The Queen v Anzac
[2020] NTSC 58
•7 August 2020
CITATION:The Queen v Anzac [2020] NTSC 58
PARTIES:THE QUEEN
v
ANZAC, Billy John
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:22011115
DELIVERED: 7 August 2020
HEARING DATES: 18 June 2020, 5 and 7 August 2020
JUDGMENT OF: Southwood J
CATCHWORDS:
CRIME – SENTENCING APPEAL – Crown appeal – denial of procedural fairness – respondent conceded denial of procedural fairness – respondent resentenced
Breach of domestic violence order – operation of s 121(2) and (3) of the Domestic and Family Violence Act 2007 – “particular circumstances of the offence” – circumstances of the offence include circumstances of the offender directly related to the offence – particular circumstances exception contained in s 121(3) of the Domestic and Family Violence Act 2007 made out – respondent convicted of offence charged on complaint – offender sentenced to a supervised bond
Criminal Code 1983 (NT) s 1A
Domestic and Family Violence Act 2007 (NT) s 120, s 121
Misuse of Drugs Act 1990 (NT)Midjumbani v Moore [2009] NTSC 27; 229 FLR 452, applied.
REPRESENTATION:
Counsel:
Applicant:I Rowbottam
Respondent: R McCarthy
Solicitors:
Applicant:Director of Public Prosecutions
Respondent: North Australian Aboriginal Justice Agency
Judgment category classification: B
Judgment ID Number: Sou2002
Number of pages: 18
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Anzac [2020] NTSC 58
No. 22011115
BETWEEN:
THE QUEEN
Applicant
AND:
BILLY JOHN ANZAC
Respondent
CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Ex tempore – delivered 7 August 2020)
Introduction
On 3 April 2020 the respondent was found guilty by the Local Court in Katherine of breaching a domestic violence order contrary to s 120(1) of the Domestic and Family Violence Act 2007 (NT) (the Act).
The particulars of the breach were that on 1 April 2020 at Katherine, the respondent, being a person against whom a domestic violence order was made and was in force, engaged in conduct that resulted in a contravention of the order. As the respondent has prior convictions for breaches of domestic violence orders he was required to be sentenced under s 121(2) of the Act, unless the court was satisfied of the matters set out in s 121(3) of the Act.
The Local Court judge proceeded to deal with the respondent without conviction. His Honour sentenced the appellant to a good behaviour bond on conditions which included supervision by Community Corrections. The term of the good behaviour bond was six months. The conditions of the bond were as follows.
1.The respondent is to appear before the court if called upon during the period of the bond.
2.The respondent is to be of good behaviour during that period.
3.If the respondent fails to comply with any of the conditions of the bond he may be ordered to pay part or all of an amount [which was set at “0 dollars”].
4.The respondent must not during the period the order is in force commit another offence, whether in or outside the Territory punishable on conviction by imprisonment.
5.The respondent is to be under the ongoing supervision of a Probation and Parole Officer, must obey all reasonable directions from a Probation and Parole Officer and must report to a Probation and Parole Officer directly after the order comes into force.
6.The respondent must tell a Probation and Parole officer of any change of address or employment within two clear working days after the change.
7.The respondent must not leave the Territory except with the permission of the Probation and Parole Officer.
8.The respondent shall not purchase, possess or consume alcohol, and shall provide any sample requested by a Probation and Parole Officer or a police officer.
9.At the direction of a Probation and Parole Officer, the respondent must wear or have attached an approved monitoring device and allow the placing or installation in and retrieval from the premises or place specified in the order of such machine, equipment or device necessary for the efficient operation of the monitoring device.
10.The respondent shall comply with the electronic monitoring rules as stipulated in the rules of electronic monitoring.
11.The respondent is to reside at an agreed upon location for the purposes of self‑isolation and not leave the designated area for a period of 14 days or until instructed by a Probation and Parole Officer, a member of the Northern Territory Department of Health or Northern Territory Police.
12.When directed by a Probation and Parole Officer, the respondent will return to Yarralin Community directly.
On 28 April 2020 the prosecution filed a notice of appeal. The grounds of appeal were:
1. The learned sentencing judge erred in his application of ss 121(2) and (3) of the Domestic and Family Violence Act 2007.
