Collins v R
[2010] NSWCCA 13
•22 February 2010
New South Wales
Court of Criminal Appeal
CITATION: COLLINS, Marcus Shane v R [2010] NSWCCA 13 HEARING DATE(S): 4 February 2010
JUDGMENT DATE:
22 February 2010JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Harrison J at 3 DECISION: 1. Grant leave to appeal against sentence.
2. Allow the appeal.
3. Quash the sentences imposed upon the applicant by his Honour Nield DCJ on 12 September 2008 and in lieu thereof sentence the applicant as follows:
(1) Common assault committed on 15 May 2007 – imprisonment for 6 months from 23 June 2007 to 22 December 2007.
(2) Common assault committed 9, 10 June 2007 – imprisonment for 4 months from 23 December 2007 to 22 April 2008.
(3) Common assault committed 9, 10 June 2007 - imprisonment for 4 months from 23 April 2008 to 22 August 2008.
(4) Malicious damage to property committed on 9, 10 June 2007 – imprisonment for 2 months from 23 August 2008 to 22 October 2008.
(5) Malicious damage to property committed on 23 June 2007 – imprisonment for 2 months from 23 October 2008 to 22 December 2008.
(6) Intimidation committed on 23 June 2007 – imprisonment for 1 year and 6 months with a non-parole period of 1 year and 2 months from 23 December 2008 to 22 February 2010 and a parole period of 4 months from 23 February 2010 to 22 June 2010.
The applicant's total effective sentence therefore is 3 years commencing on 23 June 2007 and expiring on 22 June 2010. The total non-parole period is 2 years and 8 months commencing on 23 June 2007 and expiring on 22 February 2010. The applicant will become eligible for release on 22 February 2010.CATCHWORDS: CRIMINAL LAW – appeal against sentence – common assault, malicious damage and intimidation whether fact that all of the charges could have been dealt with in the Local Court was taken into account– whether the sentencing judge failed to assess properly, or at all, the objective seriousness of any of the offences that had been the subject of pleas of guilty in the Local Court – whether the sentences are manifestly excessive – appeal against sentence allowed. LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986CATEGORY: Principal judgment CASES CITED: Ciaron McCullough v R [2009] NSWCCA 94
McIntyre v R [2009] NSWCCA 305
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Abboud [2005] NSWCCA 251
R v Palmer [2005] NSWCCA 349PARTIES: Marcus Shane Collins (Applicant)
Regina (Respondent)FILE NUMBER(S): CCA 2007/11607 COUNSEL: W J Hunt (Applicant)
L Lamprati SC (Respondent)SOLICITORS: S O'Connor, Solicitor for Legal Aid NSW (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/11607 LOWER COURT JUDICIAL OFFICER: Nield DCJ LOWER COURT DATE OF DECISION: 12 September 2008
2007/11607
22 February 2010McCLELLAN CJ at CL
HOWIE J
HARRISON J
1 McCLELLAN CJ at CL: I agree with Harrison J.
2 HOWIE J: I agree with Harrison J.
3 HARRISON J: Marcus Shane Collins seeks leave to appeal against sentences imposed upon him by Nield DCJ sitting at Gosford on 12 September 2008. On 12 December 2007 at Wyong Local Court the applicant had pleaded not guilty to one count of malicious infliction of grievous bodily harm under s 35(1) of the Crimes Act 1900 and one count of intimidation with the intention of causing a person to fear physical harm pursuant to s 545AB(1) of that Act. He was committed to stand trial on both counts to the District Court at Gosford.
4 On the same day the applicant pleaded guilty to three counts of common assault under s 61 and two counts of malicious damage under s 195(1)(a). Those matters were placed on a certificate prepared by the Crown pursuant to s 166 of the Criminal Procedure Act1986.
5 The jury found the applicant guilty on the intimidation charge and not guilty on the charge of malicious infliction of grievous bodily harm. His Honour sentenced the applicant on the count for which he was convicted and the counts to which he had pleaded guilty as follows:
1. Common assault committed on 15 May 2007 – imprisonment for 1 year, 1 month and 14 days, with a non-parole period of 10 months from 23 June 2007 to 22 April 2008 and a parole period of 3 months, 14 days from 23 April 2008 to 5 August 2008. The prescribed penalty for this offence is a maximum of imprisonment for two years when dealt with on indictment or a maximum of imprisonment for 12 months or a fine not exceeding $2200 or both if dealt with summarily.
