Rogers v Andreou - [2017] NTSC 63

CITATION:Rogers v Andreou [2017] NTSC 63
PARTIES:ROGERS, Matilda

v
ANDREOU, Andreas

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 6 of 2016 (21600155)
DELIVERED ON:  15 August 2017
DELIVERED AT:  Darwin
HEARING DATE:  3 March 2017
JUDGMENT OF:  Grant CJ
CATCHWORDS:

CRIMINAL LAW – PROPERTY OFFENCES – JUDGMENT AND PUNISHMENT
Whether sentence was manifestly excessive given the circumstances of the offending and the appellant – disorderly conduct in a public place calls for demonstration of the court’s disapproval of that conduct – appellant was 30 years of age and beyond the point at which it could be attributed to youthful indiscretion – type of offending for which the purpose of general deterrence was significant in the sentencing calculus – no error disclosed – appeal dismissed.
Sentencing Act (NT) s 8
Summary Offences Act (NT) s 47A
Carnese v The Queen [2009] NTCCA 8, Hales v Adams [2005] NTSC 86, Hanks v The Queen [2011] VSCA 7, Hesseen v Burgoyne [2003] NTSC 47, Namala v Whittington [2016] NTSC 71, The Queen v McInerney (1986) 42 SASR 111, Toohey v Peach (2003) 141 A Crim R 437, Truong v The Queen (2015) 35 NTLR 186, referred to.
CRIMINAL LAW – PROPERTY OFFENCES – JUDGMENT AND PUNISHMENT
Whether sentence breached the principle of parity having regard to the different objective and subjective circumstances of the appellant and co-offender –– whether sentencing judge fell into error by recording a conviction when no conviction was recorded for the co-offender – distinction between the degrees of participation of each offender in the offence – distinction between subjective circumstances of each offender given disparity in ages – to the extent any disparity between sentences not so unjustified, significant or manifestly excessive as to warrant appellate intervention – appeal dismissed.
Lowe v The Queen (1984) 154 CLR 606, Pastras v The Queen (1993) 65 A Crim R 584, Pavicevic v The Queen [2010] ACTCA 25, Pecora v The Queen [1980] VR 499, Postiglione v The Queen(1997) 189 CLR 295, R v Wei Pan [2005] NSWCCA 114, referred to.
REPRESENTATION:
Counsel:
Appellant:PJ Maley
Respondent:  SIJ Ledek
Solicitors:
Appellant:Maleys
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  GRA1710
Number of pages:  16

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Rogers v Andreou [2017] NTSC 63

LCA 6 of 2016 (21600155)
BETWEEN:

MATILDA ROGERS

Appellant

AND:

ANDREAS ANDREOU

Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 15 August 2017)

