Douglas v Dole and Ors

Case [2019] NTSC 80

CITATION:Douglas v Dole & Ors [2019] NTSC 80

PARTIES:DOUGLAS, Charlene

v

DOLE, Trent

WHITTINGTON, Robert

HARLAND, Maurice

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NOS:LCA 17 of 2019 (21845764); LCA 18 of 2019 (21845766); LCA 19 of 2019 (21901564); LCA 20 of 2019 (21904177); LCA 21 of 2019 (21914588)

DELIVERED:  15 October 2019

HEARING DATES:  2 September 2019

JUDGMENT OF:  Southwood J

CATCHWORDS:

CRIMINAL LAW – SENTENCING APPEAL – AGGRAVATED ASSAULT – EXCEPTIONAL CIRCUMSTANCES

Appeal against Local Court sentence for aggravated assault – Whether the sentencing Judge failed to properly exercise discretion to find exceptional circumstances under section 78DI(1) of the Sentencing Act – Exceptional circumstances means individual factors, when considered in combination, form an exception which is out of the ordinary course, or unusual, or uncommon – Sentencing Judge accepted the appellant had suffered domestic violence by the victim – Sentencing Judge found that information provided lacked particulars to establish exceptional circumstances consistent with reasoning in Orsto v Grotherr [2015] NTSC 18 – Sentencing Judge erred by failing to consider whether appellant’s subjective circumstances amounted to exceptional circumstances – Subjective circumstances included youth, lack of prior convictions, low level range of offending, good prospects of rehabilitation – When considered in combination subjective circumstances amounted to exceptional circumstances consistent with reasoning in Orsto v Grotherr [2015] NTSC 18 – Appeal allowed – Appellant re-sentenced

CRIMINAL LAW – SENTENCING APPEAL – AGGRAVATED ASSAULT AND CRIMINAL DAMAGE – MANIFEST EXCESS

Appeal against Local Court sentence – Whether sentence for aggravated assault and criminal damage and breach of bail are manifestly excessive – Whether sentencing judge failed to subjective factors – Neither possible nor necessary for an appeal court to reach any particular consideration concerning allocation of weight to a factor – Sentences of one month imprisonment imposed for aggravated assault and criminal damage not unreasonable or plainly unjust – Sentences imposed do not quash prospects of rehabilitation – Appeal dismissed

CRIMINAL LAW – SENTENCING APPEAL – Appellant applied to amend Notice of Appeal to add third ground of appeal that the sentencing Judge erred in finding that the appellant’s background did not explain offending – leave to amend Notice of Appeal refused

Sentencing Act1995 (NT) s 78CA(1), s 78DI, s 78DI(1), s 78DI(3)

AB v R [1999] HCA 46; Azzopardi v R (2011) 35 VR 43; 198 CLR 11; Baker v The Queen (2004) 223 CLR 513; Bugmy v The Queen (2013) 249 CLR 571; Dhamarrandji v Curtis [2014] NTSC 39; Forrest v The Queen [2017] NTCCA; Griffiths v The Queen (1989) 167 CLR 372; House v The King [1936] HCA 40; 55 CLR 499; Noakes v The Queen [2015] NTCCA 7; Ortso v Grotherr [2015] NTSC 18; R v Mills (1998) 4 VR 235; R v Tootell [2012] QCA 273; Smiler v The Queen [2018] NTCCA 2; The Queen v Duncan [2015] NTCCA 2; Wong…

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AGLC
Douglas v Dole [2019] NTSC 80
Case
[2019] NTSC 80
Decision Date

CaseChat Overview and Summary

In the matter of Douglas v Dole and Ors, the appellant, Douglas, was convicted of multiple criminal offences including aggravated assault and criminal damage. The Local Court had imposed a sentence on Douglas for these offences, and Douglas subsequently appealed the sentence on several grounds. The appeal was heard in the higher court which considered whether the Local Court had correctly exercised its discretion in sentencing, particularly in relation to whether there were exceptional circumstances that warranted a different sentence, and whether the sentence imposed was manifestly excessive. The court was also asked to consider an application by Douglas to amend the Notice of Appeal to include an additional ground of appeal.

