Siebert v Eldridge and Firth v Eldridge
[2023] NTSC 75
•30 August 2023
CITATION:Siebert v Eldridge and Firth v Eldridge [2023] NTSC 75
PARTIES:SIEBERT, Kelly
v
ELDRIDGE, Steven
and
FIRTH, Justin
v
ELDRIDGE, Steven
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 12 of 2023 (22307317) and
LCA 13 of 2023 (22233874)
DELIVERED: 30 August 2023
HEARING DATE: 26 July 2023
JUDGMENT OF: Kelly J
CATCHWORDS:
Child Protection (Offender Reporting and Registration) Act 2004 (NT) s 83
Local Court (Criminal Procedure) Act1928 (NT) s 171, s 172Everett v The Queen 181 CLR 295; Foster v The King [2023] NTCCA 5; Green v The Queen (2011) 244 CLR 462; House v The King (1936) 55 CLR 499, [1936] HCA 40; The Queen v Kahu-Leedie [2022] NTCCA 4; Markarian v The Queen (2005) 228 CLR 357; The Queen v Mossman [2017] NTCCA 6; Nudd v The Queen (2006) 80 ALJR 614; The Queen v Osenkowski (1982) 30 SASR 212; R v Riley (2006) 161 A Crim R 414; Saddler v The Queen (2009) 194 A Crim R 452; R v Stoupe [2015] NSWCCA 175; Veen v R (No 2) (1988) 164 CLR 465; The Queen v Wilson (2011) 30 NTLR 51; referred to
REPRESENTATION:
Counsel:
Appellants:T Grealy
Respondent: S Wendlandt
Solicitors:
Appellants:Director of Public Prosecutions
Respondent: Northern Territory Legal Aid Commission
Judgment category classification: C
Judgment ID Number: Kel2304
Number of pages: 24
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINSiebert v Eldridge and Firth v Eldridge [2023] NTSC 75
No. LCA 12 of 2023 (22307317) and
No. LCA 13 of 2023 (22233874)
BETWEEN:
KELLY SIEBERT
Appellant
AND:
STEVEN ELDRIDGE
Respondent
AND BETWEEN:
JUSTIN FIRTH
Appellant
AND:
STEVEN ELDRIDGE
Respondent
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 30 August 2023)
This is a Crown appeal against sentence. Following the hearing of the appeal on 26 July 2023 I allowed the appeal and indicated that I would publish reasons at a later date. These are those reasons.
On 3 February 2023, the respondent appeared before the Darwin Local Court and entered pleas of guilty to the following charges on file 22233874:
·Count 1 On 10 October 2022 failed to comply with a Child Protection Prohibition Order (“prohibition order”) contrary to section 83 of the Child Protection (Offender Reporting and Registration) Act 2004 (“Child Protection Act”).
·Count 2 Between 18 June 2022 and 2 November 2022 failed to comply with a prohibition order contrary to section 83 of the Child Protection Act.
·Count 3 On 31 October 2022 failed to comply with a prohibition order contrary to section 83 of the Child Protection Act.
On 23 March 2023, the respondent again appeared before the Darwin Local Court and entered pleas of guilty to the following charges on file 22307317:
·Count 1 On 25 November 2022 failed to comply with a prohibition order contrary to section 83 of the Child Protection Act.
·Count 2 On 23 February 2023 failed to comply with a prohibition order contrary to section 83 of the Child Protection Act.
The learned sentencing judge sentenced as follows:
File 22233874
· Count 1 14 days imprisonment.
· Count 2 2 months imprisonment, cumulative of count 1.
· Count 3 1 month imprisonment, cumulative.
File 22307317
· Count 1
and
Count 2 7 days imprisonment for each offence, cumulative.
