Rigby v Burarrwanga
[2022] NTSC 36
•10 May 2022
CITATION:Rigby v Burarrwanga [2022] NTSC 36
PARTIES:RIGBY, Kerry Leanne
v
BURARRWANGA, Jamie Bulyabulya
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: Appeal from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 2 of 2022 (22139923)
DELIVERED: 10 May 2022
HEARING DATE: 4 April 2022 and 5 May 2022
JUDGMENT OF: Barr J
CATCHWORDS:
CRIMINAL LAW – Sentencing – Offences against the person – Aggravated assault, male-on-female, with weapons, causing harm – Sentence indication by Local Court judge – Guilty plea – Manifestly inadequate sentence – Prosecution appeal allowed – Respondent re-sentenced
INTERPRETATION – Statutory interpretation – Local Criminal Court Procedure Act 1928 (NT), s 60AT(2)(d)(i) – Ordinary meaning leads to “unreasonable” result – Interpretation required to avoid result contrary to reason or good sense
Local Criminal Court Procedure Act 1928 (NT), s 60AT(2), s 60AT(2)(d)(i), s 60AY, s 177(2)(c), s 177(2)(f),
Sentencing Act 1995 (NT), s 78CA(3)(b), s 78DD(2), s 78DH(1)
Everett v The Queen [1994] HCA 49, 181 CLR 295; Hili v The Queen [2010] HCA 45, 242 CLR 520; Idai v Malogorski [2011] NTSC 102, 30 NTLR 166, 217 A Crim R 312; R v Duncan [2015] NTCCA 2, 34 NTLR 201, referred to
REPRESENTATION:
Counsel:
Appellant:M Aust
Respondent: J Bourke
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent: North Australian Aboriginal Justice Agency
Judgment category classification: B
Judgment ID Number: Barr2203
Number of pages: 19
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINRigbyv Burarrwanga [2022] NTSC 36
No. LCA 2 of 2022 (22139923)
BETWEEN:
KERRY LEANNE RIGBY
Appellant
AND:
JAMIE BULYABULYA BURARRWANGA
Respondent
CORAM: BARR J
REASONS FOR DECISION
(Delivered 10 May 2022)
This is a prosecution appeal against sentence, brought pursuant to s 163(1) Local Court (Criminal Procedure) Act 1928 (NT) (the “LCCPA”).
On 29 December 2021, the respondent entered pleas of guilty before the Local Court to three charges arising out of offences committed at Galiwinku in the Northern Territory, namely:
Count 1: That between 5 December 2021 and 12 December 2021, he:
Did at Riyalanura Street intentionally or recklessly cause damage to property, namely; an OPPO 2 mobile phone, belonging to another, namely; Chloe Gurruwiwi.
Contrary to section 241(1) of the Criminal Code Act.
Count 2: That between 5 December 2021 and 12 December 2021, he:
Unlawfully assaulted Chloe Gurruwiwi, and that the unlawful assault involved the following circumstances of aggravation:
(i)The complainant suffered harm;
(ii)The complainant was female and the said Jamie Burarrwanga was a male; and
(iii)The complainant was unable to effectively defend herself due to the situation.
Contrary to Section 188(2) of the Criminal Code Act.
Count 3: That on 23 December 2021, he:
Unlawfully assaulted Chloe Gurruwiwi, and that the unlawful assault involved the following circumstances of aggravation:
(i)The complainant suffered harm;
(ii)The complainant was female and the said Jamie Burarrwanga was a male; and
(iii)The complainant was threatened with offensive weapons, namely metal egg-flip and frying pan.
Contrary to Section 188(2) of the Criminal Code Act.
The respondent was convicted of all three offences and sentenced to a total effective sentence of four months imprisonment to be served in full, backdated so as to have commenced on 24 December 2021. With respect to count 1, an order was also made for payment of restitution to the victim in the sum of $439.
The sentence of four months was comprised of two weeks imprisonment for count 1, to be served concurrently with three months imprisonment for count 2, and three months imprisonment for count 3, one month of which was to be served cumulatively upon count 2.
