Elson v Ayton
[2010] ACTSC 70
•15 JULY 2010
PAUL EDWARD ELSON v GREGORY PAUL AYTON, ADAM MATHEW SALIBA AND MELANIE THEA SLAVIN-MOLLOY
[2010] ACTSC 70 (15 JULY 2010)
APPEAL – appeal from ACT Magistrates Court – domestic violence offences.
APPEAL – grounds of appeal – Sentencing Magistrate amended the sentences on the bench sheet without providing parties with an opportunity to be heard on the amendments - the sentences imposed were manifestly excessive - Magistrate failed to apply principle totality – maximum penalty imposed.
APPEAL – Some of the offences were committed while offender on bail – repetition of assaults on the victim.
Magistrates Court Act 1930 (ACT), ss 28, 216, 218, Div 3.10.2, Pt 3.10
Crimes (Sentencing) Act 2005 (ACT), ss 61, 208(1)(e)(i), Pt 3.2
Court Procedures Rules 2006 (ACT), rr 6000, 6906
Magistrates Court Practice Direction No 1 of 2009
Hemphill S, Smith R, Toumbourou JW, Herrenkohl TI, Catalano RF, McMorris BJ, Romanuik H, “Modifiable Determinants of Youth Violence in Australia and the United States: A Longitudinal Study” (2009) 42 ANZ Journal of Criminology 289
Saga v Reid & Anor [2010] ACTSC 59
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Arman v Wall & Anor [2008] ACTSC 61
Markarian v The Queen (1995) 228 CLR 357
R v Bell [2005] ACTSC 123
R v Hamid (2006) 164 A Crim R 179
Talukder v Dunbar (2009) 194 A Crim R 545
R v McKay [2003] NSWCCA 32
R v Ingram (NSWCCA, 2 August 1993, unreported)
Morrison v The Queen [2009] NSWCCA 211
Whyms v Rowe [2004] ACTSC 18
R v Harris (2007) 171 A Crim R 267
Kelly v Crowe and Anor [2009] ACTSC 77
Jones v The Queen (1989) 166 CLR 409
R v Gorman [2009] ACTSC 7
R v Popovski (No 2) [2008] ACTSC 95
Hatton v Harris [1892] AC 564
In the Marriage of BA and SF Money (1986) 10 Fam LR 966
Ninnis v Miller [1905] VLR 669
In Re Harrison’s Share Under a Settlement, Harrison v Harrison [1955] 1 Ch 260
Covington-Thomas v Commonwealth (No 2) [2007] NSWSC 1059
Burrell v The Queen (2008) 82 ALJR 1221
Cotter v Corvisy (2008) 1 ACTLR 219
Veen v The Queen (No 2) (1988) 164 CLR 465
Halden (1993) 9 A Crim R 30
Storey (1984) 6 Cr App R(s) 104
R v Hally [1965] Qd R 582
Agostino v Cleaves [2010] ACTSC 19
Everett (1994) 73 A Crim R 550
Bowman (1993) 69 A Crim R 530
Charnock v Coady and Ors [2010] ACTSC 26
Johnson v The Queen (2004) 78 ALJR 616
Felix v Smerdon (1944) 18 ALJ 30
Wishart v Fraser (1941) 64 CLR 470
Hadba v The Queen (2004) 182 FLR 472
R v JG [2005] VSCA 74
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 73 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 15 July 2010
IN THE SUPREME COURT OF THE )
) No. SCA 73 of 2009
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:PAUL EDWARD ELSON
Appellant
AND:GREGORY PAUL AYTON, ADAM MATHEW SALIBA AND MELANIE THEA SLAVIN-MOLLOY
Respondents
ORDER
Judge: Refshauge J
Date: 15 July 2010
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The sentences imposed in the Magistrates Court on 5 November 2009 are set aside.
Magistrates Court charge no 2009/5230 be amended by omitting ‘10 May 2009’ and substituting ‘9 May 2009’.
Counsel be heard before Paul Edward Elson is re-sentenced.
This appeal was commenced as an appeal against what was claimed to be a manifestly excessive total sentence imposed on the appellant, Paul Edward Elson, for a number of offences which occurred on three separate occasions but a further issue arose from a discrepancy between the order announced and the order ultimately executed on which I need also to adjudicate.
The court processes
Mr Elson was arrested on 6 April 2009 on a charge of damaging property after an incident at the house of his then partner, whose property he had damaged. He was apparently released on bail with a condition that he not contact his former partner and her child. On 1 July 2009, he pleaded not guilty and the charge was listed for a Case Management Hearing on 8 July 2009. On that day, the original damage property charge (under s 403 of the Criminal Code 2002 (ACT)) was withdrawn and a charge of damaging property (under s 116(3) of the Crimes Act 1900 (ACT)) substituted. Mr Elson pleaded not guilty to that charge and it was listed for hearing on 23 September 2009.
Despite the bail condition, Mr Elson was arrested again on 10 May 2009 for assaulting his former partner and damaging property that belonged to her. He was remanded in custody by the Magistrates Court but granted bail by this Court on 29 May 2009. The bail again included conditions that required him not to contact or approach his former partner. He pleaded not guilty to those charges on 13 May 2009 and the charges were also adjourned for a Case Management Hearing on 8 July 2009.
At that Case Management Hearing a further charge of assaulting his then partner on 10 May 2009, was preferred. The charge of damaging property on 6 April 2009 was, as was noted above, listed for hearing on 23 September 2009 and the matters arising out of the events on 10 May 2009, were listed for hearing on 2 November 2009.
Mr Elson was again arrested on 21 August 2009 after his former partner had complained to police of an assault she alleged he had committed on her on 15 July 2009, again in breach of his bail conditions, and in which she suffered actual bodily harm. He was taken before the court and remanded in custody. On 4 September 2009, Mr Elson entered a plea of not guilty and the charge was listed for Case Management Hearing on 16 September 2009, when it was adjourned to 30 September 2009 and again to 14 October 2009.
When the charge of damaging property on 6 April 2009 came on for hearing on 23 September 2009, the prosecution laid a further charge alleging an assault by Mr Elson on his former partner on 6 April 2009. Understandably, the learned Magistrate was unimpressed by this late preferring of the charge. Nevertheless, no objection was taken by Mr Elson’s counsel. It is incumbent on the prosecution and the police to ensure the timely preferring of charges and that neither the courts nor defendants are inconvenienced when there is no apparent reason for the failure to deal with a matter in a timely way. This is particularly so when the matters have undergone case management where the prosecution should have ensured that all preparation, which would include consideration of the proper charges to be laid, had been achieved. See Magistrates Court Practice Direction No 1 of 2009.
