Anzac v Flynn
[2019] NTSC 8
•6 February 2019
CITATION:Anzac v Flynn & Anor [2019] NTSC 8
PARTIES:ANZAC, Marcus
v
FLYNN, Steven and RIGBY, Kerry
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 55 of 2018 (21809394) and LCA 56 of 2018 (21829659)
DELIVERED: 6 February 2019
HEARING DATES: 27 November 2018, 16 and 31 January 2019
JUDGMENT OF: Barr J
CATCHWORDS:
CRIMINAL LAW – APPEAL – Failure of appellant to institute appeal within time – power of the Supreme Court to dispense with compliance with condition precedent to right of appeal – relevant considerations – applicant did what was reasonably practicable in the circumstances – order made dispensing with compliance.
CRIMINAL LAW – APPEAL – SENTENCE – Grounds of manifest excess and failing to apply totality principle not made out – appeal dismissed.
Local Court (Criminal Procedure) Act 1928 (NT) s 165, s 171(1), s 172(1), s 172(3)
Mill v The Queen (1988) 166 CLR 59, applied
Federal Commissioner of Taxation v Arnhem Aircraft Engineering Pty Ltd (1987) 47 NTR 8; Fry v Williams (1985) 2 NTJ 396; Lawrie v Stokes (1951) NTJ 65; Pushenjack v Owens (1972) 20 FLR 190; Nottle v Trenerry (1993) 3 NTLR 68; Swann v Mosel [2014] NTSC 43, referred to.
REPRESENTATION:
Counsel:
Appellant:D Zajd
Respondents:T Grealy
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondents:Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Bar1902
Number of pages: 18
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINAnzac v Rigby & Anor [2019] NTSC 8
No. LCA 55 of 2018 (21809394) and LCA 56 of 2018 (21829659)
BETWEEN:
MARCUS ANZAC
Appellant
AND:
STEVEN FLYNN and KERRY RIGBY
Respondents
CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 6 February 2019)
Introduction
Marcus Anzac appeals against the severity of sentences imposed by a judge of the Local Court on 2 August 2018. The appeals are complicated by the fact that they were not instituted within the time prescribed by s 171(2) Local Court (Criminal Procedure) Act (“the Act’).
Under the Act, an appeal must be instituted within 28 days from the time of the conviction or sentencing order sought to be appealed.[1]
An appeal is instituted by a combination of (1) filing a written notice of appeal, which must be served upon the respondent,[2] and (2) payment of the prescribed fee.[3]
In the present case, the notices of appeal were filed on 5 September 2018, which was already six days outside the 28-day statutory period, and were then not served until 9 October 2018.
Satisfaction of the requirement of s 171(2) Local Court (Criminal Procedure) Act – that an appeal must be instituted within 28 days from the time of the relevant conviction, order or adjudication appealed against – has been held for many years to be a ‘condition precedent’ to the right of appeal.[4] In the present case, conditions precedent to the valid institution of the appeal were not satisfied.
Failure to comply with a condition precedent deprives the Supreme Court of jurisdiction unless the non-compliance is dispensed with under s 165 Local Court (Criminal Procedure) Act in favour of an intending appellant. The section reads as follows:-
The Supreme Court may dispense with compliance with any condition precedent to the right of appeal, as prescribed by this Act, if, in its opinion, the appellant has done whatever is reasonably practicable to comply with this Act.
Counsel for the appellant contends that his client did what was reasonably practicable on his part to comply with the Act, in that he instructed his lawyers to institute an appeal, and then left in their hands. Any subsequent failures should be attributed to the lawyers employed or engaged by the North Australian Aboriginal Justice Agency, and not to the appellant.
In Nottle v Trenerry,[5] Mildren J referred to the situation where an incarcerated intending appellant had instructed a solicitor to appeal against sentence, but where the appeal had not been lodged in time because of a communication breakdown within the office of the solicitor. His Honour made the following statement:
… The appellant’s solicitors, and not the appellant, were therefore at fault. In cases such as this, where the appellant is in custody and can do little more than trust an apparently competent solicitor to do that which was necessary to put his appeal on foot, and where the instructions to appeal were given in ample time for the solicitors to comply with the provisions of the Act, it is well established that the appellant has done all that is reasonably practicable by him to comply with the provisions of the Act and that accordingly it is appropriate to make an order, pursuant to s 165, dispensing with compliance with the condition precedent imposed by s 171(2) that the appeal should be instituted within 28 days.
