Beniamini v Craig
[2017] ACTSC 30
•23 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Beniamini v Craig |
Citation: | [2017] ACTSC 30 |
Hearing Date: | 9 March 2016 |
DecisionDate: | 23 February 2017 |
Before: | Refshauge J |
Decision: | 1. The appeal be upheld in part. 2. The sentences imposed by the Special Magistrate be set aside and Adam Beniamini be re-sentenced. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – appeal against sentence – error of law – error in sentencing process – misstatement of the maximum penalty for the offence of escaping lawful custody – objective seriousness of the offences – manifestly excessive – totality of sentence – proportionality – concurrency and cumulation between the sentences – “one transaction principle” – sentence exceeded a proper proportion to the criminality committed – appeal upheld in part CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – common assault – family violence offences – escape from lawful custody – summary disposal at prosecutor’s election – re-sentence – s 374 of the Crimes Act 1900 (ACT) |
Legislation Cited: | Bail Act 1992 (ACT), s 49 Crimes Act 1900 (ACT), ss 24, 26, 160, 374, 374(2), 374(7)(a), Court Procedures Rules 2006 (ACT), r 5115 Criminal Code 2002 (ACT), ss 403, 403(1) |
Cases Cited: | Acorta v The Queen [2015] VSCA 94 Amos v McCarron [2017] ACTSC 6 |
Texts Cited: | D A Thomas, Principles of Sentencing (Heinerman, 2nd ed, 1979) Clayton C Ruby, Sentencing (Butterworths, 3rd ed, 1987) |
Parties: | Adam Beniamini (Appellant) Jason William Craig (Respondent) |
Representation: | Counsel Mr R Davies (Appellant) Mr R Reardon (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 13 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Hunter Date of Decision: 2 February 2015 Case Title: Craig v Beniamini Court File Numbers: CC 560-564 of 2015 |
REFSHAUGE J:
Family violence is, as has often been pointed out, a particular problem because it often stems from the attitude of an offender to relationships and also to women, which may be harder to eradicate and reform than the matters that cause or contribute to other offences. This is particularly so when an offender is accustomed to the use of violence in interpersonal disputes.
As Adam J, with whom Ipp JA and Tully J agreed, said in R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 at 195; [47], “the offender [who commits a domestic violence offence] usually believes that, in a real sense, what they do is justified, even that they are the true victim”. Johnson J, with whom Hunt AJA and Latham J agreed, said in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at 193; [77]-[78], in the course of insightful and helpful reasons for upholding a Crown appeal against the sentence imposed for nine offences of domestic violence:
[77] ... An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, ‘Restorative Justice, Domestic Violence and Family Violence, Australian Domestic and Family Violence Clearing House’, Issues Paper 9, 2004, pages 6-7.
[78] Although domestic violence is a criminal offence in Australia, it has been reported that many young Australians still evince attitudes that essentially condone it, and many people still believe that it is a private and personal matter rather than a crime: J People, Trends and Patterns in Domestic Violence Assaults’, NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin, No. 89, October 2005, page 2. Domestic assaults accounted for 35%-40% of the assaults recorded by police each year from 1997 to 2004: J People, above, at page 11.
I presently have to deal with Adam Beniamini for a number of violence offences, particularly offences of domestic violence, in the context of three proceedings: an appeal against sentences imposed in the Magistrates Court, an offence for which I must sentence Mr Beniamini, and for a breach of a Good Behaviour Order constituted by those offences. These reasons, however, deal only with the appeal, though the other matters are, for reasons dealt with later, relevant.
Background
In order to place the proceedings in a proper context, it is necessary to set out some background to these current proceedings.
At a family barbecue on 7 January 2010, Mr Beniamini, in company with the partner of his partner’s sister, assaulted one of Mr Beniamini’s neighbours and caused him actual bodily harm, namely bruising near the victim’s right eye. He was charged with assault occasioning actual bodily harm, an offence against s 24 of the Crimes Act 1900 (ACT).
As I noted when sentencing him for that offence, Mr Beniamini had an “unimpressive criminal history”, including a number of offences of assault. On 9 December 2010, I sentenced him to nine months imprisonment for the offence, part of which was to be served by full-time custody, which had been served prior to sentence, part then by periodic detention, and part suspended when, as required under s 12 of the Crimes (Sentencing) Act 2005 (ACT), I made a Good Behaviour Order for two years. See R v Beniamini (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 9 December 2010), (R v Beniamini (2010)).
On 23 November 2011, however, Mr Beniamini damaged the front security door of the house in which his then partner, from about 2007, was living with her children. He was charged with intentionally causing damage, an offence against s 403 of the Criminal Code 2002 (ACT). Before those proceedings could be resolved, however, he again went to his former partner’s house on 16 March 2012, breaking open the door, entering the premises and assaulting her. He was charged with a further offence of damaging property, with trespass on the premises contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth), and with common assault contrary to s 26 of the Crimes Act.
He was dealt with in the Magistrates Court for all these domestic violence offences on 28 August 2013. For three of the offences he was fined and for the other two he was sentenced to a total of 18 months imprisonment. He appealed against the two sentences of imprisonment and, on 22 January 2014, I set aside those sentences: Beniamini v Storman [2014] ACTSC 2.
I re-sentenced him to a total of 13 months imprisonment but suspended the sentence from 1 February 2014 for two years. I made, as required, a further Good Behaviour Order: R v Beniamini [2014] ACTSC 40 (R v Beniamini (2014)) at [35]-[36].
The offences, however, breached the Good Behaviour Order that I had made on 9 December 2010 (as noted above (at [6]), when I suspended a sentence of imprisonment for the offence of assault occasioning actual bodily harm. I cancelled that Good Behaviour Order (as required under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT)) and re-sentenced him to imprisonment for four months and two weeks to be served by periodic detention.
At the time, the relationship with the victim of these offences had ended but Mr Beniamini had entered into a further relationship with a woman he had known for about 10 years and to whom I shall refer in these reasons as his new partner. She had known his former partner and her evidence was that the incidents of violence the subject of the earlier proceedings were out of character and isolated and that she had never experienced any violence or physical or mental abuse committed by him on her or his children.
Unfortunately, that situation did not remain and, on 31 December 2014, he became abusive to his new partner on the phone and then at her home. He became violent, grabbing her by the hair, pulling her through the front door into the lounge, causing immediate pain and resulting in some of her hair being ripped out.
He continued his violent attack by seizing her by her jaw and lifted her off the ground, carrying her into the foyer near the front door, causing her considerable pain. He next threw her into a small room where she landed on her knees, experiencing pain, and he proceeded to push her over onto her back, again causing her more pain. He later threw a pair of scissors at her resulting in a small laceration to her finger.
Her two young children ran from the premises. They sought help from neighbours who called the police.
The police attended and later found Mr Beniamini underneath a bed in one of the children’s bedroom and he was arrested. As he was engaged in conversation at the police vehicle, he broke free and ran from police who were unable to catch him. He was charged with four counts of common assault and one count of escaping lawful custody.
The offence of common assault was contrary to s 26 of the Crimes Act and carries a maximum penalty of two years imprisonment. The offence of escaping lawful custody was an offence against s 160 of the Crimes Act, which provides for a maximum penalty of 100 penalty units (at the time, a fine of $150 000) and imprisonment for five years.
He appeared in the ACT Magistrate’s Court on 5 January 2015 and, after some adjournments, Special Magistrate Hunter made a Deferred Sentence Order under s 27 of the Crimes (Sentencing) Act, adjourning the proceedings until 10 September 2015.
Before that adjourned date, however, Mr Beniamini approached his new partner’s house, on 13 May 2015, and went into the kitchen where his new partner was apparently cooking dinner. He grabbed a glass of wine that she was drinking, smashed it towards her, not making personal contact but breaking the glass in her direction.
Then, on 21 May 2015, he again became very aggressive to his new partner, called her a “slut”, and, when she tried to use a mobile telephone to call for help, he took it from her and threw it at a window, breaking both the phone and the window.
He and his new partner later attended a local social club, but, during the evening, he became more aggressive and, on the smoking deck of the club, he grabbed his new partner by the bun in which she was wearing her hair and effectively lifted her from her seat, hitting her head in the process, and throwing her to the ground.
She sought refuge inside the female toilets in the club, but he followed her, first of all waiting outside the toilets but then entering them, smashing the door of the cubicle she was occupying, breaking the lock. He grabbed her from the toilet seat while she remained partially undressed and raised her so that both feet at one point left the ground. He was holding her by the throat so that she was unable to breathe fully for a period of time. She managed to scream, attracting the attention of security guards at the club who directed him to leave.
