McDonald v Emmett - [2023] NTSC 57

CITATION:McDonald v Emmett [2023] NTSC 57
PARTIES:McDONALD, Ike
v

EMMETT, Phillip

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 3 of 2023 (22302962)
DELIVERED:  30 June 2023
HEARING DATE:  30 June 2023
JUDGMENT OF:  Brownhill J
CATCHWORDS:

Bara v The Queen [2016] NTCCA 5; Bugmy v The Queen (2013) 249 CLR 571; Edmond v The Queen [2017] NTCCA 9; Forrest v The Queen [2017] NTCCA 5; Nicholson v Andreou [2018] NTSC 40; Phan v Western Australia [2014] WASCA 144, referred to.
Criminal Code (NT) ss 213, 277, 278
Local Court (Criminal Procedure) Act 1928 (NT) ss 163, 177(2)
Sentencing Act 1995 (NT) s 78B

REPRESENTATION:
Counsel:
Appellant:S Moody
Respondent:  P Williams
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Bro2311
Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
McDonald v Emmett [2023] NTSC 57

No. LCA 3 of 2023 (22302962)
BETWEEN:

IKE McDONALD

Appellant

AND:

PHILLIP EMMETT

Respondent

CORAM: BROWNHILL J
EX TEMPORE REASONS FOR DECISION
(Delivered 30 June 2023)

