Hardy v Rigby
[2020] NTSC 42
•10 July 2020
CITATION:Hardy v Rigby [2020] NTSC 42
PARTIES:HARDY, Shaun Christopher
v
RIGBY, Kerry Leanne
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:LCA 1 of 2020 (21934321)
DELIVERED: 10 July 2020
HEARING DATE: 12 June 2020
JUDGMENT OF: Hiley J
CATCHWORDS:
CRIME – Appeals – Appeal against sentence – Appeal against recording of conviction – principles when applying s 8(1) of the Sentencing Act – Mature age man of good character – More serious offending is less likely to warrant no conviction – Onus on accused to establish the impact of a conviction upon employment or employment prospects
CRIME – Sentencing – Aggravated Assault – Domestic Violence – Seriousness – Strangulation – Involvement of child – Importance of denunciation and deterrence – Relevance of the views of the victim – Whether good behaviour order should have included conditions designed to assist the offender to overcome possible mental health issues
Criminal Code 1983 (NT), s 188
Mental Health and Related Services Act 1998 (NT), s 77
Sentencing Act 1995 (NT), s 5, s 8, s 106BSentencing Act 1991 (Vic), s 8(1)(c)
Summary Offences Act 1923 (NT), s 56A
Penalties and Sentences Act 1992 (Qld), s 12(2)(c)(ii)1Rigby v Benfell [2020] NTCA 9, applied
Allen v Kerr [2009] TASSC 10, Bell v R [2005] ACTSC 123, Bropho v Hall [2015] WASC 50, Carnese v The Queen [2009] NTCCA 8, Cobiac v Liddy (1969) 119 CLR 257, Court v Magtibay [2019] NTSC 12, DPP v Foster [2019] TASCCA 15, Emitja v The Queen (2016) 39 NTLR 159, Fairbrother; ex parte A-G (Qld) [2005] QCA 105, Field v Edwards (2016) 36 NTLR, Fillipou v The Queen (2015) 256 CLR 47, Gillespie v The Queen [2016] WASCA 216, Gore v R; Hunter v R (2010) 208 A Crim R 353, Gregson v Tasmania [2018] TASCCA 14, Hales v Adams [2005] NTSC 86, Hardwick v Tasmania [2020] TASCCA 2, Hatzimihal v Wesphal [2011] NTSC 61, Hesseen v Burgoyne [2003] NTSC 47, Hutcheon v West [2015] ACTSC 55, Jones v Morley (1981) 29 SASR 57, McMaster v The Queen [2019] NTCCA 25, Noakes v The Queen [2015] NTCCA 7, Pasa v Bell [2014] ACTSC 303, Pasinis v The Queen [2014] VSCA 97, R v Allinson (1987) 49 NTR 38, R v Cay; Ex parte Attorney-General (Qld) (2005) 158 A Crim R 488, R v CLP [2008] VSCA 113, R v Eckermann [2013] NSWCCA 188, R v Fairbrother; ex parte Attorney-General (Qld) [2005] QCA 105, R v Fullalove (1993) 68 A Crim R 486, R v Guode (2020) 94 ALJR 336, R v Haji-Noor (2016) 39 NTLR 159, R v Hamid (2006) 164 A Crim R 179, R v Kilic (2016) 259 CLR 256, R v Koch [2015] SAFCSC 31, R v Lancaster (1991) 58 A Crim R 290, R v LFJ [2009] VSCA 134, R v Major; ex parte Attorney-General [2012] 1 Qd R 465, R v MDB [2018] QCA 283, R v Okutgen (1982) 8 A Crim R 262, R v Olbrich (1999) 199 CLR 270, R v Palu (2002) 134 A Crim R 174, R v Rowe (1996) 89 A Crim R 467, R v Verdins (2007) 16 VR 269, Rogers v Andreou [2017] NTSC 63, Ryan v The Queen (2001) 206 CLR 267, The Queen v McInerney (1986) 42 SASR 111, Theodoros v Holmes (1989) 50 SASR 373, Toohey v Peach (2003) 141 A Crim R 437 , Walker v Verity [2010] NTSC 68, Whitehurst v The Queen [2011] NTCCA 11, Wyper v The Queen; The Queen v Wyper [2017] ACTCA 59, referred to
A Freiberg, Fox & Freiberg's Sentencing: State and Federal Law in Victoria, Lawbook Co, 2014 (Third Edition)
REPRESENTATION:
Counsel:
Appellant:J Lawrence SC
Respondent: D Castor
Solicitors:
Appellant:-
Respondent: Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Hil2011
Number of pages: 40
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINHardy v Rigby [2020] NTSC 42
No. LCA 1 of 2020 (21934321)
BETWEEN:
SHAUN CHRISTOPHER HARDY
Appellant
AND:
KERRY LEANNE RIGBY
Respondent
CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 10 July 2020)
Introduction
On 11 December 2019 the appellant pleaded guilty to unlawfully assaulting his wife (the victim or SH) on 13 September 2019. The assault was aggravated by the facts that the victim suffered harm, the victim was a female and the appellant was a male, and the victim was unable to effectually defend herself.[1] Later that day the Local Court convicted the appellant of that offence and sentenced him to a 12 month good behaviour bond. The appellant appealed against the recording of the conviction.[2]
At the hearing the appellant pursued the following six grounds of appeal:
1.In all the circumstances of the case the learned judge gave too much weight to the sentencing principle of “denunciation”.
2.The learned judge failed to give sufficient weight to the evidence of positive good character including contrition and remorse.
3.The learned judge failed to take into account the views of the victim of the crime.
4.The learned judge erred in law by choosing to record a conviction in all the circumstances of the case.
5.The learned judge erred in giving insufficient weight to all of the evidence concerning the appellant’s mental health and consequently failed to include in the sentence appropriate conditions to address his mental health.
6.The learned judge erred by taking into account the irrelevant consideration of prospective legislation increasing the penalty for assaults by strangulation.
Apart from the second part of ground 5 the appeal is effectively that the sentence was manifestly excessive because it included the recording of the conviction.
Relevant principles
It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error is shown. The presumption is that there is no error. The appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is excessive. It interferes only if it is shown that the sentencing judge was in error. The error may appear in what the sentencing judge said in the proceeding or the sentence itself may be so excessive as to manifest such error. It must be shown that the sentence was clearly and not just arguably excessive.[3]
The principles relevant to the entering of a conviction are well established. They have been discussed in various cases in this Court including Hesseen v Burgoyne[4]; Toohey v Peach[5]; Hales v Adams[6]; Carnese v The Queen[7]; Rogers v Andreou[8]; Court v Magtibay[9]; and most recently by the Northern Territory Court of Appeal in Rigby v Benfell[10].
Section 8 of the Sentencing Act1995 (NT) (the Act) identifies a number of non-exhaustive factors for a court to consider in relation to recording or not recording a conviction. It states:
8. Conviction or non-conviction
(1) In deciding whether or not to record a conviction, a court shall have regard to the circumstances of the case including:
(a)the character, antecedents, age, health or mental condition of the offender;
(b)the extent, if any, to which the offence is of a trivial nature; or
(c)the extent, if any, to which the offence was committed under extenuating circumstances.