His new partner was too afraid to leave the club because of her fear of him and what he might do, but later was attended by security guards and the police to whom she was reluctant to complain, but did so only when it became clear that there was no other independent evidence of what had happened.
It appears that Mr Beniamini was then arrested. He was charged with common assault and damaging property, the latter being an offence against s 403(1) of the Criminal Code, punishable by a maximum penalty of 1000 penalty units (at the time, a fine of $150 000) and imprisonment for 10 years. As to the events of 21 and 22 May 2015, he was charged with two offences of damaging property and three further offences of common assault at the social club.
He was apparently arrested and later released on bail. The proceedings were adjourned from time-to-time. After an adjournment, however, he failed to answer his bail and was charged with an offence of failing to answer a bail undertaking, an offence contrary to s 49 of the Bail Act 1992 (ACT), punishable by a maximum penalty of 200 penalty units (that is, at the time, a fine of $30 000) and imprisonment for two years. He was arrested and refused bail.
He appeared for sentence for those charges before Chief Magistrate Walker on 25 November 2015 and was sentenced to an aggregate of 21 months imprisonment commencing on 15 June 2015 and ending on 14 March 2017. A non parole period of 15 months was set to commence on 15 June 2015 and end on 14 September 2016. See Reid v Beniamini (Unreported, Magistrates Court of the Australian Capital Territory, Chief Magistrate Walker, 25 November 2015).
In respect of the earlier offences before the learned Special Magistrate, the precise course of the proceedings is a little hard to follow, but it appears that, on 27 May 2015, the date for sentence of 10 September 2015 was vacated. The matter did return to Court on that date, however, but, unsurprisingly, Mr Beniamini, who was then in custody, was not represented and the proceedings were adjourned.
Ultimately, sentencing submissions were heard on 26 November 2015 and the matter was listed for sentence on 18 January 2016. The proceedings were then adjourned to 2 February 2016 when he was sentenced to a total of 22 months imprisonment wholly cumulative on the earlier sentence to end on 9 December 2018. See Craig v Beniamini (Unreported, Magistrates Court of the Australian Capital Territory, Special Magistrate Hunter, 2 February 2016).
Because of the fresh sentence, a new non parole period was required to be set under s 66 of the Crimes (Sentencing) Act and the learned Special Magistrate set a new non parole period of two years to commence on 15 June 2015 and end on 14 June 2017.
Both these sets of offences constituted a breach of the Good Behaviour Order I had made when sentencing Mr Beniamini on 22 January 2014.
Appeal
In this context, I turn, then, to the appeal from the decision of the learned Special Magistrate on 2 February 2016 in Craig v Beniamini. I shall do so.
The appeal was from the sentences imposed by the Magistrates Court. I have jurisdiction to hear and determine such appeals under Pt 3.10 of the Magistrates Court Act 1930 (ACT). Division 3.10.2 of that Part regulates such appeals.
I have described, in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles applicable to such appeals. They may be summarised as follows.
Sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate.
Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find a specific error but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal and
re-impose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, or plainly unjust or plainly wrong.
I note that I shall apply these principles in this case.
Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.
Notice of Appeal
The Notice of Appeal, filed on 25 February 2016, set out two grounds of appeal as follows:
(1)That the sentences imposed by Special Magistrate Hunter were manifestly excessive, both individually, and in terms of the head sentence and the non parole period;
(2)That the learned Magistrate made an error of law by failing to apply the principle of totality in making orders as to concurrency and accumulation.
The parties agreed that the learned Special Magistrate had misstated the maximum penalty for the offence of escaping lawful custody and, accordingly, I permitted the respondent to the appeal to file in Court a Notice of Contention under r 5115 of the Court Procedures Rules 2006 (ACT) to raise that matter in the proceedings, though it raised other matters as well. The respondent contended that the following questions of fact or law were incorrectly decided by the learned Special Magistrate:
1.Her Honour misstated the maximum penalty for the charge of escaping lawful custody (CC2015/564) as being two, as opposed to five, year’s [sic] imprisonment;
2.Her Honour failed to take into account material considerations in characterising the objective seriousness of the common assault offences as variously ‘low to mid range’ (CC2015/560 and 561) and ‘mid range’ (CC2015/563);
Particulars
a. Her Honour failed to consider the fact that the offences were committed while the appellant was subject to conditional liberty for similar offences.
b. Her Honour failed to consider the fact that the victim’s two young children were present during the assaults.
3.Further, or in the alternative, her Honour’s assessment of the objective seriousness of the common assault offences as variously ‘low to mid range’ (CC2015/560 and 561) and ‘mid range’ (CC2015/563) was plainly unjust.
The facts
The facts of the offences the subject of the appeal have been summarised above at ([12]-[15]). It is, however, necessary to say a little more about them, although neither party disputed the facts alleged in the Statement of Facts prepared by the police.
Mr Beniamini and his new partner, the victim of these offences, had been in a relationship for about two years at the time he committed the offences. On 31 December 2014, his new partner was visiting a friend when Mr Beniamini contacted her by phone in calls in which he was abusive to her.
When she returned home to where she and Mr Beniamini had been living together for about two weeks, he confronted her and abused her, calling her a “stupid slut” and further seriously offensive descriptors. She then asked him to leave the premises. It was then that he became aggressive and physically violent, assaulting her as follows:
·he grabbed her by the hair, dragging her through the front door into the lounge room, causing her pain and pulling out some of her hair;
·a short time later, he entered the kitchen and grabbed her by the jaw, lifting her off the ground and carrying her to the foyer near the front door, causing her immediate pain to her jaw and both her cheeks;
·he then threw her into a small room near the foyer where she landed on her knees, causing immediate pain to her right knee and then pushed her backwards causing her to fall onto her back, which also caused immediate pain to her back; and
·he threw a pair of scissors at her, which struck her left hand, causing a small laceration to her middle finger.
Some, at least, of these events were seen by the children of Mr Beniamini’s new partner. They were aged six and three and a half. The Statement of Facts did not say precisely when, but at some stage during these assaults, his new partner told them to run from the house as she feared for their safety. It can be accepted that it is more likely than not that they did not see all of the incidents. They went next door and sought help from the neighbours who, it appears, called police.
After these attacks, Mr Beniamini’s new partner ran from her home, very upset, and a little later met police in the street. They saw her visible distress and noted redness and swelling of her nose and cheeks, and blood on her hands and t-shirt.
Police searched her home but did not find Mr Beniamini. His new partner declined to participate in a recorded conversation with police as she was scared of Mr Beniamini and worried about her safety. She said that this was because he had only been out of gaol for a couple of months for the offences against his former partner. That period is, however, not consistent with his criminal record, which shows that he had been released from full-time custody on 1 February 2014, though he was then required to serve a term of four months and two weeks imprisonment by periodic detention.
Police, however, were told on 4 January 2015 that Mr Beniamini was at his new partner’s home and they returned to try and find him. They searched the house and found him hiding under the bed in one of the children’s rooms.
Mr Beniamini was arrested but, as he was being escorted from the premises, he broke free from the police “escort hold” and fled. Police followed him but lost sight of him and could not find him after an extensive search. Later that night, they returned to his new partner’s home and found him sitting on a mattress in a bedroom next to her. He was again arrested and, unsurprisingly, handcuffed; he was taken to Tuggeranong Police Station where he was interviewed. He said he could not recall much of the evening of 31 December 2014 as he was drinking “Wild Turkey”.
Magistrates Court Sentencing Proceedings
As noted above (at [17]), Mr Beniamini appeared in Court on 5 January 2015 and was remanded in custody. The proceedings were adjourned a number of times. He pleaded guilty to all charges on 10 February 2015, when a Pre-Sentence Report and a Report from the Court Alcohol and Drug Assessment Service (CADAS) was ordered. On 12 March 2015, he was convicted of all the offences.
Unfortunately, the recording of the proceedings on that day was incomplete because of a recording equipment malfunction.
A Pre-Sentence Report, Bail Progress Report and CADAS Report were all before the learned Sentencing Magistrate. I deal with those below.
The learned Sentencing Magistrate made a Deferred Sentence Order until 10 September 2015 and granted Mr Beniamini bail.
Despite that, the proceedings returned to Court on 27 May 2015, apparently for a breach of bail. Mr Beniamini was not present. It was, as noted above (at [26]), that the hearing on 10 September 2015 was then vacated. For reasons not immediately apparent, the proceedings were mentioned in Court on a number of occasions until sentencing submissions were made on 26 November 2015. I did not, however, have a transcript of the proceedings on that day and neither party to the appeal relied in the appeal on anything there said by way of sentencing submissions on that day.
