Emitja v The Queen
[2016] NTCCA 4
•21 October 2016
Emitja v The Queen [2016] NTCCA 4
PARTIES: EMITJA, James
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:No. CA 15 of 2015 (21419050)
DELIVERED: 21 October 2016
HEARING DATES: 20 July 2016
JUDGMENT OF: GRANT CJ, KELLY and BARR JJ
APPEALED FROM: SOUTHWOOD J
CATCHWORDS:
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – JUDGMENT AND PUNISHMENT
Whether sentence was manifestly excessive having regard to the circumstances of the offending and the appellant – the exercise of the sentencing discretion having regard to the protection of society clearly permissible provided that the purpose not simply preventative detention and provided that sentence does not go beyond what is proportionate to the crime – appellate court interferes only if error in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence – incumbent on the appellant to show that the sentence was not just excessive but manifestly so – function of appellate court to minimise disparities of sentencing standards while maintaining the reasonable and just area of discretion of sentencing judge – sentencing standard not a fixed range departure from which will necessarily found demonstrable error – the absence of a factor which would elevate the seriousness of the offending not a matter of mitigation – not established that the sentencing judge acted on a wrong principle or misunderstood or wrongly assessed some salient feature of the evidence – not established that the sentence was clearly and obviously excessive – appeal dismissed
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – JUDGMENT AND PUNISHMENT
Whether sentencing judge erred in failing to set a non-parole period – court may only determine not to fix a non-parole period if it would be inappropriate to fix a non-parole period having regard to the nature of the offence, the past history of the offender or the circumstances of the particular case – appellant’s moral culpability for offending was very high – considerations of deterrence and community protection attracted a particular weighting at that stage of the process – prospects of rehabilitation bleak given extensive criminal history – neither necessary nor desirable for the appellant to be released after some minimum period of imprisonment had been served – not shown that discretion miscarried in determining that the fixing of a non-parole period was inappropriate – appeal dismissed
Criminal Code ss 177, 181, 429
Sentencing Act (NT) ss 5, 53Albert v The Queen [2009] NTCCA 1, Veen v The Queen (No 2) (1988) 164 CLR 465, applied
AB v The Queen (1999) 198 CLR 111, Amagula v White (unreported, Supreme Court of the Northern Territory, 7 January 1998), Bugmy v The Queen (1990) 169 CLR 525, Bulmer & Ors (1987) 25 A Crim R 155, C v Gokel [1999] NTSC 93, Channon v The Queen (1978) 20 ALR 1, Cheung v The Queen (2001) 209 CLR 1, Cole v The Queen [2010] NTCCA 2, Daniel (1997) 94 A Crim R 96, Daniels v The Queen (2007) 20 NTLR 147, Director of Public Prosecutions (Vic) v Gull [2003] VSCA 123, Fardon v Attorney-General (Qld) (2004) 223 CLR 575, Fernando (1992) 76 A Crim R 58, JAW v The Queen [1996] 5 NTLR 211, JKL v The Queen [2011] NTCCA 7, Liddy v R [2005] NTCCA 4, Lodhi v The Queen (2007) 179 A Crim R 470, Mawson v Nayda (unreported, Supreme Court of the Northern Territory, 31 October 1995), Meissner v The Queen (1995) 184 CLR 132, Morrow v The Queen [2013] NTCCA 7, Najpurki v Luker (1993) 117 FLR 148, Power v R (1974) 131 CLR 623, R v Allinson (1987) 49 NTR 38, R v Anzac (1987) 50 NTR 6, R v Bannerman (unreported, NSWCCA, 10 March 1995), R v Crabbe (1985) 156 CLR 464, R v Duncan (1983) 9 A Crim R 354, R v Isaacs (1997) 41 NSWLR 374, R v Jabaltjari (1989) 46 NTR 47, R v Kane [2003] SASC 237, R v McNaughton (2006) 163 A Crim R 381, R v Visconti (1982) 2 NSWLR 104, R v Wilson [2011] NTCCA 9, R v Wurramara (1999) 105 A Crim R 512, Ryan v The Queen (2001) 206 CLR 267, Sullivan v R (1987) 47 NTR 31, Taylor v Malagorski [2011] NTSC 98, The Queen v Haji-Noor [2007] NTCCA 7, The Queen v J O [2009] NTCCA 4, The Queen v Shrestha (1990-1991) 173 CLR 48, Thomas v Mowbray (2007) 233 CLR 307, Veen v The Queen (1979) 143 CLR 458, Walden v Hensler (1987) 61 ALJR 646, Weininger v The Queen (2003) 212 CLR 629, Wheeler v Eaton [2012] NTSC 80, Woodley & Ors (1994) 76 A Crim R 302, Yardley v Betts (1979) 22 SASR 108, Yougie (1987) 33 A Crim R 301, referred to
A von Hirsch, Doing Justice, The Choice of Punishments (Hill and Wang, 1986)
REPRESENTATION:
Counsel:
Appellant:I Read SC
RespondentS Robson
Solicitors:
Appellant:Northern Territory Legal Aid Commission
RespondentDirector of Public Prosecutions
Judgment category classification: B
Number of pages: 48
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINEmitja v The Queen [2016] NTCCA 4
No. CA 15 of 2015 (21419050)
BETWEEN:
JAMES EMITJA
Appellant
AND:
THE QUEEN
Respondent
CORAM: GRANT CJ, KELLY and BARR JJ
REASONS FOR JUDGMENT
(Delivered 21 October 2016)
GRANT CJ AND KELLY J:
The appellant seeks an extension of time within which to file an application for leave to appeal from a sentence of imprisonment for six years without a non-parole period imposed by the Supreme Court on 27 November 2014. The grounds for appeal are that the sentence was manifestly excessive having regard to the circumstances of the offending and the appellant, and that the sentencing judge erred in failing to set a non-parole period.
The circumstances of the offending
The offence in question was committed at Hermannsburg on 4 March 2014. The appellant and the victim had been married in a traditional Aboriginal manner for 13 years before separating in 2013. They had one child who was aged 12 years at the time of the offending. The relationship had been blighted by domestic violence, one consequence of which was the issue of a domestic violence order on 28 August 2013 naming the victim as a protected person and restraining the appellant from, amongst other conduct, contacting or approaching the victim; approaching or entering any place where the victim might be living, working, staying or visiting; and causing any harm or attempting or threatening to cause harm to the victim.[1] The order had a term of 12 months.
At 2 a.m. on the morning of 4 March 2014 the victim woke in her home to find the appellant had entered the house without invitation and in breach of the domestic violence order, and fallen asleep next to her. The victim woke the appellant and asked him to leave. The appellant became angry and said words to the effect, “You’re just jealous of me because of Selina”. Selina had been the appellant’s wife before the commencement of his marital relationship with the victim.
The victim ran to the toilet and attempted to lock the door. The appellant followed her and prevented her from doing so. The victim asked the appellant to move out of the way and went to walk past him, whereupon the appellant kicked her at the bottom of her left leg. The appellant was wearing cowboy boots at the time. As a result of the blow the victim suffered closed compound fractures to the left lower leg. She was airlifted to the Alice Springs Hospital for treatment. Upon admission the leg was observed to be markedly deformed at the site of the fractures. The force of the kick caused displaced fractures of both the tibia and the fibula, and there is no suggestion that the victim suffered from any condition which rendered her inherently or particularly susceptible to fractures of that nature.
The appellant was unable to proffer any explanation for the assault, and was not apparently under the influence of alcohol at the time it was committed.
The appellant was charged with unlawfully causing serious harm to the victim contrary to s 181 of the Criminal Code. The maximum penalty for that offence is imprisonment for 14 years. That offence stands in contradistinction to s 177 of the Criminal Code, which creates the offence of causing serious harm to a person with the intention of doing so, the maximum penalty for which is imprisonment for life.[2]
The appellant’s circumstances
It is instructive to examine the appellant’s history leading up to this assault. The offence was committed very shortly before he turned 40 years of age. He had lived his whole life in Hermannsburg, and was initiated through ceremony at the age of 18. He was schooled to primary level. During his adult life he had worked variously as a ranger, a store assistant, a participant in the CDEP program, and most recently a teacher’s aide at the Hermannsburg School. In fact, he was employed as a teacher’s aide at the time of the offending in question. In that respect, he has had the benefit during his adult life of more regular employment than many in this and other Aboriginal communities. He claims to be a religious man who regularly attended services at the Catholic Church in Hermannsburg. In that respect, he presumably had access to the spiritual and pastoral care services available to members of that congregation.
