Bading v Rigby - [2023] NTSC 35

CITATION:Bading v Rigby [2023] NTSC 35
PARTIES:BADING, Christian

v
RIGBY, Kerry Leanne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 6 of 2023 (22218069)
DELIVERED:  24 April 2023
HEARING DATE:  12 April 2023
JUDGMENT OF:  Brownhill J
CATCHWORDS:

CRIMINAL LAW AND PROCEDURE – Appeal and review – Appeal from Local Court to Supreme Court by person convicted against restoration of suspended sentence – Where sentencing judge had regard to Youth Justice Court non-conviction criminal history – Whether sentencing judge applied a wrong principle by considering Youth Justice Court non-conviction criminal history – Whether sentencing judge took into account an irrelevant consideration by considering Youth Justice Court non-conviction criminal history – Error established – Substantial miscarriage of justice actually occurred – Appeal allowed
Bukulaptji v The Queen [2009] NTCCA 7; Campbell v Allen [2006] NTSC 56; Dungay v The Queen [2020] NSWCCA 209; Fejo v Sims [2014] NTSC 9; Hofer v The Queen (2021) 95 ALJR 937; Ibbotson (a pseudonym) v The Queen [2020] NSWCCA 92; Kalbasi v Western Australia (2018) 264 CLR 62; Long v Eaton [2012] NTSC 42; Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; Newman (a pseudonym) v The Queen [2019] NSWCCA 157; Rigby v Kotis [2018] NTSC 48; Siddiqui v The Queen [2015] NSWCCA 169; The Queen v JHW [2021] NTSCFC 1; Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23; Wanambi v Firth [2020] NTSC 57; Weiss v The Queen (2005) 224 CLR 300, referred to.
Criminal Code (NT) s 411
Local Court (Criminal Procedure) Act 1928 (NT) ss 5, 163, 177(2)(c), 177(2)(f)
Sentencing Act 1995 (NT) ss 43(1), 43(5), 43(7)
Youth Justice Act 2005 (NT) s 136

REPRESENTATION:
Counsel:
Appellant:J Bourke
Respondent:  A Rajkumar
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Bro2308
Number of pages:  15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Bading v Rigby [2023] NTSC 35

No. LCA 6 of 2023 (22218069)
BETWEEN:

CHRISTIAN BADING

Appellant

AND:

KERRY LEANNE RIGBY

Respondent

CORAM: BROWNHILL J
REASONS FOR DECISION
(Delivered 24 April 2023)
Background

On 30 September 2022, in the Local Court, the appellant pleaded guilty to four charges, as follows:
(a)one count of unlawful entry of a dwelling, committed on 16 June 2022 (Count 1); and
(b)three counts of aggravated assault, committed on 16 June 2022 (Counts 2, 3 and 4).
The circumstances of that offending were that the appellant was 18 years old. He had been in a domestic relationship with a 15 year old and they had a 9 week old baby. The ex-partner took the baby to the appellant’s home so he could spend time with the baby. He got drunk and threw a milk crate on the ground next to the ex-partner, followed her into the house as she tried to run away and grabbed her by the hair. The appellant’s father tried to intervene. The appellant punched his father to the head, causing a split lip. The ex-partner left to get away from the appellant. He went to her house and was told to leave. He came back, rammed the ex-partner’s head into a concrete wall and forcefully threw the baby at a couch, with a drop of about half a metre.
On 30 September 2022, the appellant was sentenced to a total effective sentence of imprisonment for 12 months, suspended after 6 months, on conditions including that the appellant be supervised by Community Corrections, complete a residential rehabilitation program and not consume alcohol.
The appellant was released from custody on 15 December 2022 and immediately entered the Mission Australia Residential Rehabilitation Treatment Service (MARRTS) rehabilitation program. On 26 December 2022, the appellant was absent from the MARRTS centre, but returned at around 7.00pm and admitted his actions. On 9 January 2023, after a conversation with his probation and parole officer (‘PPO’), who explained the consequences of breaching the conditions of his suspended sentence, the appellant exited the MARRTS residential rehabilitation program. The following day, he attended at the Community Corrections office and reported to his PPO.
On 11 January 2023, an application was made to the Local Court to deal with the appellant pursuant to s 43(1) of the Sentencing Act 1995 (NT) (‘the Sentencing Act’) in relation to the breach.
On 13 January 2023, the appellant appeared in the Local Court and admitted the breach.
Submissions were made on the appellant’s behalf, referring to his young age (19 years), that he had left the MARRTS program because he wanted to be home with his parents who had health issues, that he had been referred to a family violence program and external drug and alcohol counselling, which he was willing to do, that he wanted to get a job and was being assisted by a job provider agency, that he had not reoffended, that he had not tested positive for alcohol or drugs, that Community Corrections remained prepared to supervise the appellant because of his ongoing engagement with them, and that he had engaged with Community Corrections despite his decision to leave the MARRTS program. On the appellant’s behalf, it was submitted that it would be unjust to restore the sentence in full, and that the Court should take no further action in relation to the breach.
Submissions were made on behalf of the Crown, pointing out that the appellant had breached the conditions of the suspended sentence a short time (25 days) after his release, that the sentence had contemplated the need for both drug and alcohol rehabilitation, and there was a substantial amount of time remaining under the suspended sentence.
The Local Court delivered short ex tempore reasons deciding that it was not unjust to fully restore the suspended sentence. In coming to that decision, his Honour said:
Almost immediately [after his release] [the appellant] made it plain that he didn’t find [residential rehabilitation] to his liking. He’s a young man, but he’s a man with nearly 20 pages of prior criminal history. The overwhelming majority of course from the youth justice system. Much of that history shows breaches of court orders. Much of it shows drug and alcohol involvement. And the sentencing judge … made it plain that the terms of the suspended sentence were an important part of allowing any suspension of the sentence for rehabilitation purposes.
I’m satisfied that [the appellant] did not make any serious effort to comply with the residential rehabilitation program. The compliance report tells us that he was released on 15 December and entered into the program. But on 26 December, he left, and attempted to shield his electronic monitor device to hide that. But he admitted what he had done when confronted with that.
Then another 9 days later he spoke to Community Corrections to find out what would happen if he left. They explained the consequences. But he left anyway on the ninth. The matters put forward on behalf of [the appellant] today include that he’s keenly interested in finding employment. That’s good to hear, but it’s not the same as if he had actually found employment, and the court could have some hope and expectation that going forward, employment would be an important and rehabilitative part of his future.
At the moment, it’s all a matter of intention. He’s living with his parents, but then he was before. The circumstances, when taken together, in my view, show a young man who has not learned any lessons by his 6 months in prison. He has emerged, still feeling entitled. Still feeling that he’ll do as much as he finds it comfortable, and not boring and with nothing – not even lip service paid to the very serious circumstances of his offending and the drivers of that offending.
Today I’m of the view that the matters put forward to me do not establish that it would be unjust to restore any part of the sentence, in full, or otherwise. I’m of the view that it should be restored in full.
Appeal
Pursuant to s 163(1) of the Local Court (Criminal Procedure) Act 1928 (NT) (‘LCCPA’), the appellant has appealed against the Local Court’s decision on five grounds.
