Se v Masani
[2023] NTSC 96
•8 November 2023
CITATION:SE v Masani [2023] NTSC 96
PARTIES:SE
v
MASANI, Kolisi
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 19 of 2023 (22305339)
DELIVERED: 8 November 2023
HEARING DATE: 19 October 2023
JUDGMENT OF: Hiley AJ
CATCHWORDS:
CRIMINAL LAW – Appeals – Appeal against sentence – youth - whether sentence for aggravated unlawful assault of domestic partner was manifestly excessive - detention as a last resort for youths - balance between rehabilitation and other sentencing factors – appeal dismissed.
SENTENCING - Youth – Detention as a last resort - balance between rehabilitation and other sentencing factors – need for general deterrence especially where the type of offending is adult-like and prevalent – prevalence of domestic violence against Aboriginal women – appeal dismissed.
Criminal Code Act 1983 (NT), s 88(2)
Sentencing Act 1995 (NT), s 43(7)Youth Justice Act 2005 (NT), s 3, s 3(e), s 4, s 4(c), s 4(g), s 81(1), s 81(1)(f), s 81(3), s 81(6), s 83(1)(h), s 91, s 94, s 98(2), s 121(6), Part 6
Fox & Freiberg’s Sentencing: State and Federal law in Victoria (Third Edition), Law Book Company, 2014
AB v The King [2023] NTCCA 8; AK v The Queen [2021] NTCCA 4; KT v The Queen (2008) 182 A Crim R 571; R v Goodwin [2003] NTCCA 9; R v Mills [1998] VR 235; TM v The Queen [2017] NTCCA 3; R v Wurramurra [1999] NTCCA 45 applied.
Israel Amado v The Queen [2011] NSWCCA 197; Gumurdul v Reinke (2006) 161 A Crim R 87; Ryan v Malogorski [2021] NTSC 55 distinguished.
DPP v Lawrence [2004] VSCA 154; 10 VR 125; Edmond & Moreen v The Queen [2017] NTCCA 9; Forrest v The Queen [2017] NTCCA 5; Jordan v The King [2023] NTCCA 2; Nancarrow v The Queen [2010] VSCA 300; R v Bloomfield [1999] NTCCA 137; R v Nichols (1991) 57 A Crim R 391; Yovanovic v Pryce (1985) 33 NTR 24 referred to.
REPRESENTATION:
Counsel:
Appellant:D Pallister
Respondent: T Gooley
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Hil2302
Number of pages: 16
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSSE v Masani [2023] NTSC 96
No. LCA 19 of 2023 (22305339)
BETWEEN:
SE
Appellant
AND:
KOLISI MASANI
Respondent
CORAM: HILEY AJ
REASONS FOR JUDGMENT
(Delivered 8 November 2023)
On 21 March 2023 the appellant, SE, pleaded guilty to the aggravated unlawful assault of GM (the victim) contrary to s 188(2) of the Criminal Code Act 1983 (NT) (Criminal Code). The circumstances of aggravation were that the victim: suffered harm; was a female and SE was a male; was unable to effectually defend herself due to the situation; and was threatened with an offensive weapon, namely a steel rack.
On 5 May 2023, the Youth Justice Court sentenced the appellant without conviction to 15 months detention wholly suspended with an operational period of 14 months. Aggravated assault of this kind attracts a maximum penalty of five years imprisonment.
SE has appealed against that sentence on two grounds:
(1) that the sentence was manifestly excessive; and
(2) that the learned Judge erred by failing to consider sentencing options that were alternatives to a period of detention.
The appellant (aged 16) and the victim (aged 17) were in a domestic relationship and had been partners since 2021. At 12.27 am on Friday 17 February 2023, GM was walking on the footpath at Gregory Terrace, Alice Springs, with some relatives. Without reason, SE approached GM and assaulted her. He punched her twice to the body, then kicked her legs in an attempt to make her lose her footing. As a result of that she fell over. He then forcibly kicked her another three times while she was on the ground. That caused her immediate pain. She yelled out to her relatives for help. He continued to assault her by hitting her over the head and body with a steel rack. GM attempted to get up off the ground but SE continued to assault her with the steel rack, causing her to fall back onto the ground. He forcibly kicked her to the face as she was cowering in pain. He continued to kick her to the back. He then told her to get up and follow him. He threatened that if she didn’t get up and follow him he would continue to assault her. GM was afraid of SE and followed him to the Council lawns where she used a bubbler to wash blood off her face. Police arrived while she was doing that.
