R v UG
[2020] ACTCA 8
•4 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v UG |
Citation: | [2020] ACTCA 8 |
Hearing Date: | 4 February 2020 |
DecisionDate: | 4 February 2020 |
ReasonsDate: | 27 February 2020 |
Before: | Murrell CJ, Burns and Mossop JJ |
Decision: | Appeal dismissed. See [84] and [97]. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal on sentence – Whether sentences manifestly inadequate – Whether reasons inadequate – Effect of sentence on family – Accumulation – Approach to sentencing family violence offences – Partly suspended sentence – Discretion to resentence |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) pt 3.2, ss 6, 7, 12, 33, 34(2), Dictionary Crimes Act 1900 (ACT) ss 26, 32(1), 381(1) Supreme Court Act 1933 (ACT) s 37O |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Chin-Charles v The Queen [2019] EWCA Crim 1140 Taylor v The Queen [2014] ACTCA 9 |
Parties: | The Queen (Appellant) UG (Respondent) |
Representation: | Counsel S Saikal-Skea (Appellant) M Jones (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Kamy Saeedi Law (Respondent) | |
File Number(s): | ACTCA 49 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 16 October 2019 Case Title: R v UG Citation: [2019] ACTSC 290 |
THE COURT
The appeal
The Crown appealed against sentences imposed on the respondent by Elkaim J (the sentencing judge), asserting that the sentencing judge had failed to properly assess the objective seriousness of the offending conduct and that the sentences were manifestly inadequate: R v UG [2019] ACTSC 290 (UG).
On 4 February 2020, we dismissed the appeal and advised that reasons would be given at a later date. These are our reasons.
The offences were committed on 9 March 2019. On 10 March 2019, the respondent was arrested. He was charged with eight offences and ordered to undergo a mental health assessment. He remained in custody until 1 May 2019, when he was granted bail.
On 2 April 2019, the respondent pleaded not guilty to all charges. Following discussions between the parties, on 13 August 2019 in the Magistrates Court, the respondent pleaded guilty to six charges and was committed to the Supreme Court for sentence.
On 16 October 2019, the sentencing judge imposed a total sentence of 16 months’ imprisonment, from 23 August 2019 to 22 December 2020. The offences and related sentences were as follows:
(a)Damage property valued at more than $1,000, contrary to s 403(1) of the Criminal Code 2002 (ACT) (Criminal Code)—six months’ imprisonment (reduced from nine months’ imprisonment), from 23 August 2019 to 22 February 2020.
The maximum penalty is a $160,000 fine, 10 years’ imprisonment, or both.
(b)Aggravated dangerous driving, contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT)—nine months’ imprisonment (reduced from 12 months’ imprisonment), from 23 March to 22 December 2020 (and a 12-month automatic licence disqualification period).
The maximum penalty is a $48,000 fine, three years’ imprisonment, or both. There is an automatic driver disqualification period of 12 months.
(c)Make a demand with threat to kill, contrary to s 32(1)(a) of the Crimes Act 1900 (ACT) (Crimes Act)—14 months’ imprisonment (reduced from 18 months’ imprisonment), from 23 August 2019 to 22 October 2020.
The maximum penalty is 20 years’ imprisonment.
(d)Transferred charge of common assault, contrary to s 26 of the Crimes Act— three months’ imprisonment (reduced from four months’ imprisonment), from 23 August to 22 November 2019.
The maximum penalty is two years’ imprisonment.
(e)Transferred charge of common assault, contrary to s 26 of the Crimes Act— three months’ imprisonment (reduced from four months’ imprisonment), from 23 August to 22 November 2019.
The maximum penalty is two years’ imprisonment.
(f)Transferred charge of possession of offensive weapon with intent, contrary to s 381(1) of the Crimes Act—six months’ imprisonment (reduced from nine months’ imprisonment), from 23 August 2019 to 22 February 2020.
The maximum penalty is a $2,000 fine, one year’s imprisonment, or both.
The sentencing judge suspended the total sentence of 16 months’ imprisonment after the respondent had served four months’ imprisonment (i.e. from 22 December 2019), on the condition that the respondent enter a 12-month good behaviour order.