2. Common assault committed 9, 10 June 2007 – imprisonment for 9 months with a non-parole period of 6 months from 23 April 2008 to 22 October 2008 and a parole period of 3 months from 23 October 2008 to 22 January 2009. The prescribed penalty for this offence is a maximum of imprisonment for two years when dealt with on indictment or a maximum of imprisonment for 12 months or a fine not exceeding $2200 or both if dealt with summarily.
3. Common assault committed 9, 10 June 2007 - imprisonment for 9 months with a non-parole period of 6 months from 23 June 2008 to 22 December 2008 and a parole period of 3 months from 23 December 2008 to 22 March 2009. The prescribed penalty for this offence is a maximum of imprisonment for two years when dealt with on indictment or a maximum of imprisonment for 12 months or a fine not exceeding $2200 or both if dealt with summarily.
4. Malicious damage to property committed on 9, 10 June 2007 – imprisonment for 6 months, 21 days with a non-parole period of 5 months from 23 August 2008 to 22 January 2009 and a parole period of 1 month, 21 days from 23 January 2009 to 12 March 2009. The prescribed penalty for this offence is a maximum of imprisonment for 5 years when dealt with on indictment or a maximum of 12 months imprisonment or a fine not exceeding $2200 or both if dealt with summarily.
6. Intimidation committed on 23 June 2007 – imprisonment for 3 years with a non-parole period of 1 year, 8 months and 15 days from 7 May 2009 to 21 January 2011 and a parole period of 1 year, 3 months and 15 days from 22 January 2011 to 6 May 2012. The prescribed penalty for this offence was a maximum of imprisonment for 5 years or a fine of $5500 or both.5. Malicious damage to property committed on 23 June 2007 – imprisonment for 6 months, 21 days with a non-parole period of 5 months from 23 January 2009 to 22 June 2009 and a parole period of 1 month, 21 days from 23 June 2009 to 12 August 2009. The prescribed penalty for this offence is a maximum of imprisonment for 5 years when dealt with on indictment or a maximum of 12 months imprisonment or a fine not exceeding $2200 or both if dealt with summarily.
6 The total effective sentence was therefore 4 years, 10 months and 14 days commencing on 23 June 2007 and expiring on 6 May 2012. The total non-parole period is 3 years and 7 months commencing on 23 June 2007 and expiring on 21 January 2011. The earliest date upon which the applicant is eligible for release is 21 January 2011.
Grounds of appeal
7 In these circumstances the applicant relied upon the following three grounds of appeal:
1. The sentencing judge failed to have proper regard to the fact [that] all of the charges could have been dealt with in the Local Court.
3. The sentences are manifestly excessive.2. The sentencing judge failed to assess properly, or at all, the objective seriousness of any of the offences that had been the subject of pleas of guilty in the Local Court.
Background
8 The applicant was born on 28 October 1971. He left school aged 14 years and 9 months and thereafter held various positions with different employers in between periods of imprisonment. He enjoys good physical health although he suffered a period of depression following the death of a close friend. He is single having never married and he has no dependants. He has had three long-term relationships, the last one being with Rene James-Bartlett , the victim in the present case. The offences all occurred in a period of just over five weeks between 15 May 2007 and 23 June 2007 in the context of the applicant's turbulent and abusive relationship with Ms James-Bartlett. The details of the offences are as follows.
9 Between 6.00pm and 7.00pm on 15 May 2007 the applicant assaulted her by punching her to the right side of her face. This was the first offence referred to in the s 166 certificate.
10 His Honour dealt with this at par [24] of the remarks on sentence as follows:
- "24. The circumstances in which the [applicant] committed the first assault upon the complainant … are in dispute. The complainant complained that she was lying down on a verandah floor cowering from the [applicant] when he punched her to the right side of her face. The [applicant] said that he punched her to her face when she was standing in front of him and after she had punched him, after which she fell to the verandah floor. Although I doubt that I need to say who I accept, the fact that a right handed man punched the right side of a woman's face suggests that the complainant was not facing the [applicant] when he punched her and leads me to accept the complainant's version rather than the [applicant's] version of this incident."
11 Between 7.00pm on 9 June 2007 and 2.10am on 10 June 2007 the applicant assaulted Ms James-Bartlett by pulling some hair from her scalp and by throwing a torch at her, which struck her on the bridge of the nose causing her nose to bleed. These were respectively the fourth and fifth offences referred to in the s 166 certificate. Between 7.00pm on 9 June 2007 and 2.10am on 10 June 2007 the applicant maliciously damaged a wooden door of a granny flat by kicking it open. This was the property of Ms Jennifer Allgood. This was the third offence referred to in the s 166 certificate. Between 2.00pm and 2.10pm on 23 June 2007 the applicant maliciously damaged a wooden door in a studio by kicking it open. This was also the property of Ms Allgood. This was the second offence referred to in the s 166 certificate.
