Bethke v Phelan
[2016] ACTSC 328
•14 February 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | NH v Dixon | ||||||||||
| Citation: | [2022] ACTSC 218 | ||||||||||
| Hearing Date: | 25 August 2022 | ||||||||||
| Decision Date: | 25 August 2022 | ||||||||||
| Before: | Elkaim J | ||||||||||
| Decision: |
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| Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT DECISION | ||||||||||
| – Where the appellant asserts the magistrate’s sentence was | |||||||||||
| manifestly excessive – cross-appeal – where the respondent | |||||||||||
| asserts the sentence was manifestly inadequate – specific errors – appeal dismissed | |||||||||||
| Cases Cited: | Bethke v Phelan [2016] ACTSC 328 CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Ralston [2020] ACTCA 47; 285 A Crim R 159 R v UG [2020] ACTCA 8; 281 A Crim 291 | ||||||||||
| Parties: | NH (Appellant) | ||||||||||
| Elliot Dixon (First Respondent) Dominique Robinson (Second Respondent) | |||||||||||
| Brandon Thurgar (Third Respondent) | |||||||||||
| Representation: | Counsel | ||||||||||
| L Vozella (Appellant) | |||||||||||
| A Chatterton (Respondent) | |||||||||||
| Solicitors | |||||||||||
| Vozella Lawyers (Appellant) ACT Director of Public Prosecutions (Respondents) | |||||||||||
| File Number(s): | SCA 5 of 2022 | ||||||||||
| Decision under appeal: |
| ||||||||||
| Elkaim J |
1. Mr NH was sentenced in the Magistrates Court on 14 February 2022. There were 24 separate offences. The total sentence was three years and six months imprisonment, suspended after two years and two months provided he entered a Recognisance Release Order for 14 months.
2. There are two matters before me. There is an appeal from Mr NH saying the sentence was manifestly excessive. There is also a cross-appeal from the respondents relying upon some technical arguments and also, generally, asserting the sentence was manifestly inadequate.
3. For convenience I will refer to Mr NH as the appellant and the appellants on the cross- appeal as the respondent.
4. While the approach to the Crown appeal, compared to an appeal by an offender, is a little different, at the core of both appeals is that it is necessary for me to identify error on the part of the magistrate. In CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346 (CMB), at [54], Kiefel, Bell and Keane JJ said:
The law reposes a wide discretion in the sentencing judge as to the determination of the appropriate sentence for the offender and the offence. Appeals against sentence, whether by the offender or the prosecution, require demonstration of error in one or more of the respects identified in House v The King. Where error of that kind is established in an appeal by the offender, it is the duty of the Court of Criminal Appeal to exercise the sentencing discretion afresh. Where error of that kind is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient. This is sometimes described as "the residual discretion". As French CJ and Gageler J explain, the discretion is residual only in that its exercise does not fall to be considered unless House error is established. (Footnotes omitted).
5. Dealing with an offender’s appeal, Murrell CJ said in Bethke v Phelan [2016] ACTSC
328, at [8]:
The appeal is brought pursuant to s 208 of the Magistrates Court Act. It is a rehearing. The Court must conduct a real review of the hearing in the Magistrates Court and the Magistrate's reasons. The Court must have regard to the evidence given in the hearing and has the power to draw inferences of fact. The Court must determine whether the Magistrate erred in law or fact or exercised her discretion in a way that was clearly wrong: see Connelly v Allan (2011) 212 A Crim R 320 and Slipper v Turner [2015] ACTSC 27, recently approved in Huggard v Murray [2016] ACTSC 246.
6. The distinction between appeals by an offender and appeals by the Crown was made in R v Ralston [2020] ACTCA 47; 285 A Crim R 159 at [176]:
Severity appeals by an offender, in contrast to prosecution appeals, are concerned with the correction of judicial error in particular cases: Green at [1]. The purpose of prosecution appeals extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing: Lacey v Attorney-General of Queensland [2011] HCA 10; 242 CLR 573 (Lacey) at [16]; Everett v The Queen (1994) 181 CLR 295 (Everett) at 300; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale) at [61]-[62].
7. For appeals on sentence by the Crown, the principles relating to an appeal on were summarised in R v Nicholas; R v Palmer [2019] ACTCA 36 (Murrell CJ, Mossop and Rangiah JJ) as follows:
66. A claim that a sentencing judge has erred in the exercise of their discretion calls into question a quintessentially discretionary decision: Lowndes v The Queen [1999] HCA 29; 195 CLR 665, and in this Court see, for example, Henry v The Queen [2019] ACTCA 5. An appellate court must respect the wide discretion of the sentencing judge concerning an appropriate sentence.
67. The principles applicable to any appeal alleging that a sentence is manifestly wrong were summarised in Dalton v The Queen [2015] ACTCA 48 at [18]:
• Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge.
•
The relevant test is whether the sentence is unreasonable or plainly unjust. 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.
