Bilal v Middlemiss (No 2)
[2022] ACTSC 251
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Bilal v Middlemiss (No 2) |
Citation: | [2022] ACTSC 251 |
Hearing Date: | 1 September 2022 |
DecisionDate: | 15 September 2022 |
Before: | Kennett J |
Decision: | See [42] |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against sentence – where specific error alleged – whether Magistrate erred in relying on common knowledge regarding the Rebels Outlaw Motorcycle Gang pursuant to s 144 of the Evidence Act 2011 (ACT) –whether Magistrate erred by taking into account aggravating feature contrary to the principle established in R v De Simoni (1981) 147 CLR 383 – whether Magistrate erred in expressing doubt about material contained in unsworn statements in the absence of cross-examination or rebuttal – appeal allowed and appellant re-sentenced |
Legislation Cited: | Criminal Code 1995 (Cth) ss 474.15, 474.17 Evidence Act 2011 (ACT) ss 4, 144 |
Cases Cited: | Browne v Dunn (1893) 6 R 67 House v The King (1936) 55 CLR 499 R v Rae (1998) 45 NSWLR 546 |
Parties: | Ali Hassan Bilal ( Appellant) Jude Joseph Middlemiss ( Respondent) |
Representation: | Counsel F J Purnell SC ( Appellant) T Hickey ( Respondent) |
| Solicitors Aulich Criminal Law ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 26 of 2022 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 2 August 2022 Case Title: Middlemiss v Bilal Citation: [2022] ACTMC 17 |
KENNETT J:
On 29 April 2022 the appellant entered pleas of guilty, in the Magistrates Court, to the following charges:
(a)CAN 12087/21: that he, on 19 January 2021, used a carriage service to make threats to another person, namely, Azin Al Naqib a threat to cause serious harm to him intending for Azin Al Naqib to fear that the threat would be carried out, in contravention of s 474.15(2) of the Criminal Code 1995 (Cth) (Criminal Code).
(b)CAN 12088/21: that he, on 25 January 2021, used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing in contravention of s 474.17(1) of the Criminal Code.
(c)CAN 12090/21: that he, 25 January 2021, used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing in contravention of s 474.17(1) of the Criminal Code.
(d)CAN 12093/21: that he, on 26 June 2021, used a carriage service to make threats to another person, namely, Hayley Gilbert a threat to cause serious harm to a third person namely, Fasil Jember intending Hayley Gilbert to fear that the threat would be carried out, in contravention of s 474.15(2) of the Criminal Code.
(e)CAN 19096/21: that he, on 12 August 2021, used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing in contravention of s 474.17(1) of the Criminal Code.
Following a hearing on sentence, on 21 July 2022, the following sentence was pronounced on 2 August 2022 (Middlemiss v Bilal [2022] ACTMC 17):
[80]In respect to charge 12087/2021 I would have imposed a sentence of six months’ imprisonment, but it is reduced to five by virtue of the plea of guilty.
[81]In respect to charge 12088/21 I would have imposed a period of two months’ imprisonment and I address any reduction by way of concurrency.
[82]In respect to charge 12090/2021 I would have imposed a period of three months’ imprisonment, but it is reduced to two by virtue of the plea of guilty. The two months’ imprisonment imposed on charges 12090 and 12088 will be cumulative on the five months imposed on 12087/21.
[83]In respect of charge 12093/2021 I would have imposed a period of six months’ imprisonment, but it is reduced to four by virtue of the plea of guilty. It will be cumulative on the existing sentence.
[84]In respect to charge 12096/2021 I would have imposed three months’ imprisonment, but it is reduced to two in light of the plea of guilty.
[85]That is a total of 13 months’ imprisonment. That period of imprisonment will be suspended after the offender has served four months in prison upon entering into a recognizance for 18 months with conditions that he be subject, on probation, to supervision by the Director-General of Corrective Services of the Australian Capital Territory and be required to obey all reasonable directions given by his supervisor.
[86]As part of that supervision, he may be required to attend programs, counselling or assessments in relation to emotional dysregulation. It will also be a requirement that he not travel interstate or overseas without the written permission of his probation officer.
The appellant appeals from all of these orders.
The offending behaviour occurred in the course of telephone conversations on the dates referred to above. The contents of those conversations is described, to the extent necessary, in the reasons below.
For the reasons that follow, the Magistrate fell into an error that, in accordance with principles established since House v The King (1936) 55 CLR 499, require the sentence to be set aside and the sentencing discretion to be re-exercised.
Reliance on common knowledge regarding the Rebels motorcycle gang (Rebels)
There was evidence before the Magistrate showing that, at the time of the offending, the appellant was a senior figure in the Rebels in the ACT. Several of the victims of the offending were also members of, or associated with, that organisation. However, no evidence was put before her Honour to show that the Rebels was, “during its historical time in its ascension in the Territory, widely reputed in the community at large to be engaged in criminal activity, including standover tactics”.
Under s 144(1) of the Evidence Act 2011 (ACT), her Honour did not require proof of knowledge that “is not reasonably open to question” and is “common knowledge in the place in which the proceeding is being heard or generally”. Indeed, the Court is required to take such knowledge into account (s 144(3)). However, under s 144(4), the Court must give a party the opportunity to make submissions about taking such knowledge into account “that is necessary to ensure that the party is not unfairly prejudiced”.
The sentence of her Honour’s reasons that is the subject of complaint here was said to involve three propositions: that the Rebels had had a “period of ascension in the Territory”; that it was “widely reputed to be engaged in criminal activity”; and that that activity involved standover tactics. However, counsel for the appellant accepted that, had the second proposition been raised during the hearing, it would have been accepted. However, he maintained that the first and third propositions were not matters of common knowledge and that, had they been put to the appellant in accordance with s 144(4), their adoption would have been resisted.
I do not regard the first proposition as an independent proposition of fact that required either proof by evidence or acceptance pursuant to s 144. In context, it is merely scene-setting for the propositions that follow. In other words, her Honour was simply saying that the Rebels motorcycle gang was involved in the conduct referred to during a period when it had some level of prominence in the Territory. The substance is in the proposition that it in fact was involved in such conduct.
Turning to the third proposition, it will be noted that her Honour actually stated only that the Rebels motorcycle gang was reputed to be involved in standover tactics; not that it actually was so involved. That reputation was sufficient for the point that her Honour was making in this part of the reasons—namely that the various threats that were made during the phone calls were likely to have caused fear in the recipients because of the position held by the person making them. Even if her Honour is taken to be saying that the gang was involved in standover tactics, I am not in a position to disagree with the assessment that this was both not open to question and common knowledge in the Territory. No attempt was made in the appeal to demonstrate, by reference to relevant material, that her Honour was wrong about this.
However, there remains the problem that counsel who appeared for the appellant in the Magistrates Court was not invited to make submissions as to whether the involvement of the Rebels in “standover tactics” was something that should be regarded as common knowledge, “not reasonably open to question”, and therefore taken into account. This constituted contravention of a statutory precondition to any reliance on common knowledge to this effect, which can also be properly described as a denial of procedural fairness.
I have little doubt that, had this issue been ventilated before the Magistrate, it would have resulted in her Honour being provided with material vindicating her understanding that the Rebels were involved at relevant times in activity properly described as “standover tactics” or something similar. However, I cannot exclude the possibility that that would not have occurred; and the error is, in any event, one of principle that requires the sentence to be set aside and the appellant to be re-sentenced. In short, it resulted in a particular fact being taken into account for which there was no proper basis. This is sufficient to require that the sentence be set aside and the appellant be re-sentenced.
Other grounds of appeal
I reject the other grounds of appeal.
Several of the grounds can be dealt with very briefly. Others are discussed at more length because my disposition of them is relevant to my approach to re-sentencing. (Some grounds were not pressed and are not discussed in these reasons.)
Ground (a)(v) refers to a passing comment by the Magistrate in relation to victim impact statements: “and, of course, there are none” (at [50]). I understood the point to be that this remark involved a veiled reference adverse to the appellant. However, it has not been demonstrated that her Honour made any inference adverse to the appellant in this regard, let alone that she took it into account in deciding what sentences were to be imposed.
Grounds (a)(vi) and (vii) fasten upon passages in the reasoning (at [64]) in which her Honour noted a potential conclusion adverse to the appellant but did not reach that conclusion. They do not point to any error.
Ground (a)(ix) asserts that the Magistrate erred in treating the Crown as having submitted that “a sentence of imprisonment is within range” (at [67]), when in fact the Crown’s final submission had involved acceptance that a community-based order might well be appropriate.
Counsel for the Crown had actually submitted, as her primary position, that the circumstances of the case “demand that a sentence of imprisonment be imposed”. However, she turned swiftly to the possibility that the Magistrate might decide to impose a community-based order and the conditions that should be imposed on such an order. Addressing an argument that a non-association order—which is only relevant in the case of a community-based order—would be punitive, counsel submitted that that would not be a reason not to make such an order. In leading up to that point counsel was recorded on the transcript as having said that “the punitive character of conditions, together with the rehabilitative character of the conditions, make it that a community-based order may well be appropriate in the circumstances”.
I do not read that as an abandonment by the Crown of its initial position that a sentence of imprisonment was called for. In context, it was a recognition that the initial position might not be accepted and an engagement with the alternative. There was certainly no concession by the Crown that a sentence of imprisonment was outside the range of appropriate responses to the offending.
Ground (e) asserts that the comparative cases to which her Honour referred (at [74]) were significantly different to the present case. That is no doubt correct. However, her Honour did not assert that they were similar or impose sentences of similar severity. She did not fall into error in this respect.
Finally, ground (f) asserts that the sentence imposed was manifestly excessive. It will be apparent from my discussion of the relevant factors below that I do not consider the sentence to be unreasonable or plainly unjust.
Grounds (a)(ii) and (iii)
On the first and third counts, there is direct evidence in the transcripts of the calls that the person to whom the appellant was speaking was scared. Audio recordings of these calls were played during the hearing and fear was apparent in the tone of voice of those persons. As to the calls involved in the fourth count, the threat was to cause harm to a third party, and it is apparent from what was said that the woman to whom the appellant was speaking (Ms Gilbert) was taking the threats seriously. In the call relating to the fifth count the threats of harm are less direct, but real; and it is apparent from the transcript that the other party to the conversation was anxious to try to pacify the appellant. I observe also that the violent language used in all of the calls—far beyond anything that could be imagined as normal conversation—is of a kind that would cause concern to all but the most hardened people.
The context in which the calls were made also supports an inference that the calls would have inspired fear, or at least concern that the appellant was able and possibly willing to cause serious harm. As noted above, there was evidence that at the time the calls were made he held a senior position in the Rebels. Messrs Naqib and Janiak are mentioned in a statement that was before her Honour as being associated with the Rebels, and Mr Naqib was also an employee of the appellant. Mr Comber was an associate of Mr Naqib. Ms Gilbert, meanwhile, is the daughter of friends of the appellant and has been known to him since she was eight years old. In all of the transcripts it is evident that there is a pre-existing relationship in which the appellant was very much the senior figure. Further, even if it is not common knowledge that the Rebels are involved in “standover tactics”, their involvement in “criminal activity” was conceded to be notorious. Courts in Australian jurisdictions have proceeded on the basis that members of outlaw motorcycle gangs see themselves as operating outside the law and are prepared to participate in serious criminal activity including violent activity, apparently without requiring specific proof: eg R v Pishdari [2018] SASCFC 94; 274 A Crim R 91, [24]; R v McCallum [2020] ACTSC 15, [62]–[63].
For these reasons, it was open to the Magistrate to infer that the statements made by the appellant during the calls were intended to, and did, cause fear. I will proceed on the same basis in re-sentencing.
Ground (b): De Simoni
Of course, on the second, third and fifth counts the appellant was charged with using a carriage service to menace (s 474.17(1)) rather than using a carriage service to threaten serious harm (s 474.15(2)). The former offence has a lesser maximum penalty and does not require proof of the making of a particular threat or an intention to cause fear. Rather, the critical element is that the carriage service is used in a way that reasonable persons would consider menacing. The appellant must be taken to have admitted that that occurred.
Ground (b) alleges that, in dealing with these three counts, her Honour breached the principle established in R v De Simoni (1981) 147 CLR 383 (De Simoni) by taking into account, as circumstances of aggravation, the making of threats to cause harm. In submissions, however, the ground was only really pressed in relation to the fifth count. Her Honour observed that the phone call from which that count arose involved “numerous implied threats of very serious harm to the recipient and his family”.
The making of threats was neither an element of the relevant offence nor a circumstance mentioned in the indictment. The argument was, as I understood it, that the making of serious threats was something that could have founded a charge under s 474.15(2), but the appellant was instead charged with a lesser offence; and he could not properly be sentenced for a more serious offence, of which he had not been convicted.
The principle is stated in fairly stringent terms by Gibbs CJ in De Simoni at 389:
[A] judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
Despite the stringency of that statement, I have concluded that the principle was not infringed in the present case. This is for two reasons.
First, Gibbs CJ referred to circumstances which “would have warranted” a conviction for a more serious offence. That suggests that the principle is enlivened when the sentencing court proceeds as if the more serious offence is proved; not when conduct or a circumstance is referred to that would lead to conviction for the more serious offence if additional matters were proved. In De Simoni itself, the fact of having caused wounding was sufficient in itself to elevate the offending into a higher category. In contrast, in the present case, the fact of having made threats to cause harm to the person to whom those threats were made or to another person would warrant conviction for the more serious offence under s 474.15(2) only if the requisite intention were also proved; and her Honour did not suggest that it was.
Secondly, “menacing” is not relevantly defined in the Criminal Code. As a matter of ordinary language the concept clearly includes making express or implied threats of evil or harm (see, eg, R v Rae (1998) 45 NSWLR 546, 553 (Wood CJ at CL, Beazley JA and Dunford J agreeing)). It was difficult (at least) for her Honour to identify the manner in which and extent to which the relevant conduct was “menacing” without identifying the threats conveyed by it. I regard the description of those threats as part of the characterisation of the offending conduct, rather than an illegitimate introduction of matters constituting an uncharged and more serious offence.
Consequently, in describing the nature of the offending conduct in my remarks below I do not ignore the fact that all of the phone calls included express or implicit threats to cause harm to people.
Ground (a)(viii): evidence of effect on appellant’s family
As to the effect of the Court’s sentence or order on the family or dependents of the appellant, the Magistrate had before her written statements from the appellant’s wife and daughter stating, in short, that they would be unable to cope practically or emotionally with his absence. Her Honour took this into account but she said that she had “not afforded that great weight” (at [62]). The weight to be given to effects on family members in the instinctive synthesis as to the correct sentence was, of course, a matter for the Court. However, as to what those effects were as a matter of fact, it was argued that her Honour was bound to accept the statements as true and had erred by expressing herself to be “not satisfied that the suffering adverted to will, in fact, be as significant as claimed”. It was said that her Honour was bound to accept the statements as true, in circumstances where the Crown had been provided with them in advance of the hearing and had not sought to cross-examine their authors.
I reject this ground of appeal. The rules of evidence did not apply in the sentencing hearing (Evidence Act 2011 (ACT), s 4(2)). It was for that reason that the statements— which were not made under oath or affirmation—were able to be considered. Where an unsworn statement of this kind goes before the court, other parties do not have any ability to cross-examine its maker and therefore cannot be held to the standard laid down by Browne v Dunn (1893) 6 R 67. Potential for cross-examination arises only if the party relying on the statement agrees to call its author as a witness and have them adopt it on oath or affirmation. Correspondingly, the court is not bound to accept everything in the statement as true in the absence of cross-examination or rebuttal. The Magistrate in the present case was required to determine what weight was properly to be given to this material in determining what would be the effect of a sentence of imprisonment on the appellant’s family.
I mention that I do not wish to be taken as discouraging a pragmatic approach to sentencing hearings in which many matters are accepted without formal proof. If factual points are asserted on the basis of instructions or unsworn written statements, and accepted by the opposing party, that will normally be sufficient for the court to accept those points. In many other cases a Magistrate or a Judge may properly proceed on the basis that unsworn material is correct even in the face of opposition from the other party. However, that depends on the persuasiveness of the material—a matter which in my view the court must assess.
In re-sentencing the appellant, therefore, I will come to my own view (having regard to the statements placed before the Magistrate) as to what are the effects of a sentence of imprisonment on the appellant’s family.
Resentencing
Having reviewed the material that was before the Magistrate, I agree with her Honour’s description of the offending. I note that, although the appellant told the Court that he did not intend to carry out the threats that he made, an element of the offence under s 474.15(2)—which he had admitted, in relation to the first and fourth counts—is that the person making the threat intends the recipient of it to fear that it will be carried out.
As I have observed above in the course of rejecting certain of the grounds of appeal, I consider it open to find that all of the phone calls were calculated to cause fear in the minds of the persons being spoken to and probably did cause such fear. I make that finding. I also consider it appropriate to have regard to the nature and vehemence of the threats conveyed by the phone calls, including those relevant to the second, third and fifth counts. Although in most instances the calls were made to fellow members of the Rebels, who might be thought not to be delicate or innocent persons, I do not think that can properly be regarded as excusing or mitigating the conduct.
I also agree with her Honour’s remarks as to the appellant’s subjective circumstances and the appropriate treatment of his pleas of guilty. In relation to the effect of the offending on its victims, her Honour correctly noted that there was no evidence bearing on the issue. In re-sentencing, I have simply proceeded on the basis that the effect of the offending on the victims is not known.
For the reasons outlined above, in re-sentencing the appellant I have not treated myself as bound to accept the truth of everything said in the statements tendered below for the appellant. Like the Magistrate, I consider that some of the matters put by the appellant’s wife and daughter are probably somewhat overstated. However, I proceed on the basis that on factual matters (such as medical conditions and the business interests that the appellant’s wife needs to manage in his absence) they are probably at least broadly correct, and that his absence is therefore a matter of very great significance for his wife and daughter. I have given this factor slightly more weight than I infer her Honour did.
In the result, I do not think the head sentences imposed by the Magistrate should be disturbed. They are no more than is appropriate for the purposes of specific and general deterrence. However, I would suspend the sentence after the appellant has served three months’ imprisonment, rather than four. I have come to this view partly in recognition of the effect of his absence on his family, and partly because his prospects of rehabilitation may well be improved by earlier access to the counselling and other forms of assistance that may flow from being in the community under the supervision of ACT Corrective Services.
Orders
The orders of the Court are as follows.
(1)Appeal allowed.
(2)The sentences imposed on 2 August 2022 are set aside.
(3)The appellant is convicted on each count and sentenced as follows:
(a)CAN 12087/21: (use carriage service to threaten serious harm in contravention of s 474.15(2) of the Criminal Code): five months’ imprisonment, from 2 August 2022 to 1 January 2023.
(b)CAN 12088/21: (use carriage service in a way that reasonable persons would regard as menacing in contravention of s 474.17(1) of the Criminal Code): two months’ imprisonment, from 2 January 2023 to 1 March 2023.
(c)CAN 12090/21: (use carriage service in a way that reasonable persons would regard as menacing in contravention of s 474.17(1) of the Criminal Code): two months’ imprisonment, from 2 January 2023 to 1 March 2023.
(d)CAN 12093/21: (use carriage service to threaten serious harm in contravention of s 474.15(2) of the Criminal Code): four months’ imprisonment, from 2 March 2023 to 1 July 2023.
(e)CAN 12096/21: (use carriage service in a way that reasonable persons would regard as menacing in contravention of s 474.17(1) of the Criminal Code): two months’ imprisonment, from 2 July 2023 to 1 September 2023.
(4)Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the offender is to be released after serving a period of three months’ imprisonment on him giving security by recognizance, without surety, that he:
(a)will be of good behaviour for a period of 18 months;
(b)is subject, on probation, to the supervision of ACT Corrective Services and will obey all directions of ACT Corrective Services for a period of 18 months; and
(c)will not travel interstate or overseas without the written approval of ACT Corrective Services for a period of 18 months.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett Associate: Date: |
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