Dixon v Dennien
[2015] NTSC 8
•10 FEBRUARY 2015
Dixon v Dennien [2015] NTSC 08
PARTIES:DIXON, Franklin Jasper
v
DENNIEN, Jonathon
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:21400567
(JA 59 of 2014)
APPEAL FROM: COURT OF SUMMARY JURISDICTION
DELIVERED: 10 FEBRUARY 2015
HEARING DATES: 21 OCTOBER 2014
JUDGMENT OF: BLOKLAND J
CATCHWORDS:
CRIMINAL LAW – Justices appeal – Sentence – Manifestly excessive –
Exceptional circumstances – Individual head sentences not manifestly
excessive – Totality – Provocation – Underlying factor relevant to all
offences – Single course of conduct – Appeal allowed in part – Appellant re-
sentenced.
Sentencing Act 1995 (NT), ss 5, 50, 52(3), 78DI.
Cranssen v The Queen (1936) 55 CLR 509; Ellis v The Queen (2005) 154 A Crim R 450; Hooton v The Queen [2011]; Kelly v The Queen (2000) 10 NTLR 39; NTCCA 2; Mill v The Queen (1998) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; Salmon v Chute (1994) 94 NTLR 1; Smith v The Queen [2011] NSWCCA 209; Tomlins v The Queen [2013] NTCCA 18; Williams v The Queen [2013] NTCCA 12; Wong v The Queen (2001) 207 CLR 584, referred to.
Thomas, D.A., Principles of Sentencing, (2nd ed 1979).
REPRESENTATION:
Counsel:
Appellant:R. Roy
Respondent: L. Brown
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: Blo1503
Number of pages: 21
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINDixon v Dennien [2015] NTSC 08
21400567
BETWEEN:
FRANKLIN JASPER DIXON
Appellant
AND:
JONATHON DENNIEN
Respondent
CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 10 February 2015)
Introduction
This is an appeal against sentences imposed on 24 July 2014 in the Court of Summary Jurisdiction at Katherine.
On 3 July 2014 the appellant pleaded guilty to three counts of unlawful assault with circumstances of aggravation. All charges included circumstances of aggravation: harm, and threaten with an offensive weapon. Two counts included the circumstance of aggravation that the appellant was a male and the victim was a female. Additionally, the appellant pleaded guilty to two counts of criminal damage.
The maximum penalty for each count of aggravated assault is 5 years imprisonment. Mandatory minimum sentences apply to those counts. The maximum penalty for the criminal damage counts is 14 years imprisonment.
It is convenient to reproduce the helpful table prepared on behalf of the respondent setting out the date of the offence, charge, applicable maximum and minimum penalties and the penalty ultimately imposed:
Date of
offence
Charge
Maximum Penalty
Mandatory minimum sentence
Penalty imposed
2 Jan 2014
Aggravated assault- harm, offensive weapon, male/female
5 years
12 months (level 5 offence, second or
subsequent offence)14 months
(victim-Mavis Robbo)
2 Jan 2014
Aggravated assault- harm, offensive. weapon (victim Nikki Robbo)
5 years
3 months (level 3 offence, second or subsequent offence)
6 months
2 Jan 2014
Aggravated assault- harm, offensive weapon, male/female (victim- Anne Robbo)
5 years
3 months (level 3 offence, second or subsequent offence)
6 months
2 Jan 2014
Damage to property
14 years
N/A
4 months
aggregate2 Jan 2014
Damage to property
14 years
N/A
4 months
aggregate
The terms of imprisonment imposed for each count of aggravated assault were ordered to be served cumulatively. An aggregate term of imprisonment for the two counts of criminal damage was ordered to be served concurrently with the other sentences. The total term of imprisonment was 26 months. It was ordered that the term of imprisonment be suspended after 12 months. The appellant was ordered to be subject to supervision and comprehensive conditions for a period of 12 months after release. The sentence was ordered to commence on 29 May 2014, taking account of the time the appellant had already spent in custody.
