Skeen v Byrne - [2017] NTSC 93

CITATION:Skeen v Byrne [2017] NTSC 93
PARTIES:SKEEN, Nicholas
v

BYRNE, Nicholas O’Shea

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:LCA 50 of 2017 (21659226)
DELIVERED ON:  19 December 2017
DELIVERED AT:  DARWIN
HEARING DATES:  22 November 2017
JUDGMENT OF:  BLOKLAND J
APPEAL FROM:  THE LOCAL COURT
CATCHWORDS:

CRIMINAL LAW – SENTENCE – PRACTICE and PROCEDURE – Procedural fairness – Lack of interpreter during supervision assessment – No breach of procedural fairness – Appeal dismissed
CRIMINAL LAW – SENTENCE – BREACH OF PROCEDURAL FAIRNESS – lack of interpreter during supervision assessment – Procedure adopted by sentencing judge as a result of lack of interpreter – Unsuitable for other reasons – No breach of procedural fairness – Appeal dismissed

Churnside v The State of Western Australia [2016] WASCA 146; G v Bourne (1991) 105 FLR 52; O’Keefe v Tankard [1989] VR 371; Pantorno v R (1989) 166 CR 466; R v Wang; R v Roizman [2013] NSWCCA 2; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR; Weir v R [2011] NSWCCA 123; Yinarrarra v Heath [2017] NTSC 54, referred to

REPRESENTATION:
Counsel:
Appellant:Ms B.Wild
Respondent:  Mr J.Bortoli
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Murphy and Associates
Judgment category classification:    C
Judgment ID Number:  BLO 1709
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Skeen v Byrne [2017] NTSC 93

No. 21659226
BETWEEN:

NICHOLAS SKEEN

Appellant

AND:

NICHOLAS O’SHEA BYRNE

Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 19 December 2017)
Introduction and background

This is an appeal against a sentence imposed by the Local Court on the grounds of lack of procedural fairness during the sentencing proceedings.
The appellant pleaded guilty to one count of aggravated assault. The circumstances of aggravation were that the victim (the appellant’s mother) suffered harm; that she was female; and that she was unable to defend herself. The third circumstance of aggravation referred to the victim being in a seated position and that the appellant was standing. After some argument, the sentencing judge found the third circumstance of aggravation had been made out.[1]
The facts constituting the offending were that after the appellant and victim had become intoxicated, the appellant kicked the victim to her head with his left foot. The kick caused her to fall backwards onto the pavement. She suffered a laceration to her bottom lip and was taken to the Mataranka Health Clinic for treatment.[2]
The plea hearing took place in the Local Court sitting at Mataranka. The appellant was sentenced to four months imprisonment. After hearing submissions, the learned sentencing judge rejected the submission made on the appellant’s behalf that “exceptional circumstances” were made out in the context of the applicable mandatory term of imprisonment of three months. The Court also rejected a submission that a portion of the sentence be suspended.[3]
The Notice of Appeal initially contained three grounds. Two grounds were abandoned at the hearing. The sole ground argued was:
The appellant was not afforded procedural fairness during the sentencing proceedings and the proceedings miscarried.
Sentencing material before the Local Court
Although the sole remaining ground requires a consideration of procedural fairness, it is necessary to see that ground in the overall context of the hearing.
The appellant’s previous convictions relevantly included a conviction for aggravated assault in 2011, for an offence committed in 2010. At that time he was sentenced to five months imprisonment. He also had previous convictions for property and traffic offences, the last being in 2013. In 2011 he was dealt with for a breach of a suspended sentence and, in 2012, for a breach of bail.
In the victim impact statement signed shortly after the offending, the victim referred to pain to her head, lip and mouth, that she was “scared he will do [it] again”, and that she did not want the appellant living with her anymore. She wanted a domestic violence order against him and expressed the view he should go back to Minyerri. She also expressed the view he should go to court and should be “locked up”.
A later letter from the victim addressed to the sentencing judge was tendered at the hearing.[4] The victim stated she did not want the appellant to go to gaol but to go to Minyerri Community to do community service and to live with two named family members at Minyerri. The letter stated the appellant had work with the RJCP at Minyerri Community.
The Local Court was told the appellant was 26 years old and from Jilkminggan. In submissions on his behalf it was pointed out he had not been before the courts for four and a half years and that the previous aggravated assault was committed seven and a half years ago. All of his previous offending took place when he was aged between 18 and 22. From a very young age he did not have a father and his mother cared for him. The sentencing judge was told the lack of a male figure impacted on him culturally as he could not discuss certain subjects with his mother. He had struggled to manage his emotions, and this was related to his earlier offending. His counsel told the Court he had always been regarded as quiet, reserved and kept to himself. It was pointed out that until the assault on his mother, there were four and a half years without offending of any kind.
In terms of the subject offending, the Court was told he provided no reason for the offending other than he was drunk. He was not clear about why he kicked his mother other than he recalled being very worried and stressed about ongoing family matters.
The appellant’s counsel told the Court he wholly regretted his actions. Although the significance of the injury was acknowledged, it was pointed out it was not a sustained or prolonged attack. The sentencing judge was asked to consider the matter as a reasonably early plea.
The appellant’s counsel asked the Court to take into account the appellant’s difficulties since the offending, including the loss of two brothers in quick succession by suicide at the end of 2016. The appellant was described as having suffered tremendously from that loss, that there were resulting changing circumstances, and that he now realised he needed to provide support to his family. Since the offending, the victim and the appellant had rekindled their relationship and had become reliant on each other through the difficult period. They had been residing in Jilkminggan together for the intervening period where they continued to support each other. The victim had attended the plea hearing to support her son. The Court was asked to consider the recently expressed attitude of the victim, that it had been about one year since the offending, there had been no further trouble, and that the appellant had been working through RJCP at Minyerri Community.
The appellant’s counsel asked the Court to take into account the following factors with a view to establishing “exceptional circumstances”: that the incident was an isolated event that was out of character; there was a lack of recent offending; the appellant had personal struggles since the offending; that the victim was supportive of him; and that he had support in the community. It was also submitted the offending was driven by alcohol and that it would be preferable if the appellant was to remain in the community or attend the Venndale rehabilitation programme.
The respondent submitted this was not a case of “exceptional circumstances”, as it was an unprovoked attack by the appellant on his mother, who was sitting down at the time.
The sentencing judge rejected the submission that the appellant was a youthful offender for sentencing purposes. She referred the appellant for a supervision report pursuant to s 103 of the Sentencing Act.
The section 103 supervision report
The supervision report noted that the appellant had previous contact with Community Corrections, that he had previously been supervised and the report noted “unsuccessful SSIO”. The report advised that the conditions of supervision had been explained to the appellant and he had indicated a willingness to comply with the conditions. Recorded next to the standard criteria, “Offender indicates understanding of supervision conditions”, is “yes”. Under the section “Comments” the report states the appellant had been under supervision in the past and that he had breached his past order by way of reoffending and conditionally. It was also mentioned he had a history of sniffing volatile substances and “it is not certain he fully understands his obligations should he be placed under supervision”. It was concluded he was not suitable for supervision.
The inconsistency within the report about whether he understood the conditions or obligations was the subject of submissions below. Counsel for the appellant noted the report was unfavourable, but pointed out there was no interpreter engaged during the assessment. Counsel for the appellant told the Court that an interpreter had been engaged for the appellant on the day of the plea hearing and on every previous occasion before the Court. This Court was told the interpreter was present in the Local Court on the day of the hearing. It was submitted it may have been that the appellant’s inability to fully understand his obligations was due to a lack of an interpreter being engaged in the assessment process.
During the course of the hearing the sentencing judge asked the author of the section 103 report whether she wished to speak with the appellant again with an interpreter. She replied “no, your Honour. Mr Skeen was seen by Corrections. It is not about whether we need an interpreter. If he does need an interpreter we don’t have (inaudible)”.[5] The sentencing judge reiterated that her question was just for the purpose of doing the suitability report. The author of the report said it was not likely to make any difference. The sentencing judge clarified the matter further and asked whether there was already information from the past which would not change whatever the appellant said in an interview. The corrections officer agreed that was the case.
The submission made on the appellant’s behalf below was that aside from the conclusion that the appellant was unsuitable for supervision, “exceptional circumstances” existed. It was submitted that if a condition was imposed on a suspended sentence that he attend Venndale Rehabilitation programme, his family would be able to facilitate his attendance.
The sentencing remarks
The sentencing judge summarised the facts of the offending and the submissions made on the appellant’s behalf. In terms of the question of “exceptional circumstances”, the victim impact statement was referred to, as well as the letter from the victim indicating her view had changed. The sentencing judge took those views and the submissions made on the appellant’s behalf into account. The sentencing judge remarked that the victim’s attitude to her son’s rehabilitation was not an overriding factor when all of the sentencing principles were considered, including importantly, general and personal deterrence. The assault was characterised as vicious and nasty and although it was not a continued assault, it involved a kick to the head with force that caused the victim to fall backwards.
The sentencing judge characterised the appellant’s circumstances since the offending as enormously traumatic. Although the sentencing judge considered the fact the family wanted to deal with the appellant’s rehabilitation through the family working together, she noted the charge was one of domestic violence and she did not consider that a matter of concern for the family but rather for the whole community.[6]
The sentencing judge concluded there were not “exceptional circumstances” and stated that even if the Court was not bound by mandatory sentencing, she would still impose a sentence of actual imprisonment. She remarked that the appellant was unsuitable for supervision and there were concerns around the assessment that an interpreter was not used. Her Honour said the reason the appellant was not suitable for supervision was not because of the interview but because of previous orders and previous dealings. She noted that even when persons are assessed as unsuitable a court can still order supervision. The sentencing judge declined to suspend any part of the sentence but reduced the overall sentence because of the plea of guilty by 25 per cent. The sentence was backdated and the appellant was ordered to serve four months in total.
Discussion of the single ground of appeal
The principles relevant to a consideration of procedural fairness in criminal proceedings are well established, including the requirement to afford procedural fairness during proceedings on sentence.[7] It is for the appellant to demonstrate that he was deprived of an opportunity to advance submissions or take other relevant steps that resulted in unfairness in the procedural sense.[8]
I agree that it is not completely clear why the appellant was unsuitable for supervision, in part because of the contradiction in the s 103 report described above and further because any previous failings were approximately six years prior to the subject offending. Nevertheless, the sentencing judge took the step of clarifying the reason for his non-suitability with the author, with a view to ensuring the lack of an interpreter was not part of the reason. The sentencing judge accepted and inferred from the answers given by the author of the report that the appellant was not considered suitable for supervision by reason of his previous dealings with correctional services. It would have been open to the sentencing judge to order a re-assessment with an interpreter engaged. It may, in hindsight, have been a preferable course. However, in the circumstances, given her Honour was satisfied with the answers given by the author of the report, it is understandable that no further assessment was ordered. In the circumstances, it could not be said to be a breach of procedural fairness not to have the appellant re-assessed. Counsel for the appellant below did not seek to examine the author of the report after the discussion with the sentencing judge. She did, however, press for a suspended or partially suspended sentence, submitting there could be a condition that the appellant attend rehabilitation. That submission appeared to contemplate attendance at a rehabilitation centre with or without supervision by correctional services. Clearly, as her Honour stated, she was aware she could order supervision or other conditions regardless of the outcome of the assessment.
Counsel for the appellant in this Court drew attention to Churnside v The State of Western Australia,[9] which stands for an approach that encourages courts to take steps consistent with the interests of justice to engage rehabilitation services and reduce the risks of re-offending. In my view nothing in the proceedings below contravenes such an approach. Relevant material addressing rehabilitation was before the sentencing judge.
Churnside must be read in its proper context. That case concerned an offender who had foetal alcohol spectrum disorder and was a neglected child. His cognitive deficits meant he was an inappropriate vehicle for deterrence. Material had been tendered to the sentencing judge that indicated there was some prospect of a community placement that might promote behavioural change. A finding was made that there was no viable community-based disposition without first having directed inquiries to establish whether this was the case. Churnside is readily distinguishable. In this matter, the Court below heard submissions that were appropriate and relevant to the question of “exceptional circumstances” and to community-based dispositions. Those dispositions were excluded after proper consideration. There was not a breach of procedural fairness or any miscarriage of the discretion by reason of no further enquiries being made.
Recently in Yinarrarra v Heath,[10] a case concerning an offender who was interviewed by correctional services without an interpreter, Grant CJ made the following points relevant to the receipt of supervision reports: that just because a court has ordered a supervision report is not an indication that a sentencing court will impose, or is actively considering imposing a suspended sentence (with or without supervision);[11] the assessment is an administrative act and does not direct or otherwise fetter the exercise of the judicial function;[12] and that in the circumstances of Yinarrarra v Heath, the sentencing judge had regard to the objective circumstances of the offending, its prevalence and the appellant’s subjective circumstances and determined a suspended sentence with or without supervision was not appropriate in the circumstances, and that as a consequence there was no failure by the sentencing judge to accord procedural fairness.[13]
While it may have been preferable for either the sentencing judge or counsel to examine the author of the report further in an attempt to obtain further clarification about the reason the appellant was not suitable for supervision,[14] the procedure adopted below did not, in my opinion, constitute a breach of the rules of procedural fairness. Counsel for the appellant below put a well-argued alternative submission to the Court, but it was clear her Honour reasoned the offending was too serious for an alternative disposition.
It is accepted here that persons who have a significant communication barrier should generally have the assistance of an interpreter when being assessed for supervision, however failure to provide an interpreter during that process does not in itself amount to a breach of procedural fairness. Much will depend on how the sentencing court deals with any unfairness that may have arisen because of an unaddressed language or communication barrier. Here it was accepted by the Court that the reasons for the appellant’s unsuitability were unrelated to his communication skills in English.
In my view there was not a breach of the rules of procedural fairness, when the rules are properly applied. The appellant was not deprived of the opportunity of being heard. From the transcript the appellant appeared to be well represented. His counsel suggested an alternative sentence but the submission was rejected with reasons.
I confirm an order was made that was unopposed by the respondent at the commencement of the hearing to grant leave to dispense with the requirements under s 171(2) of the Local Court (Criminal Procedure) Act.
The order will be that the appeal is dismissed and the sentence of Local Court is confirmed.
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[1] Transcript, Local Court, 20 September 2017 at 9-10.

[2] Transcript, Local Court, 20 September 2017 at 2-3; Exhibit P1 Precis; Exhibit P2 Victim Impact Statement.

[3] Transcript, Local Court, 20 September 2017 at 11.

[4] Exhibit P3 in the proceedings below, dated 20 September 2017.

[5] Transcript, Local Court, 20 September 2017 at 8.

[6] Transcript, Local Court, 20 September 2017 at 9-11.

[7] Pantorno v R [1989] HCA 18; 166 CLR 466 at 473-4 per Mason CJ and Brennan J; at 483 per Deane, Toohey and Gaudren JJ; Weir v R [2011] NSWCCA 123 at [64]; G v Bourne (1991) 105 FLR 52 at 55-7.

[8] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parteLam [2003] HCA 6; 214 CLR 1 at 10-13 [29]-[34] per Gleeson CJ; R v Wang; R v Roizman [2013] NSWCCA 2 at [19]–[20].

[9] [2016] WASCA 146 at [7].

[10] [2017] NTSC 54.

[11] [2017] NTSC 54 at [12].

[12] [2017] NTSC 54 at [13].

[13] [2017] NTSC 54 at [19], [20].

[14] As contemplated in cases such as O’Keefe v Tankard [1989] VR 371.