Police v Hughes
[2024] ACTMC 9
•3 June 2024
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Hughes |
Citation: | [2024] ACTMC 9 |
Hearing Dates: | 3 June 2024 |
Decision Date: | 3 June 2024 |
Before: | Magistrate Temby |
Decision: | See [78] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCDURE – Judgment and Punishment – Sentence – aggravated assault occasioning actual bodily harm – aggravated common assault – family violence – sentence of imprisonment |
Legislation Cited: | Crimes (Sentencing) Act 2005 ss 33, 33(1)(za), 34B, |
Cases Cited: | DPP v Gale [2023] ACTSC 297 R v Peric (No 3) [2022] ACTSC 387 Bugmy v The Queen [2013] HCA 37; 249 CLR 517 Markarian v R [2005] HCA 25; 228 CLR 357 R v Doan (2000) 50 NSWLR 115 O’Brien v R [2015] ACTCA 47 R v Deng; Carberry v The King [2023] ACTCA 32 The Queen v Ruwhiu [2023] ACTCA 18 |
Parties: | Luke Jarman (Informant 1st series) Chisanto Lesmana Mulyadi (Informant 2nd & 3rd series) Garry Hughes ( Defendant) |
Representation: | Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service ( Defendant) |
File Numbers: | CC 1711 of 2024 CC 6829 of 2023 CC 1751 of 2024 CC 1752 of 2024 |
MAGISTRATE TEMBY:
Introduction
1․The Defendant appeared before me today to be sentenced in relation to four offences – two offences of assault occasioning actual bodily harm and two of aggravated common assault. All offences are aggravated by being committed in a family violence context, having been committed against the Defendant’s ex-partner.
2․The maximum penalties for the offences charged are:
(a)seven years’ imprisonment for the aggravated assault occasioning actual bodily harm offences; and
(b)three years’ imprisonment for the aggravated common assault offences.
3․I note that the Defendant gave his consent for all charges to be dealt with summarily.
4․In considering the matter, I note that:
(a)I must be satisfied beyond reasonable doubt of any fact which might be relied on in aggravation of the offence for which the Defendant is charged; and
(b)I must be satisfied on the balance of probabilities of any facts which I take into account in mitigation of the offences or in mitigation of the sentence.
Nature and circumstances of offence
5․The Defendant was found guilty following two hearings that were held in relation to the offences. I presided over proceedings 6829 of 2023, and 1751 and 1752 of 2024, and Special Magistrate Richter presided over proceedings 1711 of 2024.
Objective seriousness - considerations
6․In general terms, the objective seriousness of each of the assault offences is to be assessed having regard to:
(a)the nature of the attack and the surrounding circumstances; and
(b)the harm suffered by the complainant.
6829 of 2023, 1751 and 1752 of 2024
Facts
7․The facts relevant to the sentencing exercise for proceedings 6829 of 2023, and 1751 and 1752 of 2024, are as follows:
(a)at around 6.00 to 6.30 pm on 7 July 2023, the Defendant and the complainant were at an address on Newman-Morris Circuit in Oxley. With them in the house were their four children, aged four and under, as well as the complainant’s older two children. The eldest child was 12 years of age.
(b)a verbal argument between the Defendant and the complainant arose in or around the kitchen of the house. It seems to have arisen because the Defendant took objection to the way the complainant’s 12 year old acted towards their 3 year old;
(c)after the complainant’s 12 year old left the room, the Defendant threw something which hit the complainant in the back. She is not sure what it was but said it was solid and hurt. This is the first of the common assault offences (proceedings 1751 of 2024);
(d)the complainant was scared;
(e)there was then an argument about money. Both parties were yelling. The Defendant was throwing his hands around and acting in a threatening manner;
(f)the Defendant then pushed the complainant’s chest or shoulder. This is the second of the common assault offences (proceedings 1752 of 2024);
(g)the complainant threw a can of dog food at the Defendant, which hit his leg;
(h)the Defendant then gave the complainant two uppercuts to her left eye using his right arm. This is the assault occasioning actual bodily harm offence. The complainant said the punches really hurt – an 8 or 9 out of 10. The complainant left the house and was seen by a neighbour. The neighbour observed the complainant to be heavily crying – bawling – and to have a swollen eye (a corker of a lump, she said). This is consistent with the photograph taken of the complainant’s eye by police, which shows swelling and bruising near the complainant’s left eye. The complainant said that she was aware of the lump on her face straight after the Defendant hit her and that it lasted for a few days. She said that she didn’t sleep on that side or touch it.