In addition to pain all over her body, GM sustained a one centimetre gaping laceration to the back of her head. She was taken to Alice Springs Hospital where she received medical treatment for her injuries.
Relevant principles
The principles concerning appeals based upon manifest excess are well established. They are conveniently summarised in the recent decision of the Northern Territory Court of Criminal Appeal in AB v The King.[1] See too for example Jordan v The King,[2] Forrest v The Queen[3] and Edmond & Moreen v The Queen.[4]
In relation to youths, the main sentencing principles are set out in the Youth Justice Act 2005 (NT) (the Act). One of the objects of the Act is to ensure that a youth who has committed an offence is given “appropriate treatment, punishment and rehabilitation”.[5]
Section 4 of the Act sets out a long list of general principles that must be taken into account in the administration of the Act. Most of those principles are directed at the youth. These include a principle that “a youth should only be kept in custody for an offence (whether on arrest, on remand or under sentence) as a last resort and for the shortest appropriate period of time.”[6] The only principle that goes anywhere near other important sentencing principles such as general deterrence is s 4(g) which states that “a balanced approach must be taken between the needs of the youth, the rights of any victim of the youth’s offence and the interests of the community.”
Whilst ss 3 and 4 relate more generally to the Act as a whole, Part 6 relates to the Court’s powers and functions when sentencing a youth. Section 81(1) states that when sentencing a youth who has been found guilty of an offence, the Court must have regard to standard sentencing principles, except as modified by the Act, and must have regard to the principles set out in s 4 of the Act.
Section 81(3) states that: “The Court must dispose of the matter in a way that is in proportion to the seriousness of the offence.”
Section 81(6) states that: “The Court must impose a sentence of detention or imprisonment on a youth only as a last resort, and a sentence of imprisonment only if there is no appropriate alternative.”
There are of course numerous authorities that refer to the sentencing of young people. Most often cited is R v Mills.[7]
The Northern Territory Court of Criminal Appeal referred to the rehabilitative purpose of sentencing youth offenders in TM v The Queen.[8] At [25] – [27]:
Rehabilitative purpose
[25] It is necessary first to give some consideration to the proper place of rehabilitative purpose when sentencing youth offenders. It is no doubt correct to say, as was observed in R v Mills[9], that in the case of youthful offenders, and particularly first offenders, rehabilitation is usually far more important than general deterrence. This recognises both that youthful offending is often the product of immaturity and that imprisonment has significant limitations as a rehabilitative tool. However, it is not correct to say that rehabilitation will necessarily be the “paramount” sentencing consideration in all cases, or that rehabilitation will necessarily be more important than other sentencing purposes.
[26] The focus on rehabilitation over deterrence in the case of youthful offenders is directed to the offender’s capacity to alter his or her behaviour so as not to reoffend, and to ensure the youth is dealt with in a way that acknowledges his or her needs and will provide him or her with the opportunity to develop in socially responsible ways. Rehabilitation may carry far less weight in respect of a repeat offender who has previously been afforded a number of opportunities to modify his or her behaviours through the imposition of non-custodial dispositions, but has failed to do so and has committed a very serious criminal offence.[10] In such cases the prospects of rehabilitation may be considered as diminished, and the weight properly attributed to rehabilitative purpose in the sentencing process lessened as a result.[11] The youth must be held accountable and made aware of his or her obligations under the law and the consequences of contravening the law. The court must maintain a proper balance between the needs of the youth, the rights of the victim and the interests of the community.
[27] This is not to say that the prospects of rehabilitation will necessarily be considered as extinguished in cases of serious offending. It is only to say that the manner in which the balance is to be struck between rehabilitation and the other sentencing purposes will be guided by a consideration of both the seriousness of behaviour and the prior criminal history. That balance will be reflected in such matters as whether the sentence is custodial or non-custodial; and, if custodial, the length of the head sentence, whether a non-parole period or an order suspending sentence is imposed, and the minimum time to be served. By way of example, the purposes of punishment, denunciation and deterrence may be primarily served by the imposition of a stern head sentence, while at the same time the purpose of rehabilitation may be primarily served by an order suspending sentence after a period of incarceration of lesser duration than would otherwise have been required but for the offender’s youth.
