Arnold v Firth - [2023] NTSC 13

CITATION:Arnold v Firth & Anor [2023] NTSC 13
PARTIES:ARNOLD, Adam
v

FIRTH, Justin and
O’NEILL, Julie

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 18 of 2022 (22039223)
LCA 19 of 2022 (22216138)

DELIVERED:  23 February 2023
HEARING DATE:  7 February 2023
JUDGMENT OF:  Brownhill J

Director of Public Prosecutions (Tas) v Foster (2019) 30 Tas R 217; Forrest v The Queen [2017] NTCCA 5; Hardy v Rigby [2020] NTSC 42; Kentwell v The Queen (2014) 252 CLR 601; Lowndes v The Queen (1999) 195 CLR 665, Markarian v The Queen (2005) 228 CLR 357; R v Cameron Sambo [2014] NTSC 21339336 (22 April 2014) Sentencing remarks; R v Hendrix Collins [2015] NTSC 21529559 (7 October 2015) Sentencing remarks; R v Jarryd Hanslow [2022] NTSC 22033966 (2 February 2022) Sentencing remarks; R v Jason Thompson [(2022] NTSC 22123153 (19 May 2022) Sentencing remarks; R v Raymond Jones [2011] NTSC 21104332 (2 December 2011) Sentencing remarks; R v Roberto Yirrawarra [2011] NTSC 21000017 (19 August 2011) Sentencing remarks; R v Trevor King [2012] NTSC 21109652, 21109658 (13 March 2012) Sentencing remarks; Wong v The Queen (2001) 207 CLR 584, referred to.
Criminal Code Act 1983 (NT) ss 186AA, 188.
Domestic and Family Violence Act 2007 (NT) s 121.
Sentencing Act 1995 (NT) ss 3, 78C, 103.
REPRESENTATION:
Counsel:
Appellant:I Read SC
Respondent:  J Hale
Solicitors:
Appellant:Tindall Gask Bentley
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Bro2301
Number of pages:  18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Arnold v Firth & Anor [2023] NTSC 13

No. LCA 18 of 2022 (22039223)
No. LCA 19 of 2022 (22216138)
BETWEEN:

ADAM ARNOLD

Appellant

AND:

JUSTIN FIRTH
JULIE O’NEILL

Respondents

CORAM: BROWNHILL J
REASONS FOR DECISION
(Delivered 23 February 2023)