Material before the Court of Summary Jurisdiction
For various reasons, the plea and sentencing proceedings took place over several days and a number of appearances.
(i) Agreed Facts
On the morning of 3 July 2014, the appellant entered pleas of guilty to the five counts. The agreed facts read to the Court of Summary Jurisdiction were as follows:[1]
In the afternoon on 2 January 2014, the defendant, Franklin Dixon, consumed a quantity of intoxicating liquor in the Katherine region rendering him intoxicated.
Between the hours of 4:00PM and 5:00PM the defendant attended a camp area behind Tin House 3 Walpiri Camp where the victims, Mavis Robbo, Nikki Robbo and Anne Robbo were located.
The defendant began arguing with victim 1, Mavis Robbo, about money and cigarettes.
Victim 2, Nikki Robbo, and victim 3, Anne Robbo, walked off to avoid confrontation.
The defendant became angry with victim 1 and armed himself with a metal star picket he located on the ground.
The defendant hit the victim 1 to the back of her head with a star picket causing immediate pain and a laceration to the victim’s head.
Victim 1 fell to the ground and the defendant struck the victim again with the star picket to her lower back causing a large welt.
The defendant followed victim 2, Nikki Robbo, and confronted him about walking away. The defendant struck victim 2 with the star picket across victim 2’s arm.
The defendant then confronted victim 3, Anne Robbo, and struck the victim on her left hip causing pain and bruising.
After assaulting victim 3, Anne Robbo, the defendant entered into tin house 3 and smashed the television and two pedestal fans, belonging to victim 3, by punching them.
The defendant then removed bedding belonging to victim 3, Anne Robbo, and set them alight using a lighter destroying them.
The defendant attended the campsite behind tin house 3 and set alight the campsite which included a portable stove and gas bottle belonging to victim 2, Nikki Robbo.[2]
On 3rd January 2014, the defendant was arrested and conveyed to the Katherine watch house where he participated in an electronic record of interview.
When asked why he assaulted victim 1, Mavis Robbo, the defendant stated “she keep swearing me, I gets shit from her every time. She’s the one black witch of the house”.
When asked why he assaulted victim 2, Nikki Robbo and victim 3, Anne Robbo, the defendant stated “because I got angry, because of that witch made me sick”.
When asked if he had permission to assault victims 1, 2 and 3 the defendant stated he didn’t.
When asked if he had permission to damage to property or set fire to property the defendant stated he didn’t.
The star picket used by the defendant is defined as an offensive weapon as per the weapons control act.
Victims 1, Mavis Robbo and 2, Anne Robbo are female and the defendant is male.
Victim 1, Mavis Robbo, suffered harm by receiving a laceration to her head and welt to her back which required treatment Katherine District Hospital.
Victim 3, Anne Robbo, suffered harm in the form of bruising to her thigh which caused her pain but did not required treatment at hospital.
The television was valued at $450 and the fans were $69 each. Victim 3, Anne Robbo, is seeking restitution for the damages.
At this time there is no estimation of value for the tarpaulin, portable stove or gas bottle.
(ii) Appellant’s Previous Convictions
The ‘Information for Courts’ showed the appellant’s previous convictions were primarily for traffic matters, particularly for the offence of drive unlicensed. Those previous matters were of no or only marginal influence on the sentencing process. The record showed the appellant also had two previous convictions for drink driving, which while similarly could only be of marginal influence, sheds some light on a history of alcohol use, a factor in the offending the subject of the offences being dealt with by the Court. Of greater significance, the ‘Information for Courts’ showed the appellant was previously dealt with for one count of aggravated assault on a female and was fined $240. The penalty imposed indicates the previous matter was not in a serious category of offending for sentencing purposes, as acknowledged by the learned magistrate.
