Sales v Shakespeare [2001] ACTSC 49 (30 April 2001)

Last Updated: 11 June 2002

Bradley Sales v Anthony Shakespeare

[2001] ACTSC 49 (30 April 2001)

CATCHWORDS

Ex Tempore Judgment

No. SCA 71 of 2000

Judge: Justice J.E.J. Spender

Supreme Court of the ACT

Date: 30 April 2001

IN THE SUPREME COURT OF THE )

) No. SCA 71 of 2000

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM A MAGISTRATE

BETWEEN: BRADLEY SALES

Appellant

AND: ANTHONY SHAKESPEARE

Respondent

ORDER

Judge: Justice J.E.J. Spender

Date: 30 April 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the Magistrates Court of 14 November 2000 that Bradley Sales be imprisoned for six months, to be served by way of 24 periods of periodic detention, that he pay compensation in the sum of $750 for payment out to Scott Gruber, and a criminal compensation levy of $50, be set aside.

3. In respect of the offence of assault occasioning bodily harm on 11 August 2000 a conviction be recorded, and that Mr Sales be released without passing sentence on him, on his giving security, without surety, by recognizance in the sum of $1,000, that he be of good behaviour for a period of 6 months from today.

1. This is an appeal from the decision of a magistrate in the ACT Magistrates Court on 14 November 2000 whereby Bradley James Sales, who had pleaded guilty to a charge that on 11 August 2000 he assaulted one Scott William Gruber and occasioned him actual bodily harm, was ordered to complete 24 detention periods, and was also ordered to pay compensation of $750, court costs of $50, and a criminal injuries compensation levy of $50.

2. The appellant appeals on the ground that the order was, in all the circumstances, manifestly excessive, and further, that the learned magistrate took into account facts which were not in the evidence before her.

3. Mr Sales pleaded guilty on the first return day of the assault occasioning actual bodily harm charge, which was on 1 September 2000. He appeared for himself on that occasion and, I infer, without the benefit of any legal advice.

4. The material before the magistrate appears from the transcript of proceedings before her Worship. There was in the "general information", which is a 2-page document in the Appeal Book, some information concerning two matters in the ACT Children's Court some 10 years ago concerning Mr Sales, and a pre-sentence report.

5. As will be apparent, there was information that had been supplied to the sentencing magistrate which had not been presented in open court, and of which the defendant was unaware. This disturbing breach of the rules of natural justice is only really explicable on the basis that somebody from the prosecution had supplied information concerning the offence, on which the magistrate acted, and of which the defendant was unaware.

6. A court in imposing sentence is exercising a discretionary judgment. The principles upon which an Appeal Court will review such a discretionary judgement by a sentencing magistrate are well established. In House v R [1936] HCA 40; [1936] 55 CLR 499, in the well known passage at 504-505, their Honours, Dixon, Evatt, McTiernan JJ said:

"... [a] judgment complained of, namely, a sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts on a wrong principle, if he allows extraneous or irrelevant matters to guide him or affect him, if he mistakes the facts, if he does not take account of some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."

7. These principles, of course, have been followed many times. See the recent affirmation by the High Court in Lowndes v R [1999] HCA 29; (1999) 195 CLR 665, particularly at 671-2, and also the well known case of R v Tait and Bartley (1979) 46 FLR 386 at 388.

8. In this particular case it is a matter of regret that the sentencing process miscarried in a number of very serious ways.

9. The first is a clear breach of the requirements relating to periodic detention as a sentencing option. Periodic detention has a very useful part to play in the sentencing options available to a criminal court. Frequently it means that a person is able to continue in employment, able to maintain his or her family, while at the same time paying for the offence in a significant way.

10. Section 6 of the Periodic Detention Act 1995 (ACT) provides:

1. "A court shall not make an order under section 4 unless:

(a) the court is satisfied that it is appropriate for the offender to undertake such an order; and ...

(e) the court has explained to the offender -

(i) the effect the proposed order would have; and

(ii) the consequences of non-compliance with the order and the circumstances in which the offender would be taken to have breached the order; and

(iii) that the court has the power under this Act to review the order on the application of the director or the offender; and

(f) the court is satisfied that the offender consents to undertaking such an order."

