Rigby v Minyingma - [2020] NTSC 81

CITATION:Rigby v Minyingma [2020] NTSC 81
PARTIES:RIGBY, Kerry Leanne
v

MINYINGMA, Desmond James Lee

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 23 of 2020 (21927020)
DELIVERED:  23 December 2020
HEARING DATE:  8 October 2020
JUDGMENT OF:  Barr J

CATCHWORDS:
CRIMINAL LAW – Prosecution appeal against sentence – Discretion to backdate sentence –Whether judge erred in backdating sentence to take into account time spent on bail – Whether bail conditions properly characterised as “strict” – Whether the judge erred in failing to impose mandatory sentence of three months’ actual imprisonment prior to suspension – Sentence to be backdated for time spent on bail only where bail conditions significantly interfere with a person’s liberty – Lovegrove v The Queen incorrectly applied – No significant interference – Exceptional circumstances exemption – Whether circumstances “exceptional” such as to avoid the court’s obligation to impose mandatory minimum sentence of actual imprisonment – Ground of appeal made out – Appeal dismissed – No substantial miscarriage of justice – Inappropriate to require offender to be returned to prison to serve a period of less than one month.
Local Court (Criminal Procedure) Act 2016, s 163(1)(a), s 177(2)(f)

Sentencing Act 1995, s 5(2)(k), s 43(4C), s 63(5), s 78DD, s 78DI Lovegrove v The Queen [2018] NTCCA 3, 331 FLR 192, applied.
R v Duncan [2015] NTCCA 2, 34 NTLR 201, considered.
REPRESENTATION:
Counsel:
Appellant:D Castor
Respondent:  J Stuchbery
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:  Bar2008
Number of pages:  17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Rigby v Minyingma [2020] NTSC 81

No. LCA 23 of 2020 (21927020)

IN THE MATTER of the Local Court
(Criminal Procedure) Act
BETWEEN:

KERRY LEANNE RIGBY

Appellant

AND:

DESMOND JAMES LEE MINYINGMA

Respondent

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 23 December 2020)

