also found the sentence of three years and six months’ imprisonment was manifestly excessive. The circumstances of the offences warranted the sentence namely, this was a case of ‘home invasion’ and ‘domestic violence,’ the appellant had prior convictions, he was not entitled to the benefit of a guilty plea, there was no evidence of remorse, and the impact on the complainant was likely to be long standing ([46]-[50]). However, the problem was not with the sentence but with the verdict. It was strange that the jury found that the evidence supported that there had been a ‘cutting of the neck’ but returned a verdict of not guilty of wounding. Nevertheless, the sentence was constrained by the jury’s finding of assault, not wounding. On that basis alone, the sentence was manifestly excessive ([50]-[52]). His Honour agreed with Crawford J that a sentence of two years and six months’ imprisonment was appropriate.
Rice v McDonald [2000] TASSC 70 (21 June 2000) – Tasmanian Supreme Court
‘Compulsion’ – ‘Emotional abuse’ – ‘Expert evidence’ – ‘Exposing children’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Stealing’ – ‘Systems abuse’ – ‘Where the offender is also a victim’
Charges: Stealing, Making a false report to police
Appeal Type: Notice to review conviction
Facts: The applicant and her partner were in a domestic relationship riddled with violence. For a summary of the history of the violence against her, see paragraphs [4]-[10]. The applicant was charged with stealing a television. She entered into an agreement to rent the television under instructions from her partner, who then arranged for the television to be sold to a friend. He instructed the applicant to tell the purchaser that the television came from her sister. After the applicant did not report that the television was stolen to the police, her partner became very angry. As a result of fearing what her partner would do if she defied him, the applicant then reported the television was stolen to the police and the rental company. After the police located the television in the possession of the purchaser, the applicant fully admitted to the crime and protected her partner by providing a false name.
At trial, the applicant gave evidence that she had acted out of fear that she would suffer grievous bodily harm if she did not follow her partner’s demands to commit the offences. She alleged that her partner threatened to kill her if she did not accept full responsibility for the crime and provide a false name to police. That is, she established an evidentiary basis for the court to consider compulsion under s 20 of the Criminal Code 1924 (Tas) (the Code) and duress at common law. The magistrate found that neither of those defences applied.
Issues:
1.
Whether the magistrate erred by applying the provisions of the Code governing criminal responsibility to the charge of making a false report.
2.
Whether the magistrate made legal errors in applying the defences of duress and compulsion.
3.
Whether the magistrate erred in failing to sufficiently consider the evidence of a psychologist with extensive experience in domestic violence.
Decision and Reasoning: The appeal was upheld in respect of issues 2 and 3.
1.
The respondent conceded that this ground was made out. One difference between the common law defence of compulsion and the statutory defence is that it is not necessary for the person making the threat to be present at the time the offence is committed. The applicant was entitled to the benefit of the common law defence. However, this was not sufficient to overturn the conviction because the magistrate was satisfied that the prosecution proved that the applicant was not acting under duress.
2.
The magistrate concluded that the applicant’s contention that her partner would ‘bash the hell out of me’ contained a qualification and because of a slight hesitation in her response, she had not given credible evidence that she was threatened with serious violence. The Court disagreed, holding that given the history of violence, the words ‘bash the hell out of me’ amounted to a clear threat of serious harm.
In referring to the requirement of immediacy under s 20 of the Code, the magistrate concluded that her partner’s threat would not be carried out immediately because of the presence of the purchaser of the television. The Court disagreed, holding that immediacy does not mean that the threat will be carried out at the time of compliance or refusal, but that it is ‘proximate’ to the making of the threat. It requires that the person coerced ‘believes that such threats will be executed’ at the time when the person making the threats is able to carry them out. The magistrate also erred in concluding that the applicant could not have believed the threats could be carried out immediately. Given the history of violence, she was entitled to believe that the threats would be carried out immediately. In relation to seeking the protection of the purchaser, the Court held that this proposition ‘defies logic and experience’ ([25]). The magistrate did not sufficiently take into account the history of the relationship in determining the conduct said to give rise to compulsion. Her partner had complete domination over her and had assaulted her in a refuge. The false report was made at the direction of her partner in the face of explicit and implicit threats. While she theoretically could have made a complaint to the officer about her partner when she filed the report, the option of applying for a restraining order was not consistent with complying with the threats.
3.
The magistrate concluded that the psychologist’s evidence did not assist the defence in establishing duress and compulsion. This amounted to an error and the magistrate was required at least to consider the psychologist’s evidence and the history of violence in determining whether the applicant acted under duress or compulsion.
Supreme Court
Smith v Boarder [2022] TASSC 30 (16 May 2022) – Tasmanian Supreme Court
‘Costs of unsuccessful application to extend protection order’ – ‘Discretion to order costs s34 family violence act 2004 (tas)’ – ‘Protection order’ – ‘Relevance of objects of family violence act 2004 (tas) to costs order’ – ‘Separation’
Proceedings: Motion for costs for unsuccessful application to extend protection order pursuant to Family Violence Act 2004 (the Act), s 34.
Facts: On 19 February 2020 an interim protection order was granted to Ms Boarder. At the hearing of Ms Boarder’s application to extend the protection order for a further 3 years leave was refused, the interim order revoked and, following a further hearing on the issues, Mr Smith’s application for costs refused. The Magistrate held that the was no change in circumstances and the only contact between the parties during the term of the interim order was a letter delivered to Ms Boarder by Mr Smith, “which contained nothing which could reasonably be construed as abusive, threatening, intimidating or coercive”[8]. Both parties had been represented by counsel at the extension hearings.
Grounds of motion to review: The magistrate erred in dismissing the costs application in that:
(a) she took into account irrelevant matters, namely:
1. Ms Boarder 's subjective fear and psychological state; and
2. the objects of the Act as stated in s 3; and
(b) she acted on a wrong principle by misdirecting herself that "a holistic approach, rather than a compensatory approach, should be taken to the issue of whether costs should be ordered." [11]
Decision and Reasoning: Motion allowed; order of magistrate set aside; Ms Boarder is to pay Mr Smith's costs of the application for extension of a family violence order in the agreed sum.
The objects of the Act in s3 were relevant considerations but Ms Boarder’s demeanour while giving evidence, was, without more an irrelevant consideration. There was no finding that the fear Ms Boarder expressed related to any conduct of Mr Smith while the protection order was in force.
State of Tasmania v Matthew John Davey (Sentence) [2021] TASSC unreported (10 December 2021) – Tasmanian Supreme Court
Comments on passing sentence Brett J
‘Allegations of infidelity’ – ‘Arson threats’ – ‘Assault’ – ‘Attempted murder’ – ‘Burning’ – ‘Coercive and controlling behaviour’ – ‘Coercive control’ – ‘Extensive criminal history’ – ‘Following, harassing and monitoring’ – ‘Immolation’ – ‘People affected by substance misuse’ – ‘Persistent family violence’ – ‘Sentencing’ – ‘Severe physical injuries’ – ‘Threats to kill’
Charges: Attempted murder x 1; persistent family violence x 1.
Proceedings: Comments on passing sentence.
Facts: The male defendant was found guilty of persistent family violence and attempted murder. Throughout the defendant’s two-year relationship with the female victim, he used physical violence, verbal abuse, and threats as part of a ‘continuous… pattern of coercive control’. This included threatening to kill the victim by setting her car or house on fire, and slapping, striking or hitting the victim with objects. The defendant monitored and controlled the victim’s movements, communications and relationships with others, threatening to kill her if she left the relationship and detaining her at his house on at least two occasions. One assault occurred in relation to the defendant making allegations of infidelity, another after the defendant had consumed illicit drugs. The defendant attempted to murder the victim by using petrol to set her on fire during a physical altercation triggered by her attempting to leave the relationship. The victim was left with severe and lifelong physical injuries and post-traumatic stress disorder.
Issues: Sentencing.
Decision and Reasoning: The defendant was sentenced to 22 years and three months imprisonment, with a non-parole period of 14 years and 3 months, and the court made a family violence order for an indefinite period from date of sentencing.
In sentencing, Brett J considered denunciation, general and specific deterrence and community protection as key considerations due to the defendant’s ‘concerning history of violent offending’ and the court’s duty to ‘respond strongly’ to family violence. His Honour considered the defendant’s extensive criminal record and history of drug-abuse and noted that he was ‘entitled to some mitigation for the utilitarian value of pleading guilty to the persistent family violence charge’, which avoided a lengthy trial. In addressing the principle of totality, His Honour viewed it as appropriate for the defendant to serve each indictment cumulatively as each offence was ‘separate and distinguishable’. His Honour considered time spent in custody and reduced the defendant’s sentence accordingly. Finally, His Honour explained that the non-parole period was greater than the statutory minimum because of ‘the objective seriousness of the crimes’, the defendant’s ‘moral culpability’ and other key sentencing considerations.
State of Tasmania v Levi Joseph David Hall (Sentence) [2021] TASSC unreported (27 September 2021) – Tasmanian Supreme Court
Comments on passing sentence Pearce J
‘Breach of protection order’ – ‘Coercive control’ – ‘Controlling behaviour’ – ‘Following, harassing and monitoring’ – ‘History of domestic and family violence’ – ‘People affected by substance misuse’ – ‘Persistent family violence’ – ‘Sentencing’ – ‘Strangulation’ – ‘Technology facilitated abuse’ – ‘Threats to kill’
Charges: Persistent family violence x 1; breaching a police family violence order x 5.
Proceedings: Comments on passing sentence.
Facts: The male defendant lived with the female victim and her children for 12-months. The defendant entered pleas of guilty. Throughout their relationship, the defendant used ‘violence, intimidation, threats and abuse’ towards the victim in the context of his ‘generally violent, abusive and controlling behaviour. The defendant monitored and controlled the victim’s phone use, controlled when she left the house, and subjected her to physical violence in the presence of her children. On one occasion, the defendant strangled and threatened to kill the victim. A family violence order made in May 2019, was immediately breached by finding the victim, taking her to his friend’s house, and holding her there while subjecting her to physical abuse.
Issues: Sentence to be imposed.
Decision and Reasoning: The defendant was sentenced to imprisonment for 5 ½ years, with a non-parole period of 3 ½ years.