In any event, the charges were heard and the learned Magistrate found both offences proved. No appeal is taken from these findings. The sentencing proceedings were adjourned to 21 October 2009 and the Chief Executive was ordered to prepare a Pre-Sentence Report.
At the Case Management Hearing on 14 October 2009 for the charge of assault occasioning actual bodily harm on 15 July 2009, Mr Elson pleaded guilty to that charge and it was also adjourned to 21 October 2009 for sentence together with the charges on which Mr Elson had been found guilty.
The charges arising out of the incident on 9 and 10 May 2009 were then relisted on 21 October 2009. On that day, Mr Elson indicated that he would plead guilty to assaulting the victim (though whether one or two charges was to be the subject of representations) and the charge of damaging property. As a result, all charges were then adjourned to 5 November 2009 when sentence was imposed.
On 5 November 2009, it appears that it was accepted that pleas of guilty had been entered to all the charges arising out of the incident on 10 May 2009 and that both assault charges were proceeding. Sentence was imposed on both those charges also on that date.
The facts
Mr Elson and the victim of the assaults (and the owner of the damaged property) had been in what was described as an “on again off again” relationship since early 2008.
In broad terms, the learned Magistrate found the following facts about the first incident on 6 April 2009. At about 7.30 pm, the victim returned home from taking her daughter to see the child’s father. Her daughter was with her. Mr Elson was at the victim’s home and was very angry; he called the victim names. She felt intimidated and so she packed some clothes to leave the house. She put her daughter in the back seat of the car and sat in the front seat. Mr Elson came up to the car and punched the driver’s side window of the car and then, through him pulling it and punching it, the window “exploded”, shattering into the car. Mr Elson then punched the victim through the broken window, causing her nose to bleed.
As to the second incident, the victim was at home on 9 May 2009 when Mr Elson arrived, even though that was in breach of his bail conditions. The victim answered the door and saw Mr Elson who was intoxicated and aggressive. He forced his way into the house, pushing past the victim. He remained there for some hours, becoming physically violent towards the victim by pushing her as she attempted to move around the house. These acts appear to constitute the first assault. It appears, however, that this conduct actually occurred on 9 May 2009. I address this issue below (at [117] – 120]). Shortly after midnight, now on 10 May 2009, Mr Elson had a further argument with the victim while they were both in the kitchen. Mr Elson picked up a glass jar containing peanuts, belonging to the victim, and threw it on the floor, where it shattered. He then punched his fist through the plastic door of the microwave oven. These actions constituted the charge of damaging property. The victim went into the laundry and Mr Elson followed and put one arm around her and the other around her throat and called her a “whore” and a “worthless piece of shit”.
The third incident occurred when, again in breach of his bail conditions, Mr Elson attended at the victim’s home on 15 July 2009, this time with his teenage son. The victim was entertaining some guests and Mr Elson said he wanted to collect some of his belongings. He stayed until after the guests left and the victim fell asleep on a mattress. She awoke on feeling a sharp pain and found Mr Elson had grabbed her by the throat and was punching her in the face. He then kicked her in the legs and buttocks and continued to punch her in the face and head. The victim’s ten year-old son intervened and Mr Elson and his son left the premises while the victim’s son phoned the police from a neighbour’s house. Photographs of the victim tendered at the sentencing showed bruising to both her eyes. She was too intoxicated to be interviewed at that time but police spoke to her some time later.
It appears that, despite the bail condition, the victim had made contact with Mr Elson by phone. Indeed, after the incident on 15 July 2009, she contacted him 24 times, with expressions of affection for him.
Mr Elson’s circumstances
A Pre-Sentence Report was tendered and Mr Elson’s brother-in-law gave oral evidence. A report of the Court Alcohol and Drug Assessment Service (CADAS) was also tendered.
Mr Elson was born in Tasmania, having one sibling and five step-siblings. The family relocated to Canberra when he was five years old. He described his childhood as “horrific” as a result of physical and emotional abuse from his stepfather, leading to him spending time in the care of relatives to escape the violence. That relationship has improved somewhat recently, to the point where Mr Elson moved back to live with his mother and stepfather but, shortly after, his stepfather died. He has provided support for his mother who has also supported him and was present in court when Mr Elson was sentenced.
Mr Elson has five children, aged from six to seventeen, from three different mothers. He has had a closer relationship with his son aged 16 and, until he was arrested and refused bail, he was planning to live together with his son.
Mr Elson left school after Year 10 and worked as a labourer in the galvanising industry and in other areas of the building industry. By 2006, he was self-employed as a contracting roofer and painter. His employers described him as generally reliable and hard-working.
Mr Elson has a long history of alcohol misuse since he first began drinking at age 13. He has five convictions for drink-driving, somewhat confirming his problematic use of alcohol. Prior to his remand in custody on 20 August 2009, he was, he said, consuming less alcohol than before.
This is consistent with the evidence of Mr Elson’s brother-in-law, which was to the effect that he had seen a positive change in Mr Elson.
Mr Elson began using illicit drugs when he was 18 years old because, he said, he needed more of such help to deal with his childhood pain and associated anxiety and depression than the alcohol could provide. He described to the author of the Pre-Sentence Report daily use of cannabis and occasional use of amphetamines, heroin, cocaine and LSD.
He stated that in 2006 he had ceased using such substances, except cannabis, but relapsed into illicit drug use again from about July 2008 when he began using amphetamines daily.
He had not had much engagement with drug and alcohol counselling services. He was referred to ACT Health’s Alcohol and Drug Program following a court appearance on 10 June 2009 and commenced counselling with about four sessions prior to being sentenced. He was reported as being “highly motivated to remain abstinent”. His counsellor had also addressed issues of anger management.
Mr Elson’s brother-in-law explained that the relationship with the victim was a problematic one for it had led to a rift in the family with Mr Elson being ostracised, though the relationship was restored a few weeks before the death of Mr Elson’s stepfather. Mr Elson said he loved the victim and that, despite a protection order issued at the victim’s request requiring Mr Elson not to have contact with her, she had had contact with him. Mr Elson’s brother-in-law had seen telephone text messages from the victim after 15 July 2009 in which she had expressed her love for him. He acknowledged that Mr Elson had trouble in controlling his temper. He said that Mr Elson now recognised that his relationship with the victim was at an end.