Objective seriousness
8․The Defendant’s conduct was threatening and aggressive. He used violence to intimidate the complainant. It caused her fear.
9․The conduct was carried out in the complainant’s home. While her six children were in the house, I am not satisfied beyond reasonable doubt that the children witnessed the assaults. No arguments were advanced that I should take into account the fact that the children were nearby during the offending conduct, nor that they would have observed the consequence of the assault occasioning actual bodily harm – being the bruising and swelling to the complainant’s eye – and I have therefore not taken the children’s presence in the house into account.
10․The throwing of the object at the complainant’s back falls in the low-to-mid range of objective seriousness for the offence of common assault. I note that a hard object was thrown at the complainant, and that it hurt her. However, there is nothing to suggest that the pain was more than transitory.
11․The push to the complainant’s chest or shoulder falls to the lower end of the spectrum. There is no evidence that the complainant suffered any harm.
12․The assault occasioning actual bodily harm offence, however, is serious. In addition to the surrounding circumstances I have identified, it involved two punches (that is, it is a rolled-up charge) that caused the complainant distress, significant pain and swelling and bruising near her left eye. The swelling lasted for a few days and she could not sleep on her left side or touch the area. The face is, of course, a vulnerable part of the body. The complainant was in a crouched position trying to protect herself. The complainant was also pregnant at the time and, therefore, in an inherently vulnerable position.
13․The nature of the injury suffered by the complainant was not especially serious for this kind of offence, however, it must be remembered that family violence is unacceptable in any form and that freedom from family violence is a human right. Overall, I consider that the objective seriousness of the offence falls around the middle of the range.
14․It is an aggravating factor on sentence for each of the 7 July 2023 family violence offences that the Defendant was on conditional liberty at the time of the offending conduct, being suspended sentences of imprisonment for the offences of drive with prescribed drug in oral fluid and drive while disqualified (charges 13804 of 2020 and 13803 of 2020).
Breach of suspended sentence order
15․The Defendant had originally been sentenced for those offences on 8 June 2021, with terms of imprisonment suspended on the Defendant entering into a 24 month good behaviour order. As a result of breaching the good behaviour order, he was re-sentenced on 23 August 2022 to a further sentence of imprisonment, suspended on entering into an 18 month good behaviour order. As a result of breaching that good behaviour order, he was re-sentenced again on 9 February 2023, this time to sentences of imprisonment that were suspended on entering into a six month good behaviour order. He also breached this good behaviour order as a result of committing further driving offences on 20 July 2023. He was re-sentenced on 27 March 2024 (the March 2024 sentencing hearing) to a term of imprisonment with respect to each of those offences such that he is no longer subject to a suspended sentence of imprisonment.
16․While section 110 of the Crimes (Sentence Administration) Act 2005 requires the court to cancel a good behaviour order associated with a suspended sentence where there has been a breach of the good behaviour order, I note that the good behaviour orders the Defendant entered into with respect to charges 13804 and 13803 were already cancelled by the court at the March 2024 sentencing hearing. As I have noted, he was re-sentenced at that time. Accordingly, there is nothing for me to do in relation to the good behaviour orders or with respect to the sentencing of those offences.