(iii) Victim Impact Statements, Photos and Medical Report
Victim impact statements were tendered. Mavis Robbo told the Court her head bled, that it was painful and she was scared. Nikki Robbo told the Court his leg bled and that he couldn’t move his arm properly for 2 – 3 days. He said he was frightened and hurt by what the appellant did to his arm. As a result of the damage to his property he said he had to buy all of his clothes again, another tent, mattress and a blanket to build his camp. He said he did not want anything more to do with the appellant. Anne Robbo told the Court she was really sore as a result of the assault and that the appellant made her scared and it shook her up.
Before the Court were photos of the injuries to Mavis Robbo and to Nikki Robbo. It is obvious the victims would have felt pain and were frightened. A medical report tendered described that the scalp wound to Mavis Robbo was cleaned and sutured. She received intravenous fluid hydration, a tetanus vaccination and was observed overnight. The scalp laceration was described as 5cm full thickness, with left flank swelling and overlying erythema 15cm long. The injuries to Nikki Robbo and Anne Robbo are not at the same level of gravity as Mavis Robbo’s injuries.
(iv) Appellant’s Subjective Circumstances
In relation to the appellant’s circumstances, the appellant’s counsel told the magistrate that the appellant was 28 years of age, born in Katherine but that he grew up in Yarralin. He was the second youngest of five siblings. One of his brothers was deceased. His upbringing was described as difficult. The appellant’s father died when he was three; his mother was an alcoholic and had little involvement with him. He was raised by an aunt in the community. He did not have much contact with his mother (Mavis Robbo) at all. The Court was told he attended primary school in Yarralin and then attended Kormilda College for five years. His reading and writing skills were described as good. He returned to Yarralin after finishing school. He commenced drinking at that time, at the age of 17. In terms of his work history, he obtained work at Yarralin store for a couple of years and volunteered at the local school. He worked in aged care for approximately four years, between the ages of 18 and 21. He was employed at the Victoria Daly Shire Council as a receptionist for the Centrelink agent from 2008 to 2011. He then went to Darwin for a few months and his employment ceased. The magistrate was told he had experienced difficulty obtaining employment since that time. It was submitted he had a reasonable employment history, given his circumstances.
(v) Submissions and evidence relevant to “Exceptional Circumstances”
Counsel for the appellant submitted “exceptional circumstances” were made out within the meaning of s 78DI of the Sentencing Act. It was submitted the reaction of the appellant was an out of character act and that it was provoked.
Reference was made to the Précis disclosing an argument between the appellant and Mavis Robbo. By way of background to the argument, counsel told the magistrate that the appellant was raised primarily by his auntie, but nevertheless he got on well with his stepfather, an Arthur Dixon, whose wife is Mavis Robbo (the appellant’s mother and the victim with respect to count one). Arthur Dixon was said to be a positive person in the appellant’s upbringing. By contrast with Arthur Dixon, there had been a history of animosity between Mavis Robbo and the appellant. The appellant does not have children and is a single man. Counsel told the magistrate that the reason for that is that the appellant is gay. The Court was told that being gay is something that members of the appellant’s community have great difficulty accepting. Mavis Robbo shared this lack of acceptance. The Court was told that for years the appellant had been subjected to taunts and verbal abuse by Mavis Robbo about being gay and on the occasion of the offending, he snapped.
It was pointed out to the magistrate that the appellant told police in the record of interview that they were arguing before the incident but he did not disclose to police the actual reason for the argument; he disclosed that she was verbally abusing him but did not tell police that the abuse was about his sexuality. Counsel told the magistrate that that was the reason he lost self-control and that the magistrate could infer loss of control from the appellant’s behaviour. It was acknowledged the appellant’s actions were a complete overreaction, but it was submitted that the level of his loss of control was demonstrated by the fact that he set fire to his own property. The appellant’s counsel acknowledged that alcohol could not be taken into account in terms of what constitutes exceptional circumstances, however, he submitted alcohol was a relevant factor in relation to how the appellant came to be in the circumstances surrounding the provocation and why he may have lost control after provocation. It was acknowledged this did not explain why the appellant hit the two other members of the family (Anne Robbo and Nikki Robbo) and he could not provide a satisfactory explanation for that offending, other than his “complete and utter loss of self-control”.[3]
The Court was asked to take into account the appellant’s background and conclude that compared to other people who ordinarily come before the courts, this was an exceptional case. It was submitted that exceptional circumstances were made out by the combination of the appellant’s background, the context of the provocation and the remorse that had been shown through his admissions. The appellant’s plea was entered at the contest mention stage, after representations were accepted on his behalf. Subsequent delay was said not to be of the appellant’s making. The Court was asked to consider the combination of factors rather than a single factor in isolation when assessing exceptional circumstances. The learned sentencing magistrate was asked to consider the principles set out in s 5 of the Sentencing Act, and to impose a sentence that was just in all of the circumstances.