Grounds 1 and 2
Two of those grounds (grounds 1 and 2) related to the italicised words set out in the decision above and alleged that the hearing judge applied a wrong principle by considering, or took into account an irrelevant consideration, namely, the appellant’s criminal history, contrary to s 136 of the Youth Justice Act 2005 (NT) (‘YJA’).
Section 136 of the YJA provides as follows:
136 Certain findings of guilt not to be mentioned
(1) If a court finds a youth guilty of an offence but does not record a conviction, no evidence or mention of the offence may be made to, nor may the offence be taken into account by, a court other than the Youth Justice Court.
(2) Subsection 1:
…
(b)does not apply if the offence was committed after the youth had turned 15 years of age.
Section 136 is a prohibition coupled with an exception.[1] Its purpose is to give people who have a history of committing criminal offences when they were under 15 years of age, for which no conviction was recorded, the benefit of such a history not being permitted to be raised in an adult court, which purpose extends beyond sentencing and criminal cases.[2] The prohibition recognises the reduced moral culpability of offenders under the age of 15 years, their capacity for rehabilitation, and the importance of not stigmatising such young offenders who have not been convicted of a criminal offence so their prospects of rehabilitation are enhanced.[3] The intention and operation of s 136 is to give defendants who have been found guilty of an offence or offences to which s 136 applies the benefit of having no mention of such offences made in legal proceedings once they have reached the age of majority.[4]
The appellant relied on authority from New South Wales and Queensland relating to a similar provision to s 136 of the YJA.
In Siddiqui v The Queen [2015] NSWCCA 169, the Court considered an application to appeal from a sentence imposed on a 19 year old. In sentencing, the sentencing judge had said:[5]
His record does not permit much leniency. There was a significant matter in the Children’s Court.
The applicant’s criminal record included a finding of guilt on two counts of armed robbery and a finding of guilt for entering enclosed lands, for which no convictions were imposed. The equivalent provision to s 136 of the YJA provided that the fact that a person pleaded guilty to, or was found guilty of, an offence committed when they were a child ‘shall not be admitted in evidence … in any criminal proceedings subsequently taken against the person’ for another offence if (relevantly) a conviction was not recorded.[6] The applicant sought to appeal on the ground the sentencing judge had taken into account the prior criminal history. In response to the Crown’s submission that the extent to which the inadmissible evidence affected the sentence imposed is unclear, the Court held that ‘it plainly had some [e]ffect, and perhaps not an insignificant one’.[7] The Court held that the comment suggested the applicant was denied the leniency which might ordinarily be expected to be allowed to an offender with no relevant criminal history.[8] While the Court allowed leave to appeal, and found that the sentencing judge had erred in taking into account the prior criminal history, the majority were of the view that re-sentencing the applicant was not warranted as it would not have imposed a lesser sentence, and consequently, dismissed the appeal.[9]
In Dungay v The Queen [2020] NSWCCA 209, the Court considered an application for leave to appeal against a sentence imposed on a 25 year old. In sentencing, the judge stated:[10]
[The applicant] has a record for offences, including a serious offence of breaking and entering, though as a juvenile. He was placed on 18 month supervision as a result. There are some other offences on his juvenile record, including an offence of violence. These offences though are his first serious offences as an adult.
Most of the applicant’s criminal history was in the Children’s Court.[11] The applicant sought to appeal on the ground that the sentencing judge erred in admitting and having regard to the criminal history. In noting the Crown conceded that error was established, the Court observed that the proper inquiry is not whether, as a matter of fact, the error influenced the outcome, because an applicant does not need to establish that an error had an actual effect on the sentence imposed, only that it had the capacity to do so.[12]
In Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23, the Court was considering an appeal from a decision of a primary judge dismissing an application for judicial review of a decision to cancel the appellant’s visa on character grounds. At the primary hearing, the Minister conceded that six findings of guilt without convictions against the appellant as a child had been taken into account contrary to the Queensland equivalent of s 136 of the YJA. The Court held that the fact of the six findings of guilt was an irrelevant consideration in the sense explained in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 (at 40).[13] The Minister conceded the error would, subject to the question of materiality, be a jurisdictional error.[14] The test of materiality in that context is whether, had the error not been made, it could realistically have resulted in a different decision by the Minister.[15] The Court concluded that there was that realistic possibility.[16]
Cognisant of those authorities, the respondent conceded that the errors alleged in grounds 1 and 2 had been made. That concession was properly made.
This Court’s powers on an appeal are set out in s 177(2) of the LCCPA. They include the power to affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make any conviction, order or adjudication appealed from which ought to have been made in the first instance (s 177(2)(c)). Section 177(2)(f) provides that, notwithstanding it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, the Court may dismiss the appeal if it considers no substantial miscarriage of justice has actually occurred.