•
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.
•
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. (citations omitted)
68.
In the case of Crown appeals alleging manifest inadequacy of a sentence, the correct approach was recently summarised in R v Rappel [2019] ACTCA 11 at [10], where the Court stated:
As this Court said in R v Lee [2017] ACTCA 30 at [53], a Crown appeal
against sentence is a “unique species of appeal” … Such appeals
“constitute an anomaly in the criminal justice system and so should be
instituted sparingly”: R v TW [2011] ACTCA 25; 6 ACTLR 18 at [3].
Appropriate occasions that might arise for the bringing of a Crown appeal, include, as stated in R v Clarke (1996) 2 VR 520 at 522:
(a) to correct a sentence that reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle; (b) to enable the Court to establish and maintain adequate standards of punishment; (c) to ensure uniformity in sentencing, so far as the subject matter permits.
8. The reasons for sentence are comprehensive. They accurately set out the facts and the assorted considerations that the learned magistrate brought to bear in reaching her final decision. This is conceded by both parties, although the respondent nevertheless says the reasons contain two specific errors.
9. Firstly, the respondent says that in respect of 16 of the offences the magistrate proceeded on the basis of the wrong maximum penalty. A maximum penalty is important because it provides a yardstick against which to measure the relationship between the seriousness of the offending and the punishment to be imposed.
10. The 16 offences to which this argument applies were all offences that attracted a maximum penalty in excess of the jurisdiction of the Magistrates Court. This meant that dealing with the offences summarily, as occurred here, had the effect of placing a ceiling on the available sentences notwithstanding that the legislated maximum penalty was above the ceiling.
11. Therefore, when measuring the severity of the offending against the maximum penalty, an error might evolve from a comparison between the offending and the limit of the jurisdiction as opposed to a comparison between the offending and the actual maximum penalty.
12. In the course of oral submissions, the Crown abandoned this point in respect of the territory offences.
13. Secondly, the Crown submitted that although her Honour had indicated that the pleas
of guilty would attract a discount of “around 20 per cent”, in fact on occasions the
discount was 25 per cent or even 28 per cent.
14. In addition the respondent submitted that the sentences were manifestly inadequate.
15. The learned magistrate set out, in detail, the assorted facts of the various offences. I do not intend to repeat the facts here. Suffice to say they have a common theme; they are all actions of, or arising from, family or domestic violence.
16. There were five series of offences. Series 1 related to contraventions of a family violence order that had been served on the appellant on 2 December 2020. The appellant threatened and insulted his wife and caseworkers. He harassed her with calls and text messages. There were inflammatory and threatening emails.
17. Series 2 involved text messages sent to a police officer threatening harm to the
appellant’s wife and other members of his family. There were 95 text messages sent to
the appellant’s wife which included threats to kill her, in the presence of their children.
18. On one occasion, on 18 February 2021, the appellant confronted police with a knife. They were forced to discharge a taser against him. Threats to kill were made against
the appellant’s father. Again there were numerous text messages. The magistrate
referred to this contact as “deliberate and relentless”.19. Series 3 occurred while the appellant was in custody. Threats were made against the
appellant’s wife, demanding money to facilitate a bail application. This occurred on three occasions. The magistrate said “all three offences were designed to intimidate
the victim, create fear of repercussion for not cooperating with the defendant’s
demands and communicate to her that his remand in custody was not deterring him
from contacting her”. Bearing in mind that the appellant was in custody for breaches of
family violence orders, his contacting the defendant was a blatant disregard for the
orders.20. For purposes of the following paragraphs, AA refers to the appellant’s wife, BB and CC
to his father and mother respectively.
21. Series 4 included emails sent by the appellant. For example he wrote to his sister:
I can’t do anything at this stage, but let them wait until I get out of here. Sorry, but I’m going
to kill BB, CC. I will shoot them once I am out of here. Even the police won’t be able to stop
me. I warned them before the next time we meet with the police will be shooting each other
and I will kill BB and CC and I will include AA.22. Series 5 again involved threats to kill, again made from prison. Here is an example:
The younger sibling of AA, soon she will disappear from the world. The next one will be her mother, BB and CC. I will personally barbecue that. I keep on waking up because I keep on dreaming about how I barbecue them.
23. And yet another email:
I no longer care if I kill somebody. They started on me. I will finish this. When I get out they should secure themselves fully because even their Lord cannot stop me. Even the police cannot stop me. I am ready to kill and die. I do not fear them and the police and the law. They should think about me getting out. That BB, I will beat him up. That CC, I will trample her. That AA, I will bury her alive and cut off her tongue. Tell AA, BB and CC good luck. Let
them enjoy while I’m here in prison. No law or police or any person can stop me when I get
out.