A notice of appeal was filed on 31 October 2019. In the context of the release date of 22 December 2019, the Crown sought expedition of the appeal, but expedition was refused.
Initially, the Crown appealed on the two grounds that:
(a)The sentencing judge had made a specific error in that his Honour had failed to properly assess the objective seriousness of the offending conduct.
(b)The sentences were manifestly inadequate:
(i)The sentence for the offence of making a demand with a threat to kill was manifestly inadequate and failed to reflect the maximum available penalty.
(ii)The sentences were inadequately accumulated, resulting in a total sentence that was manifestly inadequate.
(iii)The sentences were suspended after only four months.
However, at the hearing of the appeal, the Crown agreed that the first ground was not a separate ground of appeal raising specific error, but an argument supporting the second ground (manifest inadequacy).
The Crown did not argue that the sentencing judge had inadequately discounted the sentences for the pleas of guilty. His Honour had stated that the discount should be “about 20%” but had allowed discounts approaching 25 per cent: at [10].
The sentencing proceedings
The offences
At the time of the offences, the respondent and the complainant lived together. They had been in a relationship for eight years. They had four children (aged one, three, four, and six years old).
On Saturday, 9 March 2019, the respondent neglected to take prescribed antidepressant medication and drank a significant quantity of alcohol.
At about 6.45pm, the complainant went to the bedroom to nap. The respondent entered the bedroom, locked the door, said that he wanted to commit suicide, and began to argue with the complainant. She attempted to dissuade him from committing suicide. The argument escalated.
When the complainant tried to leave the room, the respondent grabbed her shoulders and pushed her onto the bed (common assault). From a wardrobe, he retrieved a single-edged axe with a 70-centimetre handle. The complainant tried to wrestle the axe from the respondent. Using both hands to grip the axe handle, the respondent swung the axe at the bedhead. The complainant jumped back and crouched by the bed. The respondent pushed her to the ground (second common assault).
The complainant begged for her life. The respondent swung the axe near the complainant’s head as she moved forward. The axe narrowly missed her head (possess offensive weapon with intent).
The respondent swung the axe at various items in the bedroom and adjacent ensuite bathroom.
From outside the bedroom door, the couple’s eldest daughter pleaded for the respondent to stop. The respondent left the bedroom.
The complainant escaped through a window and called the police. She did so because she “didn’t want to lose [the respondent]”, rather than because she wanted the police to arrest the respondent.
The respondent moved through the house, using the axe to damage furniture, walls, a glass door, and fittings (damage property).
The respondent ordered the four children to get into the car. They were crying. The respondent drove the vehicle around a circuit of the street before returning to the residence.
The respondent demanded that the complainant get into the car. She pleaded for him to release the children first.
The police arrived. They positioned their patrol car in such a way as to prevent the respondent from fleeing in his vehicle. However, the respondent manoeuvred his vehicle onto the road, with the children still in the vehicle.
The respondent drove back towards the residence, colliding with the police vehicle and forcing an officer to retreat to a safer position.
The respondent’s vehicle then accelerated away from the scene.
After a short time, the respondent drove back to the residence and demanded that the complainant “get in the fucking car”. He produced the axe to the police, handling it in an intimidating manner.
The respondent then held the axe blade to the throat of his eldest daughter, who was seated in the front passenger seat, while he continued to demand of the complainant that she “get in the fucking car or I’ll put this through their [daughter’s] fucking face” (make demand with threat to kill).
The complainant tried to walk towards the vehicle, but police stopped her. When police walked towards the vehicle, the respondent drove away at speed with the children still in the vehicle (aggravated dangerous driving).
Police commenced a large-scale search.
At about 11pm, police located the respondent at his uncle’s residence. The respondent’s uncle advised the police that the respondent was asleep inside and that he had removed the axe from the respondent. After cordoning off the house, the police entered the house and arrested the respondent.
The four children were physically unharmed. Police returned them to the complainant’s care. Later, the respondent’s eldest daughter was assessed by a paediatrician, who opined that the offences were likely to have significantly impacted on her emotional and behavioural wellbeing.
The respondent’s subjective circumstances
At the time of the offences, the respondent was 27 years old.
His criminal history included driving offences and two offences of common assault. For each offence of common assault, the respondent had received a 12-month good behaviour order.