The total effective sentence imposed across both files was three months and 28 days imprisonment, commencing on 1 November 2022. The respondent was released forthwith having already served his sentence.[1]
Facts of the offending:
File 22233874
Count 1On 10 October 2022 information was received that the respondent had lodged a mobile phone with internet capabilities to secure a $50 loan with Cash Converters. Being in possession of that phone was a breach of condition 12 of the respondent’s prohibition order (count 1). The respondent told police that sometimes he hocked things for other people who don’t have identification, and that he didn’t recall that occasion.
Count 2
On 18 June 2022, the offender made contact with MM. Between 19 June 2022 and 1 November 2022, the respondent attended her address on multiple occasions, each time when her four and a half year old son was present. MM was not aware of the respondent’s criminal history or the existence of the prohibition order.
For the first part of the period of offending in count 2, the prohibition order prohibited the respondent from having contact with a child except in the presence of an adult who was aware of his criminal history. Part way through the period of offending on count 2, the order was changed to prohibit the respondent from having any contact with children.
The respondent initially told police the only contact was on the day of his arrest, but he then said he may have forgotten other occasions.
Count 3
On 31 October 2022, the respondent picked up JT and her 3-4 year old son from the Palmerston Coles shopping centre. Under the prohibition order in place at that time, the respondent was not permitted any contact with children (count 3). On 1 November 2022 the respondent still had the baby seat in his vehicle. The respondent told police he was going to see JT and not the child, and that he didn’t want to leave her stranded.
File 22307317
Count 1
On 25 November 2022, while at the Darwin Correctional Centre, the respondent phoned JT. During the call he spoke to her child who was 3 and a half years old and tried to maintain a conversation with him (count 1).
Count 2
On 23 February 2023, while at the Darwin Correctional Centre, the respondent phoned JT. During the call he spoke to her child who was 3 and a half years old and tried to maintain a conversation with him (count 2).
The appeal
On 6 April 2023 the appellant filed five Notices of Appeal pursuant to ss 171 and 172 of the Local Court (Criminal Procedure) Act1928 (NT). The appellant appeals against the sentence on the grounds that the learned judge erred in imposing a sentence for each offence which was manifestly inadequate and in imposing a total effective sentence across files 22307317 and 22233874 which was manifestly inadequate.
Principles governing Crown appeals against sentence
The principles governing Crown appeals against sentence are not in dispute.
(a)Crown appeals against sentence should be a rarity brought only to establish some matter of principle.
(b)Manifest inadequacy in a sentence amounts to such an error of principle which the Crown is entitled to have the appeal court correct.
(c)The presumption is that there is no error in any sentence passed by the court below. It is incumbent upon the Crown to show that the sentence was clearly and obviously, and not just arguably, inadequate; that is to say, it must be shown that the sentence is so disproportionate to the seriousness of the offending as to shock the public conscience and demonstrate error in principle.
(d)The principles in House v The King[2] remain applicable to the determination of manifest inadequacy:
… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a 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, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
(e)The principle expressed by King CJ in The Queen v Osenkowski,[3] also remains applicable:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
(f)Even where manifest inadequacy is found, this Court retains a residual discretion as to whether the respondent should be resentenced.
(g)However, in exercising its discretion on an appeal against sentence with respect to an indictable offence, the Court must not take into account any element of double jeopardy when deciding whether to allow the appeal or impose another sentence.
The sentencing hearing
At the sentencing hearing on 3 February 2023, submissions made on behalf of the defendant relied on the defendant’s early guilty plea and its utilitarian benefit, and his diagnoses of ADHD, intellectual disabilities, learning and comprehension issues. (He had difficulty reading and only completed school to year 10.) The defendant submitted that the offending was low to mid-range on the scale of seriousness. The defendant submitted that protection of the community could most appropriately be achieved in the form of programs to maximise the defendant’s rehabilitation prospects.
The prosecutor relied on the defendant’s prior history and his continuing lack of compliance with the probation order.[4] She submitted a custodial sentence was the only sentence available. The prosecutor accepted that the defendant had given up the mobile phone,[5] but emphasised the repeat nature of the other counts, including between the two files.
