Ah Won v Whitehouse
[2021] NTSC 56
•30 July 2021
CITATION:Ah Won v Whitehouse [2021] NTSC 56
PARTIES:AH WON, Renetta
v
WHITEHOUSE, Kathryn Grace
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:LCA 13 of 2021 (22018420)
DELIVERED: 30 July 2021
HEARING DATE: 22 July 2021
JUDGMENT OF: Hiley AJ
CATCHWORDS:
CRIME – APPEAL – Appeal from Local Court to Supreme Court – Appeal against sentence – Appeal against sentence for breach of domestic violence order – Three months’ imprisonment not manifestly excessive – Appeal dismissed
Domestic and Family Violence Act 2007 (NT) s 120
Sentencing Act 1995 (NT) s 5(1), s 5(2), s 6Bush v Lyons [2018] NTSC 20; Damaso (2002) 130 A Crim R 206; Demur v The Queen [2014] NTCCA 15; Dinsdale v The Queen (2000) 202 CLR 321; Gorey v O’Neill [2015] NTSC 66; Hedgecock v The Queen [2008] NTCCA 1; Idai v Malogorski (2011) 30 NTLR 166; Johnson v The Queen [2012] NTCCA 14; Liddy v R [2005] NTCCA 4; Manakgu v Russell [2013] NTSC 48; Noakes v The Queen [2015] NTCCA 7; Norris v Sanderson & Ors [2007] NTSC 1; Pungatji v Woodcock [2003] NTSC 31; The Queen v Morse (1979) 23 SASR 98; Veen v The Queen (No 2) (1988) 164 CLR 465, referred to
REPRESENTATION:
Counsel:
Appellant:J Stuchbery
Respondent: T Grealy
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: Hil2103
Number of pages: 16
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINAh Won v Whitehouse [2021] NTSC 56
No. LCA 13 of 2021 (22018420)
BETWEEN:
RENETTA AH WON
Appellant
AND:
KATHRYN GRACE WHITEHOUSE
Respondent
CORAM: HILEY AJ
REASONS FOR JUDGMENT
(Delivered 30 July 2021)
This is an appeal against a sentence imposed by the Local Court on 4 March 2021, for breach of a domestic violence order confirmed by the Local Court on 13 March 2020 (the DVO). The Local Court sentenced the appellant to three months’ imprisonment fully suspended on conditions, with an operational period of 12 months. The appellant contends that the sentence was manifestly excessive in that the Local Court should not have ordered imprisonment, and in any event that three months was excessive.
The DVO was what is known as a full non-contact DVO. The protected person was the appellant’s ex-partner, Gary Giumelli (GG). The DVO was to operate for the next 12 months. The DVO contained conditions restraining the appellant from directly or indirectly:
(a)approaching, contacting or remaining in the company of the protected person;
(b)approaching, entering or remaining at any place where the protected person was living, working, staying, visiting or located;
(c)causing harm or attempting or threatening to cause harm to the protected person;
(d)causing damage to property, or attempting or threatening to cause damage to property of the protected person;
(e)intimidating or harassing or verballing abusing the protected person; and
(f)stalking the protected person.
The DVO was made shortly after the appellant had committed two offences which related to GG. I shall refer to that as the March 2020 offending.
(a)The first was an assault against GG’s mother on 6 March 2020. The assault constituted a push, following which the victim fell to the ground. It appears to have been fairly minor – as is reflected in the fact that the Local Court did not enter a conviction and imposed a Good Behaviour Bond of nine months with conditions.[1]
(b)The second offence occurred the next day, when the appellant caused property damage to a car that was jointly owned by her and GG. The Local Court convicted her and imposed a Good Behaviour Bond of six months with conditions, and ordered her to pay restitution of $370.
The appellant and GG had been in a relationship since mid to late 2017. The relationship ended shortly before the March 2020 offending. On 15 April 2017, shortly prior to that relationship beginning, the appellant assaulted her previous domestic partner. I shall refer to that as the April 2017 offending.
