Jonathon Brendan Khan v Sean William Evans
[2013] ACTSC 211
•4 October 2013
JONATHON BRENDAN KHAN v SEAN WILLIAM EVANS & ORS
[2013] ACTSC 211 (4 October 2013)
APPEAL – Appeals from the Magistrates Court – appeal against sentence – appeal on the ground of manifest excess – appeal on the ground that pre-sentence custody not taken into account – appeal upheld in part
CRIMINAL LAW – Particular offences – domestic violence offences – seriousness of – “pernicious and evil” – necessity of deterrent sentences
CRIMINAL LAW – Sentencing – consideration of entrenched childhood disadvantage – applicability of Bugmy v The Queen [2013] HCA 37
Bail Act 1992 (ACT), s 49(1)
Crimes Act 1900 (ACT), s 26
Crimes (Sentencing) Act 2005 (ACT), s 65(3)
Crimes (Sentence Administration) Act 2005 (ACT), s 110
Domestic Violence and Protection Orders Act 2008 (ACT), s 90(2)
Magistrates Court Act 1930 (ACT), Pt 3.10, Div 3.10.2, s 216
Bugmy v The Queen [2013] HCA 37
Cooper v Corvisy (No 2) (2010) ACTLR 151
Johnson v The Queen (2004) 78 ALJR 616
Khan v The Queen [2011] ACTSC 20
Mill vThe Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Bell [2005] ACTSC 123
Rv Hamid (2006) 164 A Crim R 179
R v TW (2011) 6 ACTLR 18
Saga v Reid [2010] ACTSC 59
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 51 of 2013
Judge: Refshauge ACJ
Supreme Court of the ACT
Date: 4 October 2013
IN THE SUPREME COURT OF THE )
) No. SCA 51 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JONATHON BRENDAN KHAN
Applicant
AND:SEAN WILLIAM EVANS
First Respondent
AND:WARREN LEE WAKEFIELD
Second Respondent
AND:AARON GOODING
Third Respondent
AND:JONATHON ANDRIJA TURKICH
Fourth Respondent
ORDER
Judge: Refshauge ACJ
Date: 4 October 2013
Place: Canberra
THE COURT ORDERS THAT:
Leave be granted to the appellant to amend the Notice of Appeal within 7 days
The appeal be allowed
The date on which the sentence of imprisonment for the first breach of the interim personal protection order, committed on 3 September 2012, be directed to commence be set aside and, in lieu, the date “23 February 2013” be substituted.
The conviction and sentence for the breach of the good behaviour order made by Magistrate Doogan on 16 December 2010 be set aside, and the breach be dismissed.
The non-parole period set in the Magistrates Court be set aside.
Otherwise, the sentences, and cumulation of each of them with each other, be confirmed.
The good behaviour orders made on the 8 February 2011 by Nield AJ be cancelled and Mr Khan be re-sentenced to 8 months imprisonment to commence on 23 March 2014.
The sentences of imprisonment be suspended on 22 December 2013.
Mr Khan be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 2 years from 22 December 2013 with a probation condition that:
· he be subject to the supervision of the Director-General or her delegate for such period as the person delegated to supervise him considers appropriate and obey all reasonable directions of the person delegated to supervise him, including as to treatment or counselling for parenting, drug and alcohol abuse, family violence and anger management, as may be appropriate.
The appellant Jonathon Khan, appeared in the Canberra Magistrates Court on 4 June 2013, charged with a number of offences committed between 3 September 2012 and 21 March 2013, to all of which he then pleaded guilty. The offences were four breaches of an interim protection order made on 23 July 2012 and breach then of the personal protection order subsequently made on 23 August 2012, a failure to comply with a bail undertaking to appear in court, and two offences of common assault.
· Breach of a personal protection order is an offence against section 90(2) of the Domestic Violence and Protection Orders Act 2008 (ACT) for which the legislature provides a maximum penalty of 500 penalty units (that is a fine of $55,000), or imprisonment for 5 years, or both.
· Failure to comply with a bail undertaking is an offence against s 49(1) of the Bail Act 1992 (ACT) and renders Mr Khan liable to a maximum penalty of 200 penalty units (that is a fine of $22,000), or imprisonment for 2 years, or both.
· Common assault is an offence against s 26 of the Crimes Act 1900 (ACT) for which the maximum penalty is 2 years imprisonment.
