Hillen v The Queen

[2020] NTCCA 4

CITATION:Hillen v The Queen [2020] NTCCA 4

PARTIES:HILLEN, Damian

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:CCA 14 of 2019 (21820077)

DELIVERED:  19 June 2020

HEARING DATE:  26 November 2019

JUDGMENT OF:  Grant CJ, Southwood and Kelly JJ

CATCHWORDS:

CRIME – Appeals – Appeal against sentence – Failure to take into account relevant considerations – Taking into account irrelevant consideration – Manifest excess

Appellant found guilty following trial by jury of one count of unlawful damage to property – Sentenced to two years and six months with non-parole period of one year and three months – Whether failure to make findings on sentence – Whether failure to take into account relevant considerations – Whether content of a pre-sentence report ordered for earlier offending an irrelevant consideration – Whether sentence manifestly excessive – No error of principle in the sentencing judge’s decision – Sentence not manifestly excessive or plainly unjust. 

Criminal Code 1983 (NT) s 241
Sentencing Act 1995 (NT) s 6A

Bara v The Queen [2016] NTCCA 5, Clarke v The Queen [2019] NTCCA 2, Cook v The Queen [2018] NTCCA 5, Emitja v The Queen [2016] NTCCA 4, Fillipou v The Queen (2015) 89 ALJR 776, Forrest v The Queen (2017) 267 A Crim R 494, Morrow v The Queen [2013] NTCCA 7, Neal v The Queen (1982) 149 CLR 305, Noakes v The Queen [2015] NTCCA 7, Phillips v The Queen [2019] NTCCA 18, R v Campbell [1997] 2 VR 585, R v Crabbe (1985) 156 CLR 464, R v Kane [1974] VR 759, R v Lee [2013] WASCA 216, R v Ruano [1999] VSCA 54, Rory (1992) 64 A Crim R 134, Tran v The Queen [2019] NTCCA 12, Truong v The Queen (2015) 35 NTLR 186, Weininger v The Queen (2003) 212 CLR 629, Whitehurst v The Queen [2011] NTCCA 11, Whitlock v The Queen [2018] NTCCA 7, referred to.

A Freiberg, Fox &Freiberg's Sentencing: State and Federal Law in Victoria, Lawbook Co, 2014 (Third Edition). 

REPRESENTATION:

Counsel:

Appellant:M Thomas

Respondent:  S Geary

Solicitors:

Appellant:Direct brief

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  23

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Hillen v The Queen [2020] NTCCA 4

No. CCA 14 of 2019 (21820077)

BETWEEN:

DAMIAN HILLEN

Appellant

AND:

THE QUEEN

Respondent

CORAM:    GRANT CJ, SOUTHWOOD and KELLY JJ

REASONS FOR JUDGMENT

(Delivered 19 June 2020)

THE COURT:

1. The appellant was found guilty following a trial by jury of one count of unlawful damage to property contrary to s 241 of the Criminal Code 1983 (NT).  That offence carries a maximum penalty of imprisonment for 14 years.  The appellant put the Crown to proof at trial and was not entitled to any reduction in his sentence for remorse or willingness to facilitate the course of justice.  He was sentenced to a term of imprisonment for two years and six months from 6 May, 2018 with a non-parole period of one year and three months.

2. The appellant has appealed against the sentence on a number of grounds. While a number of those grounds assert specific error, the primary substance of the appeal is that the sentence is manifestly excessive. Leave to appeal under s 410(c) of the Criminal Code was given by a single judge.

3. The facts found by the sentencing judge are as follows.

   The jury acquitted Hillen of unlawfully entering a building with circumstances of aggravation and unlawful assault, also with circumstances of aggravation.  The crime to which he has been found guilty of is that he shot, purposely or recklessly, at the side of a motor vehicle owned by Hertz and caused damage. The weapon he used was a sawn‑off shotgun.