12 His Honour dealt with these offence at pars [25] – [26] of the remarks on sentence as follows:
26. The [applicant's] alcohol fuelled conduct towards the complainant on this occasion was abusive, aggressive and, to my mind, and to the mind of the jury, intimidatory. In the course of his conduct, which lasted, albeit with breaks, over many hours, he banged and kicked upon two doors leading into the studio, part of the premises, in which the complainant, her daughter and other occupants of the premises had locked themselves, damaging the doors. In short, he terrorised the complainant, her daughter and the other occupants of the premises.""25. The circumstances in which the [applicant] committed the other offences are not in dispute, although the [applicant] claims that he had a reason for his conduct towards the complainant on 23 June 2007, that reason being that he wished to recover his Keycard to assess [sic] his bank account, which card had been taken by the complainant, something which she denied. As I have said already, the evidence of the [applicant's] intimidatory conduct towards the complainant, which occurred in the presence and hearing of other people including the complainant's teenaged daughter, was overwhelming and I accept was committed by the offender when he was affected by alcohol and it was unrelated to his claimed reason.
13 His Honour referred to the intimidation charge at par [27] as follows:
- "27. The [applicant's] conduct in intimidating the complainant with the intention of causing her to fear for her personal safety shows that the offence is a serious domestic violence offence committed by one person in a relationship towards the other person in the relationship. Although the [applicant's] conduct could have been worse and, therefore, the offence more objectively serious, I consider that the [applicant's] offence falls well above the middle of the range of objective seriousness for offences of its kind."
Consideration
Ground 1
14 Section 166 of the Criminal Procedure Act is in these terms:
(1) On committal for trial or sentence of a person charged with an indictable offence:"166 Certification and transfer of back up and related offences
(b) if the person has been charged with any back up offence or related offence:
(a) the prosecutor must inform the Magistrate as to whether or not the person has been charged with any back up offence or related offence, and
(ii) the proceedings on each back up offence and related offence with which the person has been charged are to be transferred to the court in which the person has been committed to trial or sentence (along with the certificate).
(i) the prosecutor is to produce to the court a certificate specifying each back up offence and related offence with which the person has been charged, and
(3) Proceedings on a back up offence or related offence that are laid after committal for trial or sentence of a person charged with an indictable offence are to be transferred to the court in which the person has been committed to trial or sentence."
(2) This section does not prevent the person referred to in subsection (1) being charged with any offence after committal.
15 The five charges to which the applicant pleaded guilty could have been dealt with summarily in the Local Court. The fact that they were not is the direct consequence of the operation of this section. The applicant complains that it is only because of an inadvertent and unintended procedural consequence in this particular case that the maximum penalties to which he became exposed were those that his Honour had regard to when sentencing the applicant for these offences, rather than the smaller penalties to which he would have been subjected in the Local Court.
16 In Ciaron McCullough v R [2009] NSWCCA 94, Howie J referred to what was said by Hall J in R v Palmer [2005] NSWCCA 349:
"[25] The issue was also considered in R v Palmer [2005] NSWCCA 349 where Hall J at [15] summarised the relevant principles as follows:
(a) The first is that a judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court: Regina v. Crombie [1999] NSWCCA 297 at [16]; Regina v. LPY (2002) 136 A. Crim. R. 237 at 240 and Regina v. El Masri [2005] NSWCCA 167 at [30].
(b) Secondly, the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge: Crombie (supra) at [15].
(c) Thirdly, however, the relevant decisions that establish that principle do not go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and the subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Where it appears that that circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal: Crombie (supra) at [16].
(d) Fourthly, the significance of the loss of the chance of the matter being dealt with in the Local Court varies from case to case. In some cases it would contribute to mitigation of sentence. It is a matter to be taken into account, but is not a universal factor for the reduction of sentence: Regina v. Doan (2000) 50 NSWLR 115.
(f) Finally, in circumstances where a sentencing judge has made no reference to the summary disposal argument in his or her remarks on sentence, it is necessary to consider whether that omission is indicative of error. One way of testing that proposition is to consider whether the sentence itself appears manifestly excessive in all the circumstances of the case – if the factor had been taken into account and given appropriate weight, a substantially lesser sentence was appropriate in the case: El Masri (supra) at [45] per Johnson, J. (with whom Hunt, AJA. and Hulme, J. agreed)."(e) Fifthly, the failure by a sentencing judge to mention the matter in his or her remarks on sentence and the length of the sentence does not necessarily establish that the sentencing judge failed to have regard to the matter. In some circumstances the length of the sentence may not suggest that the matter was overlooked: Regina v. Depoma [2003] NSWCCA 382 at [17].
