Courtney v Narjic
[2021] NTSC 61
•23 August 2021
CITATION: Courtney v Narjic [2021] NTSC 61
PARTIES: COURTNEY, Vicky
v
NARJIC, Dennis
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO: LCA 42 of 2020 (22011108)
DELIVERED ON: 23 August 2021
HEARING DATE: 15 February 2021
JUDGMENT OF: Grant CJ
CATCHWORDS:
CRIME – Appeal and review – Appeal from Local Court to Supreme Court – By prosecutor on a question of law and fact
Sentencing court misdirected itself in law in finding ‘exceptional circumstances’ – Appeal allowed.
Sentencing Act 1995 (NT), s 78DI
Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126, Bara v The Queen [2016] NTCCA 5, Clarke v The Queen [2019] NTCCA 2, CMB v Attorney-General for New South Wales (2015) 256 CLR 346, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, Emitja v The Queen [2016] NTCCA 4, Fardon v Attorney-General (Qld) (2004) 223 CLR 575, Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, Norris v The Queen [2020] NTCCA 8, R v Wilson (2011) 30 NTLR 51, The Queen v Calica [2021] NTSCFC 2, Whitlock v The Queen [2018] NTCCA 7, The Queen v Duncan (2015) 34 NTLR 201, referred to.
CRIME – Appeals – Appeal against sentence – By Crown against inadequacy
Sentence not so manifestly wrong that it requires appellate intervention on the ground of inadequacy – Appeal dismissed.
R v BJW (2000) 112 A Crim R 1, referred to.
REPRESENTATION:
Counsel:
Appellant: I Rowbottam
Respondent: J Razi
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent: North Australian Aboriginal Justice Agency
Judgment category classification: B
Judgment ID Number: GRA2112
Number of pages: 12
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Courtney v Narjic [2021] NTSC 61
LCA 42 of 2020 (22011108)
BETWEEN:
VICKY COURTNEY
Appellant
AND:
DENNIS NARJIC
Respondent
CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 23 August 2021)
On 11 February 2020, the respondent was convicted in the Local Court of two aggravated assaults which had been committed on 26 May 2019, shortly after his 18th birthday. The victim of one of those assaults was his girlfriend, then aged 15. That assault was aggravated by the circumstances that the victim suffered harm, the victim was a female and the offender was a male, the victim was defenceless at the time, and during the course of the assault the respondent threatened the victim with an offensive weapon. The other assault involved a different victim, but similar circumstances of aggravation.
At that same time, the respondent was also convicted of the offences of going armed in public, going armed with an offensive weapon, alarming a person in a dwelling house and damaging property, all of which had also been committed on 26 May 2019. Despite the seriousness of that offending, and no doubt in recognition of his youth and the fact that these were his first convictions, the respondent was released on a 12 month good behaviour bond.
On 31 March 2020, which was approximately six weeks after he had been dealt with by the Local Court and taken the benefit of that lenient disposition, and during the currency of the good behaviour order, the respondent again assaulted his girlfriend, who by then had turned 16 years of age. That assault was again aggravated by the circumstances that the victim suffered harm, the victim was a female and the offender was a male, and during the course of the assault the respondent threatened the victim with an offensive weapon.
The respondent indicated a plea of guilty to that charge on 11 September 2020 and stood to be sentenced on 11 November 2020. By reason of the earlier convictions for violent offences, the court was required to impose a minimum sentence of three months’ actual imprisonment unless satisfied the circumstances of the case were ‘exceptional’: Sentencing Act 1995 (NT), ss 78CA(3), 78DD, 78DI. The Local Court found that to be so, and sentenced the offender to imprisonment for three months, which was suspended immediately subject to conditions including that he not commit another offence punishable by imprisonment for a period of 12 months, that he be subject to supervision by a probation and parole officer, and that he attend and complete a men’s behavioural change program and family violence program if directed to do so by a probation and parole officer.
The appellant contends that the Local Court erred in finding that the circumstances of the case were ‘exceptional’ within the meaning of s 78DI of the Sentencing Act, and that the sentence imposed was manifestly inadequate.
‘Exceptional circumstances’
The proper approach to the assessment of ‘exceptional circumstances’ within the meaning of s 78DI of the Sentencing Act is stated by the Court of Criminal Appeal in The Queen v Duncan (2015) 34 NTLR 201. At [25], the Court adopted the formulation from R v Kelly [2000] 1 QB 198 at 208 in the following terms:
We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
By way of example, good character, youth and an early plea, even in combination, do not as a matter of law constitute ‘exceptional circumstances’ in the relevant sense, because that is a combination of circumstances which is regularly and routinely encountered in the sentencing context. Similarly, the fact that an accused has an unblemished record cannot, in and of itself, constitute ‘exceptional circumstances’ where the mandatory sentencing regime expressly contemplates the application of that regime to first offenders.