Convictions were entered for each of the offences. It was asserted that these convictions breached the good behaviour order made on 16 December 2010 when a sentence of imprisonment was partially suspended by Magistrate Doogan. The good behaviour order was for 2 years from 15 April 2010.
The Magistrates Court imposed the following sentences:
· For the first breach of the interim protection order, he was convicted and sentenced to 3 months imprisonment.
· For the first breach of the personal protection order he was convicted and sentenced to 2 months imprisonment, wholly consecutive.
· For the second breach of the personal protection order, he was convicted and sentenced to 2 months imprisonment, also wholly consecutive.
· For the third breach of the personal protection order, he was convicted and sentenced to 2 months imprisonment, also wholly consecutive.
· For the breach of bail undertaking, he was convicted and sentenced to 3 months imprisonment, wholly consecutive.
· For the assault on his father, he was convicted and sentenced to 1 months imprisonment, wholly consecutive.
· For the assault on Mr O’Neill, he was convicted and sentenced to 1 months imprisonment to be served concurrently with the sentence for the assault on Mr Khan.
· For the breach of the good behaviour order, the breach being admitted, the good behaviour order was cancelled, and he was resentenced to 3 months imprisonment consecutive with the other sentences.
The total period of imprisonment was therefore 16 months from 21 March 2013, to take in to account 77 days of pre-sentence custody, and a non-parole period of 12 months was set.
This was presumably, though not expressly stated (see section 65(3) of the Crimes (Sentencing) Act 2005 (ACT)), to commence on 21 March 2013 and end on 20 March 2014.
Mr Khan, dissatisfied with this sentence, commenced an appeal to this Court.
JURISDICTION
This Court has power under Part 3.10 of the Magistrates Court Act 1930 (ACT) to hear and determine appeals from the Magistrates Court. Division 3.10.2 regulates appeals in criminal matters such as this appeal.
I have described, in Cooper v Corvisy (No 2) (2010) ACTLR 151, the principles surrounding such appeals; I apply them in this case.
Sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence.
I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate.
Specific errors may be errors of law, errors of fact, taking into account irrelevant or extraneous considerations or failing to take into account relevant or material considerations.
If I find specific error, but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allowing the appeal and re-imposing the same sentence.
Even if I cannot identify a specific error, I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust, or plainly wrong.
Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal; that often has to be addressed at the conclusion of the appeal.
THE APPEAL
Mr Khan’s Notice of Appeal set out the following grounds for the appeal and the orders sought:
5. The grounds of appeal are that:
a. That the sentence imposed was manifestly excessive in all of the circumstances, and in particular;
i. The Learned Magistrate failed to give sufficient weight to the appellant’s youth and his prospects for rehabilitation;
ii. The Learned Magistrate misapprehended the seriousness of the offence, or otherwise failed to give proper consideration to the circumstances in which the offence was committed and its relative objective seriousness;
iii. The Learned Magistrate failed to give sufficient weight to the principle of totality;
b. That the Learned Magistrate erred in failing to take into account a period [of] pre-sentence custody;
6. The orders sought are:
a. That the Appellant be re-sentenced;
b. Such further order or orders as the Court deems appropriate.
In the submissions made on behalf of Mr Khan, a further error was identified, and I granted Mr Khan leave to amend the Notice of Appeal to reflect that the good behaviour order for which he was sentenced had, in fact, been cancelled on 26 May 2011, and so could not have breached by the offences.
THE OFFENCES
The facts of the offences are in relatively short compass. It appears that Mr Khan has been in a relationship for about five to six years with a young woman, the complainant in respect of the breach of personal protection orders, and that they have three children together. The complainant, however, applied on 23 July 2012 for a personal protection order, and an interim personal protection order was granted on that day which, inter alia, prohibited Mr Khan from:
· being on certain premises in Narrabundah where the complainant lived;
· being within 100 metres of the complainant or her children except in certain circumstances not presently relevant; or
· contacting the complainant or children, except in certain circumstances not presently relevant.
That interim personal protection order was served on Mr Khan on 31 July 2012. Later, on 23 August 2012, a final order was granted; it, however, had not, as at 3 September 2012, been served on him.
On 3 September 2012, the complainant was at home asleep, and Mr Khan entered the bedroom and spoke to her, causing her to awake. They subsequently had an argument, and the defendant and the complainant raised their voices, shouting at one another. They continued to argue for some hours until they both fell asleep. The complainant awoke and, while the defendant was still asleep, contacted police, who later attended and heard the defendant, then awake, shouting and continued to shout until he was arrested.
On 19 September 2012, police were on a mobile patrol in Narrabundah, and they came to the complainant’s house, observing a male leave the premises. They recognised Mr Khan as the person leaving the premises and spoke to him, arresting him because of the breach of his bail conditions which had been imposed following his arrest for the earlier offence. He explained that he was “just bringing some nappies around.”
On 17 March 2013, police again attended the premises to conduct a warrant inquiry relating to Mr Khan. They approached the front of the house and saw Mr Khan with the complainant, seated on the couch eating with two small children in the room. They knocked at the window and saw Mr Khan run to the rear of the house. They did not immediately locate him. They did, however, attend again on 21 March 2013, and after knocking on the door and receiving no answer, saw Mr Khan leave the premises by the back. Those were the facts surrounding the breaches of personal protection orders showing a significant dispute between the complainant and Mr Khan in relation to the first one, but apparently in the other matters, not cases where there was disharmony between them.
On the 25 November 2012, Mr Khan was at premises where his father was working on some motor vehicles. Mr Khan behaved in a way that his father thought was inappropriate. He was hitting cars that were in the car park and yelling out. His father, Mr Khan, looked up, and told him to stop hitting the cars. The appellant, Mr Khan, walked towards his father and grabbed him in a bear hug from the front and head butted him to the mouth. At some stage, there was further dispute, and Mr Khan spoke to a friend of his father’s, who was on the premises, and pushed him in the chest, forcing him backwards and to fall over. These were the circumstances of the two assaults.
SUBJECTIVE CIRCUMSTANCES
Education, employment and family history
Mr Khan was born in Canberra 23 years ago. He is an Aboriginal man, the eldest of four children. He had a tumultuous childhood due to his parents’ neglect, illicit substance abuse, and violence; both parents being alcoholic and smoking cannabis. They never had time for the children and were always violent. Mr Khan’s step-father physically abused him, his brother, and their mother on a regular basis, thus exposing him to high levels of domestic violence.
Mr Khan was “kicked out” of home when he was 10, and was placed with various foster families before returning to his birth father for a period of about one year.
He became a ward of the government from about age 12 through to age 18. He had two foster care homes in the ACT, as well as living on the streets and in various refuges and hostels. He also spent periods of time in the Quamby Youth Detention Centre in the ACT after being convicted of several offences.
He has had no contact with either his mother or his siblings. He describes the relationship with the complainant as “good, if it wasn’t for her I wouldn’t have grown up and I wouldn’t have anything, she does everything for me.” The couple, however, fight regularly, which Mr Khan, perhaps because of his unfortunate upbringing, seems to be regarded as inevitable in family. But he says, and says vehemently, that he is committed to his family, and that he wants to continue a relationship with them. That appears to be problematic in relation to concerns that care and protection have about the family, and that seems to have led to a resurgence of criminality from Mr Khan.
Mr Khan left school at age 14. Since then, he has had some courses which he has attended during periods of custody in the Alexander Maconochie Centre, including First Aid, Certificates I and II in Information and Technology, his White Card, and most recently, a law course. He is currently enrolled and participating in an anger management course, which hopefully will make his life after custody somewhat less anti-social.
Mr Khan has had virtually no employment, although he has had some small brief times in labouring and handyman occupation from time to time.
Alcohol and illicit substance use and attempts at rehabilitation
Mr Khan first consumed cannabis at the very early age of 11 years, and has continued to use that in to his adult life. He first consumed alcohol at also an early age of 12 years. These are important because they show access to and use of drugs and alcohol at a time when it cannot be expected that Mr Khan exercised reasonable consent or had an understanding of the risks that he involved himself with in undertaking that use.
He has used methamphetamine from time to time.
Mr Khan attended the Roy Thorne House for drug and alcohol rehabilitation in 2010, and completed the four month program, remaining clean for approximately 11 months. He suggested that his relapse was due to the stress of Family Court matters, which involved care and protection. He says he has not used any form of illicit substances since being remanded in custody on 22 March 2013.
On sentencing, Mr Khan produced some evidence of efforts at rehabilitation. He had made contact with Samaritan House, conducted by the Society of St Vincent de Paul, and they indicated that they were available and willing to assist him. He also contacted Directions ACT. He had made inquiries of the Canberra Institute of Technology as to full-time numeracy and literacy programs which may be of assistance to him.
Unfortunately, his opportunity to gain assistance and to have the court assisted by a report by the Court Alcohol and Drug Assessment Service was rendered nugatory when he failed to attend and co-operate with that agency. That shows that some offers to address, by rehabilitation, the difficult circumstances that Mr Khan needs to overcome if he is going to live a pro‑social existence have not been taken up by him.
The assessment of the author of the Pre-Sentence Report, that was also tendered in the Magistrates Court proceedings, was very bleak, acknowledging that he had an extensive criminal history associated with illicit substance abuse, abuse, violence, and non-accountability. It describes his behaviour as “recidivistic” coupled with “an inept regard for Court based orders,” and “entrenched criminal attitudes and lack of preparedness to comply or conform.”
Criminal history
In the courts since 2003, Mr Khan has 34 offences on his record, principally dishonesty offences including burglary and theft. Worryingly, he also has a record for nine breaches of bail offences. He has also breached court orders on five occasions. This is a poor record, and one that is worrying. It gives one great hesitation about granting Mr Khan any conditional liberty, bearing in mind that a number of the offences were committed, including both those which are the subject of this appeal and earlier offences, while he was on conditional liberty.
He has, however, a history of entrenched disadvantage in his childhood and, as the High Court has recently said in Bugmy v The Queen [2013] HCA 37 at [44]-[45], this is not something that is easily resolved over time, even after appearances in court where opportunities are made, and deterrent, and particularly specific deterrent, sentences are imposed. It needs to be taken in to account in sentencing.
THE SENTENCE BELOW
Careful submissions were made by counsel for Mr Khan, Mr A Doig. They were directed to suggesting that the involvement of care and protection in his life had significantly unsettled him, that he had otherwise been making some strenuous efforts to reform, and that he had now, since being in custody, taken steps to address the issues. Mr Khan’s counsel submitted then that he should not be immediately subject to fulltime custody.
In response, the prosecution indicated that much of that had to be taken on faith, in that much was promise rather than result.
In sentencing, the learned Magistrate acknowledged the difficult personal circumstances and the unfortunate background that Mr Khan had suffered. He noted the reports showed little hope for rehabilitation. He suggested that the submission that Mr Khan had turned a corner and was directed towards rehabilitation had little evidence to justify it.
His Honour also noted the seriousness of domestic violence offences, although I have to say that they are not the usual form of domestic violence offences for which the courts have indicated severe specific and general deterrent sentences should be imposed. His Honour acknowledged the youth of Mr Khan, but recognised his appalling record and what he described as his disregard for community standards. He noted that Mr Khan had pleaded guilty. He then imposed the sentences that I have already outlined above (at [3]).
THE SUBMISSIONS ON APPEAL
On the appeal there were really four issues that needed to be dealt with.
Pre-sentence custody
The first is that Mr Khan had been in custody for two periods before he was sentenced. One was for 26 days from the 25 November 2012 to the 19 December 2012, and another was for 77 days immediately prior to sentencing. His Honour did mention both of those periods, but when announcing the sentence, and taking into account by backdating the commencement of the sentence, he only included the 77 days, but not the earlier period.
His Honour gave no reasons for doing that; if there were reasons for doing so – and none are apparent to me – none were submitted either in the Magistrates Court nor in this court where the respondents, represented by Mr M Fernandez, admitted, very fairly, that there appeared to be an error and that the period should have been taken in to account.
That error means that the sentences should start not on the 21 March 2013, as enunciated by his Honour, but on the 23 February 2013.
The good behaviour order
In relation to the good behaviour order, the sentence that had been suspended when the good behaviour order was made was then imposed; the good behaviour order had been made on the 16 December 2010 on a sentence for common assault that had been committed on the 10 December 2009. It is of some concern that the victim of that assault was, in fact, the complainant in respect of the breach of personal protection orders matters.
Mr Khan was sentenced to 9 months imprisonment, 4 months of which was to be served by periodic detention, and the balance suspended with a 2 year good behaviour order.
His Honour in the Magistrates Court imposed 3 months imprisonment in re-sentencing in respect of that good behaviour order which had been breached.
The difficulty is that on the 26 May 2011, it was acknowledged that Magistrate Dingwall had cancelled that good behaviour order and fined Mr Khan instead.
Again, after checking the facts, Mr Fernandez acknowledged the error and agreed that the sentence must be reduced by the 3 month period set by his Honour for sentencing or re-sentencing on the good behaviour order, and I will do so.
Manifest excess
The other ground was that of manifest excess. Mr Doig gave careful written submissions on issues relating to what he said was a manifestly excessive sentence. The Court of Appeal has set out in R v TW (2011) 6 ACTLR 18 at 27-8; [60]-[61] the grounds on which, and the way in which, the court must address the ground of appeal that a sentence is manifestly excess.
Domestic violence is a serious matter. In Rv Hamid (2006) 164 A Crim R 179, the New South Wales Court of Criminal Appeal indicated that deterrent sentences are appropriate for matters of domestic violence. It is described as “pernicious and evil” by Higgins CJ in the R v Bell [2005] ACTSC 123.
While the offence against Mr Khan’s father could also be described as domestic violence, the fact is that the interim personal protection order and the personal protection orders are there to protect the complainant from what might be described as domestic violence in its widest sense. Therefore, such orders are an important component of the criminal justice system’s response to domestic violence. Breaches of personal protection orders are serious matters which the courts must treat seriously to ensure the integrity of the system which the protection orders are intended to put in to effect.
Mr Khan’s record unfortunately denies him much leniency, as I have described that above (at [35]).
There was a complaint, however, that was carefully enunciated by Mr Doig about the cumulation of all the sentences. I have carefully considered that matter. Mill vThe Queen (1988) 166 CLR 59 sets out the principles in relation to cumulation and concurrency, and in particular, the totality of a sentence. Having carefully considered the sentences that were imposed, I cannot see any breach of the principles here, having regard to the continued offending, the circumstances in which the offences were committed, that is, while on conditional liberty and after being arrested, and knowing that the activities in which Mr Khan was involved were breaches.
Having regard to the objective seriousness of the offences, I may indeed have imposed more severe penalties for the breaches of protection orders. Three months would not have been outside the range, although I probably would have made some of the sentences concurrent. It seems to me that what his Honour has likely done is made the periods of cumulation the absolute sentence, rather than making longer sentences, appropriate to the offences, and then partially making them concurrent. This is, although not in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610, nevertheless an acceptable way of sentencing as acknowledged by the High Court in Johnson v The Queen (2004) 78 ALJR 616.
His Honour was aware of all the matters of mitigation referred to by Mr Doig, such as Mr Khan’s age and plea of guilty, but the offences were serious and they were continual; they were really a course of conduct. I do not consider that the sentence was manifestly excessive.
Breach of the good behaviour order of Nield AJ from 8 February 2011
While I found that there is no breach of the Magistrates Court good behaviour order, as suggested, the fact is that the sentences in relation to the breach of the personal protection orders were breaches of a Supreme Court good behaviour orders made on the 8 February 2011 by Nield AJ when holding an appeal. Nield AJ imposed a good behaviour order from the 8 January 2012 to the 7 January 2013. The details are set out in Khan v The Queen [2011] ACTSC 20. I do not need to repeat them, I take them in to account.
I was asked also to deal with that matter today; that seems sensible and would lead to probably a more appropriate outcome in all the circumstances. Neither party took exception to that, and both consented to me doing so. The breach is constituted, as I said, by the offences of breaching personal protection orders. Mr Khan admitted the breaches.
As required by s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), I must cancel the good behaviour order, and to either impose the period of imprisonment suspended or to re-sentence Mr Khan.
DISPOSITION
I will, therefore, cancel the order. It seems to me, in the circumstances that I should re-sentence Mr Khan, although I propose to impose the same sentence as the balance of the sentence imposed by Nield AJ, and which was then suspended because of the way in which I propose to deal with all the matters.
It is important, it seems to me, to resentence Mr Khan to a term of imprisonment, given that a breach of a good behaviour order should not, ordinarily, go unpunished (see Saga v Reid [2010] ACTSC 59). Having regard to all the circumstances, I think I should extend the term of imprisonment, but I should suspend it rather than make a non-parole period at an early time.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Refshauge.
Associate:
Date:
Counsel for the Applicant: Mr A Doig
Solicitor for the Applicant: Darryl Perkins Solicitors
Counsel for the Respondent: Mr M Fernandez
Solicitor for the Respondent: Director of Public Prosecutions (ACT)
Date of hearing: 4 October 2013
Date of judgment: 4 October 2013
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