The appellant contends that the individual sentences imposed for counts 2 and 3 were manifestly inadequate. The errors are said to have been compounded by the order for substantial concurrency, in that only one month of the sentence on count 3 was to be served cumulatively on the sentence on count 2.
The sentence imposed was consistent with a sentence indication given by the learned sentencing judge after application by the respondent pursuant to s 60AT of the LCCPA.[1] The sentencing judge had been provided with the statement of facts, the respondent’s information for courts document (criminal history), photographs, a victim impact statement and brief oral submissions from both parties.
On 11 January 2022 the appellant filed a notice of appeal containing the single ground that the total sentence imposed was manifestly inadequate in all of the circumstances.
Facts of offending
The prosecution facts were contained in a document which was tendered by consent.[2] They are set out in full below:
1. The defendant in this matter is Jamie Burarrwanga, a 30 year old male from Galiwinku Community. The victim in this matter is the defendant’s girlfriend, Chloe Gurruwiwi, a 22 year old female from Galiwinku Community. The defendant and the victim have been together approximately five years.
2. One evening during early December 2021, the defendant and the victim were on Riyalanura Street, Galiwinku, near Lot 348, when the defendant took the victim’s phone which was an Oppo 52, valued at $439.00.
3. The victim chased the defendant who threw the phone at the ground, causing it to smash. The victim retaliated and attempted to fight the defendant who overpowered her, dragging her along the road and causing a graze to her left elbow. This was not reported to police at the time.
4. At around 2:30am on Thursday, 23 December 2021, the defendant and the victim were at the victim’s home together at Lot 302 Galiwinku Community. Both the defendant and the victim were intoxicated as they had been consuming homebrewed liquor together earlier in the night.
5. The defendant asked the victim for her (recently acquired replacement) phone. The victim refused to give up her phone out of fear the defendant would damage it.
6. The defendant persisted asking for the phone as he became angry towards the victim.
7. The defendant armed himself with a metal egg-flip, which he used to strike the victim to the rear of her head, causing immediate pain. The victim cried in pain which was heard by witnesses Rickisha Gurruwiwi and Cassandra Gurruwiwi.
8. The defendant entered the kitchen of the house where he armed himself with a metal frypan. The defendant used the frypan to strike the victim a number of times to her back and head, causing immediate pain and a laceration to the victim’s head.
9. The defendant collected the victim’s phone and a portion of pizza which she was in the process of cooking from the oven before walking rapidly away from the victim’s home.
10. Later in the afternoon on the same day, the defendant returned the victim’s phone, however had removed and discarded the SIM card.
11. Witnesses Cassandra Gurruwiwi and Rickisha Gurruwiwi observed the defendant walking away from the house. Witnesses attended to the victim and assisted her in phoning for police.
12. On Friday, 24 December 2021 at 1:33am, Sergeant Rebecca Payne arrested the defendant at the Galiwinku police station. The defendant was later charged and bail considered.
13. At no time did the defendant have permission to assault the victim or damage her property.
Three photos were tendered in evidence showing the area at the back of the victim’s head where she was struck by the metal fry pan.[3] In her victim impact statement, under the heading ‘Physical Harm’, the victim wrote as follows:[4]
I been bleeding on the back of my head. I’ve been paining all over today but mostly on the back of my head and I’ve been feeling dizzy all day.
Details of the respondent’s criminal history were also provided to the court.[5] He was born on 8 August 1991 and so was 30 years old at the time of offending against Chloe Gurruwiwi in December 2021. The respondent had convictions for trespass on enclosed premises and stealing, offences committed at the age of 26 in December 2017. On 13 February 2020, he committed a male-on-female aggravated assault in which harm was caused to the victim. He also contravened a DVO. He was not sentenced for those matters until August 2020, when he was sentenced to terms of imprisonment of 3 months and 7 days respectively, both fully suspended. Before being sentenced in August 2020, he had committed another DVO contravention. For that he was released on a six month good behaviour bond in late February 2020. On 17 November 2020, he committed another DVO contravention, which resulted in a breach of his suspended sentence. For the DVO contravention, he was sentenced to five days imprisonment and, for the breach, four days of the suspended sentence was restored. On 8 February 2021, he committed another aggravated assault in which harm was caused to the victim. On the same day, he committed a DVO contravention. For the assault, he was sentenced to three months imprisonment and, for the DVO contravention, seven days imprisonment to be served cumulatively. In addition, the balance of his suspended sentence for the February 2020 aggravated assault was restored.