The first assault had occurred in a park on 21 December 2013. On that occasion, the respondent placed both hands on the complainant’s chest and pushed her backwards onto the ground as she approached him for the purpose of returning a shirt. He held her arms and shook her. When police attempted to intervene, the respondent resisted and the police had to use oleoresin capsicum spray to effect an arrest. After they did so, the respondent continued to resist arrest.
The second assault had occurred on 9 February 2014, when the respondent and two co-offenders punched other men outside of a Civic nightclub. Two victims were taken to hospital.
In relation to driving offences, on 4 May 2013, while the holder of a learner driver’s licence, the respondent drove a vehicle without supervision and under the influence of alcohol. He was fined and disqualified from driving. On 26 September 2015, the respondent again drove without supervision and under the influence of alcohol. On the second occasion, his vehicle was unregistered and uninsured. The respondent received a 12-month good behaviour order and his licence was suspended.
The respondent experienced a relatively uneventful childhood. One of five children, he was raised by hard-working parents. He completed Year 12 and was employed as a labourer at the time of the offences.
The author of the pre-sentence report assessed the respondent’s alcohol use as high risk. At the time when he was assessed, the respondent said that he had abstained from alcohol for six months.
For most of his life, the respondent has suffered from depression. On three occasions, he has attempted to commit suicide. At the time of sentence, he was receiving antidepressant medication and undergoing anger management counselling.
The respondent was close to his children.
The sentencing judge’s reasons
Relevantly, the sentencing judge made the following remarks (at [3], [10]–[18]):
The facts of the offences describe domestic violence at its worst. The offender terrified his partner with an axe. He swung it dangerously close to her head. He used it to break assorted items in the home. He drove a car with his four children in it at dangerous speeds. He threatened one of his children with the axe and told his partner to get into the car or he would use the axe on the child.
…
The offender has a criminal record which includes matters of domestic violence. …
I think the threat charge is objectively serious. A child was involved, an axe was used and there were other children present. The presence of the children puts the dangerous driving charge in the same category. The other charges are just above medium objective seriousness. The breach of trust as between the offender and the children aggravates the offences.
General deterrence is a major factor here. Fathers and partners must know that behaviour that threatens or harms their family is unacceptable and will not be tolerated by the law.
I have been asked to consider an Intensive Correction Order assessment. I have some sympathy for this approach but ultimately the seriousness of the offending, in particular in relation to the threat charge and the involvement of the children means that full-time imprisonment is the only option.
However I do not think the whole period of imprisonment needs to be served by way of full-time custody. The offender has shown remorse and a willingness to engage in rehabilitation. This must be encouraged. I intend to suspend a part of the sentence.
Finally, I would like to say something about the support now coming from the offender’s partner. It is indeed admirable upon her part that, having witnessed the horrific events that led to the charges, she can bring herself to support the offender. I also understand that she will suffer financial hardship if he is not working for a period of time.
Nevertheless I do not see I have any choice. The children may not have apparently suffered any ill effects from the incident. I have no doubt however that emotionally and mentally there has been an impact.
The Crown referred me to R v HC [2018] ACTSC 49 where I made comments about domestic violence matters. In that case I imposed a fully suspended sentence. The distinction in the facts however is sufficient to illustrate why such a course is not open here.
Although there are six separate offences, they all arise from the same incident. I intend to apply a good deal of concurrency. I will commence the sentences from 23 August 2019 to take account of the 54 days already spent in custody.
The principles applying to Crown sentence appeals alleging manifest inadequacy
Recently, in R v Nicholas; R v Palmer [2019] ACTCA 36 (Nicholas), this Court summarised the principles applying to a Crown sentence appeal alleging manifest inadequacy in the following way (at [66]–[68]):
A claim that a sentencing judge has erred in the exercise of their discretion calls into question a quintessentially discretionary decision: Lowndes v The Queen [1999] HCA 29; 195 CLR 665, and in this Court see, for example, Henry v The Queen [2019] ACTCA 5. An appellate court must respect the wide discretion of the sentencing judge concerning an appropriate sentence.
The principles applicable to any appeal alleging that a sentence is manifestly wrong were summarised in Dalton v The Queen [2015] ACTCA 48 at [18]:
· Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge.