Pearce J viewed the defendant’s behaviour as a serious example of the crime of persistent family violence. His Honour highlighted that the offending included strangulation, which caused the victim to fear for her life and has had a ‘profound’ and lasting ‘psychological impact’. His Honour viewed the defendant’s repeated offending as discounting ‘any claim to… genuine remorse…’, and the fact that the offending was ‘committed in breach of a police family violence order’ as evidence of his ‘repeated refusal to comply with the law and… contempt of authority’. In sentencing, Pearce J considered the need for punishment and condemnation, and viewed the defendant’s ‘long and concerning record for violence… against women in particular’ as an ‘important factor in sentencing’. His Honour also considered the need to vindicate the victim and protect the community by imposing a sentence that achieved specific and general deterrence.
State of Tasmania v ARJ (Sentence) [2021] TASSC unreported (11 March 2021) – Tasmanian Supreme Court
Comments on passing sentence Pearce J
‘Allegations of infidelity’ – ‘Assault’ – ‘Coercive and controlling behaviour’ – ‘Exposing children to domestic and family violence’ – ‘Extensive criminal history’ – ‘History of family violence’ – ‘Jealous behaviour’ – ‘People affected by substance misuse’ – ‘Persistent family violence’ – ‘Pregnancy’ – ‘Rape’ – ‘Sentencing’ – ‘Stepchildren’ – ‘Threat to cause abortion’
Charges: Persistent family violence x 1, constituting 16 unlawful family violence offences: one rape, one assault of a pregnant woman and 14 assaults.
Proceedings: Comments on passing sentence.
Facts: The male defendant was found guilty following jury trial. The 16 offences constituting the charge were committed over 9 occasions during the defendant’s two-and-a-half-month relationship with his pregnant younger female partner. The defendant’s conduct began soon after the relationship started, and ‘was characterised by ongoing domineering conduct, torment and the exercise of power, control and intimidation’. The assaults included striking with a hammer, baseball bat and power cord, burning with a cigarette, and threats to cut with glass in addition to assaults without weapons. The rape was constituted by the forcible penetration of the victim’s genitalia by striking with a baseball bat and the assault of a pregnant woman was the attempt to stomp on the victim’s stomach with the stated intent to cause an abortion. Some of the offending occurred in the presence of the victim’s children. The defendant had a history of family violence and drug abuse. The defendant was sentenced to 6 years imprisonment, with a non-parole period of four years, and the court imposed a family violence order to remain in force for 7 years from the date of sentencing.
Issues: Sentencing.
Decision and reasoning: The defendant was sentenced to 6 years imprisonment, with a non-parole period of four years, and the court made a family violence order for 7 years from the date of sentencing.
Pearce J considered the offending in the context of the defendant’s criminal record, which included family violence offences, assaults, and breaches of family violence orders. His Honour considered the ongoing psychological impact of the offending on the victim, and the need for punishment, general and personal deterrence, vindication of the victim, and protection of the community’. ‘All of the offences were committed when you were subject to a family violence order… and while you were subject to electronic monitoring, thus displaying your contempt for the law and to court orders.’
Hopkinson v Wilkie [2020] TASSC 32 (3 July 2020) – Tasmanian Supreme Court
‘Assault in a domestic setting’ – ‘Consent’ – ‘Motion to review conviction’
Charges: Common assault.
Proceedings: Motion to review conviction by Magistrate.
Facts: The male applicant was found guilty of assaulting his female partner. The Magistrate found that the applicant hit the complainant in the head, pulled her hair and dragged her. The complainant kicked the defendant. The complainant gave evidence that she had a ‘mutual argument’ with the applicant and was not punched. Shelton (a witness to the incident) gave evidence that the applicant punched the complainant during a ‘verbal argument between them’. The magistrate accepted Shelton’s evidence and did not accept the complainant’s evidence or the applicant’s argument that there was consent, stating that a defence of consent ‘doesn’t apply to victims of domestic violence’.
Ground: The Magistrate erred in law in stating the defence of consent does not apply in the context of domestic violence.
Decision and reasoning: Motion to review dismissed.
As a matter of statutory construction, provisions relating to consensual violence as a defence do not include a ‘carve-out … for any category or class of cases such as domestic violence cases’ [34]. As a general statement of law, the defence of consent does not avail the applicant if ‘there either was no consent or if there was, the complainant did not consent to the degree of force involved in the assault’ [28]. Based on the magistrate’s findings of fact, the defence of consent was excluded.
Baker v Barratt [2019] TASSC 28 (4 July 2019) – Tasmanian Supreme Court
‘Administrative law’ – ‘Appeal against conviction’ – ‘Appeal and review’ – ‘Apprehended bias’ – ‘Coercive control’ – ‘Isolation’ – ‘Judicial review’ – ‘Motion to review’ – ‘People from culturally and linguistically diverse (CALD) backgrounds’ – ‘Physical violence and harm’ – ‘Procedural error of magistrate in not playing record of interview in open court’ – ‘Procedure and evidence’ – ‘Visa threats’
Charges: Common assault x 1.
Case type: Appeal against conviction.
Facts: The applicant man appealed against his conviction on a charge of common assault on the ground that the court erred in convicting him against "the preponderance of the evidence". The complainant, a Philippino woman who was applying for a visa, told the court that she had an argument with the applicant with whom she was in a relationship. During the course of the argument, she alleged that he slapped her in the face, twisted her arm and pushed her to the floor. He then allegedly tried to kick her. She also gave evidence that she rang a friend after the incident. The friend confirmed that this call was made and that the complainant had told him that she had been assaulted. He took photos of her for the purposes of recording the consequences of the assault. These were tendered along with the applicant’s record of interview. The applicant admitted in his video interview that he regularly threatened to withdraw support for the complainant’s Visa and controlled her access to a mobile telephone and the Magistrate identified this as evidence of the applicant’s controlling behaviour. The applicant denied the assault.
Issue: The issue for the Court was whether the Magistrate reasonably came to his conclusion on the evidence at trial.
Held: Geason J found that the applicant failed to establish that the Magistrate’s conclusion was not reasonably open to him. It was noted that the evidence was "of narrow compass" in that the applicant and complainant had engaged in a physical argument, evidenced by the bruising shown in the photographic evidence. Moreover, the Magistrate’s conclusions and reasons were found to be unimpeachable, and he was entitled to prefer the complainant’s evidence. This was because the complainant’s evidence was unshaken in cross-examination and corroborated in material respects by a third party ([13]-[15]).
A further issue on appeal was that of apprehended bias. Whilst the Magistrate had a familial relationship with the complainant’s employer, Geason J concluded that there was nothing in the conduct of the case or the reasons for the decision which gave the appearance of any pre-judgment based on that relationship ([21]).
Geason J also noted that the applicant’s record of interview was not played in court in its entirety, such that not all evidence was heard in open court prior to the court reaching its decision ([24]). The Magistrate elected to read the transcript of the interview rather than listen to it in full. His Honour was highly critical of this practice, emphasising that all evidence relied upon to prove a case should be heard in open court, and that the transcript itself was not evidence. The Magistrate ran the risk that something material to the case was not "seen" ([27]). Whilst this was considered to be an error, it did not give rise to any miscarriage of justice.
Irons v Moore [2019] TASSC 22 (22 May 2019) – Tasmanian Supreme Court
‘Application of Weissensteiner’ – ‘Consent and disclosure’ – ‘Evidence issues’ – ‘Hostile witness’
Charges: Assault x 1; Breach of protection order x 1.
Appeal type: Appeal against conviction.
Facts: The facts of both charges were the same: the appellant grabbed and punched the complainant in front of her children ([3]).
While giving evidence, the complainant claimed that she could not remember what happened on the day. The prosecution successfully applied to treat her as a hostile witness ([3]). The evidence was limited to circumstantial evidence and hearsay evidence of witnesses who saw the complainant’s injuries immediately after the assault ([4]). The magistrate found the appellant guilty of both charges and imposed a fine.
Issues: The sole ground of review is that on no reasonable view of the evidence could the magistrate have been satisfied of the appeallant’s guilt.
Decision and reasoning: The appeal was dismissed.
The principle in Weissensteiner v The Queen [1993] HCA 65 was considered, namely that a ‘hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused’ ([20]). In this case, while the complainant had given evidence, she could not remember what happened. Therefore, the only person who could have known how the injuries were inflicted was the defendant ([21]).
‘In the light of the evidence that force had been applied by the applicant to the complainant and in the absence of any contradictory or explanatory evidence from the applicant, I am satisfied that the application of force in lawful self-defence was not available to the magistrate as a reasonable possibility or hypothesis consistent with innocence.’ [24]
Cannell v G; G v Cannell [2018] TASSC 55 (1 November 2018) – Tasmanian Supreme Court
‘Breach of protection order’ – ‘Following, harassing and monitoring’ – ‘Meaning of harass’ – ‘Mens rea’ – ‘Physical violence and harm’ – ‘Safety and protection of victims and witnesses’ – ‘Systems abuse’
Charges: Trespass x 1; Making a false report to police x 1; Contravening an interim family violence order x 3.
Case type: Prosecution seeking review of dismissal of charges; defendant seeking review of charge proved.
Facts: The defendant and complainant were separated. The evidence in this case was contested by both parties.
The trespass charge occurred when the defendant entered the complainant’s house and did not leave when asked. The false report charge occurred when the defendant alleged that the complainant had struck him in the chest while she was telling him to leave. The first contravention charge occurred when the defendant approached the complainant in the Federal Circuit Court building. The complainant alleged that the defendant said ‘you’re all going down’. The magistrate was not satisfied that those words were spoken, but even if they were, they did not constitute a threat. The second contravention charge occurred when the defendant parked his car next to the complainant’s car during a handover of one of the children. The magistrate found that the defendant breached the order and that was no exception in the contact arrangement that would have allowed this ([39]). The third contravention charge occurred when the defendant approached the complainant on numerous occasions to serve her with an application for a restraining order ([43]).
Issues: Whether the Magistrate’s decisions were reasonably open on the evidence and whether the Magistrate gave adequate reasons.
Decision and reasoning: Brett J affirmed all the magistrate’s decisions.
Note: in relation to the third contravention of the restraining order, the defendant argued that the prosecution had not proved the ‘mental element’ of the charge because he did not intend to harass the complainant but rather serve her with legal processes. Brett J discussed the statutory definition of the word harass, which includes following the person or keeping the person under surveillance ([48]). His Honour considered that “there is no requirement that the defendant intend or otherwise foresee the causation of [an effect on the person harassed, eg worry, fear or mental anguish]” ([60]).