   The jury, to arrive at that verdict, must have rejected the offender's account that the gun went off accidentally.  That is not to say, however that they could not have concluded that he acted simply recklessly.  It may not have been accidental but it may have been reckless.  Alternatively, they may have concluded that it was intentional.

   The evening in question, prior to this incident taking place, involved the offender and his then‑partner, a Ms Toni Curtis and a Mr Aaron Senge, using ice, recreationally, they say, at a house in Rapid Creek. 

   During the course of the evening the offender became angry.  There was a disagreement and it was of such magnitude that the offender actually struck at Senge and instead, hit his partner, Ms Curtis, forcefully in the jaw.  This particular incident was not the subject of the charges but was a forerunner to what happened.  And the blow was of sufficient force that she fell over, began bleeding and had broken teeth. 

   After that, he left and armed himself with this shotgun, which was modified.  It was originally a single barrel, single shot .410 shotgun.  It had been modified by having its rear butt stop cut, which was fashioned into a pistol grip.  The barrel bit was sawn‑off in line with the stock.

   The offender, when the crime occurred, was standing outside the premises.  The other occupants were inside.  In the driveway was this Hertz rental vehicle which had been loaned to Senge and was owned by Hertz, of course.  The offender fired the shotgun into the Hertz vehicle, doing nearly $2000 worth of damage.

   The other events then took place which are not the subject of this plea, as the jury concluded by their verdicts of not guilty that they were not satisfied beyond reasonable doubt that he entered a premises with intent to commit an assault and were not satisfied that he did in fact commit an assault.

   What is clear is that for whatever reason, the offender was in a bad mood at the time he shot the vehicle and it was a very dangerous and stupid thing to do.  The damage is, I am told, an amount of $1825.40.  Hertz is seeking restitution and there will be an order made that this be paid within 60 days of the offender's eventual release.

   …

   It was submitted on the offender's behalf that the offence involved recklessness rather than intent.  And as I have said, that may be so, but it is not a significant matter in the final analysis.  The fact is he discharged a sawn‑off shotgun in a residential area with people in the vicinity.

4. The appellant appeals against the sentence imposed on the following grounds.

   Ground 1:   that the learned sentencing judge erred in failing to make a finding or findings as to the reasons why the offence was committed by the appellant. 

   Ground 2:   in failing to take into account the reasons regarding the background and circumstances of the commission of the offence, the learned sentencing judge erred in placing undue emphasis upon general and specific deterrence, as well as denunciation and retribution, which produced a sentence that was out of proportion to the criminality occasioned by the offending conduct.

   Ground 3:   that the learned sentencing judge failed to make a finding that the offender’s conduct in committing the offence was intentional or reckless. 

   Ground 4:   the learned sentencing judge erred in finding that the most troubling part of imposing penalty was that the appellant had little insight into his own actions, an inability to take responsibility for his own behaviour, and tends to blame others.

   Ground 5:   the learned sentencing judge erred in determining that “in the light of the pre-sentence report, I am not going to accede to the request of counsel” [to impose a partly suspended sentence] which inappropriately placed the 2015 pre-sentence report as the governing factor in the formulation of the sentencing disposition.

   Ground 6:   that the sentence imposed by the learned sentencing judge, both the head sentence and the imposition of a non-parole period, was manifestly excessive, in particular, that:

   (i)   His Honour described the offence as being at the lower end of the range (for offences of its type), yet imposed a sentence that included the imposition of a non-parole period, which was not warranted in the circumstances.

   (ii)     His Honour failed to take into account the fact that the appellant’s prior firearms offences were only two in number, and dated from the year 2000; and that the appellant’s criminal damage offences were only two in number and dated from 2005 and 2011.

   (iii)   His Honour placed undue emphasis on the means by which the damage was inflicted, namely through a firearm, which was out of all proportion to the criminality occasioned in all of the circumstances.

   (iv)   His Honour failed to place any weight upon the following matters: the offence involved a single item of property being damaged once.  There was no repetition of the damage, no wanton vandalism, no deliberation or premeditation involved in selecting the particular item that was damaged.  The amount of property damage was minimal and there was no intent to damage the property in question for the purpose of deliberately frightening persons.