Subject to the application of the general principles from Kelly, the Court in Duncan went on to make the following observations (at [27]):
If, in determining a sentence, it is necessary to consider whether exceptional circumstances arise, the whole of the circumstances of the particular case must be considered. The “mitigating circumstances must be considered against a background of matters such as the egregiousness of the offending and the need for deterrence in determining whether they can be said to amount to exceptional circumstances” for the purpose of the legislation. Although individual factors may not be exceptional, the relevant factors, considered in combination, may amount to exceptional circumstances. Whilst reasons should be given for the exercise of the discretion, the exercise remains part of the overall instinctual synthesis that is undertaken by the sentencing judge.
Although the determination of ‘exceptional circumstances’ remains part of the intuitive synthesis in the sentencing process, that is subject to two important qualifications.
First, it is not enough to constitute ‘exceptional circumstances’ that the mandatory term may, in the ordinary conduct of the intuitive synthesis, be disproportionate to the crime, or that the court would otherwise have imposed some lesser sentence. The mandatory minimum and its exception govern the synthesis in the sense that it is not open to the sentencing court to determine what sentence should be imposed in the application of ordinary sentencing principles, and to find ‘exceptional circumstances’ on the basis that the sentence derived by that process is not a period of actual imprisonment equal to or greater than the mandatory minimum. That is so even where the imposition of the minimum period of imprisonment required by the legislation might be considered by the sentencing court to be unjust in the application of ordinary sentencing principles. Such an approach would involve an impermissible disregard of the legislative requirements: see, for example, Wright v Valladeres [2015] NTSC 59 at [16].
The second qualification is that fixing sentence in the ordinary conduct of the intuitive synthesis is a discretionary process, and appeals from determinations of that nature are subject to strictures: see, for example, Norris v The Queen [2020] NTCCA 8 at [3]; Clarke v The Queen [2019] NTCCA 2 at [51]; Whitlock v The Queen [2018] NTCCA 7; Bara v The Queen [2016] NTCCA 5 at [75]-[76]; Emitja v The Queen [2016] NTCCA 4 at [39]-[40]. However, the question whether ‘exceptional circumstances’ have been established involves a determination as to whether the facts as found fall within the scope of that term as properly construed. That is a finding which can be disturbed on appeal if it is found that the sentencing court has misdirected itself in law: see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 138.
During the course of the sentencing proceedings, counsel appearing for the respondent made the following submission:
Your Honour, I am instructed to make an exceptional circumstances plea and supporting that plea the following factors I rely on. Firstly, the age of the offender being 19 years of age. Secondly, that what I’ve already made reference to that this is his second sentencing exercise of any kind. And thirdly, that he’s complying on bail has been positive. He has followed what the court has – he’s followed the orders of the court. And so that is some demonstration that he might be able to comply with strict orders including the return back to the outstation that he was bailed to.
And thirdly, I was just – I was reading a digital copy of it but that he is been found suitable for supervision and that he’s been identified as suitable for the family violence program which is a meaningful program.
That was the extent of the matters which were, and could conceivably, be identified in support of the application for a finding of ‘exceptional circumstances’. The sentencing judge’s findings and reasons in relation to that application were as follows:
Mr Narjic, the law says that when you’ve assaulted someone, your girlfriend in the past, if you assault her again you should go to gaol for at least three months. It’s only in very exceptional circumstances that you don’t go to gaol. Unusually I am prepared to find exceptional circumstances today because you haven’t been in very much trouble at all. You’re 19, you have followed the bail conditions and there are programs that you can attempt in Wadeye which would hopefully ensure that you don’t get involved in this kind of trouble again.
Even looking behind and beyond the paucity of those reasons, and making due allowance for the exigencies of conducting a busy circuit court, that finding was clearly wrong. The combination of youth, a modest criminal history, compliance with bail and the possibility of rehabilitation, even in combination, do not as a matter of law constitute ‘exceptional circumstances’ in the relevant sense. That is a combination of circumstances which is regularly and routinely encountered in the sentencing context. To put it the other way, that is not a combination of circumstances which is out of the ordinary course, or unusual, or special, or uncommon. In fact, rather than constituting an exception to the ordinary course, they are decidedly usual circumstances.
That is so even accepting that what makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors. So far as the egregiousness of the offending and the need for deterrence were concerned, counsel for the accused had already conceded that it was ‘a serious example of domestic violence and gender violence’; that it was of ‘concern that the victim is only 16 years of age so her vulnerability is not only by virtue of the fact that there is a physical power imbalance in the relationship’; that the conduct specifically and the relationship generally ‘involves a degree of controlling behaviour and the violence that is associated is both concerning and degrading [to the victim]’; and that the accused had been sentenced only six weeks prior to the subject offending for the commission of a violent offence against the same victim when she was 15 years of age.
