Chapman v Cottle (No 2)
[2025] ACTSC 126
•31 March 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Chapman v Cottle (No 2) |
Citation: | [2025] ACTSC 126 |
Hearing Date: | 12 October 2022 |
Referral to Full Court | 1 December 2022 |
No further submissions confirmed | 29 January 2024 |
Decision Date: | 31 March 2025 |
Before: | Loukas-Karlsson J |
Decision: | 1) Appeal dismissed 2) Pursuant to s 219F(8) of the Magistrates Court Act 1930 (ACT), the costs of and incidental to the appeal are payable by the appellant within 28 days. 3) Leave is granted for the appellant to have the matter relisted in relation to the 28-day time limit should that prove necessary. |
Catchwords: | APPEAL - CRIMINAL LAW - Appeal from the Magistrates Court against sentence – residual discretion - matter decided subsequent to referral to full court – sentence not manifestly inadequate – lenient sentence – sentencing Rubicon of manifest inadequacy not crossed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 116(3) Crimes (Sentencing) Act 2005 (ACT) ss 7, 17, 33(1) 34B Drug of Dependence Act 1989 (ACT) s 169 Family Violence Act 2016 (ACT) ss 43, 46 Magistrates Court Act 1930 (ACT) pt 3.10, ss 219B(1)(f), 219D(e), 219F Crimes Legislation Amendment Bill 2021 (ACT) Crimes (Restorative Justice) Act 2004 (ACT) s 6 Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 19 Supreme Court Act 1933 (ACT) s 13(3) |
Cases Cited: | Amaca Pty Ltd v Werfel [2020] SASCFC 125; 138 SASR 295 AMZ v R [2013] NSWCCA 6 Balthazaar v The Queen [2012] ACTCA 26 Barrett v The Queen [2016] ACTCA 38 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Chapman v Cottle [2022] ACTSC 330 CMB v Attorney-General(NSW) [2015] HCA 9; 256 CLR 346 Croatto v Banks [2015] ACTSC 398 Dalton v The Queen [2015] ACTCA 48; 19 ACTLR 264 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 DL v The Queen [2018] HCA 26; 266 CLR 1 Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 DPP v Ivanisevic (No 2) [2023] ACTSC 374 Everett v The Queen [1994] HCA 49; 181 CLR 295 Fall v Vuolo [2022] ACTSC 249 Firth v The Queen [2018] NSWCCA 144 Forster-Jones v The Queen [2020] ACTCA 31 Gordon v Reddin [2013] ACTSC 87 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Griffiths v The Queen [1977] HCA 44; 137 CLR 293 Hall v CL [2015] ACTSC 286 Harlovich v Sebbens [2022] ACTSC 331 Harlovich v Sebbens [2023] ACTSCFC 3; 20 ACTLR 237 Harlovich v Sebbens [2024] ACTSC 153 Kaye v Siddiq [2013] ACTSC 62 Kirby v Ali [2021] ACTSC 95 Knight v Birch (1992) 106 ACTR 27; 106 FLR 109 LM v Childrens Court of the ACT [2014] ACTSC 26 Minister for Immigration and Ethic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Munda v Western Australia [2013] HCA 38; 249 CLR 609 Murray v IA [2020] ACTSC 228 NH v Dixon [2022] ACTSC 218 Pettitt v Dunkley [1971] 1 NSWLR 376 Proud v Sladic [2014] ACTCA 26; 67 MVR 485 R v Ang [2014] ACTCA 17 R v Baxendale [2018] ACTSC 260 R v BC (No 4) [2020] ACTSC 119 R v Deng [2007] NSWCCA 216 R v Dunn [2004] NSWCCA 41 R v Edigarov [2001] NSWCCA 436 R v Elliott [2022] ACTSC 211 R v Glen (Court of Criminal Appeal, 19 December 1994, unreported) R v HC [2018] ACTSC 49 R v Hersi [2010] NSWCCA 57 R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 R v Keyte [2000] SASC 382; 78 SASR 68 R v Lee [2017] ACTCA 30 R v Miller [2019] ACTCA 25; 279 A Crim R 232 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Rappel [2019] ACTCA 11 R v RMW [2016] NSWCCA 211 R v Scott [2005] NSWCCA 152 R v Smith (No 2) [2022] ACTSC 246 R v UG [2020] ACTCA 8; 281 A Crim R 273 R v Verdins & Ors [2007] VSCA 102; 16 VR 269 Shaw v The Queen [2008] NSWCCA 58 |
Texts Cited: | Explanatory Statement to the Crimes Legislation Amendment Bill 2021 |
Parties: | Naomi Chapman ( Appellant) Damien Cottle ( Respondent) |
Representation: | Counsel A Williamson ( Appellant) J Nottle ( Respondent) |
| Solicitors ACT Director of Public Prosecutions ( Appellant) SCB Legal ( Respondent) | |
File Number: | SCA 11 of 2022 |
Decision Under Appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Stewart Date of Decision: 5 April 2022 Case Title: Chapman v Cottle Court File Numbers: 215835, 218284, 219604, 220904 |
LOUKAS-KARLSSON J:
Introduction
1․This case has quite a lengthy history and has taken quite some time to be dealt with to finality. As I stated, in the related case of Harlovich v Sebbens [2024] ACTSC 153 (Harlovich v Sebbens SC), this was in large part due to the diametrically opposed positions adopted by prosecutors from the Director of Public Prosecutions (DPP), concerning the application of the residual discretion on a prosecution sentence appeal from the Magistrates Court. This eventuated from two separate prosecution sentence appeals argued before me; the first in August 2022 and the second in October 2022. As a consequence, both matters were referred by me, at the same time, to the Full Court to consider the issue of whether the Court retains a residual discretion not to intervene in a prosecution sentence appeal from the Magistrates Court; see Court of Appeal decision Harlovich v Sebbens [2023] ACTSCFC 3; 20 ACTLR 237 (Harlovich v Sebbens [2023] FC). I will refer to the Court of Appeal decision in greater detail later in this decision. I correspondingly expounded upon that topic in the related case of Harlovich v Sebbens SC.
2․This case is a prosecution appeal against a sentence imposed by Magistrate Stewart (the Magistrate) on 5 April 2022.
3․Formally the appellant is the informant. The appellant will be referred to as the prosecution as a matter of clarity and convenience.
4․The respondent pleaded guilty to the following charges:
(a)Common assault, contrary to s 26 Crimes Act 1900 (ACT) (Crimes Act) (CC2020/12887). The maximum penalty for this offence is 2 years imprisonment.
(b)Minor property damage, contrary to s 116(3) Crimes Act (CC2020/12888). The maximum penalty for this offence is 50 penalty units and 2 years imprisonment.
(c)Contravene family violence order, contrary to s 43 Family Violence Act 2016 (ACT) (Family Violence Act) (CC2020/12889). The maximum penalty for this offence is 500 penalty units and 5 years imprisonment.
(d)Level 4 PCA, contrary to s 19 Road Transport (Alcohol and Drugs) Act 1977 (ACT) (RTAD Act) (CC2021/3074). The maximum penalty for this offence is 20 penalty units and 12 months imprisonment, with an automatic licence disqualification of 5 years and a minimum of 12 months.
(e)Possess drug of dependence, contrary to s 169 Drug of Dependence Act 1989 (ACT) (Drug of Dependence Act) (CC2021/5743). The maximum penalty for this offence is 50 penalty units and 2 years imprisonment.
(f)Contravene family violence order, contrary to s 43 Family Violence Act (CC2021/8263). The maximum penalty for this offence is 500 penalty units and 5 years imprisonment.
5․The sentence imposed in relation to each charge was a non-conviction order, pursuant to s 17 Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), with an attached good behaviour order for a period of 24 months with the following conditions:
(a)To be on probation subject to the supervision of the Director-General and to obey all reasonable directions of the Director-General for a period of 12 months;
(b)To report to the Corrective Services court intake officer forthwith;
(c)To attend such education, vocation, psychological, psychiatric or other assessments, programs or counselling as directed;
(d)To supply samples of breath, blood or urine for alcohol or drug testing if required by the Director-General;
(e)To undertake any rehabilitation program condition as directed; and
(f)To be brought before Magistrate Stewart if possible if any breach action is to be taken.