2. The learned sentencing judge erred in failing to accord procedural fairness to the complainant by not requesting submissions on the issue of proceeding without recording a conviction in circumstances, where the learned sentencing judge had previously indicated that he would be imposing a conviction.
3. The learned sentencing judge erred in imposing a sentence that was manifestly inadequate in all the circumstances.
As the respondent conceded that ground 2 was a valid ground of appeal, on 18 June 2020 I allowed the appeal on ground 2 and made the following ancillary orders.
1.The sentence imposed by the Local Court is set aside.
2.Community Corrections are to provide a pre-sentence report and an assessment for the respondent to reside in residential rehabilitation.
3.The appellant is to provide details of the prior assaults that are recorded against the respondent in the respondent's antecedent report.
4.The matter is adjourned to 10 am on 5 August 2020.
5.The respondent is granted leave to appear by way of video conferencing.
On 5 August 2020 I heard submissions from counsel on re‑sentencing.
The facts
The facts of the offending are as follows.
The respondent in this matter is Billy Anzac. The victim in this matter is LH. The respondent and the victim are partners.
On 16 March 2020 the respondent was issued a domestic violence order by Judge Austin in Katherine Local Court. The conditions of the order were as follows.
(a)For a period of 12 months from 16 March 2020 the respondent is restrained from directly or indirectly:
i.Approaching, contacting or remaining in the company of the protected person when consuming alcohol or another drug (not as prescribed) or substance or when under the influence of alcohol or another drug or substance (not as prescribed).
ii.Approaching, entering or remaining at any place where the protected person is living, working, staying, visiting or located if consuming alcohol or another drug (not as prescribed) or substance or when under the influence of alcohol or another intoxicating drug or substance; and the respondent must submit to a breath test and/or breath analysis and/or drug test when requested by police in relation to this order.
iii.Causing harm or attempting or threatening to cause harm to the protected person.
Sometime in the evening on 1 April 2020, the respondent and the victim consumed an unknown amount of alcohol together at Grevillea Park in Katherine, rendering themselves intoxicated. Senior Constable McFarlane and Constable Nankivell, Constable Pascoe and ACPO Phillip arrived at Grevillea Park and saw the respondent standing next to the victim in an intoxicated state. The respondent was observed by all police members to be heavily intoxicated. He was unsteady on his feet, had slurred speech, bloodshot eyes and his breath smelt of alcohol. Police checks confirmed the domestic violence order was in existence and had been served on him.
At 6:04 pm the respondent was arrested and taken to the Katherine Watchhouse where he was subject to breath analysis, returning a reading of 0.264 grams of alcohol in 210 litres of breath. He did not provide a lawful excuse for breaching the domestic violence order.
Upon sentence being passed by the Local Court, the respondent was released from prison, where he had been for three days, and he went into isolation for 14 days before returning to Yarralin. While in isolation, he was required to stay in a hotel room and was subject to electronic monitoring. Since his return to Yarralin, the respondent has been supervised by Community Corrections and he has complied with the conditions of his good behaviour bond.
Resentence
A pre-sentence report, as requested, was provided to the Court. The report states the following matters which are of significance to this matter.
Under the heading, "Current offence," it is noted that the respondent explained to the Probation and Parole Officer that he and his partner consumed alcohol regularly during their relationship and had the occasional argument. He went on to state that he recalled being with the victim, which he knows was wrong. He said the police and his family told him what he had done, and so he accepts that he did the wrong thing.
In speaking about the victim the respondent said that he did not blame her and he accepts full responsibility for his actions. He considers a single life in the remote community with his family to be the best way for him to do the right thing.
As to his prior criminal history, and I will come to that shortly, it was noted in the presentence report that alcohol has been a major contributing factor across the respondent’s criminal life. The majority of his offences include assaults and aggravated assaults while intoxicated.
The respondent has lived a criminal‑free life time to time: from 1991 to 1997, 1998 through to 2005, and from 2015 through to 2018. During these periods, the respondent advised the Probation and Parole Officer who prepared the presentence report that he was either living in remote communities: Yarralin, Nitjpurru or Lingara, and engaged in employment in community work activities.
