Sheals v Fisher [2009] ACTSC 101 (14 August 2009)

Last Updated: 22 September 2009

SAMUEL JOSEPH SHEALS v DANIEL JAMES FISHER
[2009] ACTSC 101 (14 August 2009)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 100 of 2008

Judge: Higgins CJ
Supreme Court of the ACT
Date: 14 August 2009

IN THE SUPREME COURT OF THE )
) No. SCA 100 of 2008
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: SAMUEL JOSEPH SHEALS

Appellant

AND: DANIEL JAMES FISHER

Respondent

ORDER

Judge: Higgins CJ
Date: 14 August 2009
Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld and the appellant be resentenced.

1. I have to say this is not an easy case. In most other circumstances I would say, even absent the information which I have before me, subsequent to the lodging of the appeal, her Honour’s response was quite appropriate. In fact, it might even have been regarded in the circumstances as somewhat lenient.
2. I have to say that if I was faced with a person in different physical circumstances, perhaps a younger person in respect both of the victim and the perpetrator, then I would have thought a period of 6 months to serve would be quite appropriate for the assault which was occasioned by Mr Sheals on his wife. Her Honour was persuaded to ameliorate that to a 6 month sentence suspended as to three months of it.
3. That is the penalty which is the subject of the appeal. Whilst that might have been appropriate at the time there is the further evidence which has now been given. Her Honour did not have before her the full picture of the health position of not only Mr Sheals, but more particularly Mrs Sheals. She did not have the further evidence that I have heard from Mrs Sheals, which does seem to indicate to me that the situation has somewhat deteriorated.
4. It may be that her Honour would have been persuaded, had she had that further information, that the primary problem was the fact that Mr Sheals in particular, but perhaps also Mrs Sheals, drank to excess on occasions. It was some of those occasions which gave rise to violence.
5. As I say, it is not an easy situation. It is more complicated plainly by the fact that both Mr Sheals and Mrs Sheals are relatively advanced in years. Being almost Mrs Sheals’s age myself, I hesitate to say anything more about that. Nevertheless, it is appalling that we have to deal with a situation where a man, then of 68, is charged with assaulting his wife of just a few years younger. That is just an appalling situation.
6. As an appallingly difficult situation for the courts and anyone else to deal with, you have to ask, why is it so? Regrettably in this case, there seems to be an answer of only two words: intoxicating liquor. Naturally you then go to the question, what is the appropriate punishment to be meted over to Mr Sheals for his appalling conduct? And, how can it be avoided in the future?
7. In that context one has to ask what is the appropriate response? How does one take account of the difficult personal situations of Mister and Mrs Sheals? Notwithstanding what Mr Hickey has put which I understand and accept in principle, the only answer I can come to, is that it does seem that sending Mr Sheals to prison for three months is probably counterproductive at a number of levels. Not the least of which is the likely effect that would have on Mrs Sheals’ various medical conditions. The interests of the 14-year-old grandson are to some extent relevant, perhaps not entirely so though.
8. It does seem to me that on Mrs Sheals’ evidence there is not much of a practicable alternative to Mr Sheals being her primary care supervisor. I understand the kind of conditions Mrs Sheals has can lead to a situation that needs fairly prompt action. Not all the time, and perhaps not more than every month or so, but nevertheless management of her conditions may require a prompt action. It does seem to me, that it would place her at unnecessary risk to let the sentence now imposed stand.
9. In addition to that it does seem that Mr Sheals has, at least, obeyed previous court orders requiring supervision and his abstinence from any offending conduct. That is something. As a result, having regard to the additional evidence, what I am inclined to do in this case is to uphold the appeal to this extent, that rather than suspending the sentence after three months, I suspend the sentence forthwith, upon Mr Sheals’ entering into a good behaviour order.
10. That order will require that he be of good behaviour for a period of five years from today. The conditions of the order will be quite similar to the conditions previously imposed, namely that he subject himself to the supervision of Corrective Services. He is to obey reasonable directions of the Executive Director of Corrective Services, or such person or persons as the Executive Director appoints, particularly in relation to anger management, but more importantly the issue of alcohol consumption, and any other matter that Corrective Services think appropriate during that period of five years.
11. A further condition will be that, during that period of five years, you abstain from the use of intoxicating liquor. In addition you may be required to submit from time to time by Corrective Services to such breath or blood analysis as may be required to ensure that condition is being maintained.
12. One hopes that by the end of that time, Mr Sheals, you will have learnt to live without alcohol and will be able to manage your relationship without the need for violence.
13. All right, Mr Sheals, what I am going to do now is say to you this, you will understand the reasons why I have changed the sentence that was imposed upon you. What I want you to do now is, once you enter into the good behaviour order that I have imposed, go over to Corrective Services and arrange for the ongoing supervision that they may require. Do you understand that? You may be seated.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 24 August 2009

Counsel for the Appellant: Mr T Crispin
Solicitor for the Appellant: S & T Lawyers
Counsel for the 1st and 2nd Respondents: Mr T Hickey
Solicitor for the 1st and 2nd Respondents: Director of Public Prosecutions for the ACT
Date of hearing: 2 July 2009 and 14 August 2009
Date of judgment: 14 August 2009