Price v Guerin
[2021] NTSC 98
•14 December 2021
CITATION:Price v Guerin [2021] NTSC 98
PARTIES:PRICE, Jonathon
v
GUERIN, Malcolm
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 24 of 2021 (22120936)
DELIVERED: 14 December 2021
HEARING DATE: 14 December 2021
JUDGMENT OF: Kelly J
REPRESENTATION:
Counsel:
Appellant:S Rumbewas
Respondent: S Lapinski
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: Kel2121
Number of pages: 17
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSPrice v Guerin [2021] NTSC 98
No. LCA 24 of 2021 (22120936)
IN THE MATTER of an appeal under s 163 of the Local Court (Criminal Procedure) Act 1928 (NT)
BETWEEN:
JONATHON PRICE
Appellant
AND:
MALCOLM GUERIN
Respondent
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 14 December 2021)
Jonathon Price is 38 years old. On 7 July 2021, he got drunk and forced his way into his cousin’s house by damaging a lock on the front gate and smashing a sliding door and screen. His cousin, Ms Hayward, is a 39 year old lady. She was not at home when Mr Price broke in and the house was empty. When he got inside, Mr Price damaged the refrigerator and microwave and threw food around the kitchen and lounge. Then he went to sleep in one of the bedrooms.
Ms Hayward reported to police that when she came home she found her house had been smashed up and an unknown man was asleep inside. Police arrived and found Mr Price asleep. When Mr Price woke up Ms Hayward realised it was her cousin. She asked him to leave and he did.
However, when Mr Price was out of sight of police, he walked back to the back of Ms Hayward’s house. He waited there for police to leave. Then he jumped the fence, went back inside the house and assaulted Ms Hayward. He punched and kicked her about ten times in the face and on the side of her body. Another cousin was there at the house and pushed Mr Price away.
Police heard screaming and went back to Ms Hayward’s house. They found her lying on the ground bleeding from her head. Mr Price was trying to jump the side fence. Police arrested him and took him to the Alice Springs Watch house.
As he was being escorted out of Ms Hayward’s yard by police, Mr Price tried to kick Ms Hayward while she was lying on the ground, but police pushed him away. At the Alice Springs Watch house, Mr Price spat in a police officer’s face.
On 8 July 2021, Jonathon Price pleaded guilty in the Local Court in Alice Springs to:
(a)unlawfully entering a dwelling house, the maximum penalty for which is imprisonment for 10 years (count 1);
(b)intentionally damaging property, the maximum penalty for which is imprisonment for 14 years (count 2);
(c)aggravated assault on Ms Hayward, the maximum penalty for which is imprisonment for 5 years (count 3); and
(d)assaulting a police officer, the maximum penalty for which is likewise imprisonment for 5 years (count 4).
Appellant’s subjective circumstances
The appellant’s then counsel gave the sentencing judge some information about the appellant, his background and the circumstances surrounding the offending. He was originally from Neutral Junction but had been living in Alice Springs for about a year, staying with various family members, including, at times, the victim of this offending. He and the victim had the same grandmother and she had recently passed away. Mr Price’s counsel told the sentencing judge that Mr Price had been affected by the passing of his grandmother and that he had been quite close to her. He and the victim had been in conflict in their family relationship over the grandmother. Mr Price had made complaints about the victim taking money from their grandmother and he said he had helped the grandmother change her accommodation, essentially to be away from the victim. On the day he committed these offences, Mr Price had been drinking to the extent that he passed out, and the court was told that this was a regular occurrence.
Prior criminal history
At the time he committed these offences, Mr Price had 16 prior convictions for aggravated assault, at least ten of them against women, and two against police. He also had one prior conviction for causing grievous harm, three for unlawful entry and four for property damage in addition to numerous driving and other miscellaneous offences. He also had three breaches of Domestic Violence Orders (“DVOs”), three breaches of suspended sentences, and four breaches of bail.