This is a prosecution appeal against sentence brought pursuant to s 163 (1)(a) Local Court (Criminal Procedure) Act 2016.
On 17 April 2020, the respondent entered a plea of guilty in the Local Court to a charge laid on information that, on 14 July 2019, at Darwin, he unlawfully assaulted a female victim, TS, with the admitted circumstances of aggravation that the victim suffered harm, and that it was a male-on-female assault.
The respondent was born on 26 May 1993, and so was 26 years old at the time of offending.
A statement containing the alleged facts was tendered, and the facts admitted by the respondent’s counsel on his behalf.[1]
In summary, the victim had been in a domestic relationship with the respondent for several months, both parties living in the same house. In the late evening of 14 July 2019, they argued. The argument became heated and the respondent forcefully grabbed the victim by her left arm and twisted it behind her. At the same time, the respondent pushed the victim up against the wall by her neck. The force of that caused pain and bruising to her neck area. The respondent then pushed the victim causing her to fall backwards and hit the floor. The victim put out her right arm in an attempt to brace herself. As a result of this action she suffered a sub-acute fracture to her fourth metacarpal [ring finger].
She was taken by ambulance to Royal Darwin Hospital for treatment.
Photos tendered in evidence showed a dark coloured circular bruise to the inner aspect of the complainant’s upper left arm; facial scratching and bruising underneath her left eye and to her left eyelid; facial scratching on the right side of her face, below eye level; bruising to the right side of her neck; and her right forearm in a plaster cast. A cannula is shown in situ on the inner aspect of her left elbow.
The respondent was arrested by police officers in the early morning of 15 July 2019, and then taken to the Darwin watch house. At 8:45 AM he exercised his right to silence and declined to participate in a formal interview with police. He remained in custody from 15 July 2019 to 16 September 2019, when he was granted bail by the Local Court.
The respondent had a prior conviction for assault with intent to steal, aggravated by being armed with a knife at the time of offending. The respondent committed that assault at the age of 24, on 30 July 2017. He had been drinking wine and rum all night with his cousin and was wandering the streets early the following morning. He found a knife on the ground and put it in his pants. At 7:30 in the morning, he went up to the victim, who was standing beside his taxi in Progress Drive, and asked for coins. When the driver explained he had not yet started his shift, the respondent showed the victim the handle of the knife. That action was obviously intended as a threat, and was understood as such by the taxi driver, who hurriedly jumped into his taxi and locked the doors. The respondent did not cause actual harm. Grant CJ took into account the respondent’s plea of guilty and sentenced him to a term of imprisonment of 18 months, backdated by 12 days, suspended immediately with an operational period of 18 months from 13 March 2018.
The respondent had an earlier conviction for assaulting a member of the police force, an offence committed as a 19-year-old in February 2013. He also had two convictions for damaging property, both committed in March 2015, some six days apart. For one of those he was sentenced to carry out 40 hours of community work and, for the other, he was released on a 12 month good behaviour bond and ordered to pay restitution in the sum of $2,000.
After the evidence had been tendered in the Local Court on 17 April 2020, the judge requested a report pursuant to s 103 Sentencing Act 1995 as to the respondent’s suitability to be under supervision if placed on a suspended sentence, and adjourned the matter to 29 April 2020.
On both 17 April 2020 and 29 April 2020, counsel for the respondent stated that the respondent had been subject to strict bail conditions. On 17 April, counsel said that he had been “the subject of strict bail conditions since 16 September last year”.[2] On 29 April, counsel stated “… he has been on strict supervised bail for a lengthy period”. In fact, the conditions of the respondent’s bail were not strict. He was made subject to supervision by a Probation and Parole Officer and had to obey all reasonable directions. He was also required not to take dangerous drugs and to submit to testing for the presence of drugs if directed. However, six matters may be noted: (1) the requirement that he not consume dangerous drugs was no more than a requirement that he obey the law; (2) he was not subject to electronic monitoring and did not have to wear an electronic monitoring device; (3) he was permitted to reside at his home; (4) he was not required to participate in a residential rehabilitation program with the usual condition that a failure to complete the program or fully engage in the program would amount to a breach of bail; (5) there was no curfew, and (6) he was permitted to drink alcohol. The true restrictions on his liberty were minimal.
Moreover, the respondent’s compliance with the conditions of bail had been questionable. The first compliance report, dated 8 October 2019, confirmed that the respondent had been reporting as directed and that his drug tests had been negative. The second compliance report, dated 26 November 2019, was in almost the same terms as the first in relation to reporting and testing. The third compliance report, dated 9 March 2020, stated that recent attempts made to test the respondent for the presence of illicit substances had been unsuccessful on four consecutive occasions: 13 February, 18 February, 2 March and 6 March. The fourth compliance report, dated 23 March 2020, stated that the respondent had not been drug tested since 16 January 2020. In addition to the four occasions on which attempts had been made to drug test the respondent, referred to in the third compliance report, five further unsuccessful attempts were made to drug test him between 11 March and 20 March 2020. The writer of the fourth compliance report wrote as follows:
Despite multiple attempts made by Community Corrections, Mr Minyingma has not made himself available for testing and has not returned any voice messages. Should [he] continue to be unavailable for testing, Community Corrections are unable to continue monitoring the defendant under the current bail conditions.
It is tolerably clear from the third and fourth compliance reports that the respondent had not made himself available for drug testing from 13 February through to 23 March, and that, at least in the period between 11 March and 20 March 2020, he had not returned any voice messages. The inference to be drawn, in the absence of an explanation, was that the respondent had avoided drug testing.
Counsel for the respondent in the Local Court on 29 April 2020 did not attempt to explain his client’s conduct, as appears from the transcript extract below:[3]
Mr Aust: My ultimate submission is going to be that your Honour impose a partially suspended sentence. … the mandatory minimum is three months. He hasn’t yet served three months. I think it worked out he did two months and some days but he has been on strict supervised bail for a lengthy period so ---
Her Honour: But he hasn’t been complying.
Mr Aust: That’s not the case in my submission. There is one report where there was some form of confusion. The most recent compliance report prior to this but this report has clearly been ---
Her Honour: Well, this didn’t really address whether he had been complying, did it?
Mr Aust: No, your Honour, but surely it’s the one and the same service. One would imagine due diligence has been undertaken.
Her Honour: I don’t know.
Mr Aust: Nonetheless ultimately the position is this was out-of-character offending for its type …
Defence counsel’s submission that there had been “some form of confusion” is interesting. The facts and the inference to be drawn from the facts, in the absence of an explanation, was as stated by me in [14]. Moreover, defence counsel had conceded on 17 April 2020 that there had been “a misstep at a very recent time” but said that there had been “a rekindling of the connection”.[4]
Counsel for the respondent submitted in the Local Court that the offending was out of character “for its type”; that it had always been indicated as “resolving” (that is, that the respondent would plead guilty); that he was a young man with a responsible role in caring for his mother, and that he had managed to demonstrate an ability to stay out of trouble while on bail. The submission continued as follows:[5]
So he is suitable for supervision and ultimately given the amount of time that he’s been under that order, the question is whether your Honour were to find exceptional circumstances and simply not tinker in any meaningful way with the sentence or whether your Honour was to apply some reasoning of Lovegrove and make the backdate somewhat further than the two months. Either way it really doesn’t make much difference in my submission; as long as you take account of it, the sentence will speak for itself.