When the appeal first came on for hearing, on 27 November 2018, there was no direct evidence that the appellant had given his lawyers instructions to appeal. The appellant relied on the evidence of Patrick Coleridge, contained in an affidavit affirmed 5 September 2018. The relevant paragraphs were as follows:
6. For three weeks in early August 2018 NAAJA contracted a barrister and former employee, Beth Morrisroe, to provide legal services to its clients on a locum basis.
7. On 7 August 2018 I was copied to an email from Beth Morrisroe enquiring about a grant of aid for an appeal from sentence for Marcus Anzac on files 21809394 and 21809659. The date of sentence was 2 August 2018 and, it followed, the expiration of the time for filing of an appeal under s 163 was, pursuant to s 171 of the Local Court (Criminal Procedure) Act, 30 August 2018.
8. In addition to providing information regarding the merits of the appeal, Ms Morrisroe noted in her email that following the sentence she had discussed the prospective appeal with Mr Anzac and sought his instructions to seek a grant of aid from the Panel for an appeal. Having done everything that was, in my view, required of her, Ms Morrisroe then provided the file to NAAJA’s management for action as she was to transition from the adult criminal practice to the youth criminal practice.
With reference to the extracted par 8, it would appear that Ms Morrisroe had discussed the prospective appeal with Mr Anzac and sought his instructions to seek a grant of aid for an appeal. There was no evidence that Mr Anzac had actually given Ms Morrisroe instructions to appeal.
The email referred to by Mr Coleridge in the extracted par 7 and which was said to contain an enquiry about a grant of aid for an appeal was subsequently tendered, in redacted form. The email was from Ms Morrisroe to four senior lawyers employed by the North Australian Aboriginal Justice Agency (“NAAJA”). The date of the email was 7 August 2018. The subject identified at the head of the email was “Marcus Anzac – Possible Sentence Appeal”. Towards the end of the email, Ms Morrisroe set out the total effective sentence of imprisonment, before and after suspension, and then wrote:
This screams manifest excess to me. But I’ve be (sic) out of the jurisdiction for a while. I told Marcus I would contact all of you and that someone would let him know if we could appeal. Perhaps he could be booked into the next prison clinic (is that still a thing?).
An affidavit sworn by Ms Morrisroe on 12 December 2018 set out details of her discussions with the appellant after sentencing in the Local Court. The following is a summary of the relevant parts of that affidavit.[6] Immediately after the appellant had been sentenced, Ms Morrisroe spoke with him in the Local Court cells in relation to the sentence. Based on her past experience working for NAAJA in 2016, she had formed the view that the sentence was severe. She discussed that view with the appellant. She informed him that she was a locum, and that she “could not guarantee what NAAJA may or may not be able to do about the sentence.” She told him that she would speak with senior NAAJA staff and that a NAAJA lawyer would be in touch with him about both his prospects of appeal and whether or not aid would be granted.
After sending the email referred to in [11], Ms Morrisroe had the understanding “that senior staff would assess prospects of appeal and provide advice to Mr Anzac who could then make an informed decision about whether or not to lodge a notice of appeal.”[7]
I infer from the evidence of Ms Morrisroe that she did understand or believe that she had received instructions from Mr Anzac to appeal the sentence. My inference is based on that fact that Ms Morrisroe does not refer to having received such instructions. Indeed, her understanding was that advice would be provided to Mr Anzac to enable him to make an informed decision about whether or not to lodge a notice of appeal. That understanding on the part of Ms Morrisroe is consistent with her email sent 7 August 2018, and inconsistent with her having received instructions from Mr Anzac to appeal.
In an attempt to overcome the evidentiary deficiency which became apparent at the hearing on 27 November 2018, Julian Murphy provided evidence of his discussions with Mr Anzac. Mr Murphy is employed by NAAJA as a solicitor and manager of NAAJA’s criminal appeals practice. He visited Mr Anzac at the Darwin Correctional Centre on 4 December 2018. In the course of that visit, Mr Anzac said, inter alia:[8]
… After court I spoke to her [Ms Morrisroe] in the little room, the interview room out the back of the court room. She was telling me we will try to fight the sentence. She told me it was a bit big. She told me we could try to fight that one, appeal it. I told her to try to fight that one and make it a little bit less, maybe go to rehab – dry out – a bit sooner.
Further to the hearsay evidence of Mr Murphy, the appellant provided direct evidence of his discussions with Ms Morrisroe which took place after his sentencing on 2 August 2018. I set out the relevant parts of the appellant’s affidavit:[9]
3. She told me my sentence was too big, and that we could try to fight this sentence and appeal it in the bigger court.
4. I told her to fight the sentence and try to make it less. I wanted to go to rehab a bit earlier.
5. After I spoke with her, I thought that was all I would have to do. I didn’t think I had to do anything else about fighting the sentence to make it smaller. …
8. I wanted to appeal the sentence from the Local Court because I thought it was too big. I told Beth [Morrisroe] to appeal it on 2 August 2018, straight after court.