The appellant is several years older than the victim. He has known the victim her whole life, and formed the marital relationship with her in 2000. The appellant has a long history of violent offending, including over the period from the commencement of his relationship with the victim up to the offence the subject of this appeal. The sentencing court had before it the details of some of those assaults, and for others only the bare record of the charge, conviction and penalty imposed.
On 1 May 2001, the appellant committed two aggravated assaults. One of those assaults had the aggravating circumstances that its victim was a female and it involved the use of a weapon. The other assault had the aggravating circumstances that its victim suffered bodily harm and that it also involved the use of a weapon. On 19 December 2001 the appellant was sentenced to an aggregate term of imprisonment for six months in respect of those assaults.
On Christmas Day in 2002, the appellant unlawfully caused grievous harm to another person. On 13 October 2003 he was convicted in the Supreme Court of that offence and sentenced to imprisonment for six months.
On 6 October 2005, the appellant breached a restraining order. He was convicted of that breach and fined $300.
On 18 May 2006, the appellant committed an assault with the aggravating circumstance that the victim was a female. On 14 July 2006 he was sentenced to imprisonment for one month for the assault. On that same day the Court of Summary Jurisdiction made an order restraining the appellant from approaching or contacting the victim, from approaching or remaining at any place where the victim was living or staying, and from assaulting or threatening to assault the victim. The order was expressed to be current until 13 July 2007.
On 16 September 2006, the appellant again committed an assault with the aggravating circumstance that the victim was a female. On 13 November 2006 he was sentenced to imprisonment for three months for the assault, with that imprisonment partially suspended and subject to an operational period of supervision for two years. Although the offending took place during the operational period imposed in respect of the assault committed on 18 May 2006, it would not appear that any sanction was imposed on the appellant for that breach of the previous order suspending sentence.
On 27 June 2007, during the operational period of the suspended sentence imposed in respect of the assault committed in September 2006 and during the currency of the restraining order made on 14 July 2006, the appellant again assaulted the victim. On that day, in breach of the restraining order, the appellant entered premises at which the victim was present. The appellant accused the victim of having a boyfriend in Alice Springs, which the victim denied. The appellant then pushed the victim forcibly to the ground, placed his knees across the victim’s left forearm, took hold of the victim’s hair in his left hand, and then stabbed the victim with a metal fork in the centre of her forehead and then again in the area of her right eye with sufficient force to cause bleeding and puncture wounds to the forehead, right eyelid and cheek. The victim managed to pull her arm from underneath the appellant’s knees, whereupon the appellant stabbed the victim with the metal fork twice to the left forearm, once to the right forearm, once in the right thigh and once in the left calf. The appellant then scratched the victim three times on the back with the metal fork as she tried to escape, leaving scratches across the top half of the victim’s back. The appellant was convicted of aggravated assault with a weapon and failure to comply with the restraining order, and sentenced to imprisonment for three months in respect of the assault and imprisonment for 10 days in respect of the breach of the restraining order. The balance of approximately one month of the suspended sentence imposed in respect of the assault committed on 16 September 2006 was also restored, to be served concurrently with the other sentences.
On 10 August 2008, the appellant again assaulted the victim in circumstances that also contravened a domestic violence order then in place. On 15 September 2008, he was sentenced to imprisonment for four weeks in respect of the assault, and to imprisonment for one week in respect of the contravention of the order, with those sentences to be served cumulatively. On that same day the sentencing magistrate issued an order restraining the appellant from contacting, approaching or remaining in the company of the victim or their daughter while or after consuming intoxicating liquor; from harassing, threatening or verbally assaulting the victim or their daughter; and from assaulting or threatening to assault the victim and her daughter. The order was expressed to expire on 14 September 2009.
On 1 March 2009, the appellant consumed alcohol to the point of intoxication. While in that state he went to a residence which the victim was visiting. The victim cooked the appellant a meal and took it to him, and he ate it. The appellant then became enraged while still holding the knife with which he had eaten his meal. It was a carving knife approximately eight inches in length. He approached the victim and swung the knife down from shoulder height at the victim in a slashing motion. The victim put her arms up to protect herself and received a shallow laceration approximately 12 cm long to her left forearm. That conduct was also in contravention of the domestic violence order still in place. On 25 March 2009, the appellant was sentenced to imprisonment for five months in respect of the assault, to be served concurrently with imprisonment for one month in respect of the contravention of the order. That sentence of imprisonment was partially suspended for three years subject to conditions, including supervision.
Less than two months later, on 21 May 2009, the appellant again committed an assault aggravated by the use of a weapon and the fact that the victim was a female. The circumstances in which that assault was committed also gave rise to two counts of engaging in conduct that contravened a domestic violence order then in place. That conduct was also in breach of the order suspending the sentence on 25 March 2009. The appellant was sentenced to imprisonment for three months in respect of the assault and imprisonment for 14 days in respect of each contravention of the domestic violence order, and the unserved portion of the sentence of imprisonment imposed on 25 March 2009 was restored. It was ordered that those sentences of imprisonment be served cumulatively, with the effect that the appellant served approximately seven months in prison in respect of the offences committed in March and May 2009.
On 21 May 2010, the appellant again engaged in conduct that contravened a domestic violence order then in place. On 13 September 2010, the appellant was sentenced to imprisonment for eight weeks, with that imprisonment suspended after seven days subject to an operational period of 12 months.
Following the offending which took place on 21 May 2010, the appellant was served with a further domestic violence order on 5 July 2010. That order was in similar terms to the order that was in place at the time of the offending the subject of this appeal. In particular, the order restrained the appellant from contacting or approaching the victim or their daughter when consuming alcohol or when under the influence of alcohol; from approaching or entering any place where the victim or their daughter might be living, working, staying or visiting when consuming alcohol or when under the influence of alcohol; and from causing any harm or attempting or threatening to cause harm to the victim or their daughter. The order had a term of two years.
On 19 September 2010, immediately upon his release from the period of imprisonment for contravening the previous domestic violence order, the appellant entered the house he shared with the victim and their daughter whilst intoxicated. He prevailed on the victim to drive him to an outstation to visit family. During the course of the drive the appellant grabbed the victim on the right cheek and held it forcibly. While continuing to hold the victim’s cheek in that manner the appellant bit her on the right hand. The appellant would not release the victim until he was punched repeatedly in the face by their daughter, who was approximately nine years of age at the time.
On 22 September 2010, the appellant again travelled to the outstation and became intoxicated. He returned to Hermannsburg on that afternoon and, again in breach of the domestic violence order, went to the child-care centre where the victim worked. He conducted himself in a manner which frightened the victim. Police were called and arrested the appellant at the child-care centre. On 1 October 2010, the appellant was sentenced to imprisonment for eight weeks in respect of the assault and to imprisonment for two weeks in respect of each contravention of the order, with those sentences to be served cumulatively. The suspended sentence imposed on 21 May 2010 was also restored.
On 22 December 2010, the domestic violence order which had been made on 5 July 2010 remained in force. On that day the appellant became involved in an argument with the victim and bit her on the forearm with sufficient force to cause the victim’s arm to swell and bleed. Three days later, on Christmas Day, the appellant was drinking beer and Bundaberg Rum. At about 3 p.m. he entered the house he shared with the victim while the victim was sweeping the living room floor. Without any provocation, the appellant punched the victim to the left side of her face causing her to fall to the floor. The appellant then grabbed the victim by the throat with sufficient force to cause her difficulty breathing. The appellant also bit the victim repeatedly on the arms. As a result of those actions the victim suffered multiple bite marks to her arms, and bruising and lacerations to her throat and face. As the victim attempted to escape, the appellant then kicked her in the ribcage. As with the offending which is the subject of this particular appeal, the appellant was wearing cowboy boots when he kicked the victim. On 30 December 2010, the appellant was convicted of the two assaults. He was also convicted of engaging in conduct that contravened a domestic violence order in respect of both assaults. He was sentenced to imprisonment for two months and four months respectively for the assaults, and to imprisonment for three weeks in respect of each contravention of the order, with those sentences to be served cumulatively.