In Benfell the Court of Appeal identified the following principles concerning the operation of s 8(1) of the Sentencing Act.
[14] First, a conviction operates as a significant act of legal and social censure[11] and the determination whether or not to record a conviction is significant for that reason alone.
[15] Second, the three limbs of s 8(1) of the Sentencing Act operate disjunctively. The sentencing court does not have to find good character, triviality and extenuating circumstances before making a “non-conviction” order.[12] However, the sentencing court must give consideration to all three limbs in determining the matter.
[16] Third, the provision is inclusive rather than exhaustive of the matters properly taken into account in the exercise of the discretion. The sentencing court should properly give consideration to all relevant circumstances. So, by way of example, even where an offender’s character, antecedents and age might militate in favour of a “non-conviction” disposition, it will still be necessary for the sentencing court to weigh those matters against the seriousness of the offending.
[17] Fourth, the threshold requirement for any decision not to record a conviction is some satisfaction that one or more of the prescribed considerations, and the other circumstances of the case, would “provide a sufficient ground for a reasonable man [or woman] to hold that it would be expedient to extend the leniency which the statute permits”.[13] The sentencing court must then actively determine whether the circumstances support the exercise of the discretion in that manner.[14] The existence of a prescribed state of affairs is not a “mere peg” on which to hang leniency.[15]
[18] Fifth, even where character and antecedents might militate in favour of a “non-conviction” disposition, the recording of a conviction may be necessary where the offender is of mature age and deterrence is being given weight, especially in relation to breaches of regulatory or social legislation.[16]
Relevant to the present matter and the importance of denunciation, I would add to the first principle by expressing my view that a conviction is a statement by the court about the offending behaviour which the court on behalf of the community denounces as being incompatible with the values of contemporary society.
It has also been acknowledged that “[t]he more serious or blatant an offence, the less proportionate it is for the Court of Summary Jurisdiction to decline to record a conviction”[17] and “there will obviously be circumstances in which the seriousness of the offending will require a conviction notwithstanding that the offender might be of otherwise unblemished character”.[18]
In Benfell the Court said, at [29]:
In determining whether or not to record a conviction, the sentencing court infers as a matter of course that a recorded conviction may have a future impact on the offender’s economic and social well-being in this general and potential sense.[19] Even allowing for those potential consequences, the more serious the offence the less appropriate it is for the sentencing court to decline to record a conviction.[20] Although it cannot be said that a “non-conviction” disposition in relation to an adult offender should be reserved for special or unusual cases, or that there is a presumption a conviction will be recorded, in most cases the nature of the offence is such that a conviction will be imposed.
The Court in Benfell then discussed the principles to be applied where the court is asked to take into account the impact of a conviction on an offender’s present employment or future employment prospects. The Court said, at [30] to [33]:
[30] In cases where the question is more finely balanced, there may be some particular or specific matter which gives rise to a tension between the public interest in recording a conviction and the beneficial effect for the offender of not recording a conviction or, conversely, the prejudicial effect of doing so. For example, a conviction might necessarily lead to the loss of a licence which the offender presently holds and which is necessary for his or her continuing employment, as was the case in Carnese. In the matter the subject of this appeal, the respondent asserted that a particular or specific detriment would flow from the recording of a conviction in the form of a prejudicial impact on his ability to secure employment as a pilot with a major airline carrier.
[31] Unlike the sentencing legislation in some other jurisdictions[21], s 8(1) of the Sentencing Act makes no specific reference to the impact of a conviction on the offender’s present employment or future employment prospects. It is nevertheless a factor which forms part of the “circumstances of the case” within the meaning of s 8(1) of the Sentencing Act, and in some matters may operate as an extenuating circumstance.[22] Where an assertion of particular or specific detriment of this type is made by an offender, the onus is on the offender to prove that matter on the balance of probabilities. This is no more than a specific application of the general rule that a sentencing judge may not take facts into account for sentencing purposes in a way that is adverse to an offender unless those facts have been established beyond reasonable doubt; and, contrastingly, the offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour.[23] As Freiberg states:[24]
An offender who wishes a court to take into account any possible loss of employment either generally, or in a particular field, as a reason for not formally recording a conviction should, in the absence of agreement with the prosecution to that effect, call evidence to prove the loss, or the likelihood of prejudice. Reliance on what counsel asserts to be the fact may not be sufficient if unaccompanied by documentary or oral evidence.
[32] This principle is illustrated in the decision of the South Australian Supreme Court in Theodoros v Holmes[25], in which the question was whether a conviction would give rise to “jeopardy in employment”. The particular assertion was that a conviction would bar the appellant from entry to the finance and security industry. The Court ultimately held that the magistrate must have had clearly in mind the possible effect of a conviction on employment generally, but that risk was not sufficient to have “diverted the magistrate from the course which he did follow”. That course was the recording of a conviction. In relation to the evidentiary issue, the Court stated:[26]
If a defendant wishes a Court to take into account that he may not get employment or may lose employment, either generally or in a particular field, then in default of concession by the Crown or the complainant, he must call evidence to prove it or to prove the likelihood of it.
[33] In some jurisdictions the approach may be influenced by the language of the provision. Section 12(2)(c)(ii) of the Penalties and Sentences Act 1992 (Qld) provides expressly that in exercising the discretion to record or not record a conviction, the sentencing court must have regard to “the impact that recording a conviction will have on the offender’s … chances of finding employment”. Differing views have been expressed as to whether that formulation requires a positive finding that a conviction would have a discernible impact on the chances of finding employment.[27] That divergence of views is not of great significance in this jurisdiction, where the operative provision requires the sentencing court to have regard to “the circumstances of the case”. As already described, the sentencing exercise is always undertaken with regard to the impact recording a conviction may have on the offender’s economic and social well-being in a general sense. However, the onus will remain on the offender to establish any specific or particular impact asserted in that respect.