In brief, in respect of the period from early February 2020 to December 2021, the respondent had four convictions for DVO contraventions and two convictions for aggravated assault causing harm.
Information about the respondent’s background and personal circumstances, provided to the court for the purpose of the sentence indication, was taken into account after the indication had been given and the respondent had pleaded guilty to the three charges. The court was told that the respondent had been in a relationship with the victim for about three years. They had two children. He was said to have been positively engaged in the community. After leaving school in year 11, he had worked in “community shops”. After his most recent release from custody, he had worked as a gardener in a community project. He recognised that he had engaged in a pattern of violence against his partner which was linked to alcohol consumption. He had expressed willingness to participate in a rehabilitation program.
The judge had also heard submissions from the prosecutor, including as to the prevalence of domestic violence both in Darwin and in remote communities and as to the need for specific deterrence given the respondent’s prior criminal record.
The learned judge’s sentencing remarks were brief:[6]
Mr Burarrwanga, … your history is not looking good. You can keep it up and just spend more and more time in gaol or you can try and get on top of your drinking and control your temper. You are not allowed to hit anyone, certainly [not] your spouse, and picking up a weapon – an egg flip or frypan – and hitting them is just utterly unacceptable and something that is happening, assaults in the community are just too common.
And so parliament has imposed serious penalties, minimum penalties. And you are lucky that your minimum penalty is only three months jail for each time you hit your wife because, if you hit them with a frypan, you could have caused more damage and if you had, you would been looking at a minimum of one year gaol. But I share the concerns of the prosecution that, unless something changes, then your chances of a good, happy future, watching your girls grow up – that you may not be around to do it if you keep doing this.
His Honour then sentenced the respondent, as referred to in [3] and [4] above.
The learned judge’s reference to “serious penalties, minimum penalties”, and his following sentencing remarks, suggest that his Honour was of the understanding that the minimum mandatory period of imprisonment for each offence was the starting point and end point for the sentences to be imposed. That would be contrary to the principle that the regime of mandatory minimum sentences has application only where the sentence which would otherwise have been imposed is less than the legislatively prescribed mandatory minimum.[7]
It should be acknowledged that the legislation which his Honour was required to apply was badly drafted. I refer specifically to s 60AT(2) of the LCCPA, which operates after a defendant applies for a sentence indication, and in particular s 60AT(2)(d)(i):
60ATSentence indication
(1)The defendant may apply for a sentence indication from the Court during criminal proceedings.
(2)The Court may indicate that, if the defendant pleads guilty to a charge at the time of the application, the Court would be likely to impose on the defendant:
(a)if sections 78DG and 78DH of the Sentencing Act 1995 do not apply – a sentence of actual imprisonment to commence at a specified time; or
(b)a sentence of another specified type; or
(c)if section 78DG of the Sentencing Act 1995 applies to the offence –a sentence of actual imprisonment as required by that section; or
(d)if section 78DH of the Sentencing Act 1995 applies to the offence:
(i)a sentence that is the minimum sentence of actual imprisonment that the Court is required to impose for the offence; or
(ii)a sentence that takes into account exceptional circumstances under section 78DI of the Sentencing Act 1995, if the Court is satisfied that, if the Court were imposing a sentence on the defendant, the circumstances of the case would be exceptional.
