Mallias v Rigby - [2020] NTSC 19

CITATION:Mallias v Rigby [2020] NTSC 19
PARTIES:MALLIAS, George
v

RIGBY, Kerry Leanne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 22 of 2019 (21843418)
DELIVERED:  8 May 2020
HEARING DATE:  1 November 2019
JUDGMENT OF:  Kelly J

CATCHWORDS:
APPEAL – Whether sentence manifestly excessive – Whether sentencing judge committed error in mischaracterising fault element of charge as intentional not reckless – Whether sentencing judge committed error in failing to consider the imposition of a home detention order – Whether sentencing judge committed error in not informing defence he would not be imposing a fully suspended sentence – Whether sentencing judge committed denial of natural justice in failing to invite defence to make further submissions on sentencing options
Criminal Code Act 1983 (NT), s 174C
Sentencing Act 1995 (NT), s 45
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Development Consent Authority v Phelps [2010] NTCA, applied

ABB Australia Pty Ltd v James Engineering Pty Ltd & Anor [2018] NTSC 91, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Bara v The Queen [2016] NTCCA 5, Clarke v The Queen [2019] NTCCA 2, Emitja v The Queen [2016] NTCCA 4, Morrow v The Queen [2013] NTCCA 7, Musico v Davenport [2003] NSWSC 977, R v Rule [2008] VSCA 154, Ross v Toohey [2006] NTSC 92, Whitlock v The Queen [2018] NTCCA 7, referred
REPRESENTATION:
Counsel:
Appellant:S McMaster
Respondent:  M Chalmers
Solicitors:
Appellant:Maleys Barristers & Solicitors
Respondent:  Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Kel2004
Number of pages:  12

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Mallias v Rigby [2020] NTSC 19

No. LCA 22 of 2019 (21843418)

BETWEEN:

GEORGE MALLIAS

Appellant

AND:

KERRY LEANNE RIGBY

Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 8 May 2020)