Facts, submissions and conclusions of the Local Court
The appellant and SH had been married for seven years and had a seven-year-old son (AB). At about 10 pm on 12 September 2019 the appellant and SH went to sleep at their home in Stuart Park. About two hours later the appellant awoke and for unknown reasons became anxious and aggressive. He got out of bed and began demanding that SH “tell [him] the answer”. He would not let SH go back to sleep. He said to her: “no one will be sleeping tonight”, and “I’m not afraid to murder.” While demanding repeatedly that SH “tell [him] the answer” he removed her mobile phone from the bedside table. He walked to the lounge room and unplugged the home telephone so SH was unable to call for help. SH then got out of bed and went to the lounge room where the appellant was. The appellant then placed both hands around SH’s neck and began to squeeze, causing her immediate pain. He pushed her onto a lounge chair and said: “this will be the end tonight”. The appellant then began to drag SH by her throat towards the kitchen saying: “one of us has to die and it will be you.” SH called out to her son AB and managed to free herself from the appellant. She then took AB’s arm and ran towards the front door. The appellant grabbed AB’s arm preventing him from leaving the house. The appellant locked the door and refused to open it to let AB out. SH ran to a neighbour’s place to call the police. Police attended and negotiated with the appellant to come outside. The appellant was arrested and taken to the Darwin Watch House. He declined to take part in an electronic record of interview.[28]
As a result of the assault SH suffered pain and bruising to her neck area. She did not seek medical attention. In her Victim Impact Statement made on the same day[29] SH said that she had bruising around her neck and that her neck and throat were very sore. She said she was “very very scared” and “was scared [the appellant] was going to kill her and [her] son”. She also said she is very scared of the appellant and scared for her son’s safety, “scared of what is going to happen” and feels that the appellant “will kill [her] one day.” When asked what she would like the judge to order in relation to the appellant she said that she would like the appellant “to get help with his mental health”.
At the hearing, Mr Ledek, the prosecutor, informed the judge that there was now a no contact domestic violence order in place. He said, on behalf of SH, that “she still extends feelings of warmth and love to her partner and … she believes he is a good person and that he needs help, and she wants him to get the help that he needs.”[30]
Mr Lawrence SC, counsel for the appellant, tendered:
(a)three references (Exhibit 4)[31]; and
(b)a “Confidential Court Report” dated December 2019 prepared by Henry Kwiatkowski, a registered psychologist with “EASA / CORP Workplace Solutions” (Exhibit 5) (the EASA Report).
The Local Court had previously requested and obtained a report for possible use under s 77 of the Mental Health and Related Services Act 1998 (NT) (the MHRA). The report, dated 24 September 2019 and titled “Confidential Psychiatric Report”, was written by James Gazzard, “Clinical Nurse Specialist, Designated Mental Health Practitioner, Forensic Mental Health Team – Court Clinician” (Mr Gazzard’s Report). It was later marked as Exhibit 6.
In his report Mr Kwiatkowski stated that the appellant had attended two telephone sessions, on the 3rd and 10th of October, and had pre-booked face-to-face sessions for the next few weeks. He did not undertake any psychological testing. Supportive counselling was the main objective. He said that the appellant was “committed to future counselling support.” Mr Lawrence SC told the Court that the appellant also had one face-to-face session with Mr Kwiatkowski the previous Friday and would be having another one in about a week’s time.
Mr Lawrence SC proceeded to address the Court in relation to the appellant’s good family upbringing, his previous good character, his excellent work record, mainly in the public service, and his extensive involvement with Australian Rules football.
Mr Lawrence SC told the judge that “the offending was brought about by the defendant who is suffering and experiencing mental unwellness.”[32] He pointed out that SH had said that the appellant should receive treatment for his mental condition and he said “that should be the central aim of the disposition today.” Counsel stressed that “his outburst that night had nothing to do with jealousy … It was just a genuine piece of derangement, probably triggered by a lot of stress that he was under between a combination of his work, moving from Port Keats and Darwin to and fro, and increasing work pressures.”[33]
Mr Lawrence SC said that “whatever sentence he gets, it should have central to it” the continuation of the appellant’s “treatment with a specialist in mental health.” Her Honour then asked: “Treatment for what though, Mr Lawrence?” Her Honour referred counsel to Mr Gazzard’s report and to the “impression” of the author that: “The author has no evidence past or present to suggest these episodes [sic] being driven by a mental illness or disturbance.” Her Honour said that she did not have anything from an expert to say what mental disturbance if any the appellant had and what treatment was said to be appropriate.[34]
Mr Lawrence SC said he accepted what her Honour had just said but that the conclusion that he had “a mental apparition” is apparent from the offending itself, which “is disturbing”. He then said:
I guess I’m just saying at least it gives the court some comfort that if that is indeed something that’s there, without direct evidence I concede at this point, then it will be discovered by counselling sessions. So, having said that, and I guess become ad idem that, my submission in relation to penalty is that your Honour can consider s 8 here in view of obviously nothing to do with the offence which is very serious, nor really extenuating because I can’t see anything extenuating other than stress and we’re all under stress and that explains too many offences.[35]
Mr Lawrence SC repeated that the appellant had outstanding antecedents and character, pointed out that he had spent 14 days in prison on remand before getting bail, referred to his early plea and remorse and the no further contact domestic violence order that was in place. He submitted that at the age of 52 “to brand him now with a conviction would be quite a severe penalty for him and could affect his future as well.”[36] Counsel did not say any more about this contention except to refer the judge to a 1988 decision of a single judge of this Court refusing to allow a Crown appeal against a magistrate’s decision not to enter a conviction of a 49 year old man who had suffered a mental breakdown and stress at the time of possessing an offensive weapon at night contrary to s 56A of the Summary Offences Act1923 (NT).[37]
Mr Ledek referred to the prevalence of this kind of offending. He also stressed the additional circumstances that the seven-year-old child was also involved and that the victim and her child were vulnerable and not able to use a telephone to contact anybody for help. He pointed to the absence of an explanation for the offending, and to the conclusions expressed by Mr Gazzard to the effect that there were no ongoing serious mental health issues that would operate or warrant a full investigation under the MHRA.[38]
In reply Mr Lawrence SC told her Honour that the Court could impose “a bond with conditions and so forth which really should satisfy the Court, the community and … the victim.”[39] Following further discussion with senior counsel her Honour then marked Mr Gazzard’s report as an exhibit and ordered that the appellant be assessed for supervision.[40]
A probation and parole officer interviewed the appellant and provided the Court with a report (the Supervision Report).[41] The appellant told the probation and parole officer that he was “employed full-time as a CEO for the West Daily Regional Council at Wadeye, but was unsure if he would be able to maintain this employment upon conviction for the current offence.”[42] The probation and parole officer noted that the appellant had complied with his bail conditions and was remorseful. The appellant told the officer that “at the time the offence occurred he was sober and not under the influence of any illicit substance, noting he has never suffered from substance abuse issues.” Consequently, the appellant had “no identifiable interventions required”. For those reasons he was found unsuitable for supervision by Correctional Services.
When the Local Court resumed after lunch the Supervision Report was discussed. Mr Lawrence SC pointed out that despite the reluctance of Correctional Services to supervise the appellant “that doesn’t stop you from putting him under a bond that has got supervision and that he continues with his counselling.”[43]
Her Honour proceeded to sentence the appellant. After noting the appellant’s early plea and his entitlement to a discount, her Honour referred to the seriousness of the offending. [44]
It is a serious aggravated assault. The victim of that assault is your wife. You have been with her for some seven years and you have a seven year old son together. What occurred was in the night between 12 and 13 September. After you had gone to bed, for some reason you became anxious and aggressive and you got out of bed and were demanding things of your wife and said things along the lines of “No one will be sleeping tonight” and “I’m not afraid to murder”.