The appellant breached the DVO on Thursday, 4 June 2020. At about 3 pm the defendant was driving around Pine Creek. GG was also driving in Pine Creek, south-east along Moule Street, with his partner. The appellant saw GG’s car and began to follow in her car in an intimidatory manner with the front of her vehicle close to GG’s vehicle. GG drove to the Pine Creek Police Station and parked on the front lawn inside the fence. The defendant parked her vehicle on the street at the front of the Police Station, got out of her car and walked towards GG’s vehicle. She attempted to open the front passenger side door while yelling “come out you fucking slut” at GG’s partner. Two police officers inside the station had seen GG enter the compound and park on the front lawn. They went outside as GG was walking hurriedly towards the front entrance of the police station. The appellant stood on the front lawn and yelled abuse at GG calling him a “paedophile prick”. The police arrested the appellant, and while she was being walked to the cells she yelled at GG: “You’re gonna get bashed for that. You and your woman.”
The appellant pleaded guilty, on 4 March 2021, to breaching the domestic violence order, contrary to s 120 of the Domestic and Family Violence Act 2007 (NT). The maximum penalty for that offence is imprisonment for two years. After hearing the plea and submissions from counsel the Local Court judge convicted the appellant and sentenced her to three months’ imprisonment, backdated by one day to reflect time already served when she was arrested. He suspended the sentence forthwith on conditions that she comply with the DVO and commit no further offences. He fixed an operational period of 12 months.
By notice of appeal filed on 18 March 2021 the appellant contends that the sentence was manifestly excessive. During argument counsel for the appellant asserted a number of specific errors and contended that the sentencing judge “erred in concluding that the competing principles and considerations in s 5(1) & (2) of the Sentencing Act mandated the imposition of a term of imprisonment.” This contention, and a number of other contentions, relate to the emphasis or lack of emphasis apparent from some of the judge’s sentencing remarks, which are said to have infected the sentence. Ultimately however, the appeal turns upon the manifest excessive ground.
The weight to be given to the competing sentencing considerations is, by and large, a discretionary matter for a sentencing judge. As the Court of Criminal Appeal observed in Johnson v The Queen[2] at [25]:
Where the ground of appeal is that the sentencing judge failed to give sufficient weight to particular factors (as the appellant asserts here), in contrast to a ground asserting that the sentencing judge disregarded a factor altogether or took an irrelevant factor into consideration, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error.
The principles governing manifest excess appeals are well known. Manifest excess (like manifest inadequacy) is a conclusion that does not depend upon the identification of specific error. In order to be manifestly excessive, it is necessary for the excess to be 'clearly' or 'plainly' apparent. Put another way, the sentence must be unreasonable or 'plainly unjust'.[3] As the Court of Criminal Appeal has regularly observed, asserted failure by a sentencing judge to afford weight (or to afford "sufficient" weight) to an ordinary sentencing principle is best pleaded as a particular of a ground of manifest excess.[4] When determining whether a sentence is manifestly excessive an appellate court will have regard to the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to that kind of offending, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[5]
In the course of submissions before the Local Court counsel for the appellant stressed a number of matters, including that:
(a)The relationship between the appellant and GG had been “very toxic” and that the appellant had previously been the victim of violence occasioned against her by GG. However, there was no suggestion that any of her offending was related to any violence on the part of GG.
(b)The offending was spontaneous and impulsive: when she saw GG driving with his new partner she was overwhelmed by feelings of frustration and anger.
(c)During the nine months or so since the offending, the appellant had taken significant steps to remove herself from the proximity of GG and moved to Borroloola and obtained employment which changes had significantly improved her mental health.
(d)Accordingly, her prospects of rehabilitation were excellent.
The judge accepted that the appellant appeared to have turned a corner and moved on, and is no longer in contact with GG. He also referred to a number of character references, some of which demonstrated a history of some employment and some of which were critical of GG’s conduct towards the appellant. He noted that she had no criminal history before she was 41 years of age when she offended in April 2017, and that she had six children.
