Patrick v Rigby

[2018] NTSC 67

CITATION:Patrick v Rigby [2018] NTSC 67

PARTIES:PATRICK, Cheryl Natalie

v

RIGBY, Kerry Leanne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction

FILE NO:LCA 61 of 2017 (21734710)

DELIVERED:  20 September 2018

HEARING DATE:  3 April 2018

JUDGMENT OF:  BLOKLAND J

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – EXTENSION OF TIME

Whether the Court should dispense with compliance of conditions precedent to right of appeal – applicant advised in writing of right to appeal – English not best language – applicant in custody – attempts to contact lawyer to have sentence explained unsuccessful – appellant learnt about meaning of appeal in prison – application to dispense with time limit granted.

CRIMINAL LAW – APPEAL AGAINST SENTENCE

Plea of guilty entered and statement of facts tendered in Local Court – application to adduce fresh evidence – whether CCTV footage not played in Local Court put offending in less serious light than statement of facts – whether CCTV affords a ground of appeal – whether reasonable explanation for the failure to adduce evidence in Local Court – whether miscarriage of justice – application to adduce fresh evidence dismissed.

CRIMINAL LAW – APPEAL AGAINST SENTENCE

Whether sentence manifestly excessive – early plea discount of around 10 per cent – non parole period set above minimum required – appeal dismissed.

Local Court (Criminal Procedure) Act ss 171, 165, 176A

Swann v Mosel [2014] NTSC; SB v Health [2017] NTSC; Federal Commissioner of Taxation v Arnhem Air Engineering Pty Ltd (1987) 90 FLR 140; Brown v O’Neill [2017] NTSC 84; Potter v Neave (1944) SASR 19; Wilfred v Rigby [2004] NTSC 31; Wilson v Malogorski [2011] NTSC 27; Nottle v Trenerry (1993) 3 NTLR 68; Isles v Lyons [2016] NTSC 11, 36 NTLR 161; Hill v The Queen [2012] NTCCA1; Bean v Considine (1965) SASR 351; Woods v Eaton [2009] NTSC 49; Clark v Threnerry [1991] NTSC 17; Khoury v The Queen (2011) 209 A Crim R 509; Ranko Ignjatic (1993) 68 A Crim R 333; The Queen v Smith (1987) 44 SASR 587; Gheradi v Pedder [2007] WASC 242; Wilson v Berlin [2015] NTSC 52; Marshall v Court [2013] NTSC 75; Campbell v Meredith [2005] NTSC 13; Sears v McNulty (1989) 89 FLR 154; Leaney v Bell (1992) 108 FLR 360; Liddy v The Queen [2005] NTCCA; Morrow v The Queen [2013] NTCCA 7; Bara v The Queen [2016] NTCCA 5; Emitja v The Queen [2011] NTCCA 7; Albert v The Queen [2009] NTCCA l; Witham v The Queen [2018] NTCCA; Bugmy v The Queen [1990] HCA 18; 169 CLR 525; referred to.

REPRESENTATION:

Counsel:

Appellant:C Voumard

Respondent:  L Hopkinson

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  BLO1810

Number of pages:  32

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Patrickv Rigby [2018] NTSC 67

No. LCA 61 of 2017 (24734710)

BETWEEN:

CHERYL NATALIE PATRICK

Appellant

AND:

KERRY LEANNE RIGBY

Respondent

CORAM:     BLOKLAND J

REASONS FOR JUDGMENT

(Delivered 20 September 2018)

Introduction

1. This is an appeal against a sentence imposed by a Judge of the Local Court on 14 September 2017. The applicant pleaded guilty to recklessly endangering serious harm which was aggravated by the use of an offensive weapon. She was sentenced to a period of 31 months imprisonment with a non-parole period of 24 months.

2. The applicant filed a Notice of Appeal on 28 November 2017, alleging the sentence was manifestly excessive. The Notice was filed 42 days out of time. Under s 171(2) of the Local Court (Criminal Procedure) Act (“the Act”), an appeal in the ordinary course is to be instituted within 28 days of the order appealed from. An application was made for an extension of time within which to institute the appeal.

   The relevant principles

3. The applicant relies on s 165 of the Act, which permits the Court to dispense with compliance of any condition precedent to the right of appeal if, in its opinion, the applicant has done whatever is reasonably practicable to comply with the Act. Compliance with instituting an appeal within the 28-day period is a condition precedent to the right of appeal.[1] The longer the delay, the more difficult it becomes for the applicant to meet the threshold in s 165.[2] The discretion conferred to excuse compliance with conditions precedent to appeal is unfettered.[3] The party relying upon s 165 must show by evidence or admitted facts that they have done “whatever is reasonably practicable” to comply.[4]

4. The following discussion by Mayo J in Potter v Neave is often cited as authority in this jurisdiction regarding the meaning of “reasonably practicable”:[5]

   Whether everything reasonably practicable has been essayed, must be tested by the circumstances of the intending appellant and his accessibility to means for completing and lodging the initial documents. “Practicable” may possibly be paraphrased in the context of s 165, as “capable of being done or accomplished with the available resources whatever they may be”. I apprehend, it is unnecessary to show that compliance with the procedure laid down was quite impossible, but, be that so or not, it must at least be demonstrated as unreasonable to expect in the particular circumstances that exact compliance should be insisted on.