   (v)     His Honour failed to place sufficient weight, regarding the appellant’s prospects of rehabilitation that the appellant is a mature man, in a long term relationship with a history of work and reasonable prospects of securing employment.

5. The principles applicable to appeals of this nature are well known.[1]  The presumption is that there is no error.  An appellate court interferes only if it is shown that the sentencing judge committed error in taking into account some irrelevant factor, in failing to take into account a relevant factor, 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 as to manifest such error.  In the absence of specific and identifiable error, it is incumbent upon the appellant to show that the sentence was clearly and obviously, and not just arguably, excessive.

   Grounds 1 and 3:

6. The appellant contends that the sentencing judge was bound to make a finding or findings as to the reasons why the appellant committed the offence (Ground 1), and to making a finding whether the appellant’s conduct was intentional or reckless (Ground 3).  It is said further that the failure to make those findings vitiated the sentencing process.  The first contention is put on the basis that emotional stress which accounts for criminal conduct, if found, is relevant to the evaluation of moral culpability.[2]  The second contention is put on the basis that the objective seriousness of the offending would be higher if the appellant had deliberately rather than recklessly caused damage to the motor vehicle.

7. Counsel for the appellant relied on evidence given at the trial by the appellant and the appellant’s girlfriend as to the circumstances of the offending which were not referred to in the sentencing remarks.  That evidence was to the effect that another man present in the house, Aaron Senge, was making advances to the appellant’s girlfriend and tried to kiss her.  This angered the appellant.  The appellant tried to hit Senge but accidently hit the girlfriend instead, knocking her down.  The appellant gave evidence that he was devastated by what he had done and claimed he was in a suicidal state.  He said:

   I took the gun out of the bag, I loaded it, put a live shell in it.  I cocked the hammer on the gun, and I put it under my chin….  I wanted to kill myself. 

8. He gave evidence that he thought better of it, pulled the gun down from under his chin, and tried to lean the gun against the car door.  He was unstable and started to fall over.  He still had his finger on the trigger, the pistol grip slipped in his hand and the gun went off.  In other words, the effect of the appellant’s evidence was that the property damage was the result of an accident.

9. Counsel for the appellant submitted that the sentencing judge ought to have found that the appellant’s actions were at least in part influenced by the provocative conduct of Aaron Senge immediately prior to the firing of the shot, and the appellant’s distress at having accidentally struck his girlfriend; and also that the sentencing judge ought to have concluded that the appellant was in a state of extreme distress immediately at or about the time he fired the shot.[3]

10. As is apparent from that part of the sentencing remarks which are extracted above, the sentencing judge’s findings adequately traverse the events leading up to the discharge of the firearm and adequately state the sentencing judge’s conclusions about the appellant’s mental state at the time.  Those findings are to the effect that the offender became angry at Senge’s interaction with his girlfriend, that he mistakenly struck his girlfriend with significant force, and that he was in a “bad mood” at the time he shot the vehicle.  Those findings are entirely consistent with the evidence given by the appellant’s girlfriend to the effect that the appellant became angry and that she subsequently heard him and Senge screaming at each other outside immediately before the shot was fired.

11. While those findings do not reflect the appellant’s evidence concerning his mental state or what counsel for the appellant submits the findings in that respect should have been, the sentencing judge was in no way bound to find that the appellant was in a state of extreme distress.  The findings suggest that the sentencing judge disbelieved the appellant’s evidence concerning his disorientation, shock and suicidal ideation.  The jury plainly disbelieved a crucial part of it – that is, that the shooting was accidental.  There is no reason why the sentencing judge should have been bound to accept the appellant’s evidence leading up to that conclusion.  If the sentencing judge disbelieved the appellant about his distressed and suicidal state, then, in the absence of any other evidence on the topic, he may not have known why the appellant fired the shot – intentionally to punish or frighten Senge by shooting at his rental car, out of frustration and anger, or for some other unknown reason.