The respondent argued that, in this case, notwithstanding the error, no substantial miscarriage of justice occurred because, in all the circumstances of the case, the full restoration of the appellant’s sentence was the appropriate outcome and that would have been the outcome if the hearing judge had not taken into account the appellant’s criminal record as a youth.
The appellant argued against the proposition that no substantial miscarriage of justice had actually occurred, but took no issue with whether s 177(2)(f) applies to appeals from an order made under s 43(5) of the Sentencing Act.
Section 177(2)(f) is in almost identical terms to the language of s 411(2) of the Criminal Code (NT). That provision, commonly referred to as ‘the proviso’, relates to appeals against findings of guilt (s 411(1)), and the law about its application rests upon that context, particularly the occurrence of a trial (or, by analogy, a summary hearing), the finding of guilt by a jury (or, by analogy, a summary judge) and the criminal standard of proof.[17]
The present case is not an appeal against a finding of guilt. It is an appeal against an exercise of discretion under s 43(5) of the Sentencing Act. In its terms, s 177(2)(f) is not confined to appeals against findings of guilt. Section 177 is generally applicable to all appeals within s 163(1) of the LCCPA, which permits appeals from a conviction, order or adjudication of the Local Court (other than an order dismissing a complaint of an offence). The LCCPA applies in relation to the Local Court’s criminal jurisdiction (s 5). I am aware of authority in which the proviso in s 177(2)(f) was held to be applicable to appeals against sentence.[18] Neither of the two authorities referred to by the parties relating to appeals from orders of the Local Court under s 43(5) of the Sentencing Act raised or considered the application of s 177(2)(f).[19] That may be because those appeals were allowed on the basis that the full restoration of the suspended sentence was unjust, contrary to s 43(7) of the Sentencing Act. In such cases, it may readily be accepted that a substantial miscarriage of justice actually occurred. Two other decisions of this Court suggest that the proviso in s 177(2)(f) is applicable to appeals against a restoration of a suspended sentence under s 43(5) of the Sentencing Act, but neither gave consideration to the issue of its application.[20]
Given the parties’ positions, I am prepared to assume, without deciding, that s 177(2)(f) of the LCCPA has application to the present appeal.
For the following reasons, I do not consider that no substantial miscarriage of justice has actually occurred.
First, the hearing judge stated, as the first matter on which his decision was based, that the appellant was a young man with ‘nearly 20 pages of criminal history’. The appellant’s criminal history was actually 16 pages long, with only 6 of those pages relating to offending that the Court was permitted to take into account under s 136 of the YJA. There is a stark difference between a criminal history of 6 pages and a criminal history of nearly 20 pages. The hearing judge was emphasising, and so found significant, the sheer volume of the criminal history.
Secondly, the hearing judge stated that ‘much of’ the criminal history showed breaches of court orders and ‘much of’ the criminal history showed drug and alcohol involvement. That demonstrates that the entirety of the criminal history was taken into account.
Thirdly, the disclosure of drug and alcohol involvement in much of the criminal history was joined to the fact that the conditions of the suspended sentence were important for rehabilitation purposes. This was likely to have led the hearing judge to place more weight than otherwise would have been the case on the completion of residential rehabilitation as a condition of the suspension of the sentence, making the breach of that condition seem more serious than would otherwise have been the case.
Fourthly, the hearing judge held that the appellant was released ‘still feeling entitled’ and ‘still feeling that he’ll do as much as he finds it comfortable’. The word ‘still’ can only be a reference to the breaches of court orders disclosed by ‘much of’ the criminal history. That aspect of the criminal history was likely to have led the hearing judge to consider the appellant to have a greater continuing attitude of disobedience to the law than otherwise would have been the case.
Fifthly, the hearing judge made very little reference to the matters put on the appellant’s behalf that were relevant to the determination under s 43(7) of the Sentencing Act.[21] One such matter was that the appellant had been referred to, and was willing to undertake, a family violence program and drug and alcohol counselling outside of residential rehabilitation, both of which would go a significant way towards addressing the effect upon the appellant’s rehabilitation of not completing the residential rehabilitation program. This was clearly not taken into account, as evidenced by the hearing judge’s finding that the appellant had done ‘nothing – not even [pay] lip service’ to the drivers of his offending. Another matter was that the appellant had discussed his decision to leave residential rehabilitation with his PPO and had remained engaged with his PPO, such that Community Corrections remained willing to supervise him. This demonstrates the appellant’s positive attitude to compliance with the rest of the conditions of his suspended sentence. Nor did the sentencing judge refer to the facts that the appellant had not tested positive for alcohol or drugs or that the breach was not a breach by way of reoffending. Even though the period between release and breach was relatively short (about three and a half weeks), that the breach was not by way of reoffending is a significant matter.[22]