This is an appeal brought pursuant to s 163 of the Local Court (Criminal Procedure) Act (NT).
On 30 May 2016, the appellant and a co-offender pleaded guilty to behaving in a disorderly manner in a public place contrary to s 47A of the Summary Offences Act (NT). That plea was entered on the first morning of what was scheduled to be a two-day hearing. At the same time, a number of other charges were withdrawn and the appellant consented to the confirmation of a domestic violence order under which her sister, who was the “victim” of the disorderly conduct, was the protected person.
The Local Court found the appellant guilty of the offence, recorded a conviction, and ordered that she be released on a good behaviour bond for a period of 12 months.
Later that day the same judge found the appellant’s co-offender guilty of the same offence without recording a conviction, and ordered that she also be released on a good behaviour bond for a period of 12 months.
The single ground of appeal is that:
The recording of a conviction against the [appellant] was manifestly excessive in all the circumstances of the case and by application of the principle of parity in sentencing.
The appeal is dismissed for the reasons which follow.
Objective circumstances of the offending and subjective circumstances of the offender
The same set of Crown facts was read to the court for the charges concerning both the appellant and her co-offender. The agreed facts on which the matters proceeded to plea were as follows.
The [co-offender] was born in Darwin and has resided here all her life. The [co-offender] and the [victim] have known each other for approximately three years. The victim is the biological sister of [the appellant], who is a close personal friend of the [co-offender].
In the months leading up to the offence there had been ongoing issues between the [co-offender], the [appellant] and the victim. At approximately 10:30 pm on Friday, 4 December 2015 the victim and some friends attended the Viva la Vida bar on Knuckey Street in Darwin city.
The [co-offender] and the [appellant] were already in the bar consuming intoxicating liquor. The victim and her friends approached the bar. There were words exchanged between the [appellant] and the victim. A short time later the victim left the bar.
Very shortly after the victim left the bar the [appellant] followed the victim outside. [The co-offender] also followed the [appellant] outside. The [appellant] then approached the victim. The [appellant] and the victim engaged in further offensive words between one another and had a scuffle. The [co-offender] then intervened, trying to pull the victim away from the [appellant]. The victim and the [co-offender] then engaged with one another scuffling, as did the [appellant].
The partners of the [co-offender] and the [appellant] then intervened and the victim left the area with her friends. Both defendants’ actions [were] in view of persons on Knuckey and Mitchell Streets, which was a public place open to and used by the public. All three women suffered minor injuries as a result of the matter.
The appellant was 30 years old at the time of the offending and had no criminal history. A plea of guilty to this particular offence had been offered at the earliest opportunity but rejected by the prosecution. The appellant had a good employment history and was involved in a number of community activities.
Manifest excess – the recording of a conviction
In Truong v The Queen,[1] the Court of Criminal Appeal referred with approval to the following statement in relation to manifest excess made by Bongiorno JA in Hanks v The Queen:[2]
The term ‘manifest excess’ is usually used when a ground of appeal alleges that a sentence is so egregiously erroneous that the sentencing judge must have made a sentencing error although that error cannot be identified. To succeed on this ground the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.
The appellant’s assertion of manifest excess hinges on the provisions of s 8(1) of the Sentencing Act (NT), which provides:
Conviction or non-conviction
(1) In deciding whether or not to record a conviction, a court must have regard to the circumstances of the case including:
(a) the character, antecedents, age, health or mental condition of the offender; and
(b) the extent, if any, to which the offence is of a trivial nature; and
(c)the extent, if any, to which the offence was committed under extenuating circumstances.
During the course of the plea the appellant’s legal representative relied on the “first disjunctive limb of s 8” in aid of the submission that the appellant’s character, antecedents and age alone provided the court with proper grounds to not record a conviction.
During the course of sentencing submissions the judge accepted that the plea had been entered at the earliest opportunity; that the appellant had an unblemished record; and that the appellant was otherwise a person of good reputation. The sentencing judge took the view that the question whether or not to record a conviction resolved to whether the appellant’s prior good character was sufficient to warrant that disposition when ranged against the seriousness of the behaviour in question and the significance of the appellant’s culpability.
The appellant’s legal representative sought to provide some explanation for her conduct during the course of the sentencing proceedings. That explanation was to the effect that although the appellant had been extremely close to her sister, they had fallen out in the weeks leading up to the incident. The cause of the disputation was that another of their sisters had formed a relationship with a man who had previously been in a relationship with the co-offender. On the one hand, the appellant apparently took exception to the new relationship on the basis of some loyalty to the co-offender. On the other hand, the appellant’s sister considered that the circumstances required the appellant to terminate her relationship with the co-offender.
The judge observed that the explanation provided did not assist him in understanding and properly evaluating the appellant’s behaviour on the night in question. The sentencing judge considered that this account, if correct, did not provide any satisfactory explanation for the appellant’s conduct. Rather, it tended to show her in a poor light. It was open to the sentencing judge to form that view.
The sentencing judge also rejected the appellant’s submission that this was the type of conduct which might ordinarily have been dealt with by the issue of an infringement notice, and perhaps should have been in this case. The sentencing judge considered that the nature of the altercation and its location was such as to elevate its seriousness above that of incidents which ordinarily attracted an “on the spot” fine. Again, it was open to the sentencing judge the form that view. In any event, that the matter could have been dealt with by way of infringement notice given by police “places no restraint upon a court if the matter proceeds by way of summons”.[3]
Ultimately, the sentencing judge concluded:
I will record a conviction, in all the circumstances, because of the nature and significance of the offence, notwithstanding the very positive aspects of the offender. On count 4, the defendant Matilda Julia Rogers is convicted. She is placed on a bond to be of good behaviour for 12 months from today. I impose the victims levy of $150.
The appellant makes a number of contentions on appeal in relation to that disposition.
The first contention is that the prosecution did not seek to make a distinction between the two offenders for sentencing purposes. It does not necessarily follow that there was no material distinction (a matter which is discussed further below in the context of the parity ground). The purpose of the contention must be illustrative only, in order to suggest that the prosecution’s position reflected the conclusions that should have been drawn for sentencing purposes. The appellant’s ultimate submission in this respect is that on proper analysis the purported distinctions between the involvement of the appellant and the co-offender in the incident were illusory for sentencing purposes. They were, in effect, distinctions without a difference.