5. In some cases, “reasonably practicable” has been interpreted to include doing very little or nothing. For example, it has been suggested in the circumstances of an applicant (particularly a child) “totally ignorant” of their right to appeal, there would be nothing reasonably practicable they personally could do to institute an appeal within the requisite timeframe.[6] In Swann v Mosel, an applicant in very poor physical and emotional health with unstable living circumstances who did nothing during the appeal period was found to have satisfied the test in s 165 of the Act, as what she did was reasonably practicable for her to comply with the Act.[7]

6. Both parties referred to SB v Heath,[8] which raised similar questions to this matter. In that case, the applicant had frequent engagement with the criminal justice system. Mildren AJ found, however, there was nothing before him to indicate the applicant had ever exercised his right of appeal previously. Further, the applicant was a 15-year-old Aboriginal youth who had been raised by his stepmother in Harts Range and grandmother in Alice Springs. Little was known about his educational history, except that he had attended a particular school. He had written a comprehensible yet unsophisticated letter to the Court with many grammatical and spelling errors, but his affidavit had been translated from Eastern Arrernte. In all of the circumstances, Mildren AJ found it unlikely that the applicant would have known of his appeal rights.[9] However, SB’s counsel did not inform him of his right to appeal, as it was likely his counsel did not have concerns about the sentence, which largely accorded with SB’s wishes to be released to the Bushmob program. SB himself did not appear to have been dissatisfied with his sentence. He also absconded from Bushmob, thereby depriving himself of the opportunity to receive advice and give instructions regarding appealing.[10] It was found there were four opportunities in which SB had spoken with his lawyers within the 28-day appeal period, and at no point during these interactions were concerns raised about his sentence by either himself or his lawyers. It was only well after the expiration of the time limit that one of his counsel told him she wanted to appeal, and obtained his instructions to do so. His Honour inferred the decision to appeal was generated because SB was facing further charges, not because of any actual dissatisfaction with the sentences.[11] It was said that generally where a lay appellant is in custody and instructs their solicitor to lodge an appeal on their behalf within the period, and the failure to do so is the fault of the solicitor, this is sufficient to prove that an appellant has done whatever was reasonably practicable to comply with the Act.[12] Once this is proved, the Court’s discretion to excuse non-compliance is enlivened, and as a general rule, the discretion will usually be exercised favourably if the delay is not too long, and if the grounds of appeal are reasonably arguable.[13]

   Consideration of the applicant’s evidence

7. The primary thrust of the submissions put on the applicant’s behalf were to the effect that she did not know what an appeal was, the appeal process was not explained to her, she attempted to discuss the sentence with her lawyer and wanted to institute an appeal once she learnt what an appeal was.

8. Three affidavits were read. The applicant’s affidavit dated 29 March 2018 states that she completed year 10 at Lajamanu and that Warlpiri is her best language. Some of the time she studied in English and other times in Warlpiri. She sometimes reads the easy words in the NT News and looks at the pictures. She does not read books in English or letters she receives from Centrelink. She was represented by Mr Matthew Hubber at her sentencing proceedings and did not have the assistance of an interpreter in Court, as Mr Hubber said she did not need one. He advised her to plead guilty as there was footage of the offending, but she did not see the footage. She did not see Mr Hubber after her sentencing, and no-one explained the sentence to her. She received a letter from Mr Hubber whilst she was in prison which included something about appealing. She did not know what an appeal was until she heard some women talking about it in the prison who explained it to her. Despite having been to Court in Lajamanu and Katherine previously, no-one had told her what an appeal was. She called the NT Legal Aid Commission (“Legal Aid”) who advised her the appeal was out of time. A lawyer helped her complete a Legal Aid application on 2 November 2017. She spoke to Ambrith[14] over the phone. She signed some papers for the appeal.

9. Secondly, the affidavit of Mr Matthew Hubber dated 28 March 2018 confirms he advised the applicant to plead guilty as the CCTV footage clearly identified her, and that she did not see the footage. He did not ask for the CCTV footage to be played during the sentencing proceedings as he believed it would not have assisted the applicant. He was grateful the prosecution did not play the footage. His usual practice is to see clients immediately after their sentence to explain it to them, and he would have done so with the applicant although he does not have a specific memory of doing so. The letter he provided to the applicant, dated 14 September 2017 (the date of the sentence), is annexed to his affidavit. Relevantly, it included the following:

   Given the maximum for the offence is 10 years, I am confident that there is no merit in an appeal. The assault was in company and your co-offender stabbed the victim in the head multiple times causing injury. There was no mitigation apart from an early plea.

   As stated, in my professional opinion there is no merit in an appeal however, if you do wish to appeal, you must do so within 28 days of 14 September 2017. You will need to contact NT Legal Aid on 08 8999 3000 and speak to a lawyer.

10. Thirdly, the affidavit of Mr Abayasekara dated 29 March 2018 states the applicant was seen at the Darwin Correctional Centre by the Legal Aid prison duty solicitor, Ms Melissa Chen. There is no record of how that appointment was initiated, but the usual course is that the prisoner contacts Legal Aid and a visit is organised within 3-9 days (though it may have been outside that period). The duty solicitor attends the prison each Thursday. On Thursday, 2 November 2017, Ms Chen recorded the applicant’s instructions that she wished to apply for a grant of legal aid for an appeal. Ms Chen filled out an application form for the applicant. On 7 November 2018 the applicant was granted legal aid to look into the merits of an appeal. After requesting all the relevant material in the applicant’s matter, Mr Abayasekara received the material either on 10 November 2017 or early in the week commencing 13 November 2017. This did not include the CCTV footage that had been provided to Mr Hubber. On 16 November 2017 the applicant called Legal Aid from the prison to discuss her appeal and spoke with Mr Abayasekara. The applicant had to end the call abruptly, so called back on 20 November 2017. Mr Abayasekara again spoke with the applicant and she confirmed she wished to appeal her sentence. On 23 November 2017, Ms Catherine Voumard of Legal Aid, the applicant’s counsel in the appeal hearing, met with the applicant at the prison when she signed the Notice of Appeal. The Notice of Appeal was filed in the Local Court on 24 November 2017.