The issue in this appeal is whether the sentence imposed by the Local Court of 12 months’ imprisonment suspended after three months for an offence of attempting to unlawfully enter a dwelling house with intent to steal was manifestly excessive.
On 27 January 2023, in the Local Court, the appellant pleaded guilty to the charge of attempting to unlawfully enter a building with the intent to commit the offence of stealing, with the circumstance of aggravation that the building was a dwelling house, contrary to ss 277 and 213 of the Criminal Code (NT).
The appellant was sentenced to imprisonment for 12 months, backdated by two days (to reflect time in custody after arrest) and suspended after three months, with an operational period of 12 months from the date of release. The only condition of the suspended sentence was that the appellant be of good behaviour for the operational period.
Pursuant to s 163 of the Local Court (Criminal Procedure) Act 1928 (NT), the appellant has appealed against the sentence on the ground that it is manifestly excessive.
The facts agreed on the plea were that the appellant was 20 years old at the time of the offending. At approximately 2.00pm on 25 January 2023, he went to a dwelling house in Alice Springs with the intent to commit an offence of stealing. He opened the back gate to the rear of the property and entered the fenced back yard. He walked to the rear kitchen window and looked inside. He approached the back door of the dwelling house and tried to open it by the handle. At 2.17pm, the resident of the house was notified by his CCTV security system that the appellant was at the property and he called Police. The appellant moved a chair from the pool area to the rear fence and used it to climb over the fence. He left the property. He was located a short distance away and arrested. He exercised his right to silence.
The appellant was 20 years old at the time of sentencing. He had a prior criminal record which included:
(a)a conviction for breach of bail committed on 5 March 2022, for which he was sentenced to two days’ imprisonment;
(b)a conviction for aggravated unlawful entry of a dwelling house committed on 24 December 2021, for which he was sentenced to six months’ imprisonment;
(c)a conviction for aggravated assault, committed on 7 October 2021, for which he was sentenced to 4 months’ imprisonment suspended after one month, with the sentence subsequently restored in full following a breach of the suspended sentence;
(d)convictions for trespass on enclosed premises, attempted unlawful entry of a dwelling house and property damage, committed on 21 April 2021, for which he was sentenced to a 200 hour community work order, and subsequently re-sentenced to 13 days’ imprisonment following a breach of the community work order;
(e)convictions for trespass on enclosed premises and unlawfully possessing property, committed on 11 April 2021, for which he was sentenced to 1 week imprisonment;
(f)a conviction for aggravated unlawful use of a motor vehicle, committed on 3 September 2020, for which he was sentenced to two months’ imprisonment, suspended immediately with supervision for six months;
(g)convictions for aggravated unlawful entry of a dwelling house, property damage and stealing, committed on 24 November 2019, for which he was sentenced to four months’ imprisonment;
(h)convictions for attempted unlawful entry of a dwelling house, aggravated unlawful entry of a dwelling house with intent to commit an offence, property damage and stealing, committed on 5 September 2019, for which he was sentenced to four months’ imprisonment; and
(i)a conviction for aggravated robbery, committed on 6 September 2018, for which he was sentenced to 12 months’ imprisonment, suspended after five months, with supervision for 12 months following release.
On the plea, the submission was made that the offending was opportunistic and the objective seriousness of the offence was at the very low end of the range of such offences. Reference was made to information contained in a pre-sentence report provided to the Youth Justice Court in 2020. That information included that the appellant had a childhood characterised by neglect and exposure to family violence, including physical and emotional abuse of him, resulting in 16 child protection notifications, and he had been placed in foster care for some period of time. That report also indicated a history of substance misuse. It was also put on the appellant’s behalf that he had a good relationship with his girlfriend, that he was looking for work (but had never had a job), and that he had recently overcome his substance dependence. It was also put that he had some history of self-harm, which would make custody more onerous for him as a consequence. No assessment or diagnoses relating to the appellant’s mental health were made.
In sentencing, the Local Court referred to the early guilty plea, the nature of the offending, the appellant’s ‘bad history’ of unlawful entries and ‘dishonesty generally’, the availability of work for an able-bodied person, the prevalence of the offending and ‘the state of lawlessness’ in Alice Springs, which was said to bring shame on the community, the appellant’s age and difficult upbringing.[1]
The principles applicable to an appeal against sentence on the ground of manifest excess are clear and were conveniently described in Forrest v The Queen [2017] NTCCA 5 (at [63]-[64]) and Edmond v The Queen [2017] NTCCA 9 (at [4]). Those principles are:
(a)The sentence is not to be disturbed on appeal unless error is shown.
(b)The presumption is that there is no error.
(c)Appellate intervention is not justified simply because the sentence is markedly different from other sentences imposed in other cases.
(d)Intervention is warranted only where the difference is such that in all the circumstances the appellate court concludes there must have been some misapplication of principle, even though where and how is not apparent from the reasons.
(e)Manifest excess does not depend upon attribution of specific error. The relevant test is whether the sentence was unreasonable or plainly unjust.
(f)It must be shown that the sentence was clearly, not just arguably, excessive.
(g)There is no one single correct sentence. There can be compliance with appropriate sentencing principles notwithstanding there may be differences of judicial opinion concerning the result.
Matters to be considered in such an appeal are the maximum penalty for the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the type committed by the appellant, the standards of sentencing customarily imposed for the offence and the personal circumstances of the offender.[2]
The appellant argued that the sentence was manifestly excessive because the sentence was not proportionate to the objective gravity of the offending.
The maximum penalty for the offence was imprisonment for five years. The Local Court did not specify the amount of the discount afforded for the guilty plea, but did not say anything to suggest that anything other than the usually applied discount of 25% was applicable. On that basis, the starting point for the sentence was imprisonment for one year and four months.
As the appellant submitted, this offending was at the lowest end of the range of objective seriousness. It was committed during daylight hours, it comprised climbing a fence to access a back yard, looking into a window and trying to open the back door by the handle, no forced entry was attempted, nothing was stolen, no-one was at home at the time, the appellant was not in company, no property was damaged, no weapon or violence was threatened or inflicted on anyone, and the appellant was not intoxicated or under the influence of drugs.
The respondent referred to the appellant’s history of like offending, including the offending committed on 24 December 2021, for which he received a sentence of six months’ imprisonment. The service of that sentence (and another which was restored) ended on about 17 September 2022, only four months before the current offending. I note that the offence for which a six month sentence was imposed was for aggravated unlawful entry, not attempted aggravated unlawful entry.
In Nicholson v Andreou [2018] NTSC 40, Grant CJ observed (at [36]-[38]) as follows:
There is a wide range of sentencing outcomes for this type of offending [unlawful entry with intent to steal]. In Bara v The Queen [2016] NTCCA 5, the Court of Criminal Appeal observed that a review of comparative sentences imposed by the Supreme Court for the crime of unlawful entry not involving offensive weapons reveals that it is not unusual for the Court to adopt a starting point of imprisonment for between two and four years before any discount for an early plea of guilty.
The Court of Criminal Appeal was dealing specifically in that case with an unlawful entry which involved the circumstance of aggravation that the offence intended to be committed was the crime of stealing. As here, the appellant in that case was not charged with the further aggravating circumstance of being armed with an offensive weapon. Unlike the present case, the unlawful entry there under consideration was attended by the aggravating circumstances of entry to a dwelling house at night time.
In the matter of R v Grant Moore, Martin AJ observed that ‘the individual unlawful entries with intent to steal would attract sentences ranging from nine months to two and a half years, depending upon the circumstances of aggravation. That observation in context was directed to less serious types of unlawful entries, and was not directed to offences with a complex of aggravating circumstances. An examination of the sentences imposed by this Court bears out those observations in terms of range, if not standard. The bulk of matters involving unlawful entry in this jurisdiction involve entry to dwelling houses by relatively young offenders. Many such offenders are dealt with leniently for reason of their youth.
The application of those observations about the sentencing range for less serious types of offending committed by youths to this case must take account of the effect of s 278 of the Criminal Code (NT), which imposes a maximum penalty of half of the maximum penalty prescribed for actual achieved offences.
The respondent acknowledged that this offending was at the very lowest end of the range of seriousness for this type of offence and it was difficult to imagine offending of a lower degree of seriousness.
Assuming that the effect of s 278 is that sentences for attempt offences would be roughly half the sentences for completed offences gives a range of between four and a half months and one year and three months. This is a necessarily crude approach, but in the absence of being provided with a set of comparative sentences for attempt offences, it does give some bare indication of the likely range of sentences for attempt offences.
On that basis, the sentence imposed by the Local Court for an offence at the very lowest end of the range of seriousness of 12 months’ imprisonment appears manifestly excessive.
Even if that approach is not of significant assistance, and even bearing in mind that the maximum penalty for this offence is 5 years’ imprisonment, and taking into account the matters subjective to the appellant, particularly his age, upbringing and history of self-harm, it seems to me that a sentence of imprisonment for 12 months for an offence at the very lowest end of the range which has a maximum penalty of five years is clearly and plainly manifestly excessive, even where committed by an offender with the appellant’s criminal history.

