Mailau v Cahill
[2022] ACTSC 212
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Mailau v Cahill |
Citation: | [2022] ACTSC 212 |
Hearing Date: | 23 August 2022 |
DecisionDate: | 23 August 2022 |
Before: | Elkaim J |
Decision: | (a) The appeal is allowed. (b) The sentences imposed in the Magistrates Court on 11 May 2022 are set aside. (c) The appellant is re-sentenced as follows: (i) For the assault occasioning actual bodily harm (CC2021/4660), to 12 months imprisonment commencing on 4 May 2022 and ending on 3 May 2023. (ii) For common assault (CC2021/3328), to 6 months imprisonment, to commence on 4 February 2023 and end on 3 August 2023. (iii) For damage to property (CC2021/3330), to 2 months imprisonment, to commence on 4 February 2023 and end on 3 April 2023. (iv) The total term of imprisonment is 15 months. (v) I set a non-parole period of 6 months to expire on 3 November 2022. |
Catchwords: | APPEAL – SUPREME COURT OF APPEAL – Appeal from Magistrates Court – whether the magistrate erred by failing to apply the principle of totality – whether the sentence was manifestly excessive |
Cases Cited: | O’Brien v The Queen [2015] ACTCA 47 R v Palmer [2020] ACTSC 13 |
Parties: | David Tavake Mailau ( Appellant) Elizabeth Cahill (First Respondent) Ross McLennan (Second Respondent) |
Representation: | Counsel K Lee ( Appellant) R Christensen SC ( Respondents) |
| Solicitors Tim Sharman Solicitors ( Appellant) ACT Director of Public Prosecutions ( Respondents) | |
File Number: | SCA 14 of 2022 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Lawton Date of Decision: 11 May 2022 Court File Number(s): CC2021/3328; CC2021/3330; CC2021/4660 |
Elkaim J:
On 19 March 2021 the appellant went to the home of his former partner. When he arrived he found a vehicle belonging to a friend of the partner in the driveway, with the friend seated within the vehicle.
The appellant attacked the friend, who was a stranger to him, through an open car window, causing actual bodily harm, in particular a fractured nose. This led to a charge of assault causing actual bodily harm (CC2021/4660).
The former partner intervened. She was also in the car and tried to defend her friend. The appellant took hold of her arm and scratched her. He was charged with assault (CC2021/3328).
The appellant, when assaulting his former partner, also took hold of her mobile phone and threw it to the ground. Not surprisingly it was damaged. A charge of damage to property ensued (CC2021/3330).
On 7 December 2021 the appellant pleaded guilty to the above three charges. He was sentenced to a term of full-time imprisonment on 11 May 2022 but commencing on 4 May 2022.
Each of the three charges attracted a term of imprisonment. There was 12 months for the assault occasioning actual bodily harm, six months for the common assault and two months for the damage to property. Each of these periods was ordered to be served consecutively. The appellant had received a 5 per cent discount on each sentence because of his (late) plea of guilty. There is no appeal on the extent of the discount.
The appellant, by an amended notice of appeal, makes two primary points: the sentences should not have been consecutive, rather there should have been some concurrency, and secondly, full-time imprisonment is of itself manifestly excessive. There should have been an Intensive Corrections Order (ICO).
The first point is good; the second point is not.
The strength of the first point arises from the three charges essentially arising from the same incident. The facts display a single attack in which three things happened: the former partner and her friend were attacked, in the course of which the telephone was damaged.
Each victim is entitled to know that separate punishment is being accorded to the offence upon them. But this does not mean there should not be any concurrency.
The principles of totality were re-stated in O’Brien v The Queen [2015] ACTCA 47, at [26]:
The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:
(a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624.
(b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63 (referring to Mill v The Queen (1988) 166 CLR 59).
(c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].
(d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].
The complaint in the present case mostly falls within the ambit of the fourth of the above considerations. The attack on the friend, the assault of the former partner and the damaging of the phone were all “part of a single episode of criminality with common features”, so that the “sentences should be concurrent, or at least partly concurrent”.