Her Honour then imposed the sentences on 2 February 2016 as noted above (at [27]).
Subjective circumstances
In neither that part of the hearing on 12 March 2015, which was recorded, nor in the hearing on 2 February 2016, did the learned Special Magistrate set out in any detail the subjective circumstances of Mr Beniamini. These matters are required to be considered by a sentencing court under s 33(1)(m), (n), (r) and (t) of the Crimes (Sentencing) Act.
It is to be accepted that sentencing remarks will be truncated in a busy court such as the Magistrates Court. Thus, as pointed out in Rubio v Ohlmus [2016] ACTSC 84; 75 MVR 468 at 476; [67]-[68], the sentencing remarks can be taken in appropriate cases to include what has fallen in exchange between counsel and the bench if clear that this is not merely argument but acceptance and decision by the sentencer. The obligation can also be discharged by the incorporation of material, such as reports, references, and the like, if it is clear that this has been done. Such an approach does permit less detailed sentencing remarks than are appropriate in this Court: Sleiman v Murray [2009] ACTSC 82; 231 FLR 224 at 236; [75].
It is important, however, that the reasons are adequate to serve essential functions. These include the need for the offender to know the reasons for the sentence imposed: Goundar v Goddard [2010] ACTSC 56; 240 FLR 176 at 183; [41]; Talukder v Dunbar [2009] ACTSC 42; 194 A Crim R 545 at 556; [60].
The other reason is, of course, so that, if necessary, an appeal court can understand the reasoning used by the sentencer and why the specific sentence has been imposed: Holder v Brennan [2014] ACTSC 195 at [77]-[82] and the cases there cited: Peverill v Crampton (No 2) [2011] ACTSC 175 at [26].
Using the reports which were before her Honour and assuming that, as neither counsel took me to the sentencing submissions or challenged any of the contents of the reports, there was no contest about what was said about Mr Beniamini in them, I make the following findings.
Mr Beniamini was born nearly 34 years ago, one of four children and the only male born to his parents. He grew up in a happy, loving and caring household and maintains a close, positive, pro-social and supportive relationship with his parents and his siblings.
He ended his formal education at Year 10, though he had been achieving satisfactory grades. He then started an apprenticeship as a spray painter, but did not continue beyond a few months, leaving to join his father in the family tiling business, where he has had ongoing employment (apart from his incarceration). Indeed, prior to his first period of custody, his father is said to have “bestowed” the business on him. It appears from other material, however, that it remains a family business.
Mr Beniamini has been in a number of significant relationships. His first relationship, when he left home at 21 to live with his then partner, lasted for eight years and resulted in the birth of a daughter, now 11 years old. She lives with her mother interstate and Mr Beniamini, therefore, does not appear to have much contact with her.
His second relationship, of about five and a half years duration, produced two children, a boy and a girl, now eight and seven years of age, with whom Mr Beniamini had, until his incarceration, regular weekend contact. They also live with their mother.
His most recent relationship of about three years has been with his new partner. She has two children.
Mr Beniamini is generally healthy both mentally and physically, though a loss he and his new partner experienced in 2014 led to periods of anger and low mood from that time. He did not seek any medical intervention and seemed to self-medicate with alcohol and illicit drugs.
Mr Beniamini began drinking when he was 17 years old and alternated between binge drinking and periods of abstinence. He would, when binge drinking, consume a bottle of super-premium American Bourbon, “Wild Turkey”. He has a goal of achieving abstinence because he cannot consume alcohol in safe or moderate quantities.
He has tried a number of illicit drugs in the past; amphetamines, ecstasy (MDMA), and steroids, but claims no current use. Despite this, on entry to the Alexander Maconochie Centre, a standard required urinalysis was positive for illicit substances, though the material I had coyly did not specify what drugs they were.
He has previously attended alcohol and other drug counselling but found it ineffective, mainly because he said that he was not ready for such counselling nor willing to make the necessary changes.
While in the Alexander Maconochie Centre in 2015, however, he applied for admission to the Solaris Therapeutic Community, a program I have described in R v JM [2014] ACTSC 380 at [26]. That option was not then pursued because of the Deferred Sentence Order initially made by the learned Special Magistrate, when he was released from custody.
In R v Beniamini (2010), I described Mr Beniamini’s criminal history as “unimpressive”. His criminal history commenced when he was 17 years old and, at the time, the learned Special Magistrate imposed the Deferred Sentence Order, consisted of 30 offences, including those for which her Honour was sentencing him. They appeared to be explicable by his alcohol abuse, though they included five offences of dishonesty, including two offences of burglary. There were, however, nine offences of violence on his record, including the offences for which her Honour was sentencing him.
He had first been sentenced to full-time imprisonment, however, only for the offences the subject of the sentences imposed by the Chief Magistrate in Reid v Beniamini on 25 November 2015.
The learned Special Magistrate clearly had access to my sentencing remarks in R v Beniamini (2010) and my reasons for upholding the appeal in Beniamini v Storman. These would have shown that, when he is not engaging in domestic violence, he was a good father and a good partner. This is relevant, but has to be put into the context that it creates a certain cruelty for it involves an attraction to him by his partner that the relationship with him brings, but which also makes such a partner vulnerable when the violence occurs because of that relationship.
The sentence
The sentence was, in reality, conducted in two sessions, first on 12 March 2015, when the Deferred Sentence Order was made following the entry of convictions, and then on 2 February 2016 when the sentences, the subject of the appeal, were imposed.
As noted above (at [48]), the record of the proceedings on 12 March 2015 is incomplete. Her Honour, however, was clearly moved by his prospects of rehabilitation, which her Honour clearly thought gave “good reasons for concluding that [the deferral of sentence] is likely to assist the court in determining whether [Mr Beniamini] should be sent to gaol”: R v Trindall [2002] NSWCCA 364; 133 A Crim R 119 at 131; [64].
In coming to this conclusion, her Honour was clearly influenced by two references. The first was provided by Mr Beniamini’s father, who wanted him to take over the family business and give him a fresh start. The second was from his new partner who said that he was a good provider and that she needed him to support the family. Her Honour was also supported in this by the Pre-Sentence Report which suggested that Mr Beniamini “may benefit from this sentencing option”, namely a Deferred Sentence Order.
Accordingly, her Honour proceeded to make a Deferred Sentencing Order under s 27 of the Crimes (Sentencing) Act. This section sets out some pre-conditions which her Honour addressed.
The first pre-condition under s 27(1)(a) of the Crimes (Sentencing) Act, was met when her Honour convicted Mr Beniamini of each of the four offences. Her Honour did not, as would have been prohibited by s 27(1)(b), proceed to sentence him. Her Honour accepted, as required by s 27(1)(d), that he should be allowed “to address [his] criminal behaviour and anything that contributed to that behaviour.” Her Honour identified that as being “essentially, the alcohol”. Her Honour also made it clear, as required under s 27(1)(e), that she could release him on bail. Her Honour did not expressly advert to the requirement under s 27(1)(c) that Mr Beniamini was not serving nor liable to serve a sentence of imprisonment for an offence other than those for which her Honour was dealing with him, but that was plain.
Her Honour was also required to consider matters under ss 116 and 117 of the Crimes (Sentencing) Act. Her Honour accepted under s 116(1)(a) that releasing Mr Beniamini on bail would allow him to address his criminal behaviour or anything that contributed to that behaviour. This, it seems to me, is slightly different from the requirement under s 27(1)(a) for it requires the sentencer to be satisfied that there is some mechanism for this, that is that there is a program available, some particular strategy that could be implemented or a process that the offender could undertake or to which he or she would be subject.
In this respect, the provision may be somewhat different from s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW), even though both have their genesis in the “Griffiths Remand” as discussed in Griffiths v The Queen (1977) 137 CLR 293. Section 11 has a wider remit which would include, for example, a deferral of sentence to permit important surgery to take place (R v Trindall at 130; [61]), to permit a mother to avoid separation from a newborn baby (R v Togias [2001] NSWCCA 522; 127 A Crim R 23 at 24; [6]-[7]) or if the severe depression of the offender causes a significant risk of suicide arising from his or her continued detention (R v Trindall at 130; [58]). See also R v Farrell [2014] NSWCCA 30; 239 A Crim R 212 at 221-3; [50]-[61]. These purposes would not justify a Deferred Sentence Order.
Her Honour also had regard to the Pre-Sentence Report and the references, as required by s 117 of the Crimes (Sentencing) Act.