11. During the hearing before this Court, the applicant was required for cross-examination, and gave evidence in relation to the application for leave to appeal out of time with the assistance of a Warlpiri interpreter. In her evidence-in-chief, she said that when she heard the women in prison speaking about appeals, they did not mention a time limit for appealing. She said at one point she found out 10 months ago[15] from some women speaking about appeals in prison. They said there was a 28-day time limit to appeal. One day after she heard the women talking about appeals, she decided she wanted to appeal and called her lawyer that same day. She spoke with Mr Abayasekara who told her the appeal was overdue. She had an interpreter assisting her to make her affidavit in prison but had not had the benefit of an interpreter prior to that time. Warlpiri is her best language and having an interpreter helps her.

12. In cross-examination, the applicant was shown the letter Mr Hubber had sent to her after sentence. She only read it a little bit, the easy words, and asked some of her white friends in prison to help her read the whole letter a couple of weeks after court. She did not understand every word in the letter. She was going to call her lawyer after receiving the letter but did not, despite seeing a lot of phone numbers on the letter for lawyers, Legal Aid and the prison.[16] She did attempt to call Mr Hubber a couple of days after her sentence, but he was busy all the time. Every time she called him he was not there. She left a message for him to call her. She was calling about her sentence, not about appealing, because she did not know anything about appealing, and had never heard about appealing until she heard the women in prison talking about it.

13. The applicant was taken to her criminal history which was before the Court. The previous offences span the timeframe of 2004 to 2017, and involve 19 separate Court attendances. All previous Court matters were dealt with in the Katherine or Lajamanu Court’s. Counsel for the respondent asked her a set of questions in relation to each of the 15 times she was sentenced (there were four instances of a standalone breach of bail that the applicant was not asked about). A representative example of this set of questions and answers is as follows:

    On … 28 March 2013, do you accept that you went to Katherine Court of Summary Jurisdiction and were sentenced for driving while disqualified, high range drink driving and a breach of bail?---Yes.

    Were you represented by a lawyer?---Yeah.

    Did you have an interpreter?---Nope.

    Did the lawyer advise you after you got that sentence of your right to appeal?---No.

    Did you receive a letter from your lawyer after you got that sentence?---Yeah.

    In that letter did the lawyer explain your right to appeal?---No.

14. The answers to these questions were identical for each sentence on the applicant’s record. In my view, the evidence elicited by this series of questioning was not reliable. The dates of the sentences the applicant was asked about ranged from 2004 to 2017. She was not asked where she received the letters, which community she was in, or whether she was in jail when she received each letter. It is highly improbable she could remember with certainty or clarity the answers to those questions relating back to her early offending in 2004 and soon after, or that she could recall every instance of sentencing with precision. In my view, the applicant was cross-examined in a manner which elicited answers somewhat indicative of gratuitous concurrence, or simply giving an impulsive answer in an effort to give some response to the questioner. Those parts of her evidence are not reliable.[17]

15. Following that part of the cross-examination, the applicant was taken to a witness statement she made to police in 2015 in relation to an assault against her cousin. The applicant had signed it and circled a line declaring, “I have read this statement before signing it”. Without more information, little of relevance could be drawn from the fact she had previously signed a standard clause of a police statement.

16. Counsel for the respondent questioned the applicant further about the letter she received from Mr Hubber. She was again asked about the help she received from the women in the prison and she repeated that she “only understood a little bit of it”, but that she did not ask questions about the things she did not understand. She said she had a good relationship with her prison support officer but did not ask for her help to read the letter. She just threw the letter in her cupboard and left it there. She tried to call and speak to Mr Hubber about the sentence, not an appeal, but it did not happen. When the letter was read to her, she heard the word “appeal” but did not know what it meant. She did not ask the women helping her or the prison support officer to explain what an appeal was, nor did she call Mr Hubber or Legal Aid to explain an appeal to her.

17. In re-examination, it was established that the applicant had never instituted an appeal before from any of the matters she was sentenced in either Katherine or Lajamanu (which are the only places she has ever been sentenced, apart from two instances of breach of bail in Darwin in 2014 and 2017).[18]

18. Counsel for the applicant submitted that although the applicant had been before the Courts many times, the applicant’s best language was Warlpiri. She contended it was well known by the Courts that some people in the Northern Territory may have a working knowledge of English but have difficulty with legal or medical words. The applicant may have been able to tell police a story about what occurred to her cousin but could still have issues understanding legal language.[19] It should be concluded the evidence was that she did not understand what an appeal was until the women in the prison discussed it. It was argued she did all that was necessary by attempting to contact her lawyer about her sentence a few days after she was sentenced, and then when she understood what “appeal” meant, she contacted Legal Aid and commenced the process for instituting an appeal.

19. Counsel for the respondent argued that the applicant was advised of her appeal rights in the letter from Mr Hubber after the sentence. It was submitted that after having the letter read to her but failing to understand the word “appeal”, the applicant could have contacted her lawyer or Legal Aid to find out what it meant. She could have asked the person who read her the letter, her prison support officer, a community legal centre, or anyone else to explain what “appeal” meant. There were reasonable steps the applicant could have taken but did not take after being advised of the concept of an appeal.

