O'Neill v AD - [2023] NTSC 87

CITATION:O’Neill v AD [2023] NTSC 87
PARTIES:O’NEILL, Julie Ann

v
AD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 11 of 2023 (22230455)
DELIVERED:  28 September 2023
HEARING DATE:  25 September 2023
JUDGMENT OF:  Kelly J

CATCHWORDS:
Criminal Code, s 414(1A)
Local Court (Criminal Procedure) Act 1928 (NT), s 171, s 172
Sentencing Act 1995 (NT), s 78F
Arnott v Blitner [2020] NTSC 63; Everett v The Queen [1994] HCA 49; 181 CLR 295; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; House v The King [1936] HCA 40; 55 CLR 499; Griffiths v The Queen [1977] HCA 44; 137 CLR 293; R v BJW [2000] NSWCCA 60; 112 A Crim R 1; R v EG (2022) NTCCA 10; R v Hopper; Ex parte Attorney-General (Qld) [2014] QCA 108; R v JO (2009) 24 NTLR 129; R v Mamarika [2019] NTCCA 24; R v Osenkowski (1982) 30 SASR 212; The Queen v Deacon [2019] NTCCA 22; The Queen v Pot, Wetangky and Lande (unreported Northern Territory Supreme Court, 18 January 2011); The Queen v Riley [2006] NTCCA 10; (2006) 161 A Crim R 414; R v Roe [2017] NTCCA 7; R v Simpson [2020] NTCCA 9; R v Wilson [2011] NTCCA 9; The Queen vEG [2022] NTCCA 10; Whitlock v The Queen [2018] NTCCA 7, referred to
REPRESENTATION:
Counsel:
Appellant:D Jones
Respondent:  J Henderson
Solicitors:
Appellant:Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:    C
Judgment ID Number:  Kel2307
Number of pages:  20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
O’Neill v AD [2023] NTSC 87

No. LCA 11 of 2023 (22230455)

BETWEEN:

JULIE ANN O’NEILL

Appellant

AND:

AD

Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 28 September 2023)