The primary legal issue before the court was whether the Local Court had erred in its assessment of exceptional circumstances as defined under section 78DI(1) of the Sentencing Act. The court had to determine whether the appellant's personal circumstances, such as her youth, lack of prior convictions, low level range of offending, and good prospects of rehabilitation, constituted exceptional circumstances warranting a different sentence. Additionally, the court examined whether the sentence imposed for the offences of aggravated assault, criminal damage, and breach of bail was manifestly excessive, and whether the Local Court had failed to consider relevant subjective factors in its sentencing discretion.

In its judgment, the court held that the Local Court had indeed erred by not considering whether Douglas's subjective circumstances amounted to exceptional circumstances. The combination of her youth, lack of prior criminal history, low level range of offending, and good prospects for rehabilitation were factors that, when considered together, formed an exception that was out of the ordinary course or unusual. This aligned with the reasoning in Orsto v Grotherr [2015] NTSC 18. Therefore, the court found that the Local Court had failed to properly exercise its discretion by not acknowledging these factors as exceptional circumstances. Consequently, the appeal was allowed, and Douglas was re-sentenced by the higher court. The court also dismissed the appeal regarding the manifest excess of the sentence, finding the sentences imposed were not unreasonable or plainly unjust, and did not quash Douglas's prospects of rehabilitation. Furthermore, the application to amend the Notice of Appeal to include an additional ground of appeal was refused by the court.

In conclusion, the higher court allowed the appeal on the basis that the Local Court had failed to consider the appellant's subjective circumstances as exceptional, resulting in a re-sentencing. The appeal concerning the manifest excess of the sentence was dismissed. The application to amend the Notice of Appeal was also refused.

Orders

Orders of the court

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Background

Background to the litigation

Following are my reasons for doing so. The facts The facts of the aggravated assault on David Hoppner on file 21845764 are as follows. The appellant and David Hoppner were in a domestic relationship for six years. They lived together at Pearce Street, Katherine. On Tuesday, 2 October 2018 the appellant consumed an unknown quantity of alcohol. She and the victim were in their bedroom at Pearce Street. At 10:00pm the victim was awoken by the appellant swearing at him and calling him a “mother fucker”. The appellant continued to verbally abuse the victim for about an hour before the victim told the appellant to: “Shut up and stop talking or I’ll leave you for good.” The victim then left the room. He returned shortly after to get his wallet. When he returned the appellant had his wallet in her lap and she was cutting up his driver’s licence with a pair of scissors. The scissors were about 15 cm long with a pink handle. The victim retrieved his wallet from the appellant and began to walk away. As he did so, the appellant stabbed the victim behind his left knee. This caused a small laceration to the back of the victim’s leg and he was unable to walk properly. The victim left his residence and went to a family member’s residence on the Victoria Highway. He saw the police at that location and told them what had happened. St John’s ambulance arrived and the victim was taken to the Katherine Hospital where he received treatment for his injuries. At 12:05pm on Thursday, 4 October 2018 the appellant was arrested and taken to the Katherine Watch House. She participated in an electronic record of interview and made full admissions to the offending. The victim sustained a small puncture wound as a result of the assault and was in pain for days after. He had to use crutches in order to get around. In his victim impact statement made on 2 October 2018 the victim stated that his squatting was limited and he was limited when going up and down steps and slopes. He suffered a loss of confidence in the weight bearing capacity of his knee. He was upset for three days after the injury. The offending is serious offending because it involved the use of a pair of scissors which were adapted to be used as a dangerous weapon. The victim was stabbed from behind. He did not have an opportunity to defend himself and he sustained a significant wound. His wound had to be treated at the Katherine Hospital and involved the use of scarce medical resources. The facts of the aggravated assault on Simone Blutcher and the criminal damage on file 21845766 are as follows. The appellant thought Simone Blutcher was getting too close to David Hoppner. The other victim in the matter is Anglicare Residential facility at Kirkpatrick Street, Katherine. On 9 October 2018 the appellant and her co-offender had consumed some alcohol and they were intoxicated. At around midnight the appellant and her co-offender located the victim at the Shell service station on Katherine Terrace. The two offenders and the victim engaged in a verbal argument. The co-offender then punched the victim once to the right side of her face. The appellant punched the victim once to her forehead causing immediate pain and a large haematoma.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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