The prosecutor reminded the Court of the need to do justice to the victims. The prosecutor said the attack was vicious with a metal star picket on two 56-year-old women and a 54-year-old male. Two of the victims had walked away and the appellant walked after them. In relation to the appellant’s sexuality, the prosecutor told the magistrate the appellant’s sexuality would not change. The magistrate then indicated she would like to hear evidence from the appellant and acknowledged the question of whether exceptional circumstances had been made out would be a difficult decision.
On the afternoon of 3 July 2014 the appellant gave evidence about his relationship with Mavis Robbo. His evidence was that since his childhood she had argued with him because he was homosexual. She had called him a mother fucker and gay just before he assaulted her.[4] The appellant’s evidence was not contradicted and was accepted by the learned magistrate.
(vi) The learned magistrate’s ruling and reasons
In ruling that there were exceptional circumstances, the learned magistrate said:
“It is a difficult decision to make in relation to Mr Dixon’s. I had him give evidence to me today because I wanted to find out from him his personal feelings and why those personal feelings over spilled on that day in relation to Mavis Robbo, his birthmother.
It is clear that Mr Dixon was uncomfortable in giving evidence about his sexuality and his relationship with his birthmother about that sexuality. It is clear to me that he was not accepted by his birthmother partially because of his sexuality. That is certainly a circumstance that can be taken into account. Mr Karpeles put to me, and I accept, that exceptional circumstances must be taken into-I take into account all the circumstances to decide whether or not these circumstances are exceptional.
[the magistrate then referred to the previous conviction, confirming the indication was that it was a minor assault]
These assaults are very serious. Weapons are used and physical harm caused.
I accept Mr Dixon’s explanation as to his relationship between him and his birthmother, and it must have been difficult for him to have that relationship with her.
Should I not find exceptional circumstances Mr Dixon will have to spend at least 12 months imprisonment – actual imprisonment. Mr Dixon is a 28-year-old man who does not have a history of violence except for that minor assault.
For the reasons of his relationship with his birthmother, for his early plea of guilty on these serious charges, for his sincere remorse for what he has done, for the hurt which he has felt in relation to his mother’s inability to accept his sexuality – for all those reasons I find there are exceptional circumstances.”
The learned magistrate then indicated that because it was serious offending the appellant would be assessed for supervision as the head sentence would be substantial and consideration would be given to a partially suspended sentence. The matter was then adjourned.
On 24 July 2014, the appellant was sentenced. The magistrate re-iterated the high level of seriousness of the offending. It was noted that two of the victims walked away before being assaulted. The magistrate confirmed the finding that “exceptional circumstances” applied.[5] The offending was also found to be out-of-character. The appellant’s “relative youth”, lack of history of violence and sincere remorse were all noted.[6] In terms of sentencing principles, the magistrate emphasized general deterrence and the need to protect the community.
Consideration of the grounds of appeal:
(i) That the learned magistrate erred in imposing a sentence that was manifestly excessive in all the circumstances;
(ii) That the learned magistrate erred in failing to give effect to the principle of totality.