I discount the evidence in the extracted par 8, “I told Beth to appeal it …”. However, the evidence in par 4, “I told her to fight the sentence and try to make it less” strongly suggests that the appellant gave instructions to appeal. Even if Ms Morrisroe did not fully appreciate that instructions had been given to her, I consider that the appellant’s words should be interpreted as instructions to appeal. He probably did not understand or fully appreciate the niceties adverted to by Ms Morrisroe, namely that she was engaged by NAAJA as a locum and could not herself make the decision to institute an appeal. Nonetheless, if the appellant’s evidence is accepted, he evinced the clear wish to appeal.
The appellant gave evidence and was cross-examined when the hearing of the appeal resumed on 31 January 2019. His evidence was somewhat unclear as to whether or not he had the expectation that an appeal would be instituted as a result of his conversation with Ms Morrisroe. He was a poor witness, even when responding to leading questions asked in chief by his own counsel. However, notwithstanding the reservations expressed by me, I am satisfied on the balance of probabilities that the appellant informed Ms Morrisroe that he wished to appeal, and that, after his conversation with Ms Morrisroe, he believed that he had given her instructions to appeal.[10] Moreover, to the limited extent it is relevant, there is no doubt that the appellant has now fully adopted the appeal which his lawyers attempted to institute on his behalf.
With the benefit of hindsight, the appellant might well have done more. However, taking into account the appellant’s circumstances as a sentenced prisoner, and taking into account his state of mind after his conversation with Ms Morrisroe, I am satisfied on the balance of probabilities that he did all that was reasonably practicable on his part to comply with the requirements of the Act.
Accordingly, pursuant to s 165 of the Act, I dispense with compliance with the condition precedent requiring the appeal to be instituted within 28 days of conviction and sentence. I therefore turn to consider the merits of the appeal.
Merits of the appeal
The appellant asserts that the individual sentences imposed on each of the two court files, referred to in [22] and [23] below, were manifestly excessive; that “the global total effective sentence across both files” was manifestly excessive, and that the sentencing judge failed to consider the principle of totality in ordering terms of imprisonment across both files to be served cumulatively.
On 2 August 2018, the appellant entered pleas of guilty to one charge on complaint and one charge on information in file 21809394. The offending took place on 30 August 2017. By his plea of guilty to charge 1 on complaint, he admitted that he engaged in conduct in contravention of a domestic violence order. By his plea of guilty to charge 3 on information, he admitted that he unlawfully assaulted a female victim, MD. He admitted the circumstances of aggravation that it was a male-on-female assault, that the victim was threatened with a metal bar, and that the victim suffered harm.
The appellant also entered pleas of guilty to two charges on complaint and one charge on information in file 21829659. That offending took place on 16 June 2018. By his plea of guilty to charge 1 he admitted that he engaged in conduct in contravention of a domestic violence order. By his plea of guilty to charge 2, he admitted that he trespassed on residential premises, being premises occupied by MD. By his plea of guilty to charge 3, he admitted that he unlawfully assaulted the same female victim. He admitted the circumstances of aggravation that it was a male-on-female assault and that the victim suffered harm.
The appellant was born on 23 November 1988, and so was 28 years old at the time of offending in May 2017. He had been in a domestic relationship with MD for approximately one year in 2016 and 2017.
Facts of offending in file 21809394
On 5 or 6 May 2017, the appellant was served with a domestic violence order which had been confirmed by the Local Court. MD was named as the protected person. The order was to be in force until 2 March 2018. In addition to express restraint on assaulting, threatening, intimidating and abusing the protected person, the DVO restrained the appellant from approaching, entering or remaining at any place where the protected person may be living, including a specific address in Dillon Circuit, Gray. Further, the appellant was not permitted to contact or approach the protected person when consuming, or under the influence of, alcohol or any other intoxicating drug or substance.
On 30 August 2017, MD was asleep in the lounge room of her home in Dillon Circuit. She was sleeping on a mattress with her seven-year-old son. At about 11 pm the appellant came to the home and knocked on the door. The victim then woke up and walked to the door. The appellant told her that he needed to collect some clothes and that he would then leave. The victim opened the door and let him in, before walking to her uncle’s room to remove herself from the appellant.