1711 of 2024
Facts
17․The facts relevant to the sentencing exercise for proceedings 1711 of 2024 are as follows:
(a)the Defendant attended the complainant’s house on 2 February 2024;
(b)late in the evening, the Defendant and the complainant had an argument. The Defendant was acting aggressively towards the complainant, in terms of his physical proximity to her face, and so the complainant walked away, into the backyard;
(c)the Defendant followed her and attacked her. She crouched down in a defensive posture however the Defendant:
1․ punched her multiple times to the back of her head, causing lumps on her head;
2․ punched her multiple times to her forehead, resulting in two lumps on her forehead; and
3․ stomped on her and pushed her into the concrete, resulting in her arms and face hitting the concrete. That resulted in the complainant suffering a black eye.
18․The actual bodily harm for which the Defendant is to be sentenced is:
(a)bruising to the complainant’s right arm, right wrist and left arm;
(b)significant bruising and swelling under the complainant’s right eye (that is, the black eye); and
(c)swelling down the side of the complainant’s face.
Objective seriousness
19․Like the first-in-time assault occasioning actual bodily harm offence, the offending conduct of 2 February 2024 is serious. It involved controlling and violent conduct committed on the complainant when she was walking away from the Defendant or crouched down to protect herself. It involved multiple blows to her head, a vulnerable part of the body, as well as blows to both arms, and ultimately ended with the Defendant stomping on the complainant and her face hitting the concrete.
20․Again like the first-in-time assault occasioning actual bodily harm offence, the nature of the injuries suffered by the complainant are not especially serious for this kind of offence, however, they are not insignificant and, again, it is a family violence offence.
21․In this respect, I note that the offence was committed at the complainant’s house. As I have noted in relation to the first-in-time offence, family violence in any form is unacceptable and freedom from family violence is a human right.
22․It is an aggravating factor on sentence that the Defendant was on conditional liberty at the time of the offending conduct, particularly in circumstances where he had been granted bail just three days prior to the offending conduct with respect to offences which included the July 2023 family violence offences and where the offending conduct involved breaches of two of the conditions of bail, being that:
(a)he not assault the complainant; and
(b)he not be at the complainant’s residence (subject to exceptions not presently relevant).
Comparable cases
23․Paragraph 33(1)(za) of the Crimes (Sentencing) Act 2005 (Sentencing Act) provides that the Court must have regard to current sentencing practice and patterns when considering how an offender must be sentenced. Consistency does not mean numerical equivalence, but the consistent application of relevant legal principles. However, considering past sentences is also relevant to the achievement of reasonable consistency in sentencing.
24․Two cases bearing some similarity to the present assault occasioning actual bodily harm offences are DPP v Gale [2023] ACTSC 297 (Gale) and R v Peric (No 3) [2022] ACTSC 387 (Peric).
DPP v Gale
25․In Gale, the offender was verbally abusive towards his partner at her house. She told him to get out of her house and out of her life. The offender was distressed. The offender pushed her in the chest and then struck her on the left hand side of her head with his hand or elbow, causing his partner to suffer a small bruise to the left hand side of her face, pain in her left ear and temporary hearing loss.
26․The offender was charged with aggravated assault occasioning actual bodily harm, by reason of the offending conduct having been engaged in in a family violence context. Accordingly, the maximum penalty applicable to the offence was seven years’ imprisonment, as it is in relation to the Defendant’s assault occasioning actual bodily harm offences.
27․The court noted that:
(a)the offence was aggravated by being committed in a family violence context;
(b)the actual bodily harm was the small bruise and temporary hearing loss; and
(c)the offending conduct occurred in the context of abusive language used by each of the parties and threats made by the offender.
28․The court found that, although the harm suffered was modest, the offending was in the mid-range of objective seriousness for the offence.
29․The offender had a traumatic upbringing, involving exposure to and experience of violence at the hands of his father, and early exposure to drug use. The Court found that the Bugmy principles were engaged. He was diagnosed as suffering from Post Traumatic Stress Disorder and substance misuse disorder.