Those things, by themselves in that context of coming up in the middle of the night, where it didn’t appear as though there had been any build up would, of course, have been extremely frightening for your wife. You demanded she repeatedly tell you the answer. You removed her mobile phone from the bedside table and unplugged the home telephone. Again, whilst you are not charged with any offence surrounding that, the circumstances of doing that would have indeed frightened her.
She got out of bed and went to the lounge room. You then placed your hands around her neck and squeezed, causing her immediate pain, pushed her onto the lounge chair and said: “This will be the end tonight.” You then dragged her by the throat towards the kitchen, saying: “One of us has to die and it will be you.”
She called out to your son and managed to free herself from you, took your son’s arm and ran towards the door. But you prevented your son from leaving and locked the door and refused to open it to let the child out. She then ran to the neighbours to call police.
Her Honour proceeded to summarise the effect of the offending upon SH and noted that SH would like the appellant to get some help with his mental health. Her Honour then referred to the appellant’s background, his excellent work history and his involvement with Australian Rules and his good character, and accepted that this offending was out of character for him.[45]
Her Honour then discussed the mental health issue at some length. She noted that the appellant had had some counselling with EASA and intended to continue with that counselling. She also noted that when the nature of the charge and the appellant’s circumstances were first brought to the attention of the Court the preliminary report was ordered for the purposes of possible use under the MHRA. Her Honour noted references in Mr Gazzard’s Report to information provided by SH about episodes of the appellant getting angry for no reason over a period prior to the offending and that Mr Gazzard found no evidence to suggest that those episodes were being driven by a mental illness or disturbance. Her Honour said that apart from the letter from Mr Kwiatkowski stating that the appellant had participated in some counselling she had no other evidence on which to say that he was suffering from any kind of mental illness or mental impairment in relation to this offending. After finding that his offending was out of character her Honour said:
However, I have no explanation, apart from the stresses that you may have been under of which I am unaware, about why you would react in this particularly frightening manner on this particular evening.[46]
Her Honour then noted that the appellant’s relationship with SH appeared to have ended, that the appellant was still employed and his employer has been supportive throughout the process, and that he had spent about 14 days on remand from the date of the offending until 26 September when he was released on bail.
Her Honour then said[47]:
Domestic violence, of course, is a prevalent offence and it is one where general deterrence – that is, sending a message to the community - is very important about the seriousness of this kind of offending. It is not something that should be, and is, just kept within the home or within the family. It is also important in relation to this particular offence, in my view, in relation to something called denunciation; that is explaining how serious this kind of offence is.
Placing your hands around someone’s neck and beginning to squeeze is a serious aggravated assault. In fact, the legislation is just about to or has just introduced some legislation into Parliament which actually creates a separate offence in relation to choking or strangling, which increases the penalty. That legislation hasn’t started. You are not involved with that legislation, but it indicates a recognition by the community about the seriousness of that kind of offence.
After noting that the appellant was entitled to a discount because of his guilty plea her Honour referred to Mr Lawrence’s submissions to the effect that the Court should consider s 8 of the Sentencing Act and not record a conviction. Her Honour said:[48]
Merely because a matter is serious, as this was, does not necessarily mean that you cannot consider not imposing a conviction. I do consider that section. However, after considering all of the factors in relation to this case; and in particular, the denunciation of this kind of offence, I am going to be imposing a conviction on you in relation to this matter.
Despite, of course, your very good record - and certainly, if you did not have such a record, you would certainly be facing a sentence of actual imprisonment in relation to this, but you are entitled to rely on that record and the contribution that you have made to the community over quite a few years, both in the Northern Territory, and obviously, in other parts of Australia. However, the offence, occurring as it did, some of which was in the presence of your son, and the serious nature of this particular offence, in my view, outweighs those other factors when I consider whether or not to impose a conviction.
Her Honour continued:[49]
So, I will be imposing a conviction. I do note that you did spend that time in custody, which is also part of the punishment that you have received in relation to the offence. I intend to then release you on a good behaviour order for 12 months. …
I do not intend to put any conditions on that order. However, I would, of course, encourage you to continue with professional assistance, so that this kind of offence does not occur again.
Then followed extensive discussion about the no contact restraining order and its conditions.
Other Materials
At the hearing of the appeal Mr Lawrence SC was critical of her Honour for not referring to materials, or some parts of materials, that were not part of the evidence before the Local Court. This included:
(a)a Bail Assessment Report dated 26 September 2019 prepared by Mr Ken James, Team Leader, at the request of Judge Austin on 20 September;[50]
(b)the Supervision Report ordered by Chief Judge Morris on 11 December 2019 and received later that day, prior to sentencing;[51] and
(c)part of a statutory declaration made by SH sometime soon after the offending.
In relation to the Bail Assessment Report Mr Lawrence SC contended that the judge should have taken into account that SH told Mr James that she “believes [the offender] needs some medication or counselling to assist with managing his stress.”[52] However, Mr Lawrence SC did not ask her Honour to treat the Bail Assessment Report as part of the evidence or otherwise refer to this part of it. I note that SH also told Mr James that she did not wish for any contact with the offender until the court matters were completed.
In relation to the Supervision Report, Mr Lawrence SC was critical of her Honour’s failure to expressly acknowledge the appellant’s assertion that he was “unsure if he would be able to maintain this employment upon conviction for the current offence”.[53] Again, Mr Lawrence SC did not refer her Honour to this part of the Supervision Report, particularly when he made the submission that “a conviction would be quite a severe penalty for him and could affect his future as well”.[54] Further, as I have pointed out, there was no other evidence that a conviction would detrimentally affect the appellant’s employment. The appellant did not satisfy his onus of establishing this.[55]
Mr Lawrence’s reference to a statutory declaration of SH came in the context of references in Mr Gazzard’s Report to information that Mr Gazzard had gleaned from SH, apparently from a statutory declaration that she had made. Mr Lawrence SC criticised her Honour’s reliance on the conclusions expressed by Mr Gazzard because they were partly based on information that Mr Gazzard must have obtained from SH.
In addition to Mr Gazzard’s express reference to SH’s statement that: “He sometimes gets angry for no reason but I let him talk and he comes down”[56] Mr Lawrence SC contended that a number of the questions which Mr Gazzard asked the appellant during the “mental state examination” must only have been asked because of information previously provided to Mr Gazzard by SH. These questions included, for example, whether the appellant was “paranoid regarding his wife, family and colleagues”, whether he has had “ideas of reference, telepathy, having special powers, control or passivity, thought insertion and thought withdrawal”, and whether he has “perceptual disturbances” or experiences “command hallucinations”.
I reject these attacks on her Honour’s references to and reliance upon Mr Gazzard’s Report. Although Mr Lawrence SC did not tender the report as part of his case he later agreed to it being marked as an exhibit, knowing that her Honour had already referred to it and may refer to it when considering the sentence. Apart from the few references to counselling in the EASA Report, Mr Gazzard’s Report was the only expert evidence before the Court relating to the appellant’s mental condition. Moreover, I expect that Mr Lawrence SC and those instructing him would already have had access to and copies of all of the materials that were available to Mr Gazzard, including SH’s statutory declaration. No attempt was made to put any of those materials before the Court, to object to any part of Mr Gazzard’s Report going into evidence, to cross-examine Mr Gazzard or SH, or to seek an adjournment in order to obtain further instructions or other medical evidence about the asserted mental condition of the appellant.