The principles relating to an appeal against discretionary orders including sentences are well known. An appellate court will only interfere if the sentencing judge was in error by the sentencer acting on a wrong principle or misunderstanding, or wrongly assessed an important feature of the case.[7] The sentence may be such that in all of the circumstances the conclusion is reached that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.[8] To persuade a court to accept a sentence is manifestly excessive, an appellant must show that the sentence is clearly and not just arguably so.[9] The presumption is that there is no error.[10]
No complaint could be made about the emphasis by the magistrate on the principles of general and specific deterrence, however, having found exceptional circumstances, those mitigating factors comprising exceptional circumstances might be expected to be reflected in a meaningful way in the sentence. Nevertheless, having regard to all of the features of the case, including importantly the level of provocation, I would not conclude that the individual head sentences in respect of any individual counts were manifestly excessive. Some of the individual head sentences may be close to the limit of the bounds of the discretion. The offending was serious. That is beyond question. General and specific deterrence clearly were the predominant sentencing factors. Evidence was however given and accepted to be of such significance that exceptional circumstances were held to be made out. Although this did not of course require the imposition of the minimum terms or less than those terms, there was a sound basis for the reflection of those factors to significantly inform the sentence. While this appears to be reflected with respect to the suspension of the terms of imprisonment for counts 3 and 4, it is less clear how those factors informed the sentence with respect to count 2. The set of circumstances forming both the background and the immediate genesis of the offending were indeed unusual and exceptional as the learned magistrate found. Although provocation no longer excuses offending, save for murder being reduced to manslaughter, it remains a strong factor in mitigation, reducing culpability, depending on the gravity of the provocation.[11]
As the provocation and other circumstances must have been considered to be more than moderate to the point of a finding of exceptional circumstances, the minimum term should have reflected this consideration and in my view, was excessive in all of the circumstances of this particular case. Having found exceptional circumstances, and as noted above the magistrate indicated that without such exceptional circumstances being found the appellant would “have to spend at least 12 months imprisonment – actual imprisonment”, the magistrate ordered 12 months imprisonment be served after receiving a favourable supervision report.
On behalf of the appellant, much was made in argument about the learned magistrate not expressing how the early plea was taken into account in finally setting the sentences. On 3 July 2014, (as indicated above) the magistrate said the early plea was one of the reasons for the finding of exceptional circumstances.[12] When it came to sentencing on 24 July 2014 however, the magistrate accepted the appellant was remorseful but made no mention of the appellant’s early pleas, nor indicated what adjustment to the sentence would be given for the pleas. It is obviously desirable that a sentencer indicate the extent to which, and the manner in which, a plea of guilty has been given weight as a mitigating factor.[13]
It is clear however, the magistrate did have regard to the pleas of guilty. The pleas were specifically mentioned in relation to the finding of exceptional circumstances. In relation to the finding of sincere remorse, although not expressly said to be linked with the plea of guilty, given the sentencing remarks were in response to submissions that emphasised the pleas and remorse, this could not be said to be a case where a failure to articulate how the pleas have been taken into account has led to an error in sentencing.
If I am in error in respect of the conclusion in relation to the minimum term, in my view the full accumulation of all sentences for the three assaults has led to the imposition of an excessive sentence. The appellant has demonstrated that there should have been some partial concurrency. Although I agree with counsel for the respondent that in terms of considering the magistrate’s reasons, the magistrate’s remarks need to be considered over each day, rather than solely on 24 July when the sentence was passed, it is still apparent that the ground in respect of totality is made out. It is acknowledged that in respect of the criminal damage charges, an aggregate sentence was passed; however, the significance of those counts and the criminality demonstrated by that offending was not central to the gravity of the offending overall. In any event, although an issue of sentence structure, rather than an error as to the exercise of discretion, it should be noted the aggregate sentence for the charges of criminal damage was not authorised by the Sentencing Act. An aggregate sentence cannot be imposed if one of the offences in the information is a violent offence.[14] As I have found error separately, this will be corrected in re-sentencing the appellant.
