The Queen v Bonney

[2022] NTCCA 3

CITATION:The Queen v Bonney [2022] NTCCA 3

PARTIES:THE QUEEN

v

BONNEY, Josiah

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:No. CA 14 of 2021 (22037961)

DELIVERED:  25 February 2022

HEARING DATE:  10 February 2022

JUDGMENT OF:  Kelly, Blokland and Brownhill JJ

CATCHWORDS:

CRIME – Appeals – Crown appeal against sentence – Manifest inadequacy –offender sentenced for aggravated assault, property damage and unlawfully cause serious harm – whether individual sentences were manifestly inadequate – whether total effective sentence was manifestly inadequate – whether non-parole period was manifestly inadequate – whether error was made in applying principle of totality – whether sentence imposed was within limits of a sound exercise of sentencing discretion – sentence not manifestly inadequate – appeal dismissed.

Arnott v Blitner [2020] NTSC 63; Emitja v The Queen (2016) 39 NTLR 159; Everett v The Queen (1994) 181 CLR 295; Griffiths v The Queen (1977) 137 CLR 293; House v The King (1936) 55 CLR 499; The Queen v BJW (2000) 112 A Crim R 1; The Queen v Mossman [2017] NTCCA 6; The Queen v Osenkowski (1982) 30 SASR 212; The Queen v Roe [2017] NTCCA 7; The Queen v Simpson [2020] NTCCA 9; R v Wurramara (1999) 105 A Crim R 512; Veen v The Queen (No 2) (1998) 164 CLR 465; Whitlock v The Queen [2018] NTCCA 7, referred to.

Criminal CodeAct 1983 (NT) s 414(1A)

REPRESENTATION:

Counsel:

Appellant:N Papas QC

Respondent:  B Wild

Solicitors:

Appellant:Office of the Director of Public Prosecutions

Respondent:  North Australian Aboriginal Justice Agency

Judgment category classification:    B

Number of pages:  16

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Bonney [2022] NTCCA 3

No. CA 14 of 2021 (22037961)

BETWEEN:

THE QUEEN

Appellant

AND:

JOSIAH BONNEY

Respondent

CORAM:    KELLY, BLOKLAND and BROWNHILL JJ

REASONS FOR JUDGMENT

(Delivered 25 February 2022)

THE COURT:

1. This is a Crown appeal against sentence on the ground of manifest inadequacy.

2. The respondent, Josiah Bonney, pleaded guilty to three counts:

   (a)       one count of aggravated assault against his domestic partner, PR,      aggravated by the fact that the victim was a female, that the victim suffered harm and that she was unable effectually to defend herself;

   (b)       one count of property damage to a fan belonging to PR; and

   (c)       one count of unlawfully causing serious harm to PR.

3. On 7 October 2021, the sentencing judge imposed the following sentences after allowing a reduction of 25% for the respondent’s guilty plea:

   (a)       Count 1 (aggravated assault) – 9 months imprisonment (3 months      cumulative on sentence for count 3);

   (b)       Count 2 (property damage) – 3 weeks imprisonment (wholly concurrent with the sentence for count 1); and

   (c)       Count 3 (unlawfully cause serious harm) – 3 years imprisonment.

   The total effective sentence was 3 years and 3 months.  The sentencing judge fixed a non-parole period of 1 year and 8 months.

Facts of the offending

1. The facts of the offending, as outlined in the sentencing remarks, are as follows.  The victim was the respondent’s domestic partner.  They were living in a unit in Malak at the time of the offending.

2. On 19 November 2020, the respondent and the victim visited a friend in Darwin.  They drank alcohol together and became intoxicated before returning to Malak.

3. When they got home, the victim continued drinking alcohol into the evening with a friend.

4. At 10.00 pm, the respondent became angry with the victim because she was still drinking.  He told her to stop.  Then he punched her in the face, twice, while she was sitting on the floor.

5. The offender then picked up a broom and began hitting the ceiling fan, causing it to disconnect from the ceiling and fall onto the floor.

6. As a result of the assault, the victim received a split lip and a bleeding nose.  She called an ambulance and was taken to the Royal Darwin Hospital.  She was found to have suffered the following injuries:

   (a)       a three centimetre laceration to the left cheek;

   (b)       a laceration to her nose from nostril to nostril;

   (c)       a swollen and lacerated upper lip; and

   (d)       an abrasion to the right upper arm.

