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Liddy v The Queen [2005] NTCCA 8

PARTIES: LIDDY, Christopher John

v

THE QUEEN

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

JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 15 of 2004 (20325700)

DELIVERED: 29 April 2005

HEARING DATES: 29 April 2005

JUDGMENT OF: MARTIN (BR) CJ, RILEY & SOUTHWOOD JJ

CATCHWORDS:

CRIMINAL LAW
Appeal – appeal against sentence – manifestly excessive – plea to assault on de facto wife – fractured cheekbone – facial reconstruction required – event not intended but foreseen as a possible consequence – not manifestly excessive – appeal dismissed.

Cameron v The Queen (2002) 209 CLR 339; Veen v The Queen (No 2) (1988) 164 CLR 465, followed.
Kelly v The Queen (2000) 10 NTR 39, applied.

REPRESENTATION:

Counsel:
Appellant: I Read
Respondent: J Adams

Solicitors:
Appellant: NTLAC
Respondent: DPP

Judgment category classification: B
Judgment ID Number: Mar0511
Number of pages: 11

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

Liddy v The Queen [2005] NTCCA 8
No. CA 15 of 2004 (20325700)

BETWEEN:

CHRISTOPHER JOHN LIDDY
Appellant

AND:

THE QUEEN
Respondent

CORAM: MARTIN (BR) CJ, RILEY & SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 29 April 2005)