20. The respondent submitted that the fact that English was not the applicant’s best language is not relevant, as the same situation could arise for anyone regardless of their best language, as “appeal” is legalese. It was argued the applicant should have endeavoured to find out what the relevant parts of the letter meant. It was argued the applicant had been before the Courts numerous times, never with an interpreter, and had exercised her right to silence when given the opportunity to undertake an electronic record of interview. Therefore, she has sufficient English language ability to be expected to ask for clarification if she did not understand the letter, contrasted with someone with no English language skills at all. The difficulties she faced were not unusual or particular to an Indigenous person from a community.

1. In my view, the applicant did all that was reasonably practicable for her to comply with the Act in her particular circumstances. The relevant period in which the reasonably practicable actions must occur to enliven the discretion in s 165 is within the 28-day appeal period.[20] The applicant’s unchallenged evidence was that she attempted to call Mr Hubber a couple of days after the sentence, which would have been well within the appeal timeframe. The exact number of times she called him was unclear, but she called him multiple times. She could not make contact with him as he was busy on every occasion she called. She left a message for him to return her call. She did not call the other phone number for Legal Aid on the letter, nor did she ask anyone else what “appeal” meant. However, what is reasonably practicable must be tested by circumstances of the intending appellant and their accessibility to means for completing and lodging the initial documents.[21] Compliance with the Act need not be demonstrably impossible, it must merely be shown that it would be unreasonable in the particular circumstances to insist upon exact compliance.[22] While it is true she was attempting to contact Mr Hubber about her sentence, not to enquire about or give instructions regarding appealing, in order for someone to instruct their lawyer to appeal, they would first need to understand and appreciate the sentence itself. The applicant was incarcerated, with limited access to a telephone, legal services and other support services. English is not her best language. There was little evidence before the Court regarding her educational background but she did not appear to be well educated. She had been technically advised of her right of appeal in writing, but was not advised of the substance of appeal rights in a meaningful manner. Nonetheless, she made multiple attempts to contact her legal adviser, and had she been successful, it is conceivable she would have attempted to institute an appeal, once genuinely understanding the process despite the fact Mr Hubber did not see merit in an appeal.[23] In those circumstances, in my view, it would be unreasonable to insist on exact compliance, and the discretion conferred by s 165 of the Act should be exercised favourably to the applicant.

2. The merits of the appeal are to be considered when determining whether to grant an extension of time within which to lodge the appeal.[24] Ultimately as will be seen, the appeal is to be dismissed, however a number of issues raised were eminently arguable, particularly on the questions of whether to admit fresh evidence and the setting of the minimum term. There is sufficient merit to permit the appeal to be heard, although ultimately the appeal will not be successful.

3. The application to extend time is granted. The applicant will be referred to as “the appellant” for the balance of these reasons.

   Application to adduce evidence under s 176A of the Act

4. An agreed statement of facts was presented in the Local Court proceedings outlining the facts of the offending. CCTV footage of the offending which was available at the time of the proceedings was not played. The principal basis of the sentence appeal was that reducing the offending to the statement of agreed facts wrongly inflated the actual criminality of the appellant, resulting in the sentencing judge proceeding upon an erroneous view of the factual circumstances, leading to a manifestly excessive sentence. It was argued that adducing the CCTV footage would have cured this error. The appellant made an application to do so pursuant to s 176A of the Act, which provides:

   (1)Where evidence is tendered to the Supreme Court, that Court shall, unless it is satisfied that the evidence, if received, would not afford a ground for allowing the appeal, admit that evidence if:

   (a)   it appears to it that that evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

   (b)   it is satisfied that that evidence was not adduced in those proceedings and there is a reasonable explanation for the failure to adduce it; and

   (c)   it is satisfied that the appellant has complied with the requirements of subsections (2) and (3) in respect of that evidence.

   (2)An appellant shall not, under subsection (1), tender evidence to the Supreme Court unless [they have], not less than 7 days before the hearing of the appeal to which the evidence relates is commenced by that Court, given, subject to subsection (3), written notice to the other party to the proceedings of the evidence to be so tendered including, where such evidence is to be given by a person, irrespective of whether it is to be given orally or by affidavit, the name, address and occupation of the person.

   (3)[This subsection relates to methods of effecting service of the notice under subsection (2)].

5. The principles grounding the adducing of new evidence are as follows. Situations which fall within the definition of a “reasonable explanation” should be interpreted widely, and the principal consideration must always be fairness to the appellant.[25] As a general rule, an accused person is bound by the way in which their matter was conducted on their behalf, including in sentencing proceedings.[26] However, as held in Ranko Ignjatic[27] the operative question is whether a miscarriage of justice has occurred; if so, an appellate court will interfere.[28] There is no miscarriage of justice unless it can be shown there was at least a substantial chance the appellant would have succeeded in relation to those issues.[29] It is for the appellant to persuade the Court that a miscarriage of justice transpired.[30]