7. The laceration to the victim’s nostril was repaired with sutures and she was discharged.

8. The next day, 20 November 2020, the victim returned home.  Later that evening the respondent and the victim drank alcohol with visitors at their home.

9. Eventually they all retired to sleep.  Some people slept inside the residence and some people slept outside.  The victim stayed inside in the lounge room and the respondent slept outside.

10. At about 2.50 am, it started to rain.  The respondent went inside to get out of the rain.  He woke up the victim and said, “I’m sleeping outside like a dog.”

11. Then he punched and kicked the victim in the face.  He picked up a wooden cricket bat, held it with two hands, and hit the victim with it a number of times until the bat broke.  The victim raised her left hand to try and shield herself.

12. The respondent walked into the kitchen, picked up a fry pan and hit the victim with it, once on the head and once on the body, all the while yelling at her.  Family members called an ambulance and the police.  The victim was taken to the Royal Darwin Hospital by ambulance.

13. The victim was found to have the following injuries:

    (a)       a wound, swelling and bruising to the face, including around one of        her eyes;

    (b)       congealed blood and a wound on the back of the head, measuring   10 cm by 10 cm;

    (c)       swelling and deformity to her left wrist; and

    (d)       bruising and swelling to her body.

14. The wounds to the victim’s head and face were cleaned and closed with sutures and steri-strips.  A CT scan and x-ray revealed that one of the bones in the victim’s hand was broken.  She required open reduction internal fixation surgery to treat the broken hand.  Six screws were inserted and a splint put in place.  That fracture to the hand amounted to serious harm.

Personal circumstances

1. The respondent is 30 years old.  He was 29 at the time of the offending.  He was raised in Ali Curung and mostly cared for by his maternal grandmother.  His parents separated when he was an infant because of his father’s domestic violence, and neither parent was able to take care of him.  He had a positive upbringing with his grandmother.  The respondent has four siblings from the same mother but different fathers.

2. The respondent went to Ali Curung primary school and then to high school in Tennant Creek.  He lived with his other grandmother while attending high school.  He completed year 10 and can read and write English.  He is a fluent speaker of Warlpiri, Alyawarre and English.  The respondent’s mother also lived in Tennant Creek at this time, but she showed little interest in having a relationship with him.

3. After finishing year 10, the respondent returned to Ali Curung but he often travelled to Tennant Creek for appointments and to visit family.

4. The respondent played football for the Ali Curung team, starting when he was 15, and remains involved with the team when he is not incarcerated.

5. After he returned to Ali Curung, the respondent participated for a short time in the Community Development Employment Projects (CDEP) program with the local council.  His work included ground maintenance and rubbish removal.  He worked for the council again for a time in 2015.  At the time of the offending he was on the Newstart Allowance.

6. The respondent obtained his white card in construction and intends to look for work in construction upon his release.

7. The respondent met the victim in 2012 and started living with her and her parents.  They also lived with another family member in Ali Curung.  They have three children together, aged 6, 5 and 3.  The eldest lives in Ali Curung with a family member.  The other two live with the victim.  The respondent has not had contact with them since being remanded in custody.  The respondent and the victim have separated and he does not intend to resume the relationship.

8. There is a full non-contact order in place which names the victim as the protected person.

9. The respondent first tried alcohol when he was 17 while living in Tennant Creek.  Since that time, he drinks regularly and accepts that he has a problem with the misuse of alcohol.  He participated in residential rehabilitation with CAAAPU in Alice Springs in 2016 and 2019.  He completed both programs and found his stays to be “helpful”.  He intends to re-enter residential rehabilitation on his release.

10. The respondent has prior convictions for crimes of violence, including three prior convictions for crimes of violence against the current victim: unlawfully causing serious harm in 2016, and two aggravated assaults in 2018.  He was sentenced to a term of imprisonment for 18 months, suspended after 12 months with an operational period of 12 months for unlawfully causing serious harm.  The suspended sentence was fully restored in March 2018.

11. The sentencing judge referred to a victim impact statement in which the victim spoke about her physical injuries and her pain and the fact that she had to spend time in hospital in Darwin and then go back into hospital in Alice Springs for a few days as a result of complications to her head wound.  She spoke about not wanting to be away from her home and family in Tennant Creek.  She also said she was embarrassed because the neighbours could hear that the respondent was not treating her right and heard what was going on.  The sentencing judge commented, “Clearly the attack upon her caused her considerable emotional suffering.”