The sentence indication process works as follows. A defendant applies for a sentence indication. The court must then have regard to a statement of the agreed facts on which the charge is based, the defendant’s criminal record, a victim impact statement (if available) and any other material relevant to the offence which is available at the time of the sentence indication.[8] The court then indicates that, on a plea of guilty, the court “would be likely to impose” a particular sentence on the defendant.[9] The words “would be likely” suggest a probable sentence, but if the defendant pleads guilty to the offence as a result of the sentence indication, the court must not impose a more severe sentence than the sentence indicated.[10]
The Local Court is bound by any sentencing indication given, unless it happens that the court is constituted by a different judge to the judge who gave the indication.[11]
The offence committed by the respondent the subject of count 3 was a level 3 offence under the applicable mandatory sentencing provisions.[12] Because the respondent had previously been convicted of a “violent offence”, the court was required to impose a minimum sentence of three months actual imprisonment.[13] The consequences of that are set out in s 78DH(1) Sentencing Act 1995:
78DHImposition of minimum sentence
(1)If a court is required to impose a minimum sentence of a specified period of actual imprisonment in relation to an offender, the court:
(a)must record a conviction against the offender; and
(b)must sentence the offender to a term of imprisonment of not less than the specified period; and
(c)cannot make an order under section 40 or 44 in relation to the imprisonment for the specified period.
In my opinion, a literal interpretation of s 60AT(2)(d)(i) of the LCCPA would frequently lead to an unreasonable result. On a literal reading of s 60AT(2)(d)(i), that is, where 78DH applies to an offence, the only sentence indication which the Local Court is permitted to give is “a sentence that is the minimum sentence of actual imprisonment the Court is required to impose for the offence” (which for count 3 in this case was three months). That makes no sense. It is most unlikely that the legislative purpose would have been to reward offenders who apply for a sentence indication and plead guilty on the basis of the indication given, by ensuring that they received the minimum specified mandatory sentence and no more, no matter how serious the offending.
Mr Aust submitted at the hearing of this appeal that s 60AT(2)(d)(i) of the LCCPA should be construed as though it read “a sentence that is no less than the minimum sentence of actual imprisonment that the Court is required to impose for the offence”. I accepted that submission. I considered that the notional insertion of the italicized words was required to make good the draftsman’s error and avoid a result which was contrary to reason or good sense.[14]
Section 60AY of the LCCPA specifically provides that a sentence indication does not affect the defendant’s or prosecution’s right to appeal against a sentence imposed on the defendant for the offence.
Analysis and conclusions
I was not satisfied that the sentence imposed in respect of count 2 was manifestly inadequate. However, in my judgment, the sentence imposed for count 3, that is, three months of which one month was to be served cumulatively on the sentence imposed on count 2, was manifestly inadequate. I note that counsel for the respondent conceded in written submissions that it was open for the Court to make that finding in respect of the sentence on count 3.
The genesis of the offending on count 3 was the victim’s refusal to give the respondent her replacement mobile phone. She was afraid that he would damage that phone in the same way he had damaged her previous phone. Because he did not get his way, the respondent first assaulted the victim with a metal egg flip. That caused immediate pain and caused the victim to cry out. Not content with causing the pain inflicted with the egg flip, the respondent resorted to the use of a frypan, by obvious inference a heavier object than the egg flip. He then struck the victim a number of times to her back and head which caused immediate pain (in the areas where it struck) and a laceration to the back of her head. The offending was certainly in the mid-range of seriousness for a male-on-female assault, with a weapon, causing harm.
The respondent’s age and criminal history was such that he was not entitled to the leniency which might have been extended to a first offender or a youthful offender. Moreover, it appeared that his violent behaviour towards the victim was escalating. A stern sentence was called for with particular emphasis on personal (specific) deterrence.
The sentence imposed and the extent of concurrency allowed demonstrated manifest inadequacy. The sentence was so disproportionate to the seriousness of the offending as to be plainly unjust.[15] On a consideration of all the matters relevant to fixing the sentence, I was satisfied that the sentencing discretion miscarried.
The maximum penalty for an assault with circumstances of aggravation is a sentence of imprisonment of five years. The assault committed by the respondent involved three statutory circumstances of aggravation. I considered that the appropriate starting point was a sentence of imprisonment of not less than two years, subject to whatever discount might properly be allowed for the plea of guilty and some level of remorse.