17 Howie J dealt with the instant case at par [26] as follows:
- "[26] Although, unlike the situation in El Masri , the Judge in this case did indicate that the two offences could have been dealt with in the Local Court, there needed, in my opinion, to be a closer analysis of the situation because of the reduced maximum penalties that would apply, they being less than the normal jurisdictional limit in the Local Court of 2 years imprisonment. As her Honour noted, both these offences were to the lower end of the scale of seriousness. In my opinion the sentence for the malicious damage was excessive having regard to the nature of the offence and in light of the fact that it exceeded the sentence that the Local Court could lawfully have imposed had it been dealt with in that jurisdiction. The sentence for the assault was also manifestly excessive. The applicant should be re-sentenced for these two offences."
18 All of the offences that are the subject of the present application are listed in Table 2 of Schedule 1 to the Criminal Procedure Act so that by virtue of s 261 of that Act the offences would have been dealt with summarily in the absence of an election by the prosecution. The offence charged under s 35(1)(b) was an offence listed in Table 1 of Schedule 1 and the prosecution made an election for a trial on indictment. The applicant was ultimately acquitted on that charge. The applicant contended that the relative lack of objective seriousness of the remaining offences was such that no election would have been made in respect of them in the absence of the s 35(1)(b) allegation and that each of these offences would have been dealt with summarily in the Local Court.
19 Apart from his reference to the differing maximum penalties provided for each offence, when dealt with summarily or on indictment, his Honour limited his remarks on sentence on this issue to the following:
- "41. I record that I realise that the sentences could have been dealt with by a magistrate in a Local Court but, in my view the [applicant's] criminal record for the use of violence, including violence against the complainant, I well understand the position taken by the Director of Public Prosecutions that the offences be dealt with in this Court rather than in a Local Court."
20 In fact, apart from the two matters for trial, the Director could not be said to have taken any such position or approach. On the contrary, the balance of the matters was before the District Court by reason of the operation of s 166 of the Criminal Procedure Act as earlier discussed.
21 The applicant submitted that his Honour did not have proper regard to the applicable maximum penalties that would have been available had the matters been dealt with in the Local Court, nor did he undertake a "closer analysis" in the way found to be desirable by Howie J in McCullough. He submitted that on the basis of this ground alone the Court's discretion to re-sentence is enlivened and that it should proceed to do so.
22 However, all of these arguments can be put to one side. It is regrettable that neither counsel appearing at the trial nor counsel appearing in this Court drew attention to s 168(3) of the Criminal Procedure Act. It provides as follows:
" 168 Procedures for dealing with certain offences related to indictable offences
(1) …
(3) In sentencing or otherwise dealing with a person for a back up offence or related offence, the court has the same functions, and is subject to the same restrictions and procedures, as the Local Court." [Emphasis added](2) …
23 In the absence of any argument on the point it seems that this subsection had at least the effect of restricting his Honour’s powers when sentencing the applicant in the following ways. First, by restricting the maximum penalties that could be imposed by his Honour to those applying in the Local Court. Secondly by restricting his Honour’s power to accumulate such sentences beyond a period of three years.
24 The sentences that were imposed by his Honour with respect to the matters to which the applicant pleaded guilty should have been calculated having regard to s 168(3) of that Act. His Honour was constrained by the maximum penalties applying in each case in the Local Court. The sentences that were in fact imposed were therefore arrived at erroneously. The applicant should be re-sentenced for this reason alone.
Ground 2
25 His Honour made a specific determination of the objective seriousness of the intimidation offence at par [27]. However, although his Honour made some general observations about features of aggravation and the impact of the applicant's record of domestic violence, there is no assessment made in relation to the objective seriousness of the remaining offences.
26 His Honour made some general observations at par [32] of the remarks on sentence when considering mitigating factors that provided some guidance as to the probable assessment of objective severity. The applicant submitted that his Honour did not discharge his obligation to do so with respect to each separate offence. In this regard his Honour said, "as to all the offences other than the offence of intimidating the complainant, the mitigating factors are (a) because the injury to the complainant and the doors was not substantial, (b) the offences were not planned being more spur of the moment …".