24. The appellant submits that the sentences imposed were manifestly excessive; they
were “plainly wrong”. I find the submissions quite extraordinary. There seems to be a
suggestion that because some of the offences were committed while the appellant was
in custody, lessens their severity. The appellant was “effectively ruminating on his predicament…” I wonder if the victims of the threats would have been comforted to
know the threats were no more than an innocent rumination.
25. The appellant submitted that:
There was no regard to the reason proffered by the appellant for the offending, namely that he practically required access to jointly own funds for buy-ups and that he was missing his children.
26. Perhaps a request for access to the funds, without threats, might have been more appropriate, let alone productive.
27. It is true that none of the offences involved actual physical violence. But a threat of violence can be as terrifying to a victim as actual violence.
28. There is a complaint that the magistrate did not take appropriate account of the appellants subjective factors, especially his prior good character. He should have been afforded, says the appellant, the opportunity to serve some of his sentences in the community.
29. Her Honour said this:
Where we have mostly men who come before this court in circumstances where they have lived a lifetime of law-abiding conduct in the face of a relationship breakdown, they lose all capacity to control themselves because power and control is being taken from them by their
partners asserting their independence. (Respondent’s appeal bundle, page 119.15)
30. Clearly her Honour recognised that in cases of this sort the leniency normally attributed to a previously good character is modified by the circumstances of a relationship of breakdown causing a person to spiral into criminal conduct in an abandonment of previous law-abiding behaviour.
31. Another primary submission by the appellant was that her Honour had treated family violence matters as falling into a specific category deserving, without more, of greater punishment.
32. Combining the above two submissions, it was asserted that:
…. the approach taken by the learned Magistrate to the appellant’s lack of antecedents and
prior good character was a corollary of the wrongful manner in which her Honour apprehended the sentencing principles applicable to the matter, driven to treat the matter as a family violence sentencing exercise rather than simply as a sentencing exercise.
33. The appellant referred me to the Court of Appeal case of R v UG [2020] ACTCA 8; 281 A Crim 291 where the Court, at [47], said:
We disagree with the contention impliedly advanced by the Crown. Absent any statutory provision to the contrary, in a criminal justice system based on individualised justice, there is
no place for a separate sentencing regime that applies to offenders who commit “family violence offences” (or any other general category of offences), whether it be a more lenient
or a more severe sentencing regime. We note the terms of s 6 of the Sentencing Act (see [80] below), and that s 8 of the Human Rights Act 2004 (ACT) expressly recognises that everyone is equal before the law.
34. The Court of Appeal is certainly suggesting that there is no separate category. What it is not doing is saying that family violence matters should not be treated with particular seriousness. I think that is precisely what the magistrate did.
35. In further support of this point, the appellant said that her Honour’s refusal to set a non-
parole period because the offences were too serious, was an indication that her Honour was applying special rules to family violence cases. The submission fails because it takes no account of her Honour setting a period after which the appellant was to be released on entry into a recognisance. This has the same effect as a suspension of the sentence. It might even be regarded as more favourable to the appellant than a non- parole period because a non-parole period requires the approval of parole.
36. The appellant also submitted, generally and in support of the failure to allow any part of the sentence to be served in the community, to the fact that significant sentences were imposed for individual offences. The submission ignores however the degree of concurrency built into many of the sentences. For example in the Series 3 offences,
each offence attracted a sentence of 16 months’ imprisonment, reduced to 12 months’
for the plea of guilty. All of the sentences were made concurrent, thus effectively, for three offences a sentence equivalent to the sentence of only one offence was imposed.
37. As to the submission of manifest excess, this relies on the Court reaching an impression that the sentences were plainly unjust. When one looks at the facts of the offending, some of them set out above, this submission assumes an air of unreality. These were unquestionably serious offences demanding punishment of the type imposed by the magistrate.
Turning to the respondent’s appeal, the appellant conceded the technical errors. I do
not intend to act upon the errors, in line with the passage quoted above from CMB. I
do not see any resulting injustice arising from the errors.39. While her Honour may have mis-appreciated the maximum penalties the actual penalties imposed are appropriate even if considered to be lenient. I actually do not consider them to be lenient. I consider them to be correct.
40. In relation to the errors on discounting, to amend the errors would ultimately amount to tinkering with the figures. For example in two of the offences within Series 2 (CC 21/2017 and 21/2018) sentences were reduced from 5.5 months to 4 months, a reduction of about 28 per cent. If 20 per cent had been applied the sentence would
have been increased by about 12 days. Bearing in mind her Honour’s phrase “around
20 per cent” I think the difference made by the adjustment amounts to an unnecessary
interference with the sentences.
41. The respondent also submitted that there was an overall manifest inadequacy. I have already observed that I think the sentences were correct. Even if there was an element of leniency in them, it would not be to an extent to justify interference in accordance with the authorities relating to a Crown appeal that I have set out above.
42. The result is as follows:
(i) The appeal is dismissed.
(ii) The cross-appeal is dismissed.
I certify the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.
Associate:
Date:
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