Martin (BR) CJ:
[1] I agree that the appeal should be dismissed for the reasons give by Riley.
Riley J:
[2] On 9 March 2005 the appellant was sentenced to imprisonment for a period of five years and six months with a non-parole period of three years and nine months in relation to three assaults committed upon his defacto wife in 2003. The appeal is against that sentence on the sole ground that the sentence was manifestly excessive.
[3] The first offence in time (count 3) occurred between 1 March 2003 and 31 October 2003. The appellant was at the victim’s flat and was working on a bicycle. They were arguing and the appellant swung a piece of wire, taken from the bicycle, around his head in order to frighten the victim. A brake part attached to the end of the wire dislodged and struck the victim on the ribs. As a result of the assault the victim suffered bruising to her ribs.
[4] The appellant acknowledged that it was clearly foreseeable that the victim may have been struck by the swinging wire. At the same time the victim told the appellant that she would leave and he threatened her by saying, ‘You better not, I'm going to smash your face. I'm going to keep punching till it’s smashed and no one will want to look at you and if that doesn’t work I'm going to kill you’.
[5] The appellant pleaded guilty to an offence of aggravated unlawful assault causing the victim bodily harm. The maximum penalty for the offence is imprisonment for five years.
[6] The second offence in time, (count 1), occurred on 25 October 2003 when the appellant unlawfully assaulted his victim who suffered bodily harm. On that occasion the appellant and his victim had been together during the course of the day. The appellant verbally abused the victim and as a consequence she attempted to phone Dawn House to arrange emergency accommodation for herself. The appellant threw a chair at her and she put up her hands in order to protect herself. He then pushed her to the ground and said, ‘You fucking whore, get fucking outside ‘cause I'm going to flog you’. The victim was frightened and did as she was told. Once outside she took the opportunity to escape, and with the assistance of neighbours, Police were called.
[7] As a result of the assault upon her the victim suffered lumps to her head, a sore left arm and bruising to her body. Police attended and arrested the appellant who was taken to the watchhouse where he participated in a record of interview. In the course of that interview he denied the assault saying, ‘It’s a lie’. The maximum penalty for the offence is imprisonment for five years.
[8] Following the assaults referred to in count 1 the appellant was served with an interim restraining order issued pursuant to the terms of the Domestic Violence Act. It was directed that he not enter or approach the victim’s home, not assault or cause personal injury to the victim, and not approach the victim directly or indirectly.
[9] The third offence, (count 2), occurred within hours of the service of the restraining order. The appellant contacted his brother from the Police Station and asked him to drive to an address in Bakewell where he located the victim sitting on a chair in the back garden. She was there with other people. Notwithstanding the events of the previous day, and in a direct and deliberate breach of the domestic violence order that had recently been served upon him, the appellant walked directly to the victim and said, ‘Put a restraining order on me you cunt’, and punched her with a closed fist to the left cheek. At the time of the assault she was still sitting in her chair. When asked to explain his conduct, the appellant said in a record of interview:
“On the night I got arrested I came here. I rang up my brother to pick me up and went home to the flat to grab some clothes. I pulled in to see Toddy and Di. I walked out the back and the victim was sitting down on the chair. She said, ‘Hey babe’. I slapped her, I punched her, knocked her out and left, and that was all in respect of that. And I think I slapped her first, then punched her. Just slapped her slight but the punch was from here to bang in the head somewhere hard on her left cheek. I just thought it was a hard hit. I didn’t know there was that much damage, she just fell off the chair.”
[10] Following the incident on 26 October 2003 the victim was taken to Dawn House and then to Royal Darwin Hospital. She was there examined, and it was revealed that she suffered a fractured cheekbone, left intraorbital nerve damage with the numbness to the left upper teeth and upper lip, a left zygomatic maxillary complex fracture with the fractures of the anterior medial and posterior walls of the antrum, depressed zygomatic arch fracture and a displaced left orbital floor fracture. On 29 October 2003 she underwent surgery to repair those injuries and she was discharged from hospital on 31 October 2003.
[11] Had her injuries not been treated she would have suffered permanent disability including permanent numbness and pins and needles on the left side of the face, possible permanent abnormal movements of the left eye with double vision and possible blurring of vision, together with the permanent physical deformity of a sunken cheekbone. This assault resulted in the victim suffering grievous harm and the appellant was charged with unlawfully causing grievous harm, an offence which carries a maximum penalty of imprisonment for fourteen years.
[12] In the course of his record of interview the appellant acknowledged that he used violence to control his victim. He said:
“You know, I get wild, I throw things, I punch doors, I do it to frighten her. I’ve broken all the things up in the flat. I’ve punched the walls. I have an anger management problem, but with her I just - I suppose my way of keeping her with me.”
[13] In her Victim Impact Statement the victim noted that she was in hospital for a week with the facial reconstruction. She had four metal plates and four metal screws inserted in her cheek area and she said the whole of the left side of her face was reconstructed. She now has 10 to 30% feeling on this side of her face. She suffers nervous spasms in the face. Her tear ducts do not work properly and she has headaches, discomfort, embarrassment and constant pain as a result of the assaults. She also suffers nightmares relating to the assault and the subsequent surgery. She has difficulty sleeping, she feels depressed and she suffers from low self esteem and mood swings.
[14] In relation to count 1 the appellant was sentenced to imprisonment for a period of six months, in relation to count 2 imprisonment for five years and in relation to count 3 imprisonment for six months. The learned sentencing Judge had regard to the principle of totality and in light of that principle made the sentence on count 3 concurrent with that on count 2. The total sentence imposed upon the appellant was for imprisonment for a period of five years and six months with a non-parole period of three years and nine months. The sentence was backdated to take account the time in custody.