27 The applicant contended that given the limited facts recited in the remarks on sentence, his Honour would have been obliged to assess the objective seriousness of the offences to be low. If his Honour had properly assessed the objective seriousness of these related offences the applicant submitted that he would have imposed sentences that were considerably reduced. He was in error in the circumstances. He also submitted that on the basis of this ground alone the Court's discretion to re-sentence is enlivened and that it should proceed to do so.
Ground 3
28 With respect to the intimidation offence the applicant emphasised that JIRS statistics revealed that of 1142 cases dealt with by the Local Court between March 2007 and December 2008, 13 per cent resulted in sentences of full time imprisonment with a total of 62 per cent receiving either fines or bonds. Of the 13 per cent that were imprisoned, 2 per cent were sentenced to 2 years imprisonment (the jurisdictional maximum), 25 per cent attracted 12 months and 60 per cent attracted a range of between 1 month and 9 months.
29 Even accepting the assessment that the offence fell "well above the middle range of objective seriousness for offences of this type", as found by his Honour, the applicant submitted that a sentence of 3 years full time imprisonment was manifestly excessive.
30 The applicant also submitted that the common assault offences were manifestly excessive. He sought to compare the circumstances of the present case with those in R v Abboud [2005] NSWCCA 251 and McCullough. The applicant contended that these offences were low on any scale of objective seriousness.
31 The applicant submitted that the malicious damage offences were also manifestly excessive taking into account his Honour's findings of a lack of substantial damage and lack of planning.
32 With respect to the overall sentence the applicant did not contend that his Honour failed to have regard to the principles of totality as required by Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. The significant degree of partial accumulation between the sentences that were imposed contributed to a total sentence that was manifestly excessive and that a lesser total sentence is warranted in law.
Conclusions
33 Alike with Howie J in McCullough, I consider in this case that the sentences for the malicious damage offences were excessive having regard to the nature of the offences and to the maximum sentence that the Local Court could lawfully have imposed had the offences been dealt with in that jurisdiction. The objective facts of these offences may have been difficult to assess in isolation from the events that surrounded them. However, the extent and degree of the damage to the doors when taken at face value ought not in my opinion to attract non-parole periods of imprisonment of 5 months in each case. His Honour was in error not to have had regard to the maximum sentence for these offences that could have been imposed if the applicant had been dealt with summarily. Sentences in each of these cases of nearly 7 months where the Local Court jurisdictional limit was 12 months are manifestly excessive. The applicant should be sentenced in each case to a fixed term of imprisonment of 2 months. I consider that a fixed term, equating to what would otherwise be a non-parole period of 2 months, is appropriate when one has regard to the principles of totality and to the overall level of criminality involved in all of the offences.
34 The sentences for the assaults were also manifestly excessive, but to dissimilar extents. The earlier assault on 15 May 2007 involving punching the complainant is the more serious of these offences. However, having regard to the fact that this offence could have been dealt with summarily, the sentence is disproportionate to the maximum sentence that could have been imposed for the offence in the Local Court. Having regard to a maximum sentence of imprisonment of 12 months in that jurisdiction I consider that the applicant should be sentenced to a fixed term of imprisonment of 6 months. Once again I consider that a fixed term, equating to what would otherwise be a non-parole period of 6 months, is appropriate when one has regard to the principles of totality and to the overall level of criminality involved in all of the offences.
35 The assaults that respectively involved pulling the complainant's hair and throwing the torch at her (which would appear in fact to have been a pen with a light as opposed to a full-sized torch as ordinarily understood) do not involve a degree of objective seriousness that should attract head sentences of 9 months in my opinion. Once again, having regard to the fact that these offences should have been dealt with by reference to the maximum penalties applying in the Local Court, I consider that the applicant should be sentenced in each case to a fixed term of imprisonment of 4 months. I once again consider that a fixed term, equating to what would otherwise be a non-parole period of 4 months, is appropriate when one has regard to the principles of totality and to the overall level of criminality involved in all of the offences.
36 The applicant attacked the sentence on the intimidation charge upon the basis that first, as a matter of comparison, it is excessive in statistical terms. The applicant has conceded the frailty of any reliance upon statistics alone. His Honour assessed the offence to be well above the middle of the range of seriousness for offences of this type. The applicant did not however contend that his Honour was in error in this respect, but submitted secondly that having regard to the sentence that could have been imposed for a like offence in the Local Court it was manifestly excessive.