· The relevant test is whether the sentence is unreasonable or plainly unjust. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice.
· In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles.
· It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence.
(citations omitted)
In the case of Crown appeals alleging manifest inadequacy of a sentence, the correct approach was recently summarised in R v Rappel [2019] ACTCA 11 at [10], where the Court stated:
As this Court said in R v Lee [2017] ACTCA 30 at [53], a Crown appeal against sentence is a “unique species of appeal” … Such appeals “constitute an anomaly in the criminal justice system and so should be instituted sparingly”: R v TW [2011] ACTCA 25; 6 ACTLR 18 at [3]. Appropriate occasions that might arise for the bringing of a Crown appeal, include, as stated in R v Clarke (1996) 2 VR 520 at 522:
(a) to correct a sentence that reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle;
(b) to enable the Court to establish and maintain adequate standards of punishment;
(c) to ensure uniformity in sentencing, so far as the subject matter permits.
In R v Duffy [2014] ACTCA 53; 297 FLR 359 at [60], the Court said:
It will be very difficult for the Crown to succeed on an appeal where it relies solely on “manifest inadequacy” and seeks to infer an error of principle from the length and/or nature of the sentence. Whereas offender appeals are concerned with the correction of error in particular cases, prosecution appeals are brought to establish matters of principle. In prosecution appeals, the focus must remain firmly on the question of whether there has been an error of principle.
As to the utility of particularising a claim of manifest inadequacy (or, for that matter, manifest excess), we agree with the observations of Priest JA in Director of Public Prosecutions v Ristevski [2019] VSCA 287. At [62], His Honour (with whom Ferguson CJ and Whelan JA agreed, except in relation to the appropriate resentence) said:
Much of the argument on the appeal seemed directed to assertions of specific error. That may be because, as has become customary, the ground of appeal complaining of manifest inadequacy had six subjoined ‘particulars’. In my opinion, however, supposed particulars of manifest inadequacy are, at best, a distraction; and at worst, are calculated to subvert the essential inquiry that must be made when it is asserted that a sentence is manifestly inadequate. Indeed, undue attention to ‘particulars’ invites a piecemeal consideration of the relevant features of a case, inconsistent with an approach which intuitively synthesises all relevant factors.
Preliminary issues
Before we discuss whether, individually or collectively, the sentences imposed in this case were manifestly inadequate and, if so, whether we should resentence the respondent, we will consider three issues raised on the appeal: the correct approach to sentencing for family violence offences; the correct manner of dealing with the effect of a sentence of imprisonment on the offender’s family; and the extent to which a sentencing court must give reasons.
Sentencing for family violence offences
The Crown submitted that the objective seriousness of the offences was informed by the fact that they were “disturbing acts of family violence” and emphasised the importance of maintaining an adequate standard of punishment for “family violence offences”. At least by implication, the Crown contended that “family violence offences” constitute a special category of offence in relation to which different sentencing principles apply.
Without doubt, the offences could be characterised as serious “family violence” offences, both as a matter of obvious fact and because they were “family violence” offences within the meaning of s 34(2) and the Dictionary to the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which defines a “family violence offence” by reference to the definition in the Dictionary to the Family Violence Act 2016 (ACT) (Family Violence Act) which, in turn, refers to the behaviour described in s 8 of the Family Violence Act.
We disagree with the contention impliedly advanced by the Crown. Absent any statutory provision to the contrary, in a criminal justice system based on individualised justice, there is no place for a separate sentencing regime that applies to offenders who commit “family violence offences” (or any other general category of offences), whether it be a more lenient or a more severe sentencing regime. We note the terms of s 6 of the Sentencing Act (see [80] below), and that s 8 of the Human Rights Act2004 (ACT) expressly recognises that everyone is equal before the law.
The Crown’s approach is analogous to that rejected by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), where the Court affirmed that, absent a contrary statutory provision, a sentencing court should apply the same sentencing principles to all offenders. At [36]–[37] and [41], the Court said:
There is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice.
An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence.
…
[T]he appellant's submission that courts should take judicial notice of the systemic background of deprivation of Aboriginal offenders cannot be accepted. It, too, is antithetical to individualised justice. Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices, but to recognise this is to say nothing about a particular Aboriginal offender.