I think the learned magistrate’s imposition of entirely cumulative sentences does not give appropriate weight to this consideration and amounts to an error in the sentencing process.
The respondent pointed out that the learned magistrate had said:
I consider that each sentence should be consecutive to reflect the seriousness of each.
The statement was said to be a reflection that his Honour had specifically considered totality. If the submission is correct, then the magistrate is incorrect. This is highlighted by the obvious overlap, not only in respect of all three offences, but in particular the assault and the damage to property. The latter were not only part of the same criminal enterprise, they were part of the same physical action on the part of the appellant. The assault was constituted by him grabbing the phone. The damage to property was his throwing the phone to the ground after the grab.
I do not think there is any other error in the decision of the magistrate. He appropriately weighed the factors leading to an assessment of objective seriousness, he took into account the appellant’s subjective features, including his criminal history, and, perhaps to a limited extent, the character references. For the purposes of re-sentencing I adopt the findings and conclusions of the magistrate on these matters.
I specifically reject the submission that the assault on the friend should be regarded with less seriousness than that assessed by the magistrate. This was an attack, with bone shattering consequences, on a total stranger who happened to be a friend, and no more, of the appellant’s former partner.
The appellant’s primary submission was for there to be an ICO. There was an ICO assessment report which suggested there was a low risk of re-offending, but also stated that his “primary risk factors are his history of offending and propensity for violence”.
The additional, and most important, factor of the criminal conduct being acts of domestic violence, went a large way to demanding a term of full-time imprisonment. As I said in R v Palmer [2020] ACTSC 13 (Palmer), at [22]:
Domestic violence is completely unacceptable. Men must realise they cannot beat up, let alone choke, their partners or former partners. This is a message both to this offender and to men at large.
Coincidently, I note that in Palmer I also said, at [23]:
There will be a degree of concurrency in the sentences because the offending, as noted above, all took place at the same time and it is important to apply principles of totality to avoid an overly long sentence.
Notwithstanding the submissions made about the appellant’s good character, it is to be noted that he had previously assaulted the same former partner.
Any complaint about a failure to consider rehabilitation was I think properly catered for by the magistrate imposing a non-parole period of 40 per cent of the total sentence, a percentage which is well under the ‘usual’ range of 50 per cent to 70 per cent
In respect of re-sentencing, it is necessary for me to avoid the overly long sentence that was created by the application of total accumulation of each sentence. I think there should be some accumulation between the assault of the former partner’s friend and the assault of the former partner. This will recognise that each respective victim is entitled to know that the offender is being punished for his actions against him or her. At the same time, a degree of concurrency will recognise that the events all fell within the same episode of criminal conduct.
For reasons given above, I think the damage to property offence should be wholly concurrent with the assault of the former partner.
Consistent with the magistrate’s approach to the non-parole period, recognising rehabilitation prospects, I will adopt the same percentage to my assessment of the non-parole period. I do not think suspension of the sentence is appropriate. The appellant will have the opportunity to seek parole within a relatively short time.
The appellant has thus far spent three months and 20 days in full-time custody. Accordingly, I will backdate the sentences to commence on 4 May 2022. My terms of imprisonment will be the same as the magistrate and incorporate the same five per cent discount as applied by the magistrate.
I make the following orders:
(a)The appeal is allowed.
(b)The sentences imposed in the Magistrates Court on 11 May 2022 are set aside.
(c)The appellant is re-sentenced as follows:
(i)For the assault occasioning actual bodily harm (CC2021/4660), to 12 months imprisonment commencing on 4 May 2022 and ending on 3 May 2023.
(ii)For common assault (CC2021/3328), to 6 months imprisonment, to commence on 4 February 2023 and end on 3 August 2023.
(iii)For damage to property (CC2021/3330), to 2 months imprisonment, to commence on 4 February 2023 and end on 3 April 2023.
(iv)The total term of imprisonment is 15 months.
(v)I set a non-parole period of 6 months to expire on 3 November 2022.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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