With the assault committed on 25 December 2010 the appellant had assaulted the victim on three separate occasions in less than six months since the making of a domestic violence order designed and intended to protect the victim from the appellant’s aggression. In total, the appellant had assaulted the victim on five separate occasions in circumstances where there was a domestic violence order or a restraining order in place designed and intended for that same purpose. There had been other assaults when no orders were in place and other breaches which did not involve assaults; although it was not made explicit to the sentencing judge in this case whether those earlier offences involved the same victim.
On 6 March 2012, the appellant again engaged in conduct which contravened a domestic violence order. He was convicted of that offence on 4 April 2012 and sentenced to imprisonment for two months.
On 1 October 2012, the appellant was served with a domestic violence order in precisely the same terms as the order with which he was served on 5 July 2010. Again, the order restrained the appellant from contacting or approaching the victim when consuming alcohol or when under the influence of alcohol; from approaching or entering any place where the victim might be living, working, staying or visiting when consuming alcohol or when under the influence of alcohol; and from causing any harm or attempting or threatening to cause harm to the victim. The order had a term of 12 months.
On 3 November 2012, the appellant again drank alcohol and at about 4 a.m. entered the house in which he lived with the victim. He argued with the victim and picked up a guitar and smashed it on the floor. He then placed his left hand around the victim’s neck and started forcibly to choke her. He then leaned over and bit the victim on her left upper arm breaking the skin and causing bleeding. The victim escaped with the assistance of her 10-year-old daughter and ran to the police station for help. She was later treated at the Hermannsburg Health Clinic for her injuries and for shock. The appellant was convicted of aggravated assault on 14 November 2012 and sentenced to imprisonment for six months. It would not appear that the appellant was dealt with for the breach of the domestic violence order.
The offence under consideration in this appeal was committed shortly after a previous breach of the domestic violence order. On 17 September 2013, the appellant engaged in conduct which contravened the order. He was convicted of that contravention on 19 September 2013 and imprisoned for two months. Less than four months after his release from prison for that contravention, he again breached the order in the commission of the offence presently under consideration.
It is clear that the appellant had in the years prior to the present offending subjected the victim to a course of repeated violence in the domestic context which left the victim in a state of perpetual fear for her person. This is reflected in the Victim Impact Statement dated 5 March 2014, in which the victim stated:
I get really stressed out by [the appellant]. I get scared when I see him cause I know each time he’s going to hurt me. He goes and tells his family I’m to blame for him going to prison and then they come and threaten me. That DVO doesn’t work. It doesn’t stop him from coming near me and hurting me. The only time I feel safe is when [the appellant] is in prison.
It was this course of conduct to which the sentencing judge was referring when he observed:
The offending is once again a very serious incident of domestic violence committed by the offender. The offender’s moral culpability for this offending is very high. The offender engages in domestic violence in order to control the victim and to express his displeasure when she does not behave in a manner that he expects her to behave. The offence was committed while [the offender was] subject to [a] DVO once again. The victim was seriously injured.
The main sentencing objectives are punishment, deterrence and protection of the victim. The offender must be severely punished and he and others must be discouraged from engaging in the same or similar conduct in the future. The community strongly disapproves of such conduct.
The offender must learn that women are not required to do what men tell them to do. Women are entitled to lead dignified lives free from such violence.
Considerations relevant to fixing the head sentence
The only legitimate purposes for the imposition of a sentence on an offender are just punishment, rehabilitation, personal and general deterrence, the expression of community disapproval, and the protection of the Territory community from the offender.[3] The protection of the public is both “an overall umbrella identifying the purpose of all of the different elements traditionally listed as matters to which consideration must be given in the exercise of a sentencing discretion”,[4] and a separate and individual goal or purpose of the imposition of sentence.[5] Within that matrix the protection of the community will take precedence over offender rehabilitation, unless those goals are mutually achievable.[6]
In R v Wurramara,[7] this Court observed that, “[t]he courts have been concerned to send what has been described as ‘the correct message’ to all concerned, that is that Aboriginal women, children and the weak will be protected against personal violence insofar as it is within the power of the court to do so”.[8] In making that observation, the Court cited what was said by Kearney J in Amagula v White (unreported, Supreme Court of the Northern Territory, 7 January 1998) in the following terms:
The courts must do what they can to see that the pervasive violence against women in Aboriginal communities is reduced. There is a fairly widespread belief that it is acceptable for men to bash their wives in some circumstances; this belief must be erased.
As this Court has repeatedly observed before and since that statement was made, such conduct must be dealt with in a manner which reflects the serious nature of the offending and its corrosive effect on well-being in Aboriginal communities.
While it may be accepted that some Aboriginal communities have an unusually high incidence of serious crimes of violence, and that the courts are powerless to alleviate the dysfunction and deprivation which underlies that violence, Aboriginal women and children living in those communities “are entitled to equality of treatment in the law’s responses to offences against them”.[9] The protection which the law affords includes the imposition of sentences which include a component designed to deter other members of the community from committing crimes of that nature. As Martin (BF) CJ observed in Najpurki v Luker:[10]
Until such time as it is demonstrated to me that people who are minded to take up a weapon with a view to assaulting some person with whom they have a grievance are not deterred by the knowledge that others who have done similar things have spent time in gaol, then the element of general deterrence remains a meaningful factor in the sentencing process for such offences. If it is emphasised by the courts often enough and firmly enough then the message must start to get through, or be reinforced, that the community and individuals within it will be to some extent relieved of the threats, the real tragedy and distress caused by assaults with offensive weapons.
Those observations apply with equal force to offences of violence against women and children. There are also practical societal reasons why offences of violence against women and children in the domestic context should properly attract an appropriate component on account of both personal and general deterrence. As Southwood J observed in The Queen v Haji-Noor:[11]
[183] The offender’s crime against Mr Ellis was committed in a domestic context. Domestic violence is a leading contributor to death, disability and illness in the community. Such violence affects the whole community. Medical and hospital treatment for the victims of domestic violence is extremely costly and imposes a considerable strain on the health system and those who work in it.
[184] The respondent had lost any entitlement to leniency. The respondent’s prior offending shows he has a dangerous propensity to commit such crimes. He has a committed and entrenched attitude to violence. There were no mitigating circumstances. The respondent showed little, if any, remorse. General deterrence, specific deterrence, retribution and denunciation were the paramount considerations in the exercise of the sentencing discretion.
The reference in the passage immediately above to “prior offending” and “a dangerous propensity to commit such crimes” draws attention to the fact that care must be taken with the manner in which prior convictions are taken into account in the sentencing calculus. In R v McNaughton,[12] the New South Wales Court of Criminal Appeal noted that the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions.[13] This is not to say that an offender’s prior convictions are never properly taken into account when fixing a head sentence.
While there can be no doubt that the principle of proportionality precludes the imposition of a sentence beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender, or merely to educate possible offenders in the penalties attached to proscribed conduct, this is not to say that the protection of society is not a material factor in fixing an appropriate sentence.[14] The exercise of the sentencing discretion having regard to the protection of society, among other factors including retribution and deterrence, is clearly permissible provided that the purpose is not simply preventative detention and provided that the sentence does not go beyond what is proportionate to the crime in order to protect society from the risk of recidivism on the part of an offender.[15] As the majority observed in Veen v The Queen (No 2):[16]
… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.
This is reflected in s 5(2)(e) of the Sentencing Act (NT), which requires a court to have regard to an offender’s character when sentencing that offender. Section 6 of the Act provides expressly that in determining the character of an offender a court may consider “the number, seriousness, date, relevance and nature of any previous findings of guilt or convictions of the offender”. As the plurality in Weininger v The Queen observed in relation to a similar provision in the Crimes Act 1914 (Cth):[17]
A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.