‘The evidence overwhelmingly supported the magistrate's conclusion that the defendant had harassed the complainant by following her, and that following her was deliberate and intentional…. Whilst the service of documents on the complainant was a legitimate purpose, it did not justify conduct on the part of the defendant that was in breach of the order. It goes without saying that there were other ways of achieving that legitimate purpose which did not involve contravention of the family violence order.’ [63]
His Honour considered that this construction is consistent with the relevant legislation, that is, to protect likely victims of family violence from likely perpetrators of that violence ([61]).
Harrison v Moore [2018] TASSC 53 (19 October 2018) – Tasmanian Supreme Court
‘Breach of protection order’ – ‘Evidence’ – ‘Following, harassing and monitoring’ – ‘oath on oath case’ – ‘Physical violence and harm’ – ‘Technology-facilitated domestic and family violence’ – ‘trivial breach’
Charges: Common assault x 2; Contravention of an interim family violence order x 1.
Appeal type: Appeal against conviction.
Facts: The complainant and applicant had two young children. The assault charges occurred on one day where the complainant alleged that the applicant punched the complainant in the face and kicked her in the head ([5]-[6]). The breach of the interim family violence order occurred when the applicant sent the complainant 4 text messages asking about her and the children ([26]).
The applicant gave evidence at the Magistrates Court trial alleging that he was acting in self-defence. The magistrate accepted the complainant’s evidence over the applicant’s ([10]).
Issues: Whether the finding of guilt was not reasonably open to the magistrate as a matter of law; whether the magistrate should have applied the principle of ‘de minimis non curat lex’ (the law should not concern itself with trifles).
Decision and reasoning: All grounds of appeal was dismissed.
There were 3 grounds of appeal in relation to the assault charge. Ground 1 of the appeal was that the finding of guilt was not reasonably open to the magistrate as a matter of law because the magistrate said she substantially accepted the complainant’s version of events but accepted aspects of the applicant’s version as well. This ground was rejected because the magistrate was entitled to do so ([14]-[15]).
In relation to the breach of the interim family violence order, the ground of appeal was that the magistrate should have applied the principle of ‘de minimis non curat lex’. This was because the magistrate found that sending the messages constituted breaches that were ‘trivial at best’. However, Brett J stated that the principle of ‘de minimis’ is likely not applicable in criminal proceedings ([33]). In any event, it was not applicable in this case because the Magistrate’s reference to ‘trivial’ should be seen as an indication of the relative seriousness of the breaches compared to other examples of that offence, not that the direct contact with the complainant was a trivial matter ([34]).
Bonde v Maney [2018] TASSC 23 (17 May 2018) – Tasmanian Supreme Court
‘Assault’ – ‘Dismissal of charges’ – ‘Evidence of respondent’
Charges: Common assault x 1.
Case type: Application for review of Magistrate’s decision to dismiss charge.
Facts: The complainant alleged that the respondent tried to grab the complainant’s car keys from her, injuring her fingers in the process ([3]). The respondent denied assaulting the complainant and alleged that the complainant injured her fingers when she was trying to retrieve her keys ([4]). After the prosecution case closed, the Magistrate immediately moved to judgement without giving the respondent the opportunity to give evidence ([5]). The Magistrate dismissed the charge of assault on the basis that she was not satisfied beyond reasonable doubt that the respondent deliberately or recklessly caused the injury ([5]).
Issues: The complainant argued that the magistrate erred in law by:
•
first, stating that the respondent must have intended the injuries for the charge of assault to be made out;
•
second, failing to give sufficient reasons as to why she was not satisfied that the charge was proven; and
•
third, dismissing the complaint when on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the respondent.
Decision and Reasoning: The first ground was upheld because the causation of injury is not an element of assault ([7]-[8]). The second ground was also upheld because it was not possible to discern from the Magistrate’s reasons the factual basis for the determination ([15]). Therefore, it was not necessary to consider the third ground ([16]).
The case was remitted to be determined by another Magistrate ([20]).
Moore v Rittman [2018] TASSC 5 (13 February 2018) – Tasmanian Supreme Court
‘Appeal against sentence’ – ‘Conviction not recorded’ – ‘Manifestly inadequate’ – ‘Perpetrator interventions’ – ‘Self-represented litigant’ – ‘Sentencing’ – ‘Strangulation’
Charges: Assault x 2; Breaching a police family violence order x 1.
Appeal type: Prosecution appeal against sentence.
Facts: The respondent and the aggrieved, his partner, were in a relationship and had 2 children. The assaults occurred on two occasions when the respondent choked his partner, causing her to lose breath and bruising ([4]). A police family violence order was made, requiring him to not return to the home where his partner and children were living ([5]). The police later found the respondent in the home [(6]). The respondent pleaded guilty to all charges ([7]). The respondent had no criminal history and had independently sought out participation in a men’s behavioural change program.
At the sentencing hearing, the magistrate did not ask the respondent to make submissions or to provide her with information as to his personal circumstances ([9]). The magistrate, pursuant to s 7(f) of the Sentencing Act 1997 (Tas), did not record a conviction and adjourned the proceedings on the condition that the respondent be of good behaviour and complete the Men’s Behaviour Change Program ([1]). The charges were recorded as family violence offences under s 13A of the Family Violence Act 2004 (Tas) ([10]).
Issues: Whether the sentence was manifestly inadequate.
Decision and Reasoning: Justice Brett first addressed the fact that the magistrate did not allow the respondent to make submissions. His Honour at [11] noted that:
In the case of an unrepresented defendant, it is incumbent on the magistrate to ensure that, not only is such an opportunity provided, but that the defendant is aware of his or her right to address the court, and given some assistance with respect to the nature of the matters and information which should be the subject of the plea.
Nonetheless, this error was not directly in issue so was not determinative ([12]).
His Honour next addressed the sentence. The prosecution argued that the failure to record a conviction renders the sentence manifestly inadequate ([12]). His Honour emphasised the importance of therapeutic interventions for first-time family violence offenders at [24]:
While a punitive and protective response is essential in cases of serious and repeated family violence, it must also be consistent with the stated purpose of the legislation that consideration is given to therapeutic intervention with a view to achieving rehabilitation and behavioural change, when an offender presents before the court for the first time in respect of acts of spontaneous family violence. Prevention of future violence by use of effective strategies to modify behaviour in respect of offenders who have appropriate insight and desire for change is likely to promote the safety, psychological wellbeing and interests of people affected by family violence.
His Honour emphasised that the good behaviour bond and conditions attached were tailored to the respondent’s personal circumstances and was designed to rehabilitate the respondent and ensure that he did not reoffend ([20]). In all the circumstances, the sentence was not manifestly inadequate ([21]).
Barnes v Crossin [2017] TASSC 61 (12 October 2017) – Tasmanian Supreme Court
‘Arrest’ – ‘Reasonable suspicion’ – ‘Responses in criminal proceedings’
Charges: Resisting a police officer in the execution of their duty x 1.
Case type: Review of Magistrate’s decision to dismiss charge.
Facts: The police attended the respondent’s house in response to a call from the respondent’s son, who told the police that his father was ‘going off’ and had hit his mother. When they arrived, there were clothes strewn around the front yard. The police arrested the respondent. They gave the reason to ‘investigate family violence’ ([3]). The respondent struggled against the police, which gave rise to the resisting police officer charge. The Magistrate dismissed the charge on the basis that the arrest was unlawful in the first place ([4]).
Issues: Whether the Magistrate erred in dismissing the charge.
Decision and Reasoning: The Magistrate did err in dismissing the charge.
The power to arrest is derived from the Family Violence Act 2004 (Tas), which requires ‘a reasonable suspicion that the person concerned has committed family violence’ ([27]). This is distinct from a suspicion that the person committed a family violence offence ([33]). Brett J held that there was ample evidence to support the suspicion that there had been family violence, and he had adequately communicated that fact to the respondent ([46]).
Brett J remitted the matter to be decided by the same Magistrate ([53]).
Kirkwood v Thomas [2017] TASSC 56 (15 September 2017) – Tasmanian Supreme Court
‘Breach of domestic violence order’ – ‘Not manifestly excessive’ – ‘Text messages’ – ‘Threats’ – ‘Totality’ – ‘Verbal abuse’
Charges: Breach of family violence order x 2.
Appeal type: Appeal against sentence.
Facts: The defendant and the complainant were separated. The order prohibited him from threatening, abusing or assaulting the complainant, but not from going to her house. The first charge related to the defendant attending her house, ringing and knocking on the doors, and calling the complainant. The second charge related to the defendant sending the complainant 8 text messages also insulting the complainant and demanding money ([2]). The magistrate sentenced the appellant to two months’ imprisonment, cumulatively with a 5½ year sentence he was currently serving ([5]). That sentence related to a subsequent attack on the complainant, where the defendant broke into the complainant’s house and beat her with a baseball bat, leaving her with permanent disfiguring injuries and pain ([6]-[9]).
Issues: Whether the magistrate gave insufficient weight to the principle of totality, and whether the sentence was manifestly excessive ([11]).
Decision and Reasoning: The judge had to decide first if the sentence of two months was manifestly excessive in order to conclude whether the principle of totality had been breached ([12]). It was relevant that the defendant could have been sentenced for longer than 5½ years for the attack with the baseball bat ([12]). There is usually a discount for subsequent sentences, especially because denunciation and personal deterrence may have been achieved by the first sentence ([13]). There was evidence that the appellant had undertaken some family violence and anger management programs in custody ([19]). However, in this case, a heavy sentence was warranted because there had been repeated breaches of the family violence order in the past, and family violence cases warrant tough sentences ([18]). Therefore, it was open to the magistrate to impose the cumulative sentence of two months ([22]).
Mayne v Tasmania [2017] TASSC 38 (29 June 2017) – Tasmanian Supreme Court
‘General deterrence’ – ‘Sentence’ – ‘Smothering’ – ‘Strangulation’
Charges: Common assault x 1.
Appeal type: Appeal against sentence.
Facts: The defendant and complainant had a child together but were not living together. The complainant and defendant were arguing while the complainant was lying in bed. The defendant pushed a pillow onto her face, causing her to struggle for breath for two to five seconds ([3]). The complainant did not suffer any physical injuries. The defendant pleaded guilty and was sentenced to 7 months’ imprisonment ([13]).
Issues: Whether the sentence was manifestly excessive.
Decision and Reasoning: The sentence was not manifestly excessive. Wood J held that the Magistrate was right to highlight the aggravating factors of the offence, including that smothering is a dangerous act, the defendant did not stop of his own accord, and it would have been a terrifying experience for the complainant ([41]). While the sentence was high, it was appropriate to give prominence for general deterrence ([43]).