In relation to the April 2017 offending the judge said he had little information about that and that he would not be drawing any inference other than to say that it must have been at the lowest end of an aggravated assault, because she was released on a good behaviour bond for a period of six months. He then proceeded to discuss the March 2020 offending. He then said:
What I am seeing is that, for a period of the past 3 years, we have an ongoing domestic related loss of control on the part of the defendant, leading to her acting out in a violent fashion, not an extremely violent fashion, except, perhaps, with the car because that involved having to pay a restitution of $370.
His Honour then referred to the June 2020 offending, noting that it occurred only three months after the March 2020 offending and after the DVO was made. He said:
Then, on 4 June – so, less than 3 months later – we have the present offending and, although I accept that it started out as impulsive, where the defendant was driving in Pine Creek and she saw the protected person driving around in Pine Creek, and she decided to follow him and tailgate him. Now, this is extremely aggressive behaviour and it’s potentially going to lead to violence, and plainly so. It didn’t in this case, but the lack of its leading to violence doesn’t appear to be because of any restraint shown by the defendant.
His Honour summarised the facts including that after GG had got out of the car to enter the police station, the appellant attempted to open the car passenger door to speak with GG’s partner and in some way interact with her, but couldn’t because the car was locked. He then referred to “the thoroughly unpleasant verbal interactions” that followed, even after she was arrested. His Honour then said:
This is an extended, ongoing, contravention of the domestic violence order. It is done in blatant disregard of the public nature of her performance, [and] of the fact that the police were present. She was out of control.
He said that he did not know the nature of the relationship, including whether GG treated her badly and wrongly, but that “even if he did, it doesn’t justify this sort of behaviour.” He said that he was satisfied that a sentence of imprisonment was required, noted that the maximum penalty is two years, and said that “this type of contravention is towards the more serious end.” He adopted a starting point of six months’ imprisonment, which he then reduced to three months on account of the early plea and for other factors including her rehabilitation.
The main contentions advanced on behalf the appellant were that the judge failed to properly take into account the context in which the offending occurred and was wrong to reject defence counsel’s contention that her offending was impulsive, and that the judge was wrong to say that there had been “an ongoing domestic related loss of control on the part of the defendant” “for a period of the past three years”. Counsel referred to some of the earlier dialogue between the judge and defence counsel during submissions, including his Honour’s comments that:
(a)“there is nothing impulsive about most of this offending”;
(b)“your client’s history and the circumstances of this offending show a very concerning tendency to resort to violence and to completely ignore court orders”; and
(c)“I also look at the prior history which is of three acts of violence”, the first of which was the April 2017 offending.
I agree with the judge’s rejection of the offending being described as spontaneous or impulsive. Accepting that the appellant may have been very upset when she saw GG driving around town with his new partner, the appellant made a number of deliberate decisions which involved aggressive conduct on her part directed at GG and his partner. Not only did she follow GG’s vehicle but tailgated him, followed him all the way to the police station, got out of her car and approached GG’s vehicle, attempted to open the locked passenger door, and used abusive language including threats to have GG and his partner bashed. Her conduct after starting to chase GG in his vehicle cannot be described as spontaneous or impulsive.
In relation to the references to the appellant’s April 2017 offending, I agree that it would have been wrong to place much weight on that in suggesting that there had been “an ongoing domestic-related loss of control on the part of the defendant” “for a period of the past 3 years.” However, I note that his Honour made that comment in the context of her property offending on 7 March, not in relation to her breach of the DVO some three months later. Having said that, his Honour was entitled, indeed required, to take the April 2017 offending into account in the sentencing process, involving as it did her committing an aggravated assault on her previous domestic partner. But he did say that he had not been provided with the background to that offending, and that he would “not draw any inference, other than to say the offending must have been at the lowest end of an aggravated assault.”