6․The prosecution appeals from the whole of the order.
Grounds of Appeal
7․By way of an amended Notice of Appeal, the prosecution sought to appeal against the sentences imposed on the respondent on the following grounds:
(a)The Magistrate erred in failing to consider s 34B of the Sentencing Act.
(b)The Magistrate erred in failing to consider the objective seriousness of the offence.
(c)The Magistrate erred in failing to consider the purposes of sentencing outlined in section 7 of the Sentencing Act.
(d)The Magistrate erred in failing to give adequate reasons as to the decision not to record a conviction on each offence.
(e)The sentence imposed is otherwise manifestly inadequate.
8․The prosecution submitted that the specific errors identified in grounds (a)-(d), either individually or in combination, were operative and led to the Magistrate imposing a manifestly inadequate sentence.
Summary of Offending
9․The respondent was sentenced by the Magistrate for four separate “series” of offences. The prosecution submissions summarised the offending as follows.
Common Assault, Destroy/Damage Property Not Exceeding $5,000, and Contravene Family Violence Order[1]
[1] CC2020/12887, CC2020/12888 and CC2020/12889
10․On 2 November 2020 the respondent was served with an NSW Apprehended Violence Order naming the victim as the protected person. This included conditions not to assault or intimidate the protected person, not to damage her property, and not to be in her company for at least 12 hours after drinking alcohol or taking drugs.
11․That evening the respondent was home with the victim, the victim’s mother and the victim’s two children aged five and one. The respondent was intoxicated and began questioning the victim about the order. The respondent then began to yell at the victim’s mother.
12․The victim picked up her mobile and called police. The respondent then grabbed the victim by her left shoulder and pulled her backwards towards him. The respondent then grabbed the victim’s mobile phone, placed it on the ground and stomped on it. He then removed the protective case and threw it at the wall.
Drive Motor Vehicle with Alcohol in Blood/Breath[2]
[2] CC2021/3074
13․On 20 March 2021 police attended the 7-Eleven service station in Casey, ACT and located the respondent passed out at the wheel of his vehicle. Upon speaking to the respondent, police formed the view he was well under the influence of intoxicating liquor. The respondent stated he had driven to Casey from Woden and had consumed an unknown amount of whiskey and beer. A later breath analysis revealed 0.160g of alcohol in his breath. He was at that time on bail not to consume alcohol.
Possession of a drug of dependence, being Methylamphetamine[3]
[3] CC2021/5743
14․On 28 May 2021 police attended Langtrees VIP Lounge in Mitchell, ACT and were advised that the respondent had become aggressive with staff and other patrons and was refusing to leave. Police observed the respondent to be significantly affected by alcohol. He was on bail conditions not to drink alcohol. During his arrest, police located a clip seal bag on his person containing methylamphetamine.
Contravene Family Violence Order[4]
[4] CC2021/8263
15․On 7 August 2021 the victim gave the respondent permission to attend her address as he had agreed to look after their daughter. That evening a verbal argument commenced. The respondent yelled at the victim and slammed the baby gate causing it to break (it was fixed shortly after). The respondent then continued to yell and argue with the victim, causing her to flee the residence as she did not feel safe. The respondent was intoxicated at the time.
History of proceedings; Timeline
16․As discussed above, the respondent committed the first series of offences (CC2020/12887, CC2020/12888 and CC2020/12889) on 2 November 2020. He was granted bail the following day.
17․The respondent entered pleas of guilty to those offences on 16 February 2021, and the matter was listed for sentence on 13 April 2021.
18․On 20 March 2021, the respondent committed the fresh offences of driving a motor vehicle with alcohol in blood/breath (CC2021/3074). He was arrested, and on 28 March 2021 was granted bail.
19․On 13 April 2021 the respondent entered a plea of guilty to CC2021/3074, however the sentence proceeding was adjourned so that the matter could be referred to restorative justice and so that a mandatory CADAS report could be prepared.
20․On 28 May 2021, the respondent committed the fresh offence of possession of a drug of dependence, being methylamphetamine (CC2021/5743). He was arrested and granted bail the same day.
21․On 4 June 2021 the respondent sought an adjournment of the sentence proceedings so that the restorative justice process could be finalised.
22․On 5 August 2021 the matter came before the Magistrate. The respondent entered a plea of guilty to CC2021/5743. The defendant then sought a further adjournment of the sentence as the restorative justice process remained ongoing. The adjournment was granted, but the Magistrate placed the respondent on either a Deferred Sentence Order, or a ‘Griffith remand.’[5] The Magistrate emphasised at that time that a sentence of imprisonment was a possibility.
[5] The prosecution submissions state that a transcript of these proceedings had not been obtained and it is unclear whether the Magistrate complied with the requirements of a DSO under s 27 and Chapter 8 of the CSA.
23․On 7 August 2021 the respondent committed the fresh offence of contravention of a family violence order (CC2021/8263). He was arrested and refused bail.
24․On 31 August 2021 the respondent was granted bail. At this time, he entered a plea of guilty to CC2021/8263.
Summary of proceedings in the Magistrates Court
25․The sentence hearing proceeded on 5 April 2022. Oral submissions were made, and the Magistrate gave ex tempore reasons, that is, off the cuff, as is the usual course in the Magistrates Court.
26․The Magistrate had before him a significant volume of documents including the following:
(a)Pre-sentence report (PSR) dated April 2021. I note that the PSR refers to the respondent’s daughter, who was then aged 18 months, having short bowel syndrome and was therefore connected to a medical apparatus for 20 hours per day. The child requires 24 hour per day care.
(b)A victim impact statement which, I note, included the following:
I would just like to finish by saying that the incident that occurred between us was very minor and more or less an argument that erupted due to our very stressful lives and our inability to communicate properly. [The respondent] has replaced my phone and we have since made a full reconciliation and look forward to moving on from this.
(c)Restorative justice compliance report dated 25 January 2022 that, I note, included the following:
[The respondent’s] counsellor at Catholic Care confirmed that [the respondent] has fully engaged with his counselling at this service and will continue to attend counselling following completion of his restorative justice agreement.
(d)Catholic Care Reaching out Drug and Alcohol Counselling reports including one dated 10 March 2022 which relevantly, I note, included the following:
[The respondent] rarely misses counselling appointments unless there is something … happening with his daughter. [The respondent] appears to be a doting father and will always mention that he just wants the best for her. [The respondent] is engaging within sessions, has always demonstrated respect and motivation and will take on suggestions when offered.
(e)Letter of support from the victim prepared for the sentencing proceedings on 5 April 2022, which I note, including the following:
[The respondent] and I have made a total reconciliation and are happily together. I would like [the respondent] to be able to return to our home… and I'm happy for him to do so if he wishes. I will need his support and help as we are expecting another child in October and I have struggled without him here. With our [daughter’s] high medical needs I will need his help even more than before around the home with tending to her needs as well as a new baby.
[The respondent] and I completed the restorative justice program and found it very beneficial to the reconstruction of our relationship. We plan to continue couples counselling. I have seen an immense change in the respondent's mental health and his ability to handle his emotions since he has stopped drinking and has seen his psychologist and counsellor. I know he feels good within himself too as he has told me which I couldn't be happier about…
I fully support the respondent in every way during these court proceedings and just want our family back together again without this hanging over our heads.
(emphasis added by this Court)
(f)Extensive medical records relating to the child of the respondent and victim.
27․The Magistrate heard submissions referring to the respondent’s daughter’s health difficulties and the respondent having had a difficult childhood which involved an alcoholic mother, several genuine suicide attempts and the loss of a number of peers to suicide. Material in evidence before the Magistrate indicated that the respondent commenced drinking alcohol at a young age and has had significant mental health problems throughout his life.