(citations omitted)
In relation to the application of a separate sentencing regime to family violence offences, s 34(2)(a) of the Sentencing Act expressly addresses the issue, but not in a way that assists the Crown. It provides:
(2) In deciding how an offender should be sentenced for an offence, a court must not reduce the severity of a sentence it would otherwise have imposed because—
(a) the offence is a family violence offence; or
…
There is no mention of increasing the sentence that a court would otherwise have imposed.
When sentencing a particular offender for a “family violence offence”, the usual sentencing principles apply. This means that, when relevant to the particular case and subject to the De Simoni principle (R v De Simoni (1981) 147 CLR 383), the sentencing court will take into account matters that are frequently associated with “family violence offences”. These matters include:
(a)whether the offence forms part of a course of conduct (Sentencing Act s 33(1)(c));
(b)whether and how a weapon was used;
(c)whether the offence was associated with actual or threatened violence;
(d)the impact on victims (Sentencing Act s 33(1)(f)); and
(e)whether the offender was in a position of trust or authority vis-à-vis the victim (Sentencing Act s 33(1)(u)), which is usually—perhaps even “necessarily”—the case in relation to domestic violence offences: see R v Kilic [2016] HCA 48; 259 CLR 256 at [28].
However, such factors are not taken into account because the offence can be labelled a “family violence offence”, but because they attach to the particular offending conduct.
Effect of sentence on family
The appeal raised the issue of the proper approach to the consideration mandated by s 33(1)(o) of the Sentencing Act, “the probable effect [of the proposed sentence] on any of the offender’s family or dependants”.
The argument assumed that the effect of a proposed sentence must be shown to be out of the ordinary before it can affect the sentencing outcome. The respondent submitted that, in this case, the effect was out of the ordinary; in contrast to most modern families, the respondent was the sole breadwinner for his family and, because of the number and age of the children, his partner could not work.
The Crown submitted that, in the case of “family violence offences”, sentences should not be reduced because of the financial impact of imprisonment on the family or for other reasons such as that the family had forgiven the offender or the offender was remorseful; such considerations were routinely associated with “family violence offending” and should not result in sentences that were routinely more lenient.
The Crown’s argument must be rejected. As explained above, offenders who commit “family violence offences” are not subject to a special sentencing regime.
As to any requirement that the effect of a sentence on family can be taken into account only when it is out of the ordinary, in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299, having considered several authorities, Refshauge J concluded at [82]:
On the basis of these authorities, then, it seems to me that the approach that should be taken is that the effect of the sentence on the family and dependants of the offender should be taken into account, but will only result in any significant leniency where the effect is more severe or prejudicial than the inevitable and usual consequence of the imposition of a proper sentence or where it will not overwhelm the proper statutory purposes for which the sentence should be imposed.
In reaching that conclusion, an authority upon which his Honour relied was Craft v Diebert [2004] ACTCA 15, a decision that was not concerned with the Sentencing Act, but with earlier legislation.
As noted above, under s 33(1) of the Sentencing Act, the probable effect of a proposed sentence on an offender’s family or dependents is one of many mandated considerations. While all known and relevant factors must be considered, s 33(4) of the Sentencing Act provides:
(4) The fact that any relevant factor is known to the court does not require the court to increase or reduce the severity of the sentence for the offence.
However, the Sentencing Act does not expressly distinguish between the s 33(1) mandated considerations by providing that some considerations must raise a matter that are out of the ordinary before they can affect the outcome.
In this case, it is neither appropriate nor necessary to determine the proper approach to s 33(1)(o) of the Sentencing Act. Even assuming that it is probable that a substantial period in custody would have a significantly adverse financial impact on the respondent’s family, and either that the impact is more severe than would usually be the case or that the impact can be taken into account regardless of whether it is more severe than would usually be the case, that is not an end to the matter. Section 33(1)(o) is not only concerned with the financial effect of a proposed sentence. For example, in this case, one may also have to consider the probable psychological effect of the length of the respondent’s incarceration on the respondent’s family. On the evidence, it is far from clear that such an exercise would weigh in favour of a shorter custodial period.