The underlined words in the above extract, “under that order”, is a reference to the suggested strict supervised bail regime referred to by defence counsel shortly prior.[6]
In sentencing the respondent, the judge described the assault as a “nasty assault”. Given the admitted facts and the photographic evidence, her Honour’s characterisation was appropriate. Her Honour made particular reference to the bruising to the victim’s neck, to other bruises to her body when she was pushed and fell to the floor, and to the fracture to her finger. Her Honour stated that most of the bruises looked like fingerprint bruises and inferred from that that a considerable degree of force had been used.[7] Her Honour expressed the court’s concerns about (1) domestic violence generally, (2) controlling behaviour, which she described as a very concerning aspect of the offending, and (3) assaults to the throat. Her Honour clearly understood the connection between assaults around the neck or throat and the risk of escalation to deadly violence. Nonetheless, she noted that this was the first occasion on which the respondent had been before a court charged with a domestic violence incident.
Relevant to the grounds of appeal, her Honour made the following observations:
Normally when there is a history of violence the court is required to sentence people to serve a minimum of three months actually in gaol. In this case you have served over two months actually in jail and you have also served time on bail on strict conditions and demonstrated sufficient compliance with those strict conditions that Corrections now consider you suitable for further supervision and are particularly looking at putting you in residential rehabilitation as part of those conditions when and if a bed becomes available.
In my view I am entitled to take that compliance on bail into account in relation to attributing it towards jail time. And in order to do that in this case I am going to be backdating your sentence by three months so that you will have, in effect, served the three months mandatory minimum required by the legislation by the combination of the time served and then the extended time on bail.
However because in my view the objective seriousness of this matter is in the high/mid-range, in my view a significantly longer sentence is required to reflect the seriousness of this matter and to get the message to you and to everybody else that this kind of trouble is not going to be tolerated by the courts.
Her Honour convicted the respondent and sentenced him to a term of imprisonment of seven months, backdated to 29 January 2020 but suspended immediately, on conditions which were stated. An operational period of 18 months was fixed.
Although the offending had taken place within the operational period of the earlier suspended sentence, imposed by the Supreme Court in March 2018, her Honour did not do anything about that. She remarked to the prosecutor, “I was hoping that the Supreme Court would have dealt with the breach before now anyway”.[8] Her Honour appears to have been unaware that the practice of Community Corrections, where re-offending allegedly takes place within the operational period of a suspended sentence, is to bring the matter before the Supreme Court only after the offender is found guilty and/or convicted of the fresh offence. Her Honour could have made enquiries of the prosecutor and, if the matter had not been dealt with by the Supreme Court, she was able to commit the respondent to be dealt with by the Supreme Court, pursuant to s 43 (4C) Sentencing Act 1995.
The issues on appeal
Although the sentence imposed by her Honour was arguably lenient, the appellant does not assert manifest inadequacy in the head sentence imposed, but rather appeals on the following grounds: (1) that the judge erred by further backdating the sentence to take into account time spent by the respondent on bail, and (2) that the judge erred by failing to impose a sentence that required the respondent to serve three months’ actual imprisonment prior to suspension.
The genesis of her Honour’s decision to backdate the sentence beyond time spent in actual custody on remand, to take into account some of the time spent on bail, appears to have been the submission by defence counsel that the respondent had been “on strict supervised bail for a lengthy period”.[9] Although her Honour queried whether the respondent had been compliant throughout the period of bail (and resolved that question favourably to the respondent), the passage extracted in [20] demonstrates that she adopted the defence submission that the respondent had “served time on bail on strict conditions”.
For the reasons explained by me in [12] above, the conditions of bail were not strict but were standard and unexceptional; and there had been compliance issues in any event, as initially conceded by defence counsel.[10]
As counsel for the respondent notes on this appeal, her Honour impliedly credited the respondent with 26 days imprisonment for the 227 days he had been subject to the conditions of his bail undertaking.
The question is whether her Honour was entitled to give any credit to the respondent for time spent on bail. The answer is that she was not.
I accept the submission of counsel for the appellant that her Honour’s discretion miscarried.
In Lovegrove v The Queen,[11] the Court of Criminal Appeal determined that there is a discretion to backdate a sentence, where appropriate, to take into account time spent on bail in the circumstances contemplated by s 5(2)(k) Sentencing Act 1995,[12] namely, living at a specified place (such as a residential rehabilitation program facility) and being subject to electronic monitoring. However, the Court observed as follows:[13]
The discretion [conferred by s 63(5) Sentencing Act 1995] must be exercised judicially in determining whether a period on bail in a rehabilitation program will warrant its exercise. In determining what period of backdating, if any, should be allowed for such residence it would be necessary to give careful consideration to the conditions of the program and the strictures applied at the facility in question. …
The regime must be capable of characterisation as “quasi-custodial” in terms of discipline, structure, demands, strictures, expectations and work before it will warrant the exercise of the discretion to backdate sentence. Moreover, on proper construction, there is nothing in s 5(2)(k) and s 63(5) of the Sentencing Act which would require the sentencing court to exercise the discretion to backdate simply because a person had been subject to bail involving an electronic monitoring condition. That will again depend on matters of circumstance and compliance.
It should be borne in mind that the Court’s reference to a “quasi-custodial” regime in Lovegrove was in the context of the particular circumstances in that case. The appellant had been admitted to the Aranda House rehabilitation program, where he lived for just under three months before moving to a transitional after-care unit. While he was participating in the rehabilitation program, the rules which applied to him included: a non-contact period for the first 10 days following admission; no personal phone calls in the first 10 day period; initial drug screening and subsequently random alcohol and other drug testing; random property and room searches; no smoking on the grounds; limitations on business appointments outside the premises; email access restricted to once per week; mobile phones not allowed during Phase 1 and restricted during subsequent phases; no television until after 5 pm; no takeaway food or drinks; personal shopping permitted on Fridays only; visitors permitted on Sundays only; and leave allowed only in Phase 3 and then limited to two days per fortnight.[14]
The sentencing Judge in Lovegrove had reduced the appellant’s head sentence by two months on account of the restrictions on liberty which applied while the appellant was participating in residential rehabilitation programs. Although his Honour was ultimately held to have erred in finding that he did not have power to backdate the sentence on account of these matters, the Court on appeal was unable to conclude that a less severe sentence was warranted and should have been passed; or that the judge’s error had resulted in any substantial miscarriage of justice.
As to taking into account bail conditions generally, that is, not restricting its consideration to residential rehabilitation, the Court in Lovegrove observed as follows:[15]
… if the effect of a person’s bail conditions are such as to significantly interfere with his or her liberty, but are not as stringent as would be the conditions on remand, it may be a proper exercise of the court’s discretion to make some allowance for that either in backdating the sentence or in taking it into account in the head sentence. The more stringent the conditions, the greater the allowance which should be made for it.