6. In R v Smith,[31] it was said the proper purpose of fresh evidence on an appeal against sentence is to bring before the Court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge, or to explain facts which were before the sentencing judge so as to put them in a new light. In Gherardi v Pedder,[32] there was an application to adduce fresh evidence of photographs of the graffiti the appellant was being sentenced for, which were not available at the time of sentencing. The photographs put the scale of the graffiti into perspective as they showed the relatively small size of the marking on a wall already covered substantially by other graffiti. The photographs were admitted on appeal as they could be “characterised as seeking to clarify the plea in mitigation that the appellant sought to place before the court”.[33] The considerations leading to the admission of the evidence included the nature of the offence, the magnitude of the penalties and the scale of the fresh evidence to be adduced (in comparison to and relative to the other evidence before the Court).[34]

7. If the application to adduce the evidence is allowed, the Court may engage in a de novo re-hearing and exercise original jurisdiction, receiving any additional evidence even if inadmissible under s 176A.[35]

8. It was not in contest that the requirement for notice was met, nor that the evidence is likely to be credible and would have been admissible in the sentencing proceedings.[36] The only issues between the parties were whether there was a reasonable explanation for the failure to adduce the evidence at the first instance, and whether the footage would afford a ground for allowing the appeal.

   Reasonable explanation for the failure to adduce the evidence

9. A summary of the agreed written statement of facts is as follows. At approximately 8:00pm on 21 July 2017, the appellant, the co-offender, Sonya Johnson, and the victim, Tara Barnes, were involved in a physical altercation at One Mile Dam. Police arrested the victim and issued the co-offender a summary infringement notice. When the victim was released from the Darwin watch house soon after midnight on 22 July 2017, she went to the Smith Street Mall and sat with a number of people. At approximately 12:35am, she was approached by the appellant and co-offender who were still angry about the earlier altercation. The co-offender walked up to the victim and “proceeded to stab her once to the head with a pointed wooden stick approximately 12 centimetres long”. One person sitting with the victim, Simon Harvey, stood between the co-offender and the appellant,[37] allowing the victim to walk away. As she did so, the appellant ran to her and punched her once to the head from behind. The victim fell, and the appellant “proceeded to kick her once to the head”. The co-offender then stood over the victim and “proceeded to stab her 6 times to the head with the stick in a violent overhand type motion before dragging her along the ground by her hair and stabbing her a further 6 times to her head.” While the victim was being dragged by the co-offender, the appellant “proceeded [to] kick the victim to the head a further time and motioned for the co-offender to continue to stabbing [sic] her.” The co-offender, who still had hold of the victim’s hair, “stabbed her twice more to the head” before letting go as she saw a police caged vehicle. The appellant and co-offender were arrested. The victim suffered a number of lacerations to her scalp, requiring treatment at the hospital.

10. Both counsel agreed that I would need to view the CCTV footage to determine whether the application to adduce the evidence should be allowed. The CCTV footage depicts a group of people sitting in the Smith Street Mall with the victim among them. The co-offender is seen walking towards the victim and strikes once downward with the stick onto her head. Simon Harvey, who was until then sitting with the victim, stands up and places himself between the co-offender and the victim, and attempts to prevent the co-offender from further attacking the victim. As the victim attempts to walk away while Mr Harvey stops the co-offender from getting to the victim, the appellant is seen running up to the victim from the side, and jumping on her, causing the victim to fall to the ground. The appellant kicks the victim once to the head with apparent moderate force and the co-offender then stabs the victim four times to the head with the stick while the victim curls up on the ground, attempting to protect herself. The appellant then kicks the victim again with moderate force to the head. The co-offender then takes hold of the victim’s hair while the victim is still on the ground, pulls her 180 degrees around by her hair, and stabs downwards on her head another five times. The co-offender falls down next to the victim, still holding her hair, and it is unclear in the footage whether she stabs the victim once more or not. The co-offender gets up, and the appellant takes hold of the co-offender’s arm and pulls her away from the victim, which concludes the relevant section of the footage.

11. Counsel for the respondent submitted there was no reasonable explanation for the failure to adduce the CCTV footage at the sentencing hearing. She argued that counsel appearing for the appellant in the sentencing proceedings had viewed the footage, the facts were agreed, and the matter had resolved to a plea on the basis of the agreed facts.[38] It was a purely forensic decision on the part of defence counsel not to play the footage, a submission which finds support in Mr Hubber’s affidavit evidence at [9] above, stating he believed it would not have assisted the appellant, and was grateful the prosecution did not play the footage. It was not a misunderstanding that caused the footage not to be adduced at the first instance, but a deliberate decision by then counsel for the appellant. This is to be distinguished from the facts in Campbell v Meredith[39] in which counsel misunderstood a Magistrate to have accepted a proposition and therefore did not lead evidence about it, whereas the proposition had not been accepted. In that case it was said “[i]n a serious matter involving the appellant’s liberty, the appellant should not be unfairly disadvantaged as a consequence of such a misunderstanding”.[40] The misunderstanding on the part of counsel was sufficient to form a reasonable explanation for the failure to adduce the evidence.[41] On behalf of the appellant it was submitted that her former counsel presumably believed the agreed statement of facts accurately reflected the circumstances surrounding the offending.[42]

    Miscarriage of justice

12. The question regarding whether there was a reasonable explanation must also be considered in light of whether a miscarriage of justice has occurred sufficient to excuse the appellant from the usual constraints of being bound by her counsel’s conduct of her matters. Counsel for the appellant submitted this was the case, and that the sentencing judge misunderstood the objective seriousness of the offending, leading to a miscarriage of justice. This approach is supported by Khoury v The Queen,[43] in which Simpson J stated “[i]t appears that the justification for [the admission of new evidence] is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances.”[44] It was submitted the footage should be admitted to “explain facts which were before the sentencing judge so as to put them in a new light”.[45] Words used in the statement of facts such as “stab” and “kick” conjure particular images, and the footage explains those words in a way that could not otherwise be fully understood.

