Rowan v The Queen

[2020] NTCCA 14

CITATION:Rowan v The Queen [2020] NTCCA 14

PARTIES:  ROWAN, Clarke Ben

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 8 of 2020 (21842844)

DELIVERED:  7 December 2020

HEARING DATE:  1 December 2020

JUDGMENT OF:  Southwood and Brownhill JJ and Riley AJ

CATCHWORDS:

APPEAL AGAINST SENTENCE – whether the sentence was manifestly excessive – whether the sentencing Judge erred in fixing a non-parole period – conferral of a non-parole period rather than a partially suspended sentence not unreasonable or plainly unjust – appeal dismissed.

Johnson v The Queen [2012] NTCCA 14, Whitehurst v The Queen [2011] NTCCA 11, applied.

Phillips v The Queen [2019] NTCCA 18, distinguished.

Edmond and Moreen v The Queen [2017] NTCCA 9, followed.

REPRESENTATION:

Counsel:

Appellant:A Abayasekara

Respondent:  D Castor

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  8

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Rowan v The Queen [2020] NTCCA 14

No. CA 8 of 2020 (21842844)

BETWEEN:

CLARKE BEN ROWAN

Appellant

AND:

THE QUEEN

Respondent

CORAM:    SOUTHWOOD AND BROWNHILL JJ AND RILEY AJ

REASONS FOR JUDGMENT

(Delivered 7 December 2020)

The Court:

1. This is an appeal against sentence. The sole ground of appeal is that the sentence was manifestly excessive as a result of the sentencing Judge having erred in fixing a non-parole period rather than imposing a partially suspended sentence of imprisonment.

2. On 4 March 2020, the appellant pleaded guilty to four offences arising out of one set of circumstances. Those offences were that: (1) he unlawfully assaulted a worker, a taxi driver, in the performance of his duties and caused him harm; (2) he threatened to kill the worker; (3) he assaulted the worker with intent to steal and caused him harm; and (4) he made a demand with menaces with intent to obtain a benefit from the worker. Following the plea, a supervision report and a home detention report were obtained and further submissions made. On 18 May 2020, the appellant was sentenced to a total term of imprisonment of three years with a non-parole period of 18 months. The sentence was deemed to commence on 28 February 2020 to reflect time spent in custody.

3. There is no challenge to the individual sentences nor to the total head sentence other than the claim that the sentencing Judge erred in fixing a non-parole period rather than suspending part of the sentence.

   The circumstances of the offending

4. There was no dispute as to the circumstances of the offending, which the sentencing Judge described in the following terms:

   Briefly, the facts are that the victim, who was a taxi driver, picked up the offender in Darwin CBD. The offender wanted to go to Palmerston, and the victim then took him to Palmerston. When they arrived there, the offender was asleep, lying on the floor of the back seat of the taxi. The victim attempted to wake him. When he awoke, the offender punched the victim. The victim fell and the offender continued to strike him. These events took place, not only in the vicinity of the car but, in various parts of the car park. The victim attempted to defend himself but, because of repeated punches, he has said he could not see. On a number of occasions, he asked the offender to stop hitting him. He said, “brother, I can’t see. Stop hitting me”. Finally, the offender stopped and said he was sorry. The offender then asked the victim to drive him to a different location. The victim was frightened, and I can understand why, but he did so. At an intersection, the victim stopped the taxi and asked for specific directions from the offender. The offender then began assaulting the victim again. He said, “I will stab you.” He punched and choked the victim. He said words to the effect, “I will kill you”. He yanked the victim’s head sideways. The victim was unconscious for a short period. Finally, the offender got out of the taxi and ran away, after, for good measure, striking the victim one last time. Subsequently the victim attended the hospital with a swollen and bruised face. His right eye in particular was swollen. He had grazed both his knees. He grazed his elbows. His shoulders were sore and his neck was stiff. A CT scan was carried out, and that demonstrated a right parietal subarachnoid haemorrhage. He had a laceration under the right eye that required some stitching.

5. A purpose of count 1 on the indictment is to protect workers who provide an important service to the community and work in circumstances which make them particularly vulnerable to criminal conduct. The assaults upon the victim also impacted upon his work and livelihood. In his victim impact statement, he stated:

   As a result of this crime, I lost my work [for six months].

   I can no longer drive nights as I am scared of what can happen.

6. At first instance, counsel for the appellant submitted to the sentencing Judge that this was an appropriate case for home detention, and the report obtained by his Honour advised that the appellant was suitable for a period of home detention at an identified address. The report obtained under s 103 of the Sentencing Act 1995 (NT) concluded that he was also suitable for supervision by Community Corrections.

7. The sentencing Judge concluded that the imposition of a period of home detention did not reflect the seriousness of the offending, observing that this was a “particularly vicious, unprovoked attack” on a taxi driver, and “the community demands that there should be strong penalties for this type of offence”. His Honour relied upon observations of the Court of Criminal Appeal in Edmond and Moreen v The Queen [2017] NTCCA 9 regarding the vulnerability of taxi drivers, and observed that emphasis must be placed upon general deterrence, punishment and personal deterrence. There is no challenge to those conclusions. In matters such as this, less weight is to be given to rehabilitation.

