Clark v Wyatt

[2002] WASCA 85

CLARK -v- WYATT [2002] WASCA 85

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 85
Case No:	SJA:1002/2002	Heard:	4 APRIL 2002
Coram:	WHEELER J	Delivered:	18/04/02
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	B
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Parties:	STEPHEN JOSEPH CLARK ROBERT BRUCE WYATT
Catchwords:	Turns on own facts
Legislation:	Nil
Case References:	Hezam bin Badron v The Queen, unreported; CCA SCt of WA; Library No 990099; 4 March 1999 Casserly v The Queen, unreported; SCt of WA (Scott J); Library No 990164; 31 March 1999 Cramer v The Queen, unreported; CCA SCt of WA; Library No 980620; 28 October 1998 Hinchliffe v The Queen [2001] WASCA 15

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : CLARK -v- WYATT [2002] WASCA 85 CORAM : WHEELER J HEARD : 4 APRIL 2002 DELIVERED : 18 APRIL 2002 FILE NO/S : SJA 1002 of 2002 BETWEEN : STEPHEN JOSEPH CLARK

Appellant

AND

ROBERT BRUCE WYATT
Respondent

Catchwords:

Turns on own facts

Legislation:

Nil

Result:

Appeal allowed

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Category: B

Representation:

Counsel:

Appellant : Mr J W M Foulsham
Respondent : Mr T M Andrews

Solicitors:

Appellant : State Director of Public Prosecutions
Respondent : Mark Andrews & Associates

Case(s) referred to in judgment(s):

Hezam bin Badron v The Queen, unreported; CCA SCt of WA; Library No 990099; 4 March 1999

Case(s) also cited:

Casserly v The Queen, unreported; SCt of WA (Scott J); Library No 990164; 31 March 1999
Cramer v The Queen, unreported; CCA SCt of WA; Library No 980620; 28 October 1998
Hinchliffe v The Queen [2001] WASCA 15

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1 WHEELER J: The respondent was convicted on his own plea of guilty on 19 December 2001 of unlawfully threatening Catherine Maree Wyatt and of unlawfully assaulting Catherine Maree Wyatt thereby doing her bodily harm. His Worship imposed a "global fine" of $100. The appellant concedes that a non-custodial disposition was open to his Worship, while the respondent in turn concedes that a fine of $100 did not adequately reflect the seriousness of the offences and that in any event, a "global penalty" should not have been imposed as a matter of principle. There is therefore little need to go into too much detail of the facts or of the relevant principles. However, I propose to make a number of brief observations, since there are features of this hearing which appear to me to be most undesirable.

2 The first thing which should be noted is that immediately upon the pleas of guilty being announced, his Worship then asked counsel for the respondent whether he was aware of the Family Violence Court. Some brief discussion followed in relation to that matter. Then his Worship asked whether there was any record and asked the question "And I take it his antecedents wouldn't be sufficient whereby the court could grant him a spent conviction?". The reference to a spent conviction, in particular, suggests that his Worship had taken the view that the offences were not of a serious nature. However, at that stage his Worship had no information whatever about the circumstances of the offences, save that one might infer from the names of the complainant and the respondent that it was probable that they were married to each other. Since this Court has often observed that "domestic violence to any significant degree will ordinarily require condign punishment" (Hezam bin Badron v The Queen, unreported; CCA SCt of WA; Library No 990099; 4 March 1999 at 4), the assumption that the offence was likely to be appropriate for a spent conviction order reveals an erroneous approach to offences of domestic violence generally.

3 The prosecutor then alleged that the facts were that over the few days preceding the offence both the complainant and the respondent had come to the realisation that their marriage had "broken down". They agreed that they would stay at the family home but would sleep in separate rooms. At about 10.30 pm the respondent entered the bedroom where the complainant was sleeping and twisted her arm, waking her. After some 15 minutes or so of conversation the respondent asked the complainant if he could sleep with her for one last time. The complainant refused, and the respondent then said to her that he was going to do something bad to her so that he would know why she was leaving him. He threatened to rape her. She was frightened and offered to leave the house. She

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attempted to get out of bed but the respondent grabbed her around the throat and forced her back onto the bed. He straddled her and tried to choke her. She struggled violently, broke free and ran to the front door in order to activate the duress alarm. She was not able to do so but did manage to put the house lights on. The respondent believed that she had called the police and shortly thereafter he left the residence.

4 It is clear that on this version of the facts the offence was a very serious one. It was a case in which there was an assault in which the respondent overpowered the complainant and attempted to choke her and it was an assault from which she only managed to break free after a struggle. An assault of that kind might well require a sentence of imprisonment.

5 However, the version of the facts put forward on behalf of the respondent was distinctly different. So far as the background was concerned, rather than there being a mutual understanding that the marriage was over, he suggested that she had in the short period leading up to the offences told him that the marriage was over and that this had come as a great shock to him. It was his assertion that, on the day of the offences, he had again urged her to attend counselling with him but that she had refused. He said that he went to the master bedroom that night in order to try to talk to her further; there is no explicit rejection of the suggestion that he twisted her arm, but the general tenor of the submission on his behalf suggests that that was not the case. He asserted that while he was trying to talk to her about the matter she told him to "fuck off out of the house" and that he then made the threat alleged, not intending to carry it out, but having lost his temper. He said he did grab her around the throat and push her back to the bed, but he denied trying to straddle her and asserted that as soon as she yelled out he immediately desisted, apologised for his actions, and offered to leave the house.

6 On the version of the facts put forward on behalf of the respondent, the respondent was under considerable emotional stress, made a threat which was serious but which was not intended to be carried out, and committed an assault which was brief in its duration and from he immediately desisted. In those circumstances, it would not be appropriate to impose a sentence of imprisonment.

7 His Worship did not call upon the prosecutor at the completion of the submissions on behalf of the respondent. This was unfortunate. Although the Court of Petty Sessions is a busy court, it is important that significant factual disputes which may have a substantial impact on sentence should

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not be allowed to pass without any explicit resolution. The prosecutor should have been afforded the opportunity to seek a trial of issue if he thought it important. Of course, it would have been open to the prosecutor to rise and to inform his Worship that the version of the facts put on behalf of the respondent was not accepted. This was not done.

8 Before me, there were some submissions made on behalf of the appellant which relied upon portions of the facts as read by the prosecutor and which were not accepted by the respondent before his Worship. The grounds of appeal do not, however, complain of his Worship's failure to have a trial of issues, and one can see why such a ground would not be easily sustained, having regard to the fact that such a trial was not sought by the prosecutor. In those circumstances, the only course open to me is to accept the version of events put forward on behalf of the respondent, which was apparently accepted by his Worship.

9 In sentencing, his Worship observed that there was an element of what could be described as "social provocation" as opposed to legal provocation, and also appeared to regard it as relevant that the respondent had conceded that there should be a violence restraining order against him. Although it was argued before me that the latter factor was irrelevant, it was in my view open to his Worship to see that as a factor which might support the assertion that the respondent was remorseful and desired to reassure the complainant that he was not a threat to her. The reference to "social provocation" appears to me to be a misdescription. It is not clear to me what part of the complainant's behaviour could be described as provocation of any kind. However, one can readily accept that a sudden announcement that his marriage was over would have caused the respondent a degree of emotional stress, and that it would be open to his Worship to accept that the conduct engaged in was therefore conduct which was out of character but was produced under the effect of that emotional stress.

10 The maximum penalty open in relation to the assault charge was a fine of up to $8,000 or imprisonment for two years, while a penalty of up to $6,000 or imprisonment for 18 months was available in relation to the threats.

11 Accepting, as it seems to me that it is necessary for me to do, that the threat was uttered impulsively and without an intent to carry it out, whilst under considerable emotional stress, I would impose a penalty of $300 in relation to the threat. The assault I regard as a more serious matter. Even if one accepts that it was brief and was immediately abandoned,

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nevertheless it involved grabbing the complainant in a particularly vulnerable part of the body – the throat – and doing so with sufficient force to force her down upon the bed. It took place at night, in her own home, in a place where people would particularly expect to be able to feel secure. In my view the appropriate penalty for that offence is one of $1,000, so that the total fine will be one of $1,300.