While it is undoubtedly the case that the provocation was operative with respect to the assault on the first victim Mavis Robbo, the most serious of the assaults, it is clear the loss of control as a result provocation was an underlying fact relevant to all of the offending, both to the assaults and the property offending. It has been acknowledged by the appellant there was no explanation as to why the personal feelings in relation to Mavis Robbo continued with respect to the two other victims who walked away to avoid confrontation. However, clearly those assaults were very closely connected in terms of time and the sequence of events that should have informed the sentence as a whole. The provocation played a casual role in the commission of all offences.
Application of the principle of totality is the last step in the sentencing process. Section 50 of the Sentencing Act creates the prima facie position that terms of imprisonment are to be served concurrently unless the court orders otherwise. If the total effective term infringes the principle of totality, accumulation of particular sentences should be moderated.[15] Section 50 of the Sentencing Act is strongly reflected in the common law. In Mill v The Queen, totality was described as follows:[16]
“The effect of totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to, take a last look at the total just to see whether it looks wrong, ‘when….. cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is put the appropriate sentence for all the offences’”.
Although the sentence must reflect that three individuals were assaulted, including two victims who were not themselves alleged to be responsible for the provocation, totality is still required to be addressed. The cumulative sentence should not exceed the overall culpability of the offender.[17] In assessing overall culpability, the focus should be on the commonality in the underlying facts and circumstances of the offences. Notwithstanding some of the offending was sequential, it was still one course of conduct, with a common cause behind all of the offending, both the property offending and the assaults. The common cause should have been reflected in some measure of concurrency with respect to the assaults.
Orders
The appeal will be allowed in part. The head sentences remain. The appellant is re-sentenced.
The total effective term is 21 months imprisonment suspended after the service of 10 months commencing on 29 May 2014. The head sentences remain but the structure is as follows:
Count 2:Convicted and sentenced to 14 months imprisonment, commencing on 29 May 2014.
Count 3:Convicted and sentenced to 6 months imprisonment, commencing after the service of 10 months of the sentence on count 2.
Count 4:Convicted and sentenced to 6 months imprisonment, commencing after the service of 5 months on count 3.
Count 5:Convicted and sentenced to 4 months imprisonment, commencing on 29 May 2014.
Count 6:Convicted and sentenced to 4 months imprisonment, commencing on 29 May 2014.
The total effective term is therefore 21 months imprisonment, suspended after the service of 10 months imprisonment on the same conditions as ordered by the Court of Summary Jurisdiction. I confirm the operational period will be one year from the date of release.
*********************************
[1] Exhibit 1.
[2] “A tarpaulin shelter” was struck out of the agreed facts as the tarpaulin was found to be the property of the appellant.
[3] Transcript, Court of Summary Jurisdiction, 3 July 2014, 8.
[4] Transcript, Court of Summary Jurisdiction, 3 July 201, 17.
[5] Transcript, Court of Summary Jurisdiction, 24 July 2014, 2.
[6] Ibid.
[7] Cranssen v The Queen (1936) 55 CLR 509.
[8] Wong v The Queen (2001) 207 CLR 584, [58].
[9] Hooton v The Queen [2011] NTCCA 2, [23].
[10] Salmon v Chute (1994) 94 NTLR 1, 24 (Kearney J).
[11] See e.g Williams v The Queen [2013] NTCCA 12, dealing with manslaughter on the basis of provocation; Smith v The Queen [2011] NSWCCA 209, [26].
[12] Transcript, Court of Summary Jurisdiction, 3 July 2014, [18].
[13] Kelly v The Queen (2000) 10 NTLR 39, [27].
[14] Tomlins v The Queen [2013] NTCCA 18; Sentencing Act s 52(3).
[15] Ellis v The Queen (2005) 154 A Crim R 450, 452.
[16] (1998) 166 CLR 59, 63, quoting from Thomas, Principles of Sentencing, (2nd ed, 1979), 56-57, (omitting references).
[17] Postiglione v The Queen (1997) 189 CLR 295, 340.
0
14
1