(underlining added by me)
The Court proceeded to refer to adult-like offending (at [28]), and referred to the observations of the Court of Criminal Appeal in R v Goodwin,[12] where it was said:
It is well established that if a young offender commits a criminal offence like an adult then that justifies sentencing him or her in a fashion more akin to an adult. Where crimes of considerable gravity are committed the protective function of the criminal Court would cease to operate unless denunciation, general deterrence and retribution are significant sentencing considerations even in respect of juveniles.
(underlining added by me)
In AK v The Queen[13] the Northern Territory Court of Criminal Appeal referred to Goodwin and quoted and applied most of the following observations of McClennan CJ at CL in KT v The Queen:[14]
The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted himself or herself in the way an adult might, and has committed a crime of violence or considerable gravity. … In determining whether a young offender has engaged in ‘adult behaviour” …, the court will look to various matters including the use of weapons, planning or pre-mediation, the existence of an extensive criminal history and the nature and circumstances of the offence. … Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.
(underlining added by me)
The Court in TM proceeded to discuss the particular offending the subject of that appeal and said, at [33]:
[33] Having regard to the features of this offending it may properly be characterised as of “considerable gravity”, with the consequence described by the Court in R v Goodwin.[15] Considerations of denunciation, general deterrence and protection of society had a significant part to play in determining an appropriate sentence. Such considerations had to be balanced with a consideration of the age of the appellant and his prospects for rehabilitation.
(underlining added by me)
The Court then had this to say, in relation to the fixing of the head sentence and the length and purpose of suspending the head sentence in whole or in part, at [35]:
[35] Although the sentencing court takes into account the same considerations which inform fixing the head sentence, it may be expected to apply different weightings to those considerations for the purpose of determining whether an order suspending sentence should be made and, if so, after what period of imprisonment. It is both legitimate and appropriate where warranted by the circumstances of the case for a sentencing court to give greater weight to the purposes of punishment, denunciation and deterrence when fixing the head sentence, and to give greater weight to the purpose of rehabilitation in making an order suspending sentence.
(underlining added by me)
In summary, the authorities recognise that there will be cases where actual detention or imprisonment should be ordered. As pointed out in TM, many of those cases involve serious offending, and many involve repeat offenders who present a danger to the community. Another circumstance is where the offending involves adult-like behavior.
Other such cases exist where a particular form of offending is prevalent and there is thus a greater need for the sentence to provide general deterrence.
At p 355 Fox & Freiberg said, in relation to the mitigating effects of an offender’s youth:
It may also be diminished where an offence is prevalent among a younger age group, and where a deterrent sentence is called for because of the susceptibility of that group to engage in that kind of misconduct. Drug offences are a good example, as are offences related to driving where young drivers are at high risk and where they also may be of good character with few, if any, prior convictions.
To those examples I would add situations where small groups of youths engage in criminal activities at night time, taking the form of property offences and in some cases assaults and robbery. And, unfortunately, domestic violence against Aboriginal women and girls.
For many decades, Northern Territory Courts have lamented the awful predicament of some Aboriginal women being treated violently by their Aboriginal partners. In R v Wurramurra,[16] the Northern Territory Court of Criminal Appeal had much to say about this, at [25] – [38]. At [25] – [26]:
[25] Courts in the Northern Territory, and elsewhere in Australia, have been consistently expressing concern as to the level of violence occurring in some Aboriginal communities. The type of violent offending to which the respondent pleaded guilty in this matter is all too familiar to those involved in the administration of justice in the Northern Territory. Often the violence is, as in this case, extreme in its nature involving the use of offensive weapons. It frequently results in death or, as here, life-threatening injuries. The assaults are often by a male upon a female, but on many occasions they are directed at children and other persons who are, for one reason or another, weaker members of the community. Objectively viewed the incidents are often extremely disturbing. For the victims they must be horrifying.
[26] The courts have been concerned to send what has been described as “the correct message” to all concerned, that is that Aboriginal women, children and the weak will be protected against personal violence insofar as it is within the power of the court to do so.
Unfortunately violence inflicted by some Aboriginal men upon their Aboriginal partners remains particularly prevalent in and near Alice Springs. This requires a Court to place strong emphasis upon denunciation, general deterrence and the need to protect other Aboriginal women from such violence. This is particularly important in relation to youthful offenders, and more so where their victims are also very young. Other youths need to be made aware that if they engage in this kind of conduct they are liable to be sentenced to a term of detention, notwithstanding that they are youths.