Section 118 of the Crimes (Sentencing) Act is also relevant. It provides:
118 Deferred sentence orders – indication of penalties
If the court makes a deferred sentence order for the offender, the court must state, in general terms –
(a) the penalty that the offender might receive if the offender complies with the order and any bail conditions; and
(b)the penalty that the offender might receive if the offender does not comply with the order or a bail condition.
Her Honour addressed this issue as follows:
HER HONOUR: I have to warn you that if you breach the deferred sentence or the bail you will go to gaol full time and for a very long time.
...
If not, under the provisions of the Act I need to tell you what I am going to do and if you don’t breach – because these offences are serious and because you have such a significant history I have to take some measures in punishment but I would be prepared to grant you periodic detention and I will do that for three months so it’s not a long time. It won’t take your work away from you. You will still be able to have your freedom and I will give you a good behaviour order in the order of about 18 months. That’s what I am thinking of doing for this deferred sentence. All right? So it means you will not go to gaol full time but you will have to do the periodic detention.
Her Honour then adjourned the sentencing to 10 September 2015 to assess the progress Mr Beniamini might make towards rehabilitation. As noted above (at [18]-[24]), Mr Beniamini then committed further domestic violence offences for which he was sentence to imprisonment prior to that date. As also noted above (at [26]-[27]), the present sentencing was then adjourned by the learned Special Magistrate until 2 February 2016 when he was sentenced to terms of imprisonment the subject of this appeal.
In her Honour’s sentencing remarks, she was appropriately concerned with the earlier convictions and his imprisonment for them. It was also noted that, despite saying at the earlier sentencing proceedings that he would seek residential rehabilitation for his alcohol abuse, Mr Beniamini had declined to enter such a facility. Indeed, both CADAS and ACT Corrective Services soon lost contact with him.
Her Honour noted that, not only had he committed further offences, but that these breached the Good Behaviour Order I had further imposed.
Her Honour referred to my remarks on sentence in R v Beniamini (2010), especially where I expressed concern about his criminal history of assaults, which her Honour pointed out had disclosed a tendency to violence which was repeated in the subsequent matters, those before the Chief Magistrate and those to be dealt with by Her Honour. The Good Behaviour Order then made was, however, not the Good Behaviour Order he breached, but the fresh one imposed in R v Beniamini (2014).
Her Honour also referred to the sentencing remarks of the Chief Magistrate in Reid v Beniamini. Her Honour cited extensively from the Chief Magistrate’s remarks, especially as to the seriousness of domestic violence offences.
Her Honour noted that Mr Beniamini had participated in the introductory component of the Solaris Therapeutic Community Program at the Alexander Maconochie Centre and had been assessed as suitable to be admitted to the Karralika Therapeutic Community (as to which, see R v Sladic [2014] ACTSC 56 at [23], R v Kristiansen [2015] ACTSC 159 at [12]-[14]).
Her Honour then identified the offences and their maximum penalties: for common assault, two years imprisonment and for escaping lawful custody five years imprisonment.
There was some reference in her Honour’s sentencing remarks to the maximum penalty for the offence of escaping from lawful custody. As noted above (at [16]), the maximum penalty includes a period of five years imprisonment.
Accordingly, s 374 of the Crimes Act applied. This section provides:
374 Summary disposal of certain cases at prosecutor’s election
(1) This section applies if a person (the defendant) is before the Magistrates Court charged with an offence punishable by imprisonment for longer than 2 years but not longer than 5 years.
(2) The prosecutor must elect whether to have the case disposed of summarily.
(3) The defendant must not be required to plead guilty or not guilty to the charge if the prosecutor has not made an election under subsection (2).
(4) The prosecutor must make the election before the later of –
(a) the 2nd time the proceeding for the offence is before the court; and
(b) 21 days after the 1st time the proceeding for the offence is before the court.
(5) If the prosecutor does not elect to have the case disposed of summarily within the time required under subsection (4), the court must deal with the charge in accordance with section 375 (6) to (16).
(6) If the prosecutor elects to have the case disposed of summarily, the court must hear and determine the charge summarily and sentence or otherwise deal with the defendant according to law.
(7) If the court disposes of a case summarily under this section and convicts the defendant of the offence, the court must not impose a penalty that exceeds – a
(a)fine of $5 000, imprisonment for 2 years or both; or
(b) if the maximum penalty provided for the offence by the law creating it is a fine of less than $5 000 – he maximum penalty.
(8) In this section:
“Magistrates Court” includes the Childrens Court.
The prosecution had made an election under s 374(2) of the Crimes Act to have that offence dealt with summarily. Thus, s 374(7)(a) limited the sentencing power of the learned Special Magistrate to two years. Her Honour, however, said:
I note also that the prosecution elected in relation to that matter to file an election form so that it was dealt with summarily. So the maximum penalty is two years’ imprisonment for that charge.
Her Honour took into account Mr Beniamini’s plea of guilty, the circumstances of the offences and their objective seriousness. She assessed the objective seriousness as “low to mid level”, except for the assault by throwing scissors which was assessed as “mid range”. Her Honour said she took into account the matters required to be considered by s 33 of the Crimes (Sentencing) Act and the purposes of sentence under s 7 of that Act, especially specific and general deterrence, the need for adequate punishment and the protection of the community. Her Honour added that “there is still some hope for you to rehabilitate yourself” but noted that he had “not yet accepted that you need help”.
Her Honour took into account 67 days of pre-sentence custody. Her Honour then proceeded to sentence Mr Beniamini, identifying the sentence that, but for the plea of guilty, would have been imposed. The sentences were set to commence after the sentence imposed by the Chief Magistrate ended.
The sentences imposed, not in chronological order, but as follows:
No.
Offence
Sentence
Cumulation
Sentence without plea of guilty
1
Common assault CC2015/563 (thrown scissors)
8 months from 14 March 2017 to 13 November 2017
8 months
15 months
2
Common assault CC2015/560 (dragged by hair)
6 months from 13 November 2017 to 12 April 2018
+5 months
8 months
3
Common assault CC2015/562 (thrown and pushed)
4 months from 12 April 2018 to 11 July 2018
+ 3 months
6 months
4
Common assault CC2015/561 (lifted by jaw)
4 months from 11 July 2018 to 10 October 2018
+3 months
6 months
5
Escape lawful custody CC2015/564
4 months from 10 October 2018 to 9 December 2018
+2 months
6 months
I shall later refer to them for ease of reference by the number in this table.
The odd days seem to arise from the learned Special Magistrate starting each subsequent period of imprisonment on the day the prior period ended rather than, as usually required, on the next day. Thus, the final sentence ended on 9 December 2018 when, if the periods of months were fully served instead of being concurrent for an extra day with each prior sentence, the final sentence would have ended on 13 December 2018.
Consideration
While the Notice of Appeal and the Notice of Contention set out in total five grounds, there were really three issues on this appeal:
1.the alleged mis-statement by the learned Special Magistrate of the maximum penalty for the offence of escaping from lawful custody;
2.the alleged severity of the sentence, made up of Mr Beniamini’s submission that it was manifestly excessive and the respondent’s submission that her Honour erred in taking into account material considerations or erred in the assessment of the objective seriousness of the offences of common assault; and
3.the alleged failure to apply the principle of totality.
It is appropriate to deal with each of these in turn.
Maximum penalty: escaping lawful custody
Section 160 of the Crimes Act expressly provides:
160 Escaping
A person who has been lawfully arrested, is in lawful custody, or is lawfully detained during pleasure, in respect of an offence against a law of the Territory, a State or another Territory and who escapes from that arrest, custody or detention commits an offence.
Maximum penalty: 100 penalty units, imprisonment for 5 years or both.
Thus, the maximum penalty is as expressed at the foot of the section. See s 134 of the Legislation Act 2001 (ACT).
This is, however, subject to s 374 of the Crimes Act, as set out above (at [89]) and, in particular, s 374(7)(a). That limits the jurisdiction of the Magistrates Court to a sentence of no more than two years imprisonment or a fine of $5 000 when imposing sentence for offences punishable by more than two years but less than five years when the prosecutor elects to have the offence disposed of summarily.
Her Honour, however, expressed the two years imprisonment to be “the maximum penalty” as noted above (at [90]). The complaint by the respondent was that the two years and $5 000 fine is not a maximum penalty but only a jurisdictional limit.