The sentencing judge placed some emphasis on the fact that the appellant’s sister had sought to leave the area but the appellant followed her; that the appellant thereby instigated the physical altercation; and that the appellant was only subsequently joined in that altercation by her co-offender. That was of itself a valid basis on which to draw a distinction between the relative moral culpabilities of the appellant and her co-offender.
During the course of the appeal hearing the appellant’s counsel made the submission that there was no evidence before the sentencing judge of a clear intention on the part of the appellant to assault her sister at the time she followed her from the premises. That submission may be accepted, but does not militate against the finding that the appellant’s conduct in following her sister was the real, immediate and effective cause of the subsequent altercation.
Even if one were to accept that there was no relevant distinction between the seriousness of the offending behaviour by the appellant and her co-offender, that would not of itself be sufficient to establish that the sentence imposed on the appellant was manifestly excessive. While it would no doubt show that the appellant was subjected to a more punitive disposition, it would not place that disposition so far outside the range of a reasonable discretionary judgment as to itself bespeak error.
The second contention is that the court was obliged not to impose a sentence more severe than necessary to achieve the purpose or purposes for which the sentence was imposed. To the extent that the appellant’s moral culpability was greater than that of her co-offender, that difference could have been addressed by the imposition of a fine or the imposition of a good behaviour bond of longer duration rather than by recording a conviction. While that option was no doubt open to the sentencing judge, it does not answer the question whether recording a conviction was unreasonable or plainly unjust in the circumstances.
The third contention is that the difference between recording a conviction or not is significant. That is undoubtedly the case given that a conviction operates as a significant act of legal and social censure.[4] Two observations may be made concerning the operation of s 8(1) of the Sentencing Act (NT). First, the considerations referred to in that provision are not exhaustive of the matters which might properly be taken into account by the sentencing judge in determining whether or not to record a conviction. Secondly, in making that determination the sentencing judge is required to have regard to all three limbs of the provision.
During the course of the sentencing proceedings counsel for the appellant referred to those limbs as “disjunctive”. That description is correct to the extent it suggests the sentencing judge might make the determination on the basis of the offender’s character and antecedents, without necessarily having to be satisfied that the offence was trivial or committed under extenuating circumstances. That description does not mean that in determining whether or not to record a conviction the sentencing judge may proceed solely on the basis of an offender’s character and antecedents without giving any consideration to the second and third limbs, and any other relevant circumstances.[5]
Even where an offender’s character, antecedents and age might militate in favour of a “non-conviction” disposition, it will still be necessary for the sentencing court to weigh those matters against the seriousness of the offending (in the application of the triviality criterion) and its context (in the application of the extenuating circumstances criterion). As the sentencing judge correctly suggested, there will obviously be circumstances where the seriousness of the offending will require a conviction notwithstanding that the offender might be youthful and of otherwise unblemished character. So much is apparent from the fact that a determination not to record a conviction is relatively rare rather than a disposition made in the ordinary course.
That determination will also be influenced by the nature of the offending and the principal sentencing purposes for that particular type of offending. As Southwood J observed in Hales v Adams:[6]
[Whether a conviction is recorded] is a component of the sentence and is to be given weight in determining whether or not the sentence is proportionate to the offence. The more serious or blatant an offence, the less proportionate it is for the Court of Summary Jurisdiction to decline to record a conviction. Mature age offenders who have led previously blameless lives may benefit from an exercise of the discretion not to record a conviction. The discretion may also be exercised in an offender’s favour where the offender has no previous convictions, or where the offending related to ill health or where it would, in itself, be a significant additional penalty for a first offender. On the other hand, the recording of a conviction may be necessary where the offender is of mature age and deterrence is being given weight, especially in relation to breaches of regulatory or social legislation. A useful summary of these considerations may be found in RG Fox and A Freiberg, Sentencing State and Federal Law in Victoria 2nd Ed, at 190–193.
That passage has application to the present circumstances on a number of respects. Although this not was not highly serious offending, it was blatant. In addition, the appellant was 30 years of age at the time of this offending and beyond the point at which it could be attributed to the indiscretion and poor impulse control which often characterises the conduct of youthful offenders. Although disorderly conduct in a public place is not regulatory legislation dealing with matters such as resources or conservation, its proscription does have a clear social purpose. A breach calls for some public demonstration of the court’s disapproval of that conduct. As the sentencing judge observed, it was the type of offending for which the purpose of general deterrence was more significant in the sentencing calculus.
Against that background, the sentencing judge accepted that the appellant’s conduct on the night in question was an isolated aberration, but was not convinced that not recording a conviction was the appropriate disposition in the circumstances. Neither the approach taken by the sentencing judge nor the result demonstrate any error of principle in the sentencing exercise or that the sentence imposed was manifestly excessive.
Parity
The appellant’s contention in this respect hinges on the fact that no conviction was recorded in respect of her co-offender in the incident.
The principle of parity operates to require that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence. That requires a consideration of such matters as the subjective circumstances of offenders and the part which each played in the commission of the offence.[7] Where the circumstances of each offender or of their involvement in the offence are different then different sentences may be called for.[8] The principle of parity is not violated if different sentences are imposed to reflect different degrees of culpability or different circumstances.[9]
It is therefore instructive when considering the parity ground to consider the co-offender’s culpability in the matter. It was the appellant who followed her sister from the bar, thereby instigating the physical confrontation. The co-offender went out subsequently and appears to have played a lesser role in the matter, and perhaps initially as a would-be peacemaker. The sentencing judge was prepared to proceed on the basis that at the time the co-offender followed the appellant from the bar it was not with the conscious intention or purpose of pursuing any grievance against the appellant’s sister, and that her subsequent intervention was made with the initial intention of separating the sisters. Those matters constituted a relevant distinction.
The co-offender was 23 years of age at the time of the offending. Although that matter is not enough in itself to justify any significant disparity in outcome, it was capable in combination with other considerations of sustaining a different sentencing result. In particular, the co-offender was still at an age where she was entitled to some