Crown Appeal

1. The Crown appeals against the sentence imposed on the following grounds:

   1.   The learned sentencing justice erred in imposing individual sentences that were manifestly inadequate in all the circumstances.

   2.   The learned sentencing justice erred in imposing a total effective sentence that was manifestly inadequate in all the circumstances.

   3.   The learned sentencing justice erred in fixing a non-parole period that was manifestly inadequate in all the circumstances.

   4.   The learned sentencing justice erred in his approach to the sentencing principle of totality.

2. The principles governing Crown appeals against sentence are not in dispute.[1]

   (a)Crown appeals against sentence should be a rarity brought only to establish some matter of principle.[2]

   (b)Manifest inadequacy in a sentence amounts to such an error of principle which the Crown is entitled to have the appeal court correct.[3]

   (c)The presumption is that there is no error.  It is incumbent upon the appellant 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.[4]

   (d)The principles in House v The King[5] 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 also remains applicable:[6]

   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 the judge’s sympathies are reasonably excited by the circumstances of the case.  There must always be a place for leniency which has been traditionally 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 an 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.[7]

   (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.[8]

3. The appellant contends that the sentences imposed are, individually, manifestly inadequate and that the principle of totality has been misapplied by the sentencing judge ordering too much concurrence between the individual sentences.

4. The appellant places emphasis on the principles enunciated by the Courts in relation to domestic violence offending and the need for courts to impose sentences which serve to protect the victim and the community and to serve as a deterrent.  Cases cited include the decision of this Court in The Queen v Wurramara[9] in which the Court observed:

   The courts have been concerned to send what has been described as ‘the correct message’ to all concerned, that is that Aboriginal women, children and the weak will be protected against personal violence insofar as it is within the power of the court to do so.

5. The appellant also cited the following passage from Emitja v The Queen:[10]

   As this Court has repeatedly observed before and since that statement was made, such conduct must be dealt with in a manner which reflects the serious nature of the offending and its corrosive effect on well-being in Aboriginal communities.

   While it may be accepted that some Aboriginal communities have an unusually high incidence of serious crimes of violence, and that the courts are powerless to alleviate the dysfunction and deprivation which underlies that violence, Aboriginal women and children living in those communities “are entitled to equality of treatment in the law’s responses to offences against them”.  The protection which the law affords includes the imposition of sentences which include a component designed to deter other members of the community from committing crimes of that nature.

6. The appellant contends that the individual sentences (and the total sentence) are manifestly inadequate in light of the following matters:

   (a)The offending took place in a domestic context.

   (b)The respondent had prior criminal history of like offending.

   (c)The sentencing judge made the following uncontested findings of fact:

   (i)The two assaults on the victim “are serious offences”.

   (ii)The second occasion “involved a sustained and vicious attack upon the victim”.

   (iii)The victim “was in a vulnerable situation and she was unable to adequately defend herself”.

   (iv)Such crimes of domestic violence “remain prevalent”.

   (v)This is “yet another incident of drunken violence committed by a male against a female”.

   (vi)The main sentencing objectives “are punishment, denunciation and specific and general deterrence”.

   (vii)The offender has “seriously assaulted the victim on prior occasions and he obviously has not learned from being dealt with on those occasions”.

   (viii)There is “little by way of mitigation”.

7. In oral submissions, the appellant emphasised the relevance of the respondent’s prior convictions for violent offending, in particular the prior conviction for causing serious harm, citing the observations by the High Court in Veen v The Queen (No 2):[11]

   [T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.  To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (1970) AC 642 at p 650. 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 sentence is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.

8. Also in oral submissions, the appellant relied on the fact that at the sentencing hearing, defence counsel characterised the offending in the instant case as ‘mid-range”, a characterisation that was not contested by the Crown, and contended that a starting point of four years was too low for a mid-range offence of unlawfully causing serious harm which carries a maximum penalty of 14 years imprisonment, given the very limited matters available in mitigation for this particular offender.

9. The Director, who appeared on the appeal, pointed with approval to the following passage in the sentencing remarks of the sentencing judge:

   This is yet another incident of drunken violence committed by a male against a female.  There is little by way of mitigation.  The offender must have been aware that he behaves violently when he is affected by alcohol or intoxicated.  The main sentencing objectives are punishment, denunciation, and specific and general deterrence. The community strongly disapproves of such conduct and the courts must do what they can to protect women from such violence.
   