This is a Crown appeal against sentence.
Background
On 22 February 2023, the respondent appeared before the Darwin Local Court and entered pleas of guilty to the following charges on two separate files.
Count 1 Unlawful assault, aggravated by indecency committed on 12 September 2022
Contrary to section 188(1) and (2)(k) of the Criminal Code.
Count 2 Unlawful assault, aggravated by harm, male / female, unable to defend and indecency committed on 12 September 2022
Contrary to section 188(1) and (2)(a),(b),(d) and (k) of the Criminal Code.
On 22 March 2023 the learned sentencing judge sentenced the respondent as follows:
Count 1: Convicted and sentenced to 1 month imprisonment, suspended on the rising of the court for a period of 18 months.
Count 2: Convicted and sentenced to 1 month imprisonment, fully concurrent with count 1, suspended on the rising of the court for a period of 18 months.
The total effective sentence imposed was one month imprisonment, suspended on the rising of the court for a period of 18 months. The respondent was released on 22 March 2023.
On 13 April 2023 the appellant filed two Notices of Appeal pursuant to ss 171 and 172 of the Local Court (Criminal Procedure) Act 1928 (NT) appealing against the sentences on the grounds that both sentences are manifestly inadequate.
Facts of the offending
The victim (born 9 January 2006) is the respondent’s step-daughter. The respondent was in a relationship with the victim’s mother from 2010 until 2020 and they have one child together. Following the breakdown of the relationship between the respondent and the victim’s mother, the respondent maintained his relationship with the victim which included taking the victim to school and teaching her to drive.
At about 9pm on 12 September 2022, the victim tried to return home after curfew but found she had been locked out by her mother. The victim called the respondent, who collected her and drove her to a park. While there, the victim was upset and crying. The respondent hugged her, but the victim did not hug him back until the respondent asked her to. The victim thanked the respondent for his support, but felt that the respondent would not stop hugging her.
The respondent arranged for the victim to stay at his house that night. They arrived about 10pm and continued to talk on the couch. The respondent kept hugging the victim.
The victim went into the respondent’s room to find some of her mother’s clothes to change into. The respondent followed the victim and hugged her from behind. Still hugging the victim, the respondent started to move his hands over the victim’s body, rubbing his hands up and down her mid-section to the mid-section of her thighs.
The respondent slid his hand around to the front of the victim’s body on top of her school skirt. He pressed his hand against the victim’s vagina, and then moved around to grab her bottom.
The victim was shocked and told the respondent that she was just trying to get some clothes. The respondent continued to hug the victim from behind and pressed his penis up against her back. The victim was too shocked to tell the respondent to let her go.
The respondent, still wrapping his body around the victim kissed her on the left side of her neck. The victim again told the respondent that she was just trying to get clothes and broke away from him. She walked to the spare room.
The respondent followed the victim into the spare room, hugged her and kissed her neck. The victim again stepped out of the respondent’s hold and said she was going to bed.
The respondent said, “Don’t you want to have fun?”
The victim said, “Just go”.
The respondent left the room and the victim locked the door and started to cry.
The next morning the victim stayed locked in the room until the respondent left the residence. She made a complaint to her friend and then her mother. The police were notified.
On 16 September 2022, during a pre-text call with the victim’s mother, the respondent was asked “Why did you do that the [sic] [redacted]? Why did you try to fuck her?”
The respondent replied, “I don’t know. Me and [redacted] are always together.” He said they had “developed something” and said, “Maybe I’m lonely that’s why I did that to[redacted].”
On 29 September 2022, during a pre-text call with the victim the respondent apologised and told her “I took the thing too far, I got carried away with you.”
On 3 October 2022 the respondent participated in an interview with police where he admitted that the victim had been his step-daughter for 10 years and she calls him “Uncle”. He attempted to minimise the offending, saying he had moved his hands over her body “a bit” and that he had “tried” to press his hands to the front on her vagina. He explained he thought she had feelings for him.
The sentencing remarks
The learned sentencing judge’s reasons were brief. His Honour acknowledged that the respondent was a 37 year old male who was, at the time of the offending, considered to be a step-father to the 16 year old complainant. His Honour summarised the conduct of the offending and acknowledged the traumatising impact the offending was likely to have on the complainant.
Turning to the material tendered by the respondent in mitigation, the learned sentencing judge accepted the respondent had a mild cognitive brain injury. His Honour found the injury would have had some involvement in the offending, although not to an extent the respondent could be said to have had no will involved. The learned sentencing judge also found that the respondent had shown signs of remorse. In the circumstances, the learned sentencing judge found that, “An actual term of imprisonment is not appropriate,” and imposed the above sentences.