The victim in this case is entitled to protection in accordance with those principles. The principal means by which that protection is afforded is the incapacitation of the appellant by means of a custodial sentence. In short, while the appellant is incarcerated he is physically prevented from re-offending in the same general manner, and thus the community in general and the victim in particular is protected from offences of that nature. Although there may be circumstances where a shorter period of incarceration than might otherwise have been imposed, or the provision for release on parole, might be considered productive of reformation and designed to prevent re-offending, in other cases that will quite clearly not be the case.
The identification of error in the sentencing process
Against that background, the appellant asserts that the sentence was manifestly excessive in all of the circumstances. The principles applicable to that ground of appeal are well known.[18] It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error. An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it is shown that the sentencing judge committed error in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error. In relying upon this ground it is incumbent upon the appellant to show that the sentence was not just excessive but manifestly so. He must show that the sentence was clearly and obviously, and not just arguably, excessive.
In making that assessment, the objective seriousness of the offence is a vital matter for consideration in determining whether the punishment fits the crime. For the reasons already discussed, that determination must be influenced by the need to protect vulnerable members of the community, particularly women and children, from offences of violence.[19]
Counsel for the appellant drew attention to a schedule containing details of a number of sentences imposed by the Supreme Court for contraventions of s 181 of the Criminal Code. The purpose was to compare and contrast the objective gravity of the subject offence with that of the offences contained in the schedule, and to compare and contrast the sentences imposed in light of that assessment. A number of observations may be made concerning such exercises.
In entertaining and determining an appeal against sentence it is a particular function of this Court to minimise disparities of sentencing standards, while maintaining the reasonable and just area of discretion of the sentencing judge.[20] As this Court has observed, “the orderly administration of the criminal law necessitates … the preservation of relativity in fixing head sentences and non-parole periods, whilst recognising the width of the range of criminality … and the consequent extent of the variation between sentences in individual cases”.[21]
As counsel for the respondent contended, those observations reflect that while there is a range of appropriate sentences that can be said to comprise the sentencing “standard” for a particular crime, a sentencing standard is not a fixed range departure from which will necessarily found demonstrable error. As Martin (BR) CJ and Riley J observed in Daniels v The Queen:[22]
The role of sentencing standards must be properly understood. They do not amount to a fixed tariff, departure from which will inevitably found a good ground of appeal. We respectfully agree with the observations of Cox J in R v King (1988) 48 SASR 555 as to the proper role of sentencing standards (557):
“... In a word, this case is about sentencing standards, but it is important, I think, to bear in mind that when a standard is created, either by the cumulative force of individual sentences or by a deliberate act of policy on the part of the Full Court, there is nothing rigid about it. Such standards are general guides to those who have to sentence in the future, with certain tolerances built into or implied by the range to cater for particular cases. The terms of approximation in which such standards are usually expressed – “about” and “of the order of” and “suggest” and so on – are not merely conventional. ... It follows that a particular sentence will not necessarily represent a departure from the standard because it is outside the usual or nominal range; before one could make that judgment it would be necessary to look at all of the circumstances of the case. Those circumstances will include, but of course not be confined to, the questions whether or not the offences charged are multiple or single and whether the defendant is a first offender with respect to the particular crime charged. That is not to undermine the established standard but simply to acknowledge that no two cases, not even two “standard” cases, are the same. ...”
Those observations apply a fortiori in these circumstances given the frequently expressed observation that there is no tariff in respect of penalties to be imposed for the crime of assault.[23] As this Court observed in The Queen v J O,[24] having just cited the passage from Daniels extracted above:
In the absence of a tariff for crimes of the type under consideration, a comparison with previous individual sentences is of limited assistance. However, some guidance can be obtained from previous decisions, particularly those of the Court of Criminal Appeal.
That statement reflects previous observations to the effect that where the ground of appeal is that a sentence is manifestly excessive, reference to comparable sentencing cases can be useful, subject to those limitations.[25] Each case must be dealt with on its own merits having regard to the objective gravity of the particular offence, and to the subjective circumstances of the offending and of the offender. In undertaking that assessment, “[i]t is not this Court’s task to see whether the sentencing under appeal is more severe or lenient than a particular sentence within the range, imposed on a person not a co-offender in the particular crime”.[26] Nor is it the task of this Court to “tinker” with sentences imposed by the Supreme Court.
The comparative sentencing schedule supplied by counsel for the appellant disclosed sentences for contraventions of s 181 of the Criminal Code selected on the basis that they involved domestic violence and a serious level of offending. The cases in the schedule were limited to the period from September 2009 to September 2011. The schedule included sentences ranging from imprisonment for six years with a non-parole period of five years and six months through to imprisonment for two years and three months with a non-parole period of two years. There were also a number of cases involving offenders in their early 20s who were sentenced to imprisonment for three years and some months to be suspended after 18 months. As is inevitable in such exercises, the circumstances of the offender and the offending vary widely between cases. That variance is seen in matters such as the facts of the offending in question, the existence or otherwise of a current domestic violence order, the nature and timing of the guilty plea and what it indicated, the age of the offender, the extent to which the offender assisted law enforcement authorities, the nature and extent of the prior criminal history, the seriousness of the resulting injuries and the impact of the offending on the victim.
To the extent that the cases in the schedule constitute any sort of range or standard for this type of offending, they establish that the Supreme Court has previously imposed head sentences of a term of imprisonment of six years for what might loosely be described as offending within the mid-range of seriousness even where the matter has proceeded by way of guilty plea. Those sentences have generally involved men past the age at which they might be entitled to leniency on account of youth, and who have been guilty of a cruel and pitiless attack usually involving a weapon. Although most have an extensive criminal history including priors for violent offending, that is not invariably the case.
Counsel for the appellant drew attention to the fact that the appellant had never before been sentenced to a term of imprisonment greater than eight months, the suggestion being that the instant sentence of six years was a disproportionate increase. A number of the assaults committed by the appellant (described above) must be considered to be at least in the middle of the range of seriousness for aggravated assaults under s 188. With the exception of the conviction for causing grievous harm in 2002, all of these sentences were imposed by the Court of Summary Jurisdiction which was limited, at the time of sentencing, to the imposition of a period of imprisonment for two years. However, that period does not represent the maximum penalty prescribed for offences against that section, intended for cases falling within the worst category for which the penalty is prescribed. It is well established that the appropriate approach to sentencing for offences under s 188(2) of the Criminal Code is to measure the circumstances of the offending against the maximum penalty of five years, and to sentence accordingly.[27]
We do not consider it appropriate to comment upon individual sentences imposed by the Court of Summary Jurisdiction in relation to the appellant’s previous convictions. However, as a general comment, it is not uncommon for an offender to have a series of convictions in the lower court for aggravated assaults and to receive relatively short terms of imprisonment and later to commit an assault which may be of a similar nature but which has more serious consequences. That offender will then be dealt with in the Supreme Court for a more serious offence (often unlawfully causing serious harm which carries a maximum of 14 years imprisonment) and will receive a substantially longer sentence. That should not be seen as an indication that the sentence imposed by the Supreme Court is excessive. First, the Supreme Court must take into account the seriousness of the consequences and the greater maximum penalty. It may also be that in some instances the earlier lower court sentences do not adequately reflect the objective seriousness of the offences in light of the maximum penalty imposed by the legislature, as distinct from the jurisdictional limit of the Court of Summary Jurisdiction. That jurisdictional limit on sentences for aggravated assault has been removed with the creation of the Local Court.[28] Nevertheless we consider it appropriate to emphasise the importance of taking into account the maximum penalty prescribed by the legislature when determining an appropriate sentence having regard to the objective seriousness of the offence in question.
During the course of the hearing in the Supreme Court, the sentencing judge remarked upon the appellant’s plea of guilty. The import of those remarks was that the plea was at most timely, that it could not be taken as indicative of any true remorse, and that it was of limited significance in terms of the appellant’s acceptance of responsibility. Although the subsequent sentencing remarks do not make reference to the plea of guilty, it must be assumed that the sentencing judge took it into account in fixing the head sentence. Given the sentencing judge’s characterisation of the plea, it is reasonable to assume that his Honour allowed a reduction of the head sentence of around 15 per cent, which would mean that but for the guilty plea the head sentence imposed would have been seven years.