Broadly, the rationale underlying Mills and most of the other cases concerning young offenders is that the likelihood of successful rehabilitation of a young offender will not be assisted, rather may well be impaired, if the offender is actually detained or imprisoned and thereby exposed to other criminals. This is reflected in the principle in s 4(c) of the Act, that: “a youth should only be kept in custody for an offence (whether on arrest, on remand or under sentence) as a last resort and for the shortest appropriate period of time.”[17]
However, that broad rational stated in [24] above is not so readily applicable in a case such as this where the sentence is fully suspended. Although there remains a head sentence of detention, a breach, by way of re-offending or where a condition is breached, will not automatically result in detention. Unlike a suspended sentence under the Sentencing Act 1995(NT) where the Court must restore the sentence in part at least (and order the offender to serve it) unless it considers that would be unjust,[18] a breach of a suspended sentence under the Act will not result in the offender serving a period of detention until and unless the Youth Justice Court revokes the existing order and resentences the offender under s 83 of the Act.[19]
Application to the present matter
The offending was objectively serious. In addition to the fact that it was a case of domestic violence against his young partner, it was unprovoked and prolonged, involved him kicking GM to the face and back when she was on the ground, and him using the steel rack as a weapon and hitting her to the head and body several times. Also, it occurred in the presence of some relatives who apparently felt unable to assist despite her calling to them for help. Moreover, he continued to assert his control over GM by threatening to continue to assault her if she did not get up and follow him. I consider that this offending falls at the mid-range of offending for this kind of offence. I also consider it was adult like offending.
Mitigating circumstances included that this was the appellant’s first offence, he was a young man of prior good character, his prospects of rehabilitation were positive, he was remorseful, he pleaded guilty at an early stage, and he was well supported by his family. His Honour took all of these things into account.
His Honour also said:[20]
As was highlighted by Mr Arnab, usually, general deterrence is not a significant sentencing factor in this court. Nor is it usually when young people like yourself, of prior good character come to court. Unfortunately, domestic violence is prevalent, and your conduct can only be viewed as very adult in nature. And the court has a responsibility to say to you, and other people in the community, if you want to get involved in domestic violence, you can only expect that the court will treat it very seriously. And deal with that in an appropriate way.
…
Having considered all of the material, I am satisfied though, that it is sufficiently serious, noting the nature and the type of violent assault upon her, it being also in a very public place here in Alice Springs, that a period of detention should be ordered. Because of your good record, or lack thereof of any record, and your early plea of guilty, including your prospects of getting your life back on track, and your good prospects of not coming back to court again, I’m not going to record a conviction, although it’s been requested by the prosecution.
(underlining added by me)
His Honour proceeded to sentence SE, without conviction, to 15 months detention suspended immediately on his promise to stay out of trouble for the following 14 months and comply with various conditions designed to assist his rehabilitation.
Ground of appeal 2 is that “the learned Judge erred by failing to consider sentencing options that were alternatives to a period of detention”. SE’s lawyer, had asked the Court to “dispose of the matter by way of a non-conviction, good behaviour order.”
Apart from asking the Judge, at the end of his submissions, to consider SE’s rehabilitation “to be the first and foremost priority in the sentencing exercise”,[21] defence counsel did not expressly draw the Judge’s attention to s 81(6), or for that matter to any other provisions of the Act. Nor did he need to. He was quite entitled to assume that these general principles, including the ordering of detention as a last resort were well known to this very experienced Judge. There was no need for him to expressly repeat his knowledge of those principles and application to this particular case.
In the event, it is clear from his Honour’s reasons, including those quoted in [28] above, that his Honour did consider that a period of detention should be ordered. He gave reasons for that. A good behaviour order would have been manifestly inadequate.
Counsel for the appellant relied strongly on three authorities: Gumurdul v Reinke;[22] Ryan v Malogorski;[23] and Isreal Amado v The Queen.[24] Each of those cases is readily distinguishable. In Gumurdul v Reinke the offender, an adult, was actually ordered to serve two months imprisonment before being released on a suspended sentence. The offender in Ryan v Malogorski was also an adult male to whom the Act had application. Counsel relied on Justice Blokland’s reference to the need for reasons to be given before imprisonment is imposed and her Honour’s reliance on the NSW Court of Criminal Appeal’s decision in Israel Amado v The Queen. However, that decision concerned a trial Judge stating during submissions that he would be imposing a suspended sentence, but later ordering imprisonment, without providing any reasons for his change of mind.