13. The respondent submitted there was no miscarriage of justice. The illustration of the offending provided by the CCTV footage does not paint the incident in a better light than the statement of agreed facts. She suggested a different view may be taken if the statement of facts included, for instance, many more stabs than the footage depicted but that this was not the case.

14. Upon close inspection, the statement of facts and CCTV footage do differ slightly in what they describe and portray respectively. The second time the co-offender stabs the victim, the facts state she stabbed her six times, whereas the footage shows only four stabs. Directly after this, the footage also depicts the appellant kicking the victim with moderate force to the head a second time, which is not detailed in the written facts. Finally, the third time the co-offender stabs the victim, the facts state she stabbed her six times, whereas the footage is unclear on whether it was either five or six stabs. However, the issues in this appeal are little affected by these minor disparities.

15. In the course of the sentencing judge’s remarks, his Honour said the following inter alia about the offending. It was unusual that the matter had proceeded in the Local Court, but his Honour was satisfied it was appropriate to continue to deal with it.[46] The agreed facts illustrated “extremely serious disregard for the wellbeing – and even the life of the victim. The victim was repeatedly stabbed in the head [with] a piece of wood.” The victim’s skull was not penetrated but she suffered multiple lacerations on the scalp. She sustained “significant harm”.

16. Counsel for the appellant contended that the learned sentencing judge assessed the conduct to be more serious than it was in reality. She emphasised that his Honour thought it unusual that the matter commenced in the Local Court, but it was submitted that the assault, though nasty, fell squarely within the range of offending which is regularly dealt with in the Local Court. It was not a life-threatening assault, though the comments made by his Honour showed he understood it as life threatening. The size of the stick (which was, the Court was told, small enough to fit within the size of the palm) and the use of the word “stab” repeatedly in the statement of facts[47] is at odds with and more grave than what the footage reveals. The photograph of the stick depicted in exhibit P2 in the Local Court proceedings shows a moderately thick stick with a frayed end. No measurement is indicated in the image. The stick was not of a kind that would enable it to “stab” so that it could penetrate the skin. Lastly, it was suggested the word “kick” connotes a deliberate, reasonably forceful action, whereas the footage depicts the appellant making a dismissive action with her foot towards the victim.

17. Counsel for the respondent submitted the sentencing judge indicated in his remarks that he was aware the charge was one of recklessly endangering serious harm, not of life. Further, it was argued the offending was serious and did demonstrate disregard for the victim’s wellbeing and life, given she was stabbed in the head with wood. As the photographs illustrate, the victim’s head was bleeding, and the stick had a pointed end. The victim was unable to defend herself effectively, and the appellant and co-offender were acting together in revenge. No remorse was shown.

18. In my view, it has not been demonstrated that a miscarriage of justice occurred by virtue of any misunderstanding on the part of the sentencing judge as to the gravity of the offending. The footage does not present the offending in a significantly better or worse light than the statement of facts. The discrepancies between the statement of facts and footage are very minor. The appellant is seen to kick the victim’s head with moderate force; the description by counsel for the appellant that it was a “dismissive action” is not in my view, accurate. The appellant can be seen running up to the victim and jumping on her and causing her to fall to the ground. She and the co-offender acted together to attack her. Stabbing a person to the head can and does show a lack of regard for their life, even if the injuries themselves are not life-threatening.

19. Under s 176A(1) of the Act, if the conditions in ss 176A(1)(a)-(c) are met, I must admit the evidence unless satisfied that the evidence, if received, would not afford a ground for allowing the appeal. The threshold is not high; the evidence must merely weigh in the balance in favour of affording a ground for allowing the appeal.[48] I am not so satisfied. Further, I am not satisfied a reasonable explanation for the failure to adduce the evidence has been made out. The application to admit the footage under s 176A of the Act is refused.

    Other bases for the complaint of manifest excess of the sentence

20. The principles in relation to sentence appeals are well known and are summarised in both Bara v The Queen[49] and Emitja v The Queen[50] in the following terms:

    It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown.  The presumption is that there is no error.  An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive.  It 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.  In relying upon this ground it is incumbent on the appellant to show that the sentence was not just excessive but manifestly so.  He must show that the sentence was clearly and obviously, and not just arguably, excessive.

21. At the hearing of the appeal, counsel for the appellant raised two subsidiary issues as part of the manifestly excessive ground: first, a discount of only 10 percent was given for a plea of guilty that was entered six weeks prior to the contested hearing date, and secondly, his Honour set a non-parole period significantly greater than the minimum 50 percent, in the order of approximately 77 percent.

22. One further matter related to the facts submitted in support of this ground is that the agreed statement of facts did not include the fact the appellant was the person who ultimately pulled the co-offender away from the victim. While that is so, it is unclear whether the appellant did so due to the arrival of police vehicles, or from her own motivation. This is of no consequence to the determination of the appeal. It cannot in any event be determined to a satisfactory conclusion. I am not prepared to make the finding suggested.

1. The learned sentencing judge determined that the starting point for the sentence was 36 months imprisonment, and the early plea, though not at the earliest opportunity, merited a discount of slightly over 10 percent, to 31 months.[51] There was no remorse shown.

2. Although clearly decisions relating to both the value of the reduction for the plea and the non-parole period fall within the discretion of the sentencing judge,[52] each discretion must be exercised judicially according to established principles.