28․The Magistrate in his reasons, referred to the respondent’s significant issues including the importance of the respondent resolving his issues with alcohol and the importance of the respondent parenting his child with “extraordinarily high needs”
The issue of [the respondent’s] ongoing presence in Australia is one that would, no doubt, trouble him and his family. But to my way of thinking, it should not interfere with the sentence such that it alters the result or causes a sentence to be falsely fashioned in an attempt to avoid deportation. The main focus of this sentence should be, in my view, and will be focused on [the respondent’s] daughter and the purpose of this sentence is to allow him one final chance to make good his behaviour, resolve his issues with alcohol which clearly, amongst other things, are the genesis of his criminal offending, and get on with parenting a child with extraordinarily high needs.
(emphasis added by this Court)
29․The Magistrate further noted that the respondent was the primary source of income for his family.
30․The Magistrate ultimately held:
I think that the personal circumstances of [the respondent], his own history, which does give a thorough explanation for his addiction to alcohol and his mental health state, and the very, very serious medical plight of his daughter gives rise for an unusual and exceptional outcome.
(emphasis added by this Court)
31․As stated earlier at [5], the sentence imposed in relation to each charge was a non-conviction order, pursuant to s 17 Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), with an attached good behaviour order for a period of 24 months.
32․I agree the sentencing result in the Magistrates Court was unusual and exceptional. It was undoubtedly a lenient sentence. Leniency of itself, however is not manifest inadequacy of sentence. That, I emphasise, is a different question.
Jurisdiction
33․As I highlighted in Harlovich v Sebbens SC, this Court’s jurisdiction to hear appeals from the Magistrates Court arises from Pt 3.10 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). Section 219B(1)(f) provides for appeals from a sentence imposed by the Magistrates Court. Under s 219D(e), this may be on the ground that “the sentence or penalty was manifestly inadequate or otherwise in error.”
34․Further, it is well established that the “limiting purpose” of a prosecution sentence appeal is to lay down principles for the governing and guidance of courts with the duty of sentencing convicted persons: CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 (CMB) at [55]; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green) at [1]. See also Everett v The Queen [1994] HCA 49; 181 CLR 295 (Everett) at 300, and Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at 310. See also Harlovich v Sebbens SC at [22].
35․Where error is established, the power to intervene is enlivened. Section 219F of the Magistrates Court Act relevantly provides:
219F Powers of Supreme Court
(1)On a review appeal, the Supreme Court may, after considering the evidence before the Magistrates Court and any further evidence called by leave of the Supreme Court—
(a)dismiss the appeal if satisfied that the decision of the Magistrates Court should be confirmed; or
(b)set aside or quash, in whole or part, or otherwise vary or amend, the decision of the Magistrates Court.
(2)If, under subsection (1) (b), the Supreme Court sets aside, quashes or otherwise varies or amends a decision of the Magistrates Court, the Supreme Court may—
…
(c) for a decision mentioned in section 219B (1) (f)—
(i) impose the sentence or penalty the Supreme Court considers appropriate;
(ii) by order, exercise any power that the Magistrates Court might have exercised; or
…
(5) The Supreme Court may, despite the ground or any of the grounds for review mentioned in section 219D being established, dismiss the appeal if the court considers that no substantial miscarriage of justice has happened.
(emphasis added by this Court)
Residual Discretion: Summary of Law
36․As I underlined in Harlovich v Sebbens SC, the High Court has consistently made it clear that when dealing with a prosecution appeal on sentence, the residual discretion refers to the discretion of an appellate court to dismiss an appeal. This residual discretion exists despite the fact that the prosecution has established error concerning the sentence imposed at first instance: Green at [1] and [24] (French CJ, Crennan and Kiefel JJ); CMB at [54] (Kiefel, Bell and Keane JJ).
37․In August 2022 the prosecutor in Harlovich v Sebbens, properly submitted that the residual discretion applied in prosecution sentence appeals from the Magistrates Court to the Supreme Court. Subsequently, some two months later in October 2022, another prosecutor from the DPP in this case before me submitted that the residual discretion did not apply in prosecution sentence appeals from the Magistrates Court to the Supreme Court.
38․In December 2022, as a result of the prosecution adopting diametrically opposed positions on an important matter of law before me, it was therefore, in my view, incumbent upon me to refer both cases; I referred both matters to the Full Court to answer the question of law concerning a sentence appeal from the Magistrates Court and the existence or otherwise of the residual discretion not to intervene (Harlovich v Sebbens [2022] ACTSC 331; Chapman v Cottle [2022] ACTSC 330 (Chapman v Cottle)). See also Harlovich v Sebbens SC at [26].
39․As a result of the referral of the two cases, the Full Court in Harlovich v Sebbens [2023] FC at [2] confirmed that even where error is established in the original sentence imposed, an appellate court may, exercising the residual discretion, decline to allow a prosecution appeal and resentence an offender including where:
i.The prosecution contributed to the error in the court below, such as where the prosecution resiles on appeal from a concession made at first instance (including where the prosecution consented to a non-custodial outcome at first instance, yet submits on appeal that a sentence of imprisonment should have been imposed), or where the prosecution otherwise changes its case on appeal, or where the prosecution did not assist the court below in avoiding error;
ii.The allowing of a prosecution appeal would occasion an unfair additional burden upon the offender, such as where the allowing of the prosecution appeal would undermine an offender’s progress towards rehabilitation, or where the offender has been released (either unconditionally or on parole), or such release is imminent;
iii.There has been a delay in the commencement, hearing or determination of the prosecution appeal; and
iv.The prosecution’s selective invocation of appellate jurisdiction could cause disparity between co-offenders.
See Green at [43]-[44]; Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [72]; R v Ralston [2020] ACTCA 47; (2020) 285 A Crim R 159 at [80].
(emphasis added by this Court)
40․Again, as I underlined in Harlovich v Sebbens SC at [28] the “limiting purpose” referred to by the High Court in CMB provides a framework within which to assess the significance of factors relevant to the exercise of the residual discretion.
41․It was emphasised in Harlovich v Sebbens [2023] FC at [4] that the residual discretion is concerned with the avoidance of unfairness or injustice. It follows therefore, that the factors that are relevant to the exercise of the residual discretion are not confined. The relevant factors are not limited:
The exercise of the residual discretion is concerned with issues of fairness and justice, both to the individual offender and with respect to the administration of justice more generally: Green at [43]; R v JW [2010] NSWCCA 49; 77 NSWLR 7 at [92]; DK v Director of Public Prosecutions (NSW) [2021] NSWCA 134; 105 NSWLR 66 at [38]. As Street CJ held in R v Holder [1983] 3 NSWLR 245; 13 A Crim R 375 at 255, the residual discretion “enables the court to keep an ultimate control by protecting a convicted person against unfairness or injustice if that would flow from an adverse appellate decision”. For this reason, the considerations which are relevant to the exercise of the residual discretion are not confined to those outlined at 2 above: Ralston at [80]; JW at [85].
(emphasis added by this Court)
42․As to the question of onus; the onus is on the prosecution to satisfy the appellate Court that the residual discretion on a prosecution appeal should not be exercised in favour of the respondent: CMB at [66].
Referral to the Full Court and Delay
43․I will now set out in some detail the timeline concerning the referral of this case to the Full Court just as I outlined in Harlovich v Sebbens SC. The necessity for this is that the delay is inexorably intertwined with the delay in Harlovich v Sebbens and is relevant to the exercise of the residual discretion in this case before me.
44․I have come to the conclusion in this case that even were I satisfied that the sentence for the offences was manifestly inadequate, I would exercise the residual discretion not to intervene as discussed below at [136] to [141].
45․Relevant to the exercise of the residual discretion is the lengthy history of the related appeals that I discuss below.
46․This matter proceeded to hearing before me in October 2022. I subsequently listed this matter urgently in December 2022, to hear from the parties as to whether this matter should be referred alongside another matter (Harlovich v Sebbens) to the Full Court - to consider the issue of whether the residual discretion not to intervene on a prosecution appeal from a sentence imposed in the Magistrates Court subsists.
