Stevens v McCallum [2005] ACTSC 73 (10 August 2005)

Last Updated: 11 August 2005

CORNELIUS STEVENS v EMILY MCCALLUM

[2005] ACTSC 73 (10 August 2005)

APPEAL - appeal from the Magistrates Court - appeal against conviction and sentence - whether the Magistrate's decision was unsafe and unsatisfactory - whether sufficient evidence existed for the Court to be satisfied beyond a reasonable doubt that the offence occurred - whether tender of transcript by the defence constituted an incompetence giving rise to a miscarriage of justice - whether prosecution could have adduced the contents of the transcript as a prior inconsistent statement - De Simoni principle - whether the Magistrate wrongly identified factors as aggravating rather than mitigating - whether any mitigating factors existed

Crimes Act 1900 (ACT)

Evidence Act 1995 (Cth), ss 38, 43

Kempe v Bailey [2003] ACTSC 13

The Queen v De Simoni (1981) 147 CLR 383

Kingswell v The Queen (1985) 159 CLR 264

Weininger v The Queen (2003) 212 CLR 629

Cameron v The Queen [2002] HCA 6

Veen v The Queen (No 2) (1988) 164 CLR 465

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 31 of 2005

Judge: Tamberlin J

Supreme Court of the Australian Capital Territory

Date: 10 August 2005

IN THE SUPREME COURT OF THE )

) No. SCA 31 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CORNELIUS STEVENS

Appellant

AND: EMILY McCALLUM

Respondent

ORDER

Judge: Tamberlin J

Date: 10 August 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE )

) No. SCA 31 OF 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CORNELIUS STEVENS

Appellant

AND: EMILY McCALLUM

Respondent

Judge: Tamberlin J

Date: 10 August 2005

Place: Canberra

REASONS FOR JUDGMENT

TAMBERLIN J:

1. This is an appeal from the Magistrates Court against the conviction and sentencing of Cornelius Stevens, the appellant, for common assault.

2. In her Worship's sentencing remarks, Magistrate Doogan recorded that she had taken into account the submissions made on behalf of the appellant together with the comments in the pre-sentencing report and the relevant provisions of the Crimes Act 1900 (ACT). Her Worship concluded that the appellant should be sentenced to twelve months imprisonment for the offence of common assault, three months imprisonment for the breach of the protection order and six months imprisonment for the breach of recognisance in respect of the offence of common assault. The latter two sentences were to run concurrently and the sentence for common assault was to be cumulative upon those sentences, with a total head sentence of eighteen months imprisonment. Her Worship ordered the appellant be released after serving a nine months non-parole period. Her Worship directed that the non-parole period and the sentence were to commence on 8 April 2005, being the date when the appellant was first placed in custody on these offences, and that the non-parole period was to end on 7 January 2006 and the head sentence on 7 April 2006.

3. The facts, as summarised by her Worship, are as follows.

4. At about 10.30 pm on 20 September 2004, police attended at an address in Lyons in the Australian Capital Territory and spoke with the complainant, Ms Hieser, at the home of a neighbour. The conversation between Ms Hieser and Constable McCallum was tape-recorded and a transcript of that conversation was tendered into evidence by the defence. Ms Hieser complained to the constable that the appellant had assaulted her earlier in the evening and that her son was still at her home. The Constable described Ms Hieser as "distressed", "very stressed", "very upset ... crying ... shaken." The Constable observed bruises to Ms Hieser's face and body, a lump on her right cheek, a swollen upper lip, a number of very large bruises on her left arm and one of her arms, bruises on her thighs, shins and back and a handprint bruise on her thigh. She also had swollen red marks and welts on her back.

5. The police attended Ms Hieser's home and found the appellant asleep on the bed with a child of the relationship. The appellant was arrested for breach of a protection order. Ms Hieser attended hospital the following night and sought treatment for her injuries.