Wood J said at [43]:
… it is important that deterrent sentences be imposed not merely for crimes that cause grave physical or psychological harm to victims. There is a need to counter the perception that somehow violence of this kind in the home is less serious than the same kind of violence inflicted on a stranger in a public place. Also, acts of violence committed in a family or domestic context causing fear and distress to victims can have debilitating effects upon their well-being or the well-being of a family member witnessing such violence. It is not only violence resulting in visible injury that must be seen as unacceptable, and these victims, as vulnerable members of our society who have experienced fear and trauma, are entitled to the court's protection.
Parker v Hall [2015] TASSC 60 (10 December 2015) – Tasmanian Supreme Court
‘Breach of domestic violence order’ – ‘Following, harassing, monitoring’ – ‘Manifestly inadequate’ – ‘Recording a conviction’ – ‘Sentencing’ – ‘Totality’
Charge: Breach of family violence order
Appeal type: Appeal against sentence
Facts: The respondent and complainant had been in an on-again off-again relationship for two years. A police family violence order was made against the respondent, restraining him from contacting or approaching the complainant within 50 metres. The respondent contravened this order on four separate occasions by phoning the complainant, writing her a letter expressing his affection and remorse, going camping with her, and giving her a letter conveying his desire for reconciliation. An interim family violence order was then made. The conditions of the order were substantially the same as the police family violence order. The respondent then breached this order by meeting the complainant to talk on two separate occasions. The respondent was charged and found guilty of four breaches of a police family violence order and two breaches of an interim family violence order. The magistrate adjourned the charges without conviction for 12 months on the condition that the respondent enter into a good behaviour undertaking and not commit similar offences during the period.
The respondent had previously been found guilty of breaching a police family violence order and an interim family violence order, which were also sentenced without conviction. This offending occurred during the same time period as the six charges in question. The prosecution submitted a more severe sentence would have been imposed if all the charges had been sentenced together. The respondent had no other relevant prior convictions. His conduct did not involve any threats or violence and occurred with the complainant’s consent to varying degrees. Further, the respondent’s counsel submitted that as a legal practitioner, he suffered more than the average citizen as a consequence of the charges.
Issue: Whether the sentence was manifestly inadequate.
Decision and reasoning: The appeal was dismissed.
Despite the complainant’s compliance, the respondent knew that his conduct was in breach of the orders. Further, his repeated offending of eight separate breaches increased his culpability and pointed towards the need for specific deterrence. However, the respondent’s breaches, while not trivial, were not at the serious end of offending. The public interest did not favour a conviction being recorded. As a result of the media attention attracted by the matter, the respondent had already felt the consequences of his offending behaviour to a degree. If the charges were heard together with the previous two offences, the offending would not have necessarily demanded a heavier or more punitive response. Considering these factors together, Wood J concluded that there was sufficient justification for leniency extended to the respondent and the sentence was not manifestly inadequate.
Lacroix v Lacroix [2015] TASSC 42 (3 September 2015) – Tasmanian Supreme Court
‘Extension of family violence order’ – ‘Family violence order’ – ‘Procedural fairness’
Proceeding: Review of family violence order
Facts: A family violence order was made against the applicant on 5 March 2015, in anticipation of the expiration of another 12-month family violence order made on 7 March 2014 (the first order). The applicant made no admissions in relation to the conduct resulting in the making of the first order. On 23 February 2015 the respondent, the applicant’s partner, made an application for an extension of the first order. The magistrate denied this extension but suggested the respondent lodge an application for a fresh order and said, ‘[The applicant] heard me say that, so he’s effectively on notice that that may well occur in the course of the morning and taking care of the service requirements [sic]’. Counsel for the respondent then lodged the application for a fresh order.
Issue: Whether the applicant was denied procedural fairness because he was not served with a sealed copy of the new application filed by the respondent.
Decision and reasoning: The motion to review the order was dismissed.
The magistrate was obliged to give the applicant a reasonable opportunity to be present at the hearing of the application, to obtain legal representation, and to make submissions and dispute allegations of fact at common law. The applicant was not denied these opportunities. He was present when the magistrate directed the respondent to lodge the fresh application that would be dealt with later that day. As a result, he had an opportunity to remain at court and instruct his counsel, who was also present at the time, to prepare submissions to defend the application on his behalf. The evidence relied on by the respondent for the fresh application was the same as for the extension of time. The common law rule of procedural fairness did not require the magistrate to proceed only if the applicant was served with a sealed copy of the fresh application.
The magistrate did not err in applying the statutory requirements. Section 106E Justice Act 1959 (Tas) does not apply to family violence orders, as submitted by the applicant’s counsel. Further, rule 54N(1)(a) Justices Rules 2003 (Tas) was complied with. The fresh application was served on the applicant on 11 March 2015. The rule does not require service before the family violence order is made, but as soon as practical after it is filed with the clerk.
However, the magistrate erred in making a final family violence order. He did not have authority to make such an order under s 31(7) Family Violence Act 2004 (Tas), as a sealed copy of the application had not been served on the applicant and no attempt had been made to carry out service. Despite this error, no substantial miscarriage of justice resulted. The applicant had notice of the application, when and where it would be made and the evidence to be relied upon. Further, the applicant was in court the morning of the application with a lawyer and merely needed to stay until the afternoon to defend the fresh application. Therefore, there was no procedural unfairness and no substantial miscarriage of justice.
Young v Wilson [2015] TASSC 16 (28 April 2015) – Tasmanian Supreme Court
‘Assault’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘Non-parole period’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Using carriage service’
Charges: Using a carriage service to harass, Breach of police family violence order (6 counts), Common assault
Appeal Type: Application for review of sentence
Facts: A police family violence order prohibited the applicant from approaching within 50 metres or contacting the complainant in any way. The breaches of this order involved the applicant phoning the complainant, sending her two text messages, threatening to kill her and punching her to the head and face. The punch also gave rise to the common assault charge. The carriage service offence involved the applicant phoning and sending eight menacing text messages to the complainant. The applicant had a substantial and relevant criminal history. A sentence of eight months’ imprisonment was imposed. This offending also activated previously imposed suspended sentences of imprisonment. This resulted in a total effective sentence of 26 months’ imprisonment with no parole eligibility.
Issue: Whether the sentence was manifestly excessive.
Decision and Reasoning: The application was allowed.
The eight-month sentence was not excessive. The applicant had previously shown a disregard for orders made in favour of the complainant. The assault offences were serious and the applicant did not appreciate this. A deterrent sentence was needed. It was not unjust to activate two of the previous suspended sentences resulting in six months’ imprisonment. However, a previous suspended term of imprisonment of 18 months for trespass, breaches of a family violence order and various traffic offences was substituted with a period of 12 months’ imprisonment. This was considered too harsh, given the other sentences of imprisonment to be served by the applicant and the fact the applicant has not reoffended with respect to the driving offences. Furthermore, there was no justification for not imposing a non-parole period. The applicant’s alcohol problem contributed to his ongoing offending behaviour: ‘The granting of parole may encourage reformation and increase the chances of rehabilitation under supervision through conditional freedom’ ([69]). He was resentenced to a total term of 18 months’ imprisonment with a non-parole period of nine months.
(Note also at [17]-[27] where Wood J made some general comments on the correct procedure to be followed for breaches of suspended sentences in Magistrates’ Courts and at [37]-[53] which contains general consideration of totality, suspended sentences and non-parole periods).
Higgins v McCulloch [2013] TASSC 49 (11 September 2013) – Tasmanian Supreme Court
‘Assault’ – ‘Fines’ – ‘People with mental illness’ – ‘Perpetrator intervention program’ – ‘Physical violence and harm’ – ‘Recording a conviction’ – ‘Sentencing’
Charge: Assault
Appeal Type: Motion to review conviction and penalty
Facts: The applicant was found guilty of one count of assaulting his wife by punching her in the face. The complainant had died by the time the matter came to trial. The parties were living together in unusual circumstances and the assault occurred in a bedroom of the family home in the presence of an adult daughter. The applicant had no prior convictions. A good behaviour bond was imposed and a conviction was recorded.
Issues:
1.
Whether the finding of guilt was reasonably open on the evidence.
2.
Whether the magistrate erred in recording a conviction.
Decision and Reasoning: The notice to review was dismissed.
1.
This argument was dismissed based on the evidence before the magistrate: see paragraphs [5]-[27].
2.
At [33], Tennent J outlined the relevant issues to be considered when deciding whether to record a conviction. A court must consider the public interest, the need for an official record to be made of the commission of the offence and whether the victim might reasonably not feel vindicated by the failure to record a conviction. These factors are to be weighed against the benefits to the offender of a conviction not being recorded. This was a family violence offence. The applicant was not entitled to any discount for a guilty plea and did not display remorse. The applicant was suffering from mental health issues, which partly explained his ‘bizarre’ ([44]) behaviour that occurred in the background to the assault. There was nothing put before the magistrate indicating that recording a conviction would have an adverse impact on the applicant.
Tasmania v Finnegan (No 2) [2012] TASSC 1 (19 January 2012) – Tasmanian Supreme Court
‘Admissibility’ – ‘Evidence - relationship’ – ‘Evidence - tendency’ – ‘Motive’ – ‘Physical violence and harm’ – ‘Probative value’ – ‘Unlawful wounding’
Charge: Unlawful wounding
Proceeding: Ruling as to the admissibility of evidence
Facts: The accused was charged with unlawfully wounding the complainant (his partner) by striking her to the face with a glass. He pleaded not guilty. The Crown sought to lead evidence from the complainant given on a voir dire about the accused’s conduct towards her on other occasions, both before and after the alleged wounding. The accused objected to the admission of some of the evidence ([6]).
Issues: Whether some of the evidence given by the complainant should be ruled inadmissible on at least one of the following bases:
1.
Irrelevance;
2.
Failure to satisfy the common law rule established in Pfennig v R whereby propensity or similar fact evidence is not admissible if, viewed in the context of the prosecution case, there is a reasonable view of that evidence that is consistent with innocence;
3.
The danger of unfair prejudice to the accused outweighing the probative value of the evidence: s 137 Evidence Act 2001 (Tas); or
4.
The probative value of the tendency evidence not substantially outweighing any prejudicial effect that it may have on the accused: s 101(2) Evidence Act 2001 (Tas)
Decision and Reasoning: The appeal was dismissed. The evidence led from the complainant as to the conduct of the accused was admissible. It was relevant on a number of bases: as ‘relationship evidence’, enabling the jury to assess the evidence as to what occurred at the time of the alleged wounding; as evidence of motive (jealousy); as evidence explaining why the complainant asserted she was injured because of a fall and why there was delay in her reporting what occurred; and as tendency evidence, showing that the accused had a tendency to be jealous of anyone who had a friendship/relationship with the complainant and to be generally violent towards her ([11]-[15]).