Sentence in the Local Court
On 21 July 2021, Mr Price was sentenced to an aggregate term of imprisonment for 18 months on counts 1 and 2; nine months imprisonment on count 3, cumulative on counts 1 and 2; and six months imprisonment on count 4, cumulative on the other sentences, a total of 33 months imprisonment. The sentencing judge fixed a non-parole period of 17 months.
Shortly after the sentencing judge announced the non-parole period, the appellant, who was legally represented, said, “I don’t want no fucking parole. I’ll just do it.”
The sentencing judge also made a three year non-contact DVO against Mr Price naming Ms Hayward as the protected person. Mr Price appears to have misunderstood what was happening. As the sentencing judge was explaining the terms of the DVO, Mr Price said, “So I’ve got three years.”
Her Honour (referring to the DVO) said, “And that is three years from today.”
Mr Price said, “From today. Wow.”
After the DVO was explained, Mr Price said, “(Inaudible) racist kind of sentence you’ve given me?”
A little later he said, “The judge is racist. I don’t like her.” The judge had made no racist remarks and had not done or said anything which could possibly be construed as racist in nature.
The appeal
Mr Price has appealed against the sentence imposed on the following grounds.
1)The aggregate sentence of 18 months imprisonment for counts 1 and 2 was manifestly excessive.
2)The total effective sentence of 33 months imprisonment with a non-parole period of 17 months was manifestly excessive.
On the hearing of the appeal, counsel for the appellant clarified that the appellant’s only complaint is with the sentence for counts 1 and 2. The appellant contends that the total effective sentence is excessive only as a result of the sentence for counts 1 and 2.
Appellant’s contentions
The appellant made three specific complaints about the sentence for counts 1 and 2, which counsel for the appellant confirmed should be seen as particulars of the ground of appeal of manifest excess.
(a)The sentence was not proportionate when taking into account the objective seriousness of the offences.
(b)The Local Court erred by misapplying the totality principle when imposing an aggregate sentence.
(c)Undue regard was given to the appellant’s early plea.
Principles
The principles governing manifest excess are well-settled. In the absence of specific and identifiable error, it is necessary for the appellant to show that the sentence was clearly and obviously, and not just arguably, excessive.[1]
First contention: the sentence was not proportionate to the objective seriousness of the offences
In written submissions, counsel for the appellant noted that the sentencing judge assessed all of the offences as falling in the mid-range of seriousness for offences of this nature, and contended that this assessment overestimated the objective seriousness of the offences in counts 1 and 2.
The sentencing judge made the following remarks about the seriousness of the offending. First her Honour pointed to the maximum penalties for the various offences as indicating that they are all serious offences. Her Honour summarised the agreed facts and then said:
Ms Esther Hayward has provided a victim impact statement where she describes the injury to her head, the swelling and pain to her forehead and the side of her body. She said she was very upset and sad for the injury to herself and also the damage to her house. She said she would like you to clean up and pay for the damage and she thinks you should go to gaol.
The property damage is reasonably serious. There was a fair bit of senseless damage – more than is often seen, not just a single window or the like.
The aggravated assault involves multiple strikes including to the head which is a vulnerable area and resulting in actual injuries including the cut which needed treatment. That assault occurred in circumstances where you had been asked to leave but you came back to assault Ms Hayward. So there was an element of planning there.
You said that there was a dispute between you and Ms Hayward about how Ms Hayward had behaved towards your mutual grandmother who had recently passed. But you were also in a generally heightened emotional state because of that passing. But I do not regard that as any sort of excuse or provocation in the legal sense for what you did.
You said that you were intoxicated at the time and in fact you do not recall all of these events but intoxication is also no excuse.
There is no evidence that Ms Hayward will not make a full recovery from her injuries. I note that it reasonable (sic) for a person who has suffered the sort of damage – unlawful entry and damage property to suffer a sense of invasion of privacy of her home and she refers to being sad for the damage to her house and the assault.
I think that both of these – sorry, all three of those offences are mid-range examples of this sort of offending.