The hearing judge’s failure to mention any of these matters, whilst specifically referring to the criminal history, indicates that the hearing judge placed substantial emphasis on the criminal history in coming to his decision, and suggests that it overwhelmed the significance of these other relevant factors. Taking into account those factors, I consider that it was unjust, in view of all the circumstances which have arisen since the suspended sentence was imposed, to fully restore the whole of the six months held in suspense.
For the above reasons, I do not consider it appropriate to dismiss the appeal pursuant to s 177(2)(f) of the LCCPA.
The appeal will be allowed on grounds 1 and 2 in the amended notice of appeal.
Other grounds of appeal
Given that conclusion, it is unnecessary to consider the other three grounds of appeal.

Disposition

The appeal is allowed.
I will exercise the discretion under s 43(5) of the Sentencing Act and make the order which ought to have been made pursuant to s 177(2)(c) of the LCCPA.
I will hear the parties further as to the order to be made.

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

[1]The Queen v JHW [2021] NTSCFC 1 at [28] per Grant CJ, Southwood and Kelly JJ.

[2]Ibid at [31].

[3]Ibid.

[4]Ibid at [32].

[5]Set out at [60] per Wilson J.

[6] Siddiqui v The Queen [2015] NSWCCA 169 at [62] per Wilson J.

[7]Ibid at [64] per Wilson J.

[8]Ibid at [64] per Wilson J (Simpson and Rothman JJ agreeing).

[9] Ibid at [125], [127] per Wilson J (Simpson J agreeing). Rothman J agreed (at [17]) that error had been established, however, was in dissent (at [20]) as regards re-sentencing and allowed the appeal (at [32]).

[10]Set out at [60] per N Adams J.

[11]Dungay v The Queen [2020] NSWCCA 209 at [35] per N Adams J.

[12]Ibid at [96] per N Adams J (Bell P and Davies J agreeing), citing Newman (a pseudonym) v The Queen [2019] NSWCCA 157 at [11] per Basten JA (Hamill and Lonergan JJ agreeing) and Ibbotson (a pseudonym) v The Queen [2020] NSWCCA 92.

[13]Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 10 at [37] per Derrington J (Katzmann and Banks-Smith JJ agreeing).

[14]Ibid.

[15]Ibid at [41], citing MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

[16]Ibid at [46].

[17]See Weiss v The Queen (2005) 224 CLR 300; Kalbasi v Western Australia (2018) 264 CLR 62; Hofer v The Queen (2021) 95 ALJR 937.

[18]See, for example, Rigby v Kotis [2018] NTSC 48.

[19]See Long v Eaton [2012] NTSC 42; Wanambi v Firth [2020] NTSC 57.

[20]In Campbell v Allen [2006] NTSC 56, Olsson AJ was deciding whether the sentencing judge erred in sentencing and in restoring a suspended sentence. The parties were agreed that an error had been made (at [26]), and the Crown submitted that the appeal should be dismissed pursuant to s 177(2)(f) (at [28]). His Honour held (at [36]) that it was ‘inappropriate to resort to the provisions of s 177(2)(f) [as] to do so would be to produce a result that is too draconian having regard to the degree of culpability of the appellant’ in that matter. Given that the matter involved an appeal against sentence as well as an appeal against the restoration of another sentence, it says little about the application of s 177(2)(f) to the latter. In Fejo v Sims [2014] NTSC 9, Barr J was deciding whether the sentencing judge had erred in restoring a suspended sentence, concluding that no error had been shown. Barr J held (at [29]) that if, contrary to this finding, a technical error of law had been established, his Honour would ‘nonetheless dismiss the appeal pursuant to s 177(2)(f) … because … no substantial miscarriage of justice [had] actually occurred’.

[21]The relevant considerations were set out in Bukulaptji v The Queen [2009] NTCCA 7 at [35] per Riley J (Martin CJ and Thomas J agreeing).

[22]Ibid at [42].