The prosecutor submitted the offending was serious and emphasised protection of the public as a primary consideration, provided ‘it does not stretch into the realm of preventative detention.’[6] Specific deterrence and denunciation were also significant sentencing factors relied upon.[7]
There was some discussion about obtaining a pre-sentence report but the sentencing judge was concerned about the time that would take, given the length of time the defendant had been in custody and the length of the sentence his Honour was considering imposing. Because of this, his Honour heard a brief oral report from Ms Fox who told the Court that a psychological report from 2019 had diagnosed the defendant with paedophilia and paedophilic disorder and had assessed him as being at a very high risk of re-offending.
The sentencing judge’s reasons were brief. His Honour said that he accepted the submissions from the prosecution including the submission that the defendant had behaviours he found it hard to resist. He acknowledged the defendant’s sexual interest in children and the lengthy past sentences and said that there appeared to be sound reasons for the defendant having no contact with children.
Although there was no specific finding to this effect, it would appear from the sentences imposed that the sentencing judge viewed the offending as low on the scale of objective seriousness.
Submissions
The appellant submits that each of the individual sentences imposed and, as a result, the total effective sentence, was manifestly inadequate contending that the sentences themselves evidence error in the sentencing process.
The maximum penalty for each of the offences was 100 penalty units or five years imprisonment. That was the yardstick and the basis for comparison with the worst possible case.[8]
The respondent was dealt with for five offences which each carried that maximum penalty, yet the total effective sentence of three months and 28 days was approximately 7% of the maximum penalty for a single offence. Whilst conceding that mathematical calculations are of limited assistance, the appellant submits that the statistic is a clear demonstration that the respondent was sentenced toward the very lowest end of the available range.
The respondent points out, correctly, that it would have been open to the sentencing judge to impose a fine rather than a prison sentence. The respondent therefore submits that by imposing a sentence of actual imprisonment, the sentencing judge reflected the objective seriousness of the offending.
The appellant contends that there were aspects of the offending that made it objectively serious taken as a whole.
(a)The offending was a course of conduct over time that demonstrated the respondent’s intention to disregard the fundamental, protective terms of his prohibition order. The purpose of those conditions was to ensure the respondent was not in a position where he had the opportunity to re-offend and his conduct was a deliberate breach of those conditions. The appellant submits that the respondent’s level of moral culpability had to be assessed in the context of that continuing attitude of disobedience to the order.
(b)Further, there was a very limited gap in offending. The respondent was released from his last custodial sentence on or about 8 May 2022 and by 18 June 2022 had started the contact offending the subject of count 2.
The appellant contends that although it was submitted at the sentencing hearing that the respondent had been diagnosed with ADHD as a young person, and that he suffered from intellectual disabilities/learning and comprehension issues, there was no evidence called to that effect.[9] There was no evidentiary basis for the learned sentencing judge to find that there was a reduction in moral culpability on the basis of those matters.
The respondent submits that it is not open to the appellant to make this submission on the appeal. The respondent submits that it was proper for the sentencing judge to take the respondent’s intellectual disability and other cognitive limitations into account because the defence submission about his intellectual disability was not challenged by the prosecutor at the plea. It should therefore not be raised on appeal as a matter of procedural fairness.
The only reference in the defence submissions to the respondent’s intellectual difficulties was the following:[10]
DEFENCE COUNSEL: It is acknowledged that right from the outset, that [the respondent’s] criminal history with regard to compliance with these orders is not exactly spectacular. The issue that comes back to this is that, as a young person, I’ve been instructed, he was diagnosed with ADHD, other intellectual disabilities and he has learning and comprehension issues.
The only reference to those intellectual difficulties in the prosecution’s submissions was the following:[11]
PROSECUTOR: I would be opposed to the ordering of a supervision assessment in light of the defendant’s criminal history, in light of his previous failure to follow his current conditions and he also has several breaches of suspended sentences noted on his criminal history.