12. The High Court in Filippou v The Queen said:[4]

    … [A] sentencing judge may not take facts into account 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. Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known. As was stated by the majority in Olbrich [R v Olbrich (1999) 199 CLR 270 at [24]; 73 ALJR 1550 (emphasis in original)]:

    [W]e reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous.

    (Emphasis by underlining added)

13. This proposition is also a complete answer to Ground 3 – that the sentencing judge erred by not making a finding whether the appellant’s conduct was intentional or reckless. Even leaving that matter aside, the premise of this ground of appeal is flawed. An offence against s 241(1) of the Criminal Code has as its fault elements “intentionally causes damage to property” or “is reckless as to causing damage to property”, and provides a single maximum penalty of imprisonment for 14 years.  As counsel for the appellant conceded in written submissions, where both intention and recklessness are sufficient to form the metal element of an offence, and the same maximum penalty applies, then both can be considered as equally blameworthy.[5]  That principle is properly reflected in the sentencing judge’s observation that whether the conduct was intentional or reckless was not a significant matter in the final analysis.  Counsel for the appellant sought to draw a distinction between intention and recklessness on the basis that the degree of planning bears on the assessment of moral culpability.  That distinction is illusory in circumstances where on either scenario the appellant’s conduct was spontaneous rather than the subject of careful and deliberate planning.

14. In any case, if a finding about whether the conduct was reckless or intentional were thought to be necessary, the evidence points overwhelmingly to its having being intentional.  The photographs show the car parked with the driver’s door quite close to the entrance to the house.  Counsel confirmed that this was the position of the car when the shot was fired.  There was also evidence that the trigger on the gun was firm and that the trajectory of the bullet was close to straight indicating that it had been fired horizontally from a close distance.  It follows that the shot must have been fired from the area adjacent to the door to the house and the only thing the shot could have been aimed at was the car, in which case the inference is inescapable that the appellant intentionally shot at the car.

    Ground 2

15. The appellant’s contention in this ground is that the sentencing judge placed undue emphasis on general and specific deterrence, denunciation and retribution because he did not properly take into account the circumstances surrounding the commission of the offence.  The conclusions and findings properly open in relation to those circumstances have been described above in dealing with Grounds 1 and 3.  To the extent this ground of appeal has as its premises that the appellant was in a state of extreme distress at the time, and that his conduct was unintentional, those premises should not be accepted for the reasons already described.  Nor does a fair reading of the sentencing remarks disclose an undue emphasis on deterrence, denunciation and retribution.

16. The sentencing judge relevantly remarked:

    Turning to the other factors in dealing with penalty, deterrence, both personal and general, are clearly significant in this case.  The offender himself must be deterred from behaving in a dangerous manner and the community must realise that people will be deterred by being punished for causing damage to property, particularly in this sort of way, where it is in the vicinity of other people in a residential area.  And I add that denunciation or retribution is also a factor.  Actions have to bear consequences.

17. There is nothing in those remarks or in the overall sentence to suggest that too much weight was placed on these factors.  The appellant’s own evidence is that he went to his bag, took out and loaded a sawn off shotgun, and cocked it.  The other evidence is that he then went outside at night in a populated suburban neighbourhood and shot someone’s car.  A fundamental purpose of the sentencing process is to denounce and discourage that sort of conduct.  In any event, the contention that the sentencing court has accorded inadequate or excessive weight to a particular purpose or factor is properly viewed as a particular of the ground asserting manifest excess.[6] 

    Grounds 4 and 5

18. Grounds 4 and 5 can also be dealt with together. 

1. In Ground 4 the appellant complains that the sentencing judge should not have concluded that the appellant had little insight into his offending, failed to take responsibility for his own behaviour and tended to blame others.  In written submissions, counsel for the appellant contended that the only source for this finding was a Pre-sentence Report prepared in 2015 for the purpose of an earlier sentencing exercise in which the appellant had pleaded guilty to unlawfully entering a dwelling house at night with the intent to commit an assault, and unlawful assault using an offensive weapon in the form of a knife. 