3. The respondent provided further authorities in response to these issues during the course of the hearing. In JKL v The Queen,[53] a youth was sentenced to 2 years and 6 months with a non-parole period of 1 year and 3 months (or 50 percent) for the aggravated robbery of a motor vehicle while being armed with a knife. Two elements of the appeal in that matter were that adequate weight was not given to the plea of guilty and that a lower non-parole period should have been imposed. Like the appellant in the present matter, JKL also had a lengthy criminal history comprised of offending similar to the offence which was the subject of the appeal. His life had been “very unfortunate”, and marred by parental neglect, abuse and substance abuse. No remorse was found in that matter. The risk of recidivism was high. It was said that “[i]n the Northern Territory a reduction of 25 percent will normally be given in circumstances where there has been an early guilty plea which is indicative of true remorse and resipiscence”.[54] In those circumstances, a reduction of 10 to 15 percent for the plea of guilty was accepted as within range.[55] Each case must however be individually assessed.

4. The plea here was entered around six weeks before the contested hearing was to take place. It had substantial utilitarian value, however the processes required for the hearing to take place are likely to have commenced. The sentencing judge was well placed to make this assessment. While the adjustment was low in percentage terms, it did not lead to a head sentence that was manifestly excessive in all of the circumstances.

5. The further features his Honour referred to were that the appellant’s prospects of rehabilitation were low. There was no mitigation available for remorse, character or rehabilitation prospects. The appellant had a “shocking history”, with 11 prior convictions for assaults between 2004 and 2017. Six of those assaults also involved the use of weapons. She has had 12 breaches of good behaviour bonds and suspended sentences. As above, the appellant was convicted and sentenced to 31 months’ imprisonment with a 2 year non-parole period.[56]

6. In relation to the non-parole period, there is no prima facie entitlement to the statutory minimum of a non-parole period which is 50 percent of the head sentence.[57]

7. Although the non-parole period does initially strike as lengthy, once all of the circumstances are properly understood, in my view, it cannot be said to be manifestly excessive. There was limited material before the Court dealing with the appellant’s antecedents and personal circumstances. It is not for this Court to substitute its own view, or an alternative view unless the sentence is clearly excessive.

8. The sentencing judge was told the appellant was 32, almost 33 years old. She was born in Katherine but grew up in Lajamanu where most of her family are from. Her family, including her husband live in Lajamanu. She has five children, ranging from 18 years to 15 years.[58] It is noteworthy that it was not made clear whether she was the carer of her children at the time of the offending or the plea. Aside from previous work through a regional employment programme, she had not worked in recent times. The Court was given no further details of her work or social history. She regularly travels to Katherine and Darwin for shopping for her children. Despite her many previous assault convictions, the Court was told she has insight into her criminal offending and that it relates to her alcohol consumption. All of her offending was alcohol related. She wanted to return to Lajamanu where the sentencing judge was told she does not drink. She had been in custody since her arrest and had time to think. In my view it is clear the appellant suffers significant social disadvantages, but there was very little material before the Local Court about her circumstances. Although the appellant had a significant record of prior offending, all matters had been dealt with by either very short sentences of imprisonment or, in earlier times, non-custodial dispositions. She had not previously been placed on a Parole Order. Nevertheless the appellant’s extensive record for violent offending would be expected to influence the length of the minimum term. Although it is true that after some period there may be improved prospects of rehabilitation, there was nothing to suggest such an improvement was in sight.

9. In Bugmy v The Queen[59] it was confirmed that the non-parole period is the minimum term before the expiration of which “release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify.”[60] The intention of the legislature in providing for the fixing of a minimum term is to provide for mitigation of the punishment in favour of an offender’s rehabilitation, through conditional freedom, once the prisoner has served the minimum time determined having regard to all the circumstances of the offence.[61]

10. Although I have given this aspect of the appeal serious consideration, given the gravity of the offending, the lack of any realistic prospects of rehabilitation, the scarcity of material about the appellant before the Local Court coupled with the persistent history of violence, albeit at a lower level than this offending, the ground of manifestly excessive is not made out. This sentence, including the non-parole period is stern but justifiable.

    Orders

11. Compliance with s 165 of the Local Court (Criminal Procedure) Act is dispensed with to permit the filing of the Notice on Appeal on 28 November 2017.

12. The application to admit fresh evidence under s 176A of the Local Court (Criminal Procedure) Act is dismissed.

13. The appeal is dismissed.

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

[1]Swann v Mosel [2014] NTSC 43 at [3]; SB v Heath [2017] NTSC 13 at [10], citing Federal Commissioner of Taxation v Arnhem Air Engineering Pty Ltd (1987) 90 FLR 140 at 142; Brown v O’Neill [2017] NTSC 84 at [4].

[2]    Green v The Queen (198801989) 95 FLR 301 at 312.

[3]    Swann v Mosel [2014] NTSC 43 at [22].

[4]    Potter v Neave (1944) SASR 19 at 21 per Mayo J; Federal Commissioner of Taxation v

Arnhem Aircraft Engineering Pty Ltd (1987) 90 FLR 140; Brown v O’Neill [2017] NTSC 84 at [6].

[5]    Potter v Neave (1944) SASR 19 at 21.

[6]    SB v Heath [2017] NTSC 13 at [22].

[7]    Swann v Mosel [2014] NTSC 43 at [20].

[8] [2017] NTSC 13.

[9]SB v Heath [2017] NTSC 13 at [14]-[15].