11. The importance of the requirement of section 6(1)(f) cannot be overestimated. In this particular case, what the magistrate said in imposing sentence was:

"What I intend to do, is impose a sentence of periodic detention. I sentence you to 6 months' imprisonment, but require that you serve that by way of periodic detention. Do you understand what that means?"

The prisoner - Mr Sales - said, "No".

12. The magistrate then proceeded to give something of an explanation of periodic detention. At no stage did the learned magistrate ask Mr Sales whether he consented to the making of that order, which is a clear breach of s 6(1)(f). Further, it appears that the sentence of periodic detention was imposed before there was any attempt to explain the nature of that sentencing option.

13. Non-compliance with s 6(1)(f) on the part of the magistrate, would be sufficient to allow the appeal, but there are a number of other errors disclosed in the sentencing process. One of those is the fact that it is apparent that the magistrate took into account material which was not made known to the defendant.

14. The facts of the offence as disclosed to the magistrate in the presence of the defendant were that on Friday, 11 August at about 7.30 am, Mr Sales assaulted Mr Gruber at the intersection of Drakeford Drive and Sulwood Way, Greenway in the Australian Capital Territory. Mr Sales had been a passenger in a Datsun 1200 motor vehicle driven by one Adam Michael McCarthy. There had been incidents between two vehicles, that in which Mr Sales was a passenger and that which Mr Gruber was driving. And when Mr Gruber's vehicle stopped at the traffic lights at the intersection of Drakeford Drive and Sulwood Way, Mr Sales alighted from the Datsun, opened the driver's door of the complainant's car and struck him in the mouth with a closed fist. He returned to the Datsun vehicle which continued north along Drakeford Drive. Mr Gruber turned into Sulwood Way and proceeded to the Tuggeranong Police Station and reported the matter.

15. The statement of facts before the magistrate showed that at the time of reporting the incident, "the alleged victim" (that is to say Mr Gruber) "smelled strongly of intoxicating liquor": This time was shortly after 7.30 am on Friday, 11 August 2000.

16. According to the statement of facts Mr Sales, in a tape recorded record of interview, said that the vehicle driven by Mr Gruber had swerved all over the road in front of them and had braked heavily, causing his car having to move to the right in order to avoid a collision, that Mr Gruber's car had then cut across the two lanes of traffic and almost "took the front of the car off". He and his driver had then tried to signal the other car to stop, in order to find out why they had almost run into the Datsun. Both vehicles stopped at the traffic lights. The defendant approached the Datsun, asked the occupants to get out of the car. The victim and his passenger then laughed at Mr Sales, who then opened the driver's door, punched him in the mouth, got into the car which then drove off. He admitted that he had no permission or lawful right to hit the victim. He said that he was angry at the time and was ashamed of what he had done. If he saw the victim again he would apologise for his actions.

17. According to the statement of facts, Mr Gruber said that the car in which

Mr Sales was a passenger had taken up a position in front of his own, and had slowed to about 50 kilometres. They had managed to get around the vehicle containing Mr Sales, but the vehicle had then passed them in the left hand breakdown lane. At the intersection the Datsun had stopped beside him and to their right, and that Mr Sales had then alighted from the Datsun, walked over, opened the driver's side door, grabbed Mr Gruber by the neck, punched him in the mouth. He felt pain, and blood came from his lips, gums and mouth.

18. A medical report indicated that Mr Gruber was treated for bleeding from the mouth, upper central incisors were mobile to tongue pressure. There was a chipped lower lateral corner of the upper central incisor and laceration to the lower lip.

19. As is clear from the statement of facts before the sentencing magistrate, Mr Sales essentially claimed that he became angry at the manner of driving of Mr Gruber, which on at least two occasions had tried to cut him off, and that at the traffic lights, when angry, he had punched Mr Gruber in the mouth after he and one of his passengers had laughed at him when he sought to remonstrate with him about the manner of driving and the danger which it had caused.

20. After the statement of facts was detailed to the sentencing magistrate, her Worship said of the charge of assault occasioning actual bodily harm:

"I can only deal with the matter if you consent to the jurisdiction of this court to deal with the matter, otherwise it has to go for sentence to the Supreme Court. So do you consent to the matter being dealt with in this court? What do you want to say about it?"