47․In the original appeal hearing in this matter, counsel for the prosecution submitted that the residual discretion had been excluded by s 219F(5) of the Magistrates Court Act. For this submission, reliance was placed on the decisions in Kirby v Ali [2021] ACTSC 95 (Kirby v Ali) and Fall v Vuolo [2022] ACTSC 249 (Vuolo). Counsel for the prosecution further submitted that when considering a prosecution appeal against sentence where a court was satisfied that there was an error, the Supreme Court would be required to allow an appeal and re-sentence an offender unless satisfied that “no difference [in] sentence was warranted.” The critical submission of the DPP was that the residual discretion did not apply in such appeals.
48․The prosecution sought the referral in this case and the respondent in this case properly consented to the referral given the importance of the issue of the application of the residual discretion.
49․Thus, regrettably, there was direct and clear inconsistency in the approach taken by the prosecution in the two proceedings, that is, that in this case it was submitted by the prosecution that the residual discretion did not apply. Conversely, in Harlovich v Sebbens the prosecution submitted that the residual discretion remained relevant. Therefore, on 1 December 2022, with the consent of all parties, I referred the following questions to the Full Court pursuant to s 13(3) of the Supreme Court Act 1933 (ACT):
(i) In an appeal to the Supreme Court brought by the prosecution from a sentence imposed in the Magistrates Court, is there a residual discretion not to intervene?
(ii) If there is a residual discretion, to what extent, if at all, is it affected by s 219F(5) of the Magistrates Court Act 1930 (ACT)?
See Chapman v Cottle [2022] ACTSC 330 at [41]; Harlovich v Sebbens [2022] ACTSC 331 at [11].
50․Subsequently, the following year on 27 October 2023, Baker, McWilliam and Abraham JJ delivered the full court’s judgment in Harlovich v Sebbens [2023] FC. The reasons of the full court are summarised below in inevitably broadly similar terms as set out in Harlovich v Sebbens.
51․As stated in Harlovich v Sebbens [2023] FC, until recently it was well accepted for many years that the residual discretion applied to prosecution appeals against sentences from the Magistrates Court: see Knight v Birch (1992) 106 ACTR 27; 106 FLR 109 at 115; Kaye v Siddiq [2013] ACTSC 62 at [35] - [38]; Gordon v Reddin [2013] ACTSC 87 at [13]; Hall v CL [2015] ACTSC 286 at [129]; Croatto v Banks [2015] ACTSC 398 at [19]. Nevertheless despite this lineage of authority, in Kirby v Ali Robinson AJ expressed doubt about the application of the residual discretion. Despite the fact that both the prosecution and the respondent in Kirby v Ali accepted that the residual discretion applied to the appeal, his Honour stated that he was “not convinced” that the relevant Division of the Magistrates Court Act “adopts this body of law”: Kirby v Ali at [3]-[4]. His Honour went on to describe it as a “a gloss to the statutory criterion”: see [57] – [60]. I interpolate to note that the common law is not invariably or universally a ‘gloss’ on statute.
52․The full court held that Kirby v Ali was wrongly decided.
The first question: In an appeal to the Supreme Court brought by the prosecution from a sentence imposed in the Magistrates Court, is there a residual discretion not to intervene?
53․In relation to the first question I referred to the Court, the Court held that there is a residual discretion not to intervene in an appeal to the Supreme Court brought by the prosecution from a sentence imposed in the Magistrates Court. The Full Court stated at [73] – [74]:
[73]For the reasons outlined above, residual discretion principles are concerned with the protection of a convicted person against the unfairness or injustice that may arise from allowing a prosecution appeal against sentence. These principles will be read into a generally worded statute that confers such a right of appeal unless displaced by clear and unmistakeable language.
[74]Accordingly, the question to be asked is not whether the Magistrates Court Act indicates a textual intention to positively “adopt” the residual discretion; cf Kirby v Ali at [4]. Rather, the proper question to be asked is whether, in conferring jurisdiction on the Supreme Court to hear a prosecution appeal against sentence, the legislature clearly indicated an intention to oust the exercise of the residual discretion.
(emphasis added by this Court)
54․Additionally, the Court held there was no support, or historical basis, for the proposition that the legislation intended to oust the residual discretion in respect of prosecution appeals against sentences imposed in the Magistrates Court, and that there is no textual or purposive reason to conclude that the legislature intended the court to ignore the considerations of fairness and justice which perforce underlie the residual discretion: see [75]. In other words, there was no reason to conclude that the legislature intended for this Court to disregard fairness and justice.
The second question: Whether the content of the residual discretion is affected by s 219F(5) of the Magistrates Court Act
55․Relevantly, I stated the following in Harlovich v Sebbens SC.
[44]The Court did not accept the Director’s submission that the inclusion of s 219F(5) restricts the operation of the residual discretion.
[45]The Court further stated the following in relation to the principle of legality at [86]:
The principle of legality applies not only to the abolition of common law rights, but also to their limitation. The principle of legality “requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law”: Momcilovic at [43] (emphasis added). Issues such as the onus of proof and the relevance of temporality (that is, whether events occurring after the imposition of the sentence at first instance can be taken into account) have the capacity to significantly circumscribe the operation of the residual discretion. Clear language is required before a construction is adopted that could have the effect of curtailing the court’s discretion to dismiss a prosecution appeal for reasons of fairness.
[46]The Court further held that the creation of a separate discretion to refuse relief in s 219F(1) is clear from the use of the word “may” and further confirmed by the provision in s 219F(1) for an appeal to be dismissed if the Supreme Court is “satisfied” that the decision of the Magistrates Court should be confirmed. It was further held that the matters that may “satisfy” the Supreme Court that a decision of the Magistrates Court should be confirmed are not defined or limited. The Court further there is no textual basis to infer that the discretion in s219F(5) is intended to limit the broad discretion conferred by s219F(1): see Harlovich v Sebbens [2023] FC at [87] – [88].
[47]Thus, the law continues to be that the prosecution faces two hurdles. First, the prosecution must establish manifest inadequacy. Secondly, the prosecution must negate why the residual discretion not to intervene should not be exercised.
(emphasis added by this Court)
56․The Court, through my associates, made enquiries in January 2024 concerning whether further submissions or evidence were to be filed post the Full Court decision. Counsel for the prosecution and Counsel for the offender responded that they did not propose to put on any further evidence nor make any further submissions.
Was the Sentence Imposed in this case before me Manifestly Inadequate?
57․At the outset, I note the well-established principles concerning prosecution appeals alleging manifest inadequacy. The principles have been usefully summarised in R v Nicholas; R v Palmer [2019] ACTCA 36 at [66]-[68]; and Dalton v The Queen [2015] ACTCA 48; 19 ACTLR 264 at [18]. See also R v Rappel [2019] ACTCA 11 at [10]; R v Lee [2017] ACTCA 30 at [53]; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale) at [6]; and Barrett v The Queen [2016] ACTCA 38 at [34].
58․Importantly, manifest excess or manifest inadequacy in relation to a sentence being considered on appeal, is a conclusion that does not depend upon specific error. Critically, the reason for this is that the relevant legal test is whether the sentence is unreasonable or plainly unjust. A sentence which is manifestly excessive or manifestly inadequate is a sentence therefore which is erroneous in point of principle, as being unreasonable or plainly unjust.
59․Foremost, concerning the nature of a judicial officer’s sentencing discretion, the following must be underlined as I emphasised in Harlovich v Sebbens SC. In considering whether a sentence is unreasonable or plainly unjust, the Court must do so while acknowledging that there is no one correct sentence. It must not be forgotten, as I underlined in Harlovich v Sebbens SC, that the process of sentencing allows for differences of judicial opinion at first instance. These differences, perforce may exist, while at the same time nevertheless, a sentencing Judge is acting in accordance with principle.
60․Simply put: it is not enough, in the endeavour to establish that a sentence is manifestly inadequate or manifestly excessive, that the appeal court would have imposed a different sentence. That, without more, is not the test and cannot be the test. This is because ultimately the relevant legal test is about manifest inadequacy not leniency within principle.