Reasons for sentence
In support of its argument that the sentencing judge had failed to recognise the objective seriousness of the offending conduct, particularly that relating to the offence of making a demand with threat to kill, the Crown complained that, in his sentencing remarks, the sentencing judge had failed to refer to the vulnerability of children as victims of family violence, failed to acknowledge the exploitation of the power imbalances that often mark family violence offending, and made only “perfunctory reference” to the impact of the offences on the victims and the respondent’s criminal history, which included prior offences of a similar nature.
The sentencing judge’s remarks were relatively brief, but his Honour did commence with an assessment of the objective seriousness of the offences, describing them as “domestic violence at its worst”. His Honour referred to the use of a weapon, the impact on the child victim, and the breach of trust: see the passages cited at [40] above.
Neither the Sentencing Act nor the general law requires a sentencing judge to give lengthy reasons. The delivery of ponderous reasons that rehearse every conceivable consideration should be avoided as it is inimical to the prompt sentencing of offenders in a manner that is clearly communicated to the community and victim. We agree with the following observations of the Court of Appeal in Chin-Charles v The Queen [2019] EWCA Crim 1140, albeit that the observations concern sentencing within a different statutory framework (at [7]–[8]):
There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience identified by Parliament. This has led to longer and longer remarks. It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues. This should be avoided. …
The task of the Court of Appeal is not to review the reasons of the sentencing judge as the Administrative Court would a public law decision. Its task is to determine whether the sentence imposed was manifestly excessive or wrong in principle. Arguments advanced on behalf of the appellants that this or that point was not mentioned in sentencing remarks, with an invitation to infer that the judge ignored it, rarely prosper. Judges take into account all that has been placed before them and advanced in open court and in many instances, have presided over a trial. The Court of Appeal is well aware of that.
There was no error in the way in which the sentencing judge expressed his reasons for sentence. The fact that there was no reference to some matters and only brief reference to others does not, of itself, permit an inference that his Honour failed to take into account all the evidence that was relevant to an assessment of the objective seriousness of the offending conduct.
Were the sentences manifestly inadequate?
The Crown submitted that the sentences were manifestly inadequate in three respects. First, the length of the sentence for the offence of making a demand with threat to kill was manifestly inadequate; it failed to reflect the objective seriousness of the offence and the maximum available penalty. Second, the very limited degree to which the sentences were accumulated meant that the total sentence was manifestly inadequate. Finally, the sentences subjected the respondent to fulltime imprisonment for a period of only four months, which was manifestly inadequate having regard to relevant sentencing purposes.
Sentence for making a demand with threat to kill
We accept the Crown submission (adopting observations of Latham J in R v Cage [2006] NSWCCA 304 at [17]) that any sentencing exercise requires the sentencing court to first consider the objective gravity of the offence because, absent an assessment of objective gravity, other sentencing considerations cannot be given their proper place. We accept that the respondent’s conduct was objectively very serious and should be denounced.
At the time of the offences, the respondent was experiencing acute mental health difficulties or, as counsel for the respondent put it, a “mental health crisis” that led to an “explosion”.
The offender’s florid mental health condition was causally related to the offending conduct. The existence of a causal connection between a mental health condition and offending will not necessarily reduce a sentence; it depends upon the way in which the relationship informs sentencing purposes: Bugmy at [47], citing Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 71. However, in this case, we consider that the offender’s mental health condition did inform sentencing purposes. It was causally connected to the offending conduct and somewhat reduced his moral culpability, impacting on the associated sentencing purpose of accountability.
Despite the existence of a florid mental health condition that was causally related to the offending, there was still a role for the sentencing purposes of general deterrence and denunciation.
On the other hand, the offender had taken significant steps to address his mental health condition, suggesting that he was capable of rehabilitation.
Nevertheless, we consider that the sentence starting point of 18 months’ imprisonment for the offence of making a demand with threat to kill was plainly unreasonable. It failed to reflect that the offence was of high objective seriousness, particularly having regard to the use of a weapon, the presence of a number of children, the relationship between the respondent and his partner and children, and the inevitably serious impact on the respondent’s partner and children. It failed to reflect the sentencing purposes of general deterrence and denunciation.