To which Mr Sales replied:

"Just that it's totally out of character. I don't know why I hit him. I just - it was just I wanted him to explain why he tried to run us off the road several times. And all he had to say was sort of just laugh about it. I really don't know why I hit him and I'm sorry about it."

Her Worship asked:

"So what you're saying is that you hit him because you were angry. Is that why you hit him?

Yes. I sort of - he tried to run us off the road and all he had to do was laugh about it. And we wanted to know what was happening."

21. When the other version was put to him, Mr Sales said, "That's not - no, that's not correct". Her Worship said: "You disagree with that?" to which Mr Sales said "Yes". Her Worship said: "So what do you say happened? He was just trying to run you off the road, is that what you are saying?" Answer, "Yes".

22. Her Worship later said:

"I'll have to give this matter some thought before I sentence you, so I'll put it over and ask for a pre-sentence report because I regard the matter as being rather serious. I find the offence proved."

23. The matter was then adjourned until Tuesday, 14 November 2000. On that occasion, having said that she had read the pre-sentence report, the learned magistrate asked:

"Is there anything you want to say? I don't know that you had an opportunity to say anything on the last occasion, but I do want to give you the opportunity to do that if you wish".

To which Mr Sales said:

"Yes. It's pretty much what it says in the report, that I am - you know, it was out of character, and I don't do that sort of thing. Yes, pretty much that it won't - won't happen again. I know that I did wrong. I probably should have gone straight to the police and reported it."

And then her Worship said:

"I mean, the odd thing is your version is that these people in the car were causing you and the person who was with you some grief. And yet you're the one who does the punching out and he, the victim, is the one who went to the police. Which makes me have a lot of reservation about what you say."

24. She then asked: "Do you know how old the person was who you punched out?" Answer, "Yes." Her Worship: "How old was he?" Answer: "17." And her Worship said, "A 17 year old schoolboy. Do you know also that he has a serious medical condition?" to which Mr Sales said "No". To which her Worship said, "Well, I'll tell you that because that's the truth of it".

25. This information was not in the material before the court. But further, the learned magistrate said:

"I mean, the behaviour that you engaged in, Mr Sales, on this occasion is commonly known as road rage. And as I was driving in this morning, I heard a news article about someone in South Africa who was just convicted of murder for road rage. He apparently didn't like what someone on the road did to him, got out of the car, used a baseball bat or some other baton - a hockey stick I think it was, or some baton, and battered this person to death. I mean that's what's happening with people who lose their temper on roads for various reasons".

She then said:

"I don't know what the truth of it is, as to whether or not they provoked you, or whether you were responsible. I heard another version, I'll tell you that in fairness. But I have heard another version of events which puts you very squarely at fault, or the driver of your car very squarely at fault. And that these young people were doing nothing, and that you, in fact, and the person you were with were at fault".

26. Her Worship then proceeded to say:

"Now I can't make a judgment on that, and I don't propose to do that, because I don't know where the truth lies. So I make no judgment about that. But what you did is just totally, totally unacceptable."

And later she said:

"You were the aggressor on this occasion. There's no doubt about that. You're the aggressor."

27. She later said:

"The community expects people who behave in this fashion to be treated very harshly by the law ... people who just do this to other people totally, totally for no apparent reason whatsoever or no good reason should go to gaol." (emphasis added)

28. She then referred to a number of factors, including the fact that Mr Sales pleaded guilty at the first available opportunity, that he was remorseful, has no prior offences for violence. And then said:

"As I say, this attack was upon a 17 year old schoolboy with a serious medical condition. Your behaviour cannot be condoned or excused in any way whatsoever."

And then she indicated that she would impose a period of periodic detention.

29. After the explanation concerning periodic detention, the learned magistrate said:

"You are also to pay compensation in the sum of $750 to the court for payment out to Scott Gruber. You're also to pay court costs of $50, and a criminal injury compensation levy of $50."

30. I have set out the learned magistrate's sentencing remarks in some detail because it is plain that not only were extraneous facts - extraneous in the sense that they were not properly before the court - taken into account in the sentencing process, but also it seems to me that a sentence of 6 months imprisonment to be served by periodic detention is only explicable on the basis of an acceptance that Mr Gruber was without fault in the process, which necessarily means an acceptance of a version of events in the teeth of a statement that the magistrate would be making no judgment as to the conflicting versions of events prior to the assault.