Approach to ex tempore reasons
61․The respondent correctly submitted that three important considerations arise from the fact that the decision being appealed is an ex tempore decision given orally immediately following oral submissions made by the parties.
62․First, the decision under challenge was ex tempore and should be understood having regard to the realities of the work of the Magistrates Court and the pressures under which Magistrates operate. Consequently, I interpolate to note that regard must be had to the substance of the reasons, not mere form.
63․Secondly, the “fine appellate tooth-comb” should not be deployed too swiftly: see Proud v Sladic [2014] ACTCA 26; 67 MVR 485 (Proud v Sladic) at [30]. The Court of Appeal, in Proud v Sladic, referred to the salient caution issued by Kirby J in Minister for Immigration and Ethic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 291:
The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 286-287.
(emphasis added by this Court)
64․Thirdly, I underline, as was properly emphasised by the respondent, the Magistrate’s reasons were self-evidently addressed to the respondent and not addressed to an appeal court. In my view, it is important that offenders who are being sentenced can understand what a judge has to say to them about how they are to be sentenced and on what basis. For that reason, it is best, if the language used is not too technical or abstruse.
Submissions
65․There are five grounds of appeal which the prosecution relied on to support the submission that the sentence imposed by the Magistrate was manifestly inadequate.
Ground 1 – His Honour erred in failing to consider s 34B of the Sentencing Act
66․Section 34B of the Sentencing Act states:
34B Sentencing—family violence offences
(1)In deciding how an offender should be sentenced for a family violence offence, a court must consider the nature of family violence and the context of the offending, including the following:
(a)the matters mentioned in the preamble to the Family Violence Act 2016;
(b)whether the offending occurred at the home of the victim, offender or another person;
(c)whether the offending occurred when a child was present;
(d)if the offence is a serious family violence offence—whether the offender has 1 or more other convictions for serious family violence offences.
(2)A court must not reduce the severity of a sentence it would otherwise have imposed because—
(a)the offence is a family violence offence; or
(b)a family violence order under the Family Violence Act 2016 or a protection order under the Domestic Violence and Protection Orders Act 2008 (repealed) is in force against the offender in relation to the family violence offence.
(3)In this section:
family violence—see the Family Violence Act 2016, dictionary.
serious family violence offence means a family violence offence that is punishable by imprisonment for 5 years or more.
67․Section 34B was inserted by the Crimes Legislation Amendment Bill 2021 (ACT). The purpose of the amendment was to ensure that family violence is a matter which the courts must consider in the sentencing process and the amendments “serve to remind the Court of the legislature’s commitment and intent for family violence matters to be treated as serious matters with complex dynamics that are not present in other types of offending”: see Explanatory Statement to the Crimes Legislation Amendment Bill 2021.
68․The prosecution submitted that in the present matter, the family violence offences were committed in the victim’s home, and in the presence of a child. The prosecution noted that the Explanatory Statement to the Bill notes that a home is specifically referenced in s 34B “because it is usually a private setting, where there are less likely to be witnesses, and therefore a situation of increased vulnerability.”
69․The section was considered by me in R v Smith (No 2) [2022] ACTSC 246 at [99] – [108] where I observed at [103] that the explanatory statement makes clear that the new section was not intended to reduce a judicial officer’s discretion when considering sentencing factors, but to ensure that judicial officers consider additional factors. Relevantly, I further stated in DPP v Ivanisevic (No 2) [2023] ACTSC 374 the following:
I adopt what I had to say there. It is clear from the discussion in Smith that the applicability of s 34B is something of a moot point. Courts have recognised in recent times the same matters that are set out in s 34B. In my view, the legislation is a recognition of the development of the common law in this important area of family violence. I take into account the common law that has developed in this area which I note is consistent with s 34B of the Sentencing Act.
(emphasis added by this Court)
70․The prosecution submitted that, in the Magistrate’s reasons, the Magistrate made no reference to s 34B, despite it being drawn to his attention by the prosecution. The prosecution submitted there were “only” two references to the offending being in the family violence context, as follows.
(a)His Honour commented that the defence submission seeking a non-conviction order on all offences was ‘ambitious’ in any circumstance, “let alone in circumstances of family violence…”[6]
[6] T” p12, line 45-46
(b)His Honour (in speaking to the defendant after imposing sentence) commented that “it is extraordinary for someone to receive a non-conviction order on a family violence charge where there is actual force used…”[7]
[7] T: p15, line 3-4
71․I interpolate to underline that the Magistrate in question is a very experienced Magistrate in the criminal law. The submission that family violence was “only” mentioned twice, is a submission, that to my mind, there is great difficulty in attributing any significant weight.
72․I underline that it is uncontroversial that a failure to consider a relevant matter on sentence may amount to a specific error (Bugmy v The Queen (2013) 302 ALR 192; R v Ang [2014] ACTCA 17).
73․The prosecution submitted, in that vein, that where the Magistrate has failed to explicitly reference s 34B of the Sentencing Act, and it is not apparent from a full reading of His Honour’s reasons that it was implicitly considered, error is established.
74․Conversely, the respondent submitted that if there were an error, it was one of form and not substance. I agree with the respondents’ submissions having reviewed the Magistrates reasons in full. That is, keeping in mind, Kirby J’s injunction to consider the reasons fairly and as a whole.
75․The respondent submitted that the Magistrate implicitly applied s 34B of the Sentencing Act. I agree taking into account the entirety of the reasons as a matter of substance and not mere form.
76․The Magistrate properly and correctly referred to the non-conviction order as “ambitious”, “let alone in the circumstances of family violence”.[8] It is important to quote in context what the Magistrate declared directly to the respondent. That is as follows:
[8] T12 45-46
I want to make it clear to you, [the respondent], that this is similar to winning the lottery in terms of outcome in this court. It is extraordinary for someone to receive as non-conviction order on a family violence charge when there is actual force used, and that is what you did to your partner. That sort of violence has ongoing effects. Even though she needs you financially, I am confident there would still be fear inside her because she knows that you are capable of being violent to her. With everything that is going on in your lives, you were still able to do that to her. That is damage that you have got to repair and you have got to make sure that it is never repeated in front of your children so that they don't become family violence offenders.
(emphasis added by this Court)
77․The respondent submitted that these quoted remarks of the Magistrate demonstrate a number of matters including the following:
(a)Firstly, that the Magistrate considered the fact that the offending involved family violence.
(b)Secondly, that the Magistrate implicitly considered the seriousness of family violence.
(c)Thirdly, that the remarks followed immediately after the Magistrate directed that, in the event of a breach, the respondent was to be brought back to appear before the Magistrate. Counsel for the respondent submitted that this direction provided an unambiguous warning to the respondent and supported the submission that the Magistrate regarded the offending as serious.
(d)Fourthly, that the Magistrate considered the ongoing impact on the complainant and the fact that the complainant will continue to show, or live in, fear and the defendant will have to work to fix that relationship. The respondent submitted that it follows that although the Magistrate did not specifically refer to s 34B, the Magistrate complied with the substance of the requirement.
(e)Fifthly, bearing in mind that the remarks were made during ex tempore reasons which were directed to the respondent, that the Magistrate acknowledged the seriousness of family violence offending.
78․The respondent’s ultimate submission was that although the Magistrate did not specifically refer to s 34B, the Magistrate complied with the substance of the requirement.
79․In my view the ultimate submissions of the respondent concerning this ground is made good. While not specifically referring to s 34B, the substance of s 34B was clearly observed by the Magistrate. Further as I stated in R v Smith (No 2) [2022] ACTSC 246, “the explanatory statement makes clear that the new section was not intended to reduce a judicial officer’s discretion when considering sentencing factors, but to ensure they consider additional factors”.
80․For these reasons, I dismiss this ground.
Ground 2 – His Honour erred in failing to assess the objective seriousness
81․The prosecution submitted that it is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed (R v Scott [2005] NSWCCA 152 at [15]).