That submission is to be accepted. As Johnson J, with whom McClellan CJ at CL and Rothman J agreed, said, in Zreika v The Queen [2012] NSWCCA 44; 223 A Crim R 460, at 480; [99]:
Magistrates must not regard the jurisdictional limit as some form of maximum sentence reserved for a worst case: Re Attorney-General’s Application (No 2 of 2002) (NSW) (2002) 137 A Crim R 196 at [27]; R v El Masri [2005] NSWCCA 167 at [30].
Thus, Grove J, with whom Spigelman CJ and Kirby J agreed, explained in R v Doan [2000] NSWCCA 317; 50 NSWLR 115 at 123; [35]-[36]:
35 The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted, must be rejected. As must also be rejected, the corollary that a sentence of two years imprisonment should be reserved for a ‘worst case’.
36 That conclusion is compatible with the observation of Allen J (Smart and Dunford JJ agreeing) in R v Young (Court of Criminal Appeal, 27 October 1993, unreported) at 5:
It is not the function of Local Courts to give less than appropriate sentences because the matters are being dealt with in the Local Court rather than in the District Court or the Supreme Court.
In my view, this construction should be applied to s 374 of the Crimes Act. Her Honour’s description was incorrect, though a lapse of language in a busy Magistrates Court may not necessarily bespeak error in the actual sentence. In this regard, I note that the respondent filed a Notice of Contention and not a Notice of Cross-Appeal.
The reason and history for such a document as a Notice of Contention was set out in David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416 at 420-1.
As the High Court said in Whinspun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (No 2) [2004] HCA 2; 204 ALR 22 at 24; [10]:
The effect of a notice of contention is to support the order under appeal by an argument or arguments not accepted or applied by the court whose order is under appeal.
Thus, it would be inappropriate, if not beyond jurisdiction, on this appeal to increase the sentence (though, of course, that could occur only after giving the direction required by Parker v Director of Public Prosecutions (1992) 28 NSWLR 282) as a result of a consideration of the Notice of Contention.
On the other hand, insofar as the sentence for the offence may be the subject of challenge of the ground that it is manifestly excessive, the point of law, raised by the Notice of Contention in this context, could be used at least to support the sentence actually imposed by the learned Special Magistrate.
The severity of the sentence
Under this ground, it is first appropriate to address the question of the challenges in the Notice of Contention, namely that the learned Special Magistrate erred by the assessment of the objective seriousness of the offences by characterising them as “low to mid” or “mid” range and then, in taking those assessments into account, took into account irrelevant considerations.
It is clear that, when sentencing, the Court must take into account all relevant factors: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 373; [37]. This process allows the Court to balance the various factors without any statutory requirement to give particular weight to one or other of them. This process is often referred to as a process of instinctive synthesis: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 611; [75].
Sometimes, these various elements are considered by looking at them under two aspects. As Kirby J explained in Ryan v The Queen [2001] HCA 21; 206 CLR 267 at 299-300; [110]:
Unless a statute or some other law requires the contrary, sentencing of offenders always involves consideration both of matters relevant to the offence and matters relevant to the offender. In Canada, those are commonly called ‘offence factors’ and ’offender’ considerations’’. In Australia, they are sometimes described (inaptly in my view) as the ‘objective’ and ‘subjective’ considerations.
(footnotes omitted)
What is in one category or another is not always easy to identify as some aspects overlap. Indeed, there may be a third category which fits neither of this dyad.
The approach has also been affected by statutory provisions in NSW where Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act requires an assessment of the objective seriousness of an offence by a specified range so as to be able to set the non parole period. That statutory regime does not apply in this Territory.
Thus, the High Court, when considering the NSW regime, has made the limits of “objective seriousness” quite strict, noting in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 132; [27]:
Section 54B(2) and (3) [of the NSW Act] oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as ‘the non-parole period for an offence in the middle of the range of objective seriousness’. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending
(footnote omitted)
For example, in Boney v The Queen [2015] NSWCCA 291 at [18]-[20], it was held that the fact that an offence was committed while the offender was at conditional liberty (there, he was on parole) was not a factor which was relevant to the “objective seriousness” of the offence.
To be on conditional liberty when offending must be a relevant factor for sentencing and be an aggravating factor, so that it, perhaps, falls into a third category of factors, at least when the statutory regime creates such a strict classification.
As noted above (at [112]), however, this is not the regime that pertains in this Territory. There is, therefore, no requirement to provide a range of objective seriousness in a quasi-mathematical way to comply with a statutory obligation. Indeed, it is only in respect of the non parole period that the assessment of the objective seriousness by the relevant range in NSW is relevant in any event. To consider it otherwise would return to the discredited “two stage” sentencing process rejected by the High Court: Wong v The Queen at 611; [74], a rejection approved in Markarian v The Queen at 373; [37].
Thus, there is no legal requirement in this Territory to identify whether an offence is in the low, low to mid, mid, mid to high, or high range, or some other quasi-mathematical scale for the purposes of sentencing. There is no direct consequence of such a finding as there is in NSW. There is no basis for identifying the objective seriousness in this way of an offence for any special purpose: it will not determine the length of the sentence nor, in this jurisdiction, even the length of the non parole period. At best, it can be a short-hand for the objective seriousness of an offence, but which can only be described by identifying the aggravating and mitigating factors.
That is not to say that the objective seriousness of the offence is not an important matter; indeed, it will be an essential part of the factors, all of which must be taken into account in determining the sentence to be imposed by application of the instinctive synthesis required of a sentencing court.
In my view, this will usually be best done by identifying the relevant factors relating to the offence, its nature, and the circumstances of its commission and its effects, some of which will aggravate the seriousness of the offence and others which will mitigate it. This is usually more helpful in sentencing than trying to assess some quantitative range of seriousness that masks the discretionary nature of sentencing.
Sometimes, it will be possible to assess these factors against those to be found in the comparable cases to which the Court may be taken by counsel and to which it is entitled to have regard: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at 73; [38].
Of course, crime being a human activity, the circumstances, conduct, nature and effects of an offence will be quite varied and individual factors will point in different ways. Hence the need for that synthesis.
In this Territory then, the relevance of identifying factors that aggravate or mitigate an offence is to present to the Court a picture of the offence, the offender, and any “third category” of factors to which I earlier referred (at [111]), so that a just and adequate sentence can be imposed. While there is no error in classifying the seriousness of an offence in the quasi-mathematical way, there is no need and, in my view, this can, and often does, deflect the sentencing court from the task which the High Court in Markarian v The Queen has required of it.
In an appeal, the identification of these individual factors will assist an appeal court in determining whether a sentence is manifestly excessive or inadequate. The identification of specified matters is then a particular of that ground of appeal. See Williams v The Queen [2016] ACTCA 15; 75 MVR 482 at 490; [29].
Accordingly, I do not consider that there was an error of law made by the learned Special Magistrate when describing her evaluation of the objective seriousness of the offences. While the factors, which were particulars given of Ground 2 in the Notice of Contention, were very relevant to an assessment of the seriousness of the offence, the asserted errors are not made out.
That is not to say that reliance on these factors noted as particulars of the complaint in the Notice of Contention is not relevant to an assessment of whether, as asserted by Mr Beniamini, the sentences are manifestly excessive. If her Honour omitted consideration of an aggravating factor, that may mean the sentence is inadequate (indeed, in some cases, manifestly so) and, in that case, self-evidently not manifestly excessive.
The question of how a court determines whether the sentences, both individually and cumulatively, were manifestly excessive as asserted by Mr Beniamini, is a matter that has received considerable consideration by the courts and on a number of occasions in this jurisdiction.
The Court of Appeal recently considered the matter in Williams v The Queen at 492; [37], where it was said:
37. The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They were recently summarised by the Court in Dalton v The Queen [2015] ACTCA 48 at [18] in the following terms:
The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
·Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the primary Judge: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (Dinsdale).
·The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King [1936] HCA 40; (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323 at [61].
·In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].
·It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [28]; R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].
Mr Beniamini referred to what had been said in Jovanovic v The Queen [2015] ACTCA 29 at [41], relying on the decision of the Victorian Court of Appeal in R v Abbott [2007] VSCA 32; 170 A Crim R 306 at 309; [14], namely that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed such a sentence.
That formulation is, of course, inconsistent with what the High Court said in House v The King (1936) 55 CLR 499 at 505 and in many subsequent cases. Indeed, as I pointed out in Sampson v De Haan [2016] ACTSC 327 at [23]-[26], this is no longer the law in Victoria, which has since reverted to the traditional formulation of the High Court. This jurisdiction, too, should reject that error and follow the High Court.