2. In Ground 5, the appellant contends that the 2015 Pre-sentence Report was an entirely irrelevant consideration and ought not to have been received by the sentencing judge, and that the sentencing judge erred in determining “in the light of the pre-sentence report” not to suspend part of the sentence.  The appellant asserts further that using the 2015 Pre-sentence Report as the determinant of whether or not to make an order suspending sentence had the effect of punishing the appellant for prior conduct for which he had already been punished, and resulted in a sentence which was disproportionate to the objective seriousness of the offending.

3. These grounds are based on two incorrect assumptions.  The first incorrect assumption in these grounds is the contention that the only possible source for the finding that the appellant had no insight into his offending and did not take responsibility for his actions was the 2015 Pre-sentence Report.  The fact that the appellant had pleaded not guilty to the offence was a strong pointer in that direction, as was the fact that he gave evidence at the trial which was patently false in light of the other objective evidence, to the effect that the shooting was an accident.  This is not to say that the appellant can in any way be punished for exercising the right to contest the charge, but his determination to do so is relevant to the assessment of such matters as his acceptance of responsibility for his conduct and his prospects of rehabilitation.

4. The second incorrect assumption is that it was only because of the 2015 Pre-sentence Report that the sentencing judge rejected the defence submission that a partly suspended sentence would be appropriate. The appellant had a nine-page criminal history containing 53 incidents of offending, including 14 violent offences, and he had breached suspended sentences on at least five occasions. The contemporaneous supervision report ordered by the sentencing judge under s 103 of the Sentencing Act 1995 (NT) found the appellant not suitable for supervision noting that the appellant did not believe he had a substance abuse problem or a need for rehabilitation, that he had breached suspended sentences in 2005, 2008 and 2012 (at which time that sentence was fully restored), and that he had breached bail in 2000 and 2004. The sentencing judge mentioned both the appellant’s “poor record” and the s 103 report in his sentencing remarks in discussing whether a suspended sentence would be appropriate.

5. Counsel for the appellant relied on the words, “In the light of the pre-sentence report, I am not going to accede to the request of counsel. I am not going to impose a part suspended sentence,” in the sentencing remarks. However, to read those words in isolation is to ignore the sentencing judge’s clear reference to other relevant considerations, including the appellant’s past criminal history and the s 103 report.

6. In any case, the 2015 Pre-sentence Report was not irrelevant and was properly received. Section 104 of the Sentencing Act provides that a court may, before passing sentence on an offender, receive such information as it thinks fit to enable it to impose a proper sentence.  That is subject, of course, to the requirement that the material must have some relevance to the sentencing exercise.  When the Supreme Court is sentencing an offender, the circumstances of previous sentences imposed by the Court in relation to that same offender, particularly in relatively recent sentencing exercises, will almost always involve factors relevant to the process at hand.

7. The 2015 Pre-sentence Report contains a raft of relevant material including a section labelled “Offender background, social history”; a section outlining the appellant’s criminal history; and comments about his previous experience with supervised community orders, noting that, at the time the report was written, he had been the subject of four previous orders.  These are all relevant matters to place before a sentencing court.  While the report was only speaking to the appellant's circumstances as they subsisted in 2015, it was open to defence counsel at the sentencing hearing to place updated material before the court or to request that an updated report be prepared.  Defence counsel objected to the reception of the report, but no request for an updated report was made to the sentencing judge.

8. It also cannot be said that a consideration of matters recorded in the 2015 Pre-sentence Report had the effect of punishing the appellant for prior conduct for which he had already been punished.  To the extent that the report described the appellant’s criminal history and contained other adverse matters, including a description of his performance under supervision, it is a well-established principle 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.[7] This is reflected in s 5(2)(e) of the Sentencing Act, which requires a court to have regard to an offender’s character when sentencing that offender. 

