Qd v Morgan
[2018] ACTSC 157
•30 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | QD v Morgan |
Citation: | [2018] ACTSC 157 |
Hearing Date: | 30 May 2018 |
DecisionDate: | 30 May 2018 |
Before: | Elkaim J |
Decision: | See [20] |
Catchwords: | APPEAL – GENERAL PRINCIPLES – Appeal against sentence – whether the sentences imposed were manifestly excessive – whether the Magistrate properly considered alternative sentence options – whether the Magistrate erred in failing to give adequate effect to the principle of totality |
Cases Cited: | McElholum v Hughes [2016] ACTCA 37 |
Parties: | QD (Appellant) Taran Morgan (Respondent) |
Representation: | Counsel Ms M Keaney (Appellant) Ms M Smith (Respondent) |
| Solicitors Darryl Perkins Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 12 of 2018 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Campbell Date of Decision: 23 February 2018 Case Title: Department of Public Prosecutions v [QD] Citation: CC 13654 of 2017 |
ELKAIM J:
On 23 February 2008, Magistrate Campbell sentenced the appellant as follows:
(a)CC 17/13654 (Contravene Family Violence Order): Conviction recorded; sentenced to the rising of the Court.
(b)CC 17/13655 (Contravene Family Violence Order): Conviction recorded; sentenced to the rising of the Court.
(c)CC 17/13656 (Contravene Family Violence Order): Conviction recorded; sentenced to the rising of the Court.
(d)CC 17/13657 (Contravene Family Violence Order): Conviction recorded; sentenced to the rising of the Court.
(e)CC 17/13658 (Contravene Family Violence Order): Conviction recorded; imprisonment for one month, commencing on 26 December 2017.
(f)CC 17/13659 (Contravene Family Violence Order): Conviction recorded; imprisonment for two months, consecutive on CC17/13658.
(g)CC 17/13660 (Contravene Family Violence Order): Conviction recorded; imprisonment for one month, concurrent with CC 17/13659.
(h)CC 17/13661 (Contravene Family Violence Order): Conviction recorded; imprisonment for two months, consecutive on CC 17/13659.
(i)CC 17/13662 (Contravene Family Violence Order): Conviction recorded; imprisonment for one month, consecutive on CC17/13661.
(j)CC 17/13994 (Contravene Family Violence Order): Conviction recorded; imprisonment for eight months, six months of that period to be consecutive on CC17/13662.
(k)A Non-Parole Period of seven months, from 26 December 2017 to 25 July 2018, the total period of imprisonment being 12 months.
The appellant filed a Notice of Appeal on 23 March 2018. An Amended Notice of Appeal was filed in court today. The grounds in the amended notice are as follows:
(a)That the sentence was manifestly excessive in all respects.
(b)The sentencing Magistrate did not properly consider alternative sentencing options, other than a sentence of fulltime imprisonment with a parole component.
(c)The learned Magistrate erred in failing to adequately give effect to the principle of totality.
The appeal is by way of rehearing. Before there can be any change to the Magistrate’s orders, there must be an identification of error. I state at the outset that I entirely agree with all of the Magistrate’s observations about the seriousness of offences of the type committed by the appellant, the need to protect the victims of domestic abuse and harassment, the need, in circumstances like the present, to send a message of deterrence both to the offender and to the public at large and the need to emphasise the respect that must be instilled in persons who are subject to Court orders to obey those orders.
The matters raised on the appeal were widespread. I disagree with most of the submissions put on behalf of the appellant. As a general statement, I agree with the learned Magistrate. However, as will be seen below, there are two issues on which I disagree.
Four of the convictions were dealt with by the appellant being sentenced to the rising of the court. There can certainly be no complaint about these sentences. Five of the convictions resulted in terms of imprisonment of one or two months. There can be no complaint about these sentences. The tenth, and last in time, offence was dealt with by the imposition of a sentence of eight months’ imprisonment.
I think there has been an error on the part of the learned Magistrate, in two respects:
(a)The Magistrate did not give due consideration to the appellant’s mental health condition at the time the offences were committed.
(b)The difference in length between the sentences of one or two months and the sentence of eight months is, with respect, not adequately explained. The difference is also not justified by the comparative facts between the offences.
The learned Magistrate dealt with the mental health history in this way:
I’ve heard that the defendant has had some alcohol abuse issues, that he’s been on significant medication for arthritis and that he has some mental health issues, but there’s no cogent evidence before me that would enable me to make any causal connection between drug use or alcohol abuse in this context, bearing in mind that I’m told that in fact he might have been in a hospital at the time of sending the messages. That perhaps provides some confirmation that there must have been some mental health issues at the time if he was in AMHU for six weeks, although again there is no evidence to establish that but I have no reason to disbelief [sic] it. But nevertheless there is no basis for me making a finding of reduced moral culpability based on for example mental health conditional use of either drugs or alcohol in the absence of expert evidence.