Further, the probative value of all the evidence under consideration substantially outweighed the prejudicial effect and danger of unfair prejudice to the accused. In this regard, Blow J noted at [30]-[31]:
‘In my view the danger of unfair prejudice to the accused is not great… [A] properly instructed jury, having heard all the evidence of jealousy and violence, is unlikely to be distracted from its duty of impartiality and its duty to give a true verdict in accordance with the evidence.
‘In my view the evidence of jealousy has substantial probative value. Without that evidence the jury might well take the view that the accused had not given any indication of jealousy on any other occasion. If the only evidence available for the jury as to violence on other occasions was the evidence of the three charged assaults, two of which shortly preceded the first report to the police of the accused wounding the complainant with the glass, that could result in the jury overestimating the likelihood of the complainant having fabricated the critical allegations. Having regard to that factor, and to the various bases on which the evidence of violence is relevant, I consider that all the evidence of violence also has substantial probative value’.
Here, there was nothing about the facts that made it one where s101(2) or s137 [Evidence Act 2001 (Tas)] required the Pfennig test to be applied (at [32]).
Note: this decision has been overtaken by legislative changes effective 12 December 2017. See section 13B Family Violence Act 2004.
James v Tasmania [2010] TASSC 50 (11 November 2010) – Tasmanian Supreme Court
‘Breach of domestic violence order’ – ‘Common assault’ – ‘Consent’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Risk factor - strangulation’ – ‘Temporary protection order’
Charges: Breach of a family violence order, Common assault, Driving offences, Perverting the course of justice
Appeal type: Appeal against sentence
Facts: The magistrate imposed three terms of imprisonment. First, the applicant was sentenced to 6 months’ imprisonment, suspended after 4 four months, for charges relating to driving a motor vehicle while disqualified and driving with alcohol in his body. Second, the applicant was sentenced to 3 months’ imprisonment, cumulative on the first period of imprisonment, for perverting justice by providing a false name to a police officer. Third, the applicant was sentenced to 6 months’ imprisonment, suspended after 3 months, for 3 charges. These were: breaching a family violence order by sending an abusive and threatening text message to a woman protected by the order; breaching the order by telling the woman he would punch her in the head if she did not pack his property; and committing common assault by placing both hands around her neck and squeezing, threatening to bash her head in if she did not give him a telephone, grabbing her by the back of the neck, and placing his arm around her neck. The magistrate merely expressed this sentence as being ‘cumulative.’ If the third period of imprisonment was cumulative on both sentences, the effective sentence was 10 months’ imprisonment. However, if it was cumulative only on the first sentence, the effective sentence was 7 months’ imprisonment.
Issues: Whether the magistrate erred in failing to make the sentence clear and whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld. The lack of clarity as to the cumulative nature of the third sentence amounted to a sentencing error and the applicant was re-sentenced. The first and second periods of imprisonment imposed were not manifestly excessive. However, the sentence for the assault and the breach of the family violence order was found to be manifestly excessive. A sentence of three months’ imprisonment wholly suspended was substituted. His Honour stated, ‘[t]he nature of the assault was not severe enough to warrant a greater punishment. His culpability for breaching the order was ameliorated by his belief, the claim to which was unchallenged, that the order no longer operated, and by the complainant reconciling and living with him since the order had been made’ ([22]).
Beechey v McDonald [2010] TASSC 47 (25 October 2010) – Tasmanian Supreme Court
‘Breach of domestic violence order’ – ‘Conditions of orders’ – ‘Guilty plea - unequivocal’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Temporary protection order’
Charges: Breach of a family violence protection order (2 counts), Assault
Appeal type: Appeal against conviction
Facts: The male applicant pleaded guilty to two breaches of a family violence protection order and was sentenced to a wholly suspended sentence of 2 months’ imprisonment. The family violence order included an order that he not enter the premises of the complainant, his wife and mother of his 4 children. On one occasion, when returning the children to the premises, the applicant entered the residence and placed some of the children’s belongings inside (the first complaint – breach of a family violence protection order). The family violence order was later replaced with an order including a term that the applicant not directly or indirectly threaten, harass, abuse or assault the complainant. The applicant and the complainant agreed to spend Christmas day together. On the day, a box the applicant was carrying came into contact with the complainant. She fell over and dislocated a shoulder (the second complaint – breach of a family violence protection order by assault).
Issue: Whether the magistrate erred in accepting the applicant’s plea to one of the charges as he had made assertions that were inconsistent with his plea of guilty.
Decision and Reasoning: The appeal was upheld. Sentencing submissions from counsel for the applicant evidenced that he denied applying force to the complainant intentionally. This was inconsistent with his plea of guilty on the second complaint. A plea of guilty must be unequivocal. The magistrate should have informed counsel for the applicant of this inconsistency ([9]-[12]).
Maingay v Seabourne [2009] TASSC 67 (19 August 2009) – Tasmanian Supreme Court
‘Assault’ – ‘Breach of domestic violence order’ – ‘Conditions of orders’ – ‘Damaging property’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘Manifestly inadequate’ – ‘Physical violence and harm’ – ‘Risk factor - weapon’ – ‘Sentencing’ – ‘Vulnerable - new partner’
Charges: Breach of police family violence order (6 counts), Assault (2 counts), Breach of interim family violence order, Damaging property, Abuse of police
Appeal type: State appeal against sentence
Facts: The male respondent was sentenced by a magistrate in respect of numerous offences. The magistrate dealt with the offences in batches and the State sought review of a suspended sentence imposed in respect of two of these batches. The first batch of offences pertained largely to charges of stealing. More relevantly, the second batch of offences related to a number of breaches of police family violence orders. On 12 December 2005, a police family violence order was made for the protection of Cassandra Deering. The respondent breached this order by head-butting and punching Ms Deering. On 5 January 2007, a second police family violence order was made. The respondent breached this by approaching Ms Deering, damaging the car belonging to her new partner, and sending a threatening text message. A number of these breaches occurred while the respondent was on bail for earlier breaches.
On 2 October 2008, a police family violence order was made for the protection of Dana Smith. The respondent breached this order by kicking Ms Smith in the head. He also said she was lucky he did not slit her throat and that he should have snapped her neck. On 27 October 2008, an interim family violence order was made which required the respondent to immediately surrender firearms. The respondent also breached this order.
Issue: Whether the sentence was manifestly inadequate.
Decision and Reasoning: The sentence imposed in respect of the batch of offences incorporating the family violence offences was manifestly inadequate. The respondent was a repeat offender. He showed a complete disregard for the orders made to restrict his behaviour and should have felt the full effect of a deterrent sentence, notwithstanding his age and lack of a prior history. If his offending had extended only to breach by approach (potentially instigated by the protected person) the outcome would have been different. However, the respondent’s offending went far beyond that; it extended to physical assaults against two separate female partners ([24]).
Her Honour noted that, ‘While it is accepted that, at the time the respondent was dealt with for all of this offending, he was still a young man with no relevant prior history, the legislation pursuant to which he had been charged was enacted to protect members of the community, and in particular to protect persons in close relationships with offenders. Deterrent sentences were required to give effect to that legislation … However, in practical terms, it is impossible in my view to argue that the deterrent effect of an actual term of imprisonment is the same as that of a suspended term of imprisonment’ ([23]).
The respondent was ordered to serve a period of four months’ imprisonment. Although it might have been unfair in all the circumstances to impose a custodial sentence several months after his release, if the error in the sentence was not corrected, the perception would remain that the sentence imposed lacked the requisite deterrent effect ([26]-[30]).
Bradshaw v Tasmania [2009] TASSC 22 (9 April 2009) – Tasmanian Supreme Court
‘Deterrence’ – ‘Exposing children’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm’
Charges: Unlawful act intended to cause bodily harm (2 counts), Aggravated burglary
Appeal type: Appeal against sentence
Facts: The male appellant had lived with the female complainant and her 7 year old daughter for over a year before the offending occurred. The relationship was violent and the complainant accordingly obtained a family violence order requiring the appellant not to threaten, harass or abuse the complainant, to keep the peace towards her, and not to damage any property at her home. The order was in place at the time of the offending. The appellant committed a series of offences against the complainant and they ceased cohabiting together. Following this, the appellant broke into the complainant’s house and stabbed her twice to her right side. He took a few steps away before turning back and stabbing her again twice to her left side. The complainant was holding her daughter at the time of the attacks. The appellant was sentenced to six years’ imprisonment with eligibility for parole after four years.
Issue: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was rejected by all judges but with separate reasoning provided. Tennent J (with whom Porter J agreed) found that while there were mitigating factors (remorse, giving himself up, and pleading guilty), the applicant committed very deliberate acts of violence in the complainant’s own home when he had no right to be there and there was a need for both personal and general deterrence ([35]-[36]). The appellant was sentenced for two particularly serious crimes. The stabbings occurred very close together but constituted two crimes because the appellant walked away and made a conscious decision to return and stab the complainant again ([33]). Further, the appellant committed a number of other offences and showed a complete disregard for orders of the court. He caused significant, long-term physical and psychological damage to both the complainant and her daughter ([34]).
In a separate judgment, Evans J also held that the sentence was not manifestly excessive in light of the totality of the appellant’s criminal conduct. The appellant’s criminal conduct was particularly serious. It was not impulsive. He went to the complainant’s home intending to inflict harm and acted in contravention of both a bail condition and a family violence order. One of the wounds he inflicted could have been fatal. The appellant also had prior convictions for violence and carrying weapons. His attack had a profound adverse impact on the complainant ([13]-[14]).
Allen v Kerr [2009] TASSC 10 (25 February 2009) – Tasmanian Supreme Court
‘Aggravating factor’ – ‘Assault’ – ‘Damaging property’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Provocation’ – ‘Sentencing’
Charge: Common assault
Appeal Type: Motion to review sentence
Facts: The applicant was in a relationship with the victim for three years and they had one child together. The victim also had a child from another relationship. Both of these children were present during the incident. The applicant was intoxicated and swore at the victim. An argument ensued and the victim spat in his face, which the applicant claimed led to his subsequent actions. The applicant took the victim’s house keys and told her to go inside before telling her to get in the car. He then smashed the car window, leaned inside and punched the victim twice to the face and four or five times to the back of the head and bit her multiple times. The police applied for a family violence order to operate for 12 months, which the applicant consented to. The applicant had a significant criminal history (though no convictions for assault) and was subject to a probation order and two suspended sentences. He pleaded guilty and was sentenced to two months’ imprisonment.