30․The offender had a criminal history involving driving offences, failing to answer bail, minor drug offences, weapons and possession of cannabis. Of particular significance, he had a recent conviction for a choking offence committed against the same victim, for which he was sentenced to 11 months’ imprisonment. That was his first sentence involving a period of full-time custody.
31․The offender was sentenced to a term of imprisonment of 16 months, which was reduced to 13 months for the offender’s plea of guilty. The court accepted that the offender had insight into his offending and a desire to change.
R v Peric
32․In Peric, the offender and his partner were driving in a car when, for no identified reason, the offender struck his partner’s right eye with a closed fist, causing a cut, bruising, and possible long term consequences.
33․The offender in that case was not charged with the aggravated version of this offence and, therefore, the maximum penalty for the purposes of sentencing was five years’ imprisonment.
34․The court noted that:
(a)the offence was more serious because it was committed in circumstances of family violence;
(b)the punch was to the head, which is a vulnerable part of the body;
(c)the punch was inflicted while the offender’s partner was driving, which was both dangerous and meant that his partner was unable to protect herself; and
(d)the harm suffered – bruising and a cut – was not very serious, but the incident might have some longer term consequences for the victim’s health.
35․The offender in that case had what the Court described as a chaotic upbringing, moving frequently, having difficulty at school, being exposed to drugs and alcohol at an early age and having been assaulted by his father. His criminal history consisted mainly of driving offences, although he did have one conviction for assault and one conviction for assault occasioning actual harm for offences against the same victim, as well as another conviction for assault occasioning actual bodily harm.
36․The court noted that, while the offender tested positive for drugs on entry into custody, he returned several negative drug test results whilst in custody and complied with his bail condition not to use drugs or alcohol once he was released from custody. He also engaged in domestic violence counselling and engaged proactively with Corrective Services.
37․The court sentenced the offender to a term of imprisonment of 22 months, which was reduced to 18 months for the offender’s plea of guilty.
Subjective Circumstances
38․The Defendant is 37 years old. He and the complainant have five children together, two of whom were living with him following the breakdown of his relationship with the complainant until his remand into custody. At the March 2024 sentencing hearing, the Defendant said that the children now reside with their mother, however he will be relentless in his endeavours to regain custody of them.
39․According to the Court Duty Report, the Defendant plans to reside on his sister’s property in Moruya once he is released from custody. He also told the authors of a Pre-Sentence Report prepared for the March 2024 sentencing hearing that he planned to relocate to a family property at Moruya and that his mother and sister provided support to him in the community. However, I note that he told the authors that he had spent time at his mother’s and his sister’s property prior to being remanded into custody, whereas his mother said that he resided at neither property and that neither she nor the Defendant’s sister were able to offer accommodation or any significant support after the Defendant is released from custody.
40․What is clear on the information before me is that the Defendant has experienced various forms of trauma in his life.
41․The Defendant reported to the author of the Court Duty Report that he was exposed to years of domestic violence as a child, perpetrated by his mother’s partner. At the March 2024 sentencing hearing, he said that his mother’s partner was violent towards him and his mother and that he was hospitalised on more than one occasion when trying to defend his mother.
42․At the March 2024 sentencing hearing, he also said that he had a daughter who passed away about seven or eight years ago from SIDS. She was two months old at the time. He said that he suffered depression as a result and used drugs as a way of suppressing his emotions.
43․The Defendant reported to the author of the Court Duty Report that he used alcohol heavily in his teens and early 20s, and regularly used cannabis from the age of 12, but he denied any current alcohol or illicit substance use issues. The Defendant reported that he has been receiving medication whilst in custody to address feelings of anxiety.
44․The Defendant had a history of employment as a butcher until the passing of his daughter in 2016, but he has been unable to maintain consistent employment since that time. The Defendant last worked in 2019. He told the authors of the Pre-Sentence Report for the March 2024 sentencing hearing that he had been the primary carer for his children for the three years prior, however that information had not been verified.