Disposition

The appellant’s ground of appeal has been made out. The appeal is allowed. The sentence of the Local Court imposed on 27 January 2023 is set aside. I will re-sentence the appellant pursuant to s 177(2)(c) of the Local Court (Criminal Procedure) Act 1928 (NT).
In re-sentencing the appellant, I take into account the maximum penalty of five years’ imprisonment, the very low level of objective seriousness, the prevalence of such offending and the need for general deterrence, the early guilty plea which would warrant a discount of 25% on the sentence I would otherwise have imposed, the appellant’s criminal history (which is reasonably extensive) and the need for specific deterrence, the appellant’s youth (which entitles him to lenience and makes his rehabilitation the primary sentencing factor), his childhood characterised by deprivation, neglect and exposure to family violence (which mitigates his moral culpability for the offending in accordance with the principles in Bugmy v The Queen (2013) 249 CLR 571), his prospects of rehabilitation (which I assess as marginal at this stage), his history of self-harm which has made and would make custody more onerous for him than for a person without that history, the purpose of Part 3, Div 6 of the Sentencing Act 1995 (NT), which is to ensure that community disapproval of persons committing property offences is adequately reflected in the sentence imposed, because of the characterisation of this offence as an ‘aggravated property offence’ within s 78B(1) of the Sentencing Act 1995 (NT), and the requirements of s 78B(2) that, if a conviction is recorded, the Court must sentence the offender to serve a term of imprisonment which cannot be wholly suspended unless they enter into a home detention order.
I also take into account that the appellant has served three months of the sentence appealed from, and has been subject to and complied with the good behaviour bond since his release on 24 April 2023.
I convict the appellant of the offence. I re-sentence the appellant to imprisonment for five months, backdated to 25 January 2023 and suspended after 3 months, with an operational period of two months from the date of release.

-----------------------------------

[1] The transcript of the sentencing remarks contains numerous ‘inaudible’ passages, but it may be inferred that lenience was afforded because of the appellant’s age and his childhood history, given the information from the pre-sentence report that was put on the plea.

[2] Edmond v The Queen [2017] NTCCA 9 at [30] per Grant CJ and Hiley J, citing Phan v Western Australia [2014] WASCA 144 at [19] per Mazza JA (Martin CJ and Buss JA agreeing).