37 In the absence of a specific challenge by the applicant to his Honour's assessment that the offence was well above the middle of the range for this offence, about which minds may arguably differ, the important fact to emphasise is that the applicant was tried on indictment in the District Court. No controversy attends that fact. The applicant cannot legitimately complain that his Honour, in imposing a sentence by reference to the maximum sentence that could be imposed in that jurisdiction, failed properly to advert to the comparable penalty in the Local Court for the same offence as a relevant consideration in the circumstances. In this regard I have taken account of what was said by Johnson J in McIntyre v R [2009] NSWCCA 305 at [62] – [64] and [66] – [67] as follows:
"[62] The relevant principles have been stated in a number of decisions of this Court, including R v Crombie [1999] NSWCCA 297; R v Gent (2005) 162 A Crim R 29 at 45-48 [76]-[91]; McCullough v R [2009] NSWCCA 94 at [22]-[26]; Edwards v R at [47]-[49]. There is no fixed rule when an argument based upon possible summary disposal is advanced, nor is this a factor which operates universally to reduce sentence. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Edwards v R at [47].
[63] Ought the s.58 offence be regarded as one which was truly a Local Court offence being prosecuted in the District Court: Edwards v R at [49]?
[64] It has been observed that, where the Director of Public Prosecutions has elected to prosecute a matter on indictment, it would require a very clear case of inappropriate prosecution of an offence on indictment for an argument to be available in mitigation resulting from a lost opportunity for summary disposal of that offence: Edwards v R at [49]. The Applicant had a lengthy record for offences of violence, including a number of offences of assault police or assault officer other than a police officer. No doubt, the Applicant's criminal history was taken into account by the Director of Public Prosecutions in electing to prosecute the s.58 offence on indictment.
[67] Once the relevant principles with respect to the availability of summary disposal are taken into account in this case, it is clear that the theoretical possibility of the s.58 offence being disposed of summarily, does not assist the Applicant on sentence. Although I am satisfied that the sentencing Judge erred in excluding this factor from consideration upon an inappropriate basis, the factor does not ultimately assist the Applicant when it is taken into account in accordance with relevant principles."
[66] I do not think that this is a case where, in effect, the s.59 offence has dragged the s.58 offence into the District Court for sentence. Rather, the s.58 offence was far from trivial, and was committed by an offender with a history of persistent offending of this type. It was reasonable that a view be taken by the Crown that the Applicant ought stand for sentence for these two crimes of violence before the District Court, with the penalties available to that Court being open.
38 However, even disregarding the apparent sentencing trends for this offence, and his Honour's assessment of the comparative seriousness of the circumstances in this case, it does seem to me that the sentence imposed by his Honour was manifestly excessive. A review of the events of the night in question bears this out.
39 On Friday 22 June 2007 the applicant had been drinking quite heavily as he usually did. The complainant said that she was at that time coming to the end of her rope and said that she could not take any more. She said to the applicant that it was either she or the drink and that he had to decide. He said, "What you mean you'll leave?" and she replied, "If I have to, I will."
40 The complainant's daughter came to their house for the night. They went out for dinner with her daughter and some others to what appears to be a local club. Over dinner an argument developed in circumstances that are described in the following answer given by the complainant in her evidence in chief:
A. Yeah, Marcus had been, he was quite intoxicated when we were down there and I asked him whatever he wanted to have for dinner, I would get, he couldn't make a decision and then he stormed off and then he would come back, anyway the girls had – he said just get whatever I wanted and he would share mine, I got a Caesar salad and the girls had some wedges and things like that, when he eventually sat down with us, the girls and him started having like a, well him and Stevie-Lee started having a bit of ice fight, and then it progressed to chips, and Shakeel started getting a bit scared, she could see things were escalating a bit, and she had asked him to stop it, that he was carrying on like a child, and he then got upset with her and started to raise his voice at her, which instantly terrified Shakeel after what we've been through with him, I proceeded, I grabbed the girls and started to leave.""Q. So did anything happen around about 7pm or thereabouts?
41 By this time they had been at the club for about one and a half hours. She "grabbed the girls" but the applicant "continued to carry on in the foyer". She called a taxi and went home. She planned to get anything that was important to her from her bedroom and put it in the office "because [she] knew that [the applicant] would smash it". This included "photos of the kids and anything like that". She had just finished doing this when the applicant walked in. He was alone. Six other people apart from the complainant and the applicant were in the house at that time.
42 The following question and answer are instructive:
- "Q. Now when the [applicant] came home, did he do anything?
A. Yeah he started ranting and raving straight away and got all my things, my clothes and that, that were left in the bedroom and threw them all out in the front verandah, I instantly I just grabbed the girls and took them in the office and locked the doors, or Dave actually came down and locked the doors."