Issue: One of the issues concerned whether the sentence was manifestly excessive.
Decision and Reasoning: The motion to review was dismissed.
Porter J found that the assault was not premeditated and arose from the applicant’s state of intoxication. The act of the victim spitting in the applicant’s face was a provocative act and an assault in itself. No weapon was used and the complainant suffered no lasting injury. On the other hand, the assault was serious particularly given the biting. Furthermore, the presence of the two children at the time of the attack was an aggravating factor, as recognised by s 13 of the Family Violence Act 2004 (Tas): ‘Violence witnessed by children in the domestic environment not only is distressing (usually the victim is a parent or someone in the place of a parent), but it also serves to desensitise impressionable minds to violence, and to encourage the notion that resort to violence is acceptable’ ([13]).
The community has a general intolerance towards offences of violence. However, although immediate custodial sentences are appropriate for serious cases of assault, there is no prima facie position that assault offences should be punished by an immediate gaol term. The fact that the applicant was subject to the probation order and suspended prison sentences indicates that these measures did not deter the applicant from offending. ‘General deterrence in relation to offences of violence is a weighty factor’ ([27]). While the penalty was a relatively severe one, it did not demonstrate error having regard to the applicant’s circumstances.
Tasmania v R D P [2009] TASSC 72 (25 February 2009) – Tasmanian Supreme Court
‘Emotional and psychological abuse’ – ‘Evidence’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Police family violence order’ – ‘Rape’ – ‘Relationship evidence’ – ‘Risk factor - separation’ – ‘Sexual and reproductive abuse’
Charge: Rape
Proceeding: Application to adduce relationship evidence
Facts: The defendant was in a relationship with the complainant for about 14 months. The alleged offence occurred after the relationship ended. A police family violence order was in place against the defendant. The complainant arranged to attend the defendant’s house to collect her belongings with her 10-year-old son and her brother. She collected her belongings and then went to the bathroom with her son where she found the defendant. There was a knife on the hand basin. The complainant informed the defendant that she did not want to have sex, but he performed oral sex on her. She exposed her breasts on his demands because she thought he might hurt her if she did not. The complainant screamed for help and tried to defend herself by kicking the defendant. The defendant then threatened to rape her anally unless she uncrossed her legs. She then uncrossed her legs and the defendant vaginally raped her. This was done in front of their child.
Issue: Whether the relationship evidence should be admitted.
Decision and Reasoning: The evidence as to the nature of the relationship was admitted, with the exception of evidence of general physical and verbal abuse unconnected with sexual activity. The evidence included general physical abuse and physical violence used to coerce the complainant into sexual intercourse, one prior occasion of non-consensual vaginal intercourse and an act of anal intercourse. Porter J held that the evidence would allow the jury to more readily assess the actions of the complainant and defendant and ascribe meaning to things said by the defendant. In particular, evidence of prior sexual intercourse without consent might serve to explain why the complainant may have displayed some acquiescence to the oral sex and the vaginal penetration. Also, evidence of prior anal penetration was relevant to the jury’s assessment of why the complainant uncrossed her legs prior to vaginal penetration, given the high level of pain and discomfort the complainant suffered as a result of the earlier anal penetration. The probative value of the evidence outweighed its potential prejudice.
Director of Public Prosecutions v P [2007] TASSC 51 (26 June 2007) – Tasmanian Supreme Court
‘Following harassing, monitoring’ – ‘Manifestly inadequate’ – ‘Mitigating factors’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Pregnant women’ – ‘Rape’ – ‘Risk factor - separation’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’
Charge: Rape
Appeal Type: Appeal against sentence
Facts: The respondent’s relationship with the complainant ended. The complainant attempted to maintain a friendship with the respondent but he could not accept that the relationship was over. He kept coming to her home and tried to kiss and cuddle her. She would sometimes relent to avoid an argument. She was pregnant with his child at the time. On the night of the offence, he arrived at the complainant’s home intoxicated. She asked him to leave but he refused. He stopped her from calling a friend. He then refused to allow her to go to the toilet, forcibly pinned her to their bed and raped her. She eventually stopped resisting and he stopped after about 5 minutes. The rape resulted in lasting psychological impacts on the complainant. The respondent had a long record of offending, including offences of violence and threatened violence. He was sentenced to two years’ imprisonment.
Issue: Whether the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was upheld. Crawford J (with whom Slicer and Evans JJ agreed) held that a sentence of two years is low for the crime of rape, which is ‘a crime of violence, domination and degradation and it usually causes great psychological trauma to the victim. It requires a substantial sentence of imprisonment in most cases. Leniency may be extended in exceptional circumstances, but there were none in this case’ ([16]). His Honour was of the view that it is conceivable that a crime committed ‘during the currency of a sexual relationship’ might allow some leniency, but the fact of a prior sexual relationship is not a mitigating factor and the appellant’s disappointment about the relationship breakdown is not relevant to sentencing: ‘In no sense was his crime an act of unrequited love.’ ([16]). Evans J also noted that, ‘it is significant that the respondent's criminal conduct cannot be categorised as an impetuous response to the break-up of his relationship with the complainant and a manifestation of his love for her. His conduct over the period of in excess of an hour after she first asked him to leave bears all the hallmarks of an assertion of physical and sexual dominion over the complainant’ ([23]). The respondent was re-sentenced to three years’ imprisonment with a non-parole period of 18 months.
Lambie v State of Tasmania [2007] TASSC 10 (7 March 2007) – Tasmanian Supreme Court
‘Assault’ – ‘Denunciation’ – ‘Deterrence’ – ‘Just punishment’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Sentencing’
Charge: Assault (two counts)
Appeal Type: Appeal against sentence
Facts: The appellant was in an ‘up and down’ relationship with the complainant that was marked with arguments and assaults. On the day of the offence, the appellant attended the complainant’s home. An argument occurred and the complainant said she wanted to sort out the issues in the relationship. She stood in the doorway, preventing the appellant from leaving. The argument continued and the appellant grabbed the complainant and threw her backwards out of the way. The appellant then followed the complainant into their bedroom and shoved his motorcycle helmet into her chest, knelt on her chest and shouted in her face. The appellant later returned to the house and took her a glass of water. The assaults aggravated an existing unknown spinal condition and the complainant had to undergo surgery and suffered temporary and permanent disabilities. There were also lasting psychological impacts. The appellant had no relevant criminal history. He was sentenced to 12 months’ imprisonment with a non-parole period of 6 months.
Issue: One of the issues concerned whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld on the basis of another ground of appeal (that the sentencing judge had taken extraneous or irrelevant material into account). In relation to the issue of manifest excess, Underwood CJ (with whom Blow J and Tennent J agreed) stated that the key consideration was ‘the extent of the appellant's criminal culpability for the consequences of his direct and intentional applications of force’ because the sentencing judge sentenced on the basis the appellant was ‘culpably liable’ for all the consequences of his criminality ([19]). However, there were no submissions on this issue from counsel so the Court was reluctant to make a determination. In any case, it was not necessary to do so because the consequences of the appellant’s criminal conduct were not reasonably foreseeable by him and the exceptional circumstances were such that the consequences should carry little weight in sentencing.
In re-sentencing the appellant, the Court held that the conduct was serious and that, ‘the nature of the criminal conduct was such that a sentence of imprisonment is called for to mark condemnation of this kind of domestic violence and to punish the appellant’ ([31]). However, the lack of relevant prior convictions made a 12-month sentence manifestly excessive. The appellant was re sentenced to six months’ imprisonment, fully suspended on the condition that the appellant be of good behaviour for two years after his release.
Remess v Rabe [2006] TASSC 105 (4 December 2006) – Tasmanian Supreme Court
‘Evidence’ – ‘Ex parte proceedings’ – ‘Exposing children’ – ‘Hearsay’ – ‘Interim intervention order’ – ‘Leave’
Appeal Type: Application for review of the making of interim family violence order
Facts: An interim family violence order (FVO) was applied for on behalf of the complainant by the manager of Victim Support Services within the Department of Justice. An interim order was made in the applicant’s absence and the order was to last for 60 days.
Issues:
1a. | Whether the magistrate erred in making the order when leave to make an application under the Family Violence Act 2004 (Tas) (the Act) had neither been sought nor granted. |
|---|---|
1b. | Alternatively, whether the magistrate erred in granting leave to make the application when the material was insufficient for that purpose. |
2. | Whether the magistrate erred in making an interim order because the evidence contained in the application was entirely hearsay. |
Decision and Reasoning: The application was dismissed.
1a. | The applicant submitted that the victim support officer was a person who was required to seek leave under s 15(2)(d) of the Act such that magistrate had no jurisdiction to hear the application without leave being granted. Tennent J held that a grant of leave was not a pre-condition to jurisdiction, and that s 15 merely provides for the procedure of the classes of persons who may make an application for an FVO. |
|---|---|
1b. | Counsel for the applicant conceded that the application for the order was an interlocutory proceeding. Under s 75 of the Evidence Act 2001 (Tas), the hearsay rule does not apply as long as the party adducing the evidence also adduces evidence of its source. Counsel submitted that because the application did not disclose the sources of the information, the evidence was inadmissible. Therefore, there was nothing in the application upon which the magistrate could properly have considered the issue of leave. Tennent J held that in relation to leave the Court should consider ‘the position of the person seeking leave, their relationship to the affected person and whether they may have acquired knowledge of the matters the subject of the application’ ([15]). In this case, the magistrate recognised the person seeking leave and that the protected person was a client of hers. Her position and relationship with her client, of itself, would have identified her as being able to provide assistance to the protected person. It was appropriate in those circumstances for the magistrate to grant leave. While leave should have been expressly addressed, a grant of leave was implicit from the conduct of the proceedings. |
2. | The applicant submitted that while some of the material in the application came from police reports, it was not clear whether the officers referred to were reporting from personal contact with the protected person or relying on others. Tennent J held that the protected person clearly identified her sources as two police officers. Her Honour stated that s 75 of the Evidence Act 2001 (Tas) is not limited to ‘first hand hearsay’. As such, the evidence was admissible. Her Honour then commented on the making of interim orders generally at [28]. Counsel for the applicant also raised the issue of the basis on which the magistrate made an order that extended to the children of the parties. The magistrate imposed the order so as to ‘err on the side of caution’ but was careful to not make an order preventing the applicant form approaching his children. Tennent J held this was appropriate: ‘It is well recognised that children in families where domestic violence is a factor can be affected by such violence whether or not they are directly subjected to it’. Even though there was limited material available to the magistrate, the interim nature of the order was reflected in its duration and an acknowledgment that the issue could be revisited. |
Oliver v Tasmania [2006] TASSC 95 (17 November 2006) – Tasmanian Supreme Court
‘Aggravated burglary’ – ‘Arson’ – ‘Damaging property’ – ‘Hardship’ – ‘Manifestly excessive’ – ‘Risk factor - separation’ – ‘Sentencing’
Charges: Aggravated burglary (two counts), Unlawfully injuring property (two counts), Arson
Appeal Type: Appeal against sentence
Facts: The offending related to the appellant’s former partner and father of her two children. The relationship had ended acrimoniously as the appellant found out that her former partner had an affair about the time their relationship ended that resulted in the birth of a child. She broke into his home on two separate occasions and damaged it. On the first occasion she broke nine windows, destroyed a collection of vinyl records and smashed a photo frame. On the second occasion she set fire to the home and damaged the complainant’s vehicle parked outside. The damage exceeded $50,000 and the contents lost had a value between $15,000 and $20,000. At the time of sentencing the appellant had three young children. She had relevant prior convictions. She was sentenced to three years’ imprisonment with a non-parole period of 18 months.