   Ground 6

9. Ground 6 complains that the sentence was manifestly excessive with reference to a long list of particulars.

10. The first is the contention that it was wrong for the sentencing judge to impose a sentence with a non-parole period when sentencing for an offence which the judge described as being “more at the lower end of the scale of this type of crime”.  This is plainly wrong.  A sentencing judge has a wide discretion when deciding whether to fix a non-parole period or to suspend a sentence when that option is available.[8]  The fact that an offence is towards the lower end of seriousness for an offence of its type is, in itself, not a reason to impose a suspended sentence rather than a non-parole period.  There can be no expectation that a suspended sentence will be imposed for a particular type of offence.[9]  The decision whether to impose a non-parole period rather than a partly suspended sentence is informed by the same range of considerations as the decision to impose the head sentence – though there may be different emphases.  In Cook v The Queen[10] this Court discussed the principles to be applied in the exercise of the discretion to impose a non-parole period or a partially suspended sentence.

    In deciding whether or not to fix a suspended sentence, the court is required to consider again all of the factors relevant to the imposition of the term of imprisonment.  These must be revisited in determining whether to suspend that term.  This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender.  However, there is no warrant for concentrating attention only on matters relevant to the particular circumstances of the offender, such as issues of the offender’s rehabilitation and the court’s mercy.

11. The appellant also contended that a non-parole period was not warranted in the circumstances. That submission should not be accepted. Not only was the imposition of a non-parole period within the available sentencing discretion, given the appellant’s past criminal history (in particular his history of breaching suspended sentences), the appellant’s negative attitude demonstrated in the s 103 report and the fact that that report found him not suitable for supervision, the fixing of a head sentence in excess of 12 months made the imposition of a non-parole period almost inevitable. The decision of this Court in Phillips v The Queen[11] does not require any different result.  In that matter, the objective circumstances of the offending, and the appellant's age, antecedents and prospects of rehabilitation, militated against the fixing of a non-parole period. 

12. Counsel for the appellant also sought to establish that both the head sentence and the imposition of a non-parole period were outside the permissible range by reference to the sentences imposed in other matters involving criminal damage.[12]  As this Court has previously observed, exercises of that nature have limited utility.  Consistency in sentencing requires consistency in the application of the relevant legal principles and does not resolve to numerical equivalence.  It requires only that like cases are to be treated in like manner within the legitimate bounds of the sentencing discretion.[13] There is no accepted or definitive sentencing standard for the offence of damage to property created by s 241(1) of the Criminal Code.  That is because the offence covers an extremely broad range of conduct.  For these purposes, it suffices to say that a starting point of three years before discount for a guilty plea may be within range even where the damage caused is relatively minor in monetary terms[14]; and there is a significant qualitative difference between causing damage to property by, for example, punching a window, and causing damage by discharging a firearm in a suburban locale.

13. The second particular of manifest excess is that the sentencing judge failed to take into account the fact that the appellant had “only two” prior convictions for firearms offences dating from the year 2000; and “only two” prior convictions for criminal damage dating from 2005 and 2011.  That was not a proper basis in this case for reducing the appellant’s moral culpability nor for extending him any leniency.  As the sentencing judge was bound to do, his Honour took into account the appellant’s “poor record” which extended over 20 years and included two convictions for firearms offences, two convictions for criminal damage, 14 convictions for offences which might be described as violent and 53 convictions in all. 