accommodation on account of youthful indiscretion. That also constituted a relevant distinction.
There was one further point of distinction. During the course of the proceedings concerning the co-offender the court received into evidence text messages that had been sent by the appellant’s sister to the appellant. Those text messages made disparaging comments in relation to the co-offender’s physical appearance and ethnicity, and scandalous assertions in relation to her sexual health and proclivities. One message contained what would appear to be a threat of violence directed to the co-offender. These were comments and threats of which the co-offender was aware at the time of the incident in question.

As already noted, the sentencing judge was prepared to accept that the co-offender did not leave the bar with the intention or purpose of engaging in a physical altercation with the appellant’s sister. The sentencing judge was also prepared to accept that once the scuffle had broken out between the appellant and her sister, the co-offender’s intervention and subsequent response were affected by her knowledge of the offensive comments which had previously been made by the appellant’s sister. In effect, the sentencing judge accepted that the behaviour of the appellant’s sister in that respect had been highly provocative and operated to at least some degree in mitigation of the co-offender’s conduct.
Those same text messages were not sought to be tendered during the course of the appellant’s sentencing proceedings. As counsel for the appellant stated at the time, there was nothing useful to be gained for those purposes by taking the court through the exchange of text messages between the two.[10] The adoption of that position was unsurprising. Those text messages did not make threats, scandalous assertions and disparaging comments in relation to the appellant, and would not have operated in mitigation of the appellant’s conduct in the same manner as they did for the co-offender. That constituted a third relevant point of distinction.
Counsel for the appellant made the submission that the appellant is entitled to feel a justifiable sense of grievance at the differential result. The appellant’s subjective feelings in that respect are, of course, irrelevant to the result on appeal. An appeal court takes an entirely objective approach when assessing the existence or otherwise of what Dawson J referred to in Lowe as “a justifiable sense of grievance on the part of the offender” or “the appearance that justice has not been done”.[11] As the New South Wales Court of Criminal Appeal observed in R v Wei Pan:[12]
The test for determining the existence of a sense of grievance is objective not subjective. What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender's grievance is justified.
While it is not necessary for the appellant to establish that the sentence imposed on her was manifestly excessive in order to succeed on this ground,[13] it is necessary to establish that the disparity is both unjustified and significant. As the Full Court of the Supreme Court of Victoria has noted, it must be shown that the unjustified disparity between the sentences “is manifestly and not merely arguably excessive”.[14] The same formulation was picked up by Gummow J in Postiglione, where his Honour observed:[15]
The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.
For the reasons identified, there were a number of grounds on which a distinction was legitimately drawn between the appellant’s conduct and circumstances and those of the co-offender. Having regard to those

