Turner v The King

[2023] NTCCA 1

CITATION:Turner v The King [2023] NTCCA 1

PARTIES:TURNER, Brendan James

v

THE KING

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

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 7 of 2021 (21751258)

DELIVERED:  7 February 2023

HEARING DATE:  6 February 2023

JUDGMENT OF:  Grant CJ, Blokland and Brownhill JJ

CATCHWORDS:

CRIME – Appeals – Appeal against the sentence – Manifest excess – Misapplication of principle – Taking into account irrelevant consideration

Appeal against sentence on grounds: (a) that sentence manifestly excessive; (b) that sentence breached ‘ceiling principle’; and (c) that sentencing judge erred by taking into account matters not agreed or proved – Head sentence not plainly and obviously excessive – No breach of ‘ceiling principle’ because sentence originally imposed manifestly inadequate and formulated by reference to totality principle – Error taking into account matters not agreed or proved beyond reasonable doubt – Appeal allowed on ground 3 and appellant resentenced. 

Criminal Code (NT), s 411

Fillipou v The Queen (2015) 89 ALJR 776, Johnson v The Queen [2012] NTCCA 14, Lowndes v The Queen (1999) 195 CLR 665, Markarian v The Queen (2005) 228 CLR 357, R v Bedford (1986) 5 NSWLR 711, R v Gilmore (1979) 1 A Crim R 416, R v Horstmann [2010] SASC 103, RH McL v The Queen (2000) 203 CLR 452, referred to.

REPRESENTATION:

Counsel:

Appellant:M Thomas

Respondent:  M Aust

Solicitors:

Appellant:Darwin Family Law

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:           B

Number of pages:  13

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

Turner v The King [2023] NTCCA 1

No. CA 7 of 2021 (21751258)

BETWEEN:

BRENDAN JAMES TURNER

Appellant

AND:

THE KING

Respondent

CORAM:      GRANT CJ, BLOKLAND and BROWNHILL JJ

REASONS FOR JUDGMENT

(Delivered 7 February 2023)

THE COURT:

1. This is an appeal against sentence on three grounds.  Those grounds are: (a) that the sentence was manifestly excessive; (b) that the sentence breached what has been described as the ‘ceiling principle’; and/or (c) that the sentencing judge erred by taking into account matters asserted in the Victim Impact Statement which had not been agreed or proved.

   Procedural history

2. On 29 March 2019, the appellant was found guilty of 12 offences following a trial by jury.  Those offences comprised four counts of sexual intercourse without consent, seven counts of aggravated assault and one count of issuing a threat to kill.  The trial judge imposed a total head sentence of seven years and six months subject to a non-parole period of four years and 11 months.

3. After some delay, the appellant lodged an appeal against those convictions.  The Crown conceded the appeal on all counts, and on 26 August 2021 the Court of Criminal Appeal quashed the convictions and ordered a retrial.  The appellant was released from prison on that date, by which time he had served two years, four months and 29 days referable to those charges.

4. After a course of dealings between the Crown and the defence, it was agreed that the appellant would plead guilty to the seven charges of aggravated assault and the one charge of issuing a threat to kill in full satisfaction of the charges originally brought on indictment.  On 25 May 2022, the appellant pleaded guilty to those charges.  During the course of the sentencing proceedings, the Crown conceded that the time already served by the appellant satisfied the relevant sentencing purposes, and that the appellant was a good candidate for an order suspending sentence.  On 16 June 2022, the sentencing judge imposed a head sentence of four years and five months’ imprisonment backdated to take account of time already served, and made an order suspending that sentence after the appellant had served three years.  An operational period of two years following the date of release was fixed.

5. By that disposition the appellant was required to serve another seven months and one day in prison before being released on the order suspending sentence.  On 1 July 2022, the appellant filed an application for leave to appeal against that sentence.  On 7 July 2022, the appellant made an application for appeal bail.  On 20 July 2022, bail was granted pending the determination of the application for leave and any consequent appeal.  On 4 August 2022, leave to appeal was granted by a single judge.  To this point in time the appellant has served two years, six months and four days in prison referable to these offences.

   The circumstances of the offending and offender

6. There can be no doubt that the offences for which the appellant was sentenced constitute a very serious example of offending of this type.  The facts agreed for the purpose of the sentencing proceedings may be summarised as follows.

7. The appellant and the victim were in a spousal relationship between 2013 and 2017.  They lived in a remote community where the appellant worked in the local store and the victim was a schoolteacher.  Over the course of 2016, the appellant arranged access to the victim’s bank account and exercised financial dominion over the victim’s savings and earnings.  The appellant became angry and smashed household items if the victim raised any objection to his use of her monies.

8. Over the course of 26 and 27 August 2016 the appellant behaved in an antagonistic manner towards the victim during a trip to Katherine.  While driving from Katherine back to the community in which they lived, they argued about the appellant’s use of the victim’s money.  During the course of that argument the appellant spoke to the victim in an abusive fashion, became angry, and threatened to drive into a tree and kill them both.  The victim was unable to stop crying, whereupon the offender drove at high speed towards a tree before swerving at the last minute to avoid a collision.  The appellant repeated that manoeuvre on a number of occasions during the drive back to the community with the obvious intention of scaring and threatening the victim.