The issue in this appeal is whether the sentences imposed by the Local Court for aggravated assault and breach of a domestic violence order of eight months and one month respectively, to be served cumulatively, and suspended after three months with an operational period of 12 months from release, was manifestly excessive.
On 12 January 2022, in the Local Court, the appellant pleaded guilty to a charge that, on 8 December 2020, he unlawfully assaulted his domestic partner (‘the victim’) with the circumstances of aggravation that she was a female and he was a male, she was threatened with an offensive weapon, namely a wooden table, and that she suffered harm, contrary to s 188 of the Criminal Code.
The particulars of the assault were that the appellant and the victim were at home with their two children. The appellant was in the bedroom and had been drinking alcohol. They had an argument. The appellant said to the victim ‘you fat cunt’ and threw his phone in frustration. The phone did not hit the victim. She approached the appellant, who tried to close the bedroom door on her. He picked up a child’s table and threw it in her direction, hitting her on the foot. She suffered pain and a bruise. She sat down on the bed and rubbed her foot. The appellant then grabbed the victim, swung her around and threw her down on the bed. He placed his hands around her neck and caused it to click, and caused her immediate pain and redness to her neck. Their child came into the bedroom and was crying. The appellant released the victim when the child entered the room. The victim walked out of the house with the children, to go to her car. The appellant followed her out and got into her car as she was trying to get in herself. She got out and started walking away from the house with the children. The appellant tried to stop her leaving. The appellant then decided to leave the house when he saw the children were upset. He left in a car. Police were called and the appellant was located driving the car.
In addition to the aggravated assault, the appellant was charged with high range drink driving and driving unlicensed, to which he also pleaded guilty on 12 January 2022. A further charge of choking, strangling or suffocating the victim under s 186AA(1) of the Criminal Code was withdrawn.
The matter was adjourned for the obtaining of further information and reports.
On 20 January 2022, a ‘non-contact’ domestic violence order was varied to permit the appellant to be in the presence of the victim if he was not intoxicated, as the parties were making attempts at reconciliation, including undertaking couples counselling. The matter was adjourned to permit the appellant to participate in and complete the Men’s Behaviour Change Program, essentially to demonstrate to the Court steps towards his rehabilitation before being sentenced.
On 13 September 2022, the appellant pleaded guilty to further charges that, on 31 May 2022, he: (a) engaged in conduct that contravened a domestic violence order; and (b) engaged in conduct that breached a condition of bail. The particulars of that offending were that, whilst the appellant was subject to the domestic violence order referred to above and bail which included a condition not to consume alcohol, the victim attended at his address. The appellant and the victim had an argument and she called the Police. The appellant was breathalysed and found to have a blood alcohol content of 0.223 grams of alcohol in 210 litres of breath.
After argument on sentence, the Local Court sentenced the appellant for the aggravated assault charge and the breach domestic violence order charge as set out above. The Local Court convicted the appellant on the breach of bail charge, but imposed no penalty. The Local Court also imposed a fine and mandatory drivers’ licence disqualification for the driving charges.
The Local Court applied a discount of 10% to reflect the utilitarian value of the appellant’s guilty pleas to the offences, which were entered within seven days of the listed hearing, although plea negotiations commenced earlier. Before the discount, the sentences were approximately nine months’ imprisonment for the aggravated assault and approximately one month and four days for the breach domestic violence order offence.
The Local Court characterised the objective seriousness of the offending as at least the mid-level of seriousness on the basis that the offending was aggravated by the use of a weapon (the table), the application of force was to a very vulnerable part of the victim’s body, namely the neck, and involved such force that her neck clicked, and caused pain, redness and bruising, the appellant’s behaviour was humiliating and abusive, particularly his calling her a ‘fat cunt’ and trying to stop her from leaving, the violence was prolonged and the children were exposed to the violence and affected (upset) by it. The Local Court took into account that the appellant had completed part of the Men’s Behaviour Change Program, had a good work record, meaningful employment, tendered character references, had no previous convictions for assault, had developed some insight into the circumstances impacting his attitude to alcohol, had spent four days in custody which had permitted him to reappraise his behaviour and attitudes, had learned some strategies to manage stress reactions during emotional difficulty, and had taken proactive steps to ensure a meaningful continued relationship with his children. The Local Court found that alcohol was an issue for the appellant, as evidenced by his criminal record which included a prior conviction for drink driving, convictions for breach of a domestic violence order and breach of bail committed on 8 July 2021, and the charges the Court was dealing with. The Local Court noted that the appellant did not think alcohol treatment was necessary, concluding that the appellant did not have a deep insight into his issues with alcohol, which raised concerns for his rehabilitation. The Local Court also expressed concerns with the appellant’s level of insight into his domestic violence offending on the basis that the report under s 103 of the Sentencing Act stated the appellant appeared to minimise his offending behaviours. The Local Court concluded the appellant’s attendance at the Men’s Behaviour Change Program was ‘not impressive’ and the appellant had not developed meaningful insight into his offending. The Court found the May 2021 domestic violence order breach occurred at a time when the appellant should have been well aware of the importance of compliance with the order, and was on bail. The Court noted the appellant had shown limited remorse, which I take to mean remorse for the effects of his offending on the victim.