14. The relevance and permissible use of prior convictions has already been discussed above in the context of Grounds 4 and 5 of the appeal.  While the principle of proportionality will fix the upper limits of the sentence, the appellant’s prior convictions were relevant to the purposes of deterrence, community protection, propensity to reoffend, prospects of rehabilitation and character.  Although many of those prior offences were significantly different from the offence with which the sentencing judge was dealing, the appellant’s history demonstrated a general and continuing disobedience of the law.  In those circumstances, it is not tenable to maintain that the “gap” in offending between the earlier property and firearms offences and the subject offence was “paramount”.  Even if it could be said that there was a “gap” in relevant offending in this case, a repetitive pattern of offending followed by a gap followed by reoffending may well lead to the conclusion that an offender is not capable of long-term reform.[15]

15. The third particular of manifest excess is that the sentencing judge placed undue emphasis on the means by which the damage was inflicted, namely through a firearm, and that this emphasis “was out of all proportion to the criminality occasioned in all of the circumstances”.  A fair reading of the sentencing remarks does not bear out that characterisation.  Apart from the reference in the summary of the facts, the only mention in the sentencing remarks to the use of a firearm is in the following passage:

    It was submitted on the offender's behalf that the offence involved recklessness rather than intent.  And as I have said, that may be so, but it is not a significant matter in the final analysis.  The fact is he discharged a sawn‑off shotgun in a residential area with people in the vicinity.

16. This does not amount to an over-emphasis or to an emphasis “out of all proportion to the criminality occasioned in the circumstances”: it is a simple statement of fact.  Far from over-emphasising the seriousness of the use of a firearm to inflict the property damage, the sentencing judge specifically rejected the Crown submission that “the inherent danger of firing a dangerous weapon in a suburban area” elevated the offence to “the mid to high end of the scale for this type of offending”.  Counsel for the appellant concedes that the use of a firearm in the commission of the offence may be regarded as an aggravating factor.[16]  Once that matter is accepted, it cannot be said there was any error in the sentencing judge’s advertence to the use of a firearm in a residential area. 

17. The fourth particular of manifest excess is that the sentencing judge failed to place any weight upon a number of matters including that the offence involved: (a) a single item of property being damaged once; (b) no repetition of the damage; (c) no wanton vandalism; (d) no deliberation or premeditation involved in selecting the particular item that was damaged; (e) a minimal amount of property damage; and (f) no intent to damage the property in question for the purpose of deliberately frightening persons.

18. The first answer to this contention is that some of the matters the appellant contends the sentencing judge should have placed weight on have not been established by the evidence.  There were no positive findings by the sentencing judge to the effect that there was no deliberation or premeditation involved in selecting the particular item that was damaged, and no intent to damage the property for the purpose of deliberately frightening people.  There was no finding about the appellant's intent (see the discussion above in relation to Grounds 1 and 3).  As pointed out by the High Court in the passage in Fillipou v The Queen extracted above, there is a difference between not sentencing on the basis of a possibility which would be adverse to the offender but which the Crown has failed to establish; and sentencing on the basis of a positive finding favourable to the offender.  The sentencing judge did not make an adverse finding about the appellant’s intent: it does not follow that he was obliged to sentence the appellant on the basis of a positive finding favourable to the offender.

19. Further, the evidence in fact points the other way.  The appellant had just had an altercation with Senge.  He then took a sawn-off shotgun from a bag, loaded it with a live round and cocked it, then went outside and shot Senge’s rental car which was parked in the driveway.  It would have been open to the sentencing judge to be satisfied beyond reasonable doubt that the appellant had deliberately chosen to shoot Senge’s car either to spite him or scare him.  However, his Honour did not make this adverse finding against the appellant.

20. Similarly, the contention that there was “no wanton vandalism” is difficult to sustain.  The appellant shot someone’s car in a manner which would seem to fit the description of “wanton vandalism”.

21. As for the contention that the sentencing judge failed to place any weight on the fact that the damage caused was minimal, the judge specifically mentioned the value of the damage caused was $1,825.40.  Whether that amount of damage is appropriately described as “minimal” is a moot point: the sentencing judge did not fail to take it into account.

22. That leaves the contention that the sentencing judge failed to place emphasis on the fact that the damage was done by a single act directed at a single item of property.  While it is true that the sentencing judge did not specifically state that he was taking this into account, he sentenced the appellant on the basis of the summary of facts which included that fact and made a finding that the offending was “more at the lower end of the scale of this type of crime”, rejecting a Crown submission that it was “at the mid to high end of the scale”.

