IN
THE SUPREME COURT OF THE )
) No. SCA 23 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
ON
APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
DEAN SADDLER
Appellant
AND: TOMISLAV NEVEN PAVICIC
Respondent
Judge: Burns J
Date: 9
December 2011
Place: Canberra
REASONS FOR
JUDGMENT
1.
On 9 March 2011 the respondent, Tomislav
Pavicic, appeared before Magistrate Lalor defending two charges in the
following terms:
Charge 1 (CC
2010/3948) That he, in the Australian Capital Territory, on 27 April, 2010, did
assault Zora Pavicic and thereby occasioned to her actual bodily harm.
Charge 2 (CC
2010/5811) That he, in the Australian Capital
Territory, on 28 April, 2010, did assault Graeme Mason.
2.
After a contested hearing, Magistrate Lalor found the
accused guilty of each of the charges. After
imposing convictions, he imposed the following sentences:
Charge 1 A
fine of $1,000.00 with court costs of $63.00 and criminal injuries compensation
levy of $50.00;
Charge 2 A
fine of $1,500.00 with court costs of $63.00 and criminal injuries compensation
levy of $50.00.
3.
The appellant, who was the informant in the proceedings
before the learned Magistrate, now appeals against the sentences imposed by the
learned Magistrate. The grounds of the
appeal are that:
(a) The sentences imposed were manifestly inadequate.
(b) His Honour erred in failing to give sufficient weight
to deterrence and punishment in relation to the respondent.
(c) His Honour erred in failing to give sufficient weight
to the objective seriousness of the crimes.
(d) His Honour erred in failing to give sufficient weight
to the harm done to both the victim of the crime and the community.
4.
The hearing of this appeal is made more difficult by
the failure of the learned Magistrate to make clear findings of fact in the course
of him finding the offences against the respondent proved. Judges of this Court should not be required
to sift through the evidence on appeal in order to try to piece together the
facts most likely to have been accepted by the learned Magistrate.
5.
It appears that the offence of assault occasioning
actual bodily harm arose out of an argument between the respondent and his
mother, the complainant, with respect to that charge. The argument was in relation to a request by
the respondent that his mother move her car from the
driveway of the premises they shared.
The argument degenerated into pushing and shoving between the respondent
and the complainant. This culminated in
the respondent grabbing the complainant by the neck and pushing her, causing
her to fall down. This resulted in a
fracture to the wrist of the complainant.
This constituted the allegation with respect to the charge of assault
occasioning actual bodily harm.
6.
After being released from hospital on 28 April 2010 Mrs
Pavicic returned to her home. Later that
afternoon she was visited by Graeme Mason and his four children. Those children were aged between six and 14
years. During the course of that visit
Mr Mason heard an engine revving in the backyard of Mrs Pavicic’s house. He looked out the window and saw the
respondent holding a chainsaw, which he was revving loudly. The respondent said to Mr Mason: “You fucking
Australian cunt, come out here, I am going to cut you, like this”. This caused Mr Mason to be concerned for his
safety and that of his children. The
respondent approached the house with the chainsaw and attempted to enter the
backdoor. He was frustrated in this
endeavour by Mr Mason, who jammed the door shut with his foot. The respondent then shut off the chainsaw,
picked up a fish gaff and swung it above his head. Police were called but the respondent had
left the premises before they had arrived.
7.
After finding the offences against the respondent
proved, his Honour received a copy of the respondent’s prior criminal
history. In addition to numerous traffic
offences, that history revealed that the respondent had been convicted of two
offences of assault in 2001, resulting in a suspended term of imprisonment,
offences of assault, contravention of protection order and damaging property in
2005, resulting in further suspended terms of imprisonment, and seven offences
of using a carriage service to menace, harass or offend in 2005, resulting in
the imposition of fines. The respondent
breached a good behaviour order imposed as part of a suspended sentence for an
offence of assault in February 2005, and in October 2005 that breach was
admitted and the respondent was sentenced to 70 days imprisonment.
8.
In the course of very brief sentencing comments, the learned
Magistrate expressed the view that the facts in the offence of assault
occasioning actual bodily harm revealed an offence that was not at the upper
end of offences of that nature. After
then somewhat inconsistently expressing the view that causing injury to your
mother “is always at the serious end” he recorded a conviction and fined the
respondent $1,000.00 with court costs of $63.00 and criminal injuries
compensation levy of $50.00. He gave the
respondent 28 days to pay.