Principles governing Crown appeals against sentence
The principles governing Crown appeals against sentence are not in dispute.[1]
(a)Crown appeals against sentence should be a rarity brought only to establish some matter of principle.[2]
(b)Manifest inadequacy in a sentence amounts to such an error of principle which the Crown is entitled to have the appeal court correct.[3]
(c)The presumption is that there is no error in any sentence passed by the court below. It is incumbent upon the Crown to show that the sentence was clearly and obviously, and not just arguably, inadequate; that is to say, it must be shown that the sentence is so disproportionate to the seriousness of the offending as to shock the public conscience and demonstrate error in principle.[4]
(d)The principles in House v The King[5] remain applicable to the determination of manifest inadequacy:
… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[6]
(e)The principle expressed by King CJ in R v Osenkowski,[7] also remains applicable:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[8]
(f)Even where manifest inadequacy is found, this Court retains a residual discretion as to whether the respondent should be resentenced.[9]
(g)However, in exercising its discretion on an appeal against sentence with respect to an indictable offence, the Court must not take into account any element of double jeopardy when deciding whether to allow the appeal or impose another sentence.[10]
Appellant’s contentions
The appellant submits that the sentencing remarks demonstrate that the sentencing judge failed to take into account important aspects of the offending. The sentencing judge failed to mention:
(a)that the respondent had pressed his penis against the victim’s back while hugging her from behind, a matter which, the appellant contends materially increased the level of indecency involved in the offence; and
(b)that the conduct of following the victim into a room and hugging her happened twice, a factor which the appellant contends also increased the seriousness of the offending. (The victim had extracted herself from the respondent and walked away, only to be followed, hugged and kissed on the neck again. Walking away was a clear indication that the victim was not consenting to the respondent’s conduct. The appellant contends that it was an aggravating factor that the respondent persisted in those circumstances.)
The appellant submits that each of the individual sentences imposed and, as a result, the total effective sentence, was manifestly inadequate. The sentences themselves evidence error in the sentencing process.
The appellant contends that it is evident from the sentencing remarks that the sentencing judge erred in assessing the seriousness of the offending. The maximum penalty for each of the offences to which the respondent pleaded guilty is imprisonment for five years. That was the yardstick and the basis for comparison with the worst possible case. The respondent was sentenced for two offences each carrying the same maximum penalty. The total effective sentence imposed of one month imprisonment is less than 2% of the maximum available penalty for a single offence. While conceding that mathematical calculations are of limited assistance, the appellant submits that this is a clear demonstration that the respondent was sentenced toward the lowest end of the available range.
The appellant contends that this offending was not at the lowest end of the range of seriousness for offences of this nature – namely indecent assault. The appellant points to the following aggravating features of the offending.
(a)The offending involved a very serious breach of trust. The offending involved the respondent breaching his position of trust, as the victim’s step-father of 10 years. She had turned to him for assistance and a place to stay. He took advantage of her vulnerable position, alone in his house.
(b)This was a sexual offence against a child (under the age of 18), and, as such, an intrinsically serious offence. The appellant relies on the following remarks by the Court of Criminal Appeal in R v JO:[11]
Sexual assaults against children are abhorrent crimes which cause grave disquiet throughout the community. In recent years the community has come to recognise that these offences are far more prevalent than previously was thought to be the situation. The community has reached a more enlightened understanding of the nature of sexual crimes and the personal violation involved in all such crimes, including those previously regarded as relatively minor offences. The impacts of these types of crimes are now better recognised and understood, particularly the long-term effects upon victims who were children at the time of the offending.
(c)The conduct amounted to several assaults, rolled together. The respondent touched the victim with his hands and mouth, and pressed his penis against her back. The appellant contends that the conduct of pressing against her vagina (albeit on the outside of her clothes) and then grabbing her bottom was particularly serious, and that kissing her neck was also a very intimate act.
(d)The respondent must have known the victim was not consenting. He persisted in his advances despite passive resistance from the victim. She did not reciprocate his physical advances, told the respondent that she was just trying to get clothes, broke away from him and then left the room. It was not the case, as was submitted on behalf of the respondent, that the victim did not say or do anything overtly to indicate his actions were unwelcome. Quite apart from that, the fact that the victim was only 16 years old and had grown up as the respondent’s daughter would have been reason enough for the respondent to know his conduct would not be welcome. The court could not accept that he genuinely thought his feelings were reciprocated.