[10]     SB v Heath [2017] NTSC 13 at [22].

[11]     SB v Heath [2017] NTSC 13 at [22].

[12]     SB v Heath [2017] NTSC 13 at [13], citing Federal Commissioner of Taxation v Arnhem Air Engineering Pty Ltd (1987) 90 FLR 140 at 150; Wilfred v Rigby [2004] NTSC 31; Wilson v Malogorski [2011] NTSC 27; Nottle v Trenerry (1993) 3 NTLR 68; Isles v Lyons [2016] NTSC 11; 36 NTLR 161.

[13]     SB v Heath [2017] NTSC 13 at [13]; Isles v Lyons (2016) 36 NTLR 161.

[14]     It is accepted this is referring to Mr Ambrith Abayasekara, the Criminal Practice Manager at Legal Aid.

[15]     When asked “When did you find out about that 28 days?” the applicant said “Probably about 10 months later”. However, I take this to be an error as 10 months had not elapsed since her sentence at the time of the hearing. It would also tend to indicate a lack of genuine understanding about dates and times, a characteristic that is not uncommon with many Aboriginal witnesses, especially from regional areas.

[16]    It is noteworthy that the letter from Mr Hubber includes contact numbers for his office and for Legal Aid only.

[17]     Recently gratuitous concurrence was discussed in Morluk v Firth [2017] NTSC 91 at [49].

[18]     The record for breach condition of a bail recognisance on 10 April 2017 resulted in a forfeiture of the recognisance, rather than a sentence; similarly the breach of bail on 17 October 2014 resulted in bail estreatment.

[19]      This referred to the incident outlined in paragraph [15] above, although that incident regarded     the applicant’s niece, not cousin.

[20]     Swann v Mosel [2014] NTSC 43 at [5].

[21]Potter v Neave [1944] SASR 19 at 21.

[22]     Potter v Neave [1944] SASR 19 at 21.

[23]     Affidavit of Matthew Hubber, affirmed 28 March 2018, Annexure MH1.

[24]     Hill v The Queen [2012] NTCCA 7.

[25]Bean v Considine (1965) SASR 351, cited with approval by Reeves J in Woods v Eaton [2009] NTSC 49 at [25] read in conjunction with [41].

[26]     Clark v Trenerry [1999] NTSC 17 at [11], cited in Woods v Eaton [2009] NTSC 49 at [27]; Khoury v The Queen (2011) 209 A Crim R 509 at [104] per Simpson J with Davies J and Grove AJ agreeing.

[27] (1993) 68 A Crim R 333.

[28]     Ranko Ignjatic (1993) 68 A Crim R 333 at 336.

[29]     Ranko Ignjatic (1993) 68 A Crim R 333 at 338.

[30]     Ranko Ignjatic (1993) 68 A Crim R 333 at 338.

[31](1987) 44 SASR 587 at 588.

[32] [2007] WASC 242.

[33]Gherardi v Pedder [2007] WASC 242 at [45].

[34]     Gherardi v Pedder [2007] WASC 242 at [47].

[35]     Wilson v Berlin [2015] NTSC 52 at [27]; Marshall v Court [2013] NTSC 75 at [1], [28].

[36]     Local Court (Criminal Procedure) Act (NT), ss 176A(1)(a), 176A(2)-(3); applicant’s written Submissions, p 2; respondent’s written submissions, p 2.

[37]The statement of facts states it was the victim and defendant but the respondent acknowledged that this was a typographical error.

[38]     Respondent’s written submissions, p 3; transcript, Local Court, 14 September 2017, pp 4, 7.

[39][2005] NTSC 13.

[40]Campbell v Meredith [2005] NTSC 13 at [38].

[41]Campbell v Meredith [2005] NTSC 13 at [40].

[42]Appellant’s written submissions, p 2.

[43] (2011) 209 A Crim R 509.

[44]     Khoury v The Queen (2011) 209 A Crim R 509 at [113].

[45]     R v Smith (1987) 44 SASR 587 at 588.

[46]The transcript is inaccurate at p 7. It states “as usual” but this can be safely be regarded a typographical error.

[47]Statement of facts, [6], [10]-[12].

[48]     Wilson v Berlin [2015] NTSC 52 at [27]; see also Seears v McNulty (1989) 89 FLR 154 at 160 and Leaney v Bell (1992) 108 FLR 360 at 369.

[49] [2016] NTCCA 5 at [75]-[76]; see also, e.g., Liddy v R [2005] NTCCA 4 at [12] cited with approval in Morrow v The Queen [2013] NTCCA 7 at [36].

[50] [2016] NTCCA 4 at [39].

[51]This discount is actually closer to 14 percent than 10 percent.

[52]     See, e.g., JKL v The Queen [2011] NTCCA 7 at [28].

[53] [2011] NTCCA 7.

[54] [2011] NTCCA 7 at [29]; Albert v The Queen [2009] NTCCA 1 at [7]-[8]; Resipiscence: recognition of error and a change for the better: D Ross, Crime at [19.1870].

[55]JKL v The Queen [2011] NTCCA 7 at [30].

[56]Transcript, Local Court, 14 September 2017, pp 7-8.

[57]     Witham v The Queen [2018] NTCCA 1 at [4] per Kelly J.

[58]Transcript, Local Court, 14 September 2017, p 5.

[59][1990] HCA 18; 169 CLR 525.

[60]     Bugmy v The Queen (1990) 160 CLR 525 at 536.

[61]Bugmy v The Queen (1990) 160 CLR 525 at 536.