Accumulation
The Crown contended that the degree of accumulation was wholly inadequate to reflect the totality of the criminal conduct. In relation to the principal offences of making a demand with threat to kill, aggravated dangerous driving, and damaging property, the individual sentences were 14 months’ imprisonment, nine months’ imprisonment, and six months’ imprisonment, respectively, but the high degree of concurrency between the sentences resulted in a total sentence of only 16 months’ imprisonment.
The principles concerning the correct structuring of a total sentence were summarised by this Court in O’Brien v The Queen [2015] ACTCA 47 at [26] and recently restated in Nicholas at [87]–[96]. The sentencing court must consider the similarities and differences between the offences, including their temporal relationship, the degree to which the substance of the offending conduct is the same, and whether the offences affected the same victim. In Nicholas at [95]–[96], referring to R v TW [2011] ACTSC 25; 6 ACTLR 18 at [83], the Court approved observations of Penfold J in which her Honour had emphasised that there was no single correct approach to the structuring of multiple sentences. In Nicholas at [91], the Court affirmed that the ultimate question was whether the total sentence (however that was structured) was “just and appropriate” having regard to the overall criminality.
In this case, the degree of accumulation failed to achieve a total sentence that was just and appropriate to reflect the overall criminality. Although there was a close temporal relationship between the offences and they were part of the same course of conduct, each was a different type of conduct. The aggravated dangerous driving offence endangered each of the children present in the car, and it was committed in the context of an attempt to evade police. The offence of damaging property involved the deliberate use of a weapon to damage many items in the victim’s home. Each of the principal offences was a serious offence of its type.
Yet the sentence imposed for the driving offence added only two months to the total sentence and the sentence imposed for the offence of damaging property was made entirely concurrent. This meant that the total sentence failed to reflect the significant additional criminality associated with each of those offences.
Period of fulltime imprisonment
The Crown’s complaint was addressed to the period that the offender was required to serve by way of fulltime imprisonment. The Crown did not contest the appropriateness of imposing a partly suspended sentence under s 12 of the Sentencing Act; rather, the Crown relied upon what was said to be the “unusual relationship between the head sentence and minimum term”.
This approach incorrectly assumed that, in the case of a partly suspended sentence, the relationship between the unsuspended and suspended periods should resemble the relationship between the nonparole and parole periods of a sentence of fulltime imprisonment.
Both parties referred to Taylor v The Queen [2014] ACTCA 9 (Taylor) at [19], where the Court summarised the proper approach to fixing a nonparole period, observing that an offender’s prospects of rehabilitation were generally important to the exercise.
The reference to Taylor was unhelpful. Although prospects for rehabilitation will generally be important to a decision to make an order under s 12 of the Sentencing Act whereby a sentence is partly suspended, in making such an order a sentencing court does not engage in the de facto fixing of a nonparole period. In relation to a partially suspended sentence, there is no “usual relationship” between the part served and the part suspended.
When considering whether and how s 12 of the Sentencing Act should be employed, it is relevant to consider the s 6 objects of the Sentencing Act:
6 Objects of Act
The objects of this Act include the following:
(a) to promote respect for the law and the maintenance of a just and safe society;
(b) to provide a range of sentencing options;
(c) to maximise the opportunity for imposing sentences that are constructively adapted to individual offenders;
(d) to promote flexibility in sentencing;
(e) to consolidate legislation relating to the imposition of sentences.
The existence of the sentencing option of a partly suspended sentence provides flexibility. It is a sentencing option that may enable a sentencing court to address a variety of the sentencing purposes in s 7 of the Sentencing Act while reflecting the spirit of pt 3.2 of the Sentencing Act, which indicates that a sentence of fulltime imprisonment should be a sentence of last resort.
A partly suspended sentence may be the sentencing option that is most constructively adapted to a particular offender and their circumstances. For example, it may be used where an offender has served a significant part of the total term, and the sentencing court wishes to ensure that the offender is released promptly and without the need to undergo a parole assessment process. It may be an appropriate sentence for an offender who has committed a relatively serious offence that, ordinarily, would suggest a significant sentence of fulltime imprisonment, but where the sentencing court considers that s 7 sentencing purposes such as punishment and denunciation can be adequately addressed by a short period of fulltime imprisonment. Alternatively, the sentencing court may wish to retain overall supervision of the offender, permitting a somewhat flexible response to any breach of the good behaviour order (although, prima facie, any significant breach of a good behaviour order will result in the offender serving the sentence in fulltime custody). A sentencing court may consider that a “carrot and stick” approach involving a relatively short period of fulltime imprisonment and a relatively long period of supervision within the community is appropriate for an offender who has not previously served a significant period in fulltime custody and who seems capable of rehabilitation.
