TD v Mainey
[2017] ACTSC 420
•30 October 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | TD v Mainey |
Citation: | [2017] ACTSC 420 |
Hearing Date: | 27 October 2017 |
DecisionDate: | 30 October 2017 |
Before: | Mossop J |
Decision: | 1. The sentences on charges CC2017/4755 and CC2017/5938 are confirmed. 2. The sentence on charge CC2017/4555 is set aside and the appellant is re-sentenced as follows: The appellant is convicted and required to enter into a Good Behaviour Order for a period of 12 months commencing on 30 May 2017 and ending on 29 May 2018 on the same conditions as were imposed by the magistrate. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – contravention of a domestic violence order – family violence – alleged manifestly excessive sentences imposed by magistrate – appellant seeking a non-conviction order – consideration of mental health concerns – disregard of court orders – appeal partially upheld – appellant resentenced on one count – Good Behaviour Order |
Legislation Cited: | Crimes Act 1900 (ACT), s 309 Crimes (Sentencing) Act 2005 (ACT), s 17 Family Violence Act 2016 (ACT), s 43(2) |
Cases Cited: | Dalton v The Queen [2015] ACTCA 48 R v Ellis [2014] ACTSC 389 R v Longstaff (Unreported, Nield AJ, ACT Supreme Court, |
Parties: | TD (Appellant) Peter Joseph Mainey (First Respondent) Robert James Morgan (Second Respondent) Chloe Anderson (Third Respondent) |
Representation: | Counsel A Fraser (Appellant) S Janackovic (Respondents) |
| Solicitors Armstrong Legal (Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number: | SCA 49 of 2017 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the Australian Capital Territory Before: Magistrate Boss Date of Decision: 30 May 2017 Case Title: Peter Joseph Mainey v TD Robert James Morgan v TD Chloe Anderson v TD Court File Numbers: CC2017/4555 CC2017/4755 CC2017/5938 |
MOSSOP J:
Introduction
This is an appeal from a decision of the ACT Magistrates Court on 30 May 2017. The appellant, TD, appeals from three convictions and prison sentences, two of which were wholly suspended upon the appellant entering a Good Behaviour Order for 12 months and the other wholly suspended after eight days upon entering a Good Behaviour Order. The grounds of appeal are that the sentences were manifestly excessive.
The sentences
The appellant was sentenced on 30 May 2017. The first two charges related to the contravening of a domestic violence order (Domestic Violence and Protection Orders Act 2008 (ACT), s 90(2)). The maximum penalty for that offence was five years imprisonment, or 500 penalty units, or both. The third charge was a charge of contravening a family violence order (Family Violence Act 2016 (ACT), s 43(2)). This section carries the same maximum penalty as the first two charges. The charges, the offence dates and the sentence imposed were as follows:
Charge Date of offence Sentence imposed CC2017/4555 21 April 2017 One month imprisonment suspended upon entering into a 12 month Good Behaviour Order
CC2017/4755 27 April 2017 Two months imprisonment suspended upon entering into a 12 month Good Behaviour Order CC2017/5938 27-28 May 2017 Four months imprisonment backdated to commence on 22 May 2017, suspended after serving eight days upon entering into a 12 month Good Behaviour Order
Chronology
The interim domestic violence order was made on 12 April 2017.
It was served on the appellant on 21 April 2017 at about 5:45pm. It included a prohibition upon the appellant from contacting the aggrieved person, her ex-partner, except in certain presently irrelevant circumstances. At 7:00pm that day, the complainant, the appellant’s ex-partner, received an email from the appellant. The email argued that for various reasons the “application for your DVO” was “null and void”. It also included an admission that the appellant had been leaving abusive messages on his voicemail.
The appellant was arrested later that evening.
On 22 April 2017 the appellant appeared in the Magistrates Court and was granted bail. A condition of her bail was that she comply with the domestic violence order.
On 27 April 2017 when the appellant was at her children’s school, she approached the complainant and had a brief verbal interaction with him during which he said that she should not be there. The domestic violence order in place prevented the appellant from being within 100 metres of the aggrieved person except in certain presently irrelevant circumstances.