In relation to assaulting the police officer, spitting on someone is a disgusting and humiliating act. All such assaults are serious. There is no victim impact statement from the police officer. But I think that nonetheless it is a serious matter. You say that you have suffered some injury during the arrest but that does not excuse this type of offending. I think it is on the mid-range for this type of offence.
The appellant contended that count 1 fell below the mid-range, “if not to the low range levels of objective seriousness” for the following reasons.
(a)The owner/occupier was not at home at the time of entry.
(b)The owner/occupier discovered the offender asleep within the property.
(c)The owner/occupier and offender were known to each other.
(d)The offence did not occur in the context of a burglary or for financial gain.
(e)The loss of privacy or amenity is an inherent aspect of this offence and not an additional or aggravating factor.
I do not consider that the sentencing judge mischaracterised the seriousness of the offending on count 1. In relation to the matters relied on by the appellant:
(a)I do not see that being found asleep inside the home makes the offence less serious.
(b)In the circumstances of the present offending, it is hard to see how the fact that the offender and the victim knew each other makes the offending less serious. The appellant pleaded guilty to breaking into the victim’s home with the intention of damaging her property.
(c)The same may be said of the circumstance that the unlawful entry was not motivated by financial gain. It seems to have been motivated by ill feeling which led to the victim being viciously assaulted, her things broken and a mess left in the kitchen and lounge. The appellant was charged with unlawful entry to a dwelling house with intent to commit damage to property which carries the same maximum penalty as unlawful entry to a dwelling house with intent to steal.[2]
(d)The sentencing judge made no error in talking about the victim suffering a sense of invasion of privacy and of her home. Her Honour was not suggesting that this was not an intrinsic aspect of unlawful entry of a dwelling house. Rather, by use of the word “reasonable”, the sentencing judge’s remarks emphasise that such feelings are normal in offences of this kind. In any event, although the sentencing judge did not say so, or purport to increase the sentence on this account, in the circumstances of this case, it is easy to see that this feeling of violation and invasion may well have been worse than in the run of the mill case, given the mess that was made and the things that were deliberately, maliciously broken.
The appellant contended that when assessed objectively, count 2 also fell below the mid-range, “if not to the low range levels of objective seriousness” essentially because “the combined monetary value of the property was unlikely to be significant, and objectively unlikely to result in significant loss to the victim”. I reject that contention. A refrigerator and a microwave (especially the refrigerator) tend to be among the more significant household purchases and may well have resulted in significant loss to the victim. The victim would also have had to replace the broken door, screen and lock. To this should be added the emotional harm. The victim “felt sad” for her damaged property and this may well have been exacerbated by the knowledge that her things had been deliberately smashed by her own cousin.
The appellant did not make any submissions that the sentencing judge had mischaracterised the objective seriousness of counts 3 and 4 (the assaults).
Second contention: misapplication of the totality principle in imposing an aggregate sentence
In written submissions, the appellant contended “that part of the mischief at sentence was the misapplication of an aggregate sentence by the Local Court, by insufficiently giving effect to the totality principle. That is an aggregate sentence was utilised by the Local Court merely as a means of imposing concurrent sentences, rather than as a method of sentencing that denoted the true totality of the appellant’s criminal conduct.”
The appellant relied for this submission on that part of the sentencing remarks in which the sentencing judge said:
I have also considered that counts 1 and 2 are part of the same course of conduct and an aggregate sentence is therefore appropriate. That effectively has the effect of full concurrency.
…
In relation to counts 1 and 2, convicted on both counts and sentenced to 18 months imprisonment, cumulative on count 4. So I think the total effective sentence is 33 months. Is that right? [underlining added by appellant]
The underlined part of this passage could conceivably be construed as indicating that the sentencing judge has done what the appellant suggests – that is to say, that her Honour determined that an appropriate sentence for, say, count 1 alone would be imprisonment for 18 months and that an appropriate sentence for the other count would be 18 months or less, and made them fully concurrent, rather than looking at the whole of the criminal conduct involved in both counts 1 and 2 and determining what would be an appropriate sentence for the whole of that criminal conduct. However, in the earlier portion of the quoted remarks, the sentencing judge referred to the fact that “counts 1 and 2 are part of the same course of conduct”. Further, her Honour used the term “aggregate sentence” and did not go through the exercise of fixing separate sentences for counts 1 and 2 and making them fully concurrent, so it cannot be inferred that this is what her Honour did.