As to his background, the respondent reported that his father drank heavily and would argue with people, including his mother often. He recalled witnessing a violent assault against his father by other parties when he was 19 years of age which resulted in his father's death. He stated that witnessing this assault had a profound psychological effect on him which has not been addressed.
As to the respondent’s education, it was reported that he started his schooling in Katherine. He often missed a lot of school due to varying difficulties, such as his parents’ inability to support his school attendance and educational requirements, which resulted in non‑attendance and eventual expulsion.
The respondent described his education as poor, saying he found it difficult to engage with the other children or understand the content of what he was being taught. He advised he has limited reading and writing skills, and as an adult he appreciates language assistance. I take that to mean he often requires the assistance of interpreters. Indeed, it was noted in the presentence report that the respondent has difficulty with the English language and therefore requires appropriate language assistance to ensure he is fully aware of his rights and responsibilities towards any court mandated order.
As to his substance use, the respondent denied any misuse of volatile substances but acknowledged that he has had a problem with alcohol consumption for an extended period of time. Over time his consumption of alcohol has increased. There are times when he cannot stop drinking and has gone looking for more. He admits that there are times when he is so drunk that he cannot remember his actions and relies on other people to inform him about them. This usually results in him feeling ‘no good’ and sorry for his actions.
In 2013 the respondent was afforded an opportunity to participate in the Venndale residential rehabilitation program. A review of his records indicates a strong engagement and positive steps being taken towards formulating achievable goals and strategies to address his offending. However, unfortunately, it is also reported that the respondent absconded from Venndale and did not avail himself of further relapse prevention treatment. It is noted in the Venndale exit report, which was dated 27 December 2013, that the respondent suffered cognitive difficulties following an accident.
The respondent was assessed for residential rehabilitation, but due to his current responsibilities in looking after an elderly person at Yarralin, it was determined that it would be inappropriate at this point in time for him to enter into residential rehabilitation care at Venndale.
Currently the respondent is residing in a new two‑bedroom unit in Yarralin. He is the sole carer for Mr CC, a male elder and traditional owner of Yarralin who has chronic medical conditions.
Community Corrections stated in the presentence report that they are able to supervise the respondent.
It is apparent that the respondent's misuse of alcohol is a very significant criminogenic factor. It is important from both the respondent's and the community's point of view that so far as is practicable, the respondent should reside in a remote community, and prior to the expiration of his good behaviour bond, he should undertake and complete a residential rehabilitation program and the Family Violence Program. While the respondent has remained in Yarralin, as is consistent with the history that I have referred to, he has ceased using alcohol.
The respondent has a criminal history. He has six prior convictions for assault, the majority of which have been assaults on the protected person. He has nine prior convictions for engaging in conduct that contravenes a domestic violence order.
On 29 November 2019 the respondent was convicted and sentenced by the Local Court for breaching a domestic violence order and assaulting LH. The assault was constituted by the respondent leaning over and punching the victim three times to her face. She suffered a small cut to her face, which did not require any treatment other than washing the blood off her face.
As the respondent has previously been found guilty of an offence against s 120(1) of the Domestic and Family Violence Act, he is to be re‑sentenced under s 121(2) of the Act unless the court is satisfied of the matters set out in s 121(3).
Section 121 of the Act, subs (1) states:
If an adult is found guilty of an offence against s 120(1), the person is liable to a penalty of 400 penalty units or imprisonment for 2 years.
Subsection (2) states:
The court must record a conviction and sentence the person to imprisonment for at least 7 days if the person has previously been found guilty of a domestic violence order contravention offence.
Subsection (3) states:
Subsection (2) does not apply if:
(a) the offence does not result in harm being caused to the protected person; and
(b) the court is satisfied it is not appropriate to record a conviction and sentence the person under the subsection in the particular circumstances of the offence.
It is to be noted that the relevant particular circumstances are the particular circumstances of the offence. Unlike the equivalent provision in the Misuse of Drugs Act 1990 (NT), it is not the particular circumstances of the offence or the offender.
The operation of ss 121(2) and (3) of the Act were considered by his Honour Riley J (as he then was) in Midjumbani v Moore.[1] In the course of his reasons in that case, his Honour stated the following about the scheme of the Act.