Issue: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed.
Counsel for the appellant submitted that insufficient weight was given to the fact that the appellant was the mother of three children. However, nothing was put to the sentencing judge that suggested any particular hardship to the children arising from their mother’s imprisonment. Counsel also submitted that the penalty imposed for arson was the harshest in the preceding five years. Counsel for the respondent submitted that this was a deliberate action and resulted in substantial damage. Other dwellings could have been at risk. The offending was motivated by ‘significant ill will’. The appellant showed no remorse and attempted to place the blame elsewhere. The fire was lit late at night at a time when it would be expected that it would not be immediately detected. Tennent J (with whom Evans J agreed) held that the appellant’s conduct could only be described as ‘vindictive attacks in no way justified by what she presumably perceived as the wrongs done to her by him. The gravity of her behaviour escalated in that she went from simply smashing things to using fire, a much more dangerous tool’ ([44]).
Underwood CJ (with whom Evans J agreed) held that there was nothing to indicate that the trial judge did not give appropriate weight to the fact that the appellant was a mother of three children. His Honour held that family hardship is only relevant in the ‘most unusual case’ ([11]). In regards to the appellant’s ‘tariff submission’ that the sentence was the longest imposed for arson in the preceding five years, Underwood CJ noted that the appellant was sentenced for arson as well as other crimes. Further, the fact that the arson was intentional made it more serious. The appellant was neither youthful nor remorseful and this was ‘calculated’ conduct borne out of anger designed to cause maximum distress, such that the totality of the conduct called for a substantial sentence of imprisonment.
Re S [2005] TASSC 89 (19 September 2005) – Tasmanian Supreme Court
‘Assault’ – ‘Bail’ – ‘Emotional and psychological abuse’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Presumption of innocence’ – ‘Risk assessment tool’ – ‘Risk factor - strangulation’
Proceeding: Application for bail
Facts: The applicant was arrested following a complaint that he assaulted his partner. She alleged that he had taken her car keys. When she asked for them back, he verbally abused her, grabbed her throat and pushed her backwards. The complainant stated that the applicant kept a gun on the property (though this was not untoward because it was a farming property with livestock) and that she lived in fear of her partner’s threats. The applicant denied the allegations and stated that he did not see the complainant on the day in question. He alleged that the complainant made threats against his safety and that she made the assault complaint maliciously in an attempt to force him to pay her money. Following his arrest, an application for a family violence order (FVO) was made. The applicant had no history of violence or prior convictions. The police officer completed a ‘Tasmania Police Family Violence Risk Assessment Screening Tool’. This involved a subjective assessment provided by the complainant and was part of a whole of government response to domestic and family violence instituted in Tasmania in 2004 ([18]). While the applicant was in the remand centre, the complainant called and asked to speak to the complainant. She indicated that she was willing to drop the assault charge if she was paid money that she was owed.
Issue: Whether bail should be granted.
Decision and Reasoning: Bail was granted. The Court held that various problems with duplication within the risk assessment, the mixture of protective legislation within the criminal law and the mandatory nature of the legislation meant that a court is inhibited in its assessment of future risk, especially in the case of an unrepresented defendant. There was evidence that the phone message from the complainant while the applicant was on remand could be construed, ‘as a form of pressure designed to enhance a financial outcome favourable to the maker’, which would be contrary to the Family Violence Act 2004 (Tas). Section 12 of the Act creates a presumption against bail for a person charged with a family violence offence unless the court is satisfied that release, "would not be likely to adversely affect the safety … of an affected person". At [23], Slicer J made some general comments on the effectiveness of the statutory scheme, noting concerns that the public must have confidence in the administration of the scheme and that public confidence is diminished when an arbitrary approach is taken. By tasking the courts to assess the future risk of a person, reliable primary material must be put before the court to deal with issues such as deprivation of liberty and consequences to the family unit. Slicer J also noted the risk that, ‘deprivation of liberty is seen as a sanction imposed for unproven conduct.’
The Court held that it is not possible to determine the merits of the domestic violence complaint at first instance and that it remained an issue for trial. His Honour also noted tensions between the presumption of innocence and the need to protect victims. In applying this to the facts, his Honour granted bail on the provision of a surety and the imposition of residential, geographical and contact provisions.
Olsen v State of Tasmania [2005] TASSC 40 (13 May 2005) – Tasmanian Supreme Court
‘Aggravated assault’ – ‘Bail’ – ‘Legal representation’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Unrepresented litigant’
Charge: Aggravated assault
Proceedings: Bail application
Facts: The applicant was charged with aggravated assault against his former female partner. The Crown case was that the assault consisted of a threatening gesture or gestures with a replica pistol. The applicant vehemently denied these allegations. The Crown informed the court that they would not oppose bail if the applicant was able to produce a suitable surety. The applicant suffered from schizophrenia and would benefit from the supervision of a surety to ensure he did not breach any bail conditions. However, through no fault of his own, the applicant was unable to produce a surety.
Issue: Whether the application for bail should be granted.
Decision and Reasoning: The application for bail was refused. His Honour noted that, ‘Were I free of the restraints imposed by the Family Violence Act, s12, I would grant bail. I would do so because on the face of it, the assault is not a serious one, because the applicant has been in custody since 10 or 11 April, and because it will be some time before this applicant has his case heard.’ His Honour further noted that the applicant had no relevant prior convictions ([3]).
However, s 12 of the Family Violence Act 2004 (Tas) provided that the applicant not be granted bail unless his release on bail would not be likely to adversely affect the safety, well being and interests of the complainant. The onus was on the unrepresented applicant to show this but he had no idea of where the complainant was living (so as to ascertain information about her safety). In light of this and in the absence of a surety to monitor the applicant’s behaviour, the application for bail was refused. His Honour concluded by stating that, ‘I want to say very strongly that this man needs legal assistance and he needs it urgently, otherwise he is likely to stay where he is for a considerable period of time’ ([10]).
S v White [2005] TASSC 27 (21 April 2005) – Tasmanian Supreme Court
‘Assault’ – ‘Bail’ – ‘Damaging property’ – ‘Exposing children’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk factors’
Charges: Assault (3 counts), Destroying property, Application for a restraint order
Appeal type: Appeal against refusal to grant bail
Facts: It was alleged that the appellant assaulted his former partner and two of her children, and that he destroyed the windscreen of her car. A police officer also applied for a restraint order as a result of this incident. The magistrate refused to grant the applicant bail.
Issue: Whether the release of the appellant on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person (the former partner).
Decision and Reasoning: The appeal was allowed and bail was granted with condition as to surety recognisance and a residential condition. There were a number of factors weighing against the appellant: the prosecution had a strong case; this was a case involving not only physical assault but a threat to kill; the appellant used weapons in the commission of the offence; the Family Violence Risk Assessment prepared by the complainant immediately following the incident noted alcohol problems, potential mental health issues, jealousy and possessiveness, threats to kill, violence in the relationship escalating and the relationship had only recently broken down; the proposed surety (the appellant’s mother) was not in good health and would be unable to stop the appellant harming his former partner ([14]-[18]).
However, in spite of this, Blow J was satisfied that the release of the appellant on bail would not be likely to adversely affect the safety, wellbeing and interests of his former partner and her children. The appellant had not assaulted his former partner or children prior to this incident. Despite allegations of mental illness, the appellant had not been diagnosed with such a disorder. The appellant’s demeanour in court was ‘ideal and exemplary,’ precautions had been taken to ensure the appellant did not know where his former partner was, and he had a previous good employment history ([19]-[23]).
Her Majesty's Attorney-General v O [2004] TASSC 53 (9 June 2004) – Tasmanian Supreme Court
‘Assault’ – ‘Delay’ – ‘Exposing children’ – ‘Indecent assault’ – ‘Manifestly inadequate’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’
Charges: Assault, indecent assault
Appeal type: Attorney-General appeal against sentence
Facts: The responded pleaded guilty to assault and indecent assault against a woman with whom he cohabited for seven years. They had four children together. In March 2001, the respondent assaulted the complainant by raising his fist at her, waving a knife in her face and threatening to kill her. The relationship ceased some weeks prior to 30th May 2002. On 30th May 2002, the respondent trespassed into the complainant’s home and ejaculated over her legs while she was asleep. The complainant reported the incident to police soon after it occurred and, at the same time, reported the assault of March 2001. Considerable time was taken to obtain a DNA analysis of the semen on the complainant’s legs. As a result, police did not interview the respondent until a little more than a year after the indecent assault. The respondent was ordered to perform 80 hours of community service.
Issue: Whether the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was dismissed by Underwood and Slicer JJ but upheld by Blow J in dissent. The judges provided different reasoning.
Underwood J, in the majority, agreed with Blow J (in dissent) that the sentence imposed was manifestly inadequate. However, he dismissed the appeal. The time in custody the respondent would have to serve would unlikely exceed 6 months and absent some point of principle, ‘it was unjust to take away the respondent's liberty and put him in prison because an undefined error, not caused or contributed to by him in any way, infected the sentencing discretion exercised with respect to crimes that occurred two and three years ago’ ([7]).
