Applicant Disputes Sentence for Charges of Assault
Brown v Jones [2021] TASSC 58 (22 November 2021)
The applicant was charged with a family violence offence involving assault by pulling hair, choking and punching to legs. He was sentenced to three months' imprisonment the execution of two months of which was suspended on condition that he commit no offence punishable by imprisonment for a period of 18 months. He appeals the sentence alleging that it is manifestly excessive. The Court, in deciding whether or not the appeal should be allowed, considered his prior conviction for assault but no history of family violence as well as the attitude of the victim.
Facts:
The defendant and the complainant have resided together in a de facto relationship for approximately six years, and out of that relationship, they have two children. On Tuesday, the 16th of February of this year, the defendant and complainant began arguing about the defendant reinstalling the app Snapchat on his phone and after showing him a deleted email confirming that he had downloaded it. The defendant ended up assaulting the complainant by pulling hair, choking and punching to legs. On 13 July 2021 the applicant pleaded guilty to a charge of assault under the Police Offences Act 1935.
He also pleaded guilty to four "storage" offences under the Firearms Act 1995, and the matters were adjourned for sentence to 16 July 2021. The assault was a family violence offence. The victim was the applicant's partner of some six years. He was sentenced by Magistrate Brown to three months' imprisonment the execution of two months of which was suspended on condition that he commit no offence punishable by imprisonment for a period of 18 months and in recognition of the mitigatory factors such as his early plea of guilty.
The Magistrate held that there is also a need to demonstrate the community's abhorrence for this sort of behaviour; that is, to denounce it and also to give very significant weight, not just to denunciation but also to personal, and perhaps more importantly, general deterrence. The Magistrate held that the incident was serious family violence. A serious assault. The assault was a sustained one and no doubt utterly terrifying for the complainant and the children.
The defendant's intoxication explains it to an extent, of course, but it is not mitigatory. The Magistrate in fining the charging a fine of over $1,000, observed that the incident must have been a matter of some seriousness bearing in mind that at the time the defendant were about 24 years of age only and at that point he had virtually a complete lack of any prior convictions at all save really a couple of very minor matters which were, even by 2015, even then quite old. The applicant filed a motion to review relating to the assault charge. The sole ground in the notice to review is that the sentence is manifestly excessive.
Issue:
Whether or not the sentence is manifestly excessive.
Applicable law:
Hardwick v Tasmania [2020] TASCCA 2, 32 Tas R 62 - where the prevalence of assault by choking, and the inherent dangers in such conduct were discussed by Martin AJ.
Director of Public Prosecutions v Chatters [2011] TASCCA 8, 21 Tas R 26 - provides that as to the attitude of the complainant, to the extent it was suggested it was one of forgiveness, it carries little weight.
Menichelli v Tasmania [2009] TASSC 111, 19 Tas R 299 - provided that sentencing proceedings are not a private matter between the victim and the offender, and that a serious crime as a wrong committed against the community at large and the community itself is entitled to retribution.
Allen v Kerr [2009] TASSC 10, 19 Tas R 132 at [13] - held that 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.
Analysis:
As accepted by the applicant, this was a serious incident of family violence. The assault was made up of physical acts of a domineering, controlling and risky nature. Given the nature and circumstances of the assault, the magistrate was entitled, if not obliged, to pay particular regard to the factors of general deterrence and denunciation. The magistrate was also entitled to have regard to the fact of the prior conviction for assault in 2015. His Honour noted that it was an assault following a motor vehicle accident, the inference reasonably arising that this also involved an anger management issue.
While there were mitigating factors such as the early acceptance of responsibility, insight into the offending and remorse, and steps taken towards rehabilitation by the significant moderation of alcohol consumption, as can be seen from the magistrate's comments, the relevant personal circumstances and mitigating factors were taken into account. Given the nature of the offending, and the need for emphasis on general deterrence and denunciation, it cannot be said that the outcome demonstrates that these matters were not given sufficient weight.
Conclusion:
The sentence is not shown to be manifestly excessive. Hence, no re-sentencing would be necessary.