6. Her Worship found that Ms Hieser was a reluctant witness. During the hearing, Ms Hieser claimed she could not really recall the events of the evening as she had consumed a large amount of alcohol. Ms Hieser confirmed that she had provided the information contained in the transcript of the tape taken that evening to Constable McCallum. The evidence of Ms Hieser at the hearing was unsatisfactory to say the least. However, when asked in cross-examination by counsel for the appellant whether she recalled if the appellant had hit her that night or not, she replied, "I can't testify if he did or did not, I can't remember". The appellant admitted to attending Ms Hieser's home that afternoon in breach of the protection order but denied that he had hit her. His evidence was that she was argumentative and that he had drunk a large amount of alcohol and passed out and recalled nothing until woken by the police later that evening. The Magistrate was satisfied beyond a reasonable doubt that the appellant had assaulted Ms Hieser and caused the injuries that were observed by Constable McCallum.

7. Her Worship then proceeded to consider sentence.

CONVICTION

8. In relation to the appeal concerning the conviction, the first submission by counsel for the appellant is that the appellant's conviction is unreasonable and cannot be supported by the evidence. Counsel submits that having regard to the unsatisfactory nature of the evidence in the transcript of the recording and on the hearing, it would be unsafe and unsound to uphold the conviction and the conviction should therefore be set aside as there was insufficient probative evidence. Counsel submits that having regard to the consumption of alcohol by Ms Hieser and the fact that her recollection of the incident was almost non-existent, her recollection on the hearing was totally inadequate. In cross-examination, Ms Hieser conceded that some of the injuries observed by the Constable on the night in question might have been old injuries. Counsel says that there was no direct eye-witness evidence or photographic or medical evidence to support the prosecution case. Further, there was no specific evidence as to precisely how the complainant had suffered her injuries. It is said that while there was some circumstantial evidence suggestive of an assault, there were other inferences equally open on the evidence, which were consistent with the innocence of the appellant, as to how Ms Hieser may have suffered the injuries. Therefore, it is said that the evidence, either taken alone or in combination with other evidence, was far from sufficient to enable the Court to be satisfied beyond a reasonable doubt of the appellant's guilt.

9. Counsel referred the Court to the judgment of Crispin J in Kempe v Bailey [2003] ACTSC 13, where his Honour summarised the relevant principles applying to an appeal against a decision of a Magistrate. At [17], his Honour stated:

"... if the finding in question is affected by an error of principle or a demonstrated mistake or misapprehension about the relevant facts, the advantage [enjoyed by the Magistrate of assessing the credibility of witnesses by reference to demeanour and in assigning weight to various factors affecting findings as to their credibility] may be of little significance or even irrelevant ... in some circumstances the demeanour of the witness may provide too fragile a base to support a finding as to his or her credibility."

Counsel referred to this as the "unsafe and unsatisfactory" test.

10. In my view, there was ample evidence on which the Magistrate could have been satisfied beyond a reasonable doubt that the assault complained of had occurred. There is no doubt that the transcript of the conversation between the Constable and Ms Hieser was of critical importance to the Magistrate. In the transcript, the following exchange is recorded:

"Constable McCallum:

Yep Okay, what happened when you got back from Weston?

Ms Hieser:

He just wants to hit me, you know

...

Constable McCallum:

I can see the bruises there Josephine. How many times do you think he hit you

Ms Hieser:

I don't know. Why is he like this.

...

Constable McCallum:

... And how many times do you think he hit you in the three or four hours?

Ms Hieser:

(indistinct)

A lot.

...

Constable McCallum:

Just in terms of the injuries that you've sustained tonight Josephine just go from head to toe.

I can see you've got a bit of a bruise on your cheek there

Ms Hieser:

He hit me in the face."

This is clear, direct and unambiguous evidence of blows being struck. The transcript records that Ms Hieser showed a number of injuries to the Constable including injuries to her lip, bruises, injuries on the legs, a bruise on the neck, a soreness in the left shoulder and bruises on the arms and bruises on the back, together with bruises on the thighs and shins. The evidence of Ms Hieser was accepted by her Worship and provides sufficient support for the conclusion that there was an assault by the appellant.

11. The second submission advanced by counsel for the appellant in relation to the conviction, was that the conviction should be set aside because of the incompetence of the appellant's counsel at the hearing in the Magistrates Court and his tendering of the transcript of the interview between the Constable and Ms Hieser.