In TW v The Queen [2011] ACTCA 25; 6 ACTLR 18 at 27; [60]-[61], I set out the principles similar to these and then pointed to ways in which the case for manifest excess, or inadequacy, may be made out as follows:
60.In R v Campbell, this court set out in summary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32] to [35]):
32.In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]):
46.The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
47. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can – and should – draw the relevant conclusion.
See also R v Thorn [2010] ACTCA 10 (at [33]).
33.As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):
What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.
34.It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
35.The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.
61. This can be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court.
In this case, neither party provided any conspectus nor pointed to a range or tariff set by a court of criminal appeal. Indeed, I was not really taken to any comparable cases.
The factors relevant to the assessment of the offences included:
· that these were family violence offences which the courts are required to take seriously: R v Hamid;
· that Mr Beniamini was at conditional liberty at the time of the offending, namely the good behaviour order that I had made in Beniamini v Storman. This is a matter of aggravation: Amos v McCarron [2017] ACTSC 6 at [77];
· that there were children present at the time of the offending which is a relevant matter of aggravation: Elson v Ayton [2010] ACTSC 70 at [68]-[70];
· that the children, who were quite young at the time, were told by the victim to run outside where they were unsupervised, though they did apparently go relatively directly to a neighbour’s place where they managed to have the police called. This was aggravating but perhaps not to the degree suggested by the respondent;
· that there was a significant degree of violence, in that the victim’s hair was pulled out in the first count of assault, and in the last count of assault, he threw scissors at her which caused a small laceration. The other assaults were by no means insignificant and this level of violence did mean that all the offences were serious. These two, however, may have amounted to actual bodily harm as defined in cases such as R v McGuikin [2014] ACTSC 242 at [30], but, of course, Mr Beniamini cannot be punished for that: R v De Simoni (1981) 147 CLR 383.
I have set out Mr Beniamini’s subjective circumstances and these must be considered when assessing whether a sentence is manifestly excessive. No particular matters were drawn to my attention.
Mr Beniamini did raise the following matters. The first was the somewhat unequal way in which the sentences were set. That is to say, the sentence for the first offence in the Table above (at [93]), which involved throwing the scissors and causing a small laceration was one and a third times the length of the sentence for the second offence in the Table, namely pulling the victim’s hair, some of which was pulled completely out of her head.
Pulling hair is, perhaps, not inherently dangerous, whereas throwing scissors must be considered to be so. The injury suffered in the second offence in the Table was quite serious, though the amount of hair actually pulled out was not identified to the Court. The injury caused by the scissors was described as “small” though police saw blood on the victim’s hand and t-shirt. It was not clear whether that was from the laceration or from her head from where the hair had come out or how much blood there was.
The difference is even more stark when the sentence proposed prior to the discount for the plea of guilty being taken into account are considered, when by the pre-discount sentence, the sentence for the first offence in the Table is said to be one month less than twice as serious as the sentence for the second offence in the Table.
It must be accepted that there was perhaps a greater potential for injury in throwing scissors, which may have landed in the victim’s eye, for example, but while serious conduct, because of that potential consequence, the actual injury is the gravamen of the offence. Thus, there is a seriousness in conduct with grave potential consequences as, for example, in the difference between the use of a loaded or unloaded firearm: R v Hetherington [2016] NSWCCA 165 at [35].
On the other hand, all assaults have a potential to cause serious injury. An example is the so-called “one punch” assault where no weapon is used but which, by a single blow, can result in catastrophic injuries as pointed out in R v Sharma [2016] ACTSC 180 at [18]. As I pointed out in R v Carmody [2016] ACTSC 382 at [52] and [123], the actual harm caused is very important and the potential, unrealised harm should not unduly influence the sentence beyond what is just for the actuality of the offence.
It is difficult to see the first offence in the Table being so much greater in its seriousness that the second offence in the Table and, indeed, from the other two, where being pulled up by the jaw and being “thrown” into another room were relatively serious examples of assault.
While no comparable cases were submitted to me, I was referred to what I had said in Grimshaw v Mann [2013] ACTSC 189 at [74], as follows:
I have had access to the statistics provided by the Judicial Commission of New South Wales for the offence of common assault. They show that of 28,669 cases, 6% were sentenced to imprisonment and, of these, 19% received a sentence of imprisonment of ten months or more. Nine offenders were sentenced to more than twelve months imprisonment and none to more than eighteen months imprisonment. Even on a plea of guilty, only 17% of those sentenced to imprisonment were sentenced to more than nine months imprisonment. I am aware that these are statistics from another jurisdiction, though one with which we share a common heritage in criminal law. I am also aware of the caution expressed by Spigelman CJ, with whom Sully and Ireland JJ agreed, in R v Bloomfield (1998) 44 NSWLR 734 at 739 about the use of such statistics.
It is, of course, impossible to know the particular circumstances of these offences and they do not represent the range of permissible sentences; that is set by the statutory maximum. They do assist, however, in assessing the general approach to sentencing for this offence. See the careful analysis of the use of such statistics in Ashdown v The Queen [2011] VSCA 408; 219 A Crim R 454 at 511; [151] (31).
The summary prepared of the ACT Sentencing Database for the offence of common assault provides a similar picture. It relevantly states:
·There were 1018 sentences imposed in the Magistrates Court between 1 July 2012 and 31 August 2015 for the offence of common assault;
·Good Behaviour Orders (GBOs) were the most common penalty (56 per cent of all sentences), with 12 months the midpoint and most common length (58 per cent of GBOs and 31 per cent of all sentences);
·Prison and fully suspended sentences were each imposed in 13 per cent of cases;
·The midpoint length for both prison and fully suspended sentences was three months;
·Fines were imposed in eight per cent of cases, with a midpoint fine of $500.
Looking at the specific dispositions, there were 127 offences for which full-time imprisonment was imposed, being 13 per cent of cases, and the range was from one to 17 months, with 80 per cent in the range of two to six months. Indeed, only four sentences were longer than 12 months. It appears that these were imposed generally, but not inevitably, following a plea of not guilty.
Of course, this does not show whether these were offences of family violence and any other particular circumstances of the offending.
Thus, again, care must be used with these statistics. Even assuming that the respondent’s assessment of the seriousness of the offending was made out, these justify the submissions of Mr Beniamini so far as count one is concerned.
All this does seem to support the submission that the sentence for the first offence on the Table was manifestly excessive.
Mr Beniamini then submitted that the learned Special Magistrate was overly affected by the proceedings before the Chief Magistrate dealing with offences committed after the offences the subject of the appeal but for which he was sentenced first.
There were two elements to the challenge. In the first place, it was submitted that the extensive reference to the reasons of the Chief Magistrate, especially in the references at some length by the learned Special Magistrate to the seriousness of those other offences dealt with by the Chief Magistrate suggested that the learned Special Magistrate had given undue weight to the facts and seriousness of them, which must have influenced the sentence her Honour imposed.
The learned Special Magistrate did recount in some detail the sentencing remarks of the Chief Magistrate. Some of those remarks were directly relevant, for example, showing that Mr Beniamini had made the same offers of rehabilitation that he had made to the learned Special Magistrate but had done little about it when given the chance.
Much of the remarks also related to the seriousness of family violence offences, which was, of course, generally relevant, but reading the sentencing remarks of the learned Special Magistrate does give the impression that her Honour was not merely adopting what the Chief Magistrate had said but was using the comment to aggravate the offences for which her Honour was then to sentence him.
This, indeed, may have led to the excessive seriousness apparently accorded to the first offence on the Table to which I have referred.
It is also necessary to consider the way in which the learned Special Magistrate could and did take into account the offences dealt with by the Chief Magistrate.
Clearly, her Honour had to consider correctly that Mr Beniamini had not complied with the Deferred Sentence Order since further offending was inconsistent with the progress towards rehabilitation that was its purpose, especially since the offences were similar: acts of violence and of family violence, indeed on the same victim.
At the hearing of the appeal, it was also submitted that, as the offences dealt with by the Chief Magistrate were committed after those the subject of the appeal, they could not be taken into account in the assessment of the proper sentence for those earlier committed offences. I gave some encouragement to that argument at the hearing. I have, however, been able to give careful thought to that issue and to consider relevant authorities; I reject the submission.
Some early decisions did suggest that such an approach was correct. In R v McAllister (1982) 30 SASR 493 at 500, Wells J, speaking for the Full Court of the Supreme Court of South Australia, said:
It is clear, of course, unless there are special circumstances rendering convictions for offences committed after the offence for which a person stands to be sentenced relevant to the latter, that such convictions cannot be taken into account: Rainbird v Samuels [(1972) 4 SASR 187]. That there may be special circumstances in which subsequent convictions are relevant is in accordance with principle, but, of course, the connection with the conviction for which the sentence is to be imposed must clearly appear: see per Gavan Duffy and Dean JJ, in the case of Reg. v Wilson [[1956] VLR 199 at 201-2].