43 The applicant was on the other side of the door "hurling abuse and trying to kick his way in the door" so they ran upstairs to the attic to try to be safe. They remained in the attic for "hours". Thereafter the complainant described what happened up until the point when the applicant was finally arrested in the course of the following evidence:
"Q. Were you aware whether anybody else came home during the course of the evening?
A. We'd been trying to get a hold of Jen for hours, to try and get her to come home, because we knew she would be the only one could settle him down.
Q. When you say we, who were we?
A. Me and the other people in the attack, Dave, Shannon, Shannon's cousin.
Q. How were you going back trying to get hold of Jen?
A. From the office we were trying to ring Jenny on her mobile, Mingara, and then Jenny's friend, Debbie, because we thought she might be able to go and get hold of her, eventually Jen came home about midnight.
Q. When she came home, do you know where the accused was at that stage?
A. Somewhere in the house. I don't know we were still locked inside.
Q. Once Miss Allgood came home, did you speak to her?
A. She came in the office, yeah.
Q. And did you see the accused at any point after Miss Allgood came home?
A. Marcus kept trying to kick the door in to the office, he wasn't allowed to come in there.
Q. Did he have any discussions with his aunt, Miss Allgood?
A. Yes Jenny sat in the lounge room with him, for quite some time trying to talk to him.
Q. Did you leave the attic or the office area?
A. No, we couldn't leave there for 24 hours.
Q. Did you get any sleep that night?
A. No.
Q. Did things quieten down at any stage?
A. For a very short brief times and then he would start again.
Q. Did anybody else call at the house during the course of the night?
A. We had the police come out twice.
Q. Did you see those police officers?
A. Yes.
Q. On both occasions?
A. Yes.
Q. Did you talk to them at all?
A. We all did, yes.
Q. And you say the police came on two occasions, they obviously left on two occasions?
A. Yeah.
Q. What were things like on the first occasion when they left, what was going on in the house at the time they left?
A. Marcus was trying to kick the door in.
Q. Sorry?
A. Marcus was trying to kick the door in.
Q. Was that as the police were leaving?
A. No while the police were there, he was very good.
Q. The police left and then?
A. It would start again.
Q. The police were called back the second time?
A. Yeah.
Q. Do you know who did that?
A. Who called the police?
Q. Yes?
A. No.
Q. I take it that means it wasn't you?
A. No.
Q. When the police called on the second occasion what happened as a result of their visit on that occasion?
A. I begged them, if they weren't going to take him from the house, could they at least get my daughter and I into a refuge so we could get out and everyone else would be all right. They refused to do that, they then left, we tried to get his best friend Steve Godbold to come and get him. Steve came and yeah didn't do much good with him at all, because Marcus was back and it had all started all over again, it went on all night.
Q. Once daylight arrived, what happened?
A. It was still going, I still couldn't leave the room.
Q. Now when did you eventually get out of the room?
A. When Mark was arrested.
Q. Did you get out the room before he was arrested or --
A. He had kicked the other side, there's two doorways to the office, there is an internal door, and there's an external door, outside the house, he kicked the outside door in and while he did that, Amanda and I who were sitting in the office, ran out the other door, because we thought he was coming in through the door.
Q. Now you have just mentioned Amanda, is she another resident of the house?
A. Yes she was.
Q. And she got into that room at some stage?
A. Yeah.
Q. And do you recall how she came to be in there?
A. I think one of the others had let her in through the door. The others could come and go through that door without him worrying. It was only me he wanted.
Q. Yes. Now were you doing anything in the room immediately prior to the accused kicking the door in?
A. Amanda and I were sitting on the, we had a mattress in there that we all stayed in there to sleep on. Amanda and I were sitting on the end of the mattress, she's just come home, and she was talking to me about what had gone on.
Q. And when the accused you said he came to the door and kicked it in, was there anything said or any conversation before the door was?
A. Marcus accused Amanda and I of having a sexual relation in the bedroom while this was going on, which wasn't happening, and that's when he proceeded to kick the door in.
Q. Now you have already told us that when that happened you existed [sic] via the other door?
A. We ran straight out, yeah.
Q. And where did you go once you got out?
A. Out onto the back deck.
Q. Now did the accused do anything?
A. He came back through the other side of the house, around, and when he kicked that door in he came back in through the front door of the house and then to the other side of the deck.