In any case, if the sentencing judge had done what the appellant complains of, it would have been in the appellant’s favour, as the appropriate sentence for one only of counts 1 and 2 made fully concurrent with the sentence for the other count would, logically, have been lower than an aggregate sentence which took account of the total criminal conduct involved over both counts.
The appellant contended that the use of the term “full concurrency” suggests that, but for an aggregate sentence being imposed, the sentencing judge would have considered an appropriate sentence for each of counts 1 and 2 to have been imprisonment for 18 months and that “18 months represents an overestimation of the totality of the criminality”. I disagree.
First, as explained above, it cannot be inferred from that one phrase that the sentencing judge did anything other than genuinely impose an aggregate sentence.
Second, the premise is not sound. Use of the term “full concurrency” does not suggest that, but for an aggregate sentence being imposed, the sentencing judge would have considered an appropriate sentence for each of counts 1 and 2 to have been imprisonment for 18 months. If the sentencing judge had made the error contended by the appellant, it would have suggested only that her Honour considered an appropriate sentence for one of those counts to have been imprisonment for 18 months and an appropriate sentence for the other one to have been imprisonment for up to 18 months.
More importantly, I do not consider that a sentence of 18 months imprisonment would have been manifestly excessive for either count 1 or count 2 alone. The maximum penalty for count 1 is imprisonment for 10 years, and the maximum penalty for count 2 is imprisonment for 14 years.
The High Court emphasised the importance of sentencing judges paying attention to the maximum penalties in Makarian v The Queen[3] saying:
Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that:
"A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ...
A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate]."
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.
The Northern Territory Court of Criminal Appeal (“CCA”) has also emphasised the importance of having regard to maximum penalties in The Queen v TT[4] and Emitja v The Queen.[5] Counsel for the appellant submitted that lower sentences were to be expected in the Local Court. Subject to any jurisdictional limit, that contention cannot be accepted. In Emitja v The Queen the CCA commented on the need for Local Court judges to keep maximum penalties in mind when sentencing for aggravated assaults. The court referred to earlier sentences imposed on the appellant in that case by the Court of Summary Jurisdiction and said:
A number of the assaults committed by the appellant (described above) must be considered to be at least in the middle of the range of seriousness for aggravated assaults under s 188. With the exception of the conviction for causing grievous harm in 2002, all of these sentences were imposed by the Court of Summary Jurisdiction which was limited, at the time of sentencing, to the imposition of a period of imprisonment for two years. However, that period does not represent the maximum penalty prescribed for offences against that section, intended for cases falling within the worst category for which the penalty is prescribed. It is well established that the appropriate approach to sentencing for offences under s 188(2) of the Criminal Code is to measure the circumstances of the offending against the maximum penalty of five years, and to sentence accordingly.[6]
…[A]s a general comment, it is not uncommon for an offender to have a series of convictions in the lower court for aggravated assaults and to receive relatively short terms of imprisonment and later to commit an assault which may be of a similar nature but which has more serious consequences. That offender will then be dealt with in the Supreme Court for a more serious offence (often unlawfully causing serious harm which carries a maximum of 14 years imprisonment) and will receive a substantially longer sentence. That should not be seen as an indication that the sentence imposed by the Supreme Court is excessive. First, the Supreme Court must take into account the seriousness of the consequences and the greater maximum penalty. It may also be that in some instances the earlier lower court sentences do not adequately reflect the objective seriousness of the offences in light of the maximum penalty imposed by the legislature, as distinct from the jurisdictional limit of the Court of Summary Jurisdiction. That jurisdictional limit on sentences for aggravated assault has been removed with the creation of the Local Court.[7] Nevertheless we consider it appropriate to emphasise the importance of taking into account the maximum penalty prescribed by the legislature when determining an appropriate sentence having regard to the objective seriousness of the offence in question.