See also R v Phillips [1962] VR 55.
That approach, however, no longer applies. It was decisively rejected in R v McInerney (1986) 42 SASR 111. In that case, King CJ said at 112-13:
In my opinion the true rule is that a sentencing court may take into account in an appropriate way and for appropriate purposes, offences committed by an offender whether such offences were committed before or after the commission of the offence for which sentence is being passed and whether the convictions for such offences occurred before or after the commission of the offence for which sentence is being passed.
His Honour went on further at 113 to explain the proper basis for taking such offences into account in a passage pre-dating but entirely consistent with what the High Court said in Veen v The Queen (No 2) (1998) 164 CLR 465 at 477. His Honour said:
I conclude with some observations as to the way in which and the purposes for which subsequent offences may be taken into account. The cardinal rule is that while good character may operate to reduce the sentence which the facts of the crime would otherwise attract, bad character cannot increase it. A person is not to be punished, or punished again, for crimes other than the crime for which sentence is being passed. Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways. They may diminish or abrogate any leniency by reason of good character. They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner’s record may indicate that greater punishment is needed to protect the public by deterring him from further crime. Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases. The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending. He must be sentenced against the background of his record: Director of Public Prosecutions v Ottewell [(1968) 52 Cr App R 679 at 681]. The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies.
Where the other offences have been committed after the immediate offence, they are relevant only in special circumstances. The offender has not committed the immediate offence with his character already affected by the offences nor after the experience of conviction. In circumstances, however, in which the offender might otherwise have been given credit for having lived a law abiding life in the period between crime and sentence, it is relevant that he has not so lived but has committed an offence or offences in that period. In some circumstances, the nature of the subsequent offences may be such as to suggest that a greater degree of personal deterrence than would otherwise have been contemplated, is required. It seems to me that the circumstances in which offences subsequent to the commission of the offence for which sentence is being passed, are relevant to the sentence, are more restricted than those in which prior offences are relevant. No doubt that is what Wells J meant by his reference to “special circumstances” in McAllister's case [(1982) 30 SASR 493].
Cox J took the same approach after conducting a thorough analysis of the various authorities, including R v Withers (1789) 3 TR 428; 100 ER 657, R v Hutchins (1957) 75 WN (NSW) 75, and R v Gray [1977] VR 225, noting at 123, however, that “there can be no question of paying regard to subsequent convictions if they are not relevant”.
This approach has been followed since. See Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, R v Clery [2014] SASCFC 63, and Acorta v The Queen [2015] VSCA 94.
In this case, the further convictions were very relevant for the reasons that they went to the very purpose of the Deferred Sentence Order and the ongoing disobedience of Mr Beniamini to the law.
There was no error in this regard unless her Honour used them “positively to increase the head sentence” (R v Rumpf [1988] VR 466 at 475) and, apart from offering some support to the approach I have concluded should be taken to the sentence for the first offence on the Table, namely that it was a manifestly excessive sentence, I am not satisfied that they were so used for the other sentences.
Accordingly, I am satisfied that the sentence for the first offence on the Table was manifestly excessive but not those for the other offences.
Totality
Under this heading, I consider two matters. The first relates to the way in which the learned Special Magistrate addressed the issue of concurrency and cumulation between the sentences for the offences with which she was sentencing Mr Beniamini. The second is the way in which the sentences interacted with those imposed by the Chief Magistrate.
The first is not necessarily a matter of totality in the sense in which the term is more traditionally used, following Mill v The Queen (1988) 166 CLR 59. It is, in reality, part of the principles relating to the fixing of sentences for multiple offences. As to those principles, the Court of Appeal said in O’Brien v The Queen [2015] ACTCA 47 at [26]:
The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:
(a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624.
(b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.
(c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252 at [112]; R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18].
(d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27].
The particular challenge in this case was that the learned Special Magistrate made the offences only concurrent to the extent of one month in each case when the offences really arose out of a single episode or a single course of conduct. That extended the total sentence to what seemed to be excessive for the actual criminality committed.
The events all took place within the home of Mr Beniamini’s new partner, the victim, though in various rooms within the house. It appears to have involved fairly continuous events of violence over a relatively short period of time. The facts were not entirely clear, but the two had their first encounter at about 9:40pm, but the next time mentioned in the Statement of Facts was when police arrived at 10:30pm, by which time the victim was in the street. It would appear that the events occupied about half to three quarters of an hour at the most.
Mr Beniamini submitted that the events, while discrete offences, were, in fact, part of a continuous course of conduct or a multi-faceted course of criminal conduct and thus the sentences should have been concurrent with each other.
The notion of a course of conduct is, itself, multi-faceted. As I said in R v Di Bitonto [2016] ACTSC 280 at [93]-[94]:
93.I accept that the offence encompassed a course of conduct. That is a characteristic that points in various directions. For example, where a number of offences are charged but which are really aspects of the one course of conduct, ordinarily this requires a high degree of concurrency between the sentences imposed for each offence. See Singh v The Queen [2015] ACTCA 65 at [141]-[142], Kennewell v Rand [2005] ACTSC 89 at [67], Amos v The Queen (Unreported, Full Court of the Federal Court of Australia, Bowen CJ, Fox and Blackburn JJ, 6 February 1985) at 8.
94.On the other hand, that an offence is part of a course of conduct makes it more serious than were it a single transaction. See, for example, R v Honeyman [2016] ACTSC 2 at [34], R v M T [2014] ACTSC 162 at [80]. This makes the offending more serious: R v Lanham [2014] ACTSC 128 at [71]. It may require more emphasis in sentencing on specific deterrence. See Mattas v Hawke [2013] ACTSC 90 at [19], R v Campbell at [47].
It was, of course, in the first sense that Mr Beniamini suggested I should view the events as a course of conduct.
That approach was explored by Wells J, with whom King CJ and Cox J agreed, in Attorney-General v Tichy (1982) 30 SASR 84 at 92-3, as follows:
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
That helpful analysis has been followed many times. It has become known as the “one transaction principle”. See Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319 at 329; [25].
The general principles were admirably summed up by the Court of Criminal Appeal of the Northern Territory in Carroll v The Queen [2011] NTCCA 6; 29 NTLR 106 at 117; [42], as follows:
The following principles are well established. First, s 50 of the Sentencing Act creates a prima facie rule that terms of imprisonment are to be served concurrently unless the court ‘otherwise orders’. There is no fetter on the discretion exercised by the Court and the prima facie rule can be displaced by a positive decision. Secondly, it is both impractical and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether the sentences should be ordered to be served concurrently or consecutively. The assessment is always a matter of fact and degree. Reasonable minds might differ as to the need for cumulation. Often there will be no clearly correct answer. Thirdly, an offender should not be sentenced simply and indiscriminately for each crime he is convicted of but for what can be characterised as his criminal conduct. The sentences for the individual offences and the total sentence imposed must be proportionate to the criminality in each case.
(footnotes omitted)
While the offences here committed were to be regarded properly as part of a single, serious and, no doubt, terrifying course of violent conduct, they were discrete events to a degree and this should be recognised. They were, also, common assaults and charged as such.
Thus, while this is not the case where three or four punches delivered virtually contemporaneously are charged as separate offences, when it is almost inevitable that the sentences would be wholly concurrent, the offences were nevertheless committed relatively continuously and were part of a connected attack on the victim of violence in a single continuous incident for which, as to a limited extent the learned Special Magistrate recognised, warranted a degree of concurrency, albeit in her Honour’s sentence of a quite modest kind.
Given the discretion essentially reposed in sentencers and with which an appellate court should not interfere unless error is shown, it is important that an appellate court must exercise a degree of restraint.
Nevertheless, having regard to the relevant principles I have identified and having regard to the reference to statistics to which I was taken, it did seem to me that the ultimate total sentence was one which exceeded a proper proportion to the criminality committed by Mr Beniamini.
The second matter was the relationship between the sentence imposed by the Chief Magistrate and that imposed by the learned Special Magistrate. Here, again, it is important to consider the totality of the sentence. It is not clear to me why, as would have been desirable, the sentence for the further offences ultimately dealt with by the Chief Magistrate were not actually dealt with by the learned Special Magistrate. It is quite undesirable for different judicial officers to be involved in the sentencing of the one offender for offences that have a relevant relationship if it can reasonably be avoided. That would have given the one magistrate the opportunity to craft a total sentence that respected the principles of proportionality and totality.