Your Honour, given that he is struggling to currently follow conditions of his current prohibition order, I think it may be counterproductive to then have further conditions which he needs to abide by. Your Honour, he has had opportunities in the past and on that basis, the ordering of a supervision assessment is opposed.
Parties will generally be bound by the conduct of their counsel and the exercise of counsel’s wide discretion in the conduct of the trial.[12] However, the prosecution’s conduct at the sentencing hearing, limited as it was to the remarks set out above, can hardly be construed as a concession that the respondent’s intellectual disabilities reduced his moral culpability and/or reduced the importance to be attached to general and specific deterrence as set out in R v Verdins.[13] It could not amount to such a concession as that submission was never explicitly made by the defence.
However, it does not appear from the sentencing remarks that the sentencing judge placed great weight on the respondent’s intellectual disabilities. The sentencing judge did not mention the respondent’s intellectual difficulties in his brief sentencing remarks and did not explicitly find that the respondent’s moral culpability was reduced by any such intellectual difficulty. Further, the prosecution submitted that general and personal deterrence should be treated as significant factors in sentencing and the sentencing judge said that he accepted the prosecutor’s submissions.
The appellant contends that the individual offences were also serious.
File 22233874
(a)Count 1 – Possession of the phone. That the respondent was in possession of a mobile phone with internet access was a serious matter. As is plain from the respondent’s criminal history, he had previously used carriage services to groom children and to transmit indecent materials. Not having access to the internet was an important protective factor. In light of this, the appellant was somewhat critical of the sentencing judge’s observation, “It’s pretty hard to live without a mobile phone these days,”[14] contending that this demonstrated an inappropriate minimising of the seriousness of count 1.
The defence submission that the respondent was engaging in the transaction on someone else’s behalf was not accepted by the prosecution.[15] The appellant contends that, in the absence of evidence, the court could not have proceeded on the basis that that was the case. The respondent fell to be sentenced on the basis that he had been in possession of a prohibited phone, which he had lodged as security for a loan.
The appellant also contends that it was not open to the sentencing judge to find that the respondent had given up the phone. As security for a loan, it would have been returned to the respondent once the $50 had been paid back. While he was not in continuing physical possession of the phone for the duration of the loan, his ownership had not been relinquished. The respondent contends that it is not open to the appellant to dispute this finding of fact on appeal as the prosecutor accepted at first instance that the respondent had given up possession of the phone. I do not think the characterisation of the transaction is of much significance. The agreed fact is that the respondent lodged a mobile phone with internet capabilities to secure a $50 loan with Cash Converters. The gravamen of the offence was that he had been in possession of an internet capable phone before he so lodged it. That is the basis on which the sentencing Judge sentenced the respondent. His Honour said:[16]
So that’s how I characterise the offence. He had a phone which was of a kind he shouldn’t have.
The appellant contends that the respondent’s submission that the phone did not contain child abuse material was not a matter that greatly assisted the sentencing judge.[17] The absence of an aggravating factor does not mitigate the offending.[18] Further, the presence of child abuse material would have amounted to a separate charge and the court would have had to sentence carefully to ensure the respondent wasn’t being punished twice (for that offence and as an aggravating feature of this offence).
(b)Count 2 – Contact with a child. The appellant contends that this was an objectively very serious example of this type of offence. It was an agreed fact that the respondent had attended the house on multiple occasions over the course of more than four months. On each occasion, the respondent had direct contact with a young male child. For part of that time, the respondent had been prohibited from having any contact with children at all. Again, that prohibition was key to ensuring the respondent’s risk of re-offending was adequately managed. The appellant submits that this was a deliberate and continuing breach of the prohibition order which called for condign punishment.
(c)Count 3 – Contact with a child. Again, the respondent breached the order by having direct contact with a young male child. Although this breach was constituted by conduct on one occasion only, the appellant contends that the continuing presence of the child seat in the respondent’s car should have given the sentencing judge concern that there was a real risk of future offending.