[15] The complaint of the appellant is that the sentence was manifestly excessive in all the circumstances. The principles applicable to such an appeal are well known. It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error and the appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it be shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing Judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error. In relying upon this ground it is incumbent upon the appellant to show that the sentence was not just excessive but manifestly so. He must show that the sentence was clearly and obviously and not just arguably excessive.
[16] In support of the submission that the sentence was manifestly excessive the appellant emphasised the plea was entered to an ex officio indictment and thereby facilitated the course of justice. A committal was not required and the plea was therefore said to be deserving of the full discount available on this basis. Reference was made to Cameron v R (2001/2002) 209 CLR 339. It was acknowledged by the appellant that the sentencing Judge made reference to the plea and to the fact that it was to an ex officio indictment. Her Honour observed that the victim had not had to give evidence and that the appellant had assisted by the plea of guilty in the administration of justice. However the appellant contended that had the full discount been given (which on his figures was in the order of 27.5%) the starting point of the sentence in relation to count 2 would have been six years, 10.2 months, which was, ‘Way too high’.
[17] Further in support of the appeal the appellant admitted that the assault in relation to count 1 was relatively minor and the assault in relation to count 2 consisted of a single punch with no weapon used. In relation to count 3 it was submitted that the plea proceeded on the basis that the event (that is the metal object striking the victim) was not intended but was foreseen as a possible consequence of the appellant’s conduct. Given those descriptions the appellant submitted that the starting point for the sentence for the three assaults was clearly and obviously and not just arguably excessive.
[18] It is clear from the observations of her Honour that she did take into account the early plea of guilty and the circumstances of that plea. I note in passing the desirability of there being an expressed acknowledgment of the plea and identification of the manner in which that has been taken into account in the sentencing process: Kelly v R (2000) 10 NTR 39. In the circumstances of this matter the respondent submits that the appellant was not entitled to the full discount because of the circumstances in which the plea was entered. The matters relied upon in support of that submission were not aired in the court below, and I do not propose to consider them now. The appellant was entitled to an appropriate discount.
[19] The offences to which the appellant pleaded guilty were clearly serious offences. They were assaults upon the partner of the appellant conducted over a period of time. Each offence was separate in time from the others and was carried out in circumstances where the apparent intention of the appellant was to exert ongoing physical and mental pressure upon the victim in order to frighten her and to prevent her leaving the appellant. On each occasion the victim was vulnerable and incapable of defending herself against the appellant. The threats that accompanied the offending, the subject of counts 1 and 3, were extreme and made in circumstances where the victim understood that the appellant was willing and able to carry them out. The final assault is of particular concern. At that time the appellant had already and recently assaulted his victim in a serious way. He had been served with a domestic violence order. He had spent time in Police custody and therefore had the opportunity to reflect upon his position but then proceeded to commit the most severe of the assaults. He did so in direct defiance of the domestic violence order. His conduct was premeditated and designed to punish the victim for having obtained an order against him. He attacked her in circumstances where she had no opportunity to defend herself and where she was seated at the time. The conduct of the appellant manifested a continuing attitude of disobedience to the law.
[20] The appellant has a regrettable criminal history which, as the sentencing Judge observed, included offences of unlawful carnal knowledge for which he was sentenced to a total period of imprisonment of 14 years with a non-parole period of seven years in 1986. In 1985 he was convicted of rape and sentenced to imprisonment for eight years with a non-parole of six years. During the course of this term of imprisonment he was convicted of assaulting a person in the execution of his duty and sentenced to imprisonment for three months.
[21] As her Honour observed, his offending gives rise to a concern as to his ability to control his violent behaviour.
[22] The way in which an offender’s prior offending is to be taken into account was discussed in Veen v R (No 2) (1988) 164 CLR 465, where Mason CJ and Brennan, Dawson and Toohey JJ in a joint judgment (at 477/478) said:
“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 penalty 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 his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”
The treatment of the appellant’s criminal history by the learned sentencing Judge was in accordance with that decision.
[23] The assaults upon the victim were each serious offences. They occurred on a defenceless woman and were accompanied by further threatening behaviour. They were part of an ongoing exercise of intimidation of the victim through violent conduct. They reflected the desire of the appellant to control the victim so that she would not leave him. The assaults were separate in time and of increasing concern. Whilst the assault referred to in count 2 consisted of a single blow it was in effect a king hit to a seated woman who suffered grievous harm as a result. Her injuries continue to affect her.
[24] In light of his criminal history, the ongoing and increasingly violent conduct of the appellant could not be said to be an uncharacteristic aberration on his part. It shows, as I have observed, a continuing attitude of disobedience of the law and this is a case in which retribution, deterrence and protection of society must play a significant part in the assessment of an appropriate penalty. The criminal history illuminates the moral culpability of the offender and shows his dangerous propensity. Condign punishment was appropriate.
[25] In my opinion the sentences of imprisonment in relation to counts 1 and 3 are quite unexceptional. The sentence of five years imprisonment in relation to count 2 is towards the top of the available range in all the circumstances. However, in light of the offending as I have described it, and in light of the personal circumstances surrounding the offender, in my opinion in cannot be said that the sentence was outside the proper range of the sentencing discretion.
[26] The appeal should be dismissed.
Southwood J:
[27] I also agree that the appeal should be dismissed for the reasons given by Riley J. Significantly the appellant engaged in a deliberately violent pattern of behaviour for the purposes of intimidating and controlling the victim.
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