Mr Elson has a disturbing criminal record, dating back to 1988. As noted above
(at [20]), he has five convictions for drink-driving offences. In addition, he has convictions for damaging property, assault, drug possession and a number of convictions for receiving and fraud. He has breached recognizances, contravened domestic violence orders and failed to appear after giving a bail undertaking. He has a number of convictions for driving when not authorised and other traffic offences. Most recently, he was convicted of a charge of destroying or concealing evidence. He was sentenced to imprisonment and, it appears, released from prison on 2 March 2009, just five weeks prior to the first of these offences.
Mr Elson’s brother-in-law gave evidence, much of which has been incorporated into the facts set out above. He did say that, despite Mr Elson’s long and disgraceful criminal history, he had never given character evidence for him before but he felt moved to do so on this occasion because of what he saw as a genuine change in Mr Elson, represented at least in part by the willingness of his family to reconcile with him and of his decision to move back to live with his mother and step-father. He also noted the intention of Mr Elson to make a home for himself and his son.
This is, of course, to be approached with caution because of the fact that the most serious of the offences, that was committed on 15 July 2009, and which took place in the presence of his son, occurred after the reconciliation with Mr Elson’s mother and stepfather, but before the latter’s death. Some of the expressions of this change, however, namely the care he provides for his mother after her husband’s death, occurred after this charge was committed.
Mr Elson’s brother-in-law also gave evidence that he had not seen Mr Elson become violent, even in difficult situations. He also spoke of the rather complex and problematic relationship between Mr Elson and the victim, where, for example, she obtained a personal protection order against him yet continued to contact him, with expressions of fondness and affection.
There was no challenge to the evidence of Mr Elson’s brother-in-law as to the change apparently made in Mr Elson’s attitude and behaviour, nor as to the difficult circumstances of his relationship with the victim.
Mr Elson’s brother-in-law also recounted a conversation he had with Mr Elson after 15 July 2009 where he urged him to put his relationship with the victim behind him and to “move on” and that Mr Elson had said more recently (it appears after 23 September 2009) that he did not have a desire any more to pursue a relationship with the victim.
Although there was some cross-examination and Mr Elson’s brother-in-law was confronted with some facts of the various offences which he had not known and which he did not condone, he was not directly challenged on his assertion that Mr Elson had gained some awareness and insight and had changed.
The sentence
The learned Sentencing Magistrate set out the facts of each offence in some detail. She noted Mr Elson’s release from prison shortly before the first of the offences was committed and that the subsequent offences were committed while on bail and in breach of the conditions of his bail. He had spent 95 days in custody on those offences, firstly before being granted bail by the Supreme Court and then after being arrested and refused bail on 21 August 2009.
Her Honour referred to the criminal history of Mr Elson and summarised his personal circumstances as disclosed in the Pre-Sentence Report. In particular, she referred to his drug and alcohol abuse. She did say that:
[t]he only counselling that he has received is a program that he has done since he has been in custody, and I suspect the only reason that he has done that is because he was in custody, because he certainly has not done anything to address his alcohol or drug taking behaviour to date.
On the material before her Honour that was not correct. The CADAS Report stated that Mr Elson had had counselling from the ACT Health Alcohol and Drug Program on 11, 22 and 29 June 2009 and another planned before sentencing, and none of these appointments occurred while he was in custody nor prior to the third incident. Thus, her Honour may have taken a somewhat less favourable view of his attempts to address his alcohol and drug abuse than was warranted.
Her Honour also expressed the view that he “appears to be blaming the complainant”. This was, probably not unfairly, based on the comment in the Pre-Sentence Report that:
Mr Elson referred to the victim having “messed with my head” a number of times. He elaborated by stating that the victim might have intentionally behaved in ways to confuse him about the status of their relationship.
Her Honour also noted, with respect quite correctly, that what was particularly concerning in relation to the first and third offences was that they were committed in the presence of young children. Her Honour also noted that Mr Elson had been assessed as at a high risk of re-offending.
Her Honour referred to the pleas of guilty in relation to the second and third set of offences, though not entered at an early date and that this entitled him to some discount. Her Honour commented, with respect quite correctly, “his behaviour has to be condemned”.
Her Honour considered options, including a community service order and service of a term of imprisonment by periodic detention and came to the view, again with respect quite correctly, that a term of immediate full-time imprisonment was inevitable.
Her Honour then imposed sentence. In order to understand it, I set out the charge numbers assigned to the various charges in the Magistrates Court as follows (with the maximum penalty in brackets) after each charge:
9455 assault on 6 April 2009 (two years’ imprisonment)
7174 damage property on 6 April 2009 (fifty penalty units ($5,000 fine) or imprisonment for six months or both)
5230 assault on 9 May 2009 (two years’ imprisonment)
5231 damage property on 10 May 2009 (fifty penalty units ($5,000 fine) or imprisonment for six months or both)
7170 assault on 10 May 2009 (two years’ imprisonment)
8457 assault occasioning actual bodily harm on 15 July 2009 (five years’ imprisonment).
Because of its importance in the appeal, I set out verbatim the sentence articulated by the learned Sentencing Magistrate:
HER HONOUR: And the total sentence that I intend to impose on these offences is a sentence of 48 months, and a period of 24 months non-parole period. And I will go through the charges one by one. On charge 9455, which is the first assault relating to 6 April, he will be convicted and sentenced to 15 months’ imprisonment. On the damage property charge relating to that same date, being 7174, he will be convicted, sentenced to 6 months’ imprisonment, concurrent. Upon 9455, on the assault relating to 10 May, that is 5230, he will be convicted, sentenced to 15 months’ imprisonment, consecutive upon 7174. Had it not been for his plea of guilty, I would have sentenced him to 18 months’ imprisonment on that charge.
On charge 5231, he will be convicted, sentenced to 6 months’ imprisonment, concurrent upon 5230. On 7170, the other common assault relating to that same date, being 10 May 2009, he will be convicted, sentenced to 6 months’ imprisonment, and that is concurrent. I will make that concurrent with 5231, but that really is concurrent with the penalty on the first assault. And on the assault, the last one, 8457, the assault occasioning actual bodily harm, he will be convicted, sentenced to 18 months’ imprisonment, and that is consecutive upon 7170.
So the total head sentence, by my calculations, is 48 months. He is to serve 21 months’ non-parole period.
MR WANIGARATNE: Sorry, your Honour, was it 21 or 24?
HER HONOUR: 24 months.
MR WANIGARATNE: 24, thank you.
HER HONOUR: The sentence is to start on 2 August 2009, taking into account the time that he has spent in custody. And I should say that had it not been for his plea of guilty on that charge I would have sentenced him to 2 years’ imprisonment rather than 18 months. The sentence is to start on 2 August 2009 and sentence is to end on 1 August 2013, and the non-parole period to end on 1 August 2011.