The offending was objectively serious for a number of reasons. The appellant entered the house prior to the commission of the assault while the victim was asleep and vulnerable. His attack on the victim was vicious and unprovoked. As the sentencing judge observed, kicking the victim while wearing cowboy boots was “[a]s good as a weapon”. The accuracy of that assessment is demonstrated by the fact that the blow caused displaced fractures of both the tibia and the fibula. The injury required surgery to perform an open reduction on the fractures and internal fixation.
We do not accept the submission made on behalf of the appellant that the objective seriousness of the offence was lower because it was not premeditated. First, the absence of a factor which would elevate the seriousness of the offending is not a matter of mitigation. Secondly, as the respondent submitted, the offending was the epitome of a particularly pernicious form of domestic violence in which a violent and controlling male seeks to exercise dominion over a female victim; a type of offending in which each episode is spontaneous but part of a pattern which renders spontaneity less relevant to the assessment of the objective seriousness of the offence than it might be in relation to other types of offence. The appellant’s history of relevant offending has already been detailed. It shows that the offending the subject of this appeal was simply the latest incident in a deliberate and violent pattern of behaviour engaged in by the appellant for the purposes of intimidating and controlling the victim. The circumstances of the offence under consideration involved direct defiance of the domestic violence order then in place, as have the circumstances of many of the other incidents which form part of the appellant’s pattern of behaviour. The instant offence was in no way “an uncharacteristic aberration”.
Having regard to those matters, it was open to the sentencing judge to treat the offending as falling within the mid-range of seriousness for this type of offending. Accepting that to be so, and having regard to the fact that the maximum penalty for the offence in question is imprisonment for 14 years, a sentence of imprisonment for six years with a starting point of seven years could not be said to be clearly and obviously excessive in the absence of significant factors in mitigation. In that respect, the appellant was solely to blame for the offence, and the degree of culpability was high for the reasons expressed by the sentencing judge. The appellant has manifested a continuing attitude of disobedience to the law. The appellant was not of prior good character, and nor was he entitled to any leniency on account of youth. As is apparent from the survey of the authorities conducted above, offences of violence against women in Aboriginal communities are prevalent, particularly in the domestic context. The appellant did not and could not point to the provision of assistance to law enforcement agencies in the investigation of the offence. In short, there was no significant and relevant mitigating factor concerning the appellant or the circumstances of the offence (other than the plea of guilty).
Although it may be accepted that another judicial officer may have imposed a lesser sentence, the appellant has not established that the sentencing judge acted on a wrong principle or misunderstood or wrongly assessed some salient feature of the evidence; or that the sentence was clearly and obviously excessive.
The failure to fix a non-parole period
Section 53(1)(b) of the Sentencing Act provides:
53 Fixing of non-parole period by sentencing court
(1) Subject to this section and sections 53A, 54, 55 and 55A, where a court sentences an offender to be imprisoned:
(a)....
(b) for 12 months or longer, that is not suspended in whole or in part,
it shall, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence, the past history of the offender or the circumstances of the particular case make the fixing of such a period inappropriate.
In Albert v The Queen,[29] Riley J (with whom Martin (BR) CJ agreed) described the operation of the provision in the following terms:
[36] The High Court discussed the “basic theory of the parole system” in The Queen v Shrestha[30] where Deane, Dawson and Toohey JJ said:[31]
The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody ... the parole system allows for a review of the offender's case after he has actually served a significant part of a custodial sentence, for the purpose of deciding whether he should be released on parole at that stage.
....
All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time ... the legislative intent to be gathered from the terms of the parole legislation applicable in that case ... was to provide for possible mitigation of the punishment of the prisoner only when the stage is reached where “the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence”. This approach has been consistently accepted in subsequent cases in this court.
[37] The provision of a non-parole period is to provide for the mitigation of the punishment of the offender in favour of his rehabilitation through conditional freedom.[32]
[38] Section 53 of the Sentencing Act (NT) provides that, where an offender is sentenced to imprisonment for 12 months or longer and that sentence is not suspended in whole or in part, a court shall set a non-parole period “unless it considers that the nature of the offence, the past history of the offender or the circumstances of the particular case make the fixing of such a period inappropriate.” The structure of the provision creates a prima facie obligation on the sentencing court to specify a non-parole period unless the grounds for making such an order inappropriate are present.[33]
A number of guiding principles may be drawn from that discussion and the cases to which reference is made. First, a non-parole period is fixed in circumstances where considerations of mitigation or rehabilitation make it unnecessary or undesirable that the whole of that sentence should actually be served in custody. Secondly, the non-parole period, if fixed, is the marker of the minimum time that the sentencing judge determines that the offender must serve having regard to all the circumstances of the offence. Thirdly, in making that determination the sentencing judge takes into account the same considerations which inform fixing the head sentence, including antecedents, criminality, punishment and deterrence, although different weightings may be applied to those considerations for the purpose of determining whether a non-parole period should be fixed and, if so, of what duration. Fourthly, in the consideration of those matters the court may only determine not to fix a non-parole period if the sentencing judge forms the view that it would be inappropriate to fix a non-parole period having regard to the nature of the offence, the past history of the offender or the circumstances of the particular case. Finally, in determining that the fixing of a non-parole period would be inappropriate a sentencing judge is exercising a sentencing discretion with the consequence that the ordinary principles governing sentencing appeals will have application; that is, it is necessary for the appellant to show that the exercise of the discretion miscarried to such an extent that it did not constitute a valid exercise.
In the present case the sentencing judge put the parties on notice during the course of the sentencing proceedings that he was giving consideration to not fixing a non-parole period. In doing so the sentencing judge must necessarily have had in mind the appellant’s criminal history and that the circumstances of this particular case involved a further vicious assault while a domestic violence order was in place. That notice was given after the Crown facts had been read and the Crown had tendered its evidence, and immediately before counsel for the appellant commenced his submissions. The only part of those submissions apparently directed to the question whether a non-parole period should be fixed were as follows:
I note your Honour’s comments and in light of [the appellant’s] history, it’s difficult to formulate any plausible argument to persuade the Court to consider embarking on a direction other than what your Honour has indicated, but I would press the matters that I’ve put on [the appellant’s] behalf as to the assistance that he has offered to the Court by way of his timely plea and finalising this matter without [the victim] having to come to Court and give evidence and protract the matter and obviously incur a great delay and expense.
While the appellant is not bound by those submissions or that approach for the purposes of this appeal, they might be considered to reflect a realistic appraisal of the nature of the offence, the past history of the offender and the circumstances of this particular case. They may also be seen as reflective of the fact that a non-parole period is fixed where it may be productive of reform, which offers the greatest protection to society. As already noted, it is an order which properly falls to be made in the community’s interest and is designed to prevent re-offending. That purpose and design is not achieved in circumstances where the fixing of a non-parole period might not be expected to prevent re-offending or to be productive of reformation.
In the course of the submissions it had been established that the appellant had 16 prior convictions for offences of violence – many of which were perpetrated against the victim – and a further 12 offences involving breaches of restraining orders or domestic violence orders. The appellant also had convictions for a raft of other offences involving property, alcohol, motor vehicles, offensive weapons and breach of bail. It is of particular note that the appellant has a long history of failing to honour or obey court orders. In addition to the various breaches of restraining orders or domestic violence orders already mentioned, the appellant has committed multiple breaches of the conditions of suspended sentences and breached parole. That propensity in and of itself militated against the appellant’s prima facie claim to release on supervision and conditions as part of parole at some time prior to the effluxion of the head sentence.
