Brett Alchin v Deborah Maree McInerney
[2015] ACTSC 300
•25 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Brett Alchin v Deborah Maree McInerney |
Citation: | [2015] ACTSC 300 |
Hearing Date(s): | 20 August 2015 |
DecisionDate: | 25 September 2015 |
Before: | Robinson AJ |
Decision: | See [51]-[55]. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Appeal against sentence – whether sentence manifestly excessive – particular offences – breach of domestic violence order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 33, 53(1)(b) Domestic Violence and Protection Orders Act 2008 (ACT) s 90(2) |
Cases Cited: | Allred v The Queen [2015] ACTCA 21 Barbaro v The Queen (2014) 253 CLR 58 Wong v The Queen (2001) 207 CLR 584 |
Parties: | Brett Alchin (Appellant) Deborah Maree McInerney (Respondent) |
Representation: | Counsel Ms S Saikal (Appellant) Ms S Naidu (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 29 of 2015 |
ROBINSON AJ:
Conduct
Between 9:13 pm and 10:04 pm on Saturday 29 November 2014, Brett Alchin made ten telephone calls to Ms BC from his mobile phone. The telephone calls were not answered. The offender left one message on Ms BC’s phone. It was as follows:
You wait cunt. Your house is smashed and that fucking cunt you’re rooting. I am going to kill that cunt.
This conduct by Mr Alchin, the offender, put him in breach of a Domestic Violence Order made in favour of Ms BC on 24 August 2014 and which ran for 24 months.
The offender had had what was described as an “off and on relationship” for 10 years with Ms BC. There is no information in the statement of facts as to whether or not Ms BC was, in reality, involved in a relationship with another person at the time of the telephone calls.
After police had investigated the matter, a first instance warrant was sworn on 19 December 2014 and laid before the Registrar for the offender’s arrest. On 9 January 2015 the offender surrendered himself to police at London Circuit. He was not admitted to bail.
Sentence
The offender pleaded guilty at the first reasonable opportunity to contravening s90(2) of the Domestic Violence and Protection Orders Act 2008 (the Act). He was sentenced on 20 March 2015 by Special Magistrate Hunter. That sentence was for a period of imprisonment of 22 months commencing on 9 January 2015. A non-parole period of 15 months commencing on 9 January 2015 and ceasing on 8 April 2016 was also ordered.
The sentencing Magistrate remarked that if the offender had not pleaded guilty at an early stage she would have set a sentence of 26 months with a non-parole period of 18 months. The discount afforded was on account of the utilitarian value of the plea, but took into account the strength of the prosecution case. The decision on discount was a decision well open to the sentencing Magistrate.
Appeal jurisdiction
The offender appeals to the Supreme Court from the sentence imposed upon him in the Magistrates Court under s208 of the Magistrates Court Act, 1930 (ACT).
The appeal to the Supreme Court is governed by s214 of the same Act which includes a power in the Supreme Court to draw inferences of fact.
The Domestic Violence Order
The terms of the Domestic Violence order prohibited the offender from, amongst other actions:-
(a)Threatening to damage the property of Ms BC;
(b)Behaving in an offensive manner towards Ms BC;
(c)Behaving in a harassing manner towards Ms BC;
(d)Contacting Ms BC, except at a court or tribunal proceeding, or except through a third party, Jason Alchin, in regards to arranging pick up of property at [place]
Grounds of Appeal
As originally filed, the Notice of Appeal contained only one ground; the term of imprisonment and the non-parole period imposed were manifestly excessive. It was common ground what was required to be demonstrated by an Appellant under this ground. (Markarian v The Queen (2005) 228 CLR 357 at [25] paraphrasing House v The King (1936) 55 CLR 499, Wong v The Queen (2001) 207 CLR 584, 605 and in this jurisdiction such cases as Balthazaar v The Queen [2012] ACTCA 26 at [61] and Alfred v The Queen [2015] ACTCA 21).
During the course of the hearing I gave leave to raise a further ground of appeal concerning the treatment of “aggravating circumstances” by the sentencing Magistrate. I will set this out below.
Analysis of the Conduct Below
The maximum penalty for contravening a Protection Order, contrary to s90(2) of the Act is 5 years imprisonment. The sentencing Magistrate took note of this in accordance with Markarian v The Queen (2005) 228 CLR 357 at [30]-[31].
The sentencing Magistrate found that the conduct in question was in the mid range. She said:
In relation to the seriousness of the offending behaviour, in my view I agree
with the prosecution and also adopt the defence counsel's submission that it is
in the mid range. I think he indicated low to mid range. In my view it is midrange of seriousness and I will indicate why I say that in due course.
The transcript (at page 5, line 38) shows that the prosecutor did submit that the conduct “would fall towards the mid range”. However, I cannot see in the transcript any reference to a range suggested or agreed to by defence counsel.
The sentencing Magistrate’s conclusion that the seriousness of the offending behaviour was in the mid-range is useful nomenclature for some purposes. It does, however, mask the reasoning process material to that assessment.
At page 17 line 21 the sentencing Magistrate said:
As I have said, in my view the offending is at the mid range of offending and as such, using the maximum as a yardstick; the court should reflect the level of seriousness of the offending behaviour.
Under the legislation there is no special sentencing regime for contravening s90(2) of the Act. A note to s90(2) of the Act directs mandatory attention to s33 of the Crimes (Sentencing) Act 2005 and “relevant considerations”.
It is quite true that both the cases and the literature express the importance of account being taken of the regime set up under the Act and the other State and Territory analogues. The regime is complimentary to the criminal law and its effectiveness depends on, in very large measure, the response taken to the contraventions of the orders by both police and the courts.
No victim impact statement was tendered or read on sentence. Nor was there other direct evidence before the sentencing Court of the effect of the conduct in question. In conformity with s53(1)(b) of the Crimes (Sentencing) Act no inference can be drawn about the harm suffered by a victim from the fact a victim impact statement has not been given. The prosecutor below noted the absence of this evidence in the proceedings and said (at pages 5 and 6 of the transcript):
...however, it’s my submission that this does not mean that it can be inferred that the offence had no impact on the victim. In my submission, given that the victim reported the telephone calls to police, your Honour can infer that she found the breach concerning. I submit that in light of the defendant’s history of committing offences involving violence and property damage towards this victim, it can be reasonably inferred that she would have afforded some weight to the threats of his voicemail.
It is not clear whether that submission was accepted by the sentencing Magistrate or whether she concluded that it could be inferred that greater impact had been occasioned by the conduct than that submitted by the prosecutor. The sentencing Magistrate said (at page 14, line 18):
I now turn to the aggravating circumstances in relation to this matter and in my view the aggravating circumstances are these. The victim in this matter was the former partner who he had assaulted, who he had damaged property in relation to, and who he had breached orders in the past. This, in my view, aggravated the offence and it did so in this way. The victim would take the threats of harm that were enunciated in that phone call seriously, in my view, and in my view she was also a vulnerable person in relation to this defendant for that reason.
It is beyond question that the sentencing Magistrate was able “to draw reasonable inferences” from the agreed facts that the conduct impacted upon the complainant. See the joint judgment in R v Miller [1995] 2 VR 348 at 354. The extent of that impact is unclear and, if it truly was an aggravating factor, the impact needed to be proved beyond reasonable doubt. R v Olbrich (1999) 199 CLR 270 at [27] and [57].
For present purposes, this issue does not need to be finally resolved. It has a relevance to the characterisation of the conduct by the sentencing Magistrate as “mid range” and hence the objective seriousness of the offence. In my view the proper inference is that submitted by the prosecutor below. However, in practical terms, there may not be a large difference between that submission and the sentencing Magistrate’s finding.
Subjective Circumstances
The offender was born in 1965. He first, relevantly, came before the New South Wales Courts in 1993 for a breach of an Apprehended Domestic Violence Order. In 1994 he was again before the New South Wales Courts and was given recognisances for each of a breach of an Apprehended Violence Order and also common assault. In 2002 there was a similar offence of contravention of an ACT Protection Order. Thereafter, during the period 2005 to 2011, the offender had a number of convictions for damage to property as well as convictions for assault. There were also convictions for contravention of Protection Orders. The offender has served periods of full time imprisonment and has had available to him assistance from Corrective Services. He has breached an order in the nature of a domestic violence order on five previous occasions. (1993, 1994, 2002, 2008 x 2)
It is self-evident that his criminal history does not lend itself to leniency.
Disposition
A number of matters should be recorded with regard to the conduct in question:
(a)The offender breached the order by engaging in conduct over a period of about one hour;
(b)The conduct involved the use of a telephone;
(c)The conduct included a threat to damage the property of Ms BC;
(d)There was no direct evidence of the impact of the conduct on Ms BC, although some impact may be reasonably inferred;
(e)The conduct, by its terms, involved a threat to kill another person
Significantly, there was no face to face confrontation, no infringement of the prohibition to be on the property of or within 100 metres of Ms BC and no weapon was involved. Ms BC did not answer the telephone calls.
I was supplied with statistical information on the disposition of matters under the Act generally, as well as a number of authorities concerning breaches of s90(2) of the Act. These were of assistance in regard to the ground of manifest error. However, I keep in mind the limitations on their use such as are reflected in Barbaro v The Queen (2014) 253 CLR 58 at [40]-[41].
I found assistance in the relatively recent decision of R v Loulanting [2015] ACTSC 172. It is instructive to set out the facts in that case for they bear a similarity to the present case.
24. As noted above, Mr Loulanting's partner, the victim, sought, and was granted, a Domestic Violence Order on 31 July 2014 for two years. It prohibited Mr Loulanting from contacting or threatening his partner or behaving in an offensive or harassing manner towards her. At about 8:00 am on 18 January 2015, Mr Loulanting telephoned the victim, asking if he could see his son. She refused because Mr Loulanting said he had been using ice and he was aggressive and demanding.
25 Later that morning, Mr Loulanting sent the victim some text messages that were indecent, offensive and aggressive. They were clearly threatening, offensive and harassing. The victim ignored the messages, though threatening, because he had sent such messages in the past and had not then acted on the threats.
26 The next day, the victim received six missed calls from a private number. She then answered a call from the private number and recognised Mr Loulanting's voice. Again he asked to see his son but the victim refused because he was still using ice. Mr Loulanting then started abusing her. Shortly after 9:00 am Mr Loulanting left two voicemail messages that included the following statement, "I have lost everything and now you are going to loose [sic] everything, I am going to end your life by the end of the day."
27. The victim felt scared and worried for her safety, as these were different threats to those made to her before. The tone of voice made her believe that the threats were real and that Mr Loulanting had the ability to carry them out; she was afraid that he would do so. Later that morning, Mr Loulanting sent the following text messages to the victim:
At 9:23 am: "I want to c my son b4 the day turnz very bad” and “I wil kil u 2day;"
At 9:30 am: "there is 1 bullet 4 u and there is 1 bullet 4 me” and “do not think I am joking, okay."
Mr Loulanting’s subjective circumstances were not incommensurate with the offenders. He was given head sentences on these facts of imprisonment for 12 months reduced from 15 months for the breach on 18 January 2015 and again 12 months reduced from 15 months for the breach on 19 January 2015.
I have also had particular regard to the facts and outcome of the decision in Roberts v Smorhun [2013] ACTSC 218 where the threat of violence and actual violence inflicted arose out of a face to face confrontation.
I interpolate here to state that I am well aware that simply to have regard to other outcomes from factual scenarios is not the correct test here. I proceed upon the basis that there is no single correct sentence (reaffirmed in Bugmy v The Queen (2013) 249 CLR 571 at [24]. Sentencing judges are allowed as much flexibility in their approach to sentencing as is consistent with binding principle and the applicable statutory sentencing regime (see Markarian at [27]). A Court may not simply substitute its opinion for that of a sentencing judge because it would have exercised the sentencing discretion differently (see, for example, Lowndes v The Queen (1999) 195 CLR 665 at [15]).
I draw attention to the two cases referred to above as being sign posts, albeit amongst others, helpful in determining the objective seriousness of the offence and the proper outcome or, more accurately, range of outcomes, appropriate to that objective seriousness. I have summarised the objective seriousness of the conduct in par [25] and [26] above. In my view the objective seriousness of the offence did not equate to the outcome given to it by the sentencing Magistrate.
I acknowledge that compliance with any type of protection order is essential in protecting members of the community from violence and anti social behaviour and that it is open to the Court to impose upon an offender a stern penalty to seek to achieve this end.
I keep in mind, however, the fundamental proposition that any punishment has to be proportionate to the offending.
I my view the sentencing outcome is not proportionate to the offending. The result embodied in the sentence is unreasonable or plainly unjust.
Additional Ground of Appeal
Pursuant to leave granted, the Appellant amended his grounds of appeal to add-
That the learned Magistrate erred in taking into account the context of domestic violence as an aggravating feature, as the offence of contravening a domestic violence order can only be committed in such a context.
One matter should be noted in terms of the formulation of this ground by the draftsperson. Section 90(2) of the Act deals uniformly with all three possible contraventions of the Act. It makes provision for an offence of contravening a “protection order.” There are three main possible protection orders under the Act. These are a domestic violence order, a personal protection order and a workplace order. There are also interim orders but these can be left to one side for present purposes.
The Act does not proscribe different penalties for a contravention of the three possible orders. It gives no statutory suggestion that any contravention is more serious than another. As mentioned above, the note to s90(2) of the Act directs attention to s33 of the Crimes (Sentencing) Act which does not expressly refer to a domestic setting.
Approaching the matter on first principles it would appear that there should be no reason to believe that a contravention of a domestic violence order would carry any greater or lesser seriousness than any other possible breach under s90(2). What would be important would be the actual breach and its characteristics. It is helpful to illustrate the point by reference to another statutory context. All jurisdictions have a crime of sexual intercourse without consent. All jurisdictions have an extended definition of sexual intercourse. In the ACT the definition is found in s50 of the Crimes Act, 1900.
sexual intercourse means—
(a) the penetration, to any extent, of the genitalia or anus of a
person by any part of the body of another person, except if that
penetration is carried out for a proper medical purpose or is
otherwise authorised by law; or
(b) the penetration, to any extent, of the genitalia or anus of a
person by an object, being penetration carried out by another
person, except if that penetration is carried out for a proper
medical purpose or is otherwise authorised by law; or
(c) the introduction of any part of the penis of a person into the
mouth of another person; or
(d) fellatio; or
(e) cunnilingus; or
(f) the continuation of sexual intercourse as defined in
paragraph (a), (b), (c), (d) or (e).
In Ibbs v The Queen (1987) 163 CLR 447 the High Court considered the Western Australian analogue. At 452, the Court said-
The maximum penalty prescribed for the offence of sexual assault is reserved for the worst type of case falling within s.324D: Reg. v. Tait and Bartley (1979) 46 FLR 386, at p 398; 24 ALR 473, at p 484; Bensegger v. The Queen (1979) WAR 65, at p 68. The maximum penalty is not prescribed as an appropriate penalty for the worst type of case falling within each of the respective categories of sexual penetration described in s.324F. The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined.
With the above in mind, it is then necessary to set out the sentencing Magistrate’s reasons to appreciate the challenge made by the Appellant on the amended ground even if this involves some repetition from the above. At page 14, line 18:
I now turn to the aggravating circumstances in relation to this matter and in my view the aggravating circumstances are these. The victim in this matter was the former partner who he had assaulted, who he had damaged property in relation to, and who he had breached orders in the past. This, in my view, aggravated the offence and it did so in this way. The victim would take the threats of harm that were enunciated in that phone call seriously, in my view, and in my view she was also a vulnerable person in relation to this defendant for that reason.
I take into account the mitigating circumstances. I understand that he is a hard worker and that he has prospects of employment once released from custody. I take that into account. I also take into account his prospects of rehabilitation.
It can be noticed that the sentencing Magistrate is juxtaposing aggravating circumstances with mitigating circumstances. It is clear that the use of the expression “mitigating circumstances” is clearly a reference to those matters which, in customary sentencing discourse, point to leniency. There is not sufficient reason to believe that the sentencing Magistrate was using “aggravating circumstances” in any different way than a reference to those matters which point in the opposite direction: matters which make the conduct more heinous. In the context of its juxtaposition referred to above and in the context of sentencing remarks being delivered, the better view is that it is a reference to the customary discourse as in Olbrich at [57].
The Crown, on appeal, put as her primary submission that the expression “aggravating circumstances” was really only a reference to the exposition of the factual circumstances of the breach and did not involve an impermissible “double counting”. I accept this submission for the reasons below.
The offence of contravening s90(2) of the Act does not require proof of any harm to the complainant. An offender, for example, may simply breach an order by going to a place where he has been prohibited from going by the order of the Court. On the other hand, it is inherent in the offence that the offender and the complainant have a past connection between them. That connection is the reason why an order was made by the Court in the first place. One of those possible connections is that which would bring about a domestic violence order.
An element of an offence or an inherent characteristic of the offence or class of offences should not be treated as an aggravating factor because of the risk of double counting. Elyard v R [2006] NSWCCA 43.
In Roberts v Smorhun [2013] ACTSC 218 at [133] to [135] Refshauge J. employed much of the same reasoning process, as I have above, in coming to a like conclusion concerning the inherent characteristics of the offence. I would reserve to another day whether it may be, as he points out, that domestic violence order contraventions have additional significance in other respects. This aspect must be reconciled with the principles in Ibbs above.
As a matter of construction of the language used by the sentencing Magistrate, I take her to be saying that the aggravating factor does not arise out of the inherent characteristics of the offence but out of the inferred harm caused by the history of the relationship and the manner in which the offence was committed. I say inferred because of the absence of any victim impact statement or direct evidence otherwise of the impact on Ms BC.
There is no error in the proposition of the sentencing Magistrate.
In her submissions on this ground of appeal the Crown drew my attention to the recent case of R v McLaughlin [2015] ACTSC 201 where Justice Burns appears to have taken a different view. He said, relevantly, in respect to the offence of contravening a protection order-
[12] It is an aggravating circumstance that it occurred in the context of a domestic relationship. It is a further aggravating circumstance that the offence occurred at the time that you were on bail...
In the event that her primary submission referred to in [42] above was not accepted the Crown contended that the passage quoted above from McLaughlin correctly stated the law.
It does appear that there may be a respectful difference of view within the Court on that matter.
Outcome
In my opinion the ground of manifest error should be upheld and the offender resentenced. Although I have had some difficulty with the language used by the sentencing Magistrate I would not uphold the additional ground.
There is no doubt that the offence was very serious. However, to paraphrase Markarian at [25], the result embodied in the order was unreasonable or plainly unjust.
There was little, if any, room for leniency based upon his criminal history but the objective facts could not justify the sentence imposed.
In my view the commencement point for the sentence is 17 months imprisonment. I would reduce that sentence to 14 months having regard to the utilitarian value of the plea against the strength of the case.
In my view substantial weight should be accorded, in the circumstances of this case, to deterring the offender and others from committing the same offence. His conduct was a defiance of the orders of the Court. This was by no means the first such defiance. There is value in our society upholding all orders of Courts. There could be said to be even more value in upholding protection orders in the context of the role that protection orders now play in our society in all jurisdictions.
I propose that the offender be eligible for parole after serving 10 months. That date will be 8 October 2015.
Order
(a)Appeal allowed.
(b)Set aside the sentence imposed in the Court below.
(c)In lieu thereof, the Appellant is sentenced to be imprisoned for 14 months such sentence to commence on 9 January 2015.
(d)The Appellant is to be eligible for parole on 8 October 2015.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: D.Hoitink Date: 25 September 2015 |
13
3