MR WANIGARATNE: May it please the court.
MS HAYUNGA: As the court pleases.
HER HONOUR: Thank you, Ms Hayunga.
The court then adjourned.
Events after sentence
A careful tabulation of the sentences imposed shows an inconsistency in what has been stated in summary, apparently intended, and what has been imposed.
Her Honour stated that she intended to impose a sentence of 48 months with a non-parole period of 24 months. In fact, however, the cumulation that her Honour articulated actually imposed a sentence of 30 months, though still with a non-parole period of 24 months, except that this would then be quite disproportionate to the head sentence and need express explanation.
The bench sheets, reproduced in the appeal books, show sentences imposed in accordance with what her Honour articulated, that is, a total of 30 months.
There are, however, manuscript amendments to the bench sheets, apparently in each case in the same hand as the original entries and which her Honour had signed. Thus, on charge 5230, the sentence was originally expressed to be consecutive on the sentence on charge 7174, but that number has been crossed through and 9455 substituted and, on charge 8457, the sentence was originally expressed to be consecutive on 7170 but that number has been crossed through and 5230 substituted.
When the amended substitutions are included in calculating the total sentence, it then brings the total period of imprisonment to 48 months. This is, of course, not only what her Honour summarised the sentence to be, but what was consistent with the dates of commencement and ending of the sentences her Honour specified.
It would appear that the sentences actually imposed were, therefore, inconsistent with her Honour’s intended sentence, but the actual sentences were what was stated and what was initially written on the bench sheets.
Appeal
On 13 November 2009, Mr Elson lodged a notice of appeal himself. He appealed from the sentence imposed on the ground of “the severity of the sentence, totality in sentencing”. He sought “appealing for concurrently [sic] sentences”.
Under s 216 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act), the lodging of the Notice of Appeal stays “the enforcement or execution of the ... sentence or penalty appealed from”. Mr Elson was, however, not granted bail and has remained in custody. Thus, on the appeal, consideration needs to be given to the period of custody between the date of filing the Notice of Appeal and the date on which the appeal is determined which, at present, is not a period of custody during which he is serving the sentence imposed.
Jurisdiction
Part 3.10 of the Magistrates Court Act provides for appeals to this Court from decisions to which, inter alia, Div 3.10.2 of that Act applies. Sentences of imprisonment made, as were the sentences imposed on Mr Elson, under Pt 3.2 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) are, under s 208(1)(e)(i) decisions which may be the subject of such an appeal.
In Saga v Reid & Anor [2010] ACTSC 59, I set out the principles upon which such appeals are to be conducted, when I wrote (at [44]):
The principles on which such appeals are to be conducted seem, on the basis of the authorities, to be as follows:
1.The Court should only exercise its powers to intervene where, having regard to all the evidence before it, including any further evidence admitted on the appeal, the order appealed from is demonstrated to result from some legal, factual or discretionary error.
2.In finding the facts, the appellate court is in as good a position as the lower court, to decide the proper inferences to be drawn from the undisputed facts where no oral evidence is given in the court below, or the Trial Judge’s findings based on oral evidence are not challenged. The appellate court must, however, give respect and weight to the conclusion of the Magistrate, although, once having reached its own conclusion, must give effect to it.
3.The sentence imposed must not be overturned simply because the appellate court would have imposed a different sentence at first instance but error must be found in the decision of the lower court.
4.A legal, factual or discretionary error may be found where the Lower Court, inter alia, has taken into account irrelevant considerations or failed to take account of relevant considerations, made an error of law, acted on a wrong principle or mistaken the facts.
5.The error may not be a specific error that can be identified but that the sentence is manifestly excessive, unreasonable or manifestly inadequate. In such a case, error may be inferred, given that the sentence is excessive, unreasonable, inadequate, unjust or wrong. From that inference, of course, there must be able to be drawn the conclusion that a different sentence is appropriate.
6.Despite the finding of error, it is still necessary to show that the sentence is manifestly excessive, unreasonable or manifestly inadequate and, in the event that this is not shown, the proper approach is to dismiss the appeal rather than to allow the appeal and re-impose the same sentence.
Appellant’s submissions
Mr K Archer, who represented Mr Elson, submitted that the learned Sentencing Magistrate was not empowered to alter the sentences actually imposed, even if they differed from what was intended, without at the very least hearing from the parties. This was, it was contended, a fundamental error of law which required appellate intervention.
Assuming then that the “summary” of the sentence was the proper sentence that was imposed, namely 48 months with a non-parole period of 24 months, Mr Archer submitted that the sentence was manifestly excessive. He submitted that her Honour had not applied the principle of totality, which was succinctly and authoritatively set out by the High Court in Mill v The Queen (1988) 166 CLR 59 (at 62-63) as follows:
The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed (1979), pp 56-57, as follows (omitting references):
The effect of the totality principle is to require a sentence 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 the appropriate sentence for all the offences’.
See also Ruby, Sentencing, 3rd ed (1987), pp 38-41. Where the principle fails to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
This was qualified more recently by the High Court in Pearce v The Queen (1998) 194 CLR 610 (at 623-4) as follows:
To an offender, the only relevant question may be ‘how long’, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.
Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
(footnotes omitted)
It was submitted that the sentence was manifestly excessive and that her Honour had not applied the principle of totality.
Specific challenges were made to individual sentences and also to the structure of the total sentence. Thus, it was submitted that the circumstances of the first assault on 9 and 10 May 2009, when Mr Elson pushed the victim around the house without actually striking her, was not as serious as the assault on 6 April 2009 when he actually punched her, though the same sentence was imposed.
It is curious that the second assault on that day, which was when Mr Elson put his arm around the victim and around her throat, was punished by a sentence of six months’ imprisonment. It may be that her Honour mistook the facts of the two offences and imposed a sentence for the latter on the former charge and vice versa. It does call for particular care when offences which are charged in identical language, represent quite different factual circumstances and, as in this case, different levels of seriousness.
While the incident where Mr Elson put his arm around the victim’s throat occurred while he was on bail and in breach of his bail conditions, even it may not be as serious as the assault on 6 April 2009, when Mr Elson actually punched the victim causing her nose to bleed. This is especially so when it must be accepted that there was a plea of guilty to the charges relating to the incidents on 9 and 10 May 2009 but not to those on 6 April 2009.
Mr Archer further challenged the complete accumulation of the charges as between incidents, submitting that the head sentence represented a period of incarceration “that would normally be reserved for a more serious pattern of offending behaviour”.
Mr Archer also challenged the non-parole period which, while proportionately unexceptional in relation to the total head sentence referred to by her Honour, would be too high if the overlong head sentence was reduced and, further, did not take into account Mr Elson’s change of attitude to which his brother-in-law had attested.