When it was pointed out to him that neither the Bail Assessment Report nor the Supervision Report were marked as exhibits or otherwise put into evidence Mr Lawrence SC contended that the judge still had an obligation to have regard to their contents in the process of determining the appropriate sentence. No authority was advanced in support of that contention.
I reject that contention, particularly in circumstances, such as in the present case, where senior counsel did not expressly refer to particular parts of those documents which he wished the judge to consider. Had counsel made such express reference, opposing counsel would have been able to respond and the judge would have been able to engage with counsel concerning the use to which such material might be put. Particularly in a busy court such as the Local Court, the judge is entitled to rely on counsel to clearly identify materials relied upon and what use is to be made of such materials, when presenting submissions on sentence. Indeed a judge might be criticised for having regard to materials not in evidence and not referred to by counsel. Counsel, particularly experienced counsel, may have made a deliberate forensic decision not to tender or rely on particular material.
Domestic violence
Domestic violence has been and continues to be a serious concern in today’s society. In Fairbrother; ex parte A-G (Qld)[57] McMurdo P said, Jerrard JA and Cullinane J agreeing:
Domestic violence is an insidious, prevalent and serious problem in our society. Victims are often too ashamed to publicly complain, partly because of misguided feelings of guilt and responsibility for the perpetrator's actions. Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of their offending, claiming an entitlement to behave in that way or at least to be forgiven by the victim and to evade punishment by society. Domestic violence has a deleterious on-going impact not only on the immediate victim but on the victim's wider family and ultimately on the whole of society. It is not solely a domestic issue; it is a crime against the State warranting salutary punishment. The cost to the community in terms of lost income and productivity, medical and psychological treatment and on-going social problems is immense. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the courts to impose significant sentences of imprisonment involving actual custody to deter not only individual offenders but also others who might otherwise think they can commit such acts with near impunity.
Despite repeated references to the seriousness of domestic violence in the media, public campaigns and elsewhere, most if not all cases involving domestic violence call for denunciation and sentences aimed at deterring others from engaging in such conduct, whether it be physical or emotional or both. Many cases require sentences that also reflect the need for personal deterrence and protection of the community.
In The Queen v Kilic[58], the High Court observed that “current sentencing practices for offences involving domestic violence [may] depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations”.
In Emitja the Northern Territory Court of Criminal Appeal (Grant CJ and Kelly J) said:
There are … 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.
Their Honours quoted the following observations of Southwood J in R v Haji-Noor[59] at [183] and [184]:
[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] … General deterrence, specific deterrence, retribution and denunciation were the paramount considerations in the exercise of the sentencing discretion.
Similar views have been consistently expressed in the decisions of other intermediate appellate courts throughout Australia.[60] In R v Major; ex parte Attorney-General[61] McMurdo P said:
Deterrence, both personal and general, is an important factor in sentencing in domestic violence cases. So too is denunciation. The community through the courts seeks sentences which show the public disapprobation of such conduct. The effects of domestic violence go beyond the trauma suffered by victims, survivors and their children to their extended families, and friends. Domestic violence also detrimentally affects the wider community, causing lost economic productivity and added financial strain to community funded social security and health systems.
Mr Lawrence SC provided this Court with a definition of “domestic violence” used by White Ribbon Australia:
Domestic violence refers to violence, abuse and intimidation between people who are currently or have previously been in an intimate relationship. The perpetrator uses violence to control and dominate the other person. This causes fear, physical harm and/or psychological harm. Domestic violence is a violation of human rights.[62]
Although he acknowledged that this offending would be seen as a domestic violence offence Mr Lawrence SC contended that the present offending did not readily fall within the scope of domestic violence of the kind referred to in the White Ribbon definition and often before the courts. In particular there was no criminal history of prior offending of this nature and no real evidence of prior incidents of domestic violence. While I accept those points of distinction, the present offending was an instance of domestic violence. It involved the use and threats of violence to control and dominate the appellant’s wife so she would “tell [him] the answer”. Although the question which the appellant wanted answered was unknown to the Local Court it must have been a question which the appellant considered should be answered by his wife.
Objective seriousness
The offending was, as acknowledged by both counsel, very serious. I would place the offending at the middle range of seriousness for this kind of offence, namely assaulting a vulnerable female and causing her harm. I agree with her Honour’s description quoted in [27] above. Amongst other things the offending was particularly serious including as it did threats to kill SH, squeezing SH by the throat with both hands then dragging her by the throat towards the kitchen, removing her access to telephones and thus help in the early hours of the morning, and the involvement of SH’s seven-year-old son and locking the doors so he could not escape.
I agree with Mr Castor, counsel for the respondent, the fact the appellant grabbed SH by the throat and squeezed her throat was a significant factor in the sentencing calculus. Counsel referred the Court to the following observations in DPP v Foster[63]:
Lest it be thought that grabbing the complainant by the throat and applying pressure is somehow less insidious than punching or kicking, it has been noted in an article by Heather Douglas and Robin Fitzgerald entitled "Strangulation, Domestic Violence and the Legal Response", published in the [2014] SydLawRw 11; (2014) 36 (2) Sydney Law Review 231, that strangulation is a form of power and control that can have devastating psychological long-term effects on its victims in addition to a potentially fatal outcome.
Choking can cause loss of consciousness and can cause death quickly. It has been suggested that death can occur within seven to fourteen seconds. Additionally, underlying internal injuries caused by the pressure applied to the throat can cause swelling which may develop gradually over days and airways obstruction causing death may be delayed.
Mr Castor also referred to the detailed comments about strangulation in the recent decision of the Tasmanian Court of Criminal Appeal in Hardwick v Tasmania[64] from [49] to [53] concluding with the following observation:
His Honour was correct in regarding the choking of the victim as a “particularly concerning aspect” of the assault. In recent years, criminal courts across Australia have come to understand that choking of female victims by male offenders is a prevalent and dangerous feature of violence perpetrated in domestic circumstances.
In the present matter it is also significant that before he began to choke SH he had removed her access to the telephones and thus outside help. It was also an aggravating feature that the appellant exposed his seven-year-old son to domestic violence.[65]
Ground 1 – denunciation
Mr Lawrence SC referred to the fact that her Honour referred to denunciation on two occasions in the course of her sentencing remarks. They are the references which I have identified by underlining in the quotations that I have set out in [31] and [32] above. Counsel then referred to the respondent’s references to R v Major and DPP v Foster and sought to distinguish them on the basis that both involved more serious offending by an offender with a long history of a similar offending.
