Cartmill v Long - [2023] NTSC 54

CITATION:Cartmill v Long [2023] NTSC 54
PARTIES:THE QUEEN

v
LONG, Alistair

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:LCA 7 of 2022 (22207803)
REASONS:22 June 2023
DECISION:2 September 2022
HEARING DATES:  6 July 2022
JUDGMENT OF:  Blokland J
CATCHWORDS:
CRIMINAL LAW – CROWN APPEAL – SENTENCING – MANIFESTLY
INADEQUATE – ground of appeal made out – exercise of
discretion to not interfere with the sentence notwithstanding ground made
out – respondent pleaded guilty after sentencing Judge gave sentence
indication – prosecutor did not submit to the contrary until after the
sentence was passed – question of fairness to the respondent – question of
fault by the prosecution – mercy extended by the sentencing Judge –
discretion to dismiss the appeal exercised.
CRIMINAL LAW – CROWN APPEAL – assault with circumstances of
aggravation – plea of guilty – value of plea of guilty in domestic violence
cases – assessment of objective seriousness of offending.
Local Court (Criminal Procedure) Act 1928 (NT) ss 60AY, 60AT
Sentencing Act1995 (NT)
CMB v Attorney General for NSW [2015] HCA 9; Cumberland v The Queen
[2020] HCA 21; Dinsdale v The Queen [2000] 202 CLR 321; Director of
Public Prosecutions v Hardy [2011] VSCA 86; House v The King (1936) 55
CLR 299; R v Allpass (1993) 72 A Crim R 561; R v Chad (NSWCCA, 13
May 1997 – unreported); R v Hernando (2002) 136 A Crim R 451; R v JW
[2010] NSWCCA 49 at [92]; R v Wilson [2011] NTCCA 10; Rigby v
Burarrwanga [2022] NTSC 36; The Queen v EG [2022] NTCCA 10; The
Queen v Sharay Duncan [2015] NTCCA 2, referred to.

REPRESENTATION:
Counsel:
Appellant:H Spowart
Respondent:  J Bourke
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:  BLO2309
Number of pages:  18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Cartmill v Long [2023] NTSC 54

No. LCA 7 of 2022 (22207803)
BETWEEN:

ROBERT CARTMILL

Appellant

AND:

ALISTAIR LONG

Respondent

CORAM: BLOKLAND J
REASONS FOR DECISION
(Delivered 22 June 2023)
Introduction

This is a Crown Appeal against the inadequacy of a sentence imposed by the Local Court on 10 March 2022. The appeal was heard on 6 July 2022. On 6 September 2022 counsel were advised of the outcome of the appeal, namely that the appellant had successfully shown that the sentence was manifestly inadequate, but that this Court would exercise the discretion not to interfere with the sentence and to dismiss the appeal.
These are the reasons the Court did not interfere with the sentence and dismissed the appeal, notwithstanding the principal ground was made out.
Two grounds of appeal were originally relied on, first that the sentence imposed by the learned sentencing judge was manifestly inadequate and second that the learned sentencing judge erred by failing to impose the mandatory minimum sentence. The second ground was later abandoned.
Background
The following background to the incident giving rise to the proceedings was before the Court and relied on by the sentencing Judge in the Local Court proceedings. The proceedings in the Local Court included a sentence indication and shortly after, the plea of guilty was entered.
The respondent and the victim had been in a domestic relationship for around three months before the offending occurred. On 26 January 2022 the victim was consuming alcohol with numerous other people at an address in Nightcliff. At approximately 6:15pm that evening, the respondent attended the address and began engaging with the victim in a verbal argument about jealousy issues. The respondent became increasingly angry and aggressive and picked up a pair of scissors.
The respondent proceeded to stab the victim with the scissors multiple times, whilst the victim remained seated in a chair throughout the attack. She was stabbed to the head, shoulder, leg and back multiple times, and was left with 16 lacerations. Two witnesses at the party stopped the assault, and police were called. The respondent left the scene and the victim was taken to hospital for treatment.
The respondent was arrested on 9 March 2022.
The victim suffered the following injuries. A 3cm laceration to her forehead and shoulder, a 20mm laceration to her knee and thigh and 10 – 12mm lacerations to her back, leaving her with a total of 16 lacerations.
Although the victim did not suffer a life threatening injury, this must have been a frightening and humiliating assault. The injuries were significant. Clearly alcohol-fuelled violence is commonplace in the Northern Territory. Injuries inflicted by weapons are dangerous and prevalent. It is fortunate the victim’s injuries were not more severe, although there was a real risk of more serious injury by virtue of the use of the scissors. Offending of this nature puts additional pressure on an already strained medical system and creates heavy costs for the community.
Proceedings in the Local Court – sentence indication
On 10 March 2022, the respondent entered a plea of guilty to assault with circumstances of aggravation. The circumstances of aggravation were causing harm, that the assault was on a woman and the offender a man, that the victim was unable to effectually defend herself due to the situation and that she was threatened with an offensive weapon, namely scissors. The offence carries a maximum penalty of 5 years imprisonment.
The plea was entered following a request from defence counsel for a sentence indication in accordance with s 60AT of the Local Court (Criminal Procedure) Act 1928 (NT):
60AT Sentence indication
(1)The defendant may apply for a sentence indication from the Court during criminal proceedings.
(2)The Court may indicate that, if the defendant pleads guilty to a charge at the time of the application, the Court would be likely to impose on the defendant:
(a)if sections 78DG and 78DH of the Sentencing Act 1995 do not apply – a sentence of actual imprisonment to commence at a specified time; or
(b) a sentence of another specified type; or
(c)if section 78DG of the Sentencing Act 1995 applies to the offence – a sentence of actual imprisonment as required by that section; or
(d)if section 78DH of the Sentencing Act 1995 applies to the offence:
(i)a sentence that is the minimum sentence of actual imprisonment that the Court is required to impose for the offence; or
(ii)a sentence that takes into account exceptional circumstances under section 78DI of the Sentencing Act 1995, if the Court is satisfied that, if the Court were imposing a sentence on the defendant, the circumstances of the case would be exceptional.
Drawn from Rigby v Burarrwanga,[1] the sentence indication process can be described as follows:
[18]A defendant applies for a sentence indication. The court must then have regard to a statement of the agreed facts on which the charge is based, the defendant’s criminal record, a victim impact statement (if available) and any other material relevant to the offence which is available at the time of the sentence indication. The court then indicates that, on a plea of guilty, the court “would be likely to impose” a particular sentence on the defendant. The words “would be likely” suggest a probable sentence, but if the defendant pleads guilty to the offence as a result of the sentence indication, the court must not impose a more severe sentence than the sentence indicated.
[19]The Local Court is bound by any sentencing indication given, unless it happens that the court is constituted by a different judge to the judge who gave the indication.
In this case, the sentencing Judge had before him a copy of the precis of facts, the respondent’s criminal history and photographs of the injuries to the victim.[2] His Honour also enquired as to the respondent’s age.[3] The sentencing judge gave a sentence indication in the following terms:
An immediate plea of guilty would get a serious and significant discount. On the facts and on his record and given his age there is nothing much other of mitigation except an immediate plea of guilty. That being the case a sentence would – a sentence without that mitigation would be in the range – with this bladed weapon – of about 12 months. Given a plea of guilty would see a sentence of nine months suspended after six. That is the best I can do for him.[4]
Following the matter being stood down for the lunch adjournment, a plea of guilty was entered on behalf of the respondent. The sentence imposed was consistent with the given indication.
The respondent was convicted and sentenced to 9 months imprisonment backdated to 9 March 2022 and suspended after 6 months, with an operational period of 18 months.
The matter was called back on and re-listed in the Local Court later that same day. The prosecutor made an application to reopen the sentence. Submissions were made by the prosecutor that there should be a mandatory minimum of 12 months actual imprisonment. The prosecutor acknowledged she did not make such a submission in the original proceedings. His Honour considered the matter and adjourned to the following day.
The following day, the learned sentencing Judge declined to vary the sentence and made the following remarks:
Yesterday I proceeded to sentence him [Alistair Long] on an aggravated assault charge with facts admitted. I was asked to give a sentence indication which I gave. Ms [S] prosecuted the matter. Ms [S] is a very competent and skilled prosecutor in my view and to say the least, she couldn’t be described as “shy”. At no time during the sentencing process yesterday morning did she do anything else but stay mute, even after I asked her to read out the facts for the public record completely.
She did not argue against or make any submissions against the suggested sentence.
In the afternoon she came back before me pursuant to an application under s 112 of the Sentencing Act. Her words when she put forward the application were, “I am here to fall on my sword, sir. I should have said to you this morning that there was physical harm indicated by the agreed facts such that the mandatory minimum was 12 months.” Remembering, of course, that I sentenced this man, given his immediate plea of guilty to nine months suspended after six.
The facts – on the facts it would be open to argue that there was physical harm, although it is not completely certain at all. Several lacerations are mentioned.
It was not argued – I did not make any error. So far as I am concerned I am functus officio and I decline to vary the sentence I passed.
Manifest inadequacy