I considered whether this was an appropriate case in which to dismiss the appeal pursuant to s 177(2)(f) of the LCCPA. However, for such a dismissal, I needed to be satisfied that no substantial miscarriage of justice had actually occurred. I was not so satisfied. In my view, there had been a substantial miscarriage of justice. It was not simply a question of an individual offender not being sentenced adequately. Inadequate sentences give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the minds of the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes.[16] Offenders who repeatedly engage in violence against their domestic partners must be given sentences which have sufficient personal deterrent effect. If that does not happen, the risk of recidivism and escalation is greater.
I also considered the submission made by Mr Bourke that the matter should be remitted to the Local Court for further hearing by the same Local Court judge. In my view, that course was inappropriate in the circumstances of this case. It would have been possible to order that the case be remitted to a Local Court differently constituted, but the Supreme Court was now seized of the matter and had made an assessment of the level of criminality in the offending itself and of the respondent’s subjective circumstances (subject to further submissions from counsel). Those matters satisfied me that the Supreme Court should retain the case for the re-sentencing phase.
Mr Bourke for the respondent also submitted that the case should be remitted to the Local Court for the reason that the respondent may not wish to plead guilty in the circumstances which have subsequently come to pass, namely that he will not be sentenced in accordance with the sentence indication given by the learned Local Court judge. The answer to that submission is that a defendant in the Local Court knows, or must be taken to know, that any sentence imposed in accordance with the sentence indication is subject to appeal, whether by prosecution or defence. A defendant does not risk being sentenced by the Local Court more severely than the indication given, and has the right to appeal against the severity of such sentence on appeal, but remains at risk of receiving a heavier sentence in the event of a successful prosecution appeal.
As noted in [23] above, s 60AY of the LCCPA is to the effect that a sentence indication does not affect the defendant’s or prosecution’s right to appeal against a sentence imposed on the defendant for the offence.
In the circumstances, I determined to allow the appeal and to re-sentence the respondent rather than to remit the case for hearing or further hearing before the Local Court.
On 12 April 2022, I made the following orders pursuant to s 177(2)(c) of the LCCPA:
1.I affirmed the convictions recorded by the Local Court on counts 1, 2 and 3.
2.On counts 1 and 2, I affirmed the sentences and the order for concurrency.
3.On count 3, I quashed the sentence of 3 months to be served cumulatively as to one month on the sentence of three months imposed on count 2.
4.I remanded the respondent in custody for re-sentencing on count 3.
5.Further consideration was adjourned to 5 May.
6.I made orders for a report pursuant to s 103 Sentencing Act 1995, and an institutional report (from Darwin Correctional Centre).
Further proceedings
The matter returned to court on 5 May. By that time, the respondent had been released into the community, because the prison authorities had not been made aware of the order for the respondent’s remand in custody. The respondent had spent 17 days in the community.
Appeal courts are very often reluctant to return an offender to custody after he or she has been released, in much the same way as courts give careful consideration as to whether or not to increase an offender’s sentence when the original sentence has been substantially served. However, every case has to be determined on its own particular facts. In the present case, the fact that the respondent’s sentence on count 3 was so manifestly inadequate had the effect that even a timely prosecution appeal could not be heard and determined until close to the end of that sentence. Further, this was not a case where the sentence was ‘barely’ manifestly inadequate. In my judgment, the starting point for an appropriate head sentence on count 3 was some eight times the sentence imposed by the Local Court. In those circumstances, the fact that the respondent may have been at liberty in the community for a few weeks was not significant, unlike those cases where offenders who had been at liberty for several months were not returned to prison because there remained only a relatively short additional period to serve.[17]
Notwithstanding my observations in [36], I was of the view that, in the circumstances of this successful prosecution appeal, I should moderate the sentence to be imposed both by enabling full concurrency with the sentences imposed on counts 1 and 2, and by suspension of the sentence on count 3 at an earlier time than I would otherwise have ordered.
Prior to re-sentencing, I received further evidence.[18] Counsel also provided written submissions and made brief supplementary oral submissions.
As mentioned in [28], the maximum penalty for an assault with circumstances of aggravation is a sentence of imprisonment of five years.