The nature of the offence and the circumstances of this particular case have already been set out in some detail. The sentencing judge made particular reference to the fact that the appellant’s moral culpability for this offending was very high, in that he is given to engage repeatedly in domestic violence in order to control the victim and to express his displeasure when she does not behave in a manner that he expects her to behave. There was no issue of mitigation which would make it unnecessary or undesirable that the whole of that sentence should actually be served in custody. Rather, considerations of deterrence and community protection attracted a particular weighting at that stage of the process in favour of a disposition which would see the appellant actually serve the whole of the sentence in custody.[34]
Nor is this a case in which it was not possible for the sentencing judge to make any relevant forecast concerning the appellant’s future behaviour within the six year period fixed by the head sentence, so as to make any assessment of the appellant’s prospects of reoffending within that time and the need for community protection entirely speculative.[35] The six-year period was not of a duration which would have that effect and so require the fixing of a minimum term to allow some more informed assessment to be made of those matters at some time closer to the expiry of the head sentence. Moreover, the appellant’s history and pattern of behaviour were indicative of a high risk of reoffending within that time.
It was also conceded that given the appellant’s history of offending his timely plea was not indicative of remorse. In the absence of remorse, there was nothing in the materials before the sentencing judge which would suggest that the appellant was likely to reform. As counsel for the appellant conceded, the fact that the appellant was not intoxicated by alcohol at the time of the offending indicated there was no real prospect of rehabilitation directed to the nexus between alcohol abuse and offending. As counsel for the respondent asserted, the appellant’s prospects of rehabilitation were bleak at best given his extensive criminal history, and the fact that he had not previously availed himself of the opportunity for rehabilitation.
The sentencing judge was entitled to approach the matter on the basis that the appellant had low prospects of rehabilitation such that it was neither necessary nor desirable for the appellant to be released after some minimum period of imprisonment had been served and prior to the expiry of the sentence. It may be noted in this respect that the appellant was on the cusp of turning 40 at the time of the subject offence, he was a recidivist domestic violence offender, he clearly knew and understood that the community disapproved of the relevant conduct, and he was a regular churchgoer who had access to but obviously ignored the tenets of that religion concerning the perpetration of violence against the vulnerable.
To the extent that rehabilitation was a relevant consideration, the sentencing judge observed:
Such a sentence will not preclude the offender from being rehabilitated. Under the current Corrections policy he will be provided with an offender management plan. He will be offered appropriate rehabilitation and he will ultimately have the opportunity to reduce his security rating and will have the possibility of obtaining work in the community while he is in prison.
Although it may again be accepted that a different judicial officer may have fixed a non-parole period in the circumstances, having regard to the matters that presented to the sentencing judge it cannot be said that the discretion miscarried in determining that the fixing of a non-parole period was inappropriate in this case.
Disposition
Given the conclusions drawn above, the appropriate orders are:
(a)An extension of time within which to file an application for leave to appeal is granted.
(b)Leave to appeal is granted.
(c)The appeal is dismissed.
BARR J:
The applicant has applied for rehearing by the Court of Criminal Appeal of his application for an extension of time within which to appeal and for leave to appeal, following refusal by a single judge.[36]
On 14 November 2014 the applicant pleaded guilty to unlawfully causing serious harm to a female victim at Hermannsburg on 4 March 2014. The offence carried a maximum penalty of imprisonment of 14 years. On 27 November 2014 the applicant was sentenced to a term of imprisonment of six years. The judge declined to fix a non-parole period.
The proposed grounds of appeal are (1) that the sentence of six years imprisonment was manifestly excessive and (2) that the sentencing judge erred in failing to set a non-parole period.
The admitted facts for sentencing can be briefly summarized.[37]
The applicant and the victim had been in a traditional marriage for 13 years before they separated in 2013. Their only child was a daughter, who was 12 years old at the time of the offending in March 2014.
On 28 August 2013 the Court of Summary Jurisdiction in Alice Springs confirmed a domestic violence order which restrained the applicant, inter alia, from approaching or remaining in the company of the victim; entering or remaining at her place of residence; harassing, intimidating or verbally abusing her, or causing harm to her. The order remained in force until 27 August 2014.
In the early morning of 4 March 2014, the victim awoke to find the applicant sleeping next to her. She woke him and asked him to leave. He became angry and started ‘growling’ at her, saying, “You just jealous at me because of Selina”. Selina was the applicant’s ex-wife.
The victim ran to the toilet, followed by the applicant. He prevented her locking the toilet door. She told him to move out of her way and went to walk past him. He was wearing cowboy boots. He kicked her to the bottom of her left leg, to the shin. She felt immediate pain in her left leg and fell to the floor.
The victim had suffered a closed compound fracture to the left lower leg. The leg was markedly deformed. X-rays would subsequently demonstrate displaced fractures of the tibia and fibula.
The victim asked her daughter to run for help, and the applicant left. He went to a neighbouring residence, where he knocked on the door yelling out for help for the victim. When the neighbours opened their front door, they saw the applicant walking towards the front gate of the victim’s residence. They heard him say, “Go and see K. K’s hurt, I think she’s got a broken leg”. The applicant appeared sober.
One of the neighbours then contacted the Hermannsburg Clinic nurse to ask for help, before going to the victim’s house to provide first aid. The victim told the neighbours, inter alia, “My leg’s broken and I am in pain.” Arrangements were subsequently made for the victim to be airlifted to the Alice Springs Hospital where x-rays demonstrated the leg fractures. She subsequently underwent surgery for open reduction and internal fixation of the fractures. Her post-operative recovery was described as “uneventful” and she was discharged after three days. She was told to only touch weight bear on her left leg pending outpatient clinic review.
In her victim impact statement, made 5 March 2014, the victim described being in a lot of pain and expressed concern that she would not be able to walk properly. She expressed concern about the care of her daughter while she remained in hospital.[38] Describing the emotional effect of the offending, she wrote:
I get really stressed out by James. I get scared when I see him cause I know each time he is going to hurt me. He goes and tells his family I’m to blame for him going to prison and then they come and threaten me. That DVO doesn’t work. It doesn’t stop him from coming near me and hurting me. The only time I feel safe is when James is in prison.
In imposing the sentence of six years, the judge made the following remarks:
He has a lengthy criminal record. It extends for 15 pages. He has 28 prior convictions for crimes of violence and breaches of domestic violence orders, including 15 prior convictions for aggravated assault and one prior conviction for cause grievous harm.
Five précis that relate to episodes of violence against Ms A were tendered in evidence. In the past the offender has choked her, bitten her on a number of occasions, punched the victim to the face, dug his nails into the victim’s throat, kicked the victim in her ribs while wearing cowboy boots, grabbed and squeezed the victim’s cheek, attacked her with a knife and cut her forearm, stabbed the victim in the centre of her forehead and again near her right eye with a metal fork, pulled her hair, and scratched the victim on her back with a metal fork. [39] …
The offending is once again a very serious incident of domestic violence committed by the offender. The offender’s moral culpability for this offending is very high. The offender engages in domestic violence in order to control the victim and to express his displeasure when she does not behave in a manner that he expects her to behave. The offence was committed while subject to a DVO once again. The victim was seriously injured.[40]
The main sentencing objectives are punishment, deterrence and protection of the victim. The offender must be severely punished and he and others must be discouraged from engaging in the same or similar conduct in the future. The community strongly disapproves of such conduct.
The offender must learn that women are not required to do what men tell them to do. Women are entitled to lead dignified lives free from such violence.[41]
The Sentencing Act, s 53(1), requires that a court which sentences an offender to a term of imprisonment of 12 months or longer, that is not suspended in whole or in part, must fix a non-parole period unless the court considers “that the nature of the offence, the past history of the offender or the circumstances of the particular case” make the fixing of a non-parole period inappropriate. The sentencing judge did not give reasons directly explaining his decision not to fix a non-parole period, but it is tolerably clear from the preceding extracts from the sentencing remarks that the nature of the offence and the applicant’s past history of violence (including violence to the same victim) were the considerations most relevant to his Honour’s decision not to fix a non-parole period.
Criminal responsibility and culpability
The mental element of an offence contrary to s 181 Criminal Code of unlawfully causing serious harm to another may be either intent to cause serious harm[42] or foresight that serious harm is a possible consequence of the offender’s conduct.