45․I accept that there is a sufficient link between the Defendant’s experience as a child, and the offences for which the Defendant is to be sentenced, such that his background does, to some extent, explain the offending. In those circumstances, and while the evidence in relation to this issue is quite limited, I accept that the Bugmy principles are engaged and the Defendant’s moral culpability is reduced. The weight that would otherwise be given to denunciation, and specific and general deterrence, is moderated to some extent in favour of rehabilitation.
46․Having said that, I note that the author of the Court Duty Report concluded that: “It appears as though his as yet unaddressed anger and/or impulsivity control has led to his current family violence offending, and this Service would strongly recommend he engage with intensive supports”. I am mindful of the need to protect the community, and the complainant in particular, from further acts of violence.
47․In this respect, I note with some concern that the Defendant does not accept responsibility for his offending conduct. He provided justifications to the author of the Court Duty Report, asserting that the complainant has a history of anti-social attitudes towards him.
48․Nevertheless, there is some prospect that the Defendant will obtain the help he needs. He acknowledged to the author of the Court Duty Report that he requires supports or interventions to address the way he communicates with the complainant. He also indicated a willingness to engage in a domestic violence-specific intervention program, or with some form of men’s anger management counselling to mitigate his risk of re-offending in a similar manner to the present offences.
49․Whilst in custody, he has developed a detailed Goal Action Plan focused on remaining abstinent from drugs and improving his general well-being, being a good father to his children and addressing conflict resolution issues with the complainant. He has also engaged in various programs, including the Shine for Kids parenting program, and has otherwise been positively engaged in activities and with Corrective Services staff. His security classification has been downgraded from maximum security to medium security as a result.
50․While the Defendant’s compliance with previous community-based orders has been unsatisfactory, he has a powerful incentive to minimise his risk of re-offending, being his goal of regaining custody of his children. At the March 2024 sentencing hearing, the Defendant spoke of his love for his children and the positive influence he feels they are on him. He said he was in and out of jail every year before his eldest was born. Since that time, which he said was a period of around five years, he said that he had not spent any time in custody, until the commission of the July 2023 family violence and driving offences. This is supported by the Defendant’ criminal history, which indicates that he last left custody (at least with respect to a sentence of imprisonment) in December 2019.
51․Of course, it should be noted that he was sentenced to a term of imprisonment in June 2021 (proceedings 13803 and 13804 of 2020), but that sentence was suspended. Accordingly, it is not the case that the presence of the Defendant’s children in his life is a sufficiently protective factor to prevent him from committing any further offences. This point is emphasised by the offending for which the Defendant is to be sentenced today. Nevertheless, the Defendant submits that the time he has spent in custody has made clear to him the need to rehabilitate so that he can remain in the community with his children and that it has given him time to work on himself so that, in combination with the goal of reuniting with his children, he is a reduced risk of reoffending.
52․Ultimately, while I accept the Prosecution’s submissions that the Defendant’s prospects of rehabilitation are guarded, I am satisfied that the Defendant genuinely wishes to rehabilitate himself and that he is taking positive steps towards that goal. As I have noted, his children are a powerful motivation for him and that is likely to continue to be the case. I approach the Defendant’s prospects of rehabilitation with guarded optimism.
Criminal History
53․The Defendant has a lengthy criminal history, although the majority of his convictions are for driving-related offences which are not of much significance for present purposes.
54․However, there are offences of violence on the Defendant’s criminal record. There is a common assault offence committed in 2009, for which he received a bond, a stalk/intimidate offence committed in 2013, for which he received a short sentence of imprisonment, and a common assault offence committed in 2018, for which he received a bond. There is also a common assault offence committed in 2019, for which the Defendant received a four month sentence of imprisonment. This offence was committed against the complainant.
Relevance of criminal history
55․The Defendant’s criminal history does not suggest that the Defendant is especially prone to committing offences of violence, however there is some history of offences of that kind. In the usual course, this might suggest that specific deterrence is not a particularly important purpose of sentencing.