82․In Forster-Jones v The Queen [2020] ACTCA 31 the Court of Appeal observed at [29] – [30]:
[29]Assessment of the objective gravity of any offence is a fundamental part of determining the appropriate sentence for that offence: see eg R v Cage [2006] NSWCCA 304 at [17], R v Campbell [2014] NSWCCA 102 at [27] and R v Van Ryn [2016] NSWCCA 1 (Van Ryn) at [135].
[30]Not only must sentencing judges make such an assessment, but it must be apparent from their sentencing judgments that that is what they have done: see eg Van Ryn at [141]. A failure to do so will mean that the sentencing process has miscarried. It is not enough to simply recite the facts on which any particular count is based: Van Ryn at [137].
83․The prosecution submitted that in this matter there was not a recitation of the facts, let alone an assessment of the objective seriousness of each offence.
84․In my view this is not a submission that I can attribute significant weight to in light of the extemporaneous nature of the reasons of the Magistrate and the clear appreciation by the Magistrate of the objective seriousness of the offences.
85․The prosecution relied on R v RMW [2016] NSWCCA 211 (R v RMW) at [54] – [57] regarding the assessment of the objective seriousness and aggravating features concerning the offending. The prosecution submitted that, as in R v RMW, in this matter the Magistrate failed to identify the relevant factors, the weight to be given to them, and their role in the structuring of the sentence.
86․In contrast, the respondent submitted that, by necessary implication the Magistrate expressed his view as to the objective seriousness of the offending and sought to express that in plain English as I discussed above at [74] to [76].
87․I expressly underline, in this context, the statement made by the Magistrate directly to the respondent quoted above at [76]. The objective seriousness of the offending was made plain by the Magistrate in accessible and powerful English.
88․For these reasons, I dismiss this ground.
Ground 3 – His Honour erred in failing to consider the purpose of sentencing provided for in s 7 of the Sentencing Act
89․The prosecution submitted that the argument as to ground 3 of the appeal is generally in the same terms as ground 2 of the appeal in that the Magistrate made no reference to the purposes of sentencing in his reasons and that this was therefore a specific error.
90․The prosecution submitted that, in circumstances where the exercise of the discretion under s 17 was squarely in issue, a complete absence of reference to the purposes of sentencing indicates specific error.
91․The prosecution correctly conceded that in considering the Magistrate’s reasons, it is important to keep in mind that the reasons were given ex tempore and the usual comments relating to the assessment of an ex tempore decision are applicable in this case. It is well established that care must be taken “not to scrutinise the extemporaneous reasons given by a Magistrate with an eye keenly attuned to the detection of error”. See: Murray v IA [2020] ACTSC 228 at [34] per Mossop J, LM v Childrens Court of the ACT [2014] ACTSC 26 at [42], R v UG [2020] ACTCA 8; 281 A Crim R 273 at [63] – [64].
92․The respondent submitted that if there were an error, it was one of expression and not principle.
93․The respondent, in my view correctly, submitted that the Magistrate in this case found that the offending was serious but recognised the respondent’s subjective circumstances including his “alcohol addiction and mental health state, and the very serious medical plight of his daughter gives rise for an unusual and exceptional outcome”.
94․In my view, appellate courts should be mindful of not transmogrifying the sentencing task of first instance judges into an even more difficult, complex and arduous process than it already is. Sentencing is hard and most judges do not have the luxury of time. This is particularly so in the Magistrates Court.
95․I underline that an appellate court does not intervene merely because the appellate court would have attributed more or less weight to a sentencing factor. The relevant question comes back to whether the ultimate sentence was manifestly inadequate. That is a different question.
96․Further, in my view, upholding this ground would amount to a triumph of form over substance. In the law, substance must be more important than style.
97․For these reasons, I dismiss this ground.
Ground 4 – His Honour erred in failing to give adequate reasons
98․The prosecution correctly submitted this ground overlaps to a degree with grounds 2 and 3.
99․Further, the prosecution properly accepted that in assessing this complaint, it is important to bear in mind that a Magistrate is not required to refer to every piece of evidence or every submission made in their reasons: see Firth v The Queen [2018] NSWCCA 144 at [61] citing AMZ v R [2013] NSWCCA 6 at [25].
100․However, the prosecution submitted that where an important issue is raised and made the subject of specific submissions, a failure to engage with that submission may constitute error.
101․Additionally, the prosecution submitted that in these circumstances it was incumbent on the Magistrate to provide sufficient reasons for reaching the conclusion of not recording a conviction.
102․The prosecution noted that the Magistrate’s reasons were brief, covering two and a half pages of transcript. The prosecution summarised the reasons as follows:
(a)His Honour commenced with a summary of the charges and procedural history.[9]
[9] T: p12, line 28-38.
(b)His Honour touched on the issue of deportation but expressly disavowed it as a relevant consideration.[10]
[10] T: p13, line 1-4.
(c)His Honour addressed the health of the respondent’s daughter, and the effect of this on the family.[11]
[11] T: p13, line 11-24
(d)His Honour noted the rehabilitative efforts the respondent had made with respect to programs directed at family violence, his history of alcohol use, and his mental health difficulties.
103․The prosecution noted the Magistrate’s reasons relevant to his conclusion as to sentence were as follows:
I think that the personal circumstances of [the respondent], his own history, which does give a thorough explanation for his [addiction] to alcohol and his mental health state, and the very, very serious medical plight of his daughter gives rise for an unusual and exceptional outcome.[12]
[12] T: p14, line 14-18
104․The prosecution submitted that in light of the evidence before the Magistrate and the circumstances of the offences, the Magistrate’s reasons cannot be said to have “sufficiently exposed why the decision was made and be such to allow the parties and any appellate court to ascertain whether the relevant rules of law and principle have been correctly applied”: Firth v The Queen [2018] NSWCCA 144 at [59] citing R v Keyte [2000] SASC 382; 78 SASR 68 at 76; approved in Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 at [14].
105․In response, the respondent also relying on Firth v The Queen [2018] NSWCCA at [61] submitted that the Magistrate was not required to “state that which is tolerably clear by inference”.
106․It is trite to observe that reasons must be adequate to enable a Court to determine whether the decision involves an error of law (Pettitt v Dunkley [1971] 1 NSWLR 376 at 390). The reasons of the Magistrate, in my view, meet that standard.
107․The respondent properly and correctly made a number of submissions in this regard including the following:
(a)The reasons were given ex tempore as I noted earlier at [25].
(b)The reasons were directed at the respondent rather than a Court of Appeal. The importance of this I discussed earlier at [64].
(c)The Magistrate received a substantial body of subjective material. I discussed some of this material earlier at [26]. Having reviewed all of the material myself, I confirm that the exhibits encompassed a substantial body of documentation.
(d)The respondent had participated in restorative justice as I also noted earlier at [26] and discuss further below at [110].
108․In my view, the reasons are adequate to allow this Court to apprehend the Magistrate's reasoning process. For this Court to demand more is to place an even heavier burden on Magistrates for whom the burden of workload is already more than substantial.
109․I highlight at this juncture the hardly startling legal proposition that sentencing remarks need not be overly elaborate to be adequate: see DL v The Queen [2018] HCA 26; 266 CLR 1 at [130], Amaca Pty Ltd v Werfel [2020] SASCFC 125; 138 SASR 295 at [20].
110․Further, the respondent had undertaken restorative justice. This was a matter referred to positively in the Magistrate’s reasons. In this regard I note the relevant and important objects of the restorative justice process as outlined in the Crimes (Restorative Justice) Act 2004 (ACT):
The objects of this Act are as follows:
a)to enhance the rights of victims of offences by providing restorative justice as a way of empowering victims to make decisions about how to repair the harm done by offences;
b)to set up a system of restorative justice that brings together victims, offenders and their personal supporters in a carefully managed, safe environment;
c)to ensure that the interests of victims of offences are given high priority in the administration of restorative justice under this Act;
d)to enable access to restorative justice at every stage of the criminal justice process without substituting for the criminal justice system or changing the normal process of criminal justice;
e)to enable access to restorative justice in relation to offenders and offences not dealt with by the criminal justice process;
f)to enable referral of offences for restorative justice by—
i.agencies that have a role in the criminal justice system; and
ii.entities that have a role in dealing with offenders, and harm caused by offences, not dealt with by the criminal justice process.