The Criminal Code, s 31(2), states the foresight basis of criminal responsibility in the following terms:
A person who does not intend a particular … event, but foresees it as a possible consequence of his conduct, and that particular … event occurs, is excused from criminal responsibility for it if, in all the circumstances, including the chance of it occurring and its nature, an ordinary person similarly circumstanced and having such foresight would have proceeded with that conduct.
In the substantive criminal law, at common law, where both intention and recklessness are sufficient to constitute the mental element of an offence, both are considered as equally blameworthy. Thus, in R v Crabbe,[43] the High Court observed as follows:
The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur. … That state of mind is comparable with an intention to kill or to do grievous bodily harm.
However, the Court’s immediately following observation[44] is relevant:
There is a difference between the case in which a person acts knowing that death or serious harm is only a possible consequence, and where he knows that it is a likely result. The former is not a case of murder even if death ensues … .
The principle, that acts done intentionally or with knowledge as to probable consequences are more serious than the same acts done with foresight of possible consequences, logically applies in sentencing. It follows that, in relation to s 181 Criminal Code, an offence where a person intentionally causes serious harm to another is more serious than where the person foresees serious harm as a possibility only. That is, of course, on the assumption that the same or equivalent level of harm is caused in both cases.
The Sentencing Act, s (5)(2)(c), requires the court to have regard to the extent to which an offender is to blame for an offence. This means that the court must consider the offender’s culpability: “the factors of intent, motive and circumstance that determine how much the offender should be held accountable for his act.”[45]
There was no evidence contained in the Crown facts in relation to the mental element of the offence. There was no evidence that the applicant intended the specific resultant injury (or other serious harm) to the victim. There was no reference in the proceedings below as to the basis on which the applicant had pleaded guilty to unlawfully causing serious harm. Given the sentencing principle that any findings of fact made against an offender must be arrived at beyond reasonable doubt,[46] no finding could have been made on the evidence below that the applicant had intended to cause serious harm to the victim. Although there is no general requirement that a sentencing judge must sentence an offender on the basis of the view of the facts which is most favourable to the offender, the practical effect of the ‘beyond reasonable doubt’ requirement in relation to adverse findings is that the sentencing judge may well be required to sentence on that basis.[47]
The applicant stood to be sentenced on the basis that he had foreseen some possibility of serious harm resulting from his kicking the victim, and that the circumstances were such that an ordinary person similarly circumstanced and having the same foresight as the accused would not have kicked the victim.
In this context, it is important to examine the offending conduct. The applicant kicked the victim once. She was standing when kicked.[48] There was no evidence as to the force with which the applicant kicked the victim, save for what may be inferred from the injury itself. As mentioned, there was no evidence that the applicant intended the resultant injury. The applicant’s plea of guilty had significance, in my opinion, because it established the mental element of the offence. The applicant’s plea of guilty constituted an admission of all the elements of the offence charged.[49] No further proof was required of his guilt.[50] Without his guilty plea, it may have been difficult to prove beyond reasonable doubt that the applicant foresaw causing serious harm as a possible consequence of the single kick, even taking into account that the applicant was wearing cowboy boots.
Reference was made in the appeal hearing to the sentencing judge’s reference to cowboy boots being “as good as a weapon”.[51] Given that cowboy boots are regarded as quite solid footwear, his Honour’s observation was probably accurate in terms of the mechanics of injury, although not in terms of culpability. The use of a weapon usually reflects an offender’s intent to inflict greater harm, and for that reason is generally regarded as an aggravating circumstance by the courts. So, for example, in R v Wurramara,[52] this Court stated:
… in this case, the objective circumstances of the offences of unlawfully causing grievous harm make a sentence of at least three years imprisonment appropriate for each. Such a term of imprisonment should generally be the starting point where there is a plea of guilty in relation to an infliction of serious injury upon a woman, child, or other person in a position of weakness within the community, and where an offensive weapon is used to achieve that end. This is consistent with the general pattern of sentencing for similar offences in this court, the submissions made on behalf of the appellant, and the observations made by other courts regarding the seriousness with which such conduct will be viewed. [underline added]
The reference in Wurramara to using an offensive weapon to achieve the end of causing serious injury was in the context that the respondent offender had stabbed a female victim in the back twice with a knife, causing a life-threatening injury (a punctured lung) which required urgent surgical intervention. He had also attacked a male victim with two machetes, fracturing both ulnae, damaging tendons and causing significant blood loss. There is a clear distinction in terms of culpability between a situation in which an offender arms himself with a weapon (whether knife, machete, rock, nulla nulla or some available object), intending to cause greater harm than with bare hands, and the present case, where the applicant was already wearing boots.[53]
In relation to post-offence conduct, the evidence indicates that the applicant was not callous to the plight of the victim. He knocked on the neighbours’ front door, yelling for help, and urged neighbours to attend on the victim.
In considering the applicant’s culpability, I would place the offending conduct in the low mid-range for offences involving the violent infliction of serious harm.
The matter came before the Supreme Court after a full hand-up committal, and the applicant’s plea of guilty was timely.
The sentencing judge did not indicate a starting point from which he allowed a discount for the applicant’s guilty plea. His Honour expressed doubt as to whether the applicant had any remorse.[54] In the circumstances, it should be assumed that his Honour gave some credit for the guilty plea, although not the ‘full’ discount of 25 per cent referred to in R v Wilson.[55] I will assume that the discount allowed was approximately 15 per cent. If his Honour’s starting point had been seven years, then a sentence of six years would reflect a discount of just over 14 per cent.
In my respectful opinion, a sentence of seven years (or thereabouts), before discount for the plea of guilty, was a manifestly excessive starting point. It was disproportionate to the gravity of the offence.[56] Even with the applicant’s extensive record of prior offending, it was wholly outside the range of sentences reasonably available to the sentencing judge, taking into account the circumstances of the offending and the offender. The consequence was that the sentence imposed by his Honour (after the assumed discount) was manifestly excessive.
I would grant leave to appeal, allow the appeal and re-sentence the applicant.
Re-sentence
The applicant’s record of prior offending is a significant concern. It has been comprehensively summarized by Grant CJ and Kelly J, and I do not need to refer to it detail. I am satisfied that the criminal history evidences a continuing attitude of disobedience of the law.
The relevant sentencing objectives are punishment, general and specific deterrence, denunciation and protection of the community.
In re-sentencing the appellant, I would take as my starting point a sentence of imprisonment of five years. That is higher than might normally be imposed for the applicant’s offending conduct, but it is justified by the need for specific deterrence (given the applicant’s prior record), and the need for the sentence to properly reflect the aggravating circumstance that the applicant was in breach of the full non-contact DVO referred to in [6] above. Indeed, as Grant CJ and Kelly J have identified,[57] it was the applicant’s second breach of that DVO.
Noting the applicant’s plea of guilty, which I consider had real utilitarian value and reflected his acknowledgment of wrongdoing, if not true remorse, I would reduce my starting point by 12 months. I would therefore impose a sentence of four years’ imprisonment, backdated to 20 April 2014 to reflect total time spent in custody on remand and as a sentenced prisoner.
Given the proposed re-sentencing, I do not need to decide whether the sentencing judge’s decision not to fix a non-parole period was in error. In my opinion, however, it would be difficult for the applicant to establish error in circumstances where his Honour indicated at the close of the Crown case that he was considering not fixing a non-parole period,[58] and where counsel for the applicant then conceded that, given the applicant’s history, it was “difficult to formulate any plausible argument” to persuade the court to embark on a direction other than that which his Honour had indicated.[59]
Exercising the discretion afresh, however, I note that (notwithstanding the applicant’s prior record), he had not previously served a term of actual imprisonment of more than eight months.[60] It does not appear that he had ever participated in rehabilitation programs. While his prospects for rehabilitation appeared poor at the time of sentencing, his sentence is lengthy, and the fixing of a non-parole period would not only be an incentive for his good behaviour as a serving prisoner but should also provide him with an incentive to fully participate in anger management and violent offender rehabilitation programs.[61] The outcome of any such participation would be taken into account by the Parole Board if the applicant were to apply for parole. The Parole Board would at that time have the benefit of up-to-date information as to the applicant’s attitudes as well as programs undertaken and completed.