Slicer J, also in the majority, held that the sentence was not manifestly inadequate. His Honour quoted Parker v R [1994] TASSC 94 which in turn quoted from a Canadian case R v Brown (1992) 73 CCC (3d) 242, 249 articulating principles for the sentencing of crimes of domestic violence: ‘When a man assaults his wife or other female partner, his violence toward her can be accurately characterised as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape’.
However, His Honour nonetheless held that the circumstances of this case did not show manifest disparity or inconsistency with the sentencing standard (which was not to say that a more severe penalty would not have been appropriate). Here, the original assault (followed by the resumption of cohabitation) and the act of indecency were not charged for a further period of 12 months. There was no material advanced that suggested continuation of harassment or manifestation of aggression. The respondent had successfully completed the order of community service ([19]-[20]).
Slicer J also stated: ‘Resolution of the problem of violence within a domestic situation is complex and resumption of cohabitation, as in this case where the complainant had decided to give her partner another chance, makes any assessment of sanction difficult’ ([19]).
Blow J, in dissent, held that the nature of the indecent assault (ejaculating over a former partner’s legs) and the circumstances of aggravation in which it occurred made it a particularly serious example of that sort of crime such that a community service order was so inadequate a penalty that the appeal ought to be allowed ([30], [36]). The circumstances of aggravation were that the respondent entered the complainant’s house as a trespasser at night, the complainant was asleep, and it was committed in the immediate presence of the couple’s four young children which created a strong risk of them witnessing the incident ([26]). A sentence of 11 months’ imprisonment, suspended after 8 months, was appropriate.
His Honour disagreed with the comments of Slicer J as to delay insofar as they related to the indecent assault. He noted that, ‘Certainly fairness to an offender can require a judge imposing a sentence for a stale crime, long after it was committed, to extend what otherwise might be an undue degree of leniency: R v Todd [1982] 2 NSWLR 517 at 519 - 520. There is also authority that a delay need not be inordinate before it deserves to be taken into account: Miceli v R [1997] VSC 22; (1997) 94 A Crim R 327 at 330. However the respondent was sentenced for the indecent assault some 20 months after committing it, and a delay of that order is now, regrettably, quite normal in this State. I therefore think that the delay in relation to that charge is of little significance’.
Waddington v R [2003] TASSC 21 (30 April 2003) – Tasmanian Supreme Court
‘Manifestly excessive’ – ‘Murder’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Remorse’ – ‘Sentencing’
Charge: Murder
Appeal type: Appeal against sentence
Facts: The male appellant and the female deceased lived together for 10 or 12 years. The appellant drank 10 cans of beer on the afternoon of the murder. While the appellant prepared dinner, the deceased telephoned a friend. According to counsel for the appellant, these telephone calls occurred on a regular basis meaning that the deceased would often eat dinner cold or not eat dinner at all. The appellant had become frustrated with these calls over the years. The appellant finished making dinner and told the deceased it was ready. She told him that she would eat it later. The friend on the other end of the phone then heard the appellant become enraged. He yelled, ‘Get off that fucking phone … I've been putting up with it for the last ten years … I'm sick to death of the fucking phone.’ The telephone connection was broken. In a rage, the appellant killed his partner. He held a pillow over her face for about three to four minutes, smothering her until she died. An hour later he went to the police and confessed.
Issues:
1.
Whether the sentence of 17 years’ imprisonment was manifestly excessive.
2.
Whether the order fixing a non-parole period of 12 years was manifestly excessive.
Decision and Reasoning: The appeal was allowed on ground 2.
1.
A sentence of 17 years’ imprisonment was not manifestly excessive in all the circumstances. Although the appellant expressed remorse, confessed to the crime quickly, and pleaded guilty, the appellant maintained his suffocation of the deceased for a prolonged period of time, the deceased did not provoke the appellant’s violence in any way, and the appellant had prior convictions ([25]-[27]).
2.
However, a non-parole period of 12 years was harsh, particularly when considered in light of orders for parole eligibility in other murder cases. Taking into account the appellant’s genuine and deep remorse and his full acceptance of responsibility, a non-parole period of 10 years was substituted ([30]).
Burton v R [2002] TASSC 64 (11 September 2002) – Tasmanian Supreme Court
‘Aggravated burglary’ – ‘Assault’ – ‘Damaging property’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Impact of offence on victim’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm’
Charges: Assault (2 counts), Aggravated burglary with intent to commit murder or assault
Appeal type: Appeal against sentence
Facts: The male appellant and the female complainant resided in a de facto relationship between May 2001 and 20 July 2001. The complainant had a six month old child. However, in July, the complainant informed the appellant she wanted to end the relationship. She went to live with her mother. On the morning of 29 July, the appellant smashed a window to enter the complainant’s mother’s flat, holding a large knife (count 1). He yelled, ‘where is the fucking slut’ and ‘where is she’. He entered the complainant’s bedroom, where she was sleeping with her child, shouting that he was going to kill her. The appellant dragged the complainant by her hair to the kitchen and started to cut her neck. She grabbed the blade of the knife and it snapped (count 2 and 3). The appellant dragged her outside the house (count 4) before calming down. The complainant sustained a superficial laceration to her neck and ongoing psychological injury.
The appellant was found guilty of assault at a first trial (count 4). At a second trial, he was found guilty of aggravated burglary (count 1) and assault (count 3). The assault subject of count 3 was framed as an alternative to counts alleging the commission of the crimes of attempted murder and committing an act intended to cause bodily harm (wounding). He was sentenced to three years and six months’ imprisonment for the offences subject of the second trial. In respect of the assault, he was sentenced to three months’ imprisonment cumulative on the first sentence.
Issue: One of the grounds of appeal was whether the sentence of three years and six months’ imprisonment was manifestly excessive.
Decision and Reasoning: The appeal was allowed by all judges but with separate reasoning provided. Crawford J (with whom Underwood J agreed) held that the sentence of three years and six months was manifestly excessive. The sentence was well outside the range of sentences typically imposed for these types of offences ([20]-[23]). In light of the need for consistency, the sentence was set aside and a sentence of two years and three months’ imprisonment was imposed.
Slicer J also found the sentence of three years and six months’ imprisonment was manifestly excessive. The circumstances of the offences warranted the sentence namely, this was a case of ‘home invasion’ and ‘domestic violence,’ the appellant had prior convictions, he was not entitled to the benefit of a guilty plea, there was no evidence of remorse, and the impact on the complainant was likely to be long standing ([46]-[50]). However, the problem was not with the sentence but with the verdict. It was strange that the jury found that the evidence supported that there had been a ‘cutting of the neck’ but returned a verdict of not guilty of wounding. Nevertheless, the sentence was constrained by the jury’s finding of assault, not wounding. On that basis alone, the sentence was manifestly excessive ([50]-[52]). His Honour agreed with Crawford J that a sentence of two years and six months’ imprisonment was appropriate.
Rice v McDonald [2000] TASSC 70 (21 June 2000) – Tasmanian Supreme Court
‘Compulsion’ – ‘Emotional abuse’ – ‘Expert evidence’ – ‘Exposing children’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Stealing’ – ‘Systems abuse’ – ‘Where the offender is also a victim’
Charges: Stealing, Making a false report to police
Appeal Type: Notice to review conviction
Facts: The applicant and her partner were in a domestic relationship riddled with violence. For a summary of the history of the violence against her, see paragraphs [4]-[10]. The applicant was charged with stealing a television. She entered into an agreement to rent the television under instructions from her partner, who then arranged for the television to be sold to a friend. He instructed the applicant to tell the purchaser that the television came from her sister. After the applicant did not report that the television was stolen to the police, her partner became very angry. As a result of fearing what her partner would do if she defied him, the applicant then reported the television was stolen to the police and the rental company. After the police located the television in the possession of the purchaser, the applicant fully admitted to the crime and protected her partner by providing a false name.
At trial, the applicant gave evidence that she had acted out of fear that she would suffer grievous bodily harm if she did not follow her partner’s demands to commit the offences. She alleged that her partner threatened to kill her if she did not accept full responsibility for the crime and provide a false name to police. That is, she established an evidentiary basis for the court to consider compulsion under s 20 of the Criminal Code 1924 (Tas) (the Code) and duress at common law. The magistrate found that neither of those defences applied.
Issues:
1.
Whether the magistrate erred by applying the provisions of the Code governing criminal responsibility to the charge of making a false report.
2.
Whether the magistrate made legal errors in applying the defences of duress and compulsion.
3.
Whether the magistrate erred in failing to sufficiently consider the evidence of a psychologist with extensive experience in domestic violence.
Decision and Reasoning: The appeal was upheld in respect of issues 2 and 3.
1.
The respondent conceded that this ground was made out. One difference between the common law defence of compulsion and the statutory defence is that it is not necessary for the person making the threat to be present at the time the offence is committed. The applicant was entitled to the benefit of the common law defence. However, this was not sufficient to overturn the conviction because the magistrate was satisfied that the prosecution proved that the applicant was not acting under duress.
2.
The magistrate concluded that the applicant’s contention that her partner would ‘bash the hell out of me’ contained a qualification and because of a slight hesitation in her response, she had not given credible evidence that she was threatened with serious violence. The Court disagreed, holding that given the history of violence, the words ‘bash the hell out of me’ amounted to a clear threat of serious harm.
In referring to the requirement of immediacy under s 20 of the Code, the magistrate concluded that her partner’s threat would not be carried out immediately because of the presence of the purchaser of the television. The Court disagreed, holding that immediacy does not mean that the threat will be carried out at the time of compliance or refusal, but that it is ‘proximate’ to the making of the threat. It requires that the person coerced ‘believes that such threats will be executed’ at the time when the person making the threats is able to carry them out. The magistrate also erred in concluding that the applicant could not have believed the threats could be carried out immediately. Given the history of violence, she was entitled to believe that the threats would be carried out immediately. In relation to seeking the protection of the purchaser, the Court held that this proposition ‘defies logic and experience’ ([25]). The magistrate did not sufficiently take into account the history of the relationship in determining the conduct said to give rise to compulsion. Her partner had complete domination over her and had assaulted her in a refuge. The false report was made at the direction of her partner in the face of explicit and implicit threats. While she theoretically could have made a complaint to the officer about her partner when she filed the report, the option of applying for a restraining order was not consistent with complying with the threats.
3.
The magistrate concluded that the psychologist’s evidence did not assist the defence in establishing duress and compulsion. This amounted to an error and the magistrate was required at least to consider the psychologist’s evidence and the history of violence in determining whether the applicant acted under duress or compulsion.