12. Counsel on the appeal, who did not appear below for the appellant, submits that the failure by counsel to prevent the transcript going in evidence caused a miscarriage of justice. This is because, according to counsel for the appellant, if the transcript had not been tendered for the appellant, it could not have been tended by the prosecution, given the absence of any finding by the Magistrate that the complainant had not been doing her best to recall the alleged incident or that she had given evidence unfavourable to the prosecution within the meaning of s 38 of the Evidence Act 1995 (Cth) ("the Evidence Act"). Section 38 of the Evidence Act enables a party who has called a witness to cross-examine, with leave of the Court, the witness about evidence that is unfavourable to the party or about a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the Court the witness is not, in examination in chief, making a genuine attempt to give evidence or about whether the witness has, at any time, made a prior inconsistent statement. It is said that the Magistrate did not make a ruling to the effect that the evidence of the witness was unfavourable to the prosecution or that there was no genuine attempt to give evidence on the part of Ms Hieser. In my view, there was no necessity for an express ruling by the Magistrate that the evidence of the witness was unfavourable to the prosecution or that there was no genuine attempt to give evidence on the part of Ms Hieser.

13. In my view, there is no substance in the appellant's objection. Section 43 of the Evidence Act provides that a witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness and that if, in cross-examination, the witness does not admit the making of the prior inconsistent statement, the cross-examiner may adduce evidence of the statement so long as he or she informs the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement and draws the witness' attention to the statement in so far as it is inconsistent with the witness' evidence. In this case, this occasion did not arise because the transcript was tendered by counsel for the appellant. However, in my view, in the present case, I am not persuaded that there has been any miscarriage of justice as a consequence of the tender of the transcript. It is more probable than not that the transcript would have been admitted as a prior inconsistent statement. The inconsistency is that in the transcript Ms Hieser recalled what happened on the night and at a later stage she said that she did not recall what happened. Moreover, I am not persuaded that there was any negligence or incompetence shown on the part of the counsel for the appellant.

14. Accordingly, the challenge to the conviction on this ground also fails.

15. I now turn to the question of the sentence.

SENTENCE

16. It is said that her Honour made a number of errors in the sentencing remarks. These errors included the following:

(i) Her Worship had regard to the evidence of injuries suffered by the alleged victim in relation to an offence of common assault in contravention of the principles laid down in The Queen v De Simoni (1981) 147 CLR 383 (De Simoni);

(ii) Her Worship wrongly identified a number of matters as aggravating factors, including, but not limited to, the manner in which the appellant gave evidence at the hearing;

(iii) Her Worship held that there were no mitigating factors present; and,

(iv) Her Honour sentenced the appellant for breach of the recognisance in respect of a common assault committed on 5 January 2003 without having the detailed facts relating to that offence before her.

17. In relation to the first matter, the relevant principle is stated by Gibbs CJ in De Simoni at 392 in the following terms:

"In the present case whether s 582 be construed according to its own terms, or with the assistance provided by the common law, it has, in my opinion, the effect that a judge, in imposing sentence, may not have regard to a circumstance of aggravation which should have been charged in the indictment if it was intended that reliance should be placed upon it. He may, of course, have regard to facts which might ordinarily be described as circumstances of aggravation, but which do not fall within the definition of that expression in the Code, because they do not render the offender liable to a greater punishment."

This principle has been applied in many later cases: see Kingswell v The Queen (1985) 159 CLR 264 at 278; Weininger v The Queen (2003) 212 CLR 629 at 640 and 650.

18. In the present case, her Worship said:

"Now there are several aggravating features relating to the defendant and relating to the sentencing are matters [sic] that I take into account in relation to these particular offences.

...

Thirdly, based on the evidence of the injuries sustained by Ms Hieser, the assault upon her by the defendant on this occasion, was a violent and prolonged assault. And even though he's been charged with common assault, I certainly regard that assault as being at the higher end of that particular scale of common assault." (Emphasis added)

19. Counsel for the appellant submits that these remarks clearly indicate that the injuries sustained by Ms Hieser would have justified a charge of assault occasioning actual bodily harm and that they were wrongly taken into account by the Magistrate. Therefore, the principle in De Simoni was breached.