23. The final particular of manifest excess is that in assessing the appellant’s prospects of rehabilitation, the sentencing judge failed to place sufficient weight on the fact that that the appellant is a mature man, in a long term relationship, with a history of work and reasonable prospects of securing employment. The sentencing judge mentioned each of those factors: the appellant’s work history, his stable relationship and the fact that he is a mature man, adding that “he should have learnt his lesson by now”. In addition, the sentencing judge did not make an adverse assessment of the appellant’s prospects of rehabilitation, as he may well have done given the appellant’s prior criminal history. Rather, he simply said, “Time will tell.” The proposition that the sentencing judge ought to have formed a favourable view of the appellant’s prospects of rehabilitation cannot be sustained given his prior criminal history, his history of breaching court orders and the poor attitude recorded in the s 103 report.

    Disposition

24. The maximum penalty for this offence is imprisonment for 14 years.  After a trial by jury, the appellant received a sentence of two years and six months with a non-parole period of one year and three months.  The appellant has failed to show any error of principle in the sentencing judge’s decision and the sentence is not, in all of the circumstances, manifestly excessive or plainly unjust. 

25. The appeal is dismissed.

    _________________________________

[1]See, for example, Clarke v The Queen [2019] NTCCA 2 at [51]; Whitlock v The Queen [2018] NTCCA 7; Bara v The Queen [2016] NTCCA 5 at [75]-[76]; Emitja v The Queen [2016] NTCCA 4 at [39]-[40]; and Morrow v The Queen [2013] NTCCA 7 at [36].

[2]      Neal v The Queen (1982) 149 CLR 305 at [7]-[9].

[3]      These two contentions appear to be at odds with each other.  A finding that the offending was at least partly caused by provocation by Senge would only seem to be relevant to the sentencing exercise if, contrary to the appellant’s evidence, his motive in shooting at the rental car was to get back at, or perhaps to frighten, Senge.

[4]      Fillipou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 at [64].

[5]      A Freiberg, Fox &Frieberg's Sentencing: State and Federal Law in Victoria, Lawbook Co, 2014 (Third Edition) at [4.35], citing R v Ruano [1999] VSCA 54; R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 at [8]; R v Campbell [1997] 2 VR 585 at 592-593; R v Lee [2013] WASCA 216 at [46].

[6]      Noakes v The Queen [2015] NTCCA 7 at [15], citing DPP v Terrick; DPP v Marks; DPP v Stewart [2009] VSCA 220; 24 VR 457 at 459-460.

[7]      Weininger v The Queen (2003) 212 CLR 629 at [32].

[8]      Phillips v The Queen [2019] NTCCA 18 at [25];  Cook v The Queen [2018] NTCCA 5 at [34]; Tran v The Queen [2019] NTCCA 12 at [36].

[9]      Whitehurst v The Queen [2011] NTCCA 11 at [29].

[10]    Cook v The Queen [2018] NTCCA 5 at [35].

[11]    Phillips v The Queen [2019] NTCCA 18.

[12]    Much of that submission was directed to a survey of cases considered by the Supreme Court in Rory (1992) 64 A Crim R 134. It should be noted that at that time the Court was considering the offence of criminal damage under s 251(1) of the Criminal Code as then in force, which provided for a maximum penalty of two years’ imprisonment and a maximum penalty of seven years’ imprisonment in certain circumstances of aggravation. That provision was subsequently repealed. The offence created by s 241(1) of the Criminal Code is that of damage to property, and it carries a maximum penalty of imprisonment for 14 years.

[13]    Forrest v The Queen [2017] NTCCA 5; 267 A Crim R 494 at [66]; Truong v The Queen [2015] NTCCA 5; 35 NTLR 186 at [23]-[30].

[14]    See, for example, The Queen v Smith (unreported, Supreme Court of the Northern Territory, 26 June 2014). 

[15]    See, for example, R v Kane [1974] VR 759.

[16]    Sentencing Act, s 6A(b).