(emphasis added by this Court)
111․I underline that the restorative justice process was, on the evidence that was before the Magistrate, clearly of benefit to the victim and the respondent and their relationship. Thus, for this and the above stated reasons, I dismiss this ground.
Ground 5 – the sentence imposed was manifestly inadequate
112․Germane to this ground I note that s 17 of the Sentencing Act provides as follows:
17 Non-conviction orders—general
(1)This section applies if an offender is found guilty of an offence.
(2)Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):
(a)an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;
(b)a good behaviour order under section 13.
Note A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).
(3)In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a)the offender’s character, antecedents, age, health and mental condition;
(b)the seriousness of the offence;
(c)any extenuating circumstances in which the offence was committed.
(4)The court may also consider anything else the court considers relevant.
Note An appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender’s conviction for an offence (see Magistrates Court Act 1930, pt 3.10).
(5)If the court makes a non-conviction order under subsection (2) (a) for the offender, the court must, assoon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to the offender.
Note 1 For notice of a good behaviour order under s (2) (b), see s 103.
Note 2 For a young offender who is under 18 years old, the notice and order must also be given to a parent or person with parental responsibility (see s 133J).
(6)Failure to comply with subsection (5) does not invalidate the non‑conviction order.
(7)If the court makes a non-conviction order under subsection (2) (b), the good behaviour order must be for a term of no longer than 3 years.
(8)This section (other than subsection (7)) is subject to section 13 and chapter 6 (Good behaviour orders).
(emphasis added by this Court)
113․The prosecution submitted that the ordinary consequence of a finding of guilt is the recording of a conviction (Balthazaar v The Queen [2012] ACTCA 26 at [53] and Proud v Sladic [2014] ACTCA 26 a t [42]). That submission is not a matter of controversy.
114․Further, the prosecution submitted that the complaint with respect to manifest inadequacy is particularly focused on the sentences imposed for the family violence offences, being Common Assault, Destroy/Damage Property Not Exceeding $5,000, and two separate offences of Contravene Family Violence Order.[13] I acknowledge that uncontroversial submission.
[13] CC2020/12887, CC2020/12888, CC2020/12889, CC2021/8263.
Section 17(3)(a) – the offender’s character, antecedents, age and mental condition
115․The prosecution submitted that while the respondent was generally of otherwise good character (he had one prior conviction for a high-range drink driving in 2016), in the case of family violence offences the sort of leniency normally attributed to good character may be moderated by the circumstances (relying on NH v Dixon [2022] ACTSC 218 at [29] – [30]).
116․Nevertheless in that regard, I underline that the Court of Appeal in R v UG [2020] ACTCA 8; 281 A Crim R 273 (UG) at [47] did not accept that there is a separate sentencing regime with respect to family violence offences. I underscore at this juncture, that it is of critical importance that the criminal law is based on individualised justice and equality before the law as was underlined in UG as follows:
We disagree with the contention impliedly advanced by the Crown. Absent any statutory provision to the contrary, in a criminal justice system based on individualised justice, there is no place for a separate sentencing regime that applies to offenders who commit “family violence offences” (or any other general category of offences), whether it be a more lenient or a more severe sentencing regime. We note the terms of s 6 of the Sentencing Act (see [80] below), and that s 8 of the Human Rights Act 2004 (ACT) expressly recognises that everyone is equal before the law.
(emphasis added by this Court)
117․Further, the prosecution submitted that no findings were made concerning mental health issues and moral culpability or the weight to be given to specific sentencing principles: R v Verdins & Ors [2007] VSCA 102. Additionally, the prosecution ultimately submitted that the evidence of a long-standing alcohol abuse disorder called for greater weight to be given to specific deterrence and protection of the community.
118․In response, the respondent properly, in my view, submitted that it is apparent from the reasons that the Magistrate took into account the respondent’s limited antecedents, his previous good character and additionally the respondent’s mental condition.
Section 17(3)(b) – the seriousness of the offence
119․The prosecution referred to R v Miller [2019] ACTCA 25; 279 A Crim R 232 at [37], and the uncontroversial statement that “it is a fundamental principle of sentencing that a sentence must be proportional to the objective seriousness of the offence.”
120․The prosecution correctly submitted, in my view, that in this matter, the family violence offences were serious. I agree, on the facts before the Magistrate, that is undoubtedly the case. Further, the prosecution submitted that the first series involved physical violence in combination with a breach of a family violence order and that the latter family violence series occurred in similar circumstances – that is, aggressive behaviour directed towards his partner while under the influence of alcohol. This is indeed a highly concerning and highly relevant aspect of the objective seriousness of the offending.
121․I interpolate to underline that the seriousness of family violence offences is clear to this court as I have noted on many occasions including in DPP v Ivanisevic (No 2) [2023] ACTSC 374, R v Smith (No 2) [2022] ACTSC 246, and R v Baxendale [2018] ACTSC 260.
122․I underline that courts take a dim view of re-offending while on bail or subject to a Deferred Sentencing Order. See: Munda v Western Australia [2013] HCA 38; 249 CLR 609 at [54], R v Elliott [2022] ACTSC 211 at [3], R v Edigarov [2001] NSWCCA 436 at [41], R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 Adams J (IPP JA and Sully J agreeing) at [47], R v HC [2018] ACTSC 49 at [3].
123․Noting the fact of forgiveness on the part of the victim it is apposite to make reference to Shaw v The Queen [2008] NSWCCA 58 at [27], where Fullerton J quoted Simpson J in R v Glen (Court of Criminal Appeal, 19 December 1994, unreported) stating:
It is a fact known to the courts and to the community that victims of domestic violence frequently, and clearly contrary to their own interests and welfare, forgive their attackers. It is said, and has been said so often and for so long as to be almost notorious, that it was this pattern of post offence forgiveness, accompanied by apparent remorse or contrition on the part of the offender, that prevented the prosecution of such offenders. In turn, it appeared that the victim of domestic violence was in a class different to the rest of the community insofar as the protection of the law was concerned. Domestic violence was not seen as a crime which attracted the sanction of the law in the same way or to the same extent as other crimes, whether or not of violence. The perpetrator of domestic violence was relatively safe to commit crimes with impunity, at least provided he or she (and, in the cases that have to date come before the courts, it has almost invariably been he) could attain the victim's forgiveness.
(emphasis added by this Court)
124․Cases of family violence, cannot and do not turn on forgiveness. Family violence is the antithesis of family life. Family life, at its best, should be a place of sanctuary and a place of support not a place of addiction and violence. Criminal offending, by way of family violence, just as all criminal offending, cannot be dealt with by way of forgiveness as such. Forgiveness as such, does not and cannot detract from the objective seriousness of offending.
125․Ultimately, the prosecution submitted that the order of no conviction in this case:
(a)Failed to treat the offending seriously;
(b)Failed to recognise and vindicate the position of the victim;
(c)Failed to adequately punish the offender; and
(d)Failed to acknowledge the need for personal and general deterrence and denunciation to be given meaningful weight in the sentencing process.
126․The respondent correctly conceded that the most disturbing aspect of the respondent’s offending was the repeated nature of the conduct. I agree. This aspect of the respondent’s offending is objectively the most serious aspect of the offending.
127․Additionally, the respondent correctly submitted that there was a strong subjective case for the respondent that included:
(a)The respondent’s daughter’s medical conditions and the respondent’s commitment to the care of his daughter;
(b)The future care requirements for the respondent’s daughter and the unborn child;
(c)The respondent’s difficult childhood and upbringing;
(d)The respondent having spent approximately a month, that is, 29 days in custody;
(e)The respondent’s longstanding alcohol addiction and mental health issues (including suicide attempts);
(f)The respondent’s limited antecedence and otherwise good character;
(g)The respondent’s successful completion of the restorative justice program and participation in counselling beyond that required for the restorative justice program;
(h)The support of the victim;
(i)The respondent’s progress during the course of the deferred sentence order.