(e)Despite the submission by counsel for the respondent that the offending had been spur of the moment, this could not have been accepted by the sentencing judge as it was not supported by the evidence. (The sentencing judge made no finding about this submission.) While still at the park, the respondent was hugging the victim inappropriately. He then brought her back to his house and in the privacy of his home the inappropriate conduct escalated and persisted. It could not properly be described as “spur of the moment.”
The appellant also contended that the respondent’s moral culpability for the offending was high given the vulnerability of the victim.[12]
In summary, the appellant contends that this was serious offending of a sexual nature against a vulnerable young woman. The respondent had the victim alone in his house at a time when he knew she wasn’t able to go home to her mother’s and she had come to him as a parental figure, seeking help. She was so scared that she had to lock herself in the room for the night. The appellant submits that, contrary to the learned sentencing judge’s finding, an actual term of imprisonment was both appropriate and required by s 78F of the Sentencing Act 1995 (NT).
Respondent’s contentions
The respondent takes issue with the circumstances of aggravation alleged, querying why they are different on the two charges and contending that the circumstance of aggravation that the victim was unable effectually to defend herself was not made out. It is too late for the respondent to raise those matters. The respondent pleaded guilty to the charges as framed.
In response to the appellant’s submissions, the respondent contends that both offences are in the lower to mid-range of seriousness for these types of offences, a submission that was made in written submissions to the sentencing judge who advised that, having read the written submissions, he did not need to hear further from the respondent. The respondent characterises the offending as a single course of conduct that persisted over a short period of time committed without premeditation. The victim, although a child, had attained the age of consent. There were no verbal threats nor did the assault involve gratuitous physical violence. The touching occurred on top of the victim’s clothes. When the victim told the respondent “Just go”, he left, and the offending ceased.
The respondent also contends that the respondent presented a compelling subjective case in the sentence proceedings.
(a)A letter of Consultant Neurologist Stephen Tisch[13] and a report of Dr Aruna Wijayaratne for the respondent’s NDIS application[14] tendered in the sentencing proceedings, established that the respondent suffers from a permanent mild cognitive impairment and residual cognitive deficits likely resulting from a traumatic brain injury experienced during his childhood. His disability causes him to have difficulty in making and maintaining social relationships and engaging and interacting with the community and connecting with others. He also has difficulty in understanding facial expressions and non-verbal and emotional facial cues. It was submitted that the respondent is not able to read and understand social cues at the same level as a person without his disability, and this played a contributing role in his interactions with the victim. The sentencing judge found that the respondent’s enduring cognitive impairment had some involvement in the offending and afforded that material some weight.[15] Those were findings that reduced the respondent’s moral culpability.
(b)The respondent was a 37 year old man of prior good character. He had a consistent history of fulltime employment with the Northern Territory Government and had gained several nationally accredited qualifications. Leading up to the offence, he was socially isolated and cognitively and emotionally vulnerable.[16]
(c)After the offence, the respondent made full admissions to police in an electronic record of interview. He also admitted to the offending in a pre-text call. He sought help and attended the Darwin Head to Health service on 6 October 2023, where he referred himself to various therapeutic and intervention support services.[17] At the time of the sentence proceedings, he was engaging in the Mens Behaviour Change Program with CatholicCare,[18] he had attended counselling sessions with Saltbush Social Enterprises[19] and with Relationships Australia,[20] and had seen psychologist Natalie Lim.[21] He was taking medication for depression management and actively addressing his rehabilitation. He felt deeply ashamed and genuinely remorseful for the offending. He indicated his plea at an early opportunity. He wrote letters of apology to the victim and her mother which were tendered at sentence.[22] The presentence report of Probation and Parole Officer Alexander Peters found that the respondent ‘provided considerable insight into his behaviour and the impact it has had on the victim and his family unit. He appeared to understand his actions were inappropriate and denied having feelings for other females around the same age as the victim.’ The author of the report noted that ‘it is encouraging [the respondent] has been actively attempting to change his behaviour.’[23]
Consideration

