Coulthard v Court

[2022] NTSC 40

CITATION:Coulthard v Court [2022] NTSC 40

PARTIES:COULTHARD, Ronnie

v

COURT, Michael

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction

FILE NO:LCA 44 of 2021 (22128228)

DELIVERED:  19 May 2022

HEARING DATE:  11 May 2022

JUDGMENT OF:  Reeves J

CATCHWORDS:

SENTENCING — Appeal against sentence — Severity — Where ground that the sentencing judge failed to properly take into account disability and that the sentence was manifestly excessive — No error disclosed — Appeal dismissed

Clarke v The Queen [2019] NTCCA 2; R v Verdins & Ors [2007] VSCA 102; R v Engert (1995) 84 A Crim R 67; Mununggurr v The Queen [2006] NTCCA 16; Mununggurritj v The Queen [2010] NTCCA 17; Munda v Western Australia 249 CLR 600

Domestic and Family Violence Act 2007
Sentencing Act 1995

REPRESENTATION:

Counsel:

Appellant:S Rumbewas

Respondent:  S Thomas

Solicitors:

Appellant:North Australian Aboriginal Justice Agency

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  Ree2201

Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

Coulthard v Court [2022] NTSC 40

No. LCA 44 of 2021 (22128228)

BETWEEN:

RONNIE COULTHARD

Appellant

AND:

MICHAEL COURT

Respondent

CORAM:    REEVES J

REASONS FOR DECISION

(Delivered 19 May 2022)

1. The appellant has appealed against the sentence imposed on him by a Local Court Judge at Alice Springs on 19 October 2021.  His appeal arises in the following circumstances.

2. On 16 September 2021, the appellant was involved in an altercation with several members of his family at his mother’s residence in Alice Springs.  As a result, he was charged with three offences to which he pleaded guilty in the Alice Spring Local Court on 17 September 2021.  Those offences were:

   -Count 1 – aggravated assault on his grandfather.

   -Count 2 – intentionally damaging various items of property in his mother’s home.

   -Count 3 – contravening a domestic violence order issued for the protection of his mother.

1. In his sentencing remarks, the learned sentencing Judge described the conduct that led to those charges in the following terms:

   When this trouble happened on 6 September (sic 16 September) this year, you were at your mother’s house at [redacted] here in Alice Springs and you were drunk, after you had consumed alcohol.  You were arguing with some other family who were there that night, and your grandfather and your mother told you to stop it.  You became upset.  You tried to punch your mother and she ran into the toilet to hide away from you.

   You walked back into the lounge room of her home and smashed that TV and the windows in the house.  Two windows were totally shattered and that television was broken. You picked up that toy car and then smashed it down onto your grandfather’s left shoulder, just missing his head.  That caused him a lot of pain and shock.  All of the family left that house because of the trouble that you were causing to your mother and your grandfather.

   Somebody, obviously, called the police and they went to the house and found you hiding in the backyard.  When they found you, you smelt heavily of grog.  The policemen arrested you and took you back to the police station. 

   On 17 September, just after midnight, they breath-tested you and you had a reasonably high reading of .134 percent.  Because of the assault on your grandfather, his shoulder was hurt and you didn’t have any permission, of course, to cause any of this trouble, to your mother or your grandfather.

1. His Honour imposed a total effective sentence of 16 months imprisonment commencing on 16 September 2021, the details of which were as follows:

   …. for breaching the domestic violence order for your mother, you are convicted and sentenced to 2 months’ imprisonment, which is to commence on 16 September this year.

   For causing damage to that house and the television, you are convicted and sentenced to 6 months’ imprisonment.

   For the assaults on your grandfather, you are convicted and sentenced to 14 months’ imprisonment. 

   Those sentences on counts 1 and 2 are to be served concurrently, but cumulatively on count 3.

1. The maximum penalty for these offences was 2 years, 14 years and 5 years, respectively. As noted above, his Honour imposed sentences of 2 months, 6 months and 14 months respectively. Because of the provisions of s 121 of the Domestic and Family Violence Act 2007, the term of imprisonment on the first count was required to be served cumulatively with that of the other counts.  That aside, his Honour ordered that the terms of imprisonment on counts 2 and 3 to be served concurrently.  Accordingly, the total term of imprisonment imposed was 16 months.  His Honour fixed a non-parole period of 8 months commencing 16 September 2021.

1. In his Notice of Appeal to this Court, the appellant claims that the learned sentencing Judge:

   1.Failed to properly take into account his disability.

   2.Was manifestly excessive.

2. In Clarke v The Queen[1] the Court of Criminal Appeal observed that:

   As this Court has previously observed, any contention that the sentencing court has accorded inadequate or excessive weight to a factor is properly viewed as a particular of manifest excess. For that reason, this ground of appeal as framed cannot stand alone and the contention made is properly considered in the context of the ground asserting manifest excess.

   Accordingly, ground 1 above must be properly considered in the context of ground 2 above.

1. The principles bearing on an appeal that a sentence is manifestly excessive were later elaborated in Clarke[2] in the following terms:

   It is fundamental that the exercise of the sentencing discretion be not disturbed on appeal unless error in the exercise of the discretion is shown. The presumption is that there is no error. Given the nature and operation of the sentencing discretion, including the likelihood that there may be a range of judicial views as to the appropriate sentence, it is not sufficient for an appellant relying on this ground to show that this Court might have imposed a lower sentence than that determined by the sentencing judge. The sentence must be demonstrated to be so excessive as to bespeak error in the exercise of the discretion, notwithstanding that no specific error can be identified.