In Taylor v Malagorski (cited by the CCA in Emitja v The Queen) Barr J said:[8]
In Wiltshire v Mafi (2010) WASCA 111 the Western Australian Court of Appeal held (per curiam) that it was necessary to distinguish between the maximum penalty for an offence and the jurisdictional limit when such offence is dealt with summarily. The Court stated:
“In Lapa v R [2008] NSWCCA 331 it was held that it is open to a judge sentencing in summary jurisdiction to determine a starting point above the relevant jurisdictional limit. To support this principle, the court relied upon the reasons of Grove J (Spigelman CJ and Kirby J agreeing) in R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 who reviewed similar legislative provisions in other States and who said that ‘where the maximum applicable penalty is lower because the charge has been prosecuted within the limited jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit.”
A similar approach has previously been adopted in this Court - see Sultan v Svikart (1989) 96 FLR 457 at 460; Maynard v O’Brien (1991) 105 FLR 63; Kumantjara v Harris (1992) 109 FLR 400 at 406, and Clavell v Burgoyne [2003] NTSC 29.
As I said in The Queen v TT, subject to any mitigating factors and subjective circumstances that might call for a lower sentence, if a sentence is accurately described as around the mid-range of seriousness for offences of that nature, one might expect a starting point, before application of any reduction for a guilty plea, remorse and co-operation with authorities, of somewhere around the mid-range of available sentences, taking into account the maximum, while bearing in mind that, in appropriate cases, that range of available sentences also encompasses a range of non-custodial sentencing dispositions.[9]
Taking into account the objective seriousness of the offending in counts 1 and 2, the lack of any mitigating circumstances, the appellant’s age, prior criminal history and personal circumstances, as well as the maximum penalties prescribed by the legislature for the two offences (10 years and 14 years), an aggregate sentence of 18 months imprisonment for those two offences cannot be said to be excessive, let alone manifestly so.
Third contention: undue regard to appellant’s early plea
In written submissions, counsel for the appellant said:
Although a 25% discount for early plea was adverted to, the appellant contends that it is difficult to realise any meaningful impact of a 25% discount upon sentence, given the resulting sentence of 18 months for each count.
This submission simply does not make sense. First, there was not a sentence of 18 months for each of counts 1 and 2; there was an aggregate sentence of 18 months for counts 1 and 2. Second, the “meaningful impact” of a 25% discount is very easy to discern: the sentence was reduced by 25% from a starting point of two years. For the reasons already stated, this starting point was not manifestly excessive.
The appellant has not shown any error of principle by the sentencing judge and has not shown that the sentence was clearly and obviously excessive.
The appeal is dismissed.
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[1] Rigby v Benfell [2020] NTCA 9 at [42]
[2] Both come under s 213(4) of the Criminal Code and carry a maximum penalty of imprisonment for 10 years.
[3] [2005] HCA at [30] – [31]
[4] [2021] NTCCA 7 at [25] and [49] – [50]
[5] [2016] NTCCA 4 [48] – [49]
[6] Wheeler v Eaton [2012] NTSC 80 at [17] referring to Taylor v Malagorski [2011] NTSC 98 at [24] and C v Gokel [1999] NTSC 93 at [14]-[15].
[7] The jurisdictional limit of imprisonment for two years “upon being found guilty summarily” has been removed from s 188 of the Criminal Code.
[8] [2011] NTSC 98 at [24]
[9] This is not to say it is a two part process. Determining an appropriate sentence is a matter of instinctive synthesis. As I also emphasised in that case, the appropriate sentence (or range of available sentences) depends on the whole of the circumstances of the offending including the subjective circumstances of the offender.
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