56․However, what is obviously concerning is the fact that the Defendant committed two similar, serious, offences of violence against his partner within a relatively short period of time – in July 2023 and February 2024 – and he had previously been convicted for assaulting her in 2019. In those circumstances, specific deterrence is clearly an important sentencing purpose.
Statutory and other Relevant Considerations
57․In sentencing the Defendant, the court is required to take into account those matters set out in sections 33 and 34B of the Sentencing Act that are relevant and known. I have referred to the relevant matters above.
58․The court is also required to have regard to the objects of the Sentencing Act as set out in section 6 and to the purposes of sentencing as set out in section 7.
59․In terms of the purposes of sentencing, I accept the submissions of the Prosecution that specific deterrence is of particular significance and that general deterrence is also relevant, despite the application of the Bugmy principles. I accept that there is a need for denunciation and to recognise the harm done to the complainant. I accept that she suffered physically and emotionally as a result of the attacks.
60․Rehabilitation is also clearly relevant. As has been said many times, rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection. As I have said, the Defendant’s prospects of rehabilitation are guarded, but he is committed to it.
Sentence
61․Ultimately, I must ensure that the Defendant is adequately punished in a way that is just and appropriate.
62․Several principles are relevant to that exercise.
63․Firstly, careful attention to the maximum penalties for the offences is required. As Gleeson CJ, Gummon, Hayne and Callinan JJ said in Markarian v R [2005] HCA 25, at [31]
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. maximum penalty, and to proceed by making a proportional deduction from it.
64․Second, in assessing the appropriate sentence, I note that, even though the limit of the Court’s jurisdiction in this matter is lower than the maximum penalty for charged offences, I am required to conduct an initial assessment of the appropriate sentence without reference to that jurisdictional limit: R v Doan (2000) 50 NSWLR 115.
65․Third, as I will be sentencing for multiple offences, I have had regard to the principles set out in O’Brien v R [2015] ACTCA 47, at [26]:
(a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 623-624.
(b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.
(c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight [2005] NSWCCA 253; (2005) 155 A Crim 252 at [112]; R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18].
(d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27].
66․I am also mindful of the comments of the Court of Appeal in R v Deng; Carberry v The King [2023] ACTCA 32 at [92]:
A sentence should not be ‘crushing’ in that it induces a sense of hopelessness and destroys prospects of rehabilitation, or too severe as a result of accumulation (noting the severity of a sentence may increase at a greater rate than the increase in its length) R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [16]-[17].
Imprisonment
67․Pursuant to s 10(2) of the Sentencing Act, the court may only sentence the Defendant to imprisonment if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate. Having considered all the sentencing options, it is my view that there is no appropriate alternative to imprisonment with respect to the two assault occasioning actual bodily harm offences. Both parties accepted this position.
68․On the other hand, I am not satisfied that imprisonment is the only appropriate penalty with respect to the two common assault offences. While the Defendant’s compliance with community-based orders has not been satisfactory in the past, I do not consider that the seriousness of these offences warrants imprisonment. Given the difficulties that the Defendant has had in complying with community-based orders, and given that a good behaviour order could not commence until the end of the total head sentence for the other offences, I consider that the imposition of a fine is a more appropriate penalty than a good behaviour order.
Time in custody
69․Under section 63 of the Sentencing Act, the court must take into account the period during which the Defendant has already been held in custody in relation to the offences. Further, the court may direct that a sentence of imprisonment is taken to have started on a day before the day the sentence is imposed.
70․The Defendant has spent 67 days in custody in relation to the offences for which he is to be sentenced, excluding the days spent in custody which were relied on at the March 2024 sentencing hearing. The sentence of imprisonment I impose will be backdated to commence on 28 March 2024.