The conditions of the respondent’s bail in the present case did not require the respondent to enter into residential rehabilitation or to be subject to electronic monitoring and thus did not fall into either of the categories specifically identified in Lovegrove v The Queen as enlivening the discretion to backdate beyond the period of time spent in actual custody. The Local Court judge acted on a mistaken view of relevant facts,[16] namely, as to the nature of the respondent’s bail conditions, and then erred in applying the principles in Lovegrove in his sentencing. There was no proper basis for the exercise of the sentencing discretion to backdate the sentence beyond the 64 days which the respondent had spent in actual custody.
However, that is not the end of the matter.
Counsel for the respondent contends that s 63(5) Sentencing Act 1995 gives a sentencing judge a discretion to backdate, unconstrained by the limitations suggested in Lovegrove v The Queen. Provided that the conditions precedent are met, namely, arrest and some period in custody for the offence being dealt with by the court, the sentencing judge may exercise a discretion to backdate, the only limitation being that the discretion must be exercised judicially.[17]
In support of that submission, counsel relies upon the observations of the Court in Lovegrove v The Queen, extracted in [32] above. However, those observations were in reference to bail conditions which were such as to “significantly interfere” with a person’s liberty, albeit not as stringent as conditions on remand in prison. It is difficult to see the relevance of the above extract to the present case, given my findings that: (1) the true restrictions on the respondent’s liberty were minimal,[18] and (2) the Local Court judge was mistaken as to the nature of the respondent’s bail conditions.[19]
Counsel for the respondent further contends that the appeal should be dismissed as no substantial miscarriage of justice has occurred; that it was open to her Honour to be satisfied, pursuant to s 78DI Sentencing Act 1995, that the circumstances of the case were exceptional, which would have avoided the statutory obligation for her Honour to impose a mandatory sentence of (at least) three months’ actual imprisonment pursuant to s 78DD Sentencing Act 1995.
In my opinion, however, nothing in this case suggests exceptional circumstances, and to the extent that there might have been some arguably favourable circumstance, it was outweighed significantly by the unfavourable circumstances.[20] I do not see how the Local Court could have been satisfied that the circumstances of the case were exceptional. Moreover, her Honour’s sentencing remarks show that she considered that the statutory three month mandatory minimum requirement should be given effect to and, by clear implication, that the exceptional circumstances exemption should not apply:
In my view I am entitled to take that compliance on bail into account in relation to attributing it towards gaol time. And in order to do that in this case, I am going to be backdating your sentence by three months so that you will have, in effect, served the three months mandatory minimum required by the legislation by the combination of the time served and then the extended time on bail.
Conclusion
The appellant has made out the first ground of the appeal, that the sentencing judge erred by backdating the sentence beyond time spent in actual custody on remand to take into account time spent by the respondent on bail. It is not necessary for me to decide the second ground.
For reasons summarized in [33], this appeal might well be decided in favour of the appellant. However, pursuant to s 177(2)(f) Local Court (Criminal Procedure) Act 2016, alternatively in the exercise of this Court’s inherent jurisdiction, I order that the appeal be dismissed, on the ground that no substantial miscarriage of justice has occurred. I consider that, in the circumstances, it would be inappropriate to require the respondent to be returned to prison, more than a year after being released on bail, to serve a period of less than one month of his sentence.