Appeal ground: Manifest excess

The appellant argued that the sentences, individually and together, are manifestly excessive. (There were two grounds of appeal in the notices of appeal, the other being that the Court erred in law. However, no separate error of law was asserted by the appellant.)
The principles applicable to an appeal against sentence on the ground of manifest excess are clear and were conveniently described in Forrest v The Queen [2017] NTCCA 5 (at [63]-[64]), namely:
(a)The sentence is not to be disturbed on appeal unless error is shown.
(b)The presumption is that there is no error.
(c)Appellate intervention is not justified simply because the sentence is markedly different from other sentences imposed in other cases.
(d)Intervention is warranted only where the difference is such that in all the circumstances the appellate court concludes there must have been some misapplication of principle, even though where and how is not apparent from the reasons.
(e)Manifest excess does not depend upon attribution of specific error. The relevant test is whether the sentence was unreasonable or plainly unjust.
(f)It must be shown that the sentence was clearly, not just arguably, excessive.
(g)There is no one single correct sentence. There can be compliance with appropriate sentencing principles notwithstanding there may be differences of judicial opinion concerning the result.
Similarly, appellate intervention is only warranted where the appellate court concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.[1]
Breach of domestic violence order
The appellant argued that the sentence imposed for the breach of domestic violence order offence was the ‘litmus test’ which indicated that the sentencing discretion on both counts miscarried. The sentence of one months’ imprisonment was said to be plainly unjust or unreasonable where the offence was at the low end of seriousness (because she had gone to his home rather than him seeking her out and he had not committed any further assault upon her) for an offender who had only one prior such conviction and who had spent four days in custody following his arrest for the offence. Reference was also made to the sentence imposed for the same offence in July 2021, namely a fine of $750.
For the breach of domestic violence order offence, the maximum penalty is 400 penalty units or imprisonment for two years.[2] The Local Court applied the mandatory minimum sentence of seven days actual imprisonment because the appellant had previously been found guilty of a domestic violence order contravention offence.[3]
The appellant argued that the exception to the mandatory minimum sentence should have been adopted because the offence did not result in harm being caused to the victim and because of the low level of seriousness of the offence.
The mandatory minimum sentence does not apply if harm is not caused to the protected person, and the court is satisfied it is not appropriate to record a conviction and sentence the person to a sentence in excess of the mandatory minimum in the particular circumstances of the offence.[4]
In the particular circumstances of this offence, where the appellant had previously committed an aggravated assault against his partner, had demonstrated a lack of insight into his offending by minimising his offending, had issues with alcohol without insight, and had breached the domestic violence order whilst on bail for the aggravated assault, I do not accept that the Local Court should have been satisfied it was not appropriate to record a conviction and sentence the appellant to a sentence of or above the mandatory minimum of seven days’ imprisonment.
That conclusion means the potential penalty range for the offence was from seven days actual imprisonment to imprisonment for two years. Accepting that the offending was of a low level of seriousness, while it may have been at the higher end of the range of appropriate penalties, in all the circumstances, the term of imprisonment for one month is not plainly unjust or unreasonable.
Aggravated assault
The appellant argued that the sentence was manifestly excessive for a single episode of violence against a domestic partner, which did not cause ‘physical harm’ within the meaning of the Sentencing Act 1995 (NT),[5] by a 40 year old man with no prior criminal history of violence, who had not been previously in prison save for the four days after his arrest for the breach of domestic violence order offence, who had good employment, who had not been charged with further violent offending in the 20 months after the offending, and where the relationship had ended, making further offending against the victim unlikely. The appellant maintained this submission while acknowledging the ‘elevated’ objective seriousness of the offending because the appellant had put his hands around her neck causing it to click.
This submission pays insufficient heed to the other matters of aggravation noted by the Local Court that I have already referred to, including the presence and impact upon the children, the use of a weapon, the abusive, humiliating and controlling aspects of the appellant’s behaviour and the significant application of force to the victim’s neck, which is a very vulnerable part of the body. While no serious injury was caused to the victim, that is often the case in offending of this nature because where serious injury is caused by an assault, a different charge is levied. The Local Court correctly emphasised general deterrence and denunciation as significant sentencing factors, given the prevalence of domestic violence in the Northern Territory. The Local Court also referred to specific deterrence as a significant factor, notwithstanding the lack of prior criminal history for violence. That was not erroneous where the appellant showed little remorse for his offending, appeared to minimise his offending behaviour, lacked insight into alcohol as a criminogenic factor and failed to take up the opportunity the Court afforded him to demonstrate that he was committed to not reoffending by completing the Men’s Behaviour Change Program.
The present offending involved not only throwing the child’s table at the victim and hitting her foot, grabbing her, swinging her around and throwing her onto the bed, but the application of the appellant’s hands around her neck, applying sufficient force to make it click, and to cause redness and bruising. There is no finding as to how long the appellant’s hands were around the victim’s neck, only the agreed fact that he let the victim go when the child came into the room. It is recognised by the courts that choking or strangulation (ie grabbing a victim by the throat and applying pressure) is a form of power and control that can have devastating long-term effects on its victims, in addition to a potentially fatal outcome than can occur very quickly (within seconds) or days afterwards if internal injuries are caused.[6]
As mentioned above, the appellant was originally charged, in addition to the aggravated assault, with the offence of choking, strangling or suffocating in a domestic relationship under s 186AA of the Criminal Code. That offence has the element that the person intentionally choked, strangled or suffocated the victim. The term ‘chokes, strangles or suffocates’ is defined in that section to include ‘applies pressure, to any extent, to the person’s neck’. The appellant argued, at least initially, that the withdrawal of that charge had the potential to ‘infect the sentencing discretion’ adversely to the appellant because, in the absence of the specific intent required under s 186AA, the aggravated assault conduct is less objectively serious than the same conduct if it was being dealt with under s 186AA.
To the extent that submission was pressed, I do not accept it. I do not see how that can be so when the conduct which the appellant admitted to engaging in (placing his hands around the victim’s neck with sufficient force to make her neck click and cause redness and bruising) was clearly, albeit not expressly, admitted to be intentional. There was no suggestion that the conduct was accidental or incidental. That such conduct would also have fallen within the definition in s 186AA, or would not (as the case may be), does not diminish the seriousness of the aggravated assault which comprised all of the appellant’s conduct against the victim, including the application of force with his hands around her neck. The characterisation of that force as a form of power or control, and recognition of the associated risks of long-term effects and potentially fatal outcomes from that conduct, are appropriate and relevant to the assessment of the objective seriousness of the offending, whether or not the offence charged is under s 188 or s 186AA. The Local Court’s characterisation of the offending as at the mid-level of seriousness for this kind of offending has not been shown to be erroneous.
The maximum penalty for the offending was five years’ imprisonment. The maximum is an important yardstick by which to compare the worst possible case and the case before the court.[7] For an offence of aggravated assault which is around the mid-range of objective seriousness, a sentence of nine months’ imprisonment (before the 10% discount for the guilty plea) does not strike as being outside the permissible range of sentences for the offender and the offence.
As a means of demonstrating what the range of permissible sentences might be, and that the sentence was manifestly excessive, the appellant provided to this Court a summary of sentences in 15 Supreme Court matters involving charges of aggravated assault by a male against a female dealt with between August 2011 and December 2022.
Those sentences ranged from three months’ imprisonment to two years’ imprisonment.[8] Only one of the sentences was three months’ imprisonment.[9] The next lowest sentence was six months’ imprisonment (of which there was only one[10]) and the next lowest was seven months (of which there were only two[11]). Many of the offenders had a number of prior offences of violence and some did not. In many of those cases, the means of assault was one or more punches to the body or face and the injuries caused were minor. The appellant correctly acknowledged that those cases (particularly those from 2011 and 2012, which notably include three of the lowest of the sentences in this sample) are not necessarily representative of the range of sentences imposed by this Court in recent times for the offence of aggravated assault by a male against his domestic partner.
The respondent emphasised the observation of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 (at [58]) that, where an appellant against sentence asserts the ground of manifest excess (or inadequacy), appellate intervention is not justified simply because the sentence below is markedly different from other sentences imposed in other cases, and intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the reasons. Their Honours added (at [59]) that the production of bare statistics about sentences that have been passed tells the sentencing judge very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.