I do not cavil with the judge’s conclusion that “this type of offending is towards the more serious end.” The appellant breached nearly all of the six conditions of the DVO, by deliberately tailgating GG’s car and following him to the police station, then getting out and engaging in threatening conduct also directed at GG’s partner. She continued to engage in abuse of GG and his partner and threatening behaviour towards them, even after the police had intervened and arrested her. Her conduct also featured some of the aggravating factors set out in s 6A of the Sentencing Act 1995 (NT). She used her vehicle as a weapon to menace GG and his partner, tailgated his vehicle on a public street apparently without regard to the safety of any other road users, and involved threats of violence, and more than one victim. I infer that her aggressive driving was such as to cause GG to drive to the police station for sanctuary. However, her conduct was not as serious as it would have been had she actually caused physical harm to anyone.
In Norris v Sanderson & Ors[6] Riley J referred to the importance of the Domestic Violence Act and orders made thereunder. At [33], he said:
The Domestic Violence Act is important social legislation, the success of which to a large extent depends upon compliance with the orders for which it provides. Breaches of domestic violence orders tend to undermine the very purpose for which the legislation exists. The legislation is designed to confront and deal with a serious problem in the Northern Territory and orders made under the legislation are not to be treated as being able to be ignored at the whim of either the person who is the subject of the order or any person it is designed to protect... It is essential to the operation of the Act that those who seek protection under its terms have confidence that restraining orders made are backed by penalties that will be applied in the event of a breach. Likewise those who may be subject of a restraining order must know that a failure to comply with the terms of the order will lead to a sanction. Issues of personal and general deterrence are of importance when a breach occurs and a person is before the court for sentence.
In Manakgu v Russell[7] Barr J noted that the range of conduct capable of constituting a breach of the condition of a domestic violence order was broad. His Honour observed (at [13]-[14]):
Objective seriousness would normally be considered relative to the various behaviours on the part of the offender which were the subject of restraint under the DVO and relative to the serious kinds of conduct which could constitute a DVO contravention.
…
A magistrate may properly reason that the maximum penalty and indeed the higher range of penalties would apply in the case of physical assaults as well as more serious instances of offensive, intimidating, threatening, harassing and demeaning conduct.
In addition to considering the objective seriousness of the offending, it is also necessary to consider the extent to which the offending represented a contemptuous response to the court ordered DVO. Per Barr J in Manakgu, at [17]:
In general, the more egregious the conduct in terms of causing harm or fear of harm to the protected person, the greater the probable degree of contempt for the court’s order or orders. However, other relevant considerations include how soon the breach has occurred after the making of the court’s order. Even a relatively minor breach occurring the day of or shortly after the court’s order might be regarded as serious. Each breach will depend on its own facts.
As his Honour noted, at the time of the breach the appellant was less than three months into the 12 month DVO. Perhaps more importantly, the appellant’s conduct involved serious breaches of the DVO, some of which took place in the presence of police officers. Such flagrant breaches at a police station, despite police intervention, demonstrates the appellant’s genuine contempt for the terms of the order at that time.
Although this was the appellant’s first breach of a domestic violence order, it was a serious breach that warranted more than another good behaviour bond or a fine. A community work order was not available because of her personal circumstances. Counsel for the appellant contended that the entry of a conviction would have been sufficient punishment. I disagree.
In particular, principles of general deterrence required more than this. Regrettably, breaches of domestic violence orders are prevalent. “Any breach of such an order shakes the confidence not only of the direct victim, but also of the wider community, in the efficacy of such orders.”[8] Other sentencing principles such as denunciation, personal deterrence, protection of the community, punishment and rehabilitation also had roles to play. The judge must have thought that the appellant had reasonable prospects of rehabilitation and was unlikely to re-offend. He allowed a significant reduction (50%) in her penalty to take into account her early plea and “other factors as to rehabilitation”. I agree that his Honour seems to have decided to impose a head sentence which reflected both the objective seriousness of the offending and the matters in mitigation personal to the appellant.