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[1]Local Court transcript 17/04/2020, p.4. Also admitted was the respondent's prior criminal record (‘Information for Courts’ document), the sentencing remarks of Grant CJ made 13 March 2018 in file ending 5842, and a bundle of photographs.

[2]Transcript 17/04/2020, p 4.5.

[3] Transcript 29/04/2020, p 2.

[4] Transcript 17/04/2020, p 5.1.

[5] Transcript 29/04/2020, p 2.9 - 3.1.

[6] Transcript 29/04/2020, p 2.4.

[7]Transcript 29/04/2020, p 4.9.

[8]Transcript 29/04/2020, p 3.9.

[9] See [12] above.

[10]Transcript 17/04/2020, p 5.1. Counsel there conceded that there had been “a misstep at a very recent time” but said that there had been “a rekindling of the connection”. However, on 29/04/2020, counsel disputed the judge’s statement that the respondent had not been complying with his bail conditions (Transcript p 2.5).

[11] Lovegrove v The Queen [2018] NTCCA 3; 331 FLR 192 at [41].

[12] The Sentencing Act 1995, s 5(2), provides that a sentencing court must have regard to various matters, one of which is specified in par (k) as follows: “time spent in custody by the offender for the offence before being sentenced, including time the offender resided at a specified place in accordance with a conduct agreement under the Bail Act 1982 that contained a provision mentioned in s 27A(1)(iaa), (iab) or (ia) of that Act”. The referenced provisions enable a conduct agreement to require an accused person to wear an electronic monitoring device.

[13] Lovegrove v The Queen, at [35], [38].

[14] Lovegrove v The Queen, at [50].

[15] Lovegrove v The Queen, at [42].

[16] House v The King (1936) 55 CLR 499 at 505, per Dixon, Evatt and McTiernan JJ, “If the judge acts upon wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his …”.

[17] The submission reflects the observations of the Court in Lovegrove v The Queen, at [27].

[18] See [12] above.

[19] See [33] above.

[20] See R v Duncan (2015) 34 NTLR 201 at [27].