In re-sentencing, I took as my starting point a term of imprisonment of two years. I reduced that by six months to reflect the early plea of guilty and some level of insight and resipiscence. I sentenced the respondent to a term of imprisonment of 18 months, backdated and deemed to have commenced on 9 January 2022. The respondent had been found suitable to be supervised as a condition of a suspended sentence. Because of the link between the respondent’s violent offending and his abuse of alcohol, I considered that it was appropriate to condition the respondent’s suspended sentence to enable a Probation and Parole Officer to require his participation in a residential rehabilitation program. That decision will be made by a Probation and Parole Officer.[19]
A further condition imposed by me required the respondent’s participation in a Family Violence Program.[20]
Pursuant to s 40(1) Sentencing Act 1995, I ordered that the respondent’s sentence be suspended after he had served six months in prison. I fixed an operational period of 18 months from the date of his release.
The conditions of the respondent’s suspended sentence are as follows:
1.He must report to a Probation and Parole Officer within 48 hours of his release from prison.
2.He will be subject to supervision by a Probation and Parole Officer, and must obey all reasonable directions.
3.He must tell a Probation and Parole Officer of any change of address or employment within 2 clear working days after the change.
4.He must participate in assessments, counselling and/or treatment as directed by a Probation and Parole Officer.
5.If so directed by a Probation and Parole Officer, and as soon as practicable in accordance with the direction, he must enter into such residential rehabilitation program assessed as suitable for him by a Probation and Parole Officer. He must participate fully in such program or programs and do nothing to cause his early discharge.
6.He must, at the direction of a Probation and Parole Officer, attend, participate fully in, and complete the Family Violence Program.
7.He must not possess or consume alcohol, and must submit to testing, as directed by a Probation and Parole Officer or a Police Officer.
8.He must not enter or remain in Darwin without first obtaining permission from a Probation and Parole Officer, save in the event of medical or dental emergency.
9.He must not leave the NT without first obtaining the permission of a Probation and Parole Officer.
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[1] Transcript p 8.5.
[2] Local Court exhibit 1.
[3] Exhibit 3.
[4] Exhibit 2, Victim Impact Statement dated 23 December 2021. The Sentencing Act 1995 (NT), s 106A, defines a victim impact statement as an oral or written statement “containing details of the harm suffered by the victim of an offence arising from the offence”. A prosecutor is required by s 106B to present a victim impact statement to the court prior to sentencing where the victim consents to its presentation.
[5] Exhibit 4, ‘Information for Courts’ document.
[6] Transcript p 9-10.
[7]See, for example, R v Duncan [2015] NTCCA 2; 34 NTLR 201, at [22].
[8] See s 60AU(1) & (2) LCCPA.
[9] LCCPA, s 60AT(2)
[10] LCCPA, s 60AZ(1) & (2)(b).
[11] LCCPA, s 60AV
[12] Sentencing Act, s 78CA(3)(b).
[13] Sentencing Act, s 78DD(2).
[14]See Idai v Malogorski [2011] NTSC 102; 30 NTLR 166; 217 A Crim R, at [25] – [38].
[15]See Hili v The Queen [2010] HCA 45; 242 CLR 520 at [59]-[62].
[16] See Everett v The Queen [1994] HCA 49; 181 CLR 295 at 306, per McHugh J.
[17] See, for example, Rigby v Minyingma [2020] NTSC 81 at [40], where the respondent had been on bail for more than a year, and the outstanding balance of sentence was less than one month; Firth v Namarnyilk [2021] NTSC 75 at [38], where the respondent had been released on a suspended sentence more than 10 months previously and the outstanding balance of sentence was only nine days.
[18]Specifically, a document entitled “Outline of subjective circumstances of the respondent” was tendered by the respondent’s counsel.
[19]The writer of the supervision report ordered pursuant to s 103 Sentencing Act 1995 referred to lengthy wait times for assessment and then further wait times for bed availability in a residential rehabilitation facility. This led her to the opinion (which I accepted) that it was preferable that the respondent return to Galiwinku upon release from prison, with a condition in relation to assessment and entry into a residential rehabilitation should that be deemed necessary in the future.
[20] The supervision report stated that the Family Violence Program was scheduled for the Galiwinku Community in October 2022. The respondent was assessed as suitable to participate in the program.
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