9. The seven aggravated assaults were committed between October 2016 and February 2017.  The incidents all took place while the appellant was enraged and were accompanied by verbal abuse of the victim.  The assaults were constituted by a range of different conduct.  That conduct included shaking the victim and throwing her onto a concrete floor; repeatedly slamming a door on the victim’s forearm; gouging the victim’s hand with a key and throwing her to the ground; pushing the victim up against a wall and removing her shorts and underwear; picking the victim up and throwing her into a table causing the victim to hit the side of her face on the table; grabbing the victim and pushing her up against a metal gate; twisting the victim’s arm behind her back and threatening to bash her; and holding the victim against a wall and pointing the tip of a hunting knife at her throat.

10. Following this continuing and concerted campaign of violence and abuse against her, the relationship between the victim and the appellant ended and the victim left the community in February 2017.

11. The appellant was 39 years of age at the time of the sentencing proceedings in May and June 2022.  He had no prior criminal history.  He was born and raised in Melbourne in a functional and supportive family.  Following his secondary schooling he completed a Bachelor of Applied Science degree and a Diploma of Information Technology.  On graduation he secured employment with a document management company.  He commenced a relationship with the victim while they were both living in Melbourne.  When she secured a position as a schoolteacher in a remote community in the Northern Territory, he followed the victim there and secured employment as an assistant manager of the local community store.

12. Contemporaneously with the breakdown of his relationship with the victim, the appellant commenced a relationship with an Aboriginal woman who lived on the community.  There are two children from that relationship who are twins born in 2018.  When the appellant was released from prison following the successful appeal he returned to live with his partner in the community.  At the time of sentencing following the guilty pleas the appellant had an offer of employment back at the community store.  The appellant subsequently resumed his employment at the community store and remained in that employment at the time this appeal was heard.  He had also complied with the conditions of bail during two extended periods – between his initial arrest and trial, and between his release following the successful appeal and the sentencing proceedings in May and June 2022.

13. During his period of incarceration the appellant did not commit any serious breaches or incidents, was compliant with correctional centre rules, and displayed good conduct and behaviours towards officers and others.  He was employed as a cleaner during his incarceration and successfully completed the Family Violence Program.

    The sentence imposed

14. The sentencing judge treated the threat to kill as the index offence and imposed a sentence of 19 months.  The sentencing judge then imposed a sentence of imprisonment for 18 months for the most serious aggravated assault (repeatedly slamming a door on the victim’s arm), a sentence of imprisonment for four months for the least serious aggravated assault (twisting the victim’s arm behind her back), and sentences of imprisonment for 15 months for each of the other five aggravated assaults.  Five of the sentences imposed for the aggravated assault offences were each ordered to be served cumulatively as to five months on the sentence imposed for the index offence, while the sentences imposed for the other two aggravated assaults offences were ordered to be served cumulatively as to seven months and two months respectively.  The total period of imprisonment was four years and five months which, as already stated, was ordered to be suspended after the appellant had served three years.

    The grounds of appeal

15. In order to succeed on the ground of manifest excess the appellant must establish that the sentence was clearly and obviously excessive.  As this Court has stated on many occasions, an appeal court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the discretion in a manner different from the manner in which the sentencing judge exercised her or his discretion.  This is because the discretion which the law commits to sentencing judges is of vital importance in the administration of the system of criminal justice: see Lowndes v The Queen (1999) 195 CLR 665 at [15]. An appellate court is bound to allow to sentencing judges ‘as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies’: see Markarian v The Queen (2005) 228 CLR 357 at 371.

16. As the sentencing judge found, the gravamen of this offending was that for a period of six months the appellant violently abused the victim in a most degrading and humiliating manner.  He placed the victim under constant threat of attack in order to exercise dominion and control over her.  The appellant’s coercive and controlling behaviours limited, directed and shaped the victim’s thoughts, feelings and actions for a significant period of time.  The appellant’s motivation included the functional and financial benefit which he derived from his subjugation of the victim.  The appellant’s strategy of abuse also involved elements of great cruelty which are unnecessary to recount for these purposes.

17. Against that background, it cannot be said that the individual sentences imposed for each of these offences, or the extent of accumulation, led to a head sentence which was clearly and obviously excessive and unjust.  Nor can it be said that the requirement to serve three years was manifestly excessive in the application of the relevant principles.  This ground of appeal is dismissed.

18. The appellant’s assertion in relation to the ‘ceiling principle’ hinges on an analysis of the sentences imposed following the findings of guilt made by the jury, and a purported comparison of the sentence imposed at that time and the sentence imposed following the successful appeal and the pleas of guilty to the assault and threat offences.  Counsel for the appellant’s argument in this respect is that the trial judge had sentenced the appellant to imprisonment for seven years for the four counts of sexual intercourse without consent, and an additional period of only six months for the remaining eight offences (which were the subject of the subsequent guilty pleas). 