In particular, it avoids the perception that the later sentence, in order not to produce a total sentence that is disproportionate, may be forced to be a sentence for those specific offences that is too severe or is likely otherwise to appear too lenient for the actual offences, for which it is imposed. That, however, can be resolved in part by a degree of concurrency with the earlier sentences. That is, the sentences themselves may be of an appropriate length, but concurrency will address the issue of totality. This is not contrary to principle, even though sentences for different and unconnected offences will ordinarily be cumulative; the question of totality is important to produce a sentence that is just as well as adequate.
As Lamer CJ said in R v M (CA) (1996) 105 CCC (3d) 327 at 349:
The totality principle, in short requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.
The totality principle, as adopted by the High Court in Mill v The Queen at 63 was based on what D A Thomas said in Principles of Sentencing (Heinerman, 2nd ed, 1979) at 56-7, as follows:
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.'
The Court also referred to the well-known Canadian text by Clayton C Ruby, Sentencing (Butterworths, 3rd ed, 1987) at 38-41 where the learned author pointed out that the principle applies to sentences which are imposed by different courts but have continuous effect. Indeed, that was the position in Mill v The Queen where sentences had been imposed in different states, thus, inevitably, by different courts. The High Court sanctioned an approach to such cross-border sentencing that, at first sight, breached ordinary sentencing principles but complied with fairness and just sentencing when it said in Mill v The Queen at 67:
Without statutory authority, the only course open to the second sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody. It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries.
The advantage in the case of Mr Beniamini is that the difficulty which the High Court confronted in Mill v The Queen in the inability to make a sentence in one State retrospectively concurrent with an earlier sentence does not apply. The quotation is important, however, for it shows the significance that that Court placed on the totality principle. See R v Massey (No 2) [2016] ACTSC 278 at [88].
Her Honour did refer to the principle of totality but it came at the end of the imposition of the sentences, before setting a non parole period. What her Honour had done was to mention first, before the sentences, the earlier sentences and implicitly accepted the end of those sentences as the appropriate start date for the sentences she was to impose, without apparent regard to the principle of totality. Her Honour said:
Given that you are already serving a term of imprisonment imposed by the Chief Magistrate, this sentence will commence on 14 March 2017 and will conclude on 13 November 2017.
The sentences imposed by the Chief Magistrate ended on 14 March 2017. Thus, this was, in fact, a concurrency of one day with the two sentences, but that seems to have been unintentional. The intention was to make the sentences her Honour was imposing to be wholly cumulative on those earlier sentences. While in accordance with some principles, it did not necessarily comply with the principle of totality to which no reference was made in this context.
Her Honour then imposed the various sentences which, so far as those she was imposing commenced on 14 March 2017 and ended, for the curious reasons I have addressed above (at [94]), on 9 December 2018. Her Honour then addressed totality as follows:
I have taken into account the totality of that sentence and I have made all charges concurrent to some degree with the primary charge. That is 22 months of imprisonment on top of the 21 months of imprisonment sentenced by the Chief Magistrate on 25 November 2015. It’s a total head sentence of 43 months’ imprisonment, which is said to have commenced on 15 June 2015, and to end on 9 December 2018. I have no [sic] set a new non-parole period, given the periods of imprisonment imposed.
Having taken into account the totality of the whole of this sentence, the pleas of guilty and the like, including the sentence imposed by me today, and taking into account the sentence imposed by the Chief Magistrate, and using instinctive synthesis to ensure that it is a just and fair non-parole period imposed upon you, I’ve set a new non-parole period of two years to commence on 15 June 2015 where you will eligible for release on 14 June 2017. Thank you
(emphasis added)
The first reference to totality can only refer to the sentences her Honour was imposing; it cannot sensibly refer to the sentences imposed by the Chief Magistrate or the interaction between them and the sentences about to be imposed. The second reference was clearly to the combined sentences of her Honour and the Chief Magistrate but was only directed to the setting of the non parole period. There is no reasonable interpretation of these remarks to suggest that, as required, her Honour had considered the totality of the total head sentences.
While her Honour did refer to the principle, there is nothing to suggest that her Honour applied it to the whole of the sentence comprised of both that which was imposed by the Chief Magistrate and that imposed by her Honour other than so far as the non parole period was concerned and, of course, her Honour was required to re-set that:
s 66 of the Crimes (Sentencing) Act.
A failure to apply the principle of totality is an error of law. See Moutrage v Haines [2008] ACTSC 36 at [41]. In my view, this challenge to the sentence on that ground is made out.
Deferred Sentence Order
Although it was not a ground of appeal, Mr Beniamini’s counsel did address a question as to whether what the learned Special Magistrate said when making the Deferred Sentence Order was adequate.
As I noted above (at [75]-[76], [78]-[80]), her Honour did carefully and adequately address the pre-requisites for making the order. Her Honour expressed quite clearly what sentence she might impose were Mr Beniamini to comply with the obligations he had under the Deferred Sentence Order. Her reference to what would happen if he did not was merely “you will go to gaol full-time for a very long time”.
The statutory requirement in s 118 of the Crimes (Sentencing) Act is set out above (at [79]) namely to state “in general terms ... the penalty that the offender might receive if the offender does not comply with the order or bail condition”.
It has been my practice to be more specific than her Honour was in the statement to be made of the penalty where the offender does not comply with the order. I set out some relatively specific terms of the sentence. See, for example, R v Cockburn (No 2) [2015] ACTSC 337 at [113]; R v Ngerengere [2015] ACTSC 224 at [86]; R v Shiels [2015] ACTSC 73 at [16]. Other judicial officers have been similarly specific: R v Popovski [2008] ACTSC 94 at [11]-[12].
I am not convinced that this is necessary, though it seems to me that it would be difficult to identify the appropriate parameters of the sentences to be imposed upon compliance or non-compliance with a Deferred Sentence Order without undertaking a relatively comprehensive sentencing exercise before making the order. That would give the offender a reasonable indication of what exactly to expect from his participation in the requirements of the order. There is an important element of fairness in this when, otherwise, deferral is said to risk unfairness: R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at 182; [30].
Nevertheless, the more specific approach to the specification of sentences has not been the universal practice of this Court. Sometimes, it is simply said that compliance will result in a custodial sentence and non-compliance will not. See, for example, R v LE (No 1) [2014] ACTSC 71 at [9]-[11]; R v Holyland (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 17 February 2014); R v DH (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 30 August 2012); R v Huat Phay [2008] ACTSC 96 at [4]. In these cases, compliance with the order would mean that the otherwise term of full-time imprisonment would be suspended. The length was not mentioned, even though, as McHugh, Hayne and Callinan JJ pointed out in Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 623; [45], an offender may find “the only relevant question may be ‘how long’”. While whether a sentence will be custodial or non-custodial is, of course, very relevant to the offender, it seems to me that a decision of whether to make a Deferred Sentence Order requires a careful assessment of all the required factors which would allow identification of a more specific sentence before the Court could decide whether to suspend a sentence as a result of the desired rehabilitation. Indeed, even after successful completion of a Deferred Sentence Order some part of the sentence may still be required to be custodial.
In the early days of such orders, there was sometimes non-compliance with the section at all, explicable only by the recency of introduction of the option.
It seems to me that the making of a Deferred Sentence Order does require a sentencer to consider much, if not most, of what a sentencer is required to consider before imposing sentence and this seems to me to be re-inforced by s 118 of the Crimes (Sentencing) Act. I do not consider, however, that it is mandated to give the kind of specific indication that I usually give. Nevertheless, fairness may require it, but I do not think the terms of the section mandate it to the extent that non-compliance would result in some kind of invalidity.
The need for care in the articulation of the possible penalties required to be specified under s 118 of the Crimes (Sentencing) Act is made clear in Taysaving v Mazlin [2006] ACTSC 41 at [18]-[22].
Given that the penalties are only to be stated “in general terms”, however, and to be those that the offender “might” receive, I do not consider that her Honour’s statements were inadequate even if something more specific may be very desirable.
In any event, even if the expression of penalties in this case did not comply with the statute, that cannot invalidate the sentence ultimately imposed.
Disposition
For the reasons set out above, I am satisfied that the appeal should be upheld. The sentence for the first offence on the Table is manifestly excessive but not the others. In addition, consider that the sentence did not comply with the principle of totality and to that extent was in total manifestly excessive.
Accordingly, the sentences imposed by the learned Special Magistrate must be set aside and Mr Beniamini must be re-sentenced.
| I certify that the preceding two hundred and two [202] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 23 February 2017 |
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