At the sentencing hearing, the respondent conceded through counsel that the charge was serious.[19] Defence counsel also submitted that there was an “element of altruism” in the offending, presumably relying on the explanation given by the respondent to police that the contact with the child was incidental.[20] While there is no specific finding in relation to that issue, the appellant submits that the sentencing judge ought to have had concerns about that explanation, given the later offending in which the respondent had intentional contact with the child over the prison phone system.
That offence also needs to be seen in the context of the offending on file 22133504, which the learned sentencing judge had regard to. The respondent had already been punished for similar conduct in relation to the same family and the appellant contends that this gave rise to a need to punish and deter the respondent.
File 22307317
(d)Counts 1 and 2 – Contact with a child while in custody. The respondent’s breaches of the order while in custody were particularly brazen. The offending was captured on recorded phone calls within the prison. At the time, the respondent was on remand on the allegation of having contact with the same child. Despite the respondent’s daily reminder (that is, being on remand) about the need to comply with the prohibition order, the respondent flagrantly breached the non-contact condition. The appellant contends that this was the clearest example of the respondent’s attitude to the order and compliance and that, as such, it was offending that called for deterrence and condign punishment.
The respondent’s criminal history was a significant factor in the sentencing exercise. The High Court in Veen v R (No 2)[21] has made clear the use that can be made of prior criminal history. It was said (at page 447):
The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.
The respondent had a long and relevant criminal history.[22] He has been committing relevant offences for over 20 years. The offences include in-person contact offending (gross indecencies and indecent dealings), contact offending over carriage services (grooming and transmission of materials), as well as non-contact offending (possession of child abuse material). He has also, during this period, had an appalling record of breaching prohibition orders.
On 31 March 2005 he was convicted of two counts of gross indecency, committed when he was 16 years old; on 18 August 2006 he was convicted of three counts of indecent dealing with a child, committed when he was 17 years old; on 17 December 2007, he was convicted of one charge of indecent dealing with a child committed when he was 17 years old and three counts of possessing child abuse material, committed when he was 20; on 30 May 2014, he was convicted of failing to comply with a prohibition order, failing to comply with reporting conditions, furnishing false or misleading information and possessing child abuse material, all committed when he was 26 years old; on 1 December 2017, he was convicted of two counts of possessing child abuse material, two counts of using a carriage service to groom a person under the age of 16, using a carriage service to transmit child pornography, three counts of failure to comply with a prohibition order, two counts of failing to comply with reporting conditions, one count of using a carriage service to procure a person under the age of 16, and one count of transmitting an indecent communication to a person under the age of 16, all committed when he was 30 years old; on 17 December 2020 he was convicted of failing to comply with a prohibition order, committed when he was 34 years old; on 21 January 2021, he was convicted of two counts of failing to comply with a prohibition order and one count of using a carriage service to transmit child abuse material committed when he was 34 years old; and on 9 May 2022 he was convicted of seventeen counts of failure to comply with a prohibition order committed when he was 34 years old and five counts of failing to comply with a prohibition order committed when he was 35 years old.
The appellant contends that this history shows a need to emphasise community protection – that being the purpose behind the prohibition orders. The appellant contends also that the multiple breaches of prohibition orders demonstrates a continuing attitude of deliberate disobedience of the law which warrants a more severe penalty.
The appellant contends that this offending is towards the upper end of the range of seriousness for offences of this nature. The respondent concedes that it is toward the middle of the range but contends that it rises no higher than that. In my view the offending falls within the middle to upper end of the range of seriousness. The appellant contends that each offence warranted a stern term of imprisonment. I agree, essentially for the reasons relied on by the appellant, summarised above.
In my view, the individual sentences are all manifestly inadequate as is the total effective sentence.