31. On the statement of events advanced by Mr Sales, both in his recorded record of interview and on the first occasion before the magistrate, and again on 14 November 2000, the conduct of the 17 year old driver of the other car, a young man who, apparently at 7.30 in the morning, smelled heavily of intoxicating liquor, amounted to quite serious dangerous driving.

32. In the circumstances, unless that version was positively found against

Mr Sales, it fell for him to be sentenced on the basis that while provoked into anger by the dangerous driving of Mr Gruber, his retaliation was disproportionate: his response in punching Mr Gruber in the mouth was excessive, having regard to what was the provoking conduct.

33. On that basis a sentence of 6 months imprisonment, albeit to be served by periodic detention, was in my respectful opinion, manifestly excessive.

34. Further, the order that the appellant Mr Sales pay $750 by way of compensation for payment to Mr Gruber was made without the relevant facts appearing on the evidence, without any application being made by the prosecution, and without hearing submissions on the proposed order for compensation.

35. Section 437(6) of the Crimes Act 1900 (ACT) provides that:

"An order shall not be made under this section unless, in the opinion of the court, the relevant facts sufficiently appear from evidence given at the trial or from the available documents, together with submissions made by or on behalf of any person in connection with any proposed order."

This circumstance also exacerbates the concern about private information being supplied to the magistrate in breach of the audi alteram partem rule.

36. Further, s 429C of the Crimes Act 1900 provides:

"1. A court shall not pass a sentence of imprisonment on any person for an offence against a law of the Territory unless the court, after having considered all other available penalties, is satisfied that no other penalty is appropriate in all the circumstances of the case.

2. Where a court passes a sentence of imprisonment on a person for an offence against the law of the Territory, the court shall -

(a) state the reasons for its decision that no other sentence is appropriate; and

(b) cause those reasons to be entered in the records of the court.

3. The failure of a court to comply with the provisions of this section does not invalidate any sentence."

37. For the reasons which I have explained above, the sentencing discretion miscarried in a number of important respects. In those circumstances, the orders concerning periodic detention and the orders concerning the payment of compensation, and the criminal injury compensation levy of $50 are set aside. It is competent for this court to impose an appropriate sentence in the events that have happened.

38. I take into account the matters that are obliged to be taken into account in sentencing, which are referred to in section 429A of the Crimes Act 1900. In particular, it is relevant in this case to take into account the degree to which the offence was the result of provocation under 429A(1)(o), and the fact that Mr Sales demonstrated remorse that was genuine, under 429A(1)(v). It is also relevant to take into account that he pleaded guilty at the first available opportunity.

39. The personal circumstances of the respondent indicate that he is a hard working man of good character. He has two convictions in the Children's Court more than10 years ago, which do not detract from that last observation. He was born on 17 July 1972. Since leaving school he has been almost continuously employed in work involving repairs to motor vehicles, and he is in current employment as a motor mechanic.

40. He and his partner, who have been in an ongoing relationship for more than 5 years, have a 5 month old daughter. The incident occurred at about 7.30 am when he was on his way to work as a passenger in a work colleague's motor vehicle.

41. According to the assessment in the pre-sentence report:

"Mr Sales presented as an honest, co-operative and genuinely astute young man who was clearly contrite. He has very good moral values and is reportedly an excellent partner, father and provider to his family."

42. The pre-sentence report indicates that there is no utility in any supervised probation as part of a release on recognizance, an observation with which I agree.

43. In all the circumstances, I think an appropriate and fair sentence is that in respect of the offence of assault occasioning bodily harm on 11 August 2000 a conviction be recorded, and that Mr Sales be released without passing sentence on him, on his giving security, without surety, by recognizance in the sum of $1,000, that he be of good behaviour for a period of 6 months from today.

44. I confirm the order that Mr Sales pay court costs of $50.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice J.E.J. Spender.

Associate:

Date: 2001

Counsel for the Appellant: Mr M. Hockridge

Solicitor for the Appellant: Legal Aid ACT

Counsel for the Respondent: Mr S. Weber

Solicitor for the Respondent: Director of Public Prosecutions

Date of hearing: 30 April 2001

Date of judgment: 30 April 2001