Mr Castor pointed out that Mr Lawrence SC had made concessions that there was no direct evidence of mental illness or disturbance and was unable to identify anything extenuating other than stress.[66] He stressed that domestic violence is no longer a private affair, as is well recognised by the various decisions at appellate court level referred to above. He also stressed the particular aggravating features of this form of domestic violence including as it did exercise of control and domination by choking and by removing telephone access, and by involving the child.
I agree with those contentions. Her Honour was right to stress denunciation as an important factor in this case, as it would be in most domestic violence cases. See for example the discussion and authorities referred to in [43] to [48] above. See too Hutcheon v West[67], also a domestic violence case involving choking, where Burns J observed that:
Superior courts have repeatedly acknowledged the seriousness of offences of violence within intimate relationships, and that such offences call for sentences strongly denouncing, and designed to deter offenders from, such offending.
Her Honour was right to stress the denunciation of the appellant’s offending. Her Honour did not give too much weight to the sentencing principle of denunciation. Ground 1 is not made out.
Ground 2 – positive good character including contrition and remorse
There was no doubt that the appellant was a person of positive good character. This was well established with the assistance of the three character references that were tendered. Her Honour took all of this into account.[68] Indeed her Honour observed that if he did not have such a good record, including his contributions to the community, he would certainly be facing a sentence of actual imprisonment.[69]
In his written submissions Mr Lawrence SC referred to the 1982 decision in R v Okutgen.[70] During oral submissions Mr Lawrence SC took the Court to part of the judgment of Starke J where his Honour said that a man of middle age with no prior convictions who had lived a decent honourable life, raised a family, and engaged in work and community activities could call in aid his good character. In his submissions Mr Lawrence SC included the next sentence which stated: “Indeed, under old legislation provisions suggested a first offender should not be imprisoned unless there were special circumstances.” I note that in the following sentence Starke J acknowledged that “there are many qualifications to that principle.”
Mr Lawrence SC also referred the Court to the statement by Southwood J in Hales v Adams[71] that: “Mature age offenders who have led previously blameless lives may benefit from an exercise of the discretion not to record a conviction.” He then referred to Field v Edwards[72] where Blokland J referred back to what Southwood J had said in Hales v Adams.
Mr Castor readily accepted those uncontroversial statements but pointed out that in both of those Northern Territory cases, convictions were recorded notwithstanding the offender’s good character.
I agree with Mr Castor’s contention that the appellant’s submissions fail to appreciate the gravity of the appellant’s offending and fail to recognise that the imposition of a good behaviour bond was itself reflective of a lenient disposition in which significant weight was given to the appellant’s prior good character. Her Honour did not fail to give sufficient weight to the evidence of positive good character including contrition and remorse. Ground 2 is not made out.
Ground 3 – views of the victim
Although this ground originally asserted that the judge erred in failing to “give sufficient weight to” the views of the victim, at the commencement of his oral submissions Mr Lawrence SC said that the error was the failure to “take into account” the views of the victim.[73]
Mr Lawrence SC contended that the judge did not take into account SH’s views that the appellant is a good person and needs help with his mental health. Her Honour said that she took SH’s views into account.[74] Mr Lawrence SC contended that although the judge said that she took those things into account she did not in fact do so. There is no basis for that contention. The fact that the judge expressly referred to various things that SH had said leaves me in no doubt that her Honour did take those matters into account.
Mr Lawrence SC also contended that her Honour should have taken into account a reference in the Bail Assessment Report to SH saying “she is okay if Mr Hardy was released, however believes he needs some medication or counselling to assist with managing his stress.” Mr Lawrence SC also referred to parts of a statement by SH, presumably the statutory declaration to which I have already referred, where SH said that “He has really been paranoid since December late last year, he thinks people are spying on him.”
As I have already pointed out neither of those references were brought to her Honour’s attention. Indeed, neither her Honour nor I, have been shown a copy of SH’s statutory declaration. Even if that material had been placed before her Honour it seems that none of it related to whether or not a conviction should be entered, or for that matter whether the appellant should be sentenced to a period of actual imprisonment.
Her Honour did have, and did have regard to, the views expressed by SH in her Victim Impact Statement. Mr Lawrence SC referred this Court to s 106B(4) of the Sentencing Act.
Section 106B of the Sentencing Act relates to victim impact statements and victim reports. Section 106B(5A) provides that a victim impact statement “may contain a statement as to the victim’s wishes in respect of the order that the court may make”. Subject to some exceptions not relevant here, s 106B(4) requires the court to consider a victim impact statement “in relation to an offence before determining the sentence to be imposed in relation to the offence”. When sentencing an offender, s 5(2)(b) of the Sentencing Act requires the court to have regard to “the nature of the offence and how serious the offence was, including any physical, psychological or any emotional harm done to a victim”.
The use of such reports and the weight to be given to a victim’s wishes was discussed in some detail by Barr J in Walker v Verity.[75] It is well established that the attitude of the victim towards the offender is relevant to the exercise of the sentencing discretion.[76] However, the weight to be given to a victim’s wishes in relation to sentencing may vary from case to case.[77] Indeed in some cases, it may be appropriate for no weight to be given to the views expressed by the victim. Such was the case in Walker v Verity where, at [40], Barr J accepted the respondent’s submission that:
[I]n domestic violence cases such as the present, the importance of general deterrence may well override any relevance that evidence of forgiveness might have: R v Rowe[78]; that in cases involving domestic violence, the sentencing process is not and should not be in the hands of complainant victims; and that the merciful or relenting attitude of a complainant does not reduce the gravity of the offence and does not have much effect on the interest of justice in imposing an appropriate sentence: Regina v Kershaw[79].
In R v LFJ the Victorian Court of Criminal Appeal was dealing with a contention that the sentencing judge had failed to give any or sufficient weight to what a victim had said in his victim impact statement. At [16] their Honours Maxwell P and Kellam JA, said:
As with all questions of weight, the only way in which the appeal court can decide the question is by reviewing the sentence ultimately imposed and asking whether that result was reasonably open to a judge who gave appropriate weight to all relevant factors.
Even if SH had specifically requested a particular disposition, the Local Court was not bound or fettered by her views. As the Court of Criminal Appeal of New South Wales pointed out in R v Palu[80]:
The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. … Sentencing proceedings are not a private matter between the victim and the offender … A serious crime is a wrong committed against the community at large the community is itself entitle to retribution.
In my view her Honour did give appropriate weight to all relevant factors. Her Honour did not err by failing to take into account or by failing to give sufficient weight to the views of the victim. Ground 3 is not made out. To the extent that this ground overlaps with ground 5, I shall deal with that aspect then.
Ground 6 – prospective legislation regarding strangulation
This ground relates to her Honour’s observations about the seriousness of this assault immediately following her Honour’s statement that: “Placing your hands around someone’s neck and beginning to squeeze is a serious aggravated assault.”[81] Mr Lawrence SC contended that her Honour’s reference to the fact that particular legislation had been or was about to be introduced into Parliament effectively increasing the penalty for choking or strangling, would have influenced her decision when determining what penalty to impose. He contended that her Honour was in error because she took into account an irrelevant consideration.