The failure to “have a last look” was also challenged by Mr Archer, relying on what had been said by Penfold J in Arman v Wall & Anor [2008] ACTSC 61.
The sentences for the summary offences of damaging property were also challenged by Mr Archer. The maximum penalty was imposed for each. They were imposed concurrently with the more serious sentences committed on the relevant day, but unless they are properly imposed, they amount to a breach of the principles set out in Pearce v The Queen set out above (at [55]). Further, since they were the charges on which some of the sentences were actually accumulated, they do, in fact, have an effect on the length of custody which Mr Elson has to serve.
The respondents’ submissions
The respondents noted that, as enunciated by the High Court in Markarian v The Queen (1995) 228 CLR 357 (at 372), the starting point for any sentencing is the maximum penalties provided by the legislature for the offences.
The respondents conceded that this made the sentences imposed for the offences of damaging property to have been imposed erroneously since the maximum was imposed and the learned Sentencing Magistrate “did not however provide reasons as to why she sentenced [Mr Elson] to the maximum penalty ... [and that her Honour] did not identify that the offences were examples of the most serious kind”.
The respondents noted, however, that all the offences were offences of family violence and in the case of two of the incidents, were perpetrated in the presence of children.
The respondents referred to what fell from Higgins CJ in R v Bell [2005] ACTSC 123 where his Honour said (at [30]):
It is a pernicious and evil phenomenon not only because of the immediate trauma to the victim. Its evil spreads to children as well ... It used to be regarded as a family matter, to be kept very private. Victims would be made to feel humiliated and ashamed to complain; in truth it is the criminal conduct of the perpetrator which is at fault. It is entirely in the public interest that such conduct be exposed and deterred.
With respect, I adopt what his Honour there said. See also what Johnson J said in R v Hamid (2006) 164 A Crim R 179 (at 191-6 [65]-[88]).
As I noted in Talukder v Dunbar (2009) 194 A Crim R 545 (at [32]), such assaults in the presence of children are rightly to be regarded as serious. See also R v McKay [2003] NSWCCA 32.
The courts see, time and again, that those who appear before them as offenders have often been witness to domestic violence committed against their mother. It is unsurprising then that criminological studies show that family conflict is a very relevant risk factor precipitating youth violence. See Hemphill S, Smith R, Toumbourou JW, Herrenkohl TI, Catalano RF, McMorris BJ, Romanuik H, “Modifiable Determinants of Youth Violence in Australia and the United States: A Longitudinal Study” (2009) 42 ANZ Journal of Criminology 289.
It is clear that the courts have a duty to express the community’s particular interest in denouncing family violence especially by appropriately severe sentences where it is aggravated by being committed in the presence of children. Where this occurs, it not only increases the humiliation and sense of powerlessness of the victim, but it is also likely to cause real psychological damage to the children and risks creating offenders of the children themselves. The courts must show that this is unacceptable and to be condemned as such.
The respondents also relied on the fact that the offences committed in the second and third incidents had been committed while Mr Elson was on bail. Mr A Doig, who appeared for the respondents, relied on what fell from Wood J (as his Honour then was), with whom Cripps JA and James J agreed, when in R v Ingram (NSWCCA, 2 August 1993, unreported), his Honour said (at 4):
The only means open to criminal courts to provide the necessary level of protection to the community is to pass severely deterrent sentences upon those who abuse their conditional release from imprisonment.
That this is a matter which renders the offences committed the more serious cannot be doubted: Morrison v The Queen [2009] NSWCCA 211.
The plea of guilty was a relevant factor; though not entered at an early opportunity, it was entered prior to the date on which the hearing of the relevant charges was listed.
The respondents also submitted that Mr Elson had no significant subjective circumstances, that he showed little remorse or insight into his offending behaviour, that his drug and alcohol abuse was largely unaddressed and that there was no significant “ability” to rehabilitate. These, perhaps, put these matters too highly in the light of the evidence given at the sentencing hearing.
Reference was also made to Mr Elson’s appalling criminal history, which included, as noted above, a conviction for contravention of a protection order made in respect of this victim. Mr Elson had committed the first of these offences soon after his release from a sentence of imprisonment. Mr Elson had been given previous good behaviour orders which had been breached.
Mr Elson was 42 at the time of sentencing.
As to totality, the respondents referred to what Connolly J had said in Whyms v Rowe [2004] ACTSC 18 where at [18] his Honour said:
Whether sentences should be made concurrent or cumulative is of course a matter for judicial discretion.
Reference was also made to what the NSW Court of Criminal Appeal said in R v Harris (2007) 171 A Crim R 267 in which the court dealt at some length with the issue of concurrency and cumulation. Though a lengthy passage, it is worth setting out in full what the unanimous court said (at 275-6 [38]-[46]):
38Offences of the nature of those committed by the Respondent each involve their own loss or damage, in part in the sense of physical damage and goods taken and in part in the unease, disquiet, and feeling of violation such offences engender. With rare exceptions, each involves a different victim or group of victims and a separate exercise of an offender's will. Even an offender who decides to spend his day breaking and entering makes separate decisions as he goes along a street, considering which houses are occupied, which may be entered undetected and which are likely to most productive of gain. Similarly in the case of car stealing or use. Although the offences may all share the same motivation, such as an offender's need for money or goods with which to indulge a drug addiction, each involves its own separate criminality. Putting aside cases where there is a significant difference in the nature of the offences, an offender's criminality is greater by reason of committing three offences rather than one or two.
39In Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372 at [45] the High Court made it clear that a sentence should be appropriate for the offence for which it is imposed. It is a corollary that no sentence should reflect criminality extending beyond the particular offence to which it relates. Thus, if additional or greater criminality inherent in the commission of second, third and subsequent offences is to be punished at all, some accumulation of sentences is almost always required. As was also said in Pearce (at [49]:-
Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in conduct which were the subject of punishment on each count.
40An increase in the number of offences will commonly also demonstrate a need for greater weight to be given to many if not all of the purposes of sentencing and for the effective sentence to be longer that if only one offence had been committed. Making sentences wholly concurrent means that the second and subsequent effectively constitute no punishment and sends a clear message to those members of the criminal community who chose to live by breaking and entering and stealing or the like that once they have committed one or a few offences, they can continue offending with virtual impunity so far as sentences are concerned. Absent good reason, it should not occur -- see R v Brown [1999] NSWCCA 323 at [24]; Mungomery (2004) 151 A Crim R 376 at 381.