The appellant submits that the Judge did not sufficiently consider the objective seriousness of this offending. Plainly the offending was a disproportionate response to, and major escalation of, an argument over jealousy issues. It immediately strikes as a serious example of aggravated assault. The main matter in mitigation noted by the sentencing Judge was the immediate plea of guilty.[5]
The appellant contends that the sentence imposed by the sentencing judge was manifestly inadequate, albeit not that there was error by virtue of non-compliance with mandatory sentencing provisions. There was no clear evidence or finding of ‘physical harm’ as defined by the Sentencing Act1995 (NT) to enliven a mandatory term. As above, that ground of appeal has been withdrawn. In the appellant’s submissions, it is noted that the Judge himself was aware of the ‘manifest leniency’ of his sentence, as evident through his remarks at the time of handing down the sentence which are set out later in the reasons.
The principles governing manifest inadequacy are well established from authorities such as Dinsdale v The Queen,[6] and House v The King[7] Essentially, as the High Court said in Dinsdale:[8]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit upon amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short.
In House v The King[9] the High Court stated it is not enough for an appellate court to consider that it would have taken a different course to the sentencing judge. Rather, it must go further and find an error in the exercise of a sentencing discretion or the overall sentence must be evident.
As acknowledged in The Queen v EG[10] and a number of similar authorities, Crown appeals against sentence should be a rarity brought to establish a matter of principle, including to correct a sentence so inadequate it must indicate error or departure from a sentencing principle.[11]
In this matter, the appellant contends that the sentence imposed was manifestly disproportionate to the objective seriousness of the offending, to an extent that it ‘shocks the public conscience’.[12]
I agree with the appellant’s submissions that there were a range of factors involved in the offending which meant the objective seriousness was heightened. For example, the respondent’s use of a weapon, the extent of the use of force, the number of stab wounds, the number of injuries and the seriousness of the injuries noting some lacerations were fairly deep, the attack causing the victim to ‘black out’, the vulnerable position of the victim who was sitting down, the fact it was another example of violence by a man to his domestic partner, the offending was unprovoked, the respondent only stopped once witnesses intervened, the lack of demonstrable remorse and the need for the victim to attend hospital for treatment.[13] Further, the respondent has a history of offending of this kind against women.
It is acknowledged here that there are potential qualifications which can be made with respect to the observations about the gravity of the offending. Those have been raised on behalf of the respondent on appeal.[14] However, the facts and circumstances which constituted the offending placed the offending in a higher category than many cases of assault with circumstances of aggravation on domestic partners.
The sentencing Judge acknowledged there were few matters raised in mitigation. The only notable mitigating factor was the early plea of guilty. The plea was early in the extreme. The respondent was arrested on 9 March 2022 and entered the plea on 10 March 2022. There could not have been an earlier plea.
Although the respondent’s background and personal circumstances may have pointed to some mitigation, the respondent’s counsel did not make submissions which outlined the respondent’s personal circumstances to any significant degree. The reason for that approach is easily understood. The plea was entered after a highly favourable sentence indication, so full submissions in mitigation were not made.[15]
As indicated to counsel previously, I agree that the sentence imposed was manifestly inadequate. I base this conclusion on the overall objective seriousness of the offending in the context of the respondent’s record for similar offending and the lack of mitigating material before the Court. Overall the sentence did not reflect the gravity of the offending.
Had I re-sentenced the appellant, and based on imperfect information I would have sentenced him to about 18 months imprisonment, had him assessed for alcohol rehabilitation and supervision and suspended the sentence on conditions after he served 10-12 months, depending on whether he could be supervised or attend residential rehabilitation. This is an approximation as there may be mitigating factors which have not been properly ventilated. In any event, the sentence should have been somewhere in that range and some investigation made about rehabilitation to assist to reduce the risk of further offending.
Residual discretion
Although I find the sentence imposed was manifestly inadequate, the residual discretion was enlivened. As stated in CMB v Attorney General for NSW,[16] adopting the remarks of Heydon J in R v Hernando:[17]
[I]f this Court is to accede to the Crown’s desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appealable error in the sentencing judge’s discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.
This allows the Court to decline to intervene, despite being satisfied that an appealable error has been made.[18] The onus lies with the Crown to negate any reason why the residual discretion should be exercised as the appellate court will avoid interfering with the original sentence where factors warranting the exercise of residual discretion are apparent.[19]
Factors that may be relevant to the exercise of residual discretion include delay, fault on behalf of the Crown,[20] and an appropriate exercise of mercy by the sentencing judge.[21]
For the following reasons the Court exercised the residual jurisdiction.
Unfairness to the Respondent
The very purpose of a sentence indication is to encourage offenders to plead guilty at an early stage by providing an expectation of the sentence they will receive. A sentence indication allows an alleged offender to make an early and informed decision about how they wish to plead, thereby reducing time and pressure on the courts. Sentence indications help alleged offenders to have the information in front of them and make a decision in their best interests.
The utilitarian benefits of early pleas of guilty are well known and often acknowledged during sentencing proceedings. Early pleas are particularly beneficial in domestic violence cases to prevent the victim from being required to give evidence and provide an efficient resolution. Further, there is often a risk when proceedings are delayed that a victim will come under pressure to modify, soften or attempt to avoid giving evidence against an intimate partner. There was no error in the circumstances of a generous reduction being made by virtue of the early plea, nor by making it clear to the respondent that his early plea would help him receive a lesser sentence at the time of the sentence indication. The ultimate sentence must still be reasonably proportionate to the gravity of the offending.
The Victorian Sentencing Advisory Council discussed the purpose of sentence indications:[22]
[the purpose is] to clarify the defendant’s prospects on sentence and to dispel any concerns that might be causing the defendant to defer the decision to plead guilty. A defendant may be reluctant to indicate a plea of guilty because he/she is apprehensive about the sentence, fearing for example, that he/she will receive a conviction or a term of imprisonment.
The respondent entered the guilty plea following the sentence indication of nine months imprisonment suspended after 6 months. The respondent submits it would be inherently unfair if he was re-sentenced given his plea was entered after the acceptance of a sentence indication which was not objected to by the Crown.[23]
Further, this unfairness is compounded by the lack of notification that the Crown would likely appeal the sentence as indicated.[24] This submission accords with the principles relevant to sentence indication noted above, and is consistent with giving an accused all the information in order for them to make a decision in their best interests.[25]
I agree with the submission of the respondent that it would be inherently unfair to re-sentence the respondent after he accepted the indication and waived his right to contest the charges.[26] However, I do note, of course, that both parties retain their right to appeal following whatever sentence is ultimately imposed.[27] The fact that there is a right to appeal does not mean the process overall was fair to the respondent.
Fault of the Crown