The residual discretion
Where a sentence has been found to be manifestly inadequate, this Court retains a residual discretion as to whether the respondent should be resentenced. The Court retains a residual discretion to determine that, despite error having been established and being satisfied that a different sentence ought to have been passed, a Crown appeal should be dismissed. Factors that may be relevant to the exercise of the residual discretion to dismiss an appeal, despite inadequacy of sentence, include the presence of unfairness arising from such matters as delay, parity, the totality principle, rehabilitation and fault on the part of the Crown.[23]
In Green v The Queen[24] the plurality of the High Court stated:
A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
In Everett v The Queen,[25] McHugh J said:
Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in 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. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.
This passage was cited by the New South Wales Court of Appeal in R v Stoupe[26] (one of the cases relied upon by the appellant) and Johnson J (with whom Hoeben CJ at CL Beech-Jones J agreed), added:[27]
It is in the public interest that an appropriate sentence be imposed upon the Respondent, given the clearly erroneous sentence imposed at first instance. An important part of the jurisdiction to hear Crown appeals is to ensure that there will be uniformity of sentencing, which is of great importance in maintaining public confidence in the administration of justice.
…
The present judgment will serve to lay down or emphasise a number of sentencing principles. However, it is appropriate for the Court to proceed to resentence the Respondent. This will serve to maintain public confidence in the due administration of justice.
In R v Riley the Northern Territory Court of Criminal Appeal stated:[28]
In R v Barbara (NSW Court of Criminal Appeal, unreported judgment number 60638 delivered 24 February 1997), Hunt CJ at CL, with whom the other members of the Court agreed, pointed out that the passage from the judgment in Everett cited by Thomas J was not limited to laying down some new point of principle. His Honour said:
It is usually overlooked by respondents that the High Court has at the same time also clearly indicated that sentences which are so inadequate as to indicate error or departure from principle, and sentences which depart from accepted sentencing standards, constitute error in point of principle which the Crown is entitled to have this Court correct.
The Court of Criminal Appeal said in The Queen v Mossman:[29]
The reference to a “matter of principle” must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which constitutes an error in point of principle.[30]
The respondent submitted that the following factors should lead the Court to exercise the residual discretion not to vary the sentence.
(a)The respondent was released on 22 March 2023.
(b)There have been no allegations of further offending since then.
(c)The respondent has a mental health plan.
(d)The respondent is on a wait list to see a psychologist. (On the re-sentencing hearing I was told that he now has an appointment.)
(e)He is living with his mother and providing assistance to his father who is ill.
(f)Although he has, as yet, no employment, he has a job interview on 16 August 2023.
Counsel for the respondent submitted that returning the respondent to prison would greatly disrupt his re-integration into the community.
The appellant submits that the onus is on the respondent to establish each of these matters in mitigation on the balance of probabilities and that the respondent has not adduced any evidence. (However, on the re-sentencing hearing I was advised that the appellant accepts that the respondent’s father is ill and that the respondent assists him in various ways.) This submission by the appellant includes the non-acceptance of the contention that the respondent has not re-offended since his release. The appellant relies on the decision of the New South Wales Court of Criminal Appeal in Richards v R[31] in which the court held:
That there is no evidence before a sentencing judge of further offending conduct after 1986 does not mean that the Court ought infer that there was none. The question is to be determined as a matter of onus. If the Crown seeks to advance, for the purposes of sentencing, that an offender has re-offended and, therefore, has poor prospects of rehabilitation or that it is likely that the offender will re-offend, this is a matter in aggravation which must, accordingly, be proved beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). If an offender seeks to be sentenced on the basis that the offender ceased the offending conduct at a particular time, this is a matter in mitigation, which must be proved on the balance of probabilities: The Queen v Olbrich at [27]. If there is no evidence on the topic, the Court may neither sentence on the basis that the offending conduct has continued nor that it has ceased.