9.
With respect to the charge of assault on Graeme Mason,
the learned Magistrate’s sentencing comments were also particularly brief. He referred to the offence as an unprovoked
assault committed out of “sheer perfidy (sic)”.
The learned Magistrate recorded a conviction and imposed a fine of
$1,500.00 with court costs of $63.00 and criminal injuries compensation levy of
$50.00. He gave the respondent two
months in which to pay those amounts.
A Crown Appeal
10.
This is a Crown appeal and as such is subject to the
particular principles governing such appeals.
Those principles were summarised by Charles JA in R v Clarke [1996] 2 VR 520:
“The relevant rules may be stated in the following
propositions:
1. An
appeal by the Crown should be brought only in “the rare and exceptional case”
to establish some point of principle.
The reason is that such appeals “represent a departure from traditional
standards of what is proper in the administration of criminal justice in that,
in a practical sense, it is contrary to deep-rooted notions of fairness and
decency which underlie the common law principle against double jeopardy”.
2. Occasions
may arise for the brining of a Crown appeal: (a) where a sentence reveals
such manifest inadequacy or inconsistency in sentencing standards as to
constitute error in principle; (b) where it is necessary for a court of
criminal appeal to lay down principles for the governance and guidance of
courts having the duty of sentencing convicted persons; (c) to enable the
courts to establish and maintain adequate standards of punishment for crime;
(d) to enable idiosyncratic views of individual judges as to particular
crimes or types of crimes to be corrected; (e) to correct a sentence which is
so disproportionate to the seriousness of the crime as to shock the public
conscience; (f) to ensure, so far as the subject matter permits, that there
will be uniformity in sentencing;
3. A
court of criminal appeal dealing with any appeal against sentence, including by
a prisoner, is not a court hearing the matter anew, and is not entitled to
substitute its own opinion for that of the sentencing judge merely because it
considers the sentence inadequate or excessive.
It may only interfere if there is manifest inadequacy or it is shown
that the sentencing judge fell into material error of law or fact.
4. When,
in response to a Crown appeal, the court decides to re-sentence an offender, it
ordinarily gives recognition to the element of double jeopardy involved (in
twice standing for sentence) by imposing a sentence that is somewhat less than
the sentence it considers should have been imposed at the first instance).
(notes omitted)
The
Charge of Assault Occasioning Actual Bodily Harm
11.
With respect to the charge of assault occasioning
actual bodily harm, the appellant submits that the offence sits at the higher
end of objective seriousness for that type of offence for the following
reasons:
1.
the fact that the
offence was a family violence offence;
2.
the offence
caused a fracture of the victim’s wrist; and
3.
the offence was unprovoked.
12.
It is clear that this was a domestic violence
offence. The complainant in the matter
was the respondent’s mother. Documents
from the Canberra Hospital which were tendered in the proceedings before the learned
Magistrate suggest that she was born on 21 June 1949, meaning that she was 60
years old at the time of this offence.
The respondent was apparently 31 years old. It is now well settled that offences of
domestic violence must be treated seriously, and frequently display aggravating
features not present in offences occurring outside a domestic
relationship. The only reason the
respondent was in a position to commit the offence on his mother was because of
that relationship. As such, the offence
involved a serious breach of the trust reposed in the respondent as a son by
his mother. Additionally, the age of the
complainant was an aggravating circumstance attending the commission of the
offence.
13.
Certainly, the fact that the respondent’s assault on
his mother caused her to sustain a fractured wrist is relevant to determining
the objective seriousness of the offence.
The fact that a fracture occurs, rather than the infliction of soft
tissue injuries such as bruising, would usually indicate that the particular
offence of assault occasioning actual bodily harm is at least in the mid range
of such offences. In this case, the act
by the respondent constituting the assault on the complainant, a push, is not
amongst the more serious acts of assault giving rise to culpability for assault
occasioning actual bodily harm. In this
case, a relatively minor act of assault by the respondent had significant
consequences when the complainant fell and fractured her wrist. However, in measuring the culpability of the
respondent with respect to this offence, it is fair to observe that a fall by
the complainant upon being pushed was foreseeable, and that it is well known
that older people not infrequently sustain fractures in the course of
falls. Whilst the fracture of the
complainant’s wrist may have been unintended, it could not be described as a
freak injury.