   

10. He submitted that given the objective seriousness of the offending and the respondent’s relevant prior criminal history, a significantly higher sentence was required to meet those objectives.  Hence this was a case in which, although no error could be identified, this Court may infer that there has, in some way, been a failure properly to exercise the sentencing discretion.  The nature of the error may not be discoverable, but a substantial wrong has in fact occurred as a result of the “mismatch” between those factors and the sentence imposed.

11. The appellant also contends that three months accumulation of the two sentences is insufficient given that the two incidents occurred at least 24 hours apart and amounted to distinct and separate episodes of offending.  The complaint about the insufficiency of the degree of accumulation of the sentences is really a particular of the ground of manifest inadequacy of the sentence.  Although there would have been room for a greater degree of accumulation between the sentences, there has been no error of principle demonstrated in the degree of accumulation ordered by the sentencing judge.

1. The appellant also complained that the non-parole period imposed was manifestly inadequate in the circumstances.  The appellant initially contended that a non-parole period of greater than 50% of the head sentence should have been imposed.  However, during the hearing of the appeal, that contention was withdrawn and the appellant accepted that, as no submission about the appropriate non-parole period was made by the Crown at the sentencing hearing, the “error” could appropriately be addressed by imposing a non-parole period calculated by application of the same percentage to an increased head sentence.

2. The respondent contends that the sentence is not manifestly inadequate.  Although not resiling from defence counsel’s characterisation of the offending as “mid-range” at the sentencing hearing, counsel who appeared for the respondent on the appeal contended that it was “lower mid-range”, chiefly because of the nature of the injury – a broken bone in the hand.  The respondent relies on the statement of principle in The Queen v Simpson[12] that “where (as in this case) [i.e. the charge of unlawfully causing serious harm] a defining feature of the offence is the harm to the victim, the seriousness of the harm caused must play a significant role in determining the objective seriousness of the offence.”

3. We endorse the views expressed in R v Wurramara and Emitja v The Queen and wish to emphasise the importance of sentencing judges sending a strong and consistent message that crimes of violence against Aboriginal women and children and other vulnerable members of the community are not to be tolerated – a strong message of denunciation – and the importance of including in such sentences a strong and consistent component of general deterrence.  However, it is also important that this Court does not unduly circumscribe the sentencing discretion of judges.

4. In this case, despite a history of prior violent offending, the respondent’s prospects of rehabilitation were ‘moderate’ (as submitted by the Crown to the sentencing judge), the sentence falls squarely within the range of sentences identified by the appellant’s comparative sentencing schedule, some concurrency of the individual sentences accorded with the principle of totality, and the minimum non-parole period of just over 50% of the head sentence was open (as was accepted by the Crown before the sentencing judge).  Further, the sentencing judge was entitled to take into account the nature of the injury, which was less serious than many which constitute serious harm.

5. In our view, the sentence, while lenient, perhaps even very lenient, does not fall outside the legitimate limits of the sentencing discretion.  The appellant has not identified any error of principle and the sentence is not so disproportionate to the seriousness of the offending as to shock the public conscience and demonstrate error in principle.  It is not unreasonable or plainly unjust.

6. The appeal is dismissed.

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[1]See The Queen v Mossman [2017] NTCCA 6 at [8]-[18]. The following summary is taken verbatim from Arnott v Blitner [2020] NTSC 63 at [75].

[2]The Queen v Roe [2017] NTCCA 7 at [11]; See also Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at 310.

[3]See also Everett v The Queen [1994] HCA 49; 181 CLR 295 at 300.

[4]          Whitlock v The Queen [2018] NTCCA 7; See also The Queen v Simpson [2020] NTCCA 9.

[5][1936] HCA 40; 55 CLR 499.

[6]The Queen v Osenkowski (1982) 30 SASR 212 at 212-213.

[7]See also The Queen v BJW [2000] NSWCCA 60; 112 A Crim R 1 at [29].

[8]Criminal CodeAct 1983 (NT), s 414(1A).

[9](1999) 105 A Crim R 512.

[10](2016) 39 NTLR 159 at [32]-[33].

[11](1998) 164 CLR 465 at 477.

[12][2020] NTCCA 9 at [30].