41Considerations of general and personal deterrence demand that the courts signal to would-be offenders, many of whom in this area are serial offenders, that they can expect punishment for each of their offences.
42Nor is it an adequate reason for complete concurrency that a group of offences such as breaking, entering and stealing may be of the same type or committed as part of one criminal spree. As the Court has sought to point out, implementation of a decision to commit another offence will generally involve more loss and damage, and more victims. When it does, there is also a greater entitlement of the community to retribution.
43Of course at times there will be good reason for complete concurrency. One is where some offences are little more than incidents of, or incidental to, others. Thus had the possession of the jemmy been charged rather than placed on a Form 1, and there been no other evidence as to its use beyond what I have stated, it would not have been inappropriate to make that sentence wholly concurrent with the sentence for the offence in which it was used. Were an offender charged with break, enter and steal also charged with having custody of the same goods, it would be a rare case where anything other than concurrent sentences for those offences would be appropriate.
44Implementation of the principle of totality is perhaps the most common circumstance where concurrency of sentences is justified. However it is important that that principle be properly understood and applied. Perhaps the leading statement of it is an extract from D A Thomas, "Principles of Sentencing" endorsed in Mill v R (1988) 166 CLR at 59 at 63:-
The effect of the 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 sentence is `just and appropriate'.
45Two points may be made. Firstly, the principle is expressed in terms of coming back from the result of a simple aggregation. Secondly, if each individual sentence is appropriate for the criminality of the offence to which it relates, prima facie additional criminality requires an increase in sentence. Obviously the totality principle imposes limits to that last proposition but those limits will rarely if ever go so far as to justify wholly concurrent sentences for all of a series of offences such as those here. Subject to those limits, in general, sentences significantly cumulative should be imposed for separate serious offences of which those here are all examples.
46In this connection the Court endorses the remarks of Sully J, though as a member of a two judge bench, in R v Wheeler [2000] NSWCCA 34. At [36] -- [37] his Honour said:-
... (There) is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose.
It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour.
The respondents, however, conceded in their written submissions that her Honour erred in:
· not providing reasons for sentencing the offender to the maximum penalty for the offences of damaging property;
· not applying the principles of totality.
In oral submissions, Mr Doig also conceded that her Honour was in error in amending the bench-sheets and, therefore, the sentences in the manner in which she did. His submission, however, was that the matter should be remitted to the Magistrates Court so that her Honour could resolve the apparent inconsistency in the proper way, namely, by hearing submissions from the parties in open court.
Consideration
Amending the sentences(a)
It is worrying that this appears to be the second occasion on which the learned Sentencing Magistrate has altered a sentence in chambers without reference to the parties.
There is no doubt that this is improper. Indeed, on the earlier occasion involving her Honour, Higgins CJ in Kelly v Crowe and Anor [2009] ACTSC 77 described (at [15]) such an amendment as beyond power.
It is essential in matters as important as sentencing, especially where the liberty of the offender is at stake, that sentences are imposed in the proper exercise of power and that a prisoner is not at risk of serving a term of custody which is longer than that which has been properly imposed.
Courts must be scrupulously careful when dealing with the complex process of imposing sentences for multiple offences to see that the law is respected and properly applied. This requires attention to the complexity of sentencing for multiple offences and may be time consuming. If time is needed to ensure compliance with the law, then that must be taken, even at the risk of some delay and even in a busy Magistrates Court. See Saga v Reid& Anor (at [27]).
In this case, her Honour’s intention as to sentence was tolerably clear but she did not carry it out in the sentences actually imposed.
It is possible that such a problem could be rectified under the “slip rule” provided for in r 6906 of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules). This would appear to apply to criminal proceedings. See r 6000 of the Court Procedures Rules: Jones v The Queen (1989) 166 CLR 409 (at 415); R v Gorman [2009] ACTSC 7. Even though it specifies that the court may correct an error “of its own initiative”, I cannot accept that, except in the most exceptional circumstances, it can do so without at the very least giving the parties notice and an opportunity to be heard: R v Popovski (No 2) [2008] ACTSC 95. This is, it seems to me, clear from the approach enunciated by the House of Lords in Hatton v Harris [1892] AC 564 (at 560). It follows from the point made by Barblett J in In the Marriage of BA and SF Money (1986) 10 Fam LR 966 (at 969) that, when an order is varied, the proceedings are re-opened. Proceedings which are before the court can ordinarily only be taken when the parties are present or, at least, have had due notice of the proceedings. As Holroyd J said in Ninnis v Miller [1905] VLR 669 (at 670), though in a slightly different statutory context, “the rules do not provide for anything being done in the absence of the defendant, and for obvious reasons”.
In my view, the proper procedure, where the Court, of its own initiative, seeks to amend an order is that followed by Roxburgh J in In Re Harrison’s Share Under a Settlement, Harrison v Harrison [1955] 1 Ch 260 (at 267):
I directed the registrars concerned not to proceed further [to enter the orders orally pronounced] as I desired to hear further argument and to inform the parties accordingly. As a result the parties are before me again at my invitation and on my initiative ...
Thus, in Covington-Thomas v Commonwealth (No 2) [2007] NSWSC 1059, Kirby J, recognising shortly after his Honour delivered judgment that there had been an error in the calculations in it, wrote to the parties identifying the error and listed the matter for mention before him.
In the event that an error is such that the court considers it sufficiently de minimis that, as an exceptional matter, it can deal with it without relisting the matter before the parties, such as where only one day of the sentence is involved, then it behoves the court, at the very least, to provide the parties with a judgment showing the amendment: R v Popovski (No 2), R v Gorman. The amendments made by her Honour cannot be considered to be in this category.
In particular, they have the effect of altering the substance of what has in fact been ordered. This is not permitted: Burrell v The Queen (2008) 82 ALJR 1221 (at 1227 [21]). If her Honour thought it was possible to amend her sentences under r 6906 she should have at least given the parties an opportunity to be heard.
In the event that s 61 of the Sentencing Act was relied upon by her Honour, this expressly requires notice to the parties. It provides, relevantly:
(1)This section applies to a criminal proceeding (including a proceeding on appeal) in which a court has –
(a)made a sentence-related order that is contrary to law; or
(b)failed to make a sentence-related order that is required to be made by law.
...
(3)The court may reopen the proceeding (on the application of a party to the proceeding, or on its own initiative) and may, after giving the parties an opportunity to be heard, do either or both of the following:
(a)...
(b)amend any relevant finding of guilt, conviction, sentence or order.