The prosecution have, by omitting to raise any issues about the sentence indication, contributed to the sentencing Judge falling into error, which is another factor relevant to the exercise of residual discretion.[28] As noted by his Honour, no objection or submissions were raised regarding the sentence by the prosecution. While I acknowledge the difficulties of prosecuting in a busy court like the Darwin Local Court, the prosecutor accepted that she did not raise the matter with the sentencing judge prior to sentence.[29] There was some opportunity for consideration of the sentencing indication over the lunch adjournment before the respondent’s plea was formally entered.
The lack of resources available in the Local Court, including prosecution and legal aid services means that short cuts are made in order to complete the work. That is the impression gleaned from reviewing the proceedings below. This is an inevitable result of counsel and the Court working under pressures that result from being unable to devote the time required to deal with relatively serious cases.
Delay
I acknowledge that the Crown brought this appeal in a timely matter. The appeal was filed in April 2022, less than a month after the respondent was sentenced. The appeal was heard some months later on 6 July 2022 and the decision was reserved. The Court was then advised on 24 August 2022 that the Respondent had received early release after serving 5 and a half months, nearly the balance of his original immediate custodial sentence.[30] As indicated, any delay in the finalisation of the appeal was not the fault of the Crown.
I would not re-sentence the respondent to further imprisonment when the respondent’s impression would be that he has served or almost served his sentence. Given that the respondent is a relatively young, but not youthful Aboriginal man from a remote area[31] and has obvious alcohol issues with the social deterioration that it brings, it is unlikely that he would fully understand the intricacies of the appeal process. There was little to be gained from increasing the amount of time he served or sending him back into custody after his release when he has served almost all of his immediate sentence. The time elapsed and his personal circumstances made it unlikely that any sentencing objectives of punishment, personal deterrence and community protection would be furthered by extending custody or a return to custody.
In Cumberland v The Queen[32] it was held that a circumstance where a respondent was about to be released back into the community prior to an appeal decision weighed heavily in favour of exercising the discretion to dismiss the appeal.
I am not sure that the message would be understood in Yuendumu where the respondent is from, that a court can indicate a prison term which everyone agrees on, a person pleads guilty because everyone agrees it is the correct penalty and later there is a move to increase the penalty. That is not a clear message to the community about how Courts and the sentencing process operates.
Mercy of the Sentencing Judge
The sentencing judge has clearly acknowledged that the sentence is lenient. It encouraged the respondent to plead guilty. The following paragraph in particular serves to highlight the sentencing Judge’s reasoning, which directly accords with the principles behind sentence indications:[33]
Sitting here now, I wouldn’t be surprised if it was argued that the sentence I have indicated is manifestly lenient. However, I would decline to accept that submission from a prosecutor because in my view and in my experience, the courts must do what they can to [v]indicate to men like the defendant that early pleas of guilty especially in cases of domestic assault where it is often logistically hard to prove beyond reasonable doubt, especially where there is a lot of drunkenness involved and in my view the courts – and my court especially – will give a significant and appreciable discount from an otherwise appropriate sentence if such pleas are indicated and indicated early as in this case.
I call them lenient, for example, this is the kind of case and especially given his repeated attacks on women, given the ferocity of this attack, that one would have thought up to 18 months would have been appropriate, suspended after 12.
However, given what has already passed from me, you will be convicted and sentenced to 9 months’ imprisonment backdated to 9 March and suspended after 6 months for 18 months.[34]
These remarks clearly indicate what could be termed ‘mercy’ by the sentencing Judge. It is not clear what aspect of the case moved his Honour to show such mercy. However, it is clear that the sentencing Judge’s reasoning aligns with research supporting sentencing indications, as noted above.
While not a reason to exercise residual discretion on its own, when considered with the other factors discussed above, plainly, this is a case in which residual discretion should be exercised.
The factors in this case which are relevant to the exercise of the Court’s discretion include unfairness to the respondent, delay, some fault on the part of the Crown and the demonstrated mercy of the sentencing Judge. On balance, these factors combine to a support the exercise of the Court’s residual discretion to dismiss the appeal.
Order
The appeal is dismissed.
----------------------