As we have decided that, for other reasons, the sentences were manifestly inadequate and as the matter was not fully argued, we do not need to decide whether the unsuspended portion of the sentence was manifestly inadequate. For present purposes, we will assume that it was.
Conclusion regarding manifest inadequacy
We have concluded that the sentence imposed for the offence of making a demand with a threat to kill was too short and that the inadequacy in that regard was exacerbated by the fact that the sentences were inadequately accumulated, resulting in a total sentence that was manifestly inadequate. We have assumed that the unsuspended part of the sentence was manifestly inadequate.
The discretion to resentence
Despite a finding of manifest inadequacy, in the exercise of a discretion under s 37O of the Supreme Court Act 1933 (ACT) (SCA), the Court may decline to resentence an offender.
The Crown accepted that it bore the onus of negating any reason why the appellate court should exercise its discretion to decline to intervene, i.e. the onus of persuading the Court to resentence the respondent: CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346 (CMB). We note that the statutory discretion that was considered in CMB differs from that under s 37O of the SCA: see Nicholas at [115]–[116].
In support of its submission that, in this case, the Court should resentence the respondent, the Crown said that there had been no delay in bringing the appeal, the prospects for rehabilitation were not strong, and it was important to denounce and punish serious family violence offending. The Crown submitted that a failure to resentence would undermine public confidence in the administration of justice.
During the sentencing proceedings, in the context that the respondent’s legal representative had submitted that his Honour should consider imposing an intensive correction order, the Crown submitted that the only appropriate sentence was one that “encompasses an immediate term of imprisonment”.
Contrary to the respondent’s submission on appeal, this was not tantamount to accepting that even a very short term of fulltime imprisonment was adequate.
On 22 December 2019, the respondent was released from custody. He is now pursuing rehabilitation in the community. When he was released, the respondent was aware of the pending appeal. We conclude that his expectations would not be dashed by a return to fulltime imprisonment.
Evidence on the appeal showed that the respondent is progressing towards rehabilitation; he is constructively dealing with his mental health problem and abuse of alcohol and has sought relationship counselling. We infer that a return to the prison environment would disrupt the respondent’s progress towards rehabilitation.
The primary purpose of Crown appeals is to lay down principles for the governance and guidance of sentencing courts: Green v The Queen; Quinn The Queen [2011] HCA 49; 244 CLR 462.
In Director of Public Prosecutions (Cth) v Omar [2019] VSCA 188 at [24], the Court observed that:
Absent a special circumstance of the kind which engages the residual discretion, there is no principled basis for declining to resentence once a sentence has been found to be manifestly inadequate. It would, indeed, be contrary to the fundamental principle of equality before the law for the Court in a case like the present to refrain from resentencing, unless the same course were to be taken in all other like cases.
On the other hand, if an appellate court proceeded to resentence in every Crown appeal establishing manifest inadequacy, regardless of whether it raised any question of principle (i.e. regardless of whether it should have been brought), then the appellate court may encourage the Crown to appeal in cases raising no question of principle.
In effect, we have rejected the Crown’s argument that the appeal raised important questions of principle concerning a special approach that should be taken when sentencing for family violence offences, but we have accepted that, applying general sentencing principles, the sentences were manifestly inadequate.
Further, if this Court resentenced the respondent, the resentence would be of limited precedent value because of the particular circumstances of the case, including that the respondent’s acute mental health problem was causally related to commission of the offences.
We decline to resentence the respondent on the bases that the appeal raised no point of principle, a resentence would be of limited precedent value, and it would be counter-productive to interrupt the respondent’s progress towards rehabilitation in the community.
| I certify that the preceding ninety-seven [97] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Burns, and Justice Mossop. Associate: Date: |
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