The appellant contends that the sentencing judge did not take all of the facts into account in assessing the seriousness of the offending; the respondent contends otherwise, pointing to exchanges between counsel and the sentencing judge before the judge embarked on sentencing. The sentencing judge’s remarks were very brief. They set out only the sketchiest description of the facts, and made no reference to the range of sentencing principles the judge was obliged to take into account. Nevertheless, I am not prepared to conclude that his Honour failed to take into account the whole of the facts which, as the respondent pointed out, had been read in Court shortly before sentencing.
The appellant contends that a total effective sentence of one month imprisonment suspended on the rising of the court for 18 months demonstrated that the respondent was sentenced towards the lowest end of the available range, and this may be accepted. Section 78F of the Sentencing Act provides that where a court finds an offender guilty of a sexual offence, the court must record a conviction and must order that the offender serve a term of actual imprisonment which can be partly but not wholly suspended, thus ruling out the non-custodial options otherwise available as part of the sentencing range for aggravated assault. I accept that, apart from the mandatory minimum in s 78F, non-custodial sentencing options would be available for an indecent assault. I accept also that, when applying mandatory sentencing provisions, the approach that must be adopted by a sentencing court is to first determine an appropriate sentence without reference to the mandatory sentence and then, if that sentence is below the mandatory minimum, to apply the mandatory minimum.[24] Nevertheless, even adopting that approach, a sentence of imprisonment for one month suspended from the rising of the Court is towards the lowest end of the available range of sentences.
The appellant contends that this sentence was manifestly inadequate given the objective seriousness of the offending which the appellant characterised as serious offending of a sexual nature against a vulnerable young woman committed in gross breach of trust.
The respondent characterised the offending as a single course of conduct that persisted over a short period of time committed without premeditation, with no violence and which ceased when the victim said, “Stop,” and emphasised the positive subjective characteristics of the respondent. The respondent submitted that the offending was in the lower to mid-range of seriousness for these types of offences.
The appellant has not contended that this assessment of the seriousness of the offending was mistaken, and I tend to agree, though perhaps putting it closer to the mid-range than the lower end of the range.
However, even taking into account the positive subjective characteristics of the respondent, and accepting the assessment of the seriousness of the offending as in the lower to mid-range of seriousness for these types of offences, in my view a sentence of one month imprisonment suspended from the rising of the court was manifestly inadequate. It was a sentence appropriate for offending at the very lowest end of the scale of seriousness for an assault aggravated by, among other things, indecency, which this offending was not.
I consider that the sentence imposed was manifestly inadequate. An appropriate sentence, after allowing a reduction of 25% for an early plea and remorse would have been imprisonment for nine months on each of counts 1 and 2 (ie a starting point of 12 months on each count), to be served concurrently and suspended after service of something in the vicinity of one to three months.
Residual discretion
The respondent contends that, if I am satisfied that the sentence was manifestly inadequate (which I am) I should nevertheless exercise the Court’s discretion not to resentence the respondent.
There has been no delay by the Crown in prosecuting the appeal. The respondent was sentenced on 22 March 2023. The Crown filed the appeal paperwork on 13 April 2023 and the hearing was listed on 25 September 2023, being six months after his sentence in the lower court.
The respondent contends that the appellant has not satisfied the onus of showing that the residual discretion ought not be exercised submitting:
(a)that the appellant has not shown that there is a point of principle involved in the appeal; and
(b)that the respondent has made substantial efforts at rehabilitation since the sentence imposed by the learned sentencing judge.
The respondent contends that this appeal does not raise a point of principle that needs to be addressed for the guidance of sentencing courts, as opposed to the general correction of error made by a sentencing judge.[25]Sentencing principles for this kind of offending are well established and applied in practice. This sentence should simply be treated as an outlier.
I bear in mind that it is important that inadequate sentences are not permitted to stand that may undermine confidence in the administration of justice.[26] As this Court said in Mossman:[27]
The reference to a “matter of principle” must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which constitutes an error in point of principle.[28]
However, I also need to take into account the respondent’s efforts at rehabilitation since he was sentenced. In the intervening time, the respondent has been actively engaging with his supervised order within the community. He has completed the 24-week Men’s Behaviour Change Program and continues to attend other therapeutic services in the Darwin region. His NDIS application has been approved and he is currently developing his plan with his coordinator of supports. He has continued his full-time employment and has restructured his work hours to facilitate his engagement with rehabilitative services. The respondent contends that it would be unjust to now sentence the respondent to a term of imprisonment after the sentencing judge afforded him leniency and ordered his sentence be served within the community. Imprisonment at this stage may interfere with his demonstrably successful rehabilitation which, in the circumstances of this case, outweigh any desirability of correcting the sentence on appeal by imposing a relatively short period of actual custody.[29]
On the hearing of this appeal, the respondent tendered further evidence of positive efforts at rehabilitation taken by the respondent. He voluntarily re-enrolled in the Men’s Behaviour Change program for a second time and although he had to give up his place part way through the second course to accommodate a new enrolee, he then engaged in additional one to one counselling and I am told takes leave from his employment every Tuesday to report to Corrections and engage in counselling.
In light of these considerations, I intend to exercise the residual discretion to dismiss the appeal.
ORDER: The appeal is dismissed.
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[1]See Mossman at [8]-[18]. The following summary is taken verbatim from Arnott v Blitner [2020] NTSC 63 at [75] reproduced in The Queen vEG [2022] NTCCA 10 at [37]