20. On a fair and reasonable reading of the sentencing remarks of her Worship, I am not persuaded that the De Simoni principle was breached. Her Worship noted that injuries had been inflicted on Ms Hieser and that these injuries indicated that the assault was at the higher end of the scale of common assault but still within the parameters of that charge. The language reflects an appreciation of the well-known De Simoni principle. Her Worship was not seeking to punish the appellant or to wrongly take into account the circumstances of aggravation that would justify a more substantial sentence. Her Worship was having regard to the facts and context in which the common assault took place.

21. I note that earlier in the remarks, in describing the incident, her Worship makes specific reference to the bruises, swollen red marks and welts on Ms Hieser's body. These are part of the res gestae or circumstances surrounding the occurrence and, in my view, did not form part of the considerations that her Worship took into account when imposing the sentence. The remarks made by her Worship in relation to sentencing are to be found later in the reasons.

22. Accordingly, I do not accept the first submission of the appellant.

23. The second submission is that her Worship incorrectly identified the appellant's lack of remorse, plea of not guilty and the manner in which the appellant gave evidence as aggravating factors, when, in fact, these were factors that went to mitigation or deprived the appellant of leniency rather than being aggravating factors: see Cameron v The Queen [2002] HCA 6. It is common ground that these errors were made by the Magistrate, however, it is said by the respondent that they did not lead to a miscarriage of justice. In my view, the submission of the respondent is correct. Looking at the sentencing as a whole, I am not persuaded that the treatment of these two considerations in the particular circumstances of this case gave rise to any miscarriage of justice, as they were but two of the factors taken into account by the Magistrate. The sentence is not, on its face, excessive.

24. The appellant then submits that the Magistrate improperly took into account the appellant's prior criminal history. It is clear that the antecedent criminal history of an offender is a factor that may be taken into account in determining the sentence to be imposed, however, it cannot be given disproportionate weight to the gravity of the offence: see Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-478 per Mason CJ, Brennan, Dawson and Toohey JJ. The criminal record is relevant to show whether the offence is an uncharacteristic aberration or whether the offender has manifested a continuing attitude of disobedience of the law. The sentencing remarks of the Magistrate indicate that her Worship did not impose a penalty for the appellant's past indiscretions but rather took into account the appellant's past disregard for the law. Further, I am not persuaded that the fact that the Magistrate took into account that there was a breach of bail by the appellant and that the appellant had not completed the residential rehabilitation program resulted in any miscarriage of justice.

25. Her Worship said that there were absolutely no mitigating factors in the appellant's favour. Her Worship then noted that the pre-sentencing report revealed that the appellant had a somewhat unfortunate and impoverished upbringing, however, her Worship considered that alcohol was a significant factor to the appellant's violent and anti-social behaviour and that he had done very little, if anything, to address his problem. It is clear that her Worship took these considerations into account but did not give them any significant weight in the circumstances. This approach, in my view, was open to her in this case. In my view, her Honour has not erred in her sentencing remarks nor is the sentence disproportionate in any way and it was open to her Worship to reach her conclusions as recorded.

26. There is a further argument raised by the appellant that the Magistrate, in sentencing the appellant for breach of the recognisance imposed on 26 June 2003, in respect of an offence of common assault on 5 January 2003, did not have the facts in relation to that offence before her. I am not persuaded that there is any principle that requires the Magistrate to specify or consider all the circumstances underlying the imposition of that recognisance. It is not necessary that a sentencing Magistrate should have the file before her in respect of the matter on which the suspended sentence was imposed.

27. In my view, no error has been shown in the sentencing process or in the conviction in this case.

28. Accordingly, the appeal must be dismissed.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Tamberlin.

Associate:

Date: 10 August 2005

Counsel for the Appellant: Mr P Edmonds

Counsel for the Respondent: Mr D Morters

Solicitor for the Respondent: Director of Public Prosecutions (ACT)

Date of hearing: 15 July 2005

Date of judgment: 10 August 2005