It should not be overlooked that the fixing of a non-parole period is a benefit to the community, as well as to an offender. As Brennan and McHugh JJ observed in R v Shrestha:[62]
It is clear that, although a minimum term is a benefit for the offender, it is a benefit which the offender may be allowed only for the purpose of his rehabilitation and it must not be shortened beyond the lower limit of what might be reasonably regarded as a condign punishment. Moreover, the release of an offender for the purposes of rehabilitation through conditional freedom is not to be seen solely as a mercy to the offender but also, and essentially, as a benefit to the public.
If granted release on parole, the applicant would be tested in the community, and would be at all times subject to the negative incentive of early return to prison in the event of breach of the conditions of his parole.
Having regard to all the circumstances of the offence, I have determined that justice requires that the applicant serve two years and nine months of his sentence before being eligible to apply for parole. Accordingly, I would fix a non-parole period of two years and nine months.
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[1] This was the latest in a series of domestic violence orders designed to protect the victim from the appellant.
[2] A person may be found guilty under s 181 with unlawfully causing serious harm if he intended or foresaw serious harm as a possible consequence of his conduct: Criminal Code, s 31; Cole v The Queen [2010] NTCCA 2 at [10]–[12].
[3] Sentencing Act (NT), s 5(1).
[4] Lodhi v The Queen (2007) 179 A Crim R 470 per Spigelman CJ at [93].
[5] Sentencing Act (NT), s 5(1)(e); Veen v The Queen (No 2) (1988) 164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ at 476-477; Bugmy v The Queen (1990) 169 CLR 525 per Mason CJ and McHugh J at [16]; AB v The Queen (1999) 198 CLR 111 per McHugh J at [14]; Ryan v The Queen (2001) 206 CLR 267 per Hayne J at [147]; Fardon v Attorney-General (Qld) (2004) 223 CLR 575 per Gleeson CJ at [20]; Thomas v Mowbray (2007) 233 CLR 307 per Gummow and Crennan JJ at [109].
[6] R v Bannerman (unreported, NSWCCA, 10 March 1995); Director of Public Prosecutions (Vic) v Gull [2003] VSCA 123; R v Kane [2003] SASC 237 per Debelle J at [17]; R v Duncan (1983) 9 A Crim R 354.
[7] (1999) 105 A Crim R 512
[8] At [26]. See also Bulmer & Ors (1987) 25 A Crim R 155 at 162; Woodley & Ors (1994) 76 A Crim R 302.
[9] Daniel (1997) 94 A Crim R 96 at 126-127, 130; Yougie (1987) 33 A Crim R 301 at 303.
[10] (1993) 117 FLR 148 at 152. Cited with approval in R v Wurramara (1999) 105 A Crim R 512; Mawson v Nayda (unreported, Supreme Court of the Northern Territory, 31 October 1995); Fernando (1992) 76 A Crim R 58 at 62.
[11] [2007] NTCCA 7
[12] (2006) 163 A Crim R 381
[13] At [24] per Spigelman CJ.
[14] Veen v The Queen(1979) 143 CLR 458 at 467,468,482-483,495; Walden v Hensler(1987) 61 ALJR 646 at 650; Veen v The Queen (No 2) (1988) 164 CLR 465 at 477; Channon v The Queen (1978) 20 ALR 1 at 10.
[15] Subject to statutory exceptions such as that found in the Serious Sex Offenders Act (NT).
[16] (1988) 164 CLR 465 at 477. Cited in Liddy v R [2005] NTCCA 4 at [19].
[17] (2003) 212 CLR 629 at [32]; cited by Angel J in The Queen v Haji-Noor [2007] NTCCA 7 at [39].
[18] See, for example, Liddy v R [2005] NTCCA 4 at [12]; cited with approval in Morrow v The Queen [2013] NTCCA 7 at [36].
[19] R v Wurramara (1999) 105 A Crim R 512 at [37].
[20] JAW v The Queen [1996] 5 NTLR 211 at 223; citing R v Allinson (1987) 49 NTR 38; R v Visconti (1982) 2 NSWLR 104.
[21]Ibid.
[22] (2007) 20 NTLR 147 at [29]
[23] See, for example, Yardley v Betts (1979) 22 SASR 108.
[24] [2009] NTCCA 4 at [88]
[25] See, for example, R v Jabaltjari (1989) 46 NTR 47 at 67; R v Anzac (1987) 50 NTR 6 at 15.
[26] JAW v The Queen [1996] 5 NTLR 211 at 220.
[27] Wheeler v Eaton [2012] NTSC 80 at [17] referring to Taylor v Malagorski [2011] NTSC 98 at [24] and C v Gokel [1999] NTSC 93 at [14]-[15].
[28] The jurisdictional limit of imprisonment for two years “upon being found guilty summarily” has been removed from s 188 of the Criminal Code.
[29] [2009] NTCCA 1
[30] (1990-1991) 173 CLR 48.
[31] The Queen v Shrestha (1990-1991) 173 CLR 48 at 67-69.
[32] Power v R (1974) 131 CLR 623 at 629.
[33] Sullivan v R (1987) 47 NTR 31 at 35.
[34] In this context, the victim’s comments referred to at [28] above are of particular relevance and were properly taken into account by the sentencing judge.
[35] Cf Bugmy v The Queen (1990) 169 CLR 525 at 536-537.
[36] Criminal Code, s 429(2); Appeal Book, p 71.
[37] Appeal Book, pp 11 - 12; 13 (medical evidence).
[38] The prosecutor told the court that KA did not wish to add anything to her statement: Appeal Book, p 5.8. There was no evidence as to the duration of her incapacity, or the period of rehabilitation.
[39] Appeal Book, p 49.
[40] Appeal Book, p 51.9.
[41] Appeal Book, p 52.
[42] Criminal Code (NT), s 31(1); Cole v The Queen [2010] NTCCA 2 at [10] – [12].
[43] R v Crabbe (1985) 156 CLR 464 at 469.
[44] Made in relation to the trial judge’s misdirection.
[45] A von Hirsch, Doing Justice, The Choice of Punishments (Hill and Wang, 1986) pp 64 - 65, cited in Fox and Freiberg, Sentencing: State and Federal law in Victoria, 3rd edition (Law Book Company 2014) at [4.35].
[46] Cheung v The Queen (2001) 209 CLR 1 at [9], [10], [12], [14]-[15], [48].
[47] R v Isaacs (1997) 41 NSWLR 374 at 377 - 378, per Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ, cited with approval in Cheung v The Queen (2001) 209 CLR 1 at [13]-[14].
[48] Noted in the Hermannsburg Community Clinic records: statement Arthur Turow, Appeal Book. p 13. This was consistent with the Crown facts, Appeal Book, p 11.9: “the victim went to walk past”.
[49] Meissner v The Queen (1995) 184 CLR 132 at 157.5, per Dawson J.
[50] See the observation of Lawton LJ in R v Inns (1974) 60 Cr App R 231 at 233, cited with approval in Meissner v The Queen (1995) 184 CLR 132 at 141, per Brennan, Toohey and McHugh JJ.
[51] Appeal Book p 7.7.
[52] R v Wurramara [1999] NTCCA 45; (1999) 105 A Crim R 512 at [44].
[53] The evidence suggests that the applicant had probably been sleeping with his boots before being awoken by the victim.
[54] See Appeal Book, p 8.9.
[55] R v Geoffrey Wilson [2011] NTCCA 9 [39]; see also JKL v The Queen [2011] NTCCA 7 [28].
[56] Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.
[57] Joint reasons at [27].
[58] Appeal Book, p 7.1.
[59] Appeal Book, p 10.1.
[60] On 30 December 2010, the applicant was convicted of two DVO contraventions and two counts of male-on-female aggravated assault causing harm, one committed on 22 December and the other on 25 December 2010, and two corresponding DVO contraventions. He was sentenced to a total of 7 months and 2 weeks’ imprisonment.
[61] Bugmy v The Queen (1990) 169 CLR 525 at 536.9 per Dawson, Toohey and Gaudron JJ.
[62] R v Shrestha (1991) 173 CLR 48 at 63.8.
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