I must say, with respectful deference to what appears to have been said by Higgins CJ in Kelly v Crowe and Anor, that this section does not seem to apply in these circumstances, as it requires as a precondition under s 61(1) that the sentence (or other order) to be varied has to have been made contrary to law or to have failed to have been made as required by law. Absent further argument, I do not see that a failure to summarise a series of sentences mathematically correctly is made contrary to law or a failure to make an order as required by law. This is classically what the slip rule is designed to address.
In any event, whichever course is to be followed, the parties should have in this case been given an opportunity to be heard and this failure amounts to an error which requires the sentences, now apparently being served to be set aside.
(b)Sentences on the charges of damaging property
As I noted in Cotter v Corvisy (2008) 1 ACTLR 219 (at 305 [24]), it is a long-established principle of sentencing that the maximum penalty for any offence is reserved for the cases falling within the worst category cases for which the penalty is prescribed and for which an offender is to be sentenced.
As was noted by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465, however, (at 478):
That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category.
The essence of these particular offences is the damage done, which is the starting point for a consideration of the offence. However, as Lush J said in Halden (1993) 9 A Crim R 30 (at 36) “the circumstances in which the damage is caused will be relevant to sentence.” It is, as Murphy J said in the same case (at 38-39);
[A] crime which may be committed in a very wide range of circumstances. The property damage may vary from a book to a mansion, and no doubt the penalty to be imposed will be tempered according to the nature of the property and the damage done.
Again, the amount of the damage does not necessarily determine the range of penalty, as Mustill LJ said in Storey (1984) 6 Cr App R(s) 104 (at 107):
the real seriousness of the offence lay not in the figures, but in the intent, which underlay what [the accused persons] did. It was wrong to select a duration of a sentence by reference simply to the very extensive damage which [the accused] happened to cause.
In each case, the damage was not considerable: a car window, a plastic microwave door and a glass jar. There is nothing in the amount of damage done to suggest that the offence was in the worst category.
The circumstances were that, in the first case, Mr Elson wished apparently to stop the victim leaving and he broke the car window to get at her. While this is serious, it is important not to increase the seriousness because of the subsequent offence, though the interaction between the two clearly makes the question of concurrency appropriate.
In the second case, the damage was part of the argument Mr Elson was having with the victim and it seemed to be an exercise designed to cause distress to the victim. Again, this makes it somewhat more serious but not specially aggravated.
There were no matters of aggravation of either offence such as planning or premeditation, nor so far as the method of causing damage, the type of property damage (though breaking the microwave door did mean that the victim could not use it, at least immediately, to warm her baby’s bottle) or the time or place where the offences occurred, the purposes for which the damage was caused, apart from as noted above, or the circumstances in which they were committed.
A careful analysis shows that neither was an offence in the worst category of such offences. While it is not the law that the maximum penalty can never be imposed, it does not seem to me that these were not cases calling for the maximum penalty and the learned Sentencing Magistrate gave no reasons for asserting that it was appropriate.
It was suggested that, as the penalties were made wholly concurrent with the offences of personal violence committed on each occasion, there is no practical consequence of the finding on this ground of appeal. That, however, depends on the cumulation of the offences. In the articulated sentence, a reduction in the length of these sentences would reduce the total sentence by the amount by which the sentences on these offences were reduced.
Manifestly excessive and totality(c)
In the first instance, Mr Elson says that the sentence on the second assault committed on 10 May 2008, namely 15 months, was excessive when considered in the light of the sentence for the assault committed on 6 April 2008. The former involved Mr Elson abusing the victim and then he “placed his left arm around the Victim and placed his right arm around the Victim’s throat”. He did say, during the argument, that “he would kill her and hurt her”. The latter involved Mr Elson smashing the window of the victim’s car and then punching her with a closed fist in the nose and eye area and resulting in her nose bleeding.
There were other differences. The latter offence had been committed in front of the victim’s young two year old child. In addition, he had defended the charge and was found guilty. These make it more serious.
While Mr Elson had pleaded guilty to the former charge, albeit at a late stage, the offence was not apparently committed in the presence of the victim’s child (who was, however, in the bedroom). On the other hand, the offence was committed when Mr Elson attended at the victim’s premises in breach of his bail conditions.
This is to be considered also in the context where the more serious charge of assault occasioning actual bodily harm, also committed in the presence of children and when Mr Elson attended in breach of his bail conditions, was visited with a sentence of 18 months imprisonment, only three months more than for the other assaults.
It does seem to me that the sentence for the second assault committed on 10 May 2008 is, in those circumstances, manifestly excessive. The respondents did not appear to challenge such a conclusion.
The second challenge Mr Elson made on the sentence was that by merely accumulating the sentences for the three episodes, the learned Sentencing Magistrate cannot have been said to have applied the principle of totality. The respondent’s conceded in the appeal that her Honour had not applied that principle.
That must be so, for while her Honour had made some sentences concurrent, they were made wholly concurrent (which is a little more ambiguous because of the “one incident” principle: R v Hally [1965] Qd R 582 (at 584)). There was not even a reference to the principle of totality in submission or otherwise (cf Cotter v Corvisy (2008) 1 ACTLR 299 (at 310 [54])).
The learned Sentencing Magistrate did say “I have considered all of the relevant sentencing principles and the purposes of sentencing”. This is a problematic statement. While a sentencer is not required to detail each and every purpose and principle of sentencing for each and every sentence, such a phrase cannot assure an appellate court that a relevant principle has been actually considered, especially if there is no real indication in the sentence or sentencing remarks that this has been done. Thus, such a statement cannot show that a sentencer has properly considered the effect of a plea of guilty. Similarly, it cannot in this case show that her Honour has actually adverted to and applied the principle of totality. It is incumbent on a sentencer to show not merely that such an important principle has been considered, but how it has manifested itself in the sentence imposed.
In Agostino v Cleaves [2010] ACTSC 19 (at [59]), I said of the ground of manifest excess:
59.In Hawkins v Hawkins [2009] ACTSC 148 (at [39] to [54]), I addressed this ground. It requires that:
1.the nature of the offence and the circumstances of the case ‘must afford convincing evidence that in some way the exercise of the [sentencing] discretion has been unsound’: Cranssen v The King (1936) 55 CLR 509 (at 520);
2.the appeal court give due allowance for any advantage that the sentencing judge has as to having seen the witnesses and possibly the accused: R v Geddes (1936) 36 SR(NSW) 554 (at 556);
3.the manifest excess must be explained and the reasoning must support the conclusion: Dinsdale v The Queen (2000) 202 CLR 321 (at 325-6);
4.where possible, a reference to the general pattern of sentencing is used to show the ‘collective wisdom of other sentencing judges’: Ellis (1993) 68 A Crim R 449 (at 460); Oliver (1980) 7 A Crim R 174 (at 177); and
5.the court must consider all the relevant factors, including the maximum penalty provided for the offence, the sentencing pattern for the offence, the place the conduct occupies in the scale of seriousness of crimes of that time and the subjective characteristics of the offender: R v Morse (1979) 23 SASR 98 (at 99).