The appellant walked to the lounge room and armed himself with a metal bar. He then went into the victim’s uncle’s room holding the bar in both hands. He struck the victim to her right knee, left thigh, right elbow, both hands and once to her head, causing lacerations and immediate pain. The victim screamed at the appellant to stop and leave the house. The victim’s uncle then woke up, armed himself with a stick and chased the appellant from the house. The appellant ran away and did not return that evening. Police attempted to find him, but without success.
The victim suffered lacerations, bruising and swelling which required medical treatment. She was taken by ambulance to Royal Darwin Hospital for treatment of her injuries. It was noted in the prosecution facts (Exhibit 1 in the Local Court) that the injuries were not significant or long-standing.
Police finally arrested the appellant on 23 February 2018 at a suburban address in Palmerston. After he received legal advice, he exercised his right to silence and did not participate in a formal interview with police.
Facts of offending in file 21829659
A further domestic violence order for 12 months was confirmed by the Darwin Local Court on 16 April 2018 and served on the appellant on 19 April 2018. The same female victim, MD, was named as a protected person. The terms of the further DVO were essentially the same as for the previous DVO.
On 16 June 2018, the appellant drank an unknown quantity of alcohol and became intoxicated. At about 9 o’clock in the evening, he went to MD’s home address in the suburb of Gray, where she was asleep and sharing a mattress on the floor of the lounge room with her ex-partner and father to one of her three children. The appellant knocked on the front door several times and called out “Auntie, it’s your nephew”. The appellant disguised his voice so that MD would not identify him. This ruse apparently worked and the victim opened the door. The appellant then just walked in.
The prosecution facts stated that the appellant was not a resident of the premises, was not invited into the premises by MD, and that MD felt too scared to ask him to leave.
The appellant became agitated when he saw the MD’s ex-partner lying on the mattress in the lounge room, and began to angrily interrogate the victim. He said: “Youse two are disrespecting me. What, are youse two going out together now? Are you sleeping with Matthew?” MD attempted to calm the appellant but he lashed out at her without warning. He punched her once with full force with a clenched fist to the front of her mouth.
The impact of the punch caused the victim to instantly feel dizzy. She became stunned and unsteady on her feet. The inside of her mouth began to bleed. In an attempt to stop the assault, she grabbed the defendant from the front by both shoulders and swung him into the cupboards in the dining room of the premises while saying, “No, stop hitting me”. After the appellant stopped his assault, MD was able to sit down on a couch in the lounge room. She felt pain to her mouth, face and head and was dazed from the assault. Her face and lips became quickly swollen. She then ran away from her home and went to the home of a friend. She was upset and crying. After the friend saw the appellant walk away from the unit complex, he escorted MD back to her home.
A few minutes later, however, the appellant returned to MD’s home and began knocking at the door. He called out several times for the door to be opened. When another person said that the victim was not present, the appellant kept knocking and calling out for about 20 minutes, before he eventually left.
The following morning, MD was suffering a large amount of pain in her face. She had swelling and bruising to her head face and lips. The pain was so great that she called an ambulance to take her to hospital for treatment.
The appellant was not arrested until 10 July 2018. Once more he declined to participate in a formal interview with police. At the time of the offending (June 2018), the further DVO was in force. Moreover, the appellant was still on bail in respect of his offending in August 2017.
Local Court sentence
The learned Local Court judge convicted the appellant on all charges.
For the August 2017 offending, her Honour sentenced as follows: for the DVO contravention, to a term of imprisonment of one month; and for the aggravated assault, to a term of imprisonment of nine months. The sentences were ordered to be served cumulatively, an effective sentence of 10 months backdated to 9 July 2018.
For the June 2018 offending, her Honour imposed a sentence for the DVO contravention of two months and, for the aggravated assault, four months. Those sentences were ordered to be served cumulatively, an effective sentence of six months. The judge imposed no sentence for the trespass charge.
Given the grounds of appeal, I set out her Honour’s explanation in relation to application of the principle of totality to the sentencing for the June 2018 offending.
In relation to charge 1, her Honour said:[11]
I would have imposed a sentence of 3 months, but for totality I have reduced that to 2 months, and again in relation to that matter I have also given him a 25% discount on his sentence because of his plea of guilty. But in relation to count 1, convicted, 2 months’ imprisonment.
It is tolerably clear that her Honour’s starting point was sentence of four months. She applied a discount of 25 per cent to reflect the plea of guilty, which would have made the sentence three months, but then deducted a further month in applying the principle of totality.
Her Honour explained that she had imposed no sentence for charge 2, the trespass charge, on application of the principle of totality. However, I am not persuaded that that particular exercise of discretion demonstrates application of the principle, since I consider that any sentence imposed for the trespass charge would appropriately have been ordered to be served wholly concurrently on ordinary principles of ‘course of conduct’ concurrency, rather than on application of the principle of totality.