Non-parole period
71․Under section 65 of the Sentencing Act the court must set a non-parole period as the aggregate of the sentences of imprisonment I will impose exceeds 12 months. The court must identify when the non-parole period starts and ends. A non-parole period represents the minimum period of imprisonment that justice requires that a Defendant should serve in detention. In The Queen v Ruwhiu [2023] ACTCA 18, the Court of Appeal stated, at [18]:
18. The principles relating to the fixing of non-parole periods are also well settled. The proper approach to determining a non-parole period in this jurisdiction was succinctly summarised by this Court in Taylor v The Queen [2014] ACTCA 9 (Taylor) at [19]:
1. A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627-628, Deakin v The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 at 615, Bugmy v The Queen (1990) 169 CLR 525 at 536.
2. An offender's prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531-532.
3. The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Inge v The Queen (1999) 199 CLR 295 per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625.
4. Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton v The Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an ‘available range’ for non-parole periods.
72․Given the view I take as to the Defendant’s prospects of rehabilitation, I am of the view that a non-parole period of fifty per cent of the Defendant’s sentence is appropriate. It still leaves a considerable period to serve in custody, but it is short enough that it should provide motivation to the Defendant to continue with his rehabilitation whilst in custody and give him the supervision that he needs, for a sufficiently long period of time, once released from custody.
73․In determining this percentage, I have also had regard to the Defendant’s submission that he has received extra-curial punishment as a result of an “Amber alert” being issued by police when it was thought that two of the Defendant’s children had gone missing, possibly taken by the Defendant. The Defendant submits that, as a result of the Amber alert, which was issued after the second-in-time offence, he was threatened whilst in custody and placed in protective custody. The Defendant concedes that there is limited evidence with respect to the ongoing impact of the issue of the Amber alert.
74․I am not satisfied that the Defendant has received extra-curial punishment arising from the commission of the second-in-time offence, however I accept that the conditions of custody may be harder for the Defendant than for other prisoners in the circumstances. I have taken this issue into account in setting the non-parole period albeit, as the Defendant conceded was appropriate, I have not afforded significant weight to the matter.
Consideration
75․Having regard to all of the forgoing matters, I have determined that the appropriate sentences for each of the Defendant’s offences are as follows:
(a)for the offence of assault occasioning actual bodily harm committed on 7 July 2023 (6829 of 2023), a term of imprisonment of 8 months;
(b)for the offence of assault occasioning actual bodily harm committed on 2 February 2024 (1711 of 2024), a term of imprisonment of 12 months, to be served consecutively on the sentence for the first offence; and
(c)for each of the offences of common assault, the Defendant be ordered to pay a fine.
76․I do not consider that there need be any period of concurrency with respect to the sentences of imprisonment, having regard to the principles I have identified. They were separate acts of violence committed against the complainant and I am satisfied that the aggregate sentence of 20 months is just and appropriate for the offences having regard to the totality of the criminal behaviour. I do not consider that the total sentence is “crushing”, particularly given the non-parole period I have settled on.
77․I have set out my views in relation to the appropriate non-parole period above. Given the views I have expressed in relation to the objective seriousness of the Defendant’s offences, the need for specific and general deterrence, and the Defendant’s prospects in relation to rehabilitation, I consider that the appropriate non-parole period is 10 months, commencing on 28 March 2024 and ending on 27 January 2023.
Orders
78․Accordingly, I make the following orders:
(a)I record convictions in relation to each of charges 6829 of 2023, 1751 and 1752 of 2024 and 1711 of 2024.
(b)In respect of 6829 of 2023, the Defendant is sentenced to 8 months’ imprisonment, commencing on 28 March 2024 and ending on 27 November 2024.
(c)In respect of 1711 of 2024, the Defendant is sentenced to 12 months’ imprisonment, commencing on 28 November 2024 and ending on 27 November 2025.
(d)I set a non-parole period of 10 months, commencing on 28 March 2024 and ending on 27 January 2025.
(e)In respect of 1751 of 2024, the Defendant is ordered to pay a fine of $1,800 with no time to pay.
(f)In respect of 1752 of 2024, the Defendant is ordered to pay a fine of $900, with no time to pay.
| I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby. Associate: Niamh Dwyer Date: June 2024 |
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