The comparative material I have referred to can be more problematic where the issue is more one of totality in relation to multiple sentences, for the likelihood of the same combination of such multiple offences occurring in any comparable way is quite remote. One must, then, look at questions of whether the combination of sentences exceeds the combined culpability of the offender, whether it is crushing and whether it can be said to be just and appropriate when viewed against the criminality as a whole. A crushing sentence is one which leaves the offender with a feeling of hopelessness (Everett (1994) 73 A Crim R 550 (at 559) or, perhaps more relevant here, one which may have an adverse effect on the offender’s prospects of rehabilitation (Bowman (1993) 69 A Crim R 530 (at 539)).
I accept that a total term of imprisonment for four years is a severe sentence and that it is expected that such a sentence would be imposed for more serious culpability than is here evidenced.
There are, of course, two ways in which the sentences can be re-adjusted to take account of the moderation that the principle of totality can have an effect on a sentence: it can require partial accumulation and partial concurrence of multiple sentences or it can require an individual sentence to be reduced: Charnock v Coady and Ors [2010] ACTSC 26 (at [84]). The former method is to be preferred: Johnson v The Queen (2004) 78 ALJR 616 (at 624 [26]).
I have carefully considered the nature and circumstances of the offences. They are serious, repetitive and accompanied by circumstances of aggravation (namely that two of them were committed whilst Mr Elson was on bail). I have also considered the sentences imposed and, in my view, there are problems with both the length of some of the sentences and the total accumulation. As a result, I consider that the appeal should be upheld and Mr Elson re-sentenced.
Date of the offences in the second incident(d)
There is one final small matter that requires attention. As noted above (at [13]), it appears from the Agreed Statement of Facts that the first assault in May 2009 was, in fact, committed on 9 May 2009 and not in the early hours of the morning of 10 May 2009, which is when the agreed facts show the other offences occurred. The charge however, specified the date of the offence as being 10 May 2009.
Neither counsel nor the learned Sentencing Magistrate made reference to this. Both counsel referred to the pushing (which clearly seems to have occurred on 9 May 2009) to have constituted one of the charges of assault.
The Magistrates Court has power, under s 28 of the Magistrates Court Act, to amend an information which varies from the evidence adduced. There are limits, so that such power cannot be used to amend so as to change it to what is effectively a different offence: Felix v Smerdon (1944) 18 ALJ 30. The date on which an offence occurs, however, is not essential to an offence unless an element of it: Wishart v Fraser (1941) 64 CLR 470 (at 486). Thus, the particular provided, namely the date, does not in this case invalidate the offence.
Clearly in the circumstances, there is no injustice to Mr Elson in making an amendment to the date. I do consider that s 218 of the Magistrates Court Act, a provision which gives wide powers to the court (Hadba v The Queen (2004) 182 FLR 472), is sufficient to permit me to amend the information to reflect the evidence. That is to say, I will direct that the charge of assault numbered CC 2009/5230 be amended by omitting “10 May 2009” and substituting “9 May 2009”.
The sentencing
I do not consider that it is necessary to adjourn for the purposes of re-sentencing Mr Elson. I have all the material that was before the learned Sentencing Magistrate and neither party sought that I do so. I have set it out in these reasons and take it into account.
As I have noted already, a number of times, these offences are serious, particularly because they are offences of family violence, some committed in the presence of children, some committed whilst on bail and in breach of conditions of that bail. The repetition of assaults on the victim also makes the offences serious.
I accept that Mr Elson pleaded guilty to four of the six offences, though not at an early date. I also accept that he has come to a realisation that his relationship with the victim is at an end and that he is attempting to change his way of life.
He has a bad criminal record, but he is not to be further sentenced for that, though it reduces the capacity for further leniency.
In my view, no other sentence than a sentence of imprisonment is appropriate on each of the charges. Nevertheless, the sentence imposed should not stand. I will set aside the sentences imposed and re-sentence him.
Using the charge number in the Magistrates Court (see [40]), I propose to sentence Mr Elson as follows:
9455 12 months' imprisonment. Had he not pleaded guilty, I would have imposed 15 months imprisonment;
7174 4 months' imprisonment. Had he not pleaded guilty, I would have imposed 5 months imprisonment;
5230 6 months' imprisonment. Had he not pleaded guilty, I would have imposed 8 months imprisonment;
5231 4 months' imprisonment. Had he not pleaded guilty, I would have imposed 5 months;
7170 10 months' imprisonment. Had he not pleaded guilty, I would have imposed 12 months imprisonment;
8457 18 months' imprisonment. Had he not pleaded guilty, I would have imposed 2 years imprisonment.
In order to ensure that the sentences are not crushing, I propose to make the sentences concurrent and cumulative following the principles enunciated by the Victorian Court of Appeal in R v JG [2005] VSCA 74 (at [22]):
The sentence on charge 8457 is to commence on 2 August 2009. The sentence on charge 9455 is to be partially concurrent with the sentence on charge 8457 to the extent of 6 months making a sentence of 24 months. The sentence on charge 7174 is to be partially concurrent on charge 9455 to the extent of 3 months, making a sentence of 25 months. The sentence on charge 5230 is to be partially concurrent on charge 7174 to the extent of 3 months making a sentence of 28 months. The sentence on charge 5231 is partially concurrent on charge 5230 to the extent of 3 months making a sentence of 29 months. The sentence on charge 7170 is to be fully cumulative with the sentence on charge 9455 making a total sentence of 34 months.
I have carefully considered this period and I am of the view that it adequately, but not excessively, punishes Mr Elson for the offences and reflects the total criminality.
I propose to set a non-parole period which will reflect the change of attitude to which Mr Elson’s brother-in-law attested and the steps that he has taken to address his alcohol and drug use. I propose to set a non-parole period of 15 months to commence on 2 August 2009 and to end on 1 November 2010.
Before imposing those sentences, I shall hear counsel as to whether there is any reason why these sentences should not be imposed.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 15 July 2010
Counsel for the appellant: Mr K Archer
Solicitor for the appellant: Legal Aid Office (ACT)
Counsel for the respondents: Mr A Doig
Solicitor for the respondents: Director of Public Prosecutions (ACT)
Date of hearing: 28 May 2010
Date of judgment: 15 July 2010
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