distinctions, it cannot be said that the disparity between the sentences imposed is manifestly excessive.
Disposition
The appeal is dismissed.

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[1][2015] NTCCA 5; 35 NTLR 186 at [37].

[2][2011] VSCA 7 per Bongiorno JA at [22], Redlich JA agreeing. Also cited in Namala v Whittington [2016] NTSC 71 at [25].

[3]Hesseen v Burgoyne [2003] NTSC 47 at [13].

[4]Carnese v The Queen [2009] NTCCA 8 at [16], citing The Queen v McInerney (1986) 42 SASR 111 at 124.

[5]Toohey v Peach (2003) 141 A Crim R 437 at 440-441; Carnese v The Queen [2009] NTCCA 8 at [16].

[6][2005] NTSC 86 at [17].

[7]Lowe v The Queen (1984) 154 CLR 606 at 609 per Gibbs CJ.

[8] Lowe v The Queen (1984) 154 CLR 606 at 623 per Dawson J.

[9]Postiglione v The Queen (1997) 189 CLR 295 at 301-2 per Dawson and Gaudron JJ.

[10] Transcript of Proceedings, No 21600155, 30 May 2016, p 19.

[11] Lowe v The Queen (1984) 154 CLR 606 at 623.

[12] [2005] NSWCCA 114 at [34] per Johnson J; cited with approval in that Pavicevic v The Queen [2010] ACTCA 25 at [10].

[13] Lowe v The Queen (1984) 154 CLR 606 at 609-10 per Gibbs CJ.

[14] Pecora v The Queen [1980] VR 499 at 504; cited with approval in Pastras v The Queen (1993) 65 A Crim R 584 at 588.

[15] Postiglione v The Queen(1997) 189 CLR 295 at 323 per Gummow J.