I reject that contention. Her Honour pointed out that that legislation had not commenced and the appellant was not being dealt with under it. Her Honour was well aware that she was sentencing the appellant for aggravated assault contrary to s 188 of the Criminal Code, not for strangling or choking contrary to some provision that had not yet been enacted. Her Honour made it clear that she was referring to that proposed legislation because it recognised that the community considers that kind of conduct particularly unacceptable. I do not consider that her Honour erred by referring to that proposed legislation. Ground 6 is not made out.
Ground 5 – mental health and appropriate conditions
The first part of this ground contends that her Honour was in error in not giving sufficient weight to all of the evidence concerning the appellant’s mental health.
The learned judge did in fact give considerable consideration to Mr Lawrence’s assertions that the appellant’s offending “was brought about by the defendant who is suffering and experiencing mental unwellness” and that he should receive some form of treatment for that.[82] Mr Lawrence SC acknowledged that Mr Gazzard found no evidence of mental illness or disturbance but he challenged the reliability of Mr Gazzard’s conclusions. He conceded that there was no “direct evidence” of the appellant’s mental condition and said that this would be “discovered by counselling sessions”.
As I have said, Mr Lawrence SC made no attempt to seek an adjournment either for the purposes of obtaining an expert report about the appellant’s mental condition or to wait and see what could be “discovered by counselling sessions”. Her Honour was left with her two important questions unanswered: first, what if any mental illness or disturbance did the appellant have; second, what treatment would be appropriate. A third question might have been whether the appellant was suffering from some kind of mental condition at the time of his offending that might have explained the reason for his offending and even provided the basis for a Verdins[83] type submission or even a dismissal of the charge under s 77 of the MHRA.
All that Mr Lawrence SC could do in his submissions was to contend that, notwithstanding his concessions before her Honour, her Honour should have concluded that the appellant had “mental problems”, “mental unwellness”, “mental illness” and/or “mental disturbance”.[84] He submitted that her Honour should have reached those conclusions in the light of the following factors.
First, the unusual nature of the event itself suggests mental aberration. Second, the Local Court judge who ordered the interim report for s 77 of the MHRA must have thought that the appellant’s mental health was potentially relevant to the commission of the crime. Third, the EASA report of Mr Kwiatkowski, talked about ongoing counselling with the appellant. Fourth, SH had said that she wished the appellant to get help with his mental health. Fifth, some of the character referees had noticed changes in the appellant’s physical appearance and his emotional and mental well-being, apparently since he ceased drinking alcohol in January 2019.
I reject that submission. The best evidence that her Honour had was Mr Gazzard’s report, which concluded that there was no evidence of mental illness or disturbance. Mr Gazzard had or had ready access to all of the information referred to in [80] above, apart from the EASA report. Rather than expect her Honour to ignore Mr Gazzard’s Report and draw her own conclusions, counsel should have sought an adjournment and sought clarification and opinion from another expert.
The situation here was not unlike that referred to by Burns J in Hutcheon v West at [29]:
[T]he material before the Magistrate concerning the respondent’s mental health was very thin. … The evidence, in my opinion, did not establish that the respondent suffered from a condition which called for moderation or elimination of specific or general deterrence as sentencing considerations. The respondent was represented before the Magistrate by an experienced legal practitioner and it may be expected that if there was cogent evidentiary material establishing that the respondent suffers, or suffered, from a mental illness and which was relevant to sentencing him for those offences, it would have been placed before the Magistrate. I note, for completeness, that no application was made on this appeal to lead further evidence on this issue.
Her Honour did not err in giving insufficient weight to all of the evidence concerning the appellant’s mental health. The first part of ground 5 is not made out.
As to the second part of ground 5, Mr Lawrence SC did not indicate how the learned judge’s failure to include “appropriate conditions to address the appellant’s mental health” constituted error on her part. Nor did he attempt to identify to her Honour or to this Court exactly what conditions he contended were “appropriate”. Further, the author of the Supervision Report did not suggest any particular conditions. Indeed he concluded that none were required.
Absent further material identifying what if any treatment might assist the appellant, all her Honour had to go on was the fact that the appellant had started to undergo some kind of counselling with Mr Kwiatkowski, and was intending to continue with that. There was no need for her Honour to burden the appellant with a condition that was not required and may not have been appropriate. He was a middle-aged man whose prior good character, employment history and support from others, rendered it unnecessary for the Court to require him to continue with counselling or with some other unspecified treatment for an unknown condition.
After her Honour announced her intention to release the appellant on a good behaviour order for 12 months she explained that she did not intend to place any conditions on that order. However, she encouraged the appellant “to continue with professional assistance, so that this kind of offence does not occur again.”[85]
Her Honour was not in error in failing to include conditions with his good behaviour order. Ground 5 is not made out.
Ground 4 – recording a conviction
In his written submissions Mr Lawrence SC relied on the combination of the submissions made in relation to the other grounds including those relating to the appellant’s mental health, as the main basis for his contention that her Honour erred in recording a conviction. In addition was the fact that the appellant had spent two weeks on remand, and had no contact with his son during the three months following the offending.
I have rejected those other submissions. I also acknowledge, as did her Honour, that the appellant spent two weeks on remand before he was released on bail. The seriousness of his offending was such that the police were right to place him into custody initially and to impose a no contact order to avoid the risk of him assaulting SH again, and also to protect his son from being exposed again to conduct of the kind which he endured on the night of the offending. Moreover, there was no evidence that the appellant would suffer any relevant hardship if a conviction was entered.
Like her Honour I consider that but for his good character he should have been sentenced to a period of actual imprisonment, even if it was only for the two weeks that he had already served on remand. Although the factors set out in s 8(1)(a) of the Sentencing Act were in his favour, those set out in s 8(b) & (c) were not. Mr Lawrence SC was not able to point to any extenuating circumstances other than stress, and the offending was very serious, nowhere near “trivial”.
As counsel for the respondent has pointed out her Honour’s decision to convict the appellant is consistent with the recent decision of McMaster v The Queen, where the Northern Territory Court of Criminal Appeal refused to set aside the recording of a conviction in relation to a first offender of particularly good character.[86]
Her Honour was not in error in ordering a conviction.
Conclusion
None of the grounds are made out. The appeal is dismissed. I will hear the parties as to costs.
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[1] This was an offence under s 188 of the Criminal Code (NT) and rendered the appellant liable to a maximum sentence of five years imprisonment.
[2] Notice of Appeal dated 8 January 2020.
[3] Whitehurst v The Queen [2011] NTCCA 11 at [12]; Noakes v The Queen [2015] NTCCA 7 at [15] and [23]; Emitja v The Queen [2016] NTCCA 4; 39 NTLR 159 at [39] (Emitja).
[4] [2003] NTSC 47.
[5] [2003] NTCA 17; 141 A Crim R 437.
[6] [2005] NTSC 86.
[7] [2009] NTCCA 8 (Carnese).
[8] [2017] NTSC 63.