Q. Now did Amanda do anything as you –
A. Amanda called the police straight away.
Q. And did the police arrive?
A. Yes they did.
Q. Do you know how long after she made the call that happened?
A. Five to ten minutes, not even ten minutes, yeah.
Q. When you say he was hurling horrible horrible things, are they objects or words?Q. Now in between the time when she called the police and when they arrived, where was the accused?
A. He was trying to get all the other people in the house had blocked him from getting out to me, he was trying to get through them, and then he proceeded, when he couldn't do that, and he was hurling horrible horrible things across to me and my daughter, he then went across to the phone box and was starting to ring me and say them.
A. Words, yeah."
44 Nothing can be said about these events that cast them in any light that would not have shown them to be very frightening and very harrowing for the complainant and those who were with her. In forming a view of the appropriate penalty, however, regard must be had to at least the following matters.
45 First, no specific threats appear to have been made. Once again it is important immediately to recognise that unspecified or unarticulated threats may be as troublesome and intimidating, and in some respects more so, than verbal abuse alone or even verbal abuse in association with acts that are physically threatening. In this case the applicant does not appear to have communicated with the complainant that she was in danger of some particular physical harm that he was contemplating or describing. It is unnecessary to observe that such threats are regrettably often made in specific and terrifying terms in similar situations.
46 Secondly, the complainant had the benefit of physical isolation from the applicant. Despite the applicant's violent attempts to kick down the doors of the rooms in which she took refuge, he was unsuccessful. Once again, the very concern that he would or might succeed would have fuelled the complainant's fears and offered her little comfort at the time of these frightening events. However, the circumstances are distinguishable from those where the complainant, or someone in an equivalent position, was wholly vulnerable to the unrestrained violent whim of the applicant.
47 Thirdly, the complainant was not alone throughout her terrible ordeal. The applicant had neither by chance nor design been able to isolate the complainant from her companions so that in the events as they occurred the intimidation to which she was subjected was at least partly mollified by the support of others who were with her. At least one of these was a male.
48 Fourthly, the complainant and those others who were with her would appear to have been able to contact the police either directly or indirectly by phone. She was not wholly unable to communicate with anybody beyond the rooms in which she was confined. This is patent from the fact that the police attended the premises on two occasions during the whole incident. The complainant was not completely isolated from or deprived of even the prospect of obtaining assistance or telling others of her plight.
49 Finally, the fact that the police attended the scene during the course of the events that give rise to the intimidation charge provides some insight into the state of affairs when they arrived. The complainant said that the applicant was behaving while the police remained but reverted to his aggressive conduct when they left. The complainant clearly did not at that stage at least feel inclined to seek protection from the applicant by leaving the scene, although in so saying I am not unmindful of the social and interpersonal pressures and dynamics that operate in such circumstances. In short, however, the situation was not apparently so bad at the time of the police attendance on the first occasion to have led to the applicant's immediate arrest. This must be taken into consideration in any assessment of the applicant's conduct.
50 In these circumstances it seems to me that in the overall scheme of things the imposition of a sentence of 3 years with a non-parole period of 18 months is manifestly excessive. I agree with his Honour's assessment that the applicant's conduct "could have been worse".
51 Some lesser sentence is warranted in law.
Orders
52 In these circumstances I propose the following orders:
1. Grant leave to appeal against sentence.
3. Quash the sentences imposed upon the applicant by his Honour Nield DCJ on 12 September 2008 and in lieu thereof sentence the applicant as follows:2. Allow the appeal.
(1) Common assault committed on 15 May 2007 – imprisonment for 6 months from 23 June 2007 to 22 December 2007.
(2) Common assault committed 9, 10 June 2007 – imprisonment for 4 months from 23 December 2007 to 22 April 2008.
(3) Common assault committed 9, 10 June 2007 - imprisonment for 4 months from 23 April 2008 to 22 August 2008.
(4) Malicious damage to property committed on 9, 10 June 2007 – imprisonment for 2 months from 23 August 2008 to 22 October 2008.
(5) Malicious damage to property committed on 23 June 2007 – imprisonment for 2 months from 23 October 2008 to 22 December 2008.
(6) Intimidation committed on 23 June 2007 – imprisonment for 1 year and 6 months with a non-parole period of 1 year and 2 months from 23 December 2008 to 22 February 2010 and a parole period of 4 months from 23 February 2010 to 22 June 2010.
53 The applicant's total effective sentence therefore is 3 years commencing on 23 June 2007 and expiring on 22 June 2010. The total non-parole period is 2 years and 8 months commencing on 23 June 2007 and expiring on 22 February 2010. The applicant will become eligible for release on 22 February 2010.
3
10
2