On 3 June 2019 the appellant pleaded guilty in the Local Court to one count of recklessly endangering life contrary to s 174C of the Criminal Code. The maximum penalty for that offence is 10 years imprisonment.
He was sentenced to 18 months imprisonment, suspended after he had served three months.
He was granted appeal bail on 3 June 2019 and has not served any portion of that three months.
The facts of the offending
The agreed facts, in summary, were as follows.
(a)On 18 September 2018, the appellant erected a single strand of barbed wire across a dirt track on public land adjacent to his property. The wire was about one metre off the ground tied off on two separate trees.
(b)The dirt track runs parallel to Cox Peninsula Road and skirts the border of the appellant’s rural property. The dirt track is not a gazetted road but it is used by the public for recreational use in motor bike and quad bike riding.
(c)The next day, the two victims, a man and a woman, were riding a quad bike down the dirt track towards Tumbling Waters Creek where they intended to go for a swim. The man was driving the quad bike and the woman was a pillion passenger.
(d)The quad bike crashed into the strand of barbed wire across the track while travelling between 25km and 30km per hour.
(e)The barbed wire became tangled around the driver’s throat, and the front and back of his torso inflicting multiple deep lacerations. This caused him immediate pain and discomfort and he was bleeding profusely from the neck and body.
(f)The passenger also sustained minor injuries to her face and body as a result of the collision with the barbed wire. These injuries caused immediate pain and discomfort.
(g)The victims managed to untangle themselves from the barbed wire and drive home. They later went to the Royal Darwin Hospital to have their injuries treated.
(h)The next day the victims reported the presence of the barbed wire across the track to police.
(i)Police attended and assessed the scene. While they were there, the appellant approached them and admitted that he had placed the barbed wire across the track. He told police that he erected the barbed wire across the track to keep trespassers from entering his property.
(j) On 27 September 2018 the appellant voluntarily participated in an electronically recorded interview with police during which he again admitted placing the barbed wire across the track because his produce (pumpkins, watermelons and cucumbers) had been stolen in the past. He explained that he had marked the barbed wire with multiple strands of blue rope so that it could be seen by members of the public. He conceded that he had erected the barbed wire at about one metre in height and it had resulted in injuries to the two victims but that he never intended to hurt anyone.
(k)The appellant was aware that the place where he set the barbed wire up from tree to tree across the dirt tracks was public land and that people regularly use this track riding motorbikes and quadbikes.
(l)The appellant has lived on rural properties for 30 years and is aware that a substantial risk existed to the public in setting up the single strand of barbed wire with blue rope attached knowing that the public regularly use this dirt track to commute back and forth around the rural area.
(m)The appellant failed to erect any fencing bordering his property and did not have signs indicating that his property is private property or making the public aware of the single strand of barbed wire temporarily erected across the dirt track.
(n)The appellant’s conduct in setting up the barbed wire was reckless as to the danger of death to the two victims when they rode into the barbed wire resulting in multiple injuries.
(o)The appellant did not have any authorisation, justification or a lawful excuse in setting up the barbed wire.
(p)When asked what he thought would happen to a person when he erected the barbed wire across a public dirt track, the appellant said, “It would stop people trespassing into the property”.
The appeal
On 3 June 2019 the appellant filed a Notice of Appeal. The grounds of appeal were (sic):
Ground 1: The sentence was manifestly excessive with regard to conviction having regard to the facts and circumstances of the offending and the offender.
Ground 2: The learned sentencing judge misdirected the defence, and erred in failing to consider all relevant sentencing options, inform the defence that it was not considering a fully suspended sentence and invite the defence to make further submissions with regard to sentencing options.
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 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 or inadequate as to manifest such error. It is incumbent upon the appellant to show that the sentence was clearly and obviously, and not just arguably, excessive.
The appellant contended that the sentence was manifestly excessive. He did not contend that the head sentence of 18 months was excessive, merely that it was manifestly excessive to require the appellant to serve three months actual imprisonment. The contention was that, in all of the circumstances, the sentence should have been fully suspended.
The grounds of appeal are inter-related. The appellant contended that the sentencing judge effectively denied the appellant natural justice by failing to signal that he did not accept the defence submission that a fully suspended sentence was appropriate and failing to invite further submissions on that topic or, alternatively, on what alternative sentence should be imposed – for example a home detention order.
I have been somewhat hampered on this appeal by the fact that “technical difficulties” resulted in a large part of the proceedings not being transcribed. There is transcript of most of the sentencing remarks, but not of the sentencing submissions. It was, however, agreed by counsel that defence counsel submitted that a fully suspended sentence was appropriate; that the Crown was silent on that issue; that the sentencing judge did not signal his intention to reject the defence submissions about a fully suspended sentence; that no submissions were made about home detention and the defence did not seek a home detention report.
Counsel for the appellant contended that he was not given the opportunity to ask for a home detention suitability report because the sentencing judge did not at any point signal that he did not accept the defence submission that a fully suspended sentence was appropriate.
Although it would have been preferable for the sentencing judge to let defence counsel know in advance that he rejected the defence submission and was considering ordering the appellant to serve actual prison time, I do not think it was a denial of natural justice for him not to have done so. This is not a case in which both counsel were contending for a particular outcome which the sentencing judge rejected. In those circumstances it has been held that it would be expected that if the sentencing judge were not minded to accept what was effectively a joint position, the judge would flag that and give both counsel an opportunity to be heard in relation to it.[2]
Nor is this a case in which the sentencing judge went outside the parameters of the case being argued by counsel and adopted a third course of action outside the scope of what was “on the table”. In those circumstances also it has been held that the judge has a duty to give advance warning of the proposed course of action and to give both counsel an opportunity to be heard on it.[3]
Defence counsel was not entitled to simply assume that his submissions in favour of a fully suspended sentence would be accepted. It was incumbent on counsel to put before the sentencing judge submissions in relation to all options he was inviting the court to consider.
In Ross v Toohey[4] Mildren J said:
Consistently with the scheme of the Act, courts must always consider home detention orders as a real alternative to short sentences of actual imprisonment. Of course there are many situations where home detention will not be available. The Legislature has seen fit to provide that in the case of “violent offences” there must be a period of actual imprisonment, which has the effect that a home detention order is not an option. Given that many so-called “violent offences” are likely to result in a sentence of less than 12 months and many result in a very short sentence, the effectiveness of home detention as a sentencing option to deal with minor offending to that extent has been significantly curtailed. Further, some, perhaps many, offenders will not be eligible either because they are not suitable as individuals or because the place where they live is unsuitable, or because they do not consent to order. Magistrates and Judges are entitled to assume, if no submission is made for a home detention suitability report under s 45 of the Sentencing Act, that the offender’s counsel has taken instructions on that matter and therefore it is not a matter which need to be considered. A person’s history of non-compliance with court orders may make it plain that an actual sentence of imprisonment is the only available sentencing option. However, there are still many cases where it remains a real option and failure to properly consider it and, if it is decided to reject it, to articulate the reasons why, will amount to sentencing error. [emphasis by underlining added]
The appellant also contended that the sentencing judge made a specific error by mischaracterising the nature of the offence and that that led his Honour to overestimate the seriousness of the offence and to impose a sentence that was manifestly excessive.
The appellant contended that although the charge was recklessly endangering death, the sentencing judge characterised it as a case of intentionally hurting someone, and pointed to the following excerpts from the sentencing remarks in support of this proposition.
(a) I am left with a deliberate planned action, absolutely foreseeable that this was likely to hurt somebody else, maybe hurt them very seriously indeed, with no sensible, logical or meaningful explanation beyond lashing out at the world at large. It was a very serious offence indeed. (at T2)
(b) I am satisfied that punishment – condign punishment is a reality and is genuinely needed in the circumstances of this case. The deliberate actions of Mr Mallias setting out to hurt persons – a person or persons unknown is reprehensible. (at T3)
The appellant contended that these two passages showed that the sentencing judge erred in characterising the fault element of the charge as one of intention rather than recklessness which led his Honour to mischaracterise the offence as more serious than it objectively was.
Counsel for the respondent contended that the opening words of the first quoted passage, was not a reference to the fault element of the offence at all: it was a reference to the conduct involved. As his Honour remarked earlier on that page of the transcript:
The putting of the barbed wire across the road was planned. It was deliberate. (at T2)
The respondent characterised the sentencing judge’s remarks at the end of the first quoted passage as simply a colloquialism in which his Honour was expressing his inability to understand why the appellant had done something so seemingly senseless.
Counsel for the respondent conceded that there was more force in the appellant’s complaint about the second quoted extract from the sentencing remarks which she described as “problematic”. However, she attempted to put this remark in context by pointing to an earlier passage in the sentencing remarks which, the respondent contended, should be read as a reference to the correct fault element – namely recklessness. That passage (at T2) was:
An apparently normal human being with normal capacities to think, plan and foresee has done this; has chosen to do this.
Counsel for the appellant contended that it was too long a bow to draw to say that the sentencing judge was not cognizant of the elements of the offence and had sentenced the appellant on the basis that the appellant had deliberately set out to hurt people. Rather, that passage should be construed as the sentencing judge simply taking into account, as he was obliged to do, the harm caused by the offence.
I do not agree. I consider that the inescapable inference to be drawn from the words used by the sentencing judge in the second quoted passage is that his Honour had characterised the offence as one of intentionally setting out to hurt people rather than one of recklessly endangering death.
It remains to determine whether the consequence of this mischaracterisation is that this appeal should be allowed. A decision does not involve an error of law unless the error contributes to the decision in the sense that, but for the error, the decision might have been different.[5] The question I need to ask is whether, examining the sentencing judge’s sentencing remarks, there was a real possibility (not a mere or slight possibility) that the error could (not necessarily would) have affected his Honour’s decision.[6]
On a fair reading of the sentencing judge’s sentencing remarks, although it is not totally clear whether the mischaracterisation did affect the sentencing judge’s decision, there is a real possibility that it could have done so. That gives rise to an error of law and the appeal must be allowed on that ground.
That means that it is unnecessary for me to decide whether the sentence imposed was manifestly excessive. The sentence must be set aside and the appellant re-sentenced according to law and the circumstances obtaining at the time of re-sentencing.
In support of the ground that the sentence was manifestly excessive, the appellant relied chiefly on the personal background and character of the appellant. The appellant was aged 59 at the time of the offence. He was married with two young children aged five and three and had lived in the Darwin rural area since 1983. He was self-employed, growing mangoes, watermelons, pumpkins and various fruit crops on his 78 acre block. He had no prior convictions; he had excellent references and it was submitted on his behalf (and not disputed) that he was a man of positive good character.
The appellant pleaded guilty at the earliest opportunity and made full admissions to the offending. When he heard what had happened, he went to the police and told them he had erected the barbed wire across the track.
It was also contended on the appellant’s behalf that he was genuinely remorseful. The sentencing judge, who had the benefit of seeing the appellant, accepted that he was remorseful and reduced the sentence from 36 months to 23 months for the appellant’s early plea, remorse and full co-operation with the authorities.
Counsel for the appellant contended that taking all of those matters into account it was manifestly excessive to require the appellant to actually serve three months in prison and that the sentence ought to have been fully suspended.
The sentence is certainly stern, but, had it been necessary for me to decide, I would not have found it to be manifestly excessive. The offence was a serious one: the appellant foresaw the possibility that putting barbed wire across the track in the manner that he did would endanger someone’s life, yet he went ahead and did it, and as a result, two people were in fact injured.
ORDERS:
(a)The appeal is allowed.
(b)Because of the time that has elapsed since the original sentence was imposed, the matter will be listed for further sentencing submissions before re-sentencing.
----------

[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] R v Rule [2008] VSCA 154 at [47] per Warren CJ, Neave JA and Weinberg JA

[3] ABB Australia Pty Ltd v James Engineering Pty Ltd & Anor [2018] NTSC 91 at [55]; Musico v Davenport [2003] NSWSC 977 at [107] - [108]

[4] [2006] NTSC 92 at [19]

[5] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 353

[6] Development Consent Authority v Phelps [2010] NTCA 3 at para [23]