[2] R v Roe [2017] NTCCA 7 at [11]; cf R v Wilson [2011] NTCCA 9 at [27](a); See also Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at p 310

[3]See also Everett v The Queen [1994] HCA 49; 181 CLR 295 at p 300

[4]Whitlock v The Queen [2018] NTCCA 7; See also R v Simpson [2020] NTCCA 9

[5][1936] HCA 40; 55 CLR 499

[6]Ibid at pp 504-505 per Dixon, Evatt and McTiernan JJ

[7] (1982) 30 SASR 212 (“Osenkowski”)

[8] Osenkowski at pp 212-213

[9] See also R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at [29]

[10]Criminal Code, s 414(1A); R v Wilson [2011] NTCCA 9 at [27]

[11] (2009) 24 NTLR 129 at [82]

[12] R v EG (2022) NTCCA 10 at [122]

[13] AB 28 – Letter of Stephen Tisch

[14]AB 29 – NDIS Treating Professional Information

[15] AB 18.4 – Transcript of proceedings dated 22 March 2023

[16] AB 28 – Report of Dr Tisch; AB 29 – Report of Dr Wijayaratne for the respondent’s NDIS application; AB 67 - Defence written submissions on sentence; AB 6 – Transcript of proceedings dated 22 February 2023.

[17] AB 53 – Darwin Head to Health

[18] AB 55 – Letter of Lead Practitioner Peter Toman, CatholicCare NT

[19] AB 56 – Letter of Counsellor Denise Aarons, Saltbush Social Enterprises

[20] AB 57 – Letter of Director Early Intervention Services Belinda Emmerson-Whyte, Relationships Australia

[21] AB 58 – Letter of Natalie Carlton, Darwin Psychology Services

[22] AB 26 – Respondent’s letter of apology to the victim; AB 27 – Respondent’s letter of apology to the victim’s mother.

[23] AB 63 – s103 report

[24] The Queen v Pot, Wetangky and Lande (unreported Northern Territory Supreme Court, 18 January 2011) referred to in The Queen v Deacon [2019] NTCCA 22 at p 15

[25] Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at 477; [36]

[26]Everett v The Queen [1994] HCA 49; 181 CLR 295 at p 300

[27][2017] NTCCA 6; See also The Queen v Riley [2006] NTCCA 10; (2006) 161 A Crim R 414

[28] Everett v The Queen [1994] HCA 49; 181 CLR 295 at p 300. Mossman at [8] per Grant CJ, Southwood and Hiley JJ; see also Kahu-Leedie at [61]-[63]

[29] R v Hopper; Ex parte Attorney-General (Qld) [2014] QCA 108 at [42]; R v Mamarika [2019] NTCCA 24 at [18]