Despite the fact that the respondent has been released into the community, I am of the view that the Crown has established that the respondent ought to be resentenced to avoid injustice in the form of a manifestly inadequate sentence; to provide guidance to the Local Court when sentencing offenders for breaches of prohibition orders; and to maintain confidence in the due administration of justice. The fact that the respondent has been released and the prospect of disruption to his re-integration into the community can be taken into consideration in the structure of the resentence.
Resentence:
File 22233874Allowing a reduction in each case of approximately 20% for the utilitarian value of the plea:
(a)Count 1 – imprisonment for 12 months (reduced by about 20% from 15 months)
(b)Count 2 – imprisonment for 19 months (reduced by about 20% from 2 years) with 12 months cumulative on the sentence for count 1
(c)Count 3 – imprisonment for 10 months (reduced by about 20% from 12 months) with 4 months cumulative on the sentence for count 2
File 22307317
(a)Count 1 – imprisonment for 2 months (reduced by about 20% from 3 months)
(b)Count 2 – imprisonment for 2 months (reduced by about 20% from 3 months) concurrent with count 1
The sentence on File 22307317 is to be cumulative on the sentence for File 22233874.
The total effective sentence is imprisonment for 2 years and 6 months beginning on 1 November 2022 to take into account time already served.
Under normal circumstances, I would direct that a reasonable proportion of the sentence be actually served. However, given that the respondent has been released from prison and the risk of disruption to his re-integration into the community, it seems to me that it would be unjust to return him to prison. Accordingly, I direct that his sentence be suspended forthwith and fix an operational period of two years and six months. Given the regime he is under with the prohibition order in force, the only condition I impose on the suspended sentence is that he comply with the existing prohibition order. The effect of that will be that if he breaches that order again in the next two years and six months, he is likely to have to serve the outstanding balance of the suspended sentence in addition to any other sentence.
----------
[1] He had been on remand for four months and 22 days slightly longer than the sentence imposed.
[2] (1936) 55 CLR 499, [1936] HCA 40
[3] (1982) 30 SASR 212
[4] Transcript 3 February 2023, p 10 and 14
[5] Transcript, 22 March 2023, p 8. Notwithstanding that the appellant disagrees this occurred
[6] Transcript, 22 March 2023, p 8-9
[7] Transcript, 3 February 2023, p 14
[8] Markarian v The Queen (2005) 228 CLR 357 at p 372
[9]Transcript 3 February 2023, TT6.7 and 8.5
[10] Transcript 3 February 2023, T6.6
[11] Transcript 3 February 2023, T10.6
[12]Foster v The King [2023] NTCCA 5 at [53]; Nudd v The Queen (2006) 80 ALJR 614 at [9]
[13] (2007) VLR 590
[14] Transcript 3 February 2023, T6.5
[15]Transcript 3 February 2023, T7.3 (respondent’s submission); transcript 22 March 2023, T8.3 (prosecution submission)
[16] Transcript 3 February 2023, T21.6
[17] Transcript 3 February 2023, T7.5
[18] Saddler v The Queen (2009) 194 A Crim R 452 at 454 [3]
[19] Transcript 3 February 2023, T8.3
[20] Transcript 3 February 2023, T8.2
[21] (1988) 164 CLR 465
[22] Exhibit P2
[23] The Queen v Kahu-Leedie [2022] NTCCA 4 at [49] per Kelly, Blokland and Brownhill JJ; The Queen v Mossman [2017] NTCCA 6 at [16]-[17] per Grant CJ, Southwood and Hiley JJ; The Queen v Wilson (2011) 30 NTLR 51 at [27] per Riley J
[24](2011) 244 CLR 462
[25] [1994] HCA 49; 181 CLR 295 at p 306
[26] [2015] NSWCCA 175 at [116]
[27] ibid at [115] and [117]
[28](2006) 161 A Crim R 414 at [19]
[29][2017] NTCCA 6 at [8] and [9]
[30]Everett v The Queen [1994] HCA 49; 181 CLR 295 at 300
[31] [2023] NSWCCA 107 at [85]
0
1
2