The appellant was arrested that afternoon. On 28 April 2017 she again appeared in the Magistrates Court. A consumer assessment form completed in the custody holding cells recorded various matters including the expressing of opinion that she required a hospital admission. As a consequence, an order was made under s 309 of the Crimes Act 1900 (ACT). She spent between 28 April and 4 May 2017 in custody at the Adult Mental Health Unit at The Canberra Hospital. She did not receive a formal diagnosis but was treated successfully with olanzapine. The psychiatrist who prepared the report for the Court recorded her behaviour upon admission as being “possibly consistent with hypomania”, but made no formal diagnosis.
On 4 May 2017 the appellant was granted bail. A condition of bail required her to adhere to the conditions of the domestic violence order. A report of her general practitioner, dated 8 May 2017, included the following:
I have noted that her mental health has markedly deteriorated since her marriage break up over 3 months ago with no family support in the ACT. Within the last month or so, she has been trying
to get her health and life back together again. She was admitted to hospital for alcohol detoxification and admitted to [the] psychiatry hospital to improve her mental health condition. She is taking Antabuse to stay off alcohol and her medication has been changed while she was
admitted. She is attending AA meeting[s] and [is] still in touch with CADAS. She is extremely sad and upset that she cannot see her children [for] over a month now understandably. She has [an] appointment with a psychologist.
The letter also recorded her then current medications.
At some point after this, the domestic violence order ceased to have effect as a result of the proceedings being resolved by the entry into mutual undertakings by the parties.
However, her ex-partner subsequently made an application for an interim family violence order under the Family Violence Act which was served on the appellant at 5:31pm on
27 May 2017. That order included a prohibition upon the appellant contacting her ex-partner except in particular presently irrelevant circumstances.
At 5:45pm, that is, 14 minutes after the service of the family violence order, the appellant began calling her ex-partner and leaving him abusive and harassing voicemails and emailing him harassing messages. Her mobile phone demonstrated that between 5:45pm and midnight on 27 May 2017, the appellant made 10 telephone calls to her
ex-partner, the longest of which was 48 seconds long and most of which were less than 10 seconds long. From midnight until midday on 28 May 2017, the appellant made six further telephone calls to her ex-partner; the longest of these was 11 minutes, the rest one minute or less. While her ex-partner was at the Belconnen Police Station in the early hours of 28 May 2017 providing a statement, he received a telephone call from the appellant in which she yelled “You’re a rapist”, before hanging up.
Shortly after midday on 28 May 2017, her ex-partner contacted police and said that the appellant had told him that she was going to kill herself if he did not withdraw the family violence order. Police attempted to contact the appellant with limited success and subsequently attended her home.
The appellant was arrested some time in the early afternoon on 28 May 2017. She appeared before the Magistrates Court on 29 May 2017 where she was refused bail and remanded in custody until the next day. On 30 May 2017 she entered pleas of guilty to all charges and was sentenced.
The test for manifest excess
The principles applicable in relation to an appeal alleging that a sentence is manifestly excessive are summarised in Dalton v The Queen [2015] ACTCA 48 at [18]:
The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
·Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).
·The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].
·In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].
·It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].
Consideration
The evidence before the magistrate disclosed a series of offences occurring within reasonable proximity to an unpleasant breakup of a long-term relationship. The conduct overall disclosed a disregard for the terms of court orders. So far as the second and third offences are concerned, there could be no doubt of the need for significant specific deterrence having regard to the fact that, notwithstanding being charged with the first offence, having spent time in custody and being subject to bail conditions, the appellant continued to breach those orders. While the events involved in the second offence involved a minor breach, that cannot be said of the third offence which involved a pattern of harassment over a substantial period of time. The pattern of conduct, including the escalation of the behaviour and the apparent volatility and lack of control over the appellant’s behaviour, would undoubtedly have been a matter of significant concern to the magistrate. There was no doubt that the magistrate was faced with a situation in which specific deterrence was a very significant issue. By imposing the sentences for the second and third offences that she did, the magistrate both demonstrated leniency, insofar as no further period of incarceration was required and no fine or period of community service was required, while at the same time maximising the potential for deterrence of the offender by placing her at risk of a significant custodial penalty. This reflected a calibrated response to the conduct of the appellant which gave appropriate weight to the various sentencing considerations.