As a ‘bare statistic’, the appellant’s sentence of nine months’ imprisonment (before the 10% discount for the guilty plea) is not markedly different from the sentences imposed in those 15 cases.
The appellant submitted that, of those sentences, the offending by offenders with no priors was objectively more serious, either in the offending conduct itself or because it was committed in breach of a domestic violence order. The implication in the submission was that the sentences in those cases were higher than the appellant’s sentence because of that greater level of seriousness.
Only 4 of the 15 sentences involved offenders with no prior convictions for violent offences. Only three of those involved domestic violence.
In one that involved domestic violence,[12] the offender was intoxicated and his offending comprised a punch to the face causing a small laceration which bled, a push and another punch to the face causing bleeding and soreness of the jaw, separated by an assault on an intervener. The offending involved some controlling behaviour and was committed in breach of a domestic violence order. The offender was 22 years old at the time of the offending and had no prior convictions at all. He was prepared to undertake residential rehabilitation to address alcohol misuse. His sentence was discounted from 12 months’ imprisonment to 9 months for his early guilty plea.
In another that involved domestic violence,[13] the offender punched the victim twice to her ribs, causing her to fall to the ground, tied her legs with a skipping rope, and dragged her along the ground for two to three metres, causing cuts and scratches to her knees including an open cut around four centimetres long. The offender then untied the victim and after she stood up, he punched her once in the ear and twice in the ribs, causing her to fall to the ground. The offending was not characterised as controlling behaviour and was not committed in breach of a domestic violence order. The offender was 24 years old at the time of the offending and sentenced as a first offender. His sentence was discounted from 15 months’ imprisonment to 12 months for his guilty plea.
In the last that involved domestic violence,[14] the offender was charged with four counts of aggravated assault (all committed on separate occasions) and four counts of breaching a domestic violence order (each assault being committed in breach of an order). On the first count, the offender punched the victim once to the head. On the second, he wrapped his arms around her body, pulled her close and bit her on the ear, causing it to bleed. On the third, he hit her to the back of the head with a rock. On the fourth, he swung a frying pan at her head, hitting one of her hands which she put up to protect herself. The injury to the ear required stitches. The offending was characterised as controlling and as towards the mid-level of seriousness. The offender was 23 years old at the time of the offending and was sentenced as a first offender. He accepted that he had alcohol and anger management issues and was prepared to get help for them. For each count of aggravated assault, he was sentenced to 18 months’ imprisonment. Before the discount of 25% for the guilty pleas, each sentence was two years’ imprisonment.
In each of these cases, the sentences before the discounts for the guilty pleas were significantly higher than the sentence of nine months (before the 10% discount) imposed on the appellant, despite the offenders’ youth, their being sentenced as first time offenders and their preparedness (at least in two of the cases) to address criminogenic factors. Even accepting some greater degree of objective seriousness of the offending in those cases as compared to the appellant’s offending, his sentence does not stand out as being unreasonable or plainly unjust.
Giving appropriate allowance to the discretion of the sentencing judge,[15] it has not been demonstrated by the appellant that either the sentence for the aggravated assault, or the sentence for the breach of domestic violence order, are unreasonable or plainly unjust, or are so markedly different from other sentences that there must have been some departure from principle. In other words, it has not been shown that those sentences are manifestly excessive.