As I have said, this experienced judge was well aware of the options potentially available to him and concluded that detention was necessary, albeit to be suspended forthwith.
This leaves for consideration Ground 1, namely that the sentence was manifestly excessive.
In the present case, the Youth Justice Court correctly applied the balance referred to in the authorities such as TM (particularly [33] and [35] quoted above) and AK.
The need for denunciation, general deterrence and protection of other Aboriginal girls, was properly reflected by the Youth Justice Court ordering detention. The need for rehabilitation was properly reflected in the normal way by suspending that sentence, in the present case without requiring the appellant to spend any time in actual detention. The appellant’s good character and good prospects of rehabilitation were also reflected by his Honour ordering no conviction be entered.
It was and remains important that the appellant, and other men, particularly young men as they embark upon domestic relationships, be made fully aware that if they engage in this kind of violent and prevalent behaviour, detention or imprisonment may well follow. Furthermore, that members of the community, particularly Aboriginal women, be protected from such behaviour insofar as it is possible for Court orders to achieve such an important objective.
In this case, the appellant knows that if he does anything like this again or otherwise breaches the terms of his suspended sentence, he may be re-sentenced and be then ordered to spend some time in detention.
Even if his Honour had imposed a different penalty such as a good behaviour order or a community work order, it is likely that the same conditions would have been attached.
Re-offending or non-compliance would ultimately likely result in the same consequences, whether it be a warning, an extension of the relevant operational period, variation or addition of conditions, or imposing a period of detention. This is so whether the Court is dealing with a breach of a Good Behaviour Order (GBO) ordered under s 83(1)(f) and s 91, breach of a Community Work Order ordered under s 83(1)(h) and s 94, or a breach of a suspended sentence ordered under s 83(1)(i) and s 98(2)). Section 121(6) requires the Court to confirm or vary the order, or revoke the order and resentence the offender.
The only practical difference between the different forms of sentence in the present case is that the appellant’s record would show that he had been sentenced to detention, as distinct from sentenced to a GBO or CWO.
I do not consider that the period of detention ordered, namely 15 months detention after a 25% discount, was manifestly excessive. As I have said, the offending was very serious, and this kind of offending, namely domestic violence against Aboriginal women, is prevalent, rendering it important that the sentence properly reflect the need for general deterrence. A starting point of 20 months was well within the range of sentences imposed in other cases with comparative circumstances.
I do not consider that the sentence was manifestly excessive. The appeal is dismissed.
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[1] [2023] NTCCA 8 at [56] – [57]
[2] [2023] NTCCA 2 at [20]
[3] [2017] NTCCA 5 at [63]-[64]
[4] [2017] NTCCA 9 at [4]
[5] Section 3(e).
[6] Section 4(c)
[7] [1998] VR 235 (Mills)
[8] [2017] NTCCA 3 (TM)
[9] [1998] 4 VR 235
[10] As the seriousness of the criminality increases there will be “a corresponding reduction in the mitigating effects of the offender’s youth”: see Fox & Freiberg’s Sentencing: State and Federal law in Victoria (Third Edition), Law Book Company, 2014, p 355. See also R v Bloomfield [1999] NTCCA 137 at [21], [34]; R v Goodwin [2003] NTCCA 9 at [10]-[11].
[11] DPP v Lawrence [2004] VSCA 154; 10 VR 125, cited in Fox & Freiberg’sSsentencing: State and Federal law in Victoria (Third Edition), Law Book Company, 2014, p 354. See also Yovanovic v Pryce (1985) 33 NTR 24 at 27-28; Nancarrow v The Queen [2010] VSCA 300; R v Nichols (1991) 57 A Crim R 391 at 396.
[12] [2003] NTCCA 9 at [11]
[13] [2021] NTCCA 4 (AK) at [41] – [42]
[14] (2008) 182 A Crim R 571 at [25]
[15][2003] NTCCA 9
[16] [1999] NTCCA 45
[17] Section 4(c) the Act
[18] Section 43(7) Sentencing Act
[19] Section 121(6) the Act
[20] Transcript 5 May 2023 pp 8-9
[21] Transcript 5 May 2023 p 6
[22] (2006) 161 A Crim R 87
[23] [2021] NTSC 55
[24] [2011] NSWCCA 197
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