As to those matters his Honour was correct to have regard to the appellant’s criminal history which involved three prior offences of aggravated assault directed at her domestic partner and or a person associated with her domestic partner. Although each of that offending might be characterised as relatively minor, it suggests that the current offending was not “an uncharacteristic aberration”.[9]
His Honour also took into account other matters in mitigation including that she appears to have turned a corner and moved on, noting that she had been employed for some six months since the March 2020 offending and had accepted that her relationship with GG was over. He also took into account the absence of any criminal history prior to April 2017 and that the three assaults in her criminal history must have been relatively minor. That his Honour gave appropriate weight to matters in mitigation is also evident from the way in which he structured the sentence, enabling the appellant to remain in the community and in her employment and continue to rehabilitate.
In Manakgu, Barr J found that a sentence of three months’ imprisonment for a breach of a domestic violence order in that matter was manifestly excessive. The offending in that matter was far less serious than the offending here. The appellant had been subject to a non-contact whilst intoxicated domestic violence order. He had breached that order by attending the doorway of the protected person’s home to pick up his dinner. It was a “situational” breach, in so far as no harm or fear was caused to the protected person.[10] Barr J considered that that offending fell at the low end of the scale of seriousness. However, his Honour held, in that case, that:[11]
… a sentence of an actual term of imprisonment was and remains appropriate to make clear to the appellant and the community that any material breach of a court order will be acted upon and punished as appropriate; and also (given the appellant’s offending history) for reasons of specific deterrence.
I agree with counsel for the respondent that the appellant’s offending in the present matter was not at the low end of the scale of seriousness. It follows that a far more serious breach would similarly attract a term of actual imprisonment.
In Bush v Lyons,[12] Grant CJ considered a schedule of Supreme Court sentences for breaches of domestic violence orders and found that they suggest “sentences to imprisonment for three months and more are generally imposed in cases involving aggravating factors such as abuse, threats and violent behaviours”.[13] In that case, for a “situational” breach, the Court held that four months’ imprisonment was manifestly excessive. Counsel for the respondent contends that, similarly, the current matter plainly falls into the category of a breach aggravated by abuse, threats and violent behaviour (though not an assault).
Even for “situational” breaches, the Court has previously held that a starting point of four months’ imprisonment, while towards the high end of the range for the contravention, was not outside the bounds of a sound sentencing discretion.[14] In that case, Barr J gave particular consideration to the preventative / protective role of the domestic violence order. In the present case, where the appellant and GG’s relationship had involved violence, and the appellant had previously demonstrated difficulty controlling her anger, the protective role of the non-contact domestic violence order was also an important factor.
In my view, a term of imprisonment was clearly warranted and not so excessive as to manifest error. Moreover, a term of three months was not so excessive.
The appeal is dismissed.
-------------------------------
[1] The appellant was sentenced for both offences on 2 November 2020.
[2] Johnson v The Queen [2012] NTCCA 14.
[3] Demur v The Queen [2014] NTCCA 15 at [5] (Riley CJ, Blokland and Hiley JJ); Dinsdale v The Queen (2000) 202 CLR 321 at [6]; Liddy v R [2005] NTCCA 4 at [12].
[4] See Noakes v The Queen [2015] NTCCA 7 at [15].
[5] The Queen v Morse (1979) 23 SASR 98 at p 99, adopted by the Court of Criminal Appeal of the Northern Territory in Hedgecock v The Queen [2008] NTCCA 1 at [9] and Damaso (2002) 130 A Crim R 206 at [47].
[6] Norris v Sanderson & Ors [2007] NTSC 1 ("Norris").
[7] Manakgu v Russell [2013] NTSC 48 ("Manakgu").
[8] See Pungatji v Woodcock [2003] NTSC 31 at [13]; cited with approval in Norris v Sanderson [2007] NTSC 1 at [33].
[9] Idai v Malogorski (2011) 30 NTLR 166 at [41], citing Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.
[10] Manakgu v Russell [2013] NTSC 48 at [16].
[11] Manakgu v Russell [2013] NTSC 48 at [23]; the appellant had two prior convictions for breaching DVOs, one six years earlier and the other four years earlier.
[12] Bush v Lyons [2018] NTSC 20.
[13] Ibid at [34].
[14] Gorey v O’Neill [2015] NTSC 66 at [32].
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