As the Court of Criminal Appeal and Full Court have observed, sentences cannot be designed to avoid the operation of mandatory sentences, minimum non-parole periods and other legislative imposts: Norris v The Queen [2020] NTCCA 8 at [41]-[45]; The Queen v Calica [2021] NTSCFC 2 at [140]. For the same reasons, a sentencing court cannot take an erroneously lax or liberal approach to the determination of ‘exceptional circumstances’ to avoid the operation of a mandatory minimum period of imprisonment. As already stated, that is so even (and particularly) where the imposition of the minimum period of imprisonment required by the legislation might be considered by the sentencing court to be unjust in the application of ordinary sentencing principles. As Gleeson CJ observed in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [23]:
… nothing would be more likely to damage public confidence in the integrity and impartiality of courts than judicial refusal to implement the provisions of a statute upon the ground of an objection to legislative policy. If courts were to set out to defeat the intention of Parliament because of disagreement with the wisdom of a law, then the judiciary's collective reputation for impartiality would quickly disappear.
The Local Court erred in finding that the circumstances of the case were ‘exceptional’ within the meaning of s 78DI of the Sentencing Act.
Manifest inadequacy
The principles governing inadequacy appeals are well-settled, and were described by the New South Wales Court of Criminal Appeal in R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at [29] as follows:
The right of the Crown to appeal against a sentence on the grounds of inadequacy is exceptional. However, where sentences imposed are so inadequate as to indicate error or departure from principle, or depart from accepted sentencing standards, they demonstrate error in point of principle which the Crown is entitled to have this Court correct. The case must be a compelling one before this Court will interfere. It is not sufficient that this Court would itself, in the position of the sentencing judge, have imposed a more severe sentence. However, sentences outside the permissible range of those the product of a properly exercised sentencing discretion prima facie manifest error. Even so, in the case of a Crown appeal, there remains a residual discretion as to whether the Court will interfere. (Footnotes omitted)
There is no doubt much to be said for the appellant’s submission that a sentence to imprisonment was warranted in the present case having regard to the objective seriousness of the offending; the use of a weapon; the vulnerability of the victim; the temporal proximity of the incident to the offender’s sentencing for an earlier assault on the same victim; and the significance which must necessarily be attached in the sentencing process to the protection of vulnerable women and children in Aboriginal communities. However, even having regard to those factors, and accepting that the sentence imposed was at the very lower end of the acceptable range, the sentence cannot be said to be so manifestly wrong that it requires appellate intervention on the ground of inadequacy.
There were a number of countervailing factors which arguably militated against the imposition of a sentence which involved an actual period of imprisonment. The offender’s prior criminal history was relatively modest, in that it was his second time before a court as an adult. He had complied with his conditions of bail. He was relatively young, and that required a heightened emphasis on rehabilitation. There was some hope that he might be rehabilitated with appropriate education (although for the reasons discussed further below, that optimism may have been ill-founded). Although those matters in combination could not be said to constitute ‘exceptional circumstances’, they might legitimately ground the imposition of a term of imprisonment which was effectively fully suspended.
Of course, that question would not have arisen for consideration had the sentencing court adopted the correct approach to the determination of ‘exceptional circumstances’.
Resentencing
Even where appellable error has been identified, the appeal court retains a residual discretion to refuse to correct a sentence in appropriate circumstances. The purpose of the residual discretion in relation to Crown appeals is to avoid injustice which might be caused to the respondent if the appeal is allowed. The relevant considerations will include the effect of any further resentencing on progress towards the respondent’s rehabilitation, delay, parity, the totality principle and fault on the part of the Crown: see Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at [43]; CMB v Attorney-General for New South Wales (2015) 256 CLR 346 at [69]; R v Wilson (2011) 30 NTLR 51 at [27].
Although events taking place after the imposition of the sentence cannot be taken into account in determining the appeal against sentence, they may bear upon the exercise of the residual discretion and they may assume relevance in any resentencing exercise should that become necessary. In the present case, the respondent was arrested on 6 June 2021 and remanded in custody on 7 June 2021 in respect of offending which was alleged to have taken place on 3 June 2021 during the period of supervision and the currency of the operational period.
The offences alleged are that the respondent committed an aggravated assault, went armed with an offensive weapon and engaged in conduct in breach of a domestic violence order. The victim of that alleged offending is the same victim of the offence under consideration in this appeal. While the further charges are presently contested and have yet to be resolved in the Local Court, they tell against any submission that a sentence to imprisonment would disrupt the respondent’s progress towards rehabilitation, or that the residual discretion should be exercised to dismiss this appeal notwithstanding the error identified. However, the sentence imposed will be backdated to 6 June 2021.
Disposition
The following orders are made:
1.The appeal is allowed.
2.The orders made by the Local Court on 11 November 2020 are set aside.
3.The respondent is convicted of the offence of aggravated assault charged by information taken on 2 April 2020 in file number 22011108.
4.The respondent is sentenced to imprisonment for three months, backdated to 6 June 2021.
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