14.
The evidence does not support the appellant’s
submission that the offence of assault occasioning actual bodily harm was
unprovoked. The complainant gave
evidence that during the course of her argument with the respondent she swore
at him, hit him with either a stick or a rake, and punched him. Whilst the learned Magistrate makes no
reference to these matters in his sentencing remarks, it is difficult to see
how he could have rejected the complainant’s evidence regarding these events. As such, I accept that the respondent was
subjected to a degree of provocation by the complainant leading up to the
offence of assault occasioning actual bodily harm.
15.
The respondent was entitled to no leniency in
sentencing on the basis of his prior criminal history. Nor was he entitled to any leniency based on
his plea. The sentence imposed by the learned
Magistrate gives little, if any, weight to the requirements of specific and
general deterrence, nor does it reflect the objective seriousness of the
offence, even taking into account the provocation offered by the
complainant. The sentence is manifestly
inadequate, and a term of imprisonment should have been imposed. Having said that, such a
sentence need not have involved full time detention. In my opinion, if the respondent had been
found suitable to serve a term of imprisonment by periodic detention, such a
sentence would have been appropriate.
Bearing in mind the principles relevant to Crown appeals, something less
than that should now be imposed. A
suspended sentence of seven months imprisonment is appropriate.
The
Offence of Assault
16.
With respect to the charge of common assault committed on
28 April 2010, the appellant also submits that the offence is at the higher end
of objective seriousness for that type of offence for the following reasons:
1.
the fact that the
complainant’s children were in the house at the time; and
2. the use of a chainsaw, which was running, and a fish gaff
to threaten the complainant.
17.
It must be accepted that the presence of the
complainant’s children in the house at the time the respondent committed the
offence is a significant aggravating circumstance. The respondent submits that there is no
evidence that he knew the complainant’s children were in the house. However, there is no evidence that the
respondent took any steps to ascertain who was in the house before he committed
the offence. The fact of the presence of
children is in itself a circumstance of aggravation. If the evidence established that the
respondent knew they were there, that would have been a further circumstance of
aggravation. The brandishing of a weapon,
such as an operating chainsaw, so as to create in the mind of the victim an
apprehension of immediate physical harm is an offence which is towards the
upper end of offences of common assault not involving an actual battery.
18.
The sentence imposed by the learned Magistrate was
manifestly inadequate. The respondent
was entitled to no leniency based on his criminal history or his plea. The sentence imposed is inadequate to reflect
the requirements of specific and general deterrence. A term of imprisonment was the appropriate
sentence, although, in common with the charge of assault occasioning actual
bodily harm, that sentence could have been served by way of periodic detention
if the respondent had been assessed and found suitable for such a
disposition. For the same reasons
outlined above with respect to the charge of assault occasioning actual bodily
harm, I will now impose a suspended sentence of four months imprisonment
together with a limited good behaviour order.
19.
The appeals are upheld.
The convictions imposed by the learned Magistrate are confirmed. The sentences imposed by the learned
Magistrate are set aside and the following sentences are substituted:
1. for charge CC 3948 of 2010, you are sentenced to seven
months imprisonment, the operation of which is suspended. There will be a good behaviour order for 18
months commencing on 9 December 2011 with the following conditions:
a)
that you accept the supervision of ACT Corrective
Services and obey all reasonable directions of officers of that service, and
b)
that you undertake and
complete such assessments, counselling and programs as directed by officers of
ACT Corrective Services.
2. for charge CC 5811 of 2010, you are sentenced to four months
imprisonment, the operation of which is suspended. There will be a good behaviour order for a
period of 12 months commencing on 9 December 2011 which is confined to the core
conditions only.
I
certify that the preceding nineteen (19) numbered paragraphs are a true copy of
the Reasons for Judgment herein of the Court.
Associate:
Date: 9
December 2011
Counsel for the Appellant: Mr T Jackson
Solicitor for the Appellant: ACT Director of
Public Prosecutions
Counsel for the Respondent: Mr M Kukulies-Smith
Solicitor for the Respondent: Kamy Saeedi Lawyers
Date of hearing: 14
November 2011
Date of judgment: 9
December 2011