The learned Magistrate was obviously constrained by the limited material that had been placed before her concerning the appellant’s mental health history. Nevertheless, she did have material before her which is, in my view, inconsistent with her observations. The Pre-Sentence Report, in particular, clearly raised a compelling inference that the appellant’s mental health was a product of, or at least had been exacerbated by, the breakdown of his relationship with the victim. The report states:
Mr [QD] reported he attempted suicide in November 2017, after separating from his wife and his children being removed from his care. He reported that he overdosed in his garage using alcohol and prescription medication. He denied any suicidal ideations.
A letter from ACT Health dated 7 February 2018, outlined that Mr [QD] has been diagnosed with self-reported depression, anxiety and borderline personality disorder. The letter further reported that Mr [QD] is currently engaged with the Assertive Response Team in the AMC and prescribed Amitrityline.
In my view, there was evidence upon which the Magistrate should have concluded that the appellant’s mental health history played at least a part in the commission of the offences. This ‘part’ should have been taken into account in the assessment of sentence.
If this was the only indication of error, I would have been very reluctant to interfere with the Magistrate’s discretion. However, I think the second error is more significant.
The Magistrate seems to have treated the tenth offence as being more serious because of its form – namely, as a long letter rather than a text or voicemail message. Her Honour said:
There were messages of love and missing her, but an intrusion into her life and talking with a sense of familiarity which she clearly had rejected long before that and must have been very frustrating. In relation to the letter at Christmas time, I do accept that perhaps for a number of reasons is the most serious of the offences, not only because it was the last in time because it was in writing and it wasn’t ephemeral, it was a long one. But in fact even that shows the defendant’s lack of understanding or perhaps not, I’m not sure, but his lack of concern about the concerns of the complainant, “I don’t expect you to be a stay at home wife, but sometimes I may like to tag along as well. I don’t show it but I love being with you anywhere, or you could help me in the garden or other things around the house”. That sounds very nice except that they’re separated and she has made it clear she doesn’t want the relationship to continue.
“I am not asking for the DVO to be squashed, I want you to feel safe”. He has a funny way of showing it. “But I would like to in time have it changed so I could stay over some nights in our bed or on the lounge, whatever made you happy. Even with the AVO we could go on date nights and outings as long as I SMS and get your approval”. And so he goes on. A total lack of awareness or insight that an order is in place and that he must abide by it, but that this lady has sought that order because the very things he is suggesting are not things that she is interested in and I imagine that they too would have added to her anxiety and stress, sense of frustration, perhaps humiliation, I’m not sure but just that writing to her, continuing to ignore the order and as though he had a right to raise those sorts of matters with her when it was clear that he no longer did.
The first point I would make, accepting that it involves a degree of pedantry, concerns the observation that the message was in writing and was not “ephemeral”. The quoted word is defined in the Oxford Dictionary as “lasting or of use for only a short time; transitory”. The Macquarie Dictionary has a similar definition: “lasting only a day or a very short time; short-lived; transitory”.
A text message or a voicemail message is not more short-lived than a letter. It lasts for such time as it exists before being deleted. A letter lasts for as long as it has not been destroyed. The fact that the message was a letter rather than a text message or a voicemail should make no difference.
What does make a difference is the content of the letter, the manipulation involved in using the children to bring the letter to the victim’s notice and the fact that the letter was sent when the appellant was on bail. In addition, I accept that, as it was the last of the offences, it had an added seriousness because the earlier offences were known by the appellant to be illegal. The point at issue is not, however, whether the tenth offence was more serious than the others. It unquestionably was. The more important point is whether it demanded, or justified, a sentence that was four times greater than the next longest sentence. In my view, it did not and was manifestly excessive.
As stated in McElholum v Hughes [2016] ACTCA 37 at [68], a sentence is manifestly excessive when:
…the sentence imposed by the magistrate was so plainly in excess of the mark as to bespeak error of principle and therefore necessitate appellate intervention.
I think that this is the case here. I do not think the leap from two months to eight months can be justified.
Having identified error, I think the sentence for the tenth offence (CC 2017/13994) should be set aside and the appellant resentenced for that offence.
As I have noted above, I do think it is deserving of a greater sentence than the preceding sentences. In my view, a sentence of five months’ imprisonment should be imposed. I will otherwise generally adopt the same structure as the Magistrate.
Although I do not accept the appellant’s criticism of the length of the Non-Parole Period, having regard to the changes I have made, I think the best way forward is to suspend the sentences on 15 June 2018 on condition that the offender enter into a Good Behaviour Order for a period of 12 months from the date of the suspension. This will ensure supervision of the appellant upon his release.
I make the following orders:
(a)All of the sentences imposed by the Magistrate, other than in respect of CC 2017/13994, are confirmed.
(b)The sentence in respect of CC 2017/13994 and the order for a Non-Parole Period are set aside.
(c)In respect of CC 2017/13994, the appellant is resentenced to five months’ imprisonment to commence on 26 April 2018 and end on 25 September 2018.
(d)The sentences of imprisonment are suspended on 15 June 2018 on condition that the offender enter into a Good Behaviour Order for a period of 12 months and comply with his obligations under the Crimes (Sentence Administration) Act 2005 (ACT) and further that he accept the supervision of ACT Corrective Services and obeys all reasonable directions of the Director-General or her delegate for 12 months or such shorter time as the Director-General decides.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 30 May 2018 |
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