The purpose of the Domestic and Family Violence Act is to provide for the protection of persons, inter alia, by the making of domestic violence orders to protect people from domestic violence. In making such an order the paramount consideration is the safety and protection of the protected person. The thrust of s 121(2) of the Act is to ensure compliance with the terms of domestic violence orders and to maintain the integrity of the legislative scheme. […] However, s 121(3) enables a court to avoid that consequence in specified circumstances. The requirements of the subsection are cumulative and it is for a respondent seeking to rely upon the provision to raise matters which may bring him or her within the ambit of the subsection.
The first requirement is that the offence does not result in harm being caused to the protected person (s 121(3)(a)). [As is obvious, no such harm was caused in this case.] “Harm” is defined by reference to the definition in s 1A of the Criminal Code. In the present case [That is, in that case as well.] there was no suggestion that relevant “harm” had been caused to the protected person.[2]
His Honour then went on to state:
In applying the section the court must consider whether it is “not appropriate to record a conviction and sentence the person under the subsection in the particular circumstances of the offence”. The first thing to notice is that the reference is to the "circumstances of the offence" rather than of the offender. The respondent submitted that the provision is to be distinguished from similar directions provided for in the Misuse of Drugs Act 1990 (NT), where, in s 37(2), there is a reference to ‘the particular circumstances of the offence or the offender.’ It was submitted that it is only when the court decides that because of the particular circumstances of the ‘offence’ it is not appropriate to record a conviction and sentence the person under the subsection that the court can avoid sentencing the person under s 121(2) of the Act.[3]
His Honour stated:
Notwithstanding the different wording, in my opinion the reference to ‘The particular circumstances of the offence’ should be given a wide interpretation to achieve the purpose of the legislation. Where appropriate such circumstance will include relevant circumstances of the offender. Such factors as immediate remorse, immediate cooperation with the authorities and an early plea of guilty may be so closely connected with or to the respondent’s culpability as to affect the seriousness of the offence.
The fact that a wide interpretation was intended is supported by reference to s 122 of the Domestic and Family Violence Act, which applies the same terminology as is found in s 121 to a ‘young person’. In that section reference is made to ‘the particular circumstances of the offence, including, because of the person's age,’ suggesting that the age of a person is part of the circumstances of the offence. [I interpolate, that is because of the word "including”.] Further, a wide interpretation is consistent with the apparent intention of the legislature, as revealed in the second reading speech, to provide for a ‘discretion not to impose a mandatory sentence if the court is of the opinion that in the circumstances of the offence it is not appropriate to do so.’ There would appear to be no reason why all the circumstances of the offence, including those directly related to the respondent should not be included.
For the exception to apply, the court must be satisfied that it is not appropriate to ‘record a conviction and sentence the person under the subsection.’ A person can only be sentenced to imprisonment under s 121(2) if a conviction has been recorded. That requirement is provided for in relation to these proceedings in s 121(2) and, more generally, by operation of s 7 of the Sentencing Act which requires a conviction to be recorded before a respondent can be sentenced to a term of imprisonment of any kind. [I note the relevant provision of the Sentencing Act is s 7(g).]
If there is no conviction there cannot be a sentence of imprisonment. Once it has been determined that a conviction is appropriate then it follows that a term of imprisonment can be imposed. The issue then to be resolved is whether a sentence of imprisonment ought to be imposed. The response is governed by the terms of s 121(3) of the Domestic and Family Violence Act, which requires the court to consider whether it is appropriate to both record a conviction and sentence the person under the subsection in the particular circumstances of the offence. In my opinion, the phrase is to be read in its entirety to determine its meaning. The provision is expressed in conjunctive terms requiring a consideration of the cumulative penalty being a conviction and imprisonment for at least seven days. The sentencing court is required to look at the particular circumstances of the offence to determine whether it is satisfied that it is not appropriate to both ‘Record a conviction and sentence the person under the subsection.’ That is the natural and ordinary meaning of the provision.[4]
His Honour then goes on to state:
If harm is not caused, the court is required to consider the particular circumstances of the offence. Only where the court is satisfied that it is not appropriate to record a conviction and sentence the person under the subsection to a period of imprisonment of at least seven days will the subsection not apply.[5]
As to particular circumstances, his Honour noted the following.