8. His Honour gave consideration to the very positive personal circumstances of the appellant noting that:

   Rehabilitation is an important sentencing factor in this case. I particularly bear in mind the fact that he is a young man, that he has a good work record and has a good future and an employer who is prepared to stand behind him. And in coming to the conclusion I reached in the end, I take into account both the strong submissions made on his behalf and what is compelling character evidence from Mr Rhys Jones. The reference was provided, clearly, after considerable thought by Mr Rhys Jones, and is most persuasive. It shows that he has great faith in the offender.

9. Notwithstanding those positive findings, his Honour concluded “there can be only one penalty for these crimes, and that is a term of imprisonment”. His Honour went on to say that he was not prepared to suspend any part of the sentence and referred to the actions of the offender as being both “frightening and thuggish”.

10. The sentencing Judge did not expressly state why it was that a non-parole period was to be preferred over a partially suspended sentence of imprisonment. As the appellant has pointed out, and the respondent acknowledged, there was much to commend the imposition of a partially suspended sentence.

11. The matters placed before the sentencing Judge, and which were accepted by his Honour, indicated that the appellant had strong prospects for rehabilitation. Those matters included:

    (a)the appellant was 24 years of age, still a young man, and had no prior convictions for violent offending;

    (b)the conduct was out of character;

    (c)he had completed two years of his three-year apprenticeship in engineering – heavy metal fabrication and he had excelled in the apprenticeship thus far;

    (d)his manager had supplied a very positive reference setting out the achievements of the appellant and his prospects for future leadership positions;

    (e)his manager was prepared, if able, to take the appellant back as an apprentice upon his release from prison;

    (f)he had been on bail since 11 October 2018 subject to a residence curfew, weekly reporting and a prohibition on the consumption of alcohol. While he committed two breaches of his bail conditions, each related to the consumption of alcohol with one also to curfew, and neither related to further offending;

    (g)he pleaded guilty at the first available opportunity in circumstances demonstrating acceptance of responsibility for his conduct;

    (h)he was ashamed and remorseful for his conduct and had indicated a willingness to make restitution to the victim for financial loss; and

    (i)counsel for the prosecution acknowledged that the appellant “seems to be able to hold down a job and there seems to be good prospects for rehabilitation”.

12. The question whether to impose a non-parole period or to suspend a sentence must be answered in light of all the circumstances surrounding both the offence and the offender. The seriousness of the offending was reflected in the significant and unchallenged head sentence of imprisonment for three years. The sentencing Judge imposed the minimum non-parole period of 18 months. A fair reading of his Honour’s sentencing remarks leads to a conclusion that such a period was, in the view of his Honour, the minimum period of imprisonment which was required to reflect the seriousness of the offending and the weight which is to be given to general deterrence and denunciation in cases such as this.

13. In written submissions, the respondent acknowledged that the appellant had “a potentially good argument for a partially suspended sentence at first instance”. However, referring to the Court of Criminal Appeal decision in Johnson v The Queen, the respondent posed the question whether the decision to impose a non-parole period on the appellant was “unreasonable or plainly unjust”.[1] The respondent submitted that to alter the sentence to impose a partially suspended sentence would be to substitute one legitimate exercise of the sentencing discretion for another.

14. Both parties referred this Court to the following observations made in Whitehurst v The Queen:[2]

    In choosing whether to proceed by way of a suspended sentence or a non-parole period the sentencing Judge must consider many things including any relevant legislative provisions, the nature of the offending, the minimum period of imprisonment which must be actually served to reflect the seriousness of the offending, and the personal circumstances of the offender including any prospects for rehabilitation. Consideration of the personal circumstances of the offender and his prospects for rehabilitation is likely to involve determining how any prospects for rehabilitation may be addressed and enhanced; whether there is a need for supervision and, if so, the nature of that supervision; the existence of, and the nature of, any support mechanisms available to the offender outside the custodial setting; the identification of impediments and risks to rehabilitation and so on.

15. In this case, counsel took the Court through the range of relevant considerations. It is apparent that the sentencing Judge had regard to the matters identified in Whitehurst v The Queen. Contrary to the submission of the appellant to the effect that there were no particular features that obviously called for the fixing of a non-parole period, there were features which pointed against the fixing of a suspended sentence and which the sentencing Judge could have legitimately, and did, take into account, including: that the appellant had on a number of occasions become intoxicated and then had an involvement with the law, including the two instances of breach of bail and two drink driving offences; that the appellant did not appear to have insight into or accept that, despite that history, he had issues with alcohol consumption; and that the appellant had been less than truthful about the level of his alcohol consumption when spoken to by the Community Corrections officer. These matters, particularly the offender’s insight into his issues with alcohol consumption and the lack of any rehabilitative steps taken in that regard, distinguish the present case from that in Phillips v The Queen [2019] NTCCA 18. In our opinion, the objective seriousness of the offending, the vulnerability of the victim, and the matters to which we have just referred confirm that the exercise of the sentencing Judge’s wide discretion to confer a non-parole period rather than a partially suspended sentence was not unreasonable or plainly unjust.

16. The appeal is dismissed.

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[1]    Johnson v The Queen [2012] NTCCA 14 at [26].

[2]    Whitehurst v The Queen [2011] NTCCA 11 at [28].