2. The disability to which reference is made in the first ground of appeal above was described in a report which was tendered before the learned sentencing Judge as follows:

   Ronnie has a foetal alcohol syndrome disorder which has a significant impact on his cognition and, therefore, daily living. His cognitive disability or difficulties are exacerbated by his history of trauma, and alcohol and drug dependency.

1. In support of that ground of appeal, the appellant’s counsel contended that:

   Despite giving some consideration to the appellant’s cognitive impairment…. the sentencing judge failed to have regard to its relevance for the purpose of the objective seriousness of the offence, which should have been assessed as reduced. 

2. And further, that:

   …. no observations were made by the sentencing judge regarding the issue of moral culpability.

1. With respect to the phrase “moral culpability”, the appellant’s counsel referred to the six principles set out in the Victorian Court of Appeal judgment of R v Verdins & Ors[3]  as follows:

   1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility.  Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

   2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

   3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

   4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

   5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

   6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

1. With regard to these principles he contended that:

   Although reference was made by the [sentencing] Judge to general and specific deterrence having limited effect on sentence (ie – principles 3 and 4), [His Honour] did not turn [his] mind to principles 1 and 2 of Verdins (ie – reduced moral culpability and the kind or appropriate sentence to be served).

2. If those two principles had been taken into account in the sentencing exercise, the appellant’s Counsel contended that the learned sentencing Judge “could have considered a more appropriate mode and duration of sentence”.  In particular he contended:

   ….. despite the findings of the s 103 report author, which indicated the appellant’s unsuitability, [His Honour’s] “concern about [the appellant’s] capacity to comply with the court orders”…. the court’s instinct to apply a “much stricter regime of release” (particularly via the application of a parole period) was inappropriate in light of Verdins and excessive.

1. All of these submissions are rejected.  The complex and interactive nature of the sentencing exercise performed by the sentencing Judge and the error associated with isolating a particular factual circumstance as having received too little or too much consideration in that exercise was described by Gleeson CJ in Engert[4] as follows:

   Persons suffering from mental disorders frequently come into collision with the criminal justice system.  Sentencing such persons commonly confronts judicial offers with the need to make a sensitive discretionary decision.  Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law. 

   A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate.  In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration.  For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance…..

   It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances.  In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and the light of the purposes to be served by the sentencing exercise.[5]

2. In Munda v Western Australia[6] after quoting the observations above, in part, the plurality went on to add:

   In Markarian, Gleeson CJ, Gummow, Hayne and Callinan JJ adopted the explanation of the sentencing discretion given by Gaudron, Gummow and Hayne JJ in Wong v The Queen that the description of the balance struck by a sentence as an “instinctive synthesis” is not used “to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.

3. While it is true that the learned sentencing judge did not, in his sentencing remarks, specifically mention the phrase “moral culpability”, it is clear from a fair reading of those remarks that his Honour did have specific regard to that concept when balancing the “many and conflicting features” that arose in the appellant’s case.    

4. So much is clear from his Honour’s sentencing remarks which included the following.  First, he specifically referred to “the principles set out in Verdins case and others”.  Consistent with those principles he then stated that the application of those principles meant that “you are not a good vehicle for general deterrence”.  Immediately thereafter he added that “of course your offending is further militated (sic mitigated) by those difficulties that have been referred to in the medical reports”.  Read in context, this was a reference to the reports prepared by the Alice Springs Hospital, Dr Forbes and an unnamed Occupational Therapist (referred to as “the practitioner”) that were reviewed in some detail earlier in his Honour’s remarks.  Those “difficulties” then led to his Honour stating that:

   I am going to reduce the penalty I would otherwise have imposed upon you, to reflect those issues. 

5. As well he added:

I will be proceeding today although specific deterrence is a relevant factor for you due to your disabilities, it has a reduced relevance in my view. 

1. Finally, with apparent reference to the purpose specified in the Sentencing Act 1995[7] to “protect the Territory community from the offender” his Honour made the following observations about the interaction between the appellant’s disability and his consumption of alcohol:

   Your disability goes some way to explaining the way you react, but it would seem that when you are under the influence of alcohol, you do act in a very bad way towards family and others.  Going forward, hopefully, if that NDIS program is able to assist you in that area, you could move away from being intoxicated and using alcohol for whatever reason you do.

2. In this respect, it is to be noted that his Honour recognised the appellant’s Grandfather’s wish to have no further contact with him by making an order under the Domestic and Family Violence Act 2007 that the appellant “not… approach, enter or remain at any place where he is living, working, staying, visiting or located”.

3. It is therefore apparent from his Honour’s remarks read as a whole that he had due regard to all the relevant circumstances of the appellant’s case including his disability and weighed them by reference to the various components of the sentencing exercise he was required to undertake.  In particular, he had due regard to the manner in which each of those circumstances interplayed with each of the others.  Having done so, his Honour imposed sentences that were at the lowest end of the range fixed by Parliament for the first two offences, viz: 2 months compared to 2 years; and 6 months compared to 14 years; and at the lower end of the range for the third offence viz: 14 months compared to 5 years, noting that that offence concerned the assault on his Grandfather.  

4. The appellant has therefore neither demonstrated specific identifiable error on his Honour’s part nor an outcome that was clearly and obviously excessive.  For these reasons, his appeal must be dismissed.

------------------------------

[1] [2019] NTCCA 2 at [33].

[2][2019] NTCCA 2 at [51].

[3] [2007] VSCA 102 at [32].

[4] (1995) 84 A Crim R 67 at 68.

[5]     See also Mununggurr v The Queen [2006] NTCCA 16 at [19]-[20] and Mununggurritj v The Queen [2010] NTCCA 17 at [35-[36].

[6] 2013 249 CLR 600 at [59].

[7]Section 5(1)(e).