19. That was achieved by imposing sentences of between three months and nine months for the threat to kill and the aggravated assault offences, and ordering those sentences to be served cumulatively as to three months with each other (making a total of 12 months for those eight offences), and cumulatively as to six months with the sentences imposed for the four rape offences (making a total of seven years and six months for all 12 offences). 

20. The appellant’s argument is that on proper analysis the sentence imposed for those eight offences following the original trial was 12 months and the sentence imposed in respect of the same offences following the successful appeal was four years and five months.  That was said to breach the principle that if an offender is convicted at a retrial following appeal, he or she should not receive a longer sentence than he or she received at the original trial: see RH McL v The Queen (2000) 203 CLR 452 at [72]. The policy underlying that approach is that the imposition of longer sentences on a retrial may discourage appeals and appear to contain a retributive element. Two points need to be made about that approach and the submission based on it.

21. First, if the sentencing judge in the course of the second sentencing proceedings considers that the original sentence was manifestly inadequate, it is open in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion.  Standing alone, a total sentence of 12 months for the eight offences in question would have been obviously and manifestly inadequate.  It is plain from the transcript of proceedings conducted on 25 May 2022 that the sentencing judge was not convinced that the trial judge had dealt with the quality, nature and seriousness of the threat and assault offences, rather than focusing his attention almost exclusively on the rape offences: see Appeal Book 46-49.  That was reflected in the Crown submissions made on that same day to the effect that the original sentence was directed primarily to the four sexual offences, and that the other offences were dealt with in service of the principle of totality: see Appeal Book 51.

22. Secondly, when there are multiple convictions set aside on appeal, not all of which are subject to subsequent findings of guilt and sentence following the appeal, it is significant if the original sentences were modified by considerations of totality: see R v Bedford (1986) 5 NSWLR 711 at 714; RH McL v The Queen (2000) 203 CLR 452 at [74]; R v Gilmore (1979) 1 A Crim R 416 at 419. Counsel for the appellant submits that there is nothing to indicate that the sentences originally imposed by the trial judge for the threat and assault offences were modified for totality reasons. That submission should be rejected. When considered in context, the sentences imposed were obviously modified to take account of the fact that they were in accretion to a sentence of seven years for the rape offences.

23. For these reasons, the ground of appeal based on the ‘ceiling principle’ is also dismissed.

24. Different considerations apply to the contention that the sentencing judge fell into specific error in acting on certain matters asserted in the Victim Impact Statement which were not agreed or proved for the purpose of the sentencing proceedings.  Those matters were that the appellant had given the victim a sexually transmitted disease; that the appellant had transferred the victim’s savings into a share trading account; that the appellant had bought a motor vehicle with a loan in the victim’s name but registered the vehicle in his name; and that the appellant had kept the motor vehicle following the termination of the relationship and left the victim to repay a significant loan.  There can be no doubt that a sentencing judge may not take facts into account in a way that is adverse to an offender unless those facts have been agreed or established beyond reasonable doubt: Fillipou v The Queen (2015) 89 ALJR 776 at [64].

25. Where it has been established that the sentencing judge has made a specific error, it falls to the appeal court to consider the matter and exercise its own sentencing discretion: see Johnson v The Queen [2012] NTCCA 14 at [25]; R v Horstmann [2010] SASC 103 at [36]-[38], subsequently endorsed in R v Meschede [2016] SASCFC 49 at [3]; and R v Lutze [2014] SASCFC 134; 121 SASR 144 at [47]. That is reflected in s 411(4) of the Criminal Code, which requires this Court to quash the sentence if it is of the opinion that another sentence is warranted and should have been passed.  In that process, the appeal court may yet refrain from interfering with the sentence if it thinks that the resulting penalty was appropriate notwithstanding the demonstrated error.  In such a case, the Court of Criminal Appeal will ordinarily not vary the sentence if it thinks that the same or a higher sentence would be passed if it were to exercise the discretion itself.  However, where specific error is demonstrated, the Court of Criminal Appeal may reduce the sentence if in the exercise of its own discretion it considers that a lesser sentence is appropriate, even though the sentence under appeal is not manifestly excessive.

26. In this case we have concluded that there is no call for the appellant to spend any further time in actual imprisonment before the order suspending sentence takes effect.  We have reached that conclusion having regard to the appellant’s subjective circumstances which we have already described, matters which have transpired since this appeal was allowed, and the effluxion of time since the commission of the subject offences. 

27. For those reasons, following the hearing of the appeal on 6 February 2023 we made the following orders:

    1.The appeal is allowed on ground 3.

    2.The order made on 16 June 2022 that the sentence to imprisonment is to be suspended after the offender has served three years is set aside.

    3.The sentence to imprisonment is suspended forthwith.

    4.An operational period of two years from today is fixed for the purposes of ss 40(6) and 43 of the Sentencing Act 1995 (NT).

    5.The orders made on 16 June 2022 otherwise remain in place, including the imposition of a total period of imprisonment of four years and five months to commence on 18 January 2020.

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