The expression “in the particular circumstances” is found in a similar provision in the Misuse of Drugs Act. The phrase was considered in the context of that Act in the judgment of Mildren J in Duthie v Smith; which judgment was later followed by the Court of Criminal Appeal in R v Day. The expression was there held to require the accused to establish circumstances relative to the proscribed conduct constituting the offence sufficiently noteworthy or out of the ordinary to warrant a non‑custodial sentence. The circumstances do not need to be either rare or exceptional. In my view a similar approach should be adopted in relation to the provision now under consideration.[6]
If s 121(3) applies, it follows that s 121(2) does not apply to the Court's sentencing discretion, and the Court is not, in that circumstance, constrained by the provisions of s 121(2) of the Act. That means that in the circumstance of the respondent, he may be convicted and may be sentenced to a term of imprisonment of less than 7 days or to some other sentencing disposition which does not involve a sentence of imprisonment being imposed.
Having reviewed the facts, the exhibits which were tendered in the court below and the pre‑sentence report, I find that the offence did not result in harm being caused to the protected person, and, in the particular circumstances of this offence, I am satisfied that it is not appropriate to record a conviction and impose a sentence of 7 days or more on the respondent under s 121(2) of the Act. That is to say, s 121(3) applies and s 121(2) may be disregarded.
I find the particular circumstances of the offence to be as follows.
·The respondent comes from a deprived background;
·The respondent suffers from chronic misuse of alcohol and is likely to have some cognitive impairment as a result;
·He continues to struggle with alcoholism;
·He cannot control his consumption of alcohol when he is in town. That is to say when he is in Katherine;
·He was exposed to the misuse of alcohol at a young age;
·His father drank heavily;
·The respondent and the protected person were in a domestic relationship which involved a mutual dependence on the misuse of alcohol;
·He has not been fully treated for his misuse of alcohol;
·The offending occurred in Katherine, which is a place where alcohol is readily available, and the respondent is vulnerable to the misuse of alcohol in Katherine;
·There was no suggestion that the respondent was being aggressive or in any way threatening the protected person.
I find those matters are relevant to an assessment of his moral culpability and therefore relevant to the particular circumstances of the offence. All of the factors to which I have referred to have a tendency to lower his moral culpability.
Further, the respondent is genuinely remorseful. He pleaded guilty at an early opportunity and he cooperated with the authorities. He accepts that he did the wrong thing. He does not blame the victim and accepts full responsibility for his actions.
In the circumstances, I convict the respondent of the offence charged on complaint and I order accordingly that:
(1)The respondent is to be released upon providing security in his own recognizance in the sum of $500.
(2)He is to appear before the Local Court if called upon to do so during the period of the order.
(3)He is to be of good behaviour for a period of 12 months from today.
(4)He is to observe the following conditions.
(i)He is to be supervised by a Probation and Parole Officer for the period of 12 months, and he is to obey all reasonable directions of the Probation and Parole officer as to reporting, residence and employment.
(ii)He is to reside at […] Yarralin and he is not to leave Yarralin without the permission of his Probation and Parole Officer, and only for the period permitted by his Probation and Parole Officer, or in the case of a medical emergency.
(iii)He is not to change his address in Yarralin without the permission of his Probation and Parole officer.
(iv)He is not to consume alcohol or a dangerous drug.
(v)He is to be tested for the consumption of alcohol and dangerous drugs.
(vi)He is to undertake the Family Violence Program if it becomes available to him in his community.
(vii)At the direction of his Probation and Parole officer, he is to immediately enter into a residential rehabilitation program, or any other program assessed as suitable, participate fully in that program and do nothing to cause his early discharge from that program.
(viii)The respondent shall participate in the assessment for treatment programs or counselling as directed by his Probation and Parole Officer.
(ix)The respondent shall have no contact directly or indirectly with the victim.
(x)The respondent is not to leave the Northern Territory.
I make no orders as to costs.
---------------------------------
[1] [2009] NTSC 27.
[2] Ibid at [12] and [13].
[3] Ibid at [15].
[4] Ibid at [16] – [19].
[5] Ibid at [22].
[6] Ibid at [24].
5