Lewis v Storey
[2019] ACTSC 74
•22 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Lewis v Storey |
Citation: | [2019] ACTSC 74 |
Hearing Date: | 19 October 2018 |
DecisionDate: | 22 March 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [54]-[56]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against sentence – whether sentence manifestly excessive – whether the Magistrate erred in describing the offence as “attempted murder” – where the Magistrate incorrectly calculated discounts for the pleas of guilty |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 26, 27, 28, 381 Family Violence Act 2016 (ACT) Magistrates Court Act 1930 (ACT) ss 207, 208, 214, 218 |
Cases Cited: | CX v The Queen [2017] ACTCA 3 Dalton v The Queen [2015] ACTCA 48 Taylor v The Queen [2014] ACTCA 9 |
Texts Cited: | Explanatory Statement, Crimes (Domestic and Family Violence) Legislation Amendment Bill 2015 (ACT) |
Parties: | Mitchell Lewis (Appellant) Miranda Storey (Respondent) |
Representation: | Counsel Mr J Lawton (Appellant) Ms S Naidu (Respondent) |
| Solicitors Sharman Robertson Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 36 of 2018 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Boss Date of Decision: 10 July 2018 Case Title: Storey v Lewis Court File Number: CC18/7669 |
LOUKAS-KARLSSON J
Introduction
Mitchell Lewis (the appellant) appeals from sentences imposed in the Magistrates Court on 10 July 2018 by Magistrate Boss.
The appellant was convicted and sentenced for five offences. Those offences were as follows:
| Charge | Offence Date | Offence | Maximum Penalty of Imprisonment | Sentence |
| CC18/6048 | 11 March 2018 | Common assault pursuant to s 26 of the Crimes Act 1900 (ACT) | 2 years imprisonment | 6 months of imprisonment (reduced from 7 months) |
| CC18/3850 | 12 March 2018 | Possess offensive weapon with intent pursuant to s 381(1) of the Crimes Act 1900 (ACT) | 1 year of imprisonment | 3 months of imprisonment (reduced from 4 months) |
| CC18/6053 | 12 March 2018 | Common assault pursuant to s 26 of the Crimes Act 1900 (ACT) | 2 years of imprisonment | 6 months of imprisonment (reduced from 7 months) - concurrent with CC18/7669 |
| CC18/6059 | 12 March 2018 | Assault occasioning actual bodily harm pursuant to s 24 of the Crimes Act 1900 (ACT) | 5 years of imprisonment | 11 months of imprisonment (reduced from 13 months) – concurrent with CC18/7669 |
| CC18/7669 | 12 March 2018 | Choke to render insensible pursuant to s 27(3)(a) of the Crimes Act 1900 (ACT) | 10 years of imprisonment | 3 years and 6 months of imprisonment (reduced from 4 years) |
The total head sentence imposed was 3 years and 6 months of imprisonment, with a non-parole period of 18 months. The sentence was backdated to commence from 12 March 2018.
Facts
At about 4:00 pm on Sunday 11 March 2018, the victim was with her boyfriend (the appellant) in his apartment. The victim and the appellant had been in a relationship for approximately two months and were in a relevant relationship as per the Family Violence Act 2016 (ACT). The offences in their totality constituted a continuing course of conduct over two days.
Common Assault – CC18/6048
An argument started at the apartment, and the victim tried to leave, but the appellant pushed her into the pantry and over the bin. He stood over the victim in an intimidating manner. The appellant then put his hands around the victim’s neck and pushed her into a wall when she tried to leave. The appellant was abusive and threatening towards the victim. He called her a “cunt” a threatened to break her legs. At one stage the appellant slapped the victim on the arm. When she screamed he mocked her voice and what she was saying.
After a while the victim left the apartment. The victim was able to get to a vehicle, which she locked herself in. The appellant followed the victim, and started banging on the doors of the vehicle and threatened to break the window if she did not let him in. The victim allowed the appellant to enter her car. The appellant and the victim returned to the apartment and stopped arguing.
About half an hour later the argument recommenced. The victim attempted to leave and the appellant pushed her. The victim ran out of the apartment and the appellant followed her. The appellant yelled at the victim who cowered from him by crouching down. The appellant grabbed the victim by the hair and attempted to pull her up. The victim then left.
Assault Occasioning Actual Bodily Harm – CC18/6059
At about 12:30pm on Monday, 12 March 2018, the victim returned to the appellant’s apartment after he threated to kill himself if she didn’t return. Over the next five hours the appellant confined the victim to his apartment and violently and repeatedly assaulted her.
At some time during the afternoon, the appellant pushed the victim off the couch. Whilst she was on the ground, the appellant grabbed her neck with his hands with enough force for the victim to feel that she was being strangled. Whilst this was happening the appellant also said words to the effect that the victim feared for her safety. The appellant called her slapped her on the face with enough force to cause her nose to bleed.
10. At some point during the night the appellant and the victim were sitting on the balcony when he pushed a glass table towards the victim, grabbed the chair that she was sitting on by the legs causing the chair to flip over, and for the victim to fall to the floor and hit her head on the concrete wall of the balcony. The appellant then put his face close to the victim’s and threatened to throw her off the balcony if she did not go inside. The appellant resided on the seventeenth floor of the apartment complex. Fearing that the appellant would throw her off the balcony the victim went inside the unit.
Choke to render insensible (CC18/7669)
11. Whilst back in the apartment the appellant wrapped his arm around the victim’ neck cutting off her airway, causing her to lose consciousness and feel her body go limp. The victim fell to the ground and the appellant said to her words to the effect of: “shut up cunt if you fucking scream again, I’ll fucking kill you”.
Assault occasioning Actual Bodily Harm – CC18/6059 (Continued)
12. While the victim was lying on the ground the appellant kicked her a number of times on her back and arms, causing difficulty breathing and leaving bruises to her back and ribs. The appellant kicked the victim in her buttocks so hard that she lost feeling and movement in her leg.
13. The victim felt sick and dizzy and asked the appellant to call an ambulance. The victim was bleeding from the mouth and got blood on the toilet seat. The appellant became angry that the victim was bleeding, and hit the victim on the face and told her to get out of the bathroom.
14. The appellant grabbed the victim by her shirt and bra causing them to rip. The appellant punched the wall near the victim’s head and then slapped the victim with force that she was unable to hear in the affected ear. When the victim fell to the ground, the appellant grabbed the victim’s hair and repeatedly hit her head on the ground, causing the victim to lose consciousness.
Common Assault CC18/6053
15. Whilst the victim was on the ground, the appellant stood over her and said words which made the victim fear for her safety.
Possess offensive weapons with intent – CC18/3850
16. During the incident, male friends of the victim rang the apartment door bell. The appellant did not like the victim’s friends. The appellant picked up two knives and held them each in one hand and said words to the effect of “fuck it cunt, you thought I was angry before, watch me now cunt”.
Events Post-Offence
17. The victim was then able to get up and run out of the apartment whilst screaming for help. Police were contacted after a witness heard disturbance coming from the appellant’s apartment and had gone to investigate. The appellant told the witness that there was no issue and asked him not to call the police. Police met the victim a short distance from the appellant’s apartment complex, and observed the victim to be extremely distressed with visible injuries. The victim was taken to hospital for medical attention.
18. The victim’s hospital records showed that she sustained the following injuries:
(a)A large 10cm haematoma on her head;
(b)Numerous bruising and swelling to her neck;
(c)Significant swelling to her lower face/jaw;
(d)Bruising to the inside of her left ear;
(e)Cuts to her gums;
(f)Large swelling and tenderness to her arm;
(g)Large swelling to her spine;
(h)Multiple abrasions and grazes to her arms, shoulders and elbow;
(i)Bruising and tenderness to her buttocks;
(j)Haematoma to her eyelid;
(k)Tenderness and bruising to her ribs; and
(l)Tenderness and bruising to her chest.
19. The appellant was subsequently arrested and participated in a record of interview.
20. The appellant had initially pleaded not guilty to the offences. He pleaded guilty following negotiations to the parties where charges were rolled-up. The Magistrate considered that a discount of 20% was appropriate.
Jurisdiction
21. The Supreme Court’s appellate jurisdiction in relation to sentence appeals from the Magistrates Court is derived from sections 207 and 208 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). Pursuant to s 214, the Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has the power to draw inferences of fact.
Grounds of Appeal
22. The appellant appeals against the sentence of imprisonment imposed relating to charge CC18/7769. By way of Notice of Appeal dated 1 August 2018, the appellant listed the following two grounds of appeal:
(a)That the sentence imposed with the respect to the charge of choke render insensible was manifestly excessive; and
(b)That the non-parole period imposed was manifestly excessive in the circumstances.
23. The appellant sought leave at the hearing to add the following two additional grounds of appeal. I granted leave to amend the Notice of Appeal at the hearing. The further grounds are as follows:
(c)The sentencing Magistrate had offended the principle in in R v De Simoni (1981) 147 CLR 383 (De Simoni) by punishing the appellant for attempted murder; and
(d)The sentencing Magistrate had erred by not applying the full discount of 20% to the sentence imposed for the offence to choke to render insensible.
24. The appellant seeks orders setting aside the order of the Magistrates Court, and that the appellant be re-sentenced with respect of that charge. The appellant further seeks an order that the Court amend the appellant’s non-parole period as it considers appropriate.
25. At the outset, the respondent conceded ground of appeal (d), and acknowledged that the Magistrate had erred in not applying the full discount of 20% to the charge. The respondent submitted that the correct sentence taking into account the reduction ought to have been 3 years and 2 months of imprisonment, rather than 3 years and 6 months. I find that there was a specific error on sentence having regard to the respondent’s concession, as it accords with my view. The appellant submitted that a sentence of 3 years and 2 months of imprisonment was nevertheless manifestly excessive.
26. Ground of Appeal (d) is made out. The position at law is that in cases that do not involve manifest excess, if an appellate court identifies a specific error, the sentence imposed must be set aside and the appellant court is to exercise the sentencing discretion afresh, unless “in the separate and independent exercise of its discretion [the appellate court] concludes that no different sentence should be passed”: see Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35], [42]; Gillard v The Queen [2016] ACTCA 50 at [43]; McLeod v The Queen [2018] ACTCA 59; Linggo v R [2017] NSWCCA 67.
27. Relevantly, the High Court in Kentwell stated the following at [42]:
When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration , the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence.
28. In light of specific error being established under ground (d), I will nevertheless consider Ground of Appeal (c), followed by Grounds of appeal (a) and (b).
Ground of Appeal (c) – De Simoni Principle
29. Ground of Appeal (c) is that the sentencing Magistrate had “offended” the principle outlined in R v De Simoni (1981) 147 CLR 383 (De Simoni).
30. In De Simoni at 389, Gibbs CJ (Mason and Murphy JJ agreeing) stated as follows:
…the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted.
31. The appellant submitted that the Magistrate “appears to have treated the offence as one effectively of attempted murder”. The specific transcript reference adverted to by the appellant is the following passage in the Magistrate’s sentencing remarks:
Intimate relations are the very building blocks of our community and when you tear at those relationships, you are effectively tearing at the whole community. I take judicial notice of the fact that one woman per week is murdered in Australia by her domestic partner and I note also that, given the facts, particularly on the charge of choke render insensible, that you came very close to being one of those men. It is very fortunate that you released her when you did. Otherwise, you certainly would have been facing a charge of murder.
32. The appellant submitted that in essence, the Magistrate has treated the offences as attempted murder, which the appellant had not been charged with. The appellant further submitted that the Magistrate’s knowledge of domestic violence rates ought to be considered as a matter of common knowledge pursuant to s 144(1) of the Evidence Act 2011 (ACT) (Evidence Act), and that as a result, section 144(4) of the Evidence Act requires that:
The judge must give a party the opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge mentioned in subsection (1) that is necessary to ensure that the party is not unfairly prejudiced.
Consideration
33. The Magistrate, prior to making the remarks set out above, had earlier in the sentence proceedings stated the following:
HER HONOUR: This woman nearly died. When you render somebody unconscious through choking, you are a matter literally of seconds away from death. That is what the literature overwhelmingly says. He would have been coming – but for a handful of seconds, he would have come before the court as he is now but for a charge of murder.
MR ROBINSON: But he is not and in ---
HER HONOUR: No, he’s not but I am concerned about the general trend of your submissions because in my view, it is minimising the severity and failing to recognise and I am concerned that from the tenor of your submissions that the defendant has not genuinely grasped the seriousness of his conduct. He nearly killed a woman and we lose – one woman a week in Australia is murdered by their domestic partner and but for a handful of seconds, this woman would have joined that statistic and while I acknowledge that there were many mitigating features, I am just a little concerned that he genuinely does not grasp what he has done, given, as I say, the tenor of your submissions and that worries me very significantly and significant deterrence raises therefore considerably in my mind.
MR ROBINSON: Well, your Honour, I would not ask your Honour to place the tenor of my submissions of what Mr Lewis’ remorse is, with respect, because I note ---
HER HONOUR: Well (indistinct) I am concerned that he does not understand the gravity of his conduct. That is my concern.
34. The respondent submitted that the above passage demonstrates that there was an opportunity for the appellant to respond, pursuant to s 144 of the Evidence Act. Further, the respondent submitted that the Magistrate’s remarks went to towards “her assessment of the seriousness of the appellant’s offending” rather than “sentencing him for murder or attempted murder”. I accept this submission as it accords with my view of this exchange.
35. The Magistrate’s expression of how serious the offence is reflects the Explanatory Statement to the Crimes (Domestic and Family Violence) Legislation Amendment Bill 2015 (ACT). Although the Bill relates to the insertion of s 28(2)(aa) into the Crimes Act, a less serious offence of choking to endanger health compared with s 27(3)(a), the explanatory material refers to s 27 of the Crimes Act, and refers to choking as “one of the most important predictive risk factors for intimate partner homicide”.
36. The remarks of the Magistrate in my view do not offend the principle in De Simoni. The remarks in my view reflect an attempt by the Magistrate to underline to the appellant the seriousness of this offence. The remarks of the Magistrate considered in context are not an infringement of the principle in De Simoni.
Ground of Appeal (a) – Manifest Excess
37. The appellant submitted that the Magistrate erred in considering that the starting point for the offence of choke so as to render insensible was 4 years of imprisonment. It was submitted that this would appear to be “the highest penalty for an offence of this nature since statistics have been kept on the ACT database” in the summary jurisdiction.
38. The appellant conceded that the offending was objectively “very serious”, however it was noted that this was the first custodial sentence imposed on a young person who was 22 years old at the time of the offending. It was submitted that considering appellant’s subjective factors, the sentence was manifestly excessive in the circumstances.
39. The respondent submitted that a sentence of 3 years and 2 months of imprisonment for the choke charge, and the total head sentence of 3 years and 2 months of imprisonment, is not manifestly excessive, particularly when the totality of the criminal conduct, being a course of conduct over two days, is considered.
Consideration
40. The applicable principles to a sentence appeal based on the ground of manifest excess are well established, and were set out as follows in Dalton v The Queen [2015] ACTCA 48 at [18]:
The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
· Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).
· The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].
· In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].
· It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].
41. The ACT Court of Appeal stated the following in CX v The Queen [2017] ACTCA 37 in relation to the relevant discretion:
A claim of manifest excess or manifest inadequacy calls into question what is a quintessentially discretionary decision, preservation of which is of vital importance to the administration of criminal justice: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15].
42. In view of the fact that specific error has been established as a consequence of upholding ground (d), it is not required that I deal with this ground. Nevertheless, for the sake of completeness, I indicate that I do not consider a sentence of 3 years and 6 months, or 3 years and 2 months, to be manifestly excessive on the facts of this case.
Ground of Appeal (b) – The Non-Parole Period
43. I have already considered that in the circumstances, a head sentence of three years and two months of imprisonment is not manifestly excessive.
44. The non-parole period imposed was 18 months. It is relevant to note that the non-parole period expressed as a percentage the head sentence of 3 years and 6 months of imprisonment is 43%. As expressed as a percentage of a head sentence of 3 years and 2 months of imprisonment, the relevant percentage is approximately 47%. These values are both outside the “usual range” of non-parole periods in the ACT: see Henry v The Queen [2019] ACTCA 5 at [14].
45. The appellant submitted that a new non-parole period would be available to be set on any resentencing exercise arising from the finding of error on the other grounds.
46. The respondent submitted that a non-parole of 18 months is not excessive in all the circumstances, and that the non-parole period should not be interfered with. The respondent submitted that the Magistrate appropriately had regard to the sentencing purpose of rehabilitation and the relatively young age of the appellant. The respondent submitted that I should not exercise my discretion to interfere with the non-parole period of 18 months.
Consideration
47. In light of the concession of specific error by the respondent under ground (d), and the requirement for resentencing as discussed above under Kentwell, it is not necessary to deal with this ground separately. I will now proceed to resentence.
Resentence
48. The starting point in any resentencing exercise is to consider the facts. The facts are outlined at [11]. The offence of choke to render insensible is contrary to s 27(3)(a) of the Crimes Act 1900 (ACT). The maximum penalty is 10 years of imprisonment. This was an objectively serious offence.
49. It is necessary to exercise the sentencing discretion independently and afresh, taking into account the purposes of sentencing and the other matters that the Sentencing Act requires to be taken into account: Magistrates Court Act s 218; Kentwell at [42]; R vToumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [106].
50. In my view, the appropriate starting point for the head sentences is 45 months. In reaching this starting point, I have taken into account the maximum penalty, relevant sentencing purposes and relevant matters under s 33 of the Sentencing Act. The Magistrate referred to all relevant matters and I respectfully adopt her Honour’s reasons. Also before me was a Certificate of Achievement presented to the appellant in recognition of his completion of the first steps to anger management program, dated 27 September 2018.
51. The application of a s 35 discount of 20 percent results in a sentence of 36 months of imprisonment.
Non-Parole Period
52. The proper approach to fixing a non-parole period is well established and was summarised in Taylor v The Queen [2014] ACTCA 9 as follows at [19]:
The proper approach to fixing a non-parole period is well established and can be summarised as follows.
1.A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627 – 628, Deakin v The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmy v The Queen (1990) 169 CLR 525 (Bugmy) at 536.
2.An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531 – 532.
3.The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Inge v The Queen (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625.
4.Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton vThe Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non-parole periods. The concepts of “manifest excess” and “manifest inadequacy” do not mean that a sentence has fallen outside an “available range”. Very recently, in Barbaro v The Queen [2014] HCA 2 at [27], French CJ, Hayne, [Kiefel] and Bell JJ observed:
... the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
53. The appellant’s youth means that it is important to promote his rehabilitation by fixing a non-parole period that is relatively low, but still bears an appropriate relationship to the total sentence and does not undermine the sentencing purposes of punishment, general deterrence and recognition of harm to the victim. I fix the non-parole period at just under 50 percent of the total sentence.
Orders
54. The appeal is allowed.
55. The orders imposed by Magistrate Boss on 10 July 2018 for the charge CC18/7669 are set aside.
56. The appellant is re-sentenced as follows:
(a)For CC18/7669, the appellant is sentenced to 3 years of imprisonment, commencing 12 March 2018 and concluding 11 March 2021.
(b)I set a non-parole period of 17 months, commencing 12 March 2018 and concluding 11 August 2019.
| I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 22 March 2019 |
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