In relation to charge 3, the aggravated assault, her Honour said that she would have imposed a sentence of five months imprisonment (presumably after application of a discount) but that she had reduced that to four months to take into account the totality principle.
Based on her Honour’s explanation, therefore, application of the totality principle in respect of the June 2018 offending had the effect that the sentence was reduced by two months, and possibly more, depending on the unspecified sentence which would have been imposed for the trespass. Her Honour ordered that the sentence of six months for the June 2018 offending was to be served wholly cumulatively on the sentence of 10 months for the August 2017 offending. The total effective sentence was, therefore, 16 months.
The notices of appeal take issue with some individual sentences, but the essential ground of appeal is that “the global total effective sentence … was manifestly excessive”. That ground is linked with an asserted failure on the part of her Honour to consider the principle of totality when she made the two lots of sentences wholly cumulative.
I do not accept that her Honour made a merely “passing reference to totality” in her sentencing remarks, as contended by counsel for the appellant. As I explained above, application of the principle of totality resulted in a real reduction of (at least) two months in the sentences for the June 2018 offending.
Counsel for the appellant also contends that the judge failed to take “a last look” at the overall sentence to examine its appropriateness in all the circumstances. The contention relies on that fact that her Honour did not say, at the point of time she ordered that the effective sentence for the June 2018 offending should be served wholly cumulatively on the sentence imposed for the August 2017, “I will take a last look now to make sure that the overall sentence is not crushing”, or words that effect.
I note, however, that her Honour had already reduced the sentences for individual offences committed in June 2018, specifically referring to the principle of totality. Her Honour had imposed lighter sentences to take account of the totality principle. That is a less desirable but nonetheless legitimate way in which the principle of totality may be applied by a sentencing judge.[12] As a result, I am not persuaded that her Honour failed to take “a last look”. The expression “a last look” is to some extent a metaphor, in that any reduction in the overall sentence for totality factors may be achieved ‘along the way’, anticipating the end result, by reduction in individual components of the sentence (as happened here).
Even if (contrary to my finding) her Honour had failed to take a last look, I consider that ordering the sentence for the June 2018 offending to be served wholly cumulatively on the sentence imposed for the August 2017 was justified in all the circumstances. The appellant contends that, “given the interrelationship between the counts, the level of cumulation is ultimately excessive”. I reject that submission. The offending in June 2018 involved another breach of a domestic violence order, and was committed after police intervention and while the appellant was on bail for the earlier offending. Those factors made it appropriate to order cumulation in whole. In my opinion, the total effective sentence was not ‘crushing’. The principle of totality did not require any greater concurrency than was allowed.
I would add that, had I been required to re-sentence in this matter, my starting point for the aggravated assault committed in August 2017 would have been two years, with a discount of less than 25 per cent. I refer to the facts summarized in [26] to [28] above. The offending was an ugly assault with a metal bar causing significant pain and requiring the victim to be taken to hospital for medical treatment. Although the appellant had not committed any previous violent offences, I would have thought it necessary to make a very clear statement of community disapproval and to impose a strong sentence to give effect to the objective of personal deterrence. It is not necessary that I state the consequences in terms of an effective overall sentence since, since, fortunately for the appellant, I have not found error so as to require re-sentencing.
The appeal is dismissed.
--------------------
[1]Local Court (Criminal Procedure) Act, s 171(2).
[2] Local Court (Criminal Procedure) Act, s 171(1), 172(1).
[3]Local Court (Criminal Procedure) Act, s 171(1), 172(3).
[4]See, for example, Pushenjack v Owens (1972) 20 FLR 190; Fry v Williams (1985) 2 NTJ 396; Federal Commissioner of Taxation v Arnhem Aircraft Engineering Pty Ltd (1987) 47 NTR 8.
[5]Nottle v Trenerry (1993) 3 NTLR 68 at 69.9.
[6]Affidavit of Anne Elizabeth Morrisroe sworn 12 December 2018, pars 8-10.
[7]Affidavit of Anne Elizabeth Morrisroe sworn 12 December 2018, par 16.
[8] Affidavit of Julian Murphy affirmed 4 December 2018, par 6.
[9]Affidavit of Marcus Anzac affirmed 5 January 2019.
[10]See the discussion in Swann v Mosel [2014] NTSC 43 at [19] – [20].
[11]T 15-16.
[12] See Mill v The Queen (1988) 166 CLR 59 at 62-3, where Wilson, Deane, Dawson, Toohey and Gaudron JJ, after referring to Ruby, Sentencing, 3rd ed. (1987), pp. 38-41, said:- “Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.”
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