128․Counsel for the respondent submitted that the cumulative effect of this strong subjective case, particularly the aspect relating to his daughter’s care requirements, that are clearly on the evidence, highly intensive, meant that non-conviction orders were a sentencing result that was within the range of appropriate sentencing disposition. There is some real force in this submission. Nevertheless, in my view, in sentencing this must be balanced against the objective seriousness of the offending.
Section 17(3)(c) – any extenuating circumstances in which the offence was committed
129․In Proud v Sladic [2014] ACTCA 26 the Court of Appeal held at [38] that “in order to constitute a 17(3)(c) extenuating circumstance, the relevant circumstance must bear a direct relationship to the offence that was committed.”
130․The prosecution submitted that the Magistrate did not undertake a formal consideration of the relevant factors in s 17(3) prior to exercising his discretion under that section. That is indeed correct. Though in this context the ex tempore nature of the sentencing remarks must be underlined.
131․Further, the prosecution submitted, and I agree, that having regard to the Magistrate’s reasons, it can readily be accepted that the medical condition of the respondent’s daughter was determinative in imposing non-conviction orders.
132․It is instructive on this issue to quote, at some length, from the Magistrate’s judgment in this regard:
[The respondent’s] daughter was born with a significant health issue. She is the subject of ongoing surgery and hospital admission…she was born in September 2019 and she was immediately diagnosed with a health condition called short gut syndrome. It resulted in [the respondent’s daughter] spending nearly all of the first 12 months of her life in Intensive Care. There are ongoing requirements for her health and welfare in a crucial sense, and that is that she requires 24 hour a day care, has tremendous difficulty with feeding and other bowel issues. She requires surgery and is to be admitted to hospital later this month for further surgery. The hospital notes make it clear that this is not the first time that [the respondent’s daughter] has had surgery.
… [it is] very clear by way of legislation the welfare of children is something that this court can take into account…
Alcohol has been a feature of [the respondent’s] life since his childhood. His mother was clearly an alcoholic, to the point that his parents separated because of that addiction…
This is a difficult sentencing process. I have come to the conclusion after considering all of the materials that a sentence of imprisonment is not appropriate. I then am faced with the tussle of whether or not convictions should be imposed. I think that the personal circumstances of [the respondent], his own history, which does give a thorough explanation for his addiction to alcohol and his mental health state, and the very, very serious medical plight of his daughter gives rise for an unusual and exceptional outcome.
It is not lost on me that the prosecution submits that the course I am going to take may be appealable and I hope that I have placed sufficient reasons on the record to make it clear why it is that I am going to take the path that I am going to do… he is to attend any educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed, that he is to supply samples of breath, blood or urine for alcohol or drug testing if required, and that he is to undertake any rehabilitation program condition as directed.
… It should be said that if [the respondent] was not in the parenting situation that he is, well, perhaps this offending might not have occurred because there might not have been the stress present in his life that there is, but there would have been very different sentencing outcomes with convictions at a minimum if his daughter's plight was not a matter before this court…
It is clear to me that your problem is alcohol based, as well as depression, and they are two things that you have just got to get hold of. You are now by the end of the year going to be responsible for two little people and that is a big thing to have on your shoulders, so you are going to have to continue to work hard… I know that your battle with your daughter is going to be a long one and a hard one…
(emphasis added by this court)
133․In my view, on the issue of whether the Magistrate considered the medical condition of the respondent’s daughter under s 17(3) or 17(4), to my mind, this made no difference of any real substance whatsoever to the sentencing determination. Indeed, s 17(4) allows for other relevant factors to be considered: see s 33(1)(o) and R v BC (No 4) [2020] ACTSC 119 at [72] to [90]. It is a somewhat barren debate in that regard.
Conclusion to Consideration of Claim of Manifest Inadequacy
134․Not recording a conviction is without question an avowedly lenient sentencing outcome. The question for this court is, however, not merely whether the sentence was particularly lenient. The question for this Court is whether the sentence is manifestly inadequate.
135․Unquestionably, the importance of individual sentencing should be at the forefront of sentencing along with consistency. Nevertheless, in this case a non-conviction order taking into account the seriousness of the offending, has meant that the sentence has sailed perilously close to being not merely lenient, but rather crossing the line into manifestly inadequate. Nevertheless, even were I to hold that the sentencing result had crossed the sentencing Rubicon into manifest inadequacy, this appeal could not be upheld without considering the residual discretion. I consider the residual discretion below.
Residual discretion
136․As discussed earlier, it is well established that the prosecution must negate any reason why the residual discretion not to interfere should be exercised: see CMB; R v Hernando [2002] NSWCCA 489; 136 A Crim R 451. As discussed in this judgment from [51] to [55] Harlovich v Sebbens [2023] FC confirmed the law concerning the application of the residual discretion in Magistrates Court appeals under s 219F of the Magistrates Court Act.
137․I now approach the consideration of the application of the residual discretion on the basis that the sentence has crossed from a high degree of leniency into manifest inadequacy.
138․A court, having found manifest inadequacy, cannot neglect to consider the exercise of the residual discretion to dismiss a prosecution appeal: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]. In determining whether to exercise the residual discretion, an appellant court may consider events that have occurred since the original sentencing: R v Deng [2007] NSWCCA 216 at [28].
139․Further, the onus is on the prosecution to negate any reason why the residual discretion not to intervene to increase the sentence should be exercised: CMB at [33], [66]. For that reason, the conduct of the prosecution at first instance and on appeal is an important consideration. Other factors that an appellate court may consider include the delay in the resolution of the appeal: R v Hersi [2010] NSWCCA 57 at [55]. A court may also consider that the guidance provided to sentencing judges would be limited and the decision would result in injustice: CMB at [69]. Finally, it is well established that the factors that may be considered relevant to the exercise of the residual discretion are not closed. This is because the residual discretion relates to fairness and justice in the individual case.
140․Relevant to the exercise of the residual discretion not to intervene in this case there has been a substantial delay in the determination of this appeal as I have discussed in detail earlier in this judgment from [36] to [56]. Further, in this case, just as there was in the case of Harlovich v Sebbens SC there has been a substantial delay in finalising this matter due to the prosecution taking two diametrically opposed positions concerning residual discretion through two different prosecutors in two different cases before me. Two different positions were advanced in two different cases before this Court by two prosecutors from the very same prosecuting entity. This, in my view, compelled the Court to refer the two questions of law to the Full Court for determination as discussed earlier in this judgment from [37] to [56]. As stated earlier, the first case Harlovich v Sebbens SC commenced before me in August 2022 and this case commenced before me in October 2022.
141․In December 2022 I referred both cases to the Full Court. The Full Court handed down their decision in October 2023. That delay of approximately a year from October 2022 to October 2023 would not have been occasioned but for the prosecution adopting contradictory positions before the Supreme Court in circumstances where the law supporting a residual discretion in an appeal from the Magistrates Court was long standing. In this case the prosecutor contended that the residual discretion did not apply. In my view, it is clear that, were I to conclude that the sentence was manifestly inadequate, it would be proper for this Court to exercise the residual discretion not to intervene in this case. This is on the patently unusual facts of this case encompassing the substantial delay of a year, engendered by the contradictory positions adopted by prosecutors from the very same Director of Public Prosecutions office in two different cases including this case. In my view, the residual discretion not to intervene should be exercised in this case as a matter of fairness and justice.
Orders
142․For these reasons, I make the following orders:
(1)The appeal is dismissed.
(2)Pursuant to s 219F(8) of the Magistrates Court Act 1930 (ACT), the costs of and incidental to the appeal are payable by the appellant within 28 days.
(3)Leave is granted for the appellant to have the matter relisted in relation to the 28-day time limit should that prove necessary.
| I certify that the preceding 142 numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: 31 March 2025 |
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