[1] [2022] NTSC 36 (Barr J).

[2] Appellant’s outline of submissions at [4].

[3] Ibid.

[4] Local Court Transcript, 10 March 2022, 3-4.

[5] Police v Alistair Long, Transcript, Darwin Local Court, 10 March 2022 at 3 (‘Transcript LC’).

[6] [2000] 202 CLR 321 (‘Dinsdale’).

[7] (1936) 55 CLR 299.

[8] At [6].

[9] At 505.

[10] [2022] NTCCA 10.

[11] Ibid at [37].

[12] The Queen v Sharay Duncan [2015] NTCCA 2, at [19]; Appellant’s Outline of Submissions at [12].

[13] Appellant’s Outline of Submissions at [14].

[14] Respondent’s written submissions at [14].

[15] Respondent’s written submissions at [8].

[16][2015] HCA 9 (‘CMB’)

[17] (2002) 136 A Crim R 451 at [12]. See also The Queen v EG [2022] NTCCA 10 at [139].

[18] CMB.

[19] The Queen v EG [2022] NTCCA 10 at [139].

[20] R v Wilson [2011] NTCCA 10 at [139].

[21] Director of Public Prosecutions v Hardy [2011] VSCA 86 at [18].

[22] Sentencing Advisory Council, (Victoria) Discussion Paper, 20 February 2007, Sentence Indication and Specified Sentence Discounts at 3.

[23] Respondent’s written submissions at [24].

[24] Respondent’s written submissions at [30].

[25] Respondent’s written submissions at [31].

[26] Respondent’s written submissions at [25].

[27] Local Court (Criminal Procedure) Act 1928 (NT) s 60AY.

[28] CWB at [62] citing R v Allpass (1993) 72 A Crim R 561; R v Chad (NSWCCA, 13 May 1997 – unreported); R v JW [2010] NSWCCA 49 at [92].

[29] Police v Alistair Long, Transcript at 8.

[30] Email correspondence from Counsel for the Respondent, 24 August 2022.

[31] The ‘Information For Courts’ indicates he is from Yuendumu.

[32] [2020] HCA 21 at [35].

[33] Ibid 6-7.

[34] Police v Alistair Long at 6.