[9] [2019] NTSC 12.
[10] [2020] NTCA 9 (Benfell).
[11] Carnese at [16], citing The Queen v McInerney (1986) 42 SASR 111 at 124.
[12]Toohey v Peach [2003] NTCA 17; 141 A Crim R 437 at 440-441; Carnese v The Queen [2009] NTCCA 8 at [16].
[13]Cobiac v Liddy [1969] HCA 26; 119 CLR 257 at 276.
[14]Jones v Morley (1981) 29 SASR 57 at 63.
[15]Cobiac v Liddy (1969) 119 CLR 257 at 276.
[16]Hales v Adams [2005] NTSC 86 at [17] (Hales v Adams), citing RG Fox and A Freiberg, Sentencing State and Federal Law in Victoria, (2nd Ed) at 190–193.
[17] Carnese at [17], approving Hales v Adams at [17].
[18] Court v Magtibay [2019] NTSC 12 at [18].
[19] R v Fullalove (1993) 68 A Crim R 486 at 493.
[20] Carnese v The Queen [2009] NTCCA 8 at [17]; R v Allinson [1987] NTCCA 5; 49 NTR 38; Hatzimihal v Wesphal [2011] NTSC 61.
[21] See, for example, Sentencing Act 1991 (Vic), s 8(1)(c).
[22] See generally R v Lancaster (1991) 58 A Crim R 290 (prospective discharge from the Army was relevant when determining what punishment should be imposed on the offender); Ryan v The Queen [2001] HCA 21; 206 CLR 267 at [54] (loss of employment and forfeiture of superannuation benefits are matters personal to the offender which may be taken into account in determining penalty).
[23]Fillipou v The Queen [2015] HCA 29; 256 CLR 47; R v Olbrich [1999] HCA 54; 199 CLR 270.
[24] A Freiberg, Fox &Freiberg's Sentencing: State and Federal Law in Victoria, Lawbook Co, 2014 (Third Edition) at [1.260].
[25] Theodoros v Holmes (1989) 50 SASR 373.
[26] Theodoros v Holmes (1989) 50 SASR 373 at 377.
[27]See R v Cay; Ex parte Attorney-General (Qld) [2005] QCA 467; 158 A Crim R 488 at [5] – [7], [72] – [73].
[28] Exhibit 1 in the Local Court.
[29] Exhibit 3.
[30] Transcript, 11 December 2019 at p 9.3.
[31] One from Dominic McCormack, Solicitor; one from David Hardy, the appellant’s younger brother; and one from John Taylor, a long-time friend and colleague associated with Australian Rules football.
[32] Transcript, 11 December 2019 at p 6.3.
[33] Transcript, 11 December 2019 at p 6.4.
[34] Transcript, 11 December 2019 at pp 6.6-6.9.
[35] Transcript, 11 December 2019 at p 7.8.
[36] Transcript, 11 December 2019 at p 8.2.
[37] Trenerry v Cassells (Supreme Court of the Northern Territory, Gray AJ, 3 July 1998).
[38] Transcript, 11 December 2019 at p 9.
[39] Transcript, 11 December 2019 at p 11.
[40] Transcript, 11 December 2019 at p 12.
[41] I marked this report as Exhibit B for the purposes of this appeal.
[42] No letter, email or other evidence about any such risk was provided to the Local Court.
[43] Transcript, 11 December 2019 at p 14.7.
[44] Transcript, 11 December 2019 at pp 16-17.
[45] Transcript, 11 December 2019 at pp 17 and 18.2.
[46] Transcript, 11 December 2019 at p 18.2.
[47] From Transcript, 11 December 2019 at p 18.6.
[48] From Transcript, 11 December 2019 at p 18.9.
[49] From Transcript, 11 December 2019 at p 19.3
[50] For convenience, I marked this as Exhibit A for the purposes of this discussion.
[51] For convenience, I marked this as Exhibit B for the purposes of this discussion.
[52] Exhibit A at p 1.
[53] See [25] above.
[54] See [22] above.
[55] Cf Benfell at [31] and [33]. See too Hesseen v Burgoyne [2003] NTSC 47 at [18] – [19] and R v Bain [1997] QCA 35.
[56] Exhibit 6 at p 2.9.
[57] [2005] QCA 105 (Fairbrother) at [23].
[58] [2016] HCA 48; 259 CLR 256 at 267 ([21]).
[59] [2016] NTCCA 4; 39 NTLR 159 at [34].
[60] Gregson v Tasmania [2018] TASCCA 14 at [30]; Wyper v The Queen; The Queen v Wyper [2017] ACTCA 59 at [97]; Gillespie v The Queen [2016] WASCA 216 at [48], approving Bropho v Hall [2015] WASC 50 at [16]; R v Koch [2015] SAFCSC 31 at [42]; Pasinis v The Queen [2014] VSCA 97 at [53]-[57]; R v Eckermann [2013] NSWCCA 188; R v Hamid [2006] NSWCCA 302; 164 A Crim R 179; R v Fairbrother; ex parte Attorney-General (Qld) [2005] QCA 105.
[61] [2012] 1 Qd R 465 (R v Major) at [53].
[62] See
[63] [2019] TASCCA 15 at [26] – [27].
[64] [2020] TASCCA 2. See too Hutcheon v West [2015] ACTSC 55, and R v MDB [2018] QCA 283 at [45].
[65] Bropho v Hall [2015] WASC 55 at [18] – [19]; Pasa v Bell [2014] ACTSC 303 at [16]; R v Eckermann [2013] NSWCCA 188 at [54]; Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353 at 388 ([103]) Allen v Kerr [2009] TASSC 10 at [13]; Bell v R [2005] ACTSC 123 at [30].
[66] See [21] above.
[67] [2015] ACTSC 55.
[68] See [28] and [30] above.
[69] See [32] above.
[70] (1982) 8 A Crim R 262.
[71] [2005] NTSC 86 at [17].
[72] [2016] NTSC 5; 36 NTLR 125.
[73] Transcript, 12 June 2020 at p 2.9.
[74] Transcript, 12 June 2020 at p 17.4.
[75] [2010] NTSC 68 at [24] – [41], particularly [38] – [41]. See too
[76] See for example R v LFJ [2009] VSCA 134 citing The Queen v CLP [2008] VSCA 113.
[77] Walker v Verity at [38] and The Queen v CLP at [31].
[78] (1996) 89 A Crim R 467 at 473.
[79] [2005] NSWCCA 56 at [24].
[80] [2002] NSWCCA 381; 134 A Crim R 174 at 183 [37].
[81] See [31] above.
[82] See [19] – [21] above.
[83] R v Verdins [2007] VSCA 102; 16 VR 269 recently considered by the High Court of Australia in R v Guode [2020] HCA 8; 94 ALJR 336 at [8], [46].
[84] Appellant’s Summary of Submissions filed on 1 June 2020 at [14].
[85] Transcript, 11 December 2019 at p 19.4.
[86] [2019] NTCCA 25.
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