Disposition

The appellant’s ground of appeal has not been made out. The appeal is dismissed.

-----------------------------------

[1]Kentwell v The Queen (2014) 252 CLR 601 at [35] per French CJ, Hayne, Bell and Keane JJ.

[2]Domestic and Family Violence Act 2007 (NT), s 121(1).

[3]Domestic and Family Violence Act 2007 (NT), ss 121(2), (5).

[4]Domestic and Family Violence Act 2007 (NT), s 121(3).

[5] Sentencing Act 1995 (NT) ss 3(1), 78C.

[6]See Director of Public Prosecutions (Tas) v Foster (2019) 30 Tas R 217 at [26]-[27] per Estcourt J (Brett J and Marshall AJ agreeing); Hardy v Rigby [2020] NTSC 42 at [52] per Hiley J.

[7]Markarian v The Queen (2005) 228 CLR 357 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ.

[8]R v Cameron Sambo [2014] NTSC 21339336 (22 April 2014) Sentencing remarks, Count 2 of two counts.

[9]R v Trevor King [2012] NTSC 21109652, 21109658 (13 March 2012) Sentencing remarks, Count 1 of two counts.

[10]R v Raymond Jones [2011] NTSC 21104332 (2 December 2011) Sentencing remarks.

[11]R v Trevor King [2012] NTSC 21109652, 21109658 (13 March 2012) Sentencing remarks, Count 2 of two counts; R v Jarryd Hanslow [2022] NTSC 22033966 (2 February 2022) Sentencing remarks, Count 1 of two counts. This was not a case of domestic violence.

[12]R v Hendrix Collins [2015] NTSC 21529559 (7 October 2015) Sentencing remarks, Count 1 of two counts.

[13]R v Roberto Yirrawarra [2011] NTSC 21000017 (19 August 2011) Sentencing remarks, Count 1 of two counts.

[14]R v Jason Thompson [2022] NTSC 22123153 (19 May 2022) Sentencing remarks, Count 1 of two counts.

[15]Lowndes v The Queen (1999) 195 CLR 665 at [15] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.