It has not been demonstrated that the second and third sentences were manifestly excessive in the sense required by the application of the principles summarised in Dalton v The Queen. While the appellant referred to different circumstances and sentences in R v Elphick (No 2) [2015] ACTSC 23, R v Ellis [2014] ACTSC 389; and R v Longstaff (Unreported, Nield AJ, ACT Supreme Court, 7 September 2012), the different circumstances of those cases do not demonstrate that in this case a suspended sentence was manifestly excessive. Nor does the statistic relied upon by the appellant, that less than six per cent of offenders received partially suspended sentences for the offence of contravening a protection order, demonstrate or support the claim of manifest excess. The respondent points out that 34.1 per cent of offenders received some form of custodial sentence. These statistics are of even less assistance than most when considering custodial sentences of the most modest form short periods and suspended. They do not demonstrate that the sentence was outside a defined range or otherwise show that it was manifestly excessive.
However the position is different in relation to the first offence. The appellant had only one previous conviction in her criminal history, a conviction for stealing as a servant in 1994 for which she was fined $1000 and required to make restitution in the sum of $620.
Thus, when it came to sentencing in relation to the first offence, she was clearly entitled to considerable leniency. That fact and the fact that the conduct involved the sending of a single email meant that, notwithstanding the maximum penalty and the seriousness with which the breach of such orders must be treated, it could not be said that a custodial sentence was the only appropriate sentence available, even if the decision was ultimately made that it was to be served by way of a suspended sentence. It is only if the sentence to be imposed is increased by reference to her subsequent conduct that a custodial sentence could be justified in the first instance. That is not a permissible approach. Even though the sentence was a short one and wholly suspended, it was one which, because of the appellant’s limited criminal history and the low-level of objective seriousness, was manifestly excessive.
In relation to charge CC2017/4555, I re-sentence the appellant by convicting her and requiring her to enter into a Good Behaviour Order for a period of 12 months commencing on 30 May 2017 and ending on 29 May 2018 on the same conditions as were imposed by the magistrate. This appropriately reflects the relatively low objective seriousness of the offending conduct and her guilty plea, while at the same time recognising the need for punishment and deterrence of offending conduct and the gravity of the offence reflected in the maximum penalty. I do not accept the appellant’s submission that a Crimes (Sentencing) Act 2005 (ACT) s 17 non-conviction order should be made. First, the appellant did have a criminal history. Second, there was no other evidence of good character before the Court. Third, there was no evidence of extenuating circumstances such that she misunderstood the nature of what had just been served upon her (as might be suggested by some portions of her email) or other extenuating circumstances which might explain or reduce the gravity of her breach. Fourth, the fact that the offence is, having regard to the maximum penalty specified by the legislature, a serious one.
In reaching this conclusion I have taken into account the evidence, such as it is, in relation to her mental health. It is the unfortunate fact that interim domestic violence or family violence orders are often granted in the context of the breakdown of a relationship. The behaviour associated with the emotional distress surrounding such events is often the reason why such orders become necessary. While there was clearly some concern about the appellant’s behaviour and the need to stabilise her medication, there is not clear evidence of a diagnosis of a mental health condition that excused or substantially lessened the culpability for her behaviour. The evidence of Dr Phengsiaroun, her GP, and Dr Ahlin, the psychiatrist at the Adult Mental Health Unit, do not provide sufficient evidence in mitigation of her conduct on 21 April 2017 to warrant the making of a s 17 order.
Orders
The orders of the Court are:
1.The sentences on charges CC2017/4755 and CC2017/5938 are confirmed.
2.The sentence on charge CC2017/4555 is set aside and the appellant is
re-sentenced as follows:The appellant is convicted and required to enter into a good behaviour order for a period of 12 months commencing on 30 May 2017 and ending on 29 May 2018 on the same conditions as were imposed by the magistrate.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 16 March 2018 |
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