Ngata v The Queen
[2020] ACTCA 18
•17 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Ngata v The Queen |
Citation: | [2020] ACTCA 18 |
Hearing Date: | 11 March 2020 |
DecisionDate: | 17 April 2020 |
Before: | Burns J, Loukas-Karlsson J and Walker AJ |
Decision: | See [57] |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against sentence – charge of recklessly inflicting grievous bodily harm – whether the sentencing judge failed to take into account a psychological report in relation to the appellant’s mental health condition and his offending behaviour – whether the sentencing judge failed to take into account a report from a visa and migration advisor in relation to the prospect of the appellant being deported – whether the sentencing judge failed to consider s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT) – whether the sentencing judge failed to consider s 11 of the Human Rights Act 2004 (ACT) – whether the sentencing judge failed to give an adequate discount for the appellant’s plea of guilty – whether the sentence was manifestly excessive, unreasonable and unjust |
Legislation Cited: | Crimes Act 1900 (ACT) s 20 Crimes (Sentencing) Act 2005 (ACT) ss 10(2),33, 35(4) Human Rights Act 2004 (ACT) ss 11, 28, 30 |
Cases Cited: | Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Da-Pra v The Queen [2014] NSWCCA 211 |
Parties: | IIaisa-Taka-I-Monu Ngata (Appellant) The Queen (Respondent) |
Representation: | Counsel J Purnell SC (Appellant) J Hiscox (Respondent) |
| Solicitors Aulich Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 3 of 2020 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 30 January 2020 Case Title: R v Ngata Citation: [2020] ACTSC 9 |
THE COURT:
This is an appeal against the sentence imposed by Mossop J (the sentencing judge) on 30 January 2020 for an offence of recklessly inflicting grievous bodily harm (GBH) committed on 19 May 2019 against BL. His Honour sentenced the offender to 19 months’ imprisonment for that offence, suspended after three months upon the offender signing an undertaking to comply with good behaviour obligations for a period of 16 months, coupled with a requirement to complete 100 hours of community service. At the same time, the offender was also sentenced to a nine‑month Good Behaviour Order in respect to a count of common assault against OU. The present appeal relates only to the sentence imposed for the GBH offence.
The maximum penalty for the GBH offence contrary to s 20 of the Crimes Act 1900 (ACT) is 13 years’ imprisonment.
The facts as summarised by the sentencing judge, at [4]-[11], and to which no objection has been raised, are as follows:
At approximately 2:54 am the offender was standing at the top of the staircase in the nightclub and began to have a verbal argument with the victim of the common assault, who I will refer to as OU. Despite security staff attempting to intervene, and OU standing with his arms by his side, the offender punched OU on the right side of the face with a closed fist. This caused OU to fall onto the security staff, who moved him to the top of the staircase. OU began to walk down the stairs but then collapsed and slid halfway down, before standing up and walking down the rest of the stairs to exit the nightclub. The offender’s actions inside the Monkey Bar nightclub were caught on closed circuit television (CCTV) footage.
The offender then followed OU downstairs and out of the nightclub, as did security staff and a number of other unknown males.
As he exited the nightclub, OU was grabbed from behind by an unknown male. The victim of the offence of recklessly inflicting grievous bodily harm, who I will refer to as BL, was standing outside the entrance to the nightclub and witnessed OU being grabbed and followed by a large group of people. Fearing for OU’s safety, BL intervened by standing in between the unknown male and OU and holding his arms out whilst walking OU away.
BL walked OU to the footpath near the entrance to the nightclub. The offender then approached BL, who was still holding onto OU and had his arms outstretched in front of him in a protective manner. BL said words to the effect of “please don’t do this!”.
The offender ran towards OU and BL and punched BL with his right hand in a closed fist. This caused BL to lose consciousness, and he fell to the ground on his back. The offender then moved to OU, who was covering his head with his arms in a defensive manner. As the offender attempted to grab OU, OU was punched by an unknown male. A large disturbance ensued, with multiple unknown people fighting.
The offender was eventually held back by an unknown female and walked away with four other people. BL’s partner and other members of the public rendered assistance to BL. OU stood up and walked away.
The offender walked away down Petrie Plaza and was shortly thereafter stopped by police who had arrived at the scene of the assault.
All of the offender’s actions in the public areas of Canberra City were caught on public safety CCTV cameras, and some of the incident was also captured on a mobile phone by a concerned bystander. The video is disturbing in that it shows the ease and violence with which the offender struck BL as he rushed toward OU.
The appeal
The appellant clarified in oral submissions that the appeal relied on both alleged specific errors of law and on the grounds that the sentence was manifestly excessive, and unjust and unreasonable.
The grounds of the appeal are summarised as follows:
1.that the sentencing judge failed, either adequately or at all, to take into account the uncontested expert evidence of Dr Danielle Clout in her report dated 20 December 2019 that the appellant’s mental health condition contributed to his offending behaviour;
2.that, in the alternative, the sentencing judge failed, either adequately or at all, to take into account the uncontested expert evidence of Mr John Hourigan in his report dated 13 January 2020, in relation to the prospect of the appellant being deported from Australia if sentenced to a head sentence of imprisonment for 12 months or more; resulting in a failure to take into account the mandatory sentencing consideration in s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) (corrected from 33(1)(p) in the Notice of Appeal dated 7 February 2020) requiring the Court to take into account the probable effect of any sentence likely to be imposed on the offender’s family, and the consequent inconsistency of the sentence actually imposed with the principle in s 11 of the Human Rights Act 2004 (ACT) (the HRA) dealing with the protection of the family and children;
3.that the sentencing judge failed to give an adequate discount for the guilty plea entered by the appellant at the earliest opportunity; and
4.that the sentence imposed was manifestly excessive, unjust or unreasonable, particulars of which are those factors detailed at 1 to 3 above.
The appellant submitted that the sentencing judge’s order be quashed and set aside, and that the sentence be reduced to below 12 months’ imprisonment in total.
Both the appellant and the respondent filed applications to adduce further evidence in the proceedings. Both indicated that these applications would only be pressed if the appeal was successful, and the Court determined to re-sentence. As will be apparent from the reasons that follow, the occasion does not arise.
Appeal principles
An appeal against sentence will lie where the appellant can establish that the court below made an error of fact or law, or where the sentence was so manifestly outside the range of appropriate sentences that error can be inferred (House v The King (1936) 55 CLR 499 (House).
Grounds 1 and 2 advanced by the appellant allege, in part, a failure by the sentencing judge to take into account relevant material. Such a failure, if demonstrated, would constitute an error of law.
Manifest excess is a conclusion which does not require the identification of specific error in the reasoning of the sentencing judge: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale). A complaint that insufficient weight has been accorded to any particular sentencing consideration is, in effect, a complaint that the sentence was manifestly excessive. It is not the function of an appellate court on a sentencing appeal to try to assess the weight given to individual factors. Such an approach is inconsistent with the approach to sentencing now mandated by the High Court, namely that sentencing is the process of arriving at a single result which takes due account of all the relevant factors, namely to arrive at an “instinctive synthesis”: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [75] (see also Islam v The Queen [2017] ACTCA 10). The relevant test is whether the sentence is unreasonable or plainly unjust: House; Dinsdale; Melham v The Queen [2011] NSWCCA 121 (Melham). If a sentence is clearly too long, unjust or unreasonable, error on the part of the sentencing court may be inferred without finding any specific error of fact or law: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [61]. In making this determination, an appellate court recognises that there may be a range of judicial opinions in accordance with accepted principles and ought not to simply substitute the appeal court’s preferred outcome: Lowndes v The Queen [1999] HCA 29; 195 CLR 665.
: Appeal ground 1the learned judge failed to take into account the uncontested expert evidence of Dr Danielle Clout in her report dated 20 December 2019 that the appellant’s mental health condition contributed to his offending behaviour
In the sentencing proceedings, Dr Clout, clinical psychologist, prepared a “Psychological Treatment Report” dated 20 December 2019. Her expertise was not challenged and she was not cross-examined.
Dr Clout reported that the offender complained of symptoms consistent with a DSM-5 diagnosis of Major Depressive Disorder at the time of the offence and at the time of her assessment of him. She noted at [38] that:
Major Depressive Disorder is commonly associated with a range of impairments with respect to mental capacity and executive functioning, including decision-making, judgement, planning, memory, attention and inhibition. Due to the nature and severity of his reported symptoms, it is likely [the appellant’s] condition had a moderate impact on his mental capacity at the time of the offending, and at the time of the assessment. He acknowledged that at the time of the offence he was intoxicated, which likely exacerbated the impairment in his mental capacity.
At [39], Dr Clout stated:
At the time of the offending, [the appellant] was experiencing symptoms consistent with a DSM-5 diagnosis of Major Depressive Disorder, which is commonly associated with impairments in attention, rationality, memory, judgement, information-processing, and decision-making skills. He also identified that on the night of the offence he had been experiencing significant stress, as a result of his sister’s behaviour. It is likely his condition increased his experience of distress, reduced his coping abilities, and contributed to his use of maladaptive coping strategies (i.e. alcohol). In addition, one of the primary causes of disinhibition is being in a negative emotional state, which is one of the core symptoms of Major Depressive Disorder. The likelihood of disinhibited behaviour was further increased when he was threatened, due to the activation of the fight or flight response. [The appellant] also acknowledged that he had been drinking at the time, which would have further impaired both his mental capacity, and his emotional and behavioural regulation.
At [47], Dr Clout observed: “[a] sentence of full-time imprisonment is likely to weigh more heavily on [the appellant] due to his current family circumstances”, which she detailed.
Submissions
As Dr Clout was not required for cross-examination by the Crown, the appellant submitted that her report was unchallenged, and the sentencing judge was not at liberty to reject its conclusions. Reliance was placed upon the decision in Da-Pra v The Queen [2014] NSWCCA 211 (Da-Pra) in which the New South Wales Court of Criminal Appeal concluded at [12], “[w]here the expert opinion is not challenged and no other evidence casts doubt upon it, the trial judge should direct the jury that they should not reject it”. It was submitted that a sentencing judge was equally bound.
It was the appellant’s ultimate submission that the principles enunciated in the decision of Verdins v The Queen [2007] VSCA 102; 16 VR 269 (Verdins) were enlivened by Dr Clout’s report and that the sentencing judge failed, either adequately or at all, to take into account Dr Clout’s conclusion that the appellant’s mental health condition contributed to his offending behaviour.
The respondent pointed to the sentencing judge’s reasons and submitted that his Honour explicitly took Dr Clout’s report into account but concluded that the evidence did not establish on the balance of probabilities that the offender’s mental impairment contributed to his offending in a way which reduced his moral culpability. The respondent adverted to a conflict between the evidence given by the offender at sentence, in which he stated he drank between half to a litre of vodka every couple of months, as opposed to the history he gave to Dr Clout upon which she relied in her report. The appellant told Dr Clout that over the past three to four years he would typically drink “a few beers” around three times per year and that on the night of the incident he had drunk “more than usual” with an estimate of approximately one bottle of vodka. This, it was submitted, undermined Dr Clout’s conclusion that the offender’s excessive drinking on the night was as a result of his depressive disorder as opposed to a choice to self‑intoxicate in the context of celebrating his son’s first birthday.
Consideration
There is no dispute that the principles enunciated in Verdins are applicable to sentencing proceedings in the ACT (see Monfries v The Queen [2014] ACTCA 46; 68 MVR 385; R v So [2014] ACTSC 316). Verdins recognised that a person suffering a mental impairment is entitled to have that taken into account as a relevant sentencing consideration, even though it falls short of amounting to a defence or allowing access to specific sentencing orders relying on the presence of a mental impairment. The non‑exhaustive list of principles expressed in Verdins, at [32], state that a finding of mental impairment, whether a diagnosable mental illness or not, may be relevant in the following ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.
(Citations omitted).
This summary of the Verdins principles was cited with approval in the recent decision of R v Guode [2020] HCA 8.
These considerations will be weighed along with other applicable sentencing considerations; at times they will pull in opposite directions. For example an offender’s mental impairment may make an offender an inappropriate vehicle for general deterrence, yet the offending may be so heinous that the need for general deterrence cannot be entirely disregarded (Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465). Weighing these factors in the balance is part of the process of instinctive synthesis (Markarian v The Queen [2005] HCA 25; 228 CLR 357). It is neither possible nor desirable to attempt to strictly quantify the weight attached to the various factors.
In order to find that an offender’s moral culpability is lessened, there must be a real or causal connection between the mental impairment and the offending (Director of Public Prosecutions v O’Neill [2015] VSCA 325; 47 VR 395 (O’Neill) at [74]; Ibrahim v The Queen [2016] NSWCCA 6; R v Thorn [2016] ACTSC 217). It may be made out by evidence which establishes that the offender’s mental impairment affected his ability to appreciate the wrongfulness of his conduct, obscured his intent to commit the offence, impaired his ability to make calm and rational choices or to think clearly at the relevant time. The issue is less likely to arise where the offender is intellectually disabled as in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 (Muldrock). That is not the case here. As a mitigating factor, the causal connection for the purpose of determining reduced moral culpability must be established on the balance of probabilities (R v Olbrich [1999] HCA 54; 199 CLR 270).
It is apparent that the sentencing judge took Dr Clout’s opinions into account in sentencing the appellant. At [37] of the sentencing judge’s reasons, his Honour records Dr Clout’s opinion as to the condition the offender suffered without demur. At [38], his Honour noted that Dr Clout assessed the offender as being at a low risk of re-offending. His Honour also noted that Dr Clout was of the view that a sentence of full-time imprisonment would weigh more heavily on the offender due to the severity of his previous episode of Major Depressive Disorder and his family circumstances. At [57], the sentencing judge addresses other aspects of Dr Clout’s evidence: “I accept the evidence of Dr Clout that as a result of his previous history of depression he is at higher risk of developing a further episode of depression whilst in custody and that his current family circumstances are likely to make a sentence of imprisonment more burdensome than a person without those circumstances”. However, his Honour reflects at [60], “[u]nfortunately, the gravity of the offending is such that a period of full-time custody cannot be avoided”. The sentencing judge relied on Dr Clout’s opinion in setting a proportionately short period of full-time custody being approximately one sixth of the full period of imprisonment. This is a clear application of the principle enunciated in Verdins at [32]: “[w]here there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment”.
However, the sentencing judge took a different view with respect Dr Clout’s evidence in how it related to a causal connection between the appellant’s Major Depressive Disorder and his offending conduct. The sentencing judge was not satisfied that the evidence demonstrated a sufficient causal connection between the appellant’s offending and his underlying depression so as to reduce his moral culpability for the offence. His Honour was entitled to take this view. On any version of the events, there were multiple factors at play on the evening of the offence which fed into the commission of the offence.
The New South Wales Court of Criminal Appeal in Da-Pra observed at [12]:
Although medical evidence is not essential to prove the defence of mental illness, it is very much the practice that expert medical opinion evidence is adduced on that issue in criminal courts in New South Wales (R v Rodriguez [2010] NSWSC 198 at [45]). While juries are not bound to accept and to act upon such evidence, they are not entitled to disregard such evidence capriciously. However, it is open to a jury to reject unanimous medical evidence where other evidence casts doubt upon it. Where the expert opinion is not challenged and no other evidence casts doubt upon it, the trial judge should direct the jury that they should not reject it (Taylor v R (1978) 45 FLR 343; 22 ALR 599 at 608). However, where the factual basis for the expert opinion evidence is incomplete or unreliable, or the opinions are challenged in cross-examination, such a direction is not required (R v Shirwood (Court of Criminal Appeal (NSW), 24 July 1998, unrep)).
Senior counsel for the offender submitted that this translates to the proposition that a sentencing judge presented with unchallenged expert evidence, and no other evidence which casts doubt upon it, may not reject that evidence. Even if Da-Pra applies mutatis mutandis to a sentencing judge, a matter not fully ventilated in these proceedings, the approach taken by his Honour does not offend against the principle relied upon. The evidence to which the sentencing judge referred at [57] of his Honour’s remarks strongly suggested that the appellant’s depressive condition was not as significant in the period leading up to the offence as Dr Clout considered it to be. The sentencing judge was entitled to take that evidence into account in determining the weight to be given to Dr Clout’s opinions.
In her report, Dr Clout states that depression is “commonly associated” with various cognitive deficits. By itself, this is not particularly useful. The issue is whether the appellant’s depressive condition did in fact have an impact on his moral culpability in one of the ways outlined in the Verdins principles above at [18]. This must be established on the balance of probabilities. To say that the appellant suffered from a disorder which commonly has certain effects does not answer the relevant question.
Dr Clout’s opinion is not definitive as to the causal contribution of the offender’s depressive condition, either directly or as a proportion of other identified factors, to his offending conduct. Dr Clout observed that “it is likely [the appellant’s] condition had a moderate impact on his mental capacity at the time of the offending”. Dr Clout did not, however, specify what that impact was or how it may have led to his offending conduct. She also noted the ill-defined exacerbating effects of his emotional response to an argument with his sister and his use of alcohol.
The onus fell on the appellant to tease out the varying strands of circumstances relevant to causation in order to establish the effect of any mental condition on the appellant’s moral culpability. Dr Clout’s evidence fails to do that.
The issue of the effect of any mental impairment on the appellant’s conduct is further complicated in the sentencing judge’s assessment of the evidence available to him, which caused his Honour to have reservations about the extent of any impairment flowing from the depressive disorder. His Honour did not specifically advert to the conflicting evidence about the extent of the offender’s alcohol use, and therefore one cannot conclude that this was a basis for his Honour’s reservation about Dr Clout’s evidence. However, the offender’s apparent motivation and drive evidenced by his pursuit of competitive kickboxing during the relevant period patently was.
In Muldrock, the High Court observed, at [54], that “[a] question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence”. The sentencing judge’s finding that the causal connection between the offender’s mental health condition and his offending conduct was too remote reflects a determination as to whether there is a real connection as required in order to apply the Verdins principles: O’Neill. The fact that differing minds may assess that evidence differently is not a basis for finding error unless the conclusion arrived at by the sentencing judge is simply not open or unreasonable. That is not the case here.
Whilst not rising to the level that it necessitated a finding of reduced moral culpability, the sentencing judge did take the offender’s mental state into account as part of his Honour’s broader circumstances in assessing an appropriate penalty. As has been oft observed, including recently in Kennedy v The Queen [2020] NSWCCA 49, at [39]:
The weight to be accorded to relevant factors is a matter for the sentencing judge: R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing). It does not amount to an error in the exercise of the sentencing discretion unless the decision is manifestly unreasonable.
This ground must fail.
: Appeal Ground 2The sentencing judge failed, or failed adequately, to take into account the uncontested expert evidence of Mr John Hourigan in his report dated 13 January 2020, in relation to the prospect of the appellant being deported from Australia if sentenced to a head sentence of imprisonment for 12 months or more; resulting in a failure to take into account the mandatory sentencing consideration in s 33(1)(o) of the Sentencing Act and consequent inconsistency with the principle in s 11 of the HRA dealing with the protection of the family and children
Mr Hourigan, a visa and migration advisor, noted in his report that the offender held a class of visa that would be cancelled if he was imprisoned, as the appellant was, and may be cancelled if convicted but not imprisoned. He noted that such cancellation could be subject to Ministerial review if the person passes the character test or for some other reason. One of the grounds for failing the character test is if the person acquires a substantial criminal record. If a person is sentenced to imprisonment for a period of 12 months or more, as the appellant was, they are considered to have a “substantial criminal record”. Mr Hourigan’s report pointed to evidence that the political climate was such that an outcome favourable to the appellant was unlikely, and the offender would most likely be deported upon his release from prison.
The appellant’s wife, Ms Jade Ngata, gave evidence that she relied heavily on the assistance of the appellant for the practical care he gave in relation to their two young children, the financial assistance he provided to both their children and his two children from a previous relationship, the difficulty she would face in finding a job in New Zealand and her decision that in the event her husband was deported she would therefore remain in Australia. This had a flow on effect to her both emotionally and financially, including needing to move from their current rental accommodation to a one‑bedroom unit with her mother and two children. Ms Ngata noted the impact this would have upon the children, noting the separation would “leave a gaping hole” in the family unit.
Submissions
The appellant submitted that the sentencing judge was obliged to accept the uncontroverted expert opinion of Mr Hourigan as to the likelihood of the offender being deported if a 12 month or longer prison sentence was imposed on him. The submission went so far as to state that his Honour was obliged to take into account the political climate which was such, relying on Mr Hourigan’s report, that the prospects of the exercise of any available Ministerial discretion not to deport the offender was “fanciful”. The requirement to consider the effect of deportation arose from the operation s 33(1)(o) of the Sentencing Act which mandates that the Court have regard to the probable effect that sentence would have on the appellant’s family. Senior counsel submitted that because his Honour had not specifically referred either to s 33 or to s 33(1)(o) of the Sentencing Act, it should be assumed that his Honour had failed to have regard to the provision. Senior counsel submitted that even though the sentencing judge referred, in his Honour’s summary of the evidence, to the ways in which deportation could affect the offender’s family, his Honour had failed to analyse them. Senior counsel submitted that this failure amounted to a breach of the HRA. The appellant conceded that whilst the Court is obliged to consider the possibility of deportation, the Court may not craft a sentence designed to avoid the migration legislation, resulting in an improper sentence. Senior counsel submitted that here the sentence could have properly been reduced to below 12 months’ imprisonment.
The appellant appeared to submit that the sentencing judge applied an incorrect test in that his Honour said at [58] that deportation was not “almost certain”. Whereas the decision in Islam v The Queen [2006] ACTCA 21 (Islam), he submitted, stood for the proposition that a realistic possibility of deportation was sufficient to enliven a need to consider it as a relevant factor.
The respondent submitted that the sentencing judge had clearly considered Mr Hourigan’s report and made appropriate findings, applying the correct tests as enunciated in R v Butters [2019] ACTSC 143 (Butters), on the evidence. The respondent submitted that the appellant in fact sought to have the Court of Appeal do what the sentencing judge had properly declined to do, that is to craft a sentence designed to avoid operation of the migration legislation. It was apparent that the sentencing judge had taken into account the effect of potential deportation of the offender’s family but that he was not obliged to rehearse those considerations in detail. The respondent also submitted that deportation was not, in fact, a certainty. It was sufficient that the sentencing judge had accepted in his Honour’s reasons, at [58], that there was “[a] real prospect of deportation that goes beyond a merely speculative possibility”. It was clear from the sentencing judge’s remarks at [29] and [56] that his Honour considered the effect that this might have on the offender’s family. A shorter sentence would have been improper.
Consideration
Section 33 of the Sentencing Act provides, relevantly:
(1) In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court:
…
(o) the probable effect that any sentence or order under consideration would have on any of the offender’s family or dependants;
…
(4) The fact that any relevant factor is known to the court does not require the court to increase or reduce the severity of the sentence for the offence.
Section 11 of the HRA provides:
(1) The family is the natural and basic group unit of society and is entitled to be protected by society.
(2) Every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind.
…
The HRA does not determine sentencing criteria but establishes underlying rights and principles. So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights: s 30, HRA. These rights must give way in some circumstances to other considerations as provided for in s 28 of the HRA: “[h]uman rights may be subject only to reasonable limits set by law that can be demonstrably justified in a free and democratic society”.
The process by which legislation is to be interpreted having regard to the HRA was carefully addressed by Penfold J in Re Application for bail by Islam [2010] ACTSC 147; 4 ACTLR 235. Her Honour observed, at [2]:
(a) that s 30 of the Human Rights Act 2004 is an “ordinary” interpretation provision rather than a “special” provision or one providing for remedial interpretation…
(b) that s 30 should be applied as part of the ordinary process of statutory interpretation, in conjunction with s 139 of the Legislation Act 2001 (ACT) and any other applicable common law or statutory principles of interpretation…
(c) that the ordinary processes of statutory interpretation, including s 30, should be applied in the interpretation of a provision of ACT legislation, with the aim of finding a meaning for a provision that is both human rights-compatible and consistent with purpose, before any attempt is made under s 28 of the Human Rights Act to justify a meaning for the provision that is incompatible with human rights…
…
Section 11 must be considered alongside criminal justice principles provided for in the Sentencing Act, which specifically authorise the imposition of a term of imprisonment where no lesser sentence option is appropriate: s 10(2), Sentencing Act. No submission was made to the effect that imprisonment when imposed consistent with the principles found in the Sentencing Act, is not a demonstrably justifiable reasonable limitation on the rights of the family. The complaint of the appellant is as to how that was applied in this offender’s case. No incompatibility issue arises here.
Turning to how s 33 of the Sentencing Act is to be applied, the existence of a factor that must be considered pursuant to that provision does not necessarily translate into a sentence discount: see R v NO (No 2) [2018] ACTSC 37 at [61] per Penfold J. It certainly cannot result in a percentage or quantified discount arrived at mathematically; that would offend the instinctive synthesis principle.
It is clear from the sentencing judge’s remarks that his Honour took into account the impact on the offender’s family of the sentence to be imposed. At [58] of the sentencing judge’s remarks, his Honour said that he proceeded on the basis that it was open to him to take into account the prospect of the appellant’s deportation, and his Honour was satisfied to the requisite standard that there was a prospect of deportation.
The appellant’s submission that the sentencing judge failed to accord sufficient weight to the prospect of deportation and its likely effect on the offender’s family, involves a related submission that his Honour treated the prospect of deportation as needing to be a certainty rather than a possibility before according it sufficient weight. The appellant submitted in that regard, there was an inconsistency between the decision of the Court of Appeal in Islam and the decision of Loukas-Karlsson J in Butters, regarding the degree of certainty of deportation required to be established before the risk of deportation could be taken into account on sentencing. It is clear from his Honour’s remarks that the sentencing judge held the view that the prospect of deportation must be more than a “speculative possibility” before it could be taken into account. That is, with respect, plainly correct.
The appellant’s submission that Islam stands for the proposition that the Court is obliged to consider a realistic possibility of deportation as a relevant factor misconceives that decision. The decisions in Islam and Butters were directed to different considerations. Islam was concerned with whether the risk of deportation could be a relevant consideration in sentencing, and in particular, whether it might be relied on in sentencing to avoid the effect of the migration law. The decision in Islam was not concerned with the degree of certainty of deportation required. Butters specifically addressed the level to which the risk of deportation must rise before the Court could take it into account. In any event, the issue of the correct standard to be applied in determining whether a risk of deportation may be taken into account on sentencing is sterile in the present case, as the sentencing judge accepted that the standard was satisfied by the evidence. Furthermore, his Honour took into account the prospect that the appellant may be deported and the effect that would have on the appellant and his family.
The sentencing judge ameliorated the sentence to the degree his Honour considered available to him having regard to, amongst other things, the effect on the offender’s family. His Honour declined to reduce the sentence further in order to avoid the operation of the migration laws, as he was obliged by proper principle to do.
This ground must fail.
Appeal ground 3: That the sentencing judge failed to give an adequate discount for the guilty plea entered by the appellant at the earliest opportunity
The sentencing judge applied a 20 per cent discount on account of the guilty plea, reduced from 25 per cent, having regard to what his Honour concluded was a very strong Crown case.
Submissions
The appellant contends that a 25 per cent discount should have been applied to the sentence imposed having regard to the utilitarian value of the plea of guilty. The respondent submits that application of a discount for a plea of guilty is a discretionary matter for the sentencing judge. Section 35(4) of the Sentencing Act, which provides for consideration of the strength of the prosecution’s case was properly applied.
Consideration
Consistent with the principles enunciated in R v Nicholas; R v Palmer [2019] ACTCA 36, the sentencing judge considered the timing of plea, and its utilitarian value. His Honour also found that there was a strong prosecution case. This was specifically conceded by senior counsel for the appellant in the course of the appeal, and he referred to the video evidence of the incident. It was appropriate to determine the discount with regard to the strength of the prosecution’s case. Whilst ideally the sentencing judge would specifically refer to the application of s 35(4), (R v Williams [2018] ACTCA 4; 83 MVR 505), his Honour’s reference to the principle contained therein was explicit. Mere failure to refer to the legislative provision being applied is not indicative of a failure to have proper regard to the applicable sentencing principle.
This ground must fail.
Appeal Ground 4: The sentence imposed is manifestly excessive, unjust or unreasonable, particulars of which are failing to accord adequate weight to those factors detailed in grounds 1, 2 and 3
As already observed, in order to succeed on this ground the appellant must establish that the sentence imposed was so harsh as to enable this Court to infer that the sentencing judge had fallen into error in the application of relevant principle, even though that error was not manifest in his Honour’s sentencing remarks.
The maximum penalty for the offence of recklessly inflicting GBH is 13 years’ imprisonment, which indicates how seriously the legislature view offences of this sort. The particular offence committed by the appellant was a serious example of this type of offence. The appellant’s attack on the victim was entirely unprovoked. Indeed, the victim implored the appellant not to continue his attack on OU and with great personal courage, placed himself between the appellant and OU. It is a matter calling for greater punishment that the offender attacked the victim for the purpose of allowing himself, the appellant, to continue his unlawful attack on OU. The appellant was a trained kickboxer, and his attack on the victim resulted in life-threatening injuries. When the victim arrived at hospital after the offence, immediate airway management was required to preserve his life, and emergency surgery was required to preserve the vision in his left eye. The victim suffered a closed traumatic brain injury, multiple complex left sided facial fractures, a severe injury to his left eye, two rib fractures and a right sided haemothorax.
The sentence imposed was slightly more than 12% of the maximum provided by law for the offence. It is impossible to suggest that it was a manifestly excessive sentence, even taking into account the appellant’s subjective features. If anything, the sentence imposed, requiring only three months of full-time imprisonment, was merciful.
This ground of appeal fails.
Result
The appeal is dismissed.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Burns and Loukas-Karlsson and Acting Justice Walker. Associate: Date: 17 April 2020 |
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