Carter v Firth
[2020] NTSC 62
•16 September 2020
CITATION:Carter v Firth [2020] NTSC 62
PARTIES:CARTER, Donovan Ali Nesta
v
FIRTH, Justin Antony
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 28 of 2020 (22003327)
DELIVERED: 16 September 2020
HEARING DATE: 19 August 2020
JUDGMENT OF: Burns J
CATCHWORDS:
CRIME – Appeals – Appeal against sentence – Whether Local Court committed specific error – Whether sentence manifestly excessive
Criminal Code Act 1983 (NT) s 166, s 188(2), s 213
Criminal Code 1995 (Cth) s 474.15
Sentencing Act 1995 (NT) s 5, s 52(3), s 106B(4)
Allred v The Queen [2015] ACTCA 21; Bianamu v Rigby [2020] NTSC 43; Carroll v The Queen [2011] NTCCA 6; 29 NTLR 109; Hardy v Rigby [2020] NTSC 42; Holliday v The Queen [2013] ACTCA 31; House v The King (1936) 55 CLR 488; Nicholson v Andreou [2018] NTSC 40; Pearce v The Queen [1998] HCA 57; 194 CLR 610; R v De Simoni (1981) 147 CLR 383; R v Markarian [2005] HCA 25; 228 CLR 357; R v Olbrich (1999) 199 CLR 270; R v Storey [1998] 1 VR 369; R v Veen (No 2) (1988) 164 CLR 465; R v Wilson [2005] NSWCCA 219; R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159; Wong v The Queen [2001] HCA 64; 207 CLR 584, referred to
Australian Concise Oxford Dictionary (2nd Edition, 1997 reprint)
Macquarie Dictionary (5th edition, 2009)
REPRESENTATION:
Counsel:
Appellant:L Nguyen
Respondent: D Castor
Solicitors:
Appellant:
Respondent: Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Bur2003
Number of pages: 27
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINCarter v Firth [2020] NTSC 62
No. LCA 28 of 2020 (22003327)
BETWEEN:
DONOVAN ALI NESTA CARTER
Appellant
AND:
JUSTIN ANTONY FIRTH
Respondent
CORAM: BURNS J
REASONS FOR JUDGMENT
(Delivered 16 September 2020)
Introduction
The appellant, Donovan Ali Nesta Carter, appeals against the sentences imposed in the Local Court on 27 May 2020. The appellant pleaded guilty to six offences, which occurred on 26 January 2020. The sentencing judge recorded convictions for these offences, and sentenced the appellant as follows:
(a)on Count 1 for the offence of using a carriage service to make threat to kill, contrary to s 474.15(1) of the Criminal Code 1995 (Cth) (Criminal Code (Cth)), to 3 months’ imprisonment;
(b)on Count 2 for the offence of unlawfully entering a building with intent to commit assault, contrary to s 213(1), (4) and (6) of the Criminal Code Act 1983 (NT) (Criminal Code (NT)), to 6 months’ imprisonment to be served concurrently with Count 1;
(c)on Count 4 for the offence of unlawfully assaulting DU, contrary to s 188(2) of the Criminal Code (NT), to 2 years and 6 months’ imprisonment to be served concurrently with Counts 1 and 2;
(d)on Count 6 for the offence of making a threat to kill DU and GU, contrary to s 166 of the Criminal Code (NT), to 2 years’ imprisonment to be served concurrently with Counts 1, 2 and 4;
(e)on Count 8 for the offence of aggravated assault against KC, contrary to s 188(2) of the Criminal Code (NT), to 2 years and 6 months’ imprisonment to be served concurrently with the sentences for Counts 1, 2, 4 and 6; and
(f)on Count 9 for the offence of making a threat to kill, contrary to s 166 of the Criminal Code (NT), to 3 years and 18 months’ imprisonment which is to be served cumulatively on Count 8.
The overall effective sentence was one of four years’ imprisonment, which is to be suspended after the appellant serves 12 months’ imprisonment.
The proceedings before the Local Court
On 20 May 2020, the appellant entered pleas of guilty to the above offences. At that time, Counts 3, 5, 7, 10 and 11 were withdrawn and dismissed. The Crown read out the following Agreed Facts:
The offender, in this matter is Donovan Carter, who is a 25-year old male. The victims in this matter are [KC], who is a 29-year old female. [GU], who is a 48-year old female and [DU], who is a 31-year old male.
For 18 months prior to this incident, the offender was in a domestic relationship with [KC] and they resided together at [KC’s] residence being [redacted]. He has no relationship with either [GU] or [DU].
On 17 January 2020, [KC] separated with the offender. On the same day, [KC] instructed the offender to vacate her premises, to which the offender complied. Due to the fear of ongoing domestic violence, [KC] requested that [GU] and [DU] temporarily reside with her at her residence.
At 5:30 am on [26 January 2020], the offender made a telephone call to [KC] in which she [sic] threatened to attend her residence and kill her. [KC] ended the phone call out of fear. The offender called back several times and continued to speak to her in a threatening manner until 6:30 am.
At 7 am, the offender attended [KC’s] residence. He had a socket wrench in his hand, at the time. [KC] observed the offender approaching her residence and she ran to her front door, in an attempt to lock the offender out. The offender yelled, “Let me in, or else”, as he overpowered [KC] and pulled the door open from the outside. The offender entered the premises and grabbed [KC] by the shirt with his left before pushing [KC], to the ground with his right hand.
The offender stepped over [KC] and began walking to a bedroom where [GU] and [DU] were sleeping. Whilst on the floor, [KC] tried to stop the offender by grabbing on to his legs and screaming for him to stop. The offender entered the room where [GU] and [DU] were sleeping and yelled, “Get the fuck out”, and “Where the fuck is Tommy?” As [DU] began to wake from the offenders [sic] yelling, the offender began striking [DU] in the head with the socket wrench.
[DU] stood up and began wrestling the wrench from the offender when they both fell on [GU], who was still lying on the floor. The offender then obtained a serrated black handled knife and started yelling threats at [GU] and [DU] of, “Get the fuck out of here, I’m going to kill you”, and “I’m going to fucking stab you”, as they attempted to gather their belongings to leave the room.
[GU] and [DU] gathered their things and started exiting the premises with [KC], as the three approached the front gate, the offender ran to the group and yelled, “Fuck off, you cunts or I’ll kill you”, at [GU] and [DU]. The offender waved the knife in the air as he motioned for [GU] and [DU] to leave and for [KC] to stay. The offender told [KC] to get the fuck inside, as he waved the knife in front of the [sic] in a circular motion.
[KC] complied and entered the premises where the offender pushed [KC] to the ground. The offender then dragged [KC] in to the lounge room, where he held the knife to [KC’s] face. The offender continued to threaten [KC] causing her to fear for her life, saying, “I should kill you, I should kill you, I don’t give a fuck if I go to gaol.” The offender then walked outside and whilst in possession of the knife, the offender walked after [GU] and [DU]. He continued to yell threats and [sic] [GU] and [DU] before he discarded the knife and left the area, on foot.
Occupants of the neighbouring property, heard the disturbance and requested police attendance. Casuarina General Duties members located and arrested the offender a short time later. At no time, did the offender have any lawful or authorisation, justification or excuse to unlawfully enter [KC’s] residence, threaten to kill or assault anyone or to possess a controlled weapon.
The prosecution is not alleging that the offender actually used the socket wrench to intimidate or threaten [KC]...
The appellant’s counsel, Ms Nguyen, submitted that the offending was a course of conduct that took place in the span of about two hours. It was submitted that the appellant’s prospects for rehabilitation and employment were excellent. It was submitted that the appellant was a person of prior good character, and the sentence imposed should reflect that he was a first-time offender. Ms Nguyen argued that the Court should avoid imposing a sentence that will be “crushing” upon the appellant. It was submitted that the time the offender had spent in custody, being four months, was sufficient to give effect to general deterrence and specific deterrence.
The Crown argued that the offending was a prolonged course of conduct, and the sentence should reflect the trauma that particularly the primary victim suffered. The Crown conceded that the appellant did have prospects for rehabilitation, being a first-time offender, and he had good prospects for future employment. Nonetheless, the Crown submitted that the appellant posed a future risk given the nature of the offending. It was suggested by the Crown that it may be open for the Court to impose a partially suspended sentence.
The Crown tendered the Victim Impact Statements of KC, GU and DU. A photograph of an injury to DU’s left ear and the Assessment of Offender Suitability for Supervision were also tendered in the proceedings. A bundle of character references and work references were tendered on behalf of the appellant. This included a number of letters from David Cox, Denella Detourbet, Robert Brant, Tairone Trainor, Bronte Mary Long, Reece Fuller and Bridgette Beer.
On 27 May 2020, Judge Woodcock convicted and sentenced the appellant. In Judge Woodcock’s sentencing remarks, his Honour set out the Agreed Facts (above at [3]). His Honour stated that he had considered the references tendered on the appellant’s behalf, which spoke “glowingly” of the appellant and stated this offending was “out of character”.
In regards to the Victim Impact Statements, his Honour stated:
Victim impact statement from [KC] sets out:
I was sore all over my body from being thrown around the house, being tossed around. I was diagnosed with complex post-trauma stress disorder and bipolar prior to this incident. I have been working really hard on my mental health for the last 12 months. The incident has set me back. I had to ask for help from my mother to care for my three children, as this has affected me so much. I don’t feel like I can give them a safe home. It’s destroyed my life and my children’s wellbeing. I am scared that he, or his family, may do something to me in the future.
She was homeless for six weeks. She didn’t want to go back to the house because of threats she received. This took a toll on her. She wants the defendant to be mentally assessed.
[GU’s] victim impact statement sets out also pain. She was very scared and threatened. It was the scariest situation she’s ever seen. She’s concerned for [KC] and her children.
[DU] says he had a cut to his left ear, which was bleeding, caused pain. Left collarbone was hurting.
With respect to the appellant’s prospects for rehabilitation, Judge Woodcock said:
This court is always concerned to rehabilitate people. It’s always giving first offenders with no criminal history lenient treatment, as the authorities tell us too [sic], and we should help to rehabilitate people. But sadly, this is quite the opposite. This is truly monstrous violence.
This is conduct that must be sternly punished so that the [appellant] never ever contemplates doing it again. That like-minded men are deterred and that the denunciation of the community is properly shown. The community won’t tolerate extreme violence by jealous young men against women. It happens every day, and we do everything we can to deter it.
I balance those factors carefully, as I say, mindful this is a first offender with no criminal history, pleading guilty…
His Honour also noted the following factors:
(a) the appellant pleaded guilty early and is remorseful. His Honour stated that he had given “the full discount for the plea and mitigation”;
(b) the appellant has been a hard-worker, and his Honour noted the appellant’s employment history;
(c) the appellant has “good family support”;
(d) the appellant was a person of “previously very good character”; and
(e) the appellant “very significantly” had no criminal history.
Judge Woodcock stated that he had considered fixing a non-parole period due to the seriousness of the offending. However, his Honour instead suspended the sentence after 12 months’ imprisonment, considering the youth of the appellant, his good work history, his family support, his prospects for rehabilitation and in circumstances where this behaviour was out of character.
Grounds of appeal
The Notice of Appeal, filed on 17 June 2020, sets out the following grounds of appeal:
1. The overall effective sentence of four years, to be suspended after serving 12 months, was manifestly excessive in all the circumstances of the offender and of the offending;
2. The Learned Judge erroneously took into account and/or made findings of fact that went beyond what was set out in the Agreed Facts;
3. The Learned Judge erred in failing to apply “instinctive synthesis” to all the relevant sentencing factors;
4. The Learned Judge failed to take into account the principle of totality;
5. The Learned Judge failed to impose an aggregate sentence where such a sentence was warranted in law; and
6. The Learned Judge erred in law, in failing to avoid a “crushing sentence” for a first-time offender.
During the hearing of the appeal, the appellant withdrew Ground 5 regarding the failure of the sentencing judge to impose an aggregate sentence. This was because an aggregate sentence was precluded by s 52(3) of the Sentencing Act 1995 (NT) (the Sentencing Act).
The appellant acknowledged that some of the grounds of appeal overlap. It was the appellant’s submission that the primary ground of appeal is that the sentence was, in all the circumstances, manifestly excessive. The remaining grounds of appeal involved specific error by the sentencing judge.
Appellant’s submissions
Ground 1 – manifest excess
The appellant noted that the principles to be applied to a sentencing appeal based on manifest excess are those stated in House v The King.[1]
It was submitted that the overall sentence imposed, and the individual sentences, specifically in relation to Counts 4, 6, 8 and 9, were manifestly excessive in all of the circumstances of the offender and the offending. The appellant asserted that the sentence was unreasonable and plainly unjust, falling outside the permissible range of sentencing dispositions. The appellant submitted that the starting points on the sentences, and the sentences after applying a reduction for the appellant’s early plea, including remorse, were manifestly excessive. The appellant noted that imprisonment is to be a sentence of last resort. It was submitted that not all of the offences warranted a term of imprisonment, particularly because the appellant was a first-time offender.
The appellant pleaded guilty at the earliest opportunity and presumably received a 25 per cent discount. He was 26 years old at the time of sentencing and had no prior criminal record. In terms of the appellant’s antecedents, his parents separated when he was a young child, and he grew up with his mother, sisters and nanna. He went to various schools. He was awarded a sporting scholarship in St Kilda, Melbourne, but returned to Darwin at age 17 years. After finishing Year 11, he worked as a painter, tiler and in various other jobs in the construction industry.
It was submitted that the appellant’s employment history, and his prospects for rehabilitation were excellent. The character references and work references, tendered at the sentence hearing, supported that this offending was “out of character” for the appellant.
The appellant submitted that it is necessary to consider the facts of each offence to discern whether the sentences were manifestly excessive. The appellant identified the following facts directed to each charge:
· Count 1 – using a carriage service to make threat to kill – at 5:30 am on 26 January 2020, the appellant called KC and threated to attend her residence and kill her. KC ended the phone call, and the appellant called back several times until 6:30 am.
· Count 2 – unlawfully entering a building with intent to commit assault – at 7:00 am on 26 January 2020, the appellant attended KC’s residence. He had a socket wrench in his hand, but it was not alleged that he used it to threaten or intimidate KC. KC tried to lock the appellant out, and he yelled “let me in or else”. The appellant pulled the door open.
· Count 4 – unlawfully assaulting DU – the appellant entered the house and walked towards the bedroom. Inside the bedroom, DU and GU were sleeping. The appellant yelled “get the fuck out”. The appellant struck DU in the head with a socket wrench as DU was waking up. DU stood up and wrestled the wrench from the appellant. They both fell on GU who was still lying on the floor.
· Count 6 – making a threat to kill DU and GU – the appellant obtained a serrated black handled knife and yelled “[g]et the fuck out of here, I’m going to kill you” and “I’m going to fucking stab you” as GU and DU gathered their belongings to leave the room. As they were at the front gate with KC, the appellant yelled at GU and DU “[f]uck off you cunts or I’ll kill you”.
· Count 8 – aggravated assault against KC – when the appellant entered the premises, he grabbed KC by the shirt before pushing her to the ground. After GU and DU left the premises, the appellant told KC to “[g]et the fuck inside” as he waved the knife in front of her. When inside the premises, the appellant pushed her to the ground. The appellant dragged KC into the lounge room, where he held the knife to her face.
· Count 9 – making a threat to kill – the appellant dragged KC into the lounge room, where he held the knife to her face, saying to her, “I should kill you, I should kill you, I don’t give a fuck if I go to [gaol]”.
The appellant submitted that it is important to consider the following circumstances of the offending:
The relationship between the Appellant and [KC], and the circumstances leading to the relationship breakdown was described by counsel for Mr Carter as:
a. They had been in a 1.5 year relationship.
b. He had his own place but moved into her place around 2 months into the relationship, to maintain the children’s routine with schooling at [redacted].
c. Mr Carter became a father figure to [KC’s] three children who were aged 12, 10 and 5, being children from her previous relationships.
d. After about 5 months at [redacted], they decided to move to Daly River to avoid threats [KC] was receiving from her former partner.
e. He grew close bonds with the children, who wanted to use his surname. They were enrolled at Daly River school under his name.
f. They lived at Daly River around 4 months, where he worked part-time at the Daly River Inn, cooking school lunches, and as a yardman.
g.As they had hit a pig on the way to Daly River, their car was wrecked. Life was difficult living remotely without transport, so they decided to return to Darwin.
h. This was when the relationship started to get rocky – whilst the kids were at school and Mr Carter was at work, [KC] had nothing to do and had issues with him working at the pub where backpackers often attended. She made an ultimatum that he was to quit working there or lose the family.
i. He quit the job. With no income and no car, they had to move back to Darwin. There, the kids were enrolled at [redacted] – again as “Carters”.
j. There were money issues. Resentment grew in the relationship because of the decision to move back to Darwin. They started bickering over small things.
k. In late 2019, the relationship had become worse.
The circumstances of the offending were explained to the court as follows:
a. Days before the offending, the two had an argument. [KC] asked Mr Carter to leave, and he left.
b. It was a very difficult break-up for him which he had described by saying, “I loved [KC] and the kids, they were my family. I was ready to spend the rest of my life with them. It shattered my world that I had put in so much and everything was thrown back in my face.”
c. It was not a clear-cut breakup to Mr Carter, because the two had spoken on the phone about him seeing the kids and potentially getting back together.
d. He was heart-broken, and had been drinking all night the night before the offending, up to about 4am that morning, Australia Day. He was ruminating, grieving, getting angry – and his intoxication ultimately impaired his judgement. In his words, “I probably wouldn’t have made the same mistake if sober. Still would have been shattered but wouldn’t have done the stupid things I done.”
e. He went over to [KC’s] house that morning to talk to her about arrangements to see the kids and maybe of getting back together. He had thought it was just himself and [KC]. He did not know [DU] before that. When he realised that was a bloke there, he immediately thought she was sleeping with him, and only so shortly after she and he had split up.
f. In his state of mind, he hadn’t considered or accepted that they were finished. To him, he had just left the house temporarily, to stop the bickering. He thought there were still prospects of coming back together again.
g. He did not know there was another lady [GU] in the house. He only realised this during the incident [in] the room.
h. He did not direct any violence toward the lady. The agreed facts had the threat to kill directed at both the lady and the bloke. Impaired by alcohol, he felt angry at the time and just wanted them both to leave.
It was further submitted that the sentences contravened s 5 of the Sentencing Act, which provides:
5 Sentencing guidelines
(1)The only purposes for which sentences may be imposed on an offender are the following:
(a)to punish the offender to an extent or in a way that is just in all the circumstances;
(b)to provide conditions in the court’s order that will help the offender to be rehabilitated;
(c)to discourage the offender or other persons from committing the same or a similar offence;
(d)to make it clear that the community, acting through the court, does not approve of the sort of conduct in which the offender was involved;
(e)to protect the Territory community from the offender;
(f)a combination of 2 or more of the purposes referred to in this subsection.
The appellant submitted that the sentence was not “just in all the circumstances” and was not a sentence that would assist the offender to be rehabilitated. The appellant asserted that the sentence went beyond what was necessary to protect the community. It was submitted that the sentencing judge placed too much weight on deterrence and denunciation, and insufficient weight on the appellant’s personal circumstances and his prospects for rehabilitation.
Ground 2 – consideration of matters beyond the Agreed Facts
The appellant submitted that the sentencing judge erred in taking into account facts in the Victim Impact Statements that went beyond the Agreed Facts. At the sentence hearing, his Honour acknowledged that he could only have regard to the Victim Impact Statements insofar as they were “consistent with the Agreed Facts and the laid charges”. The appellant argued that his Honour took into account aspects of the Victim Impact Statements which were in contention.
The appellant submitted that his Honour considered the following statements from KC’s Victim Impact Statement, which went beyond the Agreed Facts:
I was sore all over my body from being thrown around the house, being tossed around… She was homeless for six weeks. She didn’t want to go back to the house because of threats she received…
The appellant argued that his Honour considered these statements as matters aggravating the sentence in the absence of any supporting evidence. The appellant submitted that this contravenes the fundamental principle that “any fact that aggravates a sentence is required to be proven by the Crown to the criminal standard ‘beyond a reasonable doubt’”: R v Storey;[2] R v Olbrich.[3] The appellant further submitted that these matters were irrelevant in sentencing the appellant.
Similarly, the appellant submitted that his Honour considered the following statement from the Victim Impact Statement of GU, which went beyond the Agreed Facts and the laid charges:
[GU’s] victim impact statement sets out also pain.
The appellant submitted that his Honour considered this statement as a matter aggravating the sentence. The appellant noted that the appellant was charged with making a threat to kill GU, and not with assaulting GU. As such, the above statement was irrelevant in sentencing the appellant. The appellant stated that the Agreed Facts do not suggest that GU was physically assaulted, and the Crown did not present any evidence to support this. The appellant also submitted that this contravened the principle that a judge cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence: R v De Simoni.[4]
The appellant further argued that his Honour’s comments regarding DU were not consistent with the Agreed Facts:
[A]ssault on [DU] with a shifting spanner, when he’s a Good Samaritan, sleeping, bludgeoned in the head, caused an injury in the middle of the night…
(Emphasis added).
It was submitted that the use of the word “bludgeoned” to describe the incident tended to exaggerate the assault.
The appellant submitted the sentence must be set aside and the appellant re‑sentenced.
Ground 3 – failure to apply instinctive synthesis
The appellant submitted that the sentencing judge erred in failing to apply “instinctive synthesis” to all the relevant sentencing factors. The appellant further submitted that his Honour’s failure to apply instinctive synthesis also resulted in a failure to properly apply ss 5(1)(a) and (b) of the Sentencing Act (see [20] above).
Instinctive synthesis was defined by McHugh J in R v Markarian,[5] as:
By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.
In R v Veen (No 2),[6] Mason CJ, Brennan, Dawson and Toohey JJ said:
Sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
The appellant noted Gleeson CJ’s remark in Wong v The Queen,[7] that:
Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.
Most sentencing of offenders is dealt with as a matter of discretionary judgment. Within whatever tolerance is required by the necessary scope for individual discretion, reasonable consistency in sentencing is a requirement of justice…
The appellant referred the Court to Bianamu v Rigby[8] and Hardy v Rigby[9] as comparative cases. In Bianamu, the offender unlawfully entered a residential dwelling at night-time, in company with six others, with the intention to commit an assault, and unlawfully cause harm. The offending was an act of revenge upon the victim, who suffered a broken arm, and it was in the presence of a child. It was submitted that the offending in Bianamu was objectively more serious, and the victims suffered far greater harm. The offender in Bianamu was sentenced to an overall sentence of 18 months’ imprisonment, to be suspended upon serving six months. The appellant submitted that the appellant’s offending was “nowhere near as vigorous or violent” as the offending in Bianamu. In Hardy, the offender was convicted of aggravated assault against his partner, including strangulation and dragging his partner. The victim was unable to defend herself, and suffered harm. The offender was sentenced to a 12-month good behaviour bond. Similarly, the appellant submitted that the offending in Hardy also demonstrated a higher level of violence than the appellant’s offending.
The appellant argued that the sentencing judge failed to synthesise all the relevant factors, applying a process of allocating greater or lesser weight to some factors, depending on their relevance to the appellant’s subjective circumstances and his offending. Specifically, the appellant said that the sentencing judge placed excessive weight on general deterrence. The appellant submitted that if the correct approach had been taken, the overall sentence of four years’ imprisonment would not have been considered within the range of an appropriate sentence in all of the circumstances.
Ground 4 – failure to properly apply totality
The appellant submitted that the sentencing judge failed to properly apply the principle of totality in sentencing the appellant. The appellant took the Court to Pearce v The Queen,[10] where it was stated:
A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
The appellant conceded that his Honour did turn his mind to totality. The appellant submitted that the correct application of totality would have involved “more concurrency” across the sentences. The appellant argued that the overall head sentence of four years’ imprisonment could not have encompassed a proper application of totality, given that the offending was a course of conduct and the appellant’s strong mitigating factors.
Ground 6 – failure to avoid a crushing sentence
The appellant argued that the sentencing judge erred in law by failing to avoid a “crushing sentence” for a first-time offender. The appellant submitted this was a standalone ground of appeal involving a specific error.
The appellant argued that the overall sentence was “crushing” in that it went beyond the limit of a term of imprisonment that could still enable him to have hope to live a useful and fulfilling life when released: R v MAK; R v MSK;[11] Holliday v The Queen.[12] The appellant argued that some leniency was warranted in sentencing because the appellant is a young first-time offender who pleaded guilty at the earliest opportunity.
Respondent’s submissions
Ground 1 – manifest excess
The respondent submitted that in assessing whether a sentence is manifestly excessive, regard should be had to the maximum penalty for the offence, the objective gravity of the offending, the sentence standards for the offence and the offender’s subjective circumstances.
The respondent stated that the maximum penalty for an offence operates as a “yardstick” against which a comparison of the appropriateness of the sentence can be made: Markarian v The Queen.[13] The respondent submitted that the legislature enacts maximum penalties not as mere formalities, but to establish the seriousness with which the legislature considers these particular offences. The respondent set out the relevant maximum penalties as follows:
· Count 1 – using a carriage service to make threat to kill – 2 years’ imprisonment when dealt with summarily: s 474.15(1) Criminal Code (Cth);
· Count 2 – unlawfully entering a building with intent to commit assault – 2 years’ imprisonment: ss 213(1), (4) Criminal Code (NT);
· Count 4 – unlawfully assault – 5 years’ imprisonment: ss 188(1) and (2)(a) Criminal Code (NT);
· Count 6 – making a threat to kill – 7 years’ imprisonment: s 166 Criminal Code (NT);
· Count 8 – aggravated assault – 5 years’ imprisonment: ss 188(1), (2)(a), (b), (d) and (m) Criminal Code (NT); and
· Count 9 – making a threat to kill – 7 years’ imprisonment: s 166 Criminal Code (NT).
The respondent submitted that the context in which the offending took place should be considered. The respondent noted that the appellant and KC were involved in a domestic relationship over a period of 18 months. After two months together, they began to cohabit. Approximately nine days before the offending took place, there was an “acrimonious breakup”. It was the respondent’s submission that the period immediately following the breakdown of a relationship is a point at which, especially women, are at a much more acute and real risk of domestic violence. The respondent asserted that KC attempted to take precautionary steps to keep herself safe from the appellant by requesting two of her friends, GU and DU, to reside with her temporarily.
The respondent submitted that the offending was “objectively grave”. The respondent argued that the seriousness of the offending increased as the incident progressively escalated over the two hour period. In assessing whether the overall sentence was manifestly excessive, the respondent suggested it is useful to consider the individual sentence on Count 9 and the extent of accumulation on the other five counts. It was submitted that the events that preceded Count 9 informed the character of the offending of Count 9, the level of fear the KC would have been experiencing and the objective gravity of the offending. The respondent asserted that the offending in Count 9 was “well above the mid-range for offending” under s 166 of the Criminal Code (NT), and the sentence imposed was not outside the breadth of sentencing discretion. The respondent submitted that the fact the appellant was a first-time offender could not lead to the imposition of a sentence that was disproportionate to the objective gravity of the offence.
The respondent noted that the overall sentence was to be suspended after one-quarter of the total head sentence had been served. The respondent submitted that this strongly suggests that the sentencing judge gave significant weight to the appellant’s mitigating subjective circumstances and his prospects for rehabilitation.
The respondent submitted that this ground of appeal has not been made out. It was the respondent’s submission that Grounds 3, 4 and 6 are all variants of the ground of manifest excess: Allred v The Queen.[14]
Ground 2 – consideration of matters beyond the Agreed Facts
The respondent submitted that his Honour was required to consider the contents of the Victim Impacts Statements: the Sentencing Act, s 106B(4). The respondent noted that the sentencing judge had acknowledged that he was not sentencing the appellant for conduct that went beyond the Agreed Facts.
The respondent submitted that the references to KC being “thrown around the house” and “tossed around” were not dissimilar to the description of the incident in the Agreed Facts. The Agreed Facts stated that the victim was “dragged” around the house and pushed to the ground on a number of occasions. The respondent also submitted that the statement that GU experienced pain may have been a reference to the appellant and DU falling on her, as set out in the Agreed Facts. The respondent conceded that the sentencing judge’s description of the assault upon DU was imprecise but submitted that this did not negate his Honour’s previous statement of the facts.
The respondent submitted that the context of the sentencing judge’s references to the Victim Impact Statements needs to be considered. The respondent noted that the sentencing judge recited the Agreed Facts and concluded “[t]hose were the agreed facts.” His Honour then went on to summarise the Victim Impact Statements. The respondent argued that the sentencing judge was demarcating what was contained in the Victim Impact Statements from what was contained in the Agreed Facts. The respondent submitted that simply because the sentencing judge referred to the contents of the Victim Impact Statements does not necessarily mean that it has manifested itself in the sentences imposed.
Ground 3 – failure to apply instinctive synthesis
The respondent submitted that this ground of appeal simply amounts to a particular of manifest excess because the appellant’s argument was essentially that the sentencing judge placed too much weight on deterrence.
In relation to the appellant’s comparative cases, the respondent asserted that these cases were not particularly helpful due to the different contexts in which the offending occurred. The respondent highlighted that Grant CJ considered the sentence in Bianamu to be arguably manifestly inadequate given the circumstances of the offending. In regards to Hardy, the respondent noted that Hiley J, at [63], stated the appellant failed to “appreciate the gravity” of the offending.
Ground 4 – failure to properly apply totality
The respondent stated that it was clear that the sentencing judge considered the principle of totality. His Honour made the following remark after sentencing the appellant:
I take a step back and I consider whether I ought not – this accurately reflects the objective seriousness of the offending in totality, given the mitigating factors. I am satisfied that it does.
In determining the extent of accumulation of the sentences, the respondent stated that a relevant factor was that there were three discrete victims. The respondent submitted that a failure to sufficiently accumulate the sentences could have properly been seen “as a failure to acknowledge the harm done to those individual victims”: R v Wilson.[15] The respondent took the Court to Nicholson v Andreou,[16] where Grant CJ stated:
There will be circumstances where two or more offences take place in a single episode in which there are discernible two or more courses of criminal conduct constituting “separate invasions of the community’s right to peace and order” ... It is also the case that temporal proximity is not conclusive, although that principle will operate with greater strength in relation to offences of violence involving separate attacks and/or separate victims…
(References omitted).
It was submitted that “assessment is always a matter of fact and degree. Reasonable minds might differ as to the need for cumulation”: Carroll v The Queen.[17] The respondent’s submission was that the degree of accumulation of the sentence imposed was within the sound exercise of his Honour’s sentencing discretion.
Ground 6 – failure to avoid a crushing sentence
The respondent noted that this ground of appeal was essentially a particular of manifest excess. The respondent took the Court to Allred, where it was stated at [53]:
Despite its regular use, even, as noted above (at [47]), in the High Court, it may be that the term “crushing” has no great utility and is better avoided, relying instead on the notion of manifest excess and the requirement for a proper relationship between the sentence and the objective circumstances of the offence and the subjective circumstances of the offender.
The respondent further submitted that the appellant’s prospects for rehabilitation are “not so bad as to say that his life will be deprived of any utility after serving a further five months of his sentence”. The respondent emphasised that the vast majority of the appellant’s sentence was suspended.
Consideration
The respondent’s submission that Grounds 3, 4 and 6 are in reality particulars of Ground 1 should be accepted. None of those grounds as articulated by the appellant add anything to the principal ground of appeal, being that the sentences imposed, both individually and the overall sentence, are manifestly excessive. The sentencing remarks of the sentencing judge reveal that he was alive to the necessity to consider competing sentencing considerations such as deterrence and rehabilitation in arriving at both the individual and the overall sentence. His Honour ultimately imposed head sentences, both individual and the overall sentence, which reflected the seriousness of the offending, but suspended the operation of those sentences after serving just 25 per cent of the overall sentence imposed. The provision for early release clearly reflected the sentencing judge’s favourable estimation of the appellant’s prospects for rehabilitation. The degree of accumulation of the sentence imposed by the sentencing judge on Count 9 with the sentences imposed on the remaining counts may, at first glance, suggest error. I am not ultimately persuaded that this is so. There is no single, correct method by which a sentencing judge may appropriately make individual sentences concurrent and/or cumulative to arrive at an overall sentence which appropriately reflects the totality of the offending. Another judge may have reached the same overall sentence by imposing greater accumulation with regard to each of the sentences imposed and less with regard to Count 9, but that is not to the point.
With some misgivings, I also accept the respondent’s submission regarding Ground 2. The Agreed Facts recorded that the appellant dragged KC into the lounge room and pushed her to the ground, which is not inconsistent with KC’s description that she was “being thrown around the house, being tossed around”. It would hardly be surprising if this conduct caused soreness on the part of KC. It is not, in itself, an allegation of an injury which may have founded a more serious charge. In addition, the sentencing judge was obliged to consider the Victim Impact Statement provided by KC, and made it clear that this representation was part of that Statement. In the light of the sentencing judge’s clear statement that he would only take into account the Victim Impact Statement to the extent that it did not go beyond the Agreed Facts, it is not possible to conclude that he took into account, in arriving at the sentences imposed, those parts of the Statement about which the appellant now complains.
The submission that the use of the word “bludgeoned” by the sentencing judge, in relation to the assault on DU, was an exaggeration, or too emotive, cannot be accepted. The Australian Concise Oxford Dictionary, 2nd Edition, 1997 reprint, defines the word “bludgeon”, when used as a noun, as “a club with a heavy end”, and, when used as a verb, as “beat with a bludgeon”. Similar definitions are found in the Macquarie Dictionary, 5th edition. The word would appear to aptly describe both the socket wrench used by the appellant and the way that he used it.
Turning to what is in reality the principal ground of appeal, that the sentences imposed are manifestly excessive, I am not satisfied that the appellant has established that either the individual sentences or the overall sentence are such as to compel the inference that the sentencing judge fell into error. The legislature has reposed in the Local Court judge the power and obligation to impose sentences for these offences. This involves the exercise of a discretion by the sentencing judge, a discretion which is not to be lightly interfered with on appeal. The legislature has not chosen to repose the exercise of that discretion in judges of this Court. It follows that the fact that another judge may not have given as much weight to deterrence, or may have given greater weight to rehabilitation, is not to the point. Before this Court may interfere with the sentences imposed by the sentencing judge, I must be satisfied that the sentences imposed are so far outside the range of sentences that could be appropriately imposed in the proper exercise of the sentencing discretion as to compel the conclusion that the sentencing judge has committed an error of principle. While the sentences imposed are stern, I am not persuaded that they are manifestly excessive. I accept that the appellant has compelling subjective circumstances, but the subjective circumstances of an offender can never justify a sentence that does not adequately reflect the objective seriousness of the offences. In the present case, the objective circumstances reveal serious criminal offending, including significant violence utilising weapons, in the context of threats having been made by the appellant to kill his former domestic partner.
The appeal will be dismissed.
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[1] (1936) 55 CLR 488
[2] [1998] 1 VR 369 at [369]
[3] (1999) 199 CLR 270
[4] (1981) 147 CLR 383 at 399
[5] [2005] HCA 25; 228 CLR 357 at [51]
[6] (1988) 164 CLR 465
[7] [2001] HCA 64; 207 CLR 584 at [6]-[7]
[8] [2020] NTSC 43 (Bianamu)
[9] [2020] NTSC 42 (Hardy)
[10] [1998] HCA 57; 194 CLR 610 at [45]
[11] [2006] NSWCCA 381; 167 A Crim R 159 at [17]
[12] [2013] ACTCA 31 at [61]
[13] [2005] HCA 25; 228 CLR 357 at 372 per Gleeson CJ, Gummow, Hayne and Callinan JJ
[14] [2015] ACTCA 21 (Allred)
[15] [2005] NSWCCA 219 at [38]
[16] [2018] NTSC 40 at [21]
[17] [2011] NTCCA 6; 29 NTLR 109 at 106
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15
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