Citation: Regina v Allison Kay Mallott; Regina v Tania Maree Mallott [2001] NSWCCA 453
Court: NSW Court of Criminal Appeal
Date: 10 September 2001
Judge(s): Sully J; Carruthers AJ
Background
Two sisters were each sentenced in the Goulburn District Court by Twigg DCJ to 18 months' imprisonment, with a non-parole period of nine months, following conviction for assault occasioning actual bodily harm under s 59 of the Crimes Act 1900 (NSW). The assault arose from a domestic-type dispute and resulted in injuries including facial swelling, bruising, and scratches to the victim's face and neck.
Both applicants sought leave to appeal against the severity of their sentences. The appeals were heard together given the closely related circumstances of the two offenders.
Legal Issues
- Whether the sentencing judge was entitled to find that the assault had caused the injuries attributed to it
- Whether fresh affidavit material placed before the Court of Criminal Appeal on the day of the hearing justified a variation of the sentences
- Whether the sentencing discretion under s 12 of the Crimes (Sentencing Procedure) Act 1999 (permitting suspension of a sentence of imprisonment) should be exercised in these circumstances
Decision
The applicants' first argument, that the sentencing judge was not entitled to find the injuries were caused by the assault, failed. Sully J viewed the coloured photographs in evidence before the original court and was not persuaded that any error had been established on this point.
The second argument, however, carried the day. Fresh affidavit material was placed before the Court on the morning of the hearing disclosing concerns about the practical arrangements that would arise from the full-time detention of both applicants. Sully J described this material as "deeply troubling" and sufficient to warrant a different sentencing outcome, provided justice could still be served.
Sully J emphasised that assaults of this kind remain serious breaches of public order and are not to be treated lightly. The original sentencing judge was entitled to take a severe view. Sully J declined to reduce the overall quantum of the sentence from 18 months, accepting that the approach at first instance was appropriate in principle.
Nevertheless, the Court found that the circumstances, including the absence of long-term harm to the victim, the domestic context of the offence, and the apparent resolution of the underlying dispute between all parties, made it appropriate to suspend the sentence. A term of 17 months' imprisonment was substituted and immediately suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, with a good behaviour bond imposed in lieu of full-time custody.
Orders Made
- Leave to appeal granted in each case
- Appeals allowed and sentences imposed in the District Court quashed
- Each applicant sentenced to 17 months' imprisonment, commencing 10 September 2001 and expiring 9 February 2003
- Sentences suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 for the 17-month term
- Each applicant directed to enter a good behaviour bond for the duration, requiring good behaviour, reporting to the relevant Probation and Parole Service office within 24 hours, and compliance with all lawful directions of that Service
Key Takeaways
- Assault occasioning actual bodily harm under s 59 of the Crimes Act 1900 (NSW) carries a maximum of five years' imprisonment, and sentencing courts are entitled to take a serious view of such offending even in a domestic context.
- Fresh affidavit material relating to the practicalities of full-time detention, placed before the Court of Criminal Appeal on the day of hearing, can constitute a basis for reconsidering the form of a sentence even where the quantum is not disturbed.
- Under s 12 of the Crimes (Sentencing Procedure) Act 1999, a court may suspend a sentence of imprisonment and substitute a good behaviour bond, a mechanism the Court of Criminal Appeal found appropriate here given the specific circumstances of two co-offenders.
- In dismissing the challenge to the factual findings about injury, the Court confirmed that photographic evidence properly before the sentencing judge provided an adequate basis for the findings made.
- Relevant mitigating factors identified by the Court included the absence of long-term harm, the tawdry domestic context of the offence, and the genuine resolution of the dispute between all parties concerned, including the victim.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 59 (assault occasioning actual bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspension of sentences